Exhibit 4.11
FIRST AMENDMENT TO FOUR PARTY AGREEMENT
---------------------------------------
THIS FIRST AMENDMENT TO FOUR PARTY AGREEMENT (this "Amendment") is made as
of March 29, 2002, by and among MARRIOTT RESIDENCE INN LIMITED PARTNERSHIP
("Borrower"), LASALLE BANK NATIONAL ASSOCIATION (F/K/A LASALLE NATIONAL BANK),
AS TRUSTEE FOR MORTGAGE PASS-THROUGH CERTIFICATES SERIES 1996-2 ("Senior
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"), RESIDENCE INN BY MARRIOTT, INC., a
Delaware corporation ("Manager"), and AHM RES I LIMITED PARTNERSHIP, a Virginia
limited partnership("Lessee").
RECITALS
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A. By assignment, Senior 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 "Senior
Loan") and the owner and holder of the instruments and documents (collectively,
the "Senior Loan Documents") evidencing, securing or otherwise relating to the
Senior 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 Senior 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 Senior Lender
(as so modified and amended, the "Senior Loan Agreement") and (ii) the
instruments described on Exhibit "B" attached hereto and made a part hereof.
-----------
B. Midland Loan Services, Inc. services the Senior Loan for Senior 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.
C. By assignment, Subordinate Lender is the owner and holder of a loan to
Borrower in the original principal amount of Thirty Million and No/100 Dollars
($30,000,000.00) (the "Subordinate Loan") and the owner and holder of the
instruments and documents (collectively, the "Subordinate Loan Documents")
evidencing, securing or otherwise relating to the Subordinate Loan including,
without limitation, (i) that certain Loan Agreement dated October 10, 1995 by
and between Borrower and Starwood Mezzanine Investors, L.P. ("Original
Subordinate Lender") (as amended from time to time, the "Subordinate Loan
Agreement") and (ii) the instruments described on Exhibit "C" attached hereto
-----------
and made a part hereof.
D. iStar Asset Services, Inc. services the Subordinate Loan for Subordinate
Lender, as Primary Servicer pursuant to a certain Primary Servicing Agreement
dated as of May 17, 2000.
E. Borrower, Original Senior Lender, Original Subordinate Lender, and
Manager entered into that certain Four Party Agreement dated October 10, 1995
(the "Agreement") which provides a mechanism by which, under certain
circumstances, the Net Cash Flow (as defined therein) is paid directly into
certain accounts established by the Senior Lender.
F. Borrower, RIBM One LLC ("RIBM"), Apple Hospitality Two, Inc. ("AHT") and
AHT Res Acquisition, L.P. ("Merger Sub") have entered into an Agreement and Plan
of Merger dated 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").
G. 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 Marriott Residence Inn hotels securing the Senior Loan and the
Subordinate Loan and described on Exhibit "A" attached hereto and made a part
-----------
hereof (collectively, the "Hotels"), assign to Lessee, pursuant to the Consent,
Assignment and Assumption of Management Agreement dated March , 2002 between
--
Borrower, Lessee and Manager, all of Borrower's right, title and interest under
the Management Agreement dated March 28, 1988 between Borrower and 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"). In connection with the Merger, Borrower will
execute and deliver (i) the Owner Agreement dated March , 2002 between
--
Borrower, Lessee and Manager and (ii) the Estoppel and Ratification dated March
, 2002.
--
H. Borrower has requested that Senior Lender and Subordinate 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 Senior
Lender has agreed to consent to such matters subject to and in accordance with
the terms and conditions set forth in that certain Consent to Merger (the
"Senior Lender Consent") dated of even date herewith by and among Senior Lender,
Borrower, AHT Res I GP, Inc., a Virginia corporation, RIBM and Lessee, and
Subordinate Lender has agreed to consent to such matters subject to and in
accordance with the terms and conditions set forth in that certain Consent to
Merger (the "Subordinate Lender Consent") dated of even date herewith among
Subordinate Lender, Borrower, New GP, RIBM and Lessee.
NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100
DOLLARS ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby
covenant and agree as follows:
1. Definitions. All terms used herein which are not otherwise defined
-----------
herein shall have the meanings set forth in the Senior Loan Agreement.
2. Modification of the Agreement. Borrower, Senior Lender, Subordinate
-----------------------------
Lender, Lessee and Manager do hereby modify and amend the Agreement as follows:
2
(a) By adding the following new definitions toss.2 in appropriate
alphabetical order:
"`Lessee' shall mean AHM RES I Limited Partnership, a Virginia
------
limited partnership.
"Senior Lender" shall mean LaSalle Bank National Association
-------------
(f/k/a LaSalle National Bank), as Trustee for Mortgage
Pass-Through Certificates Series 1996-2, and its successors and
assigns.
"Subordinate Lender" shall mean LaSalle Bank National
------------------
Association, as Indenture Trustee for the benefit of the holders
of iStar Asset Receivables Trust Collateralized Mortgage Bonds
Series 2000-1, and its permitted successors and assigns."
(b) By deleting Section 3 (a), (b), (g) and (j) of the Agreement
appearing on page 9-12, 14, and 15 thereof in their entirety and inserting in
lieu thereof the following new Section 3 (a), (b), (g) and (j):
"(a) Borrower, Lessee, and Manager hereby acknowledge and agree
that all Inn Income has been pledged and assigned to Senior Lender
(first priority) and Subordinate Lender (second priority). Pursuant to
the Management Agreement, all Gross Revenues (as defined in the
Management Agreement) are collected by Manager. Pursuant to the
Management Agreement, Manager may use the Gross Revenues for the
payment of Deductions (as defined in the Management Agreement) and the
establishment and maintenance of the Reserve (as defined in and in
accordance with the Management Agreement) and must remit a portion of
the Operating Profit (as defined in the Management Agreement) to
Lessee in the priorities set forth in, and otherwise in accordance
with, the Management Agreement. After the occurrence of a Trigger
Date, and until a Restoration Date thereafter occurs, the parties
hereto hereby agree that all (i) Operating Profit and/or other amounts
required or permitted to be paid to Lessee or Borrower pursuant to the
Management Agreement, plus (ii) all cash or other amounts which Lessee
or Borrower is entitled to receive from Manager from any source or
which Lessee or Borrower otherwise receives (collectively, the "Net
---
Cash Flow") shall be paid directly to the Cash Collateral Account (or,
--------- -----------------------
if Senior Lender notifies Manager, Borrower and Subordinate Lender in
writing that the Application Trigger Date has occurred, to the Senior
Account), rather than to Lessee or Borrower, whenever Net Cash Flow is
payable to Lessee or Borrower pursuant to the Management Agreement or
whenever Net Cash Flow is otherwise received by Lessee or Borrower.
Lessee hereby assigns, conveys, mortgage, pledges, hypothecates and
transfers and delivers to Senior Lender (first priority) and
Subordinate Lender (second priority) all of Lessee's right, title and
interest in and to the Cash Collateral and the Cash Collateral Account
as collateral for the payment of the Indebtedness owed to such Lender,
and hereby grants to Senior Lender (first priority) and Subordinate
Lender (second priority) a continuing lien on and security interest
therein. Borrower hereby assigns, conveys, mortgage,
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pledges, hypothecates and transfers and delivers to Senior Lender
(first priority) and Subordinate Lender (second priority) all of
Borrower's right, title and interest in and to the Cash Collateral and
the Cash Collateral Account as collateral for the payment of the
Indebtedness owed to such Lender, and hereby grants to Senior Lender
(first priority) and Subordinate Lender (second priority) a continuing
lien on and security interest therein. Additionally, Borrower
absolutely assigns to Senior Lender (first priority) and Subordinate
Lender (second priority) the outright ownership of (and not a security
interest in) the Senior Account and Intercreditor Account and the
funds therein (subject to Borrower's right to receive credit against
the indebtedness owed for any funds actually paid to and applied by
the respective Lender). Additionally, Lessee absolutely assigns to
Senior Lender (first priority) and Subordinate Lender (second
priority) the outright ownership of (and not a security interest in)
the Senior Account and Intercreditor Account and the funds therein
(subject to Borrower's right to receive credit against the
indebtedness owed for any funds actually paid to and applied by the
respective Lender). Manager hereby agrees to deliver all Net Cash Flow
to the applicable Account in accordance with the provisions of this
Agreement; provided, however, that (i) prior to the date on which
either Senior Lender or Subordinate Lender or their agent notifies
Borrower, Lessee and Manager in writing that a Trigger Date or an
Application Trigger Date has occurred or Manager is otherwise informed
by Lessee or Borrower that a Trigger Date or an Application Trigger
Date has occurred, and (ii) after Senior Lender notifies Manager that
a Restoration Date has occurred (which Senior Lender agrees to do
promptly after a Restoration Date occurs), in either case Manager may
pay all Net Cash Flow directly to Lessee and Lessee may dispose of
such Net Cash Flow in accordance with and subject to the terms and
conditions of the Senior Loan Documents and Subordinate Loan
Documents. Notwithstanding anything contained herein to the contrary,
prior to the date on which Manager receives written notice from Senior
Lender or Subordinate Lender that a Trigger Date or an Application
Trigger Date has occurred, Manager shall not be obligated to deliver
Net Cash Flow to the Cash Collateral Account or Senior Cash Collateral
Account. In the event Manager receives conflicting instructions from
Senior Lender, Subordinate Lender, Lessee and/or Borrower, Manager
shall rely exclusively on the instructions from Senior Lender and
shall be fully protected in such reliance. So long as Manager complies
with Lender's written instructions, Borrower and Lessee shall and do
hereby release Manager from any claims with respect thereto and Lessee
and Borrower shall and do hereby indemnify, defend and hold harmless
Manager from and against any such claims. Lessee's and Borrower's
right to receive and use, and the right of Manager to pay, the Net
Cash Flow in accordance with the preceding sentence shall terminate
automatically and without notice or further action upon the date on
which Senior Lender or Subordinate Lender notifies Borrower, Lessee
and Manager in writing that a Trigger Date or an Application Trigger
Date has occurred or Manager is otherwise informed by Lessee or
Borrower that a Trigger Date or an Application Trigger Date has
occurred. In the event Manager receives conflicting notices from
Lessee and Borrower, Manager shall rely exclusively on the notice that
states that a Trigger Date or Application
4
Trigger Date has occurred and shall be fully protected in such
reliance. Notwithstanding anything to the contrary in this Agreement,
Senior Lender's rights pursuant to this Agreement are in addition to,
and not in derogation of, any rights contained in the Senior Loan
Documents, and nothing contained herein shall alter, affect or impair
the absolute assignment contained in the Assignments of Rents and
Revenues. Notwithstanding anything to the contrary in this Agreement,
Subordinate Lender's rights pursuant to this Agreement are in addition
to, and not in derogation of, any rights contained in the Subordinate
Loan Documents, and nothing contained herein shall alter, affect or
impair the absolute assignment contained in the Subordinate
Assignments of Rents and Revenues;
(b) If after the occurrence of a Trigger Date a Restoration Date
shall occur, then the previous occurrence of the Trigger Date shall
thereafter be of no force or effect, and if no Event of Default or
Default has occurred and is continuing any funds then held in the Cash
Collateral Account shall be (i) first, used to pay any unpaid costs or
expenses described in Paragraphs 5 or 7 hereof, (ii) second, used to
pay all reasonable amounts incurred by or on behalf of Subordinate
Lender for attorneys' fees in connection with this Agreement, and
(iii) third, released to Lessee, provided that any amounts previously
paid or released from the Cash Collateral Account in accordance with
this Agreement shall not be repaid to Lessee or Borrower, and Lessee
and Borrower waive any rights with respect to any such payments. If
after the occurrence of an Application Trigger Date an Application
Restoration Date and/or a Restoration Date shall occur, then
notwithstanding the occurrence of such Application Restoration Date
and/or such Restoration Date, (i) any amounts previously paid or
released from the Senior Account or the Intercreditor Account in
accordance with this Agreement shall not be repaid to Lessee or
Borrower, and Lessee and Borrower waive any rights with respect to any
such payments or amounts, and (ii) no amounts then held in the Senior
Account or the Intercreditor Account shall ever be returned or
released to Lessee or Borrower under any circumstances whatsoever, and
Lessee and Borrower waive any rights with respect thereto.
Additionally, notwithstanding anything in subparagraph 3(f) to the
contrary, upon the occurrence of an Application Restoration Date, any
amounts held in the Intercreditor Account shall continue to be held in
the Intercreditor Account in accordance with this Agreement until an
Intercreditor Payment Date occurs and then shall be disposed of as set
forth in Paragraph 3(f)(iv) below;
(g) After the occurrence of a Trigger Date or an Application
Trigger Date and until the occurrence of a Restoration Date, Manager
herby agrees to remit to the Account the maximum amount to which
Lessee and/or Borrower is then and thereafter entitled pursuant to the
Management Agreement, notwithstanding any contrary requests or
instructions from Lessee or Borrower;
(j) Lessee and Borrower acknowledge and agree that the Senior
Account and the Intercreditor Account are the sole property of Senior
Lender and have been established solely to provide for the payment of
Indebtedness owed to Senior Lender and Subordinate Lender. Neither
Lessee nor Borrower have any
5
rights whatsoever with respect to the Senior Account or the
Intercreditor Account or any funds contained therein (other than the
right of Borrower to receive credit against the Debt for any such
amounts applied against the Debt) and under no circumstances
whatsoever shall Lessee or Borrower ever have or claim to have any
rights whatsoever with respect to the Senior Account or the
Intercreditor Account or any funds contained therein. Specifically,
but without limitation, Lessee and Borrower acknowledge and agree that
in the event that a bankruptcy proceeding is commenced by or against
Lessee or Borrower, the Senior account and the Intercreditor Account
and/or any funds contained in the Senior Account and/or the
Intercreditor Account shall not constitute the property of Lessee's or
Borrower's bankruptcy estate and neither Lessee nor Borrower shall
claim or assert that the Senior Account and/or the Intercreditor
Account or any funds contained therein constitute the property of
Lessee's or Borrower's bankruptcy estate."
(c) By deleting Section. 4 of the Agreement appearing on pages 15-17
thereof in its entirety and inserting in lieu thereof the following new Section
4:
"4. Cash Collateral.
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(a) Lessee and Borrower shall take all reasonably necessary
actions and shall otherwise reasonably cooperate to ensure that, when
required by this Agreement, all of the Net Cash Flow is paid into the
Account in accordance with this Agreement, including without
limitation paying into the Account any Net Cash Flow inadvertently or
otherwise received by Lessee or Borrower in violation of this
Agreement.
(b) Lessee and Borrower hereby grant to Escrow Agent (and
all persons designated by Escrow Agent, including without limitation
the officers and employees of the financial institution where the Cash
Collateral Account is maintained) the full right, power and authority,
which shall be deemed to be coupled with an interest, to endorse and
deposit all checks and credit card or similar receipts pertaining to
the Mortgaged Property delivered for deposit into the Cash Collateral
Account, whether or not made payable to Borrower, Lessee, Escrow
Agent, Manager or otherwise, and Lessee and Borrower agree to execute
all necessary or appropriate documentation confirming the authority
granted hereby. On or prior to the tenth (10th) day of each month
after the Trigger Date, Escrow Agent (or its designee, nominee or
assignee) shall furnish Senior Lender, Subordinate Lender, Borrower,
Lessee and Manager with a reasonably detailed accounting of all Net
Cash Flow deposited into the Cash Collateral Account for the preceding
month and the use of any amounts withdrawn from the Cash Collateral
Account. The monies contained in the Cash Collateral Account may be
transferred by Escrow Agent from time to time to any other account or
sub-account chosen by Senior Lender in accordance with this Agreement,
provided that each such account and the monies contained therein shall
remain subject to the terms and provisions of this Agreement.
6
(c) Lessee and Borrower hereby grant to Senior Lender (and
all persons designed by Senior Lender, including without limitation
the officers and employees of the financial institution where the
Senior Account is maintained) the full right, power and authority,
which shall be deemed to be coupled with an interest, to endorse and
deposit all checks and credit card or similar receipts pertaining to
the Mortgage Property delivered for deposit into the Senior Account,
whether or not made payable to Borrower, Lessee, Senior Lender,
Manager or otherwise, and Borrower and Lessee agree to execute all
necessary or appropriate documentation confirming the authority
granted hereby. On or prior to the tenth (10th) day of each month
during the term of this Agreement, Senior Lender (or its designee,
nominee or assignee) shall furnish Subordinate Lender, Borrower,
Lessee and Manager with an accounting of all amounts deposited into
the Senior Account for the preceding month and the use of any amounts
withdrawn from the Senior Account. The monies contained in the Senior
Account may be transferred by Senior Lender from time to time to any
other account or sub-account chosen by Senior Lender in accordance
with this Agreement, provided that each such account and the monies
contained therein shall remain subject to the terms and provisions of
this Agreement.
(d) Lessee and Borrower hereby confirm that all Cash
Collateral is subject to (i) Senior Lender's first priority lien and
security interest created by the Loan Documents and (ii) Subordinate
Lender's second priority lien and security interest created by the
Subordinate Loan Documents. In addition to, and without limitation of,
any such liens or security interests, Lessee and Borrower hereby
confirm each Lender's security interest in and to all Cash Collateral
as security for the obligations to Senior Lender under the Loan
Documents and to the Subordinate Lender under the Subordinate Loan
Documents. Lessee and Borrower acknowledge and agree that Senior
Lender has a presently enforced, possessory and "xxxxxx" first
priority lien and security interest in and to all Cash Collateral and
that Subordinate Lender has a presently enforced, possessory and
"xxxxxx" second priority lien and security interest in the Cash
Collateral, notwithstanding the License. On demand, from time to time,
Borrower and Lessee agree to execute and deliver to each Lender and
hereby authorize each Lender to execute in the name of Borrower and
Lessee to the extent each Lender may lawfully do so, financing
statements or comparable security instruments as may reasonably be
requested or required by each Lender to perfect or continue the
respective security interests in the Cash Collateral Account and
Lender's rights with respect to the other accounts provided for
herein."
(d) By adding the phrase "Lessee or" before the term "Borrower" in (i)
the seventh line of Section 8 of the Agreement on page 21 thereof (ii) the
sixteenth line of Section 13 of the Agreement on page 22 thereof;
(e) By deleting Section 11 of the Agreement appearing on pages 21-22
thereof in its entirety and inserting in lieu thereof the following new Section
11:
7
"11. Injunctive Relief/Irreparable Harm. Lessee, Borrower and
----------------------------------
Manager acknowledge and agree that any breach or default by either
Lessee, Borrower or Manager pursuant to this Agreement would result in
irreparable harm to Senior Lender and Subordinate Lender and that
therefore money damages would not be an adequate remedy to compensate
Senior Lender or Subordinate Lender for such breach or default.
Accordingly, Lessee, Borrower and Manager acknowledge and agree that
in the event of a breach or default by any of them pursuant to the
terms of this Agreement, Senior Lender and/or Subordinate Lender shall
each be entitled to specific performance of Lessee's, Borrower's and
Manager's obligations under this Agreement and/or any other equitable
remedy which Lenders may seek, in their sole and absolute discretion,
and Borrower and Manager hereby waive and release any right to claim
that monetary damages would be an adequate remedy.
(f) By deleting the phrase "Borrower will not sell" appearing in the
second line of Section 12 of the Agreement on page 22 thereof and substituting
in lieu thereof the phrase "neither Lessee nor Borrower will sell";
(g) By adding the phrase "Lessee and" before the term "Borrower" in
the third line of Section.18 of the Agreement on page 24 thereof;
3. References to Agreement. All references in the Senior Loan Documents and
-----------------------
the Subordinate Loan Documents to the Agreement shall be deemed a reference to
the Agreement as modified and amended herein.
4. Intentionally Omitted.
---------------------
5. Representations and Warranties of Borrower. Each of Borrower, Manager,
------------------------------------------
and Lessee represents and warrants, as to itself, to the Senior Lender and
Subordinate Lender as follows:
(a) Authorization. The execution, delivery and performance of this
-------------
Amendment and the transactions contemplated hereby and thereby (i) are within
the authority of such Person, (ii) have been duly authorized by all necessary
proceedings on the part of such Person, (iii) do not and will not conflict with
or result in any breach or contravention of any provision of law, statute, rule
or regulation to which such Person is subject or any judgment, order, writ,
injunction, license or permit applicable to such Person, (iv) do not and will
not conflict with or constitute a default (whether with the passage of time or
the giving of notice, or both) under any provision of the partnership agreement
or certificate, certificate of formation, operating agreement, articles of
incorporation or other charter documents or bylaws of, or any mortgage,
indenture, agreement, contract or other instrument binding upon such Person or
any of its properties or to which such Person is subject, and (v) do not and
will not result in or require the imposition of any lien or other encumbrance on
any of the properties, assets or rights of such Person.
(b) Enforceability. The execution and delivery of this Amendment are
--------------
valid and legally binding obligations of such Person enforceable in accordance
with the respective
8
terms and provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating to or
affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
(c) Approvals. The execution, delivery, and performance of this
---------
Amendment and the transactions contemplated hereby and thereby do not require
the approval or consent of any Person or the authorization, consent, approval of
or any license or permit issued by, or any filing or registration with, or the
giving of any notice to, any court, department, board, commission or other
governmental agency or authority, in each case, other than those already
obtained and delivered to Senior Lender.
(d) Reaffirmation. Except as hereinabove set forth and as set forth in
-------------
the documents and agreements being executed by Senior Lender and Borrower,
Lender and/or Manager, as applicable, and Subordinate Lender and Borrower,
Lessee and/or Manager, as applicable, each of Borrower, Manager, and Lessee
represents and warrants, as to itself only, to the Senior Lender and the
Subordinate Lender that the representations and warranties made in the Senior
Loan Documents and the Subordinate Loan Documents to which it is a party by and
with respect to such Person are true and correct in all material respects as if
such representations and warranties were made as of the date hereof.
(e) No Default. By execution hereof, each of Borrower and Lessee
----------
certifies as to itself that it is and will be in compliance with all of its
covenants under the Senior Loan Documents and the Subordinate Loan Documents
after the execution and delivery of this Amendment, and that no Default or Event
of Default under the Senior Loan Documents, with respect to such Person, has
occurred and is continuing. By execution hereof, Manager certifies that it is
and will be in compliance with all of its covenants under the Agreement, as
amended hereby, and that no default or event of default under the Agreement has
occurred and is continuing.
6. Ratification. The parties hereto agree that, except as hereinabove set
------------
forth, all terms, covenants, and provisions of the Agreement remain unaltered
and in full force and effect, and the parties hereto do hereby expressly ratify
and confirm the Agreement as modified and amended herein. Borrower and Lessee do
hereby acknowledge and agree that nothing in this Amendment or in any other
document executed in connection herewith shall be deemed or construed to
constitute, and there has not otherwise occurred, a novation, cancellation,
satisfaction, release, extinguishment, or substitution of the indebtedness
evidenced by the Single Inn Notes or the other obligations of Borrower under the
Senior Loan Documents or the Subordinate Loan Documents.
7. Intentionally Omitted.
---------------------
8. Joinder by Lessee. By execution of this Amendment, Lessee hereby becomes
-----------------
a party to the Agreement as modified and amended herein. Lessee agrees that
Lessee is and shall be bound by, and hereby assumes, all representations,
warranties, covenants, terms, conditions, duties and waivers applicable to
Lessee under the Agreement as modified and amended herein.
9
9. Counterparts. This Amendment may be executed in any number of
------------
counterparts which shall together constitute but one and the same agreement.
10. Miscellaneous. This Amendment shall be construed and enforced in
-------------
accordance with the laws of the State of New York. Borrower shall pay all
reasonable fees and expenses of Senior Lender's and Subordinate Lender's counsel
in connection with the execution and delivery of this Amendment. This Amendment
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective permitted successors, successors-in-title and assigns as
provided in the Agreement.
[SIGNATURES ON FOLLOWING PAGES]
10
IN WITNESS WHEREOF, the parties hereto have hereto set their hands and
affixed their seals as of the day and year first above written.
BORROWER:
--------
MARRIOTT RESIDENCE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: AHT Res I GP, Inc., a Virginia
orporation
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------
Title: 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
----------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
11
MANAGER:
-------
RESIDENCE INN BY MARRIOTT, INC., a
Delaware corporation
By: /s/ X. Xxxxxx Pulse, Jr.
--------------------------------------
Name: X. Xxxxxx Pulse, Jr.
---------------------------------
Title: Vice President
--------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
12
SENIOR LENDER:
-------------
LASALLE BANK NATIONAL ASSOCIATION F/K/A
LASALLE NATIONAL BANK, as Trustee for
Mortgage Pass-Through Certificates 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
---------------------------------
Title: Senior Vice President
--------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
13
SUBORDINATE 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
By: iStar Asset Services, Inc., as duly
authorized primary servicer
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
-----------------------------
Title: President
----------------------------
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EXHIBIT "A"
-----------
THE HOTELS
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1. Marriott Residence Inn located at 000 Xxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx.
2. Marriott Residence Inn located at 0000 Xxxxxx Xxxxx, Xx Xxxxx, Xxxxxxxxxx.
3. Marriott Residence Inn located at 0000 X. Xxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxxxxxx.
4. Marriott Residence Inn located at 3030 Center Green Drive, Boulder,
Colorado.
5. Marriott Residence Inn located at 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxx,
Xxxxxxx.
6. Marriott Residence Inn located at 0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxx.
7. Marriott Residence Inn located at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxx.
8. Marriott Residence Inn located at 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx.
9. Marriott Residence Inn located at 00000 Xxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxx,
Xxxxxxxx.
10. Marriott Residence Inn located at 00000 Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxx.
11. Marriott Residence Inn located at 0000 XxXxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx.
12. Marriott Residence Inn located at 00000 Xxxxxxx Xxxx, Xxxxxxxxxx, Ohio.
13. Marriott Residence Inn located at 0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxx.
14. Marriott Residence Inn located at 0000 Xxx Xxxxxx, Xxxxxx, Xxxx.
15. Marriott Residence Inn located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx.
A-1
EXHIBIT "B"
-----------
SENIOR LOAN DOCUMENTS
---------------------
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
B-1
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.
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.
B-2
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 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.
B-3
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.
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.
B-4
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.
B-5
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.
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-6
EXHIBIT "C"
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SUBORDINATE LOAN DOCUMENTS
--------------------------
C-1
