EXHIBIT 10.d
EXECUTION COPY
FIRST AMENDMENT TO
CASH COLLATERAL AGREEMENT
THIS FIRST AMENDMENT TO CASH COLLATERAL AGREEMENT dated as of July 22,
1994 by and between MARRIOTT DIVERSIFIED AMERICAN HOTELS, L.P. (the "Borrower")
and NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION, formerly known as The Citizens
and Southern National Bank (the "Lender").
WHEREAS, the Borrower and the 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, the Borrower and the
Lender entered into that certain Cash Collateral Agreement dated as of June 30,
1993 (the "Cash Collateral Agreement"); and
WHEREAS, the Borrower and the Lender desire to amend the Cash
Collateral Agreement 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 Amendments to Cash Collateral Agreement.
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(a) The Cash Collateral Agreement is amended by deleting Section 5
thereof in its entirety and substituting in lieu thereof the following:
"Section 5. FF&E Account. (a) On the Closing Date, the
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Borrower shall cause all FF&E Reserves (as defined in the Existing
Management Agreement) to be deposited into the FF&E Account. Except for
Earnings on the FF&E Account, and except as contemplated by the
Management Agreement and the Assignment with respect to the FF&E
Account, no other funds shall be deposited into the FF&E Account and
the Borrower shall not commingle funds on deposit in the FF&E Account
with its other funds or funds of any other Person. The Borrower and the
Manager agree that funds on deposit in the FF&E Account (including
Earnings thereon) may only be used for the purpose of payment of the
costs of FF&E Replacements (as defined in the Management Agreement) as
contemplated by Section 7.02 of the Management Agreement and by the
Assignment.
(b) Only the Lender shall have authority to withdraw any
funds on deposit in the FF&E Account. So long as no Event of Default
shall have occurred and be in
existence, the Lender will disburse to the Manager funds on deposit in
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the FF&E Account upon by the Lender of (i) a written request (an "FF&E
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Account Disbursement Request") in the form of Annex I attached hereto
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purportedly signed by (A) the manager or the controller of the Hotel
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thereby requesting a disbursement from the FF&E Account and (B) an
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officer of the Manager designated by the Manager as being authorized to
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sign an FF&E Account Disbursement Request pursuant to the most recent
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written notice (a "Manager Representative Authorization") to the Lender
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in the form of Annex II attached hereto which notice identifies no more
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than four such officers of the Manager and (ii) the written approval of
an authorized representative of the Lender designated by the Lender
pursuant to a written notice to the Manager in the form of Annex III
attached hereto as a signatory with respect to the FF&E Account. The
Lender shall make the amount of any such disbursement permitted
hereunder available to the Manager within three Business Days of
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receipt by the Lender of the applicable FF&E Account Disbursement
Request. The Lender shall be entitled to rely entirely and conclusively
upon any and all information, statements and other matters set forth in
any FF&E Account Disbursement Request or Manager Representative
Authorization received by it.
(c) Provided the Lender acts in accordance with the
immediately preceding subsection (b), each of the Borrower and Manager
jointly and severally agrees to indemnify and hold the Lender harmless
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 the 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 the Lender in conformity
with this Section (including, without limitation, reasonable attorney's
fees). The effectiveness of this subsection (c) shall survive the
termination of this Agreement."
(b) The Cash Collateral Agreement is amended by adding as Annexes
I and II thereto, respectively, Annexes I and II attached hereto.
Section 2. Conditions Precedent. The effectiveness of this First
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Amendment is subject to the condition precedent that the Lender receive each of
the following, in form and substance satisfactory to the Lender.
(a) A First Amendment to Amended and Restated Assignment of
Management Agreement dated as of the date hereof duly executed and delivered by
the Borrower and the Manager;
(b) The initial Manager Representative Authorization duly
completed by the Manager;
(c) Evidence that all appropriate administrative actions necessary
to remove the current signatories to the FF&E Account have been taken, including
without limitation, modification or termination of current signature cards for
the FF&E Account; and
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(d) Such other documents, instruments and agreements as the Lender
may reasonably request.
Section 3. Representations.
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(a) Authorization. The Borrower represents to the Lender that the
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Borrower has the right and power, and has taken all necessary action to
authorize it, to execute and deliver this First Amendment and to perform the
Cash Collateral Agreement, 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 the Borrower, and each of this First Amendment and
the Cash Collateral Agreement, as amended by this First Amendment, is a legal,
valid and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
(b) Compliance with Laws, etc. The Borrower represents to the Lender
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that the execution and delivery of this First Amendment, and the performance of
the Cash Collateral Agreement, 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 the Borrower; (ii) conflict with, result in a breach of
or constitute a default under the articles of incorporation or by-laws of the
Borrower, or any indenture, agreement or other instrument to which the Borrower
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 the Borrower other than in favor of
the Lender.
Section 4. References to the Cash Collateral Agreement. Each reference
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to the Cash Collateral Agreement in any of the Loan Documents shall be deemed to
be a reference to the Cash Collateral Agreement, as amended by this First
Amendment.
Section 5. Expenses. The Borrower shall reimburse the Lender upon
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demand for the costs and expenses (including attorneys' fees) incurred by the
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 6. 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 7. 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.
Section 8. 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 Cash
Collateral Agreement shall remain in full force and effect.
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Section 9. 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 10. 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 Cash Collateral 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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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: James R. Bradley
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Title: Authorized Representative
Agreed and Acknowledged:
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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ANNEX I
FORM OF FF&E ACCOUNT DISBURSEMENT REQUEST
NationsBank of Georgia, National Association
c/o AMRESCO-Institutional, Inc.
101 North Tryon Street, NC1-001-13-20
Charlotte, North Carolina, 28255
Attention: __________________
Re: Cash Collateral Agreement dated as of June 30, 1993, as amended (the
"Cash Collateral Agreement") by and between Marriott Diversified
American Hotels, L.P. and NationsBank of Georgia, National
Association (the "Lender")
Ladies and Gentlemen:
The undersigned, the [manager][controller] of the Hotel located in
_____________________________, on behalf of the Manager hereby requests that the
Lender disburse $____________ from the FF&E Account to the Manager in accordance
with the payment instructions set forth below. The undersigned certifies that
the amount requested will be used by the Manager to ____________________________
Payment Instructions: _________________________________
_________________________________
Terms not otherwise defined herein are used herein with the respective
meanings given them in, or by reference in, the Cash Collateral Agreement.
Very truly yours,
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Name:
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Title: [Manager][Controller] of the
above Hotel.
Acknowledged and Approved: Acknowledged and Approved:
MARRIOTT INTERNATIONAL, INC NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION
By: By: AMRESCO-INSTITUTIONAL, INC., a
--------------------------------- Delaware corporation, its authorized
Name: agent
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Title:
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By:
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Name:
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Title: Authorized Representative
ANNEX II
FORM OF MANAGER REPRESENTATIVE AUTHORIZATION
NationsBank of Georgia, National Association
c/o AMRESCO-Institutional, Inc.
101 North Tryon Street, NC1-001-13-20
Charlotte, North Carolina, 28255
Attention: _____________________
Re: Cash Collateral Agreement dated as of June 30, 1993, as amended (the
"Cash Collateral Agreement") by and between Marriott Diversified
American Hotels, L.P. and NationsBank of Georgia, National
Association (the "Lender")
Ladies and Gentlemen:
The Manager hereby certifies to the Lender that the Manager has
designated the officers of the Manager listed below as the only Manager
Authorized Representatives authorized to acknowledge and approve an FF&E Account
Disbursement Request on behalf of Marriott International, Inc.. The Manager
hereby further certifies to the Lender that such officers currently hold the
respective titles set forth beside their names below and their signatures set
forth beside their respective titles are their genuine signatures.
Name Title Signature
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David S. Cannon Vice President /s/ David S. Cannon
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Bryan J. Flanagan Vice President /s/ Bryan J. Flanagan
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Paul A. Flynn Vice President /s/ Paul A. Flynn
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Terms not otherwise defined herein are used herein with the respective
meanings given them in, or by reference in, the Cash Collateral Agreement.
Very truly yours,
MARRIOTT INTERNATIONAL INC.
By /s/ Carol Bruff
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Name: Carol Bruff
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Title: [Assistant] Secretary
ANNEX III
FORM OF LENDER REPRESENTATIVE AUTHORIZATION
Marriott International, Inc.
10400 Fernwood Road
Bethesda, Maryland 20058
Attention: ____________________
Re: Cash Collateral Agreement dated as of June 30, 1993, as amended (the
"Cash Collateral Agreement") by and between Marriott Diversified
American Hotels, L.P. and NationsBank of Georgia, National
Association (the "Lender")
Ladies and Gentlemen:
The Lender hereby certifies to the Manager that the Lender has
designated the individuals listed below, in the order so listed, as the only
representatives of the Lender authorized to approve an FF&E Account Disbursement
Request on behalf of the Lender.
Name Title Signature
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James R. Bradley Principal /s/ James R. Bradley
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Michael E. Mooney Director /s/ Michael E. Mooney
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G. Mark Little Principal /s/ G. Mark Little
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Terms not otherwise defined herein are used herein with the respective
meanings given them in, or by reference in, the Cash Collateral Agreement.
Very truly yours,
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: James R. Bradley
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Title: Authorized Representative