EXHIBIT 4.3
SUPPLEMENTAL ASSIGNMENT OF LEASES AND RENTS
THIS SUPPLEMENTAL ASSIGNMENT OF LEASES AND RENTS ("Assignment") is made as
of the 28th day of August, 2002, by and between MARRIOTT RESIDENCE INN II
LIMITED PARTNERSHIP, a Delaware limited partnership ("Borrower") and LASALLE
BANK NATIONAL ASSOCIATION (f/k/a LASALLE NATIONAL BANK), AS TRUSTEE FOR NOMURA
ASSET SECURITIES CORPORATION COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 1996-MD V ("Lender").
RECITALS
Pursuant to a certain Acknowledgment, Waiver, Consent and Amendment,
dated as of August 28, 2002, by and between Borrower and Lender (the "Consent
Agreement"), Lender did consent to the consummation of the "Transactions" as
therein defined. The execution and delivery of this Assignment by Borrower to
Lender is required by the terms of the Consent Agreement.
NOW, THEREFORE, WITNESSETH, that Borrower does hereby covenant and
agree as follows:
1. Defined Terms. Capitalized terms used in this Assignment without
definition which are defined in the Definitional Appendix attached hereto and
incorporated herein shall have the meanings assigned to them in such Appendix.
2. Supplemental Assignment of Master Lease. FOR VALUE RECEIVED,
Borrower does hereby SELL, ASSIGN, TRANSFER, SET OVER and DELIVER unto Lender,
its successors and assigns, and grant to Lender, its successors and assigns, all
of Borrower's right, title and interest in and to the Master Lease and any and
all subleases, in whole or in part thereof, if any, together with all right,
title and interest of Borrower in and to all of the following:
(a) The immediate and continuing right to collect and receive all
of the rents, income, receipts, revenues, issues and profits now due or which
may become due or to which Borrower may now or shall hereafter (including the
period of redemption, if any) become entitled or may demand or claim, arising or
issuing from or out of the Master Lease or from or out of the Properties or any
part thereof, including but not by way of limitation: (i) minimum rents,
additional rents, percentage rents, parking, maintenance, tax and insurance
contributions, deficiency rents (including, without limitation, default interest
payments, late payment fees and penalties) and liquidated damages following
default, and any rights and claims of any kind which Borrower may have against
Tenant under the Master Lease or any subtenants or occupants of the Properties,
all proceeds payable under any policy of insurance covering loss of rents
resulting from untenantability caused by damage or destruction to any of the
Properties (sometimes hereinafter collectively referred to as "Rents"); (ii)
payment to Borrower for loss or damage, and rebate, refund or return of any
premium, now or hereafter paid or payable under any policy of insurance covering
the whole or any part of any of the Properties (sometimes hereinafter referred
to as "Losses or Rebates"); (iii) any sum or sums now due or hereafter to become
due to Borrower by reason of any taking of the whole or any part of any of the
Properties for public purposes, by right of eminent domain or otherwise, or by
reason of any claim now or hereafter existing against any and all parties
whomsoever for compensation for real or alleged harm or damage done to or in
connection with any of the Properties (sometimes hereinafter referred to as
"Damages"); and (iv) any abatement, rebate, refund or return owing to Borrower,
whether now or hereafter payable, of the whole or any part of
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any tax, assessment or other charge levied or assessed upon the whole or any
part of any of the Properties whether heretofore or hereafter levied or assessed
or that has been or hereafter is paid (sometimes hereinafter referred to as
"Abatements");
(b) Any and all collateral now or hereafter provided to Borrower
by the Tenant or any other person to directly or indirectly secure any of the
obligations of the Tenant under or pursuant to the Master Lease, and all
security agreements, pledge agreements, assignment agreements and other
instruments and documents creating, perfecting or in any other manner dealing
with any such collateral; and
(c) Any and all rights of Borrower under any and all guarantees
of Tenant's performance under the Master Lease.
TO HAVE AND TO HOLD the same unto Lender, its successors and assigns forever, or
for such shorter period as hereinafter may be indicated.
3. Interpretation of Master Lease. The following covenants and
agreements shall control the rights of Borrower and Lender with respect, to the
Master Lease:
(a) From and after the occurrence of any Event of Default,
Borrower irrevocably constitutes and appoints Lender, as its lawful attorney in
its name and stead, subject to the terms and conditions of the Loan Documents,
the Management Agreement and the Master Lease, as applicable:
(i) to collect any and all of the Rents, Losses or Rebates,
Damages and/or Abatements;
(ii) to use such measures, legal or equitable, as in its
reasonable discretion may be necessary or appropriate to enforce the payment of
the Rents, Losses or Rebates, Damages, Abatements and/or any security given in
connection therewith;
(iii) to order, purchase, cancel, modify, amend and/or in any
and all ways control and deal with any and all policies of insurance of any and
all kinds now or hereafter on or in connection with the whole or any part of any
of the Properties at its discretion and to adjust any loss or damage thereunder
and/or to bring suit at law or in equity therefor and to execute and/or render
any and all instruments reasonably deemed by Lender to be necessary or
appropriate in connection therewith;
(iv) to adjust, bring suit at law or in equity for, settle
or otherwise deal with any taking of any or all of any of the Properties for
public purposes as aforesaid or any claim for real or alleged harm or damage as
aforesaid and to execute and/or render any and all instruments reasonably deemed
by Lender to be necessary or appropriate in connection therewith;
(v) to adjust, settle or otherwise deal with any Abatements
and to execute and/or render any and all instruments reasonably deemed by Lender
to be necessary or appropriate in connection therewith;
(vi) subject to any rights of contest afforded to Borrower
under the Loan Documents, to use and apply Rents, Losses or Rebates, Damages
and/or Abatements to the payment of any taxes, assessments and charges of any
nature whatsoever that may be levied or assessed in
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connection with any of the Properties, to the payment of premiums on such
policies of insurance on or in connection with the whole or any part of any of
the Properties as may be reasonably deemed advisable by Lender, to the payment
of any and all indebtedness, liability or interest of Borrower secured by the
Loan Documents, whether now existing or hereafter to exist, subject to the terms
of the Management Agreement, to the payment of all expenses in the care and
management of any of the Properties, including such repairs, alterations,
additions and/or improvements to any of the Properties or any part thereof, as
may reasonably be deemed necessary or advisable by Lender, and to the payment of
reasonable attorneys' fees, court costs, labor, charges and/or expenses incurred
in connection with any and all things which Lender may do or cause to be done by
virtue hereof.
(b) Borrower warrants and represents to Lender that the Master
Lease is a valid and binding agreement enforceable against the Borrower in
accordance with its terms; that no Rents reserved in the Master Lease have been
anticipated or assigned; that, to the best of Borrower's knowledge, Tenant
thereunder is not in default of the terms thereof, that Borrower will not, so
long as the Loan Documents are in effect, modify, alter, amend, terminate,
cancel or accept a surrender of the Master Lease prior to the end of the term
thereof in any manner which would adversely affect Lender's rights under this
Assignment or under the Loan Documents without the prior written consent of
Lender; and that no request will be made of Tenant to pay any Rents, and no
Rents will be accepted (other than security deposits), in advance of the dates
upon which such Rents become due and payable under the terms of the Master
Lease, it being agreed by Borrower that Rents shall be paid as provided in the
Lease and not otherwise, and in no event for more than one month in advance.
Borrower shall observe and perform all obligations imposed upon landlord under
said leases and shall not do or suffer to be done anything to impair the
security thereof
(c) Notwithstanding Section 2(a) above or any other provision of
this Assignment to the contrary, Lender grants to Borrower, for so long as no
Event of Default shall have occurred and be continuing under the Loan Documents
(i) a license to collect all Rents, Losses or Rebates, Damages and/or Abatements
under the Master Lease, and (ii) a license to perform all rights and obligations
of the "Landlord" with respect to any of the Properties as provided under the
Master Lease. Upon the occurrence and during the continuance of an Event of
Default, the license granted to Borrower pursuant to this Section3(c) will be
automatically and immediately revoked. No notification of revocation is
required.
(d) Upon revocation of the licenses granted by Lender to Borrower
in Section 3(c) above, Lender, its successors and assigns, may notify Tenant and
all other persons who are obligated to make payments of Rents, Losses or
Rebates, Damages or Abatements to make such payments directly to Lender.
(e) Borrower, as a condition of the license granted by Lender,
shall (as between Borrower and Lender) be responsible for the control, care and
maintenance of any of the Properties and shall carry out all of the obligations
of Borrower under the Master Lease. Lender shall not be responsible for any
waste committed or permitted on any of the Properties by Tenant nor shall the
Lender be liable by reason of any dangerous or defective condition on or about
any of the Properties. Borrower shall and does hereby agree to indemnify and to
hold Lender harmless of and from any and all liability, loss or damage which may
be incurred under or in connection with the Master Lease or under or by reason
of this Assignment and of and from any and all claims and demands whatsoever
which may be asserted against it by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms, covenants or
agreements contained in the Master Lease; should Lender incur any such
liability, loss or damage under the Master Lease or under or by reason of this
Assignment, or in the defense of any such claims or demands, Lender shall
promptly notify Borrower thereof, and the amount
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thereof, including reasonable attorneys' fees, costs and expenses, shall be
secured hereby, and Borrower shall reimburse Lender therefor within ten (10)
days after Lender makes demand therefor. Any amounts not paid within such
ten-day period shall bear interest at the default rate provided in the Loan
Documents.
(f) Borrower shall, within ten (10) days after notice from Lender
to Borrower, notify Tenant that Borrower collects and receives all Rents under
authority of a license granted to it by Lender and that, if Tenant receives
notice from Lender that Borrower's license to collect and receive Rents has been
revoked, Tenant shall, upon receipt of said notice and from that time forward,
pay all unpaid Rents directly to Lender or as instructed by Lender.
4. Authority, Enforceability and Conflicts. Borrower represents and
warrants that: (a) it has full power and authority to enter into this
Assignment, to execute and deliver all documents and instruments required
hereunder, and to incur and perform the obligations provided for herein, all of
which have been duly authorized by all necessary action, and no consent or
approval of any person which has not been obtained, is required as a condition
to the validity or enforceability hereof or thereof, (b) this Assignment has
been duly executed and delivered by it and constitutes, and will continue to
constitute, the valid and legally binding obligation of such party, and is, and
will continue to be, fully enforceable against it in accordance with the terms
hereof, subject to bankruptcy and other laws affecting the rights of creditors
generally and the application of principles of equity; and (c) the execution,
delivery and performance by it of this Assignment will not violate (i) any
applicable provision of law or any applicable order, rule or regulation of any
court or governmental authority, the violation of which would have a material
adverse effect on it or on Lender's rights under the Loan Documents, or (ii) any
instrument, contract, agreement, indenture, mortgage, deed of trust or other
document or obligation to which Borrower is a party or by which it, or any of
its property, is bound.
5. Expenses. Borrower agrees to pay to Lender, promptly after demand
by Lender from time to time, the amount of all expenses, including reasonable
attorneys' fees and expenses, paid or incurred by Lender in protecting,
preserving, exercising or enforcing, or consulting with counsel concerning, any
of Lender's rights or interests hereunder. Borrower also agrees to pay to
Lender, upon demand by Lender from time to time, interest on the outstanding
amount of such expenses paid by Lender, from the date that is ten (10) days
after the date of Lender's demand for payment of such expenses until the same
are paid in full, at the default rate of interest set forth in the Loan
Documents.
6. Additional Documents. Borrower agrees to execute and deliver to
Lender, or cause to be executed and delivered to Lender, from time to time
promptly after request by Lender and in form and content satisfactory to Lender,
in Lender's discretion exercised in good faith, such notices, consents and other
documents as Lender may request in good faith in order to confirm, supplement,
preserve, protect or perfect, or to maintain the perfection of, Lender's
interest in the Master Lease and Lender's rights under this Assignment.
7. Assignment not Exclusive. These presents shall in no way operate
to prevent Lender from pursuing any remedy which it now or hereafter may have
because of any present or future breach of the terms or conditions of the Loan
Documents or any extension thereof. Nothing herein shall imply or infer that the
Master Lease would or will not be subject to the assignment and security
provisions of the Loan Documents, it being the intent of this Assignment to
confirm and supplement the provisions thereof, or that any right or remedy
provided hereunder with respect thereto shall supersede or otherwise exist in
derogation of the rights and remedies conferred hereunder. All rights and
remedies of Lender hereunder shall be cumulative and enforceable alternatively,
successively or concurrently with those rights and remedies available under the
Loan Documents and under applicable law and acceptance
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of this Assignment shall in no way impair, modify or alter Lender's rights and
remedies under the Loan Documents.
8. Governing Law. The perfection, validity, and enforcement of this
Agreement, to the extent they involve the creation, perfection, validity, and
enforcement of liens and security interests against property located in the
state in which the land is located, are intended to be governed by the laws of
the State in which the land is located. All other aspects of this Agreement
shall be governed by the laws of the State of New York, (other than those
conflict of law provisions that would defer to the substantive laws of another
jurisdiction) or the laws of the United States, as applicable. Without in any
way limiting the preceding choice of law, the parties elect to be governed by
New York law in accordance with, and are hereby relying (at least in part) on
Section 5-1401 of the General Obligations Law of the State of New York.
9. Reassignment of Master Lease. Upon payment of all of the Secured
Obligations, this Assignment shall immediately terminate, and Lender agrees,
promptly following Borrower's request, to execute an instrument or instruments
which shall reassign the Master Lease to the Borrower, together with such other
instruments of termination and release of the interests of Lender as the
Borrower may reasonably request.
10. Defaults and Remedies. The failure of Borrower to observe any
condition or covenant of this Assignment, if such failure is not remedied within
30 days after Borrower receives notice thereof from Lender (which 30-day period
shall be subject to extension as provided in the Mortgages), shall constitute an
Event of Default under the Loan Documents, following which Lender shall be
entitled to avail itself of any and all remedies available to Lender under and
in accordance with the Loan Documents.
11. Severability. In the event that any term or provision of this
Agreement or any other Loan Document shall be finally determined to be
superseded, invalid, illegal or otherwise unenforceable pursuant to applicable
law by a governmental authority or agency having jurisdiction and venue, that
determination shall not impair or otherwise affect the validity, legality or
enforceability (a) by or before that governmental authority or agency of the
remaining terms and provisions of this Agreement and the other Loan Documents,
which shall be enforced as if the unenforceable term or provision were deleted,
or (b) by or before any other governmental authority or agency of any of the
terms and provisions of this Agreement and the other Loan Documents.
[End of document. Signatures on following page.]
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IN WITNESS WHEREOF, this Supplemental Assignment of Leases and Rents
has been properly executed and sealed by Borrower on the day and year first
written above.
SIGNED AND ACKNOWLEDGED IN THE BORROWER:
PRESENCE OF:
MARRIOTT RESIDENCE INN II LIMITED
PARTNERSHIP, a Delaware limited partnership
By: AHT Res II GP, Inc. a Virginia corporation,
its General Partner
Witness: /s/ Debra L. Wilson
---------------------
Name: Debra L. Wilson By: /s/ Glade M. Knight
------------------------ ----------------------------
Name: Glade M. Knight
--------------------------
Its: CEO
---------------------------
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ACKNOWLEDGMENT
STATE OF Virgina )
) SS
COUNTY/CITY OF Richmond )
I Debra L. Wilson, a Notary Public in and for said County/City, in the
State aforesaid, DO HEREBY CERTIFY, that Glade M. Knight, President of AHT Res
II GP, Inc., a Virginia corporation that is the general partner of Marriott
Residence Inn II Limited Partnership, a Delaware limited partnership, who is
personally known to me to be the same person whose name is subscribed to the
foregoing instrument as such officer, appeared before me this day in person and
acknowledged that he signed and delivered the said instrument as his own free
and voluntary act and as the free and voluntary act of said corporation on
behalf of such limited partnership, for the uses and purposes herein set forth.
GIVEN under my hand and Notarial Seal this 28/th/ day of August, 2002.
/s/ Debra L. Wilson
-----------------------------------
Notary Public
My Commission Expires:
Dec 31, 2002
- -------------------------
[SEAL]
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DEFINITIONAL APPENDIX
"Event of Default" shall mean the occurrence of any event that would
automatically accelerate the maturity of the Secured Obligations, or which would
permit the Lender to accelerate the maturity of or otherwise declare the Secured
obligations due and payable.
"Properties" shall mean the hotels listed on Exhibit A hereto,
consisting of improved real property and related personal property, the full
legal description of which is set forth in the Loan Documents.
"Master Lease" shall mean that certain Master Hotel Lease Agreement,
dated as of , 2002, by and between the Borrower and Tenant with respect to the
Properties, as amended by that certain Facility Mortgagee Agreement dated as of
even date therewith, as the same may from time to time be amended, supplemented,
renewed, restated or otherwise modified.
"Tenant" shall mean AHM Res II Limited Partnership, a Virginia
limited partnership.
"Loan Documents" shall have the meaning given to such term in the
Consent Agreement.
"Management Agreement" shall mean that certain Amended and Restated
Management Agreement, dated as of , 2002, by and between Tenant and Residence
Inn by Marriott, Inc. ("Manager"), as amended by that certain Modification,
Subordination and Non-disturbance Agreement, Estoppel, Assignment and Consent
agreement dated March 22, 1996, by and between Manager, Borrower and Lender, as
further amended by that certain First Amendment to Modification, Subordination
and Non-disturbance Agreement, Estoppel, Assignment and Consent agreement dated
as of , 2002, by and between Manager, Borrower, Tenant and Lender, as the same
may from time to time be amended, supplemented, renewed, restated or otherwise
modified.
"Mortgages" shall have the meaning given to such term in the Consent
Agreement.
"Secured Obligations" shall mean obligations, indebtedness and
liabilities evidenced and secured by the Loan Documents.
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EXHIBIT A
Residence Inn(R) By Marriott(R) Hotels at the Following Locations:
Akron, Ohio Jacksonville, Florida
120 Montrose West Avenue 8365 Dix Ellis Trail
Akron, OH 44321 Jacksonville, FL 32256
Arcadia, California Kalamazoo, Michigan
321 East Huntington Drive 1500 East Kilgore
Arcadia, CA 91006 Kalamazoo, MI 49001
Birmingham, Alabama Las Vegas, Nevada
3 Greenhill Parkway at U.S. Hwy. 280 3225 Paradise Road
Birmingham, AL 35242 Las Vegas, NV 89109
Boca Raton, Florida Lubbock, Texas
525 N.W. 77th Street 2551 South Loop 289
Boca Raton, FL 33487 Lubbock, TX 79423
Boston/Danvers, Massachusetts Memphis, Tennessee
51 Newbury Street- U.S. Route 1 6141 Old Poplar Pike
Danvers, MA 01923 Memphis, TN 38119
Charlotte, North Carolina Pensacola, Florida
8503 N. Tryon Street 7230 Plantation Road
Charlotte, NC 28262 Pensacola, FL 32504
Chicago/Deerfield, Illinois Philadelphia/Berwyn, Pennsylvania
530 Lake Cook Road 600 West Swedesford Road
Deerfield, IL 60015 Berwyn, PA 19312
Clearwater/St. Petersburg, Florida Placentia, California
5050 Ulmerton Road 700 West Kimberly Ave.
Clearwater, FL 33760 Placentia, CA 92870
Columbia, South Carolina Santa Fe, New Mexico
150 Stoneridge Drive 1698 Galisteo Street
Columbia, SC 29210 Santa Fe, NM 87505
Greensboro, North Carolina Shreveport-Bossier City, Louisiana
2000 Veasley Street 1001 Gould Drive
Greensboro, NC 27407 Bossier City, LA 71111
Irvine, California Spartanburg, South Carolina
10 Morgan Street 9011 Fairforest Road
Irvine, CA 92618 Spartanburg, SC 29301
Jackson, Mississippi
881 East River Place
Jackson, MS 39202
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