<PAGE>
Securities and Exchange Commission
Washington, D.C. 20549
Form 10-K/A
[X] Annual Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the fiscal year ended December 31, 1995
OR
[_] Transition Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Commission File Number: 0-14381
--------
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP
---------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 52-1436985
- ----------------------------------------- -----------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10400 Fernwood Road
Bethesda, Maryland 20817
- ----------------------------------------- -----------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 301-380-2070
Securities registered pursuant to Section 12(b) of the Act:
Not Applicable
Securities registered pursuant to Section 12(g) of the Act:
Units of Limited Partnership Interest
-------------------------------------
(Title of Class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months and (2) has been subject to such filing requirements for
the past 90 days: Yes ___ No ___ (Not Applicable). On August 25, 1992, the
Registrant filed an application for relief from the reporting requirements of
the Securities Exchange Act of 1934 pursuant to Section 12(h) thereof. Because
of the pendency of such application, the Registrant was not required to, and did
not, make any filings pursuant to the Securities Exchange Act of 1934 from
October 23, 1989 until the application was voluntarily withdrawn on November 19,
1996.
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ] (Not Applicable)
Documents Incorporated by Reference
None
<PAGE>
PART IV
ITEM 14. EXHIBITS, SUPPLEMENTAL FINANCIAL STATEMENT SCHEDULES, AND
REPORTS ON FORM 8-K
(a) List of Documents Filed as Part of This Report
(1) Financial Statements
All financial statements of the registrant as set forth under Item
8 of this Report on Form 10-K.
(2) Financial Statement Schedules
The following financial information is filed herewith on the pages
indicated.
III. Real Estate and Accumulated Depreciation
All other schedules are omitted because they are not applicable or the
required information is included in the consolidated financial statements or
notes thereto.
(3) EXHIBITS
Exhibit # Description
--------- -----------
2.a. Purchase Agreement between Airline Foods, Inc. and Marriott
Hotel Properties Limited Partnership dated November 27, 1985,
to acquire the 99% limited partner interest in the
Partnership. Incorporated by reference from Exhibit 2a. of
the amended registration statement on Form 10 dated September
29, 1986.
2.b. Purchase Agreement between Airline Foods, Inc. and Marriott
Hotel Properties Limited Partnership dated November 27, 1985,
to acquire the 99% limited partner interest in the Warner
Center Partnership. Incorporated by reference from Exhibit
2b. of the amended registration statement on Form 10 dated
September 29, 1986.
2.c. Purchase Agreement between Host International, Inc. and
Marriott Hotel Properties Limited Partnership dated November
27, 1985, to acquire a 49% interest in the Harbor Beach
Partnership. Incorporated by reference from Exhibit 2c. of
the amended registration statement on Form 10 dated September
29, 1986.
2.d. Notice of Trustee's Sale dated October 22, 1993, to foreclose
and sell the Warner Center Hotel.
3.a Amended and Restated Agreement of Limited Partnership of
Marriott Hotel Properties Limited Partnership dated November
27, 1985. Incorporated by reference from Exhibit 3a. of the
amended registration statement on Form 10 dated September 29,
1986.
3.b. Amended and Restated Partnership Agreement of Lauderdale
Beach Association dated July 1, 1986. Incorporated by
reference from Exhibit 3c. of the 1986 Form 10-K.
- 2 -
<PAGE>
3. c. Certificate of Incorporation and By-Laws of Marriott Orlando
Capital Corporation dated April 30, 1987. Incorporated by
reference from Exhibit 3d. of the 1987 Form 10-K.
10.a. Management Agreement between Marriott Hotel Properties
Limited Partnership and Marriott Hotels, Inc. dated October
25, 1985. Incorporated by reference from Exhibit 10a. of the
amended registration statement on Form 10 dated September
29, 1986.
10.b. Lease between Lauderdale Beach Association and Marriott
Hotels, Inc. dated October 26, 1984, subsequently assigned
to Marriott Hotel Services, Inc. on January 1, 1985.
Incorporated by reference from Exhibit 10c. of the amended
registration statement on Form 10 dated September 29, 1986.
10.c. Letter dated June 16, 1987, between Marriott Hotels, Inc.,
Marriott Hotel Properties Limited Partnership and The Sanwa
Bank Limited, amending Exhibit 10.a. Incorporated by
reference from Exhibit 10d. of the 1987 Form 10-K.
10.d. Assignment and Assumption of Lease Agreement dated April 28,
1993 between Holiday Hotel Corporation, Poinsettia
Corporation, Lubbock Corporation and The Northwestern Mutual
Life Insurance Company. Ground Lease Agreement between
Holiday Hotel Corporation, Poinsettia Corporation, Lubbock
Corporation and Cavendish Properties, Inc., dated November
30, 1981, and amendments dated January 30, 1982, December
21, 1982 and June 30, 1986, respectively. Assignment of
Lease dated January 30, 1982, between Cavendish Properties,
Inc. and Lauderdale Beach Association.
10.e. Intentionally Omitted.
10.f. Amended and Restated Loan Agreement between Marriott Hotel
Properties Inc. and Marriott Hotel Properties Limited
Partnership dated April 9, 1991.
10.g. Loan Agreement between Marriott Properties, Inc. and
Marriott Hotel Properties Limited Partnership dated April
17, 1991, and amendments thereto dated December 31, 1991 and
June 1, 1992, respectively.
10.h. Amended and Restated Term Loan Agreement between Lauderdale
Beach Association and Aetna Life Insurance Company dated
July, 1, 1993.
10.i. Loan Agreement between Marriott International Capital
Corporation and Lauderdale Beach Association dated July 21,
1994.
10.j. Amended and Restated Term Loan Agreement between Marriott
Hotel Properties Limited Partnership and The Sanwa Bank
Limited dated June 16, 1995.
27. Financial Data Schedule (Previously Filed).
(b) REPORTS ON FORM 8-K
No reports on Form 8-K were filed during 1995.
- 3 -
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of Section 13 or 15 (d) of the Securities
Exchange Act of 1934, the registrant has duly caused this Form 10-K to be signed
on its behalf by the undersigned, thereunto duly authorized, on December 19,
1996.
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP
By: HOTEL PROPERTIES MANAGEMENT, INC.
General Partner
By: /s/ Bruce F. Stemerman
----------------------
Bruce F. Stemerman
President, Chief Accounting Officer and Treasurer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on December 19, 1996.
Signature Title
- --------- -----
(HOTEL PROPERTIES MANAGEMENT, INC.)
/s/ Bruce F. Stemerman President, Chief Accounting Officer and
- ---------------------------- Treasurer
Bruce F. Stemerman (Principal Executive Officer and
Principal Accounting Officer)
/s/ Robert E. Parsons, Jr. Vice President and Director
- ---------------------------- (Principal Financial Officer)
Robert E. Parsons, Jr.
/s/ William E. Einstein Vice President and Director
- ----------------------------
William E. Einstein
/s/ Christopher G. Townsend Vice President, Director and Secretary
- ----------------------------
Christopher G. Townsend
- 4 -
<PAGE>
EXHIBIT 2.D.
<PAGE>
Trustee's No. 761179
9325799-44
WHEN RECORDED MAIL TO:
FIRST AMERICAN TITLE GUARANTY COMPANY
ATTENTION: MELINDA ZABROSKI
1850 MT. DIABLO BLVD., SUITE 300
WALNUT CREEK, CALIFORNIA 94596
- --------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
NOTICE OF TRUSTEE'S SALE
On November 17, 1993 at 10:30 a.m. ______________________________
---------------------------- ------------
First American Title Insurance Company as Trustee,
- ---------------------------------------------------------------------
or Successor Trustee or Substituted Trustee, of that certain Deed of Trust
executed by WARNER CENTER MARRIOTT HOTEL LIMITED PARTNERSHIP, a Delaware limited
---------------------------------------------------------------------
partnership , and recorded March 25, 1985
- ----------------------------------- ------------------------------
as Instrument No. 85-321309 , in Book n/a , Page n/a ,
-------------------------- ---------- ---------
of Official Records of Los Angeles County, California, and
---------------------------------
pursuant to that certain Notice of Default thereunder recorded July 16, 1993
------------------
as Instrument No. 93 1369254 , in Book n/a , Page n/a ,
----------------------- ----------- -------------
of Official Records of said County, will under and pursuant to said Deed of
Trust sell at public auction for cash, lawful money of the United States of
America, a cashier's check payable to said Trustee drawn on a state or national
bank, a check drawn by a state or federal credit union, or a check drawn by a
state or federal savings and loan association, or savings bank specified in
section 5102 of the Financial Code and authorized to do business in this state,
at the entrance to Agency Sale and Posting, 107 W. Huntington Drive, Suite C,
- --------------------------------------------------------------------------------
Arcadia
- --------------------------------------------------------------------------------
___________________________________________________________, California
(INSERT THE STREET ADDRESS, AND THE SPECIFIC PLACE AT SUCH ADDRESS WHERE THE
SALE WILL BE CONDUCTED) all that right, title and interest conveyed to and now
held by it under said Deed of Trust in the property situated in said County and
State described as:
FOR COMPLETE LEGAL DESCRIPTION SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART
HEREOF
FOR COMPLETE PERSONAL PROPERTY SEE EXHIBIT "B" ATTACHED HERETO AND MADE A PART
HEREOF
APN: 2146-006-034, 2146-006-039, 2146-006-041
(Check one of the following)
( X ) The street address or other common designation of said property: 21850
----------
Oxnard Street, Woodland Hills, CA 91367
--------------------------------------------------------------------------
( ) Name and address of the beneficiary at whose request the sale is being
conducted: _______________________________________________________________
Directions to the above property may be obtained by requesting same in
writing from the beneficiary within 10 days from the first publication of
this notice.
Said sale will be made without covenant or warranty, express or implied, as to
title, possession or encumbrances to satisfy the unpaid balance due on the note
or notes secured by said Deed of Trust, to wit: $ 52,085,830.22 , plus the
-------------------
following estimated costs, expenses and advances at the time of the initial
publication of this Notice of Sale:
Foreclosure Costs: $30,957.00
Attorney's Fees: $6,625.57
NOTICE TO PROPERTY OWNER
YOU ARE IN DEFAULT UNDER A DEED OF TRUST, DATED March 25,1985 .
---------------------------
UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC
SALE. IF YOU NEED AN EXPLANATION OF THE NATURE OF THE PROCEEDING AGAINST YOU,
YOU SHOULD CONTACT A LAWYER.
DATED: October 22, 1993 First American Title Insurance Company
------------------------------------------------
(TRUSTEE'S NAME OR OTHER PERSON CONDUCTING SALE)
1850 Mt. Diablo Blvd., Suite 300
------------------------------------------------
(STREET ADDRESS)
Walnut Creek, California 94596
------------------------------------------------
(510) 937-1108
------------------------------------------------
(TELEPHONE NUMBER)
First American Title Insurance Company,
a California corporation
BY: /s/ Melinda Zabroski
---------------------------------------------
Melinda Zabroski, Assistant Secretary
<PAGE>
EXHIBIT "A"
A leasehold as created by that certain lease dated December 15, 1982, by and
between Warner Properties III, a California general partnership, as Lessor, and
Marriott Corporation, a Delaware corporation, as Lessee, as disclosed by Short
Form of Lease recorded March 25, 1985 as Instrument No. 85-321307, upon and
subject to all of the provisions therein contained.
The lessee's interest in said lease was assigned to Warner Center Marriott
Hotel Limited Partnership, a Delaware limited partnership, recorded March 25,
1985 as Instrument No. 85-321307.
A document which modified the terms of said lease as therein provided was
recorded March 25, 1985 as Instrument No. 85-321307.
PARCEL A:
Marriott Land Parcel:
Those portions of Lots 1, 2 and 4 of Tract 32674, in the city of Los Angeles, as
per map recorded in Book 1022 Pages 89 to 91 inclusive of Maps, in the office of
the county recorder of said county, described as follows:
Beginning at the Southwesterly corner of said Lot 1; thence along the Westerly
line of said Lot 1, North 0 degrees 00'02" West 406.20 feet to the beginning of
a tangent curve shown on said map as being concave Southeasterly and having a
radius of 20.00 feet in the boundary of said Lot 1; thence Northeasterly along
said curve through a central angle of 90 degrees 00'36", a distance of 31.42
feet to the beginning of a reverse curve shown on said map as being concave
Northerly and having a radius of 1250.00 feet in the Northerly line of said Lot
1; thence Easterly along said reverse curve through a central angel of 1 degree
13'51", a distance of 26.85 feet to the Westerly terminus of that certain course
shown on said map as having a bearing and length of North 88 degrees 46'43" East
300.09 feet in said Northerly line of Lot 1; thence along said last mentioned
certain course, North 88 46'43" East 300.09 feet to the beginning of a tangent
curve shown on said map as being concave Southerly and having a radius of
1150.00 feet in said Northerly line of Lot 1;
Thence Easterly along said last mentioned curve through a central angel of 0
degrees 24'08", a distance of 8.07 feet to a point, a radial of said curve to
said point bears North 0 degrees 49'09" West' thence leaving said Northerly
line, along a line which is parallel with that certain course shown on said map
as having a bearing and length of North 0 degrees 00'58" East 225.00 feet in the
Easterly boundary of said Lot 1, South 0 degrees 00'58" West 52.87 feet to the
beginning of a tangent curve concave Northeasterly and having a radius of 12.50
feet; thence Southeasterly along said last mentioned curve through a central
angel of 52 degrees 33'59", a distance of 11.47 feet to the beginning of a
reverse curve concave Southwesterly and having a radius of 13.00 feet; thence
Southeasterly along said reverse curve through a central angle of 52 degrees
33'59", a distance of 11.93 feet to its point of tangency with a line parallel
with above mentioned certain course having a bearing and length of North 00
degrees 00'58" East 225.00 feet;
Thence along said parallel line, South 0 degrees 00'58" West 64.17 feet to the
beginning of a tangent curve concave Northwesterly and having a radius of 13.00
feet; thence Southwesterly along said last mentioned curve through a central
angel of 52 degrees 33'59", a distance of 11.93 feet to the beginning of a
reverse curve concave Southeasterly and having a radius of 12.50 feet; thence
Southwesterly along said last mentioned curve through a central angle of 52
degrees 33'59", a distance of 11.47 feet to its point of tangency with a line
parallel with above mentioned certain course having a bearing and length of
North 0 degrees 00'58" East 225.00 feet; thence along said last mentioned
parallel line, South 0 degrees 00' 58" West 49.95 feet to the beginning of a
tangent curve concave Northeasterly and having a radius of 19.50 feet; thence
Southeasterly along said last mentioned curve through a central angle of 45
degrees 00'00", a distance of 15.32 feet to its point of tangency with a
straight line which bears North 44 degrees 59'02" West from the Southerly line
of said Lot 2, at a point, said point of tangency hereafter referred to as
"Point A" distant thereon,
<PAGE>
South 89 degrees 59'02" East 22.08 feet from the Southwesterly corner of said
Lot 2;
Thence along said straight line and its Southeasterly prolongation, South 44
degrees 59'02" East 96.19 feet to the beginning of a curve concave
Southwesterly, having a radius of 20.50 feet, tangent to said last mentioned
course and tangent at its Southerly terminus to a line parallel with and 32.50
feet Easterly, measured at right angles, from that certain course shown on said
map as having a bearing and length of North 0 degrees 00'58" East 179.52 feet in
said Easterly boundary of Lot 1; thence Southeasterly along said last mentioned
curve through a central angle of 45 degrees 00'00", a distance of 16.10 feet to
said last mentioned parallel line; thence along said last mentioned parallel
line, South 0 degrees 00'58" West 108.84 feet; thence at right angles to said
last mentioned parallel line, North 89 degrees 59'02" West 3.50 feet to the
beginning of a tangent curve concave Southeasterly and having a radius of 11.50
feet; thence southwesterly along said last mentioned curve through a central
angle of 90 degrees 00'00", a distance of 18.06 feet to its point of tangency
with a line parallel with above mentioned certain course having a bearing and
length of North 0 degrees 00'58" East 179.52 feet; thence along said last
mentioned parallel line, South 0 00'58" West 9.00 feet to the Easterly
prolongation of the Southerly line of said Lot 1; thence along said Easterly
prolongation and Southerly line, North 89 degrees 59'02" West 419.56 feet to the
point of beginning.
PARCEL A-1:
An easement for driveway purposes over a portion of Lot 4 of said Tract 32674,
in the city of Los Angeles, as per map recorded in Book 1022 Pages 89 to 91
inclusive of Maps, in the office of the county recorder of said county,
described as follows:
Beginning at a point on the Easterly prolongation of the Northerly line of Lot 5
of said Tract that is 66.00 feet Easterly of the Northeast corner of said Lot 5;
thence parallel with the Easterly line of said Lot 5, South 00 degrees 00'58"
West, 14.00 feet to the beginning of a tangent curve concave Northeasterly and
having a radius of 10.00 feet; thence Southeasterly along said curve through a
central angle of 82 degrees 24'53", an arc distance of 14.38 feet; thence
parallel with said Easterly line, South 00 degrees 00'58" West, 130.44 feet;
thence South 45 degrees 00'58" West, 6.65 feet; thence South 44 degrees 59'02"
East 23.48 feet; thence South 45 degrees 00'58" West 4.74 feet to the beginning
of a tangent curve concave Southeasterly and having a radius of 35.00 feet;
thence Southwesterly along said curve, through a central angle of 45 degrees
00'00", an arc distance of 27.49 feet; thence South 00 degrees 00'58" West, 5.00
feet to the Southerly line of said Lot 4; thence along said Southerly line,
North 89 degrees 59'02" West 51.00 feet to a line that is parallel with, and
3.00 feet Easterly, measured at right angles, from said Easterly line of Lot 5;
thence along said parallel line, North 00 degrees 00'58" East, 82.00 feet to the
beginning of a tangent curve concave Southwesterly and having a radius of 10.00
feet; thence Northwesterly along said curve through a central angle of 45
degrees 34'23", an arc distance of 7.95 feet to said Easterly line; thence along
said line, North 00 degrees 00'58" East 48.72 feet to the beginning of a curve
concave Northwesterly, having a radius of 10.00 feet and being tangent at its
ending to said previously mentioned parallel line; thence Northeasterly along
said curve through a central angle of 45 degrees 34'23" an arc distance 7.95
feet to said parallel line; thence along said line, North 00 degrees 00'58" East
63.75 feet to a point on said Easterly prolongation of the Northerly line of Lot
5; thence along said Easterly prolongation, South 89 degrees 59'02" East, 29.02
feet to a point which is 15.00 feet Westerly thereon from the point of
beginning; thence parallel with said Easterly line of Lot 5, North 0 00'58"
East, 9.00 feet to the beginning of a curve concave Southeasterly and having a
radius of 11.50 feet; thence Northeasterly along said curve through a central
angle of 90 degrees 00'00", an arc distance of 18.06 feet; thence South 89
degrees 59'02" East, 3.50 feet; thence South 0 00'58: West, 20.50 feet to the
point of beginning.
PARCEL A-2:
An easement for an overhead walkway, 20 feet, more or less, above that certain
driveway easement described as "Exhibit B" in document recorded on July 23, 1987
as Instrument No. 87-1169000, within Lot 2 of said Tract 32674, but excluding
any portion within Marriott Land Parcel described herein; described as follows:
Beginning at Point "A", as defined in said Marriott Land Parcel; thence North 2
15'19" West, 13.35 feet to the true point of beginning, said point also being
referred to as Point "B"; thence
<PAGE>
North 44 58'13" East, 41.30 feet; thence North 0 degrees 01'47" West,
4.37 feet; thence South 45 00'52" East 67.07 feet; thence North 89
degrees 58'13" West 50.99 feet; thence South 30 degrees 03'00" West 87.83 feet;
thence South 0 degrees 00'24" West 135.36 feet, more or less, to a point on the
Southerly line of said Lot 1 of said Tract 32674; thence North 89 degrees 59'02"
West along said Southerly line 8.35 feet; thence North 0 degrees 00'24" East,
129.50 feet; thence North 44 degrees 55'57" West, 131.90 feet; thence North 44
degrees 58'13" East 8.33 feet; thence South 44 55'57" East 5.85 feet;
thence North 89 degrees 42'37" East, 109.84 feet, more or less to the true point
of beginning.
EXCEPT therefrom that portion described as follows:
Beginning at the aforementioned Point "B"; thence South 12 degrees 55'26" East,
14.19 feet, to the true point beginning; thence South 45 degrees 00'52" East
9.97 feet; thence South 30 03'00" West 64.89 feet; thence South 89 58'13" West
10.93 feet; thence North 44 degrees 55'57" West 69.47 feet; North 45 degrees
04'03" East 19.83 feet; thence North 89 58'13" East, 71.40 feet, to the true
point of beginning.
PARCEL A-3:
Easements for 3 support columns having a diameter of 4.00 feet, within Lot 2 of
said Tract 32674, the centers of which are described as follows:
Column No. 1:
Beginning at the above mentioned Point "A"; thence North 73 degrees 08'49"
East 22.72 feet.
Column No. 2:
Beginning at the above mentioned Point "A"; thence North 82 degrees 58'12" East
53.62 feet.
Column No. 5:
Beginning at the above mentioned Point "A"; thence North 46 degrees 38'54" East
42.32 feet.
PARCEL A-4:
An easement for parking to Lots 4 and 5 of Tract 32674, in the city of Los
Angeles, as per map recorded in Book 1022 Pages 89 to 91 inclusive of Maps, in
the office of the county recorder of said county, being more particularly
described as follows:
Lot 5 of Tract 32674, in the city of Los Angeles, as per map recorded in Book
1022 Pages 89 to 91 inclusive of Maps, in the office of the county recorder of
said county, together with that portion of Lot 4 of said tract that lies
Westerly of a line parallel with and 18.98 feet Easterly, measured at right
angles, from the Westerly line of said Lot 4.
<PAGE>
EXHIBIT "B"
PERSONAL PROPERTY EXHIBIT
All right, title and interest of Debtor in and to all buildings, improvement,
equipment, machinery, fixtures, fittings, appliances, apparatus, furnishings,
furniture and all other property of every kind and description and any
replacements thereof or additions thereto now or at any time appurtenant to or
located upon the Property, and all right, title and interest of Debtor in and to
all personal property of every kind and description now or at any time hereafter
located on or appurtenant to the Property and used in connection with the use,
enjoyment, occupancy or operation of the Property. Without limiting the general
description set forth above, such property shall include all equipment and
facilities for the generation or distribution of air, water, heat, electricity,
light, fuel or refrigeration, or for ventilation or air conditioning purposes or
for sanitary drainage purposes or for the removal of dust, refuse or garbage, or
for the operation of any restaurant or other food preparation facility, or for
the operation of any gift or souvenir shop or other sales activity, or for the
operation of any barber shop, hair, beauty or nail salon, or for the storage of
any valuables, or for the operation of any laundry, dry cleaning, shoe shine or
other personal services activity, or for the storage, maintenance or repair of
any motor vehicle, van or bus owned, leased or used by Debtor, or for any
activity related to the maintenance or repair of the Property, or for any
laundry or cleaning facility related to the provision of clean sheets, towels or
other linen, or for any and all other facilities and activities related to the
operation of the Property as a hotel and related facilities, or for the pursuit
of any other activity in which Debtor may be engaged on the Property, and
including without limitation cabinets, awnings, window shades, Venetian blinds,
drapes and drapery robs and brackets, screens, carpeting and other window and
floor coverings, decorative fixtures, plants, beds, tables, chairs, lamps,
dressers, desks, bureaus, headboards or other room furnishings, sheets, towels,
blankets, bedspreads or other linen, swimming pools, jacuzzi, spas, hot tubs,
tennis and paddle tennis courts and equipment, weights or exercise equipment,
lockers, cleaning apparatus, chambermaid carts and room cleaning equipment,
amplifiers, microphones, pianos or other equipment or instruments for the
presentation of live or recorded entertainment, televisions, radios,
phonographs, audio and video tape recorders and players, silverware, plates,
dishes, cups, glasses and other tableware, refrigeration equipment, stoves,
ovens, grills, pots, pans and other cooking and food serving equipment, motor
vehicles, vans and buses, tractors, lawnmowers, ground sweepers and tools,
together with all substitutions, accessions, repairs, additions and replacements
to any of the foregoing.
Accounts Receivable:
Any right of Debtor arising from the operation of the Property, to payment
for goods sold or leased or for services rendered, whether or not yet earned by
performance, not evidenced by an instrument of chattel paper, including without
limiting the generality of the foregoing, (i) all accounts arising from the
operation of the Property and (ii) all rights to payment from any consumer
credit/charge card organization or entity of (such as or similar to the
organization or entities which sponsor and administer the American Express Card,
the Visa Card, the Carte Blanche Card and the MasterCard Card), together with
those accounts now existing or hereafter created, substitutions therefor,
proceeds thereof (whether cash or non-cash, moveable or immoveable, tangible or
intangible) received upon the sale, exchange, transfer, collection or other
disposition or substitution thereof and any or all of the foregoing and proceeds
therefrom.
Permits:
All of the right, title and interest of Debtor in and to all
authorizations, licenses and permits concerning the use and operation of the
Property as a hotel and related facilities, including but not limited to all
permits and licenses with respect to the sale of food and beverages (except
liquor licenses).
ACCOUNTS:
BANK OF AMERICA ACCOUNT NUMBERS:
<PAGE>
The following list of Accounts is not necessary inclusive:
00991-16106
00998-15684
00990-15683
12015-02824
12017-12605
12015-12606
all water stock relating to the Real Property, shares of stock or other
evidence of ownership of any part of the Real Property that is owned by Trustor
in common with others, and all documents of membership in any owners' or
members' association or similar group having responsibility for managing or
operating any part of the Real Property:
all plans and specifications prepared for construction of the Improvements
and all studies, data and drawings related thereto; and also all contracts and
agreements of Trustor relating to the aforesaid plans and specifications or to
the aforesaid studies, data and drawings, or to the construction of the
Improvements;
all equipment, machinery, fixtures, goods, accounts, general intangibles,
documents, instruments and chattel paper, and all other personal property of
every kind and description;
all substitutions and replacements of, and accessions and additions to, any
of the foregoing;
all sales agreements, deposit receipts, escrow agreements and other
ancillary documents and agreements entered into with respect to the sale to any
purchasers of any part of the Real Property of any buildings or structures on
the Real Property, together with all deposits and other proceeds of the sale
thereof;
all monies from time to time on deposit in Trustor's special disbursement
account no. 193-5051, Mellon Bank, One Mellon Bank Center, Pittsburgh,
Pennsylvania 15258, and all reserves, deferred payments, deposits, refunds, cost
savings and payments of any kind relating to the construction of any
Improvements; and
all proceeds of any of the foregoing, including, without limitation,
proceeds of any voluntary or involuntary disposition or claim respecting any
thereof (pursuant to judgment, condemnation award or otherwise) and all goods,
documents, general intangibles, chattel paper and accounts, wherever located,
acquired with cash proceeds of any of the foregoing or proceeds thereof.
<PAGE>
[******************] Company hereby
certifies that [******] instrument
Order No. 761179mz is a true and correct copy of the
Escrow No. 9325799-44 original instrument recorded in the
Loan No. office of the recorder of the County
of Los Angeles, State of California
WHEN RECORDED MAIL TO: on July 16, 1993
...................................
FIRST AMERICAN TITLE GUARANTY COMPANY Recorder's Serial No. 931369254
.................
1850 MT. DIABLO BLVD., SUITE 300
WALNUT CREEK, CALIFORNIA 94596 FIRST AMERICAN TITLE GUARANTY COMPANY
ATTENTION: MELINDA ZABROSKI
By /s/ Beta Snow
...................................
- --------------------------------------------------------------------------------
SPACE ABOVE THIS LINE FOR RECORDER'S USE
THE DATE THIS NOTICE OF DEFAULT RECORDED WAS JULY 16, 1993 AS INSTRUMENT NUMBER
93 1369254 OF OFFICIAL RECORDS
NOTICE OF DEFAULT
IMPORTANT NOTICE
IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS, IT
MAY BE SOLD WITHOUT ANY COURT ACTION, and you may have the legal right to bring
your account in good standing by paying all of your past due payments plus
permitted costs and expenses within the time permitted by law for
reinstatement of your account, which is normally five business days prior to the
date set for the sale of your property. No sale date may be set until three
months from the date this notice of default may be recorded (which date of
recordation appears on this notice).
This amount is $444,563.30 as of July 16, 1993 , and will
---------------------- ------------------------
(Date)
increase until your account becomes current. While your property is in
foreclosure, you still must pay other obligations (such as insurance and taxes)
required by your note and deed of trust or mortgage. If you fail to make future
payments on the loan, pay taxes on the property, provide insurance on the
property, or pay other obligations as required in the note and deed of trust or
mortgage, the beneficiary or mortgagee may insist that you do so in order to
reinstate your account in good standing. In addition, the beneficiary or
mortgagee may require as a condition to reinstatement that you provide reliable
written evidence that you paid all senior liens, property taxes, and hazard
insurance premiums.
Upon your written request, the beneficiary or mortgagee will give you a written
itemization of the entire amount you must pay. You may not have to pay the
entire unpaid portion of your account even though full payment was demanded, but
you must pay all amounts in default at the time payment is made. However, you
and your beneficiary or mortgagee may mutually agree in writing prior to the
time the notice of sale is posted (which may not be earlier than the end of the
three-month period stated above) to, among other things, (1) provide additional
time in which to cure the default by transfer of the property or otherwise; or
(2) establish a schedule of payment in order to cure your default; or both (1)
and (2).
Following the expiration of the time period referred to in the first paragraph
of this notice, unless the obligation being foreclosed upon or a separate
written agreement between you and your creditor permits a longer period, you
have only the legal right to stop the sale of your property by paying the entire
amount demanded by your creditor.
To find out the amount you must pay, or to arrange for payment to stop the
foreclosure, or if your property is in foreclosure for any other reason,
contact:
Connecticut General Life Insurance Company
c/o Cigna Corporation Investment Law Dep't S-21
-------------------------------------------
(Name of Beneficiary or Mortgagee)
900 Cottage Grove Road
-------------------------------------------
(Mailing Address)
Bloomfield, CT 06002
-------------------------------------------
(203) 726-5919
-------------------------------------------
(Telephone)
Attention: Theresa E. Packard
If you have any questions, you should contact a lawyer or the governmental
agency which may have insured your loan.
Notwithstanding the fact that your property is in foreclosure, you may offer
your property for sale, provided the sale is concluded prior to the conclusion
of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION.
<PAGE>
NOTICE OF DEFAULT
NOTICE IS HEREBY GIVEN: That First American Title Insurance Company*
--------------------------------------------------,
a corporation, is duly appointed Trustee under a Deed of Trust dated March 25,
-----------
1985
- -------------------------------------------------------------------------------,
executed by WARNER CENTER MARRIOTT HOTEL LIMITED PARTNERSHIP, a Delaware limited
--------------------------------------------------------------------
partnership
- --------------------------------------------------------------------------------
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
____________________________________________________________________ as Trustor,
in favor of Connecticut General Life Insurance Company, a Connecticut
--------------------------------------------------------------------
corporation
- --------------------------------------------------------------------------------
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________ as Beneficiary,
recorded March 25, 1985 as instrument no. 85-321309
------------------, ---------------------------------,
in book __________________________, page ___________________________________, of
Official Records in the Office of the County Recorder of Los Angeles
-----------------------
County, California, securing, among other obligations, one note(s) for the
------
principal sum of $ 47,000,000.00** that the
- ---------------------- --------------------------------;
beneficial interest under such Deed of Trust and the obligations secured thereby
are presently held by the undersigned; that a breach of, and default in, the
obligations for which such Deed of Trust is security has occurred in that
payment has not been made of: (1) Installment in the amount of $ 412,500.00
--------------------------------------------------
which became due July 1, 1993, plus subsequent installments that became due (2)
- --------------------------------------------------------------------------------
Late charge in the amount of $28,875.00 which became due July 6, 1993, plus
- --------------------------------------------------------------------------------
subsequent late charges that became due (3) Default Rate Interest in the
- --------------------------------------------------------------------------------
aggregate amount of $1,088.30 plus subsequent Default Rate Interest that becomes
- --------------------------------------------------------------------------------
due (4) Attorneys fees, foreclosure fees and additional foreclosure costs which
- --------------------------------------------------------------------------------
have been incurred and will continue to accrue (5) Payment into the Debt Service
- --------------------------------------------------------------------------------
Account of Cash Flow for Accounting Period 5 and a portion of Accounting Period
- --------------------------------------------------------------------------------
6 (as such terms are defined in item #3 as listed below)
- --------------------------------------------------------------------------------
________________________________________________________________________________
________________________________________________________________________________
that by reason thereof, the xxxxxxxxx, present beneficiary under such Deed of
Trust, has executed and delivered to said duly appointed Trustee, a written
Declaration of Default and Demand for Sale, and has deposited with said duly
appointed Trustee, such Deed of Trust and all documents evidencing obligations
secured thereby, and has declared and does hereby declare all sums secured
thereby immediately due and payable and has elected and does hereby elect to
cause the trust property to be sold to satisfy the obligations secured thereby.
FIRST AMERICAN TITLE INSURANCE COMPANY,
DATED: July 16, 1993 a California corporation
---------------------------------------------
* The original Trustee was By: /s/ Melinda Zabroski
Ticor Title Insurance Company ---------------------------------------------
of California, a California Melinda Zabroski, Assistant Secretary
corporation. First American _____________________________________________
Title Insurance Company, a
California corporation was _____________________________________________
substituted as Trustee by
document recorded concurrently _____________________________________________
with this document
_____________________________________________
** Said Note and Deed of Trust are subject to the following Modifications and
Agreements:
1. Modification of Leasehold Deed of Trust dated July 22, 1987 and recorded on
July 23, 1987 as instrument number 87-1168993 of official records
2. Modification of Note, Leasehold Deed of Trust and Assignment of Leases
dated September 10, 1991 and recorded on October 10, 1991 as instrument number
91-1606059 of official records
3. Modification of Note, Leasehold Deed of Trust and Assignment of Leases
dated September 25, 1992 and recorded on September 29, 1992 as instrument number
92-1820779 of official records
CERTAIN PERSONAL PROPERTY ALSO SERVING AS COLLATERAL FOR THE OBLIGATIONS SECURED
BY SAID DEED OF TRUST IS FURTHER DESCRIBED IN SAID DEED OF TRUST. THE REAL
PROPERTY AND THE PERSONAL PROPERTY ARE HEREINAFTER COLLECTIVELY REFERRED TO AS
THE `TRUST PROPERTY'
<PAGE>
EXHIBIT 10.D.
<PAGE>
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE is made as of April 28, 1993, BETWEEN:
HOLIDAY HOTEL CORPORATION, a corporation
incorporated under the laws of the State of
Florida, POINSETTIA CORPORATION, a corporation
incorporated under the laws of the State of
Florida, and LUBBOCK CORPORATION, a corporation
incorporated under the laws of the State of
Texas,
(hereinafter collectively referred to as the
"Landlord")
OF THE FIRST PART,
and
LAUDERDALE BEACH ASSOCIATION, a general
partnership formed under the laws of the State
of Florida,
(hereinafter referred to as the "Tenant"),
OF THE SECOND PART.
WHEREAS:
(A) Pursuant to a lease (the "Lease") made as of November 30, 1981, a
Memorandum of which was recorded December 2, 1981 in Official Records Book 9915,
Page 973, Public Records of Broward County, Florida, the Landlord leased to
Cavendish Properties Inc. ("Cavendish") the Leased Property (as defined in the
Lease) affecting real property located in Broward County, Florida, as described
on Schedule A attached hereto, upon the terms and conditions as therein set
forth;
(B) Pursuant to an Assignment of Lease made as of January 15, 1982, which
was recorded April 2, 1982 in Official Records Book 10115, Page 906, Public
Records of Broward County, Florida, Cavendish assigned the Lease to the Tenant;
(C) The Landlord and the Tenant have executed an Amendment to Lease made
as of January 30, 1982, and an Amendment to Lease made as of December 21, 1982,
as reflected in the Amendment to Lease dated December 21, 1982, recorded in
Official Records Book 10580, Page 143, Public Records of Broward County,
Florida;
5964LREALEST020593 Prepared by: Return to:
E. J. Desautels E. J. Desautels
----------------
Northwestern Mutual Life Northwestern Mutual Life
------------------------
720 East Wisconsin Ave 720 East Wisconsin Ave
----------------------
Milwaukee WI 53202 Milwaukee, WI 53202
<PAGE>
(D) The Landlord and the Tenant have executed an Amendment to Lease dated
June 30, 1986, which was recorded July 1, 1986, Official Records Book 3525, Page
396 of the Public Records of Broward County, Florida; and
(E) The Landlord and the Tenant have agreed to amend the Lease further as
hereinafter set forth.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of the
covenants and agreements contained herein and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereby covenant and agree as follows:
A. Section 5.01 of the Lease is deleted in its entirety, and the
following is substituted therefor:
5.01 Subject to the limitations set forth in Section 5.08, at any
time and from time to time during the term of this Lease, the Tenant may
without the consent of the Landlord, freely grant one or more sub-leases to
third parties, which third parties may also be Affiliates of the Tenant,
covering all or any portion of the Leased Property and any assignment of
such sub-leases or further sub-leasing of all or any portion of such
premises at any level removed from Landlord (all of which are herein
referred to as "Sub-Leases"), which Sub-Leases may be of such form and
substance and may contain such terms and provisions as the Tenant may in
its sole discretion determine. No Sub-Lease shall be for a term of years
beyond the expiration date of this Lease (plus any extension of time
permitted hereunder) and no Sub-Lease shall relieve the Tenant of its
responsibility to pay Basic Rent, Quarterly Basic Rent Installments and
Additional Amounts and to observe and perform all of the Tenant's
obligations hereunder.
B. A new section 5.08 of the Lease is added as follows:
5.08 After December 1, 1992, Tenant may enter into Sub-Leases of
the Leased Property without Landlord's consent only if (i) in the case of a
Sub-Lease of all or any part of the Land, at all times during the term of
the Sub-Lease the sum of rent and other consideration to be received by
Tenant under the Sub-Lease is at least equal to the sum of the Basic Rent
and Additional Amounts to be paid by Tenant under this Lease with respect
to the Land sub-leased, all determined on a square foot of land basis (and
the parties hereby agree that the Land area is 714.519 square feet), except
that Tenant may sub-lease in the aggregate not more than 130,680 square
feet of contiguous land located within the area outlined in red as shown on
Exhibit A attached hereto without regard to the foregoing restrictions, but
nonetheless the rent must be at least equal to the then current market
rates for comparable sites in the market ( and in the event the parties
cannot agree on whether the rent is at least equal to such current market
rates, the dispute shall be submitted to arbitration pursuant to Article 23
hereof, provided, however, that the arbitrators appointed shall be MAI
appraisers), and (ii) in the case of a Sub-Lease of space in the
Improvements, the amount of gross square feet of space proposed to be
leased, together with space then under lease, does not exceed 2,000 gross
square feet of space. All other Sub-Leases require Landlord's consent. All
-2-
<PAGE>
Sub-Leases in existence on December 1, 1992, all Sub-Leases which are
thereafter entered into for which Landlord's consent is not required
hereunder, and all Sub-Leases to which Landlord hereafter consents are
referred to in this section 5.08 as "Permitted Sub-Leases." Any Sub-Lease
which is not within the foregoing definition of Permitted Sub-Leases shall
not be entitled to the benefits of Sections 5.02, 5.03, 5.04 and 5.07,
notwithstanding any language contained within said sections. Any Sub-
Leases, including Permitted Sub-Leases, shall allow Landlord, its agents,
employees, and invitees reasonable access for ingress and egress across the
premises covered by the Sub-Lease.
C. The last paragraph of section 9.01 of the Lease is deleted in its
entirety, and the following is substituted therefor:
If the Improvements existing at the commencement of the Lease are
destroyed or damaged, the proceeds from any insurance in respect thereto
shall be paid to the Tenant. If any other Improvements thereafter existing
on the Leased Property are destroyed or damaged, the proceeds of any
insurance in respect thereto shall be paid in escrow to an escrow bank,
agent or title company to be disbursed to the Tenant upon an architect's
certificate verifying the cost of new Improvements made by the Tenant from
the date of such destruction or damage. Subject to the terms of the Note
and Mortgage Modification and Consolidation Agreement dated June 30, 1986
between Aetna Life Insurance Company and Lauderdale Beach Association,
Tenant shall expeditiously repair or replace all destruction or damage to
the Improvements which occurs prior to December 1, 2022 to the same or
similar condition and of at least equal value as the Improvements that had
been destroyed or damaged, provided that the insurance proceeds referred to
in the immediately preceding sentence are at least equal to the cost of the
new Improvements. Thereafter if the Tenant does not within six months after
such destruction or damage indicate to the Landlord that it proposes to
make such new Improvements and thereafter proceed expeditiously to cause
such new Improvements to be made, the proceeds of insurance shall
thereafter be disbursed to the Landlord and the Tenant, as their interests
may appear. In the event the parties cannot agree on the division of the
proceeds, the dispute shall be submitted to arbitration pursuant to Article
23 hereto, provided, however, that the arbitrators appointed shall be MAI
appraisers.
D. The first paragraph of section 12.01 of the Lease is deleted in its
entirety, and the following is substituted therefor:
12.01 Mortgage, etc. -- Subject to the limitations set forth in Section
-------------
5.08, the Tenant's interest in the Lease may from time to time without the
Landlord's consent, be mortgaged, hypothecated, encumbered, assigned,
subleased, or otherwise transferred in whole or in part, by the Tenant or
by operation of law, merger, consolidation or otherwise. Any assignment of
this Lease shall be evidenced in writing, duly executed and acknowledged by
the assignee and duly recorded in the office of the Clerk of the Circuit
Court, Broward County, Florida, whereupon and whereby the assignee shall
expressly accept and assume all the terms and covenants in this Lease
contained to be kept and performed by the Tenant, and will comply with and
be bound by them; and the Tenant covenants and agrees that it will not make
any
-3-
<PAGE>
assignment of this Lease, except in the manner as above set forth,
otherwise such assignment shall be absolutely null and void. The assignment
or subleasing of this Lease shall not release the Tenant of liability for
the payment of the rent due under this Lease or other obligations and
duties on its part to be kept and performed hereunder.
E. At the time of execution of this Forth Amendment to Lease Landlord
has refunded to Tenant all security deposits held by Landlord under section
27.01 of the Lease and Tenant acknowledges receipt thereof. Article 27 is hereby
deleted from the Lease and neither Landlord nor Tenant shall have any further
rights or obligations under Article 27 or otherwise under the Lease with respect
to security deposits.
F. Tenant understands that the undersigned Landlord intends to sell the
Leased Property and to assign its interest in the Lease (the "Proposed
Transaction") to The Northwestern Mutual Life Insurance Company
("Northwestern"). Accordingly,
1. Tenant does hereby represent and warrant to the undersigned Landlord
and Northwestern that Tenant is the owner of the leasehold estate under the
Lease and that all of the partners of Tenant are shown in the signature block
for Tenant at the foot of this amendment.
2. Tenant does hereby confirm to the undersigned Landlord and
Northwestern that Tenant has waived all of its rights under Article 25 of the
Lease with respect to the Proposed Transaction;
3. Tenant does hereby represent and warrant to the undersigned Landlord
and Northwestern that attached hereto as Schedule 1 is a true and complete
listing of all of the Subleases (including all amendments and modifications)
affecting the Leased Property and that true and complete copies of all such
items have been delivered by Tenant to the undersigned Landlord and
Northwestern; and
4. Tenant does hereby certify to the undersigned Landlord and
Northwestern that
(a) the Lease, as previously amended as referred to above, is unmodified,
is in good standing and is in full force and effect;
(b) Tenant is not in Default under any of the terms or provisions of the
Lease (as so amended) and there does not exist a state of facts which
upon notice and applicable grace period would constitute an Event of
Default;
(c) Tenant does not know of any offsets or defenses against the
enforcement of any of the provisions of the Lease (as so amended);
(d) the annual Basic Rent due to Landlord is $1,430,000.00 through
November 30, 1994; $1,560,000.00 from December 1, 1994 through
November 30, 1999; $1,716,000.00 from December 1, 1999 through
November 30, 2004, with 10% annual rent increases each five years
thereafter; and
(e) the date to which the Basic Rent, Quarterly Basic Rent
-4-
<PAGE>
Installments and Additional Amounts have been paid in advance is:
May 31, 1993
G. Except as expressly amended hereby, the Lease as previously amended
remains in full force and effect and the parties continue to be bound by all
the provisions thereof and by this Fourth Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
WITNESSES: LANDLORD:
as to Holiday Hotel Corporation HOLIDAY HOTEL CORPORATION, a Florida
corporation
(Sign) /s/ Patricia Ryan By: /s/ C. Tucker Moore
- ------------------------------- ---------------------------------
(Print) Patricia Ryan C. Tucker Moore, Vice President
(Sign) /s/ Patricia Ryan
- -------------------------------
(Print) /s/ Patricia L. Ryan [Corporate Seal]
Name: Patricia L. Ryan
as to Poinsettia Corporation POINSETTIA CORPORATION, a Florida
corporation
(Sign) /s/ Patricia Ryan By: /s/ C. Tucker Moore
- ------------------------------- ---------------------------------
(Print) Patricia Ryan C. Tucker Moore, Vice President
(Sign) /s/ Patricia Lozui
- -------------------------------
(Print) Patricia Lozui [Corporate Seal]
Name: Patricia Lozui
As to Lubbock Corporation: LUBBOCK CORPORATION, a Texas corporation
(Sign) /s/ Patricia Ryan By: /s/ C. Tucker Moore
- ------------------------------- ---------------------------------
(Print) Patricia Ryan C. Tucker Moore, Vice President
(Sign) /s/ Patricia L. Lozui
- -------------------------------
(Print) Patricia L. Lozui [Corporate Seal]
Name: Patricia L. Lozui
Address: 16700 Gulf Boulevard
---------------------------
North Redington Beach, FL 33708
---------------------------
___________________________
-5-
<PAGE>
TENANT:
LAUDERDALE BEACH ASSOCIATION
a Florida general partnership,
By: MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership, a general partner of
Lauderdale Beach Association
By: HOTEL PROPERTIES MANAGEMENT,
INC., a Delaware corporation, a
general partner of Marriott
Hotel Properties Limited
Partnership
(Sign) /s/ T. Edward Middleton By: /s/ Christopher G. Townsend
- ------------------------------ ---------------------------
(Print) T. Edward Middleton Print: Christopher G. Townsend
------------------------
Vice President
--------------
(Sign) /s/ James L. Best
- -------------------------- [Corporate Seal]
(Print) James L. Best
Address: c/o Marriott Corp
-------------------
1 Marriott Drive
-------------------
Dept 924. 11
-------------------
Washington DC 20058
By: R/V-C ASSOCIATION, a Florida
general partnership, a general
partner of Lauderdale Beach
Association
By: R/V ASSOCIATION, a Florida
general partnership, a
general partner of R/V-C
Association
By: RAHN HARBOR, LTD., a
Florida limited
partnership, a general
partner of R/V Associates
By: RAHN HARBOR, INC., a
Florida corporation, a
general partner of Rahn
Harbor, Ltd.
(Sign) /s/ Robert J. Stirk By: /s/ Peter H. Roberts
- -------------------------- ----------------------
(Print) Robert J. Strik (Print): Peter H. Roberts
------------------
__________President
(Sign) /s/ Susan C. Ross
- ------------------------
(Print) Susan C. Ross [Corporate Seal]
Address: 1512 E. BROWARD BLVD. #301
--------------------------
FT. LAUDERDALE,
--------------------------
FLORIDA 33301
--------------------------
-6-
<PAGE>
Consent of Mortgages
The undersigned mortgagee of Tenant's interest in the Lease does hereby
consent to the foregoing amendment.
Witnesses Aetna Life Insurance Company, a
Connecticut corporation
(Sign) /s/ Anne M. Britwood
- -------------------------------
(Print) Anne M. Britwood By: /s/ David J. Ingram
------------------------------------
Print: David J. Ingram
---------------------------------
Vice President
--------------------
(Sign) /s/ Laurie A. Brochu
- -------------------------------
(Print) Laurie A. Brochu
[Corporate seal]
-7-
<PAGE>
CERTIFICATES OF ACKNOWLEDGEMENT
STATE OF Arizona )
) ss:
COUNTY OF Maricopa )
The foregoing instrument was acknowledged before me this 22 day of April ,
1993, by C. Tucker Moore as Vice President of Holiday Hotel Corporation, a
Florida corporation, on behalf of said corporation. He is personally known to
me, or has produced __________________________________________as identification.
(Sign) /s/ Katherine Degraffenreid
----------------------------------
(Print)
NOTARY PUBLIC
My commission expires:_______________ (Notary Public Seal)
STATE OF Arizona )
) ss:
COUNTY OF Maricopa )
The foregoing instrument was acknowledged before me this 22 day of April ,
1993, by C. Tucker Moore as Vice President of Holiday Hotel Corporation, a
Florida corporation, on behalf of said corporation. He is personally known to
me, or has produced __________________________________________as identification.
(Sign) /s/ Katherine Degraffenreid
----------------------------------
(Print)
NOTARY PUBLIC
My commission expires:_______________ (Notary Public Seal)
STATE OF Arizona )
) ss:
COUNTY OF Maricopa )
The foregoing instrument was acknowledged before me this __ day of _____ ,
1993, by C. Tucker Moore as Vice President of Holiday Hotel Corporation, a
Florida corporation, on behalf of said corporation. He is personally known to
me, or has produced __________________________________________as identification.
(Sign) /s/ Katherine Degraffenreid
----------------------------------
(Print)
NOTARY PUBLIC
My commission expires:_______________ (Notary Public Seal)
-8-
<PAGE>
STATE OF Maryland )
) ss:
COUNTY OF Montgomery )
The foregoing instrument was acknowledged before me this 23rd day of April,
1993, by Christopher G. Townsend a Vice President of Hotel Properties
-----------------------
Management, Inc., a Delaware corporation, as a general partner of Marriott Hotel
Properties Limited Partnership, a Delaware limited partnership, as a general
partner of LAUDERDALE BEACH ASSOCIATION, a Florida general partnership. He/she
is personally known to me, or has produced _______________________ as
identification.
(Sign) /s/ Susanne M. Ricci
-------------------------------------
(Print)
NOTARY PUBLIC
My commission expires:________________________ (Notary Public Seal)
STATE OF FLORIDA )
)ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledge before me this 26 day of April,
1993, by Peter H. Roberts as President of Rahn Harbor, Inc., a Florida
corporation, as a general partner of Rahn Harbor, Ltd., a Florida limited
partnership, as a general partner of R/V Associates, a Florida general
partnership, as a general partner of R/V-C Association, a Florida general
partnership, on behalf of LAUDERDALE BEACH ASSOCIATION, a Florida general
partnership. He/she is personally known to me, or has produced
__________________ as identification.
(Sign) /s/ Carol J. Gardina
---------------------------------------
(Print) CAROL J. GARDINA
My commission expires: (Notary Public Seal)
STATE OF CONNECTICUT )
) ss: Hartford
COUNTY OF HARTFORD )
The foregoing instrument was acknowledged before me this 27 day of April,
1993, by David J. Ingram a Vice President of Aetna Life Insurance Company, a
---------------
Connecticut corporation. He/she is personally known to me, or has produced Vice
President as identification.
(Sign) /s/ Eileen M. Dautriel
----------------------------------
(Print) Eileen M. Dautriel
NOTARY PUBLIC
My commission expires: 2.28.97 (Notary Public Seal)
-9-
<PAGE>
Schedule A
to
Fourth Amendment to Lease
Legal Description of Land
-------------------------
Parcel "A" and Lots 7 and 8, HOLIDAY BEACH, according to the plat thereof, as
recorded in Plat Book 27, Page 39, of the Public Records of Broward County,
Florida, together with those lands which have accreted to said Lot 7, lying
between the platted East line of said Lot 7 and the mean high water line of the
Atlantic Ocean; and a portion of Government Lot 1 and a portion of former New
River Sound, including submerged lands now known as Mayan Lake, in Section 13,
Township 50 South, Range 42 East, more full described as follows:
Beginning at the Southwest corner of said Parcel "A" HOLIDAY BEACH; thence North
1 degrees 50' 25" West, along the West line of said Parcel "A", a distance of
35.00 feet to the Southeast corner of Parcel "A", MAYA MARCA SUBDIVISION,
according to the plat thereof, as recorded in Plat Book 63, Page 41, of the
Public Records of Borward County, Florida; thence Westerly along the South lines
of said Parcel "A", MAYA MARCA SUBDIVISION, the following three courses and
distances: South 88 degrees 09' 35" West, a distance of 10.00 feet; thence South
45 degrees 30' 35" West, a distance of 51.67 feet; thence South 88 degrees 09'
35" West, a distance of 18.43 feet to the point of termination of the said three
courses and distances; thence South 49 degrees 29' 24" East, a distance of 37.11
feet; thence South 0 degrees 57' 11" West, a distance of 984.71 feet to a point
on a line 300.00 feet North of and parallel with the North line of the South 15
chains of said Government Lot 1; thence North 88 degrees 13' 08" East along said
parallel line, a distance of 662 feet more or less to the shoreline of the
Atlantic Ocean; thence Northerly along said shoreline to a point on a line
415.00 feet South of and parallel with the North line of said Section 13; thence
South 88 degrees 09' 35" West, along said parallel line and along the South
lines of said Lots 7 and 8, and Parcel "A" HOLIDAY BEACH a distance of 602 feet
more or less to the Point of Beginning.
Said land situate, lying and being in the City of Fort Lauderdale, Broward
County, Florida.
<PAGE>
Schedule A, Continued..........
Together with:
The buildings and other improvements situated on the above-described
real property; and
All and singular the rights and appurtenances pertaining thereto,
including all right, title and interest of the Lessor in and so
adjacent streets, roads, alleys, rights-of-way and easements and all
reversions thereof, if any; and
All naturally accrated land lying waterward of the above-described
real property.
<PAGE>
Exhibit A Initials:_____
Fourth Amendment to Lease _____
[DIAGRAM OF LEASED PROPERTY APPEARS HERE]
<PAGE>
SCHEDULE 1
SUBLEASES
---------
1. Hair Salon - Concession agreement dated December 1, 1989 by and between
Marriott Corporation d/b/a Marriott's Harbor Beach Resort and Philina,
Inc..
<PAGE>
Folio Number:_______________
Reserved for Clerk
-----------------------------
ASSIGNMENT AND ASSUMPTION OF LEASE
----------------------------------
For value received, HOLIDAY HOTEL CORPORATION, a Florida corporation,
POINSETTIA CORPORATION, a Florida corporation, and LUBBOCK CORPORATION, a Texas
corporation (collectively referred to as the "Assignors"), whose mailing
addresses are c/o C. Tucker Moore, 16700 Gulf Boulevard, North Redington Beach,
St. Petersburg, Florida 33738, owners of that certain real property generally
located in Broward County, Florida and legally described on Exhibit "A" attached
hereto and made a part hereof (the "Property"), hereby assign to THE
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation, its
successors and assigns (the "Assignee"), whose mailing address is 720 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202, as of April 28, 1993 (the
"Assignment Date") all right, title, and interest and obligations of the
Assignors, if any, in and to any that certain lease of the Property between
Assignors and Lauderdale Beach Association, a Florida general partnership
("Lauderdale") more particularly described on Exhibit "B" attached hereto and
made a part hereof (the "Lease") and Assignee hereby accepts this Assignment of
and Assumption of Lease and agrees to assume the performance of all of
Assignors' duties and obligations as Landlord under the Lease from and after the
Assignment Date.
Assignors hereby agrees to indemnify and hold Assignee harmless from any
and all loss, liability, cost and expense, including reasonable counsel fees at
the trial and appellate levels, with respect to Assignors' performance or
nonperformance of Assignors' duties and obligations as Landlord prior to the
Assignment Date under the Lease. Assignee hereby agrees to indemnify and hold
Assignors harmless from any and all loss, liability, cost and expense, including
reasonable counsel fees at the trial and appellate levels, with respect to
Assignee's performance or nonperformance of Assignee's duties and obligations as
Landlord on and subsequent to the Assignment Date.
This instrument may be signed in multiple counterparts, with each
counterpart having the same force and effect as if this single instrument were
executed by both parties hereon. The parties hereto agree that one counterpart
will be recorded in the Public Records of Broward County, Florida.
PREPARED BY AND RETURN TO:
Dennis E. Manelli, Esquire
Shackleford, Farrior, Stallings & Evans, P.A.
Post Office Box 3324
Tampa, Florida 33601
<PAGE>
IN WITNESS WHEREOF, this Assignment and Assumption of Lease is signed and
dated as of the Assignment Date.
Witnesses:
HOLIDAY HOTEL CORPORATION,
a Florida corporation
/s/ Thomas P. Evans
- ---------------------
Name: Thomas P. Evans (print)
---------------
/s/ Paul Coury By: /s/ C. Tucker Moore
- --------------------- --------------------------
Name: Paul Coury (print) C. TUCKER MOORE, Vice
---------------- President
[CORPORATE SEAL] Date: April 28, 1993
POINSETTIA CORPORATION,
a Florida corporation
/s/ Thomas P. Evans
- --------------------
Name: Thomas P. Evans (print)
/s/ Paul Coury By: /s/ C. Tucker Moore
- --------------------- -----------------------
Name: Paul Coury (print) C. TUCKER MOORE, Vice
President
[CORPORATE SEAL] DATE: April 28, 1993
LUBBOCK CORPORATION,
a Texas corporation
/s/ Thomas P. Evans
- ---------------------
Name: Thomas P. Evans (print)
/s/ Paul Coury By: /s/ C. Tucker Moore
- --------------------- -----------------------
Name: Paul Coury (print) C. TUCKER MOORE, Vice
President
[CORPORATE SEAL] Date: April 28, 1993
-2-
<PAGE>
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY,
a Wisconsin corporation
/s/ Bernice Buse
- --------------------
Name:Bernice Buse(print)
------------
/s/ Rosemary Poetzel By: /s/ Donald L. O'Dell
- --------------------- --------------------
Name:Rosemary Poetzel(print) Its: Vice President
---------------- ------
[CORPORATE SEAL] Date: April 27 , 1993
----
STATE OF FLORIDA
COUNTY OF Hillsborough
------------
The foregoing instrument was acknowledge before me this 28 day of April,
---- -----
1993 by C. TUCKER MOORE, as Vice President of HOLIDAY HOTEL CORPORATION, a
Florida corporation, on behalf of the corporation. He is [X] personally known to
me or [_] produced as identification (check one).
-------------------
/s/ Susan L. VanAndel
-----------------------------
Name:Susan L. VanAndel (print)
------------------------
NOTARY PUBLIC
My commission number:___________
My commission expires:__________
STATE OF FLORIDA
COUNTY OF Hillsborough
--------------
The foregoing instrument was acknowledge before me this 28 day of April,
---- -----
1993 by C. TUCKER MOORE, as Vice President of POINSETTIA CORPORATION, a
Florida corporation, on behalf of the corporation. He is [X] personally known to
me or [_] produced as identification (check one).
-------------------
/s/ Susan L. VanAndel
----------------------------
Name:Susan L. VanAndel (print)
-------------------------
NOTARY PUBLIC
My commission number:___________
My commission expires:__________
- 3 -
<PAGE>
STATE OF FLORIDA
COUNTY OF HILLSBOROUGH
The foregoing instrument was acknowledged before me this 28 day of April,
1993 by C. TUCKER MOORE, as Vice President of LUBBOCK CORPORATION, a Texas
corporation, on behalf of the corporation. He is [X] personally known to me or
[_] produced as identification (check one)
-----------------------
/s/ Susan L. VanAndel
-----------------------------
[NOTARY PUBLIC SEAL] Name:Susan L. VanAndel
NOTARY PUBLIC
My commission number:_________
My commission expires:________
STATE OF WISCONSIN
COUNTY OF MILWAUKEE
The foregoing instrument was acknowledged before me this 27th day of April,
1993 by Donald L. O'Dell, as Vice President of THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY, a Wisconsin corporation, on behalf of the corporation. He/she
is [X] personally known to me or [_] produced as
------------------------
identification (check one).
/s/ Bernice Buse
--------------------------
Name: Bernice Buse (print)
--------------
[NOTARY PUBLIC SEAL] NOTARY PUBLIC
My commission number:_________
My commission expires:1/21/96
--------
-4-
<PAGE>
EXHIBIT "A"
-----------
Parcel A, HOLIDAY BEACH, according to the plat thereof, as recorded in Plat Book
27, Page 39, of the Public Records of Broward County, Florida.
TOGETHER WITH
Parcel A, POINSETTIA PLAT, according to the plat thereof, as recorded in Plat
Book 114, Page 43, of the Public Records of Broward County, Florida.
The above described parcels were formerly described as:
Parcel A and Lots 7 and 8, HOLIDAY BEACH, according to the plat thereof, as
recorded in Plat Book 27, Page 39, of the Public Records of Broward County,
Florida, together with those lands which have accreted to said Lot 7, lying
between the platted East line of said Lot 7 and the mean high water line of the
Atlantic Ocean; and a portion of Government Lot 1 and a portion of former New
River Sound, including submerged lands now known as Mayan Lake, in Section 13,
Township 50 South, Range 42 East, more full described as follows:
Beginning at the Southwest corner of said Parcel "A" HOLIDAY BEACH; thence North
1 degrees 50' 25" West, along the West line of said Parcel "A", a distance of
35.00 feet to the Southeast corner of Parcel "A", MAYA MARCA SUBDIVISION,
according to the plat thereof, as recorded in Plat Book 63, Page 41, of the
Public Records of Broward County, Florida; thence Westerly along the South lines
of said Parcel "A", MAYA MARCA SUBDIVISION, the following three courses and
distances: South 88 degrees 09' 35" West, a distance of 10.00 feet; thence South
45 degrees 30' 35" West, a distance of 51.67 feet; thence south 88 degrees 09'
35" West, a distance of 18.43 feet to the point of termination of the said three
courses and distances; thence South 49 degrees 29' 24" East, a distance of 37.11
feet; thence South 0 degrees 57' 11" West, a distance of 984.71 feet to a point
on a line 300.00 feet North of and parallel with the North line of the South 15
chains of said Government Lot 1; thence North 88 degrees 13' 08" East along said
parallel line, a distance of 662 feet more or less to the shoreline of the
Atlantic Ocean; thence Northerly along said shoreline to a point on a line
415.00 feet South of and parallel with the North line of said Section 13; thence
South 88 degrees 09' 35" West, along said parallel line and along the South
lines of said Lots 7 and 8, and Parcel "A" HOLIDAY BEACH a distance of 602 feet
more or less to the Point of Beginning.
Said land situate, lying and being in the City of Fort Lauderdale, Broward
County, Florida.
-5-
<PAGE>
THIS LEASE made as of the 30th day of November, 1981.
B E T W E E N:
HOLIDAY HOTEL CORPORATION, a corporation incorporated under the
laws of the State of Florida, POINSETTIA CORPORATION, a
corporation incorporated under the laws of the State of Florida,
and LUBBOCK CORPORATION, a corporation incorporated under the
laws of the State of Texas, (hereinafter collectively referred to
as the "Landlord")
- and -
CAVENDISH PROPERTIES INC. a corporation incorporated under the
laws of the State of Texas (hereinafter referred to as the
"Tenant")
ARTICLE I: DEFINITIONS
-----------------------
As used herein, the following terms have the respective meanings
herein set forth.
1.01 Additional Amounts - As defined in Section 3.02.
------------------
1.02 Affiliate of Tenant - Any person, corporation, trust,
-------------------
partnership, joint venture or other entity shall be deemed an Affiliate of
the Tenant if:
(i) Ten percent (10%) or more of the outstanding stock or other
equity interest of such entity is owned by any one or more such
entities which also own, or owns, beneficially or of record, an
aggregate of ten percent (10%) or more of any class of the
outstanding stock or other equity interest of the Tenant;
(ii) such entity is the owner, directly or indirectly, beneficially or
of record, of ten percent (10%) or more of any class of
outstanding stock or other equity interest of the Tenant;
(iii) ten percent (10%) or more of the outstanding stock, or other
equity interest, of such entity is owned directly or indirectly,
beneficially or of record by the Tenant; or
(iv) such entity, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common
control with the Tenant.
1.03 Basic Rent - As defined in Section 3.01.
----------
1.04 Business Day - Monday through Friday of any week, excluding any
------------
day which is a legal holiday in either Fort Lauderdale, Florida or Toronto,
Canada.
1.05 Condemnation Proceeds - as defined in Section 10.01.
---------------------
<PAGE>
-2-
1.06 Date of Determination - means the date of the commencement of
---------------------
each five (5) year period commencing with the eighth anniversary date of
the commencement of this Lease.
1.07 Default - any failure on the part of the Tenant to perform or
-------
comply with any of the provisions of this Lease constituting an Event of
Default.
1.08 Event of Default - as defined in Article 15.
----------------
1.09 Hotel - Hotel buildings and improvements located on the Leased
-----
Property (known as the Holiday Hotel), and all parking, commercial
facilities, including retail shops, recreational facilities, including
swimming pools, located on or included in the Hotel.
1.10 Impositions - All taxes, assessments (including without
-----------
limitation, assessments for public improvements or benefits whether or not
commenced or completed during the term of this Lease), water, sewer and
other rents, rates and charges, excises, levies, license fees, permit fees
and other authorization fees and all other charges (in each case whether
general or special, ordinary or extraordinary, or foreseen or unforeseen),
of every character (including all penalties or interest thereon) which at
any time during or in respect of the term of this Lease may be assessed,
levied, confirmed or imposed on or in respect of or be a lien upon (a) the
Leased Property or any part thereof or any rent therefrom or any estate,
right or interest therein, or (b) any occupancy, use or possession of the
Leased Property or any part thereof; provided, however, that the term
"Imposition" shall not include any franchise, capital stock or similar tax
of the Landlord, or any income or excess profits tax (other than state, use
or sales tax) of the Landlord determined on the basis of its general income
or revenue.
1.11 Improvements - all hotels, motels, condominiums and other
------------
buildings, streets, curbs, sewers, flood control structures, sidewalks,
fences, golf courses and stables, and other structures which now, or at any
time hereafter, exist upon the Leased Property.
1.12 Insurance Requirements - all terms and provisions of each
----------------------
insurance policy covering or applicable to the Leased Property or any part
thereof, all requirements of the issuers of all such policies, and all
orders, rules, regulations and other requirements of the National Board of
Fire Underwriters (or any other body exercising similar functions)
applicable to or affecting the Leased Property or any part thereof or any
use or condition of the Leased Property or any part thereof, at the time
then relevant.
1.13 Land - as described in Schedule A attached hereto.
----
1.14 Leased Property - as defined in Section 2.01.
---------------
1.15 Legal Requirements - all statutes, codes, laws, acts,
------------------
ordinances, orders, judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations, directions and requirements of all
federal, state, county, municipal, and other governments, departments,
commissions, boards, courts, authorities, officials and officers, ordinary
or extraordinary, which may be applicable to the Leased Property or any
part thereof, or any of the beaches, waterways, canals, streets, alleys,
passageways, sidewalks, curbs or gutters adjoining the Leased Property or
any part
<PAGE>
-3-
thereof, or any use, manner of use or conditions of the Leased Property or
any part thereof, at the time when relevant.
1.16 Lending Institution - a bank, insurance company, trust company,
-------------------
pension plan, pension fund, mutual fund, retirement fund or education,
charitable or other financial institution.
1.17 Prime Rate - the lesser of the prime commercial lending rate
----------
from time to time of The Toronto-Dominion Bank on U.S. dollar demand loans
made in the United States to substantial and responsible corporate
borrowers plus 1% and the maximum rate permitted under the laws of the
State of Florida by a corporate lender.
1.18 Quarterly Basic Rent Installment - as defined in Section 3.01.
--------------------------------
1.19 Sub-Lease - as defined in Section 5.01.
---------
1.20 Taking - a taking of, or damage to, all or part of the Leased
------
Property for any public or quasi-public use or any interest therein or
right accruing thereto, as the result of or in lieu of condemnation or
eminent domain. A Taking shall be deemed to occur at the point in time of
the order of taking or actual physical taking of possession, whichever
first occurs, pursuant to exercise of or expression of intent to exercise
said power of eminent domain.
ARTICLE 2 - LEASE OF PROPERTY, TERM OF LEASE
--------------------------------------------
2.01 Lease - Upon the conditions, limitations, covenants and
-----
agreements set forth below, the Landlord hereby leases, less and demises to
the Tenant and the Tenant hereby leases from the Landlord the following
property (hereinafter sometimes collectively referred to as the "Leased
Property"):
(a) the Land with such reductions by way of dedications and otherwise
as may be made from time to time hereafter pursuant to this
Lease; and
(b) the Hotel;
TOGETHER WITH any facilities, fixtures, equipment, paving,
surfacing, sewers, storm drains and other Improvements which may now or
hereafter be located thereon, and the appurtenances thereof; except for
those items of furniture, fixtures, equipment and other property to be
retained by the Landlord as hereinafter provided.
SUBJECT, HOWEVER, to: (a) liens, charges, encumbrances,
covenants, conditions, restrictions, easements, reservations, rights,
rights of way and all other rights and interest of third persons of record
set forth in Schedule "B" hereto; and (b) zoning and building restrictions
and governmental regulations now or hereafter affecting the Leased
Property;
TO HAVE AND TO HOLD FOR term of ninety-nine (99) years commencing
on the 1st day of December, 1981 and expiring on the 30th day of November,
2080, unless this Lease shall sooner terminate as hereinafter provided.
2.02 Leased Property "As Is" - The Tenant has leased the Leased
----------------------
Property after an examination thereof and is familiar with its present
uses and nonuses.
<PAGE>
- 4 -
2.03 Landlord's Retention of Personal Property - At the commencement
-----------------------------------------
date of this Lease the Landlord shall retain title to all its right, title
and interest in all furniture, furnishings, equipment, personal property,
inventory, supplies and consumables, including without limiting the
generality thereof, laundry supplies, food service preparation utensils,
food service chinaware, food and beverage service glassware, food service
silverware and holloware flatware, holloware, food and beverage service
equipment and supplies, linens for food and beverage service and guest
rooms, housekeeping supplies, engineering supplies, accounting supplies,
miscellaneous general supply items and uniforms of the Hotel.
ARTICLE 3 -RENT
---------------
3.01 Basic Rent - During the term of this Lease, the Tenant will pay
----------
to the Landlord a net basic rent (the "Basic Rent") as provided herein in
such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts
to The Northern Trust Company, 50 South Lasalle Street, Chicago Illinois or
at such other place or to such agent as the Landlord from time to time may
designate. The Basic Rent shall be payable in advance in quarterly
installments (the "Quarterly Basic Rent Installment") on the date hereof,
and on the first day of each succeeding three month period during the term
hereof and shall be computed as follows:
(i) For the first two years for the term of this Lease the annual
rent shall be $550,000 and each Quarterly Basic Rent Installment
during such two year period shall be $137,500, subject to
adjustment from time to time as set forth in items (v), (vi) and
(vii) below.
(ii) For the third year of the term of this Lease the annual rent
shall be $650,000 and each Quarterly Basic Rent Installment
during such one year period shall be $162,500, subject to
adjustment from time to time as set forth in items (v), (vi) and
(vii) below.
(iii) For the fourth year of the term of this Lease the annual rent
shall be $950,000 and each Quarterly Basic Rent Installment
during such one year period shall be $237,500, subject to
adjustment from time to time as set forth in items (v), (vi) and
(vii) below.
(iv) The annual rent for the remainder of the term of this Lease
(including during the renewal term) shall be $1,000,000 and each
Quarterly Basic Rent Installment shall be $250,000, subject to
adjustment from time to time as set forth in items (v), (vi) and
(vii) below.
(v) In the event that at any time prior or during the term hereof,
the zoning of that portion of the Land which is currently zoned
R1A is rezoned as R3 or to a classification which permits a
residential density equal to or substantially as great as an R3
classification, the annual rental provided for herein shall
thereafter be increased so that the next Quarterly Basic Rent
Installments payable hereunder shall:
<PAGE>
- 5 -
(a) in the case where the Quarterly Basic Rent Installments are
payable pursuant to item (ii) above, be $192,500;
(b) in the case where the Quarterly Basic Rent Installments are
payable pursuant to item (iii) above, be $290,000; and
(c) in the case where the Quarterly Basic Rent Installments are
payable pursuant to item (iv) hereof, be $325,000 and the
annual rent thereafter shall be $1,300,000.
(vi) In the event that at any time prior to the fifth anniversary of
the term hereof, more than 75% of the housing units which may be
constructed on the Lands based on the zoning currently existing
with respect to the Lands have been sold and conveyed by the
Tenant to subsequent purchasers, the annual rent and Quarterly
Basic Rent Installments payable thereafter shall be as provided
in item (iv) above. If the Land has been rezoned as described in
item (v) above and more than 75% of the housing units which may
be constructed on the Lands based on such rezoning have been sold
and conveyed by the Tenant to subsequent purchasers, the annual
rent and Quarterly Basic Rent Installments payable thereafter
shall be as provided in item (v) above.
(vii) Whenever a Taking of the nature referred to in Article 10 shall
occur, the Quarterly Basic Rent Installments thereafter payable
shall abate by an amount agreed to by the Landlord and Tenant
and, failing agreement, the matter shall be submitted to
arbitration pursuant to Article 23 hereof to determine what is a
fair abatement having regard to the amount of the Leased Property
in respect of which there has been a Taking.
3.02 Additional Amounts - In addition to the Basic Rent provided for
------------------
herein, the Tenant will also pay all Impositions and all other costs,
expenses, liabilities, obligations or other payments which under this Lease
the Tenant assumes and agrees to pay, or with respect to which the Tenant
agrees herein to reimburse the Landlord under any of the provisions of this
Lease. Tenant shall also pay all sales, use, excise and similar tax charged
or assessed against the Landlord for or because of the rental income paid
under this Lease. Either party shall have the right to contest the amount
or applicability of such tax with the appropriate governmental bodies. All
of such Impositions, costs, expenses, liabilities, obligations, and other
payments are hereinafter sometimes referred to, individually and
collectively, as Additional Amounts. In the event of any failure by the
Tenant to pay any Additional Amounts, the Landlord shall have all the
rights and remedies provided for in this Lease or by law in the case of
nonpayment, of the Basic Rent. The Tenant will also pay to the Landlord, on
demand, interest at the Prime Rate on all overdue Quarterly Basic Rent
Installments or any Additional Amounts paid by the Landlord pursuant to
Article 14 hereof from the date of such payment.
3.03 Increase in Rent - Commencing with the eighth anniversary date of
----------------
this Lease the Quarterly Basic Rent Installments shall be increased during
each succeeding five years of the lease term (including during the renewal
term) as follows:
<PAGE>
-6-
(i) in respect of each of the Quarterly Basic Rent Instalments payable
during the five years commencing on the eighth anniversary of this by
an amount of $32,500;
(ii) in respect of each of the Quarterly Basic Rent Instalments payable
during the next five years the Lease, by an amount of $32,500;
(iii) during each succeeding five years of the Lease Quarterly Basic Rent
Instalments payable during each such five year period shall be
increase amount equal to 10% of the Quarterly Basic Rent Instalment
payable immediately preceding the of Determination.
3.04 Lease to be Deemed Net Lease - The Tenant agrees that, except as
----------------------------
herein otherwise expressly provided, the Tenant shall pay all costs, charges and
expenses of every kind and nature whatsoever against or in connection with
Leased Property which may arise or become due during the term of this Lease, and
which, except for the execution delivery hereof, would or could have been
payable by the Landlord. Notwithstanding the foregoing and notwithstanding any
provisions contained in this Lease to the effect that the matters be without
expense to the Landlord, the Tenant shall not be required to pay for services of
the Landlord officers and employees, or any franchise, capital stocks similar
tax of the Landlord or any income or excess prXX tax of the Landlord determined
on the basis of its genXX income or revenues.
ARTICLE 4 -USE, DEVELOPMENT AND SUBDIVISION
-------------------------------------------
4.01 Use of the Leased Property - The Leased Property may be used for any
--------------------------
lawful purpose. The Tenant shall exercise its best efforts to use and occupy the
Leased Property in a lawful manner and comply with, and maintain the Leased
Property in compliance with, all laws and governmental requirements applicable
thereto and to thxx thereof, except those with which the Leased Property iXX in
compliance as of the date of the Lease.
4.02 Improvements and Subdivision - The Tenant may construct or demolish
----------------------------
and reconstruct such Improvement the Leased Property as it reasonably deems
desirable for purpose of developing the Leased Property.
(a) No Improvement shall be undertaken or made unless the Tenant shall
have procured, so far as there may be required by law from time to
time, all permits, authorizations, reports and/or other necessary
action of all municipal agencies and departments of governmental
agencies and subdivisions having jurisdiction. The Landlord shall
join, but without expense to the Landlord in the application for such
permits or authorizations whenever such action by it is required by
law. The Landlord hereby constitutes the Tenant its agent authorizing
the Tenant sign any and all applications or other documents which may
be necessary for any construction, demolition or reconstruction on the
Leased Property desired from time to time or at anytime by the Tenant
for developing the Leased Property.
<PAGE>
-7-
(b) Any Improvement shall be made in compliance with all applicable
permits and authorizations and building and zoning laws and with
all other laws, ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments,
departments, commissions, boards and officers, and in accordance
with Insurance Requirements; and any such Improvement shall be
completed in a good and workmanlike manner;
(c) Provided the estimated cost of the work shall exceed $500,000.00
on an individual building by building basis, the Tenant shall, at
the Tenant's expense, upon request of the Landlord at any time
furnish a lien and completion bond in connection with the
construction, addition, alteration or demolition of any such
building on the Leased Property, in such amount as the Landlord
may require and in form and substance satisfactory to the
Landlord, in each such case acting reasonably. At the election of
the Tenant, the Tenant may furnish, in lieu of such bond, (i) a
commitment for a construction loan in amount and form reasonably
satisfactory to the Landlord or (ii) cash, readily cashable
marketable securities, irrevocable letters of credit, or treasury
bills having a value at least equal to 110% of the estimated cost
or value of such building, or other assurances reasonably
satisfactory to the Landlord.
(d) If permitted by the law of Florida, the Landlord shall file and
record at the time of the execution of this Lease a notice of
non-responsibility or a similar notice as may be provided by law,
so that whenever any work shall be undertaken by the Tenant on
the Leased Property no mechanic's lien or lien for materials or
labor could attach to or affect the reversionary or other estate,
right or interest of the Landlord in and to the Land.
(e) In no event shall the Tenant by reason of any matter or thing set
forth in this Article, be entitled to any abatement, allowance,
reduction or suspension of the Basic Rent, Additional Amounts or
Quarterly Basic Rent Installments herein reserved or required to
be paid.
(f) If the Tenant wishes to demolish any of those Improvements on the
Leased Property existing on or after the twelfth anniversary of
this Lease which have a value in excess of $100,000, the Landlord
and the Tenant shall agree upon a value of the Improvements to be
demolished and if such agreement cannot be reached the value
shall be determined by arbitration in accordance with the
provisions of Article 23 of this Lease. Once a value has been
determined the Tenant agrees to post with the Landlord, prior to
demolition taking place, a bond or irrevocable letter of credit
or other satisfactory security in the amount determined above as
the value of the Improvements to be demolished. Such security
shall be released to Tenant upon Tenant providing to Landlord
either a commitment for a construction loan in amount and form
reasonably satisfactory to the Landlord with respect to the
Improvements to be constructed on the Leased Property having a
value at least equal
<PAGE>
-8-
to those so demolished or evidence that the Improvements so
constructed thereon have a value at least equal to those so
demolished. All demolition, excavation and construction shall be
done in conformity with all legal safety requirements and in a
good and workmanlike manner.
4.03 Additions to be Part of the Leased Property - Improvements made
-------------------------------------------
or installed by the Tenant in or upon or in connection with the Land shall
be and become the property of the Landlord upon the termination of this
Lease by passage of time or otherwise, subject to the provisions of Section
18.01.
4.04 Compliance with Legal and Insurance Requirements - Subject to
------------------------------------------------
Article 7 relating to contests, the Tenant at its expense will comply with
all Legal Requirements and all Insurance Requirements, will procure and
maintain all permits, licenses and other authorizations required for any
use of the Leased Property or any part thereof than being made, and for the
lawful and proper installation, operation and maintenance of all equipment
and appliances necessary or appropriate for the operation and maintenance
of the Leased Property, and will comply with any instruments of record
affecting the Leased Property or any part thereof at the time in force.
4.05 Zoning - The Landlord and the Tenant will fully and promptly
------
inform each other concerning any pending proceedings for zoning change
pertaining to any part of the Leased Property and as to its proposed
actions with respect to any such proceedings. The Tenant is expressly
hereby granted permission to seek any rezoning.
The Landlord further agrees to immediately sign any and all
documents, papers and applications which may be required in order to
process and effectuate the rezoning of all or any part of the Leased
Property. If Landlord fails to sign such documents, papers and applications
and return the same to Tenant within thirty (30) days from the date
received by Tenant, Tenant shall have the right as Landlord's agent to sign
the same. The Landlord agrees that it will not oppose in any form
whatsoever, including but not limited to appearance at any hearing, any
rezoning sought by the Tenant during the initial term of this lease so long
as such proposed rezoning does not result in a possible reduction of Basic
Rent.
4.06 Care of Leased Property - Tenant has inspected the Property and
-----------------------
acknowleges that Landlord has made no representation to Tenant as to the
condition, safety, fitness for use, or state of repair thereof. So long as
Tenant is in possession of the Leased Property, Tenant covenants and agrees
that it will not use or permit any person to use said Leased Property or
any part thereof for any use or purposes in violation of the laws of the
United States, the state of Florida, the ordinances or other regulations of
the municipality or political subdivision in which said Leased Property is
located or of any other lawful authorities. Nothing in this paragraph shall
abrogate, change or affect Tenant's rights to demolish Improvements on the
Leased Property.
4.07 Excavation of Land - The Tenant at its expense will do or cause
------------------
others to do all shoring of foundations and walls of any Improvements on
the Leased Property or of the ground adjacent thereto, and every other act
necessary or appropriate for the safety and preservation thereof by reason
of, or in connection with, any excavation or other
<PAGE>
-9-
building operation upon the Leased Property or any adjoining property.
4.08 Excavations of Adjoining Premises - The Tenant shall allow any
---------------------------------
authorized person, municipality or agency lawfully engaged or about to
engage in excavating a nearby street or property, to enter the Leased
Property to shore up any wall during such excavation to the extent
required. The Tenant shall, at its expense, repair or cause to be repaired,
any damage to any part of the Leased Property resulting from any
excavation, construction work, or work of a similar nature which may be
done on any property or street adjoining or adjacent to the Leased
Property; and the Landlord hereby assigns to the Tenant any and all rights
to sue for, or recover against any party causing such damages, the amounts
expended or incurred by the Tenant because of the provisions of this
Section. Nothing herein contained shall be deemed to impair the Landlord's
or Tenant's right of recovery against any such person, municipality or
agency causing such damage.
4.09 Disclaimer of Liability for Damage to Property or Person - The
--------------------------------------------------------
Landlord shall not be responsible or liable for any damage or injury to any
property, or to any person or persons at any time on the Leased Property
from any cause whatsoever, including without limitation from steam, gas or
electricity or from water, rain, snow, ice or from earthquake, earth slide
or other earth movement; nor shall the Landlord be in any way responsible
or liable for any accident or injury, including death, to any of the
Tenant's servants, employees, agents or to any servants, employees or
agents of sub-lessees on the Leased Property or to any person or persons in
or about the Leased Property or the streets or sidewalks or vaults adjacent
thereto; and the Tenant agrees that it will not hold the Landlord in any
way responsible or liable therefor. The Landlord shall not be liable for
interference with light or incorporeal hereditaments by anybody or caused
by the operation by or for any governmental authority in the construction
of any public or quasi-public work and the Landlord shall not be liable for
any latent or any other defects in any building or buildings or
Improvements now or hereafter upon the Leased Property.
4.10 No Consent by Landlord to Performance of work on the Leased
-----------------------------------------------------------
Property - Nothing contained in this Lease shall constitute the consent or
--------
request of the Landlord, express or implied, for the performance of any
labor or the furnishing of any materials or other property in respect of
the Leased Property or any part thereof, nor as giving the Tenant any
authority to contract for or permit the rendering of any services or the
furnishing of any materials or other property so as to permit the making of
any claim against the Landlord or any lien or encumbrance against the
Leased Property. The Landlord acknowledges that the Tenant will have the
right without the Landlord's consent to improve the Leased Property only in
accordance with the terms and provisions of this Lease while it is subject
to this Lease.
ARTICLE 5 - SUB-LEASES
----------------------
5.01 At any time and from time to time during the term of this Lease, the
Tenant may without the consent of the Landlord, freely grant one or more
sub-leases to third parties, which third parties may also be Affiliates of
the Tenant, (herein referred to as "Sub-Lessees"), covering all or any
portion of the Leased Property and any assignment or further sub-leasing of
all or any portion of such premises
<PAGE>
-10-
at any level removed from Landlord (all of which are herein referred to as
"Sub-Leases"), which Sub-Leases may be of such form and substance and may
contain such terms and provisions as the Tenant may in its sole discretion
determine. No Sub-Lease shall be for a term of years beyond the expiration
date of this Lease (plus any extension of time permitted hereunder) and no
Sub-Lease shall relieve the Tenant of its responsibility to pay the Basic
Rent, Quarterly Basic Rent Installments and Additional Amounts and to
observe and perform all of the Tenant's obligations hereunder.
5.02 If in respect of any proposed sub-lease the title report of a
reputable title insurance company doing business in Broward County, Florida
shall indicate any defects in the title of the Landlord to the portion of
the Lease Property to be included in the Sub-Lease, which are not permitted
hereunder and which are not waived by the Sub-Lessee or removed or cured by
the Landlord prior to the commencement date of the proposed Sub-Lease, the
Landlord shall deliver an agreement in recordable form wherein such
encumbrancer or mortgagee shall agree that it shall not interfere with the
quiet enjoyment of the Sub-Lessee with respect to the property proposed to
be leased to the Sub-Lessee and any of its successors in interest, unless
such Sub-Lessee shall be in default under the terms of its Sub-Lease.
5.03 Upon any default by the Tenant under this Lease, the Sub-Lessee
shall in no event be required to make any payment or be responsible for
performance under this Lease, and the Landlord hereby agrees with any Sub-
Lessee that, so long as such Sub-Lessee is not in default under its Sub-
Lease, such Sub-Lease, and such Sub-Lessee's tenancy thereunder, shall not
be disturbed, such Sub-Lease shall continue in effect as though the
Landlord were the sub-lessor thereunder and the Landlord shall attorn to
such Sub-Lessee in accordance with the terms of such Sub-Lease. Such Sub-
Lessee shall not be required to make any required rental or other payment
under such Sub-Lease to the Landlord unless and until such Sub-Lessee shall
have received written notice from the Landlord indicating such default and
directing that payments and performance under such Sub-Lease thereafter be
made directly to the Landlord. Thereafter, any payment or performance made
by the Sub-Lessee to the Landlord shall have the same effect as if made to
the Tenant, and the Tenant shall have no right whatsoever to claim a
default for not having received any payment or performance received by the
Landlord. If such Sub-Lessee receives a written notice from the Tenant,
wherein the Tenant also demands such payment or performance, such Sub-
Lessee shall have the right to interplead such rent and/or other matters in
any court of competent jurisdiction, in which event payment or performance
when and as ordered by such court shall constitute full performance
hereunder.
5.04 Consent and Nondisturbance - The Landlord and the Tenant and each
--------------------------
of them agree that so long as a Sub-Lease is not subject to termination for
default of the Sub-Lessee under the Sub-Lease, that neither the Landlord
nor the Tenant or either of them will join the Sub-Lessee as a party
defendant in any action or proceeding or take any other action for the
purpose of terminating the Sub-Lessee's interest and estate under the Sub-
Lease because of any default under or termination of this Lease or both.
<PAGE>
-11-
If this Lease is terminated, Landlord shall recognize all Sub-Leases
notwithstanding such termination. All rentals accruing and payable under the
Sub-Lease shall be paid by the Sub-Lessee thereto to the Landlord, and any and
all the benefits accruing thereafter to the Tenant under the Sub-Lease shall
belong to the Landlord, and Sub-Lessee and Landlord shall be bound to and attorn
to each other with the same force or effect as if they were the parties to the
Sub-Lease.
The foregoing provisions of this Article shall be effective and self
operating without execution of any additional instruments by the parties hereto;
provided, however, the Landlord and the Tenant agree to execute all separate
instruments and consents provided for hereunder as may be requested by any
Sub-Lessee or mortgagee of any Sub-Lessee's interest.
5.05 The Tenant shall have the right from time to time to take from any
Sub-Lessee a lien, mortgage or charge by way of a mortgage of a Sub-Lease and of
the sub-leasehold interest of the Sub-Lessee. Reference in this Section to
"mortgage" shall include a deed of trust, agreement of sale or other security
device. The Landlord acknowledges and agrees that the Tenant as the mortgagee
aforesaid shall have all of the rights of a Leasehold Mortgagee.
5.06 It is specifically understood and agreed, that Tenant shall be and
remain liable for and subject to all terms, provisions and conditions herein
contained on its part to be kept, performed and complied with.
5.07 Tenant shall have the right to provide in the Sub-Leases the option of
the Sub-Lessees to renew such Sub-Leases for a period of up to twenty-five (25)
years beyond the expiration date of the ninety-nine (99) year term of this
Lease. Any such renewal shall be on the same terms and conditions as the
Sub-Lease being renewed.
ARTICLE 6 - PAYMENT OF IMPOSITIONS
-----------------------------------
6.01 Payment, Evidence of Payment, etc. - Subject to Article 7, relating to
----------------------------------
contests, the Tenant will pay all Impositions before any interest, penalty, fine
or cost may accrue for nonpayment, provided that:
(a) if, by law, any Imposition may, at the option of the person on whom it
is imposed, be paid in installments, the Tenant may exercise such
option (provided that such installments shall not extend beyond the
termination date of this Lease), and, in such event, the Tenant shall
give the Landlord prompt written notice of such exercise and shall pay
all such installments (and interest, if any) becoming due during the
term of this Lease as the same respectively become due and before any
further interest or any penalty, fine or cost may be added thereto;
and
(b) any Imposition relating to a fiscal period of the taxing authority, a
part of which is included within the term of this Lease and a part of
which extends beyond such term, shall, unless this lease shall
terminate on account of a default of the Tenant hereunder, be
apportioned between the Landlord and the Tenant as of the expiration
of such term.
<PAGE>
-12-
The Tenant shall, if so requested, furnish to the Landlord and to each
holder of any mortgage on the Leased Property, for inspection, with respect
to any Imposition (unless being contested in conformity with Article 7)
before the same would become delinquent, official receipts of the
appropriate taxing authority, or other proof satisfactory to the Landlord
or such mortgagee, as the case may be, evidencing the payment of such
Imposition.
ARTICLE 7 - CONTESTS
--------------------
7.01 Contests - After written notice to the Landlord and to each
--------
holder of any mortgage on the Leased Property, the Tenant may contest, by
appropriate legal proceedings, conducted in good faith and with due
diligence, the amount, validity or application, in whole or in part, of any
Imposition, Legal Requirement, lien, encumbrance, charge or any other
adverse claim provided that:
(a) in the case of an unpaid Imposition, such proceedings shall
operate to suspend the collection of the Imposition from the
Landlord or the Leased Property; and
(b) in the case of any other Legal Requirement, neither the Landlord
nor any mortgagee of the Leased Property shall be subject to
civil or criminal liability for failure to comply therewith.
ARTICLE 8 - UTILITY SERVICES
----------------------------
8.01 Utility Services - The Tenant will pay or cause to be paid all
----------------
charges for all public or private utility services at any time rendered to
or in connection with the Leased Property or any part thereof, will comply
with all contracts relating to any such services, and will do all other
things required for the maintenance and continuance of all such services.
ARTICLE 9 - INSURANCE
---------------------
9.01 Insurance During Term - During the term of this Lease, except to
---------------------
the extent otherwise indicated in the sub-sections of this Section, the
Tenant will, at its sole cost and expense, keep and maintain or cause to be
kept and maintained:
(a) Comprehensive public liability insurance naming both the Landlord
and the Tenant insureds, and property damage insurance naming
both the Landlord and the Tenant insureds, against claims for
personal injury or death or property damages occurring upon, in
or about the Leased Property, on any Improvements on the Leased
Property or upon, in or about the adjoining land, streets and
passageways thereof, such insurance to afford protection in
amount not less than One Million Dollars ($1,000,000.00) for any
person and Three Million Dollars ($3,000,000.00) for any one
occurrence and One Hundred Thousand Dollars ($100,000.00)
property damage (subject to upward adjustment as provided in
subsection (b) hereof);
(b) The minimum amount of coverage under sub-section (a) above shall
be adjusted upward on the Landlord's reasonable request. Any
dispute between the Tenant and the Landlord as to such an
<PAGE>
-13-
upward adjustment shall be subject to arbitration as herein
provided in Article 23 hereof.
(c) During the construction, alteration or repair of any Improvements
on the Leased Property, adequate workman's compensation
insurance covering all persons employed in connection with such
work and with respect to whom death or bodily injury claims
would be asserted against the Landlord, the Tenant or the Leased
Property.
(d) Tenant covenants and agrees that it will at all times, at its
sole cost and expense, keep the Improvements insured against loss
by fire and extended coverage for an amount equal to their full
insurable value or for such amounts as is reasonable having
regard to the nature of the Improvement, and will keep all such
insurance in full force and effect until such Improvements are
demolished. Such insurance shall be procured from a responsible
insurance company or companies satisfactory to the Landlord and
authorized to do business in the State of Florida, shall provide
for payment of loss thereunder to the Landlord and Tenant as
their interests may appear, and shall comply with the applicable
requirements of any Leasehold Mortgages in connection with such
casualty insurance. Policies or certificates evidencing such
insurance shall be delivered to the Landlord upon the execution
of this Lease, and renewals thereof shall be delivered to the
Landlord at least ninety (90) days prior to the expiration dates
of the respective policies.
In case Tenant shall at any time fail, neglect or refuse to
insure such Improvements and to keep the same insured, then
Landlord may at its election procure or renew such insurance and
any amounts paid therefor by the Landlord shall be so much
additional rental due from the Tenant to the Landlord at the next
rent day after any such payment, with interest at the Prime Rate
from the date of payment thereof by the Landlord until repayment
thereof to the Landlord by the Tenant.
If the Improvements existing at the commencement of the
Lease are destroyed or damaged, the proceeds from any insurance
in respect thereto shall be paid to the Tenant. If any other
Improvements thereafter existing on the Leased Property are
destroyed or damaged, the proceeds of any insurance in respect
thereto shall be paid in escrow to an escrow bank, agent or title
company to be disbursed to the Tenant upon an architect's
certificate verifying the cost of new Improvements made by the
Tenant from the date of such destruction or damage provided that
if the Tenant does not within six months after such destruction
or damage indicate to the Landlord that it proposes to make such
new Improvements and thereafter proceed expeditiously to cause
such New Improvements to be made, the proceeds of insurance
shall thereafter be disbursed to the Landlord and the Tenant, as
their interests may appear.
9.02 Insurance Companies and Policies - Terms of Policy - All
--------------------------------------------------
insurance provided for pursuant to Section 9.01 shall be effected under a
valid and enforceable policy or policies
<PAGE>
-14-
issued by insurers of recognized responsibility. Each such policy shall (a)
include Landlord as a named insured; and (b) provide that no cancellation
or termination thereof on account of nonpayment of premiums or any other
reason shall be effective until at least thirty (30) days after receipt by
the Landlord of written notice thereof. Each party hereby waives all rights
of action against the other with respect to any losses or claims covered by
such insurance to the extent that such waiver of subrogation is permitted
by each such policy. Upon the execution of this Lease, and thereafter not
less than fifteen (15) days prior to the expiration dates of the policies
theretofore delivered pursuant to this Section, the Tenant shall deliver to
the Landlord duplicate originals of the policies or renewal policies, as
the case may be, required by this Lease.
9.03 Insurance for Mortgagee of Fee - In case the fee interest of the
------------------------------
Landlord in the Leased Property or any part thereof shall be subjected to
any mortgage or mortgages, the Tenant will comply with such requirements as
the Landlord or the holder or holders of such mortgages may reasonably
request for the protection by insurance of the interests of such holder or
holders provided that the insurance rights of such holder or holders shall
not be greater than the Landlord's insurance rights under this Lease.
9.04 Tenant's Separate Insurance - The Tenant shall not take out
----------------------------
separate insurance unless the Landlord is included therein as an insured,
with loss payable as provided in Section 9.02 hereof. The Tenant shall
immediately notify the Landlord of the taking out of any such separate
insurance and shall deliver the policy or policies as provided in Section
9.02 hereof.
9.05 Apportionment of Premiums - The premiums on all insurance
-------------------------
policies in force at the expiration of this Lease shall be apportioned
between the Landlord and the Tenant in such manner that the Landlord shall
reimburse the Tenant for that portion of the aggregate premiums unearned on
all such policies in force at the termination of this Lease.
ARTICLE 10 - TAKING
-------------------
10.01 Condemnation Proceeds - Subject to Section 10.02, the Landlord
---------------------
and the Tenant (if an Event of Default does not exist under this Lease)
shall co-operate in prosecuting and collecting their respective claims for
an award on account of any Taking of all damages or awards (with any
interest thereon) to which the Landlord or the Tenant may be entitled by
reason of any Taking of the Leased Property being herein referred to as
"Condemnation Proceeds". Except as expressly provided in this Article 10,
no Taking of any interest in all or part of the Leased Property shall be
grounds for termination of this Lease or any provisions thereof by the
Landlord or the Tenant.
10.02 Division of Condemnation Proceeds - In the event that all or any
---------------------------------
portion of the Leased Property is taken by way of condemnation, the
condemnation proceeds shall be divided between the Landlord and Tenant
(including Sub-Lessees), as their respective interests may appear. In the
event the parties cannot agree on a division of the proceeds, the dispute
shall be submitted to arbitration pursuant to Article 23 hereof, provided,
however, that the arbitrators appointed shall be MAI appraisers.
<PAGE>
-15-
ARTICLE 11 - INDEMNIFICATION OF THE LANDLORD AND TENANT
-------------------------------------------------------
11.01 Indemnification by Tenant - The Tenant will protect, indemnify and
-------------------------
save harmless the Landlord from and against all liabilities, obligations,
damages, penalties, claims, causes of action, costs, charges and expenses,
including attorneys' fees and expenses, which may be imposed upon or incurred by
or asserted against the Landlord by reason of (a) any accident, injury or damage
to any person or property occurring on or about the Leased Property or any part
thereof, (b) any use, nonuse or condition of the Leased Property or any part
thereof, and (c) any failure on the part of the Tenant to perform or comply with
any of the provisions of this Lease, except such as may be the responsibility of
the Landlord hereunder. In case any action or proceeding is brought against the
Landlord by reason of any such occurrence, the Tenant upon the Landlord's
request will at the Tenant's expense resist and defend such action or
proceeding, or cause the same to be resisted and defended either by counsel
designated by the Tenant, or where such occurrence is covered by liability
insurance, by counsel designated by the insurer.
11.02 Indemnification by Landlord - The Landlord will protect, indemnify
---------------------------
and save harmless the Tenant from and against all liabilities, obligations,
damages, penalties, claims, causes of action, costs, charges and expenses,
including attorneys' fees and expenses, which may be imposed upon or incurred by
or asserted against the Tenant by reason of:
(a) any accident, injury, damage claims or causes of action to any person
or property occurring on or about the Leased Property or any part
thereof; and
(b) any use, nonuse or condition of the Leased Property or any part
thereof,
which existed prior to the date of commencement of this Lease.
In case any action or proceeding is brought against the Tenant by
reason of any such occurrence, the Landlord upon the Tenant's request will at
the Landlord's expense resist and defend such action or proceeding, or cause the
same to be resisted and defended either by counsel designated by the Landlord,
or where such occurrence is covered by liability insurance, by counsel
designated by the insurer.
ARTICLE 12 - ASSIGNMENT, MORTGAGE, SUBLETTING, ETC.
---------------------------------------------------
12.01 Mortgage, etc. - The Tenant's interest in the Lease may from time to
--------------
time, without the Landlord's consent, be mortgaged, hypothecated, encumbered,
assigned, subleased, or otherwise transferred in whole or in part, by the Tenant
or by operation of law, merger, consolidation or otherwise. Any assignment of
this Lease shall be evidenced in writing, duly executed and acknowledged by the
assignee and duly recorded in the office of the Clerk of the Circuit Court,
Broward County, Florida, whereupon and whereby the assignee shall expressly
accept and assume all the terms and covenants in this Lease contained to be kept
and performed by the Tenant, and will comply with and be bound by them; and the
Tenant covenants and agrees that it will not make any assignment of this Lease,
except in the manner as above set forth, otherwise such assignment shall be
absolutely null and void. The assignment or subleasing of this Lease
<PAGE>
-16-
shall not release the Tenant of liability for the payment of the rent due
under this Lease or other obligations and duties on its part to be kept and
performed hereunder.
12.02 Collection of Rents Under Sub-Leases - If the Landlord becomes
------------------------------------
entitled to collect and receive the rents under any Sub-Lease, the Tenant
hereby authorizes the Landlord in the name of the Tenant or otherwise, as
the Landlord may elect, to take all necessary steps and legal proceedings
(whether by summary proceedings, ejectment, or other legal or equitable
suit or proceeding) to enforce the performance of the terms, covenants and
conditions of such Sub-Leases, or to restrain their breach, or in the event
of a breach, to secure the removal of any such Sub-Leasees and for any such
purpose the Tenant hereby consents to the use of its name by the Landlord.
The Landlord is hereby authorized and directed to apply all rents that it
may collect towards the maintenance and operation of the Leased Property,
the performance of the Tenant's covenants hereunder, and the payment to the
Landlord of any and all sums that may then or thereafter become due under
any of the provisions hereof. Nothing herein contained shall be deemed to
vest in the Landlord any present right or privilege in and to any Sub-
Lease, or to any benefits thereunder, unless and until the term of this
Lease shall have been terminated at the option of the Landlord, due to a
breach or default by the Tenant as aforesaid.
ARTICLE 13 - MORTGAGES
----------------------
13.01(a) The Tenant shall have the right from time to time during the term
hereof, to charge, by way of mortgages, deeds of trust or otherwise, this
Lease and the leasehold interest (or any part thereof) of the Tenant
created by it, any such charges herein sometimes called "Leasehold
Mortgages", which term shall also include renewals, modifications,
replacements and refinancing of any prior existing Leasehold Mortgage. The
term "Leasehold Mortgage" shall also include any security agreement
granting a security interest in personal property in connection with any
Leasehold Mortgage, whether or not such security agreement is a separate
instrument. The holder of any such Leasehold Mortgage, herein called a
"Leasehold Mortgagee", shall include the trustee under any deed of trust.
No Leasehold Mortgage shall be entered into by the Tenant for a term of
years expiring after the term of this Lease.
(b) The Landlord covenants to provide upon the Tenant's request an
estoppel certificate setting forth such matters as may reasonably be
required to faciliate any Leasehold Mortgage, including without limitation;
(i) That, except as stated, this Lease remains in full force and
effect as written and has not been rescinded, modified or
amended;
(ii) That, except as stated, the Tenant is not currently in default in
the making of any payment required of the Tenant by or pursuant
to this Lease and to the best of the Landlord's Knowledge,
information and belief is not otherwise currently in default
under or pursuant to this Lease; and
(iii) That, except as stated, to the best of the Landlord's knowledge,
information and belief, no event has occurred or failed to occur
which is, or
<PAGE>
-17-
is continued might become, cause for termination of this Lease.
(c) No Event of Default shall be deemed to exist under or pursuant to
this Lease with regard to any present or future mortgages of Tenant, or any
Leasehold Mortgagee, unless and until such time as (1) any Leasehold
Mortgagee shall have received written notice which specifies the particular
act, omission or event which if not cured within the time provided, will
constitute an Event of Default hereunder, and (2) a period of sixty (60)
days thereafter elapses. Any such Leasehold Mortgagee may in the event of
any such notice by Landlord, but without obligation, (1) do any or all
things which it may deem necessary or appropriate so as to avoid the
occurrence of such default and, (2) if the occurrence of such default is
not, by the nature thereof, one which can be avoided, such Leasehold
Mortgagee, within said 60-day period, (a) shall obtain a deed and
assignment in lieu of the foreclosure of its Leasehold Mortgage, or (b)
shall commence foreclosure or similar proceedings under its Leasehold
Mortgage so as to divest Tenant of its right, title and interest in, to and
under this Lease; provided, however, that such Leaseheld Mortgagee shall
have brought all unpaid payments of which Landlord has given notice as
aforesaid current together with all other payments which have come due
hereunder since the giving of such notice, and thereafter continues to keep
such payments current during the period required to divest Tenant of such
right, title and interest, it being agreed by Landlord, however, that
Landlord will not terminate this Lease for failure of the Leasehold
Mortgagee to make any such payment coming due after the giving of such
notice unless such payment shall remain unpaid for a period of fifteen (15)
days after notice by Landlord to the Leasehold Mortgagee: and provided
further that nothing herein shall require payment of any rental waived by
Landlord as hereinafter provided. No failure on the part of the Landlord to
give any such notice either to the Tenant or the Leasehold Mortgagee or to
both shall be deemed a waiver of the applicable default or defaults or of
the Landlord's continuing right to give notice of such default or defaults
so long as such default or defaults remain uncured.
(d) Subject to the provisions of this Article, if by reason of
default, or by reason of the term hereof being taken in execution or
attachment, this Lease shall be terminated prior to its stated expiration
date, the Landlord will enter into a new lease of the Leased Property or
such part thereof as is subject to such Leasehold Mortgage with any
Leasehold Mortgagee, for the remainder of the term hereof, effective
immediately prior to the time of such termination, at the rent and upon all
of the terms, provisions, covenants and agreements contained in this Lease,
subject, however, to the rights, if any, of the persons, other than the
Tenant or the Landlord or any person claiming by, through or under the
Landlord, then in lawful possession of any part of the Leased Property,
provided that:
(i) The Leasehold Mortgagees shall make written request to the
Landlord for such new lease within thirty (30) days next after
the date it receives written notice of such termination from
Landlord and such written request is accompained by payment to
the Landlord of all sums then due to the Landlord under this
Lease, less any amount waived by Landlord as hereinafter
provided, together with the reasonable expenses of the Landlord,
including
<PAGE>
- 18 -
reasonable legal fees and expenses in connection with any of the
foregoing and in connection with the new proposed lease herein
referred to; and
(ii) such leasehold Mortgagee shall pay to the Landlord at the time of
the execution and delivery of said new lease any and all sums
which would at the time of the execution and delivery of such new
lease be due under this Lease but for such termination, less any
amount waived by Landlord as hereinafter provided, or, if this
Lease shall have been terminated by reason of any default the
curing of which requires that such Leasehold Mortgagee shall be
in possession, such Leasehold Mortgagee shall immediately upon
taking possession of the subject lands, commence and diligently
prosecute the curing of such default and pay to the Landlord all
expenses, including reasonable legal fees and expenses incurred
by the Landlord by reason of such default.
(e) Any such new Lease and the leasehold estate thereby created shall
continue to maintain the same priority as this Lease with regard to any
mortgage of such portion of the Leased Property, or any other lien, charge,
or encumbrance thereon created by the Landlord.
(f) Under any such new lease delivered to such Leasehold Mortgagee,
the Landlord shall not warrant possession to the tenant thereunder, except
as against any person claiming by, through or under the Landlord, but shall
merely let such estate as the Landlord may then have, subject only to those
matters to which this Lease was subject.
(g) If the Landlord shall have re-entered the Leased Property or a
portion thereof prior to the date on which the new lease shall be executed
and delivered, and shall have collected the rents from any Sub-Lessees of
space therein, there shall be deducted from any sums due to the Landlord
upon the execution and delivery of the new lease, an amount equal to the
net income, if any, collected by the Landlord from the date of the
termination of this Lease to the date of execution and delivery of the new
lease, but if such collections shall not equal or exceed the expense of
operating the Leased Property during the period of the Landlord's
occupancy, such Leasehold Mortgagee shall pay the Landlord the amount of
such deficiency.
(h) The failure of such Leasehold Mortgagee to execute and deliver to
the Landlord such new lease within thirty (30) days after the same is
tendered by the Landlord or to comply with any of the other provisions and
conditions herein specified shall conclusively be deemed and abandonment
and waiver on the part of such Leasehold Mortgagee of all rights to obtain
such new lease and of any and all rights against the Landlord.
(i) The Landlord hereby represents that such Leasehold Mortgagee
shall be entitled to reply upon the provisions of this Section and to
enforce such provisions against the Landlord subject to the provisions of
this Lease.
(j) The rights of the Leasehold Mortgagees under this Section shall
cease once the Tenant or Sub-Lessor has discharged all of its obligations
under the Leasehold Mortgages notwithstanding that a discharge of such
Leasehold Mortgages may not have been executed or recorded.
<PAGE>
- 19 -
(k) Landlord agrees that it will not negotiate, sell, assign,
transfer or hypothecate the Leased Property or any portion thereof or any
of its rights under this Lease unless notice is given to such subsequent
party of the terms and provisions of this agreement, and Landlord agrees to
cause any such subsequent parties to so agree with respect to any
subsequent negotation, sale, assignment, transfer or hypothecation.
(l) Landlord shall have no right or power to terminate this lease
except after notice to and opportunity of any such Leasehold Mortgagee to
take curative action or to acquire the leasehold interest both as herein
above provided.
13.02 Redemption of Leasehold Mortgages - Notwithstanding the
---------------------------------
provisions of Section 13.01 hereof, the Landlord may with the Leasehold
Mortgagee's consent at its option within thirty (30) days of the
termination of this Lease pay to the Leasehold Mortgagees all sums owing to
the Leasehold Mortgagees under such Leasehold Mortgages including interest
calculated to the date of such payment whereupon all rights of the
Leasehold Mortgagees with respect to the Leased Property shall cease and be
at an end and the Leasehold Mortgagee shall, at the request of the
Landlord, execute and deliver to the Landlord an assignment or discharge of
such Leasehold Mortgage together with an assignment and release of all of
its rights with respect to the Leased Property, such discharge, assignment
and release to be in a form satisfactory to the Landlord and to be prepared
at the expense of the Tenant.
13.03 Duration of Mortgagee's Rights - The rights and interests of a
------------------------------
Leasehold Mortgagee shall remain in full force and effect for such time as
the indebtedness to the Leasehold Mortgagee shall remain outstanding,
subject to the terms of this Lease. After payment and satisfaction of such
indebtedness, otherwise than as the result of an enforcement of the
collateral for such indebtedness or the acceptance of an assignment and
conveyance in lieu of such enforcement, the rights and interests of the
Leasehold Mortgagee shall automatically terminate and expire.
13.04 Non-Liability of Landlord - Nothing herein shall be construed so
-------------------------
as to impose upon the Landlord any obligation or liability
with respect to the payment of such indebtedness to any Leasehold
Mortgagee.
13.05 No payment made to the Landlord by a Leasehold Mortgagee shall
constitute agreement that such payment was, in fact, due under the terms of
this Lease; and a Leasehold Mortgagee having made any payment to the
Landlord pursuant to the Landlord's wrongful, improper or mistaken notice
or demand shall be entitled to the return of any such payment or portion
thereof provided it shall have made demand therefor not later than one year
after the date of its payment.
13.06 Power to Charge Reversion - The Landlord shall have the right
-------------------------
without restriction to mortgage, charge, or otherwise encumber its interest
in the Leased Property, provided such mortgage, charge or encumbrance is
subordinated in all respects to this Lease and to any Sub-Leases. Landlord
shall use its best efforts to obtain from any mortgagee a recordable
instrument to the effect that the Tenant will not be joined as a party
defendant in any foreclosure action.
<PAGE>
- 20 -
13.07 Certain Rights of Leasehold Mortgagees - Whether or not there is
--------------------------------------
any default under this Lease or any Sub-Lease, Leasehold Mortgagees shall
have and may exercise, except as expressly provided in this Article 13, any
rights, remedies and powers granted in their respective Leasehold
Mortgages, including without limitation the following:
(a) to take possession of any part of the leased Property and occupy,
operate, preserve, repair and improve the same;
(b) to receive and collect rents, issues and profits of and from the
Leased Property and apply them to the indebtedness secured by such
Leasehold Mortgage;
(c) to appoint a receiver with power to take possession of, operate
and preserve the Leased Property, collect rents, issues and profits and
take such other actions and exercise such powers as are reasonable and
customary in connection therewith;
(d) to exercise any power of sale provided in such Leasehold Mortgage
with respect to the Lease or Sub-Lease and the estate of the Leasehold
Mortgagor thereunder;
(e) to enter upon and inspect the Leased Property from time to time
and to ascertain if the Leasehold Mortgagor has complied in all respects
with the provisions of the Leasehold Mortgage;
(f) to appear in and defend any action or proceeding purporting to
affect this Lease or the Sub-Lease or the Leased Property;
(g) to perform any covenant or obligation or exercise any of the
rights and powers of the Leasehold Mortgagor hereunder, or under any Sub-
Lease;
(h) to perform any action required of the Leasehold Mortgagor
hereunder, under any Sub-Lease or under the Leasehold Mortgage, including,
but not limited to, signing the Leasehold Mortgagor's name and paying any
required amount;
(i) to add to or include in the amount secured by such Leasehold
Mortgage any cost or expense of exercising any right, remedy or power
hereinabove authorized, including reasonable attorney's fees;
(j) to collect and apply any condemnation award or insurance proceeds
to which the Leasehold Mortgagor is entitled; and
(k) Leased Property as used in this section 13.07 shall be defined as
that part of the Leased Property as is encumbered by the respective
Leasehold Mortgages.
13.08 Rights of Assignee - Any Leasehold Mortgage or any purchaser of
------------------
the Tenant's interest in, to and under this Lease or in and to the subject
property, shall have the right upon the divesture of the Tenant's interest
in, to and under this Lease to exercise and have the benefit of any and all
rights, privileges and protections of Tenant hereunder, including without
limitation Tenant's right to possess the subject property for the balance
of the term hereof at the rental specified herein in the same manner and to
the same extent as if the Mortgagee or such purchaser were the assignee of
Tenant hereunder.
<PAGE>
- 21 -
13.09 Non-Merger - If Tenant should acquire Landlord's interest in and
----------
to the subject property, or if Landlord should acquire Tenant's interest,
at which time there remains outstanding a Leasehold Mortgage, the leasehold
interest in and to the subject property shall not merge into, but shall
remain separate from the fee interest if the result of any such merger
would adversely affect the rights of any Leasehold Mortgagee.
13.10 Amendments - This Lease shall not be modified or surrendered to
----------
Landlord or cancelled by Tenant, nor shall Landlord accept a surrender of
this Lease without the prior written consent of all Leasehold Mortgagees.
ARTICLE 14 - LANDLORD'S RIGHT TO PERFORM AND INSPECT
----------------------------------------------------
14.01 Right of Landlord to Perform Tenant's Covenants - If an Event of
-----------------------------------------------
Default occurs, the Landlord may, but without being obligated to do so, ten
(10) days or more after written notice to the Tenant, make such payment or
perform such act for the account and at the expense of the Tenant. No such
payment or act by the Landlord shall operate to release or discharge the
Tenant from any obligation hereunder. All sums paid by the Landlord,
pursuant to this Section 14.01, and all costs and expenses (including
without limitation, attorneys' fees and expenses) so incurred, together
with interest thereon at the Prime Rate, from the date of payment, shall
constitute Additional Amounts (as defined in Section 3.02) payable by the
Tenant under this Lease and shall be paid by the Tenant to the Landlord on
demand.
14.02 Right to Inspect and Enter Leased Property - The Landlord and its
------------------------------------------
authorized representatives shall have the right to enter the Leased
Property at all reasonable times for the purpose of doing any work under
Section 14.01, and may take all such action thereon as may be necessary or
appropriate for any such purpose. Further, at any time within one (1) year
prior to the expiration of the term of this Lease, the Landlord may upon
reasonable notice enter the Leased Property for the purpose of showing the
same to prosective tenants, purchasers or mortgagees; and, within such
period, the Landlord may display on the Leased Property advertisements for
sale or letting. No entry pursuant to this Section 14.02 shall constitute
an eviction of the Tenant.
ARTICLE 15 - EVENTS OF DEFAULT AND REMEDIES
-------------------------------------------
15.01 Events of Default - An Event of Default shall be deemed to have
-----------------
occurred hereunder if any one or more of the following events shall occur:
(a) If Default shall be made in the due and punctual payment of
any rent payable hereunder or in the payment of other charges and
assessments to be paid by the Tenant hereunder, when and as the
same shall become due and payable, provided that the Tenant shall
be entitled to receive written notice of such Default and shall
thereafter have thirty (30) days in which to cure the same before
an Event of Default shall exist hereunder;
(b) If the Default shall be made by the Tenant in the performance of
or compliance with any of the covenants, agreement, terms or
conditions contained in this Lease other than those referred to
in the foregoing sub-section (a) and such
<PAGE>
- 22 -
Default shall continue for a period of sixty (60) days after
written notice thereof from the Landlord to the Tenant. However,
with respect to any such Default which is of such a nature that
it cannot, with due diligence and adequate resources, be cured
within a period of sixty (60) days, an event of Default shall not
be deemed to exist if the Tenant shall have commenced the curing
of such Default within the period of fifteen (15) days after
written notice thereof from the Landlord and so long as the
Tenant shall thereafter proceed with all due diligence and all
appropriate action to complete the curing of such default;
(c) If the Tenant shall abandon the Leased Premises or shall file
voluntary petitions in bankruptcy or shall be adjudicated
bankrupt or insolvent, or shall file any petition or answer
seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for
themselves under any present or future federal, state or other
statute, law or regulation, or shall seek or consent to or
acquiesce in the appointment of any trustees, receivers or
liquidators of the Tenant or of all or any substantial part of
its properties, or of any portion of the Leased Property, or
shall make any general assignment for the benefit of creditors,
or shall admit in writing its inability to pay its debts
generally as they become due, as the case may be;
(d) If petitions shall be filed against the Tenant seeking any
reorganization, arrangements, composition, readjustment,
liquidation, dissolution or similar relief under any present or
future federal, state or other statute, law or regulation, and
shall remain undismissed or unstayed for an aggregate of ninety
(90) days (whether or not consecutive), or if trustees, receivers
or liquidators of the Tenant, or of all or any substantial part
of its properties or of any portion of the Leased Property, shall
be appointed without the consent or acquiescence of the Tenant
and such appointment shall remain unvacated or unstayed for an
aggregate of ninety (90) days (whether or not consecutive).
15.02 Remedies When an Event of Default Exists - At any time when an
----------------------------------------
Event of Default, as defined in Section 15.01 hereof shall exist, the
Landlord may, without further notice to the Tenant, exercise any one or
more of the remedies set forth below:
(a) Declare this lease and all rights of Tenant, its successors or
assigns, thereunder ended and terminated and re-enter upon and
retake possession of the Leased Property as of its former estate,
and may retain any prepaid rentals or good faith, security or
other deposits, or
(b) Enter upon the Leased Property as the agent of the Tenant, by
force or otherwise, without being liable in any way therefor and
lease and relet the Leased Property as agent of the Tenant, at
such price and upon such terms and for such duration of time as
the Landlord may determine, and receive the rent therefor,
applying the same to the
<PAGE>
-23-
payment of the rent due under these presents, and if the full rental
herein provided for shall not be realized by the Landlord over and
above the expenses to the Landlord incurred in such lease or
reletting, said Tenant shall pay any deficiency,
and in either such event this Lease shall constitute a Security Agreement within
the meaning of the Uniform Commercial code of the State of Florida and Landlord
shall have and retain a lien upon all property belonging to the Tenant situate
upon said Leased Property to secure payment of rent due pursuant to the terms of
this Lease. Landlord agrees to use its best efforts to re-lease or rent the
property.
15.03 Attorneys' Fees - The Tenant will pay all reasonable costs and
---------------
expenses incurred by or on behalf of the Landlord, including, without
limitation, reasonable attorneys' fees and expenses, occasioned by any default
by the Tenant under this Lease. Landlord will pay all reasonable costs and
expenses incurred by or on behalf of Tenant, including without limitation
reasonable attorneys' fees and expenses occasioned by any breach of the terms
and conditions of this lease by Landlord.
ARTICLE 16 - DEMOLITION, ETC.
-----------------------------
16.01 Subject to provisions of Section 4.02 hereof, the Tenant may at any
time during the term of the Lease remodel, add to or reconstruct the Hotel and
other building or buildings presently existing or later placed on the Leased
Property or wreck, raze, demolish or remove the Hotel and other building or
buildings and replace same with a different or greater building or buildings;
provided, however, that the building or buildings when so remodeled, added to,
constructed or reconstructed, and any building or buildings so demolished, shall
be designed and constructed for one or more of the following purposes and uses:
single family or multiple residential, hotel, motel, apartments, office, store
building or other legitimate residential, commercial or business purposes
(condominium or rental). The Tenant agrees to save and hold the Landlord free
and harmless from loss, cost or damage by virtue of the remodelling,
construction, wrecking, razing, demolition or removal of said building or
buildings.
ARTICLE 17 - LANDLORD'S AND TENANT'S REMEDIES
---------------------------------------------
17.01 No Waiver, etc. by Landlord or Tenant - No failure by either party to
-------------------------------------
insist upon the strict performance of any provision of this Lease or to exercise
any right, power or remedy in the event of a breach hereof, and no acceptance or
payment of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach or provision. No waiver of any breach
shall affect or alter the rights and remedies of the Landlord or the Tenant
under this Lease, with respect to any other then existing or subsequent breach
thereof, unless expressly so stipulated in writing.
ARTICLE 18 - SURRENDER OF LEASED PROPERTY
-----------------------------------------
18.01 Tenant Shall Surrender - Except as herein provided, the Tenant shall,
----------------------
upon any expiration or earlier termination of this Lease, peaceably vacate and
surrender to the Landlord the Leased Property.
<PAGE>
-24-
ARTICLE 19 - QUIET ENJOYMENT, CONVEYANCE BY LANDLORD
----------------------------------------------------
19.01 Quiet Enjoyment - The Tenant, upon paying the Basic Rent, and
---------------
Quarterly Basic Rent Installments and all Additional Amounts and other payments
provided for in this Lease, and upon performing and complying with all the
provisions of this Lease, shall lawfully and quietly hold, occupy and enjoy the
Leased Property during the term of this Lease without hindrance or molestation
of the Landlord, or others claiming through the Landlord, subject, however, to
the right of the Landlord to enter the Leased Property as provided herein, to
the matters referred to in Section 2.01 and subject to any Taking and to any
acts of God or the public enemy or the armed forces of the United States.
19.02 Conveyance by the Landlord - In case the Landlord, or any
--------------------------
successor owner of the Leased Property, shall convey or otherwise dispose of the
Leased Property in accordance with the terms of this Lease, all liabilities and
obligations on the part of the Landlord accruing thereafter shall terminate, and
thereupon all such liabilities and obligations shall be binding upon the new
owner.
19.03 Non-Disturbance by Landlord - Landlord may execute any
---------------------------
mortgages, deeds of trust, or other financial instruments relating only to the
Landlord's rights in the Leasehold Property, which mortgages, deeds of trust or
other financial instruments will be junior and subordinate to this Lease, any
Sublease or Leasehold Mortgage, as long as such instruments cannot interfere
with the quiet enjoyment of the Leased Property by the Tenant and any of its
successors in interest.
ARTICLE 20 - CERTIFICATES
-------------------------
20.01 Estoppel Certificates - During the term of this Lease, each party
---------------------
shall, upon the request of the other party, acknowledge and deliver to the other
a certificate certifying:
(a) that this Lease is unmodified, is in good standing and in full
force and effect (or, if there have been modifications, that the same
is in full force and effect as modified and stating the
modifications):
(b) whether or not there are then existing any known offsets or
defenses against the enforcement of any of the provisions of this
Lease (and, if so, specifying the same); and
(c) the date, if any, to which the Basic Rent, Quarterly Basic Rent
Installments and Additional Amounts have been paid in advance.
Any such certificate may be relied upon by any prospective purchaser or
mortgagee of the Leased Property or any part thereof.
ARTICLE 21 - ACCEPTANCE OF SURRENDER
------------------------------------
21.01 Acceptance of Surrender - No surrender to the Landlord of this
-----------------------
Lease or of the Leased Property or any part thereof or of any interest therein
by the Tenant shall be valid or effective unless required by the provisions of
this Lease or unless agreed to and accepted in writing by the Landlord.
<PAGE>
- 25 -
ARTICLE 22 - JOINDER OF THE LANDLORD
------------------------------------
22.01 Joinder of the Landlord - The Landlord shall not be required to join
-----------------------
in any contest referred to in Section 7.01 unless any Legal Requirement requires
that such contest be brought by or in the name of the Landlord, in which event
the Landlord shall join in such contest or permit the same to be brought in its
name, provided that the Tenant shall pay all expenses in connection therewith,
including Landlord's attorneys fees, and indemnify and save harmless the
Landlord from and against the same and any loss.
ARTICLE 23 - ARBITRATION
------------------------
23.01 Arbitration - In each case specified in this Lease in which it shall
-----------
become necessary to resort to arbitration, such arbitration shall be determined
as provided in this Article. The party desiring such arbitration shall give
written notice to that effect to the other party, specifying in said notice the
name and address of the person designated to act as arbitrator on its behalf.
Within fifteen (15) days after the serving of such notice, the other party shall
give written notice to the first party specifying the name and address of the
person designated to act as arbitrator on its behalf. If the second party fails
to notify the first party of the appointment of its arbitrator, as aforesaid,
within or by the time above specified, then the appointment of the second
arbitrator shall be made in the same manner as hereinafter provided for the
appointment of a third arbitrator in a case where the two arbitrators appointed
hereunder and the parties are unable to agree upon such appointment. The
arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed. If the said two arbitrators shall not agree upon the
decision to be made in such dispute, they shall, themselves, appoint a third
arbitrator who shall be a competent and impartial person, and in the event of
their being unable to agree upon such appointment within ten (10) days after the
time aforesaid, the third arbitrator shall be selected by the parties themselves
if they can agree thereon within a further period of fifteen (15) days.
If the parties do not so agree, then either party, on behalf of both,
may request the then presiding Judge of the Circuit Court of the County of
Broward, the State of Florida to appoint such third arbitrator, and the other
party shall not raise any question as to the court's full power and jurisdiction
to entertain the application and make the appointment and the person so
appointed shall be the third arbitrator. The decision of the arbitrators so
chosen shall be given within a period of thirty (30) days after the appointment
of such third arbitrator. The decision in which any two of the arbitrators so
appointed and acting hereunder concur shall in all cases be binding and
conclusive upon the parties. Each party shall pay the fees and expenses of the
one or the two original arbitrators appointed by such party, or in whose stead
as above provided, such arbitrator was appointed, and the fees and expenses of
the third arbitrator, if any, shall be borne equally by both parties. Except as
otherwise provided in this Lease, the said arbitration shall be conducted in the
Broward County, Florida, and in accordance with the rules then pertaining of the
American Arbitration Association, and the decision of the arbitrators shall be
final and binding upon the parties and judgment upon any arbitration decision
rendered may be entered by any Court having jurisdiction thereof.
<PAGE>
-26-
ARTICLE 24 - NOTICES AND APPROVALS
----------------------------------
24.01 Notices - All notices, demands, requests and other instruments
-------
(collectively "notices") shall be given by depositing the same in the mail,
postage prepaid, registered or certified with return receipt requested, or
by telex or telegram (a) if to the Tenant at Suite 1000, 1 Lincoln Centre,
5400 LBJ Freeway, Dallas, Texas, U.S.A. 75240, with a copy to Cavendish
Investing Ltd. Suite 2210, 130 Adelaide Street West, Toronto, Ontario,
Canada MSH 3P5, Attention: The President, or at such other address as the
Tenant from time to time may have designated by written notice to the
Landlord, and (b) if to Landlord addressed to the Landlord c/o Mr. C.H.
Alberding, 9 East Huron Street, Chicago, Illinois, 60611 U.S.A., with a
copy to the Landlord's attorneys, Messrs. Shackelford, Stallins & Evans,
1400 Metropolitan Bank Building, P.O. Box 3324, Tampa, Florida 33601,
U.S.A. Attention: Mr. Thomas P. Evans or at such other address as the
parties from time to time may designate by written notice. Any notice shall
not be presumed to have been delivered until received.
ARTICLE 25 - SALE OF LEASED PROPERTY - RIGHT OF
------------------------------------------------
FIRST REFUSAL TO PURCHASE
-------------------------
25.01 If the Landlord wishes to sell the Leased Property at any time
and enters into negotiations which seem likely to result in an offer which
the Landlord might accept, and the Tenant is not in default hereunder, the
Landlord shall notify the Tenant of such negotiations. If the Landlord
during the term hereof receives a bona fide offer from a third party to
purchase the Leased Property subject to the Lease, which offer the Landlord
is willing to accept, the Landlord shall notify the Tenant in writing of
such offer and shall send the Tenant a copy of such offer to purchase. The
Tenant shall have the right to purchase the Leased Property, if the Tenant
is not in default hereunder, upon the same terms and conditions as those
set forth in such offer. Such option shall be exercised (if at all) within
twenty (20) Business Days from the date of the receipt of a copy of the
offer. If the Tenant elects to exercise the option the Tenant shall, within
such twenty (20) Business Days, execute a contract of sale with the
Landlord to purchase the Leased Property upon the same terms and conditions
as are set forth in such offer and shall upon the execution of such
contract pay to the Landlord a deposit equivalent to the amount of the
deposit specified in such offer. If any part of the purchase price payable
for the Leased Property is comprised of non-cash consideration which by its
nature or terms is incapable of being provided by the Tenant on the same or
substantially similar basis, the Tenant at its option may elect to pay the
cash equivalent of such non-cash consideration together with such
additional cash consideration as may be necessary to adequately and
reasonably compensate the Landlord for any adverse tax result which it may
suffer by reason of not receiving such non-cash consideration and failing
agreement as to the amount of such cash consideration or additional cash
consideration, the matter shall be submitted to arbitration as provided in
Article 23 hereof.
ARTICLE 26 - MISCELLANEOUS
--------------------------
26.01 Invalidity of Portion of Lease - If any provision of this Lease
------------------------------
or any application thereof shall be invalid or unenforceable, the remainder
of this Lease and any other
<PAGE>
- 27 -
application of such provision shall not be effected thereby.
26.02 No Modifications Except in Writing - Neither this Lease nor any
----------------------------------
term or provision hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against
which the enforcement of the change, waiver, discharge or termination is
sought.
26.03 Florida Law Governs - This Lease shall be governed by and
-------------------
construed and enforced in accordance with the local laws of the State of
Florida.
26.04 Captions for Convenience - The captions on Articles and Sections
------------------------
in this Lease are for convenience of reference ony and shall in no way
define, limit or describe any of the provisions of this Lease.
26.05 Counterparts - This Lease may be executed in several
------------
counterparts, each of which shall be an original but all of which shall
constitute but one and the same instrument.
26.06 Reference to Landlord - Any reference to the Landlord shall
---------------------
include Holiday Hotel Corporation, Lubbock Corporation and Poinsettia
Corporation, jointly and severally.
26.07 Reference to Tenant - Any reference to the Tenant shall include
-------------------
Cavendish Properties Inc. or its assigns.
26.08 Successors and Assigns - The covenants and agreements of this
----------------------
Lease shall, subject to the provisions of this Lease, bind and enure to the
benefit of the Landlord and its successors and assigns, and Cavendish
Properties Inc. and its successors and assigns.
26.09 Whenever pursuant to any of the terms of this Lease:
(i) any act or thing is to be done by the Tenant or the Landlord, as
the case may be; or
(ii) any instrument is to be executed by the Landlord or the Tenant,
as the case may be;
if such act or thing is done or instrument is executed by one of the
corporations constituting the Landlord or the Tenant, as the case may be,
the same shall in all respects constitute performance by the Tenant or the
Landlord, as the case may be, with the same full force and effect as if
done and/or executed by all parties constituting the party or all parties
constituting the Landlord and any payment in satisfaction of the Landlords'
or Tenants' obligation by any one of the corporations constituting the
Landlord or the Tenant, as the case may be, shall constitute full
performance by the Tenant or the Landlord, as the case may be.
26.10 Consents and Approvals - The Landlord and the Tenant shall each
----------------------
designate by letter from time to time one (1) representative competent to
provide any consent or approval which may be required under this Lease. Any
consent or approval may be sought and may be given orally, but in such
event the party giving the consent or approval
<PAGE>
-28-
shall confirm the same in written or telegraphic form within three (3)
Business Days thereafter. In addition, each representative shall have full
power and authority to attend to and act upon all matters that may be
necessary in relation to the affairs of the Landlord and the Tenant
respectively, pursuant to the terms of this Lease, and the Landlord and the
Tenant shall be bound by the actions taken by their respective
representatives. Whenever either party is called upon under this Lease to
give or withhold any approval or otherwise exercise judgment, the same
shall be done in a reasonable manner in the light of the circumstances and
giving full effect to the purposes intended to be achieved by this Lease.
26.11 Memorandum of Lease - The parties shall execute upon the request
-------------------
of the other a memorandum of lease suitable for recording purposes.
26.12 Authorization - Landlord and Tenant hereby represent and covenant
-------------
that they have been fully and duly authorized to execute this Lease and
that the terms and conditions contained herein are binding on the
respective parties hereto. Further, the individual signing here on behalf
of Landlord and Tenant further covenant, agree and represent that they are
authorized by the entities they represent to sign this Lease and that the
same is binding upon said entities.
26.13 No Joint Venture or Partnership - The parties hereto state that
-------------------------------
they have not created and do not intend to create by this Lease a joint
venture or partnership relation between them.
26.14 Modifications for Leasehold Mortgages - From time to time, if any
-------------------------------------
Leasehold Mortgagee to whom Tenant proposes to make a Leasehold Mortgage
shall require modifications to the Lease as a condition to making any loan
or sale secured by such Mortgage, Landlord agrees to enter into an
agreement with Tenant in recordable form making the modifications that are
requested by such lender, provided that such changes are reasonable and
shall not encumber or jeopardize the interest of the Landlord in any
material respect. Under no circumstances shall Landlord be required to make
any agreement that changes in any material way the substantive provisions
of this Lease or Landlord's obligations or benefits hereunder. It is also
agreed that any Leasehold Mortgagee who acquires this Lease under the terms
of Article 13 may acquire same either directly or through one of its
Affiliates. If Leasehold Mortgagee or its Affiliate does so acquire this
Lease and disposes of same within three years from the date of acquisition,
then such Leasehold Mortgagee or Affiliate shall only be liable for the
duties and obligations under this Lease during the period in which it holds
leasehold title provided that said Leasehold Mortgagee or Affiliate
requires the assignee of this Lease or sublease to assume the obligations
hereunder.
ARTICLE 27 - SECURITY DEPOSITS
------------------------------
27.01 On the date hereof, the Tenant has deposited with the Landlord
the sum of $662,500 the receipt of which the Landlord hereby acknowledges.
It is understood that the Landlord, on not less than 30 days' notice given
at any time and from time to time during the term of the Lease, may require
the Tenant to advance additional amounts up to a maximum of $1,837,500 so
that the amounts then held by
<PAGE>
-29-
the Landlord as a security deposit in accordance with the following terms
will not exceed $2,500,000:
(a) It is agreed that the first $1,250,000 of the security deposit
held by the Landlord (or such lesser amount as may have been
deposited with the Landlord during the first seven years of the
term of the Lease (the "Initial Portion")) shall be held by the
Landlord as security for the compliance by the Tenant for the
first three (3) years of the term of the Lease with the terms and
provisions of this Lease. If the Tenant fully and faithfully
complies with the terms and provisions of the Lease for the first
three (3) years of the Term, the Initial Portion shall be repaid
by the Landlord to the Tenant in equal annual installments on the
third, fourth, fifth, sixth and seventh anniversary dates of this
Lease;
(b) Any amounts advanced to the Landlord on account of the security
deposit in excess of $1,250,000 (the "Remaining Portion") shall
be held as security for the performance by the Tenant of the
terms and provisions of the Lease for the fourth through
thirteenth years of the Term of the Lease, both inclusive. The
Remaining Portion shall be repaid by the Landlord to the Tenant
in equal consecutive annual instalments payable on the twelfth
and thirteenth anniversary dates of this Lease;
(c) The Sum, or the portion thereof remaining unpaid from time to
time, shall bear interest at an annual rate calculated daily and
payable by the Landlord to the Tenant monthly on the last day of
each and every month until the Sum is fully repaid, such rate to
be equal to the Prime Rate and the first of such monthly payments
to be paid on the last day of the month in which this Lease is
executed and delivered by the parties hereto;
(d) As security for the Landlord's obligations to repay the Remaining
Portion to the Tenant, or so much thereof as remaining due and
owing the Tenant, the Landlord shall simultaneously to the
effective date thereof give to the Tenant a first mortgage on its
fee estate on the date of this Lease securing the sum of ONE
MILLION TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($1,250,000.00)
upon the terms and conditions set forth in subparagraphs (b) and
(c) hereof; and the mortgage shall be satisfied and discharged
when the Sum has been repaid or consumed pursuant to any of the
provisions of this Article 27;
(e) If the Tenant vacates or surrenders the Leased Property during
the first thirteen (13) years of the term of the Lease, or if
there is monetary default under the Lease for a period of thirty
(30) days after written notice by the Landlord to the Tenant,
then in that event the amount required to remedy the default
shall be payable from whichever of the Initial Portion or
Remaining Portion of the Sum that then remains unpaid in order to
remedy such default, or if the amount available to remedy such
default is insufficient, the Landlord shall be entitled to its
other rights and remedies pursuant to the Lease or at Law.
27.02 Set Off - Tenant shall have the right at its election from time
-------
to time to set off against any rent payments due under this Lease, any sum
or sums including interest in connection with the Initial Portion or
Remaining Portion as and when the same become due by Landlord to Tenant
pursuant to the terms of this Lease.
<PAGE>
- 30 -
ARTICLE 28 - RENEWAL
--------------------
28.01 If the Tenant is not in default hereunder (both at the time of
exercise of its right of renewal as provided herein and as of the
commencement date of the renewal term) and has observed and performed every
covenant and proviso herein contained, upon notice in writing delivered to
the Landlord not later than twelve (12) months before the expiry of the
term hereof, the Tenant shall have the right to renew this Lease for a
further term of twenty-five (25) years, such renewal term to commence upon
the expiration of the term hereof upon the same terms and conditions save
and except that there shall be no right to any further renewal of this
Lease.
ARTICLE 29 - REZONING
---------------------
29.01 The Landlord and Tenant agree that they will each use their best
efforts and co-operate fully with one another to accomplish the rezoning of
the RIA property comprised in the Leased Property to an R3 classification
or the equivalent provided that if the Tenant has completed development
activity on the Leased Property to a stage where such rezoning would not be
advantageous to it, the Tenant shall not thereafter be obligated hereunder.
IN WITNESS WHEREOF the parties hereto have duly executed this
Lease.
WITNESSES:
HOLIDAY HOTEL CORPORATION
As to Holiday Hotel Corporation:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx By: /s/ C.H. Alberding
-------------------------------- ---------------------------------
C. H. Alberding, President
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Attest: /s/ Tucker Moore
-------------------------------- -----------------------------
Tucker Moore, Assistant
Secretary
(Corporate Seal)
POINSETTIA CORPORATION
As to Poinsettia Corporation:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx By: /s/ C.H. Alberding
-------------------------------- ---------------------------------
C. H. Alberding, President
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Attest: /s/ Tucker Moore
-------------------------------- -----------------------------
Tucker Moore, Assistant
Secretary
(Corporate Seal)
LUBBOCK CORPORATION
As to Lubbock Corporation:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx By: /s/ C.H. Alberding
-------------------------------- ---------------------------------
C. H. Alberding, President
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Attest: /s/ Tucker Moore
-------------------------------- -----------------------------
Tucker Moore, Assistant
Secretary
(Corporate Seal)
<PAGE>
-31-
CAVENDISH PROPERTIES INC.
As to Cavendish Properties Inc.:
XXXXXX By: /s/ Derek J. Watchorn
- -------------------------------- --------------------------------
Derek J. Watchorn, Assistant
XXXXXX Secretary
- --------------------------------
(Corporate Seal)
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing Memorandum of Lease was acknowledged before me this 30th day
of November, 1981 by C. H. Alberding, as President, and Tucker Moore, as
Assistant Secretary, of Holiday Hotel Corporation, a Florida corporation, on
behalf of said corporation.
/s/ Susan King
-----------------------------------
NOTARY PUBLIC
State of Florida at Large
My Commission Expires: 1/9/82
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing Memorandum of Lease was acknowledged before me this 30th day
of November, 1981 by C. H. Alberding, as President, and Tucker Moore, as
Assistant Secretary, of Poinsettia Corporation, a Florida corporation, on behalf
of said corporation.
/s/ Susan King
-----------------------------------
NOTARY PUBLIC
State of Florida at Large
My Commission Expires: 1/9/82
STATE OF FLORIDA )
) SS.
COUNTY OF DADE )
The foregoing Memorandum of Lease was acknowledged before me this 30th day
of November, 1981 by C. H. Alberding, as President, and Tucker Moore, as
Assistant Secretary, of Lubbock Corporation, a Texas corporation, on behalf of
said corporation.
/s/ Susan King
-----------------------------------
NOTARY PUBLIC
State of Florida at Large
My Commission Expires: 1/9/82
<PAGE>
- 32 -
STATE OF FLORIDA )
) ss.
COUNTY OF DADE )
The foregoing Memorandum of Lease was acknowledged
before me this 30th day of November, 1981 by Derek J.
Watchorn, as Assistant Secretary of Cavendish
Properties, Inc., a Texas corporation, on behalf of
said corporation.
/s/ Susan King
----------------------------------------
NOTARY PUBLIC
State of Florida at Large
My Commission Expires: 1/9/82
<PAGE>
SCHEDULE A
----------
Legal Description of Land
-------------------------
Parcel "A" and Lots 7 and 8, HOLIDAY BEACH, according to the plat thereof, as
recorded in Plat Book 27, Page 39, of the Public Records of Broward County,
Florida, together with those lands which have accreted to said Lot 7, lying
between the platted East line of said Lot 7 and the mean high water line of the
Atlantic Ocean; and a portion of Government Lot 1 and a portion of former New
River Sound, including submerged lands now known as Mayan Lake, in Section 13,
Township 50 South, Range 42 East, more full described as follows:
Beginning at the Southwest corner of said Parcel "A" HOLIDAY BEACH; thence North
1 degrees 50' 25" West, along the West line of said Parcel "A", a distance of
35.00 feet to the Southeast corner of Parcel "A", MAYA MARCA SUBDIVISION,
according to the plat thereof, as recorded in Plat Book 63, Page 41, of the
Public Records of Borward County, Florida; thence Westerly along the South lines
of said Parcel "A", MAYA MARCA SUBDIVISION, the following three courses and
distances: South 88 degrees 09' 35" West, a distance of 10.00 feet; thence South
45 degrees 30' 35" West, a distance of 51.67 feet; thence South 88 degrees 09'
35" West, a distance of 18.43 feet to the point of termination of the said three
courses and distances; thence South 49 degrees 29' 24" East, a distance of 37.11
feet; thence South 0 degrees 57' 11" West, a distance of 984.71 feet to a point
on a line 300.00 feet North of and parallel with the North line of the South 15
chains of said Government Lot 1; thence North 88 degrees 13' 08" East along said
parallel line, a distance of 662 feet more or less to the shoreline of the
Atlantic Ocean; thence Northerly along said shoreline to a point on a line
415.00 feet South of and parallel with the North line of said Section 13; thence
South 88 degrees 09' 35" West, along said parallel line and along the South
lines of said Lots 7 and 8, and Parcel "A" HOLIDAY BEACH a distance of 602 feet
more or less to the Point of Beginning.
Said land situate, lying and being in the City of Fort Lauderdale, Broward
County, Florida.
Together with:
The buildings and other improvements situated on the above-described real
property; and
All and singular the rights and appurtenances pertaining thereto, including all
right, title and interest of the Lessor in and to adjacent streets, roads,
alleys, rights-of-way and easements, and all reversions thereof, if any; and
All naturally accreted land lying waterward of the above-described real
property.
<PAGE>
"SCHEDULE B"
------------
1. Mineral reservation and petroleum reservation in favor of the Trustees
of the Internal Improvement Fund of Florida, as set out in Deed to Harbor Beach
Company, dated 5/28/41 and recorded 2/24/42 under Clerk's File 228390 in Deed
Book 401, Page 74.
2. A permanent non-exclusive twenty-five (25') foot easement to construct
and maintain a roadway, sewer, water, gas, electric and telephone lines,
extending South 628 feet from the North line of Section 13 as set out in
Easement Deed from Harbor Beach Company to Coral Tides Corporation, dated 5/5/47
and recorded 5/15/47 in Deed Book 586, Page 446.
3. A ten-foot (10') wide easement for water and utilities in favor of the
City of Fort Lauderdale from Holiday Hotel Corporation, dated 7/27/51 and
recorded 9/15/51 in Deed Book 746, Page 232.
4. Easement for water and utilities in favor of the City of Fort
Lauderdale, from Holiday Hotel Corporation, dated 11/5/51 and recorded 12/28/51
in Deed Book 757, Page 396.
5. Easement for water and utilities in favor of the City of Fort
Lauderdale from Harbor Beach Company, dated 9/11/51, and recorded 9/15/51 in
Deed Book 746, Page 236.
6. A twenty-five foot (25') wide easement for ingress and egress in favor
of Poinsettia Corporation from Holiday Hotel Corporation dated 6/21/57 and
recorded 6/28/57 in Official Records Book 961, Page 543.
7. Mortgage from Holiday Hotel Corporation to Nationwide Life Insurance
Company, dated 7/15/70 and recorded 7/16/70, in Official Records Book 4257, Page
1, in the original principal sum of $450,000.00, which Lessor agree to continue
to pay in accordance with its terms and the terms of an Agreement of even date
between Lessors and Lessee.
8. Taxes for the year 1981 and subsequent years.
9. Setback line for Lot 8, Holiday Beach as set out on said plat recorded
in Plat Book 27, Page 39.
<PAGE>
THIS AMENDMENT TO LEASE is made as of the 30th day of January,
1982.
B E T W E E N:
HOLIDAY HOTEL CORPORATION,
a corporation incorporated under
the laws of the State of Florida,
POINSETTIA CORPORATION,
a corporation incorporated under
the laws of the State of Florida,
and LUBBOCK CORPORATION,
a corporation incorporated under
the laws of the State of Texas,
(hereinafter collectively referred
to as the "Landlord"),
OF THE FIRST PART,
- and -
LAUDERDALE BEACH ASSOCIATION,
a general partnership formed under
the laws of the State of Florida,
(hereinafter referred to as the
"Tenant"),
OF THE SECOND PART.
W H E R E A S :
(A) Pursuant to a lease (the "Lease") made as of November 30, 1981, the
Landlord leased to Cavendish Properties Inc. ("Cavendish") the Leased Property
upon the terms and conditions as therein set forth;
(B) Pursuant to an assignment of lease made as of January 15, 1982,
Cavendish assigned the Lease to the Tenant; and
(c) The Landlord and the Tenant have agreed to amend the Lease as
hereinafter set forth.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
covenants and agreements contained herein and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereby covenant and agree as follows:
1. Article 3.01 of the Lease is hereby deleted and the following substituted
in lieu thereof:
"3.01 Basic Rent - During the term of this Lease, the Tenant
----------
will pay to the Landlord a net basic rent (the `Basic Rent') as
provided herein in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the
payment of public and private debts to The Northern Trust Company, 50
South Lasalle Street, Chicago, Illinois or at such other place or to
such agent as the Landlord from time to time may designate. The Basic
Rent
<PAGE>
-2-
shall be payable in advance in quarterly installments (the 'Quarterly
Basic Rent Installment') on the date hereof, and on the first day of
each succeeding three month period during the term hereof and shall be
computed as follows:
(i) For the first year of the term of this Lease the annual rental
shall be $550,000 and each Quarterly Basic Rent Installment
during such one year period shall be $137,500, subject to
adjustment from time to time as set forth in item (ix) below;
(ii) For the second year of the term of this Lease the annual rental
shall be $650,000 and each Quarterly Basic Rent Installment
during such one year period shall be $162,500, subject to
adjustment from time to time as set forth in item (ix) below;
(iii) For the third year of the term of this Lease the annual rent
shall be $750,000 and each Quarterly Basic Rent Installment
during such one year period shall be $187,500, subject to
adjustment from time to time as set forth in item (ix) below;
(iv) For the fourth year of the term of this Lease the annual rent
shall be $950,000 and each Quarterly Basic Rent Installment
during such one year period shall be $237,500, subject to
adjustment from time to time as set forth in item (ix) below;
(v) For the fifth year of the term of this Lease the annual rent
shall be $1,150,000 and each Quarterly Basic Rent Installment
during such one year period shall be $287,500;
(vi) For the sixth year of the term of this Lease the annual rent
shall be $1,200,000 and each Quarterly Basic Rent Installment
during such one year period shall be $300,000;
(vii) For the seventh year of the term of this Lease the annual rent
shall be $1,250,000 and each Quarterly Basic Rent Installment
during such one year period shall be $312,500;
(viii) Subject to the increases provided by Article 3.03, the annual
rent for the remainder of the term of this Lease (including
during the renewal term) shall be $1,300,000 and each Quarterly
Basic Rent Installment shall be $325,000;
(ix) In the event that at any time prior to the fifth anniversary of
the term hereof, more than 75% of the housing units which may be
constructed on the Lands have been sold and conveyed by the
Tenant to subsequent purchasers, the annual rent and Quarterly
Basic Rent Installments payable thereafter shall be as provided
in item (v) above;
<PAGE>
- 3 -
(x) Whenever a Taking of the nature referred to in Article 10
shall occur, the Quarterly Basic Rent Installments
thereafter payable shall abate by an amount agreed to by the
Landlord and Tenant and, failing agreement, the matter shall
be submitted to arbitration pursuant to Article 23 hereof to
determine what is a fair abatement having regard to the
amount of the Leased Property in respect of which there has
been a Taking."
2. Article 29.01 of the Lease is hereby deleted.
3. Save and expect as otherwise provided herein, defined or
capitalized provisions have the same meaning as attributed thereto in the Lease.
IN WITNESS WHEREOF the parties hereto have duly executed
this Amendment to Lease.
WITNESSES:
As to Holiday Hotel Corporation: HOLIDAY HOTEL CORPORATION
/s/ Nancy Gardner By: /s/ C. H. Alberding
- ------------------------ ---------------------
President
XXXXXXXXXXXXXXXXXXXXXXXX
- ------------------------
[Corporate Seal]
As to Poinsettia Corporation: POINSETTIA CORPORATION
/s/ Nancy Gardner By: /s/ C. H. Alberding
- ------------------------ ---------------------
President
XXXXXXXXXXXXXXXXXXXXXXXX
- ------------------------
[Corporate Seal]
As to Lubbock Corporation: LUBBOCK CORPORATION
/s/ Nancy Gardner By: /s/ C. H. Alberding
- ------------------------ ----------------------
President
XXXXXXXXXXXXXXXXXXXXXXXX
- ------------------------
[Corporate Seal]
<PAGE>
- 4 -
LAUDERDALE BEACH ASSOCIATION
a Florida general partner-
ship
By: R/V-C Association, a Florida
general partnership, as a general
partner of LAUDERDALE BEACH
ASSOCIATION, having as general
partners Cavendish Properties
(Florida), Inc., a Florida
corporation; and R/V Associates,
a Florida general partnership,
whose partner are Rahn Harbor,
Inc., a Florida corporation and
Venturecorp Investments, Inc., a
Delaware corporation.
As to Cavendish Properties Cavendish Properties (Florida),
(Florida), Inc. Inc. as general partner of R/V-C
Association
xxxxxxxxxx
- --------------------------
xxxxxxxxxx By:xxxxxxxxxx
- -------------------------- --------------------
President
As to Rahn Harbor, Inc. [Corporate Seal]
xxxxxxxxxx R/V Association as general partner of
- -------------------------- R/V-C Association
xxxxxxxxxx
- --------------------------
By: Rahn Harbor, Inc.
As to Venturecorp Invest-
ments, Inc. By: John H. Anderson
------------------
xxxxxxxxxx [Corporate Seal]
- --------------------------
xxxxxxxxxx AND By: Venturecorp Investments, Inc.
- -------------------------- By:xxxxxxxx
------------------------
President
[Corporate Seal]
<PAGE>
- 5 -
As to Marriott Corporation: By: Marriott Corporation, a
Delaware corporation, as
XXXXXXXXXXXXXXXXXXXXXXXXXXX a general partner of
- --------------------------- LAUDERDALE BEACH
ASSOCIATION
By: XXXXXXXXXXXXXXXXX
-----------------
XXXXXXXXXXXXXXXXXXXXXXXXXXX Vice President
- ---------------------------
[Corporate Seal]
<PAGE>
AMENDMENT TO LEASE
------------------
THIS AMENDMENT TO LEASE is made as of the 21st day of December, 1982.
BETWEEN:
HOLIDAY HOTEL CORPORATION, a corporation incorporated
under the laws of the State of Florida, POINSETTIA
CORPORATION, a corporation incorporated under the
laws of the State of Florida, and LUBBOCK
CORPORATION, a corporation incorporated under the
laws of the State of Texas,
(hereinafter collectively referred to as the "Landlord")
OF THE FIRST PART,
and
LAUDERDALE BEACH ASSOCIATION, a general partnership formed under the
laws of the State of Florida,
(hereinafter referred to as the "Tenant"),
OF THE SECOND PART.
W H E R E A S :
(A) Pursuant to a lease (the "Lease") made as of November 30, 1981, the
Landlord leased to Cavendish Properties Inc. ("Cavendish") the Leased Property
upon the terms and conditions as therein set forth.
(B) Pursuant to an assignment of lease made as of January 15, 1982,
Cavendish assigned the Lease to the Tenant;
(C) The Landlord and the Tenant have executed an Amendment to Lease made
as of the 30th of January, 1982; and
(D) The Landlord and the Tenant have agreed to amend the Lease further as
hereinafter set forth:
NOW, THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
covenants and agreements contained herein and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereby covenant and agree as follows:
1. Section 1.07 of the Lease is amended to read in full as follows:
"Default - any failure on the part of the Tenant to
-------
perform or comply with any of the provisions
of this Lease which after notice and grace period
provided herein would be an Event of Default."
2. Section 1.08 of the Lease is amended to read in full as follows:
"Event of Default - as defined in Article 15, subject
to the provisions of Article 13."
<PAGE>
3. Section 1.10 of the Lease is amended so that the parenthetical phrase
appearing in the third to last line of the section on page 2 of the Lease shall
read in full as follows:
"(other than state use or sales tax)".
4. Section 9.01 of the Lease is amended so that at the end of the second
sentence of Subsection (d) thereof the period is deleted and the following
additional language is inserted:
"including without limitation, the requirement that
any loss payable thereunder shall be paid under a
mortgagee endorsement or otherwise to the Leasehold
Mortgagee during the first 55 years of the term."
The third sentence of the first paragraph of Subsection (d) is amended
to read as follows:
"Policies or certificates evidencing such insurance
shall be delivered to the Landlord upon the execution
of this Lease, and renewals thereof shall be
delivered to the Landlord at least fifteen (15) days
prior to the expiration date of the respective
policies."
5. Section 9.04 of the Lease is amended to read in full as follows:
"Separate Insurance - Neither party shall take out
separate insurance unless the other is included
therein as an insured, with loss payable (including
Leasehold Mortgagee loss payable endorsements) as
provided in Section 9.01 hereof. Each party shall
immediately notify the other and the Leasehold
Mortgagee of the taking out of any such separate
insurance and shall deliver copies to the other and
the Leasehold Mortgagee of the policy or policies
within the same time periods as provided in Section
9.02 hereof."
6. Section 13.01(c) of the Lease is amended to read in full as follows:
"No Event of Default shall be deemed to exist under
or pursuant to this Lease with regard to any present
or future mortgages of Tenant, or any Leasehold
Mortgagee, unless and until such time as (1) any
Leasehold Mortgagee shall have received from Landlord
written notice which specifies the Default which if
not cured within the time provided will constitute an
Event of Default, and (2) a period of sixty (60) days
thereafter elapses. Any such Leasehold Mortgagee may
in the event of any such notice by Landlord, but
without obligation, (1) do any or all things which it
may deem necessary or appropriate so as to avoid the
occurrence of such Event of Default and, (2) if
either (A) the occurrence of such Event of Default is
not, by the nature thereof, one which can be avoided
by the Leasehold Mortgagee without having possession
of the Leased Property or (b) is an Event of Default
under Section 15.01(c) or Section 15.01(d) of this
Lease, such Leasehold Mortgagee, within said 60-day
period (which shall be extended for any delay because
of any bankruptcy court or other legal restraint on
foreclosure) (a) shall obtain a deed and assignment
in lieu of the foreclosure of its Leasehold Mortgage,
or (b) shall commence
-2-
<PAGE>
foreclosure or similar proceedings under its
Leasehold Mortgage so as to divest Tenant of its
right, title and interest in, to and under this
Lease; provided, however, that such Leasehold
Mortgagee shall have brought all unpaid payments of
which Landlord has given notice as aforesaid current
together with all other payments which have come due
hereunder since the giving of such notice, and
thereafter continues to keep such payment current
during the period required to divest Tenant of such
right, title and interest, it being agreed by
Landlord, however, that Landlord will not terminate
this Lease for failure of the Leasehold Mortgagee to
make any such payment coming due after the giving of
such notice unless such payment shall remain unpaid
for a period of fifteen (15) days after notice by
Landlord to the Leasehold Mortgagee; and provided
further that nothing herein shall require payment of
any rental waived by Landlord as hereinafter
provided. No failure on the part of the Landlord to
give any such notice either to the Tenant or the
Leasehold Mortgagee or to both shall be deemed a
waiver of the applicable default or defaults or of
the Landlord's continuing right to give notice of
such default or defaults so long as such default or
defaults remain uncured."
7. Section 13.01(d) of the Lease is amended so that the first paragraph
thereof including the first line of Subparagraph (i) thereof shall read in full
as follows and the remainder of said Subsection shall remain unchanged:
"Subject to the provisions of this Article, if by
reason of default, or by reason of the term hereof
being taken in execution or attachment, or by reason
of the rejection of this Lease under the Bankruptcy
Code, this Lease shall be terminated prior to its
stated expiration date, the Landlord will enter into
a new lease of the Leased Property or such part
thereof as is subject to such Leasehold Mortgage with
the holder of that Leasehold Mortgage which had first
priority on the leasehold estate at the time of
termination, for the remainder of the term hereof,
effective immediately prior to the time of such
termination, at the rent and upon all of the terms,
provisions, covenants and agreements contained in
this Lease, subject, however, to the rights, if any,
of the persons, other than the Tenant or the Landlord
or any person claiming by, through or under the
Landlord, than in lawful possession of any part of
the Leased Property, provided that:
"(i) The said first Leasehold Mortgagee shall
make written ---"
8. Section 13.01 of the Lease is further amended to add the following
additional subparagraph thereof as Subparagraph (m) reading in full as follows:
"Without limiting the rights of the Landlord to
terminate this Lease upon the occurrence of an Event
of Default as provided in Section 15.02(a), subject
to Section (c) of Section 13.01: (i) the Leasehold
Mortgagee shall not be required to assume or agree to
perform the obligations of the Tenant under the Lease
unless and until the Leasehold Mortgagee shall
-3-
<PAGE>
acquire the right, title and interest of the Tenant arising
under this Lease by assignment in lieu of foreclosure or by
foreclosure, and (ii) the Leasehold Mortgagee or such other
person or entity as acquires title to the Leasehold Estate
created hereunder by reason of an assignment in lieu of
foreclosure or at a foreclosure sale and any successor in
interest to ownership of the Leasehold Estate thereafter
shall be liable for the performance of the obligation of
Tenant hereunder only for those obligations occurring during
such period of time as such Leasehold Mortgagee or such
other purchaser or assignee or successor in interest
thereof, respectively, is the owner of the Leasehold Estate.
9. Section 25.01 is hereby amended by adding the following sentence:
"Notwithstanding the foregoing, in the event the Tenant
shall exercise the option to purchase described above
while the Leasehold Mortgage shall be outstanding,
Tenant's exercise of the option shall not be valid without
written consent of the Leasehold Mortgagee within the time
provided in said Section 25."
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment to
Lease.
WITNESSES:
As to Holiday Hotel Corporation: HOLIDAY HOTEL CORPORATION
/s/ Anne Amatrudi By: /s/ C.H. Alberding
- ------------------------- ----------------------------
President
/s/ Alice M. Sobol (Corporate Seal)
- ------------------------
As to Poinsettia Corporation: POINSETTIA CORPORATION
/s/ Anne Amatrudi By: /s/ C.H. Alberding
- ------------------------ ----------------------------
President
/s/ Alice M. Sobol (Corporate Seal)
- ------------------------
As to Lubbock Corporation: LUBBOCK CORPORATION
/s/ Anne Amatrudi By: /s/ C.H. Alberding
- ------------------------ ----------------------------
President
/s/ Alice M. Sobol (Corporate Seal)
- ------------------------
-4-
<PAGE>
CERTIFICATES OF ACKNOWLEDGMENT
------------------------------
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 21st day of
December, 1982, by C.H. Alberding, as President of Holiday Hotel Corporation, a
Florida corporation, on behalf of said corporation.
/s/ Carol B. Droege
------------------------------
NOTARY PUBLIC
My Commission Expires: (Notary Public Seal)
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 21st day of
December, 1982, by C. H. Alberding, as President of Poinsettia Corporation, a
Florida corporation, on behalf of said corporation.
/s/ Carol B. Droege
------------------------------
NOTARY PUBLIC
My Commission Expires: (Notary Public Seal)
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 21st day of
December, 1982, by C. H. Alberding, as President of Lubbock Corporation, a
Texas corporation, on behalf of said corporation.
/s/ Carol B. Droege
------------------------------
NOTARY PUBLIC
My Commission Expires: (Notary Public Seal)
-5-
<PAGE>
LAUDERDALE BEACH ASSOCIATION,
a Florida general partnership,
By: R/V-C Association, a Florida
general partnership, as a general
partner of LAUDERDALE BEACH
ASSOCIATION, having as general
partners Cavendish Properties
(Florida), Inc., a Florida
corporation; and R/V Associates, a
Florida general partnership, whose
partners are Rahn Harbor, Inc., a
Florida corporation, and
Venturecorp Investments, Inc., a
Delaware corporation
As to Cavendish Properties By: Cavendish Properties
(Florida), Inc. (Florida), Inc., as general partner
of R/V-C Association
XXXXXXXXX By: XXXXXXXX
- ---------------------------- ---------------------------
President
XXXXXXXXX
- ---------------------------- (Corporate Seal)
As to Rahn Harbor, Inc. By: R/V Associates as general
partners of R/V-C
Association
/s/ John H. Anderson By: Rahn Harbor, Inc.
- ----------------------------
/s/ Anne Amatrudi By: /s/ Peter A. Roberts
- ---------------------------- ------------------------------
(Corporate Seal)
As to Venturecorp. Investments, Inc. By: Venturecorp Investments, Inc.
XXXXXXX By: XXXXXXXX
- ---------------------------- -------------------------
President
XXXXXXXX (Corporate Seal)
- ----------------------------
-6-
<PAGE>
As to Marriott Corporation: By: Marriott Corporation, a
Delaware corporation, as
XXXXXXXXXXXXXXX a general partner of
- -------------------------- LAUDERDALE BEACH
ASSOCIATION
XXXXXXXXXXXXXXX By: /s/ Stpehen F. Bollenbach
- -------------------------- ---------------------------
Vice President
(Corporate Seal)
CERTIFICATES OF ACKNOWLEDGMENT
------------------------------
STATE OF MARYLAND )
) SS:
COUNTY OF MONTGOMERY)
The foregoing instrument was acknowledged before me this 29th day of
December, 1982, by Stephen F. Bollenbach as Vice President of Marriott
Corporation, a Delaware corporation, as a general partner of LAUDERDALE BEACH
ASSOCIATION, a Florida general partnership.
/s/ Johanne P. Jackson
-------------------------------
NOTARY PUBLIC
My Commission Expires: 7/1/86 (Notary Public Seal)
PROVINCE OF ONTARIO )
) SS:
JUDICIAL DISTRICT )
OF YORK )
The foregoing instrument was acknowledged before me this 14th day of
December, 1982, by XXXXXXXXXX, as President of Cavendish Properties
(Florida), Inc., a Florida corporation, as a general partner of R/V-C
Association, on behalf of LAUDERDALE BEACH ASSOCIATION, a Florida general
partnership.
XXXXXXXXXXXXXX
-------------------------------
NOTARY PUBLIC
(Notary Public Seal)
-7-
<PAGE>
STATE OF FLORIDA )
) ss:
COUNTY OF BROWARD )
The foregoing instrument was acknowledged before me this 6th day of
December, 1982, by Peter H. Roberts, as President of Rahn Harbor, Inc., a
Florida corporation, as a general partner of R/V Associates, a general partner
of R/V-C Association, on behalf of LAUDERDALE BEACH ASSOCIATION, a Florida
general partnership.
/s/ Carol B. Droege
-----------------------------
NOTARY PUBLIC
(Notary Public Seal)
My Commission Expires:
PROVINCE OF ONTARIO )
) ss:
JUDICIAL DISTRICT )
OF YORK )
The foregoing instrument was acknowledge before me this 14th day of
December, 1982, by XXXX, as President of Venturecorp Investments, Inc., a
Delaware corporation, as a general partner of R/V Associates, a general partner
of R/V-C Association, on behalf of LAUDERDALE BEACH ASSOCIATION, a Florida
general partnership.
XXXXXX
---------------------------
NOTARY PUBLIC
(Notary Public Seal)
-8-
<PAGE>
AMENDMENT TO LEASE
------------------
THIS AMENDMENT TO LEASE is made as of the 30 day of June, 1986.
BETWEEN:
HOLIDAY HOTEL CORPORATION, a corporate incorporated under the laws of the
State of Florida, POINSETTIA CORPORATION, a corporation incorporated under
the laws of the State of Florida, and LUBBOCK CORPORATION, a corporation
incorporated under the laws of the State of Texas,
(hereinafter collectively referred to as the "Landlord")
OF THE FIRST PART,
and
LAUDERDALE BEACH ASSOCIATION, a general partnership formed under the laws
of the State of Florida,
(hereinafter referred to as the "Tenant").
OF THE SECOND PART
WHEREAS:
(A) Pursuant to that certain lease (the "Lease") made as of November 30,
1981, the Landlord leased to Tenant (or its predecessor) the Leased Property
upon the terms and conditions as therein set forth, a Memorandum of which was
recorded in Official Records Book 9915, Page 983 of the Public Records of
Broward County, Florida.
(B) The Landlord and the Tenant have executed an Amendment to Lease made as
of the 30th day of January, 1982;
(C) The Landlord and the Tenant have executed a second Amendment to Lease
made as of the 21st day of December, 1982; and
(D) The Landlord and the Tenant have agreed to amend the Lease further as
hereinafter set forth:
NOW Therefore This Agreement Witnesseth that in consideration of the covenants
and agreements contained herein and for other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), the parties
hereby covenant and agree as follows:
1. Section 13.01(c) of the Lease as amended by paragraph 6 of Amendment to
Lease dated December 21, 1982 is amended to read as follows (addition shown by
underlining):
No Event of Default shall be deemed to exist under or pursuant to this
Lease with regard to
<PAGE>
any present or future mortgages of Tenant, or any Leasehold Mortgagee, unless
and until such time as (1) any Leasehold Mortgagee shall have received from
Landlord written notice which specifies the Default which if not cured within
the time provided will constitute an Event of Default, and (2) a period of sixty
(60) days thereafter elapses. Any such Leasehold Mortgagee may in the event of
any such notice by Landlord, but without; obligation, (1) do any or all things
which it may deem necessary or appropriate so as to avoid the occurrence of such
Event of Default and, (2) if either (a) the occurrence of such Event of Default
is not, by the nature thereof, one which can be avoided by the Leasehold
Mortgagee without having possession of the Leased Property or (b) is an Event of
Default under Section 15.01(c) or Section 15.01(d) of this Lease, such Leasehold
Mortgagee, within said 60-day period (which shall be extended for any delay
because of any bankruptcy court or other legal restraint on foreclosure) may
---
avoid such Event of Default if it (a) shall obtain a deed and assignment in
- ---------------------------------
lieu of the foreclosure of its Leasehold Mortgage, or (b) shall commence
foreclosure for similar proceedings under its Leasehold Mortgage, divest Tenant
of its right, title and interest in, to and under this Lease; provided, however,
that such Leasehold Mortgagee shall have brought all unpaid payments of which
Landlord has given notice as aforesaid current together with all other payments
which have come due hereunder since the giving of such notice, and thereafter
continues to keep such payment current during the period required to divest
Tenant of such right, title and interest, it being agreed by Landlord, however,
that Landlord will not terminate this Lease for failure of the Leasehold
Mortgagee to make any such payment coming due after the giving of such notice
unless such payment shall remain unpaid for a period of fifteen (15) days after
notice by Landlord to the Leasehold Mortgagee; and provided further that nothing
herein shall require payment of any rental waived by Landlord as hereinafter
provided. No failure on the part of the Landlord to give any such notice either
to the Tenant or the Leasehold Mortgagee or to both shall be deemed a waiver of
applicable default or defaults or of the Landlord's continuing right to give
notice of such default or
2
<PAGE>
defaults so long as such default or defaults remain uncured.
2. Section 26.14 of the Lease is amended so that the last sentence
thereof shall read as follows:
If Leasehold Mortgagee or its Affiliate does so acquire this
Lease, such Leasehold Mortgagee or Affiliate shall only be
liable for the duties and obligations under this Lease
during the period in which it holds leasehold title provided
that said Leasehold Mortgagee or Affiliate requires the
assignee of this Lease or sublease to assume the obligations
hereunder.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease.
WITNESSES: "Landlord"
HOLIDAY HOTEL CORPORATION
xxxxxxxxxxxxxxxxxxxx
- ---------------------------
xxxxxxxxxxxxxxxxxxxx
- --------------------------- By: /s/ C. H. Alberding
--------------------------
C. H. Alberding, Persident
POINSETTIA CORPORATION
xxxxxxxxxxxxxxxxxxxx
- ---------------------------
xxxxxxxxxxxxxxxxxxxx By: /s/ C. H. Alberding
- --------------------------- --------------------------
C. H. Alberding, Persident
LUBBOCK CORPORATION
xxxxxxxxxxxxxxxxxxxx
- ----------------------------
xxxxxxxxxxxxxxxxxxxx By: /s/ C. H. Alberding
- ---------------------------- --------------------------
C. H. Alberding, Persident
3
<PAGE>
"Tenant"
LAUDERDALE BEACH ASSOCIATES, a Florida
general partnership
By: R/V-C Association, a Florida general
partnership, general partner
By: R/V Associates, a Florida general
partnership, general partner
By: Rahn Harbor, Ltd. a Florida
limited partnership, general
partner
By: RAHN HARBOR, INC.,
a Florida corporation,
XXXXXXXXXXX general partner
- ---------------------------
XXXXXXXXXXX By: /s/ Peter H. Roberts
- --------------------------- ---------------------------
President
By: MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
/s/ Christopher G. Townsend partnership, general partner
- ---------------------------
By: Marriott Hotel Properties, Inc.,
a Delaware Corporation,
general partner
/s/ W. R. Bloom BY: /s/ Craig M. Richards
- --------------------------- ------------------------------------
Vice President
STATE OF Florida )
) SS.
COUNTY OF Broward )
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgments, personally appeared C. H. Alberding, as President of
HOLIDAY HOTEL CORPORATION, a Florida corporation, to me known to be the person
described in and who executed the foregoing instrument and acknowledged before
me that he executed the same on behalf of the corporation.
WITNESS my hand and official seal in the County and State last aforesaid
this 12th day of June, 1986.
XXXXXXXXXXX
--------------------------------
My Commission Expires: Notary Public,
State of Florida at Large
[Notary Public Seal]
4
<PAGE>
STATE OF FLORIDA )
) SS.
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgments, personally appeared C. H. Alberding, as President of
POINSETTIA CORPORATION, a Florida corporation, to me known to be the person
described in and who executed the foregoing instrument and acknowledged before
me that he executed the same on behalf of the corporation.
WITNESS my hand and official seal in the County and State last aforesaid
this 12th day of June, 1986.
XXXXXXXXXXXXXXXXXXXXX
-----------------------------------
My Commission Expires: Notary Public,
[Notary Public Seal] State of Florida at Large
STATE OF FLORIDA )
) SS.
COUNTY OF XXXXXXXXXXXXX )
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgments, personally appeared C. H. Alberding, as President of
LUBBOCK CORPORATION, a Texas corporation, to me known to be the person described
in and who executed the foregoing instrument and acknowledged before me that he
executed the same on behalf of the corporation.
WITNESS my hand and official seal in the County and State last aforesaid
this 12th day of June, 1986.
XXXXXXXXXXXXXXXXXXXXXX
-----------------------------------
My Commission Expires: Notary Public,
[Notary Public Seal] State of Florida at Large
5
<PAGE>
STATE OF FLORIDA )
) SS.
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgments, personally appeared Peter H. Roberts, as President of RAHN
HARBOR, INC., a Florida corporation, as a general partner of LAUDERDALE BEACH
ASSOCIATION, a Florida general partnership, to me known to be the person
described in and who executed the foregoing instrument and acknowledged before
me that he executed the same on behalf of the corporation.
WITNESS my hand and official seal in the County and State last aforesaid
this 12th day of June, 1986.
My Commission Expires: XXXXXXXXXX
[NOTARY PUBLIC SEAL] --------------------------------
Notary Public,
State of Florida at Large
STATE OF Florida )
) SS.
COUNTY OF Broward )
I HEREBY CERTIFY that on this day before me, an officer duly qualified to
take acknowledgments, personally appeared Craig M. Richards, as Vice President
of MARRIOTT HOTEL PROPERTIES, INC., a Delaware corporation, a general partner of
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a Delaware limited partnership,
as a general partner of LAUDERDALE BEACH ASSOCIATION, a Florida general
partnership, to me known to be the person described in and who executed the
foregoing instrument and acknowledged before me that he executed the same on
behalf of the partnership.
WITNESS my hand and official seal in the County and State last aforesaid
this 30th day of June, 1986.
/s/ Denise T. Liustro
---------------------------------
My Commission Expires: Notary Public,
[NOTARY PUBLIC SEAL] State of Florida at Large
6
<PAGE>
EXHIBIT 10.F.
<PAGE>
FIRST AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------------
Orlando World Center Rooms Redo
This FIRST AMENDED AND RESTATED LOAN AGREEMENT ("Agreement") is executed
this 9th day of April, 1991, and made effective as of the 6th day of September,
---
1990 (the "Original Effective Date") by and between MARRIOTT HOTEL PROPERTIES,
INC. a Delaware corporation ("Lender") and MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Partnership"), and amends and
restates that certain Loan Agreement between the parties hereto dated as of the
Original Effective Date (the "Original Agreement") in its entirety.
PRELIMINARY STATEMENT
The Partnership is organized pursuant to that certain Amended and Restated
Agreement of Limited Partnership dated as of November 27, 1985 among Lender, as
general partner, and Airline Foods, Inc., a Delaware corporation, as withdrawing
initial limited partner.
The Partnership is the owner of that certain hotel known as "Marriott's
Orlando World Center," which is located in Orlando, Florida (the "Hotel").
The Partnership and Marriott Hotels, Inc. (the "Management Company") are
parties to that certain Amended and Restated Management Agreement dated October
25, 1985, as amended from time to time (the "Management Agreement"), whereby the
Management Company provides management services for the Hotel.
The Partnership is also party to that certain Amended and Restated Mortgage
and Security Agreement dated as of June 16, 1987, (the "Mortgage") with The
Sanwa Bank Limited (the "Bank") whereby, among other things, indebtedness of the
Partnership to the Bank in the principal amount of $195,000,000 was secured
through a first mortgage lien on the Partnership's interest in the Hotel.
The Partnership is also party with the Bank to that certain Inducement
Agreement of even date with the Mortgage (the "Inducement Agreement") whereby,
among other things, the Partnership is permitted to incur without consent by
the Bank up to $30,000,000 of unsecured indebtedness as a result of loans to the
Partnership by any partner of the Partnership.
The Partnership agreed to fund a room renovation project for the Hotel to
begin in 1990 (the "Rooms Redo"), the cost of which was to be paid out of funds
in the "Repairs and Equipment Reserve," as that term is defined in the
Management Agreement. It has since become apparent that funds available in the
Repairs and Equipment Reserve (referred to hereinafter as the "Reserve") will
fall short of the Partnership's current expenses in undertaking the Rooms Redo
by as much as $11,000,000.
Lender has determined that it is in its best interest to advance funds to
the Partnership in amounts sufficient to allow the Partnership to meet its
current payment obligations on the
<PAGE>
Rooms Redo while maintaining a balance in the Reserve that is sufficient, in the
judgment of the Management Company, to meet other existing or contingent
obligations for which the Reserve was established.
The Original Agreement was entered into for the purpose of evidencing the
obligation of Lender to make advances for the purposes set forth above and of
the Partnership to repay Lender the principal amount of any such advances, said
advances to accrue interest as hereafter provided. The Lender and the
Partnership now wish to make certain amendments to the Original Agreement, as
reflected herein, affecting, among other things, the obligations of the
Partnership to repay advances and the calculation of interest on such advances.
The mutual obligations hereunder, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, shall provide
consideration to the amendment of the Original Agreement as embodied hereunder.
NOW, THEREFORE, the parties hereby amend and restate the Original Agreement
as follows:
AGREEMENT
1. Obligation to Make Advances.
---------------------------
(a) Lender agrees to advance to the Partnership or on behalf of the
Partnership up to $11,000,000 (plus additional deemed principal advances in
accordance with Section 3(a) hereof) to fund the Partnership's current
obligations under the Rooms Redo. Advances shall be made hereunder at such times
and in such amounts as the Management Company, in its reasonable judgment,
determines are necessary in order to meet the Partnership's then current
obligations to make payments for the Rooms Redo (the "Payment Obligations")
while maintaining a balance in the Reserve that is sufficient to meet other
obligations which the Partnership may be required to fund out of the Reserve
pursuant to the Management Agreement.
(b) Lender's obligation to advance funds to the Partnership pursuant to
this Section 1 is not revolving in nature. Accordingly, Lender's outstanding
obligation to advance funds pursuant to Section 1(a) shall be reduced by the
amount of any advances already made thereunder but shall not be increased by any
repayments made pursuant to Section 3 hereof.
(c) Lender's obligation to advance funds pursuant to this Section 1 shall
terminate (the "Termination Date") upon the earlier of (i) June 1, 1991, (ii)
sixty (60) days after the completion of the Rooms Redo, or (iii) the date upon
which the entire amount available under Section 1(a) has been advanced to the
Partnership.
2. Advances Constitute Indebtedness.
--------------------------------
(a) Any advances by Lender to the Partnership or on behalf of the
Partnership under Section 1 hereof shall constitute indebtedness owing to Lender
by the Partnership. Such
2
<PAGE>
indebtedness shall accrue interest daily at a rate equal to (i) the Prime Rate,
as defined below, or (ii) if any payment required hereunder has not been paid
within sixty (60) days after the date on which such payment is due hereunder and
for so long as such payment remains unpaid, the Default Rate, as defined below.
The "Prime Rate" shall be equal to the prime rate of interest announced by
Bankers Trust Company, New York, New York, charged to its best commercial
customers on the Original Effective Date, as redetermined on the first day of
each of the Lender's four week accounting periods. The "Default Rate" shall be
equal to the Prime Rate plus two percent (2%).
(b) Except as otherwise provided in Sections 3 and 5 of this Agreement,
such indebtedness and any accrued interest thereon shall mature and be due and
payable as follows: (i) all accrued and unpaid interest through the last day of
each of the Lender's thirteen annual four week accounting periods (each, a
"Period End") shall be due and payable upon such Period End, and (ii) all
remaining indebtedness and interest thereon shall mature and be due and payable
on June 1, 1996 (the "Maturity Date"). At the request of Lender, the Partnership
will execute and deliver one or more promissory notes to further evidence any
indebtedness owing to Lender under this Section 2. Any such promissory note
shall be in substantially the form of Exhibit A hereto.
3. Repayment of Advances.
---------------------
(a) Prior to July 12, 1991 (the "Initial Payment Date"), interest on
advances under Section 1 hereof shall accrue and become due on each Period End,
and such accrued interest as of each such Period End shall be automatically
converted from interest to principal on such Period End, and the amount so
accrued shall thereafter be deemed for all purposes hereunder to be an
additional principal advance (all such deemed advances, collectively, the
"Additional Principal") as if made on such Period End pursuant to Section 1
hereof.
(b) From and after the Initial Payment Date (which date is a Period End),
and until the earlier of the Maturity Date or the date on which all principal
and accrued interest on advances under Section 1 have been repaid in full, the
Partnership shall, subject to the provisions of Section 3(c) hereof, make
payments to the Lender on each Period End in an amount (the "Minimum Payment")
equal to the greater of (i) the Payment Amount, as defined below, or (ii) the
amount of all accrued but unpaid interest hereunder on said date. For purposes
of this Agreement, the "Payment Amount" is amount of each installment which
would be required to fully amortize a hypothetical fixed interest rate loan with
the following terms:
3
<PAGE>
- --------------------------------------------------------------------------------
Interest Rate The Prime Rate in effect on the
Termination Date
- --------------------------------------------------------------------------------
Initial Principal Balance The outstanding principal balance
of the Loan on the Termination
Date, plus, without duplication,
all of the Additional Principal
- --------------------------------------------------------------------------------
Payments Fifty-two (52) equal installments
due on each Period End beginning on
the Initial Payment Date
- --------------------------------------------------------------------------------
Upon the occurrence of the Termination Date, the Lender shall determine the
Payment Amount in accordance with the terms hereof, and, absent manifest error,
such determination shall be conclusive for all purposes hereunder. All payments
made pursuant to this Section 3(b) hereof shall be applied first to reduce
accrued but unpaid interest hereunder, with the balance, if any, applied to
repayment of principal. Because the Loan is subject to a variable rate of
interest, the actual number of Minimum Payments required of the Partnership
under this Section 3(b) may be more or less than the fifty-two (52) payments
that would be required under the hypothetical loan described above.
(c) Notwithstanding the provisions of Section 3(b) hereof, the Partnership
may, at any time that a Minimum Payment would otherwise be due under Section
3(b), either omit a payment or pay less than the Minimum Payment under Section
3(b) if all of the following conditions are met: (i) the Partnership has made
one or more optional prepayments under Section 5 hereof, (ii) the aggregate
dollar amount of all such optional prepayments (the "Prepayment Amount") equals
or exceeds the amount by which such Minimum Payment is to be reduced, and (iii)
Management Company, in its reasonable judgment, determines that payment of the
Minimum Payment could leave insufficient funds in the Reserve to meet the
purposes for which the Reserve is maintained. For purposes of the calculation
made in clause (ii) above, the Prepayment Amount shall be reduced by the amount
of all prior omissions of or reductions in Minimum Payments that the Partnership
has taken advantage of pursuant to this Section 3(c).
(d) The unpaid principal balance of all advances under Section 1 hereof
together with interest thereon, shall be due and payable, to the extent not
sooner paid pursuant to sections 3(a) and 3(b) hereof, on the Maturity date in
accordance with Section 2 hereof.
4. Subordination.
-------------
To the extent, if any, required by the Mortgage, the Loan Agreement (as
defined therein), or the other Loan Documents (as defined in the Loan
Agreement), payment of any indebtedness owing to Lender pursuant to Section 2 or
Section 3 of this Agreement shall be subject and subordinate to payment of debt
service under the Mortgage.
4
<PAGE>
5. Optional Prepayment.
-------------------
The Partnership may, at any time prior to the Maturity Date, repay in full
all indebtedness owing hereunder plus all accrued interest thereon at any time
without penalty or premium of any kind. The Partnership may also repay such
indebtedness and interest in any part without penalty or premium of any kind on
any day on which a payment is due pursuant to Section 3 hereof. Any partial
prepayment made on any other date shall not be given effect hereunder until the
next succeeding date upon which a payment would be due pursuant to Section 3
hereof.
6. Compliance with Payment Obligations.
-----------------------------------
The Partnership agrees to use any funds advanced by Lender under this
Agreement to make prompt payment of the Payment Obligations.
7. Exculpation.
-----------
No Partner shall have any personal liability with respect to the
indebtedness owing to Lender hereunder. Lender agrees to look solely to the
assets of the Partnership as the sole source of repayment hereunder.
8. Default.
-------
In the event the Partnership is in default of any of its obligations
hereunder, unless such default is cured within thirty (30) days after written
notice thereof or within such longer period as may reasonably be required to
effect a cure in the case of a non-monetary default, or in the event the
Partnership defaults on its obligations under the Mortgage, in consequence of
which the maturity of any indebtedness thereunder is accelerated, Lender shall,
in any of such events, have the right (but not the obligation) to accelerate the
maturity of any indebtedness owing to it hereunder and upon such acceleration
the indebtedness hereunder shall be immediately due and payable.
9. Governing Law.
-------------
This Agreement shall be governed by and construed under the laws of the
State of Maryland, without regard to principles of conflicts of laws thereof
which might refer such interpretations to the laws of another jurisdiction.
5
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above, to be made effective as of the Original
Effective Date.
MARRIOTT HOTEL PROPERTIES INC, a
Delaware corporation
By: XXXXXX
----------------------------------------
Vice President
MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: MARRIOTT HOTEL PROPERTIES,
INC., a Delaware Corporation, general
partner
By: XXXXXX
----------------------------------------
Vice President
6
<PAGE>
EXHIBIT 10.G.
<PAGE>
LOAN AGREEMENT
--------------
Orlando World Center Ballroom and Exhibition Hall
This LOAN AGREEMENT ("Agreement") is executed this 17th day of April, 1991,
by and between MARRIOTT HOTEL PROPERTIES, INC. a Delaware corporation ("Lender")
and MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Partnership").
PRELIMINARY STATEMENT
The Partnership is organized pursuant to that certain Amended and Restated
Agreement of Limited Partnership dated as of November 27, 1985 among Lender,
as general partner, and Airline Foods, Inc., a Delaware corporation, as
withdrawing initial limited partner.
The Partnership is the owner of that certain hotel known as "Marriott's
Orlando World Center," which is located in Orlando, Florida (the "Hotel").
The Partnership and Marriott Hotels, Inc. (the "Management Company") are
parties to that certain Amended and Restated Management Agreement dated October
25, 1985, as amended from time to time (the "Management Agreement"), whereby the
Management Company provides management services for the Hotel.
The Partnership and Marriott Corporation ("Marriott") are parties to that
certain Technical Service Agreement dated November 1, 1988, as amended from time
to time (the "TSA Agreement"), whereby Marriott provided design, construction
management and procurement services for a ballroom and exhibition hall addition
to the Hotel (the "Project").
The Partnership is also party to that certain Amended and Restated Mortgage
and Security Agreement dated as of June 16, 1987, (the "Mortgage") with The
Sanwa Bank Limited (the "Bank") whereby, among other things, indebtedness of the
Partnership to the Bank up to a principal amount of $195,000,000 is secured
through a first mortgage lien on the Partnership's interest in the Hotel.
The Partnership is also party with the Bank to that certain Inducement
Agreement of even date with the Mortgage (the "Inducement Agreement") whereby,
among other things, the Partnership is permitted to incur without consent by the
Bank up to $30,000,000 of unsecured indebtedness as a result of loans to the
Partnership by any partner of the Partnership.
The Lender has provided the Partnership with an $11 million rooms redo loan
pursuant to that certain First Amended and Restated Loan Agreement dated April
9, 1991. In addition, Lender has agreed to loan the Partnership up to
$14,000,000 to fund construction costs for the Project as finally determined and
invoiced pursuant to the TSA Agreement. As described above, both of the loans
combined are less than $30,000,000 and therefore, consent of the Bank is not
required.
<PAGE>
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein and for good and valuable consideration, the parties hereto,
intending to be legally bound hereby, mutually agree as follows:
AGREEMENT
Section 1. Obligation to Make Advances.
---------------------------
(a) Lender agrees to advance to the Partnership or on behalf of the
Partnership up to $14,000,000 to fund the construction costs for the Project.
Advances shall be made hereunder at such times and in such amounts as the
Partnership, in its reasonable judgment, determines are necessary in order to
meet its current obligations to make payments for the Project.
(b) Lender's obligation to advance funds to the Partnership pursuant
to this Section 1 is not revolving in nature. Accordingly, Lender's outstanding
obligation to advance funds pursuant to Section 1(a) shall be reduced by the
amount of any advances already made thereunder.
(c) Lender's obligation to advance funds pursuant to this Section 1
shall terminate (the "Termination Date") upon the earlier of receipt and payment
of a final invoice from Marriott for the Project or the date upon which the
entire amount available under Section 1(a) has been advanced to the Partnership.
Section 2. Advances Constitute Indebtedness.
--------------------------------
(a) Any advances by Lender to the Partnership or on behalf of the
Partnership under Section 1 hereof shall constitute indebtedness owing to Lender
by the Partnership. Such indebtedness shall accrue interest daily at a rate
equal to (i) the Prime Rate, as defined below, or (ii) if any payment required
hereunder has not been paid within sixty (60) days after the date on which such
payment is due hereunder and for so long as such payment remains unpaid, the
Default Rate, as defined below. The "Prime Rate" shall be equal to the prime
rate of interest announced by Bankers Trust Company, New York, New York, charged
to its best commercial customers on the effective date, as redetermined on the
first day of each of the Lender's four week accounting periods. The "Default
Rate" shall be equal to the Prime Rate plus two percent (2%).
(b) Except as otherwise provided in Section 4 of this Agreement, such
indebtedness and any accrued interest thereon shall mature and be due and
payable as follows: (i) all accrued and unpaid interest through the last day of
each of the Lender's thirteen annual four or five week accounting periods (each,
a "Period End") shall be due and payable upon such Period End, and (ii) all
remaining indebtedness and interest thereon shall mature and be due and payable
on June 16, 1992 (the "Maturity Date"). Interest on advances shall be computed
on the basis of a 365 day year. At the request of Lender, the Partnership will
execute and deliver one or more
2
<PAGE>
promissory notes to further evidence any indebtedness owing to Lender under this
Section 2. Any such promissory note shall be in substantially the form of
Exhibit A hereto.
Section 3. Subordination.
-------------
To the extent, if any, required by the Mortgage, the Loan Agreement (as
defined therein), or the other Loan Documents (as defined in the Loan
Agreement), payment of any indebtedness owing to Lender pursuant to Section 2
of this Agreement shall be subject and subordinate to payment of debt service
under the Mortgage.
Section 4. Optional Prepayment.
-------------------
The Partnership may, at any time prior to the Maturity Date, repay in part
or in full all indebtedness owing hereunder plus all accrued interest thereon at
any time without penalty or premium of any kind. All prepayments will be applied
first to accrued and unpaid interest and then to principal.
Section 5. Exculpation.
-----------
No partner shall have any personal liability with respect to the
indebtedness owing to Lender hereunder. Lender agrees to look to the assets of
the Partnership as the sole source of repayment hereunder.
Section 6. Default.
-------
In the event the Partnership is in default of any of its obligations
hereunder, unless such default is cured within five (5) days after written
notice thereof or within such longer period as may reasonably be required to
effect a cure in the case of a non-monetary default, or in the event the
Partnership defaults on its obligations under the Mortgage, in consequence of
which the maturity of any indebtedness thereunder is accelerated, Lender shall,
in any of such events, have the right (but not the obligation) to accelerate the
maturity of any indebtedness owing to it hereunder and upon such acceleration
the indebtedness hereunder shall be immediately due and payable.
Section 7. Governing Law.
-------------
This Agreement shall be governed by and construed under the laws of the
State of Maryland, without regard to principles of conflicts of laws thereof
which might refer such interpretations to the laws of another jurisdiction.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above, to be made effective as of December 31,
1990.
MARRIOTT HOTEL PROPERTIES, INC. a
Delaware corporation
By: /s/ Christopher G. Townsend
--------------------------------
Vice President
MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: MARRIOTT HOTEL PROPERTIES, INC.,
a Delaware Corporation, general partner
By: /s/ Christopher G. Townsend
-----------------------------
Vice President
4
<PAGE>
EXHIBIT A
---------
PROMISSORY NOTE
---------------
$14,000,000.00 December 31, 1990
For value received, MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership (the"Payor"), hereby promises to pay to the order
of MARRIOTT HOTEL PROPERTIES, INC. (the "Payee"), on June 16, 1992 or such
earlier maturity date as is provided in the Agreement hereinafter referred to,
at the Payee's offices at 10400 Fernwood Road, Bethesda, Maryland 20058, in
lawful money of the United States, the principal amount of FOURTEEN MILLION
DOLLARS ($14,000,000.00) or, if less than such principal amount, the aggregate
unpaid principal amount of all advances made by the Payee to Payor pursuant to
the Agreement hereinafter referred to and outstanding hereunder as shown on the
schedule attached hereto and the Payor further promises to pay interest at said
office, in like money, from the date hereof on the principal amount owing
hereunder from time to time, at the borrowing rate provided for in Section 2 of
the Loan Agreement (the "Agreement") dated as of the date hereof, between the
Payor and the Payee. Interest and principal shall be payable at the times stated
in the Agreement, at maturity (whether by acceleration or otherwise) and upon
any prepayment hereon as provided in Section 4 of the Agreement (to the extent
thereof).
This Note is the Note referred to in the Agreement and is entitled to the
benefits thereof. No partner of the Payor shall have individual liability with
respect to the indebtedness owing to the Payee hereunder. Payee agrees to look
solely to the assets of the Payor as the sole source of repayment hereunder.
In case an event of default shall occur and be continuing under the
Agreement and not be cured within applicable grace periods, the principal of and
accrued interest on this Note may be declared to be due and payable in the
manner and with the effect provided in the Agreement, presentment, demand,
protest or notice of any kind being expressly waived.
This Note and the rights and obligations of the Payor and the Payee shall
be construed in accordance with and governed by the laws of the State of
Maryland.
MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: MARRIOTT HOTEL PROPERTIES, INC., a
Delaware corporation, its general partner
By: /s/ Christopher G. Townsend
----------------------------------------
Vice President
<PAGE>
FIRST AMENDMENT TO
LOAN AGREEMENT
(ORLANDO WORLD CENTER BALLROOM AND EXHIBITION HALL)
This First Amendment (the "Amendment") is made as of the 31st day of
December 1991, by and between MARRIOTT HOTEL PROPERTIES, INC. (the "Lender"),
and MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP (the "Partnership").
WHEREAS, the Lender and the Partnership executed that certain Loan
Agreement (Orlando World Center Ballroom and Exhibition Hall) dated as of April
17, 1991 (the "Loan Agreement") which provided for a maturity of that loan on
June 16, 1992.
WHEREAS, the Lender and the Partnership wish to amend the Loan Agreement to
extend the maturity date.
NOW THEREFORE, in consideration of the mutual covenants and provisions
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
that the Loan Agreement is hereby amended as follows:
1. The "Maturity Date," as defined in Section 2(b) of the Loan Agreement
is hereby amended by deleting the words "June 16, 1992" and replacing them with
the words "June 16, 1993."
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed as of the day and year first set forth above.
MARRIOTT HOTEL PROPERTIES, INC.
/s/ Christopher G. Townsend
- ------------------------------
Vice President
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP
By: Marriott Hotel Properties, Inc.
Its General Partner
/s/ Christopher G. Townsend
- ------------------------------
Vice President
<PAGE>
SECOND AMENDMENT TO
LOAN AGREEMENT
(ORLANDO WORLD CENTER BALLROOM AND EXHIBITION HALL)
This Second Amendent (the "Second Amendment") is made as of the 1st day of
June 1992, by and between MARRIOTT HOTEL PROPERTIES, INC. (the "Lender"), and
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP (the "Partnership").
WHEREAS, the Lender and the Partnership executed that certain Loan
Agreement (Orlando World Center Ballroom and Exhibition Hall) dated as of April
17, 1991 (the "Loan Agreement").
WHEREAS, the Lender and the Partnership amended the Loan Agreement pursuant
to that First Amendment to Loan Agreement dated December 31, 1991.
WHEREAS, the Lender and the Partnership wish to amend further the Loan
Agreement, as amended.
NOW THEREFORE, in consideration of the mutual covenants and provisions
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
that the Loan Agreement is hereby amended as follows:
1. Section 1 of the Loan Agreement shall be deleted in its entirety and
replaced by the following:
"Section 1. Obligation to make Advances.
---------------------------
(a) Lender agrees to advance to the Partnership or on behalf of the
Partnership up to $14,000,000 to fund the construction costs for the Project and
for other purposes approved by the Partnership's general partner (the "General
Partner"). Advances shall be made hereunder at such times and in such amounts as
the Partnership, in its reasonable judgment,
<PAGE>
determines are necessary in order to meet its current obligations to make
payments for the Project or other approved purposes.
(b) Lender's obligation to advance funds to the Partnership pursuant to
this Section 1 is revolving in nature through January 1, 1993. Accordingly,
Lender's outstanding obligation to advance funds pursuant to Section 1(a) shall
be reduced by the amount of any advances already made hereunder, but, through
January 1, 1993, shall increase by the amount of any payments already made
hereunder.
(c) Lender's obligation to advance funds pursuant to this Section 1 shall
terminate (the "Termination Date") on January 1, 1993."
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be signed as of the day and year first set forth above.
MARRIOTT HOTEL PROPERTIES, INC.
______________________________
Vice President
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP
By: Marriott Hotel Properties, Inc.
Its General Partner
______________________________
Vice President
2
<PAGE>
EXHIBIT 10.H.
<PAGE>
THIS INSTRUMENT PREPARED BY:
Thomas A. Hanson, Esq.
CARLTON, FIELDS, WARD, EMMANUEL,
SMITH & CUTLER, P.A.
222 Lakeview Avenue
14th Floor
West Palm Beach, FL 33402
Loan No. 197-389
MORTGAGE MODIFICATION AND EXTENSION AGREEMENT
---------------------------------------------
This Mortgage Modification and Extension Agreement (the "Agreement") is
made as of July 1, 1993, by and between LAUDERDALE BEACH ASSOCIATION, a Florida
general partnership (the "Borrower" or the "Mortgagor") with a mailing address
of 3030 Holiday Drive, Ft. Lauderdale, Florida, and AETNA LIFE INSURANCE
COMPANY, a Connecticut corporation (the "Lender" or the "Mortgagee") 242
Trumbull Street, Hartford, Connecticut 06156-9654.
R E C I T A L S
---------------
Lender is the holder of a promissory note dated June 30, 1986 (the
"Original Note") as set forth in a Note and Mortgage Modification and
Consolidation Agreement dated June 30, 1986 (the "Consolidation") recorded in
Official Records Book 13525, Page 409, of the Public Records of Broward County,
Florida, evidencing a loan to Borrower in the principal amount of $92,000,000,
which is secured by the mortgage (the "Mortgage") set forth in the
Consolidation. The Original Note has been renewed pursuant to the provisions of
Borrower's Renewal Promissory Note dated effective as of July 1, 1993 (the
"Renewal Note") in favor of Lender in the principal amount of $88,461,087.65.
The Borrower has requested that the Mortgage be modified in the manner
hereinafter set forth, to which the Lender has consented, subject to the
following terms and conditions.
NOW, THEREFORE, in consideration of the premises, the Lender's agreement
to extend the maturity date as set forth in the Renewal Note, the agreements
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. The foregoing recitals are true and correct and are incorporated by
reference herein. The defined terms of the Mortgage are incorporated
herein to the extent not expressly modified hereby.
2. The Mortgage is hereby modified and supplemented as follows:
(a) The Mortgage, as modified by this Agreement, secures the
obligations of Borrower evidenced by the Renewal Note. All
references to the "Note" in the Mortgage are deemed to mean the
Renewal Note, the maturity date of which is May 1, 2000, and all
references to the "note rate" in the
<PAGE>
Mortgage shall mean the "Contract Interest Rate" as defined in the
Renewal Note.
(b) The definition of the "Ground Lease" in the Mortgage shall include the
Fourth Amendment to Ground Lease dated as of April 28, 1993, recorded
in Official Records Book 20611, Page 221, of the Public Records of
Broward County, Florida.
(c) All of the provisions of the Mortgage, as amended herein, shall be
deemed effective upon July 1, 1993 (the "Effective Date").
(d) The following shall be added before the period at the end of the last
sentence in Paragraph 1.10 of the Mortgage:
"it being understood that all such taxes shall be deemed due on
November 30th of each year."
(e) A new Paragraph 1.22 is added to the Mortgage as follows:
"1.22 Hazardous Materials. The Mortgagor will not permit any use,
-------------------
generation, transportation, treatment, handling, storage or disposal
of any hazardous materials on the Mortgaged Property except by
Mortgagor or typical tenants thereof in the normal course of their
business in a manner consistent with their occupancy and in compliance
with all applicable federal, state, county and local laws, rules and
regulations and in accordance with the terms of their respective
leases; provided, however, that such hazardous materials in the
quantities used shall not be known or suspected to pose a health or
safety hazard to occupants, employees or suspected to pose a health
or safety hazard to occupants, employees or visitors to the Mortgaged
Property or to any adjacent property and provided also that such
hazardous materials are not permitted to accumulate on the Mortgaged
Property in amounts in excess of those required in the ordinary course
of Mortgagor's or any such tenant's business. Copies of all notices of
environmental violations shall be forthwith delivered to Mortgagee."
(f) The second line through the number 1850002547 in the fifth line of
subparagraph 3.02(a) of the Mortgage is hereby deleted.
(g) The following shall be added at the end of subparagraph (b) of
Paragraph 4.01 of the Mortgage:
"or to make any deposit when due pursuant to, or to otherwise fail to
comply with any provision of, the Capital Reserve Escrow Agreement
(the "Reserve Agreement") dated the Effective Date by and among
Mortgagor, Mortgagee and Latimer and Buck of Florida, Inc."
-2-
<PAGE>
(h) The following shall be added at the end of subparagraph (f) of
Paragraph 4.01 of the Mortgage:
"which does not require the payment of money for a period of five (5)
days after notice of such default from Mortgagee to Mortgagor."
(i) The provisions of Paragraph 5.04 of the Mortgage shall be deleted in
their entirety and replaced with the following:
"5.04 Restrictions on Transfer and Encumbrances. (a) No transfer or
-----------------------------------------
assignment of all or any part of the Mortgaged Property shall be made
by Mortgagor, nor shall any condominium declaration affecting the
Mortgaged Property be recorded, nor shall Mortgagor change its
composition, form of business association or ownership, nor may there
be any assignment or transfer, directly or indirectly of (i) any
general partnership interest in Mortgagor held by its General
Partners, hereinafter defined; (ii) the interest in Marriott Hotel
Properties Limited Partnership, a Delaware limited partnership
("MHPLP" and a "General Partner") of, or ultimate ownership of, Hotel
Properties Management, Inc., unless Hotel Properties Management, Inc.
is removed as general partner of MHPLP by its limited partners and
thereafter no longer has an ownership interest in MHPLP; (iii) the
interest of RV Associates, a Florida general partnership, in R/V-C
Association, a Florida general partnership ("R/V-C" and a "General
Partner"); (iv) the interest of Rahn Harbor, Ltd., a Florida limited
partnership ("Rahn Harbor") in said RV Associates; or (v) the interest
of Rahn Harbor, Inc., a Florida corporation, in Rahn Harbor, and any
interest in said Rahn Harbor, Inc., without in each case first having
obtained the prior written consent of Mortgagee, which may be withheld
in its sole discretion. Further, nor shall the two (2) person
"Executive Committee" of Mortgagor consist of other than John H.
Anderson and Robert Parsons, unless Robert Parsons is no longer
employed by Host Marriott Corporation or Hotel Properties Management,
Inc. is removed as general partner of MHPLP by its limited partners
without in each case first having obtained the prior written consent
of Mortgagee, which may be withheld in its sole discretion.
(b) No encumbrance, pledge or hypothecation shall be made of (i) all
or any portion of the Mortgaged Property or of Mortgagor's interest
therein; (ii) any beneficial interest of the General Partners in the
Mortgaged Property; or (iii) the interest of any entity identified in
subparagraph (a) of this Paragraph 5.04, as to which there are
limitations on the transfer of such interests in said subparagraph
(a), in each case, without first having obtained the prior written
consent of Mortgagee, which may be withheld in its sole discretion;
provided, that the Tenant under the "Operating Lease", hereinafter
defined, may enter into equipment leases and space and concession
leases in the ordinary course of its hotel business at the Mortgaged
Property and pursuant to the terms of the Operating Lease.
-3-
<PAGE>
Mortgagee, as a condition to granting its consent to any such transfer
or further encumbrance, may require modification of the loan documents
including but not limited to an increase in the interest rate, a
change in the maturity date and the payment of an assumption fee. With
respect to any conveyance to which the Mortgagee shall consent
hereunder, the transferee shall agree to assume the payment of the
obligation evidenced by the Note and all obligations contained in this
Mortgage in accordance with their respective terms.
In the event of any violation of the covenants of this Paragraph 5.04,
then Mortgagee may, at its option, accelerate the indebtedness herein
secured and declare the entire amount of principal plus accrued
interest thereon, and the Prepayment Fee provided in the Note in the
event of default or prepayment, due and payable at once without notice
or demand."
(j) The provisions of Paragraph 5.15 of the Mortgage are hereby deleted
in their entirety and replaced with the following:
"Lender shall not be entitled to take any action to obtain any
personal money judgment or any deficiency decree against the
undersigned or any General Partner or its or their heirs, personal
representatives, successors or assigns, it being understood by the
Lender that it will enforce collection of the loan evidenced by the
Renewal Note (the "Loan") solely against the Mortgaged Property and
other collateral now or hereafter given to secure the Loan, except as
provided in the following sentence. Borrower and its General Partners
(specifically excluding, however, all partners of the General Partner
and all officers, directors, shareholders and employees of all
partners of the General Partners), will indemnify, defend and hold
harmless Lender from and against any losses, costs or claims,
including reasonable attorney's fees and expenses, arising from or
relating to (i) the fraud, misrepresentation or criminal acts of
Borrower, its partners, officers, directors, employees, agents,
General Partners or affiliates, (ii) the retention, diversion or
misapplication or rents, issues, profits or revenues generated by the
Mortgaged Property or any leases relating thereto during any period
when a default has occurred and is continuing under the Renewal Note,
this Mortgage or any other document evidencing or securing the
indebtedness evidenced by the Note (the "Loan Documents") or the
application of such rents, issues, profits or revenues generated by
the Mortgaged Property, or any leases relating thereto, during such
period of default other than to (a) legitimate and customary
reasonable operating expenses of the Mortgaged Property or (b) debt
service owed to Lender, (iii) security deposit paid by tenants of the
Mortgaged Property and not previously returned to or forfeited by,
such tenants, (iv) the application of insurance proceeds, condemnation
awards, or any similar compensation given in consideration for a
taking of all or part of the Mortgaged Property, other than in
accordance with the provisions of the Renewal Note, this Mortgage and
any other Loan
-4-
<PAGE>
Document and (v) the occurrence of any restricted event
concerning transfers or encumbrances with respect to the
Mortgaged Property and Borrower as described in Paragraph 5.04 of
the Mortgage, without Lender's prior written consent. The
liability of the General Partners hereunder shall be specifically
limited to the assets of such two (2) entities and shall exclude
any and all assets of the partners of the respective General
Partners (other than another General Partner) and their partners,
and shall further exclude any obligations on the part of any
partners, entities or other persons to contribute to the capital
of the General Partners.
Nothing contained herein shall limit or impair, or be construed
to limit or impair, the enforcement of the Mortgage against the
Mortgaged Property or against any other security or collateral
which Borrower may from time to time give to Mortgagee to secure
the payment of the amounts due on the Renewal Note, and the
performance and satisfaction of the undersigned's duties,
liabilities and obligations under the Renewal Note, the Mortgage
and any Loan Documents. The foregoing shall not be deemed to
prohibit the naming of Borrower, the General Partners and their
successors and assigns in any action or proceeding to enforce or
realize upon the rights and remedies provided herein or at law or
in equity, subject only to the foregoing limitation against an
ultimate personal money judgment or deficiency decree. The
foregoing exculpation from a personal money judgment or
deficiency decree does not alter, impair, limit or affect in any
manner the personal obligations of any person under any guaranty,
indemnification agreement or ground lease of a portion of the
Mortgaged Property upon which the Mortgage constitutes a lien."
3. Borrower shall indemnify and hold harmless Lender from and against any
and all liability, claims, costs, fees, interest, penalties and
expenses, if any, relating to or concerning the payment of Florida
documentary stamp and intangible taxes in connection with the Renewal
Note and this Agreement, including reasonable attorneys' fees and
costs, which provisions shall survive the satisfaction or other
termination of the Mortgage.
4. Borrower hereby acknowledges that (i) the principal amount evidenced
by the Renewal Note is owing to Lender without setoff or deduction of
any kind and (ii) Borrower has no claims of any nature against Lender
which would, in any manner, reduce or diminish Borrower's obligation
to Lender to repay the principal amounts evidenced by the Renewal
Note, accrued but unpaid interest thereon, and all other obligations
of Borrower to Lender under the Renewal Note, the Mortgage and this
Agreement.
5. The term "Personal Property" as used in the Mortgage is hereby amended
to include all of Borrower's rights to (i) income and accounts derived
from the occupation of hotel/motel rooms, rents, tenant leases,
licenses and hotel/motel guest receipts, all pertaining to or
connected with the Mortgaged Property; (ii)
-5-
<PAGE>
revenues arising from or associated with the Mortgaged Property; and
(iii) all funds held in the "Account" established pursuant to the
terms of the Reserve Agreement. Borrower hereby grants to Mortgagee a
security interest in all of the foregoing to the extent a security
interest has not previously been granted by Borrower to Mortgagee in
the Mortgage.
6. Borrower acknowledges that it has had the assistance of independent
legal counsel in negotiating and reviewing this Agreement.
7. Except as is modified herein, the provisions of the Mortgage and all
other documents executed in connection therewith remain in full force
and effect and all representations and warranties of Borrower in the
Mortgage are hereby reaffirmed on the Effective Date. In the event of
any conflict between the provisions of the Mortgage and this
Agreement, the provisions of this Agreement shall be controlling.
8. This Agreement may be executed in counterparts each of which shall be
deemed an original Agreement whether or not any particular
counterpart has been signed by all of the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
LAUDERDALE BEACH ASSOCIATION, A FLORIDA
GENERAL PARTNERSHIP
By: R/V-C Association, a Florida General Partnership,
a general partner of Lauderdale Beach Association,
and individually with respect to the Indemnification
set forth in Section 2(j) hereof.
By: R/V Associates, a Florida General Partnership,
as General Partner of R/V-C Association
By: Rahn Harbor, Ltd., a Florida Limited
Partnership, as General Partner of R/V
Associates
Witnessed: By: Rahn Harbor, Inc., a General Partner
of Rahn Harbor, Ltd.
/s/ Theresa McHaughlin
- ------------------------------
Print Name: Theresa McHaughlin By: /s/ John H. Anderson
---------------------
/s/ Christopher G. Townsend John H. Anderson, as
- ------------------------------------ Vice-President of
Print Name: Christopher G. Townsend Rahn Harbor, Inc.
-6-
<PAGE>
By: Marriott Hotel Properties Limited Partnership, a
Delaware Limited Partnership, a General Partner of
Lauderdale Beach Association
By: Hotel Properties Management, Inc., a Delaware
Corporation, as General Partner
By: ________________________________
Its: ________________________________
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By:_______________________________________________
Its:______________________________________________
LATIMER & BUCK OF FLORIDA, INC.,
a Florida corporation
By: /s/ Roland Lee
-----------------------------------------------
Its: Sr. V.P.
----------------------------------------------
-7-
<PAGE>
Loan No. 197-389
RENEWAL PROMISSORY NOTE
-----------------------
$88,461,087.65 Ft. Lauderdale, Florida
July 1, 1993
For value received, the undersigned ("Borrower") promises to pay to
the order of AETNA LIFE INSURANCE COMPANY ("Lender") at 242 Trumbull Street,
Hartford, Connecticut 06156-9654, the principal sum of EIGHTY-EIGHT MILLION FOUR
HUNDRED SIXTY-ONE THOUSAND EIGHTY-SEVEN AND 65/100 ($88,461,087.65) together
with interest on said principal, from and after July 1, 1993, at the rates
hereinafter set forth, computed on the basis of a 360-day year of twelve 30-day
months and 1/360th of the annual rate shall be charged for each day funds are
outstanding. Principal and interest shall be payable in the following manner and
over the following term:
(a) The interest rate shall be nine and three-eighths percent
(9.375%) per annum for the period of July 1, 1993 through the day
prior to the "Effective Date", hereinafter defined. Commencing on
August 1, 1993, and on the first day of each month thereafter
through and including March 1, 1994, monthly payments of
principal and interest in the amount of Seven Hundred Sixty-Five
Thousand Two Hundred Ten and NO/100 Dollars ($765,210.00) shall
be due and payable. On the Effective Date, a payment of interest
only at the annual rate of nine and three-eighths percent (9.375%)
on unpaid principal for the period of March 1, 1994 through the
Effective Date shall be due and payable.
(b) From and after March 29, 1994 (the "Effective Date"), the
interest rate shall be nine and one-eight percent (9.125%) per annum (the
"Contract Interest Rate"). A payment of interest only on the unpaid
principal balance of Eighty-Seven Million Eight Hundred Fifty-One Thousand
Seven Hundred Fifty-Eight and 78/100 Dollars ($87,851,758.78) at the
Contract Interest Rate shall be due on the first day of the month after the
Effective Date; on the first day of each of the twelve (12) months
thereafter through and including April 1, 1995, payments of interest only
at the Contract Interest Rate in the amount of Six Hundred Sixty-Eight
Thousand Thirty-Nine and 40/100 Dollars ($668,039.40) shall be paid. In
addition, on the first day of each of the twelve (12) months commencing on
May 1, 1994, Borrower shall pay a monthly amount equal to the difference
between the "Payment Amount", defined in paragraph (c) immediately below,
and the amount of the monthly payment of interest only required in this
paragraph (b) during said twelve (12) month period, to one of the
following, at Borrower's option: (1)
<PAGE>
to the Capital Reserve Account established pursuant to the terms of the
Capital Reserve Escrow Agreement dated as of the Effective Date by and
among Borrower, Lender and Latimer and Buck of Florida, Inc.; or (2) to
Lender to be applied to the unpaid principal evidenced by this Note in the
inverse order of maturity of the payments due hereunder without imposition
of the Prepayment Fee hereinafter provided in this Note.
(c) Commencing on May 1, 1995 and on the first day of each month
thereafter until and including April 1, 2000, monthly payments of
principal and interest in the amount of Seven Hundred Seventy-Two Thousand
Six Hundred Ten and 76/100 dollars ($772,610.76) (the "Payment Amount",
which is the amount required to amortize the unpaid principal balance on
the Effective Date over a twenty-two (22) year period at the Contract
Interest Rate), each shall be due and payable.
(d) On May 1, 2000 (the "New Maturity Date") the entire unpaid
outstanding principal balance together with all accrued, but unpaid,
interest, shall be due and payable in full.
This Note is secured by (and is subject to), among other things, the Note
and Mortgage Modification and Consolidation Agreement recorded in Official
Records Book 13525, Page 409, of the Public Records of Broward County, Florida,
as amended and renewed by a Mortgage Modification and Extension Agreement dated
as of July 1, 1993, between Borrower and Lender (collectively the "Mortgage").
All payments shall be applied first to any late charge due hereunder, then
to interest due, and any balance shall be applied in reduction of principal,
except that if the holder hereof theretofore shall have made any permitted
advance under the terms of any instrument securing this Note and shall not have
been repaid, any money received pursuant to the provisions hereof, at the option
of such holder, first may be applied to the repayment of such advances and all
interest thereon and the balance, if any, applied as aforesaid on account of any
installment then due. All payments hereunder shall be payable in lawful money of
the United States which shall be legal tender for public and private debts at
the time of payment.
All installments of principal and/or interest are payable to Lender at
Lender's address first stated above, or at such other place as the holder hereof
may from time to time designate in writing, without deduction for or on account
of any present or future taxes, duties or other charges levied or imposed on
this Note or the proceeds hereof, or upon Borrower or Lender for or on account
of this Note by the United States of America or the State of Florida, or any
instrumentality, authority or political subdivision thereof. Borrower agrees,
upon the request of Lender, to pay all such taxes, duties and other charges in
addition to principal and interest on this Note. Notwithstanding anything to the
contrary herein, Borrower shall not be responsible for any United States Income
taxes and Florida Income or other state income or franchise taxes of Lender.
Failure to make a payment under this paragraph shall constitute a default under
the terms of this Note.
If (a) any of said installments of principal or interest and any other
monies due under this Note, under the Mortgage or under any "Loan Document",
hereinafter defined, are not paid
-2-
<PAGE>
upon the date payment is due, or (b) if default be made in the performance of
any of the terms, covenants, conditions or warranties contained in the Mortgage
or any other document evidencing or securing this Note (the "Loan Documents")
which do not pertain to the payment of money, and such default continues for
five (5) days after written notice of such default is given to Borrower, the
entire principal sum of this Note shall become due and payable at once without
further notice or demand at the option of the holder of this Note. This Note
shall be in default when any payment required to be made hereunder or under the
Mortgage or any Loan Document shall not be paid upon the date when due and shall
remain in default until said payment is made. While a default exists under this
Note, the Mortgage or any other Loan Document, the principal balance of this
Note shall bear interest at an annual rate of interest equal to the lesser of
the Contract Interest Rate plus six percent (6%) or the maximum amount permitted
by law, from the date of commencement of the default until the payment of all
sums due hereunder or thereunder. Any payment not received by Lender upon the
due date including, but not limited to, debt service payments and escrow deposit
payments, will be subject to a late charge in the amount of the lesser of (i)
six percent (6%) of the amount of the payment due or (ii) the maximum amount
permitted by law.
The Borrower and endorsers and guarantors, if any, of this Note further
severally waive demand, notice of nonpayment, presentment for payment, protest,
notice of protest and notice of extension of time of payment and consent that
the payment of any installment of principal and/or interest may be extended
without notice, and in case suit shall be brought for the collection hereof, or
the same has to be collected upon demand of an attorney, to pay reasonable
attorneys' fees for making such collection.
It is agreed that maker shall pay all costs of collection, including
reasonable attorneys' fees, on failure to pay any principal or interest when due
on this Note. Such costs and attorneys' fees shall include, but not be limited
to, reasonable attorneys' fees incurred by the holder hereof in any and all
judicial proceedings, including appellate proceedings arising out of the
enforcement and/or collection of this obligation or the Mortgage or any Loan
Document, whether such proceedings arise before or after entry of a final
judgment.
Borrower may prepay the loan evidenced hereby (the "Loan") in full, but not
in part, on any monthly payment date, provided that Borrower has given to Lender
thirty (30) days prior written notice of the prepayment, and that Borrower has
first paid to Lender a Prepayment Fee which will be the greater of: (a) one
percent (1%) of the outstanding principal balance of the Loan at the date of
prepayment, or (b) an amount to be calculated within three (3) business days
prior to the date of prepayment by (1) multiplying the principal balance of the
Loan on the date of prepayment by the amount by which (A) the effective
annualized yield on the Loan exceeds (B) the effective annual yield which can
then be obtained by the holder on United States Treasury obligations with
maturities as close to the New Maturity Date as are reasonably available, plus
one hundred (100) basis points (as reported by The Wall Street Journal, or
--- ---- ------ -------
comparable publication selected by Lender if The Wall Street Journal is not then
--- ---- ------ -------
published), then (2) dividing the result by twelve (12), and (3) multiplying the
result by the number of months (full or partial, based upon a year of twelve
(12) 30-day months) which remain in the term of
-3-
<PAGE>
the Loan. In the event of any voluntary or involuntary prepayment of all or any
portion of this Note (for any reason, including acceleration) the foregoing
Prepayment Fee will be due and payable. Notwithstanding the provisions of this
paragraph, Borrower may voluntarily prepay this Note in full with all accrued
interest at any time within ninety (90) days prior to the New Maturity Date and
the Prepayment Fee shall not be due or payable, provided, however, that Borrower
shall have given written notice of the prepayment to Lender at least thirty (30)
days prior to such prepayment. Once notice of Borrower's intention to prepay
this Note is given, Borrower may not revoke such notice. Any prepayment
resulting from the application by Lender (or Borrower with Lender's consent) of
the proceeds of insurance upon, or condemnation of, the "Property", hereinafter
defined, may be made without imposition of the Prepayment Fee.
Notwithstanding any provision herein or in any instrument now or hereafter
securing this Note, the total liability for payments in the nature of interest
shall not exceed the limits now imposed by the usury laws of Florida, or any
subsequent liberalization thereof. In the event of the acceleration of this
Note, the total charges for interest and in the nature of interest shall not
exceed the maximum amount allowed by the usury laws of Florida, and any excess
portion of such charges that may have been paid shall be refunded to the
Borrower at the time of acceleration. Such refund may be made by application of
the amount involved against the sums then due hereunder, but such crediting
shall not cure or waive the default occasioning acceleration.
It is agreed that the granting to Borrower or any other party of an
extension or extensions of time for the payment of any sum or sum due hereunder
or under the Mortgage or for the performance of any covenant or stipulation
thereof or the taking of other or additional security or release of any security
shall not in any way release or affect the liability of Borrower under this
Note.
The term Borrower as used herein, in every instance shall include its
successors and assigns, and shall denote the singular and/or plural, the
masculine and/or feminine, and natural and/or artificial persons whenever the
context so requires or admits.
Time shall be of the essence of each and every covenant and promise
contained in this Note and every other instrument securing the repayment of this
Note.
The holder of this Note shall not be entitled to take any action to obtain
any personal money judgement or any deficiency decree against the undersigned or
any General Partner, hereinafter defined, or its or their heirs, personal
representatives, successors or assigns, it being understood by the holder of
this Note that Lender will enforce collection of the Loan solely against the
property (the "Property") encumbered by the Mortgage and other collateral now or
hereafter given to secure the Loan, except as provided in the following
sentence. Borrower and its general partners (collectively the "General
Partners") (a) Marriott Hotel Properties Limited Partnership ("MHPLP"), a
Delaware limited partnership and (b) R/V-C Association, a Florida
-4-
<PAGE>
general partnership ("R/V-C") (specifically excluding, however, all partners of
the General Partners and all officers, directors, shareholders and employees of
all partners of the General Partners), will indemnify, defend and hold harmless
Lender from and against any losses, costs or claims, including reasonable
attorneys' fees and expenses, arising from or relating to (i) the fraud,
misrepresentation or criminal acts of Borrower, its partners, officers,
directors, employees, agents, General Partners or affiliates, (ii) the
retention, diversion or misapplication of rents, issues, profits or revenues
generated by the Property or any leases relating thereto during any period when
a default has occurred and is continuing under this Note, the Mortgage or any
other Loan Document or the application of such rents, issues, profits or
revenues generated by the Property, or any leases relating thereto, during such
period of default other than to (a) legitimate and customary reasonable
operating expenses of the Property or (b) debt service owed to Lender, (iii)
security deposits paid by tenants of the Property and not previously returned to
or forfeited by, such tenants, (iv) the application of insurance proceeds,
condemnation awards, or any similar compensation given in consideration for a
taking of all or part of the Property, other than in accordance with the
provisions of this Note, the Mortgage and any other Loan Document, and (v) the
occurrence of any restricted event concerning transfers or encumbrances with
respect to the Property and Borrower as described in Paragraph 5.04 of the
Mortgage, without Lender's prior written consent. The liability of the General
Partners hereunder shall be specifically limited to the assets of such two (2)
entities and shall exclude any and all assets of the partners of the respective
General Partners (other than another General Partner) and their partners, and
shall further exclude any obligations on the part of any partners, entities or
other persons to contribute to the capital of the General Partners.
Nothing contained in this Note shall limit or impair, or be construed to
limit or impair, the enforcement of the Mortgage against the Property or against
any other security or collateral which Borrower may from time to time give to
the holder of this Note to secure the payment of the amounts due on this Note,
and the performance and satisfaction of the undersigned's duties, liabilities
and obligations under this Note, the Mortgage and any Loan Document. The
foregoing shall not be deemed to prohibit the naming of Borrower, the General
Partners and their successors and assigns in any action or proceeding to enforce
or realize upon the rights and remedies provided herein or at law or in equity,
subject only to the foregoing limitation against an ultimate personal money
judgment or deficiency decree. The foregoing exculpation from a personal money
judgment or deficiency decree does not alter, impair, limit or affect in any
manner the personal obligations of any person under any guaranty,
indemnification agreement or ground lease of a portion of the Property upon
which the Mortgage constitutes a lien.
This Note is a renewal of existing indebtedness owed by Borrower to Lender
evidenced by the Note and Mortgage Modification and Consolidation Agreement
dated June 30, 1986 between Borrower and Lender (the "Consolidation") of which
this is a renewal note without enlargement of the principal balance of said
note. Proper documentary stamps have been paid on and affixed to the
Consolidation and on the mortgages consolidated thereby, securing the notes
previously consolidated by the Consolidation, as to which this Note is a Renewal
Note. This Note replaces in its entirety the Note set forth in the
Consolidation.
-5-
<PAGE>
This Note is to be construed and enforced in accordance with the laws of
the State of Florida.
LAUDERDALE BEACH ASSOCIATION, A FLORIDA GENERAL
PARTNERSHIP
By: R/V-C Association, a Florida Partnership,
a general partner of Lauderdale Beach Association,
and individually with respect to the
Indemnification set forth on pages 4 and 5 hereof
By: R/V Associates, a Florida General
Partnership, as General Partner of R/V-C
Association
By: Rahn Harbor, Ltd., a Florida Limited
Partnership, as General Partner of R/V
Associates
By: Rahn Harbor, Inc., a General Partner of
Rahn Harbor, Ltd.
By: /s/ John H. Anderson
-------------------------------
John H. Anderson, as
Vice-President of
Rahn Harbor, Inc.
By: Marriott Hotel Properties Limited Partnership, a
Delaware Limited Partnership, a General Partner of
Lauderdale Beach Association, and individually
with respect to the Indemnification set forth on
pages 4 and 5 hereof.
By: Hotel Properties Management, Inc., a Delaware
Corporation, as General Partner
By: /s/ T. Edward Middleton
------------------------------------------
Its: VP
------------------------------------------
-6-
<PAGE>
LOAN NO. 197-389
REAFFIRMATION OF OPERATING LEASE SUBORDINATION AGREEMENT
- --------------------------------------------------------
THIS REAFFIRMATION OF OPERATING LEASE SUBORDINATION AGREEMENT (the
"Agreement") is made as of the 29th day of March, 1994, by and between MARRIOTT
HOTEL SERVICES, INC., a Florida corporation ("Tenant") and LAUDERDALE BEACH
ASSOCIATION, a Florida general partnership ("Landlord").
R E C I T A L S:
---------------
Landlord and Tenant have heretofore entered into an Operating Lease
Subordination Agreement (the "Original Subordination") dated as of June 30,
1986, filed for record at Official Records Book 13525, Page 604, of the Public
Records of Broward County, Florida. The Original Subordination provides, among
other items, for the subordination of the "Lease", as defined therein, to the
lien of the "Mortgage", also as defined therein, held by Aetna Life Insurance
Company ("Aetna"). Landlord and Aetna are entering into a Mortgage Modification
and Extension Agreement, amending and renewing the terms of said Mortgage (the
"Mortgage Modification"). Aetna requires that this Agreement be executed in
order to reaffirm the terms and provisions of the Original Subordination.
NOW, THEREFORE, in consideration of the Mortgage Modification and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. The foregoing recitals are true and correct and are incorporated by
reference herein.
2. The Original Subordination is hereby reaffirmed in all respects as if
given on the date hereof and all references therein to the "Mortgage"
shall be deemed to include the Mortgage, as amended by the Mortgage
Modification.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date first set forth above.
TENANT:
Witnesses: MARRIOTT HOTEL SERVICES,
INC., a Delaware corporation
/s/ James L. Best By: /s/ Kevin M. Kendall
- ------------------- --------------------------------
Print Name: James L. Best
Its: Vice President
/s/ Carolyn Handlon -------------------------------
- -------------------
Print Name: Carolyn Handlon
<PAGE>
LANDLORD:
LAUDERDALE BEACH ASSOCIATION, a Florida
General Partnership
By: R/V-C Association, a Florida General
Partnership, a general partner of Lauderdale
Beach Association.
By: R/V Associates, a Florida General
Partnership, as General Partner of R/V-C
Association
Witnesses: By: Rahn Harbor, Ltd., a Florida Limited
Partnership, as General Partner of
/s/ Christopher G. Townsend R/V Associates
- ---------------------------
Print Name:C. G. Townsend By: Rahn Harbor, Inc., a General
Partner of Rahn Harbor, Ltd.
/s/ Theresa McHaughlin
- --------------------------- By: /s/ John H. Anderson
Print Name: Theresa McHaughlin --------------------
John H. Anderson, as
Vice-President of
Rahn Harbor, Inc.
By: Marriott Hotel Properties Limited
Partnership, a Delaware Limited Partnership,
a General Partner of Lauderdale Beach
Association.
Witnesses: By: Hotel Properties Management, Inc., a
Delaware Corporation, as General Partner
/s/ Christopher G. Townsend By: /s/ T. Edward Middleton
- --------------------------- ---------------------------------
Print Name:C. G. Townsend Its: V.P
---------------------------------
/s/ Theresa McHaughlin
- ---------------------------
Print Name: Theresa McHaughlin
-2-
<PAGE>
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
On this 24th day of March, 1994, personally appeared before me John
H. Anderson, Vice-President of Rahn Harbor, Inc., a Florida corporation, on
behalf of the corporation, as a general partner of and on behalf of Rahn Harbor,
Ltd., a Florida limited partnership, and a general partner of and on behalf of
R/V Associates, a Florida general partnership, and a general partner of and on
behalf of R/V-C Association, a Florida general partnership, and a general
partner of and on behalf of Lauderdale Beach Association, a Florida general
partnership, to me personally known or if not personally known who produced
[Florida Driver License, as identification [Strike inapplicable clause]],
and he acknowledged to me that he signed the foregoing instrument.
/s/ Jay Wolszczak [NOTARY SEAL]
- -----------------------------------
Notary Public
My Commission Expires: 11-23-97
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
On this 29th day of March, 1994, personally appeared before me
T. Edward Middleton, the Vice President of Hotel Properties Management, Inc., a
corporation, on behalf of the corporation, to me personally known or if not
personally known [who produced ______________ as identification [strike
inapplicable clause]], and he acknowledged to me that he signed the foregoing
instrument.
/s/ Jay Wolszczak [NOTARY SEAL]
- -----------------------------------
Notary Public
My Commission Expires: 11-23-97
-3-
<PAGE>
AMENDED SUPPLEMENTAL ASSIGNMENT OF RENTS AND LEASES
---------------------------------------------------
THIS AMENDED SUPPLEMENTAL ASSIGNMENT OF RENTS AND LEASES is made as of July
1, 1993, from LAUDERDALE BEACH ASSOCIATION, a Florida general partnership
("Assignor") to AETNA LIFE INSURANCE COMPANY, a Connecticut corporation
("Assignee").
R E C I T A L S:
---------------
Pursuant to a Supplemental Assignment of Rents and Leases (the "Original
Assignment of Rents") dated June 30, 1986, recorded in Official Records Book
13525, Page 445, of the Public Records of Broward County, Florida, Assignor
assigned its interest in the leases, rents, income and profits more particularly
described therein. Assignor desires to amend the Original Assignment of Rents in
conjunction with the modification of the mortgage loan for which the Original
Assignment of Rents was made as additional security.
NOW, THEREFORE, in consideration of the modification of the mortgage loan
hereinafter described, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Assignor, Assignor hereby
agrees that the Original Assignment of Rents shall be amended as follows:
1. All covenants, agreements and provisions of the Original Assignment of
Rents are hereby reaffirmed by Assignor as if given on the date
hereof.
2. In addition to the loan documents for which the Original Assignment of
Rents was given as security, the Original Assignment of Rents, as
amended herein, shall also be additional security for Assignor's
Renewal Promissory Note dated as of July 1, 1993, in the original
principal amount of EIGHTY-EIGHT MILLION FOUR HUNDRED SIXTY-ONE
THOUSAND EIGHTY-SEVEN AND 65/100 ($88,461,087.65) DOLLARS in favor of
Assignee and the Mortgage Modification and Extension Agreement dated
as of July 1, 1993, between Assignor and Assignee securing said
Renewal Promissory Note. All references in the Original Assignment of
Rents to the "Note" and "Mortgage" shall be deemed to refer to said
Renewal Promissory Note and Mortgage Modification and Extension
Agreement, respectively.
3. Exhibit "A" to the Original Assignment of Rents shall be supplemented
by including therein the Fourth Amendment to Ground Lease dated as of
April 28, 1993, recorded in Official Records Book 20611, Page 221, of
the Public Records of Broward County, Florida.
<PAGE>
4. Except as amended herein, the Original Assignment of Rents remains in
full force and effect.
IN WITNESS WHEREOF, Assignor has executed this instrument as of the date
first set forth above.
LAUDERDALE BEACH ASSOCIATION, a Florida General
Partnership
By: R/V-C Association, a Florida General Partnership,
a general partner of Lauderdale Beach Association.
By: R/V Associates, a Florida General
Partnership, as General Partner of R/V-C
Association
By: Rahn Harbour, Ltd., a Florida
Limited Partnership, as General
Partner of R/V Associates
Witnesses: By: Rahn Harbor, Inc., a
General Partner of Rahn
/s/ Theresa McHaughlin Harbor, Ltd.
- ---------------------------
Print Name: Theresa McHaughlin By: /s/ John H. Anderson
-------------------------------
/s/ Christopher G. Townsend John H. Anderson, as
- --------------------------- Vice-President
Print Name: C.G. Townsend Rahn Harbor, Inc.
By: Marriott Hotel Properties Limited Partnership, a
Delaware Limited Partnership, a General Partner of
Lauderdale Beach Association.
Witnesses: By: Hotel Properties Management, Inc., a
Delaware Corporation, as General Partner
/s/ Christopher G. Townsend By: /s/ T. Edward Middleton
- --------------------------- ----------------------------------------
Print Name: C.G. Townsend T. Edward Middleton
/s/ Theresa McHaughlin Its: VP
- --------------------------- ----------------------------------------
Print Name: Theresa McHaughlin
-2-
<PAGE>
ACKNOWLEDGEMENTS
----------------
STATE OF FLORIDA )
)SS:
COUNTY OF BROWARD )
On this 29 day of March, 1994, personally appeared before me John H.
Anderson, Vice-President of Rahn Harbor Inc., a Florida corporation, on behalf
of the corporation, as a general partner of and on behalf of Rahn Harbor, Ltd.,
a Florida limited partnership, and a general partner of and on behalf of R/V
Associates, a Florida general partnership, and a general partner of and on
behalf of R/V-C Association, a Florida general partnership, and a general
partner of and on behalf of Lauderdale Beach Association, a Florida general
partnership, to me personally known or if not personally known who produced
[____________ as identification [strike inapplicable clause]], and he
acknowledged to me that he signed the foregoing instrument.
/s/ Jay Wolszczak
- ------------------------------- [Notary Public Seal]
Notary Public
My Commission Expires: 11/23/97
STATE OF Florida ) [SEAL APPEARS HERE]
) SS:
COUNTY OF Broward )
On this 29 day of March, 1994, personally appeared before me
Theodore Middleton, the Vice President of Hotel Properties Management, Inc., a
- ------------------
Delaware corporation, on behalf of the corporation, as general partner of and on
behalf of Marriott Hotel Properties Limited Partnership, a Delaware limited
partnership, and a general partner of and on behalf of Lauderdale Beach
Association, a Florida general partnership, to me personally known or if not
personally known who produced Florida Drivers License as identification [strike
inapplicable clause], and he acknowledged to me that he signed the foregoing
instrument.
/s/ Jay Wolszczak
- ----------------------- [Notary Public Seal]
Notary Public
My Commission Expires: 11/23/97
-3-
<PAGE>
SUPPLEMENTAL SECURITY AGREEMENT
-------------------------------
THIS SUPPLEMENTAL SECURITY AGREEMENT (the "Agreement") is made as of July
1, 1993, from LAUDERDALE BEACH ASSOCIATION, a Florida general partnership
("Debtor") to AETNA LIFE INSURANCE COMPANY, a Connecticut corporation ("Secured
Party").
R E C I T A L S:
---------------
Debtor entered into a Security Agreement (the "Original Security
Agreement") dated as of June 30, 1986, in favor of Secured Party in order to
secure a loan (the "Original Loan") from Secured Party to Debtor in the amount
of NINETY-TWO MILLION DOLLARS ($92,000,000.00) as evidenced by a Note (the
"Original Note") set forth in a Note and Mortgage Modification and Consolidation
Agreement dated June 30, 1986, between Debtor and Secured Party. Secured Party
has agreed to renew the Original Loan and in connection therewith requires the
execution of this Agreement.
NOW, THEREFORE, for and in consideration of the renewal of the Original
Loan, the Original Security Agreement shall be amended as follows:
1. The indebtedness secured by the Original Security Agreement is the
indebtedness evidenced by Debtor's Renewal Promissory Note (the
"Renewal Note") dated as of July 1, 1993, in the principal amount of
EIGHTY-EIGHT MILLION FOUR HUNDRED SIXTY-ONE THOUSAND EIGHTY-SEVEN AND
65/100 ($88,461,087.65) DOLLARS. All references to the "Obligation" in
the Original Security Agreement shall be deemed to mean the obligation
of Debtor evidenced by the Renewal Note and any further renewals,
modifications or amendments thereof.
2. The term "Collateral" as defined in the Original Security Agreement
shall also include the Amended Supplemental Assignment of Rents and
Leases dated as of July 1, 1993, from Debtor to Secured Party.
<PAGE>
3. All references to a security interest granted to General Electric
Credit Corporation reflected by UCC Financing Statement No. 1850002547
filed with the Secretary of State of the State of Florida, are hereby
deleted from the Original Security Agreement.
4. Exhibit "A" to the Original Security Agreement shall be amended by
adding thereto the Fourth Amendment to Ground Lease dated as of April
28, 1993, recorded in Official Records Book 20611, Page 221, of the
Public Records of Broward County, Florida.
5. Exhibit "B" to the Original Security Agreement shall be amended by
adding to Paragraph 3 thereof, the following:
"All revenues arising from or associated with the premises
described on Exhibit "A" hereto and all funds held in the
"Account" established pursuant to the terms of the Capital
Reserve Escrow Agreement by and among Debtor, Secured Party and
Latimer & Buck of Florida, Inc. dated March 29, 1994."
6. Except as amended herein, the terms and provisions of the Original
Security Agreement remain in full force and effect.
7. This Agreement may be executed in counterparts each of which shall be
deemed an original Agreement whether or not any particular counterpart
has been signed by all of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the date first set forth above.
LAUDERDALE BEACH ASSOCIATION, A FLORIDA
GENERAL PARTNERSHIP
By: R/V-C Association, a Florida General Partnership,
a general partner of Lauderdale Beach
Association.
By: R/V Associates, a Florida General
Partnership, as General Partner of R/V-C
Association
-2-
<PAGE>
By: Rahn Harbor, Ltd., a Florida
Limited Partnership, as General
Partner of R/V Associates
By: Rahn Harbor, Inc., a
General Partner of
Rahn Harbor,Ltd.
By: /s/ John H. Anderson
---------------------
John H. Anderson,
as Vice-President
of Rahn Harbor,Inc.
By: Marriott Hotel Properties Limited
Partnership, a Delaware Limited Partnership,
General Partner of Lauderdale Beach
Association.
By: Hotel Properties Management, Inc., a
Delaware Corporation, as General Partner
By: /s/ T. Edward Middleton
----------------------------------------
Its: VP
----------------------------------------
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By: /s/ Malcolm Sina
----------------------------------------------
Its: A.V.P.
----------------------------------------------
-3-
<PAGE>
RELEASE AND WAIVER OF CLAIMS
----------------------------
This Release and Waiver of Claims is made the 29th day of March, 1994,
by LAUDERDALE BEACH ASSOCIATION, a Florida general partnership (the "Borrower").
WHEREAS, the Borrower obtained a loan evidenced by a promissory note (the
"Note") dated as of June 30, 1986, in the original principal amount of
$92,000,000.00 (the "Loan") from AETNA LIFE INSURANCE COMPANY, a Connecticut
corporation ("Aetna") secured by, among other things, a Note and Mortgage
Modification and Consolidation Agreement recorded in Official Records Book
13525, Page 409 of the Public Records of Broward County, Florida (the
"Mortgage");
WHEREAS, the Borrower has requested that Aetna make certain modifications
to the Note, the Mortgage and all other documents executed in connection with
the Loan (collectively, the "Loan Documents");
AND WHEREAS, Aetna has agreed to make certain modifications to the loan
pursuant to the terms of its "Binding Letter Agreement" to Borrower dated
December 15, 1993 (the "BLA") one of the conditions of which is that Borrower
execute this Release and Waiver of Claims.
NOW THEREFORE, in consideration of the BLA and the agreements contemplated
thereby, the Borrower hereby:
1. Acknowledges that there are no offsets, counterclaims or defenses with
respect to the obligations of Borrower under the Loan Documents and any
modifications thereof and, to the extent that Borrower has any offsets,
counterclaims or defenses of any nature whatsoever, known or unknown, related to
the Note, the Mortgage or any other Loan Document or any modification therefor
to the property (the "Property") subject to the lien of the Mortgage, Borrower
expressly waives and releases any and all such offsets, counterclaims and
defenses which may exist on the date hereof; and
2. Releases and forever discharges Aetna and all of Aetna's directors,
officers, employees, administrators, agents, subsidiaries, affiliates,
attorneys, successors and assigns from any and all causes of action, demands,
claims, debts, accounts, liabilities, costs, expenses, contracts, promises,
agreements and damages whatsoever in respect to each and all of: (i) the
Property; (ii) the Loan Documents and any modifications thereof; and (iii) the
transaction contemplated by and executed in connection with the BLA, which arose
prior to or which are based directly or indirectly on acts, omissions or
circumstances which occurred or existed prior to the date hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this document to be duly
executed on the date first-above written.
LAUDERDALE BEACH ASSOCIATION, a Florida
General Partnership
By: R/V-C Association, a Florida General
Partnership, a general partner of Lauderdale
Beach Association.
By: R/V Associates, a Florida General
Partnership, as General partner of R/V-C
Association
By: Rahn Harbor, Ltd., a Florida
Limited Partnership, as General
Partner of R/V Associates
Witnesses: By: Rahn Harbor, Inc., a General
Partner of Rahn Harbor, Ltd.
/s/ Christopher G. Townsend
- ---------------------------
Print Name: C. G. Townsend By: /s/ John H. Anderson
----------------------
/s/ Theresa McHaughlin John H. Anderson, as
- --------------------------- Vice-President of
Print Name: Theresa McHaughlin Rahn Harbor, Inc.
By: Marriott Hotel Properties Limited
Partnership, a Delaware Limited Partnership,
a General Partner of Lauderdale Beach
Association.
Witnesses: By: Hotel Properties Management, Inc., a
Delaware Corporation, as General Partner
/s/ Christopher G. Townsend By: T. Edward Middleton
- --------------------------- -----------------------
Print Name: C. G. Townsend
/s/ Theresa McHaughlin Its: VP
- --------------------------- -----------------------
Print Name: Theresa McHaughlin
-2-
<PAGE>
ACKNOWLEDGEMENTS
----------------
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
On this 29th day of March, 1994, personally appeared before me John H.
Anderson, Vice-President of Rahn Harbor, Inc., a Florida corporation, on behalf
of the corporation, as a general partner of and on behalf of Rahn Harbor, Ltd.,
a Florida limited partnership, and a general partner of and on behalf of R/V
Associates, a Florida general partnership, and a general partner of and on
behalf of R/V-C Association, a Florida general partnership, and a general
partner of and on behalf of Lauderdale Beach Association, a Florida general
partnership, to me personally known or [if not personally known who produced
__________ as identification [strike inapplicable clause]], and he acknowledged
to me that he signed the foregoing instrument.
/s/ Jay Wolszczak
- ------------------------------- [Notary Public Seal]
Notary Public
My Commission Expires: 11-23-97
STATE OF Florida )
) SS:
COUNTY OF Broward )
On this 29th day of March, 1994, personally appeared before me XXXXXX,
------
the Vice-President of Hotel Properties Management, Inc., a Delaware corporation,
on behalf of the corporation, as general partner of and on behalf of Marriott
Hotel Properties Limited Partnership, a Delaware limited partnership, and a
general partner of and on behalf of Lauderdale Beach Association, a Florida
general partnership, to me personally known or if [not personally known who
produced __________ as identification] [strike inapplicable clause], and he
acknowledged to me that he signed the foregoing instrument.
/s/ Jay Wolszczak
- ------------------------------- [Notary Public Seal]
Notary Public
My Commission Expires: 11-23-97
-3-
<PAGE>
Loan No. 197389
CAPITAL RESERVE ESCROW AGREEMENT
--------------------------------
THIS CAPITAL RESERVE ESCROW AGREEMENT ("Agreement") is made and entered
into the 29 day of March, 1994, by and among LAUDERDALE BEACH ASSOCIATES, a
Florida general partnership ("Borrower"), AETNA LIFE INSURANCE COMPANY, a
Connecticut corporation, ("Aetna") and LATIMER & BUCK OF FLORIDA, INC., a
Florida corporation ("Agent").
R E C I T A L S:
----------------
A. The Borrower has applied to Aetna for a renewal of its loan (the
"Loan") from Aetna with respect to the property (the "Property") known as The
Marriott Harbor Beach Hotel, Ft. Lauderdale, Florida. The Loan is evidenced by a
Renewal Promissory Note (the "Note") dated as of July 1, 1993, from Borrower to
Aetna and is secured by a Mortgage Modification and Extension Agreement (the
"Mortgage") dated as of July 1, 1993, from Borrower to Aetna on Borrower's
interest in the Property; and
B. In accordance with the terms and conditions of a Binding Letter
Agreement dated December 15, 1993 (the "BLA") Aetna is about to renew the Loan
evidenced by the Note in accordance with the BLA; and
C. Aetna has refused to renew the Loan and accept the Note and Mortgage
unless Borrower agrees to make the deposits and to perform the duties
hereinafter set forth.
NOW, THEREFORE, pursuant to the BLA and in consideration of the premises
and in order to induce Aetna to renew the Loan and to accept the Note and
Mortgage, Borrower hereby covenants and agrees with Aetna as follows:
1. Definitions. As used herein, the following terms shall have the
-----------
meanings hereinafter set forth:
(a) "Capital Assets" - shall mean furniture, fixtures and equipment
and other capital assets used at or in connection with the
Property.
(b) "Gross Revenues" - shall mean all revenues and receipts of every
kind derived from operating the Property and all departments and
parts thereof, including, but not limited to, income (from both
cash and credit transactions), before commissions and discounts
for prompt or cash payments, from: the rental of rooms, stores,
offices, exhibit or sales space of every kind; license, lease and
concession fees and rentals (not including gross receipts of
licensees, lessees and concessionaires); income from vending
machines; health club membership fees; food and beverage sales;
<PAGE>
wholesale and retail sales of merchandise; service charges; any
annual membership fees from the operation of the "Ocean Club" at
the Property; and the proceeds, if any, from business
interruption or other loss of income insurance; provided,
however, that Gross Revenues shall not include: (i) gratuities to
Property employees; (ii) federal, state and municipal excise,
sales and use taxes or similar impositions collected directly
from patrons or guests or included as part of the sales price of
any goods or services; or (iii) any initiation fees charged to
members of said Ocean Club. If Borrower or any person having an
interest, directly or indirectly, in Borrower occupies any
portion of the Property (excluding complimentary rooms provided
in the normal course of business of the Property), then there
shall be included in Gross Receipts an amount not less than the
fair market rental value of any such space so occupied.
(c) "Tenant" - shall mean Marriott Hotel Services, Inc., a Delaware
corporation, which is the lessee under the Lease dated October
26, 1984, with Borrower with respect to operation of the
Property.
2. Deposits; Reporting.
-------------------
(a) Not later than April 20, 1994, and thereafter on the twentieth (20th)
day after the end of each succeeding calendar year quarter, Borrower shall
deposit or cause the deposit of (subject to any credit as hereinafter provided)
an amount equal to four percent (4%) of Gross Revenues with respect to the
twenty-eight (28) day accounting periods of Tenant which have ended during the
preceding calendar year quarter into the account (the "Account") to be
maintained by Agent at Barnett Bank or such other national bank acceptable to
Aetna in the name of Aetna for the benefit of Aetna and Borrower, less all
----
amounts expended by Borrower and Tenant for the purchase of Capital Assets
during such twenty-eight (28) day accounting periods ending in said preceding
calendar year quarter. In the event that Borrower or Tenant has expended more
than four percent (4%) of Gross Revenues for Capital Assets during such
twenty-eight (28) day accounting periods ending in any calendar year quarter,
Borrower's deposit obligations for succeeding quarter(s) shall be accordingly
credited by the amount of such excess expenditures. Agent shall invest the funds
in the Account in an interest bearing account which shall permit Agent to
withdraw the funds on demand. Interest on funds in the Account shall become part
of the Account and Borrower's deposit requirements herein shall be reduced by
the amount of such interest. Agent shall report all interest earned on the
Account for the account of Borrower, whose federal tax identification number is
59-2182137. Borrower shall not pledge, hypothecate, encumber or otherwise
transfer any interest in the Account. Borrower hereby pledges to Aetna and
grants a security interest to Aetna in the Account as additional collateral and
security for the Loan on the Property.
-2-
<PAGE>
(b) Within twenty (20) days after the end of each calendar year quarter,
Borrower shall submit to Aetna a detailed schedule in form and content
satisfactory to Aetna setting forth the Gross Revenues received and Capital
Assets purchased with respect to the twenty-eight (28) day accounting periods
ending during the preceding calendar year quarter (which statements may be
audited by Aetna or its designee on an annual basis at Borrower's cost if the
results of such audit indicates that such statements are in error by
understating by more than five per cent (5%) said Gross Revenues received or
overstating by more than five percent (5%) the Capital Assets purchased, but
otherwise at the cost of Aetna), along with Tenant's or Borrower's certification
that all funds spent for Capital Assets and otherwise drawn from the Account for
Capital Assets during said calendar year quarter have been spent on Capital
Asset projects identified in Tenant's annual budget (the "Budget") for the
Project previously delivered to Aetna, and, if applicable, that all lien waivers
have been obtained with respect to Capital Assets purchased during said period.
3. Disbursements. Funds in the Account shall be held by Agent.
--------------
So long as Borrower is not in default under the Note, Mortgage or any other
document related thereto, funds shall be disbursed at the request of Tenant or
Borrower no more frequently than once each month for the purchase of Capital
Assets in accordance with the Budget pursuant to the following procedures and
guidelines:
(a) Tenant or Borrower shall submit a written request to Aetna or
Agent, specifying the amount of the disbursement sought and describing the
Capital Assets which have been contracted for or completed as of the date of the
request, along with Tenant's certification that such Capital Assets are
identified as a category in the Budget.
(b) In no event may Borrower or Tenant give an order for payment on
the Account for materials or labor directly to a contractor without the express
written authorization of Aetna. Neither Agent nor Aetna shall have any
responsibility to Borrower: (i) to see that any Capital Assets permitted
hereunder are constructed in accordance with applicable plans and
specifications, or that the work will be completed, or that sufficient funds are
available for completion; (ii) for mechanics' liens or claims by contractors; or
(iii) for claims which may be found upon waiver of lien and/or paid invoices
presented to Agent which have been forged or otherwise wrongfully procured; nor
where such document was executed by a person lacking authority to execute same;
provided, however, Aetna or Agent may inspect the Property and/or the status of
the work at any time.
4. No Waiver. The failure of Aetna to enforce strict performance of
---------
the terms and conditions hereof shall not constitute a waiver of its rights
hereunder.
5. Expenses of the Account. All costs and expenses of this Agreement
-----------------------
and the administration of the Account are to be borne by Borrower. Agent shall
be entitled to a fee of $600.00 per annum payable at the rate of $50.00 per
month plus $250.00 for each draw request, payable from the Account or by
Borrower if there are insufficient funds in the Account for such purpose;
provided, it is understood that such fees do not include any bank charges or
engineering
-3-
<PAGE>
or similar expenses, if any, involved in processing any draw request.
6. Limitation of Liability of Agent. The obligations of Agent hereunder
--------------------------------
are subject to the following provisions which are expressly approved by Aetna
and the Borrower:
(a) Agent's duties shall be expressly limited to the safekeeping of
the Account, for the disbursement of same in accordance with this Agreement and
as otherwise specifically described in this Agreement. Agent will not be liable
for any act or omission done in good faith, or for any claim, demand, loss or
damage made or suffered by any party to this Agreement or pursuant to the order
of a Court of competent jurisdiction excepting such as may arise through or be
caused by Agent's negligence, fraud, mismanagement or willful misconduct.
Borrower and Aetna hereby indemnify Agent and agree to hold it harmless from and
against any and all claims, liabilities, damages, costs, penalties, losses,
actions, suits or proceedings at law or in equity, or any other expenses, fees,
or charges of any character or nature including reasonable attorney's fees and
the cost of defending any action, suit, or proceeding or resisting any claim,
whether or not litigation is instituted, which it may incur directly or
indirectly arising from or in any way connected with this Agreement, other than
those arising out of the negligence, fraud, mismanagement, or willful misconduct
of Agent.
(b) Agent is authorized to rely on any document believed by Agent
to be authentic in making any delivery of funds hereunder. Unless it has actual
knowledge to the contrary, Agent also may: (a) assume the validity and accuracy
of any statement or assertion contained in any such document believed to be
authentic; and (b) assume that any person who gives any writing, notice, advice
or instructions in connection with the provisions hereof has been duly
authorized to do so.
(c) Agent will have the right to resign as agent hereunder by sixty
(60) days prior written notice of resignation to Aetna and Borrower, provided
that such resignation may not be effectuated until Aetna has selected a
substitute agent to act under this Agreement and until the substitute agent
executes an acknowledgment reasonably acceptable to Aetna and Borrower that such
agent is assuming all of the obligations and duties of Agent under this
Agreement; provided, that if a substitute agent has not been designated as
aforesaid within one hundred twenty (120) days following the date of notice of
resignation from Agent, such resignation shall be effective at the end of said
one hundred twenty (120) day period nothwithstanding anything to the contrary
herein. Upon the effective date of such resignation, Agent shall deliver the
funds in the Account to the substitute agent. Such resignation and delivery will
relieve Agent from any further performance and liability with respect to this
Agreement, except for such performance or liability arising prior to the
effective date of such resignation. Any modification of the terms of this
Agreement may be made at any time by Borrower and Aetna, provided that the same
is reduced to writing, delivered to and accepted by Agent.
-4-
<PAGE>
(d) This Agreement is the only agreement binding on Agent relating to
the Account and Agent may rely absolutely hereon to the exclusion of any and all
other agreements between Aetna and Borrower.
7. Defaults. Upon notice in writing from Aetna (with a copy to Borrower)
--------
that Borrower is in default under any of the terms, conditions and provisions of
this Agreement, the Note, Mortgage or other document relating thereto and upon
the maturity of the Loan, in addition to any and all other remedies available to
Aetna, Agent shall, at the option of Aetna, pay all or any designated portion of
the balance remaining in the Account to Aetna, together with all accrued
interest thereon, to be applied to pay all late charges, collection costs
including attorneys' fees, fees, delinquent interest, accrued and accruing
interest and similar charges (collectively, "Charges") on the Loan all as
determined by Aetna in its sole discretion. Any funds remaining in the Account
after payment of the Charges shall be applied at Aetna's sole discretion to the
outstanding principal balance of the Loan as determined by Aetna. Upon payment
in full of all sums secured by the Mortgage, this Agreement shall terminate and
any balance in the Account shall be paid to Borrower.
8. Interpleader: In the event any party hereto, by written notice,
------------
notifies Agent that a dispute exists as to the proper party to whom Agent shall
make a payment out of the Account, Agent shall be entitled but not required to
deposit the balance then remaining in the Account, plus any accrued and unpaid
interest thereon, in the registry of the Circuit Court of the State of Florida,
Broward County, and to file an interpleader action in such Court to determine
the recipient of such payment, whereupon Agent shall have no further liability
for payment to any other party.
9. Miscellaneous. It is further agreed as follows:
-------------
(a) All notices given hereunder will be in writing and served by
registered or certified mail, return receipt requested, postage prepaid, to the
parties at the following addresses:
As to Borrower: Lauderdale Beach Association
1512 East Broward Boulevard, Suite 301
Ft. Lauderdale, Florida 33301
Attention: John H. Anderson
As to Aetna: Aetna Life Insurance Company
242 Trumbull Street
Hartford, Connecticut 06103
Attention: Malcolm Sina
-5-
<PAGE>
As to Agent: Latimer & Buck of Florida, Inc.
15280 N.W. 79th Court
Suite 102
Miami Lakes, Florida 33014
Attention: Roland Lee
(b) None of the rights of the Borrower or the Agent hereunder may be
assigned voluntarily or by operation of law. Any such assignment without the
prior written approval of Aetna will be null and void ab initio.
(c) This Agreement will be binding on and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
(d) This Agreement may be executed in counterparts each of which
shall be deemed an original Agreement whether or not any particular counterpart
has been signed by all of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed and delivered on the
date first above written.
LAUDERDALE BEACH ASSOCIATION, a Florida General Partnership
By: R/V-C Association, a Florida General Partnership,
a general partner of Lauderdale Beach Association
By: R/V Associates, a Florida General Partnership,
as General Partner of R/V-C Association
By: Rahn Harbor, Ltd., a Florida Limited Partnership,
as General Partner of R/V Associates
By: Rahn Harbor, Inc., a General Partner of
of Rahn Harbor, Ltd.
By: /s/ John H. Anderson
---------------------------------------
John H. Anderson, as
Vice-President of
Rahn Harbor, Inc.
-6-
<PAGE>
By: Marriott Hotel Properties Limited Partnership, a Delaware Limited
Partnership, a General Partner of Lauderdale Beach Association
By: Hotel Properties Management, Inc., a Delaware
Corporation, as General Partner
By: /s/ T. Edward Middleton
-----------------------------
Its: VP
-----------------------------
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By: /s/ Malcolm Sina
-----------------------------------------
Its: A.V.P
----------------------------------------
LATIMER & BUCK OF FLORIDA, INC.,
a Florida corporation
By:_________________________________________
Its:________________________________________
-7-
<PAGE>
STATE OF FLORIDA )
---------- ) SS:
COUNTY OF BROWARD )
---------
On this 29th day of March , 1994, personally appeared before me T.
Edward Middleton, the Vice President of Hotel Properties Management, Inc., a
Delaware corporation, on behalf of the corporation, as general partner of and on
behalf of Marriott Hotel Properties Limited Partnership, a Delaware limited
partnership, and a general partner of and on behalf of Lauderdale Beach
Association, a Florida general partnership, to me personally known [or if not
personally known who produced Drivers License] as identification [strike
inapplicable clause], and he acknowledged to me that he signed the foregoing
instrument.
/s/ Jay Wolszczak [NOTARY PUBLIC SEAL]
- ---------------------------------
Notary Public
My Commission Expires: 11/23/97
STATE OF CONNECTICUT)
) SS:
COUNTY OF HARTFORD )
On this 25 day of March , 1994, personally appeared before me Malcolm
Sina, of AETNA LIFE INSURANCE COMPANY, a Connecticut corporation, to me
personally known [or if not personally known who produced ______________ as
identification [strike inapplicable clause]] and he acknowledged to me that he
signed the foregoing instrument on behalf of AETNA LIFE INSURANCE CORPORATION.
/s/ Laurie A. Economidy
- -----------------------------
Notary Public
My Commission Expires:
[SEAL APPEARS] [NOTARY PUBLIC SEAL APPEARS HERE]
-8-
<PAGE>
By: Marriott Hotel Properties Partnership, a
Delaware Limited Partnership, a General
Partner of Lauderdale Beach Association,
and individually with respect to the
Indemnification set forth in Section
2(j) hereof.
Witnessed: By: Hotel Properties Management, Inc.,
a Delaware Corporation, as General
Partner
/s/ Christopher G. Townsend By: /s/ T. Edward Middleton
- -------------------------------- ----------------------------
Print Name: C.G. Townsend T. Edward Middleton
/s/ Theresa McHaughlin Its: VP
- -------------------------------- ----------------------------
Print Name: Theresa McHaughlin
Witness: AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
/s/ William E. Briggs
- -------------------------------
Print Name: William E. Briggs By: /s/ Malcolm Sina
-----------------
Malcolm Sina
/s/ Laurie A. Economidy
- -------------------------------
Print Name: Laurie A. Economidy Its: AVP
----------------
ACKNOWLEDGEMENTS
----------------
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
On this 29 day of March , 1994, personally appeared before me John H.
Anderson, Vice-President of Rahn Harbor, Inc., a Florida corporation, on behalf
of the corporation, as a general partner of and on behalf of Rahn Harbor, Ltd.,
a Florida limited partnership, and a general partner of and on behalf of R/V
Associates, a Florida general partnership, and a general partner of and on
behalf of R/V-C Association, a Florida general partnership, and a general
partner of and on behalf of Lauderdale Beach Association, a Florida general
partnership, to me personally known or if not personally known who produced
Florida Drivers License as identification [strike inapplicable clause], and he
acknowledged to me that he signed the foregoing instrument.
/s/ Jay Wolszczak [NOTARY PUBLIC SEAL]
- ---------------------------------
Notary Public
My Commission Expires: 11/23/97
-7-
<PAGE>
EXHIBIT 10.I.
<PAGE>
LOAN AGREEMENT
This Loan Agreement ("Agreement") is entered into as of the 21 day of
--
July 1994 between Marriott International Capital Corporation ("MICC") with
- ----
offices at 10400 Fernwood Road, Bethesda, Maryland 20058 and Lauderdale Beach
Association, c/o Hotel Properties Management, Inc., 10400 Fernwood Road,
Bethesda, Maryland 20058 ("LBA").
W I T N E S S E T H
WHEREAS, LBA is the owner of the Marriott's Harbor Beach Resort located at
3030 Holiday Drive, Ft. Lauderdale, Florida 33316 ("Hotel"); and
WHEREAS, Marriott Hotel Services, Inc. ("MHSI") leases the Hotel from LBA
pursuant to a Lease Agreement dated October 26, 1984 (the "Lease"); and
WHEREAS, LBA has agreed pursuant to such Lease to make certain capital
expenditures currently estimated to cost Four Million Six Hundred Fifty Thousand
Dollars ($4,650,000); and
WHEREAS, there is not sufficient monies in the Repairs and Equipment
Reserve (as defined in the Lease) to pay for such capital expenditures;
WHEREAS, LBA wishes to borrow from MICC and MICC is willing to lend to LBA
the amount needed to complete the capital expenditures in excess of the amount
in the Repairs and Equipment Reserve.
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is agreed, the parties agree as follows:
SECTION 1. RENOVATION LOAN
1.1 Making of Loan
--------------
Subject to the terms and conditions hereof, MICC agrees to lend to LBA up
to Two Million Eight Hundred Thousand Dollars ($2,800,000) (the "Loan Amount")
in periodic Disbursements ("Disbursements") during the period commencing with
the date herewith and ending December 30, 1994 for the sole purpose of
renovating the Hotel pursuant to the project scope set forth in Exhibit A (the
"Renovation").
<PAGE>
The Loan shall be evidenced by a promissory note in the form of Exhibit B
attached hereto (the "Note").
1.2 Time and Manner of Disbursements
--------------------------------
Commencing upon execution of this Agreement, LBA shall request each
Disbursement of the Loan by giving MICC a written notice ("Disbursement
Request") stating: (i) the amount of the requested Disbursement; (ii) that all
previous Disbursements have been completely used to pay for work or materials
relating to the Renovation; (iii) the purpose to which such Disbursement will be
applied, along with the name of the person, or entity to whom such payment is
due, and a copy of the invoices the Disbursement will be used to pay
(notwithstanding the foregoing, if invoices have not been received by December
30, 1994 for work completed relating to the Renovation prior to such time,
instead of such invoices, LBA shall submit a purchase order or contract and the
estimated amount needed to pay for the anticipated invoices, further the
representation required in subparagraph (vi) shall be a representation that no
lien will be placed on the Hotel for failure to make payment for the work
relating to the requested Disbursement); (iv) that each of the conditions set
forth in Section 3 are true and correct; (v) that there is sufficient money left
in the Loan Amount to complete the Renovation; and (vi) that the applicable
material and mechanics lien waivers have been obtained. LBA shall apply all
Disbursements to pay costs incurred for the Renovation and for no other purpose.
MICC shall use reasonable efforts to make a Disbursement within ten (10) days
after receiving a Disbursement Request.
1.3 Repayment of the Loan
---------------------
1.3.1 Commencing on January 27, 1995, which is the last day of MHSI's
first accounting period of its 1995 Fiscal Year and on the last day of each MHSI
Accounting Period thereafter, LBA shall repay to MICC the principal sum of Two
Million Eight Hundred Thousand Dollars ($2,800,000) or such lesser amount as
may be disbursed hereunder, together with interest on such principal from the
date of Disbursement in equal payments of principal and interest at a rate of
eight percent (8%) per annum based upon a five year amortization schedule (each
"Scheduled Payment"). The last payment shall be due on December 31, 1999. In the
event the Note is not paid in full on or before December 31, 1999, or LBA fails
to make a Scheduled Payment, interest on any unpaid principal or interest shall
accrue and be paid thereafter at the rate of twelve percent (12%) per annum
during such period of default. If MHSI's Fiscal Year is changed in the future,
appropriate adjustment to the payment schedule shall be made; provided, however,
that no such change or adjustment shall increase or decrease the total amount of
principal and interest owing MICC.
1.3.2 Notwithstanding anything in the Lease to the contrary, the
amount of principal and interest paid hereunder will be added to the Performance
Rental (as defined in the Lease) until January 1, 2000 after which time the
Performance Rental will revert to the amount that existed prior to any
Disbursement notwithstanding any prepayment of the Loan.
2
<PAGE>
1.3.3 "CATS Costs" as used herein shall mean the costs to Hotel for
computer payroll and accounting services, national advertising allocations,
central training and management development and national sales allocation which
are charged to Chain Services (as defined in the Lease). If in any of MHSI's
Fiscal Years 1994 through 1999, CATS Costs charged to the Hotel for such year
exceed 2.25% of the Gross Revenues (as defined in the Lease), the amount of such
charges in excess of 2.25% shall be either: (i) deducted from the next Scheduled
Payment(s) beginning with the first Scheduled Payment of the next Fiscal Year,
or (ii) if there are no Scheduled Payments left pursuant to this Agreement, MICC
shall remit to LBA such excess amount by the last day of MICC's first accounting
period of the next Fiscal Year.
1.4 Prepayment of Loan
------------------
LBA may at anytime prepay the Loan and the Note, in whole or in part,
without premium provided that each prepayment shall be accompanied by payment of
the accrued interest on the amount so prepaid.
1.5 Taxes
-----
All sums payable by LBA under this Agreement or the Note, whether on
account of principal, interest, fees, expenses or otherwise, shall be paid in
full, free of any deductions or withholdings for any and all present and future
taxes (other than MICC's income taxes), levies, fees, deductions, charges,
withholdings, and all liability with respect thereto (herein collectively
referred to as "Taxes"). In the event that LBA is required by law to make such
deductions or withholdings, then LBA shall pay such additional amounts as may be
necessary in order that the net amount received by MICC after such deductions or
withholdings and after payment of any Taxes on such additional amounts, shall
equal the full amount stated to be payable hereunder.
1.6 Waiver of Set-Off or Counter Claim
----------------------------------
LBA hereby waives any and all rights to set-off or counter claims which it
may have with respect to any amount due to MICC hereunder. In particular, LBA
shall not withhold payment of any amounts due to MICC under this Agreement or
the Note on the grounds that it has or purports to have a claim, right of action
against Marriott International, Inc., Marriott Hotel Services, Inc. or any of
their affiliates.
SECTION 2. WARRANTIES AND REPRESENTATIONS
2.1 Organization and Authority
--------------------------
LBA and each of its general partners, jointly and severally warrants and
represents to MICC that:
3
<PAGE>
(1) LBA is a partnership duly organized, validly existing and in good
standing under the laws of the state of Florida,
(2) LBA has all requisite power and authority to own the Hotel and to
carry on its business as now conducted and as presently proposed to be
conducted, and
(3) each has all requisite power, authority and legal right to enter
into, consummate and perform this Agreement and Note. The execution, delivery
and performance by it of this Agreement and the Note, have been duly authorized
by all required partnership action and this Agreement and the Note constitute
the legal, valid and binding obligations of it, enforceable according with its
terms.
2.2 Pending Litigation
------------------
LBA and each of its partners, jointly and severally, represents and
warrants that to the best of its actual knowledge, after due inquiry, there are
no proceedings pending or threatened against or involving LBA, in any court or
before any governmental authority which involve more than a remote possibility
of materially and adversely affecting the business or financial condition of
LBA, or the ability of LBA to perform in all material respects this Agreement.
LBA is not in default with respect to any material order of any court or
governmental authority.
2.3 Transaction are Legal and Authorized
------------------------------------
LBA and each of its partners, jointly and severally, represents and
warrants that the making of the Loan and compliance by LBA with all of the
provisions of this Agreement:
(1) are within the powers of LBA, and
(2) are legal and will not conflict with nor result in any breach in any of
the provisions of, or constitute a default under, or result in the creation of
any lien upon any property of LBA, under the provisions of any agreement or
other instrument to which LBA is a party or by which LBA may be bound including,
but not limited to, any existing loans and the partnership agreement.
2.4 No Defaults
-----------
LBA and each of its partners, jointly and severally, represents and
warrants that no event has occurred and no condition exists which, upon the
making of the Loan, would constitute an Event of Default (as defined
hereinafter) or with the lapse of time or the giving of notice or both would
become an Event of Default. LBA is not in default in any material respect under
any agreement, charter instrument, by-law or other instrument to which it is a
party or by which it may be bound.
4
<PAGE>
2.5 Governmental Consent
--------------------
LBA and each of its partners, jointly and severally, represents and
warrants that no circumstances in connection with the making of the Loan
requires a consent, approval or authorization of, or filing, registration or
qualification with, any governmental authority on the part of LBA or any of its
partners in connection with the execution and delivery of this Agreement or the
making of the Loan.
2.6 Use of Disbursements
--------------------
LBA and each of its partners, jointly and severally, represent and warrant
that the Disbursements will be used solely for the Renovation.
SECTION 3. CONDITIONS PRECEDENT TO DISBURSEMENTS
Unless MICC otherwise agrees in writing, the obligations of MICC to make
each Disbursement of the Loan is subject to the prior fulfillment to MICC's
satisfaction, in its sole discretion, of the following conditions precedent:
3.1 Warranties and Representations
------------------------------
The warranties and representations contained in Section 2 shall be true in
all material respects on each date a Disbursement is made with the same effect
as though made on and as of that date.
3.2 Compliance with the Agreement
-----------------------------
LBA shall have performed and complied with all agreements and conditions
contained herein which are required to be performed or complied with by LBA
before each Disbursement.
3.3 Proceedings Satisfactory
------------------------
All proceedings taken in connection with the making of the Loan and all
documents and papers relating thereto shall be reasonably satisfactory to MICC,
and MICC shall have received copies of such documents and papers as it may
reasonably request in connection therewith, all in form and substance
satisfactory to MICC.
3.4 Lease
-----
The Lease shall be in full force and effect.
5
<PAGE>
3.5 No Waiver
---------
No Disbursement shall constitute a waiver of any condition precedent to the
obligation of MICC to make any further Disbursement or preclude MICC from
thereafter declaring the failure of LBA to satisfy any conditions precedent to
be in default or an Event of Default.
3.6 Renovation Completion
---------------------
If the funds available hereunder plus the amount in the Repairs and
Equipment Reserve are not sufficient to complete the Renovations, LBA shall make
available from other sources including amounts due or to be due to LBA under the
Lease, all funds necessary to complete the Renovations.
3.7 Project Manager
---------------
LBA shall have entered into a project management agreement with Rahn
Properties, Inc. reasonably satisfactory to MHSI for managing the Renovation
Project and no default exists under such contract.
SECTION 4. BUSINESS COVENANTS
4.1 Taxes, etc.
-----------
LBA will pay, before they become delinquent,
(1) all taxes, assessments and governmental charges or levies imposed upon
it or the Hotel, and
(2) all claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and other like persons which, if unpaid, might result in
the creation of a lien upon the Hotel, provided that none of the foregoing need
--------
be paid while being contested in good faith so long as LBA's title to, and its
right to use, its property is not materially adversely affected thereby.
4.2 Maintenance of Property, etc.
-----------------------------
LBA will:
(a) maintain the Hotel in good condition (ordinary wear and tear excepted)
and make all necessary renewals, replacements, additions, betterments and
improvements thereto as provided in Article VIII of the Lease;
(b) maintain, with financially sound and reputable insurers, insurance with
respect to the Hotel against such casualties and contingencies, of such types
and in such amounts as
6
<PAGE>
MICC may reasonably request. For purposes of this Section 4.2, compliance by LBA
with the insurance provisions of the Lease shall be deemed to be in compliance
with the insurance provisions of this Agreement.
4.3 Nature of Business
------------------
LBA will not engage in any business if, as a result, the general nature of
the business which would then be engaged in by LBA would be substantially
changed from the general nature of the business engaged in by LBA on the date of
this Agreement.
4.4 Sale of Property in the Loan Agreement
--------------------------------------
In the event LBA sells the Hotel to a bona fide purchaser (for the purpose
of this Loan Agreement, a "bona fide purchaser" shall be a third party in which
neither LBA nor its partners shall have an equity or any other interest
whatsoever), all accrued interest and principal hereunder shall be immediately
due and payable.
4.5 Liens and Encumbrances
----------------------
4.5.1 LBA will not cause or permit the Hotel to be subject to a
lien or other encumbrance, provided that the foregoing restrictions do not apply
--------
to:
(a) liens securing taxes, assessments or governmental charges or
levies provided the payment thereof is not at the time required by Section 4.1,
--------
(b) easements, rights-of-way, zoning or other land use
restrictions, leases and other similar encumbrances affecting real property
provided they do not interfere with the ordinary conduct of LBA's business,
(c) liens in favor of MICC, MHSI, Marriott International or any
of its subsidiaries,
(d) liens existing on the date of this Agreement or liens
relating to the primary loan on the Hotel; however if the primary loan is
refinanced and there are loan proceeds in excess of that necessary to pay for
the cost of the refinancing, such excess proceeds shall be used to pay off or
pay down the Loan.
4.5.2 In case the Hotel is subjected to a lien or other
encumbrance in violation of this Section, LBA will make or cause to be made
effective provision whereby the Loan shall be secured equally and ratably with
all other obligations secured thereby (such violation to constitute a default
hereunder whether or not such provision is made), and, if such provision is not
made, an equitable lien, so equally and ratably securing the Loan, shall exist
on such property.
7
<PAGE>
SECTION 5. EVENTS OF DEFAULT
5.1 Nature of Events
----------------
An "Event of Default" shall exist if any of the following occurs and
is continuing:
(1) LBA fails to make any payment of principal or of interest on the
Loan or Note when and as the same shall be due and payable whether at maturity,
or acceleration or otherwise.
(2) LBA or one of its partners, jointly or severally fails to perform
or observe any covenant contained in Section 4 or any of the representations and
warranties contained herein are not true and accurate and such failure continues
for more than seven (7) days after LBA has received notice of such failure.
(3) LBA or an Affiliate fails to comply in all material respects with
any other provision of this Agreement, and such failure continues for more than
seven (7) days after LBA has received written notice of such failure.
(4) Any material warranty or representation made by or on behalf of
LBA contained in this Agreement or in any instrument furnished in compliance
with this Agreement was false in any material respect on the date of this
Agreement.
5.2 Default Remedies
----------------
If an Event of Default exists, MICC or other holder of the Note may
exercise any right, power or remedy permitted to it by law, and shall have, in
particular, without limiting the generality of the foregoing, the right to
declare the entire principal and all interest accrued on the Note to be, and the
Note shall thereupon become, forthwith due and payable, without any presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived. Upon notice of acceleration by MICC, LBA will forthwith pay to MICC or
other holder of the Note the entire principal and interest accrued on the Note.
No course of dealing on the part of MICC or other holder of the Note nor action
or inaction under any contract nor any delay or failure on the part of MICC or
other holder of the Note to exercise any right shall operate as a waiver of such
right or otherwise prejudice such holder's rights, powers and remedies. LBA
shall have no right of offset in the payments due hereunder. If LBA fails to pay
when due the principal or interest on the Note, LBA will pay to MICC or other
holder of the Note, to the extent permitted by law, such further amount as shall
be sufficient to cover the costs and expenses of collection, including but not
limited to, reasonable attorney's fees.
8
<PAGE>
5.3 Remedies Cumulative
-------------------
Each and every right, power and remedy given to MICC in this Agreement
shall be cumulative and shall be in addition to every other right, power and
remedy herein or therein given now or hereafter existing at law, in equity, by
statue or otherwise. Each and every right, power and remedy, whether given
therein or otherwise existing, may be exercised from time to time as often and
in such order as may be determined by MICC, and the exercise or the beginning of
the exercise of any right, power or remedy shall not be construed to be a waiver
of the right to exercise at the same time or thereafter any other right, power
or remedy. No delay or omission by MICC in the exercise of any right, power or
remedy shall impair any such right, power or remedy or be construed to be a
waiver of or acquiescence in any default therein; not shall the acceptance of
any security or of any payment of or on account of the Loan, the Note,
obligations, expenses, interest or fees maturing after a default or of any
payment on account of any past default be construed to be a waiver of any right
to take advantage of any future Event of Default or of any past Event of Default
not completely cured thereby.
SECTION 6. INTERPRETATION OF THIS AGREEMENT
6.1 Directly or Indirectly
----------------------
Where any provision in this Agreement refers to action to be taken by any
person, or which such person is prohibited from taking, such provision shall be
applicable whether the action in question is taken directly or indirectly by
such person.
SECTION 7. MISCELLANEOUS
-------------
7.1 Notices
-------
(a) All communications under this Agreement shall be in writing,
(1) if to MICC:
Marriott International Capital Corporation
10400 Fernwood Road
Bethesda, Maryland 20058
Attn: Treasury Department
9
<PAGE>
with a copy to:
Marriott International, Inc.
10400 Fernwood Road
Bethesda, Maryland 20058
Attn: General Counsel
(2) if to LBA:
Lauderdale Beach Association
c/o Marriott Hotel Properties Limited Partnership
10400 Fernwood Road
Bethesda, Maryland 20058
Attn: Host Marriott Law Department, #72.923
Marriott Hotel Properties Limited Partnership
c/o Host Marriott Corporation
10400 Fernwood Road
Bethesda, Maryland 20058
Attn: Partnership Accounting
Rahn Harbor, Inc.
c/o John H. Anderson
1512 East Broward Boulevard, Suite 301
Ft. Lauderdale, Florida 33301
or at such other address as any party may have furnished to the other in
writing.
(b) Notices shall be personally delivered, mailed by registered or
certified U.S Mail, or delivered by Federal Express or similar expedited
delivery service. All notices and other communications shall be deemed to have
been duly received on (i) the date of delivery if delivered personally or (ii)
the date of receipt if sent by mail, whichever shall first occur.
7.2 Survival
--------
All warranties, representations, and covenants made by LBA herein or on any
certificate or other instrument delivered by it or on its behalf pursuant to
this Agreement shall be considered to have been relied upon by MICC. Upon
repayment of the Loan, all representation, warranties, covenants, agreements,
obligations and liabilities of LBA under this Agreement shall terminate and be
extinguished.
10
<PAGE>
7.3 Successors and Assigns
----------------------
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties. The rights and obligations of LBA
hereunder shall not be assignable without the written consent of MICC which
consent may be withheld or denied in the sole discretion of MICC, except as to a
sale as provided in Section 4.4 above. MICC may at anytime assign or otherwise
transfer any portion of its rights and obligations hereunder and under the Note.
LBA shall from time to time and at the request of Lender, execute and deliver
such documents as may be necessary to give full force and effect to such
assignment or transfer. Upon such assignment or transfer, (x) the assignee shall
be deemed automatically to have become a party hereto and, to the extent that
rights and obligations hereunder have been assigned and delegated, such assignee
shall have the rights of MICC hereunder and under the other instruments and
documents executed in connection herewith, and (y) Lender, to the extent that
rights and obligations hereunder have been assigned and delegated by it, shall
released from its obligations hereunder.
7.4 Amendment and Waiver
--------------------
This Agreement may be amended, and the observance of any term of this
Agreement may be waived, with (and only with) the written consent of LBA and
MICC.
7.5 Governing Law
-------------
This Loan Agreement and the rights and obligations of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Maryland (without giving effect to Maryland principles of conflicts of law). LBA
irrevocably submits to the nonexclusive jurisdiction of any Maryland State or
Federal Court sitting in Maryland over any suit, action or proceeding arising
out of or relating to this Agreement.
7.6 Duplicate Originals
-------------------
Two or more duplicate originals of this Agreement may be signed by the
parties, each of which shall be an original but all of which together shall
constitute one and the same instrument.
7.7 Limitation of Liability
-----------------------
Notwithstanding anything to the contrary contained herein, LBA shall not
have any liability hereunder exceeding its interest in the Hotel. Any
enforcement of any judgement against LBA shall be limited to LBA's interest in
the Hotel.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
11
<PAGE>
MARRIOTT INTERNATIONAL CAPITAL CORPORATION
By: XXXXXX
------------------------
Vice President
LAUDERDALE BEACH ASSOCIATION
By: Marriott Hotel Properties Limited Partnership,
as General Partner
By: Hotel Properties Management, Inc.
By: XXXXXXXX
---------------------------------
President
By: R/V-C Association
as General Partner
By: R/V Associates
By: Rahn Harbor, Ltd.
By: Rahn Harbor, Inc.
By: /s/ John H. Anderson
-------------------------
12
<PAGE>
EXHIBIT A
INDEX
A. Memorandum re: Harbor Beach Typical Rooms Renovation - YH03 Scope of Work
dated October 4, 1993.
B. Memorandum re: Marriott Harbor Beach - Suites Renovation - YH04 Scope of
Work dated October 4, 1993.
C. Memorandum re: Reduction in Scope of Harbor Beach Rooms and Suite Redo
dated January 4, 1994.
D. Suites Renovation Budget Sheet dated July 20, 1994.
E. Memorandum re: Marriott's Harbor Beach Resort Rooms Redo (Cost
Reconciliation) dated June 8, 1994.
F. Rooms Renovation Budget Revision #5 dated July 15, 1994.
<PAGE>
PROMISSORY NOTE
---------------
For value received, LAUDERDALE BEACH ASSOCIATION, a Florida partnership,
with an office c/o Hotel Properties Management, Inc., 10400 Fernwood Road,
Bethesda, Maryland 20058 (hereinafter referred to as the "Undersigned"), hereby
unconditionally promises to pay to the order of MARRIOTT INTERNATIONAL CAPITAL
CORPORATION, a Delaware Corporation, (hereinafter referred to as "MICC" or,
along with any other holder hereof, as "Holder"), at 10400 Fernwood Road,
Bethesda, Maryland 20058, or at such other place as Holder may from time to time
designate in writing, such amounts as are disbursed to Undersigned pursuant to
that certain Loan Agreement between Undersigned and MICC dated as of the date
hereof ("Loan Agreement") up to an amount not to exceed Two Million Eight
Hundred Thousand Dollars ($2,800,000) plus interest on the unpaid balance from
time to time outstanding until the date the debt is repaid, at the rate of eight
percent (8%) per annum, in accordance with the terms set forth below:
1. Commencing on January 27, 1995, which is the last day of Marriott
Hotel Services, Inc.'s ("MHSI") First Accounting Period of its 1995 Fiscal Year,
and on the last day of each MHSI Accounting Period thereafter, payments of
principal and interest shall be due in equal amounts based upon a five year
amortization schedule. The last payment shall be due December 31, 1999 (the
"Maturity Date"), by which date the debt must be paid in full. A portion or all
of one or more payments may be offset by amounts owed by MICC to Undersigned
pursuant to Section 1.3.3 of the Loan Agreement. If MHSI's Fiscal Year is
changed in the future, appropriate adjustments to the payment schedule shall be
made; provided, however, that no such change or adjustment shall increase or
decrease the total amount of principal and interest owing MICC.
2. All payments received hereunder shall be applied first to accrued
interest and the balance, if any, to principal. All payments hereunder shall be
payable to the order of Holder at 10400 Fernwood Road, Department 924.11
------
Bethesda, Maryland 20058, Attention: James Best , or at such place and to such
------------
person as shall be designated in writing from time to time by Holder.
3. The Undersigned reserves the privilege of prepaying, at anytime and
from time to time, all or any portion of the principal balance of this Note,
together with accrued interest thereon to the date of payment without premium
or penalty.
4. If any payment of principal and/or interest is not paid within two (2)
days after its due date, the Undersigned agrees to pay to Holder interest on any
unpaid principal or
<PAGE>
interest to be paid thereafter at the rate of twelve percent (12%) per annum
until the default is corrected.
5. This Note is the Note referred to in the Loan Agreement and is
entitled to the benefits thereof. All capitalized terms used in the Note which
are not defined herein shall have the meanings ascribed to them in the Loan
Agreement.
6. This Note is given as evidence, and not in satisfaction, of the
Undersigned's indebtedness to the Holder as described in this Note, and the
Undersigned does not contest its obligation to pay to the Holder the principal
amount hereof, subject to the payment and other provisions of this Note.
7. Time is of the essence hereunder and, in case this Note is collected
by Law or through an attorney at law, or under advice therefrom, the Undersigned
agrees to pay all costs of collection, including reasonable attorneys' fees and
costs incident to any court action relating to an assessment of such attorneys'
fees and costs.
8. In no event shall the amount of interest due and payable hereunder
exceed the maximum rate of interest allowed by applicable law, and in the event
any such payment is inadvertently paid by the Undersigned or inadvertently
received by the Holder, then such excess sum shall be credited as a payment of
principal, unless the Undersigned elects to have such excess sum returned to it
forthwith. It is the express intent hereof that the Undersigned not pay and the
Holder not receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may be legally paid by the Undersigned under applicable
law.
9. The Undersigned waives presentment, demand for payment, notice of
dishonor, diligence in collection,and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note, and all defenses to a collection action which may be waived pursuant
to applicable law.
10. At the option of MICC, this Note shall become immediately due and
payable, subject to any notice and cure provisions that may be set forth in the
Loan Agreements or this Note, in the event any of the following shall occur: (i)
if LBA fails to make any payment hereunder when such payment is due and
payable; (ii) if LBA fails to observe or perform any obligation to be observed
or performed by LBA under this Note or the Loan Agreement; (iii) if there shall
exist any other default under this Note or the Loan Agreement; or (iv) the Lease
between LBA and Marriott Hotel Services, Inc. dated October 26, 1984 is
terminated for any reason whatsoever.
The failure of Holder to exercise its option to accelerate this Note as
provided above, or to exercise any other option or remedy granted to it
hereunder or under the Loan Agreement, shall not constitute a waiver of any
default by LBA and all such options and remedies shall remain continually in
force.
2
<PAGE>
11. This Note shall be fully negotiable to the extent permitted by
applicable law.
12. The Undersigned expressly agrees that this Note or any payment
hereunder may be extended from time to time without affecting its liability.
13. The provisions of this Note are severable and the finding by a court
of competent jurisdiction that any provision hereof is illegal or unenforceable
shall not affect the validity of the remaining provisions hereof.
14. The unpaid indebtedness and accrued interest described in this Note
shall be due and payable upon the sale of the Hotel property to any third party
purchaser.
15. Notwithstanding anything to the contrary contained herein, LBA shall
not have any liability hereunder exceeding its interest in Hotel. Any
enforcement of any judgement against LBA shall be limited to LBA's interest in
the Marriott's Harbour Beach Resort.
16. This Note shall be governed as to validity, interpretation,
construction, effect, and in all other respects by the laws of Maryland. LBA
submits to nonexclusive jurisdiction of any Maryland court or Federal court
sitting in Maryland over any suit, action, or proceeding arising out of or
relating to this Note.
IN WITNESS WHEREOF, the Undersigned has executed this Promissory Note as of
the 21 day of July , 1994.
---- ------
LAUDERDALE BEACH ASSOCIATION
By: Marriott Hotel Properties Limited Partnership,
as General Partner
By: Hotel Properties Management, Inc.
By: XXXXXXXXXXXXXXXXXXXX
-----------------------------
President
By: R/V-C Association
as General Partner
By: R/V Associates
By: Rahn Harbor, Ltd.
By: Rahn Harbor, Inc.
By: /s/ John H. Anderson
------------------------
3
<PAGE>
EXHIBIT 10.J.
<PAGE>
RENEWAL MORTGAGE NOTE
---------------------
$156,978,523.36 As of June 16, 1995
FOR VALUE RECEIVED, MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, having an address c/o Host Marriott Corporation,
10400 Fernwood Road, Bethesda, Maryland 20817 ("Maker"), promises to pay to the
order of THE SANWA BANK LIMITED ("Payee"), acting by and through its New York
Branch, on June 16, 2000 (the "Repayment Date") at 55 East 52nd Street, New
York, New York 10055, or at such other place as may be designated in writing by
the holder of this Renewal Mortgage Note, the aggregate principal amount of ONE
HUNDRED FIFTY-SIX MILLION NINE HUNDRED SEVENTY-EIGHT THOUSAND FIVE HUNDRED
TWENTY-THREE AND 36/100 DOLLARS ($156,978,523.36) or, if less, the aggregate
principal amount hereof then outstanding (the "Principal Amount"). Maker further
promises to pay interest as hereinafter set forth. The capitalized terms used
and not otherwise herein defined shall have the respective meanings assigned
thereto in that certain Amended and Restated Term Loan Agreement dated as of
June 16, 1995 between the Maker and the Payee (as amended, modified or
supplemented, the "Loan Agreement"). In the event of any inconsistency between
the Loan Agreement and this Renewal Mortgage Note, the Loan Agreement shall
govern.
This Renewal Mortgage Note is given as a renewal of the unpaid
principal obligations under that certain mortgage note, dated January 12, 1993,
in the principal amount of $180,087,250.92, made by Maker to the order of Payee,
which mortgage note is attached hereto.
This Renewal Mortgage Note is secured by, among other things, an
Amended and Restated Mortgage and Security Agreement dated as of June 16, 1995
(the "Mortgage") between Maker and Payee covering Maker's fee simple estate in
land and improvements located in the County of Orange and State of Florida and
more particularly described in Exhibit B to the Mortgage.
The Principal Amount plus all unpaid interest accrued thereon together
with all other amounts owed under this Renewal Mortgage Note and the other Loan
Documents shall become immediately due and payable, at the option of Payee, upon
the occurrence of any Event of Default under and as defined in the Loan
Agreement.
Maker shall pay interest on the outstanding principal amount hereof at
the rates per annum and on the dates set forth in or established by the Loan
Agreement and as calculated therein. All indebtedness outstanding under this
Renewal Mortgage Note shall bear interest (computed in the same manner as
interest on this Renewal Mortgage Note prior to maturity)
<PAGE>
after maturity by acceleration or otherwise, at the rate set forth in Section
2.6 of the Loan Agreement, and all such interest shall be payable on demand.
Maker promises to pay, without setoff or deduction, to the order of
Payee at the place designated in the first paragraph, semi-annual payments of
principal as follows:
<TABLE>
<CAPTION>
Amount Payment Date
------ ------------
<S> <C>
$4,000,000 December 16, 1995
$4,000,000 June 16, 1996
$3,500,000 December 16, 1996
$3,500,000 June 16, 1997
$3,500,000 December 16, 1997
$3,500,000 June 16, 1998
$2,000,000 December 16, 1998
$2,000,000 June 16, 1999
$2,000,000 December 16, 1999
$2,000,000 June 1, 2000
</TABLE>
The Principal Amount and all accrued and unpaid interest and all other
sums, if any, then due under the Loan Agreement shall be due and payable in full
on the Repayment Date.
Maker may prepay, in whole or in part, the Principal Amount in the
amounts and terms provided for such prepayments under Section 2.4(a) of the Loan
Agreement and shall prepay, as required in whole or in part, all or a portion of
the Principal Amount in the amounts and terms provided for such prepayments
under Section 2.4(b) of the Loan Agreement.
Maker and all endorsers, sureties and guarantors hereby jointly and
severally waive presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this Renewal Mortgage
Note, and they agree that the liability of each of them shall be without regard
to the liability of any other party, and shall not be affected in any manner by
any indulgence, extension of time, renewal, waiver of modification granted or
consented to by the holder hereof (other than by the terms hereof). Maker and
all endorsers, sureties and guarantors consent to any and all extensions of
time, renewals, waivers or modifications that may be granted by the holder
hereof with respect to the payment or other provisions of this Renewal Mortgage
Note, and to the release of the collateral or any part thereof, with or without
substitution, and agree that additional makers, endorsers, guarantors or
sureties may become parties to this Renewal Mortgage Note without notice to them
or affecting their liability under this Renewal Mortgage Note.
Payee's acceptance of any amount paid after the occurrence and during
the continuance of an Event of Default without itself curing said default shall
not operate as a waiver of such default nor a continuing waiver of any
subsequent default.
-2-
<PAGE>
All payments of interest, principal and other sums due and payable
hereunder shall be made in lawful money of the United States of America by wire
transfer of same day funds to The Sanwa Bank Limited, New York Branch, 55 East
52nd Street, New York, New York 10055, by credit of Federal or other immediately
available funds satisfactory to Payee wired to the Payee ABA #026-00-9823 with
designation of what such payment is for, or to any other office, branch or
affiliate of Payee hereafter selected and notified to Maker from time to time
by Payee. All payments of principal and interest on this Renewal Mortgage Note
shall be made to Payee in such funds not later than 3:00 p.m. New York City time
on the date such payment is due. Any payment received after 3:00 p.m. shall be
deemed received by Payee on the following Business Day.
The failure of Payee to exercise the option for acceleration following
any Event of Default, or to exercise any other option or remedy granted to it
under the Loan Agreement, the Mortgage or any other Loan Document in any one or
more instances, or the acceptance by Payee of partial payments or partial
performance, shall not constitute a waiver of any such default, but such options
shall remain continuously in force while such default is outstanding.
Acceleration of maturity, once claimed hereunder by Payee, may, at the option of
Payee, be rescinded by written acknowledgment to that effect, but the tender and
acceptance of partial payment or partial performance alone shall not in any way
affect or rescind such acceleration of the Repayment Date.
The remedies of the holder hereof as provided in the Loan Documents
shall be cumulative and concurrent, and may be pursued singly, successively or
together at the sole discretion of the holder hereof, and may be exercised as
often as occasion therefor shall occur; and the delay, omission or failure to
exercise any such right, privilege or remedy under this Renewal Mortgage Note
shall in no event impair such right, privilege or power or be construed as a
waiver or release of any default or acquiescence therein. Any single or partial
exercise of any right, privilege or power shall not preclude any other or
further exercise thereof or the exercise of any other right, privilege or power.
Nothing herein contained shall be construed as limiting the holder of this
Renewal Mortgage Note to the remedies mentioned above.
Maker hereby waives and releases, to the extent permitted by law, any
benefits that might accrue to Maker by virtue of any present or future laws
exempting the Mortgaged Property (as defined in the Mortgage) or any other
property, real or personal, or any part of the proceeds arising from any sale
of any such property, from attachment, levy or sale under execution, exemption
from civil process or extension of time for payment; and Maker agrees that any
property that may be levied upon pursuant to a judgment obtained by virtue of
this Renewal Mortgage Note, or any writ of execution issued thereon, may be sold
upon any such writ in whole or in part in any order desired by Payee.
Notwithstanding any contrary provision of this Renewal Mortgage Note,
it is hereby expressly agreed that except as provided in the remaining sentences
of this paragraph, neither Maker, any partner in Maker, any legal
representative, successor or assign of Maker or any such partner, nor any
officer, director, shareholder of or partner in Maker or any such
-3-
<PAGE>
partner nor any other principal in Maker or in any partner in Maker, whether
disclosed or undisclosed, shall have any personal liability for (i) the payment
of any sum of money which is or may be payable hereunder or under any other Loan
Document to which Maker is a party or (ii) the performance or discharge of any
covenants or undertakings of Maker hereunder or under any of the Loan Documents,
and in the event of any Event of Default or any default or event of default
under any other Loan Document, Payee shall proceed solely against the Mortgaged
Property and any other collateral given as security for payment hereof, and
Payee shall not seek or claim recourse against Maker or any partner in Maker,
any legal representative, successor or assign of Maker or any such partner or
any officer, director, shareholder of or partner in Maker or any such partner or
any other principal in Maker or in any partner in Maker, whether disclosed or
undisclosed, for any deficiency or any personal judgment after a foreclosure of
the lien of the Mortgage or the Assignment of Rents, or both, or for the
performance or discharge of any covenants or undertakings of Maker hereunder or
under the Loan Agreement or any other Loan Document. Notwithstanding the
foregoing, nothing contained in this paragraph shall (a) impair the validity of
the indebtedness evidenced hereby or in any way affect or impair the lien of the
Mortgage or the right of any holder hereof or secured party under the Mortgage
to foreclose the Mortgage following an Event of Default in accordance with
Section 3 thereof or prevent Payee or any holder hereof from exercising any
rights or remedies under any of the Loan Documents or any of the other Related
Documents against Maker, the Mortgaged Property or any other collateral or (b)
relieve Maker or any partner in Maker of any personal liability for any loss,
cost, expense, damage or liability, including, without limitation, reasonable
attorney's fees and disbursements, suffered or incurred by Payee arising out of
or resulting from (x) any representation or warranty contained in any of the
Loan Documents made by Maker or any such partner having been false or incorrect
in a material respect when made and having been made with fraudulent intent, (y)
any amount distributed to any partner in Maker in violation of any provision of
any of the Loan Documents or (z) fraud or breach of trust, including, but not
limited to, misapplication of loan proceeds advanced hereunder or pursuant to
the Loan Agreement or any insurance proceeds or condemnation awards or other
sums which are part of the Mortgaged Property that may come into Maker's
possession or control or (c) relieve Maker or any partner in Maker of any
personal liability under the Environmental Indemnity. The provisions of this
paragraph shall not, however, affect any separate guaranty or similar
undertaking with respect to all or any part of the indebtedness evidenced hereby
or any subsequent assumption of the obligations with respect to such
indebtedness or the Mortgage.
No reference in this Renewal Mortgage Note to, and no provisions of,
any of the other documents or instruments herein described shall alter or impair
the obligation of Maker to pay the principal of, and interest on, this Renewal
Mortgage Note, at the time and place and at the rates and in the monies and
funds described in this Renewal Mortgage Note, in accordance with the terms
hereof.
Notwithstanding anything to the contrary contained herein, Payee shall
not charge, take or receive and Maker shall not be obligated to pay to Payee,
any amounts constituting interest on the principal amount hereof in excess of
the maximum rate permitted by applicable law.
-4-
<PAGE>
This Renewal Mortgage Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Renewal Mortgage Note may not be modified or discharged orally,
but only by an agreement in writing executed by the party against whom
enforcement of any modification or discharge is sought.
Whenever used herein the singular number shall include the plural and
the plural shall include the singular, the use of any gender shall be applicable
to all genders, and the words "Payee" and "Maker" shall be deemed to include the
respective successors and assigns thereof.
IN WITNESS WHEREOF, Maker intending to be legally bound by this
Renewal Mortgage Note, has caused this Renewal Mortgage Note to be executed as
of the day and year first above written.
MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP
By: Hotel Properties Management, Inc.,
General Partner, a Delaware
corporation
By: /s/ Ted Middleton
-----------------------------------
Name: Ted Middleton
Title: VP
-5-
<PAGE>
AMENDED AND RESTATED
TERM LOAN AGREEMENT
BY AND BETWEEN
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP
AND
THE SANWA BANK LIMITED
ACTING BY AND THROUGH ITS
NEW YORK BRANCH
_________________________
Dated as of June 16, 1995
_________________________
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<S> <C>
SECTION 1
DEFINITIONS
Section 1.1 Definitions............................................. 1
Section 1.2 Certain Accounting Terms................................ 10
Section 1.3 Other Definitional Terms................................ 10
SECTION 2
THE LOAN
Section 2.1 Making of the Loan...................................... 11
Section 2.2 Purpose of the Loan..................................... 11
Section 2.3 Repayment of the Loan................................... 11
Section 2.4 Prepayments of the Loan................................. 12
Section 2.5 Interest................................................ 13
Section 2.6 Default Interest........................................ 16
Section 2.7 Payments and Advances................................... 16
Section 2.8 Participations.......................................... 17
SECTION 3
OTHER PAYMENTS
Section 3.1 Other Payments.......................................... 17
SECTION 4
CONDITIONS PRECEDENT TO EXTENSION OF REPAYMENT DATE
Section 4.1 Conditions to Extension of Repayment Date............... 19
SECTION 5
OBLIGATIONS ABSOLUTE
Section 5.1 Obligations of the Borrower............................. 23
SECTION 6
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of the................... 23
</TABLE>
(i)
<PAGE>
<TABLE>
<S> <C>
SECTION 7
AFFIRMATIVE COVENANTS
Section 7.1 Information........................................................ 27
Section 7.2 Discharge of Obligations; Liens.................................... 28
Section 7.3 Maintenance of Existence........................................... 29
Section 7.4 Access to Records.................................................. 29
Section 7.5 Furnishing Notice.................................................. 29
Section 7.6 Hotel Management Agreement......................................... 29
Section 7.7 Proceeds of the Loans.............................................. 30
SECTION 8
NEGATIVE COVENANTS
Section 8.1 Consolidation, Mergers, Name Changes and Sales of Assets........... 30
Section 8.2 Place of Business.................................................. 30
Section 8.3 Incurrence of Indebtedness......................................... 30
Section 8.4 Purchase of Property............................................... 30
Section 8.5 Maintenance of Purpose............................................. 30
Section 8.6 Payments........................................................... 31
Section 8.7 Amendments to Agreements........................................... 31
Section 8.8 Other Activities................................................... 32
SECTION 9
EVENTS OF DEFAULT
Section 9.1 Events of Default.................................................. 32
SECTION 10
CONSEQUENCES OF DEFAULT
Section 10.1 Remedies........................................................... 35
</TABLE>
(ii)
<PAGE>
<TABLE>
<S> <C>
SECTION 11
MISCELLANEOUS
Section 11.1 Amendments................................................... 36
Section 11.2 Notices...................................................... 36
Section 11.3 No Waiver.................................................... 37
Section 11.4 Continuing Obligation; Assignments and Participations........ 37
Section 11.5 Indemnification.............................................. 37
Section 11.6 Confidentiality.............................................. 38
Section 11.7 Liability of the Partners Limited............................ 38
Section 11.8 Application of Proceeds...................................... 39
Section 11.9 Counterparts................................................. 40
Section 11.10 Entire Agreement............................................. 40
Section 11.11 Governing Law................................................ 40
Section 11.12 Submission to Jurisdiction; Waiver of Jury Trial............. 40
Section 11.13 Waiver of Immunity........................................... 41
Section 11.14 Headings..................................................... 42
Section 11.15 Severability................................................. 42
Section 11.16 Waiver of Setoff............................................. 42
</TABLE>
(iii)
<PAGE>
AMENDED AND RESTATED TERM LOAN AGREEMENT
----------------------------------------
THIS AMENDED AND RESTATED TERM LOAN AGREEMENT dated as of June 16,
1995 by and between MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Borrower"), and THE SANWA BANK LIMITED acting by and
through its New York Branch (the "Bank"), sets forth the binding agreement of
the parties.
* * *
The Borrower and the Bank are parties to a Term Loan Agreement dated
January 12, 1993 (the "Existing Loan Agreement") pursuant to which the Bank made
a loan to the Borrower in the principal sum of $180,087,250.92.
The Borrower has requested that the Bank extend the final maturity of
the loan under the Existing Loan Agreement and amend the Existing Loan Agreement
and the other Loan Documents (as defined in the Existing Loan Agreement (such
documents, together with the Existing Loan Agreement, the "Existing Loan
Documents")) in certain other respects and the Bank is willing to do so on the
terms and subject to the conditions of this Agreement.
In consideration of the premises and the mutual obligations contained
in this Agreement, the Borrower and the Bank hereby agree as follows:
SECTION 1
DEFINITIONS
Section 1.1 Definitions. The following capitalized expressions, as
-----------
used in this Agreement, have the following meanings (such meanings to be equally
applicable to both the singular and the plural forms of such expressions):
"Accountants" means Arthur Andersen & Co. L.L.P., or another nationally
-----------
prominent firm of independent certified public accountants reasonably acceptable
to the Bank, acting as accountants for the Borrower.
"Accounts Receivable" means: all rights of the Borrower to payments which
-------------------
are to be earned by performance under contracts in any way relating to or
connected with the Hotel, now existing and hereafter arising; all accounts,
notes, drafts, documents, chattel paper, contract rights, instruments, credit
card receivables and other forms of claims, demands, and other receivables
(including guest ledger receivables and room rental receivables), now existing
or hereafter arising, of the Borrower for services performed, goods or rooms,
premises or facilities leased, rented or hired and for goods sold in connection
with, at or from the Hotel; and all proceeds of the foregoing, except for
Extraordinary Revenues.
<PAGE>
"Additional Incentive Management Fees" has the meaning specified in the
------------------------------------
Hotel Management Agreement.
"Affiliate" means, with respect to any Person, any other Person which,
---------
directly or indirectly, controls, is controlled by or is under common control
with any such Person.
"Agreement" means this Amended and Restated Term Loan Agreement, as the
---------
same may from time to time be amended, supplemented or modified in accordance
with the terms hereof.
"Annual Financial Statement" means the audited annual financial statements
--------------------------
of the Borrower together with consolidating statements of operations for
Lauderdale Beach Association used as the basis therefor, prepared in accordance
with Section 9.04B of the Partnership Agreement and GAAP.
"Architect's Contract" means the Agreement with Consultant by and between
--------------------
Host Marriott and RTKL Associates, Inc. dated February 1, 1983, as amended.
"Assignment of Architect's Contract" means the Amended and Restated
----------------------------------
Assignment of Architect's Contract dated as of June 16, 1995 from Host Marriott
to the Bank.
"Assignment of Contract" means the Amended and Restated Assignment of Hotel
----------------------
Management Agreement from the Borrower to the Bank and the Manager's consent
thereto, each dated as of June 16, 1995.
"Assignment of Rents" means the Amended and Restated Assignment of Leases,
-------------------
Rents and Profits dated as of June 16, 1995 from the Borrower to the Bank,
substantially in the form of Exhibit F, as the same may be amended, supplemented
or modified from time to time in accordance with the terms thereof, pursuant to
which the Borrower has assigned to the Bank all Accounts Receivable and all the
rentals and other income received from the operation of the Hotel.
"Bank" means The Sanwa Bank Limited, acting by and through its New York
----
Branch.
"Beneficial Owner" means any Person who, directly or indirectly, through
----------------
any contract, arrangement, understanding relationship or otherwise, has or
shares (i) the power to vote, or direct the voting of a Security or (ii) the
power to dispose of, or direct the disposition of, such Security.
"Breakage Costs" has the meaning specified in Section 2.4(c).
--------------
"Borrower" means Marriott Hotel Properties Limited Partnership, a Delaware
--------
limited partnership.
2
<PAGE>
"Business Day" means every day other than a Saturday, Sunday and each day
------------
on which banks in New York, New York are authorized or required to close.
"CHIPS" means the Clearing House Interbank Payment System of the New York
-----
Clearing House Association.
"Closing Date" means the date of execution and delivery of this Agreement,
------------
which shall be on October 31, 1995, unless otherwise agreed by the Borrower and
the Bank.
"Code" means the Internal Revenue Code of 1986, as hereafter amended and in
----
effect, or any successor legislation.
"Contract Period" means at the option of the Borrower, a period of one
---------------
month or, with the consent of the Bank, one week, except that (a) any Contract
Period that would end on a day other than an Eurodollar Business Day shall be
extended to the next succeeding Eurodollar Business Day unless such Eurodollar
Business Day falls in another calendar month, in which case such Contract Period
shall end on the next preceding Eurodollar Business Day and (b) no Contract
Period shall expire after the date that is three (3) Eurodollar Business Days
prior to the last day of the Interim Period.
"Control" "controlled by" or "under common control with" mean, for a
------- ------------- -------------------------
corporation, ownership, directly or indirectly, of outstanding voting stock
entitling the holder thereof to elect a majority of the board of directors
(irrespective of whether at the time stock of any other class or classes of such
corporation shall or might have voting power by reason of the happening of any
contingency); for a Person other than a corporation with ownership interests
entitling the holder thereof to elect the equivalent of a board of directors,
the ownership, directly or indirectly, of interests sufficient to elect the
equivalent of a majority thereof; or, for any other Person, control by any other
means.
"Controlled Group" means all members of a controlled group of corporations
----------------
and all trades or businesses (whether or not incorporated) under common control
which, together with any Person, are treated as a single employer under Section
414(b) or 414(c) of the Code.
"Debt Service" means all amounts to be paid by the Borrower as interest or
------------
principal on the Loan.
"Default" means any event or failure of any event or condition to occur
-------
which constitutes or would constitute, after the giving of notice or lapse of
time or both, an Event of Default.
"Dollars" and the sign "$" shall mean such coin or currency of the United
-------
States of America as is, at the relevant time, legal tender for the payment of
public and private debts.
"Domestic Rate" means for any period, a fluctuating interest rate equal for
-------------
each day during such period to the weighted average of the rates on overnight
Federal Funds transactions
3
<PAGE>
with members of the Federal Reserve System arranged by Federal Funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Bank from three
Federal Funds brokers of recognized standing selected by the Bank.
"Environmental Indemnity" means the Environmental Indemnity Agreement dated
-----------------------
the Closing Date between the Borrower and the Bank, as the same may be amended,
supplemented or modified from time to time in accordance with the terms thereof.
"Equivalent Rate" means the rate per annum set forth in Section 2.5(b) on
---------------
the Closing Date.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended, as now or hereafter in effect or any successor legislation.
"Eurodollar Business Day" means a day other than a day on which commercial
-----------------------
banks in the City of New York are authorized by law or official proclamation to
close and which also is a day on which dealings in United States dollars are
carried on in the London interbank market.
"Eurodollar Rate" means the rate per annum of interest quoted by the Bank
---------------
at approximately 9:00 a.m. New York time three (3) Eurodollar Business Days
prior to the first day of the relevant Contract Period representing the rate
then offered to the Bank by leading banks in the London interbank market
applicable to Dollar deposits for such Contract Period in an amount similar to
the outstanding principal amount of the Loan, subject to availability as
reasonably determined by the Bank.
"Event of Default" has the meaning specified in Section 9.1.
----------------
"Excluded Taxes" has the meaning specified in Section 3.1(c).
--------------
"Existing Loan Agreement" has the meaning specified in the preamble hereto.
-----------------------
"Existing Loan Documents" has the meaning specified in the preamble hereto.
-----------------------
"Extraordinary Revenues" means for any period, the proceeds received by or
----------------------
on behalf of the Borrower in such period otherwise than from ordinary
operations, as permitted by this Agreement and the Mortgage, including: (i)
sales or dispositions of assets of the Borrower other than in the ordinary
course of operating the Hotel; (ii) damage recoveries and casualty insurance;
(iii) other insurance; (iv) income from and proceeds from sales of securities or
other property acquired and held for investment; (v) condemnation awards or
sales in lieu of and under the threat of permanent condemnation; (vi) capital
contributions of partners of the Borrower; (vii) any litigation in connection
with the Hotel; and (viii) distributions in respect of the Borrower's
partnership interests under the Lauderdale Beach Association Partnership
Agreement.
4
<PAGE>
"Financial Statements" means the Annual Financial Statements, the Quarterly
--------------------
Financial Statements and the Periodic Reports.
"FF&E Account" has the meaning specified in Section 7.1(f).
------------
"GAAP" means generally accepted accounting principles in the United
----
States of America in effect from time to time.
"General Partner" means Hotel Properties Management, Inc. (formerly known
---------------
as Marriott Hotel Properties, Inc.), a Delaware corporation, and its successors
and permitted assigns, in its capacity as the general partner of the Borrower.
"Governmental Authority" means any nation, government, state or political
----------------------
subdivision of any thereof, including without limitation any monetary authority,
central bank or its equivalent, any court or any other entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Host Marriott" means Host Marriott Corporation, a Delaware corporation.
-------------
"Hotel" means the hotel currently bearing the name "Marriott's Orlando
-----
World Center Resort and Convention Center", located on the Site, including the
Land and the Improvements and the other property included in the Mortgaged
Property, as each such term is defined in the Mortgage.
"Hotel Management Agreement" means the Amended and Restated Hotel
--------------------------
Management Agreement dated as of October 25, 1985 between the Borrower and the
Manager, as the same may from time to time be amended, supplemented or modified
in accordance with the terms thereof and of the other Related Documents.
"Incentive Management Fees" has the meaning specified in the Hotel
-------------------------
Management Agreement.
"Indebtedness" means, as to any Person, the sum of the following (without
------------
duplication): (i) all obligations of such Person for borrowed money, all
obligations evidenced by bonds, debentures, notes or other similar instruments
and all securities issued by such Person providing for mandatory payments of
money, whether or not contingent; (ii) all obligations of such Person pursuant
to revolving credit agreements or similar arrangements (which obligations shall
be deemed to equal the maximum commitment of the lenders, thereunder, whether
currently outstanding or undrawn and available); (iii) all obligations of such
Person to pay the deferred purchase price of property or services, except trade
accounts payable arising in the ordinary course of business; (iv) all
obligations of such Person as lessee under capital leases; (v) all obligations
of such Person to purchase securities (or other property) which arise out of or
in connection with the sale of the same or substantially similar securities or
property; (vi) all obligations whether contingent or not of such Person to
reimburse any Person in respect of
5
<PAGE>
amounts paid under a letter of credit or similar instrument; (vii) all interest
rate and currency swap and similar agreements obligating such Person to make
payments, whether periodically or upon the happening of a contingency; (viii)
all Indebtedness of others secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; and (ix) all
guarantees by such Person of or with respect to the Indebtedness of another
Person.
"Interim Interest Rate" has the meaning specified in Section 2.5(a).
---------------------
"Interim Period" has the meaning specified in Section 2.5(a).
--------------
"Interest Payment Date" means the sixteenth day of each March, June,
---------------------
September and December of each year during the term of the Loan and June 1,
2000, provided that (i) any Interest Payment Date that would otherwise fall on a
day that is not a Business Day shall instead fall on the next succeeding
Business Day.
"Interest Shortfall" means the sum of the present values of each Quarterly
------------------
Interest Shortfall during the Yield Maintenance Period determined by discounting
at the Treasury Yield used in determining the Quarterly Interest Shortfalls.
"Lauderdale Beach Association Partnership Agreement" means the Amended and
--------------------------------------------------
Restated Partnership Agreement of Lauderdale Beach Association dated as of July
1, 1986 between the Borrower and R/V-C Association, as the same may from time to
time be amended, supplemented or modified in accordance with the terms thereof.
"Lease" means the Lease Agreement by and between Lauderdale Beach
-----
Association and Marriott Hotel Services, Inc. (formerly known as San Francisco
Marriott, Inc.) dated as of October 26, 1984, as the same may from time to time
be amended, supplemented or modified in accordance with the terms thereof and
hereof.
"Lien" means, with respect to any asset of any Person, any mortgage, deed
----
of trust, lien, pledge, charge, security interest or encumbrance of any kind in
respect of such asset, including, without limitation, any right or arrangement
with any creditor to have its claim satisfied out of such asset, or the proceeds
therefrom, prior to the general unsecured creditors of the owner thereof. For
the purposes of this Agreement and the other Related Documents, such Person
shall be deemed to own subject to a Lien any asset that it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan" means the aggregate principal amount advanced by the Bank to the
----
Borrower under this Agreement or under the Loan Documents, or where the context
requires, the amount thereof then outstanding.
"Loan Documents" means this Agreement, the Manager's Letter Agreement, MI
--------------
Guaranty Agreement, the Environmental Indemnity, the Mortgage, the Mortgage
Note, the
6
<PAGE>
Assignment of Rents, the Assignment of Contract and the Assignment of
Architect's Contract and all other instruments, documents and agreements
executed in connection with this Agreement.
"Manager" means Marriott International, Inc. (formerly known as Marriott
-------
Hotels, Inc.), a Delaware corporation.
"Manager's Letter Agreement" means the Amended and Restated Manager's
--------------------------
Letter Agreement dated as of June 16, 1995 between the Manager, Host Marriott
and the Bank concerning the Hotel Management Agreement, certain of the Manager's
and Host Marriott's rights and obligations thereunder and certain of the
Manager's and Host Marriott's rights to payments from the Borrower.
"MI Guaranty Agreement" means the Guaranty Agreement dated as of June 16,
---------------------
1995 by the Manager in favor of the Bank with respect to certain obligations
under the Lease, as the same may from time to time be amended, supplemented or
modified in accordance with the terms thereof.
"Mortgage" means the Amended and Restated Mortgage and Security Agreement
--------
dated as of June 16, 1995 from the Borrower to the Bank granting a first
mortgage in the fee simple interest in the Site and the buildings, improvements
and fixtures located thereon and a first security interest in the hotel room
rentals, rentals, Accounts Receivable and all other income, fees and profits
generated from the operations of the Hotel, golf course and other amenities
located at the Property of every kind and nature and all furniture, fixtures,
equipment and other personalty in the Hotel, as more fully set forth in the
Mortgage, substantially in the form of Exhibit E, properly completed, as the
same may from time to time be amended, supplemented or modified in accordance
with the terms thereof.
"Mortgage Note" means the renewal mortgage note issued by the Borrower
-------------
dated as of June 16, 1995 in the principal amount of $156,978,523.36 that is
secured by the Mortgage and evidences the Loan, in the form of Exhibit G,
properly completed, as the same may from time to time be amended, supplemented
or modified in accordance with the terms thereof, which Mortgage Note is issued
by the Borrower to evidence a renewal of the Mortgage Note of the Borrower dated
January 12, 1993 in the principal amount of $180,087,250.92.
"Mortgaged Property" has the meaning specified in the Mortgage and the
------------------
Assignment of Rents.
"Operating Profits" has the meaning specified in the Hotel Management
-----------------
Agreement.
"Participant" has the meaning specified in Section 2.4(c).
-----------
7
<PAGE>
"Partnership Agreement" means the Amended and Restated Agreement of Limited
---------------------
Partnership of the Borrower dated as of November 27, 1985, as the same may from
time to time be amended in accordance with the terms thereof and hereof.
"Person" means an individual, estate, unincorporated association, a
------
corporation, company, partnership, trust, joint stock company, voluntary
association, joint venture, Governmental Authority, juridical entity or any
other entity of whatever nature.
"Plan" means at any time an employee pension benefit plan which is covered
----
by Title IV of ERISA or subject to the minimum funding standards under Part 3 of
Title I of ERISA or Section 412 of the Code and is either (i) maintained by any
person or any member of a Controlled Group for employees of such Person or any
member of such Controlled Group or (ii) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer
makes contributions and to which such Person or any member of a Controlled Group
is then making or has any obligation to make contributions or, within the
preceding five plan years, has made or has had any obligation to make
contributions.
"Principal Payment Date" means each June 16 and each December 16 during the
----------------------
term of the Loan, provided that (i) any Principal Payment Date that would
otherwise fall on a day that is not a Business Day shall instead fall on the
next succeeding Business Day; and (ii) the Principal Payment Date falling in the
same calendar month and year as the Repayment Date shall instead be on June 1,
2000.
"Quarterly Financial Statements" means the unaudited financial statements
------------------------------
of the Borrower for each of its three fiscal quarters setting forth in each case
in comparative form the figures for the previous year prepared in accordance
with Section 9.04C of the Partnership Agreement and GAAP, together with the
consolidating statements of operations for the Lauderdale Beach Association used
as the bases therefor, certified by the chief accounting officer of the General
Partner (or his designee) but subject to year-end audit adjustment.
"Quarterly Interest Shortfall" means the amount determined in accordance
----------------------------
with the following formula:
8
<PAGE>
(ER - TY)
(-------) x LA
( 4 )
where: ER = the Equivalent Rate;
TY = the Treasury Yield plus one percent (1%); and
LA = if the Quarterly Interest Shortfall is being
determined (x) in respect of the prepayment of the
entire principal amount of the Loan or the acceleration
of the principal amount of the Loan prior to maturity,
the principal amount of the Loan that would have been
outstanding on each Interest Payment Date during the
Yield Maintenance Period if such prepayment or
acceleration had not occurred and (y) in respect of a
prepayment of less than the entire principal amount of
the Loan, the principal amount of the Loan prepaid.
"Regulation D" means Regulation D of the Board of Governors of the Federal
------------
Reserve System, as the same may be amended or supplemented from time to time, or
any successor regulation thereto.
"Regulatory Change" means a change after the date of this Agreement in any
-----------------
laws, rules or regulations applicable to the Bank (including, without
limitation, Regulation D), or the adoption or making after such date of any
interpretation, directive, requirement or request applying to the Bank under any
applicable laws, rules or regulations (whether or not having the force of law)
by any Governmental Authority charged with the interpretation or administration
thereof, other than any change in any laws, rules or regulations or any
interpretation, directive, requirement or request pertaining to the assessment
or imposition of any tax.
"Related Documents" means the Loan Documents, the Lease, the Architect's
-----------------
Contract, the Hotel Management Agreement and the Partnership Agreement.
"Repayment Date" means June 16, 2000.
--------------
"Requirements of Law" means, as to any Person, the certificate of
-------------------
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of any
arbitrator or court or other Governmental Authority, in each case applicable to
or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Securities Act" means the Securities Act of 1933, as amended, as now or
--------------
hereafter in effect, or any successor legislation.
9
<PAGE>
"Security" has the meaning attributed to such term in the Securities Act.
--------
"Site" means the land described on Exhibit B to the Mortgage.
----
"Subsidiary" means, as to the Person, any corporation of which at least a
----------
majority of the outstanding voting stock having by terms thereof ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall or might have voting power by reason of the happening
of any contingency) is at the time owned or controlled directly or indirectly by
such Person or one or more of its Subsidiaries.
"Tax" or "Taxes" has the meaning set forth in Section 3.1(c).
--- -----
"Total Loss" has the meaning specified in the Mortgage.
----------
"Treasury Yield" means the rate per annum determined in accordance with the
--------------
terms hereof by reference to the Federal Reserve Statistical Release H.15 (519)
of Selected Interest Rates (or any successor publication of the Federal Reserve
Bank of New York) (the "Statistical Release") for the first calender week ending
not less than two (2) full calender weeks prior to the first day of any Yield
Maintenance Period. If such Yield Maintenance Period is less than one (1) year,
the Treasury Yield shall equal the rate set forth in the Statistical Release for
1-Year Treasury Constant Maturities. If such Yield Maintenance Period is equal
to one of the maturities of the Treasury Constant Maturities, then the Treasury
Yield shall equal the rate set forth in the Statistical Release for the Treasury
Constant Maturity with a maturity equal to such Yield Maintenance Period. If
such Yield Maintenance Period is longer than one (1) year, but does not equal
one of the maturities of the Treasury Constant Maturities, then the Treasury
Yield shall equal the rate set forth in the Statistical Release for the Treasury
Constant Maturity with a maturity closest to, but not exceeding, such Yield
Maintenance Period.
"Unwind Profits" has the meaning set forth in Section 2.4(c)(iv).
--------------
"Yield Maintenance Period" has the meaning set forth in Section 2.4(c)(ii).
------------------------
Section 1.2 Certain Accounting Terms. Any accounting terms used in
------------------------
this Agreement that are not specifically defined herein shall have the meanings
customarily given to them in accordance with GAAP.
Section 1.3 Other Definitional Terms. The words "hereof", "herein"
------------------------
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection and Exhibit references and similar references
are references to Sections, subsections or Exhibits of this Agreement unless
otherwise specified.
10
<PAGE>
SECTION 2
THE LOAN
Section 2.1 Making of the Loan. On January 12, 1993, the Bank made
------------------
the Loan to the Borrower on the terms and conditions set forth in the Existing
Loan Agreement, the proceeds of which were used for the purposes set forth in
Section 2.2. As of June 16, 1995, the outstanding principal amount of the Loan
is One Hundred Fifty-six Million Nine Hundred Seventy-eight Thousand Five
Hundred Twenty-three and 36/100 Dollars ($156,978,523.36), which shall be
payable in accordance with, and otherwise subject to the terms and conditions
of, this Agreement.
Section 2.2 Purpose of the Loan. The Borrower applied the proceeds of
-------------------
the Loan solely to repay the outstanding indebtedness of the Borrower and MOCC,
Inc. (formerly know as Marriott Orlando Capital Corporation), a Delaware
corporation and wholly-owned subsidiary of the Borrower, to the Bank under (a)
that certain Term and Revolving Credit Agreement dated as of June 16, 1987
between MOCC, Inc. and the Bank and (b) the Related Documents (as defined in
such term and revolving credit agreement) (collectively, the "1987 Loan
Documents") and for no other purpose.
Section 2.3 Repayment of the Loan.
---------------------
(a) The Borrower shall make semi-annual payments of principal without
setoff or deduction, payable as follows:
<TABLE>
Amount Payment Date
------ ------------
<S> <C>
$4,000,000.00 December 16, 1995
$4,000,000.00 June 16, 1996
$3,500,000.00 December 16, 1996
$3,500,000.00 June 16, 1997
$3,500,000.00 December 16, 1997
$3,500,000.00 June 16, 1998
$2,000,000.00 December 16, 1998
$2,000,000.00 June 16, 1999
$2,000,000.00 December 16, 1999
$2,000,000.00 June 1, 2000
</TABLE>
(b) On the Repayment Date, the Borrower shall pay to the Bank the
outstanding principal balance of the Loan.
11
<PAGE>
Section 2.4 Prepayments of the Loan.
-----------------------
(a) The Borrower may at its option prepay the Loan, in part or in
full, together with accrued interest on the amount prepaid to the date of
prepayment subject to the following conditions:
(i) Each partial prepayment of the Loan shall be in
integral multiples of $1,000,000 or the outstanding principal balance of the
Loan, if less;
(ii) The Borrower shall give the Bank not less than five (5)
calendar days' prior written or facsimile notice of the proposed prepayment;
(iii) Each prepayment shall be made on an Interest Payment Date;
(iv) Notice of prepayment, once received by the Bank, shall be
irrevocable and binding on the Borrower; and
(v) Amounts prepaid may not be reborrowed hereunder.
(b) The Borrower shall prepay the Loan, in part or in full, together
with accrued interest on the amount prepaid to the date of prepayment but
without premium or penalty (x) upon the payment to the Borrower or to the Bank,
as loss payee, of any insurance proceeds payable upon the occurrence of a Total
Loss with respect to the Hotel or (y) upon the payment to the Borrower or the
Bank of any condemnation awards to the Borrower in respect of a Total Loss with
respect to the Hotel, subject to the following conditions:
(i) the Borrower shall give the Bank not less than five (5)
calendar days' prior written or facsimile notice of such prepayment; and
(ii) amounts prepaid may not be reborrowed hereunder.
(c) (i) Concurrently with each prepayment of the Loan or
acceleration of the principal amount of the Loan prior to maturity, the Borrower
shall pay to the Bank an amount equal to the cost to the Bank, and each holder
of a participation in the rights and obligations of the Bank under this
Agreement and the Loan Documents (each such holder, a "Participant"), of totally
or partially terminating any interest rate exchange agreement, interest rate
swap transaction or any other hedging transaction entered into by the Bank or
such Participant with a counterparty (including any affiliate, other branch or
office of the Bank or such Participant) in connection with the Loan or entering
into any future offsetting interest rate exchange agreement, interest rate swap
transaction or other hedging transaction, including, without limitation, any
early termination or upfront payments to any counterparty to any such interest
rate exchange agreement, interest rate swap transaction or other hedging
transaction and any transaction costs associated with such termination or such
offsetting transaction (including fixed amount payments and actual out-of-pocket
expenses), all such amounts to be determined
12
<PAGE>
by the Bank or such Participant in its sole discretion in accordance with market
practices for terminating, unwinding, or entering into offsetting interest rate
exchange agreements, interest rate swap transactions or other hedging
transactions, all as certified by the Bank or such Participant to the Borrower;
provided, however, that such amounts may not exceed the amounts that would have
- -------- -------
been determined if such interest rate exchange agreement, interest rate swap
transaction or other hedging transaction had been entered into by the Bank or
such Participant on the Closing Date with a notional amount equal to the
principal amount of the Loan, a fixed rate of interest equal to the interest
rate set forth in Section 2.5(b) hereof minus two and twenty-five one-hundredth
percent (2.25%) and a termination date on the Repayment Date.
(ii) In the event the Bank or a Participant has not entered
into any interest rate exchange agreement, interest rate swap transaction or
other hedging transaction referred to in Section 2.4(c)(i) (or purchased a
participation in any such agreement or transaction), the Borrower shall pay to
the Bank for the account of the Bank or such Participant, as the case may be,
currently with each prepayment of the Loan or acceleration of the principal
amount of the Loan prior to maturity, an amount equal to the Interest Shortfall
for the period commencing on the date of such prepayment or acceleration to the
Repayment Date (the "Yield Maintenance Period").
(iii) All amounts payable by the Borrower to the Bank pursuant
to paragraphs (i) and (ii) of this Section 2.4(c) are hereinafter referred to as
"Breakage Costs".
(iv) The Borrower shall not be entitled to any amounts due or
claimed to be due to the Bank or any Participant from any counterparty in
connection with any partial or total termination of any interest rate exchange
agreement, interest rate swap transaction or other hedging transaction (all such
amounts hereinafter referred to as "Unwind Profits").
Section 2.5 Interest.
--------
(a) (i) The Borrower shall pay to the Bank in arrears interest on
the Loan for the period commencing on June 16, 1995 and ending on the Closing
Date (the "Interim Period") at a rate per annum (the "Interim Interest Rate"),
as selected by the Borrower in accordance with the terms hereof, equal to (A)
the Domestic Rate or (B) the Eurodollar Rate (as selected by the Borrower) plus:
(x) for the period from and including June 16, 1995 to September 14, 1995, one
and eighty one-hundredths percent (1.80%); (y) for the period from and including
September 14, 1995 to October 14, 1995, two percent (2.00%); and (z) for the
period from and including October 14, 1995 to the Closing Date, two and twenty-
five one-hundredths percent (2.25%).
(ii) Interest during the Interim Period shall be due and
payable (A) at any time that the Borrower has selected the Domestic Rate,
monthly on the seventeenth day of each month commencing on July 17, 1995, on the
effective date of the conversion by the
13
<PAGE>
Borrower of the interest rate from the Domestic Rate to the Eurodollar Rate and
on the Closing Date and (B) at any time that the Borrower has selected the
Eurodollar Rate, on the last day of each Contract Period.
(iii) The Borrower may select the Domestic Rate or the
Eurodollar Rate by providing written notice (which may be sent by facsimile,
provided an executed original thereof is delivered by overnight messenger
service) to the Bank no later that three (3) Eurodollar Business Days prior to
the date the Borrower desires the Eurodollar Rate to become effective; provided,
--------
however, that the Borrower may not select the Eurodollar Rate to be in effect
- -------
from and after the date that is three (3) Eurodollars Business Days prior to the
Closing Date.
(iv) The Borrower may prepay the Loan in whole or in part
during any period in which the Borrower has selected the Eurodollar Rate,
provided that the Borrower shall (A) pay the accrued interest on the amount
prepaid to the date of prepayment; (B) give the Bank not less than three (3)
Eurodollar Business Days irrevocable notice of intended prepayment; and (C)
either (1) if the prepayment is made on the last day of a Contract Period, not
pay any penalty or premium with respect to such prepayment or (2) if the
prepayment is made on a day other than the last day of a Contract Period,
compensate the Bank for all losses, expenses and liabilities (including, without
limitation, any interest paid by the Bank to lenders of funds borrowed to make
or maintain loans bearing interest at the Eurodollar Rate and any loss sustained
by the Bank in connection with the re-employment of such funds) which the Bank
may sustain (x) if any prepayment of the Loan is not made on the date specified
in the relevant notice of prepayment or (y) if, as a consequence of any default
by the Borrower, prepayment of the Loan is not made on the last day of the
relevant Contract Period.
(v) If: (A) the Bank determines that, with respect to the
Eurodollar Rate, deposits in United States dollars (in the applicable amount)
are not being offered to the Bank in the London interbank market; or (B) during
the Interim Period, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the Bank
with any request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency shall (I) make it unlawful or
impossible for the Bank to make, maintain or fund a loan bearing interest based
on the Eurodollar Rate, (II) cause the Bank to incur any cost or suffer any
reduction in any amount receivable by the Bank hereunder based on or measured by
the excess above a specified level of the amount of a category of deposits or
other liabilities of the Bank which include deposits by reference to which the
interest rate at the Eurodollar Rate is determined as herein provided or a
category of extensions of credit or other assets of the Bank which includes the
Eurodollar Rate or (III) subject the Bank to restrictions on the amount of such
a category of liabilities or assets which it may hold, then upon notice (in the
case of clause (B) above, upon two days' notice) to such effect by the Bank to
the Borrower, the Interim Interest Rate during the Interim Period (if selected
by the Borrower) shall be based on the Eurodollar Rate until the expiration of
the then current Contract Period if the Bank may
14
<PAGE>
lawfully continue to maintain and fund the Loan to such day or, if the Bank may
not lawfully continue to maintain and fund the Loan to such day, the Interim
Interest Rate shall be based on the Domestic Rate upon notice (in the case of
clause (B) above, upon two days' notice) to the Borrower. So long as either of
such conditions of clauses (A) or (B) remains in effect, the Bank shall be under
no obligation to permit the Interim Interest Rate to be based on the Eurodollar
Rate.
(vi) If Regulation D of the Board of Governors of the Federal
Reserve System or after June 16, 1995, the adoption of any applicable law, rule
or regulation, or any charge therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Bank with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
(A) shall subject the bank to any tax, duty or other
charge with respect to loans bearing interest based on the Eurodollar
Rate or its obligation to lend the same, or shall change the basis of
taxation of payment to the Bank of the principal of or interest on
loans bearing interest based on the Eurodollar Rate or any other
amounts due under the Note in respect of loans bearing interest based
on the Eurodollar Rate or its obligation to lend the same (except for
changes in the rate of tax on the overall net income of the Bank
imposed by the jurisdiction in which the Bank's principal executive
office is located); or
(B) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including without
limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System) against any asset of, deposit with or for
the account of, liability of or credit extended by, the Bank or shall
impose on the Bank or on the London interbank market any other
condition affecting loans bearing interest based on the Eurodollar
Rate or its obligation to lend the same; or
(C) shall impose any other condition, cost requirement,
restriction or qualification adversely affecting the Bank in respect
of making or maintaining loans bearing interest based on the
Eurodollar Rate (or any such extensions of credit or liabilities) or
the Borrower's obligations to make loans bearing interest based on the
Eurodollar Rate hereunder;
and the result of any of the foregoing is to increase the cost of (or, in the
case of said Regulation D, to impose a cost on) the Bank of making or
maintaining loans bearing interest based on the Eurodollar Rate or to reduce the
amount of any sum received or receivable by the Bank under the Note with respect
thereto, by any amount deemed by the Bank to be material, then, within two (2)
days after demand by the Bank, the Borrower shall pay to the Bank such
additional amount or amounts ("Additional Amount(s)") as will compensate the
Bank on an after-tax basis for such increased cost or reduction hereunder. A
certificate of the Bank claiming compensation
15
<PAGE>
hereunder and setting forth the Additional Amount(s) to be paid to it hereunder
shall be conclusive in the absence of manifest error.
(vii) If at any time during the Interim Period the Borrower
fails to select either the Eurodollar Rate or the Domestic Rate, the Borrower
shall be deemed to have selected the Domestic Rate.
(b) The Borrower shall pay the Bank in arrears interest on the Loan
from and after the Closing Date on each Interest Payment Date at a rate per
annum equal to eight and 44/100 percent (8.44%).
(c) Interest shall be computed on the Basis of a year of 360 days and
the actual number days elapsed (including the first day but excluding the last)
occurring in the period for which payable.
Section 2.6 Default Interest. If the Borrower shall fail to pay any
----------------
amounts hereunder or under any other Loan Document (whether at the stated date
for payment, at maturity or by acceleration), the borrower shall pay, to the
extent permitted by applicable law, not later than five (5) Business Days
following written demand by the Bank, interest to the Bank on such past due
amounts at a rate that is the greater of (x) two percent (2%) per annum above
the rate of interest in effect thereon at the time of such default and (y) a
floating rate equal to four and one-quarter percent (4-1/4%) in excess of the
Domestic Rate as in effect from time to time.
Section 2.7 Payments and Advances.
---------------------
(a) All sums to be advanced to the Borrower hereunder shall be made
available by the Bank to the Borrower in same day funds to an account in the
United States of America designated by the Borrower.
(b) All payments due hereunder from the Borrower to the Bank, other
than amounts payable by the Borrower under Section 3.1(d), shall be made to the
Bank in Dollars in same day settlement funds by credit to the Bank by Federal
funds wire to Sanwa New York, No. ABA #026-00-9823, Reference: Marriott Hotel
Properties Limited Partnership, Attention: Loan Operations on or before 3:00
p.m. (New York Time) on the due date. The Borrower agrees that every transfer of
same day settlement funds through Federal funds wire shall be final and binding
at the time the transfer is made and shall not be reversed or revoked and no
settlement of such funds shall be refused. Whenever any payment under this
Agreement shall be due on a day which is not a Business Day, such payment shall
be payable on the next succeeding Business Day, and any interest payable
thereon, and the amount of any fee payable based on a per annum calculation,
shall accrue and be payable for such extension of time at the specified rate.
Payment of amounts payable pursuant to Section 3.1(d) may be made by check or
other customary means of payment.
16
<PAGE>
Section 2.8 Participations. The Borrower acknowledges that the Bank
--------------
has sold, and may from time to time after the Closing Date sell, participations
in the Loan to one or more banks or financial institutions, subject to the terms
of Section 11.4. Exhibit A sets forth the Participants as of the Closing Date.
SECTION 3
OTHER PAYMENTS
Section 3.1 Other Payments.
--------------
(a) The Borrower shall pay to the Bank: (i) a facility fee in the
amount of $1,570,000, payable as follows: $785,000 on the Closing Date,
$392,500 on or before December 31, 1995 and $392,500 on or before March 31,
1996; and (ii) an agency fee in the amount of $500,000 payable in five equal
installments of $100,000 on the Closing Date and each anniversary of the Closing
Date prior to the Repayment Date.
(b) Subject to the proviso to the second sentence of Section 11.4, if
any Regulatory Change shall either (i) impose, modify or deem applicable any
reserve, special deposit, deposit insurance or similar requirement against or
for the account of the Bank or any Participant or (ii) impose on the Bank or any
Participant any other condition, including without limitation, change any
applicable capital adequacy requirements, and the result of any event referred
to in clause (i) or (ii) above shall be to increase the cost to the Bank or
such Participant of making or maintaining the Loan (by participation or
otherwise), then the Borrower shall pay to the Bank all additional amounts
specified by the Bank required to compensate the Bank or such Participant for
such increased cost.
(c) Subject to the proviso to the second sentence of Section 11.4,
all sums payable by the Borrower under this Agreement shall be paid in full, net
of all taxes, deductions, withholdings or other charges of any kind that may be
assessed, levied or imposed by any United States, state, local or other taxing
authority whatsoever, together with any interest, penalties or other charges
thereon (hereinafter, "Taxes"), excluding the following ("Excluded Taxes"): (i)
Taxes imposed on or measured by net income or alternative minimum taxable income
or taxable assets in lieu of income by the jurisdiction of incorporation of the
Bank or any Participant, each taxing jurisdiction therein and the United States
of America, New York State or New York City, (ii) Taxes imposed on the Bank or
any Participant pursuant to Section 884 of the Code and (iii) Taxes imposed on
the Bank or any Participant to the extent the Tax would have been imposed if the
Bank or such Participant had not engaged in the transaction contemplated by this
Agreement, except to the extent that the Taxes referred to in the preceding
clauses (i) and (ii) are imposed on amounts payable by the Borrower pursuant to
this Section 3.1(c). If the Borrower is prohibited by law from making one or
more payments under this Agreement free of Taxes (other than Excluded Taxes), or
if any United States, state, local or other taxing authority shall at any time
assert that the Bank or any Participant is required to pay any Taxes (other than
Excluded Taxes), with respect to payments made by the Borrower under
17
<PAGE>
this Agreement, then the Borrower shall pay such additional amount to the Bank
as may be necessary in order that the actual amount received by the Bank after
taking into account all such Taxes other than Excluded Taxes (and after payment
of any additional Taxes (including Excluded Taxes) that may be payable by the
Bank or any Participant as a consequence of the payment of such additional
amount) shall equal the amount that would have been received by the Bank if such
Taxes were not required to be paid. In any event, if the Borrower is required to
pay any Taxes with respect to any sums payable under this Agreement, it shall
deliver to the Bank official receipts or certified copies thereof or other
documentation sufficient to evidence the Borrower's payment thereof. The Bank
agrees to deliver to the Borrower two (2) executed copies of the United States
Internal Revenue Service Form 4224 (or its successors) within thirty (30) days
of the Closing Date and to provide the Borrower with a new Form 4224 upon the
expiration or obsolescence of any previously delivered form in accordance with
applicable United States laws and regulations, in order to establish the Bank's
eligibility for an exemption from any present or future withholding taxes on any
payment made or to be made to the Bank under this Agreement, and to comply from
time to time with all applicable United States laws and regulations with regard
to such withholding tax exemption.
(d) The Borrower shall reimburse the Bank for all costs and expenses,
including, without limitation, the disbursements, other charges and reasonable
fees of counsel and all out-of-pocket costs incurred by the Bank in connection
with (i) the preparation, negotiation, execution and delivery of the Loan
Documents and all certificates, agreements, instruments and opinions delivered
in connection herewith and therewith (including the forbearance agreement and
commitment letter, each dated as of June 16, 1995, between the Borrower and the
Bank), (ii) any amendment, modification or supplement to any of the Loan
Documents or any agreement or instrument delivered in connection herewith or
therewith, (iii) any waiver of any provision of this Agreement, any of the Loan
Documents or any agreement or instrument delivered in connection herewith or
therewith, (iv) any restructuring of the terms of any of the Loan Documents or
any agreement or instrument delivered in connection herewith or therewith and
(v) the administration and enforcement of the Loan Documents or any agreement or
instrument delivered in connection herewith or therewith from and after the
occurrence of a Default or an Event of Default. All of the foregoing expenses
shall be reimbursed by the Borrower regardless of whether the Bank gives notice
to the Borrower of such Default or Event of Default under this Agreement or
takes any other action to enforce the provisions of any of the Loan Documents or
any agreement or instrument delivered in connection herewith or therewith. The
Borrower shall pay any and all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing,
recording and enforcement of any of the Loan Documents or any agreement or
instrument delivered in connection herewith or therewith and shall indemnify,
save and hold the Bank harmless from and against any and all claims, demands and
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes and fees or any such taxes and fees in connection with the 1987
Loan Documents, the Existing Loan Documents or the Loan Documents.
18
<PAGE>
(e) All amounts payable pursuant to Section 3.1(b), (c), (d) and 11.5
shall be due and payable not later than ten (10) Business Days following written
demand of the Bank.
SECTION 4
CONDITIONS PRECEDENT TO EXTENSION OF REPAYMENT DATE
Section 4.1 Conditions to Extension of Repayment Date. The
-----------------------------------------
obligation of the Bank to extend the Repayment Date to June 16, 2000 and
otherwise amend the Existing Loan Documents is subject to the fulfillment on or
before the Closing Date, as determined in the sole discretion of the Bank, of
the conditions precedent set forth in this Section 4.1.
(a) The Borrower shall have delivered to the Bank the following
documents, instruments and agreements, each of which shall be in form and
substance satisfactory to the Bank:
(i) This Agreement, the Mortgage Note, the Mortgage, the
Assignment of Rents, the Assignment of Architect's Contract, the Assignment of
Contract, the MI Guaranty Agreement, the Environmental Indemnity and each of the
other Loan Documents, in each case duly executed by the parties thereto;
(ii) A fully paid title insurance policy dated the Closing Date
issued by First American Title Insurance Company (or such other insurance
company acceptable to the Bank) insuring the Bank, with loss payable solely to
the Bank, in an amount of at least $156,978,523.36 as holder of the recorded
Mortgage and Assignment of Rents and subject to only those exceptions approved
by the Bank, together with the agreements of coinsurance or reinsurance annexed
to such policy with the insurance companies schedule therein;
(iii) Executed copies of all statements, reports, certificates
and documents required to be provided to the Bank on the Closing Date pursuant
to the terms of the Loan Documents;
(iv) The consents and agreements required pursuant to the
Assignment of Contract;
(v) Uniform Commercial Code financing statements naming the
Borrower as debtor and the Bank as secured party for the following
jurisdictions:
(A) Secretary of State of Florida;
(B) Orange County, Florida;
(C) Secretary of State of Maryland; and
(D) Secretary of State of Delaware;
19
<PAGE>
(vi) Evidence satisfactory to the Bank that the Bank has been
named as an additional insured with respect to the policies listed under Section
1 of Exhibit B and loss payable parties under a standard Form 4106 mortgagee
clause with respect to the policy listed under Section 2 of Exhibit B and that
all such policies of insurance are in full force and effect and contain a
provision that they will not be cancelled or materially amended or the amount of
insurance reduced without thirty (30) days' prior notice to the Bank together
with copies of all of the relevant policies and the original endorsements;
(vii) Evidence that all taxes in respect of the Mortgage and the
Assignment of Rents and all recording and filing fees and other expenses
necessary in connection with the recordation of the assignments and modification
of the Mortgage, the Assignment of Rents and the perfection of the Liens
granted thereby have been paid and satisfied in full;
(viii) A certificate of the Borrower, dated the Closing Date,
signed by the General Partner (together with copies of the documents referred to
therein) certifying that attached thereto is a true and complete copy of the
Hotel Management Agreement, together with all amendments thereto (if any) and
that the Hotel Management Agreement has not been amended since the date of
execution of such agreement or the last amendment (if any) attached to the
certificate;
(ix) A favorable written opinion, dated as of the Closing Date,
of Christopher G. Townsend, Esq., deputy counsel to the Borrower, Host Marriott,
and the other entities identified therein, as to such matters as the Bank may
reasonably request;
(x) A favorable written opinion, dated as of the Closing Date,
of Joseph Ryan, Esq., general counsel to the Manager, as to such matters as the
Bank may reasonably request; and
(xi) A favorable written opinion, dated as of the Closing Date,
of Honigman Miller Schwartz & Cohn, special Florida counsel to the Borrower, as
to such matters as the Bank may reasonably request.
(b) The Borrower shall have delivered to the Bank the following, each
of which shall be in form and substance satisfactory to the Bank:
(i) Evidence to verify the authority of the individual or
individuals executing this Agreement and the Loan Documents to which the
Borrower is a party legally to bind the Borrower, and the authority of each
individual who will sign on the Borrower's behalf the other statements, reports,
certificates and documents called for by the terms of this Agreement and the
Loan Documents to which the Borrower is a party and who will otherwise act under
this Agreement and the Loan Documents for and on behalf of the Borrower;
(ii) The specimen signature of each individual named pursuant
to Section 4.1(b)(i) certified by an officer of the General Partner to be a true
specimen thereof;
20
<PAGE>
(iii) A certificate, dated the Closing Date, of the Borrower
signed by the General Partner (together with copies of the documents referred to
below), certifying:
(A) that attached thereto is a true and complete copy of
the certificate of limited partnership of the Borrower together with
all amendments thereto and that such certificate of limited
partnership has not been amended since the date of the last amendment,
attached to such certificate;
(B) that attached thereto are true and complete copies of
each of the Partnership Agreement and the Lauderdale Beach Association
Partnership Agreement, together with all amendments, as entered into
or in effect on the Closing Date; and
(C) that attached thereto is a true and complete copy of
the Lease;
(iv) Recently dated copies of all documents evidencing all
necessary approvals from Governmental Authorities necessary or appropriate for
the execution, delivery and performance by the Borrower of this Agreement and
the Loan Documents to which it is a party together with a certificate of the
General Partner dated the Closing Date to the effect that copies of all such
approvals are attached, none of such approvals has been revoked, annulled or
modified in any manner and all are in full force and effect;
(v) A certificate of the Borrower signed by the General
Partner, dated the Closing Date, stating that:
(A) the representations and warranties of the Borrower
contained in this Agreement and the Loan Documents to which the
Borrower is a party and in all certificates, documents and instruments
delivered by the Borrower pursuant to this Agreement and such Loan
Documents are true and correct in all material respects on and as of
the Closing Date as though made on and as of the Closing Date;
(B) no Default (and no Event of Default as defined in the
Mortgage or the Assignment of Rents) has occurred and is continuing or
would result from the execution, delivery or performance of this
Agreement and Loan Documents to which the Borrower is a party; and
(C) there has been no material adverse change in the
financial condition or results of operation of the Borrower since
December 31, 1994;
(vi) A certificate, dated the Closing Date, of the General
Partner (together with copies of the documents referred to below) certifying:
21
<PAGE>
(A) that attached thereto is a true and complete copy of
the certificate of incorporation of the General Partner, together with
all amendments thereto and that such certificate of incorporation has
not been amended since the date of the last amendment attached to the
certificate;
(B) that attached thereto is a true and complete copy of
the by-laws of the General Partner, together with all amendments
hereto, as entered into or in effect on the date of such certificate;
and
(C) that attached thereto is a true and complete copy of
resolutions duly adopted by the Board of Directors of the General
Partner, authorizing the resolution, deliver and performance as
general partner of the Borrower of this Agreement and Loan Documents
to which the Borrower is a party and that such resolutions have not
been revoked, annulled or modified in any manner and care in full
force and effect.
(c) The Bank shall have received:
(i) an opinion of counsel to the Bank addressed to the Bank
concerning such matters relating to the subject matter of the Loan Documents as
the Bank may reasonably request; and
(ii) such other documents, instruments, approvals and opinions
as the Bank may reasonably request.
(d) The Borrower shall have executed and delivered, shall have caused
Host Marriott to execute and deliver, and shall have directed the Manager to
execute and deliver, to the Bank the Manager's Letter Agreement.
(e) The Bank shall have received:
(i) the fees payable on the Closing Date set forth in Section
3.1(a); and
(ii) accrued interest on the Loan for the Interim Period as set
forth in Section 2.4(a).
(f) The Bank shall have received a Phase I environmental assessment
report prepared by environmental consultants acceptable to the Bank with respect
to the Hotel and the Site, which report shall include an analysis by such
consultant of liabilities with respect to "superfund sites" and worker safety
issues, the results of which shall be in form and substance satisfactory to the
Bank.
22
<PAGE>
(g) The Bank shall have received a report by an independent engineer
acceptable to the Bank with respect to the Hotel, the results of which shall be
in form and substance satisfactory to the Bank.
(h) Each of the other conditions precedent required to be satisfied
and documents to be delivered on the Closing Date by or under the Loan Documents
shall have been properly satisfied and delivered in accordance with the relevant
provisions thereof.
SECTION 5
OBLIGATIONS ABSOLUTE
Section 5.1 Obligations of the Borrower. The obligations of the
---------------------------
Borrower under the Loan Documents shall be absolute, unconditional and
irrevocable, and shall be paid and performed strictly in accordance with the
terms thereof, under all circumstances whatsoever, including without limitation
the following circumstances:
(a) any lack of validity or enforceability of this Agreement or all
or any of the other Related Documents;
(b) any amendment or waiver of, or any consent to departure from,
this Agreement or all or any of the other Related Documents except to the extent
so waived or consented to in writing by the Bank; or
(c) the existence of any claim, set-off, defense or other rights
which the Borrower or Host Marriott may have at any time against the Bank or any
other Person, whether in connection with the Related Documents or any unrelated
transactions.
SECTION 6
REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of the Borrower. The
----------------------------------------------
Borrower represents and warrants as follows:
(a) The Borrower is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Borrower has the requisite power to own its property and to conduct the business
in which it engages.
(b) The Borrower owns no interest in Warner Center Marriott Hotel
Limited Partnership, which partnership has been dissolved. The Borrower owns a
50.5% general partnership interest in Lauderdale Beach Association and no other
interest therein. There exists no Lien on any of the assets of the Borrower to
secure, nor any Indebtedness for, borrowed money of the Lauderdale Beach
Association.
23
<PAGE>
(c) Marriott's Harbor Beach Resort is being operated by Marriott
Hotel Services, Inc. (formerly known as San Francisco Marriott, Inc.) under and
in accordance with the terms of the Lease, a true and complete copy of which has
been provided to the Bank. There have occurred no Events of Default under (and
as defined in) the Lease which are continuing.
(d) Each Person (other than Host Marriott) providing loans or other
financial accommodations to finance, or refinance, the costs of designing and
constructing Marriott's Harbor Beach Resort has executed and delivered to
Lauderdale Beach Association one or more documents containing provisions the
operative effect of which is substantially similar to those contained in Section
11.7 of this Agreement. Except as provided in the immediately succeeding
sentence, by operation of law or pursuant to the terms of such documents or
related documents, or both, neither (i) Lauderdale Beach Association nor (ii)
any partner, legal representative, heir, estate, successor or assign of any
partner or any officer, director, shareholder or partner in any such partner of
Lauderdale Beach Association nor (iii) any other principal in Lauderdale Beach
Association or in any partner thereof, whether disclosed or undisclosed, has any
personal liability (whether direct or contingent) for the payment of any sum of
money which is now or may now or hereafter be payable in respect of any such
loans or financial accommodations or the performance or discharge of any
covenants or undertakings of Lauderdale Beach Association in respect thereof.
(e) The Borrower has all requisite legal right, power and authority
to execute, deliver and perform the Loan Documents to which it is a party and to
consummate the transactions as contemplated hereby and thereby. The execution,
delivery and performance by the Borrower of the Loan Documents to which it is a
party and the consummation by the Borrower of the transactions as contemplated
hereby and thereby have been duly authorized by all necessary action on the part
of the Borrower. All consents of any other Person (including partners or
creditors of the Borrower but excluding the Bank), and all consents or
authorizations of, or other acts by or filings with any Governmental Authority,
required to be obtained or made by the Borrower or its Affiliates in connection
with the execution, delivery and performance of, and the validity, binding
effect and enforceability of the Borrower's obligations under, any of the Loan
Documents to which it is a party have been obtained or made and are in full
force and effect. Upon recordation of the Mortgage and the Assignment of Rents,
the Bank will have a valid and perfected first priority security in the
Mortgaged Property, as to the creation of which no consent is required from any
third party other than those which have been obtained and are in full force and
effect.
(f) The Loan Documents to which the Borrower is a party have been
duly executed and delivered by the Borrower, and assuming due authorization,
execution and delivery by the Bank and the other parties to such Loan Documents,
constitute the legal, valid and binding obligation of the Borrower, enforceable
against it in accordance with the terms hereof and thereof, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether enforcement is sought in a
24
<PAGE>
proceeding in equity or at law). The Borrower has performed all of its material
obligations under each of the Existing Loan Documents to which it is a party.
(g) The execution, delivery and performance by the Borrower of the
Loan Documents to which the Borrower is a party and the consummation of the
transactions contemplated hereby and thereby will not (i) in any material
respect conflict with or constitute on the part of the Borrower a breach of or
default under any agreement, indenture, lease or other instrument to which the
Borrower is a party or by or to which it or its revenues, properties, assets or
operations are bound or subject, or violate any Requirements of Law; (ii) result
in the creation or imposition of any Lien upon any of the Borrower's revenues,
properties or assets, other than as specifically contemplated by the Related
Documents; (iii) result in the acceleration of any Indebtedness of the Borrower;
or (iv) result in a material adverse change in any agreement material to the
operation of the Hotel.
(h) No litigation, investigation or other proceeding is pending or,
to the knowledge of the Borrower, threatened, before or by any arbitrator or
Governmental Authority in any way restraining or enjoining, or threatening or
seeking to restrain or enjoin, or in any way questioning or affecting the
validity, binding effect or enforceability of, any provisions of any Related
Document to which the Borrower is a party, as against the Borrower or the legal
existence of the Borrower, the status of its partners as partners, or its right
to conduct its operations as conducted, to perform its obligations under any
Related Document to which it is a party, or to consummate any of the
transactions to which it is, or is to be, a party as contemplated hereby and
thereby.
(i) There is no action, suit, investigation or other proceeding
pending or, to the knowledge of the Borrower, threatened before or by any
arbitrator or Governmental Authority, nor any other event or circumstance,
which would have a material adverse effect on the power or ability of the
Borrower to perform its obligations under any Related Document to which it is a
party or the transactions as contemplated hereby and thereby.
(j) The Borrower is not in default under or with respect to any
contractual obligation in any respect which could materially and adversely
affect its ability to perform its obligations under any Related Document to
which it is a party, nor is the Borrower in default under any existing judgment,
order, award or decree of any arbitrator or Governmental Authority binding upon
or affecting it which could materially and adversely affect its ability to
perform its obligations under any Related Document to which it is a party.
(k) There is no other management agreement binding upon or affecting
the Hotel or the Borrower in respect of the Hotel other than the Hotel
Management Agreement.
(l) The Related Documents (other than the Loan Documents) to which
the Borrower is a party constitute the legal, valid and binding obligation of
the Borrower, enforceable against it in accordance with the terms thereof,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws
25
<PAGE>
affecting the enforcement of creditors' rights generally and general principles
of equity (regardless of whether enforcement is sought in a proceeding in equity
or at law). The Borrower has performed all of its material obligations under
each of the Related Documents (other than the Loan Documents) to which it is a
party. There exists no material default under any provision of any Related
Document (other than the Loan Documents) to which the Borrower is a party.
(m) The Borrower has furnished the Bank with a copy of its Annual
Financial Statement for the year ended December 31, 1994 and the Quarterly
Financial Statements for the period ending June 16, 1995. The Annual Financial
Statement and Quarterly Financial Statements fairly present the financial
condition of the Borrower as at their respective dates. Since December 31, 1994,
there has been no material adverse change in the financial condition or results
of operations of the Borrower.
(n) The Borrower's chief executive office is in Montgomery County,
Maryland.
(o) The representations and warranties of the Borrower contained in
the Loan Documents to which the Borrower is a party are true and correct in all
material respects. The representations and warranties of the Borrower contained
in the Related Documents (other than the Loan Documents) to which the Borrower
is a party were true and correct in all material respects on and as of the date
of such Related Documents.
(p) The Borrower is not an "investment company" or a company
"affiliated" with or "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended and the Borrower will
not become such by reason of its execution and delivery of, or performance of
its obligations under, this Agreement or any of the Related Documents to which
it is a party.
(q) Neither the Borrower nor any member of a Controlled Group of
which the Borrower is a member maintains any Plan for the benefit of employees
of the Borrower and neither the Borrower nor any member of such Controlled Group
is obligated to make contributions in respect of any Plan.
(r) The Borrower has delivered or has caused to be delivered to the
Bank copies of the Partnership Agreement, the Lauderdale Beach Association
Partnership Agreement, the Lease and the Hotel Management Agreement which are
(i) true and complete, including all amendments thereto, (ii) in full force and
effect, with no notice of default, acceleration or termination outstanding or in
effect and (iii) to the Borrower's best knowledge, are not subject to any
material default or any event or condition which with notice or lapse of time or
both would constitute a material default. No leases (other than licenses or
occupancy agreements entered into in the ordinary course of business and not
material to the Hotel taken as a whole) or mortgages affecting the Hotel are
outstanding or in effect with respect to the Hotel other than the Mortgage.
26
<PAGE>
(s) The insurance policies listed in Exhibit B are all the insurance
policies in effect with respect to the Hotel. Each of such policies, including
without limitation each policy delivered pursuant to Section 4.1(a)(v), is in
full force and effect, with no outstanding notice of default or of material
unperformed work, and such policies substantially fulfill the insurance
requirements of the Mortgage and the Assignment of Rents and do not violate any
requirements thereof in any material respect.
(t) The Borrower has no current intention of terminating,
substantially modifying or replacing the Lease.
(u) The proceeds of the Loan have been applied by the Borrower in
accordance with Section 2.2. No part of the proceeds have been used by the
Borrower in violation of any Requirements of Law, including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System.
SECTION 7
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Bank that, so long as any
amount is owing to the Bank under any of the Loan Documents:
Section 7.1 Information.
-----------
(a) The Borrower shall furnish to the Bank, within one hundred twenty
(120) days of the close of each fiscal year of the Borrower, one copy of the
Annual Financial Statement for such fiscal year certified by the Accountants.
Each Annual Financial Statement shall be complete and correct in all material
respects and shall be prepared in accordance with GAAP applied consistently
throughout, except as approved by the Accountants and disclosed therein.
(b) The Borrower shall furnish to the Bank within seventy-five (75)
days following the end of each of the first three fiscal quarters of each fiscal
year of the Borrower one copy of the Quarterly Financial Statement for the
portion of the fiscal year through such date.
(c) The Borrower shall furnish to the Bank, within thirty (30) days
of its receipt from the Manager, one copy of the final Annual Operating
Projection (as defined in Section 9.03 of the Hotel Management Agreement).
(d) The Borrower shall furnish to the Bank within thirty (30) days
after the last of each fiscal quarter of each fiscal year of the Borrower, a
certificate of the Borrower (substantially in the form of Exhibit H attached
hereto) signed by the General Partner stating that, to the best of such
partner's knowledge, after reasonable investigation, during the fiscal
27
<PAGE>
quarter preceding the date of such certificate the Borrower has observed or
performed all of its covenants and other agreements contained in this Agreement
and each Related Document to which the Borrower is a party to be observed,
performed or satisfied by it, and that such partner has obtained no knowledge of
any Default or Event of Default, except as may be specified in such certificate.
(e) The Borrower shall furnish to the Bank, within five (5) days
after receipt thereof from the Manager, one copy of its Rent Letter
(substantially in the form of Exhibit D attached hereto) in respect of each
four-week period.
(f) Within five (5) days after receipt thereof from the Manager
(provided that if such evidence and budgets shall not have been received by
February 15 of each year, the Borrower shall use its reasonable efforts to
obtain such evidence and budgets as soon as practicable), commencing in 1996,
the Borrower shall furnish to the Bank (i) evidence that the Repairs and
Equipment Reserve balance has been maintained at five percent (5%) of Gross
Revenue at all times from and after June 16, 1995, (ii) the then current annual
Building Estimate budget, and (iii) the then current five year projected budget
for Repairs and Equipment Reserve. From and after the Closing Date, the Repairs
and Equipment Reserve balance shall be maintained at an account at the Bank (the
"FF&E Account"). If any such Building Estimate budget reflects a deficiency in
excess of $750,000 in the funds required for the refurbishing of the Hotel in
1996 and 1997 and for other purposes required by Section 8.02 of the Hotel
Management Agreement, the Borrower shall also furnish to the Bank a plan for the
funding of such deficiency. In addition, the Borrower shall cause the Manager to
furnish to the Bank for each four-week accounting period a statement as to the
receipt and disbursement of funds from the Repairs and Equipment Reserve during
the prior four-week accounting period and the remaining balance at the end of
such four-week accounting period in the Repairs and Equipment Reserve. The
Borrower agrees that no variation in excess of fifteen percent (15%) of budgeted
expenditures for any fiscal year of the amount of capital expenditures contained
in any budget submitted to the Bank shall occur or be approved without first
obtaining the prior written consent of the Bank, which consent shall not be
unreasonably withheld or delayed.
(g) The Borrower will furnish to the Bank, promptly after request
therefor, such additional financial and other information as the Bank may from
time to time reasonably request.
Section 7.2 Discharge of Obligations: Liens. The Borrower (whether
-------------------------------
in its individual capacity or as a general partner of the Lauderdale Beach
Association) shall pay, discharge, or otherwise satisfy, or cause to be paid,
discharged or otherwise satisfied, at or before maturity or before they become
delinquent or in default, as the case may be, all of the Borrower's obligations,
liabilities and Indebtedness in accordance with the terms thereof, except where
any such obligation, liability or Indebtedness is being contested in good faith
by appropriate proceedings and reserves in conformity with GAAP with respect
thereto have been provided and are being maintained on the books of the
Borrower. The Borrower shall keep the Hotel free and clear of all Liens other
than Liens permitted under the Loan Documents.
28
<PAGE>
Section 7.3 Maintenance of Existence. The Borrower shall (i) keep in
------------------------
full force and effect its partnership existence, except for automatic
dissolutions resulting from the admission or termination of partners as
permitted by this Agreement and (ii) comply with all Requirements of Law
material to the conduct of its business (including, without limitation,
continuing to be qualified to engage in business in each such jurisdiction where
such qualification is required) and the performance of its obligations under
this Agreement and the other Related Documents to which it is a party.
Section 7.4 Access to Records. The Borrower shall keep proper books
-----------------
of record and account in which full, true and correct entries in conformity with
the Partnership Agreement, GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its activities. The Borrower shall
permit representatives of the Bank and such Participants as shall be designated
from time to time as "Co-Agent Participants" on Exhibit A, as often as may
reasonably be requested, on two (2) Business Days' prior notice and for a proper
business purpose, to examine and make abstracts from any of its books and
records and, upon such notice as is reasonable under the circumstances, to enter
and inspect the Hotel, and to discuss the business, operations, properties and
financial and other condition of the Borrower with the General Partner.
Section 7.5 Furnishing Notice. The Borrower shall, as soon as
-----------------
possible after the General Partner obtains knowledge thereof, give notice to the
Bank of:
(a) the occurrence of any Default or Event of Default or the
occurrence of any material default under or material breach of any of the
Related Documents;
(b) any litigation, investigation or proceeding which may exist at
any time with respect to the Borrower or the Hotel (except any litigation,
investigation or proceeding involving claims for amounts which are insured)
where the amount claimed or, if unstated, the amount reasonably expected to be
claimed exceeds $2,500,000.00 and all disputes and proceedings involving
organized labor which would be likely to have a material adverse effect on the
Hotel or its operations; and
(c) any change in the business, operations, property or financial or
other condition of the Borrower which is materially adverse in the reasonable
judgment of the Borrower.
Each notice pursuant to this Section 7.5 shall be signed by the General Partner
on behalf of the Borrower and shall set forth details of the occurrence referred
to therein and state what action the Borrower has taken, and proposes to take,
with respect thereto.
Section 7.6 Hotel Management Agreement. The Borrower shall duly
--------------------------
perform in all material respects the obligations contemplated to be performed by
it under the Hotel Management Agreement and shall, with due diligence and in a
reasonable and prudent manner, enforce its rights under the Hotel Management
Agreement.
29
<PAGE>
Section 7.7 Proceeds of the Loans. The Borrower shall apply the
---------------------
proceeds of the Loan solely for the purposes set forth in Section 2.2.
SECTION 8
NEGATIVE COVENANTS
The Borrower hereby covenants and agrees with the Bank that, so long
as any amount is owing to the Bank under any of the Loan Documents:
Section 8.1 Consolidation, Mergers, Name Changes and Sales of Assets.
--------------------------------------------------------
The Borrower shall not (a) consolidate with or merge into any other Person, (b)
change its name or (c) sell, lease or otherwise transfer the Hotel or any
interest therein or any portion thereof or any assets directly related thereto
to any other Person, unless (i) the Bank gives its prior written consent thereto
and (ii) in the case of a sale of the Hotel, the purchaser thereof expressly
assumes in writing, in form and substance satisfactory to the Bank, all the
Borrower's obligations to the Bank under this Agreement and the Related
Documents to which the Borrower is a party.
Section 8.2 Place of Business. The Borrower shall not change its
-----------------
chief executive office outside Montgomery County, Maryland.
Section 8.3 Incurrence of Indebtedness. The Borrower shall not
--------------------------
create, incur, assume or suffer to exist any Indebtedness of or relating to the
Borrower of any kind or nature, except: (a) unsecured Indebtedness in an amount
equal to $9,146,661.59 plus accrued but unpaid interest in connection with an
existing ballroom loan serviced by the Borrower, which loan is subordinate to
the Loan; (b) other unsecured Indebtedness in an aggregate outstanding principal
amount not to exceed $7,000,000, provided that (i) such Indebtedness is
subordinate to the Loan on terms and conditions satisfactory to the Bank, (ii)
the proceeds of such Indebtedness shall be used solely for capital expenditures
or for repairs and maintenance of the Hotel and (iii) the lender of such
Indebtedness is Host Marriott, the Manager or any Affiliate of either such
Person; and (c) Indebtedness in respect of leases for personal property which
would not be classified as capital leases in accordance with GAAP, provided that
the aggregate annual rental payments with respect to such leases shall not
exceed $300,000.
Section 8.4 Purchase of Property. The Borrower shall not purchase
--------------------
any property (other than personal property and fixtures in the ordinary course
of business to be used in connection with any of the Hotels (as such term is
defined in the Partnership Agreement), or any interest therein, whether real or
personal, tangible or intangible, whether for investment or resale or for any
other purpose whatsoever, except with the prior written approval of the Bank.
Section 8.5 Maintenance of Purpose. The Borrower shall not engage in
----------------------
any business or operate for any purpose other than that set forth in Section
2.03 of the Partnership Agreement.
30
<PAGE>
Section 8.6 Payments. The Borrower shall not make any distributions
--------
to its partners of Operating Profit from the Hotel and shall not make repayments
of loans made by any partner of the Borrower to the Borrower out of Operating
Profit from the Hotel (x) if payment of such distributions or repayment of such
loans would result in the Borrower not having sufficient funds with which to pay
amounts then payable to the Bank as Debt Service or (y) following and during the
continuance of an Event of Default (whether declared or undeclared) under
Section 9.1(a), and all such distributions to the partners of the Borrower from
Operating Profit from the Hotel and such repayment of indebtedness shall be
subordinated to Debt Service on the Loan. At any time that the Borrower is
permitted to make distributions to its partners as aforesaid, the Borrower will
not make such distributions to its partners more frequently than semi-annually.
Section 8.7 Amendments to Agreements.
------------------------
(a) The Borrower shall not terminate or enter into or consent to any
amendment, modification, waiver or supplement of any provision of the Hotel
Management Agreement without the prior written consent of the Bank which consent
shall not be unreasonably withheld, except that such consent of the Bank shall
not be required for any waiver, amendment or modification of any provision of
the Hotel Management Agreement that does not in any way (i) affect the
respective obligations of Host Marriott or the Borrower owed to the Bank under
this Agreement and the other Related Documents, (ii) impair the rights and
remedies of the Bank under this Agreement and the other Related Documents or the
position and interests of the Bank as a secured party entitled to the security
interests and to receive payments as contemplated by this Agreement and the
other Related Documents, or (iii) impair the value of the Borrower's interests
in the Hotel or the Hotel Management Agreement; provided, however, that sections
1.01, 1.02 (including any of the sections referred to therein to the extent they
relate to the definition of terms used in the Hotel Management Agreement), 4.02,
5.01, 5.04, 5.05, 8.02(B), 10.01 (if the result of any such waiver, amendment or
modification would be that the name associated with the Hotel would be a name
other than that of the Marriott hotel system, generally), 12.02, 12.03,12.04,
13.01 and 16.01 of the Management Agreement shall not, in any event be waived,
amended or modified without the prior written consent of the Bank.
(b) The Borrower shall not, either as a general partner or a limited
partner, terminate or enter into or consent to any amendment, modification,
waiver or supplement of any material provision of the Partnership Agreement, the
Lease or the Lauderdale Beach Association Partnership Agreement or refinance any
of the Indebtedness referred to in Section 6.1(d) above other than on a
non-recourse basis substantially similar to that referred to in such Section
11.7, without the prior written consent of the Bank, which consent shall not be
unreasonably withheld, except that such consent shall not be required for any
waiver, amendment or modification of any provision of any such agreement that
does not in any way (i) affect the obligations of the Borrower owed to the Bank
under the Related Documents, (ii) impair the rights and remedies of the Bank
under the Related Documents or the position and interests of the Bank as a
secured
31
<PAGE>
party entitled to the security interests and to receive payments as contemplated
by the Related Documents, or (iii) impair the value of the Borrower's interests
in the Hotel or the Hotel Management Agreement.
Section 8.8 Other Activities. The Borrower shall not terminate,
----------------
substantially modify or replace the Lease unless the Borrower reasonably
believes, on the basis of advice of counsel, that such action is necessary or
desirable in order to fulfill the Borrower's fiduciary duty to other investors
in the Lauderdale Beach Association, respectively, or both; except for any
waiver, amendment or modification of any provision of any such agreement that
does not in any way (i) affect the obligations of the Tenant (as defined in the
Lease) to pay rent under the Lease in amounts sufficient to permit Lauderdale
Beach Association to meet its obligations thereunder as they come due, (ii)
impair the rights and remedies of the Bank under the Related Documents or the
position and interests of the Bank as a secured party entitled to the security
interests and to receive payments as contemplated by the Related Documents or
(iii) directly or indirectly impair the value of the Borrower's interests in the
Hotel.
SECTION 9
EVENTS OF DEFAULT
Section 9.1 Events of Default. The occurrence of any of the
-----------------
following events shall be an "Event of Default" hereunder unless waived by the
Bank pursuant to Section 11.1:
(a) the Borrower shall fail to pay (i) any principal or interest due
hereunder in respect of the Loan within one (1) Business Day following the due
date of such amount, (ii) any amounts payable pursuant to Section 3.1(b), (c) or
(d) or 11.5 within fifteen (15) Business Days following written demand of the
Bank, or (iii) any other amount due pursuant to this Agreement on the date when
such amount is due and payable pursuant to the terms of this Agreement; or
(b) any representation or warranty made by the Borrower pursuant to
this Agreement, the Mortgage, the Assignment of Rents or the Environmental
Indemnity, any representation or warranty made or deemed made in connection
with information provided by the Borrower pursuant to Section 7.1, or any other
representation or warranty made or deemed made by the Borrower or any other
party to any Loan Document (other than the Bank) in any of the Loan Documents or
in any certificate, document, financial or other written statement furnished to
the Bank at any time under or pursuant to the terms of any Loan Document, shall
prove to have been false or incorrect in any material respect when made or
deemed made and the event or condition unrepresented affects the validity,
binding effect or enforceability of any of the Loan documents or materially and
adversely affects the Borrower's or such party's ability to perform its
obligations under any of the Loan Documents; or
(c) (i) any party (other than the Bank) to any Loan Document (other
than this Agreement) shall default in the due performance or observance of any
term, covenant or
32
<PAGE>
agreement on its part to be performed or observed pursuant to any of the Loan
Documents (other than this Agreement) and such default shall continue beyond any
grace period specifically applicable thereto pursuant to the terms of such Loan
Documents; or (ii) an Event of Default (as defined in any Loan Document other
than this Agreement) shall have occurred and be continuing under such Loan
Document; or (iii) the Borrower shall fail to perform or observe any term,
covenant or agreement (A) contained in Section 7.1 hereof or the second sentence
of Section 7.4 hereof within thirty (30) days after receipt of notice from the
Bank, (B) contained in Section 7.3(ii) hereof within (30) days after such
failure shall become known to the Borrower, provided, however, if such failure
is susceptible to cure but is not susceptible to cure within such thirty (30)
day period, the Bank shall not exercise its rights and remedies hereunder if the
Borrower shall, prior to the expiration of such thirty (30) day period, commence
the cure of such failure and shall thereafter prosecute the same to completion
prior to the expiration of ninety (90) days from the date upon which such
failure shall become known to the Borrower; or (C) contained in the first
sentence of Section 7.4 hereof or in Section 7.5 hereof within thirty (30) days
after such failure shall become known to the Borrower or (D) contained in any
other provision of Sections 7 or 8; or (iv) the Manager shall cease to be
manager of the Hotel; or
(d) any provision affecting the obligation to make payments under
this Agreement shall at any time for any reason cease to be valid and binding
on the Borrower or shall be declared to be null and void without the necessity
of election by the Borrower, or the validity or enforceability of any material
provision of any of the Loan Documents shall be contested by the Borrower or any
Governmental Authority or the Borrower shall deny that it has any or further
liability or obligation under any of the Loan Documents; or
(e) any default shall occur with respect to any Indebtedness of the
Borrower in respect of which the Borrower has personal liability aggregating
$2,500,000.00 or more, which shall not have been cured within the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created unless the Borrower shall have satisfied, or caused to
be satisfied, all of its obligations with respect thereto; or
(f) the Borrower or the General Partner shall:
(i) make a general assignment for the benefit of creditors; or
(ii) file a petition in bankruptcy, petition or apply to any
tribunal or applicable Governmental Authority for the appointment of a
custodian, receiver, conservator, trustee or other official with similar powers
for it or a substantial part of its property or assets, or commence any case or
proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation or similar law or statute or any jurisdiction,
whether now or hereafter in effect; or
(iii) indicate its consent to, approval of or acquiescence in
any such petition or application filed against it, any case or proceeding
commenced against it or any order for relief or the appointment of a custodian,
receiver, conservator, trustee or other official with
33
<PAGE>
similar powers or regulatory authority for it or any substantial part of any of
its properties or assets; or suffer to exist any such case or proceeding in
which an order for relief is entered; or suffer to exist any such case or
proceeding, or any such custodianship, receivership, conservatorship,
trusteeship or jurisdiction of such other official or regulatory authority,
undischarged for a period of sixty (60) days or more; or
(iv) generally fail to pay its debts as such debts become due;
or
(v) have concealed, removed, or permitted to be concealed or
removed, any part of its property, with intent to hinder, delay or defraud its
creditors or any of them, or have made or suffered a transfer of any of its
property which is fraudulent under any bankruptcy, fraudulent conveyance or
similar law, or have suffered or permitted, while insolvent, any creditor to
obtain a Lien upon any of its property through legal proceedings or distraint
which is not vacated within thirty (30) days from the date such Lien is created;
or
(vi) take any appropriate corporate action to authorize any of
the foregoing; or
(g) any authorization or approval of any Governmental Authority or
otherwise, or any consent or waiver under any resolution, indenture or loan or
credit agreement or any other agreement or instrument to which the Borrower is a
party or by which the Borrower or any of its properties may be bound or affected
which authorization, approval, consent or waiver is necessary to enable the
Borrower to comply with its obligations to pay any amounts due or perform any
other material obligations under any of the Loan Documents, is revoked,
rescinded, withdrawn, withheld or otherwise ceases to be in full force and
effect; or
(h) any of the Related Documents to which the Bank is not a party is
terminated, amended or modified, or the provisions of it are waived, in any
respect without the prior written consent of the Bank, except as may otherwise
be permitted in any Loan Document to which the Bank is a party; or
(i) if at any time there shall be rendered by courts or Governmental
Authorities aggregate judgments against the Borrower in respect of which the
Borrower has personal liability in excess of $2,500,000.00 that have been
entered and are enforceable, and have not been satisfied within any time period
for payment provided in any relevant judgment; or
(j) the General Partner shall at any time or for any reason
whatsoever fail to perform any of its obligations under the Partnership
Agreement or shall take an action which would cause it to be in breach of any
material provision thereof which has or will have a material adverse effect on
the Bank's interests as a secured party entitled to the security interests and
to receive payments as contemplated by the Related Documents; or
(k) the General Partner shall terminate, dissolve or enter into a
consent to any
34
<PAGE>
amendment, modification, waiver or supplement of any provision of the
Partnership Agreement without the prior written consent of the Bank, which
consent shall not be unreasonably withheld except that such consent of the Bank
shall not be required (i) for any waiver, amendment or modification of any
provision of the Partnership Agreement that does not in any way (x) affect the
respective obligations of the Borrower to the Bank under this Agreement or any
other Related Document, (y) impair the rights and remedies of the Bank under
this Agreement or any other Related Documents or the position and interests of
the Bank as a secured party entitled to the security interests and to receive
payments as contemplated by this Agreement and the other Related Documents, or
(z) impair the value of the Borrower's interests in the Hotel or the Hotel
Management Agreement; and (ii) for any partner other than Host Marriott or its
Affiliates to sell all or any portion of its partnership interest in the
Borrower; or
(l) Host Marriott shall at any time fail to own, directly or
indirectly, all of the issued and outstanding capital stock of the General
Partner or the General Partner shall at any time fail to be the record and
Beneficial Owner and holder of a general partnership interest in the Borrower of
at least 1%; or
(m) the Manager shall at any time or for any reason whatsoever fail
to perform any of its obligations under the MI Guaranty Agreement or shall take
an action which would cause it to be in breach of any material provision
thereof; or
(n) if at any time a judgment creditor or other lienholder commences
foreclosure proceedings against the Hotel and such proceedings are not dismissed
or effectively stayed within five (5) days of such commencement.
SECTION 10
CONSEQUENCES OF DEFAULT
Section 10.1 Remedies.
--------
(a) If an Event of Default shall occur and be continuing the Bank
shall have the right, at is sole option, by written notice to the Borrower
(except for an Event of Default set forth in Section 9.1(f)(ii) or Section
9.1(f)(iii), in which event no notice shall be required), to declare all amounts
accrued but unpaid under this Agreement and each of the Related Documents to
which the Bank is a party to be immediately due and payable and such amounts
shall thereupon become due and payable without presentment, demand, protest or
notice of any kind, other than the notice specifically required by this Section
10.1(a), all of which are hereby expressly waived by the Borrower. The Borrower
shall pay to the Bank any Breakage Costs arising out of such declaration and
acceleration.
(b) If an Event of Default shall occur and be continuing, in addition
to the rights of the Bank pursuant Section 10.1(a), the Bank may, subject to
the provisions of Section 11.7, pursue such rights and remedies against the
Borrower or otherwise as are provided
35
<PAGE>
under and pursuant to this Agreement and the Related Documents and as may be
available to the Bank at law or in equity. No waiver of any Event of Default
shall constitute a waiver of any other or any succeeding Event of Default except
to the extent provided in such waiver.
SECTION 11
MISCELLANEOUS
Section 11.1 Amendments. No amendment or waiver of any provision of
----------
this Agreement and no consent to any departure by the Borrower therefrom shall
in any event be effective unless the same shall be in writing and signed by the
Bank, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Section 11.2 Notices. Any notice and other communication required or
-------
permitted hereunder shall be in writing and shall be personally delivered, sent
by facsimile transmission or sent by certified, registered mail, postage prepaid
to the addresses set forth below.
if to the Borrower, to:
Marriott Hotel Properties Limited Partnership
c/o Host Marriott Corporation
10400 Fernwood Road
Bethesda, Maryland 20817
Telecopy No. (301) 380-8260
Attention: Partnership Services
with a copy to:
Host Marriott Corporation
10400 Fernwood Road
Bethesda, Maryland 20817
Telecopy No. (301) 380-6332
Attention: General Counsel
If to the Bank, to:
36
<PAGE>
The Sanwa Bank Limited, New York Branch
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Telecopy No. (212) 754-1304
Attention: Tony S. Choi
with a copy to:
Winston & Strawn
175 Water Street
New York, New York 10038
Telecopy No. (212) 858-4700
Attention: Richard B. Teiman, Esq.
All notices and other communications shall be deemed to have been duly given, on
(i) the date of delivery if delivered personally, (ii) the date of receipt if
sent by facsimile transmission or (iii) the date of receipt if sent by mail,
whichever shall first occur. Any person may by notice given in accordance with
this Section 11.2 to each of the other Persons listed above designate another
address for receipt of notices and other communications hereunder.
Section 11.3 No Waiver. No failure on the part of the Bank to
---------
exercise, and no delay in exercising, any right hereunder or single or partial
exercise thereof or the exercise by the Bank of any other rights, shall operate
as a waiver of any right hereunder. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
Section 11.4 Continuing Obligation: Assignments and Participations.
-----------------------------------------------------
This Agreement is a continuing obligation and shall (i) be binding upon the
Borrower, the Bank and their respective successors and permitted transferees and
assigns and (ii) inure to the benefit of and be enforceable by the Borrower, the
Bank and their respective successors and permitted transferees and assigns;
provided, however, that the Borrower may not (by operation of law or otherwise)
sell, transfer or assign any of its rights or delegate or transfer any of its
obligations under this Agreement without the prior written consent of the Bank.
The Bank and the Participants may grant participations in its rights and
obligations under this Agreement and the Loan Documents without the consent of
the Borrower; provided, however, that the Borrower shall have no obligation to
pay any indemnity pursuant to Section 3.1(b) or 3.1(c) hereof for the account of
a Participant (or any participant of such Participant) in excess of the lesser
of (x) the amount actually incurred by the Participant or such participant and
(y) the comparable indemnity (if any) that the Borrower would have had to pay to
the Bank in respect of the participated amount had the Bank not sold such
participation.
Section 11.5 Indemnification. The Borrower shall indemnify the Bank
---------------
and each Participant for and hold the Bank and each Participant harmless from
and against any and all claims, damages, losses, liabilities, reasonable costs
and expenses of any kind whatsoever which
37
<PAGE>
the Bank (or such Participant) may incur (or which may be claimed against the
Bank (or such Participant) by any Person whatsoever) by reason of, or in
connection with the execution and delivery of this Agreement or the performance
of the Bank's (or such Participant's) obligations under the Loan Documents;
provided, however, the Borrower shall have no obligation to indemnify the Bank
(or such Participant) for any such claims, damages, losses, liabilities, costs
or expenses arising by reason of the gross negligence or willful misconduct of
the Bank (or such Participant, as the case may be).
Section 11.6 Confidentiality. The Borrower will supply the
---------------
information required pursuant to Sections 7.1 solely for the use of the Bank and
the Bank agrees to keep the information received pursuant to Section 7.1
confidential and shall not supply such information or any part thereof to any
person not employed or affiliated with the Bank; provided, however, that the
Bank and the Participants may supply the information provided pursuant to
Section 7.1 to any bank or financial institution which has purchased or is
considering purchasing a participation in the Loan. Notwithstanding anything to
the contrary set forth herein, the confidentiality obligations referred to in
this Section 11.6 shall not apply to (i) information publicly known through no
wrongful act of the Bank and (ii) information required to be disclosed by
applicable law, regulation or judicial or regulatory process.
Section 11.7 Liability of the Partners Limited. Notwithstanding
---------------------------------
any contrary provision of this Agreement, it is hereby expressly agreed that
except as otherwise provided in this Section 11.7, neither the Borrower nor the
General Partner, nor any legal representative, successor or assign of the
Borrower or the General Partner, nor any officer, director, shareholder of or
partner in the Borrower or the General Partner, nor any other principal in the
Borrower or the General Partner, whether disclosed or undisclosed, shall have
any personal liability for (i) the Payment of any sum of money which is or may
be payable hereunder or under the Mortgage or Mortgage Note or any other Loan
Document to which the Borrower is a party, including, but not limited to, the
repayment of the Loan, or (ii) the performance or discharge of any covenants or
undertakings of the Borrower hereunder or under the Loan Documents, and in the
event of any Event of Default hereunder or any default or event of default under
the Mortgage Note or any other Loan Document, the Bank shall proceed solely
against the Mortgaged Property and any other collateral given as security for
payment of the Mortgage Note, and the Bank shall not seek or claim recourse
against the Borrower or the General Partner or any legal representative,
successor or assign of the Borrower or the General Partner or any officer,
director, shareholder of or partner in the Borrower or the General Partner or
any other principal in the Borrower or the General Partner, whether disclosed or
undisclosed, for any deficiency or any personal judgment after a foreclosure of
the lien of the Mortgage or the Assignment of Rents, or both, or for the
performance or discharge of any covenants or undertakings of the Borrower
hereunder or under the Mortgage Note, the Mortgage or any other Loan Document.
Notwithstanding the foregoing, nothing contained in this Section 11.7 shall (a)
impair the validity of the Loan or in any way affect or impair the lien of the
Mortgage or the Assignment of Rents or the right of any holder of the Mortgage
Note or secured party under the Mortgage or the Assignment of Rents to
foreclosure the Mortgage or enforce the Assignment of Rents following an Event
of Default hereunder or prevent the Bank or any holder of the
38
<PAGE>
Mortgage Note from exercising any rights or remedies under any of the Loan
Documents or any of the other Related Documents against the Borrower, the
Mortgaged Property or any other collateral or (b) relieve the Borrower or the
General Partner of any personal liability for any loss, cost, expense, damage or
liability, including, without limitation, reasonable attorney's fees and
disbursements, suffered or incurred by the Bank arising out of or resulting from
(x) any representation or warranty contained in any of the Loan Documents made
by the Borrower or the General Partner having been false or incorrect in a
material respect when made and having been made with fraudulent intent, (y) any
amount distributed to the General Partner in violation of any provision of any
of the Loan Documents or (z) fraud or breach of trust, including, but not
limited to, misapplication of Loan proceeds advanced pursuant hereto and the
Mortgage Note or any insurance proceeds or condemnation awards or other sums
which are part of the Mortgage Property that may come into the Borrower's
possession or control or (c) relieve the Borrower or the General Partner of any
personal liability under the Environmental Indemnity. The provisions of this
Section 11.7 shall not affect any separate guaranty or similar undertaking with
respect to all or any part of the Loan or any subsequent assumption of the
obligations with respect to the Loan or the Mortage.
Section 11.8 Application of Proceeds.
-----------------------
(a) Unless an Event of Default shall occur and be continuing, all
payments received by the Bank under this Agreement or the Related Documents
shall be applied by the Bank to the obligations of the Borrower under this
Agreement in the following order of priority:
(i) First to default interest due on amounts payable under
this Agreement, if any;
(ii) then payment of amounts payable pursuant to Section
3.1(a);
(iii) then to amounts payable pursuant to Section 3.1(d) and any
other expenses of counsel or other professional advisors and out-of-pocket
expenses and costs payable pursuant to the terms of this Agreement;
(iv) then to the payment or reimbursement of amounts payable
pursuant to Section 3.1(b) and (c);
(v) then to the payment of interest payable to Section 2.5;
(vi) then to the payment of principal due on the Loan;
(vii) then to mandatory prepayments of the Loan pursuant to
Section 2.4(b) (including, without limitation, any Breakage Costs);
(viii) finally to optional prepayments of the Loan pursuant to
Section 2.4(a) (including, without limitation, any Breakage Costs).
39
<PAGE>
Partial prepayments of the Loan shall be applied against the outstanding
principal balance of the Loan in the reverse order of maturity.
(b) Upon the occurrence and during the continuance of an Event of
Default, all payments received by the Bank under this Agreement or the Related
Documents shall be applied by the Bank to the obligations of the Borrower under
this Agreement in the following order of priority (references are to the clauses
contained in Section 11.8(a)): first under clause (iii), then under clause (i),
then under clause (iv), then under clause (ii), then under clause (v), then
under clause (vi), then under clause (vii), and finally, under clause (viii).
Section 11.9 Counterparts. This Agreement may be executed by the
------------
parties hereto in separate counterparts, each of which when so executed shall
constitute an original but all such counterparts, when taken together, shall
constitute one and the same instrument.
Section 11.10 Entire Agreement. This Agreement and the other Related
----------------
Documents and the other agreements and instruments delivered in connection
herewith and therewith contain the entire agreement between the parties
concerning the subject matter hereof and thereof and supersede all prior
agreements, arrangements and understandings relating to the subject matter
hereof and thereof.
Section 11.11 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State.
Section 11.12 Submission to Jurisdiction; Waiver of Jury Trial.
------------------------------------------------
(a) THE BORROWER AND THE BANK EACH HEREBY IRREVOCABLY CONSENT THAT
ANY SUIT, LEGAL ACTION OR PROCEEDING AGAINST IT OR ANY OF ITS PROPERTY WITH
RESPECT TO ANY OF THE RIGHTS OR OBLIGATIONS ARISING DIRECTLY OR INDIRECTLY UNDER
OR RELATING TO THE LOAN DOCUMENTS TO WHICH IT IS A PARTY, SUBJECT TO THE
LIMITATIONS CONTAINED IN SECTION 11.7, MAY BE BROUGHT IN ANY NEW YORK STATE OR
UNITED STATES FEDERAL COURT LOCATED IN THE BOROUGH OF MANHATTAN, CITY AND STATE
OF NEW YORK, AS THE BANK MAY ELECT, AND BY EXECUTION AND DELIVERY OF THE LOAN
DOCUMENTS TO WHICH IT IS A PARTY THE BORROWER AND THE BANK EACH HEREBY
IRREVOCABLY SUBMIT TO AND ACCEPT WITH REGARD TO ANY SUCH SUIT, LEGAL ACTION OR
PROCEEDING, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. The Borrower hereby
irrevocably designates, appoints and empowers Prentice Hall Corporation System,
Inc. as its agent to receive for and on its behalf service of process in New
York in any suit, legal action or proceeding with respect to the Related
Documents to which it is a party. A copy of any such process served on such
agent shall be promptly forwarded by airmail by the Person commencing such suit,
legal action or proceeding
40
<PAGE>
to the Borrower at its address set forth in Section 11.2, but the failure of the
agent to send, or of the Borrower to received, such copy shall not affect in any
way the validity or sufficiency of the service or process by service upon such
agent. THE BORROWER AND THE BANK EACH FURTHER IRREVOCABLY CONSENT TO THE SERVICE
OF PROCESS IN ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED AIRMAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED, TO THE BORROWER AND THE BANK AT THEIR RESPECTIVE ADDRESSES SET FORTH
IN SECTION 11.2 (AS CHANGED BY NOTICE FROM TIME TO TIME AS PROVIDED THEREIN).
The foregoing shall not limit the right of the Bank or the Borrower to serve
process in any other manner permitted by law or, subject to the limitations
contained in Section 11.7, to bring any suit, legal action or proceeding or to
obtain execution of judgment in any other jurisdiction, including, without
limitation, Florida or Maryland.
(b) The Borrower and the Bank each hereby irrevocably waive any
objection which they may now or hereafter have to the laying of venue of any
suit, legal action or proceeding arising directly or indirectly under or
relating to the Related Documents to which they are parties, subject to the
limitations contained in Section 11.7, in any court located in the Borough of
Manhattan, City and State of New York or located in the State of Florida and
hereby further irrevocably waive any claim that a court located in the Borough
of Manhattan, City and State of New York or the State of Florida is not a
convenient forum for any such suit, legal action or proceeding.
(c) The Borrower and the Bank each hereby irrevocably waive any right
they may have under the laws of any jurisdiction to commence by publication any
suit, legal action or proceeding with respect to the Related Documents to which
they are parties.
(d) The Borrower hereby irrevocably agrees that any suit, legal
action or proceeding commenced by it against the Bank with respect to any rights
or obligations arising directly or indirectly under or relating to the Related
Documents to which it is a party shall be brought exclusively in any New York
State or United States Federal court located in the Borough of Manhattan, City
and State of New York.
(e) THE BORROWER AND THE BANK EACH HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section 11.13 Waiver of Immunity. To the extent that the Bank or any
------------------
of its properties, assets or revenues may have or may hereafter become entitled
to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the
giving of any relief in any thereof, from set off or counterclaim, from the
jurisdiction of any court, from service or process, from attachment upon or
prior to
41
<PAGE>
judgment, from attachment in aid of execution or judgment, or from execution
of judgment, or other legal process or proceeding for the giving of any relief
or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement, to the extent it may lawfully do so, the Bank hereby irrevocably
and unconditionally waives, and agrees not to plead or claim, any such immunity
and consents to such relief and enforcement.
Section 11.14 Headings. Section headings in this Agreement are
--------
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
Section 11.15 Severability. If any provision hereof is invalid or
------------
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be construed in order to carry out the intentions of the
parties hereto, including, without limitation, Section 11.7, to the fullest
extent permitted by law; and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
Section 11.16 Waiver of Setoff. The Bank hereby waives any Lien or
----------------
right of setoff it may have on or with respect to the FF&E Account and any
monies from time to time deposited in or credited to such account and any
proceeds thereof.
42
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
MARRIOTT HOTEL PROPERTIES
LIMITED PARTNERSHIP
By: Hotel Properties Management, Inc.,
its general partner
By: /s/ Ted Middleton
_____________________________________
Name: Ted Middleton
Title: VP
THE SANWA BANK LIMITED, acting by and
through its New York Branch
By: /s/ Tony Choi
_____________________________________
Name: Tony Choi
Title: VP
43
<PAGE>
EXHIBIT A
List of Participants
--------------------
Co-Agent Participants
---------------------
Connecticut General Life Insurance Company
Credit Lyonnais Cayman Island Branch
Participants
------------
Asahi Bank
The Chiba Bank, Ltd.
The Daiwa Bank, Ltd.
The International Commercial Bank of China, New York Agency
Shinhan Bank
The Toyo Trust & Banking Co., Ltd.
<PAGE>
EXHIBIT B
================================================================================
CERTIFICATE OF INSURANCE
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS
UPON THE CERTIFICATE HOLDER
THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE
POLICIES LISTED BELOW.
- --------------------------------------------------------------------------------
NAME AND ADDRESS OF AGENCY COMPANY
LETTER A Fidelity and Casualty
Becher & Carlson Insurance Services, Inc. Company of New York
21700 Oxnard Street, Suite 1800 ------------------------------------
Woodland Hills, CA 91367 COMPANY
LETTER B Continental Insurance
Company
------------------------------------
COMPANY
LETTER C General Reinsurance
Corporation
- --------------------------------------------------------------------------------
NAME AND ADDRESS OF INSURED DESCRIPTION OF
OPERATIONS/LOCATIONS/VEHICLES
Marriott International, Inc.
and subsidiaries Marriott's Orlando World Center
Marriott Drive World Center Drive
Washington, D.C. 20058 33 7EO Orlando, FL 32821
Attn: Dept. 924.36 (Insurance)
- --------------------------------------------------------------------------------
THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO
THE INSURED NAMED ABOVE AND ARE IN FORCE AT THIS TIME. NOTWITHSTANDING ANY
REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT
TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED
BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND
CONDITIONS OF SUCH POLICIES.
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
COMPANY POLICY NUMBER LIMITS OF LIABILITY IN THOUSANDS (000)
TYPE OF INSURANCE ------------------------------------------------
LETTER POLICY PERIOD EACH
OCCURRENCE AGGREGATE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
GENERAL LIABILITY
BROAD FORM
A [X] COMPREHENSIVE FORM [X] PROPERTY DAMAGE BODILY INJURY AND
PROPERTY DAMAGE $1,900
[X] PREMISES-OPERATIONS [X] INDEPENDENT SRL334 5432 COMBINED excess of
CONTRACTORS 10/1/95 - 96 $100
[X] PRODUCTS COMPLETED ----------------- ----------
OPERATIONS HAZARD [X] PERSONAL INJURY PRODUCTS retention
COMPLETED $3000
[X] CONTRACTUAL INSURANCE [X] LIQUOR LIABILITY OPERATIONS
- ------------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY
A [X] COMPREHENSIVE FORM [X] HIRED TEXAS: SRP 507 4961 BODILY INJURY AND
All Others: SRB 139 3136 PROPERTY DAMAGE $2,000
[X] OWNED [X] NON-OWNED 10/1/95 - 96 COMBINED
- --------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY
SRU 334 5433 BODILY INJURY AND
A [X] UMBRELLA FORM 10/1/95 - 96 PROPERTY DAMAGE $3,000
COMBINED
- --------------------------------------------------------------------------------------------------------------------------
EXCESS WORKERS' COMPENSATION
C (Self Insured States) X14156B $20,000
and --------------------------------------------
EMPLOYERS LIABILITY 10/1/95 - 96 $2,000 (EACH
ACCIDENT)
- ------------------------------------------------------------------------------------------------------------------------------------
A WORKERS' COMPENSATION STATUTORY
and SRW 317 1004 10/1/95 - 96
B EMPLOYERS LIABILITY --------------------------------------------
SRW 317 1003 10/1/95 - 96 $2,000 (EACH
ACCIDENT)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
SPECIAL CONDITIONS
Additional Insureds: The Sanwa Bank, Limited
Marriott Hotel Properties Limited
Partnership
Total Limit of Liability: $25,000,000
- --------------------------------------------------------------------------------
CANCELLATION: Should any of the above described policies be cancelled or
materially changed before the expiration date thereof, the issuing
company will mail 60 days written notice to the certificate
----
holder.
-----------------------------------------
NAME AND ADDRESS OF CERTIFICATE HOLDER: October 18,1995
The Sanwa Bank, Limited - New York
Park Avenue Plaza DATE ISSUED---------------
55 East 52nd Street
New York, NY 10055 XXXXXXXXXXXXXXXXXXX
Attn: Tony Choi --------------------------
AUTHORIZED SIGNATURE
-----------------------------------------
*SEE REVERSE SIDE FOR DESIGNATION OF ADDITIONAL INSUREDS.
================================================================================
<PAGE>
MARRIOTT INTERNATIONAL, INC.
LIABILITY INSURANCE EXCESS OF ATTACHED CERTIFICATE
October 1, 1995 - October 1, 1996
<TABLE>
<CAPTION>
Layer Insurer Policy number Participation
- ----- ------- ------------- -------------
<S> <C> <C> <C>
Layer 1: Royal Indemnity Company RHA201408 $5,000,000 excess of $5,000,000
(for a total of $10,000,000)
Layer 2: Westchester Fire Insurance Company XLA2606250 $10,000,000 excess of $10,000,000
(for a total of $20,000,000
Layer 3: Agriculture Insurance Company EXC8727700 $5,000,000 excess of $20,000,000
(for a total of $25,000,000
</TABLE>
<PAGE>
ALLENDALE INSURANCE COMPANY
2100 Reston Parkway
Suite 203
Reston, VA 22091
(703) 860-4101
CERTIFICATE OF INSURANCE
- --------------------------------------------------------------------------------
We hereby certify that insurance coverage is now in force with our company as
outlined below. This Certificate does not amend, extend or otherwise alter the
terms and conditions of insurance coverage contained in this policy.
- --------------------------------------------------------------------------------
INSURED (NAME AND ADDRESS):
MARRIOTT INTERNATIONAL, INC. AND ACCOUNT NO. 1-33932
SUBSIDIARIES
MARRIOTT DRIVE
BETHESDA, MD 20058 ALLENDALE POLICY NO.LP-007
ATTN: RISK MANAGEMENT DEPT.924.36 TERM OF POLICY 1-1-95 TO 4-1-96
- --------------------------------------------------------------------------------
Description and Location of All-Risk coverage, including Boller &
Insured Property Machinery, insuring real and personal
(Includes Insured's Interest in property on a repair or replacement
Improvements & Betterments) basis. Business interruption and Loss of
Rents coverage provided on an actual
LOC NO: D7E0 loss sustained basis.
------------
MARRIOTT'S ORLANDO WORLD CENTER
8701 WORLD CENTER DR LIMIT OF LIABILITY:
------------------
LAKE BUENA VISTA FL 32821 Limit $2,000,000,000 (Earth Movement
$200,000,000 excluding California and
Hawaii, Flood $200,000,000)
- --------------------------------------------------------------------------------
SPECIAL CONDITIONS
ADDITIONAL INSURED:
------------------
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP
MORTGAGEE
---------
THE SANWA BANK, LIMITED
A $500,000 PER OCCURRENCE, PER LOCATION DEDUCTIBLE APPLIES TO THE PERIL OF
WIND.
A $25,000 PER OCCURRENCE, PER LOCATION DEDUCTIBLE APPLIES TO ALL OTHER PERILS.
AS THEIR INTERESTS MAY APPEAR, BUT ONLY TO THE EXTENT CONTRACTUALLY REQUIRED.
- --------------------------------------------------------------------------------
Cancellation: In the event of cancellation of this policy, the company will
give 90 days notice of cancellation to the Certificate Holder named below.
Name and Address of Certificate Holder: Div/Unit No: 33-7E0
-----------
Certificate No: D7E0-02
-----------
Date Issued: 01-Jan-95
-----------
THE SANWA BANK, LIMITED - NEW YORK
PARK AVENUE PLAZA
55 EAST 52ND STREET
NEW YORK, NY 10055 By: /s/ Vincent Reyda
-------------------------------
Attn: TONY CHOI Vincent Reyda, Underwriter
<PAGE>
EXHIBIT C
[INTENTIONALLY OMITTED]
<PAGE>
[LOGO OF ORLANDO WORLD CENTER APPEARS HERE] EXHIBIT D
October 18, 1995
Marriott Hotel Properties
Limited Partnership
Department 924.25
10400 Fernwood Road
Bethesda, Maryland 20058
Gentlemen:
Enclosed are the consolidated Profit and Loss Statements, Balance Sheet and
Escrow Analysis for Marriott's Orlando World Center for the period September 9
to October 6, 1995.
The following is a statement of the rental for the period indicated.
<TABLE>
<CAPTION>
CURRENT PERIOD YEAR TO DATE
09/09/95-10/06/95 12/31/94-10/06/95
--------------------- ---------------------
<S> <C> <C>
$ $
SALES 6,934,339 89,618,204
HOUSE PROFIT 2,606,432 37,735,249
Base Management Fee 208,030 2,688,546
Escrow Fund 346,717 3,883,109
Equipment Rent 6,730 67,355
Permits & Licenses 0 19,985
Insurance 7,835 78,350
Personal Property Tax 15,880 165,418
Real Estate Tax 247,800 2,478,000
Other 0 71,858
GROSS OPERATING PROFIT 1,773,440 28,282,628
</TABLE>
<PAGE>
Marriott Hotel Properties
Limited Partnership
October 18, 1995
Page 2
<TABLE>
DISTRIBUTION OF PROFIT:
<S> <C> <C> <C>
MHPLP 80% 1,418,752 22,626,102
MARRIOTT 20% 354,688 5,656,526
DISTRIBUTION TO MHPLP YEAR TO DATE 80% 22,626,102
STANDASIDE 10% (Cumulative Pd7/92-Pd6/94) 5,491,918
Less: Distribution Previously Paid (18,211,041)
Less: Standaside Previously Paid (5,491,918)
Less: Standaside Recovery (1,972,044)
--------------
Balance due to MHPLP 2,443,017
</TABLE>
A transfer will be made in Week 4 of Period 11.
<TABLE>
<CAPTION>
Period Y.T.D.
------ ------
<S> <C> <C>
Average Rate $125.25 $132.21
Occupancy Percent 66.2% 79.9%
</TABLE>
Regards,
/s/ Mike McClung
Mike McClung
Controller
\lp
Enclosure
cc: Mary Martin - Dept. 911.01
: Regional Controller
: General Manager - Marriott's Orlando World Center
<PAGE>
EXHIBIT E
THIS AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT AMENDS AND RESTATES
THAT CERTAIN MORTGAGE AND SECURITY AGREEMENT RECORDED IN OFFICIAL RECORDS BOOK
4512, PAGE 3134, OF THE PUBLIC RECORDS OF ORANGE COUNTY, FLORIDA, AND SECURES
THE RENEWAL MORTGAGE NOTE REFERRED TO HEREIN (THE "RENEWAL NOTE"). THE RENEWAL
NOTE AMENDS, RESTATES AND RENEWS THE ORIGINAL MORTGAGE NOTE REFERRED TO HEREIN.
THE RENEWAL NOTE IS EXEMPT FROM FLORIDA DOCUMENTARY STAMP TAXES PURSUANT TO
FLORIDA STATUTES SECTION 201.09 AND FLORIDA ADMINISTRATIVE CODE RULE NO.
12B-4.054 AND IS EXEMPT FROM FLORIDA INTANGIBLE TAXES PURSUANT TO FLORIDA
STATUTES SECTION 199.145(4).
================================================================================
AMENDED AND RESTATED
MORTGAGE AND SECURITY AGREEMENT
From
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP
To
THE SANWA BANK LIMITED
acting by and through its
New York Branch
-------------------------------
Dated as of June 16, 1995
-------------------------------
================================================================================
PREPARED BY AND AFTER
RECORDING RETURN TO:
Farid R. Maluf, Esq.
Winston & Strawn
175 Water Street
New York, New York 10038-4981
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C>
GRANTING CLAUSES ............................................................ 1
SECTION 1
DEFINITIONS ............................................................ 4
SECTION 2
PARTICULAR COVENANTS OF MORTGAGOR....................................... 6
Section 2.1 Performance of Mortgage, Loan Agreement and
Mortgage Note.............................................. 6
Section 2.2 Warranty of Title.......................................... 6
Section 2.3 Taxes, Liens and Utility Charges........................... 7
Section 2.4 Insurance.................................................. 8
Section 2.5 Permits, Approvals and Compliance with Laws................ 12
Section 2.6 Zoning Changes............................................. 12
Section 2.7 Monthly Deposits........................................... 12
Section 2.8 Condemnation............................................... 13
Section 2.9 Care of Property........................................... 13
Section 2.10 Further Assurances......................................... 14
Section 2.11 After Acquired Property.................................... 15
Section 2.12 Leases Affecting Property.................................. 15
Section 2.13 Expenses................................................... 16
Section 2.14 Mortgagee's Performance of Defaults........................ 16
Section 2.15 Estoppel Affidavits........................................ 16
Section 2.16 Usury...................................................... 17
SECTION 3
DEFAULTS ............................................................... 17
Section 3.1 Event of Default........................................... 17
Section 3.2 Right to Enter and Take Possession......................... 18
Section 3.3 The Mortgagee's Power of Enforcement....................... 19
Section 3.4 Leases..................................................... 20
Section 3.5 Indebtedness Due on Foreclosure............................ 20
Section 3.6 Purchase by the Mortgagee.................................. 20
Section 3.7 Application of Indebtedness Toward Purchase Price.......... 20
Section 3.8 Waiver of Laws............................................. 20
Section 3.9 Receiver................................................... 21
Section 3.10 Suits to Protect the Mortgaged Property.................... 21
Section 3.11 Proofs of Claim............................................ 21
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 3.12 Acceleration; Application of Monies by Mortgagee.............. 22
Section 3.13 Delay or Omission No Waiver................................... 22
Section 3.14 No Waiver of One Event of Default to Affect Another........... 23
Section 3.15 Discontinuance of Proceedings................................. 23
Section 3.16 Remedies Cumulative........................................... 23
Section 3.17 Subrogation................................................... 24
SECTION 4
MISCELLANEOUS PROVISIONS................................................... 24
Section 4.1 Successors, Assigns Included in Parties....................... 24
Section 4.2 Notice........................................................ 24
Section 4.3 Headings...................................................... 25
Section 4.4 Invalid Provisions to Affect No Others........................ 25
Section 4.5 Modifications................................................. 25
Section 4.6 Uniform Commercial Code....................................... 26
Section 4.7 Leasing Commission............................................ 26
Section 4.8 Time is of the Essence........................................ 26
Section 4.9 Attorneys' Fees and Expenses.................................. 27
Section 4.10 Maximum Rate of Interest...................................... 27
Section 4.11 Applicable Law................................................ 27
Section 4.12 Default Rate.................................................. 27
SECTION 5
ADDITIONAL PROVISIONS...................................................... 28
Section 5.1 Non-Recourse.................................................. 28
Section 5.2 Debtor-Creditor Relationship.................................. 29
Section 5.3 Assignment of Rents........................................... 29
Section 5.4 WAIVER OF JURY TRIAL.......................................... 29
</TABLE>
-ii-
<PAGE>
AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED MORTGAGE AND SECURITY AGREEMENT dated as of
June 16, 1995 by and between MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, as the mortgagor and debtor (the "Mortgagor"), and
THE SANWA BANK LIMITED, acting by and through its New York Branch, as the
mortgagee and secured party (the "Mortgagee"), sets forth the binding agreement
of the parties. All capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in Section 1.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Mortgagor executed and delivered to Mortgagee that certain
Mortgage and Security Agreement (the "Original Mortgage"), dated as of January
12, 1993, which Original Mortgage was recorded on January 13, 1993 in the
Official Records Book 4512 at Page 3134 of the Public Records of Orange County,
Florida;
WHEREAS, the Original Mortgage became due on June 16, 1995 and the
outstanding principal amount evidenced and secured by the Original Mortgage as
of such date is $156,978,523.36;
WHEREAS, the Mortgagor and the Mortgagee have agreed, among other
things, to extend the maturity date of the Original Mortgage;
WHEREAS, this Mortgage does not create or secure any new or further
indebtedness or obligation other than the principal indebtedness secured by the
Original Mortgage on the maturity date thereof;
WHEREAS, the Mortgagee and the Mortgagor wish to amend and restate the
Original Mortgage in its entirety; and
WHEREAS, Mortgagor is justly indebted to Mortgagee in the principal
sum of ONE HUNDRED FIFTY-SIX MILLION NINE HUNDRED SEVENTY-EIGHT THOUSAND FIVE
HUNDRED TWENTY-THREE AND 36/100 DOLLARS ($156,978,523.36), as evidenced by the
Renewal Mortgage Note (the "Mortgage Note") and pursuant to the terms and
conditions set forth therein and in the Loan Agreement.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: that in consideration of
the sum of ONE AND NO/100THS DOLLARS ($1.00) paid by the Mortgagee to the
Mortgagor and for other valuable consideration, the receipt of which is hereby
acknowledged, and in order to (i) induce the Mortgagee to extend the maturity
date of the Loan to the Mortgagor in accordance with the terms of the Loan
Agreement, and (ii) secure (a) the payment of the indebtedness evidenced by the
Mortgage Note with interest thereon and any other sums payable (except pursuant
to Section 3.1(a) of the Loan Agreement) on the Mortgage Note and
<PAGE>
the Loan Agreement (all of the terms, covenants, conditions and agreements
contained therein being hereby made a part of this Mortgage as fully as if the
same were set forth herein in their entirety), (b) the payment other sums
secured by the Mortgage and (c) the performance and observance of all the
terms, covenants, conditions and agreements of the Mortgagor under the Mortgage,
the Mortgage Note, the Loan Agreement, the Environmental Indemnity and the
Assignment of Rents and performance of all other agreements of the Mortgagor in
favor of the Mortgagee in connection with the Loan, all such obligations
described in clauses (a), (b) and (c) above being hereinafter collectively
referred to as the "Indebtedness", the Mortgagor has executed and delivered this
Mortgage to the Mortgagee.
The Mortgagor has by the Original Mortgage granted, bargained, sold,
aliened, remised, released, conveyed, assigned, transferred, mortgaged,
hypothecated, pledged, delivered, set over, warranted and confirmed, and by
these presents does hereby grant, bargain, sell, alien, remiss, release, convey,
assign, transfer, mortgage, hypothecate, pledge, deliver, set over, warrant and
confirm unto the Mortgagee for the benefit of the Mortgagee and its successors
and assigns forever in and to the property hereinafter described:
A. All the certain piece, parcel or tract of land situated in the County
of Orange and State of Florida more particularly described in Exhibit B
attached hereto and made a part hereof, together with all easements, rights of
way, strips and gores of land, streets, ways, alleys, passages, sewer rights,
water, water courses, water rights and powers, and all estates, rights, titles,
interest, privileges, liberties, tenements, hereditaments and appurtenances
whatsoever, in any way belonging relating or appertaining thereunto or which
hereafter shall in any way belong, relate or be appurtenant thereunto, whether
now owned or hereafter acquired by the Mortgagor (the "Land");
B. All buildings, structures and improvements of every nature whatsoever
now or hereafter situated on the Land, and all fixtures, machinery, equipment,
furniture and other personal property of every nature whatsoever now or
hereafter owned by the Mortgagor and located in, on, or used or intended to be
used in connection with or with the operation of the Land, buildings, structures
or other improvements, including all extensions, additions, improvements,
betterments, renewals, and replacements to any of the foregoing; and all of the
right, title and interest of the Mortgagor in any such personal property or
fixtures subject to a conditional sales contract, chattel mortgage or similar
lien or claim together with the benefit of any deposits or payments now or
hereafter made by the Mortgagor or on its behalf (the "Improvements" and
collectively with the Land, the "Property");
C. The reversion and reversions, remainder and remainders, rents, issues,
profits, hotel room rentals, credit card receivables and accounts receivable of
the Property and all other revenues, income, fees and profits generated from the
operation of the hotel, golf course and other amenities located at the Property
of every kind and nature, and all other rents, issues, profits, revenues,
royalties and rights and benefits which may accrue and be owing for the use or
occupancy of the Property, including without limitation, any and all credit card
receivables, prepayments of hotel room rentals, rent, deposits for hotel
amenities, reservation deposits and
-2-
<PAGE>
catering deposits, all the estate, right, title, interest, property, possession,
claim and demand whatsoever, at law as well as in equity, of the Mortgagor of,
in and to the same, including but not limited to all judgments, awards of
damages and settlements hereafter made resulting from condemnation proceedings
or the taking of the Property or any part thereof under the power of eminent
domain, the alteration of the grade of any street, or for any damage (whether
caused by such taking or otherwise) to the Property or any part thereof, or to
any rights appurtenant thereof, and all proceeds of any sales or other
dispositions of the Property or any part thereof;
D. All leases and rents assigned to the Mortgagee pursuant to the terms
of the Assignment of Rents from the Mortgagor, as assignor, to the Mortgagee, as
assignee (all of the terms, covenants, conditions and agreements contained
therein being hereby made a part of this Mortgage as fully as if the same were
set forth herein in their entirety); and
E. A security interest in (i) all property, equipment and fixtures
forming a part of the Property and which, to the fullest extent permitted by
law, shall be deemed fixtures and a part of the real property, (ii) all articles
of personal property and all materials delivered to the Property for the use and
operation of the Property or for use in any construction being conducted
thereon, and owned by the Mortgagor, (iii) all accounts receivable, hotel room
rents, credit card receivables and all other income, fees and profits generated
from the operation of the hotel, golf course and other amenities located at the
Property of every kind and nature, and all other rents, issues, profits,
revenues, royalties and rights and benefits which may accrue and be owing for
the use or occupancy of the Property, including, without limitation, any and all
prepayments of hotel room rentals, rent, deposits for hotel amenities,
reservation deposits and catering deposits, contract rights associated with the
Property, general intangibles, actions and rights of action, all deposits,
prepaid expenses, permits, licenses, including all rights to insurance proceeds,
(iv) all right, title and interest of the Mortgagor in all trade names presently
or hereafter used in connection with the Property, (v) all right, title and
interest of the Mortgagor in the Architect's Contract and Hotel Management
Agreement, and (vi) all proceeds, products, replacements, additions,
substitutions, renewals and accessions of any of the foregoing. This Mortgage is
a self-operative security agreement with respect to such property, but the
Mortgagor agrees to execute and deliver on demand such other security
agreements, financing statements and other instruments as the Mortgagee may
request in order to perfect its security interest or to impose the lien hereof
more specifically upon any of such property. The Mortgagee shall have all the
rights and remedies, in addition to those specified herein, of a secured party
under the Florida Uniform Commercial Code.
The Property, together with any and all of the aforedescribed
additional property and rights, now or hereafter acquired by the Mortgagor,
shall hereinafter be referred to as the "Mortgaged Property".
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto
the Mortgagee, its successors and assigns to own proper uses and benefit
forever, subject, however, to the terms and conditions hereinafter set forth;
-3-
<PAGE>
PROVIDED, HOWEVER, that these presents are upon the condition that,
if the Mortgagor shall pay or cause to be paid to the Mortgagee the Indebtedness
at the times and in the manner stipulated herein, in the Loan Agreement and in
the Mortgage Note, all without any deduction or credit for taxes or other
similar charges paid by the Mortgagor, and shall keep, perform and observe, or
cause to be kept, performed and observed all and singular the covenants and
promises in the Mortgage Note, the Loan Agreement and this Mortgage expressed to
be kept, performed and observed by and on the part of the Mortgagor, all without
fraud or delay, then this Mortgage, and all the properties, interest and rights
hereby granted, bargained, sold, aliened, remised, released, conveyed, assigned,
transferred, mortgaged, hypothecated, pledged, delivered, set over, warranted
and confirmed, shall cease, terminate and be void, but shall otherwise remain in
full force and effect.
SECTION 1
DEFINITIONS
The following capitalized expressions, as used in this Mortgage, have
the following meanings (equally applicable to the singular and plural forms of
such expressions):
"Architects Contract" has the meaning set forth in the Loan Agreement.
-------------------
"Assignment of Rents" means the Amended and Restated Assignment of
-------------------
Leases, Rents and Profits dated as of June 16, 1995 from the Mortgagor to the
Mortgagee, as the same may be amended, supplemented or modified from time to
time in accordance with the terms thereof, pursuant to which the Mortgagor has
assigned to the Mortgagee all the rentals and other income received from the
operation of the Mortgaged Property.
"Business Day" has the meaning set forth in the Loan Agreement.
------------
"Default Rate" has the meaning set forth in Section 4.13.
------------
"Engineering Advisor" means a licensed engineering firm of recognized
-------------------
good reputation, hired by the Mortgagee to perform the services described in
Section 2.4(d).
"Event of Default" has the meaning set forth in Section 3.1.
----------------
"General Partner" means Hotel Properties Management, Inc. (formerly
---------------
known as Marriott Hotel Properties, Inc.) as general partner of the Mortgagor,
or any successor or substitute general partner of the Mortgagor.
-4-
<PAGE>
"Hotel Management Agreement" means the Restated and Amended Hotel
--------------------------
Management Agreement dated as October 25, 1985 between the Mortgagor, as owner,
and Marriott Hotels, Inc., as Manager.
"Improvements" has the meaning set forth in Paragraph B of the
------------
Granting Clauses.
"Indebtedness" has the meaning set forth in the introductory paragraph
------------
to the Granting Clauses.
"Land" has the meaning set forth in Paragraph A of the Granting
----
Clauses.
"Lease" means any lease or sublease together with any guaranty
-----
relating thereto, license, franchise, concession or other occupancy agreement
for use and occupancy of any portion of the Property, and any amendments or
modification to the foregoing, presently in effect or hereafter entered into.
"Lien" has the meaning set forth in the Loan Agreement.
----
"Loan Agreement" means the Amended and Restated Term Loan Agreement
--------------
dated as of June 16, 1995 between the Mortgagor and the Mortgagee, as the same
may from time to time be amended, supplemented or modified in accordance with
the terms thereof.
"Loan Documents" has the meaning set forth in the Loan Agreement.
--------------
"Material Leases" has the meaning defined in Section 2.12.
---------------
"Mortgage" means this Amended and Restated Mortgage and Security
--------
Agreement, as the same may be extended, renewed, consolidated, amended or
restated from time to time.
"Mortgage Note" means the Renewal Mortgage Note dated as of June 16,
-------------
1995 of the Mortgagor, payable to the order of the Mortgagee attached hereto as
Exhibit A.
"Mortgaged Property" has the meaning set forth in the last sentence of
------------------
the Granting Clauses, as the same may from time to time be amended, supplemented
or modified in accordance with the terms of this Mortgage.
"Mortgagee" means The Sanwa Bank Limited, acting by and through its
---------
New York Branch.
"Mortgagor" means Marriott Hotel Properties Limited Partnership, a
---------
Delaware limited partnership.
"Person" has the meaning set forth in the Loan Agreement.
------
-5-
<PAGE>
"Property" has the meaning set forth in Paragraph B of the Granting
--------
Clauses.
"Related Documents" has the meaning set forth in the Loan Agreement.
-----------------
"Rents" has the meaning defined in Section 3.9.
-----
"Total Loss" means any of the following events: (i) loss of the
----------
Property or of the use thereof due to destruction, defect or damage to the
extent that Mortgagor determines that repair is uneconomical or impossible, or
rendition of the Property permanently unfit for commercial operation for any
reason whatsoever; (ii) any damage to the Property which results in an insurance
settlement with respect to the Property on the basis of an actual or
constructive total loss; (iii) the condemnation, confiscation or seizure of, or
requisition of title to or use of, all or substantially all of the Property
("Requisition of Use") by the act of the United States government or any state
or local authority within the United States of America or any instrumentality or
agency of the foregoing or any other Person unless, if, solely in the cases of
condemnation or requisition of title to or use of the Property, it can be
demonstrated to the reasonable satisfaction of the Mortgagee that such
Requisition of Use is purely temporary and will not continue for a period of
more than six months and such Requisition of Use does not continue for a period
of more than six months; or (iv) as a result of any rule, regulation, order or
other action by any governmental body having jurisdiction (including without
limitation any federal or state environmental protection agency), the use of the
Property in the normal course of business shall have been prohibited, or the
Property shall have been declared unfit for use, for a period of six consecutive
months. The date of such Total Loss shall be the date of such destruction,
damage, Requisition of Use for such periods or unfitness for use for the stated
period.
AND, the Mortgagor covenants and agrees with the Mortgagee as follows:
SECTION 2
PARTICULAR COVENANTS OF MORTGAGOR
Section 2.1 Performance of Mortgage, Loan Agreement and Mortgage
----------------------------------------------------
Note.
- ----
The Mortgagor will perform, observe and comply with all the provisions
hereof and of the Loan Agreement, and will promptly pay to the Mortgagee the sum
of money expressed in the Mortgage Note with interest thereon and all other sums
required to be paid pursuant to the provisions of the Mortgage Note, this
Mortgage and the Loan Agreement, on the days when payment shall become due, all
without deduction or credit for taxes or other similar charges paid by the
Mortgagor, time being of the essence for such payments.
Section 2.2 Warranty of Title.
-----------------
The Mortgagor covenants that it is indefeasibly seized of the Property
in fee
-6-
<PAGE>
simple, has good and absolute title to all existing personal property hereby
mortgaged and has full power and lawful right to convey and mortgage the same in
the manner and form aforesaid and has taken all actions required of the
Mortgagor at law or otherwise to execute and deliver this Mortgage. The
Mortgagor further covenants that the Mortgaged Property is free from all
encumbrances except taxes for the current year and except for those matters set
forth on Exhibit C attached hereto and made a part hereof. The Mortgagor hereby
makes further assurances to the Mortgagee that it will take all actions to
perfect fee simple title to the Property in the Mortgagor as the Mortgagee may
reasonably request. The Mortgagor does hereby fully warrant the title to and
does hereby covenant to defend the Mortgaged Property against the lawful claims
of all persons whomsoever.
Section 2.3 Taxes, Liens and Utility Charges.
--------------------------------
(a) The Mortgagor covenants and agrees to pay all lawfully
imposed taxes and assessments upon the Mortgaged Property and shall not permit
such taxes and assessments to become delinquent. The Mortgagor shall, at the
Mortgagor's expense, (i) provide the Mortgagee with notice of nonpayment of
taxes and assessments upon the Mortgaged Property and/or (ii) provide the
Mortgagee with notice of the amount of taxes and assessments upon the Mortgaged
Property, as the Mortgagee may require.
(b) The Mortgagor covenants and agrees to pay or discharge,
prior to delinquency, any and all governmental levies that may be made on this
Mortgage or on the recording thereof or on the Mortgage Note or which in any
other way results from the Indebtedness.
(c) Except as expressly permitted under any of the Loan
Documents (whether or not Mortgagor is a party thereto), the Mortgagor shall not
permit any mechanic's, laborer's, statutory or other Lien to remain outstanding
upon any of the Mortgaged Property and shall cause same to be paid, released and
discharged within forty-five (45) days after the imposition of such Lien or, if
Mortgagor elects to contest the imposition of such Lien upon any of the
Mortgaged Property, it shall immediately cause such Lien to be bonded over, if
permitted by law, during the period in which such Lien is being contested, so as
to prevent the collection of such Lien from any of the Mortgaged Property.
(d) The Mortgagor will pay when due and will not suffer to
remain outstanding any charges for utilities, whether public or private, with
respect to the Mortgaged Property.
(e) Nothing in this Section 2.3 shall require the payment or
discharge of any obligation imposed upon the Mortgagor pursuant to subsections
(a) through (d) of this Section 2.3 so long as the Mortgagor shall in good faith
and at its own expense contest the same or the validity thereof by appropriate
legal proceedings, which proceedings must operate to prevent the collection
thereof or other realization thereon and the sale or forfeiture of the Mortgaged
Property or any part thereof to satisfy the same; provided that the Mortgagor
has (1)
-7-
<PAGE>
notified the Mortgagee in writing of the intention of the Mortgagor to contest
the same or to cause the same to be contested before such obligation has been
increased by any interest, penalties or other charges, and (2) has deposited
with the Mortgagee a sum of money (or other security acceptable to the
Mortgagee), that, when added to the monies or other security, if any, deposited
with the Mortgagee, is sufficient, in the Mortgagee's sole discretion, to
discharge the Mortgagor's obligation thereunder and any additional interest
charge, penalty or expense arising from or incurred as a result of such contest;
and provided, further, that if at any time payment of any obligation imposed
upon the Mortgagor or by subsections (a) through (d) of this Section 2.3 shall
become necessary to prevent a lien foreclosure sale of the Mortgaged Property or
any portion thereof because of non-payment, then Mortgagor shall pay the same in
sufficient time to prevent the foreclosure sale.
Section 2.4 Insurance.
---------
(a) The Mortgagor at its sole expense shall procure for and
maintain for the benefit of, or shall cause to be procured for and maintained
for the benefit of, the Mortgagee during the term of this Mortgage, original
paid up insurance policies of such insurance companies, on such terms, and with
such expiration dates as are reasonably acceptable to the Mortgagee providing
the types of insurance in amounts and covering the Property and the interest and
liabilities incident to the ownership, possession and operation thereof as are
set forth below. The amounts of such insurance coverage shall be adjusted from
time to time by the Mortgagor to satisfy the requirements set forth below but
not less frequently than once a year. The Mortgagor shall maintain, or cause to
be maintained:
(i) insurance, as and to the extent available, against
loss or damage by flood (in the event the Land is
designated as flood prone or a flood risk area or flood
insurance is required pursuant to the United States Flood
Disaster Protection Act of 1973 as amended or
supplemented or under any subsequent law then in effect
in an amount not less than the maximum amount available
under the Federal Flood Insurance Program) and by fire,
lightening, windstorm, hail, explosion, riot, riot
attending a strike, civil commotion, aircraft, vehicles,
smoke, vandalism and malicious mischief and against such
other serious hazard as, under good insurance practices,
from time to time are insured against for properties of
similar character and location, the amount of which
insurance shall not be less than one hundred percent
(100%) (excluding the costs of foundations or
excavations) of the full insurable replacement value of
the Improvements without deduction for depreciation, and
which policies of insurance shall contain satisfactory
replacement cost endorsements;
(ii) business interruption insurance against loss of
income arising out of damage or destruction by fire,
lightening, windstorm,
-8-
<PAGE>
hail, explosion, riot, riot attending a strike, civil
commotion, aircraft, vehicles, smoke, vandalism and
malicious mischief and such other hazards as are presently
included in so-called "extended coverage" in an amount
equivalent to not less than one year's loss of income caused
by the perils described in clause (i) of this Section
2.4(a);
(iii) comprehensive general liability insurance coverage and
other liability coverage as is maintained for similar hotel
properties which are operated within the Marriott hotel
system, but in no event will the comprehensive general
liability policy be written for an amount less than
$25,000,000.00 combined single limit for any one occurrence;
and
(iv) such other insurance on the Property or any
replacement or substitutions therefor and in such amounts as
may from time to time be reasonably required by the
Mortgagee against other insurable casualties which at the
time are commonly insured against in the case of similar
hotel properties which are operated within the Marriott
hotel system.
The Mortgagor may effect such coverage under blanket insurance policies,
provided that (x) the Mortgagor shall furnish the Mortgagee with certificates of
insurance from the insurer under such policy specifying the amounts of the total
insurance afforded by the blanket policy allocated to the Property and any
sublimits in such blanket policy applicable to the Property, which amounts shall
not be less than the amounts required pursuant to this Section 2.4(a); (y) any
policy of blanket insurance hereunder shall comply in all respects with the
other provisions hereof; and (z) the protection afforded the Mortgagee under any
policy of blanket insurance hereunder shall be no less than that which would
have been afforded under a separate policy or policies relating only to the
Property.
(b) The insurance maintained by the Mortgagor under clauses (i)
and (ii) of Section 2.4(a) shall name the Mortgagee as loss payee, as its
interests may appear, shall bear a standard noncontributory first mortgagee
endorsement in favor of the Mortgagee, substantially equivalent to the New York
standard mortgagee endorsement, and shall provide that all property losses
insured against shall be adjusted by the Mortgagor, subject, in the case of
losses of $250,000.00 or more, to the Mortgagee's approval, and shall provide
that any insurance proceeds from insurance described in clause (i) of Section
2.4(a) for claims of $250,000.00 or more and any insurance proceeds from
insurance described in clause (ii) of Section 2.4(a) shall be paid directly to
the Mortgagee. The insurance maintained by the Mortgagor under clause (iii) of
Section 2.4(a) shall name the Mortgagee as an additional insured. All insurance
maintained by the Mortgagor shall provide that:
-9-
<PAGE>
(i) no cancellation, material change or reduction
thereof shall be effective until at least thirty (30) days
after receipt by the Mortgagee of written notice thereof;
and
(ii) all losses shall be payable notwithstanding any act
or negligence of the Mortgagor or its agents or employees
which might, absent such agreement, result in a forfeiture
of all or part of such insurance payment and notwithstanding
(x) the occupation or use of the Property for purposes more
hazardous than permitted by the terms of such policy, (y)
any foreclosure or other action or proceeding taken pursuant
to the provision of any mortgage or collateral assignment of
beneficial interest or (z) any change in title or ownership
of any of the Mortgaged Property.
(c) In case of any damage to or destruction of the Property or
any part thereof from any cause whatsoever, the Mortgagor will promptly give
written notice thereof to the Mortgagee. Except as provided in Section 2.4(e),
all proceeds of insurance in respect of any damage or destruction of the
Property are hereby assigned to and shall be paid to the Mortgagee.
(d) Except as provided in section 2.4(g), in the event of any
loss or damage to any portion of the Property due to fire or other casualty
which is not a Total Loss and the claim for restoration of which is equal to or
in excess of $500,000, the Mortgagee shall make the insurance proceeds available
to reimburse the Mortgagor or to pay on the Mortgagor's behalf for the repair of
the Property, subject to the following terms and conditions: (i) no Event of
Default is continuing on the date on which the Mortgagee would be required to
make such reimbursement or payment; (ii) that the Mortgagee or its Engineering
Advisor, if any, shall first be satisfied that by the expenditure of such
insurance proceeds the Property will be fully restored within a reasonable
period of time to their value immediately preceding the loss or damage, free and
clear of all Liens, except as to the lien of this Mortgage and such other Liens
as are specifically permitted under the Loan Documents or consented to by the
Mortgagee in writing; (iii) that in the event such proceeds shall be
insufficient to restore or rebuild the Property, the Mortgagor shall deposit
promptly with the Mortgagee funds which, together with the insurance proceeds,
shall be sufficient to restore and rebuild the Property; (iv) that the excess of
such insurance proceeds above the amount necessary to complete such restoration
shall be released to the Mortgagor; (v) that the Mortgagee, or its Engineering
Advisor, if any, reviews and approves in writing the plans and specifications
for the restoration work and the same have been approved by all governmental
authorities having jurisdiction thereover; (vi) that the Mortgagor shall have
furnished to the mortgagee a budget, schedule and cost breakdown for said
restoration work signed by the Mortgagor and describing the nature and type of
expenses and amounts thereof estimated by the Mortgagor for said restoration
work; (vii) that the Mortgagor submits to the Mortgagee with each request for
reimbursement or payment invoices showing that the amount so requested is due
and payable; and (viii) such restoration work is capable, in the Mortgagee's
reasonable determination, of being completed prior to the Repayment Date of the
Mortgage Note. The Mortgagor agrees that the Mortgagee may hire an Engineering
Advisor
-10-
<PAGE>
to advise and evaluate the information so provided to the Mortgagee and to
examine the Property and the progress of reconstruction, and the Mortgagor
agrees to cooperate with such Engineering Advisor. Any surplus which may remain
out of any proceeds, after payment of the cost of repair, rebuilding or
restoration, shall be released to the Mortgagor or paid to any party entitled
thereto as the same may appear on the records of the Mortgagee. The Mortgagee
shall hold all insurance proceeds to be paid to or on behalf of the Mortgagor
pursuant to this Section 2.4(d) in trust for the benefit of the Mortgagor in an
interest-bearing account as security for the Indebtedness and the Mortgagor's
obligations under this Mortgage, the Mortgage Note and the Loan Documents.
(e) In the event of any loss or damage to any of the Mortgaged
Property due to fire or other casualty which is not a Total Loss and the claim
for restoration of which is less than $500,000.00, the Mortgagee shall release
any insurance proceeds received by the Mortgagee in respect thereof to the
Mortgagor and the Mortgagor shall use such proceeds, and any insurance proceeds
received by the Mortgagor in respect thereof, to restore the Property to its
condition immediately preceding the loss or damage.
(f) Under no circumstances shall the Mortgagee become obligated
to take any action to restore the Property. All restoration provided for in
Section 2.4(d) and 2.4(e) shall be promptly commenced and diligently prosecuted
to completion.
(g) In the event that (x) on the date on which the proceeds of
insurance in respect of any damage or destruction of the Property are paid to
the Mortgagee in accordance with Section 2.4(c) or on the date on which any such
insurance proceeds would otherwise be payable to or on behalf of the Mortgagor
in accordance with Section 2.4(d), (i) an Event of Default is continuing and
(ii) in the Mortgagee's reasonable determination, the restoration of the
Property is not capable of being completed prior to the Repayment Date of the
Mortgage Note or (y) there shall have occurred a Total Loss of the Property, all
proceeds of insurance in respect of any damage or destruction of the Property
shall be paid to the Mortgagee for application to the repayment of the
Indebtedness.
(h) At least fifteen (15) days prior to the renewal or
replacement of each insurance policy maintained pursuant to this Section 2.4, a
certificate of renewal or replacement thereof conforming to the requirements of
this Mortgage shall be delivered to the Mortgagee. The Mortgagor shall deliver
to the Mortgagee receipts evidencing the payment for all such insurance policies
and renewals or replacements. Each policy maintained pursuant to this Section
2.4 shall provide that the same cannot be cancelled without at least thirty (30)
days prior written notice to the Mortgagee. In the event of the foreclosure of
this Mortgage or any other transfer of title to the Property in extinguishment
or partial extinguishment of the Indebtedness, all right, title and interest of
the Mortgagor in and to all insurance policies then in force shall pass to the
purchaser or to the Mortgagee, as the case may be, and the Mortgagee is hereby
irrevocably appointed by the Mortgagor as attorney-in-fact for the Mortgagor to
assign any such policy to said purchaser or to the Mortgagee, as the case may
be, without accounting to the Mortgagor for any unearned premiums thereon.
-11-
<PAGE>
(i) The Mortgagor covenants not to take out separate
insurance concurrent in form or contributing in the event of loss with the
insurance required under this Section 2.4 unless the following conditions are
satisfied: (i) the policies are submitted to the Mortgagee for its approval,
which approval shall not be unreasonably withheld; (ii) the insurers thereunder
and the terms thereof are approved by the Mortgagee; and (iii) the Mortgagee is
included therein as an additional named insured or loss payee to the same extent
as provided in Section 2.4(b) with respect to insurance required to be
maintained by the Mortgagor. The Mortgagor covenants to notify the Mortgagee
fifteen (15) days before any such separate insurance is taken out and to furnish
the Mortgagee with certificates thereof or with respect to any renewal thereof
or replacement policy.
Section 2.5 Permits, Approvals and Compliance with Laws.
-------------------------------------------
The Mortgagor has obtained all certificates, permits, licenses and
approvals required by the applicable governing authorities for use, operation
and occupancy of the Property for hotel and retail and other purposes
incidental thereto. The Mortgagor shall comply with all laws, ordinances,
orders, rules and regulations of all federal, state, county and municipal
governments and of the appropriate departments, commissions, boards and officers
thereof, and the orders, rules and regulations of the Board of Fire
Underwriters or any other body now or hereafter constituted exercising similar
functions, which at any time are applicable to the Mortgaged Property.
Section 2.6 Zoning Changes.
--------------
Without the prior written consent of the Mortgagee which shall not be
unreasonably withheld, the Mortgagor shall not initiate, join in or consent to
any change in any private restrictive covenant, zoning ordinance or other
public or private restrictions limiting or defining the uses which may be made
of the Premises or any part thereof.
Section 2.7 Monthly Deposits.
----------------
From and after the occurrence of an Event of Default hereunder, to
secure the payment of the taxes and assessments referred to in Section 2.3 and
premiums on the insurance policies referred to in Section 2.4, the Mortgagor
shall, at the Mortgagee's written request, deposit with the Mortgagee on the
first Business Day of each month such amounts as, in the estimation of the
Mortgagee, shall be necessary to pay such charges as they become due to be
calculated upon the basis of the prior year's tax bills and the current year's
insurance premiums; said deposits to be held by the Mortgagee, in the manner
set forth in Section 2.4(c) free of any liens or claims on the part of
creditors of the Mortgagor and as part of the security of the Mortgagee, and to
be used by the Mortgagee to pay current taxes and assessments on the Mortgaged
Property and insurance premiums as the same accrue and are payable. Payment from
said sums for said purposes shall be made by the Mortgagee at its discretion and
may be made even though such payments will benefit subsequent owners of the
Mortgaged Property. If said deposits are insufficient to pay taxes and
assessments and insurance premiums in full as the same
-12-
<PAGE>
become payable, the Mortgagor will deposit with the Mortgagee such additional
sum or sums as may be required in order for the Mortgagee to pay such taxes and
assessments and insurance premiums in full. Upon the occurrence of an Event of
Default under any of the Loan Documents and acceleration of the Mortgagor's
Indebtedness under the Mortgage Note, the Mortgagee may, at its option, apply
any money in the fund resulting from said deposits to the payment of the
Indebtedness in the manner specified in Section 11.8 of the Loan Agreement.
Section 2.8 Condemnation.
------------
(a) The Mortgagor, immediately upon obtaining knowledge of
the institution of any proceedings for the condemnation of the Property, or any
part thereof, shall notify the Mortgagee of the institution of such proceedings.
The Mortgagee may participate in any such proceedings and in any event must
consent to any settlement thereof and the Mortgagor from time to time will
deliver to the Mortgagee all instruments requested by it to permit such
participation. Except as provided in Section 2.8(b), in the event of such
condemnation proceedings, any award or compensation payable pursuant thereto is
hereby assigned to and shall be paid to the Mortgagee. The Mortgagor, upon the
request of Mortgagee, shall make, execute and deliver any and all instruments
requested for the purpose of confirming the assignment of the aforesaid awards
and compensation to the Mortgagee free and clear of all liens, charge or
encumbrances of any kind or nature whatsoever.
(b) Provided (i) no Event of Default exists, (ii) the taking
does not materially adversely affect the operations of the Mortgaged Property,
(iii) all Material Leases (if any) shall be in full force and effect without any
right on the part of a lessee thereunder to terminate or cancel its Lease and
(iv) access to the Property is not interfered with; then in such case all net
condemnation proceeds (proceeds remaining after deducting costs and expenses of
collection) which are paid to and received by the Mortgagee shall be made
available by the Mortgagee to the Mortgagor for the restoration of the remaining
portion of the Property, subject to the conditions of clauses (i) through (viii)
of Section 2.4(d).
(c) Any net condemnation proceeds (whether upon a Total Loss
or otherwise) not applied as provided in Section 2.8(b), shall be held by the
Mortgagee in the manner set forth in Section 2.4(c) hereof. Any net condemnation
proceeds that remain unexpended after the restoration described in Section
2.8(b) shall be paid to the Mortgagor or paid to any party entitled thereto as
the same may appear on the records of the Mortgagee.
Section 2.9 Care of Property.
----------------
(a) The Mortgagor shall preserve and maintain the Property
in good condition and repair. The Mortgagor shall not permit, commit or suffer
any waste, impairment or deterioration of the Property or of any part thereof,
and will not take any action which will increase the risk of fire or other
hazard to the Mortgaged Property or to any part thereof.
-13-
<PAGE>
(b) Without the prior written consent of the Mortgagee
(which shall not be unreasonably withheld as to alterations which do not
adversely affect the structural integrity of the Improvements or materially
reduce the value thereof), (a) neither the Improvements nor any material part
thereof shall be removed, demolished or structurally altered and (b) no material
additions may be made to the Improvements. The Mortgagor shall also give the
Mortgagee written notice with reasonable promptness of each non-structural
alteration which has a cost in excess of $500,000.00. The Mortgagor, without the
consent of the Mortgagee, may (i) replace any of the furniture, furnishings and
equipment on the Property with articles of at least equal utility and quality
(and upon such replacement such new articles shall become part of the Mortgaged
Property and be subject to the lien and security interest created hereunder) and
(ii) remove furniture, furnishings and equipment for repairs, cleaning or other
servicing provided that the Mortgagor reinstalls the same in or upon the
Mortgaged Property with reasonable diligence; provided, however, that the
-------- -------
Mortgagor shall not be required to replace any equipment which performed a
function which shall have become obsolete, unnecessary or undesirable in
connection with the operation of the Mortgaged Property. All such replaced
furniture, furnishings and equipment shall be kept free from any lien, title
retention, security agreement or other encumbrance, except as may otherwise be
expressly permitted in the Loan Documents. At the Mortgagee's request, the
Mortgagor shall notify the Mortgagee of all material changes in the furniture,
furnishings and equipment.
(c) The Mortgagee is hereby authorized to enter upon and to
inspect the Property at any time during normal business hours during the term of
this Mortgage.
(d) If all or any part of the Property shall be damaged by
fire or other casualty, the Mortgagor will promptly restore such Property to the
economic equivalent of its original condition regardless of whether there shall
be any insurance proceeds therefor. If a part of the Property shall be
physically damaged through condemnation, the Mortgagor will promptly restore,
repair or alter the remaining portion in a manner satisfactory to the Mortgagee.
(e) Except during periods of restoration of the Property
following a material casualty or condemnation proceeding as provided in Sections
2.4(d) and 2.8(b), respectively, the Mortgagor shall continuously operate the
Property as a first class hotel facility.
Section 2.10 Further Assurances.
------------------
The Mortgagor will make, execute and deliver to the Mortgagee and,
where appropriate, shall cause to be recorded and/or filed and from time to time
thereafter to be re-recorded and/or refiled at such time and in such offices and
places as shall be deemed desirable by the Mortgagee, and any and all such
further mortgages, instruments of further assurance, certificates and other
documents as may, in the opinion of the Mortgagee, be necessary or desirable in
order to effectuate, complete, perfect, or to continue and preserve:
(a) the obligations of the Mortgagor under this Mortgage,
the Mortgage Note and the Loan Documents, and
-14-
<PAGE>
(b) the lien of this Mortgage upon all of the Mortgaged
Property, whether now owned or hereafter acquired by the Mortgagor.
Upon any failure by the Mortgagor to do so, the Mortgagee may make,
execute, record, file, re-record and/or re-file any and all such mortgages,
instruments, certificates and documents for and in the name of the Mortgagor,
and the Mortgagor hereby irrevocably appoints the Mortgagee the agent and
attorney-in-fact of the Mortgagor to do so.
Section 2.11 After Acquired Property.
-----------------------
The lien of this Mortgage will automatically attach, without further
act, to all property acquired after the dated hereof attached to or used in the
operation of the Mortgaged Property or any part thereof.
Section 2.12 Leases Affecting Property.
-------------------------
The Mortgagor shall not execute or permit to exist any lease of all or
a substantial portion of the Property. The Mortgagor will comply with and
observe its obligations as landlord under all Material Leases affecting the
Property or any part thereof. Upon request of the Mortgagee, the Mortgagor will
furnish the Mortgagee with executed copies of all Material Leases hereafter
created and all amendments thereto. The Mortgagee specifically reserves the
right to approve all proposed Material Leases as to financial capabilities of
the proposed tenants thereunder, which approval will not be unreasonably
withheld. For purposes hereof, the term "Material Leases" shall mean any lease
(i) having a term of five (5) years or more, or (ii) providing for annual rent
payments of $50,000 or more, or (iii) which is recorded in the real property
records of Orange County, Florida, or (iv) providing for the lease of any
restaurant with a capacity of fifty (50) persons or more at the Property, or (v)
providing for the lease of more than 10,000 square feet. All Leases shall be
inferior and subordinate in all respects to the lien of this Mortgage, and the
terms of each Lease shall provide that it is automatically subordinate with
respect only to the lien of a first mortgage. The Mortgagor will not, without
the prior written consent of the Mortgagee, which shall not be unreasonably
withheld, modify, surrender, or terminate, either orally or in writing, any
Material Lease hereafter created upon the Property, nor will the Mortgagor
permit an assignment or sublease without the prior written consent of the
Mortgagee, which shall not be unreasonably withheld, except with respect to
Material Leases having rental rates equal to market rates at the time of the
proposed assignment or subletting, entered into the ordinary course of operating
the Mortgaged Property as a hotel. The Mortgagor will not accept payment of rent
under a Material Lease (except as a security deposit) more than one (1) month in
advance without the express written consent of the Mortgagee which shall not be
unreasonably withheld. If requested by the Mortgagee, the Mortgagor will
specifically assign to the Mortgagee as additional security any and all Leases
hereafter created, including, without limitation, all rents, royalties, issues
and profits of the Property from time to time accruing, the parties hereto
acknowledging that this Mortgage constitutes a general assignment of any and all
such future Leases.
-15-
<PAGE>
Section 2.13 Expenses.
--------
The Mortgagor shall pay, or reimburse the Mortgagee for all costs,
charges and expenses, including reasonable attorneys' fees, including appellate
proceedings, and disbursements, and costs of abstracts of title incurred or paid
by the Mortgagee in any action, proceeding or dispute in which the Mortgagee is
made a party or appears as a party plaintiff or party defendant because of the
failure of the Mortgagor promptly and fully to perform and comply with all
conditions and covenants of this Mortgage, the Mortgage Note and the Loan
Documents including, but not limited to, the foreclosure of this Mortgage,
condemnation of all or part of the Property, or any action to protect the
security thereof. All costs, charges and expenses so incurred by the Mortgagee
shall become due and payable whether or not there be notice, demand, attempt to
collect or suit pending. The amounts so paid or incurred by the Mortgagee,
together with interest thereon at the Default Rate, from the date incurred until
paid by the Mortgagor, shall be secured by the lien of this Mortgage.
Section 2.14 Mortgagee's Performance of Defaults.
------------------------------------
If the Mortgagor shall default in the payment of any tax, assessment,
encumbrance or other imposition, in its obligation to furnish insurance
hereunder or performance or observance of any other covenant, condition or term
in this Mortgage, the Mortgagee, may, at its option, without waiving or
affecting its option to foreclose or any other rights hereunder, perform or
observe the same, and all payments made or costs or expenses incurred by the
Mortgagee in connection therewith shall be secured hereby and shall be
immediately repaid by the Mortgagor to the Mortgagee, with interest thereon at
the Default Rate. Nothing contained herein shall be construed as requiring the
Mortgagee to advance or expend monies for any purposes mentioned in this
Section. The Mortgagee is hereby empowered to enter and to authorize others to
enter upon the Property or any part thereof for the purpose of performing or
observing any such defaulted covenant, condition or terms, without thereby
becoming liable to the Mortgagor or any person in possession holding under the
Mortgagor.
Section 2.15 Estoppel Affidavits.
-------------------
The Mortgagor and the Mortgagee, each within ten (10) days after
receipt of a written request from the other, shall furnish a written statement,
duly acknowledged, setting forth the unpaid principal of, and interest on, the
Mortgage Note and whether any offsets or defenses exist against such principal
and interest.
Section 2.16 Usury.
-----
The Mortgagee represents and warrants that the interest rate charged
on the Mortgage Note is not, as of this date, in violation of any applicable
Florida usury laws and further waives any defense to payment under the Mortgage
Note and this Mortgage that might otherwise now or hereafter be available on the
basis that the interest rate charged on the Mortgage Note is usurious under
Florida law.
-16-
<PAGE>
SECTION 3
DEFAULTS
Section 3.1 Event of Default.
----------------
The term "Event of Default", wherever used in the Mortgage, shall mean
any one or more of the following events:
(a) The occurrence of an Event of Default under the Loan Agreement;
or
(b) failure by Mortgagor to observe or perform any of the other
terms, covenants or conditions contained in this Mortgage, or any other
documents executed in connection therewith for thirty (30) days after receipt of
written notice from Mortgagee of such failure, provided, such thirty (30) day
grace period set forth in this subsection (b) shall not apply to any other Event
of Default expressly set forth in this Section 3.1 or to any Event of Default
defined as such in the Loan Agreement, or to any other covenant or condition
with respect to which a limitation as to time or grace period or right to cure
is expressly provided elsewhere, provided, however, that if such failure is
susceptible to cure but is not susceptible to cure within such thirty (30) day
period, the Mortgagee shall not exercise its rights and remedies hereunder if
the Mortgagor shall, prior to the expiration of such thirty (30) day period,
commence the cure of such failure and shall thereafter prosecute the same to
completion prior to the expiration of ninety (90) days from the date upon which
such failure shall have occurred; or
(C) the passage after the date hereof of any law, regulation,
ordinance or other governmental act of any kind (i) deducting from the value of
the Land and the Improvements any Lien thereon for the purposes of taxation or
(ii) changing in any way the taxation of mortgages or debts secured thereby for
state or local purposes, or the manner of collection of any such taxes so as to
affect this Mortgage, unless Mortgagor shall, if permitted by applicable law and
regulation, deliver to the Mortgagee a written notice containing the agreement
of the Mortgagor to immediately reimburse the Mortgagee for all such taxes
already paid and to pay all such taxes which may thereafter be imposed, which
obligation shall be secured hereby. The Mortgagor agrees to exhibit to the
Mortgagee, at any time upon request, official receipts showing payments of all
taxes, assessments and charges which the Mortgagor shall have paid pursuant to
this Section 3.1(c).
Section 3.2 Right to Enter and Take Possession.
----------------------------------
(a) If an Event of Default shall have occurred and be
continuing, the Mortgagor, upon demand of the Mortgagee, shall forthwith
surrender to the Mortgagee the actual possession of the Mortgaged Property, and
to the extent permitted by law the Mortgagee, or such officers or agents as it
may appoint, may enter and take possession of all the Mortgaged Property, and
may exclude the Mortgagor and its agents and employees wholly therefrom, and may
have joint access with the Mortgagor to the books, papers and accounts of the
Mortgagor.
-17-
<PAGE>
(b) If the Mortgagor shall, for any reason, fail to surrender or
deliver any such Mortgaged Property or any part thereof after such demand by the
Mortgagee, the Mortgagee may obtain a judgement or decree conferring on the
Mortgagee the right to immediate possession or requiring the Mortgagor to
deliver immediate possession of all or part of such Mortgaged Property to the
Mortgagee, the entry of which judgment or decree the Mortgagor hereby
specifically consents.
(c) The Mortgagor will pay to the Mortgagee, upon demand, all
reasonable expenses of obtaining such judgment or decree and reasonable
compensation to the Mortgagee, their attorneys and agents; and all such expenses
and compensation shall until paid, be secured by the lien of this Mortgage.
(d) Upon every such entering upon or taking of possession, the
Mortgagee may hold, store, use, operate, manage and control the Mortgaged
Property and conduct the business thereof, and, from time to time:
(i) make all reasonably necessary, as determined by the
Mortgagee in its sole and absolute discretion, maintenance,
repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon, and purchase or otherwise
acquire additional fixtures, personalty and other property;
(ii) insure or keep the Mortgaged Property insured and
exercise all the rights and powers of the Mortgagor in its
name or otherwise, with respect to the same;
(iii) manage and operate the Mortgaged Property and
exercise all the rights and powers of the Mortgagor in its
name or otherwise, with respect to the same; and
(iv) enter into any and all agreements with respect to the
exercise by others of any of the powers herein granted the
Mortgagee,
all as the Mortgagee from time to time may determine to be its best advantage;
and the Mortgagee may collect and receive all the income, revenues, rents,
issues and profits of the same, including those past due as well as those
accruing thereafter, and after deducting:
(aa) all expenses of taking, holding, managing, and
operating the Mortgaged Property (including compensation for
the services of all persons employed for such purposes);
-18-
<PAGE>
(bb) the cost of all such maintenance, repairs, renewals,
replacements, additions, betterments, improvements and
purchases and acquisitions;
(cc) the cost of such insurance;
(dd) such taxes, assessments and other charges prior to the
lien of this Mortgage as the Mortgagee may determine
to pay;
(ee) other proper charges upon the Mortgaged Property or
any part thereof; and
(ff) the reasonable fees and disbursements of the attorneys
and agents of the Mortgagee.
The remainder of the monies so received by the Mortgagee shall be applied,
first to the payment of accrued interest; second to the payment of any required
tax deposit, insurance deposit or expenses required by the Mortgagee: and third
toward the outstanding principal secured by this Mortgage.
Section 3.3 The Mortgagee's Power of Enforcement.
------------------------------------
If an Event of Default shall have occurred and be continuing, the
Mortgagee may, either with or without entry or taking possession as hereinabove
provided or otherwise, proceed by suit or suits at law or in equity or by any
other appropriate proceeding or remedy (a) to enforce payment of the Mortgage
Note or the performance of any term hereof or any other right, (b) to foreclose
this Mortgage and to sell, as an entirety or in separate lots or parcels, the
Mortgaged Property, under the judgment or decree of a court or courts of
competent jurisdiction, and (c) to foreclose its security interests in, and
exercise all remedies of a secured creditor against, any or all items of
personal property constituting a part of the Mortgaged Property, reserving the
right to pursue any or all of its other remedies against the balance of the
Mortgaged Property, concurrently or successively from time to time and as often
as Lender may deem expedient. The Mortgagee shall take action either by such
proceedings or by the exercise of its powers with respect to entry or taking
possession, as the Mortgagee may determine.
Section 3.4 Leases.
------
The Mortgagee, at the Mortgagee's option, is authorized to foreclose
this Mortgage, subject to the rights of any tenants of the Mortgaged Property.
The failure to make any such tenants parties defendant to any such foreclosure
proceedings and to foreclose their rights will not be, nor be asserted by the
Mortgagor, a defense to any proceedings instituted by the Mortgagee to collect
the sums secured hereby, or any deficiency remaining unpaid after the
foreclosure sale of the Mortgaged Property.
-19-
<PAGE>
Section 3.5 Indebtedness Due on Foreclosure.
-------------------------------
Upon commencement of suit or foreclosure of this Mortgage, the unpaid
principal of the Mortgage Note, if not previously declared due, and the interest
accrued thereon, and any other Indebtedness shall at once become and be
immediately due and payable.
Section 3.6 Purchase by the Mortgagee.
-------------------------
Upon any such foreclosure sale pursuant to judicial proceedings, the
Mortgagee may bid for and purchase the Mortgaged Property and, upon compliance
with the terms of the sale, may hold, retain and possess and dispose of the
same in its own absolute right, without further accountability.
Section 3.7 Application of Indebtedness Toward Purchase Price.
-------------------------------------------------
Upon any such foreclosure sale pursuant to judicial proceedings, the
Mortgagee may, if permitted by law, after allowing for the proportion of the
total purchase price required to be paid in cash for the costs and expenses of
the sale, compensation and other charges, in paying the purchase price, apply to
the purchase price any portion of or all sums due to the Mortgagee under the
Mortgage Note, the Loan Agreement or this Mortgage, in lieu of cash, to the
amount which shall, upon distribution of the net proceeds of such sale, be
payable thereon.
Section 3.8 Waiver of Laws.
--------------
The Mortgagor agrees to the full extent permitted by law, that in case
of an Event of Default on its part hereunder, neither the Mortgagor nor anyone
claiming through or under it shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, extension or redemption laws now
or hereafter in force, in order to prevent or hinder the enforcement or
foreclosure of this Mortgage, or the absolute sale of the property hereby
conveyed, or the final and absolute putting into possession thereof, immediately
after such sale, of the purchasers thereat, and the Mortgagor, for itself and
all who may at any time claim through or under it, hereby waives to the full
extent that it may lawfully do so, the benefit of all such laws, and any and all
right to have the assets comprised in the security intended to be created hereby
marshalled upon any foreclosure of the lien hereof and agrees that the Mortgagee
or any court having jurisdiction to foreclose such lien may sell the Mortgaged
Property as an entirety.
Section 3.9 Receiver.
--------
If an Event of Default shall occur and be continuing, then upon the
filing of a bill in equity or other commencement of judicial proceedings to
enforce the rights of the Mortgagee, the Mortgagee to the extent permitted by
law and without regard to the value or occupancy of the security shall be
entitled as a matter of right to the appointment of a receiver to enter upon and
take possession of the Mortgaged Property. The receiver shall collect all hotel
room rentals
-20-
<PAGE>
and accounts receivable and all other income, fees and profits generated from
the operation of the hotel, golf course and other amenities located at the
Property of every kind and nature, including, without limitation, any and all
prepayments of hotel room rentals, rent, deposits for hotel amenities,
reservation deposits and catering deposits, rents, revenues, issues, income,
products and profits thereof (collectively, the "Rents"), pending such
proceedings and apply the same as the court may direct. The receiver shall have
all rights and powers permitted under the laws of Florida and such other powers
as the court making such appointment shall confer. The expenses, including
receiver's fees, counsel fees, cost and agent's compensation, incurred pursuant
to the powers herein contained shall be secured by this Mortgage. The right to
enter and take possession of, to manage and operate, the Mortgaged Property, to
collect the Rents, whether by a receiver or otherwise, shall be cumulative to
any other right or remedy hereunder or afforded by law, and may be exercised
concurrently therewith or independently thereof. The Mortgagee shall be liable
to account only for such Rents actually received by the Mortgagee, whether
received pursuant to this Section 3.9 or Section 3.2 above. Notwithstanding the
appointment of any receiver, trustee or other custodian, the mortgagee shall be
entitled, as pledgee, to the possession and control of any cash or other
instruments at the time held by, or payable or deliverable under the terms of
this Mortgage to, the Mortgagee.
Section 3.10 Suits to Protect the Mortgaged Property.
---------------------------------------
The Mortgagee shall have power (a) to institute and maintain such
suits and proceedings as it may deem expedient to prevent any impairment of the
Mortgaged Property by any acts which may be unlawful or any violation of the
Mortgage, (b) to preserve or protect its interest in the Mortgage Property and
in the income, revenues, rents and profits arising therefrom and (c) to restrain
the enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid, if
the enforcement of or compliance with such enactment, rule or order would impair
the security hereunder or be prejudicial to the interest of the Mortgagee.
Section 3.11 Proofs of Claim.
---------------
In the case of any receivership, insolvency, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceedings affecting the Mortgagor, its creditors, or its property, the
Mortgagee, to the extent permitted by law, shall be entitled to file such proofs
of claim and other documents as may be necessary or advisable in order to have
the claims of the Mortgagee allowed in such proceedings for the entire amount
due and payable by the Mortgagor under this Mortgage at the date of the
institution of such proceedings and for any additional amount which may become
due and payable by the Mortgagor hereunder after such date.
Section 3.12 Acceleration; Application of Monies by Mortgagee.
------------------------------------------------
(a) If an Event of Default shall occur and be continuing
under this Mortgage, then, upon written notice to the Mortgagor, the Mortgagee
may declare the entire
-21-
<PAGE>
Indebtedness to be immediately due and payable. If the Mortgagor shall fail to
pay the same forthwith upon such demand, the Mortgagee shall be entitled to sue
for and to recover judgment against the Mortgaged Property for the whole amount
so due and unpaid together with costs, which shall include the reasonable
compensation, expenses and disbursements of the Mortgagee's agents and attorneys
either before, after or during the pendency of any proceedings for the
enforcement of this Mortgage including appellate proceedings. The right of the
Mortgagee to recover such judgment shall not be affected by any taking,
possession or foreclosure sale hereunder, or by the exercise of any other right,
power or remedy for the enforcement of the terms of this Mortgage, or the
foreclosure of the lien hereof.
(b) Any monies thus collected by the Mortgagee or received
by the Mortgagee under this Section 3.12 shall be applied as follows:
First, to the payment of the reasonable attorneys' fees
and expenses incurred by the Mortgagee, its agents and
attorneys, including but not limited to taxes paid,
insurance premiums paid, receivers fees, etc.
Second, toward payment of the amounts due and unpaid
upon the Mortgage Note.
Third, as provided in Section 11.8 of the Loan
Agreement.
Section 3.13 Delay or Omission No Waiver
---------------------------
No delay or omission of the Mortgagee or of any holder of the Mortgage
Note to exercise any right, power or remedy accruing upon any Event of Default
shall exhaust or impair any such right, power or remedy or shall be construed to
be a waiver of any such Event of Default, or acquiescence therein; and every
right, power and remedy given by this Mortgage to the Mortgagee may be exercised
from time to time and as often as may be deemed expedient by the Mortgagee.
Section 3.14 No Waiver of One Event of Default to Affect Another.
---------------------------------------------------
No waiver of any Event of Default hereunder shall extend to or shall
affect any subsequent or any other then existing Event of Default or shall
impair any rights, powers or remedies consequent thereon. If the Mortgagee (a)
grants forbearance or an extension of time for the payment of any sums secured
hereby; (b) takes other or additional security for the payment thereof; (c)
waives or does not exercise any right granted herein or in the Mortgage Note;
(d) releases any part of the Mortgaged Property from the Mortgage Note or this
Mortgage; (e) consents to the filing of any map, plat or replat thereof; (f)
consents to the granting of any easement affecting the Property; or (g) makes or
consents to any agreement subordinating the lien hereof, any such act or
omission shall not release, discharge, modify, change or affect the original
liability under the Mortgage Note, the Loan Agreement, this Mortgage or
otherwise of
-22-
<PAGE>
the Mortgagor or any subsequent purchaser of the Mortgaged Property or any part
thereof, or of any maker, cosigner, endorser or surety or any guarantor; nor
shall any such act or omission preclude the Mortgagee from exercising any right,
power or privilege herein granted or intended to be granted in the event of any
other Event of Default then made or of any subsequent Event of Default nor,
except as otherwise expressly provided in an instrument or instruments executed
by the Mortgagee, shall the lien of this Mortgage be altered thereby. In the
event of the sale or transfer by operation of law or otherwise of all or any
part of the Mortgaged Property, the Mortgagee, without notice to any person or
corporation, is hereby authorized and empowered to deal with any such vendee or
transferee with reference to the Mortgaged Property or the Indebtedness, or with
reference to any of the terms or conditions hereof, as fully and to the same
extent as it might deal with the original parties hereto and without in any way
releasing or discharging any of the liabilities or undertakings hereunder.
Section 3.15 Discontinuance of Proceedings.
-----------------------------
In case the Mortgagee shall have proceeded to enforce any right or
remedy under this Mortgage by foreclosure, entry or otherwise, and such
proceedings shall have been discontinued or abandoned for any reason or shall
have been determined adversely to the Mortgagee, then and in every such case,
the Mortgagor and the Mortgagee shall be restored to their former positions and
rights hereunder, and all rights, powers and remedies of the Mortgagee shall
continue as if no such proceeding has been taken.
Section 3.16 Remedies Cumulative.
-------------------
No right, power or remedy conferred upon or reserved to the Mortgagee
by this Mortgage is intended to be exclusive of any other right, power or
remedy, but each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
Section 3.17 Subrogation.
-----------
The Mortgagee hereby is subrogated to the claims and liens of all
parties whose claims or liens are discharge or paid with any of the proceeds of
the Indebtedness.
SECTION 4
MISCELLANEOUS PROVISIONS
Section 4.1 Successors. Assigns Included in Parties.
-----------------------------------------
Whenever in this Mortgage one of the parties hereto in named or
referred to, the successors and assigns of such party shall be included and
all covenants and agreements contained in this Mortgage by or on behalf of the
Mortgagor or by or on behalf of the
-23-
<PAGE>
Mortgagee shall bind and inure to the benefit of their respective successors and
assigns, whether so expressed or not. Whenever the singular or plural number,
masculine or feminine or neuter gender is used herein, it shall equally include
the other.
Section 4.2 Notice.
------
(a) The Mortgagor. Any notice, demand or other instrument
-------------
authorized by this Mortgage to be served on or given to the Mortgagor may be
served on or given to the Mortgagor, at:
Marriott Hotel Properties Limited Partnership
c/o Host Marriott Corporation
Dept. 72/924.25
10400 Fernwood Road
Bethesda, Maryland 20817
Attention: Partnership Services
Copy to:
Host Marriott Corporation
10400 Fernwood Road
Bethesda, Maryland 20817
Attention: General Counsel
or at such other address as may have been furnished in writing to the Mortgagee
by the Mortgagor.
(b) The Mortgagee. Any notice, demand or other instrument to
-------------
be served on or given to the Mortgagee may be served on or given to the
Mortgagee at its offices located at:
The Sanwa Bank Limited, New York Branch
Part Avenue Plaza
55 East 52nd Street
New York, New York 10055
Attention: Mr. Tony S. Choi
Copy to:
Winston & Strawn
175 Water Street
New York, New York 10038
Attention: Richard B. Teiman, Esq.
-24-
<PAGE>
or at such other address as may have been furnished in writing to the Mortgagor
by the Mortgagee.
(c) All notices shall be in writing and shall be deemed
properly given if delivered by hand or mailed, registered mail return receipt
requested, addressed to the parties as set forth above. All notices shall be
deemed effective when delivered by hand or three (3) business days after
mailing.
Section 4.3 Headings.
--------
The headings of the articles, sections, paragraphs and subdivisions of
this Mortgage are for convenience of reference only, and are not to be
considered a part hereof, and shall not limit or otherwise affect any of the
terms hereof.
Section 4.4 Invalid Provisions to Affect No Others.
--------------------------------------
In case any one or more of the covenants, agreements, terms or
provisions contained in this Mortgage, the Loan Agreement or the Mortgage Note
shall be invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, agreements, terms or provisions contained herein and in the
Loan Agreement and the Mortgage Note shall be in no way affected, prejudiced
or disturbed thereby.
Section 4.5 Modifications.
-------------
The Mortgagee may at any time, without notice to any person, grant to
the Mortgagor any modification of any kind or nature whatsoever, or allow any
change or changes, substitution or substitutions of any of the Mortgaged
Property or any other collateral which may be held by the Mortgagee without in
any manner affecting the liability of the Mortgagor, any endorsers or guarantor
of the Indebtedness hereby secured or any other person for the payment of the
Indebtedness, together with any interest and any other sums which may be due and
payable to the Mortgagee, and also without in any manner affecting or impairing
the lien of this Mortgage upon the remainder of the Mortgaged Property and other
collateral which is not changed or substituted; and it is also understood and
agreed that the Mortgagee may at any time, without notice to any person, release
any portion of the Mortgaged Property or any other collateral, or any portion of
any other collateral which may be held as security for the payment of the
Indebtedness, either with or without any consideration of such release or
releases, without in any manner affecting the liability of the Mortgagor, all
endorsers or guarantors, if any, and all other persons who are or shall be
liable for the payment of the Indebtedness, and without affecting, disturbing or
impairing in any manner whatsoever the validity and priority of the lien of this
Mortgage for the full amount of the Indebtedness remaining unpaid, together with
all interest and advances which shall become payable, upon the entire remainder
of the Mortgaged Property or impairing to any extent whatsoever any and all
other collateral security which may
-25-
<PAGE>
be held by the Mortgagee. It is distinctly understood and agreed by the
Mortgagor and the Mortgagee that any release or releases may be made by the
Mortgagee without the consent or approval of any other person or persons
whomsoever.
Section 4.6 Uniform Commercial Code.
-----------------------
The parties agree that this Mortgage is a security agreement under
the Florida Uniform Commercial Code for the purpose of creating a lien on the
personal property and fixtures described herein.
Section 4.7 Leasing Commissions.
-------------------
The Mortgagor covenants that every agreement to pay leasing
commissions with respect to the leasing of space in the Mortgaged Property, or
any part thereof, are and shall be subject, subordinate and inferior to the
right of the Mortgagee, so that in the event the Mortgagee acquires title to the
Mortgaged Property either at a foreclosure sale or by other means, the
Mortgagee will be exonerated and discharged from all liabilities for the payment
of any such commissions or compensations.
Section 4.8 Time is of the Essence.
----------------------
It is specifically agreed that time is of the essence of this Mortgage
and that no waiver of any obligation hereunder or of the obligation secured
hereby shall at any time thereafter be held to be a waiver of the terms hereof
or of the instrument secured hereby.
Section 4.9 Attorneys' Fees and Expenses.
----------------------------
Wherever provison is made herein for payment for reasonable attorneys'
or counsels' fees or expenses incurred by the Mortgagee, said provision shall
include, but not be limited to, reasonable attorneys' or counsels' fees or
expenses incurred in any and all judicial, bankruptcy, reorganization,
administrative, or other proceedings, including appellate proceedings, whether
such proceedings arise before or after entry of a final judgement.
Section 4.10 Maximum Rate of Interest.
------------------------
Nothing herein contained, nor in the Mortgage Note or Loan Agreement
secured hereby, nor in or any instrument or transaction related thereto, shall
be construed or so operate as to require the Mortgagor, maker, or any person
liable for the payment of the Mortgage Note, to pay interest in an amount or at
a rate greater than the maximum allowed by law. Should any interest or other
charges in the nature of the interest paid by the Mortgagor, or any parties
liable for the payment of the Mortgage Note, result in the computation or
earning of interest in excess of the maximum rate of interest allowed by the
applicable law, then any and all such excess shall be and the same is hereby
waived by the holder thereof, and all such excess shall be automatically
credited against and in reduction of the principal balance, and any portion of
said
-26-
<PAGE>
excess which exceeds the principal balance shall be paid by the holder hereof to
the Mortgagor, maker or any parties liable for the payment of the Mortgage Note,
it being the intent of the parties hereto that under no circumstances shall the
Mortgagor, or any parties liable for the payment of the Mortgage Note, be
required to pay interest in excess of the maximum rate allowed by law.
Section 4.11 Applicable Law.
--------------
This Mortgage shall be interpreted, construed and enforced according
to the laws of the State of Florida. This choice-of-law provision shall not be
deemed to affect the choice-of-law provision contained in any of the other Loan
Documents.
Section 4.12 Default Rate.
------------
Upon default in payment of any amount hereunder or under the Mortgage
Note when due, interest shall be payable on the whole of the outstanding
principal balance of the Indebtedness from the due date until paid in full at
the rate specified in Section 2.6 of the Loan Agreement (the "Default Rate").
SECTION 5
ADDITIONAL PROVISIONS
Section 5.1 Non-Recourse.
------------
Notwithstanding any contrary provision of this Mortgage, it is hereby
expressly agreed that, except as otherwise provided in this Section 5.1, neither
the Mortgagor nor the General Partner, nor any legal representative, successor
or assign of the Mortgagor or the General Partner, nor any officer, director,
shareholder of or partner in the Mortgagor or the General Partner nor any other
principal in the Mortgagor or in the General Partner, whether disclosed or
undisclosed, shall have any personal liability for (i) the payment of any sum of
money which is or may be payable hereunder or under the Mortgage Note or any
other Loan Document to which the Mortgagor is a party, including but not limited
to, the repayment of the indebtedness evidenced by the Mortgage Note, or (ii)
the performance or discharge of any covenants or undertakings of the Mortgagor
hereunder or under the Loan Documents, and in the event of any Event of Default
hereunder or any default or event of default under the Mortgage Note or any
other Loan Document, the Mortgagee shall proceed solely against the Mortgaged
Property and any other collateral given as security for payment of the Mortgage
Note, and the Mortgagee shall not seek or claim recourse against the Mortgagor
or the General Partner or any legal representative, successor or assign of the
Mortgagor or the General Partner or any officer, director, shareholder of or
partner in the Mortgagor or the General Partner or any other principal in the
Mortgagor or the General Partner, whether disclosed or undisclosed, for any
deficiency or any personal judgment after a foreclosure of the lien of this
Mortgage or the Assignment of Rents, or both, or for the performance or
discharge of any covenants or
-27-
<PAGE>
undertakings of the Mortgagor hereunder or under the Mortgage Note, the Loan
Agreement or any other Loan Document. Notwithstanding the foregoing, nothing
contained in this Section 5.1 shall (a) impair the validity of the indebtedness
evidenced by the Mortgage Note or in any way affect or impair the lien of this
Mortgage or the right of any holder of the Mortgage Note or secured party under
this Mortgage to foreclose this Mortgage following an Event of Default hereunder
in accordance with Section 3 hereof or prevent the Mortgagee or any holder of
the Mortgage Note from exercising any rights or remedies under any of the Loan
Documents or any of the other Related Documents against the Mortgagor, the
Mortgaged Property or any other collateral or (b) relieve the Mortgagor or the
General Partner of any personal liability for any loss, cost, expense, damage or
liability, including, without limitation, reasonable attorney's fees and
disbursements, suffered or incurred by the Mortgagee arising out of or resulting
from (x) any representation or warranty contained in any of the Loan Documents
made by the Mortgagor or the General Partner having been false or incorrect in a
material respect when made and having been made with fraudulent intent, (y) any
amount distributed to the General Partner in violation of any provision of any
of the Loan Documents or (z) fraud or breach of trust, including, but not
limited to, misapplication of loan proceeds advanced pursuant to the Mortgage
Note and the Loan Agreement or any insurance proceeds or condemnation awards or
other sums which are part of the Mortgaged Property that may come into
Mortgagor's possession or control or (c) relieve Mortgagor or the General
Partner of any personal liability under the Environmental Indemnity (as defined
in the Loan Agreement). The provisions of this paragraph shall not, however,
affect any separate guaranty or similar undertaking with respect to all or any
part of the indebtedness secured hereby or any subsequent assumption of the
obligations with respect to such indebtedness or the Mortgage. It is the
intention of the Mortgagee and the Mortgagor that this Section 5.1 shall govern
every other provision of this Mortgage and that the absence of explicit
reference to this Section 5.1 in any provision of this Mortgage shall not be
construed to deny the application of this Section 5.1 to such provision,
notwithstanding the presence of explicit reference to this Section 5.1 in other
provisions of this Mortgage.
Section 5.2 Debtor-Creditor Relationship.
----------------------------
The Mortgagor and the Mortgagee acknowledge and agree that the
Mortgagee is extending credit for the benefit of the Mortgagor pursuant to the
terms set forth in the Loan Agreement and the other Loan Documents, and that
the relationship between them is limited exclusively to that of debtor-creditor.
The Loan Agreement and the other Loan Documents should not in any way be
construed to create a partnership or joint venture between the Mortgagor and the
Mortgagee.
-28-
<PAGE>
Section 5.3 Assignment of Rents.
-------------------
Pursuant to Chapter 697.07, Florida Statutes, Mortgagor has executed
and delivered to Mortgagee that certain Amended and Restated Assignment of
Leases, Rents and Profits dated as of June 16, 1995, the terms and provisions of
which are incorporated herein by this reference thereto.
Section 5.4 WAIVER OF JURY TRAIL.
--------------------
THE MORTGAGOR AND THE MORTGAGEE EACH HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS MORTGAGE, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
[END OF PAGE]
-29-
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the
date and year first above written, even though this instrument may have been
executed prior to such date by one of the parties hereto.
Signed, sealed & delivered
in the presence of:
MARRIOTT HOTEL PROPERTIES
__________________ LIMITED PARTNERSHIP
a Delaware limited partnership,
Name: ____________
By: Hotel Properties Management, Inc.,
a Delaware Corporation,
General Partner
__________________
Name: ____________
By: ______________________
Name:
Title:
(Corporate Seal)
THE SANWA BANK LIMITED,
__________________ acting by and through its
New York Branch
Name: ____________
__________________ By: ________________________________
Name:
Name: ____________ Title:
-30-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Before me personally appeared _____________________, to me known to
be the Vice President of Hotel Properties Management, Inc., a Delaware
corporation, the general partner of Marriott Hotel Properties Limited
Partnership, a Delaware limited partnership, named in the foregoing instrument
and known to me to be the person who as Vice President of such general partner
of said limited partnership executed the same and he did acknowledge before me
that said instrument is the free act and deed of such limited partnership and by
him executed for the purposes therein expressed; all under authority in him duly
vested.
WITNESS my hand and official seal in the County and State last
aforesaid this _____ day of October, 1995.
____________________________________________
Notary Public
My Commission Expires:
(Seal)
-31-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Before me personally appeared ____________________________ to me known
to me to be the ___________________________ of the New York Branch of The Sanwa
Bank Limited, a Japanese banking corporation acting by and through its New York
Branch, named in the foregoing instrument who as ________________ of such
entity executed the same and he did acknowledge before me that said instrument
is the free act and deed of said entity and by him executed for the purposes
therein expressed; all under authority in him duly vested.
WITNESS my hand and official seal in the County and State last
aforesaid this _____ day of October, 1995.
____________________________________________
Notary Public
My Commission Expires:
(Seal)
-32-
<PAGE>
EXHIBIT A
RENEWAL MORTGAGE NOTE
---------------------
$156,978,523.36 As of June 16, 1995
FOR VALUE RECEIVED, MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, having an address c/o Host Marriott Corporation,
10400 Fernwood Road, Bethesda, Maryland 20817 ("Maker"), promises to pay to the
order of THE SANWA BANK LIMITED ("Payee"), acting by and through its New York
Branch, on June 16, 2000 (the "Repayment Date") at 55 East 52nd Street, New
York, New York 10055, or at such other place as may be designated in writing by
the holder of this Renewal Mortgage Note, the aggregate principal amount of ONE
HUNDRED FIFTY-SIX MILLION NINE HUNDRED SEVENTY-EIGHT THOUSAND FIVE HUNDRED
TWENTY-THREE AND 36/100 DOLLARS ($156,978,523.36) or, if less, the aggregate
principal amount hereof then outstanding (the "Principal Amount"). Maker further
promises to pay interest as hereinafter set forth. The capitalized terms used
and not otherwise herein defined shall have the respective meanings assigned
thereto in that certain Amended and Restated Term Loan Agreement dated as of
June 16, 1995 between the Maker and the Payee (as amended, modified or
supplemented, the "Loan Agreement"). In the event of any inconsistency between
the Loan Agreement and this Renewal Mortgage Note, the Loan Agreement shall
govern.
This Renewal Mortgage Note is given as a renewal of the unpaid
principal obligations under that certain mortgage note, dated January 12, 1993,
in the principal amount of $180,087,250.92, made by Maker to the order of Payee,
which mortgage note is attached hereto.
This Renewal Mortgage Note is secured by, among other things, an
Amended and Restated Mortgage and Security Agreement dated as of June 16, 1995
(the "Mortgage") between Maker and Payee covering Maker's fee simple estate in
land and improvements located in the County of Orange and State of Florida and
more particularly described in Exhibit B to the Mortgage.
The Principal Amount plus all unpaid interest accrued thereon together
with all other amounts owed under this Renewal Mortgage Note and the other Loan
Documents shall become immediately due and payable, at the option of Payee, upon
the occurrence of any Event of Default under and as defined in the Loan
Agreement.
Maker shall pay interest on the outstanding principal amount hereof at
the rates per annum and on the dates set forth in or established by the Loan
Agreement and as calculated therein. All indebtedness outstanding under this
Renewal Mortgage Note shall bear interest (computed in the same manner as
interest on this Renewal Mortgage Note prior to maturity)
<PAGE>
after maturity by acceleration or otherwise, at the rate set forth in Section
2.6 of the Loan Agreement, and all such interest shall be payable on demand.
Maker promises to pay, without setoff or deduction, to the order of
Payee at the place designated in the first paragraph, semi-annual payments of
principal as follows:
<TABLE>
<CAPTION>
Amount Payment Date
------ ------------
<S> <C>
$4,000,000 December 16, 1995
$4,000,000 June 16, 1996
$3,500,000 December 16, 1996
$3,500,000 June 16, 1997
$3,500,000 December 16, 1997
$3,500,000 June 16, 1998
$2,000,000 December 16, 1998
$2,000,000 June 16, 1999
$2,000,000 December 16, 1999
$2,000,000 June 1, 2000
</TABLE>
The Principal Amount and all accrued and unpaid interest and all other
sums, if any, then due under the Loan Agreement shall be due and payable in full
on the Repayment Date.
Maker may prepay, in whole or in part, the Principal Amount in the
amounts and terms provided for such prepayments under Section 2.4(a) of the Loan
Agreement and shall prepay, as required in whole or in part, all or a portion of
the Principal Amount in the amounts and terms provided for such prepayments
under Section 2.4(b) of the Loan Agreement.
Maker and all endorsers, sureties and guarantors hereby jointly and
severally waive presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this Renewal Mortgage
Note, and they agree that the liability of each of them shall be without regard
to the liability of any other party, and shall not be affected in any manner by
any indulgence, extension of time, renewal, waiver or modification granted or
consented to by the holder hereof (other than by the terms hereof). Maker and
all endorsers, sureties and guarantors consent to any and all extensions of
time, renewals, waivers or modifications that may be granted by the holder
hereof with respect to the payment or other provisions of this Renewal Mortgage
Note, and to the release of the collateral or any part thereof, with or without
substitution, and agree that additional makers, endorsers, guarantors or
sureties may become parties to this Renewal Mortgage Note without notice to them
or affecting their liability under this Renewal Mortgage Note.
Payee's acceptance of any amount paid after the occurrence and during
the continuance of an Event of Default without itself curing said default shall
not operate as a waiver of such default nor a continuing waiver of any
subsequent default.
-2-
<PAGE>
All payments of interest, principal and other sums due and payable
hereunder shall be made in lawful money of the United States of America by wire
transfer of same day funds to The Sanwa Bank Limited, New York Branch, 55 East
52nd Street, New York, New York 10055, by credit of Federal or other immediately
available funds satisfactory to Payee wired to the Payee ABA #026-00-9823 with
designation of what such payment is for, or to any other office, branch or
affiliate of Payee hereafter selected and notified to Maker from time to time by
Payee. All payments of principal and interest on this Renewal Mortgage Note
shall be made to Payee in such funds not later than 3:00 p.m. New York City time
on the date such payment is due. Any payment received after 3:00 p.m. shall be
deemed received by Payee on the following Business Day.
The failure of Payee to exercise the option for acceleration following
any Event of Default, or to exercise any other option or remedy granted to it
under the Loan Agreement, the Mortgage or any other Loan Document in any one or
more instances, or the acceptance by Payee of partial payments or partial
performance, shall not constitute a waiver of any such default, but such options
shall remain continuously in force while such default is outstanding.
Acceleration of maturity, once claimed hereunder by Payee, may, at the option of
Payee, be rescinded by written acknowledgement to that effect, but the tender
and acceptance of partial payment or partial performance alone shall not in any
way affect or rescind such acceleration of the Repayment Date.
The remedies of the holder hereof as provided in the Loan Documents
shall be cumulative and concurrent, and may be pursued singly, successively or
together at the sole discretion of the holder hereof, and may be exercised as
often as occasion therefor shall occur; and the delay, omission or failure to
exercise any such right, privilege or remedy under this Renewal Mortgage Note
shall in no event impair such right, privilege or power or be construed as a
waiver or release of any default or acquiescence therein. Any single or partial
exercise of any right, privilege or power shall not preclude any other or
further exercise thereof or the exercise of any other right, privilege or power.
Nothing herein contained shall be construed as limiting the holder of this
Renewal Mortgage Note to the remedies mentioned above.
Maker hereby waives and releases, to the extent permitted by law, any
benefits that might accrue to Maker by virtue of any present or future laws
exempting the Mortgaged Property (as defined in the Mortgage) or any other
property, real or personal, or any part of the proceeds arising from any sale of
any such property, from attachment, levy or sale under execution, exemption from
civil process or extension of time for payment; and Maker agrees that any
property that may be levied upon pursuant to a judgment obtained by virtue of
this Renewal Mortgage Note, or any writ of execution issued thereon, may be sold
upon any such writ in whole or in part in any order desired by Payee.
Notwithstanding any contrary provision of the Renewal Mortgage Note,
it is hereby expressly agreed that except as provided in the remaining sentences
of this paragraph, neither Maker, any partner in Maker, any legal
representative, successor or assign of Maker or any such partner, nor any
officer, director, shareholder of or partner in Maker or any such
-3-
<PAGE>
partner nor any other principal in Maker or in any partner in Maker, whether
disclosed or undisclosed, shall have any personal liability for (i) the payment
of any sum of money which is or may be payable hereunder or under any other Loan
Document to which Maker is a party or (ii) the performance or discharge of any
covenants or undertakings of Maker hereunder or under any of the Loan Documents,
and in the event of any Event of Default or any default or event of default
under any other Loan Document, Payee shall proceed solely against the Mortgaged
Property and any other collateral given as security for payment hereof, and
Payee shall not seek or claim recourse against Maker or any partner in Maker,
any legal representative, successor or assign of Maker or any such partner or
any officer, director, shareholder of or partner in Maker or any such partner or
any other principal in Maker or in any partner in Maker, whether disclosed or
undisclosed, for any deficiency or any personal judgment after a foreclosure of
the lien of the Mortgage or the Assignment of Rents, or both, or for the
performance or discharge of any covenants or undertakings of Maker hereunder or
under the Loan Agreement or any other Loan Document. Notwithstanding the
foregoing, nothing contained in this paragraph shall (a) impair the validity of
the indebtedness evidenced hereby or in any way affect or impair the lien of the
Mortgage or the right of any holder hereof or secured party under the Mortgage
to foreclose the Mortgage following an Event of Default in accordance with
Section 3 thereof or prevent Payee or any holder hereof from exercising any
rights or remedies under any of the Loan Documents or any of the other Related
Documents against Maker, the Mortgaged Property or any other collateral or (b)
relieve Maker or any partner in Maker of any personal liability for any loss,
cost, expense, damage or liability, including, without limitation, reasonable
attorney's fees and disbursements, suffered or incurred by Payee arising out of
or resulting from (x) any representation or warranty contained in any of the
Loan Documents made by Maker or any such partner having been false or incorrect
in a material respect when made and having been made with fraudulent intent, (y)
any amount distributed to any partner in Maker in violation of any provision of
any of the Loan Documents or (z) fraud or breach of trust, including, but not
limited to, misapplication of loan proceeds advanced hereunder or pursuant to
the Loan Agreement or any insurance proceeds or condemnation awards or other
sums which are part of the Mortgaged Property that may come into Maker's
possession or control or (c) relieve Maker or any partner in Maker of any
personal liability under the Environmental Indemnity. The provisions of this
paragraph shall not, however, affect any separate guaranty or similar
undertaking with respect to all or any part of the indebtedness evidenced hereby
or any subsequent assumption of the obligations with respect to such
indebtedness or the Mortgage.
No reference in this Renewal Mortgage Note to, and no provisions of,
any of the other documents or instruments herein described shall alter or
impair the obligation of Maker to pay the principal of, and interest on, this
Renewal Mortgage Note, at the time and place and at the rates and in the monies
and funds described in this Renewal Mortgage Note, in accordance with the terms
hereof.
Notwithstanding anything to the contrary contained herein, Payee shall
not charge, take or receive and Maker shall not be obligated to pay to Payee,
any amounts constituting interest on the principal amount hereof in excess of
the maximum rate permitted by applicable law.
-4-
<PAGE>
This Renewal Mortgage Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Renewal Mortgage Note may not be modified or discharged orally,
but only by an agreement in writing executed by the party against whom
enforcement of any modification or discharge is sought.
Whenever used herein the singular number shall include the plural and
the plural shall include the singular, the use of any gender shall be applicable
to all genders, and the words "Payee" and "Maker" shall be deemed to include the
respective successors and assigns thereof.
IN WITNESS WHEREOF, Maker intending to be legally bound by this
Renewal Mortgage Note, has caused this Renewal Mortgage Note to be executed as
of the day and year first above written.
MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP
By: Hotel Properties Management, Inc.,
General Partner, a Delaware
corporation
By:_____________________________________
Name:
Title:
-5-
<PAGE>
EXHIBIT B
LEGAL DESCRIPTION
Parcel 1A:
Commence at the Southeast corner of Section 28, Township 24 South, Range 28
East, Orange County, Florida: thence North 89 degrees 54'15" West 1,720.86 feet
along the South line of said Section 28; thence North 00 degrees 05'45" East
111.08 feet; thence North 44 degrees 56'22" East 31.38 feet for a Point of
Beginning; thence continue North 44 degrees 56'22" East 215.43; thence North 89
degrees 56'22" East 4.95 feet; thence South 44 degrees 56'22" West 220.00
feet; thence North 28 degrees 02'24" West 3.66 feet to the Point of Beginning.
AND
Parcel 1B:
Commence at the Southeast corner of Section 28, Township 24 South, Range 28
East, Orange County, Florida, thence North 89 degrees 54'15" West 1,720.86 feet
along the South line of said Section 28; thence North 00 degrees 05'45" East
111.08 feet; thence North 28 degrees 02'24" West 323.96 feet; thence North 60
degrees 54'13" West 26.21 feet; thence North 14 degrees 32'25" West 189.43
feet; thence North 28 degrees 02'24" West 108.97 feet for a Point of Beginning;
thence continue North 28 degrees 02'24" West 20.24 feet; thence North
28 degrees 10'01" East 286.07 feet; thence South 81 degrees 17'50" East 649.40
feet; thence South 19 degrees 24'36" East 17.39 feet; thence North
81 degrees 17'50" West 645.17 feet; thence South 28 degrees 10'01" West 287.01
feet to the Point of Beginning.
AND (PARCEL 1B2)
A part of Lots 10 and 11, W.R. MUNGERLAND COMPANY SUBDIVISION as recorded in
Plat Book "E", Page 22, Public Records of Orange County, Florida, being more
particularly described as follows:
Commence at the Northwest corner of the East 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34, Township 24 South, Range
28 East, Orange County, Florida; thence South 00 degrees 02'50" East along the
West line of the East 1/2 of the Northwest 1/4 of the Northeast 1/4 of the
Northwest 1/4 of said Section 34, for 519.44 feet to the Point of Beginning;
thence continue South 00 degrees 02'50" East along said West line for 169.24
feet to the Southwest corner of the East 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34; thence North
89 degrees 54'25" East for 371.29 feet; thence North 08 degrees 23'23" West for
200.32 feet; thence North 36 degrees 36'35" East for 75.55 feet; thence North
03 degrees 18'22" East for 101.06 feet; thence North 45 degrees 03'36" West for
162.94 feet; thence South 89 degrees 56'22" West for 109.51 feet; thence South
00 degrees 03'38" East for 49.94 feet; thence South 40 degrees 19'50" West for
19.55 feet; thence South 11 degrees 36'45" East for 24.61 feet; thence South
44 degrees 00'34" West for 33.15 feet; thence South 30 degrees 00'01" West for
213.64 feet; thence South 74 degrees 59'58" West for 31.82 feet to the Point of
Beginning.
<PAGE>
[Legal Description Continued]
AND
Legal Description (Overall) (PARCEL 1B3)
Beginning at the Northwest corner of Section 34, Township 24 South, Range 28
East, Orange County, Florida, run North 89 degrees 56'22" East along the North
line of said Section 34 1,660.01 feet to the West line of the East 1/2 of the
Northwest 1/4 of the Northeast 1/4 of the Northwest 1/4 of said Section 34;
thence run South 00 degrees 02'50" East 688.68 feet along said West line to the
Southwest corner of East 1/2 of the Northwest 1/4 of the Northeast 1/4 of the
Northwest 1/4 of Section 34; thence run North 89 degrees 54'25" East 894.08 feet
along the South line of the North 1/2 of the Northeast 1/4 of the Northwest 1/4
of Section 34 to a point on the Westerly right of way line of State Road No.
535 as shown on the preliminary State of Florida Department of Transportation
right of way Map Section 75000-2550; thence run South 37 degrees 06'03" East
165.65 feet along said right of way line to a point on the West Line of the
Northwest 1/4 of the Northeast 1/4 of Section 34; thence leaving said right of
way line run South 00 degrees 05'58" West 555.81 feet along said West line to
the Southwest corner of the Northwest 1/4 of the Northeast 1/4 of Section 34;
thence run North 89 degrees 50'57" East along the South line of the Northwest
1/4 of Northeast 1/4 of said Section 34, a distance of 297.93 feet to a point on
the aforementioned right of way line of State Road 535; thence South 27 degrees
45'52" West 103.89 feet to a point on the North right of way line of I-4 (Disney
World) interchange as shown on the aforementioned right of way map; thence run
along said right of way the following courses and distances; thence North 86
degrees 56'56" West 946.89 feet; thence North 88 degrees 56'18" West 600.80
feet; thence North 85 degrees 58'50" West 2,687.55 feet; thence North 78 degrees
33'11" West 518.52 feet to the point of curvature of a curve concave
Northeasterly having a radius of 740.00 feet and a central angle of 82 degrees
28'00"; thence from a tangent bearing of North 81 degrees 58'50" West run
Northerly along the arc of said curve 1,065.09 feet to a point; thence from a
tangent bearing of North 00 degrees 29'10" East run North 00 degrees 56'39" West
376.89 feet to the South line of Section 28, Township 24 South, Range 28 East;
thence continue along aforementioned right of way line North 00 degrees 59'09"
West 552.72 feet to the point of curvature of a curve concave Southeasterly
having a radius of 900.0 a central angle of 38 degrees 00'00"; thence from a
tangent bearing of North 00 degrees 29'10" East run Northeasterly along the arc
of said curve 596.90 feet to a point; thence run North 36 degrees 53'3** East
279.66 feet to a point, said point being the Northwest corner of lands conveyed
by Warranty Deed recorded in O.R. Book 3330, Page 1280, of the Public Records of
Orange County, Florida; thence departing the Easterly right of way line of
Interstate 4 (S.R. #400 run along the Northerly line of those previously
conveyed lands (O.R. Book 3330, Page 1280) the following courses and distances;
South 89 degrees 47'18" East a distance of 1,246.98 feet to an intersection with
the arc of a curve concave Northeast and having a radius of 415.0* feet; run
thence Southeast along the arc of said curve through a central angle of 31
degrees 41'1** a distance of 229.50 feet to an intersection with the Westerly
line of that parcel described in O.R. Book 3287, Page 1946, of the Public
Records of Orange County, Florida; thence South 00 degrees 24'05" West along
said Westerly line 956.50 feet to the South line of said parcel; thence South 89
degrees 43'50" East along said South line 660.00 feet to the East line of said
parcel and the East line of Section 28, Township 24 South, Range 28 East; thence
South 00 degrees 24'05" West along said Section line 330.92 feet to the Point of
Beginning.
LESS AND EXCEPTING the Condominium site described as follows:
Legal Description (Condominium Site)
For a point of reference commence at the Northwest corner of Section 34,
Township 24 South, Range 28 East of Orange County, Florida; thence run North 89
degrees 56'22" East along the North line of said Section 34 a distance of
1,660.01 feet; to the West line of the East * of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34; thence run South 00
degrees 02'50" East 688.68 feet along said West line to the Southwest corner of
said East 1/2 of the Northwest 1/4 of the Northeast 1/4 of the Northwest 1/4 of
Section 34; thence run North 89 degrees 54'25" East 894.08 feet along the South
line of the North 1/2 of the Northeast 1/4 of the Northwest 1/4 of Section 34 to
a point on the Westerly right of way line of State Road No. 535 as shown on the
preliminary State of Florida Department of Transportation right of way Section
75000-2520; thence run South 37 degrees 06'03" East 165.65 feet
-**-
<PAGE>
[Legal Description Continued]
along said right of way line to a point on the West line of the Northwest 1/4 of
the Northeast 1/4 of Section 34; thence leaving said right of way line run South
00 degrees 05'58" West 555.81 feet along said West line to the Southwest corner
of the Northwest 1/4 of the Northeast 1/4 of Section 34; thence run North 89
degrees 50'57" East along the South line of the Northwest 1/4 of the Northeast
1/4 of said Section 34 a distance of 297.93 feet to a point on the
aforementioned right of way line of State Road No. 535; thence run South 27
degrees 45'52" West 103.89 feet to a point on the Northerly right of way line of
I-4 (Disney World) Interchange as shown on aforementioned right of way map;
thence run along said right of way line the following courses and distances;
thence North 86 degrees 56'56" West 946.89 feet; thence North 88 degrees 56'18"
West 600.80 feet; thence run North 85 degrees 58'50" West a distance of 358.65
feet; thence leaving said North right of way line from a chord bearing of North
08 degrees 16'44" West run Northwesterly a distance of 147.74 feet along the arc
of a non-tangent curve concave to the Southwest and having a radius of 460.68
feet and a central angle of 18 degrees 22'28" to a point on a non-tangent curve
concave to the Southwest and having a radius of 466.68 feet; thence run
Northwesterly a distance of 163.65 feet, along the arc of said curve through a
central angle of 20 degrees 05'31" to a point on a non-tangent curve concave to
the Southwest and having a radius of 475.18 feet; thence run Northwesterly a
distance of 388.32 feet along the arc of said curve through a central angle of
46 degrees 49'21"; thence run North 84 degrees 19'24" West a distance of 465.36
feet to the point of curvature of a curve concave South said curve having a
radius of 1,299.38 feet; thence run Westerly along the arc of said curve through
a central angle of 05 degrees 44'14" for a distance of 130.11 feet; thence run
South 89 degrees 56'22" West a distance of 37.00 feet; thence run North 00
degrees 03'38" West a distance of 270.03 feet to the point of curvature of a
curve concave Southeast, said curve having a radius of 121.48 feet; thence run
Northeasterly along the arc of said curve through a central angle of 34 degrees
00'00" a distance of 72.09 feet to the point of reverse curvature of a curve
concave Northwesterly said curve having a radius of 298.79 feet; thence run
Northerly along the arc of said curve through a central angle of 36 degrees
46'40" a distance of 191.80 feet to the point of compound curvature of a curve
concave Southwesterly; said curve having a radius of 131.00 feet; thence run
Northwesterly along the arc of said curve through a central angle of 44 degrees
43'20" a distance of 102.25 feet; thence run North 47 degrees 33'38" West a
distance of 153.92 feet; thence run North 45 degrees 03'38" West a distance of
185.41 feet to the point of a curvature of a curve concave Southerly, said curve
having a radius of 201.00 feet; thence run Westerly along the arc of said curve
through a central angle of 90 degrees 00'00" a distance of 315.73 feet; thence
run South 44 degrees 56'22" West a distance of 73.87 feet to the point of
curvature of a curve concave Nortwesterly, said curve having a radius of 169.00
feet; thence run Westerly along the arc of said curve through a central angle of
45 degrees 00'00" for a distance of 132.73 feet; thence run South 89 degrees
56'22" West a distance of 282.34 feet to the point of a curvature of a curve
concave Northeasterly, said curve a radius of 169.00 feet; thence run
Northwesterly along the arc of said curve through a central angle of 45 degrees
00'00" having a distance of 132.73 feet; thence run North 45 degrees 03'38" West
a distance of 120.87 feet to the point of curvature of a curve concave
Southwesterly, said curve having a radius of 75.15 feet; thence run
Northwesterly along the arc of said curve through a central angle of 45 degrees
00'00" a distance of 59.03 feet to the point of reverse curvature of a curve
concave Northeasterly said curve having a radius of 113.15 feet; thence run
Northwesterly along the arc of said curve through a central angle of 45 degrees
00'00" a distance of 88.87 feet; thence run North 45 degrees 03'38" West a
distance of 114.02 feet to the point of curvature of a curve concare to the
Northeast, said curve having a radius of 159.00 feet; thence run along the arc
of said curve through a central angle of 38 degrees 30'25" a distance of 106.86
feet to the Point of Beginning; thence run South 44 degrees 56'22" West a
distance of 194.57 feet; thence run North 28 degrees 02'24" West a distance of
272.00 feet; thence run North 60 degrees 54'13" West 81.49 feet; thence run
North 14 degrees 32'25" West a distance of 189.43 feet; thence run North 28
degrees 02'24" West, a distance of 129.21 feet; thence run North 28 degrees
10'01" East 286.07 feet; thence run South 81 degrees 17'50" East a distance of
649.40 feet; thence run South 19 degrees 24'36" East a distance of 197.54 feet;
thence run South 09 degrees 09'54" West a distance of 169.98 feet; thence run
South 89 degrees 56'22" West a distance of 277.00 feet; thence run South 00
degrees 03'38" East a distance of 220.92 feet; thence run South 89 degrees
56'22" West a distance of 76.00 feet; thence run South 44 degrees 56'22" West a
distance of 25.43 feet to the Point of Beginning.
-3-
<PAGE>
[Legal Description Continued]
LESS:
Real property situate in Orange County, Florida, more particularly described as
follows:
PARCEL 2A:
Commence at the Southeast corner of Section 28, Township 24 South, Range 28
East. Orange County, Florida, thence North 89 degrees 54'15" West 1,720.86 feet
along the South line of said Section 28, thence North 00 degrees 05'45" East
111.08 feet for a point of beginning; thence North 28 degrees 02'24" West 323.96
feet; thence South 60 degrees 54'13" East 55.28 feet; thence South 28 degrees
02'24" East 268.33 feet; thence South 44 degrees 56'22" West 31.38 feet to the
Point of Beginning.
AND ALSO LESS:
PARCEL 2B1:
Commence at the Southeast corner of Section 28. Township 24 South, Range 28
East, Orange County, Florida; thence North 89 degrees 54'15" West 1,720.86 feet
along the South line of said Section 28; thence North 00 degrees 05'45" East
111.08 feet; thence North 44 degrees 56'22" East 246.80 feet; thence North 89
degrees 56'22" East 80.95 feet for a Point of Beginning; thence North 00 degrees
03'38" West 220.82 feet; thence North 89 degrees 56'22" East 30.00 feet; thence
South 00 degrees 03'38" East 220.82 feet; thence South 89 degrees 56'22" West
30.00 feet to the Point of Beginning.
AND ALSO LESS: (PARCEL 2B2)
A part of the Northwest 1/4 of Section 34, Township 24 South, Range 28 East,
Orange County, Florida being more particularly described as follows:
Begin at the Northeast corner of the West 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said section 34, Township 24 South, Range
28 East, Orange County, Florida; thence South 00 degrees 02'50" East along the
East line of the West 1/2 of the Northwest 1/4 of the Northeast 1/4 of the
Northwest 1/4 of said Section 34 for 519.44 feet; thence South 74 degrees 59'58"
West for 131.81 feet; thence South 89 degrees 56'29" West for 90.29 feet; thence
North 52 degrees 50'29" West for 71.41 feet; thence North 41 degrees 49'03" East
for 85.76 feet; thence North 00 degrees 02'50" West for 87.26 feet; thence North
45 degrees 02'50" West for 15.85 feet; thence North 00 degrees 02'50" West for
96.96 feet; thence North 45 degrees 02'50" West for 28.27 feet; thence North 00
degrees 02'50 West for 118.10 feet; thence North 89 degrees 56'22" East for
123.89 feet to a point on a curve concave Southeasterly, a radial line to said
point bearing North 56 degrees 47'44" West; thence Northeasterly along the arc
of said curve having a radius of 143.00 feet, through a central angle of 43
degrees 24'07" for 108.32 feet to the point of tangency; thence North 76 degrees
36'22" East for 8.23 feet; thence North 00 degrees 02'50" West for 50.24 feet to
the North line of said Section 34; thence North 89 degrees 56'22" East along
said North line for 30.00 feet to the Point of Beginning.
AND ALSO LESS: (PARCEL 2B3)
A part of the South 1/2 of the Northeast 1/4 of the Northwest 1/4, Section 34,
Township 24 South, Range 28 East, Orange County, Florida, being more
particularly described as follows:
Begin at the Intersection of the South line, Lots 9 and 10. W.R. MUNGER
SUBDIVISION, Plat Book "E", Page 22, Public Records, Orange County, Florida with
the West right of way line of State Road 535 (Section 75000-2520); thence South
37 degrees 06'03" East along said West right of way line for 95.24 feet; thence
South 52 degrees 53'57" West for 78.00 feet; thence North 82 degrees 06'36" West
for 35.64 feet; thence North 37 degrees 06'03" West for 86.48 feet; thence
South 89 degrees 54'25" West for 311.32 feet; thence North 00 degrees 05'35"
West for 49.00 feet; thence North 89 degrees 54'25" East for 403.63 feet to the
Point of Beginning.
-4-
<PAGE>
[Legal Description Continued]
LESS AND EXCEPT THE FOLLOWING PARCELS OF LAND:
LEGAL DESCRIPTION: (PARCEL 2B3)
A portion of the Northeast 1/4 of the Northwest 1/4 and that part of Area "E".
ROYAL PALMS CONDOMINIUM, as recorded in Condominium Book 15, Pages 91 through
103, situated in Section 34, Township 24 South, Range 28 East, of the Public
Records of Orange County, Florida, being more particularly described as
follows:
Commence at the Northeast corner of the West 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34, Township 24 South, Range
28 East, Orange County, Florida: thence South 89 degrees 56'22" West along the
North line of said Section 34, a distance of 30.00 feet; thence departing said
North line run South 00 degrees 02'50" East 50.24 feet; thence South 76 degrees
36'22" West 8.23 feet to the point of curvature of a curve concave Southeasterly
and having a radius of 143.00 feet; thence run Southwesterly along the arc of
said curve 108.32 feet through a central angle of 43 degrees 24'07" to a point
on said curve; thence departing said curve run South 89 degrees 56'22" West
along the North line of Area "G" of the aforesaid ROYAL PALMS CONDOMINIUM and a
projection thereof a distance of 123.89 feet to the Northwest corner of said
Area "G"; thence South 00 degrees 02'50" East along the Westerly line of said
Area "G", a distance of 28.16 feet to the Northeast corner of said Area "E",
said point also being the Point of Beginning; thence run along the Easterly line
of said Area "E" the following courses and distances: South 00 degrees 02'50"
East 89.94 feet; thence South 45 degrees 02'50" East 28.27 feet; thence South 00
degrees 02'50" East 96.96 feet; thence South 45 degrees 02'50" East 15.85 feet
to the Southwest corner of said Area "G"; thence South 00 degrees 02'50" East
along the Easterly line of the aforementioned Area "E" a distance of 87.26 feet;
thence continue along said Easterly line of said Area "E" the following courses
and distances: South 41 degrees 49'03" West 85.76 feet to a point on a curve
concave Northwesterly and having a radius of 732.58 feet; thence from a chord
bearing of South 45 degrees 37'46" West run Southwesterly along the arc of said
curve 11.66 feet through a central angle of 00 degrees 54'44" to a point on said
curve; thence departing said curve and said Easterly line of Area "E", run South
89 degrees 58'58" West 147.58 feet; thence North 00 degrees 01'02" West 12.71
feet; thence North 49 degrees 08'17" West 47.12 feet; thence North 40 degrees
51'43" East 20.39 feet; thence North 64 degrees 59'35" West 23.00 feet; thence
South 49 degrees 12'28" West 28.08 feet; thence North 64 degrees 50'27" West
65.89 feet to the point of curvature of a curve concave Northeasterly and having
a radius of 30.00 feet; thence run Northwesterly along the arc of said cure
47.20 feet through a central angle of 90 degrees 08'16" to the point of
tangency; thence North 25 degrees 17'49" East 129.17 feet to the point of
curvature of a curve concave Southeasterly and having a radius of 144.00 feet;
thence run Northeasterly along the arc of said curve 112.37 feet through a
central angle of 44 degrees 42'36" to the point of tangency; thence North 70
degrees 00'25" East 118.55 feet to the point of curvature of a curve concave
Northwesterly and having a radius of 36.00 feet; thence run Northeasterly along
the arc of said curve 38.14 feet through a central angle of 60 degrees 41'57" to
a point on said curve, said point also being on the North line of the
aforementioned Area "E", thence North 89 degrees 59'31" East along said North
line 49.28 feet to the Point of Beginning.
TOGETHER WITH
LEGAL DESCRIPTION: (RECREATIONAL PARCEL 2) (PARCEL 2B5)
That part of Area "E", ROYAL PALMS CONDOMINIUM, as recorded in Condominium Book
15, Pages 91 through 103, situated in Section 34, Township 24 South, Range 28
East, of the Public Records of Orange County, Florida, being more particularly
described as follows:
-5-
<PAGE>
[Legal Description Continued]
Commence at the Northeast corner of the West 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34, Township 24 South, Range
28 East, Orange County, Florida, thence South 89 degrees 56'22" West along the
North line of said Section 34, a distance of 30.00 feet; thence departing said
North line run South 00 degrees 02'50" East 50.24 feet; thence South 76 degrees
36'22" West 8.23 feet to the point of curvature of a curve concave Southeasterly
and having a radius of 143.00 feet; thence run Southwesterly along the arc of
said curve 108.32 feet through a central angle of 43 degrees 24'07" to a point
on said curve; thence departing said curve run South 89 degrees 56'22" West
along the North line of Area "G" of the aforesaid ROYAL PALMS CONDOMINIUM and a
projection thereof a distance of 123.89 feet to the Northwest corner of said
Area "G"; thence run along the Westerly line of said Area "G" the following
courses and distances: South 00 degrees 02'50" East 118.10 feet; thence South 45
degrees 02'50" East 28.27 feet; thence South 00 degrees 02'50" East 96.96 feet;
thence South 45 degrees 02'50" East 15.85 feet to the Southwest corner of said
Area "G"; thence South 00 degrees 02'50" East along the Easterly line of said
Area "E" a distance of 87.26 feet; thence run along said Easterly line of said
Area "E" the following courses and distances: South 41 degrees 49'03" West 85.76
feet to a point on a curve concave Northwesterly and having a radius of 732.58
feet; thence from a chord bearing of South 45 degrees 37'46" West run
Southwesterly along the arc of said curve 11.66 feet through a central angle of
00 degrees 54'44" to a point on said curve; thence departing said curve and said
Easterly line of Area "E", run South 89 degrees 58'58" West 147.58 feet for a
Point of Beginning; said point being a point on a curve concave Northwesterly
and having a radius of 21.33 feet; thence from a chord bearing of South 52
degrees 31'54" West run Southwesterly along the arc of said curve 38.94 feet
through a central angle of 104 degrees 35'33" to the point of reverse curvature
of a curve concave Southeasterly and having a radius of 18.67 feet; thence run
Southwesterly along the arc of said curve 18.06 feet through a central angle of
55 degrees 25'26" to the point of reverse curvature of a curve concave
Northeasterly and having a radius of 21.33 feet; thence run Northwesterly along
the arc of said curve 60.66 feet through a central angle of 162 degrees 54'58"
to the point of reverse curvature of a curve Westerly and having a radius of
18.67 feet; thence run Northerly along the arc of said curve 18.06 feet through
a central angle of 55 degrees 25'26" to the point of reverse curvature of a
curve concave Southeasterly and having a radius of 21.33 feet; thence run
Northeasterly along the arc of said curve 33.59 feet through a central angle of
90 degrees 12'33" to a point on said curve; thence departing said curve run
North 39 degrees 40'08" West 2.35 feet; thence North 49 degrees 12'28" East
28.08 feet; thence South 64 degrees 59'35" East 23.00 feet; thence South 40
degrees 51 degrees 51'43" West 20.39 feet; thence South 49 degrees 08'17" East
47.12 feet; thence South 00 degrees 01'02" East 12.71 feet to the Point of
Beginning.
THE SAME BEING DESCRIBED AS
LEGAL DESCRIPTION-MARRIOTT WORLD
A parcel of land lying within Sections 28, 33 and 34, Township 24
South, Range 28 East, Orange County, Florida, being more particularly
described as follows:
BEGINNING at Northwest corner of Section 34, Township 24 South, Range
28 East, Orange County Florida; thence N89 degrees 56'22"E along the
North line of said Section 34 for 1630.01 feet to the West line of
Area "B", ROYAL PALMS CONDOMINIUM as recorded in Condominium Book 16,
Page 144, Public Records Orange County, Florida; thence along the West
line of said Area "B" the following four courses; thence S00 degrees
02'50"E for 50.24 feet; thence S76 degrees 36'22"W for 8.23 feet to
the point of curvature of a curve concave Southeasterly; thence
Southwesterly along the arc of said curve having a radius of 143.00
feet and a chord bearing of S54 degrees 54'19"W, through a central
angle of 43 degrees 24'07" for 108.32 feet to the point of
intersection with a non-tangent line; thence S89 degrees 56'22"W for
33.41 feet to the Northeast corner of Area "G", ROYAL PALMS
CONDOMINIUM as recorded in Condominium Book 15, Page 91, Public
Records Orange County, Florida; thence continue S89 degrees 56'22"W
along the North line of said Area "G" for 90.48 feet to the Northwest
corner of said Area "G"; thence S00 degrees 02'50"E along the West
line of said Area "G" for 28.16 feet to the Northeast corner of Area
"E", ROYAL PALMS CONDOMINIUM as recorded in Condominium Book 15, Page
91, Public Records
-6-
<PAGE>
[Legal Description Continued]
Orange County, Florida; thence S89 degrees 59'31"W along the North line of said
Area "E" for 49.28 feet to a point of intersection with a non-tangent curve
concave Northwesterly; thence leaving said North line, run Southwesterly along
the arc of said curve having a radius of 36.00 feet and a chord bearing of S39
degrees 39'27"W, through a central angle of 60 degrees 41'57" for 38.14 feet to
the point of tangency; thence S70 degrees 00'25"W for 118.55 feet to the point
of curvature of a curve concave Southeasterly; thence Southwesterly along the
arc of said curve having a radius of 144.00 feet and a chord bearing of S47
degrees 39'07"W, through a central angle of 44 degrees 42'36" for 112.37 feet to
the point of tangency; thence S25 degrees 17'49"W for 129.17 feet to the point
of curvature of a curve concave Easterly; thence Southeasterly along the arc of
said curve having a radius of 30.00 feet and a chord bearing of S19 degrees
46'19"E, through a central angle of 90 degrees 08'16" for 47.20 feet to the
point of tangency; thence S64 degrees 50'27"E for 65.89 feet; thence S39 degrees
40'08"E for 2.35 feet to a point of Intersection with a non-tangent curve
concave Easterly; thence Southeasterly along the arc of said curve having a
radius of 21.33 feet and a chord bearing of S22 degrees 00'08"W, through a
central angle of 90 degrees 12'33" for 33.59 feet to the point of reverse
curvature of a curve concave Westerly; thence Southerly along the arc of said
curve having a radius of 18.67 feet and a chord bearing of S04 degrees 36'29"W
through a central angle of 55 degrees 25'26" for 18.06 feet to a point of
reverse curvature of a curve concave Northeasterly; thence Southeasterly along
the arc of said curve having a radius of 21.33 feet and a chord bearing of S49
degrees 08'17"E, through a central angle of 162 degrees 54'58" for 60.66 feet to
the point of reverse curvature of a curve concave Southerly; thence
Northeasterly along the arc of said curve having a radius of 18.67 feet and a
chord bearing of N77 degrees 06'57"E, through a central angle of 55 degrees
25'26" for 18.06 feet to a point of reverse curvature of a curve concave
Northwesterly; thence Northeasterly along the arc of said curve having a radius
of 21.33 feet and a chord bearing of N52 degrees 31'54"E, through a central
angle of 104 degrees 35'33" for 38.94 feet to the point of intersection with a
non-tangent line; thence N89 degrees 58'58"E for 147.58 feet to a point of
intersection with a non-tangent curve concave Northwesterly and being a point on
the South line of said Area "E", ROYAL PALMS CONDOMINIUM; thence Northeasterly
the South line of said Area "E", along the arc of said curve having a radius of
732.58 feet and a chord bearing of N45 degrees 37'46"E, through a central angle
of 00 degrees 54'44" for 11.66 feet to the Southwest corner of Area "B", ROYAL
PALMS CONDOMINIUM as recorded in Condominium Book 16, Page 144, Public Records
Orange County, Florida; thence along the South line of said Area "B" the
following four courses; thence S52 degrees 50'29"E for 71.41 feet; thence N89
degrees 56'29"E for 90.29 feet; thence N74 degrees 59'58"E for 163.63 feet;
thence N30 degrees 00'01"E for 150.00 feet to the Southeast corner of Area "F",
ROYAL PALMS CONDOMINIUM as recorded in Condominium Book 15, Page 91, Public
Records Orange County, Florida; thence along the East line of said Area "F" the
following five courses; thence N30 degrees 00'01"E for 63.64 feet; thence N44
degrees 00'34"E for 33.15 feet; thence N11 degrees 36'45"W for 24.61 feet;
thence N40 degrees 19'50"E for 19.55 feet; thence N00 degrees 03'38"W for 49.94
feet to the Southwest corner of Area "A", ROYAL PALMS CONDOMINIUM as recorded in
Condominium Book 15, Page 91, Public Records Orange County, Florida; thence
along the South line of said Area "A" the following two courses; thence N89
degrees 56'22"E for 109.51 feet; thence S45 degrees 03'36"E for 162.94 feet to
the Northwest corner of Area "C", ROYAL PALMS CONDOMINIUM as recorded in
Condominium Book 16, Page 42, Public Records Orange County, Florida; thence
along the West line of said Area "C" the following three courses; thence S03
degrees 18'22"W for 101.06 feet; thence S36 degrees 36'35"W for 75.55 feet;
thence S08 degrees 23'25"E for 200.32 feet to a point on the South line of the
North 1/2 of the Northeast 1/4 of the Northwest 1/4 of Section 34, Township 24
South, Range 28 East, Orange County, Florida; thence N89 degrees 54'25"E along
said South line and along the South line of Area "C", ROYAL PALMS CONDOMINIUM
for 119.16 feet to a point on the West line of Area "D", ROYAL PALMS CONDOMINIUM
as recorded in Condominium Book 16, Page 69, Public Records Orange County,
-7-
<PAGE>
[Legal Description Continued]
Florida: thence S00 degrees 05'35"E along the West line of said Area "D" for
49.00 feet to the South line of said Area "D"; thence along the South line of
said Area "D" the following four courses; thence N89 degrees 54'25"E for 311.32
feet; thence S37 degrees 06'03"E for 86.48 feet; thence S82 degrees 06'36"E for
35.64 feet; thence N52 degrees 53'57"E for 78.00 feet to a point on the Westerly
right-of-way line of State Road No.535 as shown on the preliminary State of
Florida Department of Transportation right-of-way Map Section 75000-2528; thence
departing the South line of said Area "D", ROYAL PALMS CONDOMINIUM, S37 degrees
06'03"E along said West right-of-way line for 70.41 feet to a point on the West
line of the Northwest 1/4 of the Northeast 1/4 of said Section 34; thence S00
degrees 05'58"W along said West line for 555.81 feet to the Southwest corner of
the Northwest 1/4 of the Northeast 1/4 of said Section 34; thence N89 degrees
50'57"E along the South line of the Northwest 1/4 of the Northeast 1/4 of
Section 34 for 297.93 feet to a point on the aforementioned right-of-way line of
State Road No. 535; thence S27 degrees 45'52"W along said West right-of-way line
for 103.89 feet to a point on the North right-of-way line of State Road No.563
as shown on the aforementioned right-of-way map; thence along said right-of-way
the following nine courses; thence N86 degrees 56'56"W for 946.89 feet; thence
N88 degrees 56'18"W for 600.80 feet; thence N85 degrees 58'50"W for 2687.55
feet; thence N78 degrees 33'11"W for 518.52 feet to a point of intersection with
a non-tangent curve concave Northeasterly; thence Westerly and Northerly along
the arc of said curve having a radius of 740.00 feet and a chord bearing of N40
degrees 44'50"W, through a central angle of 82 degrees 28'00" for 1065.09 feet
to the point of Intersection with a non-tangent line; thence N00 degrees 56'39"W
for 376.89 feet to the South line of Section 28, Township 24 South, Range 28
East, Orange County, Florida; thence continue along aforementioned right-of-way
line N00 degrees 59'09"W for 552.72 feet to a point of intersection with a non-
tangent curve concave Easterly; thence Northerly along the arc of said curve
having a radius of 900.00 feet and a chord bearing of N19 degrees 29'10"E,
through a central angle of 38 degrees 00'00" for 596.90 feet to the point of
intersection with a non-tangent line; thence N36 degrees 53'33"E for 279.66 feet
to the Northwest corner of lands conveyed by Warranty Deed as recorded in
Official Records Book 3330, Page 1280. Public Records Orange County, Florida;
thence departing said Easterly right-of-way line of Interstate 4 (State Road
"400), S89 degrees 47'18"E along the North line of said conveyed lands for
1246.98 feet to a point of intersection with a non-tangent curve concave
Northerly; thence Easterly along said conveyed lands along the arc of said curve
having a radius of 415.00 feet and a chord bearing of S80 degrees 23'45"E,
through a central angle of 31 degrees 41'10" for 229.50 feet to the point of
Intersection with the Westerly line of that parcel described in Official Records
3287, Page 1946, Public Records Orange County, Florida; thence S00 degrees
24'05"W along said Westerly line for 956.50 feet to the South line of said
parcel; thence S89 degrees 43'50"E along said South parcel line for 660.00 feet
to the East line of said parcel and the East line of Section 28, Township 24
South, Range 28 East, Orange County, Florida; thence S00 degrees 24'05"W along
said East Section line for 330.92 feet to the POINT OF BEGINNING.
LESS THE FOLLOWING (SABAL PALM CONDOMINIUM)
SABAL PALMS CONDOMINIUM as recorded in Condominium Book 14, Page 55, Public
Records Orange County, Florida, being more particularly described as follows:
-8-
<PAGE>
[Legal Description Continued]
Commence at the Southeast corner of Section 28, Township 24 South, Range 28
East, Orange County, Florida; thence N89 degrees 54'15"W along the South line of
said Section 28 for 1720.86 feet; thence N00 degrees 05' 45"E for 111.08 feet
to the POINT OF BEGINNING and being a point of the boundary line of SABAL PALMS
CONDOMINIUM as recorded in Condominium Book 14, Page 55, Public records Orange
County, Florida; thence along the Boundary of said SABAL PALMS CONDOMINIUM the
following courses; thence N28 degrees 02'24"W for 323.96 feet; thence N60
degrees 54'13"W for 26.21 feet; thence N14 degrees 32'25"W for 189.43 feet;
thence N28 degrees 02'24"W for 108.97 feet; thence N28 degrees 10'01"E for
287.01 feet; thence S81 degrees 17'50"E for 645.17 feet; thence S19 degrees
24'36"E for 180.15 feet; thence S09 degrees 09'54"W for 169.98 feet; thence S89
degrees 56'22"W for 247.00 feet; thence S00 degrees 03'38"E for 220.82 feet;
thence S89 degrees 56'22"W for 110.95 feet; thence S44 degrees 56'22"W for
246.80 feet to the POINT OF BEGINNING.
Containing (7911938 square feet) 181.633 acres more or less.
-9-
<PAGE>
EXHIBIT C
---------
Existing Encumbrances
1. Easement in favor of FLORIDA POWER CORPORATION, a Florida corporation,
filed in Deed Book 810, Page 471, Public Records of Orange County, Florida.
2. Easement in favor of FLORIDA POWER CORPORATION, a Florida corporation,
filed in Deed Book 810, Page 501, Public Records of Orange County, Florida.
3. Declaration of Drainage Easement between TOP OF THE WORLD, LIMITED, a
Florida limited partnership, and SHEARSON VISTA PARTNERS I, LTD., a Florida
limited partnership, filed in Official Records Book 3287, page 1939, and
Amendment to Declaration of Drainage Easement filed in Official Records
Book 3330, page 1250, Public Records of Orange County, Florida.
4. Orange County/Shearson Vista Partners II, Limited/Epoch Properties,
Inc./Marriott Corporation Sewer and Water Utilities Agreement filed in
Official Records Book 3434, page 1198, and Amendment to Sewer and Water
Utilities Agreement filed in Official Records Book 3870, page 4198, Public
Records of Orange County, Florida.
5. Easement in favor of SHEARSON VISTA PARTNERS II, LTD., a Florida limited
partnership, filed in Official Records Book 3435, page 2231, Public Records
of Orange County, Florida.
6. Ingress-Egress and Utility Easement as set forth in Exhibit "C" of Deed
filed in Official Records Book 3549, page 1444, Public Records of Orange
County, Florida.
7. Distribution Easement in favor of FLORIDA POWER CORPORATION, a Florida
corporation, filed in Official Records Book 3804, page 1388, Public Records
of Orange County, Florida.
8. Distribution Easement in favor of FLORIDA POWER CORPORATION, a Florida
corporation, filed in Official Records Book 3804, page 1391, Public Records
of Orange County, Florida.
9. Easement Deed by MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership, to MARRIOTT OWNERSHIP RESORTS, INC., a Delaware
corporation, filed in Official Records Book 3807, page 2288, Public Records
of Orange County, Florida.
C-1
<PAGE>
10. Declaration of Drainage Easement between MARRIOTT CORPORATION, a Delaware
corporation, and SHEARSON VISTA PARTNERS I, LTD. and SHEARSON VISTA
PARTNERS II, LTD. a Florida limited partnership, filed in Official Records
Book 3846, page 757, and Assignment of Declaration of Drainage Easement
filed in Official Records Book 3846, page 867, Public Records of Orange
County,Florida.
11. Easement Deed by MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership, to MARRIOTT OWNERSHIP RESORTS, INC., a Delaware
corporation, filed in Official Records Book 3964, page 1904, Public Records
of Orange County, Florida.
12. Distribution Easement in favor of FLORIDA POWER CORPORATION, a Florida
corporation, filed in Official Records Book 4024, page 21, Public Records
of Orange County, Florida.
13. Grant of Easement between MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, and ORANGE COUNTY, FLORIDA, filed in Official
Records Book 4185, page 980, Public Records of Orange County, Florida.
14. Distribution Easement in favor of FLORIDA POWER CORPORATION, filed in
Official Records Book 4197, page 2902, Public Records of Orange County,
Florida.
15. Treated Wastewater Disposal Agreement between ORANGE COUNTY, FLORIDA, and
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership, filed in Official Records Book 4359, page 2406, Public Records
of Orange County, Florida.
16. Memorandum of Option by and between MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, as optionor, and MARRIOTT
OWNERSHIP RESORTS, INC., a Delaware corporation, as optionee, dated June
10, 1994, filed in Official Records Book 4753, page 4491, Public Records of
Orange County, Florida.
17. Easement granted to MARRIOTT OWNERSHIP RESORTS, INC., a Delaware
corporation, from MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a Delaware
limited partnership, dated June 10, 1994, filed in Official Records Book
4753, page 4496, Public Records of Orange County, Florida.
C-2
<PAGE>
EXHIBIT F
________________________________________________________________________________
AMENDED AND RESTATED
ASSIGNMENT OF LEASES, RENTS AND PROFITS
From
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP
To
THE SANWA BANK LIMITED
acting by and through its
New York Branch
---------------------------
Dated as of June 16, 1995
---------------------------
________________________________________________________________________________
PREPARED BY AND AFTER
RECORDING RETURN TO:
Farid R. Maluf, Esq.
Winston & Strawn
175 Water Street
New York, New York 10038-4981
<PAGE>
AMENDED AND RESTATED ASSIGNMENT OF LEASES, RENTS, AND PROFITS
THIS AMENDED AND RESTATED ASSIGNMENT OF LEASES, RENTS AND PROFITS
(this "Assignment of Rents") is made as of this 16th day of June 1995 by and
between MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Company"), and THE SANWA BANK LIMITED, acting by and through
its New York Branch (the "Bank"). All capitalized terms not otherwise defined
herein shall have the meanings set forth in the Mortgage (as defined below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company executed and delivered to the Bank that certain
Assignment of Leases, Rents and Profits (the "Original Assignment"), dated as of
January 12, 1993, which Original Assignment was recorded on January 13, 1993 in
the Official Records Book 4512 at Page 3814 of the Public Records of Orange
County, Florida;
WHEREAS, the Company executed and delivered to the Bank that certain
Mortgage and Security Agreement (the "Original Mortgage"), dated as of January
12, 1993, which Original Mortgage was recorded on January 13, 1993 in the
Official Records Book 4512 at Page 3134 of the Public Records of Orange County,
Florida;
WHEREAS, the Company and the Bank have executed and delivered that
certain Amended and Restated Mortgage and Security Agreement, dated as of June
16, 1995 (as the same may be amended, restated, extended or renewed from time to
time, the "Mortgage"), securing a Renewal Mortgage Note (the "Mortgage Note") in
the principal amount of $156,978,523.36 and the payment and performance of
certain other indebtedness and obligations described in the Mortgage (the
"Indebtedness"), which Mortgage amended and restated in its entirety the
Original Mortgage;
WHEREAS, the Company and the Bank desire to amend and restate in its
entirety the Original Assessment as hereinafter set forth;
WHEREAS, the Mortgage is a lien upon all right, title and interest of
the Company in and to all leases and subleases together with all guaranties
relating thereto, licenses, franchises, concessions and other occupancy
agreements now or hereafter in effect, whether or not of record (the "Leases"),
for the use and occupancy of any part of the real property described in Exhibit
A attached hereto and made a part hereof (the "Mortgaged Property"), including,
without limitation, the Leases described in Exhibit B attached hereto and made a
part thereof.
<PAGE>
The Company desires to grant, transfer, set over and assign to the
Bank for the benefit of the Bank all right, title and interest of the Company in
and to the Leases and the rents, additional rents and other payments due, or to
become due, under the Leases, together with all hotel room rentals, accounts
receivable, credit card receivables, and all other income, fees and profits
generated from the operation of the hotel, golf course and other amenities
located at the Property of every kind and nature, and other rents, issues,
profits, revenues, royalties and rights and benefits which may accrue and be
owing for the use or occupancy of the Mortgaged Property, including, without
limitation, any and all prepayments of hotel room rentals, rent, deposits for
hotel amenities, reservation deposits and catering deposits (the "Rents").
To induce the Bank to make available to the Company the Loan pursuant
to the terms of the Loan Agreement and to secure the Company's obligations under
the Mortgage, the Mortgage Note and the Loan Agreement and for other good and
valuable consideration, the receipt and sufficiency whereof are hereby
acknowledged by the Company, the Company hereby covenants and agrees with the
Bank that the Original Assignment is hereby amended and restated as follows:
1. The Company hereby confirms the grant, assignment, setting over,
transfer and conveyance contained in the Original Assignment and hereby grants a
security interest in, and assigns, sets over, transfers and conveys unto the
Bank for the benefit of the Bank (a) all Leases of any portion of the Mortgaged
Property, whether written or verbal, (b) all the right, title and interest of
the Company in and to the Rents due or to become due for the use and occupancy
of any of the Mortgaged Property, (c) any and all proceeds of the foregoing
(including, without limitation, any claims of the Company against any insurer or
third persons for loss or damage to or destruction of any or all of the
foregoing) and (d) the right to exercise all other rights, options and
privileges extended to the landlord under the terms of the Leases.
2. The term of this Assignment of Rents shall be until the
Indebtedness shall have been fully paid and satisfied, at which time this
Assignment of Rents is to be fully satisfied, cancelled and released, and the
releasing of the Mortgage shall constitute a release hereof.
3. Unless an Event of Default shall occur and be continuing, the
Company shall have a revocable license to collect the Rents as they become due.
Such license to collect and continue collecting the Rents shall not operate to
permit the collection by the Company of (and the Company hereby covenants and
agrees with the Bank that the Company will not collect, demand or receive any
installment of) Rents with respect to any Material Lease more than one month in
advance (other than as a security deposit) of the date prescribed in any such
Material Lease for the payment thereof. If an Event of Default shall occur and
be continuing, the Bank may, upon written notice to the Company in the manner
specified in Section 4.2 of the Mortgage, direct each and all of the tenants
under the Leases to pay such Rent as may then be or thereafter become due to the
Bank upon demand for payment thereof by the Bank, and the Bank may apply any
such payments received by it either for the general operating needs of the
Mortgaged Property or in reduction or satisfaction of the Indebtedness in the
priority set forth in Section 11.8 of the Loan Agreement, as the Bank may elect
in its sole discretion.
-2-
<PAGE>
4. The authority and power of the Bank to collect the Rents from any
of the Mortgaged Property, as set forth herein, may be exercised and the Rents
collected with or without the taking of possession of the Mortgaged Property, or
any part thereof, and without the necessity of (but nothing herein contained
shall be construed to prohibit the Bank from) instituting an action upon this
Assignment of Rents directly against the tenants under the Leases.
5. In furtherance of this Assignment of Rents, the Company does
hereby additionally authorize and empower the Bank by its employees, agents, or
representatives, at the option of the Bank upon the occurrence and during the
continuance of any Event of Default, to enter upon the Mortgaged Property and to
collect, in the name of the Company or in its own name as assignee, the Rents
accrued but unpaid and in arrears at the date of such default, as well as the
Rents thereafter accruing and becoming payable during the period this Assignment
of Rents is operative; and to this end, the Company further agrees to cooperate
and to assist the Bank, its employees, agents or representatives, in all
reasonable ways of collection of the Rents.
6. The Company does hereby authorize (but nothing herein shall be
deemed to require or obligate) the Bank, upon such entry, to take over and
assume the management, operation and maintenance of the Mortgaged Property and
to perform all acts necessary and proper in its sole discretion and to expend
such sums as may be necessary in connection therewith, including the authority
to effect new Leases, or to make concessions to tenants; the Company hereby
releases all claims against the Bank arising out of such management, operation
and maintenance, excepting the liability of the Bank to account as hereinafter
set forth.
7. This Assignment of Rents constitutes an absolute and present
assignment of the Rents, subject, however, to the conditional permission given
in Section 3 to the Company to collect, receive, take, use and enjoy the same in
the absence of an Event of Default.
8. The Company expressly represents and warrants to the Bank that at
the time of the execution and delivery of this Assignment of Rents there has
been no anticipation or prepayment of any Rents by any of the lessees under any
of the Material Leases or other leases.
9. The Company covenants and agrees that the Company and its
successors or assigns shall have no right, power or authority to alter, modify
or amend the terms of any Material Lease in any manner whatsoever without first
obtaining the consent in writing of the Bank to such alteration, modification or
amendment, which consent shall not be unreasonably withheld.
10. The provisions of this Assignment of Rents shall be binding upon
the Company and its legal representatives, successors and assigns, and shall
inure to the benefit of the Bank.
11. Nothing herein contained shall be construed as making the Bank a
mortgagee in possession, nor shall the Bank be liable for laches, or failure to
collect the Rents, and it is understood that the Bank is to account only for
such sums as are actually collected.
-3-
<PAGE>
12. The Company covenants and agrees that no tenant need determine
whether a default has occurred making this Assignment of Rents operative, but
shall pay over all Rent to the Bank upon notice from it to do so, and upon so
doing shall be relieved from liability therefor to the Company in all respects.
13. The Company covenants and agrees to keep, observe and perform all
of the covenants on the part of the lessor to be kept, observed and performed in
any Material Lease affecting any portion of the Mortgaged Property. If the
Company fails to keep, observe and perform any covenant of any such Material
Lease, the Bank shall have the right, at its option, to keep, observe and
perform such covenant on behalf of the Company. In the event the Bank should
exercise its option to keep, observe or perform any of the lessor's obligations
under any Material Lease, it shall be entitled to recover from the Company,
immediately upon demand, any expenses incurred or amounts advanced in performing
such covenants, together with interest at the Default Rate from the date of such
advance.
14. It is understood and agreed that neither the existence of this
Assignment of Rents nor the exercise by the Bank of its right to collect the
Rents upon the occurrence of an Event of Default shall be construed as a waiver
by the Bank or its successors and assigns of the right to enforce payment and
performance of the terms and provisions of the Mortgage, the Mortgage Note, the
Loan Agreement or any other Loan Document, in connection with which this
Assignment of Rents is given.
15. Notwithstanding any contrary provision of this Assignment of
Rents, it is hereby expressly agreed that, except as otherwise provided in this
Section 15, neither the Company nor the General Partner, nor any legal
representative, successor or assign of the Company or the General Partner, nor
any officer, director, shareholder of or partner in the Company or the General
Partner nor any other principal in the Company or in the General Partner,
whether disclosed or undisclosed, shall have any personal liability for (i) the
payment of any sum of money which is or may be payable hereunder or under the
Mortgage Note or any other Loan Document to which the Company is a party,
including but not limited to, the repayment of the indebtedness evidenced by the
Mortgage Note, or (ii) the performance or discharge of any covenants or
undertakings of the Company hereunder or under the Loan Documents, and in the
event of any Event of Default hereunder or any default or event of default under
the Mortgage Note or any other Loan Document, the Bank shall proceed solely
against the Mortgaged Property and any other collateral given as security for
payment of the Mortgage Note, and the Bank shall not seek or claim recourse
against the Company or the General Partner or any legal representative,
successor or assign of the Company or the General Partner or any officer,
director, shareholder of or partner in the Company or the General Partner or any
other principal in the Company or the General Partner, whether disclosed or
undisclosed, for any deficiency or any personal judgement after a foreclosure of
the lien of this Assignment of Rents or the Mortgage, or both, or for the
performance or discharge of any covenants or undertakings of the Company
hereunder or under the Mortgage Note, the Loan Agreement or any other Loan
Document. Notwithstanding the foregoing, nothing contained in this Section 15
shall (a) impair the validity of the indebtedness evidenced by the Mortgage Note
or in any way
-4-
<PAGE>
affect or impair the lien of this Assignment of Rents or the right of any
holder of the Mortgage Note or secured party under this Assignment of Rents to
enforce this Assignment of Rents following an Event of Default hereunder in
accordance with Section 3 hereof or prevent the Bank or any holder of the
Mortgage Note from exercising any rights or remedies under any of the Loan
Documents or any of the other Related Documents against the Company, the
Mortgaged Property or any other collateral or (b) relieve the Company or the
General Partner of any personal liability for any loss, cost, expense, damage or
liability, including, without limitation, reasonable attorney's fees and
disbursements, suffered or incurred by the Bank arising out of or resulting from
(x) any representation or warranty contained in any of the Loan Documents made
by the Company of the General Partner having been false or incorrect in a
material respect when made and having been made with fraudulent intent, (y) any
amount distributed to the General Partner in violation of any provision of any
of the Loan Documents or (z) fraud or breach of trust, including, but not
limited to, misapplication of loan proceeds advanced pursuant to the Mortgage
Note and the Loan Agreement or any insurance proceeds or condemnation awards or
other sums which are part of the Mortgaged Property that may come into Company's
possession or control or (c) relieve the Company or the General Partner of any
personal liability under the Environmental Indemnity (as defined in the Loan
Agreement). The provisions of this paragraph shall not, however, affect any
separate guaranty or similar undertaking with respect to all or any part of the
indebtedness or the Mortgage. It is the intention of the Bank and the Company
that this Section 15 shall govern every other provision of this Assignment of
Rents and that the absence of explicit reference to this Section 15 in any
provision of this Assignment of Rents shall not be construed to deny the
application of this Section 15 to such provision, notwithstanding the presence
of explicit reference to this Section 15 in other provisions of this Assignment
of Rents.
16. THE COMPANY AND THE BANK EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS ASSIGNMENT OF RENTS, THE OTHER LOAN DOCUMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
17. This Assignment of Rents shall be interpreted, construed and
enforced according to the laws of the State of Florida. This choice-of-law
provision shall not be deemed to affect the choice-of-law provision contained in
any of the other Loan Documents.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Assignment of
Rents as of the date and year first above written.
Signed, sealed & delivered
in the presence of:
MARRIOTT HOTEL PROPERTIES
LIMITED PARTNERSHIP
____________________ a Delaware limited partnership,
Name:_______________
By: Hotel Properties Management, Inc.,
a Delaware Corporation,
General Partner
____________________
Name:_______________
By: ___________________
Name:
Title:
(Corporate Seal)
THE SANWA BANK LIMITED,
____________________ acting by and through its
New York Branch
Name:_______________
____________________ By:____________________________________
Name:
Name:_______________ Title:
-6-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Before me personally appeared________________________________, to me known to be
the _______________ of HOTEL PROPERTIES MANAGEMENT, INC., a Delaware
corporation, the general Partner of MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership, named in the foregoing instrument
and known to me to be the person who as ________________ of such general partner
of said limited partnership executed the same and he did acknowledge before me
that said instrument is the free act and deed of such limited partnership and by
him executed for the purposes therein expressed; all under authority in him duly
vested.
WITNESS my hand and official seal in the County and State last aforesaid this
____ day of October, 1995.
________________________
Notary Public
(Seal)
-7-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Before me personally appeared _______________________, to me known to
be the ________________________ of the New York Branch of THE SANWA BANK
LIMITED, a Japanese banking corporation acting by and through its New York
Branch, named in the foregoing instrument who as ___________________ of such
entity executed the same and he did acknowledge before me that said instrument
is the free act and deed of said entity and by him executed for the purposes
therein expressed; all under authority in him duly vested.
WITNESS my hand and official seal in the County and State last
aforesaid this _____ day of October, 1995.
_______________________
Notary Public
(Seal)
-8-
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
Parcel 1A:
Commence at the Southeast corner of Section 28, Township 24 South, Range 28
East, Orange County, Florida: thence North 89 degrees 54'15" West 1,720.86 feet
along the South line of said Section 28; thence North 00 degrees 05'45" East
111.08 feet; thence North 44 degrees 56'22" East 31.38 feet for a Point of
Beginning; thence continue North 44 degrees 56'22" East 215.43; thence North 89
degrees 56'22" East 4.95 feet; thence South 44 degrees 56'22" West 220.00 feet;
thence North 28 degrees 02'24" West 3.66 feet to the Point of Beginning.
AND
Parcel 1B:
Commence at the Southeast corner of Section 28, Township 24 South, Range 28
East, Orange County, Florida; thence North 89 degrees 54'15" West 1,720.86 feet
along the South line of said Section 28; thence North 00 degrees 05'45" East
111.08 feet; thence North 28 degrees 02'24" West 323.96 feet; thence North 60
degrees 54'13" West 26.21 feet; thence North 14 degrees 32'25" West 189.43 feet;
thence North 28 degrees 02'24" West 108.97 feet for a point of Beginning; thence
continue North 28 degrees 02'24" West 20.24 feet; thence North 28 degrees 10'01"
East 286.07 feet; thence South 81 degrees 17'50" East 649.40 feet; thence South
19 degrees 24'36" East 17.39 feet; thence North 81 degrees 17'50" West 645.17
feet; thence South 28 degrees 10'01" West 287.01 feet to the Point of Beginning.
AND (PARCEL 1B2)
A part of Lots 10 and 11, W.R. MUNGERLAND COMPANY SUBDIVISION as recorded in
Plat book "E", Page 22, Public Records of Orange County, Florida, being more
particularly described as follows:
Commence at the Northwest corner of the East 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34, Township 24 South, Range
28 East, Orange County, Florida; thence South 00 degrees 02'50" East along the
West line of the East 1/2 of the Northwest 1/4 of the Northeast 1/4 of the
Northwest 1/4 of said Secton 34, for 519.44 feet to the Point of Beginning;
thence continue South 00 degrees 02'50" East along said West line for 169.24
feet to the Southwest corner of the East 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34; thence North 89 degrees
54'25" East for 371.29 feet; thence North 08 degrees 23'25" West for 200.32
feet; thence North 36 degrees 36'35" East for 75.55 feet; thence North 03
degrees 18'22" East for 101.06 feet; thence North 45 degrees 03'36" West for
162.94 feet; thence South 89 degrees 56'22" West for 109.51 feet; thence South
00 degrees 03'38" East for 49.94 feet; thence South 40 degrees 19'50" West for
19.55 feet; thence South 11 degrees 36'45" East for 24.61 feet; thence South 44
degrees 00'34" West for 33.15 feet; thence South 30 degrees 00'01" West for
213.64 feet; thence South 74 degrees 59'58" West for 31.82 feet to the Point of
Beginning.
<PAGE>
[Legal Description Continued]
AND
Legal Description (Overall) (PARCEL 1B3)
Beginning at the Northwest corner of Section 34, Township 24 South, Range 28
East, Orange County, Florida, run North 89 degrees 56'22" East along the North
line of said Section 34 1,660.01 feet to the West line of the East 1/2 of the
Northwest 1/4 of the Northeast 1/4 of the Northwest 1/4 of said Section 34;
thence run South 00 degrees 02'50" East 688.68 feet along said West line to the
Southwest corner of East 1/2 of the Northwest 1/4 of the Northeast 1/4 of the
Northwest 1/4 of Section 34; thence run North 89 degrees 54'25" East 894.08 feet
along the South line of the North 1/2 of the Northeast 1/4 of the Northwest 1/4
of Section 34 1 a point on the Westerly right of way line of State Road No.535
as shown on the preliminary State of Florida Department of Transportation right
of way Map Section 75000-2550; thence run South 37 degrees 06'03" East 165.65
feet along said right of way line to a point on the West line of the Northwest
1/4 of the Northeast 1/4 of Section 34; thence leaving said right of way line
run South 00 degrees 05'58" West 555.81 feet along said West line to the
Southwest corner of the Northwest 1/4 of the Northeast 1/4 of Section 34; thence
run North 89 degrees 50'57" East along the South line of the Northwest 1/4 of
the Northeast 1/4 of said Section 34, a distance of 297.93 feet to a point on
the aforementioned right of way line of State Road 535; thence South 27 degrees
45'52" West 103.89 feet to a point on the North right of way line of I-4 (Disney
World) interchange as shown on the aforementioned right of way map; thence run
along said right of way the following courses and distances; thence North 86
degrees 56'56" West 946.89 feet; thence North 88 degrees 56'18" West 600.80
feet; thence North 85 degrees 58' 50" West 2,687.55 feet; thence North 78
degrees 33'11" West 518.52 feet to the point of curvature of a curve concave
Northeasterly having a radius of 740.00 feet and a central angle of 82 degrees
28'00"; thence from a tangent bearing of North 81 degrees 58'50" West run
Northerly along the arc of said curve 1,065.09 feet to a point; thence from a
tangent bearing of North 00 degrees 29'10" East run North 00 degrees 56'39" West
376.89 feet to the South line of Section 28, Township 24 South, range 28 East;
thence continue along aforementioned right of way line North 00 degrees 59'09"
West 552.72 feet to the point of curvature of a curve concave Southeasterly
having a radius of 900.0 a central angle of 38 degree 00'00"; thence from a
tangent bearing of North 00 degrees 29'10" East run Northeasterly along the arc
of said curve 596.90 feet to a point; thence run North 36 degrees 53'3*" East
279.66 feet to a point, said point being the Northwest corner of lands conveyed
by Warranty Deed recorded in O.R. Book 3330, Page 1280, of the Public Records of
Orange County, Florida; thence departing the Easterly right of way line of
Interstate 4 (S.R. No.400 run along the Northerly line of those previously
conveyed lands (O.R. Book 3330, Page 1280) the following courses and distances;
South 89 degrees 47'18" East a distance of 1,246.98 feet to an intersection with
the arc of a curve concave Northeast and having a radius of 415.0 feet; run
thence Southeast along the arc of said curve through a central angle of 31
degrees 41'1*" a distance of 229.50 feet to an intersection with the Westerly
line of that parcel described in O.R. Book 3287, Page 1946, of the Public
records of Orange County, Florida; thence South 00 degrees 24'05" West along
said Westerly line 956.50 feet to the South line of said parcel; thence South 89
degrees 43'50" East along said South line 660.00 feet to the East line of said
parcel and the East line of Section 28, Township 24 South, Range 28 East; thence
South 00 degrees 24'05" West along said Section line 330.92 feet to the Point of
Beginning.
LESS AND EXCEPTING the Condominium site described as follows:
Legal Description (Condominium Site)
For a point of reference commence at the Northwest corner of Section 34,
Township 24 South, Range 28 East of Orange County, Florida; thence run North 89
degrees 56'22" East along the North line of said Section 34 a distance of
1,660.01 feet; to the West line of the East 1/* of the Northwest 1/4 of the
Northwest 1/4 of the Northeast 1/4 of the Northwest 1/4 of said Section 34;
thence run South 00 degrees 02'50" East 688.68 feet along said West line to the
Southwest corner of said East 1/2 of the Northwest 1/4 of the Northeast 1/4 of
the Northwest 1/4 of Section 34; thence run North 89 degrees 54'25" East 894.08
feet along the South line of the North 1/2 of the Northeast 1/4 of the Northwest
1/4 of Section 34 to a point on the Westerly right of way line of State Road No.
535 as shown on the preliminary State of Florida Department of Transportation
right of way Section 75000-2520; thence run South 37 degrees 06'03", East 165.65
feet
-2-
<PAGE>
[Legal Description Continued]
along said right of way line to a point on the West line of the Northwest 1/4 of
the Northeast 1/4 of Section 34; thence leaving said right of way line run South
00 degrees 05'58" West 555.81 feet along said West line to the Southwest corner
of the Northwest 1/4 of the Northeast 1/4 of Section 34; thence run North 89
degrees 50'57" East along the South line of the Northwest 1/4 of the Northeast
1/4 of said Section 34 a distance of 297.93 feet to a point on the
aforementioned right of way line of State Road No. 535; thence run South 27
degrees 45'52" West 103.89 feet to a point on the Northerly right of way line of
I-4 (Disney World) interchange as shown on aforementioned right of way map;
thence run along said right of way line the following courses and distances;
thence North 86 degrees 56'56" West 946.89 feet; thence North 88 degrees 56'18"
West 600.80 feet; thence run North 85 degrees 58'50" West a distance of 358.65
feet; thence leaving said North right of way line from a chord bearing of North
08 degrees 16'44" West run Northwesterly a distance of 147.74 feet along the arc
of a non-tangent curve concave to the Southwest and having a radius of 460.68
feet and a central angle of 18 degrees 22'28" to a point on a non-tangent curve
concave to the Southwest and having a radius of 466.68 feet; thence run
Northwesterly a distance of 163.65 feet, along the arc of said curve through a
central angle of 20 degrees 05'31" to a point on a non-tangent curve concave to
the Southwest and having a radius of 475.18 feet; thence run Northwesterly a
distance of 388.32 feet along the arc of said curve through a central angle of
46 degrees 49'21"; thence run North 84 degrees 19'24" West a distance of 465.36
feet to the point of curvature of a curve concave South said curve having a
radius of 1,299.38 feet; thence run Westerly along the arc of said curve through
a central angle of 05 degrees 44'14" for a distance of 130.11 feet; thence run
South 89 degrees 56'22" West a distance of 37.00 feet; thence run North 00
degrees 03'38" West a distance of 270.03 feet to the point of curvature of a
curve concave Southeast, said curve having a radius of 121.48 feet; thence run
Northeasterly along the arc of said curve through a central angle of 34 degrees
00'00" a distance of 72.09 feet to the point of reverse curvature of a curve
concave Northwesterly said curve having a radius of 298.79 feet; thence run
Northerly along the arc of said curve through a central angle of 36 degrees
46'40" a distance of 191.80 feet to the point of compound curvature of a curve
concave Southwesterly; said curve having a radius of 131.00 feet; thence run
Northwesterly along the arc of said curve through a central angle of 44 degrees
43'20" a distance of 102.25 feet; thence run North 47 degrees 33'38" West a
distance of 153.92 feet; thence run North 45 degrees 03'38" West a distance of
185.41 feet to the point of curvature of a curve concave Southerly, said curve
having a radius of 201.00 feet; thence run Westerly along the arc of said curve
through a central angle of 90 degrees 00'00" a distance of 315.73 feet; thence
run South 44 degrees 56'22" West a distance of 73.87 feet to the point of
curvature of a curve concave Northwesterly, said curve having a radius of 169.00
feet; thence run Westerly along the arc of said curve through a central angle of
45 degrees 00'00" for a distance of 132.73 feet; thence run South 89 degrees
56'22" West a distance of 282.34 feet to the point of curvature of a curve
concave Northeasterly, said curve having a radius of 169.00 feet; thence run
Northwesterly along the arc of said curve through a central angle of 45 degrees
00'00" a distance of 132.73 feet; thence run North 45 degrees 03'38" West a
distance of 120.87 feet to the point of curvature of a curve concave
Southwesterly, said curve having a radius of 75.15 feet; thence run
Northwesterly along the arc of said curve through a central angle of 45 degrees
00'00" a distance of 59.03 feet to the point of reverse curvature of a curve
concave Northeasterly said curve having a radius of 113.15 feet; thence run
Northwesterly along the arc of said curve through a central angle of 45 degrees
00'00" a distance of 88.87 feet; thence run North 45 degrees 03'38" West a
distance of 114.02 feet to the point of curvature of a curve concave to the
Northeast, said curve having a radius of 159.00 feet; thence run along the arc
of said curve through a central angle of 38 degrees 30'25" a distance of 106.86
feet to the Point of Beginning; thence run South 44 degrees 56'22" West a
distance of 194.57 feet; thence run North 28 degrees 02'24" West a distance of
272.00 feet; thence run North 60 degrees 54'13" West 81.49 feet; thence run
North 14 degrees 32'25" West a distance of 189.43 feet; thence run North 28
degrees 02'24" West, a distance of 129.21 feet; thence run North 28 degrees
10'01" East 286.07 feet; thence run South 81 degrees 17'50" East a distance of
649.40 feet; thence run South 19 degrees 24'36" East a distance of 197.54 feet;
thence run South 09 degrees 09'54" West a distance of 169.98 feet; thence run
South 89 degrees 56'22" West a distance of 277.00 feet; thence run South 00
degrees 03'38" East a distance of 220.92 feet; thence run South 89 degrees
56'22" West a distance of 76.00 feet; thence run South 44 degrees 56'22" West a
distance of 25.43 feet to the Point of Beginning.
-3-
<PAGE>
[Legal Description Continued]
LESS:
Real property situate in Orange County, Florida, more particularly described as
follows:
PARCEL 2A:
Commence at the Southeast corner of Section 28, Township 24 South, Range 28
East, Orange County, Florida, thence North 89 degrees 54'15" West 1,720.86 feet
along the South line of said Section 28, thence North 00 degrees 05'45" East
111.08 feet for a point of beginning; thence North 28 degrees 02'24" West 323.96
feet; thence South 60 degrees 54'13" East 55.28 feet; thence South 28 degrees
02'24" East 268.33 feet; thence South 44 degrees 56'22" West 31.38 feet to the
Point of Beginning.
AND ALSO LESS:
PARCEL 2B1:
Commence at the Southeast corner of Section 28, Township 24 South, Range 28
East, Orange County, Florida; thence North 89 degrees 54'15" West 1,720.86 feet
along the South line of said Section 28; thence North 00 degrees 05'45" East
111.08 feet; thence North 44 degrees 56'22" East 246.80 feet; thence North 89
degrees 56'22" East 80.95 feet for a Point of Beginning; thence North 00 degrees
03'38" West 220.82 feet; thence North 89 degrees 56'22" East 30.00 feet; thence
South 00 degrees 03'38" East 220.82 feet; thence South 89 degrees 56'22" West
30.00 feet to the Point of Beginning.
AND ALSO LESS: (PARCEL 2B2)
A part of the Northwest 1/4 of Section 34, Township 24 South, Range 28 East,
Orange County, Florida being more particularly described as follows:
Begin at the Northeast corner of the West 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34, Township 24 South, Range
28 East, Orange County, Florida; thence South 00 degrees 02'50" East along the
East line of the West 1/2 of the Northwest 1/4 of the Northeast 1/4 of the
Northwest 1/4 of said Section 34 for 519.44 feet; thence South 74 degrees 59'58"
West for 131.81 feet; thence South 89 degrees 56'29" West for 90.29 feet; thence
North 52 degrees 50'29 West for 71.41 feet; thence North 41 degrees 49'03" East
for 85.76 feet; thence North 00 degrees 02'50" West for 87.26 feet; thence North
45 degrees 02'50" West for 15.85 feet; thence North 00 degrees 02'50" West for
96.96 feet; thence North 45 degrees 02'50" West for 28.27 feet; thence North 00
degrees 02'50" West for 118.10 feet; thence North 89 degrees 56'22" East for
123.89 feet to a point on a curve concave Southeasterly, a radial line to said
point bearing North 56 degrees 47'44" West; thence Northeasterly along the arc
of said curve having a radius of 143.00 feet, through a central angle of 43
degrees 24'07" for 108.32 feet to the point of tangency; thence North 76 degrees
36'22" East for 8.23 feet; thence North 00 degrees 02'50" West for 50.24 feet to
the North line of said Section 34; thence North 89 degrees 56'22" East along
said North line for 30.00 feet to the Point of Beginning.
AND ALSO LESS (PARCEL 2B3)
A part of the South 1/2 of the Northeast 1/4 of the Northwest 1/4, Section 34,
Township 24 South, Range 28 East, Orange County, Florida, being more
particularly described as follows:
Begin at the intersection of the South line, Lots 9 and 10, W.R. MUNGER
SUBDIVISION, Plat Book "E", Page 22, Public Records, Orange County, Florida with
the West right of way line of State Road 535 (Section 75000-2520); thence South
37 degrees 06'03" East along said West right of way line for 95.24 feet; thence
South 52 degrees 53'57" West for 78.00 feet; thence North 82 degrees 06'36" West
for 35.64 feet; thence North 37 degrees 06'03" West for 86.48 feet; thence South
89 degrees 54'25" West for 311.32 feet; thence North 00 degrees 05'35" West for
49.00 feet; thence North 89 degrees 54'25" East for 403.63 feet to the Point of
Beginning.
-4-
<PAGE>
[Legal Description Continued]
LESS AND EXCEPT THE FOLLOWING PARCELS OF LAND:
LEGAL DESCRIPTION: (PARCEL 2B3)
A portion of the Northeast 1/4 of the Northwest 1/4 and that part of Area "E",
ROYAL PALMS CONDOMINIUM, as recorded in Condominium Book 15, Pages 91 through
103, situated in Section 34, Township 24 South, Range 28 East, of the Public
Records of Orange County, Florida, being more particularly described as follows:
Commence at the Northeast corner of the West 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34, Township 24 South, Range
28 East, Orange County, Florida; thence South 89 degrees 56'22" west along the
North line of said Section 34, a distance of 30.00 feet; thence departing said
North line run South 00 degrees 02'50" East 50.24 feet; thence South 76 degrees
36'22" West 8.23 feet to the point of curvature of a curve concave Southeasterly
and having a radius of 143.00 feet; thence run Southwesterly along the arc of
said curve 108.32 feet through a central angle of 43 degrees 24'07" to a point
on said curve; thence departing said curve run South 89 degrees 56'22" West
along the North line of Area "G" of the aforesaid ROYAL PALMS CONDOMINIUM and a
projection thereof a distance of 123.89 feet to the Northwest corner of said
Area "G"; thence South 00 degrees 02'50" East along the Westerly line of said
Area "G", a distance of 28.16 feet to the Northeast corner of said Area "E",
said point also being the Point of Beginning; thence run along the Easterly line
of said Area "E" the following courses and distances; South 00 degrees 02'50"
East 89.94 feet; thence South 45 degrees 02'50" East 28.27 feet; thence South 00
degrees 02'50" East 96.96 feet; thence South 45 degrees 02'50" East 15.85 feet
to the Southwest corner of said Area "G"; thence South 00 degrees 02'50" East
along the Easterly line of the aforementioned Area "E" a distance of 87.26 feet;
thence continue along said Easterly line of said Area "E" the following courses
and distances; South 41 degrees 49'03" West 85.76 feet to a point on a curve
concave Northwesterly and having a radius of 732.58 feet; thence from a chord
bearing of South 45 degrees 37'46" West run Southwesterly along the arc of said
curve 11.66 feet through a central angle of 00 degrees 54'44" to a point on said
curve; thence departing said curve and said Easterly line of Area "E", run South
89 degrees 58'58" West 147.58 feet; thence North 00 degrees 01'02" West 12.71
feet; thence North 49 degrees 08'17" West 47.12 feet; thence North 40 degrees
51'43" East 20.39 feet; thence North 64 degrees 59'35" West 23.00 feet; thence
South 49 degrees 12'28" West 28.08 feet; thence North 64 degrees 50'27" West
65.89 feet to the point of curvature of a curve concave Northeasterly and having
a radius of 30.00 feet; thence run Northwesterly along the arc of said curve
47.20 feet through a central angle of 90 degrees 08'16" to the point of
tangency; thence North 25 degrees 17'49" East 129.17 feet to the point of
curvature of a curve concave Southeasterly and having a radius of 144.00 feet;
thence run Northeasterly along the arc of said curve 112.37 feet through a
central angle of 44 degrees 42'36" to the point of tangency; thence North 70
degrees 00'25" East 118.55 feet to the point of curvature of a curve concave
Northwesterly and having a radius of 36.00 feet; thence run Northeasterly along
the arc of said curve 38.14 feet through a central angle of 60 degrees 41'57" to
a point on said curve, said point also being on the North line of the
aforementioned Area "E", thence North 89 degrees 59'31" East along said North
line 49.28 feet to the Point of Beginning.
TOGETHER WITH
LEGAL DESCRIPTION: (RECREATIONAL PARCEL 2) (PARCEL 2B5)
That part of Area "E", ROYAL PALMS CONDOMINIUM, as recorded in Condominium Book
15, Pages 91 through 103, situated in Section 34, Township 24 South, Range 28
East, of the Public Records of Orange County, Florida, being more particularly
described as follows:
-5-
<PAGE>
[Legal Description Continued]
Commence at the Northeast corner of the West 1/2 of the Northwest 1/4 of the
Northeast 1/4 of the Northwest 1/4 of said Section 34, Township 24 South, Range
28 East, Orange County, Florida, thence South 89 degrees 56'22" West along the
North line of said Section 34, a distance of 30.00 feet; thence departing said
North line run South 00 degrees 02'50" East 50.24 feet; thence South 76 degrees
36'22" West 8.23 feet to the point of curvature of a curve concave Southeasterly
and having a radius of 143.00 feet; thence run Southwesterly along the arc of
said curve 108.32 feet through a central angle of 43 degrees 24'07" to a point
on said curve; thence departing said curve run South 89 degrees 56'22" West
along the North line of Area "G" of the aforesaid ROYAL PALMS CONDOMINIUM and a
projection thereof a distance of 123.89 feet to the Northwest corner of said
Area "G"; thence run along the Westerly line of said Area "G" the following
courses and distances: South 00 degrees 02'50" East 118.10 feet; thence South 45
degrees 02'50" East 28.27 feet; thence South 00 degrees 02'50" East 96.96 feet;
thence South 45 degrees 02'50" East 15.85 feet to the Southwest corner of said
Area "G"; thence South 00 degree 02'50" East along the Easterly line of said
Area "E" a distance of 87.26 feet; thence run along said Easterly line of said
Area "E" the following courses and distances: South 41 degrees 49'03" West 85.76
feet to a point on a curve concave Northwesterly and having a radius of 732.58
feet; thence from a chord bearing of South 45 degrees 37'46" West run
Southwesterly along the arc of said curve 11.66 feet through a central angle of
00 degrees 54'44" to a point on said curve; thence departing said curve and said
Easterly line of Area "E", run South 89 degrees 58'58" West 147.58 feet for a
Point of Beginning; said point being a point on a curve concave Northwesterly
and having a radius of 21.33 feet; thence from a chord bearing of South 52
degrees 31'54" West run Southwesterly along the arc of said curve 38.94 feet
through a central angle of 104 degrees 35'33" to the point of reverse curvature
of a curve concave Southeasterly and having a radius of 18.67 feet; thence run
Southwesterly along the arc of said curve 18.06 feet through a central angle of
55 degrees 25'26" to the point of reverse curvature of a curve concave
Northeasterly and having a radius of 21.33 feet; thence run Northwesterly along
the arc of said curve 60.66 feet through a central angle of 162 degrees 54'58"
to the point of reverse curvature of a curve Westerly and having a radius of
18.67 feet; thence run Northerly along the arc of said curve 18.06 feet through
a central angle of 55 degrees 25'26" to the point of reverse curvature of a
curve concave Southeasterly and having a radius of 21.33 feet; thence run
Northeasterly along the arc of said curve 33.59 feet through a central angle of
90 degrees 12'33" to a point on said curve; thence departing said curve run
North 39 degrees 40'08" West 2.35 feet; thence North 49 degrees 12'28" East
28.08 feet; thence South 64 degrees 59'35" East 23.00 feet; thence South 40
degrees 51'43" West 20.39 feet; thence South 49 degrees 08'17" East 47.12 feet;
thence South 00 degrees 01'02" East 12.71 feet to the Point of Beginning.
THE SAME BEING DESCRIBED AS
LEGAL DESCRIPTION - MARRIOTT WORLD
A parcel of land lying within Sections 28, 33, and 34, Township 24
South, Range 28 East, Orange County, Florida, being more particularly
described as follows:
BEGINNING at Northwest corner of Section 34, Township 24 South, Range
28 East, Orange County, Florida; thence N89 degrees 56'22"E along the
North line of said Section 34 for 1630.01 feet to the West line of
Area "B", ROYAL PALMS CONDOMINIUM as recorded in Condominium Book 16,
Page 144, Public Records Orange County, Florida; thence along the West
line of said Area "B" the following four courses; thence S00 degrees
02'50"E for 50.24 feet; thence S76 degrees 36'22"W for 8.23 feet to
the point of curvature of a curve concave Southeasterly; thence
Southwesterly along the arc of said curve having a radius of 143.00
feet and a chord bearing of S54 degrees 54'19"W, through a central
angle of 43 degrees 24'07" for 108.32 feet to the point of
intersection with a non-tangent line; thence S89 degrees 56'22"W for
33.41 feet to the Northeast corner of Area "G", ROYAL PALMS
CONDOMINIUM as recorded in Condominium Book 15, Page 91, Public
Records Orange County, Florida; thence continue S89 degrees 56'22"W
along the North line of said Area "G" for 90.48 feet to the Northwest
corner of said Area "G"; thence S00 degrees 02'50"E along the West
line of said Area "G" for 28.16 feet to the Northeast corner of Area
"E", ROYAL PALMS CONDOMINIUM as recorded in Condominium Book 15, Page
91, Public Records
-6-
<PAGE>
[Legal Description Continued]
Orange County, Florida; thence S89 degrees 59'31"W along the North line of said
Area "E" for 49.28 feet to a point of intersection with a non-tangent curve
concave Northwesterly; thence leaving said North line, run Southwesterly along
the arc of said curve having a radius of 36.00 feet and a chord bearing of S39
degrees 39'27"W, through a central angle of 60 degrees 41'57" for 38.14 feet to
the point of tangency; thence S70 degrees 00'25"W for 118.55 feet to the point
of curvature of a curve concave Southeasterly; thence Southwesterly along the
arc of said curve having a radius of 144.00 feet and a chord bearing of S47
degrees 39'07"W, through a central angle of 44 degrees 42'36" for 112.37 feet to
the point of tangency; thence S25 degrees 17'49"W for 129.17 feet to the point
of curvature of a curve concave Easterly; thence Southeasterly along the arc of
said curve having a radius of 30.00 feet and a chord bearing of S19 degrees
46'19"E, through a central angle of 90 degrees 08'16" for 47.20 feet to the
point of tangency; thence S64 degrees 50'27"E for 65.89 feet; thence S39 degrees
40'08"E for 2.35 feet to a point of intersection with a non-tangent curve
concave Easterly; thence Southeasterly along the arc of said curve having a
radius of 21.33 feet and a chord bearing of S22 degrees 00'08"W, through a
central angle of 90 degrees 12'33" for 33.59 feet to the point of reverse
curvature of a curve concave Westerly; thence Southerly along the arc of said
curve having a radius of 18.67 feet and a chord bearing of S04 degrees 36'29"W,
through a central angle of 55 degrees 25'26" for 18.06 feet to a point of
reverse curvature of a curve concave Northeasterly; thence Southeasterly along
the arc of said curve having a radius of 21.33 feet and a chord bearing of S49
degrees 08'17"E, through a central angle of 162 degrees 54'58" for 60.66 feet to
the point of reverse curvature of a curve concave Southerly; thence
Northeasterly along the arc of said curve having a radius of 18.67 feet and a
chord bearing of N77 degrees 06'57"E, through a central angle of 55 degrees
25'26" for 18.06 feet to a point of reverse curvature of a curve concave
Northwesterly; thence Northeasterly along the arc of said curve having a radius
of 21.33 feet and a chord bearing of N52 degrees 31'54"E, through a central
angle of 104 degrees 35'33" for 38.94 feet to the point of intersection with a
non-tangent line; thence N89 degrees 58'58"E for 147.58 feet to a point of
intersection with a non-tangent curve concave Northwesterly and being a point on
the South line of said Area "E", ROYAL PALMS CONDOMINIUM; thence Northeasterly
the South line of said Area "E", along the arc of said curve having a radius of
732.58 feet and a chord bearing of N45 degrees 37'46"E, through a central angle
of 00 degrees 54'44 for 11.66 feet to the Southwest corner of Area "B", ROYAL
PALMS CONDOMINIUM as recorded in Condominium Book 16, Page 144, Public Records
Orange County, Florida; thence along the South line of said Area "B" the
following four courses; thence S52 degrees 50'29"E for 71.41 feet; thence N89
degrees 56'29"E for 90.29 feet; thence N74 degrees 59'58"E for 163.63 feet;
thence N30 degrees 00'01"E for 150.00 feet to the Southeast corner of Area "F",
ROYAL PALMS CONDOMINIUM as recorded in Condominium Book 15, Page 91, Public
Records Orange County, Florida; thence along the East line of said Area "F" the
following five courses; thence N30 degrees 00'01"E for 63.64 feet; thence N44
degrees 00'34"E for 33.15 feet; thence N11 degrees 36'45"W for 24.61 feet;
thence N40 degrees 19'50"E for 19.55 feet; thence N00 degrees 03'38"W for 49.94
feet to the Southwest corner of Area "A", ROYAL PALMS CONDOMINIUM as recorded in
Condominium Book 15, Page 91, Public Records Orange County, Florida; thence
along the South line of said Area "A" the following two courses; thence N89
degrees 56'22"E for 109.51 feet; thence S45 degrees 03'36"E for 162.94 feet to
the Northwest corner of Area "C" ROYAL PALMS CONDOMINIUM as recorded in
Condominium Book 16, Page 42, Public Records Orange County, Florida; thence
along the West line of said Area "C" the following three courses; thence S03
degrees 18'22"W for 101.06 feet; thence S36 degrees'35"W for 75.55 feet; thence
S08 degrees 23,25"E for 200.32 feet to a point on the South line of the North
1/2 of the Northeast 1/4 of the Northwest 1/4 of Section 34, Township 24 South,
Range 28 East, Orange County, Florida; thence N89 degrees 54'25"E along said
South line and along the South line Area "C", ROYAL PALMS CONDOMINIUM for 119.16
feet to a point on the West line of Area "D", ROYAL PALMS CONDOMINIUM as
recorded in Condominium Book 16, Page 69, Public Records Orange County,
-7-
<PAGE>
[Legal Description Continued] Florida: thence S00
degrees 05'35"E along the West line of said Area "D" for 49.00 feet to the South
line of said Area "D"; thence along the South line of said Area "D" the
following four courses; thence N89 degrees 54'25"E for 311.32 feet; thence S37
degrees 06'03"E for 86.48 feet; thence S82 degrees 06'36"E for 35.64 feet;
thence N52 degrees 53'57"E for 78.00 feet to a point on the Westerly right-of-
way line of State Road No. 535 as shown on the preliminary State of Florida
Department of Transportation right-of-way Map Section 75000-2528; thence
departing the South line of said Area "D", ROYAL PALMS CONDOMINIUM, S37 degrees
06'03"E along said West right-of-way line for 70.41 feet to a point on the West
line of the Northwest 1/4 of the Northeast 1/4 of said Section 34; thence S00
degrees 05'58"W along said West line for 555.81 feet to the Southwest corner of
the Northwest 1/4 of the Northeast 1/4 of said Section 34; thence N89 degrees
50'57"E along the South line of the Northwest 1/4 of the Northeast 1/4 of
Section 34 for 297.93 feet to a point on the aforementioned right-of-way line of
State Road No. 535; thence S27 degrees 45'52"W along said West right-of-way line
for 103.89 feet to a point on the North right-of-way line of State Road No.563
as shown on the aforementioned right-of-way map; thence along said right-of-way
the following nine courses; thence N86 degrees 56'56"W for 946.89 feet; thence
N88 degrees 56'18"W for 600.80 feet; thence N85 degrees 58'50"W for 2687.55
feet; thence N78 degrees 33'11"W for 518.52 feet to a point of intersection with
a non-tangent curve concave Northeasterly; thence Westerly and Northerly along
the arc of said curve having a radius of 740.00 feet and a chord bearing of N40
degrees'50"W, through a central angle of 82 degrees 28'00" for 1065.09 feet to
the point of intersection with non-tangent line; thence N00 degrees 56'39"W for
376.89 feet to the South line of Section 28, Township 24 South, Range 28 East,
Orange County, Florida; thence continue along aforementioned right-of-way line
N00 degrees 59'09"W for 552.72 feet to a point of intersection with a non-
tangent curve concave Easterly; thence Northerly along the arc of said curve
having a radius of 900.00 feet and a chord bearing of N19 degrees 29'10"E,
through a central angle of 38 degrees 00'00" for 596.00 feet to the point of
intersection with a non-tangent line; thence N36 degrees 53'33"E for 279.66 feet
to the Northwest corner of lands conveyed by Warranty Deed as recorded in
Official Records Book 3330, Page 1280, Public Records Orange County, Florida;
thence departed said Easterly right-of-way line of Interstate 4 (State Road
*400), S89 degrees 47'18"E along the North line of said conveyed lands for
1246.98 feet to a point of intersection with a non-tangent curve concave
Northerly; thence Easterly along said conveyed lands along the arc of said curve
having a radius of 415.00 feet and a chord bearing of S80 degrees 23'45"E,
through a central angle of 31 degrees 41'10" for 229.50 feet to the point of
intersection with the Westerly line of that parcel described in Official Records
3287, Page 1946, Public Records Orange County, Florida; thence S00 degrees
24'05"W along said Westerly line for 956.50 feet to the South line of said
parcel; thence S89 degrees 43'50"E along said South parcel line for 660.00 feet
to the East line of said parcel and the East line of Section 28, Township 24
South, Range 28 East, Orange County, Florida; thence S00 degrees 24'05"W along
said East Section line for 330.92 feet to the POINT OF BEGINNING. LESS THE
FOLLOW (SABAL PALM CONDOMINIUM) SABAL PALMS CONDOMINIUM as recorded in
Condominium Book 14, Page 55, Public Records Orange County, Florida, being more
particularly described as follows:-8-
<PAGE>
[Legal Description Continued]
Commence at the Southeast corner of Section 28, Township 24 South, Range 28
East, Orange County, Florida; thence N89 degrees 54'15"W along the South line of
said Section 28 for 1720.86 feet; thence N00 degrees 05'45"E for 111.08 feet to
the POINT OF BEGINNING and being a point of the boundary line of SABAL PALMS
CONDOMINIUM as recorded in Condominium Book 14, Page 55, Public records Orange
County, Florida; thence along the Boundary of said SABAL PALMS CONDOMINIUM the
following courses; thence N28 degrees 02'24"W for 323.96 feet; thence N60
degrees 54'13"W for 26.21 feet; thence N14 degrees 32'25"W for 189.43 feet;
thence N28 degrees 02'24"W for 108.97 feet; thence N28 degrees 10'01"E for
287.01 feet; thence S81 degrees 17'50"E for 645.17 feet; thence S19 degrees
24'36"E for 180.15 feet; thence S09 degrees 09'54"W for 169.98 feet; thence S89
degrees 56'22"W for 247.00 feet; thence S00 degrees 03'38"E for 220.82 feet;
thence S89 degrees 56'22"W for 110.95 feet; thence S44 degrees 56'22"W for
246.80 feet to the POINT OF BEGINNING.
Containing (7911938 square feet) 181.633 acres more or less.
-9-
<PAGE>
EXHIBIT B
---------
Description of Leases
1) Concession Agreement by and between Marriott Hotels, Inc., d/b/a
Marriott's Orlando World Center, and NTB Enterprises, Inc., as general partner
of Florida Salons, Ltd.
2) Master Concession Agreement dated February 1, 1987, by and between Marriott
Corporation and The Hertz Corporation.
3) Guest Services and Ground Transportation Agreement dated November 30, 1993,
by and between Marriott International Corporation as agents for Marriott Hotel
Properties Limited Partnership, d/b/a Marriott's Orlando World Center, and Mears
Transportation Group of Orlando, Inc. Amended by a First Amendment to Guest
Services and Ground Transportation Agreement dated September 5, 1994.
4) Concession Agreement dated February 1, 1995, by and between Marriott
International, Inc., d/b/a Marriott's Orlando World Center, and Universal
Convention Photography, Inc.
5) Concession Agreement dated July 16, 1993, by and between Marriott
Corporation as agent for Owner, d/b/a Marriott's Orlando World Center, and
Marriott Ownership Resorts, Inc. Amended by First Amendment to Concession
Agreement dated June 19, 1995.
-10-
<PAGE>
All payments of interest, principal and other sums due and payable
hereunder shall be made in lawful money of the United States of America by wire
transfer of same day funds to The Sanwa Bank Limited, New York Branch, 55 East
52nd Street, New York, New York 10055, by credit of Federal or other immediately
available funds satisfactory to Payee wired to the Payee ABA #026-00-9823 with
designation of what such payment is for, or to any other office, branch or
affiliate of Payee hereafter selected and notified to Maker from time to time
by Payee. All payments of principal and interest on this Renewal Mortgage Note
shall be made to Payee in such funds not later than 3:00 p.m. New York City time
on the date such payment is due. Any payment received after 3:00 p.m. shall be
deemed received by Payee on the following Business Day.
The failure of Payee to exercise the option for acceleration following
any Event of Default, or to exercise any other option or remedy granted to it
under the Loan Agreement, the Mortgage or any other Loan Document in any one or
more instances, or the acceptance by Payee of partial payments or partial
performance, shall not constitute a waiver of any such default, but such options
shall remain continuously in force while such default is outstanding.
Acceleration of maturity, once claimed hereunder by Payee, may, at the option
of Payee, be rescinded by written acknowledgement to that effect, but the tender
and acceptance of partial payment or partial performance alone shall not in any
way affect or rescind such acceleration of the Repayment Date.
The remedies of the holder hereof as provided in the Loan Documents
shall be cumulative and concurrent, and may be pursued singly, successively or
together at the sole discretion of the holder hereof, and may be exercised as
often as occasion therefor shall occur; and the delay, omission or failure to
exercise any such right, privilege or remedy under this Renewal Mortgage Note
shall in no event impair such right, privilege or power or be construed as a
waiver or release of any default or acquiescence therein. Any single or partial
exercise of any right, privilege or power shall not preclude any other or
further exercise thereof or the exercise of any other right, privilege or
power. Nothing herein contained shall be construed as limiting the holder of
this Renewal Mortgage Note to the remedies mentioned above.
Maker hereby waives and releases, to the extent permitted by law, any
benefits that might accrue to Maker by virtue of any present or future laws
exempting the Mortgaged Property (as defined in the Mortgage) or any other
property, real or personal, or any part of the proceeds arising from any sale of
any such property, from attachment, levy or sale under execution, exemption from
civil process or extension of time for payment; and Maker agrees that any
property that may be levied upon pursuant to a judgement obtained by virtue of
this Renewal Mortgage Note, or any writ of execution issued thereon, may be
sold upon any such writ in whole or in part in any order desired by Payee.
Notwithstanding any contrary provision of this Renewal Mortgage Note,
it is hereby expressly agreed that except as provided in the remaining sentences
of this paragraph, neither Maker, any partner in Maker, any legal
representative, successor or assign of Maker or any such partner, nor any
officer, director, shareholder of or partner in Maker or any such
-3-
<PAGE>
partner nor any other principal in Maker or in any partner in Maker, whether
disclosed or undisclosed, shall have any personal liability for (i) the payment
of any sum of money which is or may be payable hereunder or under any other Loan
Document to which Maker is a party or (ii) the performance or discharge of any
covenants or undertakings of Maker hereunder or under any of the Loan Documents,
and in the event of any Event of Default or any default or event of default
under any other Loan Document, Payee shall proceed solely against the Mortgaged
Property and any other collateral given as security for payment hereof, and
Payee shall not seek or claim recourse against Maker or any partner in Maker,
any legal representative, successor or assign of Maker or any such partner or
any officer, director, shareholder of or partner in Maker or any such partner or
any other principal in Maker or in any partner in Maker, whether disclosed or
undisclosed, for any deficiency or any personal judgment after a foreclosure of
the lien of the Mortgage or the Assignment of Rents, or both, or for the
performance or discharge of any covenants or undertakings of Maker hereunder or
under the Loan Agreement or any other Loan Document. Notwithstanding the
foregoing, nothing contained in this paragraph shall (a) impair the validity of
the indebtedness evidenced hereby or in any way affect or impair the lien of the
Mortgage or the right of any holder hereof or secured party under the Mortgage
to foreclose the Mortgage following an Event of Default in accordance with
Section 3 thereof or prevent Payee or any holder hereof from exercising any
rights or remedies under any of the Loan Documents or any of the other Related
Documents against Maker, the Mortgaged Property or any other collateral or (b)
relieve Maker or any partner in Maker of any personal liability for any loss,
cost, expense, damage or liability, including, without limitation, reasonable
attorney's fees and disbursements, suffered or incurred by Payee arising out of
or resulting from (x) any representation or warranty contained in any of the
Loan Documents made by Maker or any such partner having been false or incorrect
in a material respect when made and having been made with fraudulent intent, (y)
any amount distributed to any partner in Maker in violation of any provision of
any of the Loan Documents or (z) fraud or breach of trust, including, but not
limited to, misapplication of loan proceeds advanced hereunder or pursuant to
the Loan Agreement or any insurance proceeds or condemnation awards or other
sums which are part of the Mortgaged Property that may come into Maker's
possession or control or (c) relieve Maker or any partner in Maker of any
personal liability under the Environmental Indemnity. The provisions of this
paragraph shall not, however, affect any separate guaranty or similar
undertaking with respect to all or any part of the indebtedness evidenced hereby
or any subsequent assumption of the obligations with respect to such
indebtedness or the Mortgage.
No reference in this Renewal Mortgage Note to, and no provisions of,
any of the other documents or instruments herein described shall alter or impair
the obligation of Maker to pay the principal of, and interest on, this Renewal
Mortgage Note, at the time and place and at the rates and in the monies and
funds described in this Renewal Mortgage Note, in accordance with the terms
hereof.
Notwithstanding anything to the contrary contained herein, Payee
shall not charge, take or receive and Maker shall not be obligated to pay to
Payee, any amounts constituting interest on the principal amount hereof in
excess of the maximum rate permitted by applicable law.
-4-
<PAGE>
EXHIBIT G
RENEWAL MORTGAGE NOTE
---------------------
$156,978,523.36 As of June 16, 1995
FOR VALUE RECEIVED, MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP, a
Delaware limited partnership, having an address c/o Host Marriott Corporation,
10400 Fernwood Road, Bethesda, Maryland 20817 ("Maker"), promises to pay to the
order of THE SANWA BANK LIMITED ("Payee"), acting by and through its New York
Branch, on June 16, 2000 (the "Repayment Date") at 55 East 52nd Street, New
York, New York 10055, or at such other place as may be designated in writing by
the holder of this Renewal Mortgage Note, the aggregate principal amount of ONE
HUNDRED FIFTY-SIX MILLION NINE HUNDRED SEVENTY-EIGHT THOUSAND FIVE HUNDRED
TWENTY-THREE AND 36/100 DOLLARS ($156,978,523.36) or, if less, the aggregate
principal amount hereof then outstanding (the "Principal Amount"). Maker further
promises to pay interest as hereinafter set forth. The capitalized terms used
and not otherwise herein defined shall have the respective meanings assigned
thereto in that certain Amended and Restated Term Loan Agreement dated as of
June 16, 1995 between the Maker and the Payee (as amended, modified or
supplemented, the "Loan Agreement"). In the event of any inconsistency between
the Loan Agreement and this Renewal Mortgage Note, the Loan Agreement shall
govern.
This Renewal Mortgage Note is given as a renewal of the unpaid
principal obligations under that certain mortgage note, dated January 12, 1993,
in the principal amount of $180,087,250.92, made by Maker to the order of Payee,
which mortgage note is attached hereto.
This Renewal Mortgage Note is secured by, among other things, an
Amended and Restated Mortgage and Security Agreement dated as of June 16, 1995
(the "Mortgage") between Maker and Payee covering Maker's fee simple estate in
land and improvements located in the County of Orange and State of Florida and
more particularly described in Exhibit B to the Mortgage.
The Principal Amount plus all unpaid interest accrued thereon together
with all other amounts owed under this Renewal Mortgage Note and the other Loan
Documents shall become immediately due and payable, at the option of Payee, upon
the occurrence of any Event of Default under and as defined in the Loan
Agreement.
Maker shall pay interest on the outstanding principal amount hereof at
the rates per annum and on the dates set forth in or established by the Loan
Agreement and as calculated therein. All indebtedness outstanding under this
Renewal Mortgage Note shall bear interest (computed in the same manner as
interest on this Renewal Mortgage Note prior to maturity)
<PAGE>
after maturity by acceleration or otherwise, at the rate set forth in Section
2.6 of the Loan Agreement, and all such interest shall be payable on demand.
Maker promises to pay, without setoff or deduction, to the order of
Payee at the place designated in the first paragraph, semi-annual payments of
principal as follows:
<TABLE>
<CAPTION>
Amount Payment Date
------ ------------
<S> <C>
$4,000,000 December 16, 1995
$4,000,000 June 16, 1996
$3,500,000 December 16, 1996
$3,500,000 June 16, 1997
$3,500,000 December 16, 1997
$3,500,000 June 16, 1998
$2,000,000 December 16, 1998
$2,000,000 June 16, 1999
$2,000,000 December 16, 1999
$2,000,000 June 1, 2000
</TABLE>
The Principal Amount and all accrued and unpaid interest and all other
sums, if any, then due under the Loan Agreement shall be due and payable in full
on the Repayment Date.
Maker may prepay, in whole or in part, the Principal Amount in the
amounts and terms provided for such prepayments under Section 2.4(a) of the Loan
Agreement and shall prepay, as required in whole or in part, all or a portion of
the Principal Amount in the amounts and terms provided for such prepayments
under Section 2.4(b) of the Loan Agreement.
Maker and all endorsers, sureties and guarantors hereby jointly and
severally waive presentment for payment, demand, notice of demand, notice of
nonpayment or dishonor, protest and notice of protest of this Renewal Mortgage
Note, and they agree that the liability of each of them shall be without regard
to the liability of any other party, and shall not be affected in any manner by
any indulgence, extension of time, renewal, waiver or modification granted or
consented to by the holder thereof (other than by the terms hereof). Maker and
all endorsers, sureties and guarantors consent to any and all extensions of
time, renewals, waivers or modifications that may be granted by the holder
hereof with respect to the payment or other provisions of this Renewal Mortgage
Note, and to the release of the collateral or any part thereof, with or without
substitution, and agree that additional makers, endorses, guarantors or sureties
may become parties to this Renewal Mortgage Note without notice to them or
affecting their liability under this Renewal Mortgage Note.
Payee's acceptance of any amount paid after the occurrence and during
the continuance of an Event of Default without itself curing said default shall
not operate as a waiver of such default nor a continuing waiver of any
subsequent default.
-2-
<PAGE>
This Renewal Mortgage Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
This Renewal Mortgage Note may not be modified or discharged orally,
but only by an agreement in writing executed by the party against whom
enforcement of any modification or discharge is sought.
Whenever used herein the singular number shall include the plural and
the plural shall include the singular, the use of any gender shall be applicable
to all genders, and the words "Payee" and "Maker" shall be deemed to include the
respective successors and assigns thereof.
IN WITNESS WHEREOF, Maker intending to be legally bound by this
Renewal Mortgage Note, has caused this Renewal Mortgage Note to be executed as
of the day and year first above written.
MARRIOTT HOTEL PROPERTIES LIMITED
PARTNERSHIP
By: Hotel Properties Management, Inc., General
Partner, a Delaware corporation
By:______________________________________________
Name:
Title:
-5-
<PAGE>
EXHIBIT H
MARRIOTT HOTEL PROPERTIES LIMITED PARTNERSHIP
---------------------------------------------
COMPLIANCE CERTIFICATE
----------------------
The undersigned, Hotel Properties Management, Inc., general partner of
Marriott Hotel Properties Limited Partnership, a Delaware limited partnership
(the "Borrower"), hereby certifies that:
1. This Compliance Certificate is being delivered pursuant to
section 7.1(d) of the Amended and Restated Term Loan Agreement dated as of June
16, 1995, by and between the Borrower and The Sanwa Bank Limited (as it may be
amended, modified or supplemented from time to time, the "Loan Agreement"; terms
used herein and not otherwise defined herein are used as defined in the Loan
Agreement);
2. To the best of its knowledge and after reasonable investigation,
during the fiscal quarter of the Borrower ending ___________________, _______,
the Borrower has observed, performed or satisfied all of the covenants and other
agreements to be observed, performed or satisfied by it which are contained in
the Loan Agreement and each Related Document to which the Borrower is a party;
and
3. It has obtained no knowledge of the occurrence of any Default or
Event of Default.
IN WITNESS WHEREOF, the undersigned has executed this Compliance
Certificate on this _______ day of ______, ___.
MARRIOTT HOTEL PROPERTIES
LIMITED PARTNERSHIP
By: Hotel Properties Management, Inc.,
General Partner
By:___________________________________
