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EXHIBIT 10.11
SECOND AMENDMENT TO DEED OF TRUST,
FINANCING STATEMENT, SECURITY AGREEMENT AND
FIXTURE FILING (WITH ASSIGNMENT OF RENTS AND LEASES)
This Second Amendment To Deed Of Trust, Financing Statement,
Security Agreement And Fixture Filing (With Assignment Of Rents And Leases) (the
"Second Amendment") is entered into as of May 27, 1997, by and among St. Xxxxxxx
Hotel Corporation ("Hotel Corporation"), The Westin St. Xxxxxxx Limited
Partnership (the "Hotel Partnership," and together with Hotel Corporation,
individually and collectively, the "Trustor"), Teacher Retirement System of
Texas ("Beneficiary") and Transnation Title Insurance Company (formerly known as
Transamerica Title Insurance Corporation) ("Trustee"), as trustee for the
benefit of Beneficiary, in connection with that certain Deed Of Trust, Financing
Statement, Security Agreement And Fixture Filing (With Assignment Of Rents And
Leases), dated as of August 21, 1986, as amended by that certain First Amendment
To Deed Of Trust, Financing Statement, Security Agreement And Fixture Filing
(With Assignment Of Rents And Leases) dated as of June 2, 1994 (the "First
Amendment") by Hotel Corporation (and Hotel Partnership, as its assignee) to
Trustee for the benefit of Beneficiary (the "Existing Deed of Trust," and as
amended by this Second Amendment, the "Deed of Trust").
R E C I T A L S
A. Trustor, Trustee and Beneficiary are parties to the
Existing Deed of Trust, encumbering certain real property (including
improvements thereon) located in the
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County of San Francisco, State of California (a legal description of which is
attached hereto as Exhibit A) and recorded in the Recorder's Office in County of
San Francisco, California at Reel E160 and Image 1655 as Document No. D855356.
Pursuant to the Existing Deed of Trust, Trustor granted a first-priority lien on
The Westin St. Xxxxxxx (the "St. Xxxxxxx Hotel") and the other Mortgaged
Property (as defined therein) as security for a loan ("Loan") in the original
principal amount of $83,325,000 made by Beneficiary to Hotel Corporation, and
for all other Obligations (as defined in the Deed of Trust). Unless otherwise
defined herein, all capitalized terms used herein shall have the respective
meanings given such terms in the Deed of Trust.
B. Contemporaneously with the making of the Loan, pursuant to
that certain Agreement for the Contribution of Assets and the Transfer of
Limited Partnership Interests dated as of August 28, 1986, between Hotel
Corporation and Hotel Partnership, Hotel Corporation transferred all of its
right, title and interest in the St. Xxxxxxx Hotel and the Property (as defined
therein) to Hotel Partnership. As the assignee of Hotel Corporation, Hotel
Partnership became subject to all of the provisions of the Note, the Deed of
Trust and the other Loan Documents in the same capacity as Hotel Corporation,
and consequently became jointly and severally liable with Hotel Corporation for
all of Hotel Corporation's obligations and liabilities under the Note, the Deed
of Trust and the other Loan Documents.
C. Hotel Corporation, Hotel Partnership, Beneficiary, Westin
Hotels Limited Partnership ("WHLP"), Westin Hotel Company ("Westin") and certain
other parties have entered into that certain Second Restructuring Agreement of
even date herewith (the "Second Restructuring Agreement"), which, among other
things, requires the execution and delivery of this Second Amendment.
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A G R E E M E N T
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein contained and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto, intending legally to be bound hereby, agree as follows:
1. Amendments.
1.1 Amended Definitions.
a. Definition of Note. The first Recital in the Existing
Deed of Trust is hereby amended by inserting the following phrase immediately
before the word "together" the first time it appears in the Recital:
"and as further amended by that certain Second Amendment to
Promissory Note dated as of May 27, 1997,"
b. Definition of Indebtedness and Loan Documents. The
second Recital paragraph of the Existing Deed of Trust is hereby further amended
by deleting the entirety of that portion of the Second Recital that was added by
Section 1.1(b) of the First Amendment and replacing that portion of the second
Recital with the following:
"((i) the Note, (ii) the Deed of Trust, as amended by that
certain First Amendment To Deed Of Trust, Financing Statement,
Security Agreement And Fixture Filing (With Assignment Of
Rents And Leases) dated as of June 2, 1994 (the "First
Amendment to Deed of Trust"), and by that certain Second
Amendment to Deed of Trust, Financing Statement, Security
Agreement and Fixture Filing (with Assignment of Rents and
Leases) dated as of May 27, 1997 (the "Second Amendment to
Deed of Trust") and as further amended, restated, supplemented
or otherwise modified from time to time, (iii) that certain
Absolute Assignment of Lessor's Interest in Leases dated as of
August 21, 1986, by St. Xxxxxxx Hotel Corporation (and The
Westin St. Xxxxxxx Limited Partnership, as its assignee) in
favor of Beneficiary, as amended by those certain Amendments
to Assignment of Leases, Assignment of Management Agreement
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and Subordination of Management Agreement dated as of June 2,
1994 and May 27, 1997, respectively, (the "Amendments to Other
Loan Documents") and as further amended, restated,
supplemented or otherwise modified from time to time (the
"Assignment of Leases"), (iv) that certain Assignment of
Management Agreement dated as of August 21, 1986, by St.
Xxxxxxx Hotel Corporation (and The Westin St. Xxxxxxx Limited
Partnership, as its assignee) as Owner, The Westin St. Xxxxxxx
Limited Partnership and Westin Hotels Limited Partnership for
the benefit of Beneficiary, as amended by the Amendments to
Other Loan Documents, and, as further amended, restated,
supplemented or otherwise modified from time to time (the
"Assignment of Management Agreement"), (v) the Subordination
of Management Agreement dated August 21, 1986, among the
Beneficiary, The Westin St. Xxxxxxx Limited Partnership, St.
Xxxxxxx Hotel Corporation, Westin Hotels Limited Partnership
and Westin Hotel Company, as amended by the Amendments to
Other Loan Documents, and as further amended, restated,
supplemented or otherwise modified from time to time (the
"Subordination of Management Agreement"), (vi) the
Restructuring Agreement dated as of June 2, 1994, among St.
Xxxxxxx Hotel Corporation, The Westin St. Xxxxxxx Limited
Partnership, Beneficiary, Westin (as hereinafter defined),
WHLP (as hereinafter defined) and certain other parties (as
amended, restated, supplemented or otherwise modified from
time to time, the "First Restructuring Agreement"), (vii) the
Second Restructuring Agreement dated as of May 27, 1997, among
St. Xxxxxxx Hotel Corporation, The Westin St. Xxxxxxx Limited
Partnership, Beneficiary, Westin (as hereinafter defined),
WHLP (as hereinafter defined) and certain other parties (as
amended, restated, supplemented or otherwise modified from
time to time, the "Second Restructuring Agreement"), to the
extent the First Restructuring Agreement or the Second
Restructuring Agreement relate to the Obligations, the
Mortgaged Property or Trustor, (viii) the St. Xxxxxxx FF&E
Escrow Agreement (as hereinafter defined), (ix) all other
security agreements, financing statements, lease assignments,
guarantees and other agreements, instruments, documents and
written indicia of contractual obligations between or among
the Beneficiary and/or Trustee, on the one hand, and any or
all of The Westin St. Xxxxxxx Limited Partnership, St. Xxxxxxx
Hotel Corporation, WHLP or Westin and/or any other person or
entity having any right or interest in any security for the
Loan, on the other hand, executed in connection with any of
the transactions contemplated by any of the documents above,
all of the foregoing being hereinafter referred to as the
"Loan Documents," as each such
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agreement, instrument or other document referenced in any of
the foregoing clauses may be amended, restated, supplemented
or otherwise modified from time to time),"
c. Definition of 909 Note and Mortgage. Subsection (m) of
Section 6.01 of the Existing Deed of Trust is hereby amended and restated in its
entirety to read as follows:
"(m) The occurrence of any default under that certain Mortgage
and Security Agreement executed by 000 Xxxxx Xxxxxxxx Xxxxxx
Corporation, a Delaware corporation ("909") on August 21,
1986, and assumed by The Westin Chicago Limited Partnership, a
Delaware partnership, as 909's assignee, in favor of
Beneficiary, as amended by that certain First Amendment to
Mortgage and Security Agreement dated as of June 2, 1994, and
by that certain Second Amendment to Mortgage and Security
Agreement dated as of May 27, 1997 as the same may be further
amended, restated, supplemented or otherwise modified from
time to time (the "Mortgage"), or any default under that
certain Promissory Note executed by 909 as Maker, on August
21, 1986, in favor of Beneficiary, as Holder, as amended by
that certain Amendment to Promissory Note dated June 2, 1994,
and by that certain Second Amendment to Promissory Note dated
as of May 27, 1997 and as the same may be further amended,
restated, supplemented or otherwise modified from time to time
(the "909 Note"), or any default under any other Loan Document
(as defined in the Mortgage); or"
1.2 Notices. The addresses for notice to Beneficiary in
Section 8.04(b) of the Existing Deed of Trust are hereby amended and restated in
their entirety to read as follows:
"(b) If to Beneficiary:
Teacher Retirement System of Texas
0000 Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
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Teacher Retirement System of Texas
0000 Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Legal Services Department
Telecopy: (000) 000-0000
LaSalle Advisors Limited
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
Xxxxxx & Xxxxxxx
5800 Sears Tower
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxx
Telecopy: (000) 000-0000"
1.3 Prepayment Premium in Event of Foreclosure or Trustee's
Sale. Section 6.06 of the Existing Deed of Trust is hereby amended by adding the
following subsection (i) as the last subsection thereof:
"(i) Upon any default by Trustor and following the
acceleration of maturity as herein provided, a tender of
payment by the Trustor or by anyone on behalf of the Trustor
of the amount necessary to satisfy the entire indebtedness
secured hereby made at any time prior to foreclosure sale or
Trustee's sale shall constitute an evasion of the prepayment
terms of the Note and be deemed to be a voluntary prepayment
thereunder and any such payment shall, therefore, include the
additional payment required under the prepayment provisions
contained in the Note."
2. Representations and Warranties of Hotel Corporation and
Hotel Partnership. To induce Beneficiary to enter into this Second Amendment,
each Trustor hereby jointly and severally reaffirms, and incorporates by
reference herein, each of its representations and warranties set forth in the
Second Restructuring Agreement.
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3. Conditions to Effectiveness. The amendments to the Existing
Deed of Trust set forth herein shall become effective on the Effective Date (as
defined in the Second Restructuring Agreement).
4. Miscellaneous.
4.1 Reference to and Effect on the Deed of Trust. Upon the
Effective Date, each reference in the Existing Deed of Trust to "this Deed of
Trust," "hereunder," "hereof," "herein," "hereby" or words of like import shall
mean and be a reference to the Existing Deed of Trust as amended hereby, and
each reference to the Existing Deed of Trust in the Note, any other Loan
Document, any Restructuring Document (as defined in the Second Restructuring
Agreement), or any other document, instrument or agreement executed and/or
delivered in connection with this Second Amendment, the Existing Deed of Trust,
the Note, any other Loan Documents, or any Restructuring Documents shall mean
and be a reference to the Existing Deed of Trust as amended hereby.
4.2 No Waiver. The execution, delivery and effectiveness of
this Second Amendment shall not operate as a waiver of any right, power or
remedy of the Beneficiary or Trustee under the Existing Deed of Trust, as
amended by this Second Amendment, the Note, the Loan Documents, the
Restructuring Documents or any other document, instrument or agreement executed
in connection herewith or therewith, nor constitutes a waiver of any provision
contained therein, except as specifically set forth herein or contemplated
hereby.
4.3 Reaffirmation. The terms and conditions of this Second
Amendment and the Trustee's and Beneficiary's rights, powers and remedies
pursuant hereto shall apply to all of the indebtedness secured hereby. Except as
specifically modified herein, the Existing Deed of Trust remains in full force
and effect, and Trustor hereby ratifies and reaffirms the terms
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and provisions of the Deed of Trust and the validity and enforceability thereof
(as if The Westin St. Xxxxxxx Limited Partnership were a party thereto in the
same capacity as The St. Xxxxxxx Hotel Corporation). This Second Amendment is an
amendment to the Existing Deed of Trust and does not constitute a novation of
any of the indebtedness secured hereby.
4.4 Governing Law and Severability. This Second Amendment
shall be governed by and construed in accordance with the internal laws (as
opposed to the conflicts of law provisions) and decisions of the State of
California. Any provision of this Second Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
4.5 Counterparts. This Second Amendment may be executed
(including, without limitation, by way of facsimile) in any number of
counterparts and by different parties hereto and separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same instrument.
Executed signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically
attached to the same document.
4.6 Headings. Section headings in this Second Amendment are
included herein for convenience and reference only and shall not constitute a
part of this Second Amendment for any purpose.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the date first above written.
ST. XXXXXXX HOTEL CORPORATION,
a Delaware corporation, as Trustor
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Its: Vice President
THE WESTIN ST. XXXXXXX LIMITED
PARTNERSHIP, a Delaware limited
partnership, as Trustor
By: St. Xxxxxxx Hotel Corporation,
its General Partner
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Its: Vice President
TEACHER RETIREMENT SYSTEM OF TEXAS,
a public pension fund and an agency
of the State of Texas, as Beneficiary
By: /s/ XXXXXXX X. XXXXXX
------------------------------------------
Its: Loan Administration Manager
[Signature Page 1 of 2 to Second Amendment to Deed of Trust, Financing
Statement, Security Agreement and Fixture Filing (With Assignment of Rents and
Leases)]
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TRANSNATION TITLE INSURANCE
COMPANY, as Trustee
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Its: Vice President
[Signature Page 2 of 2 to Second Amendment to Deed of Trust, Financing
Statement, Security Agreement and Fixture Filing (With Assignment of Rents and
Leases)]
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STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 22nd day of May, 1997, before me personally appeared Xxxxxxx X.
Xxxxxx to me known to be the Vice President of St. Xxxxxxx Hotel Corporation,
the corporation that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said
corporation, for the uses and purposes therein mentioned, and on oath stated
that he was authorized to execute the said instrument, and that the seal
affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ Xxxxxx X. Xxxxx
---------------------------------------------
(Signature)
Xxxxxx X. Xxxxx
NOTARY PUBLIC in and for the
State of Washington, residing at Seattle.
My commission expires: 4/1/99
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 22nd day of May, 1997, before me personally appeared Xxxxxxx X.
Xxxxxx to me known to be the Vice President of St. Xxxxxxx Hotel Corporation,
the corporation that executed the within and foregoing instrument in its
capacity as the sole general partner of The Westin St. Xxxxxxx Limited
Partnership, and acknowledged said instrument to be the free and voluntary act
and deed of said corporation, for the uses and purposes therein mentioned, and
on oath stated that he was authorized to execute the said instrument, and that
the seal affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal the day and year first above written.
/s/ Xxxxxx X. Xxxxx
---------------------------------------------
(Signature)
Xxxxxx X. Xxxxx
NOTARY PUBLIC in and for the
State of Washington, residing at Seattle.
My commission expires: 4/1/99
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STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
On May 23, 1997, before me personally appeared Xxxxxxx X. Xxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her authorized capacity and
that by her signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxxx
Notary Public
State of Texas
Comm. Xxx. 00-00-00
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF KING )
On May 29th, 1997, before me personally appeared Xxxxxx X. Xxxxxxxxx,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity and that
by his signature on the instrument the person, or the entity upon behalf of
which the person acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxx X. XxXxxxxx
-----------------------------------------
Residing at Bellevue, WA
Commission expires 12/9/97
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EXHIBIT A
The land referred to in this Report is situated in the City and County of San
Francisco, State of California, and is described as follows:
PARCEL 1:
BEGINNING at a point formed by the intersection of the Northerly line of Xxxxx
Street with the Westerly line of Xxxxxx Street; running thence Northerly along
the Westerly line of Xxxxxx Street 275 feet to the corner formed by the
intersection of the Westerly line of Xxxxxx Street with Southerly line of Post
Street; running thence Westerly along the Southerly line of Post Street 192 feet
and 6 inches; thence at a right angle Southerly 137 feet and 6 inches; thence at
a right angle Westerly 22 feet and 8-1/4 inches; thence at a right angle
Southerly 137 feet and 6 inches to the Northerly line of Xxxxx Street; thence
running Easterly along the Northerly line of Xxxxx Street 215 feet and 2-1/4
inches to the point of beginning.
BEING a portion of 00 Xxxx Xxxxx Xx. 000.
PARCEL 2:
BEGINNING at a point on the Northerly line of Xxxxx Street, distant thereon 215
feet and 2-1/4 inches Westerly from the Westerly line of Xxxxxx Street, as said
Street lines and all other Street lines hereinafter mentioned are positioned
according to the "Monument Map of the Fifty Vara District of the City and County
of San Francisco", filed January 7, 1910, in Map Book "G" at Page 151, in the
Office of the Recorder of the City and County of San Francisco, State of
California; running thence Westerly along said line of Xxxxx Street 60 feet and
2-1/4 inches to a point thereon, said point being 137 feet 10-1/2 inches
Easterly from the Easterly line of Xxxxx Street; thence at a right angle
Northerly 137 feet 6 inches; thence at a right angle Westerly 27 feet and 10-1/2
inches; thence at a right angle Northerly 137 feet and 6 inches to the Southerly
line of Post Street; thence at a right angle Easterly along said line of Post
Street 110 feet and 9 inches; thence at a right angle Southerly 137 feet and 6
inches; thence at a right angle Westerly 22 feet and 8-1/4 inches; thence at a
right angle Southerly 137 feet and 6 inches to the point of beginning.
EXCEPTING THEREFROM that portion thereof described as follows:
BEGINNING at a point on the Northerly line of Xxxxx Street, distant thereon 275
Westerly from the Westerly line of Xxxxxx Street; running thence Westerly along
said line of Xxxxx Street 4-1/2 inches; thence at a right angle Northerly 137
feet 6 inches; thence at a right angle Easterly 4-1/2 inches; thence at a right
angle Southerly 137 feet 6 inches to the point of beginning.
BEING a portion of 00 Xxxx Xxxxx Xx. 000.
Assessor's Xxx 0 xxx 00, Xxxxx 000.
00
00
Xxxxxxxx known address: Union Square
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
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