Exhibit 10.1
Loan Numbers 00-0000000
through
00-0000000
CONSENT TO MERGER
This Consent to Merger (this "Agreement") is entered into as of March 29,
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2002 by and among MARRIOTT RESIDENCE INN LIMITED PARTNERSHIP, a Delaware limited
partnership ("Borrower"), with an address of 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx,
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Virginia 23219, Attn: Xxxxx X. Xxxxxx, RIBM ONE LLC, a Delaware limited
liability company ("Existing GP") with an address of c/o Host Marriott
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Corporation, 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attn: Xxxxxx
Xxxxxxx, AHT RES I GP, INC., a Virginia corporation ("New GP"), with an address
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of 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attn: Xxxxx X. Xxxxxx, AHM
Res I Limited Partnership, a Virginia limited partnership ("Lessee") with an
address of 00 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attn: Xxxxx X.
Xxxxxx, and LASALLE BANK NATIONAL ASSOCIATION (F/K/A LASALLE NATIONAL BANK), AS
TRUSTEE FOR MORTGAGE PASS-THROUGH CERTIFICATES SERIES 1996-2 ("Lender"), with an
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address of c/o Midland Loan Services, Inc., 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000, Re: Loan Numbers 03-0211752-03-0211766.
RECITALS
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A. Borrower is the owner of those certain Marriott Residence Inn Hotels
described in Exhibit "C" attached hereto and incorporated herein by reference
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(collectively, the "Hotels") and located on the real property described in
Exhibit "A" attached hereto and incorporated herein by reference. Such real
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property, together with all improvements, fixtures and personal property located
thereon, is collectively referred to as the "Property".
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B. By assignment, Lender is the owner and holder of fifteen (15) separate
loans to Borrower in the aggregate original principal amount of One Hundred
Million and No/100 Dollars ($100,000,000.00) (collectively, the "Loan") and the
owner and holder of the instruments and documents (collectively, the "Loan
Documents") evidencing, securing or otherwise relating to the Loan including,
without limitation, (i) that certain Loan Agreement dated October 10, 1995 by
and between Borrower and German American Capital Corporation, as agent or
trustee ("Original Lender"), as the same has been modified and amended by that
certain First Amendment to Loan Agreement dated as of April 23, 1996 by and
between Borrower and Original Lender (as so modified and amended, the "Loan
Agreement"), (ii) those certain fifteen (15) separate Promissory Notes each
dated as of October 10, 1995, from Borrower to the order of Original Lender in
the aggregate original principal amount of $100,000,000.00 (collectively, the
"Notes"), and (iii) the instruments and documents described on Exhibit "B"
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attached hereto and made a part hereof.
C. Midland Loan Services, Inc. services the loan for Lender, as Master
Servicer pursuant to a certain Pooling and Servicing Agreement by and among SSMC
Funding Corp., as Depositor, Self Storage Mortgage Corporation, as Originator,
Midland Loan Services, L.P., as Master Servicer, Self Storage Service Corp., as
Subservicer, and LaSalle National Bank, as Trustee dated as of December 17,
1996.
D. Borrower, Existing GP, Apple Hospitality Two, Inc. ("AHT") and AHT Res
Acquisition, L.P. ("Merger Sub") have entered into an Agreement and Plan of
Merger dated as of November 28, 2001 pursuant to which Merger Sub has merged
with and into Borrower (with Borrower being the surviving entity), and Borrower
has become a wholly owned indirect subsidiary of AHT (said merger being
hereinafter referred to as the "Merger").
E. In connection with the Merger, Borrower desires to, among other things,
enter into a master lease agreement (the "Lease Agreement") with Lessee for each
of the Hotels, assign to Lessee all of Borrower's right, title and interest
under the Management Agreement dated March 28, 1988 between
Borrower and Residence Inn by Marriott, Inc. ("Manager") (the "Management
Agreement") and, in connection therewith, Lessee desires to amend and restate
the Management Agreement in its entirety pursuant to an Amendment and
Restatement of Management Agreement by and between Lessee and Manager (the
"Restated Management Agreement").
F. Borrower has requested that Lender consent to, among other things, the
Merger, the Lease Agreement, the assignment of the Management Agreement to
Lessee and the amendment and restatement of the Management Agreement pursuant to
the Restated Management Agreement, and Lender has agreed to consent to such
matters subject to and in accordance with the terms and conditions set forth in
this Agreement including, without limitation, the execution and delivery of the
"Additional Documents" (as hereinafter defined).
AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree as follows:
1. CONSENT TO MERGER. Subject to satisfaction of all of the conditions and
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covenants contained herein, Lender consents to (a) the Merger, including the
change in the general partner of Borrower to New GP and the change in the
limited partner of Borrower to AHT Res I LP, Inc., a Virginia corporation,
resulting therefrom (b) the new partnership agreement of Borrower, (c) the
organizational documents of New GP, (d) the change in the principal place of
business of Borrower to Richmond, Virginia, (e) the Lease Agreement, (f) the
assignment to, and assumption by, Lessee of the obligations and liabilities of
Borrower under the Management Agreement, (g) the amendment and restatement of
the Management Agreement pursuant to the Restated Management Agreement, and (h)
the modification of the Subordinate Loan Documents (as defined in the Loan
Agreement) pursuant to certain agreements, a schedule of which are attached
hereto as Exhibit "F" and made a part hereof (collectively, the "Subordinate
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Loan Additional Documents"). This consent is strictly limited to the Merger and
the other transactions described in the immediately preceding sentence all
occurring in connection with, or as a result of, the Merger. This Agreement
shall not constitute a waiver or modification of any requirement of obtaining
Lender's consent to any future merger involving Borrower, any future transfer of
interests in Borrower, in the Property, the Hotels or any portion thereof or
interest therein, or future change to, or assignment of, the property management
agreement for the Hotels, nor shall it constitute a modification of the terms,
provisions, or requirements in the Loan Documents in any respect except as
expressly provided herein or in the documents and instruments being executed and
delivered by Borrower, New GP, Lessee, Manager and Lender in connection
herewith, certain of which documents and instruments are referenced in Section 3
hereof (such documents and instruments, collectively, the "Additional
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Documents"). Borrower specifically acknowledges that any subsequent merger
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involving Borrower, any future transfer of any interest in any of the Property,
the Hotels or interest in Borrower or any subsequent change to, or assignment
of, the property management agreement for the Hotels in violation of the Loan
Documents shall be a default thereunder. The Loan Documents are hereby ratified
and, except as expressly modified in this Agreement and the Additional
Documents, as applicable, remain unmodified and are in full force and effect.
2. LOAN INFORMATION. The Borrower, New GP and Lender agree that as of the
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date hereof:
(a) The aggregate outstanding principal balance of the Notes is
$70,868,402.72.
(b) The interest rate under each of the Notes is a fixed rate of
8.60% per annum accruing pursuant to the terms of the Notes.
(c) The maturity date of each of the Notes is September 30, 2002,
pursuant to the terms of the Loan Documents.
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(d) As of the date hereof, the following listed payments are due and
payable on the first day of each calendar month, subject to the
terms of the Loan Documents:
(i) $874,162.75 principal and interest installments;
(ii) $0 tax escrow deposits;
(iii) $0 insurance escrow deposits; and
(iv) $0 replacement reserve deposits.
(e) The current balance of each escrow account held by Lender with
respect to the Loan is:
(i) $0 tax escrow account;
(ii) $0 insurance escrow account; and
(iii) $0 replacement reserve account.
(f) All required payments due through March 1, 2002 under the Loan
Documents have been paid.
(g) There are no defenses or claims of setoffs with respect to any
sums or amounts owing under the Loan Documents.
(h) Lender is the current owner and holder of the Loan Documents.
3. CONDITIONS. In addition to any other conditions set forth herein or
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required by Lender, the following are the conditions precedent (such conditions
precedent and such other conditions set forth herein or required by Lender are
hereinafter referred to collectively as the "Closing Conditions") that must be
satisfied prior to the release of Lender's signature counterparts to this
Agreement and the Additional Documents to which Lender is a party, as more
particularly provided, below (the "Closing"):
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(a) Receipt by Lender of four original counterparts to this Agreement
executed by all of the parties hereto, properly witnessed,
acknowledged and notarized.
(b) Receipt by Lender of four (4) original counterparts of that
certain Loan Modification Agreement in form and substance
satisfactory to Lender executed by Borrower, New GP, Lessee and
Lender.
(c) Receipt by Lender of four (4) original counterparts of that
certain First Amendment to Four Party Agreement in form and
substance satisfactory to Lender executed by Borrower, Lender,
LaSalle Bank National Association, as Indenture Trustee for the
benefit of the holders of iStar Asset Receivables Trust
Collateralized Mortgage Bonds Series 2000-1 ("Subordinate
Lender"), Manager and Lessee.
(d) Receipt by Lender of two (2) original counterparts to that
certain Manager Estoppel, Ratification and Modification Agreement
in form and substance satisfactory to Lender executed by Manager
and Lender.
(e) Receipt by Lender of four (4) original counterparts of that
certain Lessee Estoppel, Subordination and Agreement in form and
substance satisfactory to Lender executed by Lender, Borrower and
Lessee.
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(f) Receipt by Lender of fifteen (15) Assignment of Rents and
Revenues relating to each of the Hotels in form and substance
satisfactory to Lender executed by Lessee.
(g) Receipt by Lender of a Security Agreement relating to the Hotels
in form and substance satisfactory to Lender executed by Lessee.
(h) Receipt by Lender of an Environmental Indemnity Agreement in form
and substance satisfactory to Lender executed by New GP.
(i) Receipt by Lender of an executed copy of the Restated Management
Agreement.
(j) Receipt by Lender of an original legal opinion of counsel to
Existing GP, in form and substance satisfactory to Lender.
(k) Receipt by Lender of an original legal opinion of Jenkens &
Xxxxxxxxx, in form and substance satisfactory to Lender.
(l) Receipt by Lender of original legal opinions of Jenkens &
Xxxxxxxxx, LLP (CA) and Xxxx, Stettinius & Hollister LLP (OH) in
form and substance satisfactory to Lender.
(m) Receipt by Lender of a nondisqualification opinion of ,
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in form and substance satisfactory to Lender.
(n) Receipt by Lender of evidence reasonably satisfactory to Lender
of the consummation of the Merger.
(o) Receipt by Lender of (i) evidence reasonably satisfactory to
Lender that Subordinate Lender has consented to the Merger and
the transactions related thereto described in Section 1, above,
and (ii) copies of the fully executed Subordinate Loan Additional
Documents.
(p) Receipt by PNC Bank N.A. of a federal wire to the attention of
Midland Loan Services, Inc. in the amount set forth in Section 4.
Upon confirmation by Lender that the Closing Conditions, have been
satisfied, Lender shall deliver via courier to Xxxx Xxxx, Xxxxx & Xxxxxxx
L.L.P., Columbia Square, 000 Xxxxxxxxxx Xxxxxx, XX, Xxxxxxxxxx, XX 00000-0000
one fully executed counterpart original of this Agreement and deliver via
courier to Xxxxxx X. Xxxxx, Jenkens & Xxxxxxxxx, 0000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000 one fully executed counterpart original of this Agreement
and the documents set forth in (b), (c), (e) and (g) above and deliver to
Manager at 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 one fully executed
counterpart of the documents set forth in (c) and (d), above. The release of
Lender's signature counterpart to this Agreement as described in the foregoing
sentence shall evidence that all of the Closing Conditions have been satisfied.
Upon satisfaction of the foregoing Closing Conditions as evidenced by the
release of Lender's signature page to this Agreement, but not otherwise,
Lender's consent provided in Section 1 of this Agreement shall become effective.
4. FEES, PAYMENT AND EXPENSES. Borrower covenants and agrees to pay on or
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prior to Closing an amount equal to $ via federal wire transfer of
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immediately available federal funds to PNC Bank N.A. to the attention of Midland
Loan Services, Inc. which amount consists of (a) $ , which represents a
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fee in the amount of $108,000.00 for Lender's consent to the Merger and the
related transactions [less the amount of $ received by Lender on
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account thereof prior to the date hereof,] and (b) $ , which represents
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Lender's attorneys' fees incurred in connection with the Merger, and (c)
$ , which represents [third party report fees and ]
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incurred by Lender in connection with the Merger. [Amount to include
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local counsel and nondisqualification opinion costs.] Lender's wire transfer
instructions are as set forth in Exhibit "C" attached hereto.
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5. BORROWER'S RATIFICATION OF LOAN OBLIGATIONS. Borrower hereby expressly
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ratifies and confirms its obligation to pay the unpaid balance due and owing on
the Loan, all interest thereon as provided in the Notes and all other
obligations under the Loan Documents and the Additional Documents to which it is
a party. Without limiting the generality of the foregoing, Borrower expressly
covenants and agrees to pay all loan installments as they become due and to
observe all its obligations of the Loan Documents and the Additional Documents
to which it is a party. Borrower's acknowledgment and ratification of the
foregoing obligations (a) is absolute, unconditional and is not subject to any
defenses, waivers, claims or offsets, and (b) shall not be affected or impaired
by any agreement, condition, statement or representation of any person or
entity.
Borrower, Existing GP and New GP, by their execution of this Agreement,
severally agree to reimburse, defend, indemnify and hold Lender, its officers,
agents, loan servicers and employees harmless from and against any and all
liabilities, claims, damages, penalties, expenditures, losses or charges
(including, but not limited to, all legal fees and court costs), which may now
or in the future be undertaken, suffered, paid, awarded, assessed or otherwise
incurred as a result of or arising out of any fraudulent or tortious conduct of
such party in connection with this Agreement or the Property, including the
intentional misrepresentation of financial data presented to Lender. The terms
of the previous sentence are recourse obligations of Borrower, Existing GP and
New GP and shall not be restricted by any limitation on personal liability set
forth in the Loan Documents or the Additional Documents.
6. NO REPRESENTATIONS OF LENDER. The parties hereto agree that (a) Lender
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has made no representations or warranty, either express or implied regarding the
Property and has no responsibility whatsoever with respect to the Property, its
condition, or its use, occupancy or status, and (b) no claims relating to the
Property, its condition, or its use, occupancy or status, will be asserted
against Lender or its agents, employees, professional consultants, affiliated
entities, successors or assigns, either affirmatively or as a defense.
7. BORROWER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower hereby
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represents, warrants, and covenants to Lender that:
(a) Borrower is the owner of the Property and is duly authorized to
execute, deliver and perform this Agreement.
(b) Any court or third-party approvals necessary for Borrower to
consummate the Merger and/or enter into this Agreement have been
obtained.
(c) The entities and/or persons executing this Agreement and the
Additional Documents to which it is a party on behalf of Borrower
are duly authorized to execute and deliver this Agreement.
(d) This Agreement, the Additional Documents to which it is a party
and the Loan Documents are in full force and effect and the
transactions contemplated herein and therein constitute valid and
binding obligations of Borrower, enforceable against Borrower in
accordance with their terms and have not been modified either
orally or in writing except as expressly set forth in the
Additional Documents, as applicable.
(e) There is no existing "Event of Default" (as defined in the Loan
Documents) or event or condition that, with the giving of notice
or passage of time or both, would constitute an Event of Default.
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(f) All taxes and assessments applicable to the Property that are due
and payable as of the Closing have been paid.
(g) Intentionally omitted.
(h) There is no bankruptcy, receivership or insolvency proceeding
pending or, to the best of Borrower's knowledge, threatened
against Borrower.
(i) Borrower does not have any intention to do any of the following
prior to the Closing or within the 180 days following the
Closing: (i) seek entry of any order for relief as debtor in a
proceeding under the Code (as hereinafter defined), (ii) seek
consent to or not contest the appointment of a receiver or
trustee for itself or for all or any part of its property, (iii)
file a petition seeking relief under any bankruptcy, arrangement,
reorganization or other debtor relief laws, or (iv) make a
general assignment for the benefit of its creditors.
(j) All of the insurance coverage required pursuant to the terms of
the Loan Documents is in full force and effect, with all required
premiums paid.
(k) All representations and warranties contained herein shall be true
as of the date of this Agreement and shall survive the Closing.
(l) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(m) The ownership of Borrower, as of the date hereof, after giving
effect to the Merger, is accurately described in each and every
respect on Exhibit "E" attached hereto and by this reference made
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a part hereof.
(n) (i) Borrower is not an "employee benefit plan" as defined in
Section 3(3) of ERISA, which is subject to Title I of ERISA, or a
"governmental plan" within the meaning of Section 3(32) of ERISA;
(ii) Borrower is not subject to state statutes regulating
investments and fiduciary obligations with respect to
governmental plans; and (iii) one or more of the following
circumstances is true of Borrower:
(x) Equity interests in Borrower are publicly offered
securities, within the meaning of 29
C.F.Rss.2510.3-101(b)(2);
(y) Less than twenty-five percent (25%) of each outstanding
class of equity interests in Borrower are held by "benefit
plan investors" within the meaning of 29
C.F.R.ss.2510.3-101(f)(2); or
(z) Borrower qualifies as an "operating company" or a "real
estate operating company" within the meaning of 29 C.F.R.
Section 2510.3-101(c) or (e) or an investment company
registered under The Investment Company Act of 1940.
(o) The April 1, 2002 payments due under the Loan Documents shall be
paid in accordance with the provisions of the Loan Documents, and
the consummation of the Merger and the other transactions
consented to herein will not alter the course of said payments.
(p) Borrower has delivered to Lender true, correct and complete
copies of all Subordinate Loan Additional Documents.
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Lender is entitled to rely, and has relied, upon these representations,
warranties and covenants in the execution and delivery of this Agreement and all
other documents and instruments executed and delivered by Lender in connection
with this Agreement.
8. NEW GP'S REPRESENTATIONS, WARRANTIES AND COVENANTS. New GP hereby
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represents, warrants, and covenants to Lender that:
(a) New GP is duly authorized to execute, deliver and perform this
Agreement and the Additional Documents to which it is a party.
(b) Any court or third-party approvals necessary for New GP to enter
into this Agreement and the Additional Documents to which it is a
party have been obtained.
(c) The entities and/or persons executing this Agreement and the
Additional Documents to which it is a party on behalf of New GP
are duly authorized to execute and deliver this Agreement.
(d) This Agreement, the Additional Documents to which it is a party
and the Loan Documents are in full force and effect and the
transactions contemplated herein and therein constitute valid and
binding obligations of New GP, as applicable, enforceable against
New GP, as applicable, in accordance with their terms and have
not been modified either orally or in writing, except as
expressly set forth in the Additional Documents, as applicable.
(e) There is no existing Event of Default or event or condition that,
with the giving of notice or passage of time or both, would
constitute an Event of Default.
(f) There is no bankruptcy, receivership or insolvency proceeding
pending or threatened against New GP.
(g) New GP does not have any intention to do any of the following
prior to the Closing or within the 180 days following the
Closing: (i) seek entry of any order for relief as debtor in a
proceeding under the Code, (ii) seek consent to or not contest
the appointment of a receiver or trustee for itself or for all or
any part of its property, (iii) file a petition seeking relief
under any bankruptcy, arrangement, reorganization or other debtor
relief laws, or (iv) make a general assignment for the benefit of
their creditors.
(h) All representations and warranties contained herein shall be true
as of the date of this Agreement and shall survive the Closing.
(i) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(j) The ownership of New GP, as of the date hereof, after giving
effect to the Merger, is accurately described in each and every
respect on Exhibit "E" attached hereto and by this reference made
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a part hereof.
Lender is entitled to rely, and has relied, upon these representations,
warranties and covenants in the execution and delivery of this Agreement and all
other documents and instruments executed and delivered by Lender in connection
with this Agreement.
9. LESSEE'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Lessee hereby
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represents, warrants, and covenants to Lender that:
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(a) Lessee is duly authorized to execute, deliver and perform this
Agreement and the Additional Documents to which it is a party.
(b) Any court or third-party approvals necessary for Lessee to enter
into this Agreement and the Additional Documents to which it is a
party have been obtained.
(c) The entities and/or persons executing this Agreement and the
Additional Documents to which it is a party on behalf of Lessee
are duly authorized to execute and deliver this Agreement.
(d) This Agreement, the Additional Documents to which it is a party
and the Loan Documents are in full force and effect and the
transactions contemplated herein and therein constitute valid and
binding obligations of Lessee, as applicable, enforceable against
Lessee, as applicable, in accordance with their terms and have
not been modified either orally or in writing, except as
expressly set forth in the Additional Documents, as applicable.
(e) There is no existing Event of Default or event or condition that,
with the giving of notice or passage of time or both, would
constitute an Event of Default.
(f) There is no bankruptcy, receivership or insolvency proceeding
pending or threatened against Lessee.
(g) Lessee does not have any intention to do any of the following
prior to the Closing or within the 180 days following the
Closing: (i) seek entry of any order for relief as debtor in a
proceeding under the Code, (ii) seek consent to or not contest
the appointment of a receiver or trustee for itself or for all or
any part of its property, (iii) file a petition seeking relief
under any bankruptcy, arrangement, reorganization or other debtor
relief laws, or (iv) make a general assignment for the benefit of
their creditors.
(h) All representations and warranties contained herein shall be true
as of the date of this Agreement and shall survive the Closing.
(i) Lender has not waived any requirements of the Loan Documents nor
any of Lender's rights thereunder.
(j) The ownership of Lessee, as of the date hereof, after giving
effect to the Merger, is accurately described in each and every
respect on Exhibit "E" attached hereto and by this reference made
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a part hereof.
Lender is entitled to rely, and has relied, upon these representations,
warranties and covenants in the execution and delivery of this Agreement and all
other documents and instruments executed and delivered by Lender in connection
with this Agreement.
10. EXISTING GP'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Existing GP
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hereby represents, warrants, and covenants to Lender that:
(a) Existing GP is duly authorized to execute, deliver and perform
this Agreement.
(b) Any court or third-party approvals necessary for Existing GP to
enter into this Agreement have been obtained.
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(c) The entities and/or persons executing this Agreement on behalf of
Existing GP are duly authorized to execute and deliver this
Agreement.
(d) This Agreement is in full force and effect and the transactions
contemplated herein constitute valid and binding obligations of
Existing GP enforceable against Existing GP in accordance with
its terms and this Agreement has not been modified either orally
or in writing.
(e) Immediately prior to the consummation of the Merger (a) the Loan
Documents were in full force and effect and constituted the valid
and binding obligations of Borrower and Existing GP, as
applicable, enforceable against Borrower and Existing GP, as
applicable in accordance with their terms and (b) there was no
existing Event of Default or event or condition that, with the
giving of notice or passage of time or both, would constitute an
Event of Default. To Existing GP's knowledge, the Loan Documents
continue to be in full force and effect and constitute the valid
and binding obligations of Borrower, enforceable against Borrower
in accordance with their terms.
(f) There is no bankruptcy, receivership or insolvency proceeding
pending or, to the best of Existing GP's knowledge, threatened
against Existing GP.
(g) Existing GP does not have any intention to do any of the
following prior to the Closing or within the 180 days following
the Closing: (i) seek entry of any order for relief as debtor in
a proceeding under the Code, (ii) seek consent to or not contest
the appointment of a receiver or trustee for itself or for all or
any part of its property, (iii) file a petition seeking relief
under any bankruptcy, arrangement, reorganization or other debtor
relief laws, or (iv) make a general assignment for the benefit of
their creditors.
(h) All representations and warranties of Existing GP contained
herein shall be true as of the date of this Agreement and shall
survive the Closing.
(i) To the best of Existing GP's knowledge, Lender has not waived any
requirements of the Loan Documents nor any of Lender's rights
thereunder.
Lender is entitled to rely, and has relied, upon these representations,
warranties and covenants in the execution and delivery of this Agreement and all
other documents and instruments executed and delivered by Lender in connection
with this Agreement.
11. RATIFICATION BY EXISTING GP. Existing GP hereby acknowledges, covenants
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and agrees that nothing contained in this Agreement, or otherwise, shall be
deemed or construed to release Existing GP from any liability or other
obligations under the Loan Documents accruing or arising prior to the date of
Closing including, without limitation, Existing GP's liabilities and obligations
under the terms of the Environmental Indemnity Agreement executed by Existing GP
(any and all such obligations accruing or arising prior to the date of Closing
shall be herein referred to as the "Existing GP Obligations"). Existing GP
hereby expressly ratifies and confirms the Existing GP Obligations. Existing
GP's acknowledgment and ratification of the foregoing Existing GP Obligations
(a) is absolute, unconditional and is not subject to any defenses, waivers,
claims or offsets, and (b) shall not be affected or impaired by any agreement,
condition, statement or representation of any person or entity.
12. RELEASE OF LENDER. Borrower, for itself and for its agents, employees,
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representatives, officers, directors, general partners, limited partners,
members, joint shareholders, beneficiaries, trustees, administrators,
subsidiaries, affiliates, servants and attorneys, and Existing GP, for itself
and for its agents, employees, representatives, officers, directors, members,
partners, joint shareholders, beneficiaries, trustees, administrators,
subsidiaries, affiliates, servants and attorneys
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(collectively, the "Borrower Releasing Parties") jointly and severally release
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and forever discharge Lender and Midland Loan Services, Inc., and their
respective successors, assigns, partners, directors, officers, employees,
agents, attorneys, administrators, trustees, subsidiaries, affiliates,
beneficiaries, shareholders and representatives (collectively, the "Released
Parties") from all liabilities, obligations, costs, expenses, claims and
damages, at law or in equity, known or unknown, of any kind or nature whatsoever
with respect to the Loan, the Loan Documents, the administration or funding of
the Loan, the transactions contemplated hereby or with respect to any acts or
omissions of any of the Released Parties. The Borrower Releasing Parties agree
that this release is a full, final and complete release and that it may be
pleaded as an absolute bar to any or all suit or suits pending or which may
thereafter be filed or prosecuted by any of the Borrower Releasing Parties, or
anyone claiming by, through or under any of the Borrower Releasing Parties. The
Borrower Releasing Parties agree that this release is binding upon Borrower and
Existing GP and intended to be binding on each of the Borrower Releasing Parties
and their respective agents, employees, representatives, officers, directors,
general partners, limited partners, members, joint shareholders, beneficiaries,
trustees, administrators, subsidiaries, affiliates, employees, servants and
attorneys.
13. REFERENCES IN THE LOAN DOCUMENTS. Borrower, New GP and Lender hereby
--------------------------------
acknowledge and agree that the terms "Beneficiary", "Lender" and "Assignee"
contained in the Loan Documents shall be deemed to refer to Lender and its
successors and/or assigns. Borrower, New GP and Lender further acknowledge and
agree that from and after the date hereof, this Agreement and the Additional
Documents shall be deemed and construed to be "Loan Documents" under the Loan
Documents for all purposes.
14. RATIFICATION AND CONFIRMATION OF THE LOAN. Each of Borrower, New GP and
-----------------------------------------
Lessee agrees to perform each and every obligation under the Loan Documents, as
specifically modified by this Agreement and the Additional Documents, and under
the Additional Documents to which it is a party, in accordance with their
respective terms and conditions. Each of Borrower, New GP and Lessee ratify,
affirm, reaffirm, acknowledge, confirm and agree that the Loan Documents, as
specifically modified by this Agreement and the Additional Documents, remain in
full force and effect and, together with any Additional Documents, represent
legal, valid and binding obligations of each of Borrower, New GP and Lessee, as
applicable, enforceable against Borrower, New GP and Lessee, as applicable, in
accordance with their terms. Each of Borrower, New GP and Lessee acknowledge and
agree that, as of the date hereof, they have no defenses to their respective
obligations under the Loan Documents and the Additional Documents, any and all
such defenses being hereby irrevocably waived, released and relinquished.
Borrower, New GP and Lessee agree that this Agreement does not diminish, impair,
release or relinquish the liens, powers, titles, security interests and rights
securing or guaranteeing payment of the Loan, including the validity or first
priority of the liens and security interests encumbering the Property granted
Lender by the Loan Documents and the Additional Documents.
15. NONWAIVER. The parties hereto acknowledge and agree that (a) any
---------
performance or non-performance of the Loan Documents prior to the date of this
Agreement does not affect or diminish Lender's ability to require future
compliance with the Loan Documents, and (b) in the future, Lender will require
strict compliance with and performance of the Loan Documents. Nothing contained
herein shall be construed as a waiver of any of Lender's rights or remedies with
respect to any default under this Agreement, any Additional Documents or any
Loan Document. Without waiving any such default which may exist as of the date
hereof, Lender advises Borrower that, to Lender's actual knowledge, no monetary
default under the Loan Documents has occurred and is continuing as of the date
hereof.
16. BANKRUPTCY OF BORROWER, NEW GP AND LESSEE. Borrower covenants and
-----------------------------------------
agrees that in the event Borrower shall (i) file any petition with any
bankruptcy court or be the subject of any petition under the United States
Bankruptcy Code (11 U.S.C. Section 101 et seq., the "Code"), (ii) file or be the
------ ----
subject of any petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or other
relief for debtors, (iii) have sought or consented to or acquiesced in the
appointment of any trustee, receiver, conservator, or liquidator, or (iv) be the
subject of any order, judgment, or decree entered by any court of competent
jurisdiction approving a petition filed against such
10
party for any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future federal
or state act or law relating to bankruptcy, insolvency, or relief for debtors,
Lender shall thereupon be entitled, and Borrower irrevocably consents, to the
entry of an order by a bankruptcy court granting to Lender relief from any
automatic stay imposed by Section 362 of the Code, or otherwise, on or against
the exercise of the rights and remedies otherwise available to Lender as
provided in the Loan Documents, this Agreement, the Additional Documents or as
otherwise provided by law or in equity, and Borrower irrevocably waives its
right to object to, attempt to enjoin or otherwise interfere with such relief
and the exercise and enforcement by Lender of its rights and remedies following
entry of such order. Without limiting the generality of the immediately
preceding sentence, Borrower agrees that Lender will be entitled to and it
consents to immediate relief from the automatic stay imposed by the Code to
allow Lender to take any and all actions necessary, desirable or appropriate to
enforce any rights Lender may have under the Loan Documents or the Additional
Documents, including, but not limited to, the right to possession of the
Property, collection of rents, and/or the commencement or continuation of an
action to foreclose Lender's liens and security interests. Borrower further
agrees that the filing of any petition for relief under the Code which
postpones, prevents, delays or otherwise hinders Lender's efforts to collect the
amounts due under the Note or to liquidate any of the collateral therefor shall
be deemed to have been filed in bad faith and, therefore, shall be subject to
prompt dismissal or conversion to a liquidation case under the Code upon motion
therefor by Lender. Further, Borrower agrees that it will not seek, apply for or
cause the entry of any order enjoining, staying, or otherwise prohibiting or
interfering with Lender's obtaining an order granting relief from the automatic
stay and enforcement of any rights which Lender may have under the Loan
Documents or the Additional Documents, including, but not limited to, Lender's
right to possession of the Property, collection of rents and/or the commencement
or continuation of an action to foreclose Lender's liens and security interests
under the Loan Documents and/or the Additional Documents.
New GP covenants and agrees that in the event New GP shall (i) file any
petition with any bankruptcy court or be the subject of any petition under the
Code, (ii) file or be the subject of any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, insolvency, or other relief for debtors, (iii) have sought or
consented to or acquiesced in the appointment of any trustee, receiver,
conservator, or liquidator, or (iv) be the subject of any order, judgment, or
decree entered by any court of competent jurisdiction approving a petition filed
against such party for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or relief
for debtors, Lender shall thereupon be entitled, and New GP irrevocably
consents, to the entry of an order by a bankruptcy court granting to Lender
relief from any automatic stay imposed by Section 362 of the Code, or otherwise,
on or against the exercise of the rights and remedies otherwise available to
Lender as provided in the Loan Documents, this Agreement, the Additional
Documents or as otherwise provided by law or in equity, and New GP irrevocably
waives its right to object to, attempt to enjoin or otherwise interfere with
such relief and the exercise and enforcement by Lender of its rights and
remedies following entry of such order. Without limiting the generality of the
immediately preceding sentence, New GP agrees that Lender will be entitled to
and it hereby consents to immediate relief from the automatic stay imposed by
the Code to allow Lender to take any and all actions necessary, desirable or
appropriate to enforce any rights Lender may have under the Loan Documents or
the Additional Documents, including, but not limited to, the right to possession
of the Property, collection of rents, and/or the commencement or continuation of
an action to foreclose Lender's liens and security interests. New GP further
agrees that the filing of any petition for relief under the Code which
postpones, prevents, delays or otherwise hinders Lender's efforts to collect the
amounts due under the Note or to liquidate any of the collateral therefor shall
be deemed to have been filed in bad faith and, therefore, shall be subject to
prompt dismissal or conversion to a liquidation case under the Code upon motion
therefor by Lender. Further, New GP agrees that it will not seek, apply for or
cause the entry of any order enjoining, staying, or otherwise prohibiting or
interfering with Lender's obtaining an order granting relief from the automatic
stay and enforcement of any rights which Lender may have under the Loan
Documents or the Additional Documents, including, but not limited to, Lender's
right to possession of the Property, collection of rents and/or the commencement
or continuation of an action to foreclose Lender's liens and security interests
under the Loan Documents or the Additional Documents.
11
Lessee covenants and agrees that in the event Lessee shall (i) file any
petition with any bankruptcy court or be the subject of any petition under the
Code, (ii) file or be the subject of any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
bankruptcy, insolvency, or other relief for debtors, (iii) have sought or
consented to or acquiesced in the appointment of any trustee, receiver,
conservator, or liquidator, or (iv) be the subject of any order, judgment, or
decree entered by any court of competent jurisdiction approving a petition filed
against such party for any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present or
future federal or state act or law relating to bankruptcy, insolvency, or relief
for debtors, Lender shall thereupon be entitled, and Lessee irrevocably
consents, to the entry of an order by a bankruptcy court granting to Lender
relief from any automatic stay imposed by Section 362 of the Code, or otherwise,
on or against the exercise of the rights and remedies otherwise available to
Lender as provided in the Loan Documents, this Agreement, the Additional
Documents or as otherwise provided by law or in equity, and Lessee irrevocably
waives its right to object to, attempt to enjoin or otherwise interfere with
such relief and the exercise and enforcement by Lender of its rights and
remedies following entry of such order. Without limiting the generality of the
immediately preceding sentence, Lessee agrees that Lender will be entitled to
and it hereby consents to immediate relief from the automatic stay imposed by
the Code to allow Lender to take any and all actions necessary, desirable or
appropriate to enforce any rights Lender may have under the Loan Documents or
the Additional Documents, including, but not limited to, the right to possession
of the Property, collection of rents, and/or the commencement or continuation of
an action to foreclose Lender's liens and security interests. Lessee further
agrees that the filing of any petition for relief under the Code which
postpones, prevents, delays or otherwise hinders Lender's efforts to collect the
amounts due under the Note or to liquidate any of the collateral therefor shall
be deemed to have been filed in bad faith and, therefore, shall be subject to
prompt dismissal or conversion to a liquidation case under the Code upon motion
therefor by Lender. Further, Lessee agrees that it will not seek, apply for or
cause the entry of any order enjoining, staying, or otherwise prohibiting or
interfering with Lender's obtaining an order granting relief from the automatic
stay and enforcement of any rights which Lender may have under the Loan
Documents or the Additional Documents, including, but not limited to, Lender's
right to possession of the Property, collection of rents and/or the commencement
or continuation of an action to foreclose Lender's liens and security interests
under the Loan Documents and/or the Additional Documents.
17. COMPLIANCE WITH INTEREST LAW. It is the intention of the parties hereto
----------------------------
to conform strictly to any present or future law which has application to the
interest and other charges under the Loan Documents (the "Interest Law").
------------
Accordingly, notwithstanding anything to the contrary in the Loan Documents, the
parties hereto agree that the aggregate amount of all interest or other charges
taken, reserved, contracted for, charged or received under the Loan Documents or
otherwise in connection with the Loan shall under no circumstances exceed the
maximum amount of interest allowed by the Interest Law. If any excess interest
is provided for in the Loan Documents, then any such excess shall be deemed a
mistake and canceled automatically and, if theretofore paid, shall be credited
against the indebtedness evidenced and secured by the Loan Document (the
"Indebtedness") (or if the Indebtedness shall have been paid in full, refunded
------------
by Lender), and the effective rate of interest under the Loan Documents shall be
automatically reduced to the maximum effective contract rate of interest that
Lender may from time to time legally charge under the then applicable Interest
Law with respect to the Loan. To the extent permitted by the applicable Interest
Law, all sums paid or agreed to be paid to Lender for the use, forbearance or
detention of the Indebtedness shall be amortized, prorated, allocated and spread
throughout the full term of the Loan.
18. FURTHER ASSURANCES AND POST CLOSING OBLIGATIONS. The parties hereto
-----------------------------------------------
agree to do any act or execute any additional documents required by Lender, from
time to time, to effectuate the purposes of this Agreement or to better assure,
convey, assign, transfer, perfect or confirm unto Lender the property and rights
intended to be given it in the Loan Documents and the Additional Documents. In
furtherance of and without limiting or diminishing anything in the foregoing,
Borrower and New GP covenant and agree that Borrower shall deliver to Lender on
or before April 29, 2002 evidence in form and substance reasonably satisfactory
to Lender (a) that New GP is qualified to do business in California, Colorado,
Georgia, Illinois, Michigan, Missouri and Ohio, (b)
12
that Lessee is qualified to do business in Illinois and Ohio, (c) that AHM Res I
GP, Inc. (the general partner of lessee) is qualified to do business in Illinois
and Ohio, and (d) that appropriate required documentation has been filed in
Delaware, California, Colorado, Georgia, Illinois, Michigan, Missouri and Ohio
evidencing that New GP is the new general partner of Borrower (collectively, the
"Post Closing Items"). Borrower and New GP acknowledge that following Lender's
receipt and review of each of the Post Closing Items, Lender may reasonably
require the delivery of additional documentation, information or revisions to
the Loan Documents to address matters raised thereby and Borrower and New GP
acknowledge and agree that the requirements of this paragraph shall not be
deemed satisfied until all of the Post Closing Items, and all of such additional
documentation, information or other matters or Loan Document revisions as Lender
may require following receipt thereof, are delivered to Lender and approved by
Lender. Borrower and New GP further acknowledge and agree that the failure to
comply with the terms of this paragraph on or before April 29, 2002 shall
constitute an Event of Default under the Loan Agreement and the other Loan
Documents and, in such event, at its option, Lender (or Midland Loan Services,
Inc., its servicer) shall have the option of causing the Loan to immediately
become a specially serviced loan (or loan requiring special servicing or similar
concept) under the Pooling and Servicing Agreement referenced in recital
paragraph C above. Further, Borrower and New GP acknowledge and agree that
Borrower shall remain responsible for all costs and expenses incurred by Lender
in connection with the satisfaction of the Post Closing Items.
19. LIABILITY. If any party hereto consists of more than one person, the
---------
obligations and liabilities of each such person hereunder shall be joint and
several. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns forever.
20. SEVERABILITY. If any term, covenant or condition of this Agreement is
------------
held to be invalid, illegal or unenforceable in any respect, this Agreement
shall be construed without such term, covenant or condition and the validity or
enforceability of the remaining terms, covenants or conditions shall not in any
way be affected.
21. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed and
----------------------------
construed in accordance with the laws of the State of New York (other than those
conflicts of laws provisions that would defer to the substantive laws of another
jurisdiction). Without in any way limiting the preceding choice of law, the
parties elect to be governed by New York law in accordance with, and are relying
(at least in part) on, Section 5-1401 of the General Obligations Law of the
State of New York. The parties hereto submit to personal jurisdiction in the
state courts located in said state and the federal courts of the United States
of America located in said state for the enforcement of any obligations
hereunder and waive any and all personal rights under the law of any other state
to object to jurisdiction within such state for the purposes of any action,
suit, proceeding or litigation to enforce such obligations.
22. NO RESTRICTIONS ON PERFORMANCE. The execution and delivery of this
------------------------------
Agreement and compliance with the provisions hereof, will not conflict with, or
constitute a breach of or a default under any agreement or other instrument to
which any party hereto is a party or by which it is bound.
23. DEFINITIONS. Unless the context clearly indicates a contrary intent or
-----------
unless otherwise specifically provided herein, words used in this Agreement
(including pronouns) shall include the corresponding masculine, feminine or
neuter forms, and the singular form of such words shall include the plural and
vice versa. The words "included", "includes" and "including" shall each be
deemed to be followed by the phrase, "without limitation." The words "herein",
"hereby", "hereof", and "hereunder" shall each be deemed to refer to this entire
Agreement and not to any particular paragraph, article or section hereof. Not
withstanding the foregoing, if any law is amended so as to broaden the meaning
of any term defined in such law, such broader meaning shall apply subsequent to
the effective date of such amendment. Where a defined term derives its meaning
from a statutory reference, any regulatory definition is broader than the
statutory reference and any reference or citation to a statute or regulation
shall be deemed to include any amendments to that statue or regulation and
judicial and administrative interpretations of it.
13
24. SECURITIES ACT OF 1933. Neither Borrower nor any agent acting for
----------------------
Borrower has offered the Notes or any similar obligation for sale to or
solicited any offers to buy the Notes or any similar obligation from any person
or party other than Lender, and neither Borrower nor any agent acting for
Borrower will take any action which would subject the sale of the Notes to the
provisions of Section 5 of the Securities Act of 1933, as amended.
25. COMPLIANCE WITH ERISA. As of the date of this Agreement, neither
---------------------
Borrower nor New GP nor Lessee maintains any employee benefit plan which require
compliance with ERISA. If at any time Borrower, New GP or Lessee shall institute
any employee benefit plans, they shall at all times comply with the requirements
of ERISA.
26. SOLE DISCRETION OF LENDER. Wherever pursuant to this Agreement, Lender
-------------------------
exercises any right given to it to approve or disapprove, or any arrangement or
term is to be satisfactory to Lender, Lender's decision to approve or disapprove
or to decide that arrangements or terms are satisfactory or not satisfactory
shall be in the sole and absolute discretion of Lender and shall be final and
conclusive, except as may be otherwise expressly and specifically provided
herein.
27. HEADINGS, ETC. The headings and captions of various paragraphs of this
-------------
Agreement are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
28. COUNTERPARTS. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same Agreement.
29. INTEGRATION, SURVIVAL. This Agreement, the Additional Documents, and
---------------------
the Loan Documents embody the entire agreement by and between the parties hereto
with respect to the Loan, and any and all prior correspondence, including,
without limitation, that certain letter from Midland Loan Services, Inc. to
Existing GP and AHT, dated March 6, 2002, discussions or negotiations are deemed
merged therein. Except as otherwise specifically provided herein, all
obligations of any party contained in this Agreement, the New Loan Documents or
the Loan Documents shall survive the Closing, and Lender hereby preserves all of
its rights against all persons or entities and all collateral securing the Loan,
including, without limitation, the Property.
30. NO ORAL CHANGE. This Agreement, and any provisions hereof, may not be
--------------
modified, amended, waived, extended, changed, discharged or terminated orally or
by any act or failure to act on the part of any party hereto, but only by an
agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
31. NOTICES. Except as otherwise specified herein, any notice, consent,
-------
request or other communication required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered in accordance with the
notice requirements contained in the Loan Agreement using the address for a
party hereto set forth at the top of the first page of this Agreement.
32. WAIVER OF JURY TRIAL. THE PARTIES HERETO KNOWINGLY, VOLUNTARILY AND
--------------------
INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON THE LOAN OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE ADDITIONAL DOCUMENTS, OR THE LOAN DOCUMENTS, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF
ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER'S CONSENT
TO THE MERGER.
[remainder of page intentionally left blank]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day, month and year
first above written.
BORROWER:
--------
MARRIOTT RESIDENCE INN LIMITED
PARTNERSHIP, a Delaware limited partnership
By: AHT Res I GP, Inc., a Virginia corporation,
its sole general partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: President
--------------------------------
(CORPORATE SEAL)
NEW GP:
------
AHT RES I GP, INC., a Virginia corporation
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Its: President
--------------------------------------
(CORPORATE SEAL)
LESSEE:
------
AHM RES I LIMITED PARTNERSHIP, a Virginia
limited partnership
By: AHM Res I GP, Inc., a Virginia corporation,
its sole general partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: President
--------------------------------
(CORPORATE SEAL)
[signatures continue on next page]
15
EXISTING GP:
-----------
RIBM ONE LLC, a Delaware limited liability
company
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Its: President & Manager
--------------------------------------
LENDER:
------
LASALLE BANK NATIONAL ASSOCIATION
F/K/A LASALLE NATIONAL BANK, AS
TRUSTEE FOR MORTGAGE PASS-THROUGH
CERTIFICATE SERIES 1996-2, BY AND
THROUGH MIDLAND LOAN SERVICES, INC.,
ITS MASTER SERVICER AND ATTORNEY-IN-
FACT
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
--------------------------------------
Its: Executive Vice President
--------------------------------------
16
ACKNOWLEDGMENT
--------------
STATE OF Virginia )
)
CITY OF Richmond )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxx X. Xxxxxx, personally known to
me to be the person named in and who signed the legal instrument to which this
acknowledgment is attached and which was produced to me in the State and County
aforesaid, on behalf of AHT Res I GP, Inc., a Virginia corporation, general
partner of Marriott Residence Inn Limited Partnership, a Delaware limited
partnership, the party named as Borrower in the aforementioned legal instrument,
and did depose and say to me that he/she is the President of AHT Res I GP, Inc.;
that he/she has signed and sealed the same in the name of and on behalf of such
corporation (acting as the general partner of Marriott Residence Inn Limited
Partnership) by the authority, order and resolution of its Board of Directors;
that he/she has signed his/her name thereto on behalf of said corporation, as
general partner of said limited partnership, by like order; that the execution
of said legal instrument was his/her free and voluntary act and deed and the
free and voluntary act and deed of said corporation and said limited partnership
for the consideration, purposes and uses set forth in such legal instrument to
the other parties thereto as such; and that on behalf of said limited
partnership, he/she has received a true copy of such legal instrument without
charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
[NOTARIAL SEAL] /s/ Xxxxx X. Xxxxxx
--------------------------------
Notary Public
Commission Expires: Dec 31, 2002
17
ACKNOWLEDGMENT
--------------
STATE OF Virginia )
)
CITY OF Richmond )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxx X Xxxxxx, personally known to
me to be the person named in and who signed the legal instrument to which this
acknowledgment is attached and which was produced to me in the State and County
aforesaid, on behalf of AHT Res I GP, Inc., a Virginia corporation, the party
named as New GP in the aforementioned legal instrument, and being by me first
duly sworn did depose and say to me that he/she is the President of AHT Res I
GP, Inc.; that he/she has signed and sealed the same in the name of and on
behalf of such corporation by the authority, order and resolution of its Board
of Directors; that he/she has signed his/her name thereto on behalf of said
corporation by like order; that the execution of said legal instrument was
his/her free and voluntary act and deed and the free and voluntary act and deed
of said corporation for the consideration, purposes and uses set forth in such
legal instrument to the other parties thereto as such; and that on behalf of
said corporation, he/she has received a true copy of such legal instrument
without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
/s/ Xxxxx X. Xxxxxx
[NOTARIAL SEAL] --------------------------------
Notary Public
Commission Expires: Dec 31, 2002
18
ACKNOWLEDGMENT
--------------
STATE OF Virginia )
)
CITY OF Richmond )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxx X. Xxxxxx, personally known to
me to be the person named in and who signed the legal instrument to which this
acknowledgment is attached and which was produced to me in the State and County
aforesaid, on behalf of AHM Res I GP, Inc., a Virginia corporation, sole general
partner of AHM Res I Limited Partnership, a Virginia limited partnership, the
party named as Lessee in the aforementioned legal instrument, and being by me
first duly sworn did depose and say to me that he/she is the President of AHM
Res I GP, Inc.; that he/she has signed and sealed the same in the name of and on
behalf of such corporation (acting as the sole general partner of AHM Res I
Limited Partnership) by the authority, order and resolution of its Board of
Directors; that he/she has signed his/her name thereto on behalf of said
corporation, as sole general partner of said limited partnership, by like order;
that the execution of said legal instrument was his/her free and voluntary act
and deed and the free and voluntary act and deed of said corporation and said
limited partnership for the consideration, purposes and uses set forth in such
legal instrument to the other parties thereto as such; and that on behalf of
said limited partnership, he/she has received a true copy of such legal
instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
[NOTARIAL SEAL] /s/ Xxxxx X. Xxxxxx
--------------------------------
Notary Public
Commission Expires: Dec 31, 2002
19
ACKNOWLEDGMENT
--------------
STATE OF Maryland )
)
COUNTY OF Xxxxxxxxxx )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxxx X. Xxxxxxx, personally known
to me to be the person named in and who signed the legal instrument to which
this acknowledgment is attached and which was produced to me in the State and
County aforesaid, on behalf of RIBM One LLC, a Delaware limited liability
company, the party named as Existing GP in the aforementioned legal instrument,
and being by me first duly sworn did depose and say to me that he/she is the
President & Manager of RIBM One LLC; that he/she has signed and sealed the same
in the name of and on behalf of such limited liability company by the authority,
order and resolution of its Board of Directors; that he/she has signed his/her
name thereto on behalf of said limited liability company by like order; that the
execution of said legal instrument was his/her free and voluntary act and deed
and the free and voluntary act and deed of said limited liability company for
the consideration, purposes and uses set forth in such legal instrument to the
other parties thereto as such; and that on behalf of said limited liability
company, he/she has received a true copy of such legal instrument without
charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
[NOTARIAL SEAL] /s/ Xxxxx X. Xxxxxx
--------------------------------
Notary Public
Commission Expires: May 17, 2003
20
ACKNOWLEDGMENT
STATE OF Missouri )
)
COUNTY OF Xxxxxxx )
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above and duly commissioned to take
acknowledgments, there personally appeared Xxxxx X. Xxxxxxxxx, personally known
to me to be the person named in and who signed the legal instrument to which
this acknowledgment is attached and which was produced to me in the State and
County aforesaid, on behalf of Midland Loan Services, Inc., as Master Servicer
and Attorney-in-Fact for LaSalle Bank National Association f/k/a LaSalle
National Bank, as Trustee for Mortgage Pass-Through Certificate Series 1996-2,
the party named as Lender in the aforementioned legal instrument, and being by
me first duly sworn did depose and say to me that he/she is the Sr VP of Midland
Loan Services, Inc.; that he/she has signed and sealed the same in the name of
and on behalf of such corporation (acting as Master Servicer and
Attorney-in-Fact) pursuant to proper authority; that he/she has signed his name
thereto on behalf of said corporation (acting as Master Servicer and
Attorney-in-Fact) by like order; that the execution of said legal instrument was
his/her free and voluntary act and deed and the free and voluntary act and deed
of said corporation (acting as Master Servicer and Attorney-in-Fact) for the
consideration, purposes and uses set forth in such legal instrument to the other
parties thereto as such; and that on behalf of said corporation (acting as
Master Servicer and Attorney-in-Fact), he/she has received a true copy of such
legal instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial
seal on this acknowledgment in the State and County named above on the 28 day of
March, 2002.
[NOTARIAL SEAL] /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Notary Public
Commission Expires: Oct 24, 2005
21
EXHIBIT "A"
Legal Description
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A-1
EXHIBIT "B"
Loan Documents
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1. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $7,400,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
000 Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx.
2. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $17,600,000.00, from Marriott Residence Inn Limited Partnership
to the German American Capital Corporation with respect to the Inn located
at 0000 Xxxxxx Xxxxx, Xx Xxxxx, Xxxxxxxxxx.
3. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $9,700,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
0000 X. Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxxxx.
4. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $7,800,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
3030 Center Green Drive, Boulder, Colorado.
5. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $7,000,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, Xxxxxxx.
6. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $6,400,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxx.
7. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $6,400,000.00 from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxx.
8. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $6,200,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
0000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx.
9. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $6,100,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
00000 Xxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxx.
10. Promissory Note, in the original principal amount of $4,200,000.00, from
Marriott Residence Inn Limited Partnership to the German American Capital
Corporation with respect to the Inn located at 00000 Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxx.
11. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $8,400,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
0000 XxXxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx.
12. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $4,400,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
00000 Xxxxxxx Xxxx, Xxxxxxxxxx, Ohio.
B-1
13. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $3,000,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxx.
14. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $2,300,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
0000 Xxx Xxxxxx, Xxxxxx, Xxxx.
15. Promissory Note, dated as of October 10, 1995, in the original principal
amount of $3,100,000.00, from Marriott Residence Inn Limited Partnership to
the German American Capital Corporation with respect to the Inn located at
000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx.
16. Deed of Trust and Security Agreement from Marriott Residence Inn Limited
Partnership to Chicago Title Insurance Company as trustee for the benefit
of the German American Capital Corporation with respect to the Inn located
at 000 Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx, recorded at Document No.
19950458455, Orange County Recorder's Office.
17. Deed of Trust and Security Agreement from Marriott Residence Inn Limited
Partnership to Chicago Title Insurance Company as trustee for the benefit
of the German American Capital Corporation with respect to the Inn located
at 0000 Xxxxxx Xxxxx, Xx Xxxxx, Xxxxxxxxxx, recorded at Document No.
1995-0468108, San Diego County Recorder's Office.
18. Deed of Trust and Security Agreement from Marriott Residence Inn Limited
Partnership to Chicago Title Insurance Company as trustee for the benefit
of the German American Capital Corporation with respect to the Inn located
at 0000 X. Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxxxx, recorded at Document Xx.
000000000, Xxx Xxxxxxx Xxxxxx Recorder's Office.
19. Deed of Trust, Assignment of Rents, Security Agreement, Financing Statement
and Fixture Filing from Marriott Residence Inn Limited Partnership to the
Public Trustee for the County of Boulder for the benefit of the German
American Capital Corporation with respect to the Inn located at 0000 Xxxxxx
Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, recorded at Document No. 01555506, Boulder
County Recorder's office.
20. Deed to Secure Debt and Security Agreement from Marriott Residence Inn
Limited Partnership to the German American Capital Corporation with respect
to the Inn located at 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, Xxxxxxx,
recorded at Book 20126, page 07, Xxxxxx County Clerk of the Superior Court.
21. Deed to Secure Debt and Security Agreement from Marriott Residence Inn
Limited Partnership to the German American Capital Corporation with respect
to the Inn located at 0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxx, recorded at Book
8725, page 003, DeKalb County Clerk of the Superior Court.
22. Deed to Secure Debt and Security Agreement from Marriott Residence Inn
Limited Partnership to the German American Capital Corporation with respect
to the Inn located at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxx, recorded at Book
9181, Page 0072, Xxxx County Superior Court.
23. Mortgage and Security Agreement from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, recorded at
R95-143176, Du Page County Recorder's Office.
24. Mortgage and Security Agreement from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 00000 Xxxxxxx Xxxx
X-0
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxx, recorded at Liber 15749, page 328, Oakland
County Register of Deeds.
25. Future Advance Deed of Trust and Security Agreement from Marriott Residence
Inn Limited Partnership to Xxxxxxx X. Xxxxxx, solely as trustee for the
benefit of the German American Capital Corporation with respect to the Inn
located at 00000 Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx, recorded at Book 10636,
page 440, St. Louis County Recorder of Deeds.
26. Future Advance Deed of Trust and Security Agreement from Marriott Residence
Inn Limited Partnership to Xxxxxxx X. Xxxxxx, solely as trustee for the
benefit of the German American Capital Corporation with respect to the Inn
located at 0000 XxXxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx, recorded at Book
10636, page 155, St. Louis County Recorder of Deeds .
27. Open End Mortgage, Security Agreement and Fixture Financing Statement from
Marriott Residence Inn Limited Partnership to the German American Capital
Corporation with respect to the Inn located at 00000 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxx, recorded at Book 6883, page 1847, Xxxxxxxx County
Recorder's Office.
28. Open End Mortgage, Security Agreement and Fixture Financing Statement from
Marriott Residence Inn Limited Partnership to the German American Capital
Corporation with respect to the Inn located at 0000 Xxxx Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxx, recorded at Document No. 30271-A07, Franklin County
Recorder's Office.
29. Open End Mortgage, Security Agreement and Fixture Financing Statement from
Marriott Residence Inn Limited Partnership to the German American Capital
Corporation with respect to the Inn located at 0000 Xxx Xxxxxx, Xxxxxx,
Xxxx, recorded at MORT 95-3067, E03, Xxxxxxxxxx County Recorder's Office.
30. Open End Mortgage, Security Agreement and Fixture Financing Statement from
Marriott Residence Inn Limited Partnership to the German American Capital
Corporation with respect to the Inn located at 000 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxx, recorded at 95-3063B05, Xxxxxxxxxx County Recorder's
Office.
31. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 000 Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx, recorded at
Document No. 19950458456, Orange County Recorder.
32. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 Xxxxxx Xxxxx, Xx Xxxxx, Xxxxxxxxxx, recorded at
1995-0468109, San Diego County Recorder's Office.
33. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 X. Xxxxxx Xxxxxx, Xxxx Xxxxx, Xxxxxxxxxx, recorded at
95 1695509 Los Angeles County Recorder's Office.
34. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 Xxxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, recorded at
Document No. 01555507, Boulder County Recorder.
35. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx, Xxxxxxx, recorded at
Book 20126, page 84, Xxxxxx County Clerk of Superior Court.
B-3
36. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxx, recorded at
----------.
37. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxx, recorded at Book 9181,
page 0154, Xxxx County Clerk of Superior Court.
38. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, recorded at
R95-143177, Du Page County Recorder.
39. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 00000 Xxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxx, recorded
at Liber 15749, page 408, Oakland County Register of Deeds.
40. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 00000 Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx, recorded at Book
10636, Page 517, St. Louis County Recorder of Deeds.
41. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 XxXxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx, recorded at Book
10636, page 234, St. Louis County Recorder of Deeds.
42. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 00000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxx, recorded at Book 6883,
page 1925, Xxxxxxxx County Recorder.
43. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxx, recorded at
30271E05 Franklin County Recorder's Office.
44. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 0000 Xxx Xxxxxx, Xxxxxx, Xxxx, recorded at 95-3069A06.
45. Assignment of Rents and Revenues from Marriott Residence Inn Limited
Partnership to the German American Capital Corporation with respect to the
Inn located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx, recorded at
95-3069A06, Xxxxxxxxxx County Recorder's Office.
46. Indemnity Agreement by Marriott Residence Inn Limited Partnership and RIBM
One Corporation in favor of the German American Capital Corporation, dated
October 10, 1995.
47. Loan Agreement by and between Marriott Residence Inn Limited Partnership
and the German American Capital Corporation, dated October 10, 1995.
48. First Amendment to Loan Agreement, dated as of April 23, 1996, by and
between Marriott Residence Inn Limited Partnership and the German American
Capital Corporation.
49. Four Party Agreement, dated October 10, 1995, by and between Marriott
Residence Inn Limited Partnership, the German American Capital Corporation,
Starwood Mezzanine Investors, L.P., and Residence Inn by Marriott, Inc.
B-4
50. Fifteen (15) separate Subordination, Non-disturbance and Attornment
Agreements, dated October 10, 1995, between Starwood Mezzanine Investors,
L.P. and Residence Inn by Marriott, Inc.
51. Assignment of Management Agreement and Manager's Consent, dated October 10,
1995, by Marriott Residence Inn Limited Partnership to German American
Capital Corporation.
52. Manager Estoppel Certificate by Residence Inn by Marriott, Inc., dated
October 10, 1995.
53. Letter Agreement, dated October 10, 1995, between Marriott Residence Inn
Limited Partnership and German American Capital Corporation.
54. UCC Financing Statements relating to each of the Hotels.
B-5
EXHIBIT "C"
Lender's Wiring Instructions
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PNC BANK N.A.
Bank ID # 000000000
Account # 1006967647
Attn: MIDLAND LOAN SERVICES, INC.
Loan# 030221014
C-1
EXHIBIT "D"
INTENTIONALLY DELETED
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D-1
EXHIBIT "E"
Ownership Structure of Borrower, New GP and Lessee
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E-1
EXHIBIT "F"
Schedule of Subordinate Loan Consent Documents
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F-1
