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Loans to One Borrower Certificate (for Corporations and Other Entities)
Loans to One Borrower Certificate (for Corporations and Other Entities) (4K)
Doc #254741: Click preview link for longer preview.
LOANS TO ONE BORROWER CERTIFICATE
(For corporations and other entities)
General Electric Capital Corporation ("Lender")
c/o GEMSA Loan Services, L.P.
1500 City West Blvd., Suite 200
Houston, Texas 77042-2300
Re: $6,080,000.00 Loan (herein so called) from Lender to FAIRVIEW PLAZA
ASSOCIATES, L.P., a Delaware limited partnership ("Borrower"); certain
liabilities of the Borrower to be guaranteed by CEDAR INCOME FUND,
LTD., a Maryland real estate investment trust (whether one or more
herein called "Joinder Party")
The undersigned is the applicant for and will become the obligor on the
Loan and hereby certifies to Lender that except for the Loan:
(i) Borrower and Joinder Party (herein individually referred to as
"Obligor"),
(ii) nominees of Obligor,
(iii) persons, trusts, partnerships, syndicates, limited liability
companies and corporations of which Obligor is a nominee, a
beneficiary, a member, a general partner, a limited partner
owning an interest of ten percent or more (based on the value
of Obligor's contribution), or a record or beneficial
stockholder owning ten percent or more of the capital stock,
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CIFP
As referenced in this Loans to One Borrower Certificate (for Corporations and Other Entities):
CEDAR INCOME FUND PARTNERSHIP, – PLAZA ASSOCIATES, L.P,
a Delaware limited partnership
By: CIF-FAIRVIEW PLAZA ASSOCIATES, LLC,
a Delaware limited liability company,
its General Partner
By: CEDAR INCOME FUND PARTNERSHIP,
L.P., a Delaware limited partnership,
Sole and Managing Member
By: CEDAR INCOME FUND, LTD.,
a Maryland Real Estate Investment
Trust, its
_____________
dt 109072
;
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Fairview Plaza
As referenced in this Loans to One Borrower Certificate (for Corporations and Other Entities):
FAIRVIEW PLAZA
ASSOCIATES, – P.
1500 City West Blvd., Suite 200
Houston, Texas 77042-2300
Re: $6,080,000.00 Loan (herein so called) from Lender to FAIRVIEW PLAZA
ASSOCIATES, L.P., a Delaware limited partnership ("Borrower"); certain
liabilities of the Borrower to be guaranteed by CEDAR INCOME FUND,
LTD., a Maryland
_____________
FAIRVIEW PLAZA ASSOCIATES, – I attached hereto and fully incorporated herein by
reference for all purposes.
Executed under seal this the ______ day of January, 2003.
BORROWER: FAIRVIEW PLAZA ASSOCIATES, L.P,
a Delaware limited partnership
By: CIF-FAIRVIEW PLAZA ASSOCIATES, LLC,
a Delaware limited liability company,
its General Partner
By: CEDAR
_____________
-FAIRVIEW PLAZA ASSOCIATES, – purposes.
Executed under seal this the ______ day of January, 2003.
BORROWER: FAIRVIEW PLAZA ASSOCIATES, L.P,
a Delaware limited partnership
By: CIF-FAIRVIEW PLAZA ASSOCIATES, LLC,
a Delaware limited liability company,
its General Partner
By: CEDAR INCOME FUND PARTNERSHIP,
L.P., a Delaware limited partnership,
Sole and
_____________
dt 119890
;
GEMSA Loan Services, L.P.
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Loan Assumption and Modification Agreement
Loan Assumption and Modification Agreement (63K)
Doc #254814: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10
{SEQUENCE}8
{FILENAME}ex10-6.txt
{DESCRIPTION}EXHIBIT 10.6
{TEXT}
{PAGE}
Upon recordation, return to:
James A. L. Daniel, Jr., Esq.
Parker, Poe, Adams & Bernstein L.L.P.
Three Wachovia Center
401 South Tryon Street, Suite 3000
Charlotte, NC 28202-1935
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee for the Registered Holders of LB-UBS
Commercial Mortgage Trust 2001-C3, Commercial Mortgage
Pass-Through Certificates, Series 2001-C3
________________________________________________________________________________
LOAN ASSUMPTION
AND
MODIFICATION AGREEMENT
________________________________________________________________________________
Dated as of July 2, 2002, but executed on the date shown on
the signature pages hereto
____________________
{PAGE}
LOAN ASSUMPTION AND MODIFICATION AGREEMENT
THIS LOAN ASSUMPTION AND MODIFICATION AGREEMENT (this "Agreement") is
made and entered into as of July 2, 2000, but executed on the date shown on the
signature page by and among Loyal Plaza Associates, L.P. a Delaware limited
partnership, having an address of c/o Brentway Management LLC, 44 South Bayles
Avenue, Suite 304, Port Washington, NY 11050 ("Assuming Borrower"), Cedar Income
Fund Partnership, L.P. a Delaware limited partnership; Cedar Income Fund, Ltd.,
a Maryland corporation, having an address at c/o Brentway Management LLC, 44
South Bayles Avenue, Suite 304, Port Washington, NY 11050 (individually and
collectively, if more than one, "Assuming Principal"), Loyal Plaza Venture,
L.P., a Delaware limited partnership having an address at 20 South Third Street,
Columbus, OH 43215 ("Original Borrower"), Glimcher Properties Limited
Partnership ("Glimcher") and Glimcher Loyal Plaza Tenant, L.P. ("Tenant") having
an address at 20 South Third Street, Columbus, OH 43215 in favor of LASALLE BANK
NATIONAL ASSOCIATION, as Trustee for the Registered Holders of LB-UBS Commercial
Mortgage Trust 2001-C3, Commercial Mortgage Pass-Through Certificates, Series
2001-C3, whose mailing address is c/o Wachovia Securities, Structured Products
Servicing, 8739 Research Drive-URP4, Charlotte, NC 28288-1075 (28262-1075 for
overnight deliveries )("Lender").
Recitals
A. Lehman Brothers Bank, FSB (the "Original Lender"), pursuant to the
Loan Documents (as hereinafter defined) made a loan to Original Borrower in the
original principal amount of $14,000,000.00 (the "Loan"). The Loan is evidenced
and secured by the following documents executed in favor of Original Lender:
(1) Promissory Note dated May 31, 2001, payable by Original
Borrower to Original Lender in the original principal amount
of $14,000,000.00 (the "Note");
(2) Open-End Mortgage and Security Agreement of even date with the
Note, granted by Original Borrower and Tenant to Original
Lender, recorded in Record Book 4025, Page 91 in Lycoming
County, Pennsylvania ("Recorder's Office") (the "Mortgage");
(3) Assignment of Leases and Rents of even date with the Note
granted by Original Borrower and Tenant to Original Lender,
recorded in Record Book 4025, Page 81, in the Recorder's
Office (the "Assignment");
(4) UCC-1 financing statements (i) with Original Borrower and
Tenant as debtor and Original Lender as secured party, filed
with the Recorder's Office in Book 3831, Page 164; (ii) with
Tenant as debtor and Original Lender as secured party, filed
with the Recorder's Office in Book 3831, Page 153 and with the
Secretary of State of Pennsylvania as Instrument No. 34061604;
and (iii) with Original Borrower as debtor and Original Lender
as secured party, filed with the Secretary of State of
Pennsylvania as Instrument No. 34061593 (collectively the
"Financing Statements");
{PAGE}
(5) Holdback and Indemnity Agreement by and between Glimcher,
Tenant (in such capacity Glimcher and Tenant are herein
referred to as "Holdback Principals"), Original Borrower and
Original Lender of even date with the Note (the "Indemnity
Agreement");
(6) Environmental Indemnity Agreement by and between Original
Borrower, Tenant (in such capacity, Tenant is herein referred
to as "Environmental Principal" and collectively with the
Holdback Principals, the "Original Principal") and Original
Lender of even date with the Note (the "Environmental
Indemnity Agreement");
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Brentway
As referenced in this Loan Assumption and Modification Agreement:
Brentway Management – shown on the
signature page by and among Loyal Plaza Associates, L.P. a Delaware limited
partnership, having an address of c/o Brentway Management LLC, 44 South Bayles
Avenue, Suite 304, Port Washington, NY 11050 ("Assuming Borrower"), Cedar Income
Fund Partnership, L.P. a Delaware limited partnership;
_____________
Brentway Management – Cedar Income
Fund Partnership, L.P. a Delaware limited partnership; Cedar Income Fund, Ltd.,
a Maryland corporation, having an address at c/o Brentway Management LLC, 44
South Bayles Avenue, Suite 304, Port Washington, NY 11050 (individually and
collectively, if more than one, "Assuming Principal"), Loyal Plaza Venture,
_____________
Brentway Management – event addressed to the intended
addressee addressed as follows:
If to Borrower: Loyal Plaza Associates, L.P.
a Delaware limited partnership
c/o Brentway Management LLC
44 South Bayles Avenue, Suite 304
Port Washington, NY 11050
Brenda J. Walker
President
Ph: (516) 767-6492
Fax: (516) 767-6497
_____________
Brentway Management, – J. Walker
President
Ph: (516) 767-6492
Fax: (516) 767-6497
With a copy to: Stuart H. Widowski, Esq.
General Counsel
c/o Brentway Management, LLC
44 South Bayles Avenue, Suite 304
Ph: (516) 767-6492
Fax: (516) 767-6497
If to Lender: LASALLE BANK NATIONAL ASSOCIATION,
_____________
dt 112433
;
CIFP
As referenced in this Loan Assumption and Modification Agreement:
Cedar Income
Fund Partnership, – limited
partnership, having an address of c/o Brentway Management LLC, 44 South Bayles
Avenue, Suite 304, Port Washington, NY 11050 ("Assuming Borrower"), Cedar Income
Fund Partnership, L.P. a Delaware limited partnership; Cedar Income Fund, Ltd.,
a Maryland corporation, having an address at c/o Brentway Management LLC,
_____________
Cedar Income Fund Partnership, – terms of this
Agreement and to assume and carry out the terms of the Loan Documents to which
it is a party.
(e) Cedar Income Fund Partnership, L.P. is a limited partnership duly
organized and validly existing under the laws of the State of Delaware and is
qualified
_____________
Cedar Income Fund
Partnership, – qualified to do business and in good standing in each jurisdiction in which such
qualification is necessary for the operation of its business. Cedar Income Fund
Partnership, L.P. has full power and authority to enter into and carry out the
terms of this Agreement and to assume and
_____________
Cedar Income Fund Partnership, – Partner
By: /s/ Brenda J. Walker
------------------------------------
Name: Brenda J. Walker
------------------------------------
Title: Vice President
------------------------------------
Executed on the 2nd day of July, 2002
ASSUMING
PRINCIPAL: Cedar Income Fund Partnership, L.P.,
a Delaware limited partnership
By: Cedar Income Fund, Ltd., a Maryland
corporation
Its: General Partner
By: /s/ Brenda J. Walker
------------------------------------
_____________
dt 109128
;
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Glimcher Loyal
As referenced in this Loan Assumption and Modification Agreement:
Glimcher Loyal Plaza Tenant, – a Delaware limited partnership having an address at 20 South Third Street,
Columbus, OH 43215 ("Original Borrower"), Glimcher Properties Limited
Partnership ("Glimcher") and Glimcher Loyal Plaza Tenant, L.P. ("Tenant") having
an address at 20 South Third Street, Columbus, OH 43215 in favor of LASALLE BANK
NATIONAL ASSOCIATION, as
_____________
Glimcher Loyal Plaza Tenant, – full power and authority to enter into this Agreement as General Partner on
behalf of Original Borrower, and to execute this Agreement.
(c) Glimcher Loyal Plaza Tenant, L.P. is a limited partnership duly
organized and validly existing under the laws of the State of Delaware and is
qualified
_____________
Glimcher Loyal Plaza Tenant, – under the laws of the State of Delaware and is
qualified to do business and in good standing in the State of Pennsylvania.
Glimcher Loyal Plaza Tenant, L.P. has full power and authority to enter into and
carry out the terms of this Agreement.
(d) Glimcher Properties Limited
_____________
Glimcher Loyal Plaza Tenant, – s/ William J. Cornely
------------------------------------
Name: William J. Cornely
------------------------------------
Title: Executive V. P., COO and CFO
------------------------------------
Executed on the ____ day of June, 2002
Glimcher Loyal Plaza Tenant, L.P., a Delaware
limited partnership
By: Glimcher Loyal Plaza Tenant, Inc., a
Delaware corporation
Its: General Partner
By: /s/ William J.
_____________
Glimcher Loyal Plaza Tenant, – P., COO and CFO
------------------------------------
Executed on the ____ day of June, 2002
Glimcher Loyal Plaza Tenant, L.P., a Delaware
limited partnership
By: Glimcher Loyal Plaza Tenant, Inc., a
Delaware corporation
Its: General Partner
By: /s/ William J. Cornely
------------------------------------
Name: William J. Cornely
------------------------------------
Title: Executive V. P., COO and
_____________
dt 112913
;
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Permanent Loan Commitment
Permanent Loan Commitment (63K)
Doc #254838: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10
{SEQUENCE}18
{FILENAME}exh10-16.txt
{DESCRIPTION}EXHIBIT 10.16
{TEXT}
{PAGE}
April 1, 2002
Via United Parcel Service
-------------------------
The Point Associates, L.P.
c/o Ekstein Rothenberg Corp.
Attn: Milton Ciplet
708 Third Avenue
New York, New York 10017
Project: The Point Shopping Center
Harrisburg, Dauphin County, Pennsylvania
Gentlemen:
Protective Life Insurance Company is pleased to advise you of its
approval of a loan subject to your compliance with the enclosed Permanent Loan
Commitment.
Enclosed are two counterparts of Protective Life Insurance Company's
Permanent Loan Commitment dated April 1, 2002 on the above-referenced project.
The Borrower should execute and return one counterpart to us, unmarked, along
with any unpaid required fee. Any revisions or modifications should be requested
in writing for consideration.
Also, please find enclosed the Form W-9, which must be filled out for
the borrowing entity indicating the taxpayer identification number and returned
with the Commitment.
The enclosed Commitment requires an appraisal, a Phase I environmental
site assessment and, unless the improvements are newly constructed, a property
condition survey. We must pre-approve the firms and/or individuals preparing
these reports. To facilitate the approval process, please have the appropriate
firms fill out and return the enclosed forms (all questions must be answered)
and attach supporting documentation (brochures, insurance accords, resumes).
Once completed and returned, we will advise if approved or not.
Sincerely,
J. Craig Cecil
Second Vice President
Investment Department
JCC/dn
{PAGE}
PERMANENT LOAN COMMITMENT
April 1, 2002
Project: The Point Shopping Center
I-83 and Union Deposit Road
Harrisburg, Dauphin County, Pennsylvania
Protective Life Insurance Company ("Lender") agrees to provide secured
first lien financing ("Loan") for the above-referenced Project to the Borrower
(defined below) on the terms and conditions set forth below:
PART I - THE LOAN
1.1. BASIC LOAN TERMS AND DEFINITIONS:
---------------------------------
The following are the basic terms of the loan. Capitalized terms are
definitions for the purposes of this agreement. Such basic terms are
subject to the other conditions of this Commitment and definitive loan
documents.
{TABLE}
{S} {C}
Borrower: The Point Associates, L.P. having as its general partner The Point Shopping Center, LLC
having as its sole member Cedar Income Fund Partnership, L.P.
Principal(s): Cedar Income Fund, Ltd.
Loan Amount: $21,000,000 ("Ceiling Loan") Interest Rate: 7.625% per annum
$20,000,000 ("Floor Loan")
Amortization: 25 years Monthly Payment: See Section 1.4
(Principal and Interest)
Call Date: 10 years
Maturity Date: 25 years Liability: Nonrecourse (described below)
Project Acreage: 24+/-acres Building Size: 260,867 square feet
Required Parking: 1,210 spaces Minimum Appraised Value: $28,000,000
----------------------------------------------------------------------------------------------------------------------
FEES/EXPIRATION DATE
Commitment Fee: $420,000
Site Inspection/Application Fee: $1,500
Acceptance Date: April 11, 2002
Expiration Date Floor Loan: May 30, 2002
Expiration Date Ceiling Loan: May 30, 2004
{/TABLE}
-1-
{PAGE}
1.2. NONRECOURSE LIABILITY:
---------------------
Borrower (if Borrower is a partnership, then also each general partner)
shall have no personal liability for the payment of the principal,
interest, prepayment fee or Premium, if any, provided for in the Loan,
except as herein provided in the following paragraph.
Borrower (and any general partner) and the Principal(s) listed in
Section 1.1 above shall, jointly and severally, absolutely and
unconditionally covenant and agree to pay, indemnify and hold Lender
harmless against any and all damage, loss, liability, costs and
expenses which Lender may suffer or to which Lender may become subject,
plus interest thereon at the After-Maturity Rate, which arise out of or
are based upon:
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Brentway
As referenced in this Permanent Loan Commitment:
Brentway Management – managed and leased by an agent
acceptable to Lender. Any management, leasing or similar fee must be
subordinated to the Loan. Lender approves Brentway Management LLC as
manager of the Project.
5.4. BORROWER TO PAY ALL EXPENSES:
----------------------------
All expenses in connection with the Loan including, but not
_____________
dt 112445
;
CIFP
As referenced in this Permanent Loan Commitment:
Cedar Income Fund Partnership, – S} {C}
Borrower: The Point Associates, L.P. having as its general partner The Point Shopping Center, LLC
having as its sole member Cedar Income Fund Partnership, L.P.
Principal(s): Cedar Income Fund, Ltd.
Loan Amount: $21,000,000 ("Ceiling Loan") Interest Rate: 7.625% per annum
$20,
_____________
Cedar Income Fund Partnership, – L.P. TAX ID#: 23-2537467
----------
By its general partner:
The Point Shopping Center, LLC Tax Id#: 11-3551567
----------
By its sole member:
Cedar Income Fund Partnership, L.P. Tax Id#: 11-3440066
----------
By: Cedar Income Fund, Ltd., GP
By: /s/ Leo S. Ullman
------------------------------
Its: President
"PRINCIPAL(S)"
Cedar
_____________
dt 109141
;
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Koninklijke
As referenced in this Permanent Loan Commitment:
Koninklijke Ahold, n – 200 20 Years $ 30,000 (2)
Cokesbury Bookstore 5,200 10 Years $ 69,792 (2)
-------------------------------------------------------------------------------------------------------------------------
{/TABLE}
NOTES:
1. The terms and conditions of the lease shall be unconditionally guaranteed by
Koninklijke Ahold, n .v.
2. In addition to the gross minimum annual rent, the tenant shall pay its own
utilities and interior maintenance costs; its pro rata share of taxes,
insurance and
_____________
dt 1507041
;
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| 2004 |
Hotel Loan Agreement
Hotel Loan Agreement (285K)
Doc #265042: Click preview link for longer preview.
[MERRILL LYNCH LOGO]
HOTEL LOAN AGREEMENT
FOR A LOAN IN THE AMOUNT OF
$36,000,000
MADE BY AND AMONG
ASHFORD DAYTON LP,
ASHFORD COLUMBUS LP,
ASHFORD FLAGSTAFF LP,
ASHFORD PHOENIX LP, AND
ASHFORD SYRACUSE LP,
EACH A DELAWARE LIMITED PARTNERSHIP
AS "BORROWERS"
AND
MERRILL LYNCH CAPITAL,
A DIVISION OF MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC.,
A DELAWARE CORPORATION
222 NORTH LASALLE STREET - 16TH FLOOR
CHICAGO, ILLINOIS 60601
AS "LENDER"
ASHFORD HOTEL PORTFOLIO
Dated as of December 24, 2003
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
----
{S} {C}
ARTICLE 1 INCORPORATION OF RECITALS, EXHIBITS AND SCHEDULES.................................................. 2
1.1 Incorporation of Recitals.................................................................. 2
1.2 Incorporation of Exhibits and Schedule..................................................... 2
1.3 Definitional Provisions.................................................................... 2
ARTICLE 2 LOAN AND LOAN DOCUMENTS............................................................................ 2
2.1 Conditions Precedent....................................................................... 2
2.2 Loan Documents............................................................................. 2
2.3 Disbursements.............................................................................. 3
2.4 Term of the Loan........................................................................... 4
2.5 Prepayments................................................................................ 5
2.6 Interest................................................................................... 5
2.7 Monthly Payments........................................................................... 6
2.8 Exit Fee................................................................................... 6
2.9 Default Interest and Late Charge........................................................... 6
2.10 Project Partial Prepayments, Partial Releases.............................................. 7
ARTICLE 3 FINANCIAL REPORTING COVENANTS...................................................................... 7
3.1 Financial Information Reporting............................................................ 7
3.2 Financial Information Form and Examination................................................. 9
ARTICLE 4 OPERATIONAL AND OTHER COVENANTS.................................................................... 9
4.1 Leasing and Operational Covenants.......................................................... 9
4.2 Other Borrower Covenants................................................................... 14
4.3 Authorized Representative.................................................................. 22
ARTICLE 5 BORROWER'S REPRESENTATIONS AND WARRANTIES.......................................................... 23
5.1 Borrower's Representations and Warranties.................................................. 23
ARTICLE 6 ENVIRONMENTAL MATTERS.............................................................................. 28
6.1 Environmental Representations and Warranties............................................... 28
6.2 Environmental Covenants.................................................................... 28
6.3 Right of Entry and Disclosure of Environmental Reports..................................... 29
6.4 Environmental Indemnitor's Remedial Work................................................... 31
6.5 Environmental Indemnity.................................................................... 31
6.6 Remedies Upon an Environmental Default..................................................... 32
6.7 Unconditional Environmental Obligations.................................................... 33
6.8 Assignment of Environmental Obligations Prohibited......................................... 33
6.9 Indemnification Separate from the Loan..................................................... 33
ARTICLE 7 CASUALTIES AND CONDEMNATION........................................................................ 34
7.1 Lender's Election to Apply Insurance Proceeds on Indebtedness.............................. 34
7.2 Borrower's Obligation to Rebuild and Use of Insurance Proceeds Therefor.................... 34
{/TABLE}
-i-
{PAGE}
{TABLE}
{S} {C}
ARTICLE 8 EVENTS OF DEFAULT AND REMEDIES..................................................................... 35
8.1 Events of Default.......................................................................... 35
8.2 Remedies Conferred Upon Lender............................................................. 37
ARTICLE 9 LOAN EXPENSE, COSTS AND ADVANCES................................................................... 38
9.1 Loan and Administration Expenses........................................................... 38
9.2 Right of Lender to Make Advances to Cure Borrower's Defaults............................... 39
9.3 Increased Costs............................................................................ 39
9.4 Borrower Withholding....................................................................... 39
9.5 Document and Recording Tax Indemnification................................................. 39
ARTICLE 10 ASSIGNMENTS BY LENDER AND DISCLOSURE.............................................................. 40
10.1 Assignments and Participations............................................................. 40
10.2 Disclosure of Information.................................................................. 40
ARTICLE 11 GENERAL PROVISIONS................................................................................ 40
11.1 Captions................................................................................... 40
11.2 Waiver of Jury Trial....................................................................... 40
11.3 Jurisdiction............................................................................... 41
11.4 Governing Law.............................................................................. 42
11.5 Lawful Rate of Interest.................................................................... 42
11.6 Modification; Consent...................................................................... 42
11.7 Waivers; Acquiescence or Forbearance Not to Constitute Waiver of Lender's
Requirements............................................................................... 42
11.8 Disclaimer by Lender....................................................................... 43
11.9 Partial Invalidity; Severability........................................................... 44
11.10 Definitions Include Amendments............................................................. 44
11.11 Execution in Counterparts.................................................................. 44
11.12 Entire Agreement........................................................................... 44
11.13 Waiver of Damages.......................................................................... 45
11.14 Claims Against Lender...................................................................... 45
11.15 Set-Offs................................................................................... 45
11.16 Relationship............................................................................... 45
11.17 Agents..................................................................................... 46
11.18 Interpretation............................................................................. 46
11.19 Successors and Assigns..................................................................... 46
11.20 Time is of the Essence..................................................................... 46
11.21 Notices.................................................................................... 46
11.22 Joint and Several Liability................................................................ 48
{/TABLE}
-ii-
{PAGE}
LIST OF EXHIBITS AND SCHEDULES TO LOAN AGREEMENT
Joinder Principal's Limited Joinder
Exhibit A Legal Description of Land
Exhibit B Permitted Exceptions
Exhibit C Litigation
Exhibit D Rent Roll
Exhibit E Insurance Requirements
Exhibit F Environmental Documents
Exhibit G FF&E Not Owned by Borrower
Exhibit H Intellectual Property
Exhibit I Direct and Indirect Ownership of Borrowers, Project Lessee and
Principal
Exhibit J Franchise Licenses
Exhibit K Release Price
Exhibit L Encroachments
Schedule I Definitions
-iii-
{PAGE}
HOTEL LOAN AGREEMENT
THIS HOTEL LOAN AGREEMENT ("AGREEMENT") is made as of December
__, 2003, by and among ASHFORD DAYTON LP, ASHFORD COLUMBUS LP, ASHFORD FLAGSTAFF
LP, ASHFORD PHOENIX LP, and ASHFORD SYRACUSE LP, each a Delaware limited
partnership (collectively, "BORROWERS"; each a "BORROWER"), and MERRILL LYNCH
CAPITAL, a Division of Merrill Lynch Business Financial Services Inc., a
Delaware corporation (collectively, with its successors and assigns, "LENDER").
RECITALS
A. Each Borrower is the owner in fee simple of the land or, in
the case of Ashford Columbus LP, the lessee of the air rights legally described
in Exhibit A below the name of such Borrower, together with the improvements
located thereon or therein generally consisting of a hotel and related
facilities as more specifically described in Exhibit A.
B. Principal has applied to Lender for a loan to Borrowers of up
to Thirty-Six Million and No/100ths Dollars ($36,000,000.00) (the "LOAN") for
the purpose of refinancing acquisition costs and financing renovation costs for
the Projects, and Lender is willing to make the Loan on the terms and conditions
hereinafter set forth. The Loan is evidenced by that certain Promissory Note of
even date herewith made by Borrowers in the original principal amount of
Thirty-Six Million and No/100ths Dollars ($36,000,000.00) and payable to Lender
(the Promissory Note and all amendments thereto and substitutions therefor are
hereinafter referred to as the "NOTE"). The terms and provisions of the Note are
hereby incorporated by reference, in this Agreement.
C. Borrowers' obligations under the Loan will be secured by,
among other items, (a) the Mortgages, (b) a Security Agreement encumbering
Borrowers' personal property (the "SECURITY AGREEMENT") and (c) a Lessee
Security Agreement encumbering Project Lessee's personal property (the "LESSEE
SECURITY AGREEMENT"), each granting Lender a first priority security interest in
all of the assets of each Borrower and a security agreement executed by Project
Lessee granting Lender a first priority security interest in all personal
property owned by Project Lessee and used in connection with each Project. This
Agreement, the Note, the Mortgages, that certain Lessor Estoppel Certificate and
Agreement executed December __, 2003, by and between Ashford Columbus LP, Lender
and Huntington Center Associates, and any other documents evidencing or securing
the Loan or executed in connection therewith, and any modifications, renewals
and extensions thereof, are referred to herein collectively as the "LOAN
DOCUMENTS."
D. Each Borrower has entered into a lease of the Project owned by
such Borrower (each, a "PROJECT LEASE") with Ashford TRS Corporation, a Delaware
corporation (together with its successors and assigns, "PROJECT LESSEE"),
pursuant to which Project Lessee will lease each Project to the applicable
Borrower.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
{PAGE}
ARTICLE 1
INCORPORATION OF RECITALS, EXHIBITS AND SCHEDULES
1.1 INCORPORATION OF RECITALS.
The foregoing preambles and all other recitals set forth herein are
made a part hereof by this reference.
1.2 INCORPORATION OF EXHIBITS AND SCHEDULE.
Exhibits A through J, the Limited Joinder and Schedule I to this
Agreement, attached hereto are incorporated in this Agreement and expressly made
a part hereof by this reference.
1.3 DEFINITIONAL PROVISIONS.
All terms defined in Schedule I of this Agreement or otherwise in
this Agreement shall, unless otherwise defined therein, have the same meanings
when used in the Note, Mortgage, any other Loan Documents, or any certificate or
other document made or delivered pursuant hereto. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement. The word "include(s)" when used in this Agreement and
the other Loan Documents means "include(s), without limitation," and the word
"including" means "including, but not limited to."
ARTICLE 2
LOAN AND LOAN DOCUMENTS
2.1 CONDITIONS PRECEDENT.
Borrowers agree that Lender's obligation to close the Loan is
conditioned upon Borrowers' delivery, performance and satisfaction, in Lender's
sole discretion, of all items set forth (a) in that certain Loan Application
accepted by Principal on October 31, 2003 (the "LOAN APPLICATION") and (b) on
that certain Closing Checklist issued with respect to such Loan Application.
2.2 LOAN DOCUMENTS.
Borrowers agree that Borrowers will, on or before the Closing Date,
execute and deliver or cause to be executed and delivered to Lender this
Agreement and the other Loan Documents in form and substance acceptable to
Lender. In addition, Borrowers shall deliver such other documents, instruments
or certificates as Lender and its counsel may reasonably require, including such
documents as Lender in its sole discretion deems necessary or appropriate to
effectuate the terms and conditions of this Agreement and the other Loan
Documents, and to comply with the laws of the states of Illinois and, as
applicable, New York, Ohio and Arizona. Furthermore, Borrowers acknowledge that
Borrowers are obligated to cause their counsel to issue a legal opinion (in form
reasonably satisfactory to Lender) for the benefit of Lender.
265042
|
Ashford
As referenced in this Hotel Loan Agreement:
Ashford Hospitality Limited – If to Borrowers or any Borrower:
Ashford Dayton LP
Ashford Columbus LP
Ashford Flagstaff LP
Ashford Phoenix LP
Ashford Syracuse LP
c/o Ashford Hospitality Limited Partnership
14180 Dallas Parkway
Pacific Center I, Suite 700
Dallas, Texas 75240-4376
Attention: David A. Brooks
Telephone: (972) 778-9207
Facsimile: (972)
_____________
ASHFORD HOSPITALITY LIMITED – set forth in Sections 11.3, and
11.4, respectively.
[SIGNATURES ON FOLLOWING PAGE]
-4-
{PAGE}
Executed as of December __, 2003.
PRINCIPALS:
ASHFORD HOSPITALITY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ashford OP General Partner LLC, a Delaware
limited liability company
/s/ David A. Brooks
-----------------------------
By: David A.
_____________
Ashford
Hospitality Limited – of this offering, excluding the 65,024 shares
issued to the underwriters.
(2) Messrs. Archie and Montgomery Bennett beneficially own 15.85% of Ashford
Hospitality Limited Partnership (3.27% through their 100% ownership of
Ashford Financial Corporation). Mr. Marty Edelman and certain family
members beneficially own 0.70%. Mr.
_____________
Ashford Hospitality Limited – term is defined in Section 2.3(b).
PRELIMINARY HOLDBACK COMPLETION SCHEDULE: As such term is defined in
Section 2.3(b).
PRINCIPAL: Ashford Hospitality Limited Partnership, a Delaware limited
partnership.
PROCEEDING: As such term is defined in Section 11.3.
-7-
{PAGE}
PROJECT: The reference to each hotel
_____________
Ashford Hospitality Limited
– ASHFORD FLAGSTAFF LP,
ASHFORD PHOENIX LP, and ASHFORD SYRACUSE LP, each a Delaware limited partnership
(collectively, "BORROWER"), having an address at c/o Ashford Hospitality Limited
Partnership, 14180 Dallas Parkway, Pacific Center I, Suite 900, Dallas, Texas
75254, and MERRILL LYNCH CAPITAL, a Division of Merrill Lynch Business
_____________
dt 183254
;
Ashford
As referenced in this Hotel Loan Agreement:
Ashford Hospitality Trust, – not result in a change of Control of any Borrower,
General Partner, Project Lessee or Principal or (B) publicly traded capital
stock in Ashford Hospitality Trust, Inc., a Maryland corporation, shall not
constitute a Transfer or (d) any assignment or other disposition (including any
pledge) by any Borrower
_____________
dt 165455
;
Ashford TRS
As referenced in this Hotel Loan Agreement:
Ashford TRS Corp – the "LOAN
DOCUMENTS."
D. Each Borrower has entered into a lease of the Project owned by
such Borrower (each, a "PROJECT LEASE") with Ashford TRS Corp oration, a Delaware
corporation (together with its successors and assigns, "PROJECT LESSEE"),
pursuant to which Project Lessee will lease each Project to the
_____________
Ashford TRS Corp – License Agreement dated October 8, 2003, executed by
Doubletree Hotel Systems, Inc., as franchisor, and Ashford Dayton LP, a Delaware
limited partnership, and Ashford TRS Corp oration, a Delaware corporation, as
franchisee, covering the Doubletree Guest Suites located at 300 Prestige Place,
Dayton, Ohio.
2. Franchise License Agreement dated
_____________
Ashford TRS Corp – License Agreement dated October 8, 2003, executed by
Doubletree Hotel Systems, Inc., as franchisor, and Ashford Columbus LP, a
Delaware limited partnership, and Ashford TRS Corp oration, a Delaware
corporation, as franchisee, covering the Doubletree Guest Suites located at 50
S. Front Street, Columbus, Ohio.
3. Franchise License Agreement
_____________
Ashford TRS Corp – Franchise License Agreement dated October 8, 2003, executed by
Promus Hotels, Inc., as franchisor, and Ashford Flagstaff LP, a Delaware limited
partnership, and Ashford TRS Corp oration, a Delaware corporation, as franchisee,
covering the Embassy Suites located at 706 South Milton Road, Flagstaff,
Arizona.
4. Franchise License Agreement dated
_____________
Ashford TRS Corp – Franchise License Agreement dated October 8, 2003, executed by
Promus Hotels, Inc., as franchisor, and Ashford Phoenix LP, a Delaware limited
partnership, and Ashford TRS Corp oration, a Delaware corporation, as franchisee,
covering the Embassy Suites located at 1515 N. 44th Street, Phoenix, Arizona.
5. Franchise License Agreement dated
_____________
dt 183212
;
|
FelCor Lodging
As referenced in this Hotel Loan Agreement:
FelCor Lodging Trust – from Hotel. Forwarded to Craig Manning at Marsh
(February 24, 2003) on 1-24-03.
Angela F. Ormond and Edmond J. Ormond v. FelCor Lodging Trust Incorporated (No.
114631)
Type of Claim: Personal Injury (involving treadmill)
Property: Syracuse, NY/Embassy Suites
DOL/Date Served: August 30, 2002/August 28,
_____________
FelCor Lodging Trust – asking for $1,000,000 in damages.
Pasquale Popolizio and Lisa Stadtlander, as parent & natural guardian of Teodoro
J. Popolizio, a minor v. FelCor Lodging Trust Incorporated, FelCor Lodging
Limited Partnership, Hilton Hotels Corporation
Type of Claim: Personal Injury (electrical shock due to faulty lamp)
{PAGE}
EXHIBIT D
RENT
_____________
dt 158696
;
Frisch's
As referenced in this Hotel Loan Agreement:
Frisch's Restaurants, Inc – point of
beginning, containing .003 acres, more or less.
Together with those appurtenant and non-exclusive rights under a Deed of
Easement between Frisch's Restaurants, Inc ., and PC Development Limited
Partnership dated January 30, 1987 and recorded January 30, 1987 at 12:34 P.M.
in Deed Microfiche
_____________
Frisch's Restaurants, Inc – 87-0055E04, Montgomery county recorder's office.
Part III:
Together with those appurtenant and non-exclusive rights under a Deed of
Easement between Frisch's Restaurants, Inc ., and PC Development Limited
Partnership dated January 30, 1987 and recorded January 30, 1987 at 12:34 P.M.
in Deed Microfiche
_____________
dt 363233
;
 Merrill Lynch
As referenced in this Hotel Loan Agreement:
Merrill Lynch & Co – be earned upon
the execution of this Agreement. In the event that Borrowers refinance the Loan
with a securitizable loan from any other Merrill Lynch & Co . division or
Affiliate, Lender will waive the payment of the Exit Fee otherwise due at the
time of the repayment of the
_____________
Merrill Lynch & Co – otherwise due at the
time of the repayment of the Loan from the proceeds of such refinance. There is
no obligation by any Merrill Lynch & Co . division or Affiliate to provide a
securitizable loan or even a quote thereon (either based on the then-existing
market rates or
_____________
Merrill Lynch & Co – disclose or otherwise use in
any advertising or promotional material, or press release or interview, the
name, logo or any trademark of Lender, Merrill Lynch & Co ., Inc. or any of their
affiliates.
(u) Bank Accounts; Notices to Account Debtors; Agreements with
Credit Card Issuers. Each Borrower will, and
_____________
dt 149752
|
| Preview
Full Doc
| 2001 |
Loan Document Purchase and Assignment Agreement
Loan Document Purchase and Assignment Agreement (29K)
Doc #292512: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-4.1
{SEQUENCE}2
{FILENAME}0002.txt
{TEXT}
LOAN DOCUMENT PURCHASE AND ASSIGNMENT AGREEMENT
-----------------------------------------------
THIS LOAN DOCUMENT PURCHASE AND ASSIGNMENT AGREEMENT (the "Agreement") is
made as of this 30th day of June, 2000 (the "Effective Date") by and between
Silicon Valley Bank ("Assignor") and those certain other parties executing this
Agreement as shown on the signature page hereto (collectively the "Assignees").
RECITALS
--------
A. Assignor is a party to certain loan documents which evidence certain
loans by Assignor to SafeGuard Health Enterprises, Inc., a Delaware corporation
("Borrower"), which are listed on Exhibit "A" attached hereto and incorporated
herein by this reference and collectively referred to herein as the "Loan
Documents." Copies of the Loan Documents are attached hereto as Exhibit "A-1"
and incorporated herein by this reference.
B. Assignees and Assignor desire for Assignees to purchase all of
Assignor's right, title, and interest in and to the Loan Documents and all the
indebtedness of Borrower to Assignor evidenced thereby for an aggregate purchase
price of $5,000,000 FIVE MILLION DOLLARS ($5,000,000).
C. Assignor desires to transfer to Assignees all of Assignor's right,
title, and interest in and to the Loan Documents and all the indebtedness of
Borrower to Assignor evidenced thereby on the terms and conditions set forth
herein.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Payment of Purchase Price. At the Closing (hereinafter defined),
----------------------------
the Assignees shall pay to Assignor the aggregate sum of $5,000,000 (FIVE
MILLION DOLLARS) by wire transfer, cashier's check, or other readily available
funds (the "Purchase Price"). The obligations of the Assignees shall be several
and not joint under this Agreement. Each Assignee shall be only obligated to
pay the respective portion of the aggregate $5,000,000 Purchase Price reflected
under the respective signature of the Assignee on the signature page hereto.
2. Conditions to Obligations of the Assignor. The obligations of the
-------------------------------------------
Assignor hereunder shall be subject to and conditioned upon the receipt of the
entire $5,000,000 Purchase Price by the Assignees collectively. The Assignor
shall not be obligated to close the transaction contemplated by this Agreement
unless the total aggregate Purchase Price is paid by the Assignees The
obligations of the Assignor hereunder shall not be subject to or conditioned
upon any other conditions precedent.
3. Conditions to Obligations of the Assignees. The obligations of the
-------------------------------------------
Assignees hereunder shall be subject to and conditioned upon the receipt of all
required regulatory approvals necessary to consummate the change of control of
the Borrower resulting from the transactions contemplated by the Term Sheet
Agreement (referenced as Item 1 on Exhibit A hereto) and contemplated by this
Agreement which results in a change of the acquiring parties as such term is
defined under the governmental regulations applicable to the change of control
of Borrower. Other than receipt of such required regulatory approvals and the
accuracy of the representations and warranties of the Assignor on the date of
Closing, the obligations of the Assignees hereunder shall not be subject to or
conditioned upon any other conditions precedent.
1
{PAGE}
4. Closing. The closing (the "Closing") under this Agreement shall
-------
occur simultaneously with the closing of the sale of the Preferred Stock
pursuant to the Term Sheet Agreement.
5. Assignment of Loan Documents. In consideration of the receipt of
-------------------------------
the Purchase Price, Assignor shall grant, assign, convey, transfer, and set over
to Assignees (i) all of the Loan Documents, including, without limitation, the
promissory notes included therein, (ii) all sums payable thereunder, and (iii)
all of Assignor's rights, title and interest in the collateral securing the Loan
as described in the Loan Documents and all rights to enforce any guaranties
contained therein, together with all its rights, remedies and powers, benefits,
fees and revenues pertaining thereto, with good right to collect, enforce,
release and discharge the same, as well as any and all liens, security
interests, assignments and financing statements existing and securing the
obligation, in and under the Loan Documents thereunder, to have and hold each of
the Loan Documents, together with all right, title, interest, liens, privileges,
claims, demands and equities existing and to exist in connection thereunder or
as security therefor unto Assignees, their respective successors and assigns.
Simultaneously with the Closing under this Agreement and receipt of the Purchase
Price by Assignor, Assignor shall endorse to Leslie B. Daniels as Agent for
Assignees those Loan Documents consisting of negotiable promissory notes and
Assignor shall deliver to Assignees the original Loan Documents. In addition,
simultaneously with the Closing under this Agreement and receipt of the Purchase
Price by Assignor, Assignor shall execute and deliver to Assignees such UCC
financing statement change forms as may be reasonably requested by Assignees to
reflect the assignment herein. Except as expressly set forth in Section 7 of
this Agreement, the sale and assignment pursuant to this Agreement is made
without recourse to Assignor and without any representation and warranty by
Assignor.
6. Acceptance of Assignment. Effective as of the Closing hereunder,
--------------------------
Assignees shall accept the assignment set forth in Section 5 of this Agreement.
7. Assignor's Representations. As of the Effective Date and as of the
---------------------------
date of the Closing, Assignor represents, warrants, and covenants to Assignees
that Exhibit A sets forth a true and complete list of all the agreements,
documents, and instruments entered into in connection with the transactions
contemplated by the Loan Documents; that the copies of the Loan Documents
attached as Exhibit A-1 are true, accurate and complete copies of the originals
of such documents; that the Loan Documents have not been amended, modified,
supplemented or released except as reflected in copies of the Loan Documents
attached as Exhibit A-1; that Assignor is the present legal and equitable owner
and holder of each of the Loan Documents described herein, the indebtedness
evidenced thereby, and all pledges, liens and security interests existing in
connection therewith and securing payments thereof; that Assignor has the full
right and authority to transfer and convey each of the Loan Documents described
herein, the indebtedness evidenced thereby and all security therefor, and to
execute this Agreement; that the Assignor has not assigned, mortgaged,
2
{PAGE}
hypothecated, granted a security interest in, or otherwise encumbered, any of
the Loan Documents, the indebtedness evidenced thereby or any of said liens or
security to any other parties; that, as of the Effective Date $7,044,824.68 is
the outstanding principal amount of the Loan Documents; that, as of June 15,
2000, interest due under the Loan Documents has been paid through December 31,
1999; that, to the best of Assignor's knowledge, no defense, counterclaim or
right of setoff exists with respect to the indebtedness evidenced by the Loan
Documents and that the Borrower has not asserted to Assignor that any exist;
that Assignor has not subordinated the indebtedness represented by the Loan
Documents to any other indebtedness of Borrower; that, to the Assignor's
292512
|
Chicago Title
As referenced in this Loan Document Purchase and Assignment Agreement:
Chicago Title Co – Absolute Assignment of Leases and Rents, Security Agreement,
Fixture Filing and Subordination Agreement, dated May 28, 1999, among
SafeGuard Health Enterprises, Inc., Trustor, Chicago Title Co mpany, Trustee
and Silicon Valley Bank, Collateral Agent
5. Negative Pledge Agreement, dated May 28, 1999, between SafeGuard Health
Enterprises, Inc., Borrower, and
_____________
dt 253868
;
Safeguard Health
As referenced in this Loan Document Purchase and Assignment Agreement:
SafeGuard Health Enterprises, – signature page hereto (collectively the "Assignees").
RECITALS
--------
A. Assignor is a party to certain loan documents which evidence certain
loans by Assignor to SafeGuard Health Enterprises, Inc., a Delaware corporation
("Borrower"), which are listed on Exhibit "A" attached hereto and incorporated
herein by this reference and collectively referred
_____________
SAFEGUARD HEALTH ENTERPRISES, – thereafter should be
sent to Leslie B. Daniels, 767 Fifth Avenue, 5th Floor, New York, New York
10153, as Agent for Assignees.
BORROWER:
SAFEGUARD HEALTH ENTERPRISES, INC.,
a Delaware corporation
By: /s/ James E. Buncher
----------------------------------------
Name: James E. Buncher
Title: President
7
{PAGE}
EXHIBIT A
LIST OF LOAN
_____________
SafeGuard Health
Enterprises, – Name: James E. Buncher
Title: President
7
{PAGE}
EXHIBIT A
LIST OF LOAN DOCUMENTS
1. Term Sheet Agreement dated March 1, 2000, among SafeGuard Health
Enterprises, Inc., CAI Partners and Company II, L.P., CAI Capital Partners
and Company II, L.P., Jack R. Anderson, Steven J. Baileys,
_____________
SafeGuard Health Enterprises
– and Company II, L.P., Jack R. Anderson, Steven J. Baileys, Silicon Valley
Bank and the holders of 7.91% Senior Notes of SafeGuard Health Enterprises
due September 30, 2005.
2. $500,000 Straight Note, dated May 24, 1999, payable to SafeGuard Health
Enterprises, Inc. by Anaheim Place
_____________
SafeGuard Health
Enterprises, – 7.91% Senior Notes of SafeGuard Health Enterprises
due September 30, 2005.
2. $500,000 Straight Note, dated May 24, 1999, payable to SafeGuard Health
Enterprises, Inc. by Anaheim Place Partners, L.P. with Allonge, dated June
21, 1999, payable to the order of Silicon Valley Bank, as
_____________
dt 231128
;
|
SVB
As referenced in this Loan Document Purchase and Assignment Agreement:
Silicon Valley Bank – DOCUMENT PURCHASE AND ASSIGNMENT AGREEMENT (the "Agreement") is
made as of this 30th day of June, 2000 (the "Effective Date") by and between
Silicon Valley Bank ("Assignor") and those certain other parties executing this
Agreement as shown on the signature page hereto (collectively the "Assignees").
RECITALS
--------
A. Assignor
_____________
SILICON VALLEY BANK
– HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
5
{PAGE}
IN WITNESS WHEREOF, the parties have executed this Agreement as set forth below.
ASSIGNOR:
SILICON VALLEY BANK
By /s/ Nido L. Paras
-----------------------------------------
Name: Nido L. Paras
Title: Senior Vice President
ASSIGNEES:
CAI PARTNERS AND COMPANY II, L.P.
By:
_____________
Silicon Valley
Bank – Enterprises, Inc., CAI Partners and Company II, L.P., CAI Capital Partners
and Company II, L.P., Jack R. Anderson, Steven J. Baileys, Silicon Valley
Bank and the holders of 7.91% Senior Notes of SafeGuard Health Enterprises
due September 30, 2005.
2. $500,000 Straight Note, dated May
_____________
Silicon Valley Bank, – payable to SafeGuard Health
Enterprises, Inc. by Anaheim Place Partners, L.P. with Allonge, dated June
21, 1999, payable to the order of Silicon Valley Bank, as Collateral Agent
3. Amended and Restated Loan and Security Agreement, dated May 27, 1999,
between Silicon Valley Bank, Lender, and SafeGuard
_____________
Silicon Valley Bank, – to the order of Silicon Valley Bank, as Collateral Agent
3. Amended and Restated Loan and Security Agreement, dated May 27, 1999,
between Silicon Valley Bank, Lender, and SafeGuard Health Enterprises,
Inc., Borrower
4. Deed of Trust, Absolute Assignment of Leases and Rents, Security Agreement,
Fixture Filing and
_____________
dt 241533
|
| Preview
Full Doc
| 2003 |
Loan Agreement (Mezzanine Loan)
Loan Agreement (Mezzanine Loan) (573K)
Doc #385961: Click preview link for longer preview.
LOAN AGREEMENT (MEZZANINE LOAN)
Dated as of June 11, 2003
Between
WCHNW MEZZ, LLC PARSIPPANY MEZZ, LLC
R-LISLE MEZZ, LLC DT-MIAMI MEZZ, L.P.
DT-DES PLAINES MEZZ, LLC DT-TALLAHASSEE MEZZ, L.P.
DT GLENVIEW MEZZ, LLC RAD-BURL MEZZ, LLC
W-GARDEN ATLANTA MEZZ, LLC H-CLEVELAND MEZZ, LLC
H-GATEWAY MEZZ, LLC R-HOUSTON LP, LLC
W-EMERALD MEZZ, LLC W-BUTTES MEZZ, LLC
W-INDIANA MEZZ, LLC W-FRANKLIN MEZZ LP, LLC
RAVINIA MEZZ, LLC W-BEL AGE MEZZ, LLC
W-COLINAS MEZZ LP, LLC
as Borrower
and
LBREP WYNDHAM MEZZANINE LLC
as Lender
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION..................................1
Section 1.1 Definitions..............................................1
Section 1.2 Principles of Construction..............................25
II. GENERAL TERMS...........................................................25
Section 2.1 Loan Commitment; Disbursement to Borrower...............25
2.1.1 Agreement to Lend and Borrow............................25
2.1.2 Single Disbursement to Borrower.........................25
2.1.3 The Note, Security Instruments and Loan Documents.......25
2.1.4 Use of Proceeds.........................................25
2.1.5 Intentionally Omitted...................................26
Section 2.2 Interest; Amortization; Loan Payments; Late Payment
Charge; Extension.......................................26
2.2.1 Interest and Principal Amortization Generally...........26
2.2.2 Interest Calculation....................................26
2.2.3 Eurodollar Rate Unascertainable; Illegality;
Increased Costs.........................................27
2.2.4 Payment on Maturity Date................................28
2.2.5 Payments after Default..................................28
2.2.6 Late Payment Charge.....................................29
2.2.7 Usury Savings...........................................29
2.2.8 Taxes...................................................29
2.2.9 Extension of the Maturity Date..........................30
Section 2.3 Prepayments.............................................31
2.3.1 Voluntary Prepayments...................................31
2.3.2 Mandatory Prepayments...................................32
2.3.3 Prepayments After Default...............................32
2.3.4 Making of Payments......................................32
Section 2.4 Interest Rate Cap Agreement.............................33
Section 2.5 Release of Property.....................................35
2.5.1 Release of a Property...................................35
2.5.2 Release on Payment in Full..............................36
Section 2.6 Substitution of Property................................37
III. CASH MANAGEMENT.........................................................38
Section 3.1 Establishment of Accounts...............................38
Section 3.2 Deposits into Property Account..........................39
Section 3.3 Distributions...........................................40
Section 3.4 Eligible Accounts.......................................40
Section 3.5 Permitted Investments...................................41
Section 3.6 Triggering Event........................................41
Section 3.7 Transfer To and Disbursements from the Lockbox
Account.................................................42
Section 3.8 Borrower's Obligation Not Affected......................43
Section 3.9 INTENTIONALLY OMITTED...................................43
Section 3.10 Lender Reliance.........................................43
Section 3.11 Application of Funds in the Excess Cash Flow Account....43
{/TABLE}
-i-
{PAGE}
{TABLE}
{S} {C}
IV. REPRESENTATIONS AND WARRANTIES..........................................44
Section 4.1 Borrower Representations................................44
4.1.1 Organization............................................44
4.1.2 Proceedings.............................................44
4.1.3 No Conflicts............................................44
4.1.4 Litigation..............................................45
4.1.5 Agreements..............................................45
4.1.6 Solvency................................................45
4.1.7 Full and Accurate Disclosure............................47
4.1.8 No Plan Assets; No Employees............................47
4.1.9 Compliance..............................................47
4.1.10 Financial Information...................................47
4.1.11 Federal Reserve Regulations.............................48
4.1.12 Not a Foreign Person....................................48
4.1.13 No Prior Assignment.....................................48
4.1.14 Enforceability..........................................48
4.1.15 Perfection..............................................48
4.1.16 Property................................................48
4.1.17 Insolvency Opinion......................................51
4.1.18 Illegal Activity........................................51
4.1.19 No Change in Facts or Circumstances; Disclosure.........51
4.1.20 Investment Company Act..................................52
4.1.21 Principal Place of Business.............................52
4.1.22 Single Purpose Entity...................................52
4.1.23 Business Purposes.......................................56
4.1.24 Taxes...................................................56
4.1.25 Forfeiture..............................................56
4.1.26 Environmental Representations and Warranties............56
4.1.27 Loan to Value...........................................57
4.1.28 Taxpayer Identification Number..........................57
4.1.29 Warranty of Title.......................................57
4.1.30 Franchise Agreement.....................................58
4.1.31 Ground Lease Representations............................58
4.1.32 Representations in the Mortgage Loan Documents..........59
4.1.33 Control.................................................59
4.1.34 Personal Holding Company................................59
4.1.35 Condominiums............................................59
4.1.36 OFAC....................................................59
Section 4.2 Survival of Representations.............................60
V. BORROWER COVENANTS......................................................60
Section 5.1 Affirmative Covenants...................................60
5.1.1 Existence; Compliance with Legal Requirements...........60
5.1.2 Taxes and Other Charges.................................61
5.1.3 Litigation..............................................62
5.1.4 Access to Property; Books and Records...................62
5.1.5 Notice of Default.......................................62
385961
|
Citibank
As referenced in this Loan Agreement (Mezzanine Loan):
Citibank, N.A. – liability company.
"Policies" shall have the meaning specified in Section 6.1 (a) hereof.
"Prime Rate" shall mean, for a particular date, the annual rate of interest
publicly announced by Citibank, N.A. in New York, New York, as its base rate in
effect for such date, as such rate shall change from time to time. If Citibank,
N.A. ceases to
_____________
Citibank,
N.A. – publicly announced by Citibank, N.A. in New York, New York, as its base rate in
effect for such date, as such rate shall change from time to time. If Citibank,
N.A. ceases to announce a base rate, Prime Rate shall mean the rate of interest
published in The Wall Street Journal from time to time as the "Prime Rate" for
_____________
dt 1478259
;
Wyndham
As referenced in this Loan Agreement (Mezzanine Loan):
Wyndham
International, Inc – liability company,
W-BEL AGE MEZZ, LLC, a Delaware limited liability company and W-COLINAS MEZZ LP,
LLC, a Delaware limited liability company, each having an address at c/o Wyndham
International, Inc ., 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207
(each a "Borrower" and, collectively, "Borrowers").
WITNESSETH:
WHEREAS, Borrowers desire to obtain the Loan (as hereinafter defined) from
Lender; and
WHEREAS,
_____________
Wyndham International, Inc – Section 13(d) of the Exchange Act, together
with all affiliates and associates (as defined in Rule 12 b-2 under the Exchange
Act) thereof.
8
{PAGE}
"Guarantor" shall mean Wyndham International, Inc .
"Guaranty" shall mean that certain Guaranty of Recourse Obligations of
Borrower (Mezzanine Loan) dated as of the date hereof from Guarantor to Lender
as the same may be amended,
_____________
Wyndham International, Inc – future owner of any
portion of the Collateral or one or more of the Properties, unless such
purchaser or owner was previously an Indemnified Party.
9
{PAGE}
"Indemnitor" shall mean Wyndham International, Inc .
"Independent Director" shall have the meaning set forth in Section
4.1.22(aa).
"Initial Interest Period" shall mean the period commencing from and
including the Closing Date to
_____________
Wyndham International, Inc – with the Loan which report, among other things, shall confirm that
the applicable Property complies with all applicable zoning laws, codes,
statutes and ordinances affecting the Property.
"Wyndham" shall mean Wyndham International, Inc .
Section 1.2 Principles of Construction.
All references to sections and schedules are to sections and schedules in
or to this Agreement unless otherwise specified. All uses of the
_____________
Wyndham International, Inc – maintained by the U.S. Postal
Service and sent by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to any of the Borrowers: c/o Wyndham International, Inc .
1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
Attention: Chief Financial Officer
Facsimile No.: (214) 863-1986
With a copy to: c/o Wyndham International, Inc.
1950 Stemmons Freeway
_____________
dt 1419574
;
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