EXHIBIT 10.l
EXECUTION COPY
FIRST AMENDMENT TO
AMENDED AND RESTATED
ASSIGNMENT OF MANAGEMENT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED ASSIGNMENT OF MANAGEMENT
AGREEMENT dated as of July 22, 1994 by and among MARRIOTT DIVERSIFIED AMERICAN
HOTELS, L.P. ("Owner"), MARRIOTT INTERNATIONAL, INC., formerly known as Marriott
Hotels, Inc. ("Operator"), and NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION,
formerly known as The Citizens and Southern National Bank ("Lender").
WHEREAS, Owner and Lender entered into that certain Amended and
Restated Loan Agreement dated as of June 30, 1993 (the "Loan Agreement");
WHEREAS, in connection with the Loan Agreement, Owner and Operator
entered into that certain Amended and Restated Management Agreement dated as of
June 30, 1993 (the "Management Agreement");
WHEREAS, in connection with the Loan Agreement and the Management
Agreement, Owner, Operator and Lender entered into that certain Amended and
Restated Assignment of Management Agreement dated as of June 30, 1993 (the
"Assignment"); and
WHEREAS, Owner, Operator and Lender desire to amend the Assignment to
modify the terms thereof relating to deposits into and withdrawals from the FF&E
Account to permit funding of the FF&E Account to be on a net basis, and for
other purposes.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
hereto do hereby agree as follows:
Section 1. Specific Amendment to Assignment. The Assignment is amended
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by deleting Section 5 thereof in its entirety and substituting in lieu thereof
the following:
"5. FF&E Account. Notwithstanding any provision of the
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Management Agreement to the contrary, including without limitation, any
of the provisions of Section 7.02 thereof, the following terms shall
apply with respect to the matters described:
(a) Operator shall maintain all of the Hotels' FF&E
Reserves in the FF&E Account (as defined in the Cash Collateral
Agreement dated as of the date hereof between Owner and Lender
(as amended, supplemented, restated or otherwise modified from
time to time, the "Cash Collateral Agreement")). Even
though the FF&E Account is a single account, Operator shall
maintain books and records with respect to each Hotel's FF&E
Reserve as if it were held in a separate escrow reserve
account. Except for the purposes described below in the
following subsection (b), any reference in the Management
Agreement to a Hotel's particular FF&E Reserve shall be deemed
to be a reference to the amount of the FF&E Account allocable
to such Hotel as provided in such books and records. Owner and
Operator shall not commingle funds on deposit in the FF&E
Account with any other funds of Owner, Operator or any other
person, and accordingly, neither Owner nor Operator shall
deposit into the FF&E Account any funds other than funds to be
deposited therein under Section 7.02 of the Management
Agreement or funds which may be deposited therein as provided
in the Cash Collateral Agreement. Any interest or other
earnings on funds deposited into the FF&E Account shall be
retained in the FF&E Account. Only Lender shall have authority
to withdraw funds from the FF&E Account. Operator may request
Lender to disburse funds on deposit in the FF&E Account in
accordance with Section 5 of the Cash Collateral Agreement.
The Lender shall make the amount of any such disbursement
permitted under the Cash Collateral Agreement available to
Operator within three Business Days of receipt by Lender of
the appropriate request. If at any time under the Management
Agreement or any other Loan Document, any funds on deposit in
the FF&E Account are to be transferred to Owner (other than
transfers to Owner to cover the costs of FF&E Replacements for
Hotels), then, if no Event of Default shall be in existence,
such funds shall instead be delivered to Lender to be held in
trust for the benefit of the Hotels, but if an Event of
Default shall be in existence, such funds shall instead be
delivered to Lender for application to the Loan Obligations
unless Lender is required to use such funds under Section 8 of
the Cash Collateral Agreement to establish the account
described therein. Operator agrees that it will use the funds
on deposit in the FF&E Account only to cover the costs of FF&E
Replacements for Hotels and for no other purposes.
(b) For purposes of this Assignment and the Management
Agreement, upon any sale, foreclosure or other transfer of any
Hotel, the amount of the FF&E Account allocable to such Hotel
shall be equal to (i) the balance of the FF&E Account
allocable to such Hotel as of the date hereof as set forth in
Schedule II attached hereto plus (ii) the amount of
contributions to the FF&E Account made subsequent to the date
hereof pursuant to Section 7.02 of the Management Agreement,
as modified by Section 9 hereof minus (iii) the amount of
expenditures made from the FF&E Account subsequent to the date
hereof for such Hotel.
(c) Any funds on deposit in the FF&E Account may be
used to cover the cost of FF&E Replacements for any Hotel.
(d) Operator shall state on each interim accounting
described in Section 5.05A of the Management Agreement (i) the
respective amounts required to be deposited by Operator into
the FF&E Account with respect to each Hotel for
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the preceding Accounting Period in accordance with Section 9
hereof or Section 7.02B of the Management Agreement, as
applicable; (ii) the amount expended on FF&E Replacements with
respect to each Hotel during such Accounting Period; and (iii)
if for such Accounting Period, the sum of the amounts
described in clause (i) exceeds the sum of the amounts
described in clause (ii), that Operator has deposited into the
FF&E Account the amount of such excess.
(e) Provided Lender acts in accordance with Section 5
of this Agreement, each of Owner and Operator jointly and
severally agrees to indemnify and hold Lender harmless. Each
of Owner and Operator jointly and severally agrees to
indemnify Lender from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted
against Lender in any way relating to or arising out of
withdrawals from the FF&E Account in the manner described in
this Section, or any action taken or omitted by Lender in
conformity with this Section (including, without limitation,
reasonable attorney's fees). The effectiveness of this
subsection (e) shall survive the termination of this
Agreement."
Section 2. Conditions Precedent. The effectiveness of this First
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Amendment is subject to the condition precedent that Lender receive each of the
following, in form and substance satisfactory to Lender.
(a) A First Amendment to Cash Collateral Agreement dated as of the
date hereof duly executed and delivered by Owner; and
(b) Such other documents, instruments and agreements as Lender may
reasonably request.
Section 3. Representations of Owner.
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(a) Authorization. Owner represents to Lender that Owner has the
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right and power, and has taken all necessary action to authorize it, to execute
and deliver this First Amendment and to perform the Assignment, as amended by
this First Amendment, in accordance with its terms. This First Amendment has
been duly executed and delivered by the duly authorized officers of Owner, and
each of this First Amendment and the Assignment, as amended by this First
Amendment, is a legal, valid and binding obligation of Owner enforceable against
Owner in accordance with its terms.
(b) Compliance with Laws. etc. Owner represents to Lender that the
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execution and delivery of this First Amendment, and the performance of the
Assignment, as amended by this First Amendment, in accordance with its terms do
not and will not, by the passage of time, the giving of notice or otherwise: (i)
require the prior approval of any Governmental Authority or violate any
provision of any constitution, statute, rule, regulation, ordinance or order of
any Governmental Authority or any decree of any court, tribunal or arbitrator
applicable to Owner;
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(ii) conflict with, result in a breach of or constitute a default under the
articles of incorporation or by-laws of Owner, or any indenture, agreement or
other instrument to which Owner is a party or by which it or any of its
properties may be bound; or (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by Owner other than in favor of Lender.
Section 4. Representations of Operator.
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(a) Authorization. Operator represents to Lender that Operator has
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the right and power, and has taken all necessary action to authorize it, to
execute and deliver this First Amendment and to perform the Assignment, as
amended by this First Amendment, in accordance with its terms. This First
Amendment has been duly executed and delivered by the duly authorized officers
of Operator, and each of this First Amendment and the Assignment, as amended by
this First Amendment, is a legal, valid and binding obligation of Operator
enforceable against Operator in accordance with its terms.
(b) Compliance with Laws. etc. Operator represents to Lender that
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the execution and delivery of this First Amendment, and the performance of the
Assignment, as amended by this First Amendment, in accordance with its terms do
not and will not, by the passage of time, the giving of notice or otherwise: (i)
require the prior approval of any Governmental Authority or violate any
provision of any constitution, statute, rule, regulation, ordinance or order of
any Governmental Authority or any decree of any court, tribunal or arbitrator
applicable to Operator; (ii) conflict with, result in a breach of or constitute
a default under the articles of incorporation or by-laws of Operator, or any
indenture, agreement or other instrument to which Operator is a party or by
which it or any of its properties may be bound; or (iii) result in or require
the creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by Operator other than in favor of Lender.
Section 5. References to the Assignment. Each reference to the
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Assignment in any of the Loan Documents shall be deemed to be a reference to the
Assignment, as amended by this First Amendment.
Section 6. Expenses. Owner shall reimburse Lender upon demand for the
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costs and expenses (including attorneys' fees) incurred by Lender in the
preparation, negotiation and execution of this First Amendment and the other
agreements and documents executed and delivered in connection herewith, in an
amount not to exceed $2,000.
Section 7. Benefits. This First Amendment shall be binding upon and
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shall inure to the benefit of the parties hereto and their respective successors
and assigns.
Section 8. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED BY,
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AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
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Section 9. Effect. This First Amendment shall be effective as of the
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date hereof This First Amendment shall not be construed to constitute a waiver
of any Default or Event of Default occurring or in existence prior to the date
hereof Except as expressly herein amended, the terms and conditions of the
Assignment shall remain in full force and effect.
Section 10. Counterparts. This First Amendment may be executed in any
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number of counterparts, each of which shall be deemed to be an original and
shall be binding upon all parties, their successors and assigns.
Section 11. Definitions. Capitalized terms not otherwise defined herein
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are used herein with the respective definitions given them in the Loan
Agreement.
[Signatures on Following Page]
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Amended and Restated Assignment of Management Agreement to be executed under
seal by their duly authorized officers as of the date first above written.
MARRIOTT DIVERSIFIED AMERICAN
HOTELS, L.P.
By: Marriott MDAH One Corporation, its
General Partner
By: /s/ C. G. Townsend
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Name: C. G. TOWNSEND
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Title: VICE PRESIDENT
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MARRIOTT INTERNATIONAL, INC.
By: /s/ Randall L. Frazier
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Name: RANDALL L. FRAZIER
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Title: VICE PRESIDENT
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NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION
By: AMRESCO-INSTITUTIONAL INC., a
Delaware corporation,
its authorized agent
By: /s/ James R. Bradley
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Name:--------------------------------
Title: Authorized Representative