EXHIBIT 10.3.1
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MEZZANINE LOAN AGREEMENT
DATED NOVEMBER 25, 2002
BETWEEN
IMPAC HOTEL GROUP MEZZANINE, LLC
SERVICO OPERATIONS MEZZANINE, LLC
LODGIAN FINANCING MEZZANINE, LLC
ISLAND MOTEL ENTERPRISES, INC.
PENMOCO, INC.
AS BORROWERS
AND
MERRILL LYNCH MORTGAGE LENDING, INC.
AS LENDER
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS ....................................................................... 1
Section 1.1 Certain Defined Terms ................................................ 1
Section 1.2 Accounting Terms ..................................................... 25
Section 1.3 Other Definitional Provisions ........................................ 25
ARTICLE II TERMS OF THE LOAN ................................................................ 25
Section 2.1 Loan ................................................................. 25
Section 2.2 Interest ............................................................. 26
Section 2.3 Interest Rate Cap Agreement .......................................... 27
Section 2.4 Payments ............................................................. 28
Section 2.5 Maturity ............................................................. 30
Section 2.6 Prepayment ........................................................... 32
Section 2.7 Outstanding Balance .................................................. 33
Section 2.8 Taxes ................................................................ 34
Section 2.9 Reasonableness of Charges ............................................ 34
Section 2.10 Funding Losses/Change in Law Etc ..................................... 34
Section 2.11 Servicing/Special Servicing .......................................... 35
Section 2.12 Mortgage Loan Event of Default ....................................... 36
Section 2.13 Mezzanine Lender Approvals ........................................... 36
ARTICLE III CONDITIONS TO LOAN .............................................................. 37
Section 3.1 Conditions to Funding of the Loan on the Closing Date ................ 37
ARTICLE IV REPRESENTATIONS AND WARRANTIES ................................................... 42
Section 4.1 Organization, Powers, Capitalization, Good Standing, Business ........ 42
Section 4.2 Authorization of Borrowing, etc ...................................... 42
Section 4.3 Financial Statements ................................................. 43
Section 4.4 Indebtedness and Contingent Obligations .............................. 43
Section 4.5 Title to the Properties and Collateral ............................... 43
Section 4.6 Zoning; Compliance with Laws ......................................... 44
Section 4.7 Leases; Agreements ................................................... 44
Section 4.8 Condition of the Jekyll Island Property .............................. 46
Section 4.9 Representations and Warranties of the Mortgage Borrowers ............. 46
Section 4.10 Payment of Taxes ..................................................... 46
Section 4.11 Adverse Contracts .................................................... 47
Section 4.12 Performance of Agreements ............................................ 47
Section 4.13 Governmental Regulation .............................................. 47
Section 4.14 Employee Benefit Plans ............................................... 47
Section 4.15 Broker's Fees ........................................................ 47
Section 4.16 Intentionally Deleted ................................................ 47
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Section 4.17 Solvency ............................................................. 47
Section 4.18 Disclosure ........................................................... 48
Section 4.19 Use of Proceeds and Margin Security .................................. 48
Section 4.20 Insurance ............................................................ 48
Section 4.21 Separate Tax Lots .................................................... 48
Section 4.22 Security Interests ................................................... 48
Section 4.23 Investments .......................................................... 48
Section 4.24 Defaults ............................................................. 48
Section 4.25 No Plan Assets ....................................................... 49
Section 4.26 Governmental Plan .................................................... 49
Section 4.27 Not Foreign Person ................................................... 49
Section 4.28 No Collective Bargaining Agreements .................................. 49
Section 4.29 Pre-Petition Tax Liabilities ......................................... 49
Section 4.30 Jekyll Island Ground Lease ........................................... 49
ARTICLE V COVENANTS OF BORROWER PARTIES ..................................................... 50
Section 5.1 Financial Statements and Other Reports ............................... 50
Section 5.2 Existence; Qualification ............................................. 55
Section 5.3 Payment of Impositions and Claims .................................... 55
Section 5.4 Maintenance of Insurance ............................................. 56
Section 5.5 Operation and Maintenance of the Properties; Casualty ................ 57
Section 5.6 Inspection ........................................................... 59
Section 5.7 O&M Plan ............................................................. 59
Section 5.8 Intentionally Deleted ................................................ 59
Section 5.9 Compliance with Laws and Contractual Obligations ..................... 59
Section 5.10 Further Assurances ................................................... 59
Section 5.11 Performance of Agreements and Leases ................................. 59
Section 5.12 Leases ............................................................... 59
Section 5.13 Management; Franchise Agreement ...................................... 60
Section 5.14 Material Agreements .................................................. 63
Section 5.15 Deposits; Application of Receipts .................................... 63
Section 5.16 Estoppel Certificates ................................................ 63
Section 5.17 Indebtedness ......................................................... 63
Section 5.18 No Liens ............................................................. 64
Section 5.19 Contingent Obligations ............................................... 64
Section 5.20 Restriction on Fundamental Changes ................................... 64
Section 5.21 Transactions with Related Persons .................................... 64
Section 5.22 Bankruptcy, Receivers, Similar Matters ............................... 65
Section 5.23 ERISA ................................................................ 65
Section 5.24 Press Release ........................................................ 66
Section 5.25 Ground Leases ........................................................ 66
Section 5.26 Mortgaged Condominium Property ....................................... 69
Section 5.27 Lender's Expenses .................................................... 71
Section 5.28 Distributions ........................................................ 71
Section 5.29 Completion of Required Capital Improvements .......................... 71
Section 5.30 Compliance with Plan of Reorganization ............................... 71
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Section 5.31 Cancellation of Indebtedness; Settlement of Claims ................... 71
Section 5.32 Modification of Mortgage Documents ................................... 71
ARTICLE VI RESERVES ........................................................................ 72
Section 6.1 Security Interest in Reserves; Other Matters Pertaining to Reserves .. 72
Section 6.2 Funds Deposited with Lender/Special Jekyll Island Reserves ........... 72
Section 6.3 FF&E Reserve ......................................................... 73
Section 6.4 Capital Improvement Reserve; Required Capital Improvements ........... 74
Section 6.5 Hazardous Materials Remediation Reserve .............................. 75
Section 6.6 Conditions to Disbursements from Hazardous Materials Remediation
Reserve, Capital Improvement Reserve and the Jekyll Island Special
Reserves; Performance of Work ........................................ 75
Section 6.7 Cash Trap Reserve .................................................... 77
Section 6.8 Substitute Cash Management Agreement ................................. 77
ARTICLE VII LOCK BOX; CASH MANAGEMENT ...................................................... 78
Section 7.1 Establishment of Deposit Account and Lock Box Account ................ 78
Section 7.2 Application of Funds in Lock Box Account ............................. 80
Section 7.3 Application of Funds After Event of Default .......................... 80
Section 7.4 Mortgage Loan Lock Box ............................................... 80
ARTICLE VIII DEFAULT, RIGHTS AND REMEDIES .................................................. 80
Section 8.1 Event of Default ..................................................... 80
Section 8.2 Acceleration and Remedies ............................................ 83
Section 8.3 Performance by Lender ................................................ 85
Section 8.4 Evidence of Compliance ............................................... 86
ARTICLE IX SINGLE-PURPOSE, BANKRUPTCY-REMOTE REPRESENTATIONS, WARRANTIES AND COVENANTS ..... 86
Section 9.1 Applicable to all Borrowers .......................................... 86
Section 9.2 Applicable to the Borrowers and Member ............................... 88
ARTICLE X RESTRUCTURING LOAN, SECONDARY MARKET TRANSACTIONS ................................ 89
Section 10.1 Secondary Market Transactions Generally .............................. 89
Section 10.2 Cooperation; Limitations ............................................. 90
Section 10.3 Information .......................................................... 90
Section 10.4 Additional Provisions ................................................ 92
ARTICLE XI RESTRICTIONS ON LIENS, TRANSFERS; ASSUMABILITY; RELEASE OF PROPERTIES ........... 92
Section 11.1 Restrictions on Transfer and Encumbrance ............................. 92
Section 11.2 Transfers of Beneficial Interests in the Borrowers ................... 92
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Section 11.3 Assumability ......................................................... 93
Section 11.4 Release of Collateral ................................................ 94
Section 11.5 Release of the Jekyll Island Property ................................ 95
Section 11.6 Sale of Building Equipment ........................................... 97
Section 11.7 Immaterial Transfers and Easements, etc .............................. 97
ARTICLE XII RECOURSE; LIMITATIONS ON RECOURSE .............................................. 97
Section 12.1 Limitations on Recourse .............................................. 97
Section 12.2 Partial Recourse ..................................................... 97
Section 12.3 Miscellaneous ........................................................ 98
ARTICLE XIII WAIVERS OF DEFENSES OF GUARANTORS AND SURETIES ................................ 98
Section 13.1 Waivers .............................................................. 98
ARTICLE XIV MISCELLANEOUS .................................................................. 100
Section 14.1 Expenses and Attorneys' Fees ......................................... 100
Section 14.2 Indemnity ............................................................ 101
Section 14.3 Amendments and Waivers ............................................... 102
Section 14.4 Retention of the Borrowers' Documents ................................ 102
Section 14.5 Notices .............................................................. 102
Section 14.6 Survival of Warranties and Certain Agreements ........................ 103
Section 14.7 Failure of Indulgence Not Waiver; Remedies Cumulative ................ 103
Section 14.8 Marshaling; Payments Set Aside ....................................... 104
Section 14.9 Severability ......................................................... 104
Section 14.10 Headings ............................................................. 104
Section 14.11 APPLICABLE LAW ....................................................... 104
Section 14.12 Successors and Assigns ............................................... 104
Section 14.13 Sophisticated Parties, Reasonable Terms, No Fiduciary Relationship ... 104
Section 14.14 Reasonableness of Determinations ..................................... 105
Section 14.15 Limitation of Liability .............................................. 105
Section 14.16 No Duty .............................................................. 105
Section 14.17 Entire Agreement ..................................................... 105
Section 14.18 Construction; Supremacy of Loan Agreement ............................ 106
Section 14.19 Consent to Jurisdiction .............................................. 106
Section 14.20 Waiver of Jury Trial ................................................. 106
Section 14.21 Counterparts; Effectiveness .......................................... 107
Section 14.22 Servicer ............................................................. 107
Section 14.23 Obligations of Borrower Parties ...................................... 107
Section 14.24 Additional Inspections; Reports ...................................... 107
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A - Allocated Loan Amount/Aggregate Allocated Loan Amount
Exhibit B - Management Agreements
Exhibit C - Properties
Exhibit D - Property Improvement Plan
Exhibit E - Ground Lessor Estoppels
Exhibit F - Acceptable Franchisors
Exhibit G - [Reserved]
Exhibit H - Capital Improvement Plan
Exhibit I - Franchise Agreements
Schedule 3.1 (A) - List of Loan Documents
Schedule 4.1 (C) - Organizational Chart for Borrower Parties
Schedule 4.2 - Consents
Schedule 4.4 - Contingent Obligations
Schedule 4.6 - Zoning
Schedule 4.7 (B) - Rent Roll
Schedule 4.7 (E) - Material Defaults under Jekyll Island Franchise Agreement
Schedule 4.9 - Litigation
Schedule 4.10 - Pre-Petition Tax Liabilities
Schedule 4.20 - Insurance
Schedule 4.28 - Collective Bargaining Agreements
Schedule 4.30 - Ground Lease Amendments
Schedule 5.14 - Material Agreements
List of Schedules
MEZZANINE LOAN AGREEMENT
This MEZZANINE LOAN AGREEMENT (this "LOAN AGREEMENT") is dated as of
November 25, 2002 and entered into by and between IMPAC HOTEL GROUP MEZZANINE,
LLC, SERVICO OPERATIONS MEZZANINE, LLC, AND LODGIAN FINANCING MEZZANINE, LLC,
ISLAND MOTEL ENTERPRISES, INC. AND PENMOCO, INC. (collectively, "BORROWERS",
and individually, each a "BORROWER"), and MERRILL LYNCH MORTGAGE LENDING, INC.,
a Delaware corporation (together with its successors and assigns, "LENDER").
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Borrowers and Lender agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN DEFINED TERMS. The terms defined below are used in
this Loan Agreement as so defined. Terms defined in the preamble and recitals
to this Loan Agreement are used in this Loan Agreement as so defined. All terms
not otherwise defined herein shall have the meaning given such terms in the
Mortgage Loan Agreement.
"ACCEPTABLE FRANCHISOR" and "ACCEPTABLE FRANCHISE NAME" means the
franchisors identified on EXHIBIT F.
"ACCEPTABLE MANAGER" means Lodgian Management Corp. or any other
Affiliate of the Mortgage Borrowers and, upon receipt of a Rating Confirmation,
another reputable hotel management company with at least five (5) years
experience managing hotel properties similar to the Properties and which at the
time of its engagement is managing at least 5,000 hotel rooms (exclusive of the
Properties).
"ACCEPTABLE REPLACEMENT CAP" has the meaning set forth in Section 2.3.
"ACCOUNT COLLATERAL" means all of the Borrowers' right, title and
interest in and to the Accounts, the Reserves, all monies and amounts which may
from time to time be on deposit therein, all monies, checks, notes, instruments,
documents, deposits, and credits from time to time in the possession of Lender
representing or evidencing such Accounts and Reserves, if any, and all earnings
and investments held therein and proceeds thereof.
"ACCOUNTS" means, collectively, the Deposit Account, the Lock Box
Account, the Jekyll Island Lock Box Account, all accounts maintained by or for
the benefit of Mortgage Lender pursuant to the terms of the Mortgage Loan
Documents and any other accounts pledged to Lender pursuant this Loan Agreement
or any other Loan Document.
"AFFILIATE" means in relation to any Person, any other Person: (i)
directly or indirectly controlling, controlled by, or under common control with,
the first Person; (ii) directly or indirectly owning or holding fifty percent
(50%) or more of any equity interest in the first
Person; or (iii) fifty percent (50%) or more of whose voting stock or other
equity interest is directly or indirectly owned or held by the first Person. In
addition, the Affiliates of each Borrower Party include, without limitation, all
other Borrower Parties, irrespective of whether they now or hereafter satisfy
the foregoing criteria. For purposes of this definition, "CONTROL" (including
with correlative meanings, the terms "CONTROLLING", "CONTROLLED BY" and
"UNDER COMMON CONTROL WITH") means the possession directly or indirectly of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise. Where expressions such as "[name of party] or any Affiliate" are
used, the same shall refer to the named party and any Affiliate of the named
party. Further, the Affiliates of any Person that is an entity shall include all
natural persons who are officers, agents, directors, members, partners, or
employees of the entity Person.
"AGGREGATE ALLOCATED LOAN AMOUNT" shall mean the aggregate portion of
the Mortgage Loan and the Loan allocated to each Property as set forth on
EXHIBIT A".
"AGGREGATE OUTSTANDING PRINCIPAL BALANCE" means, at the time of
determination, the aggregate outstanding principal balance of the Loan and the
Mortgage Loan.
"ALLOCATED LOAN AMOUNT" shall mean the portion of the Loan allocated
to each Property as set forth on EXHIBIT A.
"AMORTIZATION DEFICIENCY" shall mean, as of the date of
determination, (x) the aggregate of all monthly Scheduled Mezzanine Principal
Payments through the date of determination minus (y) the actual principal
payments made to Lender pursuant to Section 2.4(A)(ii) and Section 2.4(A)(iv) of
this Loan Agreement through the date immediately preceding the date of
determination.
"APPLICABLE SPREAD" means 9.0000%; provided, however, if the Borrowers
have not made the Reserve Principal Payment prior to the Payment Date in
November 2003, the "APPLICABLE SPREAD" shall mean 9.5772% throughout the
remainder of the term of the Loan, including any Extension Terms.
"APPROVAL PROCEDURES" has the meaning set forth in Section 2.13(A).
"APPROVED ACCOUNTING FIRM" means Ernst and Young,
PricewaterhouseCoopers, Deloitte & Touche or KPMG Peat Marwick or any successor
entity.
"ASSIGNMENT OF LEASES" shall mean that certain Assignment of Leases and
Rents dated the date hereof given by the Jekyll Island Borrowers to Lender.
"ASSIGNMENT OF RATE CAP" means that certain Collateral Assignment of
Interest Rate Protection Agreement of even date herewith from the Borrowers to
Lender, constituting an assignment of the Cap and proceeds therefrom as
Collateral for the Loan, as same may be amended or modified from time to time.
"ASSUMPTION" has the meaning set forth in Section 11.3.
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"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended
from time to time, and all rules and regulations promulgated thereunder.
"BEVERAGE COMPANY" shall mean any Person (other than the Borrowers and
the Mortgage Borrowers) holding, or entitled to any proceeds from, any liquor
license or other beverage permit for the sale of alcoholic beverages at any
Property and at the Jekyll Island Property.
"BOARD OF MANAGERS" means the board of managers, or similar governing
entity, established for the governance of the condominium association
established pursuant to the terms of the Mortgaged Condominium Property
Documents.
"BORROWER" and "BORROWERS" have the meanings set forth in the preamble,
provided that, following a Release, "BORROWERS" shall mean each of the Borrowers
remaining as a party to the Loan Documents, and whose Collateral remain
encumbered by the Pledge Agreement (or, with respect to the Jekyll Island
Borrowers, whose property remains subject to the Jekyll Island Mortgage) and
"BORROWER" shall mean any of such remaining parties.
"BORROWER PARTY" and "BORROWER PARTIES" means, individually or
collectively, the Borrowers, Member and Guarantor.
"BORROWER PARTY SECRETARY" has the meaning set forth in Section 3.1.
"BUSINESS DAY" means any day excluding (i) Saturday, (ii) Sunday, (iii)
any day which is a legal holiday under the laws of the State of New York, the
state or states where the servicing offices of the Servicer, and, if the Loan
becomes a "specially serviced loan" pursuant to the terms of any trust and
servicing agreement entered into in connection with any Securitization backed in
whole or in part by the Loan, the special servicer, are located or the state in
which the corporate trust office of the trustee in connection with any such
Securitization is located, and (iv) any day on which banking institutions
located in such state are generally not open for the conduct of regular
business.
"CALCULATION DATE means (x) prior to the occurrence of a Cash Trap
Event, the last day of each calendar quarter, and (y) during the continuance of
a Cash Trap Event, the last day of each calendar month.
"CAP" has the meaning set forth in Section 2.3.
"CAPEX/FF&E BUDGET" means the expenditures for Replacements and other
expenditures for FF&E and Capital Expenditures set forth in an annual budget
approved by Lender in writing (such approval not to be unreasonably withheld or
delayed as long as the budget is consistent with the form of the CapEx/FF&E
Budget provided to Lender prior to Closing), covering the planned FF&E
expenditures and Capital Expenditures for the period covered by such budget, as
same may be amended pursuant to Section 5.1(D) hereof.
"CAPITAL EXPENDITURES" means expenditures for Capital Improvements.
3
"CAPITAL IMPROVEMENTS" means capital improvements, repairs or
alterations, furnishings, fixtures, equipment and other capital items (whether
paid in cash or property or accrued as liabilities) made by the Mortgage
Borrowers or, with respect to the Jekyll Island Property, made by the Jekyll
Island Borrowers, that, in conformity with GAAP, would not be included in the
Mortgage Borrowers' or the Jekyll Island Borrowers' annual financial statements
as an Operating Expense of the Properties.
"CAPITAL IMPROVEMENT PLAN" means the Mortgage Borrowers' and the Jekyll
Island Borrowers' current plan and budget for certain ongoing multi-phased
capital improvements to the respective Properties, including each of the items
set forth in the applicable Property Improvement Plan, if any, as more fully
described in the Franchisor Letters, all as more particularly described on
EXHIBIT H.
"CAP PROVIDER" has the meaning set forth in Section 2.3.
"CAP RESERVE" has the meaning set forth in Section 2.3.
"CAP THRESHOLD RATE" has the meaning set forth in Section 2.3.
"CASH MANAGEMENT AGREEMENT" means the Mezzanine Cash Management
Agreement of even date herewith among the Borrowers, Lender, Manager, and Lock
Box Account Bank.
"CATEGORY" means the applicable Tier 1 Hotel, the Tier 2 Hotel or the
Tier 3 Hotel category.
"CLAIMS" has the meaning set forth in Section 5.3.
"CLOSING" means the funding of the Loan and the consummation of the
other transactions contemplated by this Loan Agreement.
"CLOSING DATE" means the date on which the Closing occurs.
" COLLATERAL" means rights, interests, and property of every kind, real
and personal, tangible and intangible, which is granted, pledged, liened, or
encumbered as security for the Loan or any of the other Obligations under this
Loan Agreement, the Pledge Agreement, the Jekyll Island Mortgage, the Cash
Management Agreement, the Jekyll Island Cash Management Agreement or the other
Loan Documents, including the Account Collateral.
"COLLATERAL RELEASE" has the meaning set forth in Section 11.4.
"COLLATERAL RELEASE PRICE" has the meaning set forth in Section 11.4.
"COMPLIANCE CERTIFICATE" has the meaning set forth in Section 5.1.
"CONDOMINIUM MORTGAGE BORROWER" has the meaning set forth in the
Mortgage Loan Agreement.
"CONDOMINIUM DEFAULT" has the meaning set forth in the Mortgage Loan
Agreement.
4
"CONTINGENT OBLIGATION", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person: (A) with respect to
any indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent of the Person incurring such liability, or the primary effect
thereof, is to provide assurance to the obligee of such liability that such
liability will be paid or discharged, or that any agreements relating thereto
will be complied with, or that the holders of such liability will be protected
(in whole or in part) against loss with respect thereto; (B) with respect to any
letter of credit issued for the account of that Person or as to which that
Person is otherwise liable for reimbursement of drawings; (C) under any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement or arrangement designed to protect against
fluctuations in interest rates; or (D) under any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect that Person against fluctuations in currency values. Contingent
Obligations shall include (i) the direct or indirect guaranty, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making (other than the Loan), discounting with recourse or sale with recourse
by such Person of the obligation of another, (ii) the obligation to make
take-or-pay or similar payments if required regardless of nonperformance by any
other party or parties to an agreement, and (iii) any liability of such Person
for the obligations of another through any agreement to purchase, repurchase or
otherwise acquire such obligation or any property constituting security
therefor, to provide funds for the payment or discharge of such obligation or to
maintain the solvency, financial condition or any balance sheet item or level of
income of another. The amount of any Contingent Obligation shall be equal to the
amount of the obligation so guaranteed or otherwise supported or, if not a fixed
and determined amount, the maximum amount so guaranteed.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
indenture, mortgage, deed of trust, contract, undertaking, agreement or other
instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject, other
than the Loan Documents.
"CREDIT CARD COMPANIES" has the meaning set forth in Section 7.1.
"CREDIT CARD RECEIVABLES PAYMENT DIRECTION LETTER" has the meaning set
forth in Section 7.1.
"DEBT SERVICE COVERAGE RATIO" OR "DSCR" means, at any time of
determination, Net Cash Flow for the trailing 12-month period divided by the
amount of interest (assuming an interest rate equal to the Test Rate) that the
Borrowers and the Mortgage Borrowers will be required to pay over the succeeding
12 months on the Loan and the Mortgage Loan plus, in the case of any
determination after the first anniversary of the Closing Date, principal
amortization of the Loan and the Mortgage Loan that would be required in respect
of the then outstanding principal amount of the Loan and the Mortgage Loan over
the first 12 months of 25-year amortization schedule, calculated using the Test
Rate.
"DEBT SERVICE SUB-ACCOUNT" has the meaning set forth in Section 7.1.
5
"DEBT YIELD" means, at any time of determination, Net Cash Flow for the
trailing 12-month period divided by the then outstanding principal balance of
the Loan and the Mortgage Loan.
"DEEDS OF TRUST" means, collectively, (i) those certain Fee/Leasehold
Deeds of Trust, Assignments of Leases and Security Agreements, (ii) those
certain Fee/Leasehold Mortgages, Assignments of Leases and Security Agreements,
and (iii) those certain Deeds to Secure Debt, Assignment of Leases and Security.
Agreements of even date herewith from the applicable Mortgage Borrowers to
Mortgage Lender (or deed trustee on behalf of Mortgage Lender, as applicable),
constituting Liens on their respective Properties as collateral for the Mortgage
Loan as same may be modified or amended from time to time.
"DEFAULT" means any breach or default under any of the Loan Documents,
whether or not the same is an Event of Default, and also any condition or event
that, after notice or lapse of time or both, would constitute an Event of
Default if that condition or event were not cured or removed within any
applicable grace or cure period.
"DEFAULT RATE" has the meaning set forth in Section 2.2.
"DEPOSIT ACCOUNT" has the meaning set forth in Section 7.1.
"DEPOSIT ACCOUNT AGREEMENT" has the meaning set forth in Section 7.1.
"DEPOSIT BANK" has the meaning set forth in Section 7.1.
"DETERMINATION DATE" means the day which is two (2) Eurodollar Business
Days prior to the first day of an Interest Accrual Period; provided that the
first Determination Date shall be two (2) Eurodollar Business Days prior to the
Closing Date or, if such date is not a Eurodollar Business Day, the immediately
preceding Eurodollar Business Day. The LIBO Rate set on each Determination Date
shall be in effect for the Interest Accrual Period immediately following such
Determination Date.
"DISCLOSURE DOCUMENTS" has the meaning set forth in Section 10.3.
"DISPROPORTIONATE PAYDOWN" has the meaning set forth in Section 2.4(D).
"DOLLAR EQUIVALENTS" means (a) commercial paper rated P-1 or better by
Moody's or A-1 or better by S&P or similarly rated by any successor to either of
such rating services, (b) obligations of the United States government or any
agency thereof which are backed by the full faith and credit of the United
States, or (c) deposits, including certificates of deposit, in any commercial
bank or trust company (i) which is registered to do business in any state of the
United States, (ii) which has capital and surplus in excess of $100,000,000 and
(iii) the short-term debt of which is rated A-1 or better by S&P or P-1 or
better by Moody's or is similarly rated by any successor thereof, provided that
each such item of commercial paper, each such obligation, and each such time
deposit has a maturity date not later than thirty days after the date of
purchase thereof.
"DOLLARS" and the sign "$" mean the lawful money of the United States
of America.
6
"DOTHAN HOTEL" has the meaning set forth in Section 5.13.
"ELIGIBLE ACCOUNT" shall mean a separate and identifiable account from
all other funds held by the holding institution, which account is either (i) an
account maintained with an Eligible Bank or (ii) a segregated trust account
maintained by a corporate trust department of a federal depository institution
or a state chartered depository institution subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b), which, in either case, has corporate trust powers
and is acting in its fiduciary capacity or is otherwise acceptable to the Rating
Agencies.
"ELIGIBLE BANK" shall mean a bank that satisfies the Rating Criteria.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of Section 3(3) of ERISA (including any Multiemployer Plan) (i) which is
maintained for employees of any Borrower or any ERISA Affiliate, (ii) which has
at any time within the preceding six (6) years been maintained for the employees
of any Borrower or any current or former ERISA Affiliate or (iii) for which any
Borrower or any ERISA Affiliate has any liability, including contingent
liability.
"ENVIRONMENTAL INDEMNITY" means the Environmental Indemnity of even
date herewith from the Borrowers and Guarantor to Lender, as same may be amended
or modified from time to time.
"ENVIRONMENTAL LAW" shall have the meaning given such term in the
Mortgage Loan Agreement.
"ENVIRONMENTAL REPORTS" shall mean that certain environmental report of
the Jekyll Island Property delivered to Lender prior to the date hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
all rules and regulations promulgated thereunder.
"ERISA AFFILIATE" means, in relation to any Person, any other Person
under common control with the first Person, within the meaning of Section
4001(a)(14) of ERISA.
"EURODOLLAR BUSINESS DAY" means any day on which banks in the City of
London, England are generally open for interbank or foreign exchange
transactions and which is also a Business Day.
"EVENT OF DEFAULT" has the meaning set forth in Section 8.1.
"EXCESS CASH FLOW" has the meaning set forth in the Mortgage Loan Cash
Management Agreement.
"EXCESS INTEREST" has the meaning set forth in Section 2.2.
"EXCULPATED PARTIES" has the meaning set forth in Section 12.2.
7
"EXTENSION CAP THRESHOLD RATE" has the meaning set forth in Section
2.5.
"EXTENSION NOTICE" has the meaning set forth in Section 2.5.
"EXTENSION TERMS" has the meaning set forth in Section 2.5.
"EXTRAORDINARY RECEIPTS SUB-ACCOUNT" has the meaning set forth in the
Cash Management Agreement.
"FF&E" means all machinery, furniture, furnishings, equipment, fixtures
(including, without limitation, all heating, air conditioning, plumbing,
lighting, communications and elevator fixtures), inventory and articles of
personal property and accessions, renewals and replacements thereof and
substitutions therefor (including, without limitation, beds, bureaus,
chiffonniers, chests, chairs, desks, lamps, mirrors, bookcases, tables, rugs,
carpeting, drapes, draperies, venetian blinds, screens, paintings, hangings,
pictures, divans, couches, luggage carts, luggage racks, stool, sofas,
chinaware, linens, pillows, blankets, glassware, foodcarts, cookware, dry
cleaning facilities, dining room wagons, tools, keys or other entry systems,
bars, bar fixtures, liquor and drink dispensers, ice makers, radios, clock
radios, television sets, intercom and paging equipment, electric and electronic
equipment, dictating equipment, private telephone systems, medical equipment,
potted plants, heating, lighting and plumbing fixtures, fire prevention and
extinguishing apparatus, cooling and air-conditioning systems, elevators,
escalators, fittings, plants, apparatus, stoves, ranges, refrigerators, laundry
machines, tools, machinery, engines, dynamos, motors, boilers, incinerators,
switchboards, conduits, compressors, vacuum cleaning systems, floor cleaning,
waxing and polishing equipment, call systems, brackets, electrical signs, bulbs,
bells, fuel, conveyors, cabinets, lockers, shelving, spotlighting equipment,
dishwashers, garbage disposals, washer and dryers), other customary hotel
equipment and other tangible property of every kind and nature whatsoever owned
by the Mortgage Borrowers or the Jekyll Island Borrowers, or in which the
Mortgage Borrowers or the Jekyll Island Borrowers have or shall have an
interest, now or hereafter located at the Properties, or appurtenant thereto,
and useable in connection with the present or future operation and occupancy of
the Properties and all building equipment, material and supplies of any nature
whatsoever owned by the Mortgage Borrowers or the Jekyll Island Borrowers, or in
which Mortgage Borrowers or the Jekyll Island Borrowers have or shall have an
interest, now or hereafter located at the Properties, or appurtenant thereto,
and useable in connection with the present or future operation, enjoyment and
occupancy of the Properties.
"FF&E RESERVE" means the reserve established pursuant to Section 6.4 of
the Mortgage Loan Agreement.
"FINANCIAL STATEMENTS" means statements of operations and retained
earnings, statements of cash flow and balance sheets.
"FINANCING STATEMENTS" means the Uniform Commercial Code Financing
Statements naming the applicable Borrower Parties as debtor, and Lender as
secured party, required under applicable state law to perfect the security
interests created hereunder or under the other Loan Documents.
"FIRST EXTENSION TERM" has the meaning set forth in Section 2.5.
8
"FITCH" means Fitch, Inc.
"FORCE MAJEURE" means acts of god, governmental restrictions, stays,
judgments, orders, decrees, enemy actions, civil commotion, fire, casualty,
strikes or work stoppages which are industry-wide and not aimed at the Borrowers
or their Affiliates, or other causes beyond the reasonable control of the
Borrowers and/or their Affiliates, but the Borrowers' lack of funds in and of
itself shall not be deemed a cause beyond the control of the Borrowers.
"FRANCHISE AGREEMENTS" means, collectively, those certain agreements
described in EXHIBIT I and any replacement franchise agreement which may
hereafter be entered into in accordance with the terms and conditions hereof by
any of the Mortgage Borrowers or the Jekyll Island Borrowers, as the case may
be, as franchisee, pursuant to which the Mortgage Borrowers or the Jekyll Island
Borrowers, as the case may be, have the right to operate the Properties under
names and hotel systems controlled by the applicable Franchisor.
"FRANCHISOR" means the current hotel franchisor or licensor with
respect to any of the Properties or any other successors franchisor or licensor
permitted pursuant to Section 5.13.
"FRANCHISOR LETTER" shall mean, with respect to each Property, a
comfort letter(s), and/or similar instrument(s) from the related Franchisor to
Mortgage Lender and Lender acknowledging the Loan and providing certain
assurances, reasonably satisfactory to Lender, with respect thereto.
"FUNDING LOSSES" has the meaning set forth in Section 2.10.
"FUNDING PARTY" means any bank or other entity, if any, which is
indirectly or directly funding Lender with respect to the Loan, in whole or in
part, including, without limitation, any direct or indirect assignee of, or
participant in, the Loan.
"GAAP" means generally accepted accounting principles as set forth in
Statement on Auditing Standards No. 69 entitled "The Meaning of Presenting
Fairly in Conformity with Generally Accepted Accounting Principles in the
Independent Auditor's Report" issued by the Auditing Standards Board of the
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board to the extent such principles are
applicable to the facts and circumstances as of the date of determination.
"GOVERNMENTAL AUTHORITY" means, with respect to any Person, any federal
or state government or other political subdivision thereof and any entity,
including any regulatory or administrative authority or court, exercising
executive, legislative, judicial, regulatory or administrative or
quasi-administrative functions of or pertaining to government, and any
arbitration board or tribunal in each case having jurisdiction over such
applicable Person or such Person's property, and any stock exchange on which
shares of capital stock of such Person are listed or admitted for trading.
"GROUND LEASE DEFAULT" has the meaning given such term in the Mortgage
Loan Agreement, but for purposes of this Loan Agreement, shall include the
Jekyll Island Property.
9
"GROUND LEASED PROPERTIES" has the meaning given such term in the
Mortgage Loan Agreement.
"GROUND LEASES" has the meaning given such term in the Mortgage Loan
Agreement, but, for purposes of this Loan Agreement, shall include the Jekyll
Island Ground Lease.
"GROUND LESSOR" means each of the lessors under the Ground Leases.
"GUARANTOR" means Lodgian, Inc., a Delaware corporation.
"GUARANTY" means the Guaranty of Recourse Obligations and the
Environmental Indemnity, each of even date herewith executed by Guarantor in
favor of Lender, as same may be amended or modified from time to time.
"HAZARDOUS MATERIALS REMEDIATION RESERVE" means the Reserve established
pursuant to Section 6.5 of the Mortgage Loan Agreement.
"IMPOSITIONS" means (i) all real estate and personal property taxes,
and vault charges and all other taxes, levies, assessments and other similar
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, of every kind and nature whatsoever (including any payments in lieu
of taxes), which at any time prior to, at or after the execution hereof may be
assessed, levied or imposed by, in each case, a governmental authority upon any
of the Properties or the rents relating thereto or upon the ownership, use,
occupancy or enjoyment thereof, and any interest, cost or penalties imposed by
such governmental authority with respect to any of the foregoing and (ii) all
rent and other amounts payable by the Mortgage Borrowers or by the Jekyll Island
Borrowers under each of the Ground Leases or under the Jekyll Island Ground
Lease and under the Mortgaged Condominium Property Documents. Impositions shall
not include (x) any sales or use taxes payable by the Mortgage Borrowers or by
the Jekyll Island Borrowers, (y) taxes payable by tenants or guests occupying
any portions of the Properties, or (z) taxes or other charges payable by any
Manager or Franchisor unless such taxes are being paid on behalf of the Mortgage
Borrowers or the Jekyll Island Borrowers.
"IMPOSITIONS AND INSURANCE RESERVE" means the reserve established
pursuant to Section 6.3 of the Mortgage Loan Agreement and the reserve
established pursuant to Section 6.2(C) of this Loan Agreement.
"IMPROVEMENTS" means all buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
of every kind and nature now or hereafter located on the Properties and on the
Jekyll Island Property.
"INDEBTEDNESS" or "INDEBTEDNESS", shall mean, for any Person, without
duplication: (i) all indebtedness of such Person for borrowed money, for amounts
drawn under a letter of credit, or for the deferred purchase price of property
for which such Person or its assets is liable, (ii) all unfunded amounts under a
loan agreement, letter of credit (unless secured in full by Dollars), or other
credit facility for which such Person would be liable if such amounts were
advanced thereunder, (iii) all amounts required to be paid by such Person as a
guaranteed payment to partners or a preferred or special dividend, including any
mandatory redemption of shares or interests but not any preferred return or
special dividend paid solely from, and to the extent of,
10
excess cash flow after the payment of all operating expenses, capital
improvements and debt service on all Indebtedness, (iv) all obligations under
leases that constitute capital leases for which such Person is liable, (v) all
obligations of such Person under interest rate swaps, caps, floors, collars and
other interest hedge agreements, in each case whether such Person is liable
contingently or otherwise, as obligor, guarantor or otherwise, or in respect of
which obligations such Person otherwise assures a creditor against loss, and
(vi) invoices for goods and services provided to the Mortgage Borrowers and the
Jekyll Island Borrowers which are not paid within thirty (30) days of invoice.
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section 14.2.
"INDEMNITEES" has the meaning set forth in Section 14.2.
"INDEPENDENT DIRECTOR" means an individual who shall not have been at
the time of such individual's appointment or at any time while serving as a
director of Member, the Borrowers, the Mortgage Borrowers or any of their
respective Affiliates, and may not have been at any time during the preceding
five years (i) a stockholder, director (other than as an independent
director/member), officer, employee, partner, attorney or counsel of Member,
Guarantor, the Borrowers, the Mortgage Borrowers or any Affiliate of any of them
(except that such individual may be an independent director of any other
Affiliate of the foregoing), (ii) a customer, supplier or other Person who
derives any of its purchases or revenues from its activities with Member,
Guarantor, the Borrowers, the Mortgage Borrowers or any Affiliate of any of them
(other than a company that provides professional independent directors and which
also may provide other ancillary corporate, partnership, company or trust
services to Member, the Borrowers, the Mortgage Borrowers or their Affiliates in
the ordinary course of business (for example, The Corporation Trust Company)),
(iii) a Person or other entity controlling or under common control with any such
stockholder, partner, customer, supplier or other Person, or (iv) a member of
the immediate family of any such stockholder, director, officer, employee,
partner, customer, supplier or other Person. As used in this definition, the
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management, policies or activities of a
Person, whether through ownership of voting securities, by contract or
otherwise.
"INITIAL TERM" means the period from the Closing Date to the Scheduled
Maturity Date.
"INSURANCE POLICIES" has the meaning set forth in Section 5.4.
"INSURANCE PREMIUMS" means the annual insurance premiums for the
insurance policies required to be maintained by the Mortgage Borrowers and the
Jekyll Island Borrowers pursuant to Section 5.4.
"INTEREST ACCRUAL PERIOD" means a period commencing on the first
Business Day of a calendar month and ending on the day immediately prior to the
first Business Day of the next calendar month; provided that the first Interest
Accrual Period shall mean the period from and including the Closing Date and
including the day immediately prior to the first Business Day of the next
calendar month.
"INTERESTED PARTIES" has the meaning set forth in Section 10.3.
11
"INTEREST RATE" has the meaning set forth in Section 2.2.
"INVOLUNTARY BORROWER BANKRUPTCY" has the meaning set forth in Section
5.22.
"IRC" means the Internal Revenue Code of 1986, and any rule or
regulation promulgated thereunder from time to time, in each case as amended
from time to time.
"IRS" means the Internal Revenue Service or any successor thereto.
"JEKYLL ISLAND ASSIGNMENT OF LEASES AND RENTS" means that certain
assignment of leases and rents given by the Jekyll Island Borrowers to Lender.
"JEKYLL ISLAND BORROWERS" means, collectively, Island Motel
Enterprises, Inc. and Penmoco, Inc.
"JEKYLL ISLAND CAPITAL IMPROVEMENT RESERVE" has the meaning set forth
in Section 6.4.
"JEKYLL ISLAND CASH MANAGEMENT AGREEMENT" means that certain cash
management agreement dated as of the date hereof among the Jekyll Island
Borrowers, Lender, the Lock Box Account Bank and Manager.
"JEKYLL ISLAND FF&E RESERVE" has the meaning given in Section 6.3(B).
"JEKYLL ISLAND GROUND LEASE" means that certain Lease Agreement, dated
as of October 23, 1972, made by and between the Jekyll Island-State Park
Authority, a body corporate and politic created by the General Assembly of the
State of Georgia, as lessor, and Penmoco, Inc., as lessee, as modified, extended
and amended by various instruments, including a "Modification Agreement" dated
October 8, 1973, a "Modification Agreement" dated October 3, 1974, an
"Assignment, Assumption and Agreement" dated October 26, 1976, and a
"Modification of Warranty Deed to Secure Debt" dated April 4, 1978.
"JEKYLL ISLAND GROUND LEASE DEFAULT" has the meaning given in Section
4.30.
"JEKYLL ISLAND GROUND LEASED PROPERTY" means the real property covered
by the Jekyll Island Ground Lease.
"JEKYLL ISLAND IMPOSITIONS AND INSURANCE RESERVE" has the meaning given
in Section 7.1.
"JEKYLL ISLAND LOCK BOX ACCOUNT" has the meaning given in Section 7.1.
"JEKYLL ISLAND MONTHLY FF&E PAYMENT" has the meaning given in Section
6.3.
"JEKYLL ISLAND MORTGAGE" means that certain Leasehold Deed to Secure
Debt, Assignment of Leases and Rents and Security Agreement given by the Jekyll
Island Borrowers to Lender covering the Jekyll Island Property.
"JEKYLL ISLAND PROPERTY" means the Holiday Inn, 200 S, Beachview Drive,
Glynn County, Jekyll Island, Georgia.
12
"JEKYLL ISLAND RELEASE" has the meaning given in Section 11.5.
"JEKYLL ISLAND RELEASE DATE" has the meaning given in Section 11.5.
"JEKYLL ISLAND RELEASE PRICE" has the meaning given in Section 11.5.
"JEKYLL ISLAND REQUIRED CAPITAL IMPROVEMENTS" has the meaning given in
Section 6.4.
"JEKYLL ISLAND RESERVES" means the Jekyll Island Capital Improvement
Reserve, the Jekyll Island FF&E Reserve and the Jekyll Island Impositions and
Insurance Reserve.
"JEKYLL ISLAND SUPPLEMENTAL INSURANCE RESERVE PAYMENT" means $31,957.
"KNOWLEDGE": whenever in this Loan Agreement or any of the Loan
Documents, or in any document or certificate executed on behalf of any Borrower
Party pursuant to this Loan Agreement or any of the Loan Documents, reference is
made to the knowledge of the Borrowers or any other Borrower Party (whether by
use of the words "knowledge" or "known", or other words of similar meaning, and
whether or not the same are capitalized), such shall be deemed to refer to the
knowledge (without independent investigation unless otherwise specified) of (i)
the individuals who have significant responsibility for any policy making, major
decisions or financial affairs of the applicable entity; (ii) the general
manager for the applicable Property; (iii) the regional vice president of
operations for Guarantor, the president of each Borrower and Member, with
respect to operational issues of any of the Mortgage Borrowers, any of the
Properties, or any of the Borrowers; (iv) the chief operating officer of
Guarantor, with respect to representations regarding Guarantor; and (v) also to
the knowledge of the person signing such document or certificate.
"LEASE" means any lease, tenancy, license, assignment and/or other
rental or occupancy agreement or other agreement or arrangement (including,
without limitation, any and all guaranties of any of the foregoing) heretofore
or hereafter entered into affecting the use, enjoyment or occupancy of, or the
conduct of any activity upon or in, the Properties or any portion thereof,
including any extensions, renewals, modifications or amendments thereof.
"LENDER" is defined in the preamble.
"LENDER'S CONSULTANT" has the meaning set forth in Section 6.6.
"LETTER OF CREDIT" shall mean an irrevocable, unconditional,
transferable, clean sight draft letter of credit (either an evergreen letter of
credit or one which does not expire until at least thirty (30) days after the
Maturity Date (the "LC EXPIRATION DATE")), in favor of Lender, entitling Lender
to draw thereon in New York, New York based solely on a statement executed by an
officer or authorized signatory of Lender, in form and substance reasonably
acceptable to Lender and issued by an Eligible Bank. If at any time (a) the
institution issuing any such Letter of Credit shall cease to be an Eligible
Bank, or (b) if the Letter of Credit is due to expire prior to the LC Expiration
Date, Lender shall have the right immediately to draw down the same in full and
hold the proceeds thereof in accordance with the provisions of this Loan
Agreement, unless the Borrowers shall deliver a replacement Letter of Credit
from an Eligible Bank within (i) as to (a) above, twenty (20) days after Lender
delivers written notice to the Borrowers that the
13
institution issuing the Letter of Credit has ceased to be an Eligible Bank, or
(ii) as to (b) above, within twenty (20) days prior to the expiration date of
said Letter of Credit.
"LIBO RATE" means the applicable London interbank offered rate (rounded
upwards, if necessary, to the nearest one sixteenth (1/16th) of one percent
(1%)) expressed as a percentage per annum for deposits in U.S. dollars appearing
on Telerate Page 3750 as of 11:00 a.m. (London time) two business days prior to
the first day of the applicable Interest Accrual Period and having a maturity
equal to the duration of such Interest Accrual Period, provided that, (1) if
Telerate Page 3750 is not available for any reason, LIBO Rate for the relevant
Interest Accrual Period shall instead be the applicable London interbank offered
rate for deposits in U.S. dollars as reported by any other generally recognized
financial information service as of 11:00 a.m. (London time) two business days
prior to the first day of such Interest Accrual Period, and having a remaining
term to maturity equal to such Interest Accrual Period, and (2) if no such
report is available, LIBO Rate for the relevant interest period shall instead be
the rate determined by the Lender to be the rate at which it offers to place
deposits in U.S. dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two business days prior to the first
day of such Interest Accrual Period, in the approximate amount of its portion of
the relevant loan and having a maturity equal to such Interest Accrual Period.
LIBO Rate shall be adjusted for Federal Reserve Board reserve requirements.
"LIEN" means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind, whether voluntary or involuntary, (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, and any agreement to give any security interest).
"LLC INTERESTS" has the meaning set forth in the Pledge Agreement.
"LOAN" has the meaning set forth in Section 2.1.
"LOAN AGREEMENT" means this Mezzanine Loan Agreement, as same may be
amended, modified or restated from time to time (including all schedules,
exhibits, annexes and appendices hereto).
"LOAN DOCUMENTS" means this Loan Agreement, the Note, the Pledge
Agreement, the Jekyll Island Mortgage, the Guaranty, the Environmental
Indemnity, the Assignment of Rate Cap, the Financing Statements, the Cash
Management Agreement, the Jekyll Island Cash Management Agreement, the Jekyll
Island Assignment of Leases and Rents and any and all other documents and
agreements from any of the Borrowers, Member, Guarantor or Manager and accepted
by Lender for the purposes of evidencing and/or securing the Loan, excluding the
Mortgage Loan Documents.
"LOCK BOX ACCOUNT" and "LOCK BOX ACCOUNT BANK" are defined in Section
7.1.
"LP INTERESTS" has the meaning set forth in the Pledge Agreement.
"MANAGEMENT AGREEMENTS" means those certain Management Agreements
described in EXHIBIT B, between each Mortgage Borrower or the Jekyll Island
Borrowers, and the applicable Manager described therein, the Memphis Interim
Agreement and any management agreement
14
which may hereafter be entered into in accordance with the terms and conditions
hereof, pursuant to which any subsequent Manager may hereafter manage one or
more of the Properties.
"MANAGEMENT FEE" means the fees earned by all Managers pursuant to the
terms of the Management Agreements.
"MANAGERS" means the managers described in EXHIBIT B or an Acceptable
Manager as may hereafter be charged with management of one or more of the
Properties in accordance with the terms and conditions hereof.
"MATERIAL ADVERSE EFFECT" means, as determined by Lender in its
reasonable discretion, (A) a material adverse effect (which may include economic
or political events) upon the business, operations properties, assets or
condition (financial or otherwise) of any of the Borrowers, the Mortgage
Borrowers or Guarantor, or (B) the impairment of the ability of any of the
Borrowers, the Mortgage Borrowers or Guarantor to perform its obligations under
any Loan Documents, or (C) the impairment of the ability of Lender to enforce or
collect any of the Obligations as such Obligations become due or of Mortgage
Lender to enforce or collect any of the obligations under the Mortgage Loan
Documents as such obligations become due. In determining whether any individual
event would result in a Material Adverse Effect, notwithstanding that such event
does not of itself have such effect, a Material Adverse Effect shall be deemed
to have occurred if the cumulative effect of such event and all other then
occurring events and existing conditions would result in a Material Adverse
Effect.
"MATERIAL AGREEMENT" means any contract or agreement relating to the
ownership, management, development, use, operation, leasing, maintenance, repair
or improvement of the Properties under which there is an obligation of the
Mortgage Borrowers or the Jekyll Island Borrowers, in the aggregate, to pay, or
under which any Mortgage Borrower or the Jekyll Island Borrowers receives in
compensation, more than $1,000,000 per annum, other than (i) the Management
Agreements, (ii) any Franchise Agreements, and (iii) any agreement under which
(x) there is an obligation of the Mortgage Borrowers or the Jekyll Island
Borrowers, in the aggregate, to pay, or under which any Mortgage Borrower or the
Jekyll Island Borrowers (or all of the Mortgage Borrowers and the Jekyll Island
Borrowers, in the aggregate) receives in compensation, not more than $5,000,000
per annum and which (y) is terminable by the Mortgage Borrowers or the Jekyll
Island Borrowers on not more than sixty (60) days prior written notice without
any fee or penalty.
"MATERIAL ALTERATION" means any improvement or alteration to any
Property (other than decorative work such as painting, wallpapering and
carpeting), the cost of which exceeds the greater of (x) five percent (5%) of
the Aggregate Allocated Loan Amount of such Property or (y) $250,000, or is not
otherwise already approved by Lender as part of the CapEx/FF&E Budget or Capital
Improvement Plan then in effect or which otherwise does not constitute Work.
"MATERIAL LEASE" means any Lease of space in a Property (other than
Leases for space in the office building located at the West Palm Beach Property)
or in the Jekyll Island Property which (i) is with an Affiliate of the Mortgage
Borrowers or the Jekyll Island Borrowers, (ii)(a) either provides for annual
rent or other payments in an amount equal to or greater than $100,000, or has a
term (including all extensions and renewals which are unilaterally exercisable
by the
15
tenant thereunder) or more than (10) years, and (b) may not be cancelled by
either party thereto on thirty (30) days' notice without payment of a
termination fee, penalty or other cancellation fee, (iii) demises in excess of
2000 square feet of space, (iv) is for any establishment the primary purpose of
which is the service of food and/or beverages or for any use not currently in
effect at the Property or the Jekyll Island Property, or (v) obligates the
Mortgage Borrowers or the Jekyll Island Borrowers to make any improvements to
the Property or the Jekyll Island Property either directly or through cash
allowances (including, without limitation, free rent, tenant improvement
allowances, or landlord's construction work) to the applicable tenant in excess
of $25,000. For purposes of this definition only, in determining the square
footage demised under any Lease, all space in the applicable Property or the
Jekyll Island Property which may in the future be demised to the tenant under
such Lease by reason of such tenant exercising any right or option contained in
such Lease shall be included in the calculation of the square footage demised
under such Lease.
"MATURITY DATE" shall mean the Scheduled Maturity Date, as same may be
extended for the First Extension Term, the Second Extension Term, or the Third
Extension Term (subject to the terms and conditions of Section 2.5(B)), or such
other date on which the final payment of principal of the Note becomes due and
payable as herein provided, whether at such stated maturity date, by
acceleration, or otherwise.
"MAXIMUM RATE" has the meaning set forth in Section 2.2.
"MEMBER" shall mean, individually or collectively, any entity (other
than the sole member of any Borrower) which is now or hereafter becomes the
managing member of any of the Borrowers under such Borrower's limited liability
company operating agreement.
"MEMBERSHIP CERTIFICATES" has the meaning set forth in the Pledge
Agreement.
"MEMPHIS INTERIM AGREEMENT" as defined in the Mortgage Loan Agreement.
"MERRILL LYNCH" has the meaning set forth in Section 10.3.
"MEZZANINE LENDER'S PERCENTAGE" shall mean, if the Mortgage Loan
remains outstanding at the time of determination, the ratio, expressed as a
percentage, that the then outstanding principal balance of the Mezzanine Loan
bears to the Aggregate Outstanding Principal Balance, and following satisfaction
of the Mortgage Loan, 100%. As of the date hereof Mezzanine Lender's Percentage
is 25.99%.
"MINIMUM DEBT YIELD" means (i) prior to the first (1st) anniversary of
the Closing Date, 12.75%, (ii) from the first (1st) anniversary of the Closing
Date but prior to the second (2nd) anniversary of the Closing Date, 13.25%,
(iii) during the First Extension Term, 13.50%, (iv) during the Second Extension
Term, 13.75%, and (v) during the Third Extension Term, 14.00%.
"MINIMUM DSCR" means 1.20:1.0.
"MOODY'S" means Moody's Investors Service.
16
"MORTGAGE BORROWERS" means, collectively, each of the entities
identified as owners of Properties set forth on Schedule 4.1(C), provided that,
following a Property Release, "MORTGAGE BORROWERS" shall mean each of the
Mortgage Borrowers remaining as a party to the Mortgage Loan Agreement and whose
Property remains subject to the Deeds of Trust (as defined in the Mortgage Loan
Agreement).
"MORTGAGE LENDER" means Merrill Lynch Mortgage Lender, Inc., its
successors and assigns, as lender under the Mortgage Loan Documents.
"MORTGAGE LENDER'S PERCENTAGE" shall mean, at the time of
determination, the ratio, expressed as a percentage, that the outstanding
principal balance of the Mortgage Loan bears to the Aggregate Outstanding
Principal Balance. As of the date hereof, Mortgage Lender's Percentage is 74.01%
"MORTGAGE LOAN" means that certain loan in the amount of $224,036,325
from Mortgage Lender to the Mortgage Borrowers.
"MORTGAGE LOAN AGREEMENT" means the Loan and Security Agreement between
the Mortgage Borrowers and Mortgage Lender.
"MORTGAGE LOAN CASH MANAGEMENT AGREEMENT" means the Cash Management
Agreement of even date herewith among Mortgage Borrowers, Mortgage Lender,
Manager, and Lock Box Account Bank and any replacement thereof entered into with
a successor Agent in accordance with the terms thereof.
"MORTGAGE LOAN DOCUMENTS" means the documents executed and delivered by
the Mortgage Borrowers and certain Affiliates thereof to Mortgage Lender in
connection with the Mortgage Loan.
"MORTGAGE LOAN LOCK BOX ACCOUNT" means the Lock Box Account established
pursuant to the terms of the Mortgage Loan Cash Management Agreement.
"MULTIEMPLOYER PLAN" means a "multiemployer plan" as defined in Section
3(37) or Section 4001 (a)(3) of ERISA to which any of the Borrowers or any
Affiliate is making, or is accruing an obligation to make, contributions or has
made, or been obligated to make, contributions within the preceding six (6)
years, or for which any of the Borrowers or any Affiliate has any liability,
including contingent liability.
"NET CASH FLOW" means Net Operating Income for any period less (i) a
base management fee equal to the greater of (A) the actual base management fee
for such period and (B) 4.0% of Operating Revenues for such period, (ii) a
reserve for FF&E equal to 4.0% of Operating Revenues for such period, and (iii)
fees due to all Franchisors for such period.
"NET OPERATING INCOME" OR "NOI" has the meaning given such term in the
Mortgage Loan Agreement, but for purposes of this Loan Agreement, shall include
Net Operating Income from the Jekyll Island Property as if the Jekyll Island
Property were a "Property" under the Mortgage Loan Agreement.
17
"NON-FLAGGED PROPERTIES" means the Properties located at 9700 Bluegrass
Highway, Louisville, Kentucky and 2144 Madison Avenue, Memphis, Tennessee, prior
to such Properties becoming subject to a Franchise Agreement.
"NOTE" has the meaning set forth in Section 2.1.
"OBLIGATIONS" means the Loan and all obligations, liabilities and
indebtedness of every nature to be paid or performed by the Borrowers under the
Loan Documents, including the principal amount of the Loan, interest accrued
thereon and all fees, costs and expenses, and other sums now or hereafter owing,
due or payable and whether before or after the filing of a proceeding under the
Bankruptcy Code by or against any of the Borrowers, and the performance of all
other terms, conditions and covenants under the Loan documents.
"OPERATING BUDGET" means, for any period, the Mortgage Borrowers' and
the Jekyll Island Borrower's budget setting forth the Mortgage Borrowers' and
the Jekyll Island Borrowers' best estimate, after due consideration, of all
Operating Revenues and Operating Expenses and any other revenues, costs and
expenses for each of the Properties or for the Jekyll Island Property, as the
case may be, for such period, which budget has been approved by Lender in
accordance herewith, as same may be amended pursuant to Section 5.1(D) hereof.
"OPERATING EXPENSES" has the meaning given such term in the Mortgage
Loan Agreement, but, for purposes of this Loan Agreement, shall include
Operating Expenses from the Jekyll Island Property as if the Jekyll Island
Property were a "Property" under the Mortgage Loan Agreement.
"OPERATING REVENUES" has the meaning given such term in the Mortgage
Loan Agreement, but, for purposes of this Loan Agreement, shall include
Operating Revenues from the Jekyll Island Property as if the Jekyll Island
Property were a "Property" under the Mortgage Loan Agreement.
"OSI DEFAULTS" means defaults under the Crowne Plaza Franchise
Agreements resulting from the failure to achieve or maintain an Overall Service
Index Level (as such term is defined in the applicable standards manual in
effect for the Crowne Plaza Franchise Agreements) of 80, or such other default
standard as may be set forth in the applicable standards manual after the
Closing Date at the following Properties: (i) the West Palm Beach Property; (ii)
350 1(st) Avenue N.E., Cedar Rapids, Iowa; (iii) 91 State Street,
Albany, New York and (iv) 2801 NW Freeway, Houston, Texas.
"OWNERSHIP INTERESTS" has the meaning set forth in Section 9.1.
"PAYMENT DATE" means the date that is the last day of each calendar
month occurring during the term of the Loan (or if such last day is not a
Business Day, the immediately preceding Business Day).
"PERMITTED ASSUMPTION" has the meaning set forth in Section 11.3.
"PERMITTED ENCUMBRANCES" shall have the meaning given such term in the
Mortgage Loan Agreement but, for purposes of this Loan Agreement, shall include
(i) the Jekyll Island
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Mortgage and the other Liens of the Loan Documents relating to the Jekyll Island
Property in favor of Lender, (ii) the items shown in Schedule B to the Title
Policy relating to the Jekyll Island Property as of Closing, (iii) Liens for
Impositions relating to the Jekyll Island Property not yet due and payable or
Liens arising after the date hereof which are being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted in
accordance with Section 5.3(D) hereof; (iv) in the case of Liens relating to the
Jekyll Island Property arising after the date hereof, statutory Liens of
carriers, warehousemen, mechanics, materialmen and other similar Liens arising
by operation of law, which are incurred in the ordinary course of business and
discharged by the Borrowers by payment, bonding or otherwise within forty-five
(45) days after the filing thereof or which are being contested in good faith in
accordance with Section 5.3(D) hereof; (v) Liens relating to the Jekyll Island
Property arising from reasonable and customary purchase money financing of
personal property and equipment leasing to the extent the same are created in
the ordinary course of business in accordance with Section 5.17(C) hereof; (vi)
all easements, rights-of-way, restrictions and other similar charges or
non-monetary encumbrances against the Jekyll Island Property which do not
materially adversely affect (A) the ability of the Borrowers to pay any of their
obligations to any Person as and when due, (B) the marketability of title to the
Jekyll Island Property, (C) the fair market value of the Jekyll Island Property,
or (D) the use or operation of the Jekyll Island Property as of the Closing Date
and thereafter; (vii) rights of existing and future tenants, as tenants only,
pursuant to the Leases relating to the Jekyll Island Property; and (viii) any
other Lien to which Lender may expressly consent in writing.
"PERMITTED INDEBTEDNESS" has the meaning set forth in Section 5.17.
"PERMITTED INVESTMENTS" has the meaning set forth in the Cash
Management Agreement.
"PERMITTED OWNERSHIP INTEREST TRANSFERS" has the meaning set forth in
Section 11.2.
"PERMITTED TRANSFEREE" means any Person (provided such Person satisfies
the requirements of Article IX hereof) controlled by, and more than 51% of which
is owned by, one of the following:
(i) a pension fund, pension trust or pension account that (a) has
total real estate assets of at least $2.5 Billion and (b) is managed by a Person
who controls real estate equity assets (not including the Properties) having a
fair market value of at least $1.25 Billion; or
(ii) a pension fund advisor who (a) immediately prior to such
transfer, controls at least $1 Billion of real estate equity assets and (b) is
acting on behalf of one or more pension funds that, in the aggregate, satisfy
the requirements of clause (i) of this definition; or
(iii) an insurance company which is subject to supervision by the
insurance commissioner, or a similar official or agency, of a state or territory
of the United States (including the District of Columbia) (a) with a net worth,
as of the date immediately prior to the date of the transfer, of at least $1
Billion and (b) who, immediately prior to such transfer, controls real estate
equity assets (not including the Properties) having a fair market value of at
least $2.5 Billion; or
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(iv) a corporation organized under the banking laws of the United
States or any state or territory of the United States (including the District of
Columbia) (a) with a combined capital and surplus of at least $1 Billion and (b)
who, immediately prior to such transfer, controls real estate equity assets (not
including the Properties) having a fair market value of at least $5 Billion; or
(v) any other Person (a) with a long-term unsecured debt rating
from the Rating Agencies of at least investment grade and (b) that owns or
operates at least 15,000 hotel rooms, (ii) has a net worth, as of the date
immediately prior to the date of such transfer, of at least $750 Million and
(iii) immediately prior to such transfer, controls real estate equity assets
(not including the Properties) having a fair market value of at least $1.5
Billion.
"PERSON" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, joint stock
companies, joint ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations, whether or not
legal entities, and governments and agencies and political subdivisions thereof
and their respective permitted successors and assigns (or in the case of a
governmental Person, the successor functional equivalent of such Person).
"PLAN OF REORGANIZATION" means the Joint Plan of Reorganization of
Lodgian, Inc., et al., together with the Official Committee of Unsecured
Creditors under Chapter 11 of the Bankruptcy Code, as approved pursuant to the
terms of the Bankruptcy Code, together with any confirmation and/or amendments
thereto entered in accordance with the Bankruptcy Code.
"PLEDGE AGREEMENT" means, that certain Pledge and Security Agreement
dated as of the date hereof given by the Borrowers (excluding the Jekyll Island
Borrowers), as pledgors, in favor of Lender, as secured party, with respect to
100% of the LLC Interests, 100% of the LP Interests (other than those LP
Interests in Servico Centre Associates, Ltd. consisting of limited partnership
interests that are held by individuals) and 100% of the Stock Interests.
"PREPAYMENT CONSIDERATION" has the meaning set forth in Section 2.6.
"PRE-PETITION TAX LIABILITIES" means those certain outstanding taxes
(together with accrued interest and penalties thereon) in the amounts set forth
on SCHEDULE 4.10 which have been deferred and are required to be paid pursuant
to the terms of the Plan of Reorganization, less the amount of any such deferred
amounts actually paid by the Borrowers in accordance with the Plan of
Reorganization after the date hereof.
"PROPERTIES" and "PROPERTY" means, collectively or individually, the
properties (including land and Improvements) described in EXHIBIT C, together
with all Improvements now or hereafter located thereon and all related
facilities, amenities and FF&E owned by the applicable Mortgage Borrowers and
which shall be encumbered by and are more particularly described in the
respective Deeds of Trust; provided that, following a Property Release,
"PROPERTIES" and "PROPERTY" shall mean each of the Properties or the Property,
as applicable, that remain encumbered by the Deeds of Trust as Collateral for
the Mortgage Loan.
"PROPERTY CONDITION REPORT" has the meaning set forth in Section 3.1.
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"PROPERTY IMPROVEMENT PLAN" means, collectively, those certain property
improvement plans for the Properties attached as EXHIBIT D and any future
Property Improvement Plans required to be implemented by the applicable
Franchisor.
"PROPERTY RELEASE" has the meaning given such term in the Mortgage Loan
Agreement but, as used in this Loan Agreement, shall include a Jekyll Island
Release.
"RATING AGENCY" shall mean, prior to a securitization, any of S&P,
Moody's and Fitch or any other nationally-recognized statistical rating
organization designated by Lender in its sole discretion, and, after a
Securitization, each Rating Agency which has rated the Securities that are the
subject of the Securitization.
"RATING CONFIRMATION" with respect to the transaction or matter in
question, shall mean: (i) if all or any portion of the Loan, by itself or
together with other loans, has been the subject of a Securitization, then each
applicable Rating Agency shall have confirmed in writing that such transaction
or matter shall not result in a downgrade, qualification, or withdrawal of any
rating then in effect for any certificate or other securities issued in
connection with such Securitization; and (ii) if all of the Loan has not been
the subject of a Securitization, then Lender shall have determined in its
reasonable discretion (taking into consideration such factors as Lender may in
good faith determine, including the attributes of the loan pool in which the
Loan might reasonably be expected to be securitized) that no rating for any
certificate or other securities that would be issued in connection with a
Securitization of such portion of the Loan will be downgraded, qualified, or
withheld by reason of such transaction or matter.
"RATING CRITERIA" with respect to any Person, shall mean that (i) the
short-term unsecured debt obligations of such Person are rated at least "A-1" by
S&P, "P-1" by Moody's and "F-1" by Fitch, if deposits are held by such Person
for a period of less than one month, or (ii) the long-term unsecured debt
obligations of such Person are rated at least "AA-" by S&P (or "A" if the
short-term unsecured debt obligations of such Person are rated at least "A-1"),
"Aa2" by Moody's and "A" by Fitch, if deposits are held by such Person for a
period of one month or more.
"RECEIPTS" shall mean all revenues, receipts and other payments of
every kind arising from ownership or operation of the Properties and the Jekyll
Island Property, including without limitation, all warrants, stock options, or
equity interests in any tenant, licensee or other Person occupying space at, or
providing services related to or for the benefit of, the Properties and the
Jekyll Island Property, received by the Mortgage Borrowers, the Jekyll Island
Borrowers or any Related Person of the Mortgage Borrowers or the Jekyll Island
Borrowers in lieu of rent or other payment.
"RELATED PERSON" means any Person in which any of the Borrowers or the
Guarantor holds greater than a ten percent (10%) equity interest.
"RELEASE PRICE" has the meaning given such term in the Mortgage Loan
Agreement.
"RELEASE PRICE EXCESS" means the amount by which any Release Price
exceeds the Aggregate Allocated Loan Amount of the Property being released;
provided, however, Property Release Price Excess shall exclude any portion of a
Release Price paid in connection with (x) a
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Property Release necessary to prevent an Uncured Franchise Default, or (y) a
Property Release necessary to enable the Mortgage Borrowers and the Jekyll
Island Borrowers to comply with the restrictions set forth in Section 5.13(D).
"RENT ROLL" has the meaning set forth in Section 3.1.
"RENTS" has the meaning set forth in the Granting Clauses of the Deeds
of Trust and in the Granting Clauses of the Jekyll Island Mortgage.
"REPLACEMENTS" has the meaning set forth in Section 6.3.
"RESERVE PRINCIPAL PAYMENT" means $9,000,000.
"RESERVE SUB-ACCOUNTS" has the meaning set forth in Section 7.1 of the
Mortgage Loan Agreement.
"RESERVES" means the reserves established by or on behalf of Mortgage
Lender pursuant to the Mortgage Loan Documents including the reserves
established pursuant to Section 5.4 and Article VI of the Mortgage Loan
Agreement, and the reserves held by or on behalf of Lender pursuant to this Loan
Agreement or the other Loan Documents, including the Jekyll Island Reserves.
"RESTORATION" has the meaning set forth in the Mortgage Loan Agreement.
"REVPAR" means average room revenues per available room per day.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"SCHEDULED MATURITY DATE" shall mean November 30, 2004.
"SCHEDULED MEZZANINE PRINCIPAL PAYMENTS" shall mean (x) $64,975.00
through and including the Payment Date in November 2003, (y) $97,462.50
following the Payment Date in November 2003, through and including the Payment
Date in November 2004, and (z) $129,950.00 thereafter through the Maturity Date.
"SCHEDULED MORTGAGE PRINCIPAL PAYMENTS" shall mean (x) $185,025.00
through and including the Payment Date in November 2003, (y) $277,537.50
following the Payment Date in November 2003, through and including the Payment
Date in November 2004, and (z) $370,050.00 thereafter through the Maturity Date.
"SECOND EXTENSION TERM" has the meaning set forth in Section 2.5(B).
"SECONDARY MARKET TRANSACTION" has the meaning set forth in Section
10.1.
"SECURITIES" (whether or not capitalized) means any stock, shares,
voting trust certificates, bonds, debentures, options, warrants, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments
22
commonly known as "securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"SECURITIZATION" shall mean a rated offering of securities representing
direct or indirect interests in the Loan or the right to receive income
therefrom.
"SERVICER" means a servicer or servicers selected by Lender from time
to time in its sole discretion to service the Loan.
"SERVICING FEES" has the meaning set forth in Section 2.11.
"SPECIFIED APPROVAL" shall mean any request for Lender approval
required to be submitted by the Borrower under Section 5.1(D) [Budgets]; Section
5.5(A) [Material Alterations]; Section 5.12 [Leases]; Section 5.13
[Management/Franchise Agreements]; Section 11.1 [Transfers]; or Section 11.3
[Assumptions].
"STOCK INTERESTS" has the meaning set forth in the Pledge Agreement.
"SUB-ACCOUNTS" has the meaning set forth in Section 7.1.
"SUPPLEMENTAL FINANCIAL INFORMATION" means (i) a comparison of the
budgeted income and expenses and the actual income and expenses for the prior
calendar year or corresponding calendar quarter for such prior year, (ii) a
calculation of the average daily rate, RevPAR and average occupancy statistics
for the Properties for the applicable period and (iii) such other financial
reports as the subject entity shall routinely and regularly prepare.
"SURVEY" has the meaning set forth in Section 3.1.
"TAX LIABILITIES" has the meaning set forth in Section 2.9.
"TEST RATE" means an interest rate equal to the greater of (x) the then
current yield on the 10-year United States Treasury Note plus the Test Rate
Spread and (y) the then current LIBO Rate plus the Test Rate Spread.
"TEST RATE SPREAD" means 4.0%, provided, however, if the Borrowers have
not made the Reserve Principal Payment on or prior to the Payment Date occurring
in November 2003, the "TEST RATE SPREAD" shall mean 4.15% throughout the
remainder of the term of the Loan, including any Extension Terms.
"THIRD EXTENSION TERM" has the meaning set forth in Section 2.5(B).
"TIER 1 HOTEL" means any of the Properties or the Jekyll Island
Property subject to a Franchise Agreement with an Acceptable Franchisor, or
under a Franchisor brand, as applicable, identified in the "Tier 1" category on
EXHIBIT F.
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"TIER 2 HOTEL" means any of the Properties or the Jekyll Island
Property subject to a Franchise Agreement with an Acceptable Franchisor, or
under a Franchisor brand, identified in the "Tier 2" category on EXHIBIT F.
"TIER 3 HOTEL" means any of the Properties or the Jekyll Island
Property subject to a Franchise Agreement with an Acceptable Franchisor, or
under a Franchisor brand, identified in the "Tier 3" category on EXHIBIT F.
"TITLE COMPANIES" means First American Title Insurance Company,
Fidelity National Title Company of New York and such other national title
insurance company as may be acceptable to Lender.
"TITLE POLICIES" means the Eagle 9 title insurance policy, or similar
title insurance policy and the mortgage loan title insurance policy issued by
Fidelity National Title Company of New York insuring the Jekyll Island Mortgage,
issued by the Title Companies to Lender in connection with the Closing.
"TRANSFER" has the meaning set forth in Section 11.2.
"TRANSFEREE BORROWER" has the meaning set forth in Section 11.3.
"UNCURED FRANCHISE DEFAULT" means (x) the voluntary or involuntary
termination of any Franchise Agreement, or (y) the occurrence of one or more
breaches or defaults (other than OSI Defaults) which do not result from the
failure of the Mortgage Borrowers or the Jekyll Island Borrowers to pay to the
Franchisors amounts due under the applicable Franchise Agreement, and the
continuance thereof beyond all applicable notice and grace periods, if any,
under Franchise Agreements (or such other cure periods as may be provided by
Franchisor in writing covering Properties with Aggregate Allocated Loan Amounts
of ten percent (10%) or more of the outstanding principal balance of the Loan
and the Mortgage Loan; provided, however, no Uncured Franchise Default shall be
deemed to have occurred following the voluntary or involuntary termination of
any Franchise Agreement if (a) within ten (10) Business Days of the termination
of the applicable Franchise Agreement (and at the time of delivery of each
report pursuant to Section 5.1(A)(v)) the Borrowers deliver to Lender evidence
reasonably satisfactory to Lender that the Mortgage Borrowers or the Jekyll
Island Borrowers, as the case may be, are diligently pursuing a Franchise
Agreement with an Acceptable Franchisor for the applicable Property and shall
thereafter diligently and continuously pursue such Franchise Agreement, (b) at
the time of such termination not more than the lesser of (i) four (4)
Properties, or (ii) Properties with Aggregate Allocated Loan Amounts of five
percent (5%) of the outstanding principal balance of the Loan and the Mortgage
Loan, in either case excluding the Non-Flagged Properties, shall be in operation
without being subject to Franchise Agreements, and (c) no Property (other than
the Non-Flagged Properties) shall be without a Franchise Agreement in place for
a period in excess of six (6) months from the termination of the applicable
Franchise Agreement.
"UNIFORM SYSTEM" means the Uniform System of Accounts for the Lodging
Industry promulgated by the American Hotel and Motel Association, as in effect
from time to time.
"WAIVING PARTY" has the meaning set forth in Section 13.1.
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"WEST PALM BEACH PROPERTY" means the Property located at 1601 Belvedere
Boulevard, West Palm Beach, Florida.
"WORK RESERVES" has the meaning set forth in Section 6.7 of the
Mortgage Loan Agreement, but, for purposes of this Loan Agreement, shall include
the Jekyll Island Capital Improvement Reserve.
SECTION 1.2 ACCOUNTING TERMS.
For purpose of this Loan Agreement, all accounting terms not otherwise
defined herein shall have the meanings assigned to such terms in conformity
with GAAP or the Uniform System, as the case may be.
SECTION 1.3 OTHER DEFINITIONAL PROVISIONS.
References to "ARTICLES", "SECTIONS", "SUBSECTIONS", "EXHIBITS" and
"SCHEDULES" shall be to Articles, Sections, Subsections, Exhibits and Schedules,
respectively, of this Loan Agreement unless otherwise specifically provide. Any
of the terms defined in Section 1.1 may, unless the context otherwise requires,
be used in the singular or the plural depending on the reference. In this Loan
Agreement, "HEREOF", "HEREIN", "HERETO", "HEREUNDER" and the like mean and refer
to this Loan Agreement as a whole and not merely to the specific article,
section, subsection, paragraph or clause in which the respective word appears;
words importing any gender include the other genders; references to "WRITING"
include printing, typing, lithography and other means of reproducing words in a
tangible visible form; the words "INCLUDING", "INCLUDES" and "INCLUDE" shall be
deemed to be followed by the words "without limitation"; and any reference to
any statute or regulation may include any amendments of same and any successor
statutes and regulations. Further, (i) any reference to any agreement or other
document may include subsequent amendments, assignments, and other modifications
thereto, and (ii) any reference to any Person may include such Person's
respective permitted successors and assigns or, in the case of governmental
Persons, Persons succeeding to the relevant functions of such Persons.
ARTICLE II
TERMS OF THE LOAN
SECTION 2.1 LOAN.
(A) LOAN. Subject to the terms and conditions of this Loan
Agreement and in reliance upon the representations and warranties of the
Borrowers contained herein, Lender agrees to lend to the Borrowers, and the
Borrowers agree to borrow from Lender, a loan in the original principal amount
of $78,671,201 (such loan and the obligation of the Borrowers to repay the same
together with all interest and other amounts from time to time owing hereunder
may be referred to as the "LOAN").
(B) NOTE. On the Closing Date, the Borrowers shall execute and
deliver to Lender a Mezzanine Note, dated of even date herewith (as amended,
modified or restated, and any replacement or substitute notes therefor, by means
of multiple notes or otherwise, collectively,
25
the "NOTE"), made by the Borrowers to the order of Lender, in the original
principal amount of $78,671,201.
(C) USE OF PROCEEDS. The proceeds of the Loan funded at Closing
may be used to (i) refinance existing indebtedness; (ii) pay pre-petition real
estate taxes, all recording and filing fees and taxes, title insurance premiums,
the reasonable out-of-pocket costs and expenses incurred by Lender and Mortgage
Lender, including reasonable legal fees and expenses of counsel to Lender and
Mortgage Lender, and other costs and expenses approved by Lender (which approval
will not be unreasonably withheld) related to the Loan; (iii) establish the
Reserves required hereunder; (iv) fund cash collateral requirements under
certain letters of credit; and (v) provide for general corporate purposes
including, without limitation, payment of transaction costs and expenses
incurred by the Borrowers and capital contributions to the Mortgage Borrowers.
The remaining proceeds of the Loan, if any, shall be disbursed to or as
otherwise directed by the Borrowers.
SECTION 2.2 INTEREST.
(A) RATE OF INTEREST. The outstanding principal balance of the
Loan shall bear interest at a rate per annum equal to the Interest Rate in
effect for each Interest Accrual Period during the term hereof. The "INTEREST
RATE" for any Interest Accrual Period shall be the rate of interest per annum
equal to the sum of (i) the Applicable Spread plus (ii) the LIBO Rate in effect
for such Interest Accrual Period; provided that such interest rate shall be
subject to adjustment under the circumstances set forth in Section 2.4(D) of
this Loan Agreement.
(B) DEFAULT RATE. Notwithstanding the foregoing, upon the
occurrence and during the continuance of an Event of Default and in any event
from and after the Maturity Date of the Loan and until the Loan and all other
Obligations are satisfied in full, the outstanding principal balance of the Loan
and all other Obligations shall bear interest until paid in full at a rate per
annum that is five percent (5.0%) in excess of the Interest Rate otherwise
applicable under this Loan Agreement and the Note (the "DEFAULT Rate").
(C) COMPUTATION OF INTEREST. Interest on the Loan and all other
Obligations owing to Lender shall be computed on the basis of a 360-day year,
and shall be charged for the actual number of days elapsed during any month or
other accrual period. Interest shall be payable in arrears (except with respect
to the number of days from the Payment Date in any Interest Accrual Period to
the last day of such Interest Accrual Period as to which interest shall be
payable in advance).
(D) INTEREST LAWS. Notwithstanding any provision to the contrary
contained in this Loan Agreement or the other Loan Documents, the Borrowers
shall not be required to pay, and Lender shall not be permitted to collect, any
amount of interest in excess of the maximum amount of interest permitted by law
("EXCESS INTEREST"). If any Excess Interest is provided for or determined by a
court of competent jurisdiction to have been provided for in this Loan Agreement
or in any of the other Loan Documents, then in such event: (1) the provisions of
this subsection shall govern and control; (2) the Borrowers shall not be
obligated to pay any Excess Interest; (3) any Excess Interest that Lender may
have received hereunder shall be, at Lender's option, (a) applied as a credit
against either or both of the outstanding principal balance of the
26
Loan or accrued and unpaid interest thereunder (not to exceed the maximum amount
permitted by law), (b) refunded to the payor thereof, or (c) any combination of
the foregoing; (4) the interest rate(s) provided for herein shall be
automatically reduced to the maximum lawful rate allowed from time to time under
applicable law (the "MAXIMUM RATE"), and this Loan Agreement and the other Loan
Documents shall be deemed to have been and shall be, reformed and modified to
reflect such reduction; and (5) the Borrowers shall not have any action against
Lender for any damages arising out of the payment or collection of any Excess
Interest. Notwithstanding the foregoing, if for any period of time interest on
any Obligation is calculated at the Maximum Rate rather than the applicable rate
under this Loan Agreement, and thereafter such applicable rate becomes less than
the Maximum Rate, the rate of interest payable on such Obligations shall, to the
extent permitted by law, remain at the Maximum Rate until Lender shall have
received or accrued the amount of interest which Lender would have received or
accrued during such period on Obligations had the rate of interest not been
limited to the Maximum Rate during such period. If the Default Rate shall be
finally determined to be unlawful, then the Interest Rate shall be applicable
during any time when the Default Rate would have been applicable hereunder,
provided however that if the Maximum Rate is greater or lesser than the Interest
Rate, then the foregoing provisions of this paragraph shall apply.
(E) LATE CHARGES. If an Event of Default regarding non-payment of
principal, interest or other sums due hereunder or under any of the other Loan
Documents shall occur, then the Borrowers shall pay to Lender, in addition to
all sums otherwise due and payable, a late fee in an amount equal to five
percent (5.0%) of such principal, interest or other sums due hereunder or under
any other Loan Document, such late charge to be immediately due and payable
without demand by Lender.
SECTION 2.3 INTEREST RATE CAP AGREEMENT.
(A) As a condition to Closing, the Borrowers shall purchase and
pledge and deliver to Lender an interest rate cap agreement satisfying the
criteria set forth below (the "CAP"), and the Borrowers shall maintain such Cap
in the possession of Lender, in full force and effect until all Obligations are
fully and finally repaid. The Cap (i) shall have a notional amount equal to the
outstanding principal balance of the Loan calculated based upon the declining
principal balance of the Loan scheduled to be outstanding over the term of such
Cap taking into account scheduled principal amortization hereunder, (ii) shall
provide that to the extent that the LIBO Rate exceeds six and one half percent
(6.5%) per annum (the "CAP THRESHOLD RATE"), then the Cap Provider shall pay to
Lender, on behalf of the Borrowers, not less than the amount of interest that
would accrue on the Loan at a per annum rate equal to the difference between the
LIBO Rate and the Cap Threshold Rate, (iii) shall be in form and substance
reasonably satisfactory to Lender, (iv) shall have a term equal to the Initial
Term of the Loan (or the applicable Extension Term), and (v) shall be issued by
a financial institution (the "CAP PROVIDER") having a financial rating by S&P of
at least "AA" (and at least an equivalent rating from each of the other Rating
Agencies).
(B) If at any time the financial rating assigned to any Cap
Provider by S&P shall fall below AA- (or the equivalent rating for any other
Rating Agency), the Borrowers shall be required to deliver a replacement Cap in
substantially the form of the Cap delivered at Closing issued by a Cap Provider
meeting the rating requirements for a Cap Provider under Section
27
2.3(A)(v), providing for a cap "strike price" not greater than the Cap Threshold
Rate (a replacement Cap meeting all of the foregoing conditions, an "ACCEPTABLE
REPLACEMENT CAP") within twenty (20) Business Days after receipt of notice from
Lender or Servicer of such downgrade of the Cap Provider, together with an
assignment of such Cap substantially in the form of the Assignment of Rate Cap
and such Financing Statements and opinions of in-house or outside counsel to the
Cap Provider as Lender may reasonably require each in form and substance
acceptable to Lender. Notwithstanding the foregoing to the contrary, under no
circumstances shall the Cap be terminated by the Borrowers prior to delivery of
an Acceptable Replacement Cap, together with the required documentation with
respect thereto, to Lender. If, for any reason, the Borrowers are unable to
deliver a replacement Cap when required hereunder, then at or prior to the time
when the replacement Cap is due hereunder, the Borrowers shall deliver to Lender
cash security (such cash security together with any interest thereon, the "CAP
RESERVE") in an amount sufficient to cover the amount of additional interest
which Lender reasonably estimates may be incurred during the remaining term of
the Loan (or remaining Extension Term then in effect) as a results of the LIBO
Rate exceeding the Cap Threshold Rate, which Cap Reserve shall be held by Lender
and applied to the Obligations in accordance with Section 6.1. Upon delivery of
an Acceptable Replacement Cap reasonably acceptable to Lender, the remaining
balance of the Cap Reserve shall be promptly returned to the Borrowers.
(C) All payments made by the Cap Provider under the Cap shall be
deposited directly by the Cap Provider into the Lock Box Account and applied in
accordance with the Cash Management Agreement.
SECTION 2.4 PAYMENTS.
(A) PAYMENTS OF INTEREST AND PRINCIPAL. The Borrowers shall make
payments of interest and principal on the Note as follows:
(i) The Borrowers shall make a payment to Lender of
interest only on the Closing Date for the first Interest Accrual Period;
(ii) On each Payment Date commencing with the Payment Date
in December 2002, and on each Payment Date thereafter through but not including
the Payment Date in December 2003, the Borrowers shall make a payment of
interest on the Loan for the Interest Accrual Period immediately preceding each
such Payment Date, and in addition shall make a payment of principal on the Loan
in an amount equal to the lesser of (x) the Scheduled Mezzanine Principal
Payment or (y) Mezzanine Lender's Percentage of all Excess Cash Flow, provided
that the Mezzanine Lender's Percentage of the amount of any Release Price Excess
for any Property released during such period shall be deemed applied (without
duplication) in reduction of each of the Scheduled Mezzanine Principal Payments
next becoming due and payable under this clause (ii) and under clause (iii) of
this Section 2.4(A) through the Scheduled Maturity Date (but not beyond) in an
amount equal to (x) the Mezzanine Lender's Percentage of such Release Price
Excess divided by (y) the number of such Scheduled Mezzanine Principal Payments
remaining through the Scheduled Maturity Date; and
(iii) On each Payment Date commencing with the Payment Date
in December 2003, and on each Payment Date thereafter through the Maturity Date,
the Borrowers shall make
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a payment of interest on the Loan for the Interest Accrual Period immediately
preceding each such Payment Date, and in addition shall make a payment of
principal on the Loan in an amount equal to the Scheduled Mezzanine Principal
Payment; provided that the Mezzanine Lender's Percentage of the amount of any
Release Price Excess for any Property released during such period shall be
deemed applied (without duplication) in reduction of each of Scheduled Mezzanine
Principal Payments next becoming due and payable under this Section 2.4(A)(iii)
through the Scheduled Maturity Date (but not beyond), or, if the subject Release
occurs during an Extension Term, through the last Scheduled Mezzanine Principal
Payment to be made during that Extension Term (but not beyond) in an amount
equal to (x) the Mezzanine Lender's Percentage of such Release Price Excess
divided by (y) the number of such Scheduled Mezzanine Principal Payments
remaining through the current Maturity Date; and
(iv) On each Payment Date prior to the Payment Date in
November 2003, if the Mezzanine Lender's Percentage of Excess Cash Flow in any
month exceeds the Scheduled Mezzanine Principal Payment for such month, the
Mezzanine Lender's Percentage of such excess amount shall be paid to Lender and
applied to principal on the Loan until the amount of any Amortization Deficiency
has been reduced to zero, and any remainder Excess Cash Flow thereafter shall be
distributed in accordance with the terms of the Mortgage Loan Cash Management
Agreement or the Cash Management Agreement; and
(v) At any time the then Aggregate Outstanding Principal
Balance is less than $90,812,257,80, the Mezzanine Lender's Percentage of Excess
Cash Flow shall be paid to Lender and applied on each Payment Date in reduction
of the principal balance of the Loan (which payment shall be made without the
imposition of any Prepayment Consideration).
(B) DATE AND TIME OF PAYMENT. The Borrowers shall receive credit
for payments on the Loan which are transferred to the account of Lender as
provided below (i) on the day that such funds are received by Lender if such
receipt occurs by 2:00 p.m. (New York time) on such day, or (ii) on the next
succeeding Business Day after such funds are received by Lender if such receipt
occurs after 2:00 p.m. (New York time). Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day, the
payment may be made on the next succeeding Business Day.
(C) MANNER OF PAYMENT; APPLICATION OF PAYMENTS. The Borrowers
promise to pay all of the Obligations relating to the Loan as such amounts
become due or are declared due pursuant to the terms of this Loan Agreement. All
payments by the Borrowers on the Loan shall be made without deduction, defense,
set off or counterclaim and in immediately available funds delivered to Lender
by wire transfer to such accounts at such banks as Lender may from time to time
designate. Prior to an Event of Default, each payment shall be applied first to
pay late charges and the charges and expenses of Lender, Servicer and any
special servicer as provided hereunder, second to accrued and unpaid interest,
and the balance to principal. Prior to an Event of Default, to the extent
sufficient funds are contained in the Lock Box Account, or an Account or a
Sub-Account thereof, or the Jekyll Island Lock Box Account, or an Account or
Sub-Account thereof, to make the required monthly payments to the applicable
Reserves and Sub-Account, if any, on such Payment Date, the Borrowers shall be
deemed to have satisfied its obligation to make such payments. Upon the
occurrence and during the continuance of an Event of Default,
29
payments shall be applied to the Obligations in such order as Lender shall
determine in its sole and absolute discretion.
(D) DISPROPORTIONATE PAYDOWNS. Under certain circumstances,
payments of principal on the Mortgage Loan and on the Loan that would have been
distributed pro-rata to the Mortgage Lender and to Lender under the Mortgage
Loan Cash Management Agreement may, at Mortgage Lender's option, be applied only
to reduce the outstanding principal balance and other sums due and owing under
the Mortgage Loan (such event, a "DISPROPORTIONATE PAYDOWN"). If a
Disproportionate Paydown occurs then, notwithstanding anything to the contrary
contained herein or in the other Loan Documents, as a consequence of the fact
that the interest rate on the Mortgage Loan is lower than the Interest Rate on
the Loan, the weighted average interest rate payable by both the Mortgage
Borrowers under the Mortgage Loan Documents and by the Borrowers under the Loan
Documents on the Aggregate Outstanding Principal Balance, absent agreement to
the contrary, would increase. Notwithstanding anything to the contrary herein,
Lender agrees that, for the period following any Disproportionate Paydown, the
Interest Rate shall be reduced (but not below zero) so that any interest
payments on the Loan thereafter shall result in the Borrowers paying an amount
of interest that, when added to the interest payments required to be made under
the Mortgage Loan, would result in the weighted average interest rate paid by
the Mortgage Borrowers and the Borrowers on the Aggregate Outstanding Principal
Balance remaining the same as the weighted average interest rate that would have
applied had such Disproportionate Paydown not occurred.
SECTION 2.5 Maturity.
(A) SCHEDULED MATURITY DATE. To the extent not sooner due and
payable in accordance with the Loan Documents (and unless the Borrowers shall
extend the term of the Loan for the First Extension Term, the Second Extension
Term, or the Third Extension Term upon the terms and subject to the conditions
of Section 2.5(B) below), the then outstanding principal balance of the Loan,
all accrued and unpaid interest thereon (and including interest through the end
of the Interest Accrual Period then in effect), and all other sums then owing to
Lender hereunder and under the Note, the Pledge Agreement, the Jekyll Island
Mortgage and the other Loan Documents, shall be due and payable on (i) the
Scheduled Maturity Date or (ii) if the Borrowers shall have extended the term of
the Loan for the First Extension Term, the Second Extension Term, or the Third
Extension Term, upon the terms and subject to the conditions of Section 2.5(B)
below, the applicable Maturity Date.
(B) EXTENSION TERMS: The Borrowers may extend the term of the
Loan for three extension terms of one year each (each, an "EXTENSION TERM",
and, collectively the "EXTENSION TERMS"); (i) the first Extension Term (the
"FIRST EXTENSION TERM") commencing on the day immediately following the
Scheduled Maturity Date and ending (unless sooner terminated in accordance with
the Loan Documents) on the first (1st) anniversary of the Scheduled Maturity
Date, (ii) the second Extension Term (the "SECOND EXTENSION TERM") commencing
on the day immediately following the last day of the First Extension Term and
ending (unless sooner terminated in accordance with the Loan Documents) on the
second (2nd) anniversary of the Scheduled Maturity Date and (iii) the third
Extension Term (the "THIRD EXTENSION TERM") commencing on the day immediately
following the last day of the Second Extension Term and ending (unless sooner
terminated in accordance with the Loan Documents) on the third (3rd)
30
anniversary of the Scheduled Maturity Date; subject to the following terms and
conditions, provided that subsections (iii) and (iv) shall not be conditions to
the exercise of the First Extension Term:
(i) The Borrowers shall give Lender notice (an "EXTENSION
NOTICE") of their request to extend the term of the
Loan for the First Extension Term at any time not
later than forty-five (45) days prior to the
Scheduled Maturity Date and for the Second Extension
Term and the Third Extension Term, at least
forty-five (45) days but not more than one hundred
twenty (120) days prior to the expiration of the
First Extension Term, or expiration of the Second
Extension Term, as the case may be;
(ii) With respect to the First Extension Term, (x) no
Event of Default under Sections 8.1 (A) or (B) shall
have occurred and be continuing and (y) all
Pre-Petition Tax Liabilities then due and payable
have been paid, as of the first (1st) day
of the First Extension Term, and, with respect to the
Second Extension Term and the Third Extension Term,
no Event of Default shall have occurred and be
continuing as of the date the Borrowers deliver the
applicable Extension Notice or as of the expiration
of the First Extension Term, or expiration of the
Second Extension Term, as the case may be;
(iii) The Debt Service Coverage Ratio for the trailing
twelve (12) month period ended on the last day of the
immediately preceding calendar quarter prior to the
expiration of the First Extension Term, or expiration
of the Second Extension Term, as the case may be, is
at least equal to the Minimum DSCR, and the Debt
Yield for the twelve (12) month period ended the last
day of the immediately preceding calendar quarter
prior to the expiration of the First Extension Term,
or expiration of the Second Extension Term, as the
case may be, is not less than 13.25%; provided
however, if the Debt Service Coverage Ratio and/or
the Debt Yield fail to satisfy such requirements, the
Borrowers shall be entitled to make a principal
prepayment of a portion of the Aggregate Outstanding
Principal Balance (to be applied in accordance with
the terms of the Mortgage Loan Cash Management
Agreement or the Cash Management Agreement, as
applicable), on the then current Maturity Date in an
amount, as reasonably determined by Lender,
sufficient to cause the Debt Service Coverage Ratio
and/or the Debt Yield, as applicable, to satisfy such
requirements based upon a recalculation thereof
assuming that the prepayment amount were applied to
reduce the principal amount of the Loan and the
Mortgage Loan as of the last day of the immediately
preceding calendar quarter (and provided that the
Prepayment Consideration shall be payable in
connection with such prepayment);
(iv) Prior to the date the applicable Extension Term
commences, the Borrowers shall deliver to Lender an
extension fee equal to one quarter of one percent
(.25%) of the outstanding principal balance of the
Loan as of
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the date the applicable Extension Term commences for
each of the Second Extension Term and the Third
Extension Term;
(v) All of the conditions required to be satisfied for
the extension of the Mortgage Loan have been
satisfied and the Mortgage Loan will be extended for
the applicable Extension Term;
(vi) The Borrowers shall execute all such documents and
other agreements as Lender shall reasonably request;
(vii) The Borrowers shall deliver to Lender an extension of
the Cap or a replacement Cap in form substantially
the same as the Cap delivered at Closing covering the
term of the applicable Extension Term, providing for
a cap "strike price" (such "strike price", the
"EXTENSION CAP THRESHOLD RATE") not greater than six
and one-half percent (6.5%) per annum (it being
acknowledged that the Borrowers may purchase an
extension or replacement Cap for the applicable
Extension Term with an Extension Cap Threshold Rate
lower than such rate in order to satisfy the Debt
Service Coverage Ratio requirement under Section
2.5(B)(iii) above) and otherwise satisfying the
requirments of Section 2.3 together with an
assignment of such replacement Cap substantially in
the form of the Assignment of Rate Cap and such
Financing Statements and opinions of counsel to the
Cap Provider as Lender may reasonably require each in
form and substance reasonably acceptable to Lender.
The Borrowers shall be required to pay any and all
reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys'
fees and disbursements) incurred by Lender (and by
any Servicer and trustee in connection with any
Securitization backed in whole or in part by the
Loan) in connection with delivery of such extension
or replacement Cap and all related documentation and
opinions required above; and
(viii) The Mortgage Borrowers and the Jekyll Island
Borrowers shall be in possession of all material
licenses and permits required for the operation of
not less than ninety percent (90%) of the hotel rooms
located at the Properties in substantially the same
manner as operated at Closing.
SECTION 2.6 PREPAYMENT.
(A) LIMITATION ON PREPAYMENT; PREPAYMENT CONSIDERATION DUE ON
ACCELERATION. The Borrowers shall have no right to prepay the Loan in whole or
part, except as expressly set forth in this Loan Agreement or the other Loan
Documents. The Borrowers may prepay the Loan in whole, or, to the extent
expressly provided herein, in part, at any time, provided that (i) the Borrowers
shall provide to Lender not less than fifteen (15) days prior written notice of
such prepayment, (ii) together with such prepayment the Borrowers also shall pay
all accrued and unpaid interest and all other Obligations then due and owing and
(iii) if such prepayment occurs on any day other than a Payment Date, then
together therewith the Borrowers also shall pay to
32
Lender the amount of interest that would have accrued on the amount being
prepaid from and including the date of such prepayment to the end of such
Interest Accrual Period.
(B) PREPAYMENT CONSIDERATION DUE. If any prepayment of all or any
portion of the Loan shall occur on account of acceleration of the Loan (whether
or not due to an Event of Default), or otherwise, then except only as expressly
provided in this Loan Agreement or the other Loan Documents to the contrary, the
Borrowers shall pay the Prepayment Consideration on the amount prepaid to Lender
together with such prepayment, as liquidated damages and compensation for costs
incurred, and in addition to all other amounts due and owing to Lender.
Notwithstanding the foregoing, no Prepayment Consideration will be due as to a
prepayment of the Loan in connection with (i) application of insurance or
condemnation proceeds required by Lender pursuant to this Agreement in the
absence of an Event of Default, (ii) amortization payments made in accordance
with Section 2.4(A), (iii) in connection with the first $36,324,903.12 of
prepayments made in connection with one or more Property Releases and Collateral
Releases (it being agreed that the Prepayment Consideration will be due with
respect to all, or any portion of, a prepayment made in connection with a
Property Release and Collateral Release after the point that the aggregate
amount of all prepayments made in connection with Property Releases and
Collateral Releases (other than Collateral Releases effectuated pursuant to
Section 5.5(B)) exceeds $36,324,903.12),(iv) in connection with the Reserve
Principal Payment, or (v) upon prepayment of the Loan in full, on any date on or
after the Payment Date occurring in October 2004, through the Scheduled Maturity
Date (provided the amount of interest that would have accrued on the amount
being prepaid from and including the date of such prepayment through the
following Payment Date shall be payable with such prepayment). The foregoing
designation of any amount of Prepayment Consideration in this Agreement shall
not create a right to prepay at any time or in any circumstances where this
Agreement does not expressly state that such a right exists. "PREPAYMENT
CONSIDERATION" shall mean an amount equal to (i) prior to the Payment Date in
December 2003, three percent (3%) of the Loan balance at the time of prepayment,
and (ii) on and after the Payment Date in December 2003, but prior to the
Payment Date in May 2004, two percent (2%) of the Loan balance at the time of
prepayment, and (iii) thereafter through the Scheduled Maturity Date one percent
(1%) of the Loan balance at the time of prepayment.
(C) RESERVE PRINCIPAL PAYMENT. The Borrowers may prepay a portion
of the outstanding principal balance of the Loan in an amount not to exceed the
Reserve Principal Payment prior to the Payment Date in November 2003, without
payment of the Prepayment Consideration, provided, however, any such payment
shall be (i) accompanied by the other amounts required to be paid as required in
Section 2.6(A) above, and (ii) paid form money of the Borrowers (as opposed to
the Mortgage Loan Borrowers). No portion of any release consideration paid to
Lender in accordance with Section 11.4 of this Loan Agreement shall be deemed to
be a payment of the Reserve Principal Payment.
SECTION 2.7 OUTSTANDING BALANCE. The balance on Lender's books and records
shall be presumptive evidence (absent manifest error) of the amounts owing to
Lender by the Borrowers; provided that any failure to record any transaction
affecting such balance or any error in so recording shall not limit or otherwise
affect the Borrowers' obligation to pay the Obligations.
33
SECTION 2.8 TAXES. Any and all payments or reimbursements made hereunder
or under the Note shall be made free and clear of and without deduction for any
and all taxes, withholding taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto arising out of or in
connection with the transactions contemplated by the Loan Documents (all such
taxes, levies, imposts, deductions, charges or withholdings and all liabilities
with respect thereto (excluding taxes imposed on net income in accordance with
the following sentence) herein "TAX LIABILITIES"). Notwithstanding the
foregoing, the Borrowers shall not be liable for taxes imposed on the net income
of Lender by the jurisdiction under the laws of which Lender is organized or
doing business or any political subdivision thereof and taxes imposed on its net
income by the jurisdiction of Lender's applicable lending office or any
political subdivision thereof. If the Borrowers shall be required by law to
deduct any such Tax Liabilities (or amounts in estimation or reimbursement for
the same) from or in respect of any sum payable hereunder to Lender, then the
sum payable hereunder shall be increased as may be necessary so that, after
making all required deductions, Lender receives an amount equal to the sum it
would have received had no such deductions been made.
SECTION 2.9 REASONABLENESS OF CHARGES. The Borrower Parties agree that
(i) the actual costs and damages that Lender would suffer by reason of an Event
of Default (exclusive of the attorneys' fees and other costs incurred in
connection with enforcement of Lender's rights under the Loan Documents) or a
prepayment would be difficult and needlessly expensive to calculate and
establish, and (ii) the amounts of the Default Rate, the late charges, and the
Prepayment Consideration are reasonable, taking into consideration the
circumstances known to the parties at this time, and (iii) such Default Rate and
late charges and Lender's reasonable attorneys' fees and other costs and
expenses incurred in connection with enforcement of Lender's rights under the
Loan Documents shall be due and payable as provided herein, and (iv) such
interest at the Default Rate, late charges, Prepayment Consideration, and the
obligation to pay Lender's reasonable attorneys' fees and other enforcement
costs do not, individually or collectively, constitute a penalty.
SECTION 2.10 FUNDING LOSSES/CHANGE IN LAW ETC.
(A) The Borrowers hereby agree to pay to Lender any amount
necessary to compensate Lender and any Funding Party for any losses or costs
(including, without limitation, the costs of breaking any "LIBOR" contract, if
applicable, or funding losses determined on the basis of Lender's or such
Funding Party's reinvestment rate and the interest rate on the Loan)
(collectively, "FUNDING LOSSES") sustained by Lender or any Funding Party: (i)
if the Note, or any portion thereof, is repaid for any reason whatsoever on any
date other than a Payment Date (including, without limitation, from condemnation
or insurance proceeds), or (ii) as a consequence of (x) any increased cost of
funds that Lender or any Funding Party may sustain in maintaining the borrowing
evidenced hereby or (y) the reduction of any amounts received or receivable from
the Borrowers, in either case, due to the introduction of, or any change in, law
or applicable regulation or treaty adopted after the date hereof (including the
administration or interpretation thereof), whether or not having the force of
law, or due to the compliance by Lender or the Funding Party, as the case may
be, with any directive, whether or not having the force of law, or request from
any central bank or domestic or foreign governmental authority, agency or
instrumentality having jurisdiction made as of the date hereof, to the extent
Lender reasonably determines that such Funding Losses are allocable to the Loan.
34
(B) If Lender or any Funding Party shall have determined that the
applicability of any law, rule, regulation or guideline adopted pursuant to or
arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption of any other law,
rule, regulation or guideline (including but not limited to any United States
law, rule, regulation or guideline) regarding capital adequacy, or any change
becoming effective in any of the foregoing or in the enforcement or
interpretation or administration of any of the foregoing by any court or any
domestic or foreign governmental authority, central bank or comparable agency
charged with the enforcement or interpretation or administration thereof, or
compliance by Lender or its holding company or a Funding Party or its holding
company, as the case may be, with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency made after the date hereof, has or would have the
effect of reducing the rate of return on the capital of Lender or its holding
company, or of the Funding Party's or its holding company, as the case may be,
then, upon demand by Lender, the Borrowers shall pay to Lender, from time to
time, such additional amount or amounts as will compensate Lender or such
Funding Party for any such reduction suffered.
(C) Any amount payable by the Borrowers under Section 2.10(A) or
2.10(B) shall be paid to Lender within fifteen (15) Business Days after receipt
by the Borrowers of a certificate signed by an officer of Lender setting forth
the amount due and the basis for the determination of such amount in reasonable
detail and the computations made by Lender to determine the amount due, which
statement shall be conclusive and binding upon the Borrowers, absent manifest
error Failure on the part of Lender to demand payment from the Borrowers for any
such amount attributable to any particular period shall not constitute a waiver
of Lender's right to demand payment of such amount for any subsequent or prior
period. Lender shall use reasonable efforts to deliver to the Borrowers prompt
notice of any event described in Sections 2.10(A) or 2.10(B) above and of the
amount to be paid as a result thereof, provided, however, any failure by Lender
to so notify the Borrowers shall not affect the Borrowers' obligation to make
the payments to be made under this Section as a result thereof. All amounts
which may become due and payable by the Borrowers in accordance with the
provisions of this Section shall constitute additional interest under the Loan
and shall be secured by the Pledge Agreement, the Jekyll Island Mortgage and the
other Loan Documents.
(D) If Lender or any Funding Party requests compensation for any
losses or costs to be reimbursed pursuant to any one or more of the provisions
of clause (ii) of Sections 2.10(A) or 2.10(B), then, upon request of the
Borrowers, Lender or such Funding Party shall use reasonable efforts in a manner
consistent with such institution's practice in connection with loans like the
Loan to eliminate, mitigate or reduce amounts that would otherwise be payable by
the Borrowers under the foregoing provisions, provided that such action would
not be otherwise prejudicial to Lender or such Funding Party, including, without
limitation, by designating another of Lender's or such Funding Party's offices,
branches or affiliates; the Borrowers hereby agreeing to pay all reasonably
incurred costs and expenses incurred by Lender or any Funding Party in
connection with any such action.
SECTION 2.11 SERVICING/SPECIAL SERVICING. Lender may change the Servicer
from time to time without the consent of the Borrowers, on prior written notice
to the Borrowers. The Borrowers expressly acknowledge and agree that the
Servicer's fees (the "SERVICING FEE"), which shall in
35
no event exceed .05% per annum on the outstanding principal balance of the Loan,
payable in monthly installments, and if the Loan becomes a specially serviced
loan, any fees of the special servicer, shall be payable by the Borrowers and
shall constitute a portion of the Obligations; provided, however, that at no
time shall the Borrowers be liable for Servicing Fees or special servicing fees
in excess of those fees charged to Lender by the Servicer or any special
servicer.
SECTION 2.12 MORTGAGE LOAN EVENT OF DEFAULT. Notwithstanding anything to
the contrary contained herein or the other Loan Documents, if compliance by
Borrower or Mortgage Borrower with the provisions of this Loan Agreement would
cause an Event of Default (as such term is defined in the Mortgage Loan
Agreement) to occur, after the giving of notice or passage of any grace periods
provided for in the Mortgage Loan Agreement, Borrower shall notify the Lender in
writing and Borrower shall not be in default hereunder or under the other Loan
Documents by reason of its failure to comply with such provisions. Lender
reserves the right to modify any such provisions to prevent the occurrence of an
Event of Default under the Mortgage Loan Agreement, in which case failure to
comply with such modified provisions shall not be excused hereby. Furthermore,
Borrower acknowledges and agrees that this Section 2.12 shall in no way relieve
Borrower from the obligation to perform any obligation under the Loan Agreement
or the other Loan Documents that may be performed by the payment of a sum of
money.
SECTION 2.13 MEZZANINE LENDER APPROVALS. (A) Lender and Borrowers
acknowledge and agree that both Mortgage Lender and Lender have certain approval
rights with respect to the operation of the Properties (other than the Jekyll
Island Property) and other matters pursuant to the Mortgage Loan Documents and
the Loan Documents, including approval of Managers, Franchisors, Leases,
alterations and annual budgets. Notwithstanding anything to the contrary
contained herein or in the other Loan Documents, until such time as the Mortgage
Loan has been satisfied, and to the extent Lender and Mortgage Lender shall have
approval rights covering the same matters, the Borrowers shall submit such
requests for approval in the following manner and shall be subject to the
following procedures (the "APPROVAL PROCEDURES"): (i) the Borrowers shall (x)
With respect to any Specified Approval, deliver to Lender only all such requests
for any Specified Approval at least fifteen (15) days prior to the date a
corresponding request for approval shall be submitted by the Mortgage Borrowers
to the Mortgage Lenders under the Mortgage Loan Agreement (it being agreed that
the Borrowers shall not permit the Mortgage Borrowers to submit a corresponding
request for Approval to the Mortgage Lenders until such 15-day period has
expired), and (y) with respect to all other requests for approval, shall deliver
such requests simultaneously to both Lender and Mortgage Lender, (ii) following
the initial submission requesting any Specified Approval to Lender, the
Borrowers shall cooperate with Lender during such 15-day period and respond to
any comments or suggested changes recommended by Lender prior to the Mortgage
Borrowers submitting a corresponding request for approval to Mortgage Lender,
(iii) if the Borrowers or the Mortgage Borrowers intend to submit a request for
approval to the Mortgage Lender that differs in any respect from the matters as
approved (or disapproved) by Lender, the Borrowers shall, or shall cause the
Mortgage Borrowers to, submit to Mortgage Lender with any such request, a copy
of all correspondence and materials from Lender relating to Lender's approval or
disapproval of the request for the Specified Approval, and (iv) provided the
Borrowers comply, and cause the Mortgage Borrowers to comply, with the
foregoing, the Borrowers shall be entitled to rely on the approval or
36
requirements given by the Mortgage Lender in accordance with the terms of the
Mortgage Loan Documents.
(B) Until such time as the Mortgage Loan has been satisfied, if
and to the extent the consent or approval of the Mortgage Lender is required in
order for the Borrowers to perform their obligations under the Loan Documents
without violating the provisions of the Mortgage Loan Documents, the Borrowers
shall not be deemed in default hereunder, but shall seek all consents and
approvals of the Lender in accordance with the terms and provisions of this Loan
Agreement and the other Loan Documents and shall seek all required consents or
approvals of the Mortgage Lender under the Mortgage Loan Documents to permit the
Borrowers to comply with their obligations under the Loan Documents; and the
Borrowers shall not be in default if Mortgage Lender does not grant such
approval or consent.
ARTICLE III
CONDITIONS TO LOAN
SECTION 3.1 CONDITIONS TO FUNDING OF THE LOAN ON THE CLOSING DATE. The
obligations of Lender to fund the Loan are subject to the prior or concurrent
satisfaction or waiver of the conditions set forth below, and to satisfaction of
any other conditions specified herein or elsewhere in the Loan Documents. With
respect to facts and circumstances actually known to Lender at Closing, by
funding the Loan Lender shall be deemed to have acknowledged that each of the
conditions set forth below has been satisfied or waived (except as otherwise set
forth in any other agreement in writing between the Borrowers and Lender). Where
in this Section any documents, instruments or information are to be delivered to
Lender, then the condition shall not be satisfied unless (i) the same shall be
in form and substance satisfactory to Lender, and (ii) if so required by Lender,
the Borrowers shall deliver to Lender a certificate duly executed by the
Borrowers stating that the applicable document, instrument or information is
true and complete and does not omit to state any information without which the
same might reasonably be deemed materially misleading.
(A) LOAN DOCUMENTS. On or before the Closing Date, the Borrowers
shall execute and deliver and cause to be executed and delivered to Lender all
of the Loan Documents specified in SCHEDULE 3.1(A) to which it is a party,
together with such other Loan Documents as may be reasonably required by Lender,
each, unless otherwise noted, of even date herewith, duly executed, in form and
substance satisfactory to Lender and in quantities designated by Lender (except
for the Note, of which only one shall be signed), which Loan Documents shall
become effective upon the Closing.
(B) DEPOSITS. The deposits required pursuant to the terms of the
Mortgage Loan Agreement and this Loan Agreement, including without limitation
the initial deposits into the Reserves and Accounts, shall have been made (and
at the Borrowers' option, the same may be made from the proceeds of the Loan).
(C) PERFORMANCE OF AGREEMENTS, TRUTH OF REPRESENTATIONS AND
WARRANTIES. Each Borrower and all other Persons executing any agreement on
behalf of any Borrower shall have performed in all material respects all
agreements which this Loan Agreement provides shall be performed on or before
the Closing Date. The representations and warranties contained
37
herein and in the other Loan Documents shall be true, correct and complete in
all material respects on and as of the Closing Date.
(D) CLOSING CERTIFICATE. On or before the Closing Date, Lender
shall have received certificates of even date herewith executed on behalf of
each Borrower by the chief financial officer (or similar officer of the
applicable Borrower) stating that: (i) on such date, to the Borrowers' Knowledge
no Default exists; (ii) no material adverse change in the financial condition or
operations of the business of the Borrowers, Mortgage Borrowers or the projected
cash flow of either of them or of the Properties has occurred since the delivery
to Lender of any financial statements, budgets, proformas, or similar materials
(or if there has been any change, specifying such change in detail), and that,
to the Borrowers' Knowledge after due inquiry, such financial materials fairly
present the financial condition and results of operation of the Borrowers, the
Mortgage Borrowers, and the Properties, and all other materials delivered to
Lender are complete and accurate in all material respects; and (iii) the
representations and warranties set forth in this Loan Agreement are true and
correct in all material respects on and as of such date with the same effect as
though made on and as of such date (or if any such representations or warranties
require qualification, specifying such qualification in detail) and (iv) to the
Borrowers' Knowledge after due inquiry, there are no material facts or
conditions concerning the Properties or any Borrower Party that have not been
disclosed to Lender which could have a Material Adverse Effect.
(E) OPINIONS OF COUNSEL. On or before the Closing Date, Lender
shall have received from Cadwalader, Wickersham & Taft or other legal counsel
for the Borrowers satisfactory to Lender, written legal opinions, each in form
and substance acceptable to Lender, as to such matters as Lender shall request,
including opinions to the effect that (i) each of the Borrower Parties is duly
formed, validly existing, and in good standing in its state of organization,
(ii) this Loan Agreement and the Loan Documents have been duly authorized,
executed and delivered and are enforceable in accordance with their terms
subject to customary qualifications for bankruptcy, general equitable
principles, and other customary assumptions and qualifications; (iii) the Cash
Management Agreement has been duly authorized, executed and delivered by the
Borrowers and is enforceable in accordance with its terms and the security
interests in favor of Lender in the Account Collateral have been validly created
and perfected; and (iv) none of the Borrowers, nor Member would be consolidated
in any bankruptcy proceeding affecting Guarantor or certain other Affiliates of
the Borrower Parties specified by Lender. Also on or before the Closing Date,
Lender shall have received the following legal opinions, each in form and
substance acceptable to Lender: (a) an opinion of the Borrowers' counsel as to
the enforceability of, and the creation and perfection of Liens under, the
Pledge Agreement and the Jekyll Island Mortgage and such other matters as Lender
may reasonably request; (b) an opinion of counsel to the Cap Provider that the
Cap has been duly authorized, executed and delivered by the Cap Provider and is
enforceable in accordance with its terms and such other matters as Lender may
reasonably request; (c) opinions of Richards, Layton & Finger or other Delaware
legal counsel, acceptable to Lender, for each Borrower that is a single member
limited liability company formed under the laws of the State of Delaware that,
among other matters, (1) under Delaware law (x) the prior unanimous written
consent of Member (and the unanimous written consent of the board of directors
of Member including the Independent Directors) would be required for a voluntary
bankruptcy filing by each such Borrower, (y) the prior unanimous written consent
of the board of directors of Member (including the Independent Directors), or
the
38
unanimous prior written consent of the board of managers' of each Borrower,
including the Independent Directors' would be required for a voluntary
bankruptcy filing by Member, (z) such unanimous consent requirements are
enforceable against Member in accordance with their terms; (2) under Delaware
law the bankruptcy or dissolution of Member would not cause the dissolution of
any of the Borrowers and the bankruptcy or dissolution of Guarantor would not
cause the dissolution of Member; (3) under Delaware law, creditors of Member
shall have no legal or equitable remedies with respect to the assets of any of
the Borrowers and creditors of Guarantor shall have no legal or equitable
remedies with respect to the assets of Member; and (4) a federal bankruptcy
court would hold that Delaware law governs the determination of what Persons
have authority to file a voluntary bankruptcy petition on behalf of each
Borrower and Member; and (d) such other legal opinions as Lender may reasonably
request.
(F) TITLE POLICIES. On or before the Closing Date, Lender shall
have received the Title Policies. The Title Policies shall be in form and
substance reasonably satisfactory to Lender.
(G) SURVEY. Lender shall have received a survey of the Jekyll
Island Property, certified to Lender and its successors, assigns and designees
and to each Title Company by a surveyor reasonably satisfactory to Lender (the
"SURVEY"). The Survey shall contain the minimum detail for land surveys as most
recently adopted by ALTA/ASCM, shall comply with Lender's survey requirements
and shall contain Lender's standard form certification, and shall show no state
of facts or conditions reasonably objectionable to Lender.
(H) ZONING. On or before the Closing Date, Lender shall have
received evidence reasonably satisfactory to Lender as to the zoning and
subdivision compliance of the Jekyll Island Property.
(I) CERTIFICATES OF FORMATION AND GOOD STANDING. On or before the
Closing Date, Lender shall have received copies of the organizational documents
and filings of each Borrower Party, together with good standing certificates (or
similar documentation) (including verification of tax status) from the state of
its formation and from all states in which the laws thereof require such Person
to be qualified and/or licensed to do business. Each such certificate shall be
dated not more than 30 days prior to the Closing Date, as applicable, and
certified by the applicable Secretary of State or other authorized governmental
entity. In addition, on or before the Closing Date the secretary or
corresponding officer of each Borrower Party, or the secretary or corresponding
officer of the partner, trustee, or other Person as required by such Borrower
Party's organizational documents (as the case may be, the "BORROWER PARTY
SECRETARY") shall have delivered to Lender a certificate stating that the copies
of the organizational documents as delivered to Lender are true and complete and
are in full force and effect, and that the same have not been amended except by
such amendments as have been so delivered to Lender.
(J) CERTIFICATES OF INCUMBENCY AND RESOLUTIONS. On or before the
Closing Date, Lender shall have received certificates of incumbency and
resolutions of each Borrower Party and its constituents as requested by Lender,
approving and authorizing the Loan and the execution, delivery and performance
of the Loan Documents, certified as of the Closing Date by the Borrower Party
Secretary as being in full force and effect without modification or amendment.
39
(K) FINANCIAL STATEMENTS. On or before the Closing Date, Lender
shall have received such financial statements and other financial information as
shall be satisfactory to Lender for each Borrower, for each Guarantor and for
the Properties. If any such statements are not available for the Properties,
then the Borrowers shall cause the Mortgage Borrowers to provide such financial
reports as are available. All such financial statements shall be certified to
Lender by the applicable Borrower Party (through its chief financial officer or
other officer charged with similar duties), which certification shall be in form
and substance reasonably satisfactory to Lender.
(L) OPERATING AND CAPEX/FF&E BUDGETS; CAPITAL IMPROVEMENT PLAN. On
or before the Closing Date, Lender shall have received and approved the
Operating Budget and CapEx/FF&E Budget for the Properties for the remainder of
the current calendar year and the Capital Improvement Plan for the Properties.
(M) AGREEMENTS. On or before the Closing Date, Lender shall have
received a list of all Material Agreements and, to the extent requested by
Lender, copies thereof.
(N) MANAGEMENT AGREEMENT; FRANCHISE AGREEMENT. On or before the
Closing Date, Lender shall have received copies of the Management Agreements and
any leasing brokerage agreements pertaining to the Properties and the
Assignments of Management Agreements, duly executed by each Manager and the
applicable Mortgage Borrower or the Jekyll Island Borrowers. On or before the
Closing Date, Lender shall have received copies of the existing Franchise
Agreements and each Franchisor Letter (including any Property Improvement Plan)
duly executed by the applicable Franchisor and, if applicable, such additional
Franchise Agreement (or commitment to issue such Franchise Agreement), together
with Franchisor Letters (including any Property Improvement Plan) duly executed
by the Franchisors.
(O) RENT ROLL. Prior to the Closing, Lender shall have received
from the Borrowers a rent roll for the Jekyll Island Property (the "RENT ROLL")
with respect to Material Leases, if any, certified by the Jekyll Island
Borrowers, and in form and substance satisfactory to Lender. The Rent Roll shall
constitute a true, correct, and complete list of each and every Material Lease
at the Jekyll Island Property, together with all extensions and amendments
thereof, and shall accurately and completely disclose all annual and monthly
rents payable by all tenants, including all percentage rents, if any, and
expiration dates of such Material Leases at the Jekyll Island Property, and the
amount of security deposit being held by the Borrowers under each Material Lease
at the Jekyll Island Property, if any.
(P) MATERIAL LEASES. Prior to the Closing, Lender shall have
received true, correct and complete copies of the Material Leases at the Jekyll
Island Property, as amended.
(Q) LICENSES, PERMITS AND APPROVALS. On or before Closing Date,
Lender shall have received copies of the final, unconditional certificates of
occupancy issued with respect to the Jekyll Island Property, together with all
other applicable licenses (including, without limitation, each liquor license
and beer permit), permits and approvals required for the Jekyll Island Borrowers
to own, use, occupy, operate and maintain the Jekyll Island Property as a hotel.
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(R) INSURANCE POLICIES AND ENDORSEMENTS. On or before the Closing
Date, Lender shall have received copies of certificates of insurance (dated not
more than 20 days prior to the Closing Date) regarding insurance required to be
maintained under this Loan Agreement and the other Loan Documents by the Jekyll
Island Borrowers, together with endorsements satisfactory to Lender naming
Lender as an additional insured and loss payee, as required by this Loan
Agreement, under such policies. In addition, as to any insurance matters arising
under Environmental Laws or pertaining to any environmental insurance that any
of the Borrowers has with respect to the Jekyll Island Property, the same shall
be endorsed to Lender as required by this Loan Agreement and shall name Lender
as an insured, additional insured and/or loss payee, as applicable.
(S) ENVIRONMENTAL ASSESSMENT. Lender shall have received the
Environmental Reports relating to the Jekyll Island Property, together with a
letter from each preparer thereof entitling Lender and its successors and
assigns to rely upon said Environmental Report.
(T) PROPERTY CONDITION REPORT. On or before the Closing Date,
Lender shall have received a property condition report for the Jekyll Island
Property, which shall be prepared by an engineer or other consultant
satisfactory to Lender and otherwise shall be in form and substance satisfactory
to Lender in its sole discretion (the "PROPERTY CONDITION REPORT"). Such report
shall set forth any items of deferred maintenance at the Jekyll Island Property.
(U) APPRAISAL. On or before the Closing Date, Lender shall have
received an independent appraisal of the Jekyll Island Property from a state
certified appraiser engaged by Lender. Each such appraisal shall conform in all
respects to the criteria for appraisals set forth in the Financial Institutions
Reform and Recovery Act of 1989 and the regulations promulgated thereunder (as
if Lender were an institution under the jurisdiction thereof) and the Uniform
Standards of Professional Appraisal Practices of the Appraisal Foundation.
(V) SEARCHES. Prior to the Closing Date, Lender shall have
received copies of Uniform Commercial Code, judgment, lien, bankruptcy and
litigation search reports with respect to the Borrowers, Guarantor and Member,
all dated not more than thirty (30) days prior to the Closing Date.
(W) LEGAL FEES; CLOSING EXPENSES. The Borrowers shall have paid
any and all reasonable legal fees and expenses of counsel to Lender, together
with all recording fees and taxes, title insurance premiums, and other
reasonable costs and expenses related to the Closing.
(X) COMMITMENT CONDITIONS. If a commitment letter or similar
agreement shall have been issued by Lender for the Loan, such additional
conditions as shall be specified in such commitment shall have been satisfied.
(Y) OTHER REVIEW. Lender shall have completed all other review of
the Borrowers, the Guarantors, the Properties, and such other items as it
reasonably determines relevant, and shall have determined based upon such review
to fund the Loan. The Borrowers shall have satisfied such other reasonable
criteria as Lender may reasonably specify.
(Z) GROUND LEASES; GROUND LESSOR ESTOPPELS. On or before the
Closing Date, Lender shall have received (i) true and complete copies of each of
the Ground Leases, certified
41
by the Borrowers, and (ii) estoppels and agreements substantially in the form of
EXHIBIT E, or otherwise reasonably acceptable to Lender, duly executed by each
Ground Lessor.
(AA) MORTGAGED CONDOMINIUM PROPERTY AGREEMENTS. On or before the
Closing Date, Lender shall have received an estoppel and agreement of the Board
of Mangers in form and substance reasonably acceptable to Lender.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce Lender to enter into this Loan Agreement and to make
the Loan, each of the Borrowers represents and warrants to Lender that the
statements set forth in this Article IV, after giving effect to the Closing,
will be, true, correct and complete in all material respects as of the Closing
Date.
SECTION 4.1 ORGANIZATION, POWERS, CAPITALIZATION, GOOD STANDING, BUSINESS.
(A) ORGANIZATION AND POWERS. Each Borrower Party is duly
organized, validly existing and in good standing under the laws of the state of
its formation. Each Borrower Party has all requisite power and authority to own
and operate its properties, to carry on its business as now conducted and
proposed to be conducted, and to enter into each Loan Document to which it is a
party and to perform the terms thereof.
(B) QUALIFICATION. Each Borrower Party is duly qualified and in
good standing in the state of its formation. In addition, each Borrower Party is
duly qualified and in good standing in each state where necessary to carry on
its present business and operations, except in jurisdictions in which the
failure to be qualified and in good standing could not reasonably be expected to
have a Material Adverse Effect.
(C) ORGANIZATION. The organizational chart set forth as SCHEDULE
4.1(C) accurately sets forth the direct and indirect ownership structure of the
Borrowers, Mortgage Borrowers and Members. The Borrowers (excluding the Jekyll
Island Borrowers), individually or together own all direct and indirect
interests in the Mortgage Borrowers (other than, with respect to Servico Centre
Associates, Ltd., the interests held by the individual limited partners
consisting of 50% of the ownership interests in Servico Centre Associates, Ltd.)
and have the power and authority to control the actions of the Mortgage
Borrowers.
SECTION 4.2 AUTHORIZATION OF BORROWING, ETC.
(A) AUTHORIZATION OF BORROWING. The Borrowers have the power and
authority to incur the Indebtedness evidenced by the Note. The execution,
delivery and performance by each Borrower of each of the Loan Documents to which
it is a party and the consummation of the transactions contemplated thereby have
been duly authorized by all necessary limited liability company, partnership,
trustee, corporate or other action, as the case may be.
(B) NO CONFLICT. The execution, delivery and performance by each
Borrower of the Loan Documents to which it is a party and the consummation of
the transactions contemplated thereby do not and will not: (1) violate (x) any
provision of law applicable to any Borrower;
42
(y) the partnership agreement, certificate of limited partnership, certificate
of incorporation, bylaws, declaration of trust, operating agreement or other
organizational documents, as the case may be, of each Borrower; or (z) any
order, judgment or decree of any Governmental Authority binding on any Borrower
or any of its Affiliates; (2) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any Contractual
Obligation of any Borrower or any of its Affiliates (except where such breach
will not cause a Material Adverse Effect); (3) result in or require the creation
or imposition of any material Lien (other than the Lien of the Loan Documents)
upon the Collateral or assets of any Borrower; or (4) except as set forth on
SCHEDULE 4.2, require any approval or consent of any Person under any material
Contractual Obligation of any Borrower, which approvals or consents have been
obtained on or before the dates required under such material Contractual
Obligation, but in no event later than the Closing Date.
(C) GOVERNMENTAL CONSENTS. The execution and delivery by each
Borrower Party of the Loan Documents to which it is a party, and the
consummation of the transactions contemplated thereby do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by, any Governmental Authority.
(D) BINDING OBLIGATIONS. This Loan Agreement is, and the Loan
Documents, including the Note, when executed and delivered will be, the legally
valid and binding obligations of each Borrower that is a party thereto,
enforceable against each of the Borrowers, as applicable, in accordance with
their respective terms, subject to bankruptcy, insolvency, moratorium,
reorganization and other similar laws affecting creditor's rights. No Borrower
has any defense or offset to any of its obligations under the Loan Documents to
which it is a party. No Borrower has any claim against Lender or any Affiliate
of Lender.
SECTION 4.3 FINANCIAL STATEMENTS. To the Borrowers' Knowledge after due
inquiry, all financial statements concerning any of the Borrowers, their
Affiliates, the Mortgage Borrowers and the Properties which have been furnished
by or on behalf of the Borrowers or the Mortgage Borrowers to Lender pursuant to
this Loan Agreement have been prepared in accordance with GAAP consistently
applied (except as disclosed therein) and present fairly the financial condition
of the Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended. Since the date of the financial
statements delivered to Lender, there has been no material adverse change in the
financial condition, operations or business of the Borrowers or the Properties
from that set forth in said financial statements.
SECTION 4.4 INDEBTEDNESS AND CONTINGENT OBLIGATIONS. As of the Closing,
except as previously disclosed to and approved by Lender in writing and set
forth on SCHEDULE 4.4, neither the Borrowers nor the Mortgage Borrowers shall
have any outstanding Indebtedness or Contingent Obligations other than the
Obligations or any other Permitted Indebtedness.
SECTION 4.5 TITLE TO THE PROPERTIES AND COLLATERAL. Each of the Mortgage
Borrowers and the Jekyll Island Borrowers had good and marketable fee simple
title (or, in the case of the Ground Leased Properties, leasehold title) to its
Property, free and clear of all Liens except for the Permitted Encumbrances. The
Mortgage Borrowers or the Jekyll Island Borrowers own and will own at all times
all FF&E relating to the Properties (other than personal property which is
either owned by tenants of such Property, not used or necessary for the
operation of the applicable
43
Property, or leased by the Mortgage Borrowers or the Jekyll Island Borrowers as
permitted hereunder), subject only to Permitted Encumbrances. The Borrowers are
the record and beneficial owners and own good and indefeasible title to the
Collateral, free and clear of all Liens. There are no outstanding options to
purchase or rights of first refusal affecting the Collateral. To the Borrowers'
Knowledge, there are no proceedings in condemnation or eminent domain affecting
any of the Properties, and to the actual knowledge of the Borrowers, none is
threatened. No Person has any option or other right to purchase all or any
portion of any of the Properties or any interest therein. To the Borrowers'
Knowledge, there are no mechanic's, materialman's or other similar liens or
claims which have been filed for work, labor or materials affecting the
Properties. None of the Permitted Encumbrances, individually or in the
aggregate, materially interfere with the benefits of the security intended to be
provided by the Pledge Agreement, the Jekyll Island Mortgage and this Loan
Agreement, materially and adversely affect the value of any of the Collateral or
impair the Borrowers' ability to pay its obligations in a timely manner.
SECTION 4.6 ZONING; COMPLIANCE WITH LAWS. Except as set forth on SCHEDULE
4.6, to the Borrower's Knowledge, the Jekyll Island Property and the use thereof
comply in all material respects with all applicable zoning, subdivision and land
use laws, regulations and ordinances, all applicable health, fire, building
codes, parking laws and all other laws, statutes, codes, ordinances, rules and
regulations applicable to the Jekyll Island Property, including without
limitation the Americans with Disabilities Act. To the Borrowers' Knowledge,
there are no illegal activities relating to controlled substances on the Jekyll
Island Property. All material permits, licenses and certificates for the lawful
use, occupancy and operation of each component of the Jekyll Island Property in
the manner in which it is currently being used, occupied and operated,
including, but not limited to liquor licenses and certificates of occupancy, or
the equivalent, have been obtained and are current and in full force and effect.
To the Borrower's Knowledge, except as disclosed on Schedule 4.6, in the event
that all or any part of the Improvements located on the Jekyll Island Property
is destroyed or damaged, said Improvements can be legally reconstructed to their
condition prior to such damage or destruction, and thereafter exist for the same
use without violating any zoning or other ordinances applicable thereto and
without the necessity of obtaining any variances or special permits, other than
customary demolition, building and other construction related permits. To the
Borrowers' Knowledge, no legal proceedings are pending or threatened with
respect to the zoning of the Jekyll Island Property. To the Borrowers'
Knowledge, except as set forth in the Title Policies and/or the Survey, neither
the zoning nor any other right to construct, use or operate the Jekyll Island
Property is in any way dependent upon or related to any real estate other than
the Jekyll Island Property. No tract map, parcel map, condominium plan,
condominium declaration, or plat of subdivision will be recorded by the Jekyll
Island Borrowers with respect to the Jekyll Island Property without Lender's
prior written consent, which consent shall not be unreasonably withheld, delayed
or conditioned.
SECTION 4.7 LEASES; AGREEMENTS.
(A) LEASES; AGREEMENTS. To the Borrowers' Knowledge, it has
delivered to Lender true and complete copies (in all material respects) of all
(i) Leases, if any, and (ii) Material Agreements affecting the operation and
management of the Jekyll Island Property, and such Leases and Material
Agreements have not been modified or amended except pursuant to
44
amendments or modifications delivered to Lender. Except for the rights of the
current Manager pursuant to the existing Management Agreement at the Jekyll
Island Property, no Person has any right or obligation to manage the Jekyll
Island Property or to receive compensation in connection with such management.
Except for the parties to any leasing brokerage agreement that has been
delivered to Lender, no Person has any right or obligation to lease or solicit
tenants for the Jekyll Island Property, or (except for cooperating outside
brokers) to receive compensation in connection with such leasing.
(B) RENT ROLL, DISCLOSURE. A true and correct copy of the Rent
Roll is attached hereto as SCHEDULE 4.7(B) and, except for the Material Leases
described in the Rent Roll, if any, the Jekyll Island Property is not subject to
any Material Leases. Except only as specified in the Rent Roll, or as otherwise
disclosed to Lender in the estoppel certificates delivered to Lender at Closing,
to the Borrowers' Knowledge, (i) the Material Leases, if any, are in full force
and effect; (ii) the Borrowers have not given any notice of default to any
tenant under any Lease which remains uncured; (iii) no tenant has any set off,
claim or defense to the enforcement of any Lease; (iv) no tenant is in arrears
in the payment of rent, additional rent or any other charges whatsoever due
under any Material Lease, or is materially in default in the performance of any
other obligations under such Material Lease; (v) the Borrowers have completed
all work or alterations required of the landlord or lessor under each Material
Lease, and all of the other obligations of landlord or lessor under the Material
Leases have been performed; and (vi) there are no rent concessions (whether in
form of cash contributions, work agreements, assumption of an existing tenant's
other obligations, or otherwise) or extensions of time whatsoever not reflected
in such Rent Roll. There are no legal proceedings commenced (or, to the
Knowledge of the Borrowers, threatened) against the Borrowers by any tenant or
former tenant. No rental in excess of one month's rent has been prepaid under
any of the Material Leases. To the Borrowers' Knowledge, each of the Material
Leases is valid and binding on the parties thereto in accordance with its terms.
(C) NO RESIDENTIAL UNITS. There are no residential units in the
Jekyll Island Property and, to each Borrowers' Knowledge, no person (other than
a site manager employed by Manager) occupies any part of the Jekyll Island
Property for dwelling purposes other than on a transient basis.
(D) MANAGEMENT AGREEMENT. The Borrowers have delivered to Lender a
true and complete copy of the Management Agreement relating to the Jekyll Island
Property to which the Jekyll Island Borrowers are a party that will be in effect
on the Closing Date, and such Management Agreement has not been modified or
amended except pursuant to amendments or modifications delivered to Lender. Such
Management Agreement is in full force and effect and no default by the Jekyll
Island Borrowers or Manager exists thereunder.
(E) FRANCHISE AGREEMENT. The Borrowers have delivered to Lender a
true and complete copy of the Franchise Agreement relating to the Jekyll Island
Property to which the Jekyll Island Borrowers are a party, and such Franchise
Agreement has not been modified or amended except pursuant to amendments or
modifications delivered to Lender. To the Borrowers' Knowledge, (i) the
Franchise Agreement relating to the Jekyll Island Property is in full force and
effect and (ii) except as set forth on Schedule 4.7(E), no material default by
the Jekyll Island Borrowers, Manager or the applicable Franchisor exists
thereunder.
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SECTION 4.8 CONDITION OF THE JEKYLL ISLAND PROPERTY. To each Borrower's
Knowledge, except as set forth in the property condition report for the Jekyll
Island Property delivered to Lender, all Improvements including, without
limitation, the roof and all structural components, plumbing systems, HVAC
systems, fire protection systems, electrical systems, equipment, elevators,
exterior doors, parking facilities, sidewalks and landscaping are in working
condition and repair. Except as disclosed in the Property Condition Report, (i)
the Borrowers are not aware of any latent or patent structural or other material
defect or deficiency in the Jekyll Island Property and, (ii) to the Borrower's
Knowledge, city water supply, storm and sanitary sewers, and electrical, gas (if
applicable) and telephone facilities are available to the Jekyll Island Property
within the boundary lines of the Jekyll Island Property (except as may be shown
on the applicable Survey), are fully connected to the Improvements and are fully
operational, are sufficient to meet the reasonable needs of the Jekyll Island
Property as now used or presently contemplated to be used, and no other utility
facilities are necessary to meet the reasonable needs of the Jekyll Island
Property as now used or presently contemplated. Except as may be shown on the
Survey, to the Borrowers' Knowledge no part of the Jekyll Island Property is
within a flood plain and none of the Improvements create encroachment over,
across or upon the Jekyll Island Property's boundary lines, rights of way or
easements, and no building or other improvements on adjoining land create such
an encroachment which could reasonably be expected to have a Material Adverse
Effect. All public roads and streets necessary for service of and access to the
Jekyll Island Property for the current and contemplated uses thereof have been
completed and are serviceable and are physically and legally open for use by the
public. To the Borrowers' Knowledge after due inquiry, and except as disclosed
in the Property Condition Report, any septic system located at the Jekyll Island
Property is in good and safe condition and repair and in compliance with all
applicable law.
SECTION 4.9 (A) REPRESENTATIONS AND WARRANTIES OF THE MORTGAGE
BORROWERS. All of the representations and warranties of the Mortgage Borrowers
or any Affiliate of the Mortgage Borrowers made under the Mortgage Loan
Documents are true, complete and correct in all material respects.
(B) LITIGATION; ADVERSE FACTS. Except as set forth on
SCHEDULE 4.9, to the Borrowers' Knowledge after due inquiry, there are no
judgments outstanding against any Borrower or any Mortgage Borrower, or
affecting any of the Collateral or any property of the Borrowers or of the
Mortgage Borrowers, nor is there any action, charge, claim, demand, suit,
proceeding, petition, governmental investigation or arbitration now pending or
threatened against any Borrower or any Mortgage Borrower, that could reasonably
be expected to result in a Material Adverse Effect. To the Borrowers' Knowledge
after due inquiry, the actions, charges, claims, demand, suits, proceedings,
petitions, investigations and arbitrations set forth on SCHEDULE 4.9 are not
reasonably expected to result, either individually or in the aggregate, in any
Material Adverse Effect.
SECTION 4.10 PAYMENT OF TAXES. All federal, state and local tax returns and
reports of each Borrower required to be filed have been timely filed (or each
Borrower has timely filed for an extension and the applicable extension has not
expired), and all taxes, assessments, fees and other governmental charges
(including any payments in lieu of taxes) upon such Person and upon its
properties, assets, income and franchises which are due and payable have been
paid. To the
46
Borrowers' Knowledge, except as set forth on SCHEDULE 4.10, no taxes remain
unpaid and no claims are being asserted with respect to any such taxes.
SECTION 4.11 ADVERSE CONTRACTS. Except for the Loan Documents, none of the
Borrowers are a party to or bound by, nor is any property of such Person subject
to or bound by, any contract or other agreement which restricts such Person's
ability to conduct its business in the ordinary course as currently conducted
that, either individually or in the aggregate, has a Material Adverse Effect or
could reasonably be expected to have a Material Adverse Effect.
SECTION 4.12 PERFORMANCE OF AGREEMENTS. To the Borrowers' Knowledge, the
Borrowers are not in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in any Contractual
Obligation of any such Person which could reasonably be expected to have a
Material Adverse Effect, and no condition exists that, with the giving of notice
or the lapse of time or both, would constitute such a default which could
reasonably be expected to have a Material Adverse Effect.
SECTION 4.13 GOVERNMENTAL REGULATION. The Borrowers are not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act or the Investment Company Act of 1940 or to any federal or state
statute or regulation limiting its ability to incur indebtedness for borrowed
money.
SECTION 4.14 EMPLOYEE BENEFIT PLANS. The Borrowers do not maintain or
contribute to, or have any obligation (including a contingent obligation) under,
any Employee Benefit Plans.
SECTION 4.15 BROKER'S FEES. No broker's or finder's fee, commission or
similar compensation will be payable by or pursuant to any contract or other
obligation of any Borrower Party with respect to the making of the Loan or any
of the other transactions contemplated hereby or by any of the Loan Documents.
The Borrowers shall indemnify, defend, protect, pay and hold Lender harmless
from any and all broker's or finder's fees claimed to be due in connection with
the making of the Loan arising from any Borrower Parties' actions.
SECTION 4.16 INTENTIONALLY DELETED.
SECTION 4.17 SOLVENCY. The Borrowers (a) have not entered into the
transaction or any Loan Document with the actual intent to hinder, delay, or
defraud any creditor and (b) received reasonably equivalent value in exchange
for its obligations under the Loan Documents. Giving effect to the Loan, the
fair saleable value of each Borrower's assets exceed and will, immediately
following the making of the Loan, exceed such Borrower's total liabilities,
including, without limitation, subordinated, unliquidated, disputed and
Contingent Obligations. The fair saleable value of each Borrower's assets is and
will, immediately following the making of the Loan, be greater than such
Borrower's probable liabilities, including the maximum amount of its Contingent
Obligations on its debts as such debts become absolute and matured. Each
Borrower's assets do not and, immediately following the making of the Loan will
not, constitute unreasonably small capital to carry out its business as
conducted or as proposed to be conducted. The Borrowers do not intend to, and do
not believe that they will, incur Indebtedness and liabilities (including
Contingent Obligations and other commitments) beyond its ability to pay such
Indebtedness and liabilities as they mature (taking into account the timing and
amounts of
47
cash to be received by the Borrowers and the amounts to be payable on or in
respect of obligations of the Borrowers).
SECTION 4.18 DISCLOSURE. No financial statements furnished to Lender by or
on behalf of any Borrower Party contains any untrue representation, warranty or
statement of a material fact, or omits to state a material fact necessary in
order to make the statements contained therein not misleading. No Loan Document
or any other document, certificate or written statement for use in connection
with the Loan and prepared by any Borrower Party, or any information provided by
any Borrower Party and contained in, or used in preparation of, any document or
certificate for use in connection with the Loan, contains any untrue
representation, warranty or statement of a material fact, or omits to state a
material fact necessary in order to make the statements contained therein not
misleading. There is no material fact actually known to the Borrowers that has
had or will have a Material Adverse Effect and that has not been disclosed in
writing to Lender by the Borrowers.
SECTION 4.19 USE OF PROCEEDS AND MARGIN SECURITY. The Borrowers shall use
the proceeds of the Loan only for the purposes set forth herein and consistent
with all applicable laws, statutes, rules and regulations. No portion of the
proceeds of the Loan shall be used by the Borrowers or any Person in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation T, Regulation U or Regulation X or any other regulation of the Board
of Governors of the Federal Reserve System.
SECTION 4.20 INSURANCE Set forth on SCHEDULE 4.20 is a complete and
accurate description of all policies of insurance for the Jekyll Island
Borrowers that are in effect as of the Closing Date. No notice of cancellation
has been received with respect to such policies, and, to each Borrower's
Knowledge, the Jekyll Island Borrowers are in compliance with all conditions
contained in such policies.
SECTION 4.21 SEPARATE TAX LOTS. The Jekyll Island Property is comprised of
one (1) or more parcels which constitute separate tax lots. No part of the
Jekyll Island Property is included or assessed under or as part of another tax
lot or parcel, and no part of any other property is included or assessed under
or as part of the tax lots or parcels comprising any of the Properties.
SECTION 4.22 SECURITY INTERESTS. Upon execution and delivery of the Pledge
Agreement, delivery to Lender of the certificates representing the LLC
Interests, the LP Interests and the Stock Interests, the recording of the
Jekyll Island Mortgage and the filing of the Financing Statements with the
Secretaries of State of the state of, Delaware, Lender shall have a first
priority perfected security interest in the Collateral, subject to the
Permitted Encumbrances.
SECTION 4.23 INVESTMENTS. Each Borrower has no (i) direct or indirect
interest in, including without limitation stock, partnership interest or other
securities of, any other Person, not pledged to Lender pursuant to the terms of
the Pledge Agreement, or (ii) direct or indirect loan, advance or capital
contribution to any other Person, including all indebtedness and accounts
receivable from that other Person.
SECTION 4.24 DEFAULTS. To the Borrower's Knowledge, except as disclosed to
Lender in writing, no Default exists.
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SECTION 4.25 NO PLAN ASSETS. No Borrower is or will be (i) an employee
benefit plan as defined in Section 3(3) of ERISA which is subject to ERISA,
(ii) a plan as defined in Section 4975(e)(1) of the IRC which is subject to
Section 4975 of the IRC, or (iii) an entity whose underlying assets constitute
"plan assets" of any such employee benefit plan or plan for purposes of Title I
of ERISA of Section 4975 of the IRC; provided that, in making such
representation, the Borrowers have assumed that (i) no portion of the Loan
shall be funded with plan assets of any employee benefit plan that is subject
to Title I of ERISA or any plan that is covered by Section 4975 of the Code
unless the Lender is eligible to apply one or more exemptions such that the
Loan will not constitute a nonexempt prohibited transaction under Section 406
of ERISA or that could subject a Borrower Party or its Affiliates to an excise
tax under Section 4975 of the IRC; and (ii) such assumption in the preceding
clause is true and correct with respect to any party to which Lender transfers
or assigns any portion of the Loan.
SECTION 4.26 GOVERNMENTAL PLAN. No Borrower is or will be a "governmental
plan" within the meaning of Section 3(32) of ERISA and transactions by or with
the Borrowers are not and will not be subject to state statutes applicable to
the Borrowers' regulating investments of and fiduciary obligations with
obligations with respect to governmental plans.
SECTION 4.27 NOT FOREIGN PERSON. No Borrower is a "foreign person" within
the meaning of Section 1445(f)(3) of the IRC.
SECTION 4.28 NO COLLECTIVE BARGAINING AGREEMENTS. Except as set forth on
SCHEDULE 4.28, no Borrower is a party to any collective bargaining agreement.
SECTION 4.29 PRE-PETITION TAX LIABILITIES. Attached hereto as SCHEDULE 4.10
is a full and complete schedule of all unpaid tax liabilities of the Mortgage
Borrowers through December 21, 2001, together with accrued interest and
penalties thereon through November 15, 2002 and pursuant to the Plan of
Reorganization, such tax liabilities remain obligations of the applicable
Borrower or the applicable Mortgage Borrower and are not secured by Liens on the
Properties or the Collateral.
SECTION 4.30 JEKYLL ISLAND GROUND LEASE.
(A) The Jekyll Island Ground Lease contains the entire agreement
of the Ground Lessor and the Jekyll Island Borrowers pertaining to the Jekyll
Island Ground Leased Property covered thereby. The Jekyll Island Borrowers have
no estate, right, title or interest in or to the Jekyll Island Ground Leased
Property except under and pursuant to the Jekyll Island Ground Lease. The Jekyll
Island Borrowers have delivered true and correct copies of the Jekyll Island
Ground Lease to Lender and the Jekyll Island Ground Lease has not been modified,
amended or assigned except as set forth on SCHEDULE 4.30.
(B) To the Knowledge of the Borrowers, the Ground Lessor under the
Jekyll Island Ground Lease is the exclusive fee simple owner of the Jekyll
Island Ground Leased Property, subject only to the Jekyll Island Ground Lease
and the Permitted Encumbrances, and the Jekyll Island Ground Lessor is the sole
owner of the lessor's interest in the Jekyll Island Ground Lease.
49
(C) There are no rights to terminate the Jekyll Island Ground
Lease other than the Jekyll Island Ground Lessor's right to terminate by reason
of default, casualty, condemnation or other reasons, in each case as expressly
set forth in the Jekyll Island Ground Lease.
(D) The Jekyll Island Ground Lease is in full force and effect and
to the Borrowers' Knowledge, and except as may have been disclosed in the
estoppel certificate given to Lender at Closing, no breach or default or event
that with the giving of notice or passage of time would constitute a breach or
default under the Jekyll Island Ground Lease (a "JEKYLL ISLAND GROUND LEASE
DEFAULT") exists or has occurred on the part of the Jekyll Island Borrowers or
on the part of the Jekyll Island Ground Lessor under the Jekyll Island Ground
Lease. The Jekyll Island Borrowers have not received any written notice that a
Jekyll Island Ground Lease Default has occurred or exists, or that the Jekyll
Island Ground Lessor or any third party alleges the same to have occurred or
exist.
(E) The Jekyll Island Borrowers are the exclusive owners of the
lessee's interest under and pursuant to the Jekyll Island Ground Lease and have
assigned, transferred, or encumbered its interest in, to, or under the Jekyll
Island Ground Lease (other than assignments that will terminate on or prior to
Closing), except in favor of Lender pursuant to this Loan Agreement and the
other Loan Documents.
ARTICLE V
COVENANTS OF BORROWER PARTIES
Each of the Borrowers covenants and agrees that until payment in full
of the Loan, all accrued and unpaid interest and all other Obligations, the
Borrowers shall perform and comply with all covenants in this Article V
applicable to such Person.
SECTION 5.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
(A) FINANCIAL STATEMENTS.
(i) ANNUAL REPORTING. Within one hundred twenty (120)
days after the end of each calendar year, the Borrowers shall, and shall cause
Mortgage Borrowers (on a consolidated basis) to, provide true and complete
copies of their Financial Statements for such year to Lender, and within ninety
(90) days after the end of each calendar year, Guarantor shall provide true and
complete copies of its Financial Statements for such year to Lender. All such
Financial Statements (other than those with respect to the Jekyll Island
Borrowers, which may be unaudited) shall be audited by an Approved Accounting
Firm or by other independent certified public accountants reasonably acceptable
to Lender, and shall bear the unqualified certification of such accountants that
such Financial Statements present fairly in all material respects the financial
position of the subject company. The annual Financial Statements shall be
accompanied by Supplemental Financial Information of such calendar year. Such
annual Financial Statements shall be accompanied by a certification executed by
the entity's chief executive officer or chief financial officer (or other
officer with similar duties), satisfying the criteria set forth in Section
5.1(A)(viii) below, and a Compliance Certificate (as defined below).
(ii) QUARTERLY REPORTING - THE BORROWERS. Within
forty-five (45) days after the end of each calendar quarter, the Borrowers shall
provide copies of their Financial
50
Statements for such quarter to Lender (including the Financial Statements of
Mortgage Borrowers), together with a certification executed on behalf of such
Borrower by its chief executive officer or chief financial officer (or other
officer with similar duties) in accordance with the criteria set forth in
Section 5.1(A)(viii) below. Such quarterly Financial Statements shall be
accompanied by Supplemental Financial Information and a Compliance Certificate
for such quarter.
(iii) QUARTERLY REPORTING - GUARANTOR. Within forty-five
(45) days after the end of each calendar quarter, Guarantor shall provide copies
of its Financial Statements for such quarter to Lender, together with a
certification executed on behalf of Guarantor by its chief executive officer or
chief financial officer (or other officer with similar duties) in accordance
with the criteria set forth in Section 5.1(A)(viii) below.
(iv) LEASING REPORTS. Within forty-five (45) days after
each calendar quarter, the Borrowers shall provide or cause the Mortgage
Borrowers to provide to Lender a certified rent roll and a schedule of security
deposits held under Material Leases, each in form and substance reasonably
acceptable to Lender. Within forty-five (45) days after each calendar quarter,
the Borrowers shall also provide or cause the Mortgage Borrowers to provide to
Lender (a) a schedule of any retail Material Leases that expired during such
calendar quarter and a schedule of retail Material Leases scheduled to expire
within the next twelve (12) months and (b) to the extent the Mortgage Borrowers
received notice thereof, a list of any retail tenants under Material Leases that
filed bankruptcy, insolvency or reorganization proceedings during such calendar
quarter. Within ninety (90) days after the end of each calendar year, the
Borrowers shall provide or cause the Mortgage Borrowers to provide to Lender a
statement of income and expenses for all retail space at each of the Properties
and sales reports for retail tenants for such year.
(v) MONTHLY REPORTING. Within thirty (30) days after the
end of each calendar month, each of the Borrowers shall provide, or cause Manger
or the Mortgage Borrowers to provide, to Lender the following items determined
on an accrual basis: (a) a calculation of the average daily rate, RevPAR and
occupancy calculations and statistics for the Properties for the subject month;
(b) Smith Travel Research "STAR" reports then available; (c) monthly and year to
date operating statements prepared for such calendar month, noting Net Operating
Income, Net Cash Flow and including budgeted and last year results for the same
year-to-date period and other information necessary and sufficient under GAAP to
fairly represent the results of operation of the Properties during such calendar
month, all in form reasonably satisfactory to Lender; (d) reports for FF&E and
Capital Expenditure projects completed during such calendar month (including a
detailed explanation for any material deviations from budget); (e) monthly and
year to date detailed reports of Operating Expenses, including supporting
documentation satisfactory to Lender in its sole discretion for each item of
Extraordinary Expense (as such term is defined in the Cash Management Agreement
or in the Jekyll Island Cash Management Agreement, as applicable) for which
Lender has approved a disbursement from the Cash Trap Reserve pursuant to the
terms of Section 3.3(a)(viii) of the Cash Management Agreement; (f) most
recently available "QFI", or similar quality index, scores; and (g) a report
setting forth (i) the date of termination by Property for each Franchise
Agreement that has been terminated after the Closing Date and not replaced with
an Approved Franchisor, (ii) the number of Properties for which a default has
occurred and has continued
51
beyond applicable notice and grace periods under the applicable Franchise
Agreement (including the percentage of the Aggregate Outstanding Principal
Balance represented by such Properties), (iii) a summary report establishing
whether the Borrowers are diligently continuing to pursue reflagging efforts
with respect to each such Property, and (iv) a summary report including (a) the
aggregate number of Properties for which the Mortgage Borrowers or the Jekyll
Island Borrowers have entered into new Franchise Agreements as permitted by
Sections 5.13(D)(i) and 5.13(D)(iv) together with the resulting Category of each
such Property, and (b) the aggregate number of Properties for which any
replacement (and, if more than one replacement has occurred to a single
Property, the number of replacements with respect to such Property) of the
applicable Franchise Agreements has occurred pursuant to the terms of Sections
5.13(D)(ii) and 5.13(D)(iii) together with the percentage of the Aggregate
Outstanding Principal Balance represented by such Properties and including the
resulting Category of each such Property. Along with such operating statements,
each Borrower shall deliver to Lender a Compliance Certificate of such
Borrower's chief executive officer or chief financial officer (or other officer
with similar duties) satisfying the criteria set forth in Section 5.1(A)(viii)
below.
(vi) ADDITIONAL REPORTING. In addition to the foregoing,
the Borrowers shall, and shall cause the Mortgage Borrowers, Guarantor and
Manager to, promptly provide to Lender such further documents and information
concerning its operations, properties, ownership, and finances as Lender shall
from time to time reasonably request upon prior written notice.
(vii) GAAP; UNIFORM SYSTEM. The Borrowers will, and will
cause the Mortgage Borrowers, Guarantor and Manager to, maintain systems of
accounting established and administered in accordance with sound business
practices and sufficient in all respects to permit preparation of Financial
Statements in conformity with GAAP and the Uniform System. All Financial
Statements shall be prepared in accordance with GAAP and the Uniform System,
consistently applied; provided, however, in the event of a conflict between the
Uniform System and GAAP, GAAP will be followed.
(viii) CERTIFICATIONS OF FINANCIAL STATEMENTS AND OTHER
DOCUMENTS, COMPLIANCE CERTIFICATE. Together with the Financial Statements and
other documents and information provided to Lender a certification shall be
delivered to Lender, executed on behalf of the applicable Person by its chief
executive officer or chief financial officer (or other officer with similar
duties), stating that to their Knowledge after due inquiry such quarterly and
annual Financial Statements and information fairly present the financial
condition and results of operations of such Person for the period(s) covered
thereby, and do not omit to state any material information without which the
same might reasonably be misleading, and all other non-financial documents
submitted to Lender (whether monthly, quarterly or annually) are true, correct,
accurate and complete in all material respects. In addition, where this Loan
Agreement requires a "COMPLIANCE CERTIFICATE", the Person required to submit the
same shall deliver a certificate duly executed on behalf of such Person by its
chief executive officer or chief financial officer (or other officer with
similar duties) stating that, to their Knowledge after due inquiry, there does
not exist any Default or Event of Default under the Loan Documents (or if any
exists, specifying the same in detail).
52
(ix) FISCAL YEAR. The Borrowers', Guarantor's, and the
Mortgage Borrowers' fiscal years each end on December 31, and no change shall be
permitted with respect to any such fiscal year.
(B) ACCOUNTANTS' REPORTS. Promptly upon receipt thereof, the
Borrowers will deliver copies of all material reports submitted by independent
public accountants in connection with each annual, interim or special audit of
the Financial Statements or other business operations of the Borrowers or the
Mortgage Borrowers made by such accountants, including the comment letter
submitted by such accountants to management in connection with the annual audit.
(C) TAX RETURNS. Within thirty (30) days after filing the same,
the Borrowers shall deliver, and shall cause the Mortgage Borrowers to deliver,
to Lender a copy of their Federal income tax returns (or the return of the
applicable Person into which the Borrowers' and/or the Mortgage Borrowers'
Federal income tax returns are consolidated) certified on its behalf by its
chief financial officer (or similar position) to be true and correct.
(D) ANNUAL OPERATING BUDGET, CAPEX/FF&E BUDGETS AND CAPITAL
IMPROVEMENTS PLAN. Prior to February 1 of each calendar year, the Borrowers
shall deliver or cause the Mortgage Borrowers to deliver to Lender for its
review for the Properties and for the Jekyll Island Property a proposed
Operating Budget, Capital Improvements Plan and CapEx/FF&E Budget (in each case
presented on a monthly and annual basis) for such calendar year. Each Operating
Budget, CapEx/FF&E Budget and, so long as any funds remain in the Capital
Improvement Reserve or Required Capital Improvements remain to be performed,
each Capital Improvements Plan shall be subject to Lender's approval which
shall not be unreasonably withheld, conditioned or delayed. The Borrowers may
allow changes to be made to the Operating Budget and the CapEx/FF&E Budget from
time to time as deemed reasonably necessary by the Mortgage Borrowers or the
Jekyll Island Borrowers, as applicable, provided no such modification shall
alter any single line item (or the applicable Budget as a whole) by more than
ten percent (10%) without Lender's prior written approval, which approval shall
not be unreasonably withheld. Notice of any modifications to an Operating
Budget and an CapEx/FF&E Budget shall be delivered to Lender at the time of
delivery of the next financial reporting required pursuant to Section
5.1(A)(v). Lender acknowledges that it has approved the annual Operating Budget
for the 2002 calendar year, and the CapEx/FF&E Budget and Capital Improvements
Plan for the 2002 and 2003 calendar years. The proposed Operating Budget shall
identify and set forth the Mortgage Borrowers' or the Jekyll Island Borrowers'
reasonable estimate, after due consideration, of all revenue, costs, and
expenses, and shall specify Operating Revenues and Operating Expenses on a
line-item basis consistent with the form of Operating Budget delivered to
Lender prior to Closing. If any of said budgets or plans requiring Lender's
approval is not in form and substance reasonably satisfactory to Lender, Lender
may disapprove the same and specify the reasons therefor in writing, and such
budget or plan, as applicable, shall promptly be amended and resubmitted for
approval, making such changes as are necessary to comply with the reasonable
requirements of Lender. If any such budget or plan requiring Lender's approval
is not approved or deemed approved by the beginning of the calendar year
covered thereby, subject to the terms of the Mortgage Loan Documents or the
Loan Documents with respect to the budgets or plans for the Jekyll Island
Property, the applicable budget or plan for the previous year shall remain in
effect until the new budget or plan is approved or deemed
53
approved. Lender's consent to any budget, plan or amendments thereto shall be
deemed given, if the first correspondence from the Borrowers to Lender
requesting such approval is in an envelope marked "PRIORITY" and contains a
bold-faced, conspicuous legend at the top of the first page thereof stating that
"IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN
WRITING WITHIN FIFTEEN (15) DAYS, YOUR APPROVAL SHALL BE DEEMED GIVEN", and is
accompanied by the information and documents required above and any other
information reasonably requested by Lender in writing prior to the expiration of
such fifteen (15) day period in order to adequately review the same has been
delivered and, if Lender fails to respond or to expressly deny such request for
approval in writing within the fifteen (15) day period.
(E) MATERIAL NOTICES.
(i) The Borrowers shall promptly deliver, or cause to be
delivered, copies of all notices given or received with respect to a default
under any term or condition related to any Permitted Indebtedness of the
Borrowers, and shall notify Lender within five (5) Business Days of any
potential or actual event of default with respect to any such Permitted
Indebtedness.
(ii) The Borrowers shall promptly deliver to Lender copies
of any and all material notices (including without limitation any notice
alleging any default or breach which is reasonably expected to result in a
termination) received with respect to any Material Agreement or any Lease,
including, without limitation, any inspection report and any progress reports
related to any Property Improvement Plans received from any of the Franchisors
related to any of the Mortgage Borrowers' Properties or the Jekyll Island
Property.
(F) EVENTS OF DEFAULT, ETC. Promptly upon any of the Borrowers
obtaining knowledge of any of the following events or conditions, such Borrower
shall deliver a certificate executed on its behalf by its chief financial
officer or similar officer specifying the nature and period of existence of such
condition or event and what action such Borrower or any Affiliate thereof has
taken, is taking and proposes to take with respect thereto: (i) any condition or
event that constitutes an Event of Default; (ii) any Material Adverse Effect; or
(iii) any actual or alleged breach or default or assertion of (or written threat
to assert) remedies under any Management Agreement, Franchise Agreement or
Ground Lease.
(G) LITIGATION. Promptly upon any of the Borrowers obtaining
knowledge of (1) the institution of any action, suit, proceeding, governmental
investigation or arbitration against the Borrowers, any of the Properties, or
the Collateral not previously disclosed in writing by the Borrowers to Lender
which would be reasonably likely to have a Material Adverse Effect or is not
covered by insurance or (2) any material development in any action, suit,
proceeding, governmental investigation or arbitration at any time pending
against or affecting the Borrowers, or the Mortgage Borrowers, or the Properties
which, in each case, if adversely determined would reasonably be expected to
have a Material Adverse Effect, the Borrowers will give notice thereof to Lender
and, upon request from Lender, provide such other information as may be
reasonably available to them to enable Lender and its counsel to evaluate such
matter.
(H) INSURANCE. At least five (5) Business Days prior to the end of
each insurance policy period of the Mortgage Borrowers or the Jekyll Island
Borrowers, the Borrowers shall
54
cause to be delivered to Lender certificates, reports, and/or other information
(all in form and substance reasonably satisfactory to Lender), (i) outlining all
material insurance coverage maintained as of the date thereof by the Mortgage
Borrowers or the Jekyll Island Borrowers, and all material insurance coverage
planned to be maintained by the Mortgage Borrowers or the Jekyll Island
Borrowers in the subsequent insurance policy period and (ii) evidencing payment
in full of the premiums for such insurance policies.
(I) OTHER INFORMATION. With reasonable promptness, the Borrowers
will deliver such other information and data with respect to such Person, the
Mortgage Borrowers, their Affiliates, and the Properties as from time to time
may be reasonably requested by Lender.
SECTION 5.2 EXISTENCE; QUALIFICATION. The Borrowers will at all times
preserve and keep in full force and effect its existence as a limited
partnership, limited liability company, or corporation, as the case may be, and
all rights and franchises material to its business, including its qualification
to do business in each state where it is required by law to so qualify. Without
limitation of the foregoing, the Borrowers and Member, shall at all times be
qualified to do business in each of the states where such qualification is
required to continue the business of the Borrowers as in effect on the Closing
Date.
SECTION 5.3 PAYMENT OF IMPOSITIONS AND CLAIMS.
(A) The Borrowers will pay, or cause to be paid, all federal,
state and local income taxes, sales taxes, excise taxes and all other taxes and
assessments of the Borrowers on their business, income or assets; in each
instance before any penalty or fine is incurred with respect thereto.
(B) The Borrowers shall cause the Mortgage Borrowers to pay,
discharge or remove any Imposition or Claim relating to the Properties owned by
such Mortgage Borrowers in accordance with the terms of the Mortgage Loan
Agreement.
(C) Except for those matters being contested pursuant to clause
(D) below, the Jekyll Island Borrowers will pay, to the extent such items
relate to the Jekyll Island Property, (i) all Impositions; (ii) all claims
(including claims for labor, services, materials and supplies) for sums that
have become due and payable and that by law have or may become a Lien upon any
of its properties or assets (hereinafter referred to as the "CLAIMS"); and
(iii) all federal, state and local income taxes, sales taxes, excise taxes and
all other taxes and assessments of the Jekyll Island Borrowers on their
business, income or assets; in each instance before any penalty or fine is
incurred with respect thereto.
(D) The Jekyll Island Borrowers shall not be required to pay,
discharge or remove any Imposition or Claim relating to the Jekyll Island
Property so long as the Jekyll Island Borrowers contest in good faith such
Imposition, Claim or the validity, applicability or amount thereof by an
appropriate legal proceeding which operates to prevent the collection of such
amounts and the sale of the Jekyll Island Property or any portion thereof, so
long as: (i) no Event of Default shall have occurred and be continuing, (ii)
prior to the date on which such Imposition or Claim would otherwise have become
delinquent, the Jekyll Island Borrowers shall have given Lender prior written
notice of their intent to contest said Imposition or Claim; (iii) prior to the
date on which
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such Imposition or Claim would otherwise have become delinquent, the Jekyll
Island Borrowers shall have deposited with Lender (or with a court of competent
jurisdiction or other appropriate body reasonably approved by Lender) such
additional amounts as are necessary to keep on deposit at all times, an amount
by way of cash, Dollar Equivalents, or a Letter of Credit, equal to at least one
hundred twenty-five percent (125%) (or such higher amount as may be required by
applicable law) of the total of (x) the balance of such Imposition or Claim then
remaining unpaid, and (y) all interest, penalties, costs and charges accrued or
accumulated thereon; (iv) no risk of sale, forfeiture or loss of any interest in
the Jekyll Island Property or any part thereof arises, in Lender's reasonable
judgment, during the pendency of such contest; (v) such contest does not, in
Lender's reasonable determination, have a Material Adverse Effect; and (vi) such
contest is based on bona fide, material, and reasonable claims or defenses. Any
such contest shall be prosecuted with due diligence, and the Jekyll Island
Borrowers shall promptly pay the amount of such Imposition or Claim as finally
determined, together with all interest and penalties payable in connection
therewith. Lender shall have full power and authority, but no obligation, to
apply any amount deposited with Lender under this subsection to the payment of
any unpaid Imposition or Claim to prevent the sale or forfeiture of the Jekyll
Island Property for non-payment thereof, if Lender reasonably believes that such
sale or forfeiture is threatened. Any surplus retained by Lender after payment
of the Imposition or Claim for which a deposit was made shall be promptly repaid
to the Jekyll Island Borrowers unless an Event of Default shall have occurred,
in which case said surplus may be retained by Lender to be applied to the
Obligations. Notwithstanding any provision of this Section to the contrary, the
Jekyll Island Borrowers shall pay any Imposition or Claim which they might
otherwise be entitled to contest if an Event of Default shall occur and be
continuing, or if, in the reasonable determination of Lender, the Jekyll Island
Property is in danger of being forfeited or foreclosed. If the Jekyll Island
Borrowers refuse to pay any such Imposition or Claim, Lender may (but shall not
be obligated to) make such payment and the Jekyll Island Borrowers shall
reimburse Lender on demand for all such advances.
SECTION 5.4 MAINTENANCE OF INSURANCE.
The Borrowers shall cause the Mortgage Borrowers to continuously
maintain the policies of insurance and the Jekyll Island Borrowers shall
continuously maintain the policies of insurance (all such policies, the
"INSURANCE POLICIES") required pursuant to the terms of Section 5.4 of the
Mortgage Loan Agreement, including meeting all insurer requirements thereunder
(it being agreed that, with respect to the obligations of the Jekyll Island
Borrowers hereunder, insurance shall be maintained as required pursuant to the
terms of Section 5.4 of the Mortgage Loan Agreement as if the Jekyll Island
Borrowers were a "Mortgage Borrower" thereunder, and, following satisfaction of
the Mortgage Loan, the requirements of Section 5.4 of the Mortgage Loan
Agreement shall be deemed to be the continuing obligations of the Borrowers and
the Mortgage Borrowers hereunder).
The provisions of Section 5.4 of the Mortgage Loan Agreement are
incorporated herein by reference. The Lender shall be named as an additional
named insured or loss payee under such policies to the extent that Mortgage
Lender is required to be named as such under the Mortgage Loan Agreement. Upon
request from Lender, Lender shall be entitled to receive copies of any insurance
policies obtained by Mortgage Lender to the extent and at the time such policies
are delivered to the Mortgage Lender by Mortgage Borrower. All Insurance
Policies
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shall provide that the coverage shall not be modified without (30) days' advance
written notice to Lender and shall provide that no claims shall be paid
thereunder to a Person other than Mortgage Lender or Lender without ten (10)
days' advance written notice to Lender. The Borrowers shall furnish Lender
receipts for the payment of premiums on such Insurance Policies or other
evidence of such payment reasonably satisfactory to Lender in the event that
such premiums have not been paid by Lender pursuant to the Loan Agreement.
SECTION 5.5 OPERATION AND MAINTENANCE OF THE PROPERTIES; CASUALTY.
(A) The Borrowers shall and shall cause the Mortgage Borrowers to
operate and maintain the Properties as is necessary to maintain hotel standards
at least as high as those that currently apply to each Property, subject to
ordinary wear and tear, as reasonably determined by the Mortgage Borrowers or
the Jekyll Island Borrowers, as applicable, and otherwise in compliance with the
standards under the applicable Franchise Agreement and shall maintain or cause
to be maintained in good repair, working order and condition all material
property used in the business of each of the Mortgage Borrowers or the Jekyll
Island Borrowers, as applicable, including the applicable Property, and will
make or cause to be made all appropriate repairs, renewals and replacements
thereof. Without limitation of the foregoing, the Borrowers shall and shall
cause the Mortgage Borrowers to operate and maintain the Properties
substantially in accordance with the applicable Operating Budget (including with
respect to Capital Improvements) and the CapEx/FF&E Budget. All work required or
permitted under this Loan Agreement shall be performed in a workmanlike manner
and in compliance with all applicable laws.
So long as no Event of Default has occurred and is continuing, the
Borrowers may and may permit the Mortgage Borrowers to, without Lender's
consent, perform alterations to the Properties which do not constitute a
Material Alteration. The Mortgage Borrowers and the Jekyll Island Borrowers
shall not be permitted to perform any Material Alteration without Lender's
prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed; provided, however, that Lender may, in its sole and
absolute discretion, withhold consent to any Material Alteration which is
likely to result in a decrease of Net Operating Income (taking into
consideration all Material Alterations being undertaken at the properties at
such time) by 5% or more below that which was in effect prior to the
commencement of the first such Material Alteration being undertaken at the time
of determination for a period of sixty (60) days or longer; provided, further,
however, the Mortgage Borrowers and the Jekyll Island Borrowers may be
permitted to perform a Material Alteration without Lender's consent if (i) the
delay caused by obtaining Lender's prior consent may result in injury or death
at, or further destruction or deterioration of, the applicable Property, (ii)
such Material Alteration is necessary to prevent the likelihood of injury or
death at, or further destruction or deterioration of, the applicable Property,
and (iii) the Borrowers cause notice thereof to be delivered to Lender within
two (2) Business Days of commencement of such Material Alteration together with
such supporting documentation as Lender may require with respect to such
Material Alteration. Lender may, as a condition to giving its consent to a
Material Alteration, require that the Borrowers deliver to Lender evidence
reasonably satisfactory to Lender that the Mortgage Borrowers or the Jekyll
Island Borrowers have cash available for payment of the cost of such material
alteration or, if the Borrowers fail to deliver such evidence, cash, Dollar
Equivalents or a Letter of Credit in an amount equal to 125% of the cost of
such Material Alteration as
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reasonably estimated by Lender, unless such amounts have previously been
deposited with Mortgage Lender pursuant to the terms of the Mortgage Loan
Documents. Cash deposited by the Borrowers with Lender in connection with any
Material Alteration pursuant to the foregoing sentence shall be held by Lender
in a Sub-Account of the Lock Box Account and disbursed to the Borrowers to pay
for the cost of such Material Alteration as such work progresses subject to
satisfaction of the conditions for disbursement of amounts from the FF&E reserve
under section 6.4 (including the requirements set forth under section 6.7) or,
with respect to the Jekyll Island Property, from the Jekyll Island FF&E reserve
under section 6.3(B). Upon completion of the Material Alteration, the Borrowers
shall provide evidence reasonably satisfactory to Lender that (i) the Material
Alteration was constructed in accordance with all material applicable laws and
substantially in accordance with plans and specifications approved by Lender
(which approval shall not be unreasonably withheld or delayed), (ii) all
contractors, subcontractors, materialmen and professionals who provided work,
materials or services in connection with the Material Alteration have been paid
in full and have delivered unconditional releases of lien and (iii) all material
licenses necessary for the use, operation and occupancy of the Material
Alteration (other than those which depend on the performance of tenant
improvement work) have been issued. The Borrowers shall reimburse Lender upon
demand for all reasonable out-of-pocket costs and expenses (including the
reasonable fees of any architect, engineer or other professional engaged by
Lender) incurred by Lender in reviewing plans and specifications or in making
any determinations necessary to implement the provisions of this Section 5.5(A).
(B) In the event of casualty or loss at any of the Properties, the
Borrowers shall give or shall cause the Mortgage Borrowers to give immediate
written notice of the same to the insurance carrier and to Lender. The terms of
the Mortgage Loan Documents will govern the application and distribution of
insurance and condemnation proceeds until the Mortgage Loan has been paid in
full (provided that, with respect to the Jekyll Island Property, such Property
shall be deemed to be a "Property" under the Mortgage Loan Documents, the Jekyll
Island Mortgage shall be deemed to be a "Deed of Trust" under the Mortgage Loan
Agreement and the Lender (rather than the Mortgage Lender) shall be deemed to be
the "Lender" under the Mortgage Loan Documents). Any insurance and/or
condemnation proceeds (other than with respect to the Jekyll Island Property, in
which case such proceeds shall be applied and distributed pursuant to this Loan
Agreement and the Jekyll Island Cash Management Agreement) shall be paid
directly to Mortgage Lender pursuant to the terms of the Mortgage Loan Documents
until the Mortgage Loan has been paid in full and, thereafter, shall be paid to
Lender pursuant to this Loan Agreement and the Cash Management Agreement. Upon
application of any casualty or condemnation proceeds by Mortgage Lender and
repayment in full of the Mortgage Loan if the Mezzanine Loan remains
outstanding, any remaining insurance or condemnation proceeds shall be disbursed
into the Cash Management Agreement and, at Lender's election, applied to prepay
the Loan without the imposition of any Prepayment Consideration on the Payment
Date immediately following such election. If Lender elects to apply all of such
insurance proceeds toward the repayment of the Obligations, the Borrowers shall
(subject to compliance with clauses (A), (B), (D) and (F) of section 11.4) be
entitled to obtain from Lender a Collateral Release (without representation or
warranty) relating to such Property, provided that the Borrowers pay to Lender
the amount, if any, by which the Collateral Release Price for such Collateral
exceeds the insurance proceeds received by Lender and applied to repayment of
the Obligations.
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SECTION 5.6 INSPECTION. The Borrowers shall and shall cause the Mortgage
Borrowers to permit any authorized representatives designated by Lender to visit
and inspect during normal business hours the Properties and its business,
including its financial and accounting records, and to make copies and take
extracts therefrom and to discuss its affairs, finances and business with its
officers and independent public accountants (with the Borrowers'
representative(s) present), at such reasonable times during normal business
hours and as often as may be reasonably requested. Unless an Event of Default
has occurred and is continuing, Lender shall provide advance written notice to
the Borrower or the Mortgage Borrower of at least three (3) Business Days prior
to visiting or inspecting any of the Properties or the Borrowers' offices.
SECTION 5.7 O&M PLAN. The Borrowers shall cause the Mortgage Borrowers to,
and the Jekyll Island Borrowers shall comply fully with the O&M Plans pursuant
to the terms of the Mortgage Loan Agreement and this Loan Agreement.
SECTION 5.8 INTENTIONALLY DELETED.
SECTION 5.9 COMPLIANCE WITH LAWS AND CONTRACTUAL OBLIGATIONS. The
Borrowers will, and will cause the Mortgage Borrowers to, (A) comply with the
requirements of all present and future applicable laws, rules, regulations and
orders of any governmental authority in all jurisdictions in which it is now
doing business or may hereafter be doing business, other than those laws, rules,
regulations and orders the noncompliance with which would not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect, (B) maintain all licenses and permits now held or hereafter acquired by
the Borrowers and the Mortgage Borrowers, the loss, suspension, or revocation of
which, or failure to renew, could have a Material Adverse Effect and (C)
perform, observe, comply and fulfill all of its material obligations, covenants
and conditions contained in any Contractual Obligation.
SECTION 5.10 FURTHER ASSURANCES. The Borrowers shall, from time to time,
execute and/or deliver such documents, instruments, agreements, financing
statements, and perform such acts as Lender at any time may reasonably request
to evidence, preserve and/or protect the Collateral at any time securing or
intended to secure the Obligations and/or to better and more effectively carry
out the purposes of this Loan Agreement and the other Loan Documents.
SECTION 5.11 PERFORMANCE OF AGREEMENTS AND LEASES. The Borrowers shall, and
shall cause the Mortgage Borrowers to, duly and punctually perform, observe and
comply in all material respects with all of the terms, provisions, conditions,
covenants and agreements on its or their part to be performed, observed and
complied with (i) hereunder and under the other Loan Documents to which it is a
party, (ii) under all Material Agreements and Leases and (iii) all other
agreements entered into or assumed by such Person in connection with the
Properties, and will not suffer or permit any material default or event of
default (giving effect to any applicable notice requirements and cure periods)
to exist under any of the foregoing except where the failure to perform, observe
or comply with any agreement referred to in this clause (iii) would not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.12 LEASES. (A) Without the prior written consent of Lender, which
shall not be unreasonably withheld or delayed, the Borrowers shall not and shall
not permit the Mortgage Borrowers, nor shall the Borrowers authorize the
Mortgage Borrower or any other Person to,
59
(i) enter into any Material Lease; (ii) cancel or terminate any Material Lease
(except to enforce any such Lease after a default thereunder); (iii) amend or
modify any Material Lease (except for minor modifications and amendments entered
into in the ordinary course of business, consistent with prudent property
management practices, not materially and adversely affecting the economic terms
of the Lease); (iv) approve any assignment, sublease or underlease of any
Material Lease (except as required pursuant to the express terms of any existing
Lease or Lease hereafter approved by Lender); or (v) cancel or modify any
guaranty, or release any security deposit, letter of credit, or other item
constituting security pertaining to any Material Lease (except as required
pursuant to the express terms of any existing Lease or Lease hereafter approved
by Lender).
(B) Any request for approval of any Material Lease or assignment,
termination, amendment or modification of any Material Lease shall be made to
Lender in writing and together with such request the Borrowers shall or shall
cause the Mortgage Borrowers to furnish to Lender: (i) such biographical and
financial information about the proposed tenant as Lender may reasonably require
in conjunction with its review, (ii) a copy of the proposed form of Lease (or
amendment or modification), and (iii) a summary of the material terms of such
proposed Lease (or amendment or modification) including, without limitation,
rental terms and the term of the proposed Lease and any options. Lender's
approval of any Material Lease or assignment, termination, amendment or
modification of any Material Lease, shall be deemed given, if the first
correspondence from the Borrowers to Lender requesting such approval is in an
envelope marked "PRIORITY" and contains a bold-faced, conspicuous legend at the
top of the first page thereof stating that "IF YOU FAIL TO RESPOND TO OR TO
EXPRESSLY DENY THIS REQUEST FOR APPROVAL IN WRITING WITHIN FIFTEEN (15) DAYS,
YOUR APPROVAL SHALL BE DEEMED GIVEN", and is accompanied by the information and
documents required above and any other information reasonably requested by
Lender in writing prior to the expiration of such fifteen (15) day period in
order to adequately review the same has been delivered and, if Lender fails to
respond or to expressly deny such request for approval in writing within the
fifteen (15) day period.
Except for security deposits, no Material Lease executed after the
Closing Date shall provide for payment of rent more than one month in advance,
and the Mortgage Borrowers and the Jekyll Island Borrowers shall not under any
circumstances be permitted to collect any such rent more than one month in
advance. The Borrowers, at Lender's request, shall furnish Lender with executed
copies of all Material Leases hereafter made.
SECTION 5.13 MANAGEMENT; FRANCHISE AGREEMENT.
(A) The Borrowers shall cause the Properties and the Jekyll Island
Property to be managed in accordance with the Management Agreements including,
without limitation, maintaining inventory in amounts and types customary for
hotels comparable to each Property and the Jekyll Island Property. The Borrowers
shall and shall cause the Mortgage Borrowers to (i) perform and observe all of
the material terms, covenants and conditions of the Management Agreement on the
part of the Mortgage Borrowers or the Jekyll Island Borrowers to be performed
and observed, and (ii) promptly notify Lender of any notice of any material
default under the Management Agreement of which it is aware. If any Mortgage
Borrower or the Jekyll Island Borrowers shall default in the performance or
observance of any material term, covenant
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or condition of the applicable Management Agreement on the part of such Mortgage
Borrower or the Jekyll Island Borrowers to be performed or observed, then,
without limiting Lender's other rights or remedies under this Agreement or the
other Loan Documents, and without waiving or releasing the Borrowers or the
Mortgage Borrowers from any of their obligations hereunder or under the
applicable Management Agreement, Lender shall have the right, upon prior written
notice to the Borrowers, but shall be under no obligation, to pay any sums and
to perform any act as may be reasonably appropriate to cause such conditions of
the applicable Management Agreement on the part of such Mortgage Borrower or the
Jekyll Island Borrowers to be performed or observed.
(B) The Borrowers shall not, and shall not permit the Mortgage
Borrowers to, surrender, terminate, cancel, modify (other than non-material
changes), renew or extend the Management Agreement, or enter into any other
Management Agreement with Manager or any new Manager (other than an Acceptable
Manager), or consent to the assignment by the Manager (other than as an
Acceptable Manager) of its interest under the Management Agreement, in each case
without (i) prior to a Securitization, the express consent of Lender, which
consent shall not be unreasonably withheld, or (ii) after a Securitization,
delivery of Rating Confirmations from each of the Rating Agencies.
Notwithstanding the foregoing, the Borrowers may allow the Mortgage Borrowers to
terminate the Memphis Interim Agreement pursuant to the term of the Mortgage
Loan Agreement.
(C) Lender shall have the right, subject to the rights of Mortgage
Lender under the terms of the Mortgage Loan Agreement, to require the
replacement of any Manager with a Person chosen by the Borrowers and reasonably
acceptable to Lender (unless such proposed Manager is an Acceptable Manager) and
the applicable Franchisor (to the extent the applicable Franchisor has consent
rights), upon the earliest to occur of any one or more of the following events:
(i) upon the occurrence and during the continuance of an Event of Default; (ii)
thirty (30) days after notice from Lender to the Borrowers if Manager has
engaged in fraud, gross negligence or willful misconduct arising from or in
connection with its performance under the applicable Management Agreement; or
(iii) upon a change of control of the current Manager.
(D) The Borrowers shall not and shall not permit the Mortgage
Borrowers to terminate or enter into any Franchise Agreement without Lender's
prior written consent, which may be granted or withheld in Lender's sole
discretion. Notwithstanding the foregoing, the following changes to Franchise
Agreements shall be permitted without Lender's prior written consent:
(i) Replacement of any Franchise Agreement with a new
Franchise Agreement in form substantially similar to a form previously approved
by Lender with any Franchisor that would cause a Tier 3 Hotel to become either a
Tier 2 Hotel or a Tier 1 Hotel, or that would cause a Tier 2 Hotel to become a
Tier 1 Hotel;
(ii) Replacement of any Franchise Agreement with a new
Franchise Agreement in form substantially similar to a form previously approved
by Lender with a Franchisor that would cause the Property to remain within the
same Category, provided no such replacement shall occur (in the aggregate) with
respect to more than the lesser of (x) five (5)
61
Properties, or (y) Properties with Aggregate Allocated Loan Amounts (in the
aggregate) of ten percent (10%) of the Aggregate Outstanding Principal Balance;
(iii) Replacement of any Franchise Agreement at a Tier 2
Hotel with a new Franchise Agreement in form substantially similar to a form
previously approved by Lender for Tier 3 Hotels, provided no such replacements
shall occur (in the aggregate) with respect to more than the lesser of (x) three
(3) Properties, or (y) Properties with Aggregate Allocated Loan Amounts (in the
aggregate) of two percent (2%) of the Aggregate Outstanding Principal Balance;
and
(iv) Entering into a new Franchise Agreement in form
substantially similar to a form previously approved by Lender with an Approved
Franchisor (or with respect to the Property located at 3071 Ross Clark Circle,
Dothan, Alabama (the "DOTHAN HOTEL"), La Quinta Corporation under the La Quinta
brand) for any of the Non-Flagged Hotels, the Dothan Hotel, and the Property
located at 7330 Plantation Road, Pensacola, Florida, at which time the
applicable Property shall be deemed to be within the Category determined by the
applicable Franchise Agreement; provided that the La Quinta brand shall be
deemed to be within the Tier 3 Hotel category solely for the purpose of
determining the Dothan Hotel's Category.
In connection with the replacement of any Franchisors
permitted hereunder, the Borrowers shall cause the applicable Mortgage Borrower
or the Jekyll Island Borrowers to, within ten (10) Business Days of the
execution of such Franchise Agreement, deliver to Lender a Franchisor Letter
from any replacement Franchisor in form and substance reasonably acceptable to
Lender. In all cases, each Borrower shall (a) cause the hotel located on the
applicable Property to be operated pursuant to the applicable Franchise
Agreement; (b) promptly perform and observe in all material respects all of the
covenants required to be performed and observed by it under the applicable
Franchise Agreement (including the requirements of any Property Improvement
Plan); (c) promptly notify Lender of any material default under the applicable
Franchise Agreement of which it is aware; and (d) promptly enforce in a
commercially reasonable manner the performance and observance of all of the
material covenants required to be performed and observed by the Franchisor under
the Franchise Agreement. In addition, the Borrowers shall not, and shall not
permit any Mortgage Borrower to, without Lender's prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed: (x) increase
or consent to the increase of the aggregate amount of any fees under any
Franchise Agreement; or (y) otherwise materially modify, change, supplement,
alter or amend, or waive or release any of its material rights and remedies
under, any Franchise Agreement.
Lender's consent to any replacement of any Franchise
Agreement, or the termination, renewal, extension or modification of an existing
Franchise Agreement, shall be deemed given, if the first correspondence from the
Borrowers to Lender requesting such consent is in an envelope marked "PRIORITY"
and contains a bold-faced, conspicuous legend at the top of the first page
thereof stating that "IF YOU FAIL TO RESPOND TO OR TO EXPRESSLY DENY THIS
REQUEST FOR APPROVAL IN WRITING WITHIN FIFTEEN (15) DAYS, YOUR APPROVAL SHALL BE
DEEMED GIVEN", and is accompanied by the information and documents required
above and any other information reasonably requested by Lender in writing prior
to the expiration of such fifteen (15) day period in order to adequately review
the
62
same has been delivered and, if Lender fails to respond or to expressly deny
such request for approval in writing within the fifteen (15) day period.
SECTION 5.14 MATERIAL AGREEMENTS. The Borrowers shall not, and shall not
permit the Mortgage Borrowers to, enter into or become obligated under any
Material Agreement pertaining to any Property, including without limitation
brokerage agreements, without Lender's prior written approval, which approval
shall not be unreasonably withheld or conditioned; except that the following
Material Agreements shall not require Lender approval: (i) Leases complying with
the Loan Documents, (ii) the Management Agreement, (iii) the existing Material
Agreements described on SCHEDULE 5.14 attached hereto, (iv) any Franchise
Agreement complying with the provisions of Section 5.13 (E) or (v) any other
agreement that may be terminated without cause and without payment of a penalty
or premium, or not more than thirty (30) days' prior written notice.
SECTION 5.15 DEPOSITS; APPLICATION OF RECEIPTS. The Borrowers will cause
all Receipts from the Properties and the Jekyll Island Property to be deposited
into, and shall otherwise comply with, the applicable Accounts established from
time to time under either the Mortgage Loan Cash Management Agreement, the Cash
Management Agreement or the Jekyll Island Cash Management Agreement. Subject to
Article VII hereof, the Cash Management Agreement and the Jekyll Island Cash
Management Agreement, the Borrowers shall promptly apply all Receipts to the
payment of all current and past due Operating Expenses, and to the repayment of
all sums currently due or past due under the Loan Documents, including all
payments into the Reserves.
SECTION 5.16 ESTOPPEL CERTIFICATES.
(A) Within ten (10) Business Days following a request by Lender,
the Borrowers shall provide to Lender a duly acknowledged written statement
confirming (i) the amount of the outstanding principal balance of the Loan, (ii)
the terms of payment and maturity date of the Note, (iii) the date to which
interest has been paid, (iv) whether any offsets or defenses exist against the
Obligations, and if any such offsets or defenses are alleged to exist, the
nature thereof shall be set forth in detail and (v) that this Loan Agreement,
the Note, the Pledge Agreement, the Jekyll Island Mortgage and the other Loan
Documents are legal, valid and binding obligations of the Borrowers and have not
been modified or amended, or if modified or amended, describing such
modification or amendments.
(B) Within ten (10) Business Days following a written request by
the Borrowers, Lender shall provide to the Borrowers a duly acknowledged written
statement setting forth the amount of the outstanding principal balance of the
Loan, the date to which interest has been paid, and whether Lender has provided
the Borrowers with written notice of any Event of Default. Compliance by Lender
with the requirements of this Section shall be for informational purposes only
and shall not be deemed to be a waiver of any rights or remedies of Lender
hereunder or under any other Loan Document.
SECTION 5.17 INDEBTEDNESS. The Borrowers will not, and will not permit the
Mortgage Borrowers to, directly or indirectly create, incur, assume, guaranty,
or otherwise become or remain directly or indirectly liable with respect to any
Indebtedness except for the following (collectively, "PERMITTED INDEBTEDNESS"):
63
(A) The Obligations;
(B) The Mortgage Loan;
(C) (i) Unsecured trade payables not evidenced by a note and
arising out of purchases of goods or services in the ordinary course of business
and (ii) Indebtedness incurred in the financing of equipment or other personal
property used at the Properties in the ordinary course of business, provided
that (a) each such trade payable is payable not later than ninety (90) days
after the original invoice date and is not overdue by more than thirty (30) days
and (b) the aggregate amount of such trade payables and Indebtedness relating to
financing of equipment and personal property referred to in clauses (i) and (ii)
above outstanding does not, at any time, exceed five percent (5%) of the
outstanding principal balance of the Loan; and
(D) That certain unsecured loan in the original principal amount
of $17,686,292, evidenced by a certain replacement promissory note dated as of
November 15, 2002 given by Servico Center Associates, Ltd., to Servico Palm
Beach General Partner SPE, Inc. the outstanding principal balance of which on
the Closing Date is $17,686,292.
In no event shall any Indebtedness other than the Mortgage
Loan (and, with respect to the Jekyll Island Property only, the Loan) be
secured, in whole or in part, by the Properties or any portion thereof or
interest therein, nor shall any Indebtedness other than the Loan be secured, in
whole or in part, by the Collateral or any portion thereof or interest therein.
SECTION 5.18 NO LIENS. The obligations of the Borrowers under this Section
are in addition to and not in limitation of its obligations under Article XI
herein. The Borrowers shall not, and shall not permit the Mortgage Borrowers
to, create, incur, assume or permit to exist any Lien on or with respect to the
Properties, any Collateral or any direct or indirect ownership interest in any
Borrower or any Mortgage Loan Borrower, except Permitted Encumbrances.
SECTION 5.19 CONTINGENT OBLIGATIONS. Other than Permitted Indebtedness, no
Borrower or Member shall directly or indirectly create or become or be liable
with respect to any Contingent Obligation except Contingent Obligations existing
on the Closing Date and described in SCHEDULE 4.4.
SECTION 5.20 RESTRICTION ON FUNDAMENTAL CHANGES. Except as otherwise
expressly permitted under this Loan Agreement, no Borrower or Member shall, or
shall permit any other Person to, (i) amend, modify or waive any term or
provision of such Borrower's or Member's partnership agreement, certificate of
limited partnership, articles of incorporation, by-laws, articles of
organization, operating agreement or other organizational documents so as to
violate or permit the violation of the single-purpose entity provisions set
forth in Article IX, unless required by law; or (ii) liquidate, wind-up or
dissolve such Borrower or Member.
SECTION 5.21 TRANSACTIONS WITH RELATED PERSONS. The Borrowers shall not,
and shall not permit the Mortgage Borrowers to, directly or indirectly enter
into or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Related
Person of any of the Borrowers or with any director, officer or employee of any
Borrower Party, except transactions in the ordinary course of and pursuant to
the reasonable requirements of the business of the Borrowers and upon fair and
reasonable terms
64
and are no less favorable to any of the Borrowers than would be obtained in a
comparable arm's length transaction with a Person that is not a Related Person
of any of the Borrowers. The Borrowers shall not make any payment or permit any
payment to be made to any Related Person of any of the Borrowers when or as to
any time when any Event of Default shall exist.
SECTION 5.22 BANKRUPTCY, RECEIVERS, SIMILAR MATTERS.
(A) VOLUNTARY CASES. The Borrower Parties shall not commence any
voluntary case under the Bankruptcy Code or under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect.
(B) INVOLUNTARY CASES, RECEIVERS, ETC. No Borrower Party shall
apply for, consent to, or aid, solicit, support, or otherwise act, cooperate or
collude to cause the appointment of or taking possession by, a receiver, trustee
or other custodian for all or a substantial part of the assets of any of the
Borrower Parties. As used in this Loan Agreement, an "INVOLUNTARY BORROWER
BANKRUPTCY" shall mean any involuntary case under the Bankruptcy Code or any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, in which any Borrower Party is a debtor or any portion of the Properties
is property of the estate therein. No Borrower Party shall file a petition for,
consent to the filing of a petition for, or aid, solicit, support, or otherwise
act, cooperate or collude to cause the filing of a petition for an Involuntary
Borrower Bankruptcy. In any Involuntary Borrower Bankruptcy, no Borrower Party
shall, without the prior written consent of Lender, consent to the entry of any
order, file any motion, or support any motion (irrespective of the subject of
the motion), and no Borrower Party shall file or support any plan of
reorganization. Each Borrower Party having any interest in any Involuntary
Borrower Bankruptcy shall do all things reasonably requested by Lender to assist
Lender in obtaining such relief as Lender shall seek, and shall in all events
vote as directed by Lender. Without limitation of the foregoing, each such
Borrower Party shall do all things reasonably requested by Lender to support any
motion for relief from stay or plan of reorganization proposed or supported by
Lender.
SECTION 5.23 ERISA.
(A) NO ERISA PLANS. None of the Borrowers or Members will
establish any Employee Benefit Plan, Pension Plan or Multiemployer Plan, or will
commence making contributions to (or become obligated to make contributions to)
any Employee Benefit Plan, Pension Plan or Multiemployer Plan.
(B) COMPLIANCE WITH ERISA. The Borrowers shall not: (i) engage in
any non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the IRC; or (ii) except as may be necessary to comply with applicable laws,
establish or amend any Employee Benefit Plan which establishment or amendment
could result in liability to the Borrowers or any ERISA Affiliate or increase
the obligation of the Borrowers, provided that, the Borrowers shall not be in
default of this covenant if, in either case, any portion of the Loan has been,
or will be, funded with plan assets of any employee benefit plan that either (x)
is subject to Title I of ERISA or any plan that is covered by Section 4975 of
the Code (unless the Lender is eligible to apply for one or more exemptions such
that the Loan will not constitute a nonexempt prohibited
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transaction under Section 406 of ERISA) or (y) could subject a Borrower or its
Affiliates to an excise tax under Section 4975 of the IRC.
(C) NO PLAN ASSETS. The Borrowers shall not at any time during the
term of this Loan Agreement become (1) an employee benefit plan defined in
Section 3(3) of ERISA which is subject to ERISA, (2) a plan as defined in
Section 4975(e)(1) of the IRC which is subject to Section 4975 of the IRC, (3) a
"governmental plan" within the meaning of Section 3(32) of ERISA or (4) an
entity any of whose underlying assets constitute "plan assets" of any such
employee benefit plan, plan or governmental plan for purposes of Title I or
ERISA, Section 4975 of the IRC or any state statutes applicable to the Borrowers
regulating investments of governmental plans.
SECTION 5.24 PRESS RELEASE. The Borrowers shall not, and shall not permit
any other Person within its control to, disclose the name of Lender or terms of
this Loan Agreement or the Loan Documents in any press release without the prior
written consent of Lender, which shall not be unreasonably withheld.
Notwithstanding the foregoing, the Borrowers shall be permitted to make such
filings and disclosures with respect to the Loan as are required by law.
SECTION 5.25 GROUND LEASES.
(A) NO MODIFICATION. The Borrowers shall not permit any party to
modify or amend any material or economic terms of, or terminate or surrender any
Ground Lease, in each case without the prior written consent of Lender, which
consent may be withheld by Lender in its sole and absolute discretion. Any
attempted or purported material modification, amendment, or any surrender or
termination of any Ground Lease without Lender's prior written consent shall be
null and void and of no force or effect.
(B) PERFORMANCE OF GROUND LEASES. The Borrowers shall cause the
Ground Lease Borrowers to (i) fully perform as and when due each and all of its
obligations under each Ground Lease in accordance with the terms of such Ground
Lease, and shall not cause or suffer to occur any material breach or default in
any of such obligations, (ii) keep and maintain each Ground Lease in full force
and effect, and (iii) exercise any option to renew or extend any Ground Lease
and give written confirmation thereof to Lender within thirty (30) days after
such option is exercised.
(C) NOTICE OF DEFAULT. If the Borrowers or any of the Mortgage
Borrowers shall receive any written notice that any Ground Lease Default or
Jekyll Island Ground Lease Default has occurred, then such Borrower immediately
shall notify Lender in writing of the same and immediately deliver to Lender a
true and complete copy of each such notice. Further, the Borrowers shall provide
and shall cause the Mortgage Borrowers to provide, such documents and
information as Lender shall reasonably request concerning the Ground Lease
Default or the Jekyll Island Ground Lease Default.
(D) LENDER'S RIGHT TO CURE. If any Ground Lease Default or any
Jekyll Island Ground Lease Default shall occur and be continuing, or if any
Ground Lessor asserts that a Ground Lease Default or any Jekyll Island Ground
Lease Default has occurred (whether or not the Borrowers question or deny such
assertion), then, subject to the terms and conditions of the
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applicable Ground Lease, Lender, upon five (5) Business Days' prior written
notice to the Borrowers, unless Lender reasonably determines that a shorter
period (or no period) of notice is necessary to protect Lender's interest in
the Ground Lease, may (but shall not be obligated to) take any action that
Lender deems reasonably necessary, including, without limitation, (i)
performance or attempted performance of the Ground Lease Borrowers' obligations
under the applicable Ground Lease, (ii) curing or attempting to cure any actual
or purported Ground Lease Default or purported Jekyll Island Ground Lease
Default, (iii) mitigating or attempting to mitigate any damages or consequences
of the same and (iv) entry upon the applicable Ground Leased Property for any
or all of such purposes. Upon Lender's request, the Borrowers shall submit
satisfactory evidence of payment or performance of any of its obligations under
each Ground Lease. Lender may pay and expend such sums of money as Lender in
its sole discretion deems necessary or desirable for any such purpose, and the
Borrowers shall pay to Lender within five (5) Business Days of the written
demand of Lender all such sums so paid or expended by Lender, together with
interest thereon from the date of expenditure at the Default Rate.
(E) LEGAL ACTION. The Borrowers shall not commence, or permit the
Ground Lease Borrowers to commence, any action or proceeding against any Ground
Lessor or affecting or potentially affecting any Ground Lease or the Ground
Lease Borrowers' or Lender's interest therein, the effect of which could cause
an event of default or termination of any such Ground Lease, without the prior
written consent of Lender, which consent shall not be unreasonably withheld,
conditioned or delayed. The Borrowers shall notify Lender immediately if any
action or proceeding shall be commenced between any Ground Lessor and the Ground
Lease Borrowers, or affecting or potentially affecting any Ground Lease or the
Ground Lease Borrowers' or Lender's interest therein (including, without
limitation, any case commenced by or against any Ground Lessor under the
Bankruptcy Code). Lender shall have the option, exercisable upon notice from
Lender to the Borrowers, to participate in any such action or proceeding with
counsel of Lender's choice. The Borrowers shall cause the Ground Lease Borrowers
to cooperate with Lender, comply with the reasonable instructions of Lender,
execute any and all powers, authorizations, consents or other documents
reasonably required by Lender in connection therewith, and shall not settle any
such action or proceeding without the prior written consent of Lender, which
consent shall not be unreasonably withheld, conditioned or delayed.
(F) ESTOPPEL CERTIFICATE. Subject to the terms and conditions of
the applicable Ground Lease, the Borrowers shall or shall cause the Ground Lease
Borrowers to use commercially reasonable efforts to obtain and deliver to Lender
within the time period required under the applicable Ground Lease, an estoppel
certificate from each Ground Lessor setting forth (A) (i) the identities of the
original lessor and lessee under the applicable Ground Lease and each of their
respective successors, (ii) that the Ground Lease has not been modified or, if
it has been modified, the date of each modification (together with copies of
each such modification), (iii) the rent payable under the Ground Lease, (iv) the
dates to which all rent and other charges have been paid, (v) whether there are
any alleged Ground Lease Defaults or alleged Jekyll Island Ground Lease Defaults
and, if so, setting forth the nature thereof in reasonable detail, and (vi) such
other matters as Lender may reasonably request or (B) the matters required to be
certified by the Ground Lessor under the applicable Ground Lease. The Borrowers
shall not be required to request an estoppel from any Ground Lessor more than
two (2) times in any calendar year.
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(G) BANKRUPTCY.
(i) If the Jekyll Island Ground Lessor shall reject the
Jekyll Island Ground Lease under or pursuant to Section 365 of Title 11 of the
Bankruptcy Code, the Jekyll Island Borrowers shall not elect to treat the Jekyll
Island Ground Lease as terminated but shall elect to remain in possession of the
Ground Leased Property and the leasehold estate under the Jekyll Island Ground
Lease. The lien of the Jekyll Island Mortgage covering the Jekyll Island
Property does and shall encumber and attach to all of the Jekyll Island
Borrowers' right and remedies at any time arising under or pursuant to Section
365 of the Bankruptcy Code, including without limitation, all of the Jekyll
Island Borrowers' rights to remain in possession of the Jekyll Island Property
and the leasehold estate.
(ii) The Jekyll Island Borrowers acknowledge and agree
that in any case commenced by or against the Jekyll Island Borrowers under the
Bankruptcy Code, Lender by reason of the liens and rights granted under the
Jekyll Island Mortgage covering the Jekyll Island Property and the Loan
Documents shall have a substantial and material interest in the treatment and
preservation of the Jekyll Island Borrwers' rights and obligations under the
Jekyll Island Ground Lease, and that such Jekyll Island Borrowers shall, in any
such bankruptcy case, provide to Lender immediate and continuous reasonably
adequate protection of such interests. The Jekyll Island Borrowers and Lender
agree that such adequate protection shall include but shall not necessarily be
limited to the following:
(a) Lender shall be deemed a party to the Jekyll
Island Ground Lease (but shall not have any obligations thereunder) for purposes
of Section 365 of the Bankruptcy Code, and shall, provided that, prior to an
Event of Default, no such action by Lender would adversely and materially affect
the Jekyll Island Borrowers' ability to prosecute, or defend, any such claims
asserted therein, have standing to appear and act as a party in interest in
relation to any matter arising out of or related to the Jekyll Island Ground
Lease or the Jekyll Island Property.
(b) The Jekyll Island Borrowers shall serve
Lender with copies of all notices, pleadings and other documents relating to or
affecting the Jekyll Island Ground Lease or the Jekyll Island Property. Any
notice, pleading or document served by the Jekyll Island Borrowers on any other
party in the bankruptcy case shall be contemporaneously served by the Jekyll
Island Borrowers on Lender, and any notice, pleading or document served upon or
received by the Jekyll Island Borrowers from any other party in the bankruptcy
case shall be served by the Jekyll Island Borrowers on Lender promptly upon
receipt by the Jekyll Island Borrowers.
(c) Upon written request of Lender, the Jekyll
Island Borrowers shall assume the Jekyll Island Ground Lease, and shall take
such steps as are necessary to preserve the Jekyll Island Borrowers' right to
assume the Jekyll Island Ground Lease, including without limitation using
commercially reasonable efforts to obtain extensions of time to assume or reject
the Jekyll Island Ground Lease under Subsection 365(d) of the Bankruptcy Code to
the extent it is applicable.
(H) If the Jekyll Island Borrowers or the applicable Ground Lessor
seeks to reject the Jekyll Island Ground Lease or have the Ground Lease deemed
rejected, then prior to the hearing
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on such rejection Lender shall, subject to applicable law, be given no less than
twenty (20) days' notice and opportunity to elect in lieu of rejection to have
the Jekyll Island Ground Lease assumed and assigned to a nominee of Lender. If
Lender shall so elect to assume and assign the Jekyll Island Ground Lease, then
the Jekyll Island Borrowers shall, subject to applicable law, continue any
request to reject the Jekyll Island Ground Lease until after the motion to
assume and assign has been heard. If Lender shall not elect to assume and assign
the Jekyll Island Ground Lease, then Lender may, subject to applicable law,
obtain in connection with the rejection of the Jekyll Island Ground Lease a
determination that the applicable Ground Lessor, at Lender's option, shall (1)
agree to terminate the Jekyll Island Ground Lease and enter into a new lease
with Lender on the same terms and conditions as the Jekyll Island Ground Lease,
for the remaining term of the Jekyll Island Ground Lease, or (2) treat the
Jekyll Island Ground Lease as breached and provide Lender with the rights to
cure defaults under the Jekyll Island Ground Lease and to assume the rights and
benefits of the Jekyll Island Ground Lease.
The Jekyll Island Borrowers shall join with and support any
request by Lender to grant and approve the foregoing as necessary for adequate
protection of Lender's interests. Notwithstanding the foregoing, Lender may seek
additional terms and conditions, including such economic and monetary
protections as it deems reasonably appropriate to adequately protect its
interests, and any request for such additional terms or conditions shall not
delay or limit Lender's right to receive the specific elements of adequate
protection set forth herein.
The Jekyll Island Borrowers hereby appoint Lender as its
attorney in fact to act on behalf of Lender in connection with all matters
relating to or arising out of the assumption or rejection of the Jekyll Island
Ground Lease, in which the other party to the lease is a debtor in a case under
the Bankruptcy Code. This grant of power of attorney is present, unconditional,
irrevocable, durable and coupled with an interest.
SECTION 5.26 MORTGAGED CONDOMINIUM PROPERTY.
(A) NO MODIFICATION. The Borrowers shall not permit the
Condominium Mortgage Borrowers to modify or amend any material terms of, or
terminate or amend any of the Mortgaged Condominium Property Documents, in each
case, without the prior written consent of Lender, which consent shall not be
unreasonably withheld, conditioned or delayed.
(B) PERFORMANCE OF MORTGAGED CONDOMINIUM PROPERTY DOCUMENTS. The
Borrowers shall cause the Condominium Mortgage Borrowers to fully and faithfully
pay when due and payable all assessments, common charges and other charges
payable by Condominium Mortgage Borrowers under the Mortgaged Condominium
Property Documents and shall perform as and when due each of its material
obligations under the Mortgaged Condominium Property Documents in substantial
accordance with their respective terms, and shall not cause or suffer to occur
any breach or default in any of such obligations. The Borrowers shall cause the
Condominium Mortgage Borrowers to keep and maintain each of the Mortgaged
Condominium Property Documents in full force and effect.
(C) NOTICE OF DEFAULT. If the Borrowers of the Condominium
Borrowers shall receive any written notice of any Condominium Default, the
Borrowers immediately shall notify Lender of same and deliver to Lender a true
and complete copy of each such notice, and provide such
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documents and information as Lender may reasonably request concerning such
Condominium Default.
(D) LENDER'S RIGHT TO CURE. If any Condominium Default shall
occur and be continuing, or if any party to any Mortgaged Condominium Property
Document asserts that a Condominium Default has occurred (whether or not the
Borrowers question or deny such assertion), then, subject to the terms and
conditions of the applicable Mortgaged Condominium Property Documents, after
notice to the Borrowers, Lender, upon five (5) Business Days' prior written
notice to the Borrowers, unless Lender reasonably determines that a shorter
period (or no period) of notice is necessary to protect Lender's interest in
the Ground Lease, may (but shall not be obligated to) take any action that
Lender deems reasonably necessary to cure such Condominium Default, including,
without limitation, (i) performance or attempted performance of the applicable
Condominium Mortgage Borrower's obligations under the applicable Mortgaged
Condominium Property Documents, (ii) curing or attempting to cure any actual or
purported Condominium Default, (iii) mitigating or attempting to mitigate any
damages or consequences of the same and (iv) entry upon the Mortgaged
Condominium Property for any or all of such purposes. Upon Lender's request,
the Borrowers shall submit satisfactory evidence of payment or performance of
any of its obligations under each of the Mortgaged Condominium Property
Documents. Lender may pay and expend such sums of money as Lender in its sole
discretion deems necessary or desirable for any such purpose, and the Borrowers
shall pay to Lender within five (5) Business Days of the written demand of
Lender all such sums so paid or expended by Lender pursuant to this Section
5.26, together with interest thereon from the date of expenditure at the
Default Rate.
(E) PRESERVATION OF CONDOMINIUM. The Borrowers will do, and will
cause the Condominium Mortgage Borrowers to do, all things necessary to preserve
and to keep unimpaired its material rights, powers and privileges under the
Mortgaged Condominium Property Documents and to prevent the termination or
expiration of the Mortgaged Condominium property Documents, or the withdrawal of
the Mortgaged Condominium Property from a condominium form of ownership under
applicable law, to the end that the Condominium Mortgage Borrowers may enjoy all
of the material rights granted to it as a part to the Mortgaged Condominium
Property Documents.
(F) STATEMENTS, NOTICES. The Borrowers will, within twenty (20)
days after demand from Lender (which shall not be required more than two (2)
times in any calendar year), obtain, or cause the Condominium Mortgage Borrowers
to obtain, if and to the extent that Condominium Mortgage Borrower is entitled
to the same under the Mortgaged Condominium Property Documents, and otherwise
request from and make good faith efforts to obtain, from the Board of Managers
and deliver to Lender a duly signed and acknowledged certificate (signed also by
the Condominium Mortgage Borrowers) that the Mortgaged Condominium Property
Documents are unmodified and in full force and effect (or, if the same have been
modified in compliance with this Loan Agreement, that the Mortgaged Condominium
Property Documents are in full force and effect as to modified and that there
have been no other modifications), stating the dates to which the assessments,
common charges and other charges payable under the Mortgaged Condominium
Property Documents have been paid and stating whether to the certifying party's
and the Condominium Mortgage Borrower's knowledge is in compliance with the
Mortgaged Condominium Property Documents, or, if not, specifying each default or
failure of compliance of
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which the certifying party has knowledge. The Borrowers will, promptly upon
receipt thereof by Condominium Mortgage Borrower, furnish Lender with a copy of
all notices and statements, however characterized, issued by the Board of
Managers or relating to the Mortgaged Condominium Property Documents including
without limitation, financial statements and projected budgets.
SECTION 5.27 LENDER'S EXPENSES. The Borrowers shall pay, on demand by
Lender, all reasonable out-of-pocket expenses, charges, costs and fees
(including reasonable attorneys' fees and expenses) in connection with the
negotiation, documentation, closing, administration, servicing, enforcement
interpretation, and collection of the Loan and the Loan Documents, and in the
preservation and protection of Lender's rights hereunder and thereunder. Without
limitation the Borrowers shall pay all costs and expenses, including reasonable
attorneys' fees, incurred by Lender in any case or proceeding under the
Bankruptcy Code (or any law succeeding or replacing any of the same). At the
Closing, Lender is authorized to pay directly from the proceeds of the Loan any
or all of the foregoing expenses then or theretofore incurred and approved by
the Borrowers.
SECTION 5.28 DISTRIBUTIONS. During the continuance of any Event of Default,
and at any time that a Cash Trap Event is in effect, the Borrowers shall not
make any distributions of cash or other property to any Borrower Party, or make
any payments in lieu thereof, without Lender's prior written approval, which may
be granted or withheld in Lender's sole discretion.
SECTION 5.29 COMPLETION OF REQUIRED CAPITAL IMPROVEMENTS. The Borrowers
shall commence and shall cause the Mortgage Borrowers to commence the Required
Capital Improvements promptly following the Closing and to complete the
Required Capital Improvements in accordance with Section 6.5 of the Mortgage
Loan Agreement and, with respect to the Jekyll Island Property, the Jekyll
Island Required Capital Improvements in accordance with Section 6.4(B) of this
Loan Agreement.
SECTION 5.30 COMPLIANCE WITH PLAN OF REORGANIZATION. The Borrowers shall
comply, and shall cause all other parties under the control of Borrower,
Guarantor or any Affiliates thereof to comply, in all material respects with the
Plan of Reorganization.
SECTION 5.31 CANCELLATION OF INDEBTEDNESS; SETTLEMENT OF CLAIMS. Unless
otherwise specifically provided herein to the contrary, no Borrower shall
cancel any indebtedness from any Person owing to any Borrower, or settle any
claims without Lender's prior written consent which shall not be unreasonably
withheld.
SECTION 5.32 MODIFICATION OF MORTGAGE DOCUMENTS. The Borrowers shall not
consent to, nor permit the Mortgage Borrowers to agree to, any material
amendment, modification, waiver or restatement of any of the Mortgage Loan
Documents without Lender's prior written consent, which will not be unreasonably
withheld.
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ARTICLE VI
RESERVES
SECTION 6.1 SECURITY INTEREST IN RESERVES; OTHER MATTERS PERTAINING TO
RESERVES.
(A) The Borrowers hereby pledge, assign and grant to Lender a
security interest in and to all of the Borrowers' right, title and interest in
and to the Account Collateral, including the Reserves, as security for payment
and performance of all of the Obligations hereunder and under the Note and the
other Loan Documents, subject, in each case to the interests of the Mortgage
Lender, if any, in the Account Collateral. The Reserves constitute Account
Collateral and are subject to the security interest in favor of Lender created
herein and all provisions of this Loan Agreement and the other Loan Documents
pertaining to Account Collateral.
(B) In addition to the rights and remedies provided in Article VII
and elsewhere herein, upon the occurrence and during the continuance of any
Event of Default, Lender shall have all rights and remedies pertaining to the
Reserves as are provided for in any of the Loan Documents or under any
applicable law. Without limiting the foregoing, upon and at all times after the
occurrence and during the continuance of an Event of Default, Lender in its sole
and absolute discretion, may use the Reserves (or any portion thereof) for any
purpose, including but not limited to any combination of the following: (i)
payment of any of the Obligations including the Prepayment Consideration (if
any) applicable upon such payment in such order as Lender may determine in its
sole discretion; provided, however, that such application of funds shall not
cure or be deemed to cure any default; (ii) reimbursement of Lender for any
actual losses or expenses (including, without limitation, reasonable legal fees)
suffered or incurred as a result of such Event of Default; (iii) payment for the
work or obligation for which such Reserves were reserved or were required to be
reserved; and (iv) application of the Reserves in connection with the exercise
of any and all rights and remedies available to Lender at law or in equity or
under this Loan Agreement or pursuant to any of the other Loan Documents.
Nothing contained in this Loan Agreement shall obligate Lender to apply all or
any portion of the funds contained in the Reserves during the continuance of an
Event of Default to payment of the Loan or in any specific order of priority.
SECTION 6.2 FUNDS DEPOSITED WITH LENDER/JEKYLL ISLAND RESERVES. (A) Except
only as expressly provided otherwise herein, all funds of the Borrowers which
are deposited with Lock Box Account Bank as Reserves hereunder shall be held by
Lock Box Account Bank in one or more Permitted Investments, such Permitted
Investments, prior to an Event of Default, to be as directed by Borrower. All
interest which accrues on the Reserves shall be taxable to the Borrowers and
shall be added to and disbursed in the same manner and under the same conditions
as the principal sum on which said interest accrued. Additional provisions
pertaining to investments are set forth in Article VII. After repayment of all
of the Obligations, all funds held as Reserves will be promptly returned to the
Borrowers.
(B) The Borrowers shall cause the Mortgage Borrowers to
deposit with Mortgage Lender the amounts necessary to fund each of the Reserves
as set forth in the Mortgage Loan Agreement and the Mortgage Loan Cash
Management Agreement. The Borrowers shall deposit with Lender the amounts
necessary to fund each of the Jekyll Island Reserves as set forth below.
Deposits into the Jekyll Island Reserves at Closing may occur by
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deduction from the amount of the Loan that otherwise would be disbursed to the
Borrowers, followed by deposit of the same into the applicable Sub-Account or
Account of the Jekyll Island Lock Box Account in accordance with the Jekyll
Island Cash Management Agreement on the Closing Date. Notwithstanding such
deductions, the Loan shall be deemed for all purposes to be fully disbursed at
Closing.
(C) JEKYLL ISLAND IMPOSITIONS AND INSURANCE RESERVE. On
the Closing Date, the Borrowers shall deposit with Lock Box Account Bank
$96,310.32 and, pursuant to the Jekyll Island Cash Management Agreement, the
Borrowers shall deposit monthly, on each Payment Date commencing on the Payment
Date in December 2002, 1/12th of the annual charges (as reasonably estimated by
Lender) for all Impositions and all insurance premiums (other than for D&O
Insurance) payable with respect to the Jekyll Island Property hereunder (said
funds, together with any interest thereon and additions thereto, the "JEKYLL
ISLAND IMPOSITIONS AND INSURANCE RESERVE"). The initial amount of the monthly
deposit to be made to the Jekyll Island Impositions and Insurance Reserve from
and after the date hereof is $12,518. The Borrowers shall also deposit with Lock
Box Account Bank within ten (10) Business Days of the written demand by Lender,
to be added to and included within such reserve, a sum of money which Lender
reasonably estimates, together with such monthly deposits, will be sufficient to
make the payment of each such charge at least ten (10) Business Days prior to
the date initially due. The Borrowers shall provide Lender with bills and all
other documents necessary for the payment of the foregoing charges at least
thirty (30) days prior to the date on which each payment shall first become
subject to penalty or interest if not paid. So long as (i) no Event of Default
has occurred and is continuing, (ii) the Borrowers have provided Lender with the
foregoing bills and other documents in a timely manner, and (iii) sufficient
funds are held by Lender for the payment of the Impositions and insurance
premiums relating to the Jekyll Island Property, as applicable, Lender shall pay
said items or disburse to the Borrowers from such Reserve an amount sufficient
to pay said items. Interest shall accrue in favor of the Borrowers on funds in
the Jekyll Island Impositions and Insurance Reserve. In addition to (and not in
lieu of) the aforementioned reserves, at Closing, the Borrowers shall deposit
with Lock Box Account Bank the Jekyll Island Supplemental Insurance Reserve
Payment to be held in the Impositions and Insurance Reserve. Lender shall be
under no obligation to cause any portion of the Jekyll Island Supplemental
Insurance Reserve Payment to be released to the Borrowers for the payment of any
Impositions. Notwithstanding the foregoing to the contrary, provided no Event of
Default has occurred and is then continuing, Lender shall cause the remainder,
if any, of the Jekyll Island Supplemental Insurance Reserve Payment to be
disbursed to the Borrowers within five (5) Business Days of the delivery by the
Borrowers or the Mortgage Loan Borrowers to Lender of each of the Insurance
Policies required pursuant to the terms of Section 5.4 hereof providing coverage
for a period of one (1) year, together with evidence of the payment in full of
the annual premiums payable for such Insurance Policies.
SECTION 6.3 (A) FF&E RESERVE. Funds held in the FF&E Reserve may be
withdrawn by the Borrowers or the Mortgage Borrowers, subject in all instances
to the terms of the Mortgage Loan Cash Management Agreement, only in accordance
with the approved CapEx/FF&E Budget relating to the Properties (excluding the
Jekyll Island Property). Upon and at all times after the occurrence and during
the continuance of an Event of Default, no draws will be permitted from the FF&E
Reserve other than for normal repairs, replacements, maintenance expenses, and
otherwise in accordance with the terms of the Management Agreement, subject, in
each instance,
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to Manager's compliance with the FF&E reporting requirements set forth in
Section 5.1(A)(v)(e).
(B) JEKYLL ISLAND FF&E RESERVE. On or prior to the
Closing Date, Lender or Servicer on behalf of Lender shall establish and
maintain with the Lock Box Account Bank an account, for the purpose of creating
a reserve for replacements of the furniture, fixtures and equipment at or in, or
used in connection with, the Jekyll Island Property (the "REPLACEMENTS") in
accordance with the applicable CapEx/FF&E Budget approved by Lender (said funds,
together with any interest thereon and additions thereto, the "JEKYLL ISLAND
FF&E RESERVE") which account shall be an Eligible Account entitled "Jekyll
Island FF&E Reserve Account for the benefit Merrill Lynch Mortgage Lending,
Inc., as secured party" and shall be under the sole dominion and control of
Lender, subject to the terms of the Jekyll Island Cash Management Agreement.
Pursuant to the Jekyll Island Cash Management Agreement, the Borrowers shall
deposit with Lock Box Account Bank at the Closing the sum of $6,540.91 and
thereafter monthly, on each Payment Date commencing with the Payment Date in
December 2002, an amount equal to 4.0% of the Operating Revenues generated from
the Jekyll Island Property for the prior calendar month (such amount, the
"JEKYLL ISLAND MONTHLY FF&E PAYMENT"). Funds held in the Jekyll Island FF&E
Reserve may be withdrawn by the Borrowers, subject in all instances to the terms
of the Jekyll Island Cash Management Agreement, only in accordance with the
approved CapEx/FF&E Budget, and no funds held in the Jekyll Island FF&E Reserve
shall be used in connection with the Jekyll Island Required Capital
Improvements. Upon and at all times after the occurrence and during the
continuance of an Event of Default, no draws will be permitted from the Jekyll
Island FF&E Reserve other than for normal repairs, replacements, maintenance
expenses, and otherwise in accordance with the terms of the Jekyll Island Cash
Management Agreement, subject, in each instance, to Manager's compliance with
the FF&E reporting requirements set forth in Section 5.1 (A)(v)(d).
SECTION 6.4 (A) CAPITAL IMPROVEMENT RESERVE; REQUIRED CAPITAL
IMPROVEMENTS. The Borrowers shall cause the Mortgage Borrowers to promptly
commence and diligently prosecute to completion the Required Capital
Improvements within the time periods for each Required Capital Improvement set
forth on EXHIBIT H to the Mortgage Loan Agreement. Funds held in the Capital
Improvement Reserve shall be disbursed only in accordance with Section 6.7 of
the Mortgage Loan Agreement.
(B) JEKYLL ISLAND CAPITAL IMPROVEMENT RESERVE. At
Closing, the Borrowers shall reserve from the proceeds of the Loan and shall
deposit with Lock Box Account Bank $3,125.00 (said funds, together with any
interest thereon, the "JEKYLL ISLAND CAPITAL IMPROVEMENT RESERVE"), which funds
shall be made available to the Borrowers solely for payment of certain Capital
Improvements required to be made to the Jekyll Island Property and designated as
"Required Capital Improvements" on the Capital Improvement Plan attached hereto
as EXHIBIT H (the "JEKYLL ISLAND REQUIRED CAPITAL IMPROVEMENTS") and shall not
be used by the Borrowers for purposes for which any other Reserve is established
or for any other purpose other than completion of the Jekyll Island Required
Capital Improvements. The Borrowers shall promptly commence and diligently
prosecute to completion, subject to Force Majeure, the Jekyll Island Required
Capital Improvements within the time periods for each Jekyll Island Required
Capital Improvement set forth on EXHIBIT H. Funds held in the Jekyll Island
Capital Improvement Reserve shall be disbursed in accordance with Section 6.6.
Subject
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to the foregoing conditions, the Borrowers shall be entitled to draw any
remaining balance in the Jekyll Island Capital Improvement Reserve when all
Jekyll Island Required Capital Improvements are complete, and paid for, in
accordance with the terms hereof.
SECTION 6.5 HAZARDOUS MATERIALS REMEDIATION RESERVE. The funds contained
in the Hazardous Materials Remediation Reserve shall be utilized by the
Borrowers and the Mortgage Borrowers solely for performance of the Environmental
Work in accordance with the Environmental Reports, and shall not be used by the
Borrowers and the Mortgage Borrowers for purposes for which any other Reserve is
established. Subject to the Mortgage Borrowers' satisfaction of the applicable
conditions of Section 6.7 of the Mortgage Loan Agreement, the Borrowers and the
Mortgage Borrowers shall be entitled to draw upon the Hazardous Materials
Remediation Reserve to pay for costs that have been incurred by the Borrowers,
or the Mortgage Borrowers, for such Environmental Work, provided that the
Borrowers deliver to Lender such evidence as may be reasonably satisfactory to
Lender that, after payment of such draw, the funds remaining in the Hazardous
Materials Remediation Reserve shall be sufficient to pay for the remainder of
such Environmental Work. Subject to the foregoing conditions, the Borrowers or
the Mortgage Borrowers shall be entitled to draw any remaining balance in the
Hazardous Materials Remediation Reserve when all such Environmental Work is
complete, and is paid for, to Lender's reasonable satisfaction.
SECTION 6.6 CONDITIONS TO DISBURSEMENTS FROM HAZARDOUS MATERIALS
REMEDIATION RESERVE, CAPITAL IMPROVEMENT RESERVE AND THE JEKYLL ISLAND CAPITAL
IMPROVEMENT RESERVE; PERFORMANCE OF WORK.
(A) Lender reserves the right, at its option and as a condition to
any disbursement from a Work Reserve, to approve (which shall not be
unreasonably withheld, delayed or conditioned) (i) all drawings and plans and
specifications, if any, for any Work which require aggregate payments in amounts
exceeding the greater of (x) five percent (5%) of the Aggregate Allocated Loan
Amount with respect to the applicable Property or (y) $250,000 and (ii) all
contracts and work orders with materialmen, mechanics, suppliers,
subcontractors, contractors and other parties providing labor or materials in
connection with any Work which require aggregate payments in amounts exceeding
the greater of (x) five percent (5%) of the Aggregate Allocated Loan Amount with
respect to the applicable Property or (y) $250,000. Upon Lender's reasonable
request, the Borrowers shall cause the Mortgage Borrowers to assign, or cause to
be assigned, (to the extent assignable) any drawings, plans and specifications,
contracts or subcontracts to Lender. Drawings, plans and specifications,
contracts and work orders approved by Lender shall not be changed in any
material respect without Lender's prior written consent, which shall not be
unreasonably withheld, delayed or conditioned. The Borrowers shall have
delivered a certificate to Lender from an Architect certifying that the Work has
been completed in a good and workmanlike manner in accordance with all
applicable laws for any item in excess of the greater of (x) five percent (5%)
of the Aggregate Allocated Loan Amount with respect to the applicable Property
or (y) $250,000. Lender may retain its own architect or engineer ("LENDER'S
CONSULTANT") to review any plans and specifications for any item in excess of
the greater of (x) five percent (5%) of the Aggregate Allocated Loan Amount with
respect to the applicable Property or (y) $250,000, and to periodically inspect
any Work, in each case at the Borrowers' sole cost and expense.
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(B) Funds in the Jekyll Island Capital Replacement Improvement
Reserves shall be disbursed in the same manner as the disbursements from
reserves pursuant to Section 6.7 of the Mortgage Loan Agreement (which Section
is incorporated herein by reference) and as if the Jekyll Island Borrowers were
"Mortgage Borrowers", the Jekyll Island Capital Improvement Reserves were "Work
Reserves" and the Lender is the "Lender" under the Mortgage Loan Agreement.
(C) PERFORMANCE OF WORK. If Lender determines in its reasonable
discretion that any Work is not being performed in a workmanlike or timely
manner or that any Work has not been completed in a workmanlike manner, Lender
shall have the option to withhold disbursement for such unsatisfactory work and
so notify the Borrowers with reasonable detail regarding the basis for Lender's
dissatisfaction and, after the expiration of forty-five (45) days from the
giving of such notice by Lender to the Borrowers of such unsatisfactory work
without the cure thereof (or, if such unsatisfactory work is susceptible of a
cure but cannot reasonably be cured within said forty-five (45) day period and
provided that the Borrowers shall have commenced to cure such unsatisfactory
work within said forty-five (45) day period and thereafter diligently and
expeditiously proceeds to cure the same, after the expiration of such longer
period as is reasonably necessary for the Borrowers in the exercise of due
diligence to cure such unsatisfactory work, up to a maximum of an additional
sixty (60) days subject to Force Majeure, without the cure thereof), Lender may
proceed under existing contracts or contract with third parties to complete such
Work, as the case may be, and apply amounts contained in the applicable Work
Reserve toward the labor and materials necessary to complete the same, without
providing any additional prior notice to the Borrowers, and exercise any and all
other remedies available to Lender upon and during the continuance of an Event
of Default hereunder.
In order to facilitate Lender's completion or making of any
Work pursuant to this Section 6.7(C), the Borrowers shall cause the Mortgage
Borrowers to grant Lender the right to enter onto each Property during normal
business hours after the expiration of the notice specified above and perform,
subject to the rights of tenants, any and all work and labor necessary to
complete the applicable Work and/or employ watchmen to protect the Property from
damage. All sums so expended by Lender shall be deemed to have been advanced
under the Loan to the Borrowers and secured by the Pledge Agreement. For this
purpose, the Borrowers constitute and appoint Lender their true and lawful
attorney-in-fact with full power of substitution to complete or undertake the
applicable Work in the name of the Borrowers pursuant to Section 6.7(B)(ii)
above. Such power of attorney shall be deemed to be a power coupled with an
interest and cannot be revoked. Upon the occurrence and during the continuance
of an Event of Default, the Borrowers empower said attorney-in-fact as follows:
(i) to use any funds in the applicable Work Reserve for the purpose of making or
completing any Work; (ii) to make such additions, changes and corrections to any
Work as shall be reasonably necessary or desirable to complete the same; (iii)
to employ such contractors, subcontractors, agents, architects and inspectors as
shall be required for such purposes; (iv) to pay, settle or compromise all
existing bills and claims which are or may become Liens against any Property, or
as may be necessary or desirable for the completion of any Work, or for
clearance of title; (v) to execute all applications and certificates in the name
of the applicable Mortgage Borrower which may be required by any of the contract
documents; (vi) in its reasonable discretion, to prosecute and defend all
actions or proceedings in connection with any Property or the rehabilitation and
repair of such Property; and (vii) to do any
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and every act which the Borrowers might do in their own behalf to fulfill the
terms of this Loan Agreement.
Nothing in this Section shall: (i) make Lender responsible for
making or completing any Work; (ii) require Lender to expend funds in addition
to the amounts on deposit in the applicable Work Reserve to make or complete any
Work; (iii) obligate Lender to proceed with any Work; or (iv) obligate Lender to
demand from the Borrowers additional sums to make or complete any Work.
The Borrowers shall and shall cause the Mortgage Borrowers to
permit Lender and Lender's agents and representatives (including, without
limitation, Lender's engineer, architect or inspector) or third parties
performing any Work pursuant to this Section 6.7 to enter onto any Property
during normal business hours upon reasonable notice (subject to the rights of
tenants under their Leases) to inspect the progress of any Work and all
materials being used in connection therewith, to examine all plans and shop
drawings relating thereto which are or may be kept at any Property, and to
complete any Work made pursuant to Section 6.7(B)(ii). The Borrowers shall, and
shall cause the Mortgage Borrowers to, use commercially reasonable efforts to
cause all contractors and subcontractors to cooperate with Lender or Lender's
representatives or such other persons described above in connection with
inspections described in this Section 6.7(B) or the completion of the Work
pursuant to this Section 6.7(B).
(D) INDEMNIFICATION. The Borrowers shall indemnify Lender and hold
Lender harmless from and against any and all actions, suits, claims, demands,
liabilities, losses, damages, obligations, out-of-pocket costs and expenses
(including, without limitation, litigation costs and reasonable attorneys fees
and expenses) arising from or in any way connected with the performance of the
Work, except to the extent caused by the bad faith, willful misconduct or gross
negligence of Lender. The Borrowers shall assign, and shall cause to be
assigned, to Lender all rights and claims the Mortgage Borrowers or the Jekyll
Island Borrowers may have against all Persons supplying labor or materials in
connection with the Work; provided, however, that Lender may not pursue any such
right or claim or pursue any other action with respect to such rights and claims
unless an Event of Default has occurred and remains uncured.
SECTION 6.7 CASH TRAP RESERVE. (i) If, at any time prior to the repayment
of the Obligations (as defined in the Mortgage Loan Agreement) in full, a Cash
Trap Event shall occur, then, from and after the occurrence of such Cash Trap
Event and for so long as such Cash Trap Event continues to exist, all Excess
Cash Flow (except as otherwise expressly provided below) shall be deposited with
Mortgage Lender (or its Servicer or agent) and held by Mortgage Lender in
accordance with the Mortgage Loan Cash Management Agreement or, if not so held
by Mortgage Lender, shall be deposited with Lender and held in the Lock Box
Account and, in each case disbursed in accordance with the terms of the Mortgage
Loan Cash Management Agreement.
SECTION 6.8 SUBSTITUTE CASH MANAGEMENT AGREEMENT. If the Mortgage Loan
shall have been satisfied prior to the payment in full of the Loan, the
Borrowers shall, and shall cause the Mortgage Borrowers to enter into a
substitute Cash Management Agreement and related lockbox agreements and pledge
agreements with substantially the same terms as the agreements entered into as
of the date hereof in connection with the Mortgage Loan (including, the
provisions in the
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Mortgage Loan Agreement relating to all Reserves and Collateral Accounts,
Section 5.4, Article VI and Article VII of the Mortgage Loan Agreement) within
five (5) days after the satisfaction of such Mortgage Loan, all of which
agreements shall be for the benefit of Lender rather than Mortgage Lender. Such
substitute agreements shall provide that all Receipts shall be deposited
directly into the Deposit Account for disbursement in accordance with the terms
of such substitute Cash Management Agreement and this Agreement. Notwithstanding
the foregoing, the substitute Cash Management Agreement shall provide that the
aggregate amortization payments that were being made prior to the satisfaction
of the Mortgage Loan shall continue to be paid and 100% of such payments shall
be distributed to Lender.
ARTICLE VII
LOCK BOX; CASH MANAGEMENT
SECTION 7.1 ESTABLISHMENT OF DEPOSIT ACCOUNT AND LOCK BOX ACCOUNT.
(A) (i) DEPOSIT ACCOUNT. On or before the Closing Date, one
or more deposit accounts shall be established at the Borrowers' sole cost and
expense in the name of Lender, as secured party hereunder (said accounts, and
any accounts replacing same in accordance with this Loan Agreement and the
Deposit Account Agreement, collectively, the "DEPOSIT ACCOUNT") with one or more
financial institutions reasonably approved by Lender (collectively, the "DEPOSIT
BANK"), pursuant to one or more agreements (collectively, the "DEPOSIT ACCOUNT
AGREEMENT") substantially similar to Lender's form or otherwise in form and
substance reasonably acceptable to Lender, executed and delivered by the
Borrowers and the Deposit Bank. The Deposit Account shall be under the sole
dominion and control of Lender (which dominion and control may be exercised by
Servicer). Among other things, the Deposit Account Agreement shall provide that
the Borrowers shall have no access to or control over the Deposit Account, that
all available funds on deposit in the Deposit Account shall be transferred by
wire transfer (or transfer via the ACH System) on each Business Day by the
Deposit Bank into the Lock Box Account, for application in accordance with the
Cash Management Agreement. The Deposit Bank and the Lock Box Account Bank shall
be directed to deliver to the Borrowers copies of bank statements and other
information made available by the Deposit Bank and the Lock Box Account Bank
concerning the Deposit Account and the Lock Box Account. Notwithstanding the
forgoing to the contrary, the requirement to establish the Deposit Accounts
pursuant to this Section shall be deemed to be satisfied to the extent that, and
for so long as, one or more accounts meeting the requirements for the Deposit
Accounts set forth above are established and maintained pursuant to the terms of
the Mortgage Loan Documents for the benefit of Mortgage Lender.
(ii) Upon establishing the Jekyll Island Deposit Account,
(1) the Borrowers shall cause any and all Operating Revenues from the Jekyll
Island Property, including distributions or other payments made directly or
indirectly to the Jekyll Island Borrowers, Manager, or any of their respective
Affiliates, from any Beverage Company, to be deposited promptly into the Jekyll
Island Deposit Account and in no event later than two (2) Business Days after
the same are paid to or for the benefit of the Borrowers, and (2) the Borrowers
shall each obtain an agreement (each, a "Credit Card Receivables Payment
Direction Letter") from each of the Persons paying or disbursing credit card
receivables (the "Credit Card Companies"), substantially similar to Lender's
form or otherwise in form and substance reasonably acceptable
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to Lender, pursuant to which the Credit Card Companies agree to pay all credit
card receivables into the Jekyll Island Lock Box Account, and acknowledge and
agree that Lender shall have a first priority perfected security interest in
such credit card receivables. To the extent that the Borrowers or any Person on
the Borrowers' behalf holds any Receipts, whether in accordance with this Loan
Agreement or otherwise, the Borrowers shall be deemed to hold the same in trust
for Lender for the protection of the interests of Lender hereunder and under the
Loan Documents. The Borrowers represent and warrant that, as of the date hereof,
the only Credit Card Companies paying or disbursing credit card receivables with
respect to the Jekyll Island Property are Chase Merchant Services, American
Express, Discover Financial Service, Diners Club, JCB (Japanese Credit Bureau),
and, if the Jekyll Island Borrowers shall hereafter enter into an agreement
with any other Credit Card Company pursuant to which such Credit Card Company
shall pay credit card receivables with respect to the Jekyll Island Property,
such Jekyll Island Borrowers shall promptly obtain a Credit Card Receivables
Payment Direction Letter in form and substance reasonably acceptable to Lender
from such Credit Card Company.
(iii) The Borrowers shall pay all reasonable out-of-pocket
costs and expenses incurred by Lender in connection with the transactions and
other matters contemplated by this Section 7.1, including but not limited to,
Lender's reasonable attorneys fees and expenses, and all reasonable fees and
expenses of the Deposit Bank and the Lock Box Account Bank, including without
limitation their reasonable attorneys fees and expenses.
(B) LOCK BOX ACCOUNTS. On or before the Closing Date pursuant to
the terms of the Cash Management Agreement and the Jekyll Island Cash Management
Agreement, as applicable, Eligible Accounts shall be established in the name of
Lender, as secured party hereunder, to serve as (i) the "Lock Box Account" (said
account, and any account replacing the same in accordance with this Loan
Agreement and the Cash Management Agreement, the "LOCK BOX ACCOUNT"); and (ii)
the "Jekyll Island Lock Box Account" (said account, and any account replacing
the same in accordance with this Loan Agreement and the Jekyll Island Cash
Management Agreement, the "JEKYLL ISLAND LOCK BOX ACCOUNT"), and the depositary
institution in which the Lock Box Account and the Jekyll Island Lock Box Account
are maintained, the "LOCK BOX ACCOUNT BANK"). The Lock Box Account and the
Jekyll Island Lock Box Account shall be under the sole dominion and control of
Lender (which dominion and control may be exercised by Servicer); and except as
expressly provided hereunder and/or in the Cash Management Agreement and/or in
the Jekyll Island Cash Management Agreement, the Borrowers shall not have any
right to control or direct the investment or payment of funds therein during the
continuance of an Event of Default. Lender may elect to change any financial
institution in which the Lock Box Account and the Jekyll Island Lock Box Account
shall be maintained if such institution is no longer an Eligible Bank, upon not
less than five (5) Business Days' notice to the Borrowers. The Lock Box Account
and the Jekyll Island Lock Box Account shall be deemed to contain such
sub-accounts as Lender may designate ("SUB-ACCOUNTS"), which may be maintained
as separate ledger accounts and need not be separate Eligible Accounts. The
Sub-Accounts shall include the following as more particularly described in the
Cash Management Agreement and the Jekyll Island Cash Management Agreement.
(i) "DEBT SERVICE SUB-ACCOUNT" shall mean the Sub-Account
of the Lock Box Account established for the purposes of reserving for payments
of principal and interest and
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other amounts due under the Loan Documents (but without duplication of amounts
covered under item (ii) below); and
(ii) "RESERVE SUB-ACCOUNTS" shall mean the Sub-Accounts of
the Lock Box Account and of the Jekyll Island Lock Box Account established for
the purpose of holding funds in the Reserves including: (a) the "Imposition and
Insurance Reserve Sub-Account", (b) the "Hazardous Materials Remediation Reserve
Sub-Account" (c) the "Capital Improvement Reserve Sub-Account"; (d) the "Cash
Trap Reserve Sub-Account", (e) the "Jekyll Island Imposition and Insurance
Reserve Sub-Account"; and (f) the "Jekyll Island Capital Improvement Reserve
Sub-Account".
SECTION 7.2 APPLICATION OF FUNDS IN LOCK BOX ACCOUNT. Funds in the Lock
Box Account shall be allocated to the Sub-Accounts or the other Accounts, if
any, (or paid, as the case may be) in accordance with the Cash Management
Agreement, and funds in the Jekyll Island Lock Box Account shall be allocated to
Sub Accounts or the other Accounts, if any (or paid, as the case may be) in
accordance with the Jekyll Island Cash Management Agreement.
SECTION 7.3 APPLICATION OF FUNDS AFTER EVENT OF DEFAULT. If any Event of
Default shall occur and be continuing, then notwithstanding anything to the
contrary in this Section or elsewhere, Lender shall have all rights and remedies
available under applicable law and under the Loan Documents. Without limitation
of the foregoing, for so long as an Event of Default exists, Lender may apply
any and all funds in the Deposit Account, the Lock Box Account, the Jekyll
Island Lock Box Account, and/or any Sub-Accounts against all or any portion of
any of the Obligations, in any order.
SECTION 7.4 MORTGAGE LOAN LOCK BOX. If the lock box and cash management
arrangements under the Mortgage Loan Documents in effect as of the Closing Date
are terminated, or if the Mortgage Loan shall be repaid in full, while any
portion of the Obligations remain outstanding, the Borrowers will immediately
cause the Mortgage Borrowers to comply with the requirements of Section 6.8 and
Section 7.1 hereof. In addition, the Borrowers shall cause the Mortgage
Borrowers to direct the Mortgage Lender to release all funds held in the
Mortgage Loan Lock Box or any of the reserves established pursuant to the
Mortgage Loan Cash Management Agreement, or the Mortgage Loan Documents, to be
deposited with Lock Box Account Bank to be held in the applicable Reserves in
accordance with the terms hereof and the Cash Management Agreement.
ARTICLE VIII
DEFAULT, RIGHTS AND REMEDIES
SECTION 8.1 EVENT OF DEFAULT.
"EVENT OF DEFAULT" shall mean the occurrence or existence of any one or
more of the following:
(A) SCHEDULED PAYMENTS. Failure of the Borrowers to pay any
scheduled payment amount when the same is due under this Loan Agreement, the
Note, or any other Loan Documents (whether such amount is interest, principal,
Reserves, or otherwise), or to pay for any Insurance Policies required pursuant
to Section 5.4 hereof; or
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(B) OTHER PAYMENTS. Failure of the Borrowers to pay any amount
from time to time owing under this Loan Agreement, the Note, or any other Loan
Documents (other than amounts subject to the preceding paragraph) within ten
(10) days after written notice to the Borrowers; or
(C) BREACH OF REPORTING PROVISIONS. Failure of any Borrower Party
to perform or comply with any term or condition contained in Section 5.1 which
continues for a period of ten (10) days after written notice to the Borrowers
(except that no notice or grace period shall be granted for any breach under
Section 5.1(H)); or
(D) BREACH OF PROVISIONS REGARDING INSURANCE, TRANSFERS, LIENS,
SINGLE PURPOSE. Breach or default under any of Section 5.4, 5.12, 5.17, 5.18,
5.19, 5.20, Article IX, or Section 11.1 (provided that in the case of an
involuntary Lien under Section 5.18 or 11.1, the same shall not constitute an
Event of Default if within thirty (30) days after the filing thereof, the
Borrowers shall either (i) cause the same to be removed of record, or (ii)
provide to Lender security for the same in an amount and pursuant to terms both
satisfactory to Lender in Lender's sole discretion; provided however that if (x)
the default under Section 5.18 or 11.1 is capable of cure but with diligence
cannot be cured within such period of thirty (30) days, (y) the Borrowers (or
the applicable Borrower Party) has commenced the cure within such thirty (30)
day period and has pursued such cure diligently, and (z) each Borrower delivers
to Lender promptly following written demand (which demand may be made from time
to time by Lender) evidence reasonably satisfactory to Lender of the foregoing,
then such period shall be extended for so long as is reasonably necessary for
the Borrowers in the exercise of due diligence to cure such default, but in no
event beyond ninety (90) days after the original notice of default)); or
(E) BREACH OF WARRANTY. Any representation, warranty,
certification or other statement made by any Borrower, Guarantor or any
Affiliate thereof in any Loan Document or in any statement or certificate at any
time given in writing pursuant to or in connection with any Loan Document is
false in any material respect as of the date made; or
(F) OTHER DEFAULTS UNDER LOAN DOCUMENTS. A default shall occur in
the performance of or compliance with any term contained in this Loan Agreement
or the other Loan Documents and such default is not fully cured within thirty
(30) days after receipt by the Borrowers of written notice from Lender of such
default (other than occurrences described in other provisions of this Section
8.1 for which a different grace or cure period is specified or which constitute
immediate Events of Default); provided however that if (i) the default is
capable of cure but with diligence cannot be cured within such period of thirty
(30) days, (ii) the Borrowers (or the applicable Borrower Party) has commenced
the cure within such thirty (30) day period and has pursued such cure
diligently, and (iii) each Borrower delivers to Lender promptly following
written demand (which demand may be made from time to time by Lender) evidence
reasonably satisfactory to Lender of the foregoing, then such period shall be
extended for so long as is reasonably necessary for the Borrowers in the
exercise of due diligence to cure such default, but in no event beyond one
hundred and twenty (120) days after the original notice of default; or
(G) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (i) A
court enters a decree or order for relief with respect to any Borrower Party, in
an Involuntary Borrower Bankruptcy, which decree or order is not stayed or other
similar relief is not granted under any
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applicable federal or state law unless dismissed within ninety (90) days; (ii)
the occurrence and continuance of any of the following events for ninety (90)
days unless dismissed or discharged within such time: (x) an Involuntary
Borrower Bankruptcy is commenced, (y) a decree or order of a court for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over any Borrower Party or over all or a
substantial part of its property, is entered, or (z) an interim receiver,
trustee or other custodian is appointed without the consent of any Borrower
Party, for all or a substantial part of the property of such Person; or
(H) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. (i) An
order for relief is entered with respect to any Borrower Party, or any such
Person commences a voluntary case under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case or to the
conversion of an involuntary case to a voluntary case under any such law or
consents to the appointment of or taking possession by a receiver, trustee or
other custodian for any Borrower Party or for all or a substantial part of the
property of any Borrower Party; (ii) any Borrower Party makes any assignment for
the benefit of creditors; or (iii) the Board of Directors or other governing
body of any Borrower Party adopts any resolution or otherwise authorizes action
to approve any of the actions referred to in this subsection 8.1(H); or
(I) BANKRUPTCY INVOLVING OWNERSHIP INTERESTS OR PROPERTIES. Other
than as described in either of Subsections 8.1(G) or 8.1(H), all or any portion
of the Collateral becomes property of the estate or subject to the automatic
stay in any case or proceeding under the Bankruptcy Code or any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect (provided
that if the same occurs in the context of an involuntary proceedings, it shall
not constitute an Event of Default if it is dismissed or discharged within
ninety (90) days following its occurrence); or
(J) SOLVENCY. Any Borrower Party ceases to be solvent or admits in
writing its present or prospective inability to pay its debts as they become
due; or
(K) JUDGMENT AND ATTACHMENTS. Any lien, money judgment, writ or
warrant of attachment, or similar process is entered or filed against any
Borrower Party or any of its assets, which claim is not fully covered by
insurance (other than with respect to the amount of commercially reasonable
deductibles permitted hereunder), would have a Material Adverse Effect and
remains undischarged, unvacated, unbonded or unstayed for a period of forty-five
(45) days; or
(L) INJUNCTION. The Borrowers are enjoined, restrained or in any
way prevented by the order of any court or any administrative or regulatory
agency from conducting all or any material part of their business and such order
continues for more than thirty (30) days; or
(M) INVALIDITY OF LOAN DOCUMENTS. This Loan Agreement, any Pledge
Agreement or any of the Loan Documents for any reason ceases to be in full force
and effect or ceases to be a legally valid, binding and enforceable obligation
of the Borrowers or any Lien securing the Obligations shall, in whole or in
part, cease to be a perfected first priority Lien, subject to the Permitted
Encumbrances (except in any of the foregoing cases in accordance with the terms
hereof or under any other Loan Document) and the Borrowers do not take all
actions requested
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by Lender to correct such defect within ten (10) days after the written request
by Lender to take such action, or any Person under the control of the Borrowers
or Guarantor who is a party thereto, other than Lender, denies that it has any
further liability (as distinguished from denial of the existence of a Default or
Event of Default) under any Loan Documents to which it is party, or gives notice
to such effect; or
(N) CROSS-DEFAULT WITH OTHER LOAN DOCUMENTS. A default beyond any
applicable grace periods shall occur under any of the other Loan Documents; or
(O) DEFAULT UNDER MANAGEMENT AGREEMENTS OR FRANCHISE AGREEMENTS.
(i) An Uncured Franchise Default occurs; or (ii) any breach or default shall
occur in the material obligations of the Mortgage Borrowers under any of the
Management Agreements, and such breach or default either is of such a nature or
continues for such a period of time beyond applicable notice and cure periods,
if any, the Manager shall have the right to exercise material remedies as a
consequence thereof; or
(P) GROUND LEASE/MORTGAGED CONDOMINIUM PROPERTY. Any default by
any of the Mortgage Borrowers beyond any applicable grace period shall occur
under any Ground Lease or any Mortgaged Condominium Property Document or any
actual or attempted surrender, termination, modification or amendment of any
Ground Lease or any Mortgaged Condominium Property Document without Lender's
prior written consent;
(Q) MORTGAGE LOAN DOCUMENTS. Any "Event of Default" (as defined in
the Mortgage Loan Agreement) or any other default beyond any applicable notice
and grace period under the Mortgage Loan Documents shall occur, or
(R) PRE-PETITION TAX LIABILITIES. Any failure of the Borrowers or
the Mortgage Borrowers to pay the Pre-Petition Tax Liabilities as and when due
and payable.
If more than one of the foregoing paragraphs shall describe
the same condition or event, then Lender shall have the right to select which
paragraph or paragraphs shall apply. In any such case, Lender shall have the
right (but not the obligation) to designate the paragraph or paragraphs which
provide for non-written notice (or for no notice) or for a shorter time to cure
(or for no time to cure).
SECTION 8.2 ACCELERATION AND REMEDIES.
(A) Upon the occurrence and during the continuance of any Event of
Default described in any of Subsections 8.1(G), 8.1(H), or 8.1(I), the unpaid
principal amount of and accrued interest and fees on the Loan and all other
Obligations shall automatically become immediately due and payable, without
presentment, demand, protest, notice of intent to accelerate, notice of
acceleration or other requirements of any kind, all of which are hereby
expressly waived by each Borrower Party. Upon and at any time after the
occurrence of any other Event of Default, at the option of Lender, which may be
exercised without notice or demand to anyone, all or any portion of the Loan and
other Obligations shall immediately become due and payable.
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(B) Upon the occurrence and during the continuance of an Event of
Default, all or any one or more of the rights, powers, privileges and other
remedies available to Lender against the Borrowers under this Loan Agreement or
any of the other Loan Documents, or at law or in equity, may be exercised by
Lender at any time and from time to time, whether or not all or any of the
Obligations shall be declared due and payable, and whether or not Lender shall
have commenced any foreclosure proceeding or other action for the enforcement of
its rights and remedies under any of the Loan Documents with respect to the
Properties. Any such actions taken by Lender shall be cumulative and concurrent
and may be pursued independently, singly, successively, together or otherwise,
at such time and in such order as Lender may determine in its sole discretion,
to the fullest extent permitted by law, without impairing or otherwise affecting
the other rights and remedies of Lender permitted by law, equity or contract or
as set forth herein or in the other Loan Documents. Without limiting the
generality of the foregoing, if an Event of Default is continuing (i) to the
fullest extent permitted by law, Lender shall not be subject to any "one action"
or "election of remedies" law or rule, and (ii) all liens and other rights,
remedies or privileges provided to Lender shall remain in full force and effect
until Lender has exhausted all of its remedies against the Collateral and the
Pledge Agreement have been foreclosed, sold and/or otherwise realized upon in
satisfaction of the Obligations or the Obligations have been paid in full.
(C) Lender shall have the right from time to time to partially
foreclose upon the Collateral in any manner and for any amounts secured by the
Collateral then due and payable as determined by Lender in its sole discretion
including, without limitation, the following circumstances: (i) in the event the
Borrowers default beyond any applicable grace period in the payment of one or
more scheduled payments of principal and interest, Lender may foreclose upon the
Collateral to recover such delinquent payments, or (ii) in the event Lender
elects to accelerate less than the entire outstanding principal balance of the
Loan, Lender may foreclose upon the Collateral to recover so much of the
principal balance of the Loan as Lender may accelerate and such other sums
secured by the Collateral as Lender may elect. Notwithstanding one or more
partial foreclosures, the Collateral shall remain subject to the Pledge
Agreement to secure payment of sums secured by the Collateral and not previously
recovered.
(D) During the continuance of an Event of Default, Lender shall
have the right from time to time to sever the Note and the other Loan Documents
into one or more separate notes, mortgages and other security documents in such
denominations as Lender shall determine in its sole discretion for purposes of
evidencing and enforcing its rights and remedies provided hereunder. The
Borrowers shall execute and deliver to Lender from time to time, within ten (10)
days after the request of Lender, a severance agreement and such other documents
as Lender shall reasonably request in order to effect the severance described in
the preceding sentence, all in form and substance reasonably satisfactory to
Lender. The Borrowers hereby absolutely and irrevocably appoint Lender as their
true and lawful attorney, coupled with an interest, in their name and stead to
make and execute all documents reasonably necessary to effect the aforesaid
severance if the Borrowers fail to do so within ten (10) days of Lender's
written request, the Borrowers ratifying all that their said attorney shall do
by virtue thereof.
(E) Any amounts recovered from the Properties or any other
collateral for the Loan after an Event of Default may be applied by Lender
toward the payment of any interest and/or
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principal of the Loan and/or any other amounts due under the Loan Documents in
such order, priority and proportions as Lender in its sole discretion shall
determine.
(F) The rights, powers and remedies of Lender under this Loan
Agreement shall be cumulative and not exclusive of any other right, power or
remedy which Lender may have against the Borrowers pursuant to this Loan
Agreement or the other Loan Documents, or existing at law or in equity or
otherwise. Lender's rights, powers and remedies may be pursued singly,
concurrently or otherwise, at such time and in such order as Lender may
determine in Lender's sole discretion. No delay or omission to exercise any
remedy, right or power accruing upon an Event of Default shall impair any such
remedy, right or power or shall be construed as a waiver thereof, but any such
remedy, right or power may be exercised from time to time and as often as may be
deemed expedient. A waiver of one Default or Event of Default with respect to
the Borrowers shall not be construed to be a waiver of any subsequent Default or
Event of Default by the Borrowers or to impair any remedy, right or power
consequent thereon.
SECTION 8.3 PERFORMANCE BY LENDER.
(A) Upon the occurrence and during the continuance of an Event of
Default, if the Borrowers shall fail to perform, or cause to be performed, any
material covenant, duty or agreement contained in any of the Loan Documents
(subject to applicable notice and cure periods), Lender may perform or attempt
to perform such covenant, duty or agreement on behalf of the Borrowers including
making protective advances on behalf of any of the Borrowers, or, in its sole
discretion, causing the obligations of any of the Borrowers to be satisfied with
the proceeds of any Reserve. In such event, the Borrowers shall, at the request
of Lender, promptly pay to Lender, or reimburse, as applicable, any of the
Reserves, any actual amount reasonably expended or disbursed by Lender in such
performance or attempted performance, together with interest thereon at the
Default Rate (including reimbursement of any applicable Reserves), from the date
of such expenditure or disbursement, until paid. Any amounts advanced or
expended by Lender to perform or attempt to perform any such matter shall be
added to and included within the indebtedness evidenced by the applicable Note
and shall be secured by all of the Collateral securing the applicable Loan.
Notwithstanding the foregoing, it is expressly agreed that Lender shall not have
any liability or responsibility for the performance of any obligation of the
Borrowers under this Loan Agreement or any other Loan Document, and it is
further expressly agreed that no such performance by Lender shall cure any Event
of Default hereunder.
(B) The Borrowers, on behalf of the Mortgage Borrowers, hereby
agree that Lender shall have the right to cure defaults by the Mortgage
Borrowers under the Mortgage Loan Documents whenever, in Lender's reasonable
judgment (after taking into consideration all cure periods provided to Lender
under any intercreditor agreement with Mortgage Lender), the existence of such
default by the Mortgage Borrowers is reasonably likely to have a material
adverse affect on any Borrower, any Mortgage Borrower, the Collateral or any
Property. Lender shall endeavor, in good faith, to notify the Borrowers prior to
taking any such cure action, but shall have no liability to the Borrowers or the
Mortgage Borrowers for failing to do so. From and after the occurrence of a
default under the Mortgage Loan Documents, the Borrowers shall cooperate in all
commercially reasonable respects with, and shall cause the Mortgage Borrowers to
cooperate in all commercially reasonable respects with (and not to impede or
interfere with in any respect), Lender's efforts to cure (or cause the cure of)
all monetary and non-monetary
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defaults under the Mortgage Loan Documents, including, without limitation,
causing the payment, removal or bonding over of all Liens, claims or judgments,
or entering upon the Properties (or any portion thereof) to cure (or cause the
cure of) any non-monetary default under the Mortgage Loan Documents. In
addition, after the occurrence of a default under the Mortgage Loan Documents,
the Borrowers agree that they will cause the Mortgage Borrowers to coordinate
with Lender with respect to all communications (written or oral) with the
Mortgage Lender (or any person or entity servicing the Mortgage Loan).
(C) Any funds expended by or on behalf of Lender to effect a cure
of the Mortgage Loan as contemplated in this Section shall constitute protective
advances under the Loan. If Lender so elects to cure (or attempt to cure) any
default under the Mortgage Loan, the amount of such expenditures made by or on
behalf of Lender shall be added to the Obligations, shall accrue interest at the
Default Rate, and shall be secured by the Collateral.
(D) Lender may cease or suspend any and all performance required
of Lender under the Loan Documents upon and at any time after the occurrence and
during the continuance of any Event of Default.
SECTION 8.4 EVIDENCE OF COMPLIANCE. Promptly following request by Lender,
the Borrowers shall provide such documents and instruments as shall be
reasonably satisfactory to Lender to evidence compliance with any material
provision of the Loan Documents applicable to the Borrowers.
ARTICLE IX
SINGLE-PURPOSE, BANKRUPTCY-REMOTE REPRESENTATIONS,
WARRANTIES AND COVENANTS
SECTION 9.1 APPLICABLE TO ALL BORROWERS. The Borrowers hereby represent,
warrant and covenant as of the Closing Date and until such time as all
Obligations are paid in full, that absent express advance written waiver from
Lender, which may be withheld in Lender's sole discretion, that each Borrower:
(A) does not own and will not own any assets other than, in the
case of the Jekyll Island Borrowers, the Jekyll Island Property, and in the case
of the other Borrowers, the Collateral (including incidental personal property
necessary for the operation thereof and proceeds therefrom) or direct or
indirect ownership interests in the Borrowers, and such other wholly owned
subsidiaries of the Borrowers established solely for the purpose of holding
liquor licenses with respect to one or more of the Properties or such incidental
assets as are necessary to enable it to discharge its obligations with respect
to the Borrowers (the "OWNERSHIP INTERESTS");
(B) is not engaged and will not engage in any business, directly
or indirectly, other than the ownership, management and operation of the
Collateral, or the Ownership Interests;
(C) will not enter into any contract or agreement with any
partner, member, shareholder, trustee, beneficiary, principal or Affiliate of
any Borrower or Member except upon terms and conditions that are intrinsically
fair and substantially similar to those that would be available on an
arms-length basis with third parties other than such Affiliate;
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(D) has not incurred any debt that remains outstanding as of
Closing and will not incur any debt, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than (i) the Obligations and (ii)
Permitted Indebtedness;
(E) has not made any loans or advances to any Person that remains
outstanding as of Closing and will not make any loan or advances to any Person
(including any of its Affiliates), and has not acquired and will not acquire
obligations or securities of any of its Affiliates other than the other Borrower
Parties;
(F) is and reasonably expects to remain solvent and pay its own
liabilities, indebtedness, and obligations of any kind from its own separate
assets as the same shall become due other than the other Borrower Parties;
(G) has done or caused to be done and will do all things necessary
to preserve its existence, and will not, nor will any partner, member,
shareholder, trustee, beneficiary, or principal amend, modify or otherwise
change its partnership certificate, partnership agreement, articles of
incorporation, by-laws, articles of organization, operating agreement, or other
organizational documents in any manner with respect to the matters set forth in
this Article IX;
(H) shall continuously maintain its existence and be qualified to
do business in all states necessary to carry on its business;
(I) will conduct and operate its business as presently
contemplated with respect to the ownership of the Collateral;
(J) will maintain books and records and bank accounts (other than
bank accounts established hereunder) separate from those of its partners,
members, shareholders, trustees, beneficiaries, principals, Affiliates, and any
other Person and will maintain separate financial statements except that it may
also be included in consolidated financial statements of its Affiliates;
(K) will be, and at all times will hold itself out to the public
as, a legal entity separate and distinct from any other Person (including any of
its partners, members, shareholders, trustees, beneficiaries, principals and
Affiliates, and any Affiliates of any of the same), and not as a department or
division of any Person and will correct any known misunderstandings regarding
its existence as a separate legal entity;
(L) will pay the salaries of its own employees, if any;
(M) will allocate fairly and reasonably any overhead for shared
office space;
(N) will use stationery, invoices and checks;
(O) will file its own tax returns with respect to itself (or
consolidated tax returns, if applicable) as may be required under applicable
law;
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(P) reasonably expects to maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and character and
in light of its contemplated business operations;
(Q) will not seek, acquiesce in, or suffer or permit its
liquidation, dissolution or winding up, in whole or in part;
(R) will not enter into any transaction of merger or
consolidation, or acquire by purchase or otherwise all or substantially all of
the business or assets of, or any stock or beneficial ownership of, any Person;
(S) will not commingle or permit to be commingled its funds or
other assets with those of any other Person (other than, with respect to the
Borrowers, each other Borrower);
(T) has and will maintain its assets in such a manner that it is
not costly or difficult to segregate, ascertain or identify its individual
assets from those of any other Person;
(U) does not and will not hold itself out to be responsible for
the debts or obligations (other than the Obligations) of any other Person;
(V) has not guaranteed or otherwise become liable in connection
with any obligation of any other Person that remains outstanding, and will not
guarantee or otherwise become liable on or in connection with any obligation
(other than the Obligations) of any other Person that remains outstanding;
(W) except for funds deposited into the Accounts in accordance
with the Loan Documents, shall not hold title to its assets other than in its
name; and
(X) shall comply with all of the assumptions, statements,
certifications, representations, warranties and covenants regarding or made by
it contained in or appended to the nonconsolidation opinion delivered pursuant
hereto.
SECTION 9.2 APPLICABLE TO THE BORROWERS AND MEMBER. In addition to their
respective obligations under Section 9.1, each of the Borrowers and Member
hereby represent, warrant and covenant as of the Closing Date and until such
time as all Obligations are paid in full, that absent express advance written
waiver from Lender, which may be withheld in Lender's sole discretion:
(A) Each Member shall at all times act only as the sole member of
the Borrowers with all of the rights, powers, obligations and liabilities
thereof under the limited liability company operating agreement of such Borrower
and shall take any and all actions and do any and all things necessary or
appropriate to the accomplishment of the same and will engage in no other
business;
(B) No Borrower that is a limited liability company shall, without
the prior written consent of Member (including the unanimous written consent of
Member's board of directors including the Independent Directors or the unanimous
written consent of such Borrower's board of managers including the Independent
Directors), institute proceedings for itself to be adjudicated bankrupt or
insolvent; consent to the institution of bankruptcy or insolvency
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proceedings against itself; file a petition seeking, or consent to,
reorganization or relief under any applicable federal or state law relating to
bankruptcy; consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) for itself or a substantial
part of its property; make any assignment for the benefit of creditors; or admit
in writing its inability to pay its debts generally as they become due;
(C) Member shall not, without the unanimous vote of its board of
directors including its Independent Directors, institute proceedings for itself
or any Borrower, to be adjudicated bankrupt or insolvent; consent to the
institution of a bankruptcy or insolvency proceeding against it or any Borrower;
file a petition seeking, or consent to, reorganization or relief under any
applicable federal or state law relating to bankruptcy; consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) for itself or any Borrower; or a substantial part of its or
the Borrowers' property; make any assignment for the benefit of creditors; or
admit in writing its inability to pay its debts generally as they become due;
(D) Each Member that is a corporation shall each promptly elect
and at all times maintain at least two (2) Independent Directors on its board of
directors, who shall be selected by Member. Each Borrower that is a single
member limited liability company shall promptly appoint and at all times
maintain at least two (2) Independent Directors on its board of managers, who
shall be selected by such Borrower;
(E) The Borrowers that are corporations shall, without the prior
unanimous written consent of its board of directors, including its two (2)
Independent Directors (if required to have Independent Directors), institute
proceedings for itself to be adjudicated bankrupt or insolvent; consent to the
institution of bankruptcy or insolvency proceedings against it; file a petition
seeking, or consent to, reorganization or relief under any applicable federal or
state law relating to bankruptcy; consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) for
itself or a substantial part of its property; make any assignment for the
benefit of creditors; or admit in writing its inability to pay its debts
generally as they become due; and
(F) Each Borrower that is a corporation shall promptly elect and
at all times maintain at least two (2) Independent Directors on its board of
directors, who shall be selected by such Borrower.
ARTICLE X
RESTRUCTURING LOAN, SECONDARY MARKET TRANSACTIONS
SECTION 10.1 SECONDARY MARKET TRANSACTIONS GENERALLY. Lender shall have the
right to engage in one or more Secondary Market Transactions with respect to the
Loan, and to structure and restructure all or any part of the Loan, including
without limitation in multiple tranches, as a wraparound loan, or for inclusion
in a REMIC or other Securitization. Without limitation, Lender shall have the
right, at Lender's sole cost (other than the Borrowers' internal costs and
expenses and the costs and expenses of the Borrowers' counsel), to cause the
Note and any Pledge Agreement to be split into one or more loans evidenced by
multiple notes and secured by multiple pledge agreements in whatever proportion
Lender determines, and thereafter to engage in Secondary Market Transactions
with respect to all or any part of the indebtedness and loan
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documentation. Each of the Borrower Parties further acknowledge that additional
structural modifications may be required to satisfy issues raised by any Rating
Agencies. As used herein, "SECONDARY MARKET TRANSACTION" means any of (i) the
sale, assignment, or other transfer of all or any portion of the Obligations or
the Loan Documents or any interest therein to one or more investors, (ii) the
sale, assignment, or other transfer of one or more participation interests in
the Obligations or Loan Documents to one or more investors, (iii) the transfer
or deposit of all or any portion of the Obligations or Loan Documents to or with
one or more trusts or other entities which may sell certificates or other
instruments to investors evidencing an ownership interest in the assets of such
trust or the right to receive income or proceeds therefrom or (iv) any other
Securitization backed in whole or in part by the Loan or any interest therein.
SECTION 10.2 COOPERATION; LIMITATIONS. The Borrower Parties shall use all
reasonable efforts and cooperate reasonably and in good faith with Lender in
effecting up to three (3) such restructuring or Secondary Market Transactions at
Lender's sole cost (other than, with respect to the first successful Secondary
Market Transaction only, each Borrower's internal costs and expenses and the
costs and expenses of the Borrowers' counsel). Such cooperation shall include
without limitation, executing and delivering such reasonable amendments to the
Loan Documents and the organizational documents of each Borrower as Lender or
any Interested Party (as defined below) may request, provided however that, no
such amendment shall modify (i) the weighted average interest rate payable under
the Note (or notes); (ii) the stated maturity date of the Note, (iii) the
amortization of the principal amount of the Note, (iv) any other material
economic terms of the Obligations, (v) the non-recourse provisions of the Loan
or (vi) any provision, the effect of which would increase the Borrowers'
obligations or decrease the Borrowers' rights under the Loan Documents except to
a de minimis extent. The Borrower Parties shall not be required to provide
additional collateral to effect any such restructuring or Secondary Market
Transaction after the Closing Date. The Borrower Parties shall not be required
to pay any third party (other than with respect to the first successful
Secondary Market Transaction only, the costs and expenses of the Borrowers'
counsel) costs and expenses incurred by Lender in connection with any such
Secondary Market Transaction unless otherwise expressly payable by the Borrower
Parties under this Loan Agreement or the other Loan Documents.
SECTION 10.3 INFORMATION. The Borrower Parties, at Lender's cost and
expense (other than each Borrower's internal costs and, with respect to the
first successful Secondary Market Transaction only, expenses and the costs and
expenses of the Borrowers' counsel), shall provide such access to personnel and
such information and documents relating to the Borrower Parties, Manager, the
Properties and Collateral and the business and operations of all of the
foregoing and access to such opinions of counsel (including nonconsolidation
opinions) as any Rating Agency may request or as Lender or any other Interested
Party may reasonably request in connection with any such Secondary Market
Transaction including, without limitation, updated financial information,
appraisals, market studies, environmental reviews (Phase I's and, if
appropriate, Phase II's), mold inspection, property condition reports and other
due diligence investigations together with appropriate verification of such
updated information and reports through letters of auditors and consultants and,
as of the closing date of the Secondary Market Transaction, updated
representations and warranties made in the Loan Documents and such additional
representations and warranties as any Rating Agency may request or any
purchaser, transferee, assignee, trustee, servicer or potential investor (the
Rating Agencies and all of the
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foregoing parties, collectively, "INTERESTED PARTIES") may reasonably request,
to the extent such updated representations and warranties are true. On or prior
to the date of closing of any Secondary Market Transaction, the Borrowers, at
Lender's cost and expense (other than each Borrower's internal costs and
expenses and, with respect to the first successful Secondary Market Transaction
only, the costs and expenses of the Borrowers' counsel), shall, if required by
any Rating Agency or reasonably required by Lender, provide revisions or
"bringdowns" to any opinions delivered at Closing (including nonconsolidation
opinions), or if required by the Rating Agencies, new versions of such opinions,
which opinions shall be consistent, in substance, with the opinions covered by
the original opinions addressed to Lender, any trustee under any Securitization
backed in whole or in part by the Loan, any Rating Agency that assigns a rating
to any securities in connection therewith and any investor purchasing securities
therein. Lender shall be permitted to share all such information with the
investment banking firms, Rating Agencies, accounting firms, law firms, other
third party advisory firms, potential investors, servicers and other service
providers and other parties directly involved in any proposed Secondary Market
Transaction. The Borrowers understand that any such information may be
incorporated into any offering circular, prospectus, prospectus supplement,
private placement memorandum or other offering documents for any Secondary
Market Transaction. Lender and the Rating Agencies shall be entitled to rely
upon such information. Without limiting the foregoing, the Borrowers and
Guarantor shall each provide in connection with each of (i) a preliminary and a
final private placement memorandum or (ii) a preliminary and final prospectus or
prospectus supplement, as applicable (the documents referred to in the foregoing
clauses (i) and (ii), collectively, the "DISCLOSURE DOCUMENTS"), an agreement
reasonably satisfactory to the Borrowers and Guarantor certifying that the
Borrowers and Guarantor have examined such Disclosure Documents specified by
Lender and that the sections of such Disclosure Document describing the
Borrowers, Guarantor, the Properties and Manager do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements made, in the light of the circumstances under which they
were made, not materially misleading. The Borrowers and Guarantor shall each
indemnify, defend, protect and hold harmless Lender, Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("MERRILL LYNCH"), and their respective Affiliates,
directors, employees, agents and each Person, if any, who controls Lender,
Merrill Lynch or any such Affiliate within the meaning of Section 15 of the
Securities Act of 1933 or Section 20 of the Securities Exchange Act of 1934, and
any other placement agent or underwriter with respect to any Securitization or
Secondary Market Transaction from and against any losses, claims, damages and
liabilities that arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Disclosure Document as to
the Borrowers, Guarantor, Manager and the Properties or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated in such information or necessary in order to make the
statements in such information not materially misleading; provided, however, the
Borrowers shall not be required to indemnify Merrill Lynch for any liabilities
arising out of untrue statements or omissions that were identified to Lender in
writing or are set forth in any third party report not prepared by the Borrowers
or their Affiliates unless such reports are caused to be incorrect or misleading
based upon information provided by the Borrowers or their Affiliates. Lender may
publicize the existence of the Obligations in connection with Lender's Secondary
Market Transaction activities or otherwise.
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SECTION 10.4 ADDITIONAL PROVISIONS. In any Secondary Market Transaction,
Lender may transfer its obligations under this Loan Agreement and under the
other Loan Documents (or may transfer the portion thereof corresponding to the
transferred portion of the Obligations), and thereafter Lender shall be relieved
of any obligations hereunder and under the other Loan Documents arising after
the date of said transfer with respect to the transferred interest. Each
transferee investor shall become a "Lender" hereunder.
ARTICLE XI
RESTRICTIONS ON LINES, TRANSFERS; ASSUMABILITY; RELEASE OF
PROPERTIES
SECTION 11.1 RESTRICTIONS ON TRANSFER AND ENCUMBRANCE. Except for a
Transfer or a Permitted Assumption expressly permitted under this Article XI,
the Borrowers shall not cause or suffer to occur or exist, directly or
indirectly, voluntarily or involuntarily, by operation of law or otherwise, any
sale, transfer, mortgage, pledge, Lien or encumbrance of (i) all or any part of
the Collateral, the Jekyll Island Property, the Properties or any interest
therein, or (ii) any direct or indirect ownership or beneficial interest in the
Borrowers or the Mortgage Borrowers, irrespective of the number of tiers of
ownership without Lender's consent.
SECTION 11.2 TRANSFERS OF BENEFICIAL INTERESTS IN THE BORROWERS.
The following voluntary or involuntary sales, encumbrances,
conveyances, transfers and pledges (each, a "TRANSFER") of a direct, indirect or
beneficial interest in any Borrower shall be permitted without Lender's consent
("PERMITTED OWNERSHIP INTEREST TRANSFERS"):
(A) A Transfer of no more than forty-nine percent (49%) of the
direct or indirect ownership interests in such Borrower (in the aggregate),
provided that, following such Transfer, Guarantor maintains control of such
Borrower.
(B) A Transfer or a series of Transfers that result in the
proposed transferee, together with Affiliates of such transferee, owning in the
aggregate (directly or indirectly) more than forty-nine percent (49%) of the
economic and beneficial interests in such Borrower (where, prior to such
Transfer, such proposed transferee and its Affiliates owned in the aggregate
(directly or indirectly) forty-nine percent (49%) or less of such interests in
that Borrower) and, provided that such Transfer shall not be a Permitted
Ownership Interest Transfer unless Lender receives, prior to such Transfer, both
(x) evidence reasonably satisfactory to Lender (which shall include a legal
non-consolidation opinion reasonably acceptable to Lender and the Rating
Agencies) that the single purpose nature and bankruptcy remoteness of such
Borrower (and its members and general partners, as applicable) following such
Transfer or Transfers will be the same as prior to such Transfer or Transfers
and (y) a Rating Agency Confirmation.
(C) For so long as Guarantor's (or its successor's) stock is
traded through the "over-the-counter market" or through any recognized stock
exchange, any Transfer of all or any portion of the issued and outstanding
capital stock of Guarantor, or the issuance of additional capital stock of
Guarantor (including common or preferred shares) through the "over-the-counter
market" or through any recognized stock exchange.
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For purposes of this Section 11.2, "control" shall have the
meaning given thereto in the definition of "Affiliate" in Section 1.1 and a
"change of control" of any Person shall include the Transfer of legal or
equitable ownership interests in such Person which after giving effect to such
Transfer results in any transferee or pledgee of such interests holding more
than a 49% legal or equitable ownership interest or security interest in such
Person.
SECTION 11.3 ASSUMABILITY.
(A) The Borrowers shall have the right to request that Lender
consent to (i) a transfer of all of the Collateral to another Person (the
"TRANSFEREE BORROWER") and the assumption by the Transferee Borrower of all of
the Borrowers' obligations under the Loan Documents, (ii) replacement of
Guarantor with new guarantors and indemnitors who shall assume all of the
obligations of the Guarantors arising from and after such date and release of
the Borrowers and Guarantor from obligations arising after such date and (iii)
the replacement of the Mortgage Borrowers with new owners of the Properties, all
in connection with an assumption completed in accordance with Section 11.3 of
the Mortgage Loan Agreement (collectively, an "ASSUMPTION"), subject to the
conditions set forth in paragraph (C) and (D) of this Section. Together with
such written application, the Borrowers will pay to Lender the reasonable review
fee of $10,000. The Borrowers also shall pay on demand all of the reasonable
out-of-pocket costs and expenses incurred by Lender, including reasonable
attorneys' fees and expenses, and the fees and expenses of Rating Agencies, if
any, and other outside entities, in connection with considering any proposed
Transfer and Assumption, whether or not the same is permitted or occurs.
(B) Lender shall not withhold its consent to an Assumption (any
such Assumption consented to by Lender, a "PERMITTED ASSUMPTION" provided and
upon the conditions that:
(i) No Event of Default shall have occurred and be
continuing at the time of such Assumption;
(ii) The Borrowers shall have submitted to Lender true,
correct and complete copies of any and all information and documents reasonably
requested by Lender concerning the Transferee Borrower, replacement guarantors
and indemnitors and all of such information and documents shall be reasonably
acceptable to Lender;
(iii) Evidence reasonably satisfactory to Lender shall have
been provided showing that the Transferee Borrower and such of its Affiliates as
shall reasonably be designated by Lender comply and will comply with Article IX,
as those provisions may be modified by Lender taking into account the ownership
structure of Transferee Borrower and its Affiliates;
(iv) The Borrowers shall have obtained (and delivered to
Lender) a Rating Confirmation with respect to the Assumption, the Transferee
Borrower, the new guarantors and indemnitors and all related transactions;
(v) The Borrowers shall have paid all of Lender's
reasonable out-of-pocket costs and expenses in connection with considering the
Assumption, and shall have paid the amount reasonably requested by Lender as a
deposit against Lender's reasonable costs and expenses in connection with
effecting the Assumption;
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(vi) The Borrowers, the Transferee Borrower, and the
replacement guarantors and indemnitors shall have indicated in writing in form
and substance reasonably satisfactory to Lender their readiness and ability to
satisfy the conditions set forth in Subsection (C) below;
(vii) (a) The Transferee Borrower shall be a Permitted
Transferee or an Affiliate of a Permitted Transferee or (b) the identity,
experience and financial condition of the Transferee Borrower shall otherwise be
satisfactory to Lender in its sole discretion; and
(viii) The identity and financial condition of the
replacement guarantors and indemnitors shall be satisfactory to Lender.
(C) If Lender consents to the proposed Assumption, the Transferee
Borrower and/or the Borrowers, as the case may be, shall promptly and as a
condition to the Assumption deliver the following to Lender:
(i) The Borrowers, Transferee Borrower, the original and
replacement guarantors and indemnitors shall execute and deliver any and all
documents reasonably required by Lender to evidence the Transfer and Assumption
of the Loan, in form and substance reasonably required by Lender and similar to
those received at Closing;
(ii) Counsel to the Transferee Borrower and replacement
guarantors and indemnitors shall deliver to Lender opinions in form and
substance reasonably satisfactory to Lender as to such matters as Lender shall
reasonably require in connection with such Assumption, which may include
opinions as to substantially the same matters as were required in connection
with the origination of the Loan including, without limitation, bankruptcy
non-consolidation opinion;
(iii) The Borrowers shall cause to be delivered to Lender,
an endorsement (relating to the change in the identity of the Borrowers and
execution and delivery of the Assumption documents) to Lender's policy of title
insurance in form and substance acceptable to Lender, in Lender's reasonable
discretion; and
(D) The Borrowers shall deliver to Lender a payment in the amount
of all remaining unpaid reasonable costs incurred by Lender in connection with
the Assumption, including but not limited to, Lender's reasonable attorneys'
fees and expenses, all recording fees, and all fees payable to the title company
in connection with the Transfer and Assumption.
SECTION 11.4 RELEASE OF COLLATERAL. On one or more occasions, Lender shall
permit the Borrowers to cause the Mortgage Borrowers to transfer a Property and
the Borrowers may obtain the release of a portion of the Collateral, other than
the Jekyll Island Mortgage (each, a "COLLATERAL RELEASE") relating only to the
Borrowers' direct or indirect interest in the Property that is the subject of a
Property Release completed in accordance with Section 11.4 of the Mortgage Loan
Agreement, simultaneous with such Property Release subject to the satisfaction
of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen
(15) days prior written notice of the date proposed for such release (the
"RELEASE DATE") which notice is revocable;
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(B) No Event of Default shall have occurred and be continuing as
of the date of such notice and the Release Date;
(C) Lender shall have received on the date proposed for such
Collateral Release the Mezzanine Lender's Percentage of the Release Price for
the Property that is the subject of the Property Release (the " COLLATERAL
RELEASE PRICE") it being agreed that, following satisfaction of the Mortgage
Loan the entire Release Price shall be paid to Lender and applied to the payment
of the Obligations.
(D) The Borrowers at their sole cost and expense, shall have
delivered to Lender, one or more endorsements to the Title Policies insuring
that, after giving effect to such Collateral Release, (i) the Liens insured
under the Title Policies are first priority Liens on the remaining Collateral,
and (ii) that the Title Policies remain in full force and effect and unaffected
by such Collateral Release;
(E) Immediately following any Collateral Release both the Debt
Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12)
month period) shall be equal to or greater than the Debt Service Coverage Ratio
and the Debt Yield in effect immediately prior to the Collateral Release (based
upon a trailing twelve (12) month period); and
(F) The Borrowers shall pay all reasonable out-of-pocket costs and
expenses (including, without limitation, title search costs and endorsement
premiums and reasonable attorney's fees and disbursements) incurred by Lender,
Servicer, and any custodian employed by Lender or Servicer, in connection with
the Collateral Release.
Upon satisfaction of the above conditions, Lender shall effectuate the
following: the security interest of Lender in and to that portion of the
Collateral and the other Loan Documents relating to the Released Property shall
be released and Lender will execute and deliver any agreements reasonably
requested by the Borrowers to effectuate such release. The Borrowers each
acknowledge that they have, in most cases, pledged equity interests in multiple
Mortgage Borrowers and that, in several cases, the Mortgage Borrowers own more
than one Property. Accordingly, the Borrowers acknowledge that, until such time
as all Properties owned by a particular Mortgage Borrower have been released,
the Collateral relating to such Mortgage Borrower shall not be released and,
notwithstanding that no Collateral Release shall have occurred (until the last
Property owned by such Mortgage Borrower is being released), a condition to the
Borrower permitting any Mortgage Borrower to obtain any Property Release shall
be the payment to Lender of the applicable Collateral Release Price and
satisfaction of the other conditions set forth in this Section 11.4.
(G) CONVERSION/RELEASE. Provided no Event of Default shall have
occurred and be continuing, the Borrowers may allow a Conversion (as such term
is defined in the Mortgage Loan Agreement) pursuant to the terms of Section 11.5
of the Mortgage Loan Agreement.
SECTION 11.5 RELEASE OF THE JEKYLL ISLAND PROPERTY. The Borrowers may
obtain the release (a "JEKYLL ISLAND RELEASE") of the Jekyll Island Property
from the Lien of the Jekyll Island Mortgage in connection with (x) a sale of the
Jekyll Island Property to one or more Persons which are not Related Persons of
the Borrowers or Guarantor, (y) a Release necessary to prevent
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an Uncured Franchise Default, or (z) a Release necessary to enable the Borrowers
to comply with the restrictions set forth in Section 5.13(D), and prepayment of
all or a portion of the Loan subject to the conditions of the Note and subject
to the satisfaction of the following conditions:
(A) Lender shall have received from the Borrowers at least fifteen
(15) days prior written notice of the date proposed for such release (the
"JEKYLL ISLAND RELEASE DATE") which notice is revocable;
(B) No Event of Default shall have occurred and be continuing as
of the date of such notice and the Jekyll Island Release Date;
(C) Lender shall have received from the Borrowers on the date
proposed for such Release, a Release Price calculated in accordance with the
definition of Release Price in the Mortgage Loan Agreement as if the Jekyll
Island Property were a "Property" under the Mortgage Loan Agreement (the
"JEKYLL ISLAND RELEASE PRICE"), for deposit into the Jekyll Island Lock Box
Account and disbursement in accordance with the terms of the Jekyll Island Cash
Management Agreement;
(D) Immediately following such Jekyll Island Release both the Debt
Service Coverage Ratio and the Debt Yield (based upon a trailing twelve (12)
month period) shall be equal to or greater than the Debt Service Coverage Ratio
and the Debt Yield in effect immediately prior to the Jekyll Island Release
(based upon a trailing twelve (12) month period);
(E) The Borrowers shall pay all reasonable out-of-pocket costs and
expenses (including, without limitation, title search costs and endorsement
premiums and reasonable attorney's fees and disbursements) incurred by Lender,
Servicer, and any custodian employed by Lender or Servicer, in connection with
the Jekyll Island Release; and
(F) Immediately following such Jekyll Island Release, the Jekyll
Island Property will be owned by a Person other than the Borrowers or Related
Persons of the Borrowers or Guarantors.
Upon satisfaction of the above conditions, Lender shall effectuate the
following: the security interest of Lender under the Jekyll Island Mortgage and
other Loan Documents relating to the Jekyll Island Property shall be released
and Lender will execute and deliver any agreements reasonably requested by the
Borrowers to release and terminate or reassign, at the Borrowers' option, the
Jekyll Island Mortgage, the applicable Assignment of Leases, and financing
statements as to the Jekyll Island Property; provided, that such release and
termination or reassignment shall be without recourse to Lender and without any
representation or warranty except that Lender shall be deemed to have
represented that such release and termination or reassignment has been duly
authorized and that it has not assigned or encumbered the Jekyll Island Mortgage
or the other Loan Documents relating to the Jekyll Island Property (except as
contemplated hereby) and Lender shall return the originals of any Loan Documents
that relate solely to the Jekyll Island Property to the Borrowers; provided,
further, that upon the release and termination or reassignment of Lender's
security interest in the Jekyll Island Mortgage, all references herein to the
Jekyll Island Mortgage shall be deemed deleted, except as otherwise provided
herein with respect to indemnities.
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SECTION 11.6 SALE OF BUILDING EQUIPMENT. Notwithstanding anything to the
contrary contained herein, provided no Event of Default exists, the Borrowers
may permit the Mortgage Borrowers to and the Jekyll Island Borrower may transfer
or dispose of building equipment which is being replaced or which is no longer
necessary in connection with the operation of the Properties, provided that such
transfer or disposal will not have a Material Adverse Effect on the value of any
individual Property or on the Properties taken as a whole, will not materially
impair the utility of any individual Property or on the Properties, taken as a
whole, and will not result in a reduction or abatement of, or right of offset
against, the rents payable under any Lease, in either case as a result thereof.
SECTION 11.7 IMMATERIAL TRANSFERS AND EASEMENTS, ETC. Notwithstanding
anything to the contrary contained herein, provided no Event of Default exists,
the Borrowers may permit the Mortgage Borrowers to and the Jekyll Island
Borrower may, without the consent of Lender, (i) make immaterial transfers of
portions of the Properties to Governmental Authorities for dedication for public
use, and (ii) grant easements, restrictions, covenants, reservations and rights
of way in the ordinary course of business for access, water and sewer lines,
telephone and telegraph lines, electric lines or other utilities or for other
similar purposes, provided that no such transfer, conveyance or encumbrance set
forth in the foregoing clauses (i) and (ii) shall materially impair the utility
and operation of the Properties or have a Material Adverse Effect on the value
of the Properties taken as a whole.
ARTICLE XII
RECOURSE; LIMITATIONS ON RECOURSE
SECTION 12.1 LIMITATIONS ON RECOURSE. Subject to the provisions of this
Article, and notwithstanding any provision of the Loan Documents other than this
Article, the personal liability of the Borrowers to pay any and all Obligations
including but not limited to the principal of and interest on the debt evidenced
by the Note and any other agreement evidencing the Borrowers' obligations under
the Note shall be limited to (i) the Collateral and (ii) the rents, profits,
issues, products and income of the Collateral, received or collected by or on
behalf of the Borrowers or any Borrower Party after an Event of Default.
Notwithstanding anything to the contrary in this Loan Agreement, the Pledge
Agreement or any of the Loan Documents, Lender shall not be deemed to have
waived any right which Lender may have under Section 506(a), 506(b), 1111(b) or
any other provisions of the Bankruptcy Code to file a claim for the file amount
of the Obligations secured by the Collateral or to require that all collateral
shall continue to secure a of the Obligations owing to Lender in accordance with
the Loan Documents.
SECTION 12.2 PARTIAL RECOURSE. Notwithstanding Section 12.1, the Borrowers
(but not their members, partners, employees, shareholders agents, directors or
officers (the "EXCULPATED PARTIES")) and Guarantor shall be personally liable to
the extent of any liability, loss, damage, cost or expense (including, without
limitation, attorneys' fees and expenses) suffered or incurred by Lender
resulting from any and all of the following: (i) fraud of any of the Borrower
Parties or their agents or employees; (ii) any material misrepresentation made
by the Borrowers or any Borrower Party in this Loan Agreement or any other Loan
Document; (iii) insurance proceeds, condemnation awards, or other sums or
payments attributable to the Properties which are not
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applied in accordance with the provisions of the Loan Documents; (iv) all rents,
profits, issues, products and income of the Properties and the Jekyll Island
Property received or collected by or on behalf of the Borrowers or any Borrower
Party or Manager and not deposited into the Deposit Account in accordance with
Article VII and the Cash Management Agreement or the Jekyll Island Cash
Management Agreement; (v) failure to turn over to Lender or Mortgage Lender,
after an Event of Default, or misappropriation of any tenant security deposits
or rents collected in advance (other than by Mortgage Lender, the servicer of
the Mortgage Loan, Lender or Servicer); (vi) failure to notify Lender of any
change in the principal place of business address of the Borrowers or of any
change in the name of any Borrower or if any Borrower takes any other action
which could make the information set forth in the Financing Statements relating
to the Loan materially misleading; (vii) failure by any Borrower, any general
partner or managing member of such Borrower, or any indemnitor or guarantor to
comply with the covenants, obligations, liabilities, warranties and
representations contained in the Environmental Indemnity or otherwise pertaining
to environmental matters; (viii) material waste; (ix) all liabilities and
expenses under the indemnification provisions of Section 10.3; (x) any uncured
default under Section 11.1; (xi) any material uncured default under Article IX;
and (xii) any distributions made in violation of Section 5.28 (to the extent of
any such distribution) including amounts improperly paid or distributed,
directly or indirectly, by Manager in circumvention of such restrictions.
Notwithstanding the preceding sentence, the Loan shall be fully recourse to the
Borrowers and Guarantor (but, with respect to Guarantor only, not in excess of
ten percent (10%) of the original principal balance of the Loan) upon the
happening of any of the following: (i) any Borrower Party's defense of any such
collection efforts following maturity of the Loan or acceleration of the Loan on
account of an Event of Default under Section 8.1(A), or any other defense of any
collection efforts without a good faith basis following any other Event of
Default), and (ii) any condition or event described in any of Subsections
8.1(G), 8.1(H), or 8.1(I) (except that the Borrowers and Guarantor shall not be
liable under this Section 12.2 in connection with any Involuntary Borrower
Bankruptcy unless such involuntary proceeding is solicited, procured, consented
to or acquiesced in by any Borrower, Guarantor or any Related Person of either
of them.
SECTION 12.3 MISCELLANEOUS. No provision of this Article shall (i) affect
the enforcement of the Environmental Indemnity, the Guaranty or any guaranty or
similar agreement executed in connection with the Loan, (ii) release or reduce
the debt evidenced by the Note, (iii) impair the lien of any of the Pledge
Agreement or any other security document, (iv) impair the rights of Lender to
enforce any provisions of the Loan Documents, or (v) limit Lender's ability to
obtain a deficiency judgment or judgment on the Note or otherwise against any
Borrower Party but not any Exculpated Party to the extent necessary to obtain
any amount for which such Borrower Party may be liable in accordance with this
Article or any other Loan Document.
ARTICLE XIII
WAIVERS OF DEFENSES OF GUARANTORS AND SURETIES
SECTION 13.1 WAIVERS. To the extent that any Borrower (in this Article, a
"WAIVING PARTY") is deemed for any reason to be a guarantor or surety of or for
any other Borrower Party or Affiliate or to have rights or obligations in the
nature of the rights or obligations of a guarantor or surety (whether by reason
of execution of a guaranty, provision of security for the obligations of
another, or otherwise) then this Article shall apply. This Article shall not
affect the rights of the
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Waiving Party other than to waive or limit rights and defenses that Waiving
Party would have (i) in its capacity as a guarantor or surety or (ii) in its
capacity as one having rights or obligations in the nature of a guarantor or
surety.
Waiving Party hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of receivership or bankruptcy of any
of the other Borrower Parties, protest or notice with respect to any of the
obligations of any of the other Borrower Parties, setoffs and counterclaims and
all presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor and notices of acceptance, the benefits
of all statutes of limitation, and all other demands whatsoever (and shall not
require that the same be made on any of the other Borrower Parties as a
condition precedent to the obligations of Waiving Party), and covenants that the
Loan Documents will not be discharged, except by complete payment and
performance of the obligations evidenced and secured thereby, except only as
limited by the express contractual provisions of the Loan Documents. Waiving
Party further waives all notices that the principal amount, or any portion
thereof, and/or any interest on any instrument or document evidencing all or any
part of the obligations of any of the other Borrower Parties to Lender is due,
notices of any and all proceedings to collect from any of the other Borrower
Parties or any endorser or any other guarantor of all or any part of their
obligations, or from any other person or entity, and, to the extent permitted by
law, notices of exchange, sale, surrender or other handling of any security or
collateral given to Lender to secure payment of all or any part of the
obligations of any of the other Borrower Parties.
Except only to the extent provided otherwise in the express
contractual provisions of the Loan Documents, Waiving Party hereby agrees that
all of its obligations under the Loan Documents shall remain in full force and
effect, without defense, offset or counterclaim of any kind, notwithstanding
that any right of Waiving Party against any of the other Borrower Parties or
defense of Waiving Party against Lender may be impaired, destroyed, or otherwise
affected by reason of any action or inaction on the part of Lender. Waiving
Party waives all rights and defenses arising out of an election of remedies by
the Lender, even though that election of remedies, may have destroyed the
Waiving Party's rights of subrogation and reimbursement against the other
Borrower Parties.
Lender is hereby authorized, without notice or demand, from time to
time, (a) to renew, extend, accelerate or otherwise change the time for payment
of, or other terms relating to, all or any part of the obligations of any of the
other Borrower Parties; (b) to accept partial payments on all or any part of the
obligations of any of the other Borrower Parties; (c) to take and hold security
or collateral for the payment of all or any part of the obligations of any of
the other Borrower Parties; (d) to exchange, enforce, waive and release any such
security or collateral for such obligations; (e) to apply such security or
collateral and direct the order or manner of sale thereof as in its discretion
it may determine; (f) to settle, release, exchange, enforce, waive, compromise
or collect or otherwise liquidate all or any part of such obligations and any
security or collateral for such obligations. Any of the foregoing may be done in
any manner, and Waiving Party agrees that the same shall not affect or impair
the obligations of Waiving Party under the Loan Documents.
Waiving Party hereby assumes responsibility for keeping itself informed
of the financial condition of all of the other Borrower Parties and any and all
endorsers and/or other guarantors
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of all or any part of the obligations of the other Borrower Parties, and of all
other circumstances bearing upon the risk of nonpayment of such obligations, and
Waiving Party hereby agrees that Lender shall have no duty to advise Waiving
Party of information known to it regarding such condition or any such
circumstances.
Waiving Party agrees that neither Lender nor any person or entity
acting for or on behalf of Lender shall be under any obligation to marshal any
assets in favor of Waiving Party or against or in payment of any or all of the
obligations secured hereby. Waiving Party further agrees that, to the extent
that any of the other Borrower Parties or any other guarantor of all or any part
of the obligations of the other Borrower Parties makes a payment or payments to
Lender, or Lender receives any proceeds of collateral for any of the obligations
of the other Borrower Parties, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid or refunded, then, to the extent of such payment or
repayment, the part of such obligations which has been paid, reduced or
satisfied by such amount shall be reinstated and continued in full force and
effect as of the time immediately preceding such initial payment, reduction or
satisfaction.
Waiving Party (i) shall have no right of subrogation with respect to
the obligations of the other Borrower Parties; (ii) waives any right to enforce
any remedy that Lender now has or may hereafter have against any of the other
Borrower Parties any endorser or any guarantor of all or any part of such
obligations or any other person; and (iii) waives any benefit of, and any right
to participate in, any security or collateral given to Lender to secure the
payment or performance of all or any part of such obligations or any other
liability of the other parties to Lender.
Waiving Party agrees that any and all claims that it may have against
any of the other Borrower Parties, any endorser or any other guarantor of all or
any part of the obligations of the other Borrower Parties, or against any of
their respective properties, shall be subordinate and subject in right of
payment to the prior payment in full of all obligations secured hereby.
Notwithstanding any right of any of the Waiving Party to ask, demand, sue for,
take or receive any payment from the other Borrower Parties, all rights, liens
and security interests of Waiving Party, whether now or hereafter arising and
howsoever existing, in any assets of any of the other Borrower Parties (whether
constituting part of the security or collateral given to Lender to secure
payment of all or any part of the obligations of the other Borrower Parties or
otherwise) shall be and hereby are subordinated to the rights of Lender in those
assets.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 EXPENSES AND ATTORNEYS' FEES. Whether or not the transactions
contemplated hereby shall be consummated, the Borrowers agree to promptly pay
all reasonable fees, costs and expenses incurred by Lender in connection with
any matters contemplated by or arising out of this Loan Agreement, including the
following, and all such fees, costs and expenses shall be part of the
Obligations, payable on demand: (A) reasonable fees, costs and expenses
(including reasonable attorneys' fees, and other professionals retained by
Lender) incurred in connection with the examination, review, due diligence
investigation, documentation and closing of the financing arrangements evidenced
by the Loan Documents; (B) subject to Section 10.2, reasonable fees, costs and
expenses (including reasonable attorneys' fees and other professionals
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retained by Lender) incurred in connection with the administration of the Loan
Documents and the Loan and any amendments, modifications and waivers relating
thereto; (C) subject to Section 10.2, reasonable fees, costs and expenses
(including reasonable attorneys' fees) incurred in connection with the review,
documentation, negotiation, closing and administration of any subordination or
intercreditor agreements; and (D) reasonable fees, costs and expenses (including
attorneys' fees and fees of other professionals retained by Lender) incurred in
any action to enforce or interpret this Loan Agreement or the other Loan
Documents or to collect any payments due from the Borrowers under this Loan
Agreement, the Note or any other Loan Document or incurred in connection with
any refinancing or restructuring of the credit arrangements provided under this
Loan Agreement, whether in the nature of a workout" or in connection with any
insolvency or bankruptcy proceedings or otherwise, Any costs and expenses due
and payable to Lender after the Closing Date may be paid to Lender pursuant to
the Cash Management Agreement.
SECTION 14.2 INDEMNITY. In addition to the payment of expenses as required
elsewhere herein, whether or not the transactions contemplated hereby shall be
consummated, the Borrowers agree to indemnify, defend, protect, pay and hold
Lender, Servicer and their successors and assigns (including, without
limitation, the trustee and/or the trust under any trust agreement executed in
connection with any Securitization backed in whole or in part by the Loan and
any other Person which may hereafter be the holder of the Note or any interest
therein), and the officers, directors, stockholders, partners, members,
employees, agents, Affiliates and attorneys of Lender and such successors and
assigns (collectively called the "INDEMNITEES") harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, Tax Liabilities, broker's or finders fees, reasonable
costs, expenses and disbursements of any kind or nature whatsoever (including
the reasonable fees and disbursements of outside counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Indemnitee shall be designated a
party thereto) that are imposed on, incurred by, or asserted against that
Indemnitee, in any manner relating to or arising out of (A) the negotiation,
execution, delivery, performance, administration, ownership, or enforcement of
any of the Loan Documents; (B) any of the transactions contemplated by the Loan
Documents, (C) any breach by the Borrowers of any material representation,
warranty, covenant, or other agreement contained in any of the Loan Documents;
(D) Lender's agreement to make the Loan hereunder, (E) any claim brought by any
third party arising out of any condition or occurrence at or pertaining to the
Properties; (F) any design, construction, operation, repair, maintenance, use,
non-use or condition of the Properties or Improvements, including claims or
penalties arising from violation of any applicable laws or insurance
requirements, as well as any claim based on any patent or latent defect, whether
or not discoverable by Lender; (G) any performance of any labor or services or
the furnishing of any materials or other property in respect of the Properties,
the Collateral, or any part thereof; (H) any contest referred to in Section
5.3(B) hereof, (I) any obligation or undertaking relating to the performance or
discharge of any of the terms, covenants and conditions of the landlord
contained in the Leases, or (J) the use or intended use of the proceeds of any
of the Loan (the foregoing liabilities herein collectively referred to as the
"INDEMNIFIED LIABILITIES"); provide that the Borrowers shall not have an
obligation to an Indemnitee hereunder with respect to Indemnified Liabilities
arising from the fraud, gross negligence or willful misconduct of such
Indemnitee as determined by a court of competent jurisdiction. The obligations
and liabilities of the Borrowers under this Section 14.2 shall survive the term
of the Loan and the exercise by Lender of any of its rights or
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remedies under the Loan Documents, including the acquisition of the Properties
by foreclosure or a conveyance in lieu of foreclosure.
SECTION 14.3 AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
no amendment, modification, termination or waiver of any provision of this Loan
Agreement, the Note or any other Loan Document, or consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Lender and any other party to be charged. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on the Borrowers in any case shall entitle the Borrowers or other Person
to any other or further notice or demand in similar or other circumstances.
SECTION 14.4 RETENTION OF THE BORROWERS' DOCUMENTS. Lender may, in
accordance with Lender's customary practices, destroy or otherwise dispose of
all documents, schedules, invoices or other papers, delivered by the Borrowers
to Lender (other than the Note) unless the Borrowers request in writing that
same be returned. Upon such request and at the Borrowers' expense, Lender shall
return such papers when Lender's actual or anticipated need for same has
terminated.
SECTION 14.5 NOTICES. Unless otherwise specifically provided herein, any
notice or other communication required or permitted to be given shall be in
writing and addressed to the respective party as set forth below. Notices shall
be effective (i) three (3) days after the date such notice is mailed, (ii) on
the next Business Day if sent by a nationally recognized overnight courier
service, (iii) on the date of delivery by personal delivery and (iv) on the date
of transmission if sent by telefax during business hours on a Business Day
(otherwise on the next Business Day).
Notices shall be addressed as follows:
If to the Borrowers or any Borrower Party:
c/o Lodgian
3445 Peachtree Road NE
Suite 700
Atlanta, Georgia 30326
Attention: General Counsel
Facsimile: (404) 364-0088
With a copy to:
Cadwalader Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Robert F. McDonough
Facsimile: (212) 504-6666
102
If to Lender:
c/o Merrill Lynch & Co.
4 World Financial Center
New York, New York 10080
Attention: Steve Glassman
Facsimile: (212) 738-1013
and
Attention: John Katz
Facsimile: (212) 449-8094
With a copy to:
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, New York 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
Any party may change the address at which it is to receive notices to another
address in the United States at which business is conducted (and not a
post-office box or other similar receptacle), by giving notice of such change of
address in accordance with the foregoing. This provision shall not invalidate or
impose additional requirements for the delivery or effectiveness of any notice
(i) given in accordance with applicable statutes or rules of court, or (ii) by
service of process in accordance with applicable law. If there is any assignment
or transfer of Lender's interest in the Loan, then the new Lenders may give
notice to the parties in accordance with this Section, specifying the addresses
at which the new Lenders shall receive notice, and they shall be entitled to
notice at such address in accordance with this Section.
SECTION 14.6 SURVIVAL OF WARRANTIES AND CERTAIN AGREEMENTS. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Loan Agreement, the making of the Loan hereunder and the
execution and delivery of the Note. Notwithstanding anything in this Loan
Agreement or implied by law to the contrary, the agreements of Borrower Parties
to indemnify or release Lender or Persons related to Lender, or to pay Lender's
costs, expenses, or taxes shall survive the payment of the Loan and the
termination of this Loan Agreement.
SECTION 14.7 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of Lender in the exercise of any power, right or
privilege hereunder or under the Note or any other Loan Document shall impair
such power, right or privilege or be construed to be a waiver of any default or
acquiescence therein, nor shall any single or partial exercise of any such
power, right or privilege preclude other or further exercise thereof or of any
other right, power or privilege. All rights and remedies existing under this
Loan Agreement, the Note and the other Loan Documents are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
103
SECTION 14.8 MARSHALING; PAYMENTS SET ASIDE. Lender shall not be under any
obligation to marshal any assets in favor of any Person or against or in payment
of any or all of the Obligations. To the extent that any Person makes a payment
or payments to Lender, or Lender enforces its remedies or exercises its rights
of set off, and such payment or payments or the proceeds of such enforcement or
set off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of such recovery, the
Obligations or part thereof originally intended to be satisfied, and all Liens,
if any, and rights and remedies therefor, shall be revived and continued in full
force and effect as if such payment had not been made or such enforcement or set
off had not occurred.
SECTION 14.9 SEVERABILITY. The invalidity, illegality or unenforceability
in any jurisdiction of any provision in or obligation under this Loan Agreement,
the Note or other Loan Documents shall not affect or impair the validity,
legality or enforceability of the remaining provisions or obligations under this
Loan Agreement, the Note or other Loan Documents or of such provision or
obligation in any other jurisdiction.
SECTION 14.10 HEADINGS. Section and subsection headings in this Loan Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Loan Agreement for any other purpose or be given any substantive
effect.
SECTION 14.11 APPLICABLE LAW. THIS LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS WERE NEGOTIATED IN THE STATE OF NEW YORK, AND EXECUTED AND DELIVERED
IN THE STATE OF NEW YORK, AND THE PROCEEDS OF THE LOAN WERE DISBURSED FROM NEW
YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS,
INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE. THIS LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW YORK AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
SECTION 14.12 SUCCESSORS AND ASSIGNS. This Loan Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns except that the Borrowers may not assign their rights or
obligations hereunder or under any of the other Loan Documents except as
expressly provided in Article XI.
SECTION 14.13 SOPHISTICATED PARTIES, REASONABLE TERMS, NO FIDUCIARY
RELATIONSHIP. The Borrowers represent, warrant and acknowledge that (i) they
are sophisticated real estate investors, familiar with transactions of this
kind, and (ii) they have entered into this Loan Agreement and the other Loan
Documents after conducting their own assessment of the alternatives available to
them in the market, and after lengthy negotiations in which they have been
represented by legal counsel of their choice. The Borrowers also acknowledge and
agree
104
that the rights of Lender under this Loan Agreement and the other Loan Documents
are reasonable and appropriate, taking into consideration all of the facts and
circumstances including without limitation the quantity of the Loan, the nature
of the Properties, and the risks incurred by Lender in this transaction. No
provision in this Loan Agreement or in any of the other Loan Documents and no
course of dealing between the parties shall be deemed to create (i) any
partnership or joint venture between Lender and the Borrowers or any other
Person, or (ii) any fiduciary or similar duty by Lender to the Borrowers or any
other Person. The relationship between Lender and the Borrowers is exclusively
the relationship of a creditor and a debtor, and all relationships between
Lender and any other Borrowers are ancillary to such creditor/debtor
relationship.
SECTION 14.14 REASONABLENESS OF DETERMINATIONS. In any instance where any
consent, approval, determination or other action by Lender is, pursuant to the
Loan Documents or applicable law, required to be done reasonably or required not
to be unreasonably withheld, then Lender's action shall be presumed to be
reasonable, and the Borrowers shall bear the burden of proof of showing that the
same was not reasonable. In the event that a claim or adjudication is made that
Lender or its agents have acted unreasonably or unreasonably delayed acting in
any case where, by law or under this Loan Agreement or the other Loan Documents,
Lender or such agent, as the case may be, has an obligation to act reasonably or
promptly, neither Lender nor its agents shall be liable for any monetary
damages, and the Borrowers' sole remedy shall be limited to commencing an action
seeking injunctive relief or declaratory judgment. Any action or proceeding to
determine whether Lender has acted reasonably shall be determined by an action
seeking declaratory judgment.
SECTION 14.15 LIMITATION OF LIABILITY. Neither Lender, nor any Affiliate,
officer, director, employee, attorney, or agent of Lender, shall have any
liability with respect to, and each of the Borrowers hereby waives, releases,
and agrees not to sue any of them upon, any claim for any special, indirect,
incidental, or consequential damages suffered or incurred by the Borrower
Parties in connection with, arising out of, or in any way related to, this Loan
Agreement or any of the other Loan Documents, or any of the transactions
contemplated by this Loan Agreement or any of the other Loan Documents, other
than the gross negligence or willful misconduct of Lender. Each of the Borrowers
hereby waives, releases, and agrees not to sue Lender or any of Lender's
Affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, this Loan Agreement or any of the other Loan Documents, or any
of the transactions contemplated by this Loan Agreement or any of the
transactions contemplated hereby, except to the extent the same is caused by the
gross negligence or willful misconduct of Lender.
SECTION 14.16 NO DUTY. All attorneys, accountants, appraisers, and other
professional Persons and consultants retained by Lender shall have the right to
act exclusively in the interest of Lender and shall have no duty of disclosure,
duty of loyalty, duty of care, or other duty or obligation of any type or nature
whatsoever to any of the Borrowers or Affiliates thereof, or any other Person.
SECTION 14.17 ENTIRE AGREEMENT. This Loan Agreement, the Note, and the other
Loan Documents referred to herein embody the final, entire agreement among the
parties hereto and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating to the
subject matter hereof and may not be contradicted or
105
varied by evidence of prior, contemporaneous, or subsequent oral agreements or
discussions of the parties hereto. There are no oral agreements among the
parties to the Loan Documents.
SECTION 14.18 CONSTRUCTION; SUPREMACY OF LOAN AGREEMENT. The Borrowers and
Lender acknowledge that each of them has had the benefit of legal counsel of its
own choice and has been afforded an opportunity to review this Loan Agreement
and the other Loan Documents with its legal counsel and that this Loan Agreement
and the other Loan Documents shall be construed as if jointly drafted by the
Borrowers and Lender. If any term, condition or provision of this Loan Agreement
shall be inconsistent with any term, condition or provision of any other Loan
Document, then this Loan Agreement shall control.
SECTION 14.19 CONSENT TO JURISDICTION. EACH OF THE BORROWERS HEREBY CONSENTS
TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF
NEW YORK, STATE OF NEW YORK OR WITHIN THE COUNTY AND STATE IN WHICH THE
COLLATERAL IS LOCATED AND IRREVOCABLY AGREES THAT, ALL ACTIONS OR PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL
BE LITIGATED IN SUCH COURTS. EACH OF THE BORROWERS ACCEPTS FOR ITSELF AND IN
CONNECTION WITH THE COLLATERAL, GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON
CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS AGREEMENT, THE NOTE, SUCH OTHER LOAN DOCUMENTS OR SUCH
OBLIGATION. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF LENDER TO BRING PROCEEDINGS
AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 14.20 WAIVER OF JURY TRIAL. EACH OF THE BORROWERS AND LENDER HEREBY
WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS LOAN AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR
ANY DEALINGS BETWEEN ANY BORROWER PARTY AND LENDER RELATING TO THE SUBJECT
MATTER OF THIS LOAN TRANSACTION AND THE LENDER/BORROWER RELATIONSHIP THAT IS
BEING ESTABLISHED. EACH OF THE BORROWER PARTIES AND LENDER ALSO WAIVES ANY BOND
OR SURETY OR SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE
REQUIRED OF IT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF
ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH OF THE BORROWERS AND LENDER ACKNOWLEDGES THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO ENTER INTO THIS LOAN AGREEMENT, THAT EACH HAS
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS LOAN AGREEMENT AND THAT EACH
WILL CONTINUE TO RELY ON THE WAIVER IN
106
THE FUTURE. EACH OF THE BORROWERS AND LENDER FURTHER WARRANTS AND REPRESENTS
THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT IT KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS LOAN AGREEMENT, THE LOAN
DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOAN. IN THE
EVENT OF LITIGATION, THIS LOAN AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
SECTION 14.21 COUNTERPARTS; EFFECTIVENESS. This Loan Agreement and other
Loan Documents and any amendments or supplements thereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which counterparts together shall constitute but one and the same
instrument. This Loan Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto.
SECTION 14.22 SERVICER. Lender shall have the right from time to time to
designate and appoint a Servicer and special servicer, and to change or replace
any Servicer or special servicer. Provided that the Borrowers have been notified
of such Servicer's role, all rights of the Lender hereunder may be exercised by
Servicer on behalf of Lender and provided the Borrowers shall not be required to
deal with more than one such servicing entity at any time. Lender shall notify
the Borrowers in writing as to the identity of the Servicer and any special
servicer.
SECTION 14.23 OBLIGATIONS OF BORROWER PARTIES. The Borrower Parties other
than the Borrowers are parties to this Loan Agreement only with regard to the
representations, warranties, and covenants specifically applicable to them.
SECTION 14.24 ADDITIONAL INSPECTIONS; REPORTS. Notwithstanding anything
contained in this Loan Agreement to the contrary, if for any reason whatsoever
Lender suspects that any conditions exist or may exist at any Property which
might have a Material Adverse Effect, Lender shall have the right, at the
Borrowers' sole reasonable cost and expense, to cause such inspections and
reports to be prepared and performed with respect to any Property as Lender
shall reasonably determine.
[signatures follow on next page]
107
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Loan Agreement as of the date first written above.
BORROWERS:
IMPAC HOTEL GROUP MEZZANINE, LLC,
a Delaware limited liability company
By: /s/ Daniel E. Ellis
-------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
SERVICO OPERATIONS MEZZANINE, LLC,
a Delaware limited liability company
By: /s/ Daniel E. Ellis
-------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
LODGIAN FINANCING MEZZANINE, LLC,
a Delaware limited liability company
By: /s/ Daniel E. Ellis
-------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
ISLAND MOTEL ENTERPRISES, INC., a
Georgia corporation,
By: /s/ Daniel E. Ellis
-------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
PENMOCO, INC., a Michigan corporation,
By: /s/ Daniel E. Ellis
-------------------------
Name: Daniel E. Ellis
Title: Vice President and Secretary
LENDER:
MERRILL LYNCH MORTGAGE LENDING,
INC.
By: /s/ Steve Glassman
---------------------------
Name: Steve Glassman
Title: Authorised Signatory
EXHIBIT A
Lodgian: ALA Schedule
- ---------------------------------------------------------------------------------------------------------------
ALA
-----------------------------
ALLOCATED AGGREGATE
LOAN ALLOCATED
No. Hotel Location State Rms AMOUNT LOAN AMOUNT
- ---------------------------------------------------------------------------------------------------------------
1 Holiday Inn Baltimore - Inner Harbor MD 375 $ 5,996,630 $ 23,359,709
2 Crowne Plaza Albany NY 384 $ 4,484,074 $ 17,467,585
3 Holiday Inn Silver Spring MD 231 $ 4,297,237 $ 16,739,769
4 Holiday Inn Baltimore - BWI Airport MD 259 $ 4,179,470 $ 16,281,009
5 Crowne Plaza Houston TX 291 $ 3,816,038 $ 14,865,269
6 Courtyard by Marriott Atlanta GA 181 $ 3,429,508 $ 13,359,555
7 Holiday Inn Lansing MI 244 $ 2,398,652 $ 9,343,883
8 Doubletree Club Philadelphia PA 282 $ 2,334,203 $ 9,092,823
9 Holiday Inn Select Dallas (DFW Airport) TX 189 $ 2,180,593 $ 8,494,440
10 Hilton Troy (Northfield) MI 191 $ 2,055,200 $ 8,005,977
11 Hilton Columbia MD 152 $ 1,998,877 $ 7,786,570
12 Residence Inn Dedham MA 219 $ 1,817,161 $ 7,078,700
13 Holiday Inn Select Strongsville OH 304 $ 1,817,161 $ 7,078,700
14 Crowne Plaza West Palm Beach FL 81 $ 1,817,161 $ 7,078,700
15 Holiday Inn Rolling Meadows IL 420 $ 1,708,131 $ 6,653,978
16 Countyard by Marriott Bentonville AR 392 $ 1,453,729 $ 5,662,960
17 Holiday Inn St. Louis North MO 90 $ 1,453,729 $ 5,662,960
18 Holiday Inn Select Niagara Falls NY 397 $ 1,362,871 $ 5,309,025
19 Holiday Inn Greentree PA 200 $ 1,308,356 $ 5,096,664
20 Crowne Plaza Cedar Rapids IA 275 $ 1,308,356 $ 5,096,664
21 Holiday Inn Jekyl Island GA 199 $ 1,296,496 $ 1,296,496
22 Holiday Inn Towson (Cromwell Bridge) MD 139 $ 1,272,013 $ 4,955,090
23 Holiday Inn Arden Hills/St. Paul MN 156 $ 1,253,841 $ 4,884,303
24 Holiday Inn Winter Haven FL 228 $ 1,235,669 $ 4,813,516
25 Residence Inn Little Rock AR 96 $ 1,162,983 $ 4,530,368
26 Courtyard by Marriott Abilene TX 99 $ 1,072,125 $ 4,176,433
27 Hampton Inn Pensacola FL 124 $ 1,064,166 $ 4,145,430
28 Courtyard by Marriott Paducah KY 100 $ 1,035,782 $ 4,034,859
29 Holiday Inn SunSpree Myrtle Beach SC 133 $ 1,017,610 $ 3,964,072
30 Holiday Inn Austin TX 210 $ 981,267 $ 3,822,498
31 Holiday Inn Jamestown NY 146 $ 981,267 $ 3,822,498
32 Holiday Inn Glen Bumie MD 127 $ 963,095 $ 3,751,711
33 Holiday Inn Frederick MD 158 $ 926,752 $ 3,610,137
34 Holiday Inn Lancaster PA 189 $ 926,752 $ 3,610,137
35 Holiday Inn Pensacola (University Mall) FL 152 $ 908,580 $ 3,539,350
36 Fairfield Inn Valdosta GA 108 $ 908,580 $ 3,539,350
37 Holiday Inn Sheffield AL 201 $ 781,379 $ 3,043,841
38 Hurstbourne Hotel Louisville KY 398 $ 709,444 $ 2,763,620
39 Holiday Inn Brunswick GA 126 $ 708,693 $ 2,760,693
40 Courtyard by Marriott Florence KY 78 $ 690,521 $ 2,689,906
41 Quality Hotel Metairie LA 205 $ 672,349 $ 2,619,119
42 Holiday Inn York PA 100 $ 672,349 $ 2,619,119
43 Holiday Inn Valdosta GA 167 $ 599,663 $ 2,335,971
44 Holiday Inn East Hartford CT 130 $ 599,663 $ 2,335,971
45 Hampton Inn Dothan AL 113 $ 564,322 $ 2,198,299
46 Holiday Inn Express Pensacola FL 214 $ 563,320 $ 2,194,397
47 French Quarter Suites Memphis TN 105 $ 523,637 $ 2,039,815
48 Holiday Inn Pittsburgh (Pkwy East) PA 180 $ 490,633 $ 1,911,249
49 Four Points Niagara Falls NY 189 $ 454,290 $ 1,769,675
50 Holiday Inn Baltimore West (Belmont) MD 135 $ 436,119 $ 1,698,888
51 Holiday Inn Express Gadsden AL 141 $ 436,119 $ 1,698,888
52 Holiday Inn Marietta (hotel & suites) GA 196 $ 399,775 $ 1,557,314
53 Holiday Inn Select Dallas (Mkt Center) TX 246 $ 363,432 $ 1,415,740
54 Clarion Charleston SC 197 $ 308,917 $ 1,203,379
55 Holiday Inn Grand Island NY 261 $ 236,231 $ 920,231
56 Holiday Inn Dothan AL 102 $ 236,231 $ 920,231
Total (Excluding Windsor) 11,005 $78,671,201 $302,707,526
EXHIBIT B
MANAGEMENT AGREEMENTS
Exhibit B
MANAGEMENT AGREEMENTS
1. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Albany Hotel, Inc. as owner, re:
Crowne Plaza, Albany, NY.
2. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and AMI Operating Partners, L.P., as
owner, re: Holiday Inn, East Hartford, CT.
3. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and AMI Operating Partners, L.P., as
owner, re: Holiday Inn, Fredrick, MD.
4. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and AMI Operating Partners, L.P., as
owner, re: Holiday Inn, Cromwell Bridge, MD.
5. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and AMI Operating Partners, L.P., as
owner, re: Holiday Inn, Belmont, MD.
6. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and AMI Operating Partners, L.P., as
owner, re: Holiday Inn, York, PA.
7. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Apico Hills, Inc., as owner, re:
Holiday Inn, Pittsburgh, PA.
8. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Apico Inns of Green Tree, Inc., as
owner, re: Holiday Inn Green Tree, Pittsburgh, PA.
9. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Brunswick Motel Enterprises, Inc., as
owner, re: Holiday Inn, Brunswick, GA.
10. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Dedham Lodging Associates I, Limited
Partnership, as owner, re: Residence Inn, Dedham, MA.
11. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Dothan Hospitality 3053, Inc., as
owner, re: Holiday Inn, Dothan, AL.
12. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Dothan Hospitality 3071, Inc., as
owner, re: Hampton Inn, Dothan, AL.
13. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Gadsden Hospitality, Inc., as owner,
re: Holiday Inn Express, Gadsden, AL.
14. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Courtyard by Marriott, Atlanta, GA.
15. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Courtyard by Marriott, Abilene TX.
16. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Courtyard by Marriott, Florence, KY.
17. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Courtyard by Marriott, Bentonville, AR.
18. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
DoubleTree Club, Philadelphia, PA.
19. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
The Hurtsbourne Hotel, Louisville, KY.
20. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Fairfield Inn, Valdosta, GA.
21. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Holiday Inn, Valdosta, GA.
22. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Holiday Inn Select, Dallas/Fort Worth Airport, TX.
23. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Holiday Inn, North St. Louis, MO.
24. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Holiday Inn, Surfside Beach, SC.
25. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Holiday Inn Select Strongsville OH.
26. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Holiday Inn Suites, Marietta, GA.
27. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Impac Hotels I, L.L.C., as owner, re:
Courtyard by Marriott, Paducah, KY.
28. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Little Rock Lodging Associates I,
Limited Partnership, as owner, re: Residence Inn, Little Rock, AR.
-2-
29. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Lodgian AMI, Inc., as owner, re:
Holiday Inn, Inner Harbor, Baltimore, MD.
30. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Lodgian AMI, Inc., as owner, re:
Holiday Inn, Glen Burnie, MD.
31. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Lodgian AMI, Inc., as owner, re:
Holiday Inn, BWI Airport, Baltimore, MD.
32. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Lodgian AMI, Inc., as owner, re:
Holiday Inn, Lancaster, PA.
33. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Minneapolis Motel Enterprises, Inc.,
as owner, re: Holiday Inn, St. Paul, MN.
34. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and NH Motel Enterprises, Inc., as owner,
re: Hilton Norfield, Troy, MI.
35. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Cedar Rapids, Inc., as owner,
re: Crowne Plaza, Cedar Rapids, IA.
36. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Centre Associates, Ltd., as
owner, re: Crowne Plaza, West Palm Beach, FL.
37. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Grand Island, Inc., as owner,
re: Holiday Inn, Grand Island, NY.
38. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Jamestown, Inc., as owner,
re: Holiday Inn, Jamestown, NY.
39. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Lansing, Inc., as owner, re:
Holiday Inn, Lansing, MI.
40. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Maryland, Inc., as owner, re:
Holiday Inn, Silver Springs, MD.
41. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Metairie, Inc., as owner, re:
Quality Hotel, Metaire, LA.
42. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico New York, Inc., as owner, re:
Holiday Inn Select, Niagara Falls, NY.
-3-
43. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Niagara Falls, as owner, re:
Four Points Sheraton, Niagara Falls, NY.
44. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Northwoods, Inc., as owner,
re: Clarion Hotel, Charleston, SC.
45. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Pensacola 7200, Inc., as
owner, re: Holiday Inn, Pensacola, FL.
46. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Pensacola 7330, Inc., as
owner, re: Hampton Inn, Pensacola, FL.
47. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Pensacola, Inc., as owner,
re: Holiday Inn Express, Pensacola, FL.
48. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Rolling Meadows, Inc., as
owner, re: Holiday Inn, Rolling Meadows, IL.
49. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Winter Haven, Inc., as owner,
re: Holiday Inn, Winter Haven, FL.
50. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Sheffield Motel Enterprises, Inc., as
owner, re: Holiday Inn, Sheffield, AL.
51. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Austin, Inc., as owner, re:
Holiday Inn, Austin, TX.
52. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Columbia, Inc., as owner, re:
Hilton, Columbia, MD.
53. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Houston, Inc., as owner, re:
Crowne Plaza, Houston, TX.
54. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Servico Market Center, Inc., as
owner, re: Holiday Inn, Dallas, TX.
55. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Lodgian Memphis Property Owner, LLC,
as owner, re: French Quarter Suites, Memphis, TN.
56. Management Agreement, dated November 12, 2002, between Lodgian
Management Corp., as manager, and Penmoco, Inc. and Island Motel
Enterprises, Inc., as owner, re: Holiday Inn, Jekyll Island, GA.
-4-
EXHIBIT C
PROPERTIES
Exhibit C
EXHIBIT C
LODGIAN
CHAIN/NAME CITY ST ADDRESS CITY/ST/ZIP
---------- ---- -- ------- -----------
Hampton Inn Dothan AL 3071 Ross Clark Circle Dothan, AL 36301
Holiday Inn West Dothan AL 3053 Ross Clark Dothan, AL 36301
Holiday Inn Express Gadsden AL 801 Cleveland Ave. Gadsden, AL 35954
Holiday Inn Sheffield AL 4900 Hatch Blvd. Sheffield, AL 35660
Courtyard by Marriott Bentonville AR 1001 McClain Rd. Bentonville, AR 72712
Residence Inn Little Rock AR 1401 S. Shackleford Rd. Little Rock, AR 72211
Holiday Inn East Hartford CT 363 Roberts St. E. Hartford, CT 06108
Hampton Inn Pensacola FL 7330 Plantation Rd. Pensacola, FL 32504
Holiday Inn Express Pensacola FL 6501 Pensacola Blvd. Pensacola, FL 32505
Holiday Inn Pensacola FL 7200 Plantation Rd. Pensacola, FL 32504
(University Mall)
Crowne Plaza West Palm Beach FL 1601 Belvedere Rd. West Palm Beach, FL 33406
Holiday Inn Winter Haven FL 1150 3rd St., SW Winter Haven, FL 33880
Courtyard by Marriott Atlanta GA 3332 Peachtree Rd. Atlanta, GA 30326
Holiday Inn Brunswick GA 5252 New Jesup Hwy Brunswick, GA 31525
Holiday Inn Marietta (hotel & GA 2265 Kingston Ct. Marietta, GA 30067
suites)
Fairfield Inn Valdosta GA 1311 St. Augustine Rd. Valdosta, GA 31601
Holiday Inn Valdosta GA 1309 St. Augustine Rd. Valdosta, GA 31601
Crowne Plaza Cedar Rapids IA 350 1st Ave, NE Cedar Rapids, IA 52401
Holiday Inn Rolling Meadows IL 3405 Algonquin Rd. Rolling Meadows, IL 60008
Courtyard by Marriott Florence KY 46 Cavalier Blvd. Florence, KY 41042
Hurstbourne Hotel Louisville KY 9700 Blue Grass Parkway Louisville, KY 40299
Courtyard by Marriott Paducah KY 3835 Technology Dr. Paducah, KY 42001
Quality Hotel Metairie LA 2261 N. Causeway Blvd. Metairie, LA 70001
Residence Inn Dedham MA 259 Elm St. Dedham, MA 02026
Holiday Inn Baltimore - BWI MD 890 Elkridge Landing Rd. Linthicum Heights, MD
Airport 21090
Holiday Inn Baltimore West MD 1800 Belmont Ave. Baltimore, MD 21244
(Belmont)
Holiday Inn Baltimore, Inn Harbor MD 301 W. Lombard St. Baltimore, MD 21201
Hilton Columbia MD 5485 Twin Knolls Rd. Columbia, MD 21045
Holiday Inn Frederick MD 999 W. Patrick St. Frederick, MD 21702
Holiday Inn Glen Burnie MD 6323 Governor Ritchie Glen Burnie, MD 21061
Hwy
Holiday Inn Silver Spring MD 8777 Georgia Ave. Silver Spring, MD 20910
Holiday Inn Towson (Cromwell MD 1100 Cromwell Bridge Rd. Towson, MD 21286
Bridge)
Holiday Inn Lansing MI 7501 W. Saginaw Hwy Lansing, MI 48917
Hilton Troy (Northfield) MI 5500 Crooks Rd. Troy, MI 48098
EXHIBIT C
Holiday Inn Arden Hills/St. Paul MN 1201 West Country Rd. E St. Paul, MN 55112
Holiday Inn St. Louis North MO 4545 N. Lindbergh Blvd. St. Louis, MO 63044
Crowne Plaza Albany NY Ten Eyck Plaza Albany, NY 12207
Holiday Inn Grand Island NY 100 Whitehaven Rd. Grand Island, NY 14072
Holiday Inn Jamestown NY 150 W. 4th St. Jamestown, NY 14701
Four Points Niagara Falls NY 114 Buffalo Ave. Niagara Falls, NY 14303
Holiday Inn Select Niagara Falls NY 300 Third St. Niagara Falls, NY 14303
Holiday Inn Select Strongsville OH 15471 Royalton Rd. Strongsville, OH 44136
Holiday Inn Select Windsor ONT 1855 Huron Church Road Canada N9C 2L6
Holiday Inn Greentree PA 401 Holiday Drive Pittsburgh, PA 15220
Holiday Inn Lancaster PA 521 Greenfield Rd. Lancaster, PA 17601
Doubletree Club Philadelphia PA 9461 Roosevelt Blvd. Philadelphia, PA 19114
Holiday Inn Pittsburgh (Pkwy East) PA 915 Brinton Rd. Pittsburgh, PA 15221
Holiday Inn York PA 334 Arsenal Rd. York, PA 17402
Clarion North Charleston SC 7401 Northwoods Blvd. Charleston, SC 29406
Holiday Inn SunSpree Myrtle Beach SC 1601 N. Ocean Blvd. Surfside Beach, SC 29575
French Quarter Suites Memphis TN 2144 Madison Ave. Memphis, TN 38104
Courtyard by Marriott Abilene TX 4350 Ridgemont Dr. Abilene, TX 79606
Holiday Inn Austin TX 3401 South I-35 Austin, TX 78741
Holiday Inn Select Dallas (DFW Airport) TX 4441 Hwy 114 & Esters Irving, TX 75063
Blvd.
Holiday Inn Dallas (Mkt Center) TX 1955 Market Center Dallas, TX 75207
Blvd.
Crowne Plaza Houston TX 12801 NW Freeway US 290 Houston, TX 77040
EXHIBIT D
PROPERTY IMPROVEMENT PLANS
CLARION HOTEL CHARLESTON, SC
HILTON HOTEL TROY (NORTHFIELD), MI
HILTON HOTEL COLUMBIA, MD
DOUBLETREE CLUB HOTEL PHILADELPHIA, PA
HOLIDAY INN SHEFFIELD, AL
HOLIDAY INN JEKYLL ISLAND, GA
PROPERTY IMPROVEMENT PLAN
CLARION HOTEL
CHARLESTON, SC
SC237
CLARION HOTEL
ADDENDUM NO. 1
The Franchise Agreement ("Agreement") of even date between Choice
Hotels International. Inc., a Delaware corporation ("we" or "us") and SERVICO
NORTHWOODS INC., a Florida corporation, TOM GRYBOSKI, Individually, jointly and
severally ("you") is amended by the following:
1. You agree to make the following changes and additions to
upgrade the Hotel to meet our standards or to cure existing deficiencies before
entering the CLARION HOTEL System, BUT IN NO EVENT LATER THAN SEPTEMBER 15,
2000. You may not use the proprietary marks until we authorize you to do so.
(a) replace informational/ directional signage package
(b) provide minimally 4 Guest Privileges "upgrade" type rooms.
(c) install towel rack at all guest bath room vanity's
(d) replace all damaged guest bath room ceiling grids and tiles in atrium rooms.
(e) install Clarion Sleeper by SERTA bedding in 50% of guest rooms.
(f) replace all guest room door signage, numbers, to a more contemporary design
(g) paint guest room entry doors
(h) install a microwave oven in all Clarion Class Leisure rooms.
(i) install refrigerators in all Clarion Leisure and Business Class rooms. All
refrigerators are to be placed in enclosed cabinet.
(j) renovate and equip no less than 20% of available room inventory as Clarion
Class Leisure Rooms.
(k) renovate and equip no less than 35% of available room inventory as Clarion
Class Business rooms. These must include the Class One Business Station per
the Clarion rules & regulations.
(l) replace damaged luggage carts
(m) replace all desk chairs not meeting Clarion minimum specifications. Desk
chairs must have a fully upholstered seat and back
(n) repaint all damaged restaurant and lounge furniture (in Atrium)
(o) paint all railings (interior and exterior)
(p) install full sized irons and ironing boards in all guestrooms
(q) install a hair dryer (minimum heat output of 1500 watts) in all guestrooms
(r) install telephone data ports in all guest rooms
Addendum No. 1
Page 2
(s) install required furniture at pool, to include, but not limited to umbrella
tables with chairs, chaise lounges and suntan lounges per the Clarion
minimum specifications.
(t) repair pool fence and gate(s). Pool gates must be self closing and self
locking.
(u) replace damaged wall vinyl in atrium/ lobby. Paint damaged area as needed.
(v) replace stained/ damaged ceiling tile in all public bathrooms.
(w) replace damaged/ stained ceiling tile in public corridors. Restore acoustic
spray where lacking.
(x) replace damaged windows in atrium/ lobby.
(y) clean all walkways and driveway (under porte-cochere) thoroughly.
2. You agree to make the following changes and additions to
upgrade the Hotel to meet our standards or to cure existing deficiencies in
accordance with the CLARION HOTEL Rules and Regulations after entering the
System in accordance with the following schedule:
By December 1, 2001
(a) install new Clarion Sleeper by Serta bed sets in all remaining
guestrooms
(b) replace guest bath room tile floors with ceramic tile of at least 2
square inches.
(c) replace all television sets with 25", swivel mounted remote control
television sets
(d) replace wall vinyl in all guest rooms and guest bath rooms.
By December 31, 2001
(e) enclose closets in guest rooms per requirements of the Clarion rules
and regulations.
(f) install window sheers in all guest rooms.
(g) modify and equip an area to comply with all requirements of the Clarion
BIZNET business center. It is strongly recommended that guests have
access to this area 24 hours per day.
(h) replace all wall vinyl in interior (atrium) hallways
(i) recondition both elevator cabs by renovating ceiling, walls and floor.
(j) replace damaged lobby entrance doors.
3. You acknowledge and agree that the changes and additions
stated in paragraphs 1 and 2 are in addition to your continuing obligation to
comply with the Rules and Regulations under paragraph 6.a. of the Franchise
Agreement.
Addendum No. 1
Page 3
4. You represent and warrant to us that you are not party to any
contract that would conflict with this Agreement. If the Hotel is presently
operated under a franchise agreement with another franchisor, this Agreement is
contingent on you furnishing verification satisfactory to us within thirty (30)
days, but in any event before entering the System, evidencing your right to
terminate the other franchise. Furthermore, you agree to defend, indemnify and
hold us harmless against any claims, losses, or liabilities that may be asserted
against us by the other franchisor arising out of or related to the termination
of the other franchise, including tortious interference with contractual
relations or similar claims.
5. The secondary name "Airport" may be used so long as the Hotel
is located within five (5) miles of the airport, you provide or have arranged
transportation to and from the airport upon guest demand (this service does not
need to be complimentary) and you must have a direct-dial telephone in the
terminal of the airport. In the event any of the aforementioned requirements
have not been met or cease to be met, the Hotel will not be authorized to use
the secondary name.
6. We agree that you may use the secondary name of airport. Your
property will now be referred to as "CLARION HOTEL Airport". Please bear in mind
that our approval of this secondary marketing name does not grant you a
contractual right to use this name indefinitely. If the circumstances, market
conditions, or our criteria change, we reserve the right to revoke our approval
of this secondary name at a later date.
7. Subject to the provisions of paragraph 8 below, paragraph 4(b)
of the Agreement thereto are hereby replaced by the following:
(a) "You must pay to Us a monthly Royalty Fee as follows:
beginning on the Opening Date, a sum equal to 3.13%
of the Gross Room Revenues for each month.
(b) "You must pay to Us a monthly Marketing Fee as
follows:
beginning on the Opening Date, a sum equal to 0.83%
of the Gross Room Revenues for each month.
We may increase the Marketing Fee for increases in inflation or costs
of advertising, publicity, public relations or marketing so long as any the
increases apply to all or most of the U.S. hotels in the System unless we get
your approval to a greater amount.
(c) "You must pay to Us a monthly Reservations Fee as
follows:
beginning on the Opening Date, sum equal to 1.04% of
the Gross Room Revenues for each month.
We may increase the Reservations Fee for increases in our cost of
providing the reservations system so long as any the increases apply to all or
most of the U.S. hotels in the System unless we get your approval to a greater
amount
Addendum No. 1
Page 4
8. The modifications referred to in paragraph 7 above are made
upon the express conditions that you permit no material default of your
obligations in this Agreement (including any Addenda thereto) to continue for
more than 30 days or, after the Opening Date, that you not receive a failing
Quality Assurance Review score in any of the categories which are scored (i.e.,
Housekeeping, Mandatory or Maintenance & Capital Improvements). "Material
default" includes non payment of any fees or other monies required to be paid by
this Agreement. In the event either of the aforementioned deficiencies shall
occur, the modification(s) referred to in paragraph 7 shall thereafter
automatically become null and void and shall not be reinstated even if the
conditions are subsequently removed and paragraph 4(b) of the Agreement thereto
shall be reinstated. Such modification is exclusive to you and is not
transferable to any other party.
9. Notwithstanding anything to the contrary contained in
paragraph 10 of the Agreement, if the Hotel is sold to a bona fide purchaser and
the purchaser does not enter into a Franchise Agreement with us for the Hotel or
does not assume this Agreement, the amount of liquidated damages shall not
exceed $25,000 so long as liquidated damages and all fees accruing under the
Agreement are paid in certified funds within 30 days from the sale of the Hotel.
10. Notwithstanding anything contained in paragraph 9(b) of the
Agreement, you may transfer a direct or indirect interest in the Hotel or in
this Agreement to a limited liability company, a corporation or a partnership
formed within 60 months of the date of this Agreement without payment of any
affiliation fee, if:
(a) You send us prior written notice of the transfer,
(b) You are not in default under this Agreement;
(c) You execute and deliver to us a general release of
all claims you have against us;
(d) You will own a majority of the beneficial interest in
the limited liability company, corporation or
partnership after the transfer;
(e) You agree that you are not relieved of your
obligation under this Agreement unless we
specifically release you in writing;
(f) Your successor assumes, in a writing that we accept,
your obligations under this Agreement;
(g) Your successor submits evidence to us that it owns
the Hotel; and
(h) We approve of the transfer after a credit and legal
review.
11. Notwithstanding anything to the contrary, if we approve and
enter into 2 additional franchise agreements with you for NE069-CLHO (Omaha) and
IA078-QIIN (Council Bluffs) by September 10, 2000, then the Affiliation Fee
pursuant to paragraph 4(a) of this Agreement will be $25,000, the discounted
fees contained in paragraph 7 of Addendum No. 1 will be in effect and liquidated
damages pursuant to paragraph 9 of Addendum No. 1 will be in effect. The
additional franchise agreements will be entitled to the same discounted fees in
this Agreement. If we do not approve and enter into the 2 additional franchise
agreements with you pursuant to this paragraph, then the affiliation fee will be
$40,000 and you must pay the balance according to the terms of the attached
Promissory Note that you will execute, and the modification(s) referred to in
paragraphs 7 and 9 shall thereafter automatically become null and void and
paragraph 4(b) of the Agreement shall be reinstated if we do execute the 2
additional franchise agreements with you, then we will waive the terms of the
Promissory Note.
(SEE NEXT PAGE FOR SIGNATURES)
Addendum No. 1
Page 5
IN WITNESS WHEREOF, you and we have signed this Addendum to the Franchise
Agreement.
ATTEST: CHOICE HOTELS INTERNATIONAL, INC.,
A Delaware corporation
____________________________ By: ___________________________________ L.S.
Name: Kevin M. Rooney Name: Michael J. DeSantis
Title: Assistant Secretary Title: Senior Vice President
SERVICO NORTHWOODS INC., a Florida corporation,
TOM GRYBOSKI, Individually, jointly and
severally
Witness: SERVICO NORTHWOODS INC., a Florida corporation
____________________________ By: ___________________________________ L.S.
Name: Name: Karyn M. Gutierrez
Title: Title: President
Date: _______________________
Witness: TOM GRYBOSKI, Individually
____________________________ _______________________________________ L.S.
Name:
Date: _______________________
Witness:
By: ___________________________________ L.S.
____________________________ Name:
Name: Title:
Title:
Date: _______________________
Witness:
____________________________ By: ___________________________________ L.S.
Name: Name:
Title: Title:
Date: _______________________
PROPERTY IMPROVEMENT PLAN
HILTON HOTEL
TROY (NORTHFIELD), MI
PRELIMINARY
PRODUCT IMPROVEMENT REPORT
HILTON HOTEL DETROIT NORTHFIELD, MI
CONDUCTED ON: 7/15/02. BY C. ENGELHARDT
THE IMPROVEMENTS IDENTIFIED IN THIS REPORT ARE BASED ON CONDITIONS EXISTING ON
THE ABOVE DATE. PROPERTY TRANSACTIONS OCCURRING AFTER 180 DAYS WILL REQUIRE AN
UPDATED REPORT. ANY WAIVERS AND/OR VARIANCES ISSUED ARE CANCELLED AND NO LONGER
EFFECTIVE AT TIME OF SALE, CLOSING, OR ANY OTHER AMENDMENT TO THE ORIGINAL
FRANCHISE AGREEMENT. HILTON HOTELS DOES NOT AND CANNOT WARRANT CONFORMANCE WITH
INTERPRETATION OF THE AMERICANS WITH DISABILITIES ACT ("ADA") AND THE ADA
ACCESSIBILITY GUIDELINES. OWNERSHIP IS RESPONSIBLE FOR COMPLIANCE WITH
APPLICABLE PROVISIONS OF THE ADA. APPROPRIATE COUNSEL TO ENSURE COMPLIANCE IS
URGED.
EXTERIOR
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
BUILDING, ENTRANCE, PORTE COCHERE AND SIGNAGE
=========================================================================================================
7/31/02 Replace T-10-11 Surface with EIFS. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Add decorative stamped paver slab under Porte Cochere 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Add new recessed lighting package to underside of Porte Cochere roof. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Repair water stains Porte Cochere ceiling. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace damaged PTAC grills. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Resurface cracked areas of building exterior 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Add electronic card swipes at all entrances 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
PARKING LOT, LANDSCAPING, LIGHTING, ETC.
=========================================================================================================
7/31/02 Resurface and stripe entire parking area. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Add additional landscaping around perimeter of hotel and on all island 180 days
beds in parking lot.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace all exterior signage with new Hilton logo. 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Page 1 of 9
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
PUBLIC AREAS
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
LOBBY/ENTRANCE
=========================================================================================================
7/31/02 Cover all concrete surfaces with gypsum board or an appropriate 180 days
millwork treatment.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace wall sconces. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace carpet a entrance. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace and upgrade all millwork on telephone partitions must be 180 days
modified to comply with ADA requirements.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace wall vinyl in lobby area and first floor corridors. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Refinish front desk surfaces. 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
PUBLIC RESTROOMS
=========================================================================================================
7/31/02 Remodel restrooms to include; wall coverings, partitions, vanities, 180 days
tile, lighting package and mirrors.
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
CORRIDORS/ELEVATOR/STAIRWELLS
=========================================================================================================
7/31/02 Replace all carpet and carpet pad 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Upgrade wall sconces on floors 1 and 3 to same style as 2nd floor. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Provide artwork in all guest room corridors. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Upgrade ceiling in guest corridors. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Refinish elevator cabs to include; walls floors ceilings and lighting. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Ensure panel controls are ADA compliant. 180 days
- ---------------------------------------------------------------------------------------------------------
Page 2 of 9
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
COMPLIMENTARY SERVICES AREA
=========================================================================================================
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
RESTAURANT
=========================================================================================================
7/31/02 Completely remodel the restaurant facility, to include; carpet, carpet 180 days
pad, walls, lighting package, artwork, tables, chairs, ceiling,
entrance/host stand and buffet line.
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
KITCHENS
=========================================================================================================
7/31/02 Professionally deep clean walls and equipment. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace ceiling tiles. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace kitchen floor tile 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
PUBLIC AREAS
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
LOUNGE
=========================================================================================================
7/31/02 Refinish bar surface and front. Replace bar stools. 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Page 3 of 9
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
=========================================================================================================
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
MEETING FACILITIES
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
BALLROOM
=========================================================================================================
7/31/02 Replace existing lay-in ceiling tile with a combination of gyp board 180 days
and lay-in tile. New ceiling tile must be a tegular edge tile with a
fine line 9/16" grid system.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace vinyl wall covering. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Repair or replace existing air walls. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace carpet and carpet pad. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace all banquet stack chairs. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace lighting package. 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
PRE-FUNCTION AREA
=========================================================================================================
7/31/02 Replace carpet and carpet pad 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace all wall vinyl 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace soft seating groups 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace lighting package 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
MEETING ROOM
=========================================================================================================
7/31/02 Replace lay in ceiling system with a 2x2' tile with tegular edge and a 180 days
9/16" grid system.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace carpet and carpet pad 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace all wall vinyl 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace lighting package 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
RESTROOMS-PRE-FUNCTION AREA
=========================================================================================================
7/31/02 Completely remodel restrooms to include; floors, vanities, mirrors, 180 days
partitions, wall vinyl, ceilings, and chrome
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Page 4 of 9
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
BACK OF HOUSE/STORAGE AREAS
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
HOUSEKEEPING/MAINTENANCE
=========================================================================================================
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
STORAGE AREAS
=========================================================================================================
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
RECREATIONAL FACILITIES
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
POOL AND ADJACENT AREAS
=========================================================================================================
7/31/02 Remodel pool area to include; new deck, replace vinyl and resurface 180 days
bottom of pool.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Repair broken window seals. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Add required exercise room with appropriate pieces of equipment. 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Page 5 of 9
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
POOL-PUBLIC RESTROOMS
=========================================================================================================
7/31/02 Remodel Men's and Women's Locker rooms, restrooms and shower 180 days
areas to include: ceramic tile surfaces, wall finishes, ceilings,
vanities, fixtures, chrome and lighting package.
- ---------------------------------------------------------------------------------------------------------
GUESTROOMS
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
BEDROOM
=========================================================================================================
9/1/01 Add two line telephones with two phones present in each room. The 180 days
telephone on the desk must be equipped with an RJ11 jack located at
the base of the phone that is clearly labeled Data Port.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Install 27" televisions per brand standards. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Install approved closet rod system as stated in the Design and 180 days
Construction Standards Manual.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Add new "soft goods" and case good pieces to rooms to include; 180 days
Carpet, carpet pad, drapes, bedspreads, soft seating, lamps and Hilton
approved work desk and ergonomic chair.
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Page 6 of 9
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
GUEST ROOMS
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
BATHROOM
=========================================================================================================
7/31/02 Remodel all guest bathrooms on 1st and 3rd floor to include; minimum 180 days
6x6" ceramic tile, new tub surrounds that meet current standards, new
VWC, new lighting package, replace varities, new chrome and paint
ceilings.
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Page 7 of 9
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
OTHER
=========================================================================================================
DATE AREA STATUS
=========================================================================================================
7/31/02 Replace carpet in back office area. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace flooring in back of house offices. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace office furniture in back of house offices 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Repair leaks in stairwells and repair water damage. 180 days
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
=========================================================================================================
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Page 8 of 9
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
Page 9 of 9
PROPERTY IMPROVEMENT PLAN
HILTON HOTEL
COLUMBIA, MD
PRELIMINARY
PRODUCT IMPROVEMENT REPORT
HILTON HOTEL-COLUMBIA, MD.
CONDUCTED ON: 7/16/02 BY: C. ENGELHARDT
THE IMPROVEMENTS IDENTIFIED IN THIS REPORT ARE BASED ON CONDITIONS EXISTING ON
THE ABOVE DATE. PROPERTY TRANSACTIONS OCCURRING AFTER 180 DAYS WILL REQUIRE AN
UPDATED REPORT. ANY WAIVERS AND/OR VARIANCES ISSUED ARE CANCELLED AND NO LONGER
EFFECTIVE AT TIME OF SALE, CLOSING, OR ANY OTHER AMENDMENT TO THE ORIGINAL
FRANCHISE AGREEMENT. HILTON HOTELS DOES NOT AND CANNOT WARRANT CONFORMANCE WITH
INTERPRETATION OF THE AMERICANS WITH DISABILITIES ACT ("ADA") AND THE ADA
ACCESSIBILITY GUIDELINES. OWNERSHIP IS RESPONSIBLE FOR COMPLIANCE WITH
APPLICABLE PROVISIONS OF THE ADA. APPROPRIATE COUNSEL TO ENSURE COMPLIANCE IS
URGED.
EXTERIOR
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
BUILDING, ENTRANCE, PORTE COCHERE AND SIGNAGE
=========================================================================================================
7/31/02 The Porte Cochere requires renovation in conjunction with the exterior 180 days
improvements to heighten curb appeal and create a "First Class" sense
of arrival. Provide new roofline, strong architectural detail at the
fascia, built out columns with capitals and bases, decorative
lighting, new ceiling treatment and upgraded stamped paving. The
entrance walk areas where matting exists are to receive upgraded
treatments. Architect renderings are to be submitted to Hilton for
approval.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Resurfacing of exterior wall finishes with synthetic stucco, stone or 180 days
brick. Reseal or replace all exterior windows and repaint frames.
Install upgraded exterior lighting package and exterior entrances.
Architect renderings are to be submitted to Hilton for approval.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace all sidewalks that are cracked, graveled or sunken. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace existing Hilton signage with new logo and cartouche to meet 180 days
all current Hilton standards and requirements.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Install Hilton Brand Standard flagpoles (3) and flags in front of 180 days
building.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Vans to be repainted and conform to the current graphic identity 180 days
standards.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Remove existing enclosure of trash/dumpster area. Remove and replace 180 days
concrete pad and adequately seal at wall joint to prevent further sub
structure leakage. Resurface exterior walls and provide additional
lighting.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace awning at exterior restaurant entrance. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Properly enclose chilling tower to include wooden louvered vent 180 days
panels.
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Page 1 of 10
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
PARKING LOT, LANDSCAPING, LIGHTING, ETC.
=========================================================================================================
7/31/02 Patch, resurface and stripe entire parking lot. Remove or replace all 180 days
concrete car curbs.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Retain a professional landscape artist that will design and install an 180 days
upgraded landscaping package to creates a "First Class" sense of arrival.
Ensure tree, shrubbery and plantings are designed for a four-season
approach with seasonal foliage at all times of year. Submit design plan
to Hilton for approval.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Install upgraded parking lot lighting package that meets Hilton lighting 180 days
design specifications.
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
PUBLIC AREAS
=========================================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
=========================================================================================================
LOBBY/ENTRANCE
=========================================================================================================
7/31/02 Remodel entire lobby to include: carpet, carpet pad, VWC, soft 180 days
seating, case good pieces and artwork.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Refinish front desk millwork. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Replace floor to ceiling windows in lobby with a dry wall surface. 180 days
- ---------------------------------------------------------------------------------------------------------
7/31/02 Install upgraded directional signage package that meets Hilton and 180 days
ADA specifications.
- ---------------------------------------------------------------------------------------------------------
7/31/02 Place business center in public area to increase guest 180 days
impact/utilization.
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
=========================================================================================================
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
Page 2 of 10
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
===========================================================================================
PUBLIC RESTROOMS
===========================================================================================
7/31/02 Replace vanities with corian or equal, marble or 180 days
granite with undermount china bowl.
- -------------------------------------------------------------------------------------------
7/31/02 Replace all chrome, mirrors and provide an upgraded 180 days
lighting package.
- -------------------------------------------------------------------------------------------
7/31/02 Upgrade/refinish restroom entrance doors. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Upgrade ceiling tile with a 2x2' regular tile with 9/16 180 days
grid.
- -------------------------------------------------------------------------------------------
7/31/02 Replace VWC. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace ceramic floor tile with 8x8" 180 days
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
CORRIDORS/ELEVATOR/STAIRWELLS
===========================================================================================
7/31/02 The corridors will require a complete renovation to 180 days
include carpet and pad (ensure new carpet has
"rug" inset style design), wall vinyl and color
coordinated corner guards, ceiling finish, lighting
upgrade, window treatments, artwork and ADA compliant
signage.
- -------------------------------------------------------------------------------------------
7/31/02 Upgrade the appearance of the elevator foyers with 180 days
appropriately scaled accent furnishings, decorative
lighting, artwork and accessories.
- -------------------------------------------------------------------------------------------
7/31/02 Paint and install VCT flooring in all stairways. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Resurface all finishes in elevators including floor, 180 days
wall and ceiling. Ensure panel controls meet all ADA
requirements.
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
COMPLIMENTARY SERVICES AREA.
===========================================================================================
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
RESTAURANT
===========================================================================================
7/31/02 Repair wood floor, replace bar stools, apply new 180 days
fabric/vinyl to all booth type seating.
- -------------------------------------------------------------------------------------------
7/31/02 Replace carpeting in both restaurant and lounge 180 days
areas. Replace stained and damaged ceiling tile in
both areas.
- -------------------------------------------------------------------------------------------
7/31/02 Replace or repair all restaurant tables and 180 days
scating to "like new condition."
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
KITCHENS
===========================================================================================
- -------------------------------------------------------------------------------------------
Page 3 of 10
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- -------------------------------------------------------------------------------------------
===========================================================================================
PUBLIC AREAS
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
LOUNGE
===========================================================================================
See restaurant area...
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
METTING FACILITIES
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
BALL ROOM
===========================================================================================
7/31/02 Repair and paint all millwork. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace carpet and carpet pad. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace VWC. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace all banquet stack chairs 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace both ballrooms' entrance signage and 180 days
upgrade the overall meeting room sign package.
- -------------------------------------------------------------------------------------------
7/31/02 Replace or repair air walls to like new condition. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace or refinish all podiums 180 days
- -------------------------------------------------------------------------------------------
===========================================================================================
PRE-FUNCTION AREA
===========================================================================================
7/31/02 In conjunction with the adjacent Atrium renovation 180 days
the pre-function
- -------------------------------------------------------------------------------------------
Page 4 of 10
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- -------------------------------------------------------------------------------------------
area will require a complete renovation to include
floor and wall surfaces, base and wall moldings,
ceiling and lighting upgrade, art and accessories
package.
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
MEETING ROOM
===========================================================================================
7/31/02 Repair and paint all millwork 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Install window treatments allowing blackout 180 days
conditions for audio/visual purposes.
- -------------------------------------------------------------------------------------------
7/31/02 Replace all VWC. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace all carpet and carpet pad. 180 days
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
RESTROOMS - PRE-FUNCTION AREA
===========================================================================================
7/31/02 Complete restroom remodel in Women's restroom 180 days
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
BACK OF HOUSE/STORAGE AREAS
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
HOUSEKEEPING/MAINTENANCE
===========================================================================================
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
STORAGE AREAS
===========================================================================================
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
Page 5 of 10
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
RECREATIONAL FACILITIES
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
POOL AND ADJACENT AREAS
===========================================================================================
7/31/02 Replace flooring in pool area. Resurface pool and 180 days
spa.
- -------------------------------------------------------------------------------------------
7/31/02 Repaint depth markers on coping around pool. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace pool expansion joint seal. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Reseal exterior windows. Repair water damage on wall 180 days
above window. Repaint rusted sprinkler pipes.
- -------------------------------------------------------------------------------------------
7/31/02 Refinish or replace any entrance doors. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace carpet, pad and base at pool as well as 180 days
fitness center entrance.
- -------------------------------------------------------------------------------------------
7/31/02 Replace pool and deck furniture. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace fitness area exercise equipment to 180 days
Hilton specifications.
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
POOL-PUBLIC RESTROOMS
===========================================================================================
7/31/02 Repair and refinish saunas in both the women and men's 180 days
restrooms.
- -------------------------------------------------------------------------------------------
7/31/02 Install new toiletry dispensers in both women's 180 days
and men's restrooms.
- -------------------------------------------------------------------------------------------
7/31/02 Install upgraded lighting package. 180 days
- -------------------------------------------------------------------------------------------
GUESTROOMS
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
BEDROOM
===========================================================================================
7/31/02 The guest rooms will require a complete replacement 180 days
of the FF&E to include but not limited to:
carpet, pad and base, wall vinyl, ceiling paint,
case-goods to include desks (ensure desks are replaced
with over-scaled work desks that meet all Hilton
requirements), desk chairs (ensure desk chairs are
replaced with ergonomic chairs), coverlets and dust
ruffles, drapery treatments and sheers, lighting
package, art, mirrors, lever type door hardware
and Serta Perfect Sleeper "Suite Dreams by Hilton".
- -------------------------------------------------------------------------------------------
Page 6 of 10
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
- -------------------------------------------------------------------------------------------
7/31/02 All HVAC units must have wall mounted remote 180 days
thermostats. Replace all dented, damaged, poorly
operating and noisy PTAC units.
- -------------------------------------------------------------------------------------------
7/31/02 Replace or repair all closet doors. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 The suites will require a complete replacement of 180 days
the FF&E to include, but not limited to: carpet,
pad and base, wall vinyl, ceiling paint, case-goods
to include desks (ensure desks are replaced with
over-scaled work desks that meet Hilton
requirements), desk chairs (ensure desk
chairs are replaced with ergonomic chairs),
coverlets and dust ruffles, drapery treatments and
sheers, lighting package, art, mirrors, and Serta
Perfect Sleeper "Suite Dreams by Hilton".
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
Page 7 of 10
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
GUEST ROOMS
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
BATHROOM
===========================================================================================
7/31/02 Replace remaining 65 rooms of bathrooms floor tiles 180 days
with either ceramic, marble or granite tiles with
dimensions of 8x8 or greater.
- -------------------------------------------------------------------------------------------
7/31/02 Replace remaining 65 rooms of fiberglass inserts in 180 days
tub surrounds with either a ceramic tile, marble or
granite with same dimensions as above. Caulk
existing tub surrounds.
- -------------------------------------------------------------------------------------------
7/31/02 Move remaining 65 rooms of towel racks to the back of 180 days
the shower in all guest baths and vinyl walls.
- -------------------------------------------------------------------------------------------
7/31/02 Repaint remaining 65 rooms of bathroom ceilings. 180 days
- -------------------------------------------------------------------------------------------
7/31/02 Replace vanity hardware and relocate toilet tissue 180 days
bolders.
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
Page 8 of 10
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
OTHER
===========================================================================================
DATE AREA STATUS
===========================================================================================
LIFESAFETY
===========================================================================================
7/31/02 Ensure all systems are in complete compliance with 180 days
Hilton and Governmental requirements for Life
Safety.
- -------------------------------------------------------------------------------------------
7/31/02 Ensure all Hilton requirements are met to 180 days
ensure guest security.
- -------------------------------------------------------------------------------------------
7/31/02 Ensure all applicable Federal, State, and Local 180 days
codes have been met to ensure compliance with ADA
requirements.
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
STRUCTURAL/MECHANICAL/OFFICES
===========================================================================================
7/31/02 Repair or replace concrete foundation located in 180 days
cooling tower and gas main area. Repair or replace
loading-dock doors and walls.
- -------------------------------------------------------------------------------------------
7/31/02 Repair and seal basement walls caused by water 180 days
leakage from concrete foundation collapse and
sinking.
- -------------------------------------------------------------------------------------------
7/31/02 Replace public area air exchange or heating and 180 days
cooling towers for proper ventilation.
- -------------------------------------------------------------------------------------------
7/31/02 Replace carpet in back offices to include behind 180 days
front desk and executive offices.
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
Page 9 of 10
HILTON HOTELS
PRODUCT IMPROVEMENT REPORT
2001
Page 10 of 10
PROPERTY IMPROVEMENT PLAN
DOUBLETREE CLUB HOTEL
PHILADELPHIA, PA
PRELIMINARY
PRODUCT IMPROVEMENT REPORT
DOUBLETREE CLUB HOTEL--PHILADELPHIA, PA
CONDUCTED ON: APRIL 6, 2002
THE IMPROVEMENTS IDENTIFIED IN THIS REPORT ARE BASED ON CONDITIONS EXISTING ON
THE ABOVE DATE. PROPERTY TRANSACTIONS OCCURRING AFTER 180 DAYS WILL REQUIRE AN
UPDATED REPORT. ANY WAIVERS AND/OR VARIANCES ISSUED ARE CANCELLED AND NO LONGER
EFFECTIVE AT TIME OF SALE, CLOSING, OR ANY OTHER AMENDMENT TO THE ORIGINAL
FRANCHISE AGREEMENT. HILTON HOTELS DOES NOT AND CANNOT WARRANT CONFORMANCE WITH
INTERPRETATION OF THE AMERICANS WITH DISABILITIES ACT ("ADA") AND THE ADA
ACCESSIBILTY GUIDELINES. OWNERSHIP IS RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE
PROVISIONS OF THE ADA, APPROPRIATE COUNSEL TO ENSURE COMPLIANCE IS URGED.
EXTERIOR
This is a six-story interior corridor hotel. It was converted to a Doubletree
Club hotel approximately six years ago. The actual building is twenty-eight
years old. The curb appeal is average at best. The repair of the damaged canopy
ceiling and the addition of decorative pavers under the canopy will help create
a sense of arrival for guests. The numerous areas of ceiling damaged throughout
the interior of the property indicate the need for a new roof. There is a
missing section of mansard that will also need to be replaced.
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
BUILDING, ENTRANCE, PORTE COCHERE AND SIGNAGE
===========================================================================================
Closing Replace roof of building. Ensure all open seams of 6 months
flashing are covered.
- -------------------------------------------------------------------------------------------
Closing Replace missing section of mansard 6 months
- -------------------------------------------------------------------------------------------
Closing Repair damage to building at Dumpster entrance 6 months
- -------------------------------------------------------------------------------------------
Closing Repair/replace all inoperative exhaust fans 6 months
- -------------------------------------------------------------------------------------------
Closing Add decorative pavers under canopy 6 months
- -------------------------------------------------------------------------------------------
Closing Replace mismatched windows (some are clear and some 6 months
are bronze)
- -------------------------------------------------------------------------------------------
Closing Repair all broken window seals 6 months
- -------------------------------------------------------------------------------------------
Closing Add entrance or primary sign at secondary entrance 6 months
(Grant Ave.)
- -------------------------------------------------------------------------------------------
Closing Repair peeling/damaged ceiling areas of canopy 6 months
ceiling
- -------------------------------------------------------------------------------------------
Closing Repair to a like new appearance all holes left 6 months
in building from previous signs
- -------------------------------------------------------------------------------------------
Closing Replace beating core and compressor of roof mounted 6 months
unit
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
PARKING LOT, LANDSCAPING, LIGHTING, ETC.
===========================================================================================
Closing Add additional building mounted down lights to 6 months
front of building
- -------------------------------------------------------------------------------------------
Closing Repair damaged asphalt at rear of building 6 months
- -------------------------------------------------------------------------------------------
Closing Repair landscape damage to islands and ends of parking 6 months
lot by snow plows
- -------------------------------------------------------------------------------------------
Closing Add drainage to sunken area at end of building 6 months
- -------------------------------------------------------------------------------------------
Closing Trim overhanging trees at rear of building 6 months
- -------------------------------------------------------------------------------------------
Closing Add 20 ft. concrete pad at Dumpster
- -------------------------------------------------------------------------------------------
===========================================================================================
Page 1 of 8
HILTON HOTELS CORP.
DOUBLETREE HOTELS
PRODUCT IMPROVEMENT REPORT
2002
PUBLIC AREAS
The public areas of the hotel are in overall poor condition and most items will
need to be replaced. The soft seating in the lobby and registration areas is
worn and will need to be replaced. The carpet is also in poor condition and will
require replacement. As in most areas of the hotel, there were numerous ceiling
tiles that will need to be replaced after roof repairs. Corridor carpet is also
worn.
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
LOBBY/ENTRANCE
===========================================================================================
Closing Electrostatically repaint faded finish on electric 6 months
entry doors
- -------------------------------------------------------------------------------------------
Closing Replace carpet 6 months
- -------------------------------------------------------------------------------------------
Closing Replace all soft seating 6 months
- -------------------------------------------------------------------------------------------
Closing Replace all discolored or water damaged ceiling tiles 6 months
- -------------------------------------------------------------------------------------------
Closing Repair any ceilings that have been water damaged 6 months
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
REGISTRATION AREA
===========================================================================================
Closing Add ADA tray to registration desk. Repair 6 months
small chip in counter top
- -------------------------------------------------------------------------------------------
Closing Replace soft scaning (worn and misshapen) 6 months
- -------------------------------------------------------------------------------------------
Closing Replace wall vinyl (holed where previous sign was 6 months
mounted)
- -------------------------------------------------------------------------------------------
Closing Replace vinyl cove base with carpet cove base (at 6 months
wall behind registration desk)
- -------------------------------------------------------------------------------------------
Closing Add cookie warmer 6 months
- -------------------------------------------------------------------------------------------
Closing Replace carpet (at area from registration desk to 6 months
elevators)
- -------------------------------------------------------------------------------------------
Closing Repair chips on pay telephone enclosures 6 months
- -------------------------------------------------------------------------------------------
===========================================================================================
PUBLIC RESTROOMS
===========================================================================================
Closing 6 months
- -------------------------------------------------------------------------------------------
Closing Add recessed feminine hygiene machine to ladies 6 months
room
- -------------------------------------------------------------------------------------------
Closing Replace dated wall tile with vinyl wall covering. 6 months
Repair any damaged vinyl in stall areas
- -------------------------------------------------------------------------------------------
Closing Replace vanities and basins (china undermounts 6 months
required)
- -------------------------------------------------------------------------------------------
Closing Recess towel dispensers and other equipment 6 months
- -------------------------------------------------------------------------------------------
Closing Replace discolored ceiling tiles 6 months
- -------------------------------------------------------------------------------------------
Closing Replace scratched vanity mirrors 6 months
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
CORRIDORS/ELEVATOR/STAIRWELLS
===========================================================================================
Closing Replace carpet 6 months
- -------------------------------------------------------------------------------------------
Closing Add additional lighting in elevator landings. 6 months
Increase light levels in corridors and
stairwells. Increase light levels in vending
areas
- -------------------------------------------------------------------------------------------
Closing Return handrails to wall in stairwells 6 months
- -------------------------------------------------------------------------------------------
Closing Replace sign package (all signs throughout the hotel 6 months
should be coordinated). Additional directional
signage required in corridors
- -------------------------------------------------------------------------------------------
Closing Regrout floor tile in vending areas 6 months
- -------------------------------------------------------------------------------------------
Closing Refinish elevator cabs and landings 6 months
- -------------------------------------------------------------------------------------------
Closing Paint and seal discolored stairwell landings 6 months
- -------------------------------------------------------------------------------------------
Page 2 of 8
HILTON HOTELS CORP.
DOUBLETREE HOTELS
PRODUCT IMPROVEMENT REPORT
2002
- -------------------------------------------------------------------------------------------
Closing Paint all back of house doors 6 months
- -------------------------------------------------------------------------------------------
Closing Replace or refinish all worn door handles 6 months
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
ADMINISTRATIVE AREAS
===========================================================================================
Closing Add window treatment to sales office 6 months
- -------------------------------------------------------------------------------------------
Closing Replace all discolored ceiling tiles 6 months
- -------------------------------------------------------------------------------------------
Closing Replace vinyl wall covering in back offices 6 months
- -------------------------------------------------------------------------------------------
Closing Replace ceiling tiles in admin areas 6 months
- -------------------------------------------------------------------------------------------
Closing Replace carpet in back offices 6 months
===========================================================================================
CLUB ROOM
===========================================================================================
Closing Replace carpet 6 months
- -------------------------------------------------------------------------------------------
Closing Add additional phones and lines to Club Room 6 months
- -------------------------------------------------------------------------------------------
Closing Add supplies to personal harbors 6 months
- -------------------------------------------------------------------------------------------
Closing Replace chairs in Steel Case units. Repair controls 6 months
(fan, lights)
- -------------------------------------------------------------------------------------------
Closing Repair damaged ceilings 6 months
- -------------------------------------------------------------------------------------------
Closing Replace damaged ceiling tiles 6 months
- -------------------------------------------------------------------------------------------
Closing Refinish foot rails at bar in Club Lounge 6 months
- -------------------------------------------------------------------------------------------
Closing Professionally mount light fixture under counter at 6 months
employee side of bar
- -------------------------------------------------------------------------------------------
Closing Clean or replace chairs/fabric in conference room 6 months
- -------------------------------------------------------------------------------------------
Closing Repair chipped bar (employee side) 6 months
- -------------------------------------------------------------------------------------------
Closing Replace wall vinyl in business center and Club Room 6 months
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
GIFT SHOP
===========================================================================================
Closing The gift shop has been eliminated and is now 6 months
currently being used as a vending area. There
are numerous vending machines lining the walls.
Although a vending area is required on each
floor, this space could potentially be used as
an arcade area or other amenity for guests.
Approval must be obtained and specifications
must be submitted for approval. An arcade would
require a door (with view panel) to reduce the
noise level as this area is adjacent to the
registration area. As a vending area, vinyl wall
covering must be added and ceramic floor tile
installed.
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
PUBLIC AREAS
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
AU BON PAIN
===========================================================================================
Closing Replace carpet 6 months
- -------------------------------------------------------------------------------------------
Closing Replace discolored ceiling tiles (guest and employee 6 months
side)
- -------------------------------------------------------------------------------------------
Closing Remove banquet tables used for serving. Suggest 6 months
installing counters for buffet service.
- -------------------------------------------------------------------------------------------
Closing Replace worn laminate counter top at beverage 6 months
service station. Solid surface required.
- -------------------------------------------------------------------------------------------
Page 3 of 8
HILTON HOTELS CORP.
DOUBLETREE HOTELS
PRODUCT IMPROVEMENT REPORT
2002
- -------------------------------------------------------------------------------------------
Closing Refinish or replace worn tables and chairs (wooden 6 months
arms and table edges are scarred). Metal frame
chairs are in good condition.
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
GUEST LAUNDRY
===========================================================================================
Closing Replace door. Must have view panel and electronic 6 months
card reader to ensure access by guests only
- -------------------------------------------------------------------------------------------
Closing Add folding table or counter 6 months
- -------------------------------------------------------------------------------------------
Closing Increase light levels 6 months
- -------------------------------------------------------------------------------------------
Closing Conceal exposed pipes and valves in ceiling. Add 6 months
lowered ceiling
- -------------------------------------------------------------------------------------------
Closing Replace discolored floor with tile 6 months
- -------------------------------------------------------------------------------------------
Closing Paint walls or add vinyl wall covering 6 months
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
MEETING FACILITIES
There are four separate meeting spaces at this property. Overall, these areas
are in acceptable condition. As in all other areas of the hotel, there are some
discolored ceiling tiles that will need to be replaced. The Philadelphia and
Roosevelt rooms were guestrooms at one time. The carpet must be replaced as well
as window treatment. The wall vinyl may be repaired to a like new condition and
appearance.
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
MEETING ROOM(S)
===========================================================================================
Closing Add incandescent lighting and rheostats to 6 months
Philadelphia and Roosevelt rooms.
- -------------------------------------------------------------------------------------------
Closing Laminate at wet bars in all meeting rooms is 6 months
chipped and damaged. Replace with solid surface
countertops
- -------------------------------------------------------------------------------------------
Closing Upgrade restrooms (former guestrooms). Replace 6 months
small floor tile, replace de-silvered mirrors
- -------------------------------------------------------------------------------------------
Closing Replace HVAC units 6 months
- -------------------------------------------------------------------------------------------
Closing Repair any damaged wall vinyl 6 months
- -------------------------------------------------------------------------------------------
Closing Repair ceiling damage (Roosevelt, Pennsylvania) 6 months
- -------------------------------------------------------------------------------------------
Closing Replace seating 6 months
- -------------------------------------------------------------------------------------------
Closing Add under counter lighting at wet bar areas where 6 months
missing
- -------------------------------------------------------------------------------------------
Closing Replace window treatment (Philadelphia) 6 months
- -------------------------------------------------------------------------------------------
Closing Replace carpet 6 months
- -------------------------------------------------------------------------------------------
Closing Refinish or replace worn podiums 6 months
- -------------------------------------------------------------------------------------------
===========================================================================================
===========================================================================================
BALL ROOM (BRANDYWINE)
===========================================================================================
Closing Replace carpet 6 months
- -------------------------------------------------------------------------------------------
Closing Replace all discolored ceiling tiles 6 months
- -------------------------------------------------------------------------------------------
Closing Repair any damaged wall vinyl 6 months
- -------------------------------------------------------------------------------------------
Closing Replace drapes and sheers 6 months
- -------------------------------------------------------------------------------------------
Closing Repaint or clean discolored glass panels above 6 months
windows
- -------------------------------------------------------------------------------------------
Closing Replace tarnished door hardware at entry 6 months
- -------------------------------------------------------------------------------------------
Closing Repair, replace, or remove portable dance floor 6 months
- -------------------------------------------------------------------------------------------
Closing Repair/refinish chipped window ledges 6 months
- -------------------------------------------------------------------------------------------
Page 4 of 8
HILTON HOTELS CORP.
DOUBLETREE HOTELS
PRODUCT IMPROVEMENT REPORT
2002
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
BACK OF HOUSE/STORAGE AREAS
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
HOUSEKEEPING/MAINTENANCE
===========================================================================================
Closing Add central air to laundry area 6 months
- -------------------------------------------------------------------------------------------
Closing Enclose dryers from general work area. Add smoke 6 months
detector and heat detector to dryer enclosure
after completion
- -------------------------------------------------------------------------------------------
Closing Repair damaged walls in housekeeping and laundry 6 months
areas.
- -------------------------------------------------------------------------------------------
Closing Replace worn laundry carts and maids carts 6 months
- -------------------------------------------------------------------------------------------
Closing Add full size refrigerator to break rooms. 6 months
Upgrade employee breakrooms. This includes
painting, ventilation, carpet, and bathrooms.
- -------------------------------------------------------------------------------------------
Closing Replace vinyl wall covering and carpet in break 6 months
rooms
- -------------------------------------------------------------------------------------------
Closing Add additional venting to smoking break room 6 months
- -------------------------------------------------------------------------------------------
Closing Clean and paint all back of house area walls 6 months
- -------------------------------------------------------------------------------------------
Closing Clean and paint (or replace) rusted employee 6 months
lockers
- -------------------------------------------------------------------------------------------
Closing Repair ceiling damage. Replace discolored or 6 months
damaged ceiling tiles in all back of house areas
- -------------------------------------------------------------------------------------------
Closing Repair or replace chipped folding table in 6 months
laundry
- ----------------------------------------------------------------------------------------
STORAGE AREAS/MECHANICAL ROOMS
- ----------------------------------------------------------------------------------------
Closing Replace rusted pipes and fittings on boilers 6 months
- -------------------------------------------------------------------------------------------
Closing Replace worn rollaway beds 6 months
- -------------------------------------------------------------------------------------------
Closing Repair ceiling damage 6 months
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
RECREATIONAL FACILITIES
The swimming pool area is in very poor condition. It is covered by a dome type
structure that will need to be replaced, repaired, or removed. It is cracking
and the leaks from the cracks and condensation create a need for constant
operational attention. This area will require a complete renovation/
refurbishment.
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
POOL AND ADJACENT AREAS
===========================================================================================
Closing Repair leaks in dome 6 months
- -------------------------------------------------------------------------------------------
Closing Add dehumidification unit 6 months
- -------------------------------------------------------------------------------------------
Closing Replace pool furniture and patio/deck furniture 6 months
- -------------------------------------------------------------------------------------------
Closing Resurface pool bottom 6 months
- -------------------------------------------------------------------------------------------
Closing Replace pool deck (new deck must have proper 6 months
drainage capabilities)
- -------------------------------------------------------------------------------------------
Closing Add heating, air conditioning, and ventilation 6 months
- -------------------------------------------------------------------------------------------
Closing Repair damaged walls and door in entry way 6 months
- -------------------------------------------------------------------------------------------
Closing Replace peeling tint on windows 6 months
- -------------------------------------------------------------------------------------------
Closing Replace, repair to a like new condition, or 6 months
remove wooden deck at exterior of pool.
- -------------------------------------------------------------------------------------------
Page 5 of 8
HILTON HOTELS CORP.
DOUBLETREE HOTELS
PRODUCT IMPROVEMENT REPORT
2002
Closing Replace cracked windows 6 months
- -------------------------------------------------------------------------------------------
Closing Replace all tarnished door and window hardware 6 months
===========================================================================================
EXERCISE ROOM
===========================================================================================
Closing Replace drapes 6 months
- -------------------------------------------------------------------------------------------
Closing Add carpet cove base where missing 6 months
- -------------------------------------------------------------------------------------------
Closing Replace ceiling tiles 6 months
- -------------------------------------------------------------------------------------------
Closing Add door with view panel and card reader to 6 months
separate from pool area
- -------------------------------------------------------------------------------------------
Closing Replace rusted HVAC unit 6 months
- -------------------------------------------------------------------------------------------
Closing Replace vinyl wall covering 6 months
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
GUEST ROOMS
The guestrooms are dated and in severe need of a complete facelift. Carpet,
bedspreads, mattresses and box springs, window treatment, wall vinyl all need to
be replaced. On the positive side, the guestrooms are large and there is
tremendous potential with a new room package in place. The undersized desk will
need to be replaced with the larger executive workspace and an ergonomic desk
chair must also be added. The required new lamp package must also contain a task
lamp for the desk surface.
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
BEDROOM
===========================================================================================
Closing Replace carpet 6 months
- -------------------------------------------------------------------------------------------
Closing Replace wall vinyl 6 months
- -------------------------------------------------------------------------------------------
Closing Replace HVAC units 6 months
- -------------------------------------------------------------------------------------------
Closing Replace mattresses and box springs 6 months
- -------------------------------------------------------------------------------------------
Closing Professionally refinish casegoods to a like new 6 months
appearance (credenzas, nightstands, headboards,
etc.). Refinished product must coordinate/match
with the required addition of large desks and
ergonomic desk chairs.
- -------------------------------------------------------------------------------------------
Closing Replace lamp package. Most shades are yellowed 6 months
and many are misshapen. Task lamp is required at
desk. Bases of floor lamps are dented. One
wall-mounted lamp is currently positioned behind
the television set and does not provide
illumination to any guest impact area. Table
lamps at nightstands will be acceptable.
- -------------------------------------------------------------------------------------------
Closing Replace bedspreads 6 months
- -------------------------------------------------------------------------------------------
Closing Replace drapery sheers and drapes 6 months
- -------------------------------------------------------------------------------------------
Closing Replace soft seating. Wingback chairs will also 6 months
need to be replaced. Standards require a
chair/ottoman combo or a recliner.
- -------------------------------------------------------------------------------------------
Closing Replace guest service directories 6 months
- -------------------------------------------------------------------------------------------
Closing Remove extension cords from guestrooms 6 months
- -------------------------------------------------------------------------------------------
Closing Refurbish/renovate suites (one each on fifth and 6 months
sixth floors). The small tile at the wet bar
area will need to be replaced. Microwaves must
be enclosed in cabinets and the painted and
laminate surfaces at the wet bars should be
replaced with a solid surface. Repair damaged
wall and ceiling in sixth floor suite (from roof
leaks)
Page 6 of 8
HILTON HOTELS CORP.
DOUBLETREE HOTELS
PRODUCT IMPROVEMENT REPORT
2002
- -------------------------------------------------------------------------------------------
Closing Add wall mounted door stops 6 months
- -------------------------------------------------------------------------------------------
Closing Replace sofa sleepers. Mechanisms are binding and 6 months
fabric is worn
- -------------------------------------------------------------------------------------------
Closing Refinish/paint chipped entry doors 6 months
- -------------------------------------------------------------------------------------------
Closing Replace any missing door guards at entry doors 6 months
- -------------------------------------------------------------------------------------------
Closing Replace telephones that do not meet current 6 months
standards (CareLine button/info missing, bedside
phones do not have 2 line capabilities, etc.)
- -------------------------------------------------------------------------------------------
GUEST ROOMS
===========================================================================================
START FINISH
DATE SCOPE OF WORK DATE STATUS
===========================================================================================
BATHROOM
===========================================================================================
Closing Replace 2" floor tile (6" min. required) 6 months
- -------------------------------------------------------------------------------------------
Closing Replace any missing sound deadening pads/tabs 6 months
- -------------------------------------------------------------------------------------------
Closing Replace basins with china undermounts. Vanities 6 months
must be restored to a like new condition or
replaced.
- -------------------------------------------------------------------------------------------
Closing Replace all chrome (single lever chrome required) 6 months
- -------------------------------------------------------------------------------------------
Closing Resurface tub bottoms. All tub bottoms currently 6 months
are discolored and the non slip provision is gone
- -------------------------------------------------------------------------------------------
Closing Add pulsating shower heads to all showers 6 months
- -------------------------------------------------------------------------------------------
Closing Replace door knobs with lever type hardware 6 months
- -------------------------------------------------------------------------------------------
Closing Add second soap dish in showers 6 months
- -------------------------------------------------------------------------------------------
Closing Refinish/paint chipped entry doors 6 months
- -------------------------------------------------------------------------------------------
Closing Replace wall vinyl 6 months
- -------------------------------------------------------------------------------------------
Closing Replace hollow core doors (or remove full length 6 months
mirrors from doors)
- -------------------------------------------------------------------------------------------
Closing Add support bracket to towel shelves 6 months
- -------------------------------------------------------------------------------------------
Closing Wrap exposed vanity popes with insulation in 6 months
accessible rooms
- -------------------------------------------------------------------------------------------
Closing Replace any metal soap dishes in showers with non 6 months
metal soap dish
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
===========================================================================================
OTHER
===========================================================================================
DATE STATUS
===========================================================================================
KITCHEN
===========================================================================================
Closing Replace rusted bins on ice machines. Repair door. 6 months
- ----------------------------------------------------------------------------------------
Closing Replace ceiling tiles 6 months
- ----------------------------------------------------------------------------------------
Closing Repair ceiling damage 6 months
- ----------------------------------------------------------------------------------------
Closing Clean and refinish scarred floors 6 months
- ----------------------------------------------------------------------------------------
Closing Clean walls 6 months
- ----------------------------------------------------------------------------------------
Closing Replace door hardware leading into dry goods 6 months
storage area
- ----------------------------------------------------------------------------------------
Closing Replace, remove, or repair any inoperative 6 months
equipment. ex: cold line prep unit now used
for storage
- ----------------------------------------------------------------------------------------
Closing Replace worn cutting boards 6 months
- ----------------------------------------------------------------------------------------
Closing Replace microwave (interior discolored) 6 months
- ----------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------
========================================================================================
Page 7 of 8
PROPERTY IMPROVEMENT PLAN
HOLIDAY INN
SHEFFIELD, AL
BASS
HOTELS & RESORTS
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
PROPERTY IMPROVEMENT PLAN
January 25, 1999
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
TABLE OF CONTENTS:
PROPERTY INFORMATION ....................................... 1
LIFE SAFETY ................................................ 3
EXTERIOR ................................................... 5
LOBBY/ENTRANCE/FRONT DESK .................................. 9
PUBLIC RESTROOMS ........................................... 12
FOOD SERVICE FACILITIES .................................... 14
LOUNGE FACILITIES .......................................... 15
MEETING/BANQUET ROOMS ...................................... 17
ATRIUMS/POOL ENCLOSURES .................................... 18
KITCHEN .................................................... 20
INTERIOR CORRIDORS ......................................... 21
GUEST ROOMS ................................................ 23
GUEST ROOM BATHS ........................................... 26
BACK OF HOUSE .............................................. 27
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
PROPERTY INFORMATION
Address: Holiday Inn - Sheffield, AL
Florence-Muscle Shoals Area
4900 Hatch Blvd.
Sheffield, AL 35660
256-381-7313
GENERAL DESCRIPTION:
This 3-story, interior corridor hotel (with ground level rooms also having
exterior doors as well as interior doors) was originally constructed in 1982.
The hotel will require varying degrees of renovation to all areas of the hotel;
guest room areas, commercial areas and the exterior.
More specifically, the guest rooms will require the installation of the
Standardized Room Decor Package, while 2/3's of the guest bathrooms will
vanity/sink/hardware replacement.
The commercial areas will require a complete renovation of the restaurant and
lounge.
The exterior will require roofline enhancements, new stucco finishes and
replacement of the guestroom storefronts with a new insulated synthetic stucco
wall system and new windows.
Submit all plans, specifications and color boards to Bass Hotels & Resorts for
review and approval, prior to purchasing or renovation. Any items not submitted
for approval may be required to be replaced or modified. Professional
Architectural and design assistance is required. Franchisee to ensure all areas
of the hotel are in complete compliance with local codes and Americans with
Disabilities Act (ADA). An ADA certification letter is required to be submitted
during the design review and prior to final sign off of the PIP. Owner is
required to repair or replace all items and finishes in the hotel that may be
damaged during the course of the renovation. Ensure all areas of the hotel are
in new condition upon completion of the PIP.
During the Property Improvement process, signage from the Holiday Inn
"Renovation Kit" must be put on display, in a professional manner, throughout
appropriate areas of the hotel. You will receive this kit within 90 days from
license execution.
All areas of the hotel must meet current Holiday Inn standards, including all
supplements and addendum's.
Year Built: 1982 Year(s) Renovated: 1991
Parking Spaces: 250 Swimming Pool 20 X 15
Dimensions/maximum
depth:
Number of Stories: 3
Commercial Area Capacities
Food Service Facility: Great Southern Mining Company seats: 45
1
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
Lounge: Fizz seats: 75
Meeting/Banquet Room: Cedar, Cypress, Willow, Magnolia seats: 450
Fitness Room: yes X no _____
Guest Rooms: No. of Rooms/Opening Date
Original Rooms: 201
1st Addition:
2nd Addition:
Total Rooms: 201
HVAC Systems: (2/4 pipe: thru-wall or split system)
Commercial Area 2/4 pipe
Guest room Building thru-wall
Fire Safety Systems:
Hardwire Smoke Commercial Area yes X no ___
Guest room Building yes X no ___
Holidomes Structure yes ___ no ___
Sprinkler System Commercial Area yes ___ no X
Guest room Building yes ___ no X
Holidomes Structure yes ___ no ___
This Property Improvement Plan was developed from an on-site review of the
subject hotel on 1/14/99 by Jim Brink of Bass Hotels and Resorts accompanied by
General Manager Linda Whitaker, and Chief Engineer Keith Yerbey.
2
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
LIFE SAFETY
AREAS REQUIRING ACTION CURE/REMEDY
---------------------- -----------
- ------------------------------------------------------------------------------------------------------------------------------------
FIRE SAFETY SYSTEM Prior to issuance of the license, written documentation must be submitted certifying that the
Fire Safety System meets or exceeds Holiday Inn's Standards and that the system if fully
operational as of that date.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL & PUBLIC AREAS
- ------------------------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is in proper working condition.
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards and codes. Ensure bright illumination.
- ------------------------------------------------------------------------------------------------------------------------------------
Panic Hardware: Ensure panic hardware at all exit doors is in proper working condition.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure area meets fire separation requirements per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Detectors: Ensure adequate heat and smoke detectors are present per code and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
PUBLIC RESTROOMS
- ------------------------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is provided. Lights must remain on continuously in all public
restrooms.
- ------------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Detectors: Ensure adequate heat and smoke detectors are present per code and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
HOLIDOMES/ATRIUMS/POOL ENCLOSURES
- ------------------------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is provided at indoor pool area.
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided at indoor pool area per standards and codes. Ensure
bright illumination.
- ------------------------------------------------------------------------------------------------------------------------------------
Panic Hardware: Provide panic hardware at all exit doors in the indoor pool area.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure indoor pool area meets fire separation requirements per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Detectors: Ensure adequate heat and smoke detectors are present at the indoor pool area per code and
standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present at the indoor pool area per code and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
KITCHEN
- ------------------------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is provided.
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards and codes. Ensure bright illumination.
- ------------------------------------------------------------------------------------------------------------------------------------
Panic Hardware: Provide panic hardware at all exit doors.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Extinguisher: Provide required fire extinguishers per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure area meets fire separation requirements per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Heat/Smoke Detectors: Ensure adequate heat and smoke detectors are present per code and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and standards. Ensure a pull station is
located at the rear exit door wall.
- ------------------------------------------------------------------------------------------------------------------------------------
Sprinklers:
- ------------------------------------------------------------------------------------------------------------------------------------
3
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure adequate exit signage is provided per standards and codes. Ensure bright illumination.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
INTERIOR CORRIDORS
- ------------------------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is provided, including in all stairwells and in all elevator cabs
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards and codes. Ensure bright illumination.
- ------------------------------------------------------------------------------------------------------------------------------------
Panic Hardware: Provide panic hardware at all exit doors.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Extinguisher: Ensure fire extinguisher boxes are recessed into corridor walls.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure fire separation is maintained per standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Detectors: Ensure adequate heat and smoke detectors are present per code and standards, including in
all stairwells.
- ------------------------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Sprinklers:
- ------------------------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure adequate exit signage is provided per standards and codes. Ensure bright illumination.
- ------------------------------------------------------------------------------------------------------------------------------------
Dead End (+25 Feet)
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Separation (1 hour min) Ensure area meets fire separation requirements per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Sounding Devises: Ensure sounding devises are present per code and standards, including in all stairwells.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
GUEST ROOMS
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure area meets fire separation requirements per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Heat/Smoke Detectors: Ensure hard wire smoke detectors are present per standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure that visual heat and smoke detectors are present in the wheelchair accessible and
Detectors in ADA rooms rooms for the deaf and hard of hearing per ADAAG standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Sprinklers:
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Separation (1 hour min) Ensure guest rooms meet fire separation requirements per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
BACK OF HOUSE
- ------------------------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is provided.
- ------------------------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards and codes. Ensure bright illumination.
- ------------------------------------------------------------------------------------------------------------------------------------
Panic Hardware: Provide panic hardware at all exit doors.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Extinguisher: Provide required fire extinguishers per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure area meets fire separation requirements per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Heat/Smoke Detectors: Ensure adequate heat and smoke detectors are present per code and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Sprinklers:
- ------------------------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure adequate exit signage is provided per standards and codes. Ensure bright illumination.
- ------------------------------------------------------------------------------------------------------------------------------------
Dead End (+25 Feet) Ensure area meets fire separation requirements per codes and standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Separation (1 hour min)
- ------------------------------------------------------------------------------------------------------------------------------------
18 Gauge Steel Cabinet Provide an 18 gauge steel cabinet for storage of flammable materials.
- ------------------------------------------------------------------------------------------------------------------------------------
4
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
EXTERIOR
GENERAL DESCRIPTION:
The exterior will require moderate renovations to the Porte Cochere, roofline
and facade to update the appearance and address conditional issues. Professional
design assistance is required. All plans color rendernings and specifications
are to reviewed by Holiday Inn for approval prior to any renovation and
installation. ADA compliance certification letters are required at the time of
plan review.
- -----------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
---------
REQUIRED
--------
AREAS REQUIRING ACTION ACTION CURE/REMEDY
- ---------------------- ------ -----------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL BUILDING
- ------------------------------------------------------------------------------------------------------------------------------------
Porte Cochere Competitive The Porte Cochere requires renovation in conjunction with the
exterior improvements to heighten curb appeal. Install a new
decorative synthetic stucco parapet or metal hip, gable,
mansard, or other appropriate roof structure to coincide with
the new commercial and rental building roofline enhancements
Incorporate new interesting design elements into the
structure, such as frieze work, medallions, accent lighting
and the addition of built-out column capitals and bases.
Provide new upgraded light fixtures to the Porte Cochere
underside and decorative fixtures at the columns.
- ------------------------------------------------------------------------------------------------------------------------------------
Drive through surface Competitive Provide a new colored stamped concrete or new interlocking
pavers beneath the Porte Cochere. Integrate ADA compliant ramp
into the new drive through surface to eliminate the steep
existing ramp in front of the entry doors.
- ------------------------------------------------------------------------------------------------------------------------------------
Building roof line/arch, Competitive Upgrade the existing flat, linear roof line. The roofline
finishes & features lacks detail and architectural interest. Incorporate new
architectural details into the existing commercial building
parapet with an emphasis on vertical roof line elements. These
vertical roof line elements should be repeated in a
reoccurring pattern around the structure. Conceal all rooftop
equipment. Design enhancements must coordinate with the new
rental building and Porte Cochere upgrades. Submit new plans
to Bass Hotels & Resorts for review.
- ------------------------------------------------------------------------------------------------------------------------------------
Entrance doors Competitive Recommend installing power actuated (2 sets within a
vestibule) doors for guest convenience.
- ------------------------------------------------------------------------------------------------------------------------------------
Color scheme Condition Provide new color scheme to update and freshen the exterior
Competitive appearance of the Porte Cochere, commercial and rental
buildings. Consider horizontal or vertical earth tone
contrasting colors or shading to add interest.
- ------------------------------------------------------------------------------------------------------------------------------------
Service doors Repair all holes and refinish doors to like new condition.
Replace the service door and frame into the laundry area.
- ------------------------------------------------------------------------------------------------------------------------------------
5
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Auxiliary entrance doors Competitive Provide new permanent roof structures with decorative columns
over the Fizz, and three side entrances. Awnings are not
permitted. Coordinate with new Porte Cochere design.
- ------------------------------------------------------------------------------------------------------------------------------------
Commercial Windows/frames Condition Clean oxidation and repaint if necessary to achieve like new
appearance. Replace any cloudy windows or windows with broken
seals. For energy savings, recommended is tinting the sloped
overhead windows into Fizz or replacing them with a solid
material.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Competitive Provide new accent lighting such as concealed up-lighting from
landscape beds, and replace the existing building mounted
sconces with new sconces incorporated into the new comice
work. Install 2 additional lamps on each parking lot fixture
that currently has 2 existing lamps for a total of 4 per
fixture.
- ------------------------------------------------------------------------------------------------------------------------------------
Walkways Condition Repair and resurface sidewalks where lifting, sinking, stained
or damaged. Provide new topical surface treatment to return
sidewalks to like new condition. Ensure consistent finish
throughout project.
- ------------------------------------------------------------------------------------------------------------------------------------
Flag poles Standards Provide additional nighttime illumination per standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Kitchen/Delivery Screen Competitive Pressure wash existing delivery bay area concrete apron and
maintain to an acceptable clean condition. Install a delivery
gate to screen off the area from public view. Exposed chain
link fencing is not permitted.
- ------------------------------------------------------------------------------------------------------------------------------------
News paper stands at entrance Competitive Upgrade the overall appearance of the news stands with an
enclosure that compliments the new Porte Cochere design.
- ------------------------------------------------------------------------------------------------------------------------------------
Trash cans Condition Replace and upgrade trash can and relocate in appropriate
locations.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
SERVICE/OUT BUILDINGS
- ------------------------------------------------------------------------------------------------------------------------------------
Recommended is putting a service building on the site to
eliminate clutter from laundry and other areas. Architecture
finishes and feature should coordinate with the new facade
finishes.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
RENTAL UNIT (GST. RM.)
BUILDINGS
- ------------------------------------------------------------------------------------------------------------------------------------
6
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Building roof line / arch. Competitive Upgrade the existing flat, linear roof line. Introduce
finishes & features elevation changes and vertical design elements, such as a
decorative parapet or peak roof structure to break up the long
horizontal runs. These new architectural enhancements must be
repeated in a reoccurring pattern around the structure. Ensure
a continuity of design between the rental building, commercial
building and the Porte Cochere. Submit new plans to Bass
Hotels & Resorts for review.
Provide new false pilasters, over existing CMU's, along the
existing exterior walls. Ensure continuity of design with the
Porte Cochere and commercial building improvements. Conceal
all drainage pipes and exposed conduits into the new stucco
facade.
- ------------------------------------------------------------------------------------------------------------------------------------
Color scheme Condition Provide new stucco finish color scheme to update and freshen
Competitive the exterior appearance of the Porte Cochere, commercial and
rental buildings. Consider horizontal or vertical earth tone
contrasting colors or shading to add interest.
- ------------------------------------------------------------------------------------------------------------------------------------
Auxiliary entrance doors Competitive Provide new permanent building mounted roof structures with
roofline to coordinate with new rental building improvements.
- ------------------------------------------------------------------------------------------------------------------------------------
Storefront windows/frames Condition The existing spandrel and glazing systems on the guest room
Competitive building are worn, dated and energy inefficient. As such, they
will require replacement and upgrading. Remove the entire
existing exterior guest room bay storefront system, including
door and frame. Construct a new metal stud wall with an
exterior skin assembly of sheathing and synthetic stucco
(drywall finish on the interior). Provide new insulated window
units (with integral mullions), correctly proportioned to the
exterior facade, along with a new full blade louvers painted
to match the stucco color. Provide new metal insulated guest
room exterior entry doors. Window frames must utilize an
accent color, bronze is not acceptable.
- ------------------------------------------------------------------------------------------------------------------------------------
Windows/Frames Condition Clean oxidation and repaint if necessary to achieve like new
appearance. Replace any cloudy windows or windows with broken
seals.
- ------------------------------------------------------------------------------------------------------------------------------------
HVAC/Grilles Competitive Provide new architectural louvers for all through wall HVAC
units. Paint to match new accent color.
- ------------------------------------------------------------------------------------------------------------------------------------
Recessed fire extinguishers Competitive Recess fire extinguisher cabinets into walls and columns to
eliminate protrusion into the walkway traffic areas.
- ------------------------------------------------------------------------------------------------------------------------------------
Walkways Condition Repair and resurface sidewalks where lifting, sinking, stained
or damaged. Provide new topical surface treatment to return
sidewalks to like new condition. Ensure consistent finish
throughout project.
- ------------------------------------------------------------------------------------------------------------------------------------
7
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
PARKING
- ------------------------------------------------------------------------------------------------------------------------------------
Asphalt Parking Condition Repair any cracked and damaged parking lot surfaces to like
new condition. Ensure low spots are corrected to
eliminate/avoid ponding water.
- ------------------------------------------------------------------------------------------------------------------------------------
Wheelchair accessible Condition Include blue striped access aisles, signage and proper curb
parking spaces. cuts per ADA requirements.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Standards Increase lighting in all parking areas to meet 1-foot candle
minimum per the standards by installing 2 additional lamps to
the fixtures that currently have 2 existing lamps.
- ------------------------------------------------------------------------------------------------------------------------------------
Curbing Condition Repair all cracked and broken curbing. Remove all painted
curbs, unless required by local code.
- ------------------------------------------------------------------------------------------------------------------------------------
Transformers Condition Seek permission from the proper authorities to install an
upgraded enclosure around the transformer.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
LANDSCAPING
- ------------------------------------------------------------------------------------------------------------------------------------
Rental Units Install additional shrubs and hedges along the guest room
building. Include fresh plantings with seasonal foliage to
increase overall appearance.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
EXTERIOR SWIMMING POOL
- ------------------------------------------------------------------------------------------------------------------------------------
Deck Finish Condition Provide a new topical deck surface treatment, such as Sundeck.
Submit product specifications to Bass Hotels and Resorts for
approval.
- ------------------------------------------------------------------------------------------------------------------------------------
Pool furnishings Condition Replace and upgrade existing pool deck furniture. Plastic
Competitive resin furniture is not acceptable. Provide new high quality,
commercial grade chairs, tables and chaise lounges. Furnish
ample number of shade umbrellas for guest comfort.
- ------------------------------------------------------------------------------------------------------------------------------------
Whirlpool Standards Provide 15-minute timer and emergency cut-off switch per
standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Drainage(2 drains req.) Standards Provide two anti-vortex drains per Holiday Inn standards.
(vortex)
- ------------------------------------------------------------------------------------------------------------------------------------
8
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
LOBBY/ENTRANCE/FRONT DESK
GENERAL DESCRIPTION:
The lobby and entry vestibule will require moderate renovations to furnishings,
fixtures and equipment update the appearance and address conditional issues.
Professional design assistance is required. All plans, color rendenngs and
specifications are to reviewed by Holiday Inn for approval prior to any
renovation and installation. ADA compliance certification letters are required
at the time of plan review.
- ------------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
---------
REQUIRED
--------
AREAS REQUIRING ACTION ACTION CURE/REMEDY
- ---------------------- ------ -----------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
LOBBY One of the guest's first impressions of a Holiday Inn$ hotel
occurs in the lobby. The lobby, therefore, must be a welcome,
attractive, uncluttered space reflecting the overall decor of
the hotel and maintaining comfortable, residential ambiance.
The lobby must offer inviting, comfortable seating and
appropriate lighting.
- ------------------------------------------------------------------------------------------------------------------------------------
Vestibule Doors/Frames Condition Recondition to like new. Recommend installing power actuated
(2 sets within a vestibule) doors for guest convenience.
- ------------------------------------------------------------------------------------------------------------------------------------
Vestibule Floor Condition Replace and upgrade the existing floor tiles with new marble
tiles with a minimum static coefficient of 0.6 per ASTM 1028.
Install recessed walk-off mat. Surface mats are not permitted.
- ------------------------------------------------------------------------------------------------------------------------------------
Vestibule Walls Condition Replace and upgrade existing wall finishes to coordinate with
new lobby wall finishes.
- ------------------------------------------------------------------------------------------------------------------------------------
Vestibule Ceiling Condition Replace existing ceiling system.
- ------------------------------------------------------------------------------------------------------------------------------------
Vestibule Lighting Competitive Replace and upgrade lighting fixtures.
- ------------------------------------------------------------------------------------------------------------------------------------
Luggage Carts Standards Provide minimum 2 luggage carts per standards addendum. Carts
must be stored in an appropriate area when not in use.
- ------------------------------------------------------------------------------------------------------------------------------------
Directional Signage Condition Install a fully coordinated directional signage package
Competitive throughout the entire lobby, commercial and guest room areas.
All signage must be ADA complaint.
- ------------------------------------------------------------------------------------------------------------------------------------
Lobby Ceiling Condition Replace and upgrade lobby ceiling with new recessed edge, 2' x
Competitive 2' architectural ceiling tiles with updated surface texture.
Provide new decorative ceiling elements, such as coffer and
beams, or tray ceiling with concealed cove lighting to add
interest.
- ------------------------------------------------------------------------------------------------------------------------------------
Lobby Walls Replace existing wall vinyl with new 20 oz. wall vinyl.
- ------------------------------------------------------------------------------------------------------------------------------------
Lobby Floors Replace and upgrade the existing floor tiles with new marble
tiles with a minimum static coefficient of 0.6 per ASTM 1028.
Install recessed walk-off mat. Surface mats are not permitted.
- ------------------------------------------------------------------------------------------------------------------------------------
Windows Condition Paint, clad or replace existing worn aluminum window frames.
Replace any windows with broken seals.
- ------------------------------------------------------------------------------------------------------------------------------------
Window Treatments Condition Install window treatments. Install new sheers with appropriate
side panels and valance to soften the seating areas.
- ------------------------------------------------------------------------------------------------------------------------------------
9
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Lobby Feature Standards Provide a lobby feature or an architectural point of interest
per standards, such as a focal table with large flower
arrangement to give visual interest.
- ------------------------------------------------------------------------------------------------------------------------------------
Furnishings Condition Replace and upgrade furnishings with new updated seating group
and occasional tables. Provide a mixture of colors. textures
and fabrics for visual interest.
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Lighting Competitive Provide a central chandelier to coordinate with the new lobby
feature.
- ------------------------------------------------------------------------------------------------------------------------------------
Decor Competitive Provide a complete art and accessories package to include
framed original artwork, table top accessory items, well
sealed lamps, plants and other similar items to create a
residential environment. Coordinate the existing brochures
into the new decor.
- ------------------------------------------------------------------------------------------------------------------------------------
Area Lighting Competitive Provide for all seating arrangements.
- ------------------------------------------------------------------------------------------------------------------------------------
Public Telephone Standards Install new privacy partitions, counter, and appropriate
Condition seating for the public telephones that compliment the new
lobby finishes. Ensure at least one phone is ADA compatible.
Provide power outlet at the wheelchair accessible telephone
and a sign indicating that a TDD is available for use at the
front desk.
- ------------------------------------------------------------------------------------------------------------------------------------
Drinking Fountain Standards Provide a "high/low" unit for guests in wheelchairs and guests
that stand.
- ------------------------------------------------------------------------------------------------------------------------------------
Ash/waste receptacles Replace and upgrade receptacles.
- ------------------------------------------------------------------------------------------------------------------------------------
GM office Condition Replace and upgrade carpet. Install wall vinyl. Provide
artwork to walls. Replace sled base chairs and round tables.
Relocate Xerox machine from entrance; reduce clutter. Repaint
doors and frames. Electrostatically paint existing filing
cabinets.
- ------------------------------------------------------------------------------------------------------------------------------------
Accounting Office Condition Eliminate clutter from the office. Conceal all exposed wiring
in an appropriate chase or enclosure.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
REGISTRATION DESK The registration desk must be modified to comply with ADA
requirements. Specifically, a 3' wide section located 3' above
the finished floor must be provided for guests who use
wheelchairs or guests that wish to register sitting down.
- ------------------------------------------------------------------------------------------------------------------------------------
Registration desk top & face Condition Reconfigure front desk design as needed to eliminate the
Competitive ability to view behind the front desk to observe transactions.
Replace and upgrade the dated front desk facing to coordinate
with other new upgraded lobby finishes. Incorporate new design
elements into the facing, such as vertical and horizontal trim
pieces, reveals. etc. Provide new hard surface desk top, such
as marble. Plans to be reviewed by Holiday Inn for approval.
- ------------------------------------------------------------------------------------------------------------------------------------
Work Area Exposed Competitive Conceal all equipment and work areas from guest view.
Eliminate all clutter from the area.
- ------------------------------------------------------------------------------------------------------------------------------------
10
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Competitive Install a new bulkhead with soffit lighting above the
registration counter.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Remove mirrors and wall sconces.
- ------------------------------------------------------------------------------------------------------------------------------------
Artwork Competitive Provide original art piece on wall behind the front desk. Art
piece must be well scaled, decoratively framed, and should
reflect locale of hotel.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor Condition Replace and upgrade to match new lobby carpet.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Competitive Install new upgraded lighting above the registration counter.
Existing lighting is not bright enough.
- ------------------------------------------------------------------------------------------------------------------------------------
Signage Standards Provide appropriate Manager on Duty and Owner/Operator
signage. See Holiday Inn standards for proper wording.
- ------------------------------------------------------------------------------------------------------------------------------------
Safety Deposit Boxes Standards Replace plastic laminate top and front surfaces.
- ------------------------------------------------------------------------------------------------------------------------------------
Fax machine Standards Provide for guest convenience.
- ------------------------------------------------------------------------------------------------------------------------------------
11
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
PUBLIC RESTROOMS
GENERAL DESCRIPTION:
The public restrooms will require moderate renovations to furnishing, fixtures
and equipment update the appearance and address conditional issues. Professional
design assistance is required. All plans, color renderings and specifications
are to reviewed by Holiday Inn for approval prior to any renovation and
installation. ADA compliance certification letters are required at the time of
plan review.
- ------------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
---------
REQUIRED
--------
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------- ------ -----------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
RESTROOM
- ------------------------------------------------------------------------------------------------------------------------------------
Accessible Standards Ensure that all public restrooms meet the Americans with
Disabilities Act.
- ------------------------------------------------------------------------------------------------------------------------------------
Signage Condition Install signage to coordinate with overall directional signage
Competitive package. Room signage needs to meet ADA.
- ------------------------------------------------------------------------------------------------------------------------------------
Entry/Door Frame(self closing) Condition Repair, and refinish doors and frames to like new condition.
Install new door hardware including handles, pulls and kick
plates.
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Replace existing ceiling system with new 2$2 recessed
architectural ceiling, system.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls (4' wainscot @ plumbing wall) Condition Replace existing wall finishes. Provide a new 4' tile wainscot
at all fixture walls and new Type 11, 20 oz. wall vinyl at all
remaining walls.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor/cove base Condition Replace and upgrade the existing 1$1 green floor tiles.
Competitive Replacement tiles must be a minimum 8" $ 8" in a neutral tone.
Provide a coordinating tile cove base and threshold.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Competitive Lighting must remain on continuously at all times; install
Standards keyed switch or motion sensor.
- ------------------------------------------------------------------------------------------------------------------------------------
Vanity Condition Replace all vanities with new upgraded solid surface tops and
fronts. Provide new under mounted sink bowls, hardware, soap
dispensers and tissue dispensers. Conceal all under counter
plumbing, pipes. etc. from guest view.
- ------------------------------------------------------------------------------------------------------------------------------------
Vanity Lighting Competitive Provide new boxed soffit lighting over the full width of the
vanity. Install upgraded parabolic light diffuser.
- ------------------------------------------------------------------------------------------------------------------------------------
Vanity hardware Competitive Replace and upgrade to single lever handles.
- ------------------------------------------------------------------------------------------------------------------------------------
Mirrors Condition Replace and upgrade worn, delivered mirrors. Ensure mirrors
are full width over the vanities.
- ------------------------------------------------------------------------------------------------------------------------------------
Soap Dispensers Competitive Integrate the soap dispensers into the "new" vanity top.
- ------------------------------------------------------------------------------------------------------------------------------------
Towel/waste receptacles Provide new recessed or semi-recessed paper towel/trash
receptacles. Remove any free standing trash units.
- ------------------------------------------------------------------------------------------------------------------------------------
Urinals/hardware Install a lowered urinal per the ADA.
- ------------------------------------------------------------------------------------------------------------------------------------
12
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Toilet Partitions Condition Replace with new upgraded plastic laminate partitions that
compliment the new restroom decor. Ensure ADA requirements are
meet. Provide matching urinal screens in the men's room.
- ------------------------------------------------------------------------------------------------------------------------------------
Reserve Toilet Tissue Dispenser Standards Provide in each stall per standards.
- ------------------------------------------------------------------------------------------------------------------------------------
HVAC Condition Replace and upgrade the existing HVAC vent covers.
- ------------------------------------------------------------------------------------------------------------------------------------
Baby Changing Stations Standards Provide a baby changing station in one men's and one women's
restroom.
- ------------------------------------------------------------------------------------------------------------------------------------
13
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
FOOD SERVICE FACILITIES
GENERAL DESCRIPTION:
The restaurant is currently located on a raised area of the atrium and will
require a ramp that meets the ADA guidelines. Strongly recommended is relocating
the restaurant into the Fizz lounge. Professional design assistance is required.
All plans, color renderings and specifications are to reviewed by Holiday Inn
for approval prior to any renovation and installation. ADA compliance
certification letters are required at the time of plan review. Ensure restaurant
complies with the Best-4-Breakfast program.
- ------------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
---------
REQUIRED
--------
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------- ------ -----------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
FACILITIES
- ------------------------------------------------------------------------------------------------------------------------------------
Signage Condition Replace and upgrade signage due to worn / dated condition.
Competitive Coordinate with new signage package throughout the hotel.
- ------------------------------------------------------------------------------------------------------------------------------------
Owner/Operator Sign Standards Provide per standards. See standards manual for proper wording.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Condition Replace and upgrade the existing worn wall vinyl. Replacement
vinyl must be a Type II, 20 oz, material.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor Condition Replace and upgrade worn carpet and pad. Replace existing
floor tile. Provide new coordinating carpet, wood or low
profile vinyl base.
- ------------------------------------------------------------------------------------------------------------------------------------
Steps Standards Install adequate step lighting leading to raised seating
areas. Ensure adequate handrails are provided to meet
standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Host/Cashier Station Standards Remove all storage from behind station.
Condition
- ------------------------------------------------------------------------------------------------------------------------------------
Tables Condition Replace. Provide new to coordinate with decor theme.
- ------------------------------------------------------------------------------------------------------------------------------------
Chairs Condition Replace and upgrade all chairs. Provide an updated style chair
to compliment the overall decor scheme of the room. Select a
chair with a fabric upholstered seat and back.
- ------------------------------------------------------------------------------------------------------------------------------------
Kitchen Access Condition
- ------------------------------------------------------------------------------------------------------------------------------------
Buffet Condition Replace the skirted tables being used as a buffet with a new
permanent built-in buffet unit which will provide proper
heating and cooling for food items. Provide sneeze guards.
Relocate out of the atrium area and into the restaurant.
- ------------------------------------------------------------------------------------------------------------------------------------
Planting Competitive Provide container plants to soften room and enhance visual
interest and atmosphere.
- ------------------------------------------------------------------------------------------------------------------------------------
Grab & Go Standards Provide a permanent area to accommodate the Grab & Go concept.
- ------------------------------------------------------------------------------------------------------------------------------------
14
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
LOUNGE FACILITIES
GENERAL DESCRIPTION:
The lounge will require moderate renovations to furnishings, fixtures and
equipment update the appearance and address conditional issues. Professional
design assistance is required. All plans, color renderings and specifications
are to reviewed by Holiday Inn for approval prior to any renovation and
installation ADA compliance certification letters are required at the time of
plan review
- ------------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
---------
REQUIRED
--------
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------- ------ -----------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
FACILITIES
- ------------------------------------------------------------------------------------------------------------------------------------
Entrance Condition Replace the wall vinyl and globe lighting fixture with an
upgraded lighting fixture.
- ------------------------------------------------------------------------------------------------------------------------------------
Signage Condition Replace and upgrade signage due to worn / dated condition.
Competitive Coordinate with new signage package throughout the hotel.
- ------------------------------------------------------------------------------------------------------------------------------------
Owner/Operator Sign Standards Provide per standards. See standards manual for proper wording.
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Replace the existing ceiling system.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Replace the existing wall vinyl.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor condition Replace and upgrade the existing worn carpet and coordinate
with new decor theme.
Refinish existing wood dance floor to like new condition or
replace or remove.
Replace 1 x 1 tile around the bar with new approved flooring.
- ------------------------------------------------------------------------------------------------------------------------------------
Window Treatments Condition Provide new upgraded fabric window treatments. Blinds are not
permitted.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Provide adequate lighting for seating areas and task lighting
Standards for servers.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting/Dimmer Control Condition Replace lighting fixtures with new upgraded fixtures with
Competitive provide adequate illumination. Provide decorative wall mounted
and ceiling hung fixtures.
- ------------------------------------------------------------------------------------------------------------------------------------
Decor Competitive Provide a new upscale decor theme to enliven the lounge. If
the photos are to be part of the new decor theme then they
should be professional mounted and framed and coordinated into
the new concept.
- ------------------------------------------------------------------------------------------------------------------------------------
Tables Competitive Replace all tables.
- ------------------------------------------------------------------------------------------------------------------------------------
Chairs Condition Replace and upgrade all seating, including bar stools and soft
seating. Ensure all new seating features fully fabric
upholstered seats and backs.
- ------------------------------------------------------------------------------------------------------------------------------------
Booths Condition Replace and upgrade the booths due to worn condition. Seat
backs must be a fabric upholstered material.
- ------------------------------------------------------------------------------------------------------------------------------------
Bar glass rack Competitive The existing rack is dated in appearance and I recommend
removing the rack and designing an alternative method of
storing glasses.
- ------------------------------------------------------------------------------------------------------------------------------------
15
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Bar Top/Rail/Facing Condition Replace bar top and facing with new finishes that compliment
new lounge design/decor theme.
- ------------------------------------------------------------------------------------------------------------------------------------
Back Bar Condition Replace back bar finishes to compliment new lounge decor.
Eliminate all clutter. Position point-of-sale system out of
guest view by appropriately screening or recessing.
- ------------------------------------------------------------------------------------------------------------------------------------
Television Enclosures Competitive Provide for all televisions. Conceal all cables and wiring
from guest view.
- ------------------------------------------------------------------------------------------------------------------------------------
Popcorn/Vending Machines Competitive Remove or relocate machines to an appropriate location.
- ------------------------------------------------------------------------------------------------------------------------------------
16
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
MEETING/BANQUET ROOMS
GENERAL DESCRIPTION:
The pre-function and meeting areas will require moderate renovations to
furnishings, fixtures and equipment update the appearance and address
conditional issues. Professional design assistance is required. All plans, color
renderings and specifications are to reviewed by Holiday Inn for approval prior
to any renovation and installation. ADA compliance certification letters are
required at the time of plan review
- ------------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
---------
REQUIRED
--------
AREAS REQUIRE ACTION ACTION CURE/REMEDY
-------------------- ------ -----------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
MEETING-BANQUET FACILITIES
- ------------------------------------------------------------------------------------------------------------------------------------
Prefunction Area Condition Replace the existing ceiling tiles.
- ------------------------------------------------------------------------------------------------------------------------------------
Door Hardware/Frames Condition Replace the pink doors and sand the frames. Coordinate with
new decor theme.
- ------------------------------------------------------------------------------------------------------------------------------------
Door Signage Competitive Replace and upgrade signage due to worn / dated condition.
Coordinate with new signage package throughout the hotel.
- ------------------------------------------------------------------------------------------------------------------------------------
Door Viewer Standards Provide door viewers per the standards at 48 inches above the
finish floor.
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Standards Replace the existing ceiling system with a new 2x2 recessed
Competitive ceiling tile system.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Competitive Install new type II wall vinyl on all walls. Refinish all wood
trim, base and chair rails.
- ------------------------------------------------------------------------------------------------------------------------------------
Partitions (50 STC Min.) Condition Install new type II wall vinyl on all partitions.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor Condition Replace the carpet.
- ------------------------------------------------------------------------------------------------------------------------------------
Tables Condition Replace and upgrade any worn tables.
- ------------------------------------------------------------------------------------------------------------------------------------
17
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
ATRIUMS/POOL ENCLOSURES
GENERAL DESCRIPTION:
The fitness room will require moderate renovations to furnishings, fixtures and
equipment update the appearance and address conditional issues. Professional
design assistance is required. All plans, color renderings and specifications
are to reviewed by Holiday Inn for approval prior to any renovation and
installation. ADA compliance certification letters are required at the time of
plan review
- ------------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
---------
REQUIRED
--------
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------- ------ -----------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
STRUCTURE BUILDING Competitive The existing atrium space is drab, dark and uninviting. Create
Condition a more enlivened atmosphere, one that is bright and bold.
Bring the facing guest rooms into the new vibrant interior
make these guests want to keep their drapes open. Design in
liberal amounts of accent decor items, such as colorful accent
walls, ceiling banners, flags, hanging light fixtures,
umbrellas, contemporary furniture and like items. Add
pavilions, trellises and other structures to bring down the
level of the space. Brighten up the area with new light
fixtures utilizing a variety of lighting techniques. Round out
the design with upgraded hardscape and generous amounts of
exotic landscaping. Professional design assistance is
required. Submit all plans to Bass Hotels & Resorts for review.
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Replace the existing ceiling tile. Ensure skylights are not
leaking.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Where the exterior and interior block walls are seen together:
continue the stucco finishes into the interior CMU's walls. On
the remaining blocks walls not covered in stucco; stain the
block to match the new stucco color.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor Replace the existing floor tiles.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
FITNESS ROOM Furnish per the Holiday Inn "Fitness Center
Guidelines/Standards" manual.
- ------------------------------------------------------------------------------------------------------------------------------------
Entrance Condition Provide a new entrance from the pool side of the fitness
center.
- ------------------------------------------------------------------------------------------------------------------------------------
Restroom Condition Either make the restroom wheelchair accessible or consider
removing it. Maybe provide a sink and vanity only.
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Standards Minimum 8' high, 10' recommended.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Standards Provide one fully mirrored wall.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor Standards Provide a minimum 28 oz. carpet per Fitness Center standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Door/Frame (elec. Lock) Standards Provide with electronic lock.
- ------------------------------------------------------------------------------------------------------------------------------------
Visual access Standards Provide a glass door, door viewer or window with a minimum of
144 sq. in. of continuous viewing space.
- ------------------------------------------------------------------------------------------------------------------------------------
18
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
HVAC Standards Provide to maintain a constant 68-72 degrees Fahrenheit
temperature.
- ------------------------------------------------------------------------------------------------------------------------------------
Exercise Equipment Standards 3 pieces of brand name exercise equipment are required, such
(minimum 3, depending on as Lifecycle. Stairmaster and Nordic-track. Minimum 2
size of hotel) treadmills and 1 upright bike required. Include equipment
instructions.
- ------------------------------------------------------------------------------------------------------------------------------------
House Telephone Standards Provide a house phone that rings directly to the switchboard.
- ------------------------------------------------------------------------------------------------------------------------------------
Magazine Rack Competitive Recommended to provide.
- ------------------------------------------------------------------------------------------------------------------------------------
Drinking Water Standards Provide a chilled drinking water fountain or chilled bottled
water cooler per standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Towels and towel racks Standards Provide per the Holiday Inn Fitness Center Guidelines/Standards
- ------------------------------------------------------------------------------------------------------------------------------------
Area map Standards Provide a detailed map of the area around the hotel showing
streets, landmarks a distances, including 1.3 and 6 mile
routes.
- ------------------------------------------------------------------------------------------------------------------------------------
Clock Standards A wall mounted minimum size 14" diameter clock is required.
- ------------------------------------------------------------------------------------------------------------------------------------
TV Standards Provide a 25" minimum size T.V.
- ------------------------------------------------------------------------------------------------------------------------------------
Artwork Competitive Provide colorful graphics with a sports theme.
- ------------------------------------------------------------------------------------------------------------------------------------
Scale Standards Provide per standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Standards Provide 50-60 foot-candles of ambient neutral color
temperature fluorescent lighting per standards.
- ------------------------------------------------------------------------------------------------------------------------------------
INTERIOR POOL/SAUNA/WHIRLPOOL
- ------------------------------------------------------------------------------------------------------------------------------------
Pool furnishings Condition Replace and upgrade existing pool deck furniture. Provide new
high quality, commercial grade chairs, tables and chaise
lounges. Furnish ample number of shade umbrellas for guest
comfort.
- ------------------------------------------------------------------------------------------------------------------------------------
Whirlpool (15timer & Kill switch?) Ensure that the 15 timer and kill switch is in proper working
condition.
- ------------------------------------------------------------------------------------------------------------------------------------
Drainage (2 drains req.)(vortex) Install an anti vortex drain.
- ------------------------------------------------------------------------------------------------------------------------------------
Fence Standard Pool must be secured with appropriately designed, decorative
4'0" minimum height fence with a self-closing and latching
gate.
- ------------------------------------------------------------------------------------------------------------------------------------
19
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
KITCHEN
GENERAL DESCRIPTION:
- ------------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
---------
REQUIRED
--------
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------- ------ -----------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
FACILITIES
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling (Washable) Replace damage ceiling tile.
- ------------------------------------------------------------------------------------------------------------------------------------
Equipment Install a metal shield between the grease fryer and the open
flame grille.
- ------------------------------------------------------------------------------------------------------------------------------------
Walk-ins Replace seals on all walk-ins.
- ------------------------------------------------------------------------------------------------------------------------------------
20
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
INTERIOR CORRIDORS
GENERAL DESCRIPTION:
The interior corridors will require moderate renovations to furnishings,
fixtures and equipment update the appearance and address conditional issues.
Professional design assistance is required. All plans color renderings and
specifications are to reviewed by Holiday Inn for approval prior to any
renovation and installation. ADA compliance certification letters are required
at the time of plan review
- ------------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
---------
REQUIRED
--------
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------- ------ -----------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
CORRIDOR
- ------------------------------------------------------------------------------------------------------------------------------------
Doors Condition Repaint all door frames in conjunction with the guest room
improvements.
- ------------------------------------------------------------------------------------------------------------------------------------
Signage Condition Replace all signage, including door numbers, vending, and
Standards directional, with new upgraded signage package. All
Competitive non-smoking rooms must have designated signage. All signage
must be ADA compliant, and be consistent throughout the hotel.
Return doors to like new condition where old signage was
removed from the doors.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Condition Replace and upgrade existing wall vinyl with new Type II wall
vinyl. Replace and upgrade chair rail with new architectural
millwork.
Remove ash urns from walls.
Provide an architectural millwork package to further enhance
improvements.
- ------------------------------------------------------------------------------------------------------------------------------------
Misc. Doors Repair any damaged or worn doors and frames.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor Replace carpet on the 3rd floor. Remove the 12 inch base and
replace with a 4 - 6 inch carpet base.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Replace the existing wall sconces with new light sconces that
do not protrude more than 4 inches from the wall. Install 4
additional sconces in each corridor. Center between existing
locations. Corridors must have 20 foot candles of light per
the standards.
Replace the under sized fluorescent fixtures at the guest room
bulk heads with fixtures that span the full length of the bulk
head.
- ------------------------------------------------------------------------------------------------------------------------------------
Window Treatments Install window treatments at the window ends of all corridors.
- ------------------------------------------------------------------------------------------------------------------------------------
Misc. vents & grills Condition Replace any damaged miscellaneous vents and grills.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
VENDING
- ------------------------------------------------------------------------------------------------------------------------------------
Alcoves Standards Relocate all vending machines to appropriate vending alcoves.
Vending alcoves must include full height wing walls, Type II
wallcovering or acrylic knockdown wall finish, appropriate
lighting and fully grounded electrical outlets (GFIC).
- ------------------------------------------------------------------------------------------------------------------------------------
21
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Condition Replace with new upgraded wall finishes to match the corridor.
- ------------------------------------------------------------------------------------------------------------------------------------
ELEVATORS Ensure elevators meet ADA.
- ------------------------------------------------------------------------------------------------------------------------------------
Door Finish Condition Paint elevator doors and frames to coordinate with finishes.
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Replace existing ceiling with new ceiling system.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Replace existing plastic laminate with new upgraded design.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor Finish Condition Replace and upgrade to match and/or coordinate with lobby and
corridor floor finishes.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Provide additional lighting to increase illumination.
- ------------------------------------------------------------------------------------------------------------------------------------
22
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN:
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
GUEST ROOMS
GENERAL DESCRIPTION:
The guest rooms will require moderate renovations to furnishings, fixtures and
equipment update the appearance and address conditional issues. A total of 8
wheelchair accessible are required 2 of which shall have a roll in shower.
Professional design assistance is required. All plans, color renderings and
specifications are to reviewed by Holiday Inn for approval prior to any
renovation and installation. ADA compliance certification letters are required
at the time of plan review
- -------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------------------------------------------------------------------------------------------------
STRUCTURE BASE BUILDING
- -------------------------------------------------------------------------------------------------------------
Doors/Hardware
- -------------------------------------------------------------------------------------------------------------
Door Numbers Standards Provide new ADA complaint guest room
door number plaques. Plaques must
have raised numbers and Braille
inscription. Mount plaques 60" above
the finished floor on the wall
adjacent to the latch side of the door.
- -------------------------------------------------------------------------------------------------------------
Self-Closing Standards Ensure all self-closing devices are
properly adjusted and fully
operational.
- -------------------------------------------------------------------------------------------------------------
Closet walls Install new wall finish to coordinate
with guest room wall finish.
- -------------------------------------------------------------------------------------------------------------
Soundproofing Standards Provide sound gasket at connecting
room doors per standards.
- -------------------------------------------------------------------------------------------------------------
Electrical Outlets Standards Ensure an electrical outlet and data
port are conveniently located near
all work surface areas. Eliminate
excessive cord visibility by
installing addition outlets as
required to service the equipment.
- -------------------------------------------------------------------------------------------------------------
Service vanity Replace all black plastic laminate on
service vanities.
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
INTERIOR BUILDING
FINISHES/LIGHTING
- -------------------------------------------------------------------------------------------------------------
Ceiling Condition Repaint ceilings to like new
condition. Repair any irregularities
prior to painting.
- -------------------------------------------------------------------------------------------------------------
Walls Condition Replace and upgrade existing wall
finishes. Provide new Holiday Inn
standardized room decor wall vinyl or
color integrated acrylic knockdown
wall finish per specifications. All
existing wall finishes must be
removed, and wall appropriately
prepared prior to receipt of new wall
finish.
- -------------------------------------------------------------------------------------------------------------
Floor Condition Replace and upgrade worn carpet and
pad. Provide a new Holiday Inn
standardized room decor carpet.
Provide a coordinating carpet base or
2-1/2" straight vinyl base. Prepare
floor surfaces prior to installation
of new floor finishes.
- -------------------------------------------------------------------------------------------------------------
Entry Light Competitive Replace and upgrade with decorative
wall sconce.
- -------------------------------------------------------------------------------------------------------------
23
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- -------------------------------------------------------------------------------------------------------------
Lighting Condition Replace and upgrade existing worn
guest room lighting package to
include new table and floor lamps
with new Holiday Inn standardized
room decor lighting. Wall mounted
lamps will not be acceptable.
Coordinate all lamps and shades. All
bulbs must provide a minimum of 100
watts of light. Provide touch sensitive
fixtures in ADA accessible rooms.
Provide smart lamps at work areas.
Replace and upgrade ceiling mounted
entry lights.
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
SOFT GOODS All new soft goods must comply with
the new Holiday Inn standardized room
decor program.
- -------------------------------------------------------------------------------------------------------------
Window Treatment Condition Replace all drapes with new upgraded
Standards window treatments that comply with
the new Holiday Inn standardized room
decor program. These include sheers
and over-drapes with blackout lining.
- -------------------------------------------------------------------------------------------------------------
Linens Condition Replace all worn lines. Ensure new
linens meet Holiday Inn minimum
weight standards.
- -------------------------------------------------------------------------------------------------------------
Bedspreads Condition Replace bedspreads with new bedspreads
Standards and optional dust ruffles that comply
with the new Holiday Inn standardized
room decor program.
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
CASE GOODS Replace all Americans of Martinsville
casegoods. Including all headboards.
night stands, desks, activity tables,
credenzas and credenza mirrors,
occasional tables, and luggage benches
by Jan. 1, 2003.
Refinish any existing damaged
casegoods to like new condition in
conjuction with this renovation.
Ensure all rooms are furnished per
Holiday Inn standards.
All new room furnishings must comply
with the new Holiday Inn standardized
guest room decor program.
- -------------------------------------------------------------------------------------------------------------
Credenza Standards Replace existing credenzas with new
armoires per the standardized guest
room decor program.
- -------------------------------------------------------------------------------------------------------------
Activity Chair Condition Reupholster with the SRD approved
fabric.
- -------------------------------------------------------------------------------------------------------------
Desk Chair Condition Replace with new ergonomic chair per
standardized guest room decor program
with Krypton fabric.
- -------------------------------------------------------------------------------------------------------------
Sofa Condition Replace any worn sofa fabric and
coordinate with the SRD upon
replacement. Replace all sofas by Jan
1, 2002.
- -------------------------------------------------------------------------------------------------------------
Artwork Condition Replace all artwork to meet the
Holiday Inn standardized room decor
program.
- -------------------------------------------------------------------------------------------------------------
Mattresses Condition Replace any worn, sagging mattresses.
- -------------------------------------------------------------------------------------------------------------
Bed Frame Standards Open bed frames are required in
wheelchair accessible guest rooms.
- -------------------------------------------------------------------------------------------------------------
24
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
- -------------------------------------------------------------------------------------------------------------
EQUIPMENT
- -------------------------------------------------------------------------------------------------------------
Televisions (25") Standards Replace all existing undersized
televisions with new 25" units.
- -------------------------------------------------------------------------------------------------------------
Refrigerator/Microwave Competitive Provide a new piece of furniture to
match new case goods to house the
refrigerator and microwave units.
- -------------------------------------------------------------------------------------------------------------
Coffee Makers Standards Install in all rooms per standards.
- -------------------------------------------------------------------------------------------------------------
MOT Standards Comply with all Moment of Truth
Standards as deadline dates become
affective.
- -------------------------------------------------------------------------------------------------------------
25
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
GUEST ROOM BATHS
GENERAL DESCRIPTION:
The guest bath rooms will require moderate renovations to furnishings, fixtures
and equipment update the appearance and address conditional issues. Professional
design assistance is required. All plans, color renderings and specifications
are to reviewed by Holiday Inn for approval prior to any renovation and
installation ADA compliance certification letters are required at the time of
plan review
- -------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
FACILITIES
- -------------------------------------------------------------------------------------------------------------
Entry Doors/Frames Condition Repair, paint and restore doors and
frames to like new condition. Replace
any corroded door hardware.
- -------------------------------------------------------------------------------------------------------------
Walls Condition Replace any worn wall vinyl.
- -------------------------------------------------------------------------------------------------------------
Floors Condition Regrout floor tiles to like new
condition.
- -------------------------------------------------------------------------------------------------------------
Ceiling Paint any stained ceilings.
- -------------------------------------------------------------------------------------------------------------
Vanities Condition Replace and upgrade vanities with new
cultured marble, natural stone or
other solid surface material in the
120 guest rooms with the old orange
vanities.
- -------------------------------------------------------------------------------------------------------------
Sinks Condition Install under-mounted sinks and new
single lever sink hardware in
conjunction with vanity top replacement
in the 120 guest rooms.
- -------------------------------------------------------------------------------------------------------------
Vanity Hardware Replace and upgrade to single lever
handles.
- -------------------------------------------------------------------------------------------------------------
Vanity Mirrors Condition Replace and any de-silvered mirrors.
Recommend wood frame for upgrade
appearance.
- -------------------------------------------------------------------------------------------------------------
Bathtubs Condition Recondition to like new or replace.
- -------------------------------------------------------------------------------------------------------------
Bathtub Hardware Condition Replace tarnished and scratched tub
hardware.
- -------------------------------------------------------------------------------------------------------------
Mechanical Exhaust Condition Replace any damaged or worn exhaust
vents.
- -------------------------------------------------------------------------------------------------------------
26
PROPERTY IMPROVEMENT PLAN
LICENSE RENEWAL OF THE HOLIDAY INN;
SHEFFIELD, AL. - LOCATION #4419
JANUARY 25, 1999
BACK OF HOUSE
GENERAL DESCRIPTION:
- -------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
SERVICE AREAS/ROOMS
- -------------------------------------------------------------------------------------------------------------
Service Corridors Pressure wash service corridor to
Dumpster.
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
MAINTENANCE SHOP
- -------------------------------------------------------------------------------------------------------------
Other Paint walls and floors.
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
LAUNDRY/HOUSEKEEPING
- -------------------------------------------------------------------------------------------------------------
Walls Replace damaged walls.
- -------------------------------------------------------------------------------------------------------------
Floors Replace floor tiles.
- -------------------------------------------------------------------------------------------------------------
27
PROPERTY IMPROVEMENT PLAN
HOLIDAY INN
JEKYLL ISLAND, GA
BASS
----------------
HOTELS & RESORTS
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN HOTEL JEKYLL - OCEANSIDE
JEKYLL ISLAND, GA - LOCATION # 2619
PROPERTY IMPROVEMENT PLAN
JANUARY 12, 1999
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
TABLE OF CONTENTS:
PROPERTY INFORMATION........................... 1
LIFE SAFETY.................................... 3
EXTERIOR....................................... 5
LOBBY/ENTRANCE/FRONT DESK...................... 10
PUBLIC RESTROOMS............................... 12
FOOD SERVICE FACILITIES........................ 13
LOUNGE FACILITIES.............................. 14
MEETING/BANQUET ROOMS.......................... 16
HOLIDOMES/ATRIUMS/POOL ENCLOSURES.............. 17
KITCHEN........................................ 18
INTERIOR CORRIDORS............................. 19
GUEST ROOMS.................................... 22
GUEST ROOM BATHS............................... 26
BACK OF HOUSE.................................. 28
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
PROPERTY INFORMATION
Address: Holiday Inn Hotel
Jekyll - Oceanside
200 South Beachview Drive
Jekyll Island, GA 31520
GENERAL DESCRIPTION:
This hotel is comprised of a four story building connected to the commercial
building and three two story buildings to the north. All of the guestrooms are
accessed through central interior corridors and half have exterior balconies
accessed through sliding doors. The exterior of the commercial building, as well
as the rental units buildings, is undergoing major renovation, to include,
installation of new roofline/parapet design features, improvements to the main
entry canopy, and concealment of the dated facades with synthetic stucco. Also
required is replacement of the storefront with new punched windows and synthetic
stucco side panels. The commercial areas require major renovation, to include a
complete refurbishment of the lobby, some repair in the restrooms, and ceiling
work in the meeting areas, restaurant and lounge. The guestrooms/guest bathrooms
also require a major renovation, including replacement of all casegoods, wall
finishes, lighting fixtures, carpet, vanities, plumbing fixtures and hardware in
at least 149 of the 205 rooms. The other 56 rooms will require renovation to
meet the Standardized Room Decor Program requirements, but are in acceptable
condition for the interim.
Professional Architectural and design assistance is required. Submit all plans,
specifications and color boards to Bass Hotels & Resorts for review and
approval, prior to purchasing or renovation. Any items not submitted for
approval may be required to be replaced or modified. Professional Architectural
and design assistance is required. Franchisee to ensure all areas of the hotel
are in complete compliance with local codes and Americans with Disabilities Act
(ADA) and current Bass Hotels & Resorts life safety and facility standards.
Owner is required to repair or replace all items and finishes in the hotel that
may be damaged during the course of the renovation. Ensure all areas of the
hotel are in new condition upon completion of the PIP.
During the Property Improvement process, signage from the Holiday Inn
"Renovation Kit" must be put on display, in a professional manner, throughout
appropriate areas of the hotel. You will receive this kit within 90 days from
license execution.
All areas of the hotel must meet current Holiday Inn standards, including all
supplements and addenda.
Year Built: 1976 Year(s) Renovated: Ongoing
Parking Spaces: 350 Swimming Pool 30 x 80
Dimensions/maximum 8'-0" max. depth
depth:
Number of Stories: 4/2
COMMERCIAL AREA CAPACITIES
Food Service Facility: Remington's Bar and Grill seats: 180
Lounge: Remington's Bar and Grill seats: 57
1
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
Meeting/Banquet Room: Grand Ballroom seats: 600
Fitness Room: yes X no_____
Guest Rooms: No. of Rooms/Opening Date
Original Rooms: 110/76
1st. Addition: 44
2nd. Addition: 35
Total Rooms: 205
HVAC Systems: (2/4 pipe; thru-wall or split system)
Commercial Area Rooftop
Guest room Building PTAC
Fire Safety Systems:
Hardwire Smoke Commercial Area yes X no_____
Guest room Building yes X no
Sprinkler System Commercial Area yes_____ no X
Guest room Building yes_____ no X
This Property Improvement Plan was developed from an on-site review of the
subject hotel on January 12, 1999 by Liz York accompanied by Dan Coleman (G.M.).
2
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
LIFE SAFETY
- --------------------------------------------------------------------------------------------------------------------
AREAS REQUIRING ACTION CURE/REMEDY
- --------------------------------------------------------------------------------------------------------------------
FIRE SAFETY SYSTEM Prior to issuance of the license, written
documentation must be submitted
certifying that the Fire Safety System
meets or exceeds Holiday Inn's Standards
and that the system if fully operational
as of that date.
- --------------------------------------------------------------------------------------------------------------------
LOBBY/ENTRANCE/FRONT DESK - LIFE SAFETY Ensure that all life-safety equipment is in perfect
working order.
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
PUBLIC RESTROOMS - LIFE SAFETY Ensure that all life-safety equipment is in perfect
working order.
- --------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Provide emergency lighting.
- --------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure adequate heat and smoke detectors are present
Detectors: per code and standards.
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
LOUNGE FACILITIES - LIFE SAFETY Ensure that all emergency equipment is functioning
properly.
- --------------------------------------------------------------------------------------------------------------------
Exit Signs: Sign on right is not lit. Replace or repair. All signs
must match.
- --------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure adequate heat and smoke detectors are present per
Detectors: code and standards.
- --------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure that number of exits satisfies all code and Bass
Hotels & Resorts requirements.
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
MEETING/BANQUET ROOMS - LIFE SAFETY Ensure that all life-safety equipment is in perfect
working order.
- --------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure that # of exits satisfies all code and Bass Hotels
& Resorts requirements.
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
HOLIDOMES/ATRIUMS/POOL ENCLOSURES - LIFE SAFETY Ensure that all life-safety equipment is in perfect
working order.
- --------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is provided.
- --------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards
and codes. Ensure bright illumination.
- --------------------------------------------------------------------------------------------------------------------
Panic Hardware: Provide panic hardware at all exit doors
- --------------------------------------------------------------------------------------------------------------------
Step Lighting:
- --------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure area meets fire separation requirements per codes
and standards.
- --------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure adequate heat and smoke detectors are present per
Detectors: code and standards.
- --------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and
standards.
- --------------------------------------------------------------------------------------------------------------------
Sprinklers: Install missing trim rings.
- --------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure that # of exits satisfies all code and Bass Hotels
& Resorts requirements.
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
KITCHEN - LIFE SAFETY Ensure that all equipment is in perfect working order.
- --------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is provided.
- --------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards
and codes. Ensure bright illumination.
- --------------------------------------------------------------------------------------------------------------------
Panic Hardware: Provide panic hardware at all exit doors
- --------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure area meets fire separation requirements per codes
and standards.
- --------------------------------------------------------------------------------------------------------------------
3
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- --------------------------------------------------------------------------------------------------------------------
Heat/Smoke Detectors: Ensure adequate heat and smoke detectors are present per
code and standards.
- --------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and
standards.
- --------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure that # of exits satisfies all code and Bass Hotels
& Resorts requirements.
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
INTERIOR CORRIDORS - LIFE SAFETY Ensure that all emergency equipment is functioning
properly.
- --------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards
and codes. Ensure bright illumination.
- --------------------------------------------------------------------------------------------------------------------
Panic Hardware: Remove door knobs from stairwell doors and install panic
bar hardware.
- --------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure adequate heat and smoke detectors are present per
Detectors: code and standards.
- --------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and
standards.
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
GUEST ROOMS - LIFE SAFETY Ensure that all life-safety equipment is in perfect
working order.
- --------------------------------------------------------------------------------------------------------------------
Visual-Heat/Smoke in ADA rooms Provide approved hardwired
Detectors: speaker/strobe heat/smoke detectors in ADA rooms.
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
BACK OF HOUSE - LIFE SAFETY Ensure that all life-safety equipment is in perfect
working order.
- --------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is provided.
- --------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards
and codes. Ensure bright illumination.
- --------------------------------------------------------------------------------------------------------------------
Panic Hardware: Ensure operation and location of panic hardware at all
doors that exit to the exterior per code and standards.
- --------------------------------------------------------------------------------------------------------------------
Fire Extinguisher: Ensure adequate extinguishers are present per code and
standards.
- --------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure area meets fire separation requirements per codes
and standards.
- --------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure adequate heat and smoke detectors are present per
Detectors: code and standards.
- --------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and
standards.
- --------------------------------------------------------------------------------------------------------------------
Sprinklers: Install missing trim rings.
- --------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure that # of exits satisfies all code and Bass Hotels
& Resorts requirements.
- --------------------------------------------------------------------------------------------------------------------
Fire Separation Ensure area meets fire separation requirements per codes
(1 hour min) and standards.
- --------------------------------------------------------------------------------------------------------------------
18 Gauge Steel Cabinet Ensure that this is provided in the maintenance shop.
- --------------------------------------------------------------------------------------------------------------------
4
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
EXTERIOR
GENERAL DESCRIPTION:
The exterior facades of the rental units are bland, dated and lack visual
interest. The landscaping requires enhancing and enlargement of scope.
Professional design assistance is required. Submit architectural plans,
elevations and renderings to Bass Hotels & Resorts for review.
- ---------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- ---------------------------------------------------------------------------------------------------------------
COMMERCIAL BUILDING Exterior work is in process.
All work must be completed
per approved plans.
- ---------------------------------------------------------------------------------------------------------------
Drive through surface Condition Install pavers or stamped
concrete/stamped asphalt coating
beneath the canopy. Integrate ramps
with the driving surface to eliminate
curbs in front of the entry doors.
- ---------------------------------------------------------------------------------------------------------------
Entrance doors Condition Replace existing aluminum storefront
doors and fixed glass with a new
upgraded window wall system and new
energy efficient entry doors.
- ---------------------------------------------------------------------------------------------------------------
Service doors Condition Refinish service doors to
like new condition ensuring
coordination with the new look of the
completed renovation.
- ---------------------------------------------------------------------------------------------------------------
Auxiliary entrance doors Condition Replace with new doors that complement
the new main entry doors.
- ---------------------------------------------------------------------------------------------------------------
Lighting Condition Replace all existing commercial
building lighting. Provide a new,
upgraded lighting design package
which provides safety lighting in
parking areas, stairways, ramps,
etc.; decorative lighting along
walkways and entrances; landscape
accent lighting in courtyards, pool
area, around main canopy entrance,
etc.; and bright inviting lighting at
the main canopy entrance, restaurant
entrance and drive entrances to
welcome guests.
- ---------------------------------------------------------------------------------------------------------------
Walkways/Pavers Condition Replace and resurface all broken,
cracked or otherwise damaged concrete
walkways. Provide a consistent finish
for all walkways. Provide for proper
drainage of walkways to prevent
standing water, puddles and flowing
obstacles for guests during rain
showers.
- ---------------------------------------------------------------------------------------------------------------
Flag poles Condition Recondition flag pole at front canopy
entrance. Ensure that flags are in
excellent condition.
- ---------------------------------------------------------------------------------------------------------------
Kitchen/Delivery Screen Condition Shield all delivery activities from
guest's view. Repair and repaint
existing screening at delivery
entrances. Supplement with new,
permanent screen walls, fencing and
signage designed to keep guests from
entering delivery and back of house
areas. This includes foot and vehicle
traffic. Install landscaping to
further shield this area from guests'
view. Coordinate design with the new
look of the completed renovation.
- -----------------------------------------------------------------------------------------------------------------
5
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- -----------------------------------------------------------------------------------------------------------------
RENTAL UNIT (GST.RM.) BUILDINGS Exterior work is in process. All work
must be completed per approved plans.
- -----------------------------------------------------------------------------------------------------------------
Steps Condition Repair damaged and cracked steps.
Install code compliant handrails.
Provide landing at top and bottom of
steps. Install ornamental landscaping
and lighting at steps and landings.
- -----------------------------------------------------------------------------------------------------------------
Entrance doors Condition Construct permanent
awning/vestibule/portal at auxiliary
entrance doors to signify entry while
protecting the guest from the
elements during entry. Add
landscaping around the new structure.
- -----------------------------------------------------------------------------------------------------------------
Service doors Condition Remove all padlocks from service doors.
Replace with key and mortise locks.
Repair all holes and refinish doors to
like new condition.
- -----------------------------------------------------------------------------------------------------------------
Elevators/Satellite Dish Condition Shield elevator overrides and machinery
from guests view.
- -----------------------------------------------------------------------------------------------------------------
Walkways/Pavers Condition Replace and resurface all
broken-cracked or otherwise damaged
concrete walkways to like new
condition. Replace all broken pavers.
Provide a consistent finish for all
walkways. Provide for proper drainage
of walkways to prevent standing
water, puddles and flowing obstacles
for guests during rain showers.
- -----------------------------------------------------------------------------------------------------------------
Railings Condition Replace all existing railings with a
new railing system that meets all
Bass Hotels & Resorts and uniform
building code standards including a
6" wide top cap. Ensure that new
railing system meets all code and ADA
requirements.
- -----------------------------------------------------------------------------------------------------------------
Windows/Doors/Frames Condition Replace and upgrade the existing
spandrel and glazing systems on the
guest room building. They are worn,
dated and energy inefficient. Remove
the entire existing exterior guest
room bay storefront system. Construct
a new metal stud wall with an
exterior skin assembly of sheathing
and synthetic stucco (drywall finish
on the interior) Provide new
insulated windows/door units
correctly proportioned to the
exterior facade, along with a new
full blade louver painted to match
the stucco color.
- -----------------------------------------------------------------------------------------------------------------
HVAC/Grilles Condition Replace existing HVAC grilles with
full blade architectural louvers
under the new single punched windows.
New louvers to match color of and be
flush mounted with new synthetic
stucco wall system.
- -----------------------------------------------------------------------------------------------------------------
Lighting Condition Replace and upgrade all existing
balcony and walkway lighting. Conceal
all exposed wiring, conduit,
wire-mold and other unsightly
services in false beams, pilasters or
other new construction. Provide
additional accent lighting such as
concealed up-lighting from landscape
beds or building mounted sconces.
- -----------------------------------------------------------------------------------------------------------------
6
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- -----------------------------------------------------------------------------------------------------------------
Site Stairs/Railings/Decks/Paths Condition Ensure that all decking and stairs
are in perfect condition. Repair and
refinish as necessary. Rebuild path
near beach or remove sand. Repair all
railings. Demolish old showers and
deck or install benches in the old
shower area. Repair worn boards.
Provide signage to aid guests in
finding beach, bikes, restaurant, etc.
- -----------------------------------------------------------------------------------------------------------------
Signage Standards Replace all existing directional
signage. Provide new professionally
designed directional signage that
coordinates with the new color scheme
of the hotel. Comply with all codes
and ADA Requirements.
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
EXTERIOR VENDING AREAS
- -----------------------------------------------------------------------------------------------------------------
Floor Condition Install non-slip hard surface treatment
such as quarry tile. Provide a
barrier-free and durable edge treatment.
- -----------------------------------------------------------------------------------------------------------------
Walls Condition Install new wing walls at all exposed
vending areas to screen sides and
back of vending equipment. Install
louvers in side wing walls to
ventilate the backs of the vending
machines and ice machines. Paint
louvers to match the color of the
synthetic stucco. Coordinate design
and finishes with the new look of the
completed renovation.
- -----------------------------------------------------------------------------------------------------------------
Lighting Condition Provide additional lighting for the
vending alcove. Coordinate with other
exterior lighting fixtures.
- -----------------------------------------------------------------------------------------------------------------
Vending Equipment Condition Ensure that all outlets are GFIC's.
- -----------------------------------------------------------------------------------------------------------------
Ice Machines Condition Repair leaks.
- -----------------------------------------------------------------------------------------------------------------
Exposed conduit Condition Conceal all exposed conduit.
- -----------------------------------------------------------------------------------------------------------------
Screening Condition Screen backs and sides of all vending
machines from guest's view.
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
PARKING
- -----------------------------------------------------------------------------------------------------------------
Condition Condition Resurface the entire parking lot to
eliminate severe damage and wear.
Completely cover exposed rebar as this
may damage guests tires.
- -----------------------------------------------------------------------------------------------------------------
Striping Condition Following the new surface coat, restripe
the entire parking lot with white stripes
and blue HC designations and signage.
- -----------------------------------------------------------------------------------------------------------------
Lighting Standards Ensure 1 square foot of candle power is
provided per standards. Provide adequate
lighting levels for a sense of safety.
- -----------------------------------------------------------------------------------------------------------------
Curbing Condition Replace all wood curbing throughout
the parking areas. Install concrete
curbing and drainage systems
throughout the entire lot. Provide
decorative retaining walls at main
entrance curb areas.
- -----------------------------------------------------------------------------------------------------------------
Parking islands Standards Enhance landscaped islands to break
up the uninterrupted parking area.
Provide color and interest in the
parking islands. Plant ground cover,
plants and shrubs such as vinca
minor, ferns, ornamental grasses,
liriope, hostas, lilies, lilies of
the valley, azaleas and
rhododendrons. Install cypress mulch
to cover beds.
- -----------------------------------------------------------------------------------------------------------------
7
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- -----------------------------------------------------------------------------------------------------------------
Signage Condition Install directional signage to aid
guests to aid guests in finding
commercial and guest room areas.
Provide lighting to make signage
visible at night.
- -----------------------------------------------------------------------------------------------------------------
Dumpster Screen Standards Screen all dumpsters, electrical,
mechanical, and other equipment from
guests view with permanent screen
walls and/or landscaping. Coordinate
design with the new look of the
completed renovation. The use of
exposed chain link is unacceptable.
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
LANDSCAPING Standards Portions of existing landscaping are
well maintained and attractive,
however many areas are not addressed.
Enhance and extend landscaping to
address the entire site. Standards
require that 15% min of the site must
be devoted to landscaping. Plant
ground cover, plants and shrubs such
as vinca minor, ferns, ornamental
grasses, liriope, hostas, lilies,
lilies of the valley, azaleas and
rhododendrons. Install cypress mulch
to cover beds.
- -----------------------------------------------------------------------------------------------------------------
Primary entrance Competitive Plant flowers and foliage to enhance
existing landscaping. Construct berms
to break up flat areas. Plant dense
screening and colorful landscaping
throughout the parking areas.
- -----------------------------------------------------------------------------------------------------------------
Commercial Building Competitive Plant flowers and foliage to enhance
existing landscaping.
- -----------------------------------------------------------------------------------------------------------------
Rental Units Competitive Remove any dead trees, shrubs, and
plants. Replace and enhance existing
landscaping. Plant low shrubs or
leafy borders to accent
concrete/paved areas. Add garden
benches to courtyard areas to give
focus and additional interest.
- -----------------------------------------------------------------------------------------------------------------
Property Perimeter Competitive Plant new/additional trees, shrubs,
vines and other plants to frame the
extents of the property. Replace and
upgrade the fence between the Holiday
Inn and the adjacent property and
provide new, extensive and lush
screening landscape on the Holiday
Inn side of the new fence.
- -----------------------------------------------------------------------------------------------------------------
Swimming Pool Competitive Prune existing shrubs. Plant flowers
and foliage to enhance existing
landscaping. Install planters with
shrubs and plants in barren areas.
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
EXTERIOR SWIMMING POOL
- -----------------------------------------------------------------------------------------------------------------
Coping Finish Condition Replace cracked and damaged
coping tiles with new updated coping.
- -----------------------------------------------------------------------------------------------------------------
Area/decorative lighting Condition Provide a new, upgraded lighting
design package which provides safety
and decorative lighting. Provide
additional accent lighting such as
concealed up-lighting from landscape
beds, lanterns or building mounted
sconces. Remove utilitarian fixtures
at each end of pool.
- -----------------------------------------------------------------------------------------------------------------
Rest room/shower facility Condition Paint and repair. Remove mats and
install pavers or deck for shower use
and path.
- -----------------------------------------------------------------------------------------------------------------
Drainage(2 drains req.)(vortex) Standards Ensure that drains are anti-vortex
drains. Install if needed.
- -----------------------------------------------------------------------------------------------------------------
8
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- -----------------------------------------------------------------------------------------------------------------
Safety equipment Condition Replace and upgrade worn and faded
safety equipment to coordinate with
new renovation. (Two life preserver
rings and a shepherd's hook.) Hang
hook in visible location.
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
TENNIS COURTS
- -----------------------------------------------------------------------------------------------------------------
Enclosure Condition Repair hole in fence. Replace any
rusted fencing. Remove all dead vines
from fencing.
- -----------------------------------------------------------------------------------------------------------------
Surface Condition Power wash and keep clean of debris.
- -----------------------------------------------------------------------------------------------------------------
Netting Condition Remove mildew and dirt.
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
SIGNAGE
- -----------------------------------------------------------------------------------------------------------------
Property/Primary (great) sign Condition Refinish cabinet base of great sign.
Install base/curbing around bottom of
signage to give more prominence to
the sign and allow it to coordinate
with the rest of the new exterior
finishes. Base to include plants and
shrubs, and incorporate elements and
materials of the new renovation for
an overall design effect.
- -----------------------------------------------------------------------------------------------------------------
Directional Signage Condition Provide professional signage package,
including directional signage
throughout the parking areas and from
the lobby to each guest room wing and
all other amenities. Ensure that new
outdoor signage is weather-proof and
non-fading.
- -----------------------------------------------------------------------------------------------------------------
Rest room/auxiliary signage Condition Provide professional signage package.
Satisfy all ADA signage requirements.
- -----------------------------------------------------------------------------------------------------------------
9
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN- JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
LOBBY/ENTRANCE/FRONT DESK
GENERAL DESCRIPTION:
The lobby requires a major renovation, including replacement of all floor and
ceiling finishes and furniture. Professional design assistance is required.
Submit architectural plans, elevations and renderings to Bass Hotels & Resorts
for review.
- -----------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -----------------------------------------------------------------------------------------------------------------
LOBBY/ENTRANCE/FRONT DESK-LIFE Ensure that all life-safety equipment
is in perfect working order.
- -----------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------
LOBBY AND CORRIDORS
- -----------------------------------------------------------------------------------------------------------------
Vestibule Doors/Frames Condition See "Exterior" above.
- -----------------------------------------------------------------------------------------------------------------
Vestibule Floor Condition Install recessed flooring walk off
tread system. Surface mats are
unacceptable. Replace all floor
finishes.
- -----------------------------------------------------------------------------------------------------------------
Vestibule Walls Condition Refurbish all storefront finishes to
new condition or replace.
- -----------------------------------------------------------------------------------------------------------------
Vestibule Ceiling Condition Replace existing ceiling and grid
with new architectural grid and
recessed edge ceiling tiles with
updated surface texture. Ceiling area
was currently under construction and
no ceiling finishes were in place.
- -----------------------------------------------------------------------------------------------------------------
Directional Signage Condition Install directional signage as
described above.
- -----------------------------------------------------------------------------------------------------------------
Lobby Ceiling Condition Replace existing ceiling and grid
with new architectural grid and
recessed edge ceiling tiles with
updated surface texture. Install
soffits and other ceiling features to
give definition to the various lobby
and prefunction spaces. Consider
installing false columns and railings
to break up the immense space.
- -----------------------------------------------------------------------------------------------------------------
Lobby Walls Condition Repaint.
- -----------------------------------------------------------------------------------------------------------------
Lobby Floors Condition Replace all existing floor tile and
carpeting. Install a new combination
of carpeting and upgraded floor tile
throughout the lobby. Eliminate all
walk-off mats.
- -----------------------------------------------------------------------------------------------------------------
Window Treatments Condition Install new sheers and appropriate side
panels and valance to soften the windows
at the courtyard entrance.
- -----------------------------------------------------------------------------------------------------------------
Lobby Doors/Frames Condition Repaint doors and frames and replace
tarnished hardware to complement
the other new finishes in the lobby.
- -----------------------------------------------------------------------------------------------------------------
Furnishings Condition Replace all furnishings with updated
seating groups and occasional tables.
- -----------------------------------------------------------------------------------------------------------------
Ceiling Lighting Condition Install central chandelier or other
ceiling light fixtures to give visual
interest.
- -----------------------------------------------------------------------------------------------------------------
Area Lighting Condition Install varied new accent lighting with
end table fixtures, wall sconces,
chandeliers or up-lighting concealed in
planters.
- -----------------------------------------------------------------------------------------------------------------
House Telephone Standards Install a new house phone to
coordinate with other new fixtures
and furnishings. Install new
partitions, counters and seating for
house telephones.
- -----------------------------------------------------------------------------------------------------------------
10
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN- JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- -----------------------------------------------------------------------------------------------------------------------------------
Public Telephone Standards Install new partitions, counters and seating for public
telephones which the other new fixtures and furnishings.
- -----------------------------------------------------------------------------------------------------------------------------------
Drinking Fountain Standards Ensure that all codes and ADA requirements are met.
- -----------------------------------------------------------------------------------------------------------------------------------
Brochure Area Competitive Relocate brochures to a vending area which is out
of plain view of guests but can easily be found with
directions.
- -----------------------------------------------------------------------------------------------------------------------------------
Administrative Offices, Sales, Condition Remove existing worn and deteriorating ceilings, carpet,
Reservations, etc. vinyl, and furniture in office areas. Replace with durable,
efficient and attractive furniture and finishes.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
REGISTRATION DESK
- -----------------------------------------------------------------------------------------------------------------------------------
Registration desk top & face Condition Replace existing front desk top and facade. Install new,
upgraded Front Desk-finishes. Provide a new ADA accessible
section at the front desk. Provide synthetic marble/solid
surface material counter top. Provide wood, stone or marble
front to coordinate with the other new lobby finishes.
- -----------------------------------------------------------------------------------------------------------------------------------
Work Area Exposed Standards Ensure that no work areas or equipment are visible by guests.
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Install new, upgraded ceiling tile system. Coordinate with
the other lobby finishes.
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Condition Install new wall vinyl.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor Condition Install stand-off tile in front of desk. Remove existing worn
and deteriorating carpet behind desk and in office areas.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Install new lighting package with new, open cell, parabolic
diffusers for general fluorescent lighting and decorative wall
sconces or desk top fixtures for accent lighting.
- -----------------------------------------------------------------------------------------------------------------------------------
Signage Condition Install new signage to coordinate with entire signage package
and new lobby finishes.
- -----------------------------------------------------------------------------------------------------------------------------------
11
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN- JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
PUBLIC RESTROOMS
GENERAL DESCRIPTION:
Public restrooms require a moderate renovation. Professional design assistance
is required. Submit architectural plans, elevations and renderings to Bass
Hotels & Resorts for review.
- -----------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -----------------------------------------------------------------------------------------------------------------------------------
PUBLIC RESTROOMS-LIFE SAFETY Ensure that all life-safety equipment is in perfect
working order.
- -----------------------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Provide emergency lighting.
- -----------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure adequate heat and smoke detectors are present per code
Detectors: and standards.
- -----------------------------------------------------------------------------------------------------------------------------------
RESTROOM
- -----------------------------------------------------------------------------------------------------------------------------------
Accessible Standards Ensure that all public restrooms meet the Americans
with Disabilities Act.
- -----------------------------------------------------------------------------------------------------------------------------------
Signage Condition Provide new ADA complaint signage for restrooms.
- -----------------------------------------------------------------------------------------------------------------------------------
Entry/Door Frame (self Condition Check door closer pressure/speed and re-calibrate as
closing) necessary.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor/cove base Condition Restore all grout to new condition.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Replace and upgrade the general lighting with new lighting.
This includes the vestibule fixture.
- -----------------------------------------------------------------------------------------------------------------------------------
Vanity Condition Recaulk all seams and corners.
- -----------------------------------------------------------------------------------------------------------------------------------
Vanity Lighting Condition Install new vanity lighting to enhance the new toilet
room configuration and provide decorative accent.
- -----------------------------------------------------------------------------------------------------------------------------------
Mirrors Condition Install large (24" x 36" min.) framed mirrors over each sink
or single oversized framed mirror over entire vanity.
- -----------------------------------------------------------------------------------------------------------------------------------
Soap Dispensers Condition Install wall mounted or under-counter mounted liquid soap
dispensers.
- -----------------------------------------------------------------------------------------------------------------------------------
Towel/waste receptacles Condition Install additional semi-recessed paper towel dispensers with
integral waste receptacles. Surface mounted towel dispenser
is unacceptable.
- -----------------------------------------------------------------------------------------------------------------------------------
Toilet Partitions and Condition Install new phenolic, stainless steel, or solid surface toilet
Hardware partitions and new hardware to complement the new toilet room
configuration.
- -----------------------------------------------------------------------------------------------------------------------------------
Commodes/Seats Condition Recaulk around all fixtures and replace tarnished or pitted
hardware.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor Drain Condition Replace or modify to make flush with flooring.
- -----------------------------------------------------------------------------------------------------------------------------------
Tile Wall Condition Replace broken, cracked, and pierced wall tiles as found in
the Men's Room vanity area.
- -----------------------------------------------------------------------------------------------------------------------------------
12
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN- JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
FOOD SERVICE FACILITIES
GENERAL DESCRIPTION:
Restaurant requires a moderate renovation including new tables, chairs, ceiling,
buffet top and window treatments. Professional design assistance is required.
Submit architectural plans, elevations and renderings to Bass Hotels & Resorts
for review.
- -----------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -----------------------------------------------------------------------------------------------------------------------------------
FOOD SERVICE FACILITIES - LIFE SAFETY Ensure that all life-safety equipment is in perfect working
order.
- -----------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure adequate heat and smoke detectors are present per code
Detectors: and standards.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
FACILITIES
- -----------------------------------------------------------------------------------------------------------------------------------
Entrance Door/Frame Condition Paint and replace hardware as needed.
- -----------------------------------------------------------------------------------------------------------------------------------
Entrance vestibule Condition Replace flooring to complement lobby flooring.
- -----------------------------------------------------------------------------------------------------------------------------------
Signage Standards Install new signage as part of a comprehensive signage
package.
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Replace existing ceiling and grid with new architectural grid
and recessed edge ceiling tiles with updated surface texture.
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Condition Repaint all trim as needed.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor Condition Replace existing carpet or clean to new condition. Existing
carpet is showing tracks of wear.
- -----------------------------------------------------------------------------------------------------------------------------------
Window Treatments Condition Install new treatments to coordinate with the new renovation.
Blinds are not acceptable. Suggest a plantation shutter style
valance and side shutters or a soft, colorful fabric valance
and side panels.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Replace undersized dated ceiling fans with decorative
chandeliers.
- -----------------------------------------------------------------------------------------------------------------------------------
Host/Cashier Station Condition Hostess stand and vestibule require a full renovation. Replace
all furnishings, fixtures and equipment. Ensure that no work
areas are visible by guests and that all ADA guidelines are
met. Update look to complement the design of the adjacent
areas.
- -----------------------------------------------------------------------------------------------------------------------------------
Chairs Condition At time of next replacement, provide chairs with fabric
upholstered seats and backs.
- -----------------------------------------------------------------------------------------------------------------------------------
HVAC Condition Clean and repaint all ceiling grilles.
- -----------------------------------------------------------------------------------------------------------------------------------
13
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN- JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
LOUNGE FACILITIES
GENERAL DESCRIPTION:
The Lounge requires a major renovation. Professional design assistance is
required. Submit architectural plans, elevations and renderings to Bass Hotels &
Resorts for review.
- -----------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -----------------------------------------------------------------------------------------------------------------------------------
LOUNGE FACILITIES - LIFE SAFETY Ensure that all emergency equipment is functioning properly.
- -----------------------------------------------------------------------------------------------------------------------------------
Exit Signs: Sign on right is not lit. Replace or repair. All Signs must
match.
- -----------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure adequate heat and smoke detectors are present per code
Detectors: and standards.
- -----------------------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure that number of exits satisfies all code and Bass Hotels
& Resorts requirements.
- -----------------------------------------------------------------------------------------------------------------------------------
FACILITIES
- -----------------------------------------------------------------------------------------------------------------------------------
Entrance Door/Frame Condition Paint and replace hardware as needed.
- -----------------------------------------------------------------------------------------------------------------------------------
Signage Standards Install signage as part of a comprehensive signage package.
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Replace existing ceiling and grid with new architectural grid
and recessed edge ceiling tiles with updated surface texture.
Install dropped soffits to increase interest and break up the
flat expanse of ceiling.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor Condition Replace carpet. Repair any worn flooring. Provide barrier free
access to all areas including dance floor.
- -----------------------------------------------------------------------------------------------------------------------------------
Window Treatments Condition Install new treatments to coordinate with the new renovation.
Blinds are not acceptable. Suggest a plantation shutter
style valance and side shutters or a soft, colorful fabric
valance and side panels.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Install decorative table top lighting or pendant fixtures.
- -----------------------------------------------------------------------------------------------------------------------------------
Tables Condition Replace all tables. Provide an updated style to complement the
overall scheme of the lounge.
- -----------------------------------------------------------------------------------------------------------------------------------
Chairs Condition Repair all chairs to new condition. Provide an updated style
fabric to complement the overall scheme of the lounge. Provide
fabric upholstered seat and back.
- -----------------------------------------------------------------------------------------------------------------------------------
Bar Top/Rail/Facing Condition Paint as needed.
- -----------------------------------------------------------------------------------------------------------------------------------
Back Bar Condition Conceal all work areas from guest view.
- -----------------------------------------------------------------------------------------------------------------------------------
Bar Equipment Condition Conceal all work areas from guest view.
- -----------------------------------------------------------------------------------------------------------------------------------
HVAC Condition Clean and repaint all grilles.
- -----------------------------------------------------------------------------------------------------------------------------------
Stage/Dance Floor Condition Repair and refinish dance floor to like new condition. Provide
ADA access to all areas. Remove moss and other decor at stage.
Replace black 2 x 4 railing with decorative screen or rail.
- -----------------------------------------------------------------------------------------------------------------------------------
Bar Stools Condition Upon replacement, install bar stools to coordinate with new
chairs.
- -----------------------------------------------------------------------------------------------------------------------------------
14
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN- JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- -----------------------------------------------------------------------------------------------------------------------------------
Television Enclosures Condition, Construct wing walls. All machines must
/Vending Machines Standards have their sides screened from view with
permanent screen walls or cabinetry.
- -----------------------------------------------------------------------------------------------------------------------------------
15
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
MEETING/BANQUET ROOMS
GENERAL DESCRIPTION:
Meeting Rooms require a moderate renovation. Professional design assistance is
required. Submit architectural plans, elevations and renderings to Bass Hotels &
Resorts for review.
- -----------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -----------------------------------------------------------------------------------------------------------------------------------
MEETING/BANQUET ROOMS-LIFE SAFETY Ensure that all life-safety equipment is in perfect working
order.
- -----------------------------------------------------------------------------------------------------------------------------------
Req. Number of Exits: Ensure that # of exits satisfies all code and Bass Hotels &
Resorts requirements.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
MEETING/BANQUET FACILITIES
- -----------------------------------------------------------------------------------------------------------------------------------
Door Hardware/Frames Condition Replace damaged/tarnished doors, frames and hardware. Repaint
all other doors and trim.
- -----------------------------------------------------------------------------------------------------------------------------------
Door Signage Standards Install new signage as part of a comprehensive signage
package. Meet all ADA requirements.
- -----------------------------------------------------------------------------------------------------------------------------------
Door Viewer Standards Install door viewers into meeting rooms. Meet all ADA
requirements.
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Replace existing ceiling and grid with new architectural grid
and recessed edge ceiling tiles with updated surface texture.
Tiles are mismatched and some are stained. All require an
updated texture. Repaint tray ceilings as necessary.
- -----------------------------------------------------------------------------------------------------------------------------------
Partitions (50 STC Min.) Standards Test and address any deficiencies in the sound transmission
of the partitions.
- -----------------------------------------------------------------------------------------------------------------------------------
Tables Condition Replace any damaged tables.
- -----------------------------------------------------------------------------------------------------------------------------------
Chairs Condition Professionally clean all chairs and replace/recover any that
are permanently damaged/stained.
- -----------------------------------------------------------------------------------------------------------------------------------
HVAC Condition Clean and repaint all grilles.
- -----------------------------------------------------------------------------------------------------------------------------------
Kitchen Access Condition Repair all kitchen doors, trim and frames to complement the
new decor. Provide professional closure for the moveable
partition track opening/door. Clean-up, repaint, and add
lighting to service corridor and provide access to all
emergency equipment and adequate exit corridor clearances.
Repair any broken and chipped flooring.
- -----------------------------------------------------------------------------------------------------------------------------------
Window Treatment (Blackout Standards Replace all window treatments with new treatments to
Capability) complement the overall scheme of the meeting rooms. Provide
blackout panels.
- -----------------------------------------------------------------------------------------------------------------------------------
16
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
HOLIDOMES/ATRIUMS/POOL ENCLOSURES
GENERAL DESCRIPTION:
- -----------------------------------------------------------------------------------------------------------------------------------
AREAS REQUIRE ACTION BASIS FOR
REQUIRED
ACTION CURE/REMEDY
- -----------------------------------------------------------------------------------------------------------------------------------
HOLIDOMES/ATRIUMS/POOL ENCLOSURES- Ensure that all life-safety equipment is in perfect
LIFE-SAFETY working order.
- -----------------------------------------------------------------------------------------------------------------------------------
FITNESS ROOM Furnish per the Holiday Inn "Fitness Center Guidelines
/Standards" manual. Replace all finishes to meet these
standards.
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Standards Minimum 8' high, 10' recommended.
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Standards Provide one fully mirrored wall. Install Plexture or vinyl
wallcovering per standards on other walls.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor Standards Provide a minimum 28 oz. carpet per Fitness Center standards.
- -----------------------------------------------------------------------------------------------------------------------------------
Door/Frame (elec. Lock) Standards Provide with electronic lock.
- -----------------------------------------------------------------------------------------------------------------------------------
Visual access Standards Provide a glass door, door viewer or window with a minimum of
144 sq. in of continuous viewing space.
- -----------------------------------------------------------------------------------------------------------------------------------
HVAC Standards Provide to maintain a constant 68-72 degrees Fahrenheit
temperature.
- -----------------------------------------------------------------------------------------------------------------------------------
Exercise Equipment Standards 3 pieces of brand name exercise equipment are required, such
(minimum 3, depending on size of hotel) as Lifecycle, Stairmaster and Nordic-track. Minimum 2
treadmills and 1 upright bike required. Include equipment
instructions.
- -----------------------------------------------------------------------------------------------------------------------------------
House Telephone Standards Provide a house phone that rings directly to the switchboard.
- -----------------------------------------------------------------------------------------------------------------------------------
Magazine Rack Competitive Recommend to provide.
- -----------------------------------------------------------------------------------------------------------------------------------
Drinking Water Standards Provide a chilled drinking water fountain or chilled bottled
water cooler per standards.
- -----------------------------------------------------------------------------------------------------------------------------------
Towels and towel racks Standards Provide per the Holiday Inn Fitness Center
Guidelines/Standards
- -----------------------------------------------------------------------------------------------------------------------------------
Area map Standards Provide a detailed map of the area around the hotel showing
streets, landmarks a distances, including 1, 3 and 6 mile
routes.
- -----------------------------------------------------------------------------------------------------------------------------------
Clock Standards A wall mounted minimum size 14" diameter clock is required.
- -----------------------------------------------------------------------------------------------------------------------------------
TV Standards Provide a 25" minimum size T.V.
- -----------------------------------------------------------------------------------------------------------------------------------
Artwork Competitive Provide colorful graphics with a sports theme
- -----------------------------------------------------------------------------------------------------------------------------------
Scale Standards Provide per standards.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Standards Provide 50-60 foot-candles of ambient neutral color
temperature fluorescent lighting per standards.
- -----------------------------------------------------------------------------------------------------------------------------------
17
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
KITCHEN
GENERAL DESCRIPTION:
The kitchen requires the following renovation and upgrades:
- -----------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -----------------------------------------------------------------------------------------------------------------------------------
KITCHEN-LIFE SAFETY Ensure that all equipment is in perfect working order.
- -----------------------------------------------------------------------------------------------------------------------------------
Emergency Lighting: Ensure emergency lighting is provided.
- -----------------------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards and
codes. Ensure bright illumination.
- -----------------------------------------------------------------------------------------------------------------------------------
Panic Hardware: Provide panic hardware at all exit doors
- -----------------------------------------------------------------------------------------------------------------------------------
Fire Separation: Ensure area meets fire separation requirements per codes and
standards.
- -----------------------------------------------------------------------------------------------------------------------------------
Heat/Smoke Detectors: Ensure adequate heat and smoke detectors are present per code
and standards.
- -----------------------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and
standards.
- ---------------------------------------------------------------------------------------------------------------------------------- -
Req. Number of Exits: Ensure that # of exits satisfies all code and Bass Hotels
& Resorts requirements.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
FACILITIES Clean all surfaces.
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Condition Clean and paint existing walls.
- -----------------------------------------------------------------------------------------------------------------------------------
Dish/Wash Walls Condition Repair damaged walls and re-tile. Recondition all grout and
re-caulk.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor (non-skid) Condition Replace all broken and chipped tiles. Restore grout to like
new condition.
- -----------------------------------------------------------------------------------------------------------------------------------
Mats Condition Clean all mats and replace damaged mats.
- -----------------------------------------------------------------------------------------------------------------------------------
Storage Condition Replace any rusted racks and equipment.
- -----------------------------------------------------------------------------------------------------------------------------------
Reach-ins Condition Repair or replace damaged or rusty equipment.
- -----------------------------------------------------------------------------------------------------------------------------------
Walk-ins Condition Repair or replace damaged threshold and rusty equipment.
- -----------------------------------------------------------------------------------------------------------------------------------
18
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
INTERIOR CORRIDORS
GENERAL DESCRIPTION:
All interior corridors require a full renovation. Professional design assistance
is required. Submit architectural plans, elevations and renderings to Bass
Hotels & Resorts for review.
- -----------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
ACTION
AREAS REQUIRE ACTION CURE/REMEDY
- -----------------------------------------------------------------------------------------------------------------------------------
INTERIOR CORRIDORS-LIFE SAFETY Ensure that all emergency equipment is functioning properly.
- -----------------------------------------------------------------------------------------------------------------------------------
Exit Signs: Ensure adequate exit signage is provided per standards and
codes. Ensure bright illumination.
- -----------------------------------------------------------------------------------------------------------------------------------
Panic Hardware: Remove door knobs from stairwell doors and install panic bar
hardware.
- -----------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Ensure adequate heat and smoke detectors are present per code
Detectors: and standards.
- -----------------------------------------------------------------------------------------------------------------------------------
Manual Pull Stations: Ensure manual pull stations are present per code and
standards.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
CORRIDOR
- -----------------------------------------------------------------------------------------------------------------------------------
Signage Condition Install ADA compliant signage.
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Paint existing ceiling. Conceal all exposed conduit.
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Condition Replace all wall vinyl with new updated vinyl.
- -----------------------------------------------------------------------------------------------------------------------------------
Entrance Door Condition Refinish all decks and entrance walkways. Replace all
tarnished, damaged or mismatched hardware or doors. All
hardware must be commercial grade hardware of the same
material and finish.
- -----------------------------------------------------------------------------------------------------------------------------------
Misc. Doors Condition Replace as stated above.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor Condition Replace and upgrade all carpet and tile. The existing carpet
is stained and worn. The tile is dated.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Replace and add new wall sconces. Existing sconces are
outdated and do not provide enough soft corridor lighting.
Many are too high on the walls. Sconces in the north most
building are acceptable style, however, these are even spaced
too far to provide enough light in the corridors. Increase
light levels in all buildings.
- -----------------------------------------------------------------------------------------------------------------------------------
HVAC Condition Clean and refinish all grilles.
- -----------------------------------------------------------------------------------------------------------------------------------
Decor Condition Install appropriate decor throughout all corridors to give
interest and color.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
VENDING
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Repaint existing ceiling.
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Condition Replace vinyl with new vinyl. Coordinate design and finishes
with the new look of the completed renovation.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor Condition Install non-slip hard surface treatment such as
quarry tile. Provide a barrier-free and durable edge
treatment.
- -----------------------------------------------------------------------------------------------------------------------------------
19
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Provide additional lighting for the vending area. Coordinate
with other interior lighting fixtures.
- -----------------------------------------------------------------------------------------------------------------------------------
Exposed conduit Competitive, Conceal all exposed conduit and equipment power cords.
Standards
- -----------------------------------------------------------------------------------------------------------------------------------
Vending Machines (grounded) Condition Ensure that all outlets are GFIC's. Shift equipment so that
outlets are hidden from view. Relocate vending machines from
lobby vestibule to vending area.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
STAIRWELLS
- -----------------------------------------------------------------------------------------------------------------------------------
Doors/hardware Condition Provide panic bar exit hardware.
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Condition Conceal exposed block.
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Repaint all ceilings.
- -----------------------------------------------------------------------------------------------------------------------------------
Landings Condition Replace carpet.
- -----------------------------------------------------------------------------------------------------------------------------------
Handrails Condition Return all railings to wall. Provide commercial grade
railings that conform to all applicable codes and ADA
guidelines.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Replace and upgrade light fixtures in stairwells. Conceal all
exposed conduit.
- -----------------------------------------------------------------------------------------------------------------------------------
Signage Standards Update to comply with ADA requirements.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
GUEST LAUNDRY
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Condition Replace and upgrade vinyl. Cover or remove paneling. Install
upgraded artwork.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Install updated cover for fluorescent tube lighting.
- -----------------------------------------------------------------------------------------------------------------------------------
Exposed conduit & ductwork Standards Conceal all exposed conduit. Provide GFIC outlets.
- -----------------------------------------------------------------------------------------------------------------------------------
Signage Standards Install ADA compliant signage.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
ELEVATOR LOBBY
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Paint.
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Condition Install new vinyl wall covering.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor Competitive Install upgraded tile or border accented carpet at elevators
to define the lobby area from the corridor. Install framed
wall mirrors and console tables to give visual interest to the
lobbies.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Provide accent lighting such as updated sconces on the sides
of the framed mirror or a table lamp for the console table.
- -----------------------------------------------------------------------------------------------------------------------------------
Door/Frames Condition Replace all door hardware and repaint auxiliary doors.
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
ELEVATORS Ensure elevators meet ADA and other code requirements.
- -----------------------------------------------------------------------------------------------------------------------------------
Door Finish Condition Rub out scratches on elevator doors.
- -----------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Replace and upgrade.
- -----------------------------------------------------------------------------------------------------------------------------------
Walls Condition Replace dated and damaged laminate panels. Suggest a panel
style wall similar to the lobby panel walls constructed out of
a solid surface material for durability.
- -----------------------------------------------------------------------------------------------------------------------------------
Floor Finish Condition Replace stained carpet. Replace scratched threshold.
- -----------------------------------------------------------------------------------------------------------------------------------
Grab Bars Condition Replace to coordinate with new walls.
- -----------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Replace to coordinate with new walls.
- -----------------------------------------------------------------------------------------------------------------------------------
20
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- -----------------------------------------------------------------------------------------------------------------------------------
Control Panels Condition Clean-up. Remove scratches. Replace
broken buttons.
- -----------------------------------------------------------------------------------------------------------------------------------
21
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/#2619
JANUARY 12, 1999
GUEST ROOMS
GENERAL DESCRIPTION:
The guest rooms require a major renovation. All case goods and soft goods
require replacement in buildings 1, 2, and 5 and 36 rooms in building 3. The
other 12 rooms in building 3 and all of building 4 are in acceptable condition
and require only maintenance and repair until they are converted to meet
Standardized Room Decor requirements in 2002. Following this renovation, all
guest rooms must be in a consistent, "like new", condition. Professional design
assistance is required. Submit all plans for review prior to the renovation.
- ------------------------------------------------------------------------------------------------------------------------------------
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- ------------------------------------------------------------------------------------------------------------------------------------
GUEST ROOMS - LIFE SAFETY Ensure that all life-safety equipment
is in perfect working order.
- ------------------------------------------------------------------------------------------------------------------------------------
Visual Heat/Smoke Provide approved hardwired
Detectors in ADA rooms speaker/strobe heat/smoke detectors
in ADA rooms.
- ------------------------------------------------------------------------------------------------------------------------------------
STRUCTURE BASE BUILDING
Doors/Hardware Condition Replace all sliding doors in conjunction with the new storefront
replacement. Replace any rusted frames or damaged doors.
- ------------------------------------------------------------------------------------------------------------------------------------
Door Numbers Condition Replace existing room numbers with a new upgraded ADA sign
package. Currently signs are affixed to clear plaques which are
screwed into wall finish. The screws are visible and unsightly.
Develop another system for anchoring these room signs which is
both attractive and vandal resistant.
- ------------------------------------------------------------------------------------------------------------------------------------
Entry Door Locksets Condition Ensure that entry door locksets are in excellent condition and
that they open properly by pushing the lever downward.
- ------------------------------------------------------------------------------------------------------------------------------------
Safety Latch Condition Ensure that safety latches are in excellent condition.
- ------------------------------------------------------------------------------------------------------------------------------------
Connecting Doors/hardware Condition Refinish doors to "like new" condition or replace. Provide lever
(2 solid core) type door handles at accessible rooms. All door hardware must be
the same finish and commercial grade. Remove all foam sound tape
and replace with rubber sound insulation strips at all
connecting doors.
- ------------------------------------------------------------------------------------------------------------------------------------
Soundproofing Condition Install rubber sound insulation strips on all door frames.
Provide door sweeps where light is visible beneath doors.
- ------------------------------------------------------------------------------------------------------------------------------------
Electrical Outlets Condition Provide accessible and available outlets in all rooms for guests
use. All outlets are currently being utilized by room equipment
or are inaccessible.
- ------------------------------------------------------------------------------------------------------------------------------------
Windows/Sills Condition Replace aluminium storefront with a new exterior synthetic
stucco wall system and new punched window openings with energy
efficient window/door systems. Current window system has cloudy
glass panels, mildewed and stained caulking, damaged doors and
tracks and pitted, peeling frames.
- ------------------------------------------------------------------------------------------------------------------------------------
Service vanity/kitchenette Condition Replace and upgrade. Install solid surface countertop and
coordinating cabinets and appliances.
- ------------------------------------------------------------------------------------------------------------------------------------
22
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
INTERIOR BUILDING
FINISHES/LIGHTING
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Repaint and repair ceilings where stains and patches are
visible.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Condition Replace all wall finishes with new wall vinyl or stucco finish
that conforms to the Standardized Room Decor Package
requirements.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor/Base Condition Replace all carpet with new carpet that conforms to the
Standardized Room Decor Package requirements. This refers to
every guest room. Install vinyl or matching carpet wall base on
all guest room walls.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Replace all lamps and light fixtures. This refers to every guest
room in buildings 1, 2, and 5 and the 36 rooms of old fixtures
in buildings 3. Install a new coordinated lamp package that
conforms to the Standardized Room Decor Package requirements.
Replace the remainder of the fixtures by the 2002 compliance
date.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
SOFT GOODS Install a new coordinated soft goods package that conforms to
the Standardized Room Decor Package requirements in buildings 1,
2, and 5 and the 36 rooms of old fixtures in building 3. Replace
the remainder of the fixtures by the 2002 compliance date.
- ------------------------------------------------------------------------------------------------------------------------------------
Window Treatment Condition Replace all window treatments as described above.
- ------------------------------------------------------------------------------------------------------------------------------------
Pillows Condition Replace any worn, flat pillows.
- ------------------------------------------------------------------------------------------------------------------------------------
Linens Condition Replace any worn, and faded linens.
- ------------------------------------------------------------------------------------------------------------------------------------
Bedspreads Condition Replace all bedspreads as described above.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
CASE GOODS Competitive Condition Standards Replace all casegoods including seating, mirrors, and artwork
due to age, poor condition and a noncompetitive appearance.
Install a new coordinated case goods package that conforms to
the Standardized Room Decor Package requirements. The
Thomasville casegoods are acceptable for the interim as long as
they are in excellent condition. Any damaged pieces must be
replaced or refinished to new condition. All other casegood
packages (Stanley, Dillingham, etc.) require replacement
immediately.
- ------------------------------------------------------------------------------------------------------------------------------------
Armoire Condition Install new armoires.
- ------------------------------------------------------------------------------------------------------------------------------------
Night Stands Condition Replace all night stands.
- ------------------------------------------------------------------------------------------------------------------------------------
Lounge Chair Condition Replace all lounge chairs.
- ------------------------------------------------------------------------------------------------------------------------------------
Headboards Condition Replace all headboards.
- ------------------------------------------------------------------------------------------------------------------------------------
Credenza Mirror (15" x 31") Condition Install framed credenza mirrors.
- ------------------------------------------------------------------------------------------------------------------------------------
Full - Length Mirror (24" Condition Install framed full length mirrors.
x 60")
- ------------------------------------------------------------------------------------------------------------------------------------
Coffee Table Condition Replace all coffee tables.
- ------------------------------------------------------------------------------------------------------------------------------------
Credenza Condition Remove all credenzas.
- ------------------------------------------------------------------------------------------------------------------------------------
Desk Condition Replace all desks.
- ------------------------------------------------------------------------------------------------------------------------------------
23
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
DESK CHAIR Condition Replace all desk chairs.
- ------------------------------------------------------------------------------------------------------------------------------------
Activity Table (1100 Sq. Condition Replace all activity tables.
Inches)
- ------------------------------------------------------------------------------------------------------------------------------------
Activity Chair Condition Replace all activity chairs.
- ------------------------------------------------------------------------------------------------------------------------------------
Sofa Condition Replace all sofas.
- ------------------------------------------------------------------------------------------------------------------------------------
Artwork Condition Replace all artwork.
- ------------------------------------------------------------------------------------------------------------------------------------
Mattresses Condition Replace all worn sleep sets.
- ------------------------------------------------------------------------------------------------------------------------------------
Luggage Bench Condition Install new upholstered luggage benches that meet standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Sleeper Sofa Condition Replace all sleeper sofas.
- ------------------------------------------------------------------------------------------------------------------------------------
Bed Frame Condition Open bed frames are required in wheelchair accessible guests
rooms.
- ------------------------------------------------------------------------------------------------------------------------------------
Coat Rack Condition Replace all coat racks per SRD program.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
EQUIPMENT
- ------------------------------------------------------------------------------------------------------------------------------------
HVAC Condition Replace any worn, damaged, and noisy units as needed. Replace
warped wood trim and damaged caulk around units and repaint.
- ------------------------------------------------------------------------------------------------------------------------------------
Televisions (25") Standards Replace all undersized TV sets with new 25" models. All guest
rooms must have 25" TV sets per standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Console Telephone (14' Standards Ensure that all telephones are equipped with 14 foot cords,
Cord)/data port voice messaging capabilities two lines and data ports.
- ------------------------------------------------------------------------------------------------------------------------------------
Refrigerator Condition All must be in excellent condition. Refinish fronts of
refrigerators to match the casegoods or the millwork which
houses them. Provide millwork or cabinetry with solid surface
countertop.
- ------------------------------------------------------------------------------------------------------------------------------------
Microwave Condition All must be in excellent condition.
- ------------------------------------------------------------------------------------------------------------------------------------
Coffee Makers Standards Provide tray per standards.
- ------------------------------------------------------------------------------------------------------------------------------------
Items to be removed Condition Remove all cook tops.
- ------------------------------------------------------------------------------------------------------------------------------------
Fire Evacuation Plan Standards Install updated plans that coordinate with the signage package.
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
ACCESSIBLE ROOMS Accessible rooms are required by the ADA Guidelines and the Bass
Hotels & Resorts Standards. Check those documents for exact
number of required accessible rooms and other exact
requirements.
- ------------------------------------------------------------------------------------------------------------------------------------
Doors/Hardware Standards Install 32" clear with doors at all locations. Install lever
type handles on all doors, including both connecting door
handles. Install door viewers at high and low height.
- ------------------------------------------------------------------------------------------------------------------------------------
Bed Frame Condition Open bed frames are required in wheelchair accessible guest
rooms.
- ------------------------------------------------------------------------------------------------------------------------------------
Clothes rack, thermostat, Standards Install all accessories and controls in accordance with the
robe hooks, shower maximum mounting height of 54'' above floor in a side reach
controls, window treatment situation or 48" above floor in a forward reach situation. For
wands, wall mounted iron, instance, coat racks would need to be moved down to alllow
etc. shelving to be accessed. Another solution would be to install
another coat rack at this lower height in the alcove located
next to the nightstand.
- ------------------------------------------------------------------------------------------------------------------------------------
24
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/# 2619
JANUARY 12, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Controls, locks, switches, etc. Standards Controls and operating mechanisms shall be operable with one
hand and shall not require tight grasping, pinching, or twisting
of the wrist. The force required to activate controls shall be
no greater than 5 lbf. (see ADA guidelines) For example, light
fixtures require push button controls rather that twist on
controls. Also, install secondary latch, rather than chain at
entry and connecting doors.
- ------------------------------------------------------------------------------------------------------------------------------------
Maneuvering space Standards Provide 36" clear width maneuvering space located along both
sides of a sole bed or a 36" clear width maneuvering space
between a pair of beds. Provide an accessible route to all
controls, doors, windows, closets, electronics, etc.
- ------------------------------------------------------------------------------------------------------------------------------------
Bath rooms Standards Accessible bathrooms and roll-in showers are required by the ADA
Guidelines and the Bass Hotels & Resorts Standards. Check those
documents for exact bathroom guidelines and number of required
roll-in showers. Install the required number of roll-in showers.
For example, verify proper grab bar location and height and
provide anti-scald insulation around all sink piping.
- ------------------------------------------------------------------------------------------------------------------------------------
25
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
GUEST ROOM BATHS
GENERAL DESCRIPTION:
The guest bathrooms require a major renovation. Professional design assistance
is required. Submit all plans for review prior to renovation.
BASIS FOR
REQUIRED
AREAS REQUIRE ACTION ACTION CURE/REMEDY
- -------------------- --------- -----------
- ------------------------------------------------------------------------------------------------------------------------------------
FACILITIES
- ------------------------------------------------------------------------------------------------------------------------------------
Entry Doors/frames Condition Refinish and repaint interior doors to like new condition or
replace. Many are rusted and require replacement or sanding down
to bare metal and refinishing.
- ------------------------------------------------------------------------------------------------------------------------------------
Robe Hook Condition Replace any tarnished, painted or pitted robe hooks.
- ------------------------------------------------------------------------------------------------------------------------------------
Floor Treatment (tile) Condition Replace all small (1" x 1") floor tile with a 4" x 4" min
neutral colored tile.
Recondition grout to like new condition in all rooms.
- ------------------------------------------------------------------------------------------------------------------------------------
Walls Condition Patch all holes in walls. Replace all vinyl with new vinyl or
synthetic stucco finish.
- ------------------------------------------------------------------------------------------------------------------------------------
Ceiling Condition Repair, refinish and paint all damaged or stained ceilings.
- ------------------------------------------------------------------------------------------------------------------------------------
Lighting Condition Replace and upgrade all old general light fixtures to provide
adequate illumination level.
- ------------------------------------------------------------------------------------------------------------------------------------
Vanities Condition Replace all old laminate vanities. Install new cultured marble
or solid surface vanities in a neutral tone. New vanities cannot
utilize a visible support leg.
- ------------------------------------------------------------------------------------------------------------------------------------
Sinks Condition Ensure that all sinks in building 4 and the 12 new sinks in
building 3 are in excellent condition.
Replace any marginal sinks.
Replace all sinks with metal trim band and top mounted sinks
with undermounted dripless sinks as found in building 4.
- ------------------------------------------------------------------------------------------------------------------------------------
Vanity Hardware Condition Replace all vanity hardware in conjunction with the new vanity
installation. Install single lever chrome anti-scald fixtures.
(no acrylic fixtures) Replace tarnished or pitted drains.
- ------------------------------------------------------------------------------------------------------------------------------------
Facial Tissue Dispenser Condition Provide recessed wall unit or integral vanity fascia unit in new
vanities.
- ------------------------------------------------------------------------------------------------------------------------------------
Vanity Lighting Condition Replace and upgrade vanity lighting.
- ------------------------------------------------------------------------------------------------------------------------------------
Vanity Mirrors Condition Replace vanity mirrors with framed mirrors.
- ------------------------------------------------------------------------------------------------------------------------------------
Bathtubs Condition Replace any discolored, worn, damaged or severely stained tubs.
Remove slip strips, glue and grime from all tubs. Provide new,
upgraded non-slip feature in all tubs. Replace chipped tubs and
tubs with old hardware, such as found in room 401.
- ------------------------------------------------------------------------------------------------------------------------------------
Tub Enclosure Walls Condition Replace all caulking and grout as needed.
- ------------------------------------------------------------------------------------------------------------------------------------
Bathtub Hardware Condition Replace all bathtub hardware with new, single-lever, anti-scald
fixtures.
- ------------------------------------------------------------------------------------------------------------------------------------
26
PROPOSED LICENSE RENEWAL
OF THE HOLIDAY INN-JEKYLL OCEANSIDE,
JEKYLL ISLAND, GA/ #2619
JANUARY 12, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
Commode Condition Ensure that all commodes are in excellent condition. Replace any
marginal commodes.
Replace all commode seats, caulk, hardware and exposed piping to
restore commodes to like new condition.
- ------------------------------------------------------------------------------------------------------------------------------------
Reserve Tissue Dispenser Standards Install reserve roll tissue dispenser in each bathroom where
missing damaged or pitted.
- ------------------------------------------------------------------------------------------------------------------------------------
Mechanical Exhaust Condition Clean and repaint as needed.
- ------------------------------------------------------------------------------------------------------------------------------------
Artwork Condition Install artwork to provide interest on blank walls.
- ------------------------------------------------------------------------------------------------------------------------------------
Shower Curtain/Rod Condition Replace any pitted, tarnished or rusty shower rods, fasteners,
or hardware. In each room, all curtain rings must match.
- ------------------------------------------------------------------------------------------------------------------------------------
Shower head Standards Ensure that shower heads are six feet above drain, minimum.
- ------------------------------------------------------------------------------------------------------------------------------------
Grab Bars Condition Replace old bars with new.
- ------------------------------------------------------------------------------------------------------------------------------------
27
EXHIBIT E
GROUND LESSOR ESTOPPEL
EXHIBIT E
ACKNOWLEDGEMENT, ESTOPPEL CERTIFICATE AND AGREEMENT
(HOLIDAY INN, SHEFFIELD, ALABAMA)
THIS ACKNOWLEDGMENT, ESTOPPEL CERTIFICATE AND AGREEMENT
("Agreement") is executed and delivered as of the____ day of______, 2002, among
THE CITY OF SHEFFIELD ("Landlord"), MERRILL LYNCH MORTGAGE LENDING, INC., its
successors and/or assigns ("Lender"), and SHEFFIELD MOTEL ENTERPRISES, INC.
("Tenant").
WHEREAS, Landlord has heretofore leased certain lands
described on Exhibit "A" attached hereto (hereinafter the "Premises") to Tenant
pursuant to an agreement of lease dated February 6, 1981, which lease was
recorded February 16, 1981, in Deed Book 391, page 79 in the Office of the Judge
of Probate of Colbert County, Alabama (such lease, as amended, and as it may be
further amended and assigned from time to time, hereinafter the "Lease");
WHEREAS, Tenant is desirous of obtaining from Lender a loan
(the "Loan") secured by a first leasehold mortgage upon Tenant's interest as
tenant in the Lease.
WHEREAS, Lender is unwilling to make the Loan unless Landlord
reaffirms to Lender that the provisions of the Lease respecting Leasehold
mortgages are restated and confirmed for Lender's benefit,
NOW THEREFORE, Landlord hereby certifies to Lender as follows:
1. Without implying that Landlord's acknowledgment or
consent may be required under the Lease, Landlord does hereby acknowledge (a)
the granting by Tenant of a leasehold mortgage ("Leasehold Mortgage") to Lender
on Tenant's interests in the Premises, (b) the pledge of the ownership interests
in the Tenant by the holder or holders of all ownership interests in Tenant
(i.e. the mezzanine borrower) to the applicable Merrill Lynch mezzanine lending
entity (together with its successors and assigns, the "Mezzanine Lender") as
security for a mezzanine loan (the "Mezzanine Loan") and the right of Mezzanine
Lender to foreclose on such ownership interests in the event of a default under
the Mezzanine Loan and (c) the address for delivery of notices to Lender and
Mezzanine Lender as set forth below. Upon the mortgaging of the Premises, the
pledge of the ownership interests in Tenant pursuant to the Mezzanine Loan and
the execution of this Agreement, Landlord acknowledges and agrees that both
Lender and Mezzanine Lender shall be deemed to be, and shall have all of the
rights and protections granted to a "mortgagee" or "Leasehold Mortgagee" or to
the "Servicer" under the Lease.
2. Landlord hereby agrees that the execution of this
Agreement shall satisfy the notice requirement set forth in Section 5 of the
1995 Amendment of the Lease.
3. All of the Leasehold mortgage protection
provisions contained in the Lease, including but not limited to Sections 11.01
and 12.01 of the Lease and Sections 3, 4, 5 and 7 of the 1995 Amendment, and all
other provisions inuring to the benefit of Leasehold Mortgagees or their
successors and assigns are hereby incorporated into this agreement by
reference and restated and confirmed by Landlord for the benefit of Lender,
Mezzanine Lender, their successors and assigns.
4. Unless otherwise notified by Lender or Mezzanine
Lender, copies of any notices to Lender or Mezzanine Lender, as the case may be,
shall be sent to the following address:
If to Lender:
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, NY 10080
Attn: Steve Glassman (Facsimile: 212-738-1013)
Attn: John Gluszak (Facsimile: 212-738-2053)
with a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, NY 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
If to Mezzanine Lender:
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, NY 10080
Attn: Steve Glassman (Facsimile: 212-738-1013)
Attn: John Katz (Facsimile: 212-738-8094)
with a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, NY 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
5. Landlord hereby agrees that for so long as any sums
in respect of the Loan remain outstanding, it shall not, without the prior
written consent of both Lender and Mezzanine Lender: (a) notwithstanding any
provisions of the Lease to the contrary, accept, consent to or join in the
execution of any instrument purporting to (i) effect the termination, prior to
November 30, 2077, of the Lease by Tenant, or (ii) amend or modify the Lease;
(b) permit or accept the
2
exercise by Tenant of any right it may have to purchase the Premises without
having first obtained Lender's written consent thereto. To the extent Lender
shall have approved any such exercise by Tenant of such right, the conveyance
instrument executed in connection therewith shall expressly provide for the
preservation of the leasehold under the Lease, and for the non-merger of the fee
and leasehold estates in the Premises.
6. Landlord hereby confirms with respect to the new
lease referred to in Section 5 of the 1995 Amendment that should Lender or
Mezzanine Lender become the tenant under a new lease pursuant to Section 5 of
the Amendment title to all improvements including the Building, as defined in
the Lease, situate on the Land, as defined in the Lease, shaft automatically
vest in Lender or Mezzanine Lender, pursuant to Section 5 of the 1995 Amendment.
7. Landlord acknowledges that as between Landlord and
Lender, its nominee, or a purchaser at a foreclosure or other sale, the Lease
shall not be deemed to be terminated, notwithstanding the rejection of the Lease
by the Tenant thereunder or its representative in any proceeding under the
Bankruptcy Code (11 U.S.C. Section 101 et seq.) (the "Bankruptcy Code") or any
other insolvency law. Lender shall be deemed to have satisfied its obligation to
commence foreclosure proceedings by asserting a claim in a proceeding under the
Bankruptcy Code or other insolvency proceeding, and Lender shall not be deemed
to have failed to satisfy such obligation if Lender is unable to do so as a
result of the provisions of Section 362 of the Bankruptcy Code or similar
provisions of any other insolvency law.
8. Landlord acknowledges that Lender shall have the
right to act on behalf of Tenant in any proceeding commenced by or against
Landlord under the Bankruptcy Code.
9. Landlord acknowledges that Lender and Mezzanine
Lender have requested that Landlord execute this Agreement in connection with
the Loan and the Mezzanine Loan, and that Lender has agreed to make the Loan and
Mezzanine Lender has agreed to make the Mezzanine Loan in reliance on the
matters set forth herein.
10. Landlord hereby confirms that pursuant to
Section 1 of the 1995 Amendment, any mortgage placed by Landlord on the fee
estate of the Premises shall be subject to and subordinate to the terms of this
Lease and the Leasehold Mortgage.
11. Landlord hereby certifies as follows:
(a) Landlord is the owner of the fee simple estate in the
Premises subject to covenants, easements and
restrictions of record, and is the Landlord under the
Lease,
(b) Landlord has not mortgaged the fee simple estate in
the Premises and there are currently no fee simple
mortgages, deeds of trust or other security interests
encumbering the fee estate in the Premises.
(c) The Lease is in full force and effect in accordance
with its terms and has not been further assigned,
supplemented, modified or otherwise amended accept as
set forth herein.
3
(d) To the best of Landlord's knowledge, each of the
obligations on Tenant's part to be performed to date
under the Lease have been performed.
(e) To the best of Landlord's knowledge, there are no
offsets, counterclaims, defenses, deductions or
credits whatsoever with respect to the Lease.
(f) There are, with respect to the Lease, no options to
renew or extend, and no security deposits or prepaid
rent or liens.
(g) Except for the Amendment of Lease dated January 24,
1995 (the "1995 Amendment") and Second Amendment of
Lease dated June 16, 1997 (the "1997 Amendment"),
there are no agreements (including Subordination,
Non-Disturbance and Attornment Agreements) concerning
the Premises, whether oral or written between
Landlord and Tenant under the Lease (or its
predecessors or successors).
(h) As of the date hereof, basic rent is $100 per year,
payable on or before December 1st of each year. Basic
rent due under the Lease has been paid through _____,
20 _______.
(i) The term commencement date of the Lease was February
6, 1981, and the current term of the lease shall
expire on November 30, 2077.
12. The parties agree that the protections and rights
granted to the Lender and Mezzanine Lender by this Agreement shall also apply to
any other prospective mortgagee of Tenant's interest in the Lease or any other
prospective pledgee of the ownership interests in Tenant, provided that the name
and address of such lender is provided in writing to Landlord, and such other
lender shall be deemed the "Servicer" or the "Leasehold Mortgagee" for the
purposes of this Agreement and for the purposes of the Lease.
13. Except as amended hereby, the Lease and all the
terms, covenants and conditions thereof remain unchanged and in full force and
effect, and the Lease, as amended hereby, is hereby ratified and confirmed in
all respects.
14. This Agreement may be executed in counterparts, and
each such counterpart shall constitute an original.
This Agreement shall be binding upon, and may be relied upon
by, the parties, their successors and assigns, and the terms hereof shall inure
to the benefit of the parties, their successors and assigns.
[SIGNATURE PAGES FOLLOW]
4
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date and year first above written.
LANDLORD:
CITY OF SHEFFIELD, ALABAMA
By:___________________________________
Name:
Title:
TENANT:
SHEFFIELD MOTEL ENTERPRISES, INC.
By:___________________________________
Name:
Title:
[NO FURTHER SIGNATURES ON THIS PAGE]
5
LENDER:
MERRILL LYNCH MORTGAGE LENDING, INC.
By:___________________________________
Name:
Title:
MEZZANINE LENDER:
MERRILL LYNCH MORTGAGE LENDING, INC.
By:___________________________________
Name:
Title:
[ACKNOWLEDGEMENTS ON FOLLOWING PAGES]
A-1
ACKNOWLEDGMENT, ESTOPPEL CERTIFICATE AND AGREEMENT
(Holiday Inn - East Hartford, Connecticut)
THIS ACKNOWLEDGMENT, ESTOPPEL CERTIFICATE AND AGREEMENT
("Agreement") is executed and delivered as of the ___ day of _____, 2002, among
H. W. STEANE COMPANY, INC., formerly known as The Poly Choke Company, Inc.
("Lessor"), and MERRILL LYNCH MORTGAGE LENDING, INC., as Administrative Agent,
its successors and/or assigns ("Lender"), and AMI OPERATING PARTNERS, L. P., a
Delaware limited partnership ("Lessee").
RECITALS
A. Lessor is the lessor under the ground lease described on
Exhibit "A" hereto between Lessor, as lessor, and Lessee, as lessee, affecting
the real property ("Land") and improvements ("Improvements") known as and
located at 363 Roberts Street, East Hartford, Connecticut 06108, more
particularly described on Exhibit "B" hereto (the Land and Improvements,
collectively, the "Leased Premises", such lease, as so amended and assigned, and
as it may be further amended and assigned from time to time, the "Lease");
B. Lessee has transferred controlling interest in its partnership
to [_____________], a [__________] corporation, and Lessee is now in the process
of obtaining from Lender a refinancing loan (the "Loan") to be secured by, among
other things, a leasehold mortgage (the "Mortgage") on and collateral assignment
of all of Lessee's interests under the Lease;
C. Lender is unwilling to make the Loan unless Lessor reaffirms
to Lender that the provisions of the Lease are confirmed and restated for
Lender's benefit.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00),
and for other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, Lessor agrees as follows:
1. Without implying that Lessor's acknowledgment or
consent may be required under the Lease, Lessor does hereby acknowledge the
granting by Lessee of the Mortgage to Lender on Lessee's interests in the Leased
Premises, (b) the pledge of the ownership interests in the Lessee by the holder
or holders of all ownership interests in Lessee (i.e. the mezzanine borrower) to
the applicable Merrill Lynch mezzanine lending entity (together with its
successors and assigns, the "Mezzanine Lender") as security for a mezzanine loan
(the "Mezzanine Loan") and the right of Mezzanine Lender to foreclose on such
ownership interests in the event of a default under the Mezzanine Loan and (c)
the address for delivery of notices to Lender and Mezzanine Lender as set forth
below. Upon the mortgaging of the Leased Premises, the pledge of the ownership
interests in Lessee pursuant to the Mezzanine Loan and the execution of this
Agreement, Lessor acknowledges and agrees that both Lender and Mezzanine Lender
shall be deemed to be, and shall have all of the rights and protections granted
to a "mortgagee" or "Leasehold Mortgagee" or to the "Servicer" under the Lease.
2. Lessor and Lessee hereby certify to Lender that: (a)
Lessor is the current owner of (i) the fee interest in the Leased Premises, and
(ii) all of the rights and benefits of
"Lessor" under the Lease; (b) all rents and other sums due and owing under the
Lease as of the date hereof are current and not in arrears; (c) there exists no
uncured default under the Lease by Lessor or Lessee; (d) the Lease is in full
force and effect, (e) the current term of the Lease expires on April 30, 2007,
the extended term of the Lease expires on April 30, 2022, and Lessee has
remaining two (2) 15-year options to renew the term; (f) all of the material
obligations under the Lease which have accrued prior to the date of this
Agreement have been fully performed; and (g) Exhibit "A" lists the only
instruments governing Lessor's and Lessee's rights and obligations with respect
to the Leased Premises.
3. The "Net Basic Rental" for the current period
(5/01/02 through 4/30/07) is payable $9,398.19 per month. Net Basic Rental shall
next be adjusted in 2007 to be effective for the 5-year period beginning
05/01/07. Rent is due in advance on the 1st day of each month. Rent
is paid through October 31, 2002, and the next rent payment is due on _________,
2002.
4. There is no parking lot lease, either oral or
written, currently in effect.
5. Unless otherwise notified by Lender or Mezzanine
Lender, copies of any notices to Lender or Mezzanine Lender, as the case may be,
shall be sent to the following address:
If to Lender:
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, NY 10080
Attn: Steve Glassman
Facsimile: (212) 738-1013
Attn: John Gluszak
Facsimile: (212) 738-2053
with a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, NY 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
If to Mezzanine Lender:
2
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
4 World Financial Center
New York, NY 10080
Attn: Steve Glassman
Facsimile: (212) 738-1013
Attn: John Katz
Facsimile: (212) 738-8094
with a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, NY 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
6. In the event Lender shall acquire, assume or succeed
to Lessee's interest under the Lease, then in such event, so long as Lender is
not in default in the performance of any of the terms, covenants or conditions
of the Lease on Lessee's part to be performed and has cured all prior defaults,
Lender's possession under the Lease and Lender's rights and privileges
thereunder, or under any extensions thereof which may be effected in accordance
with any option therefor contained in the Lease, shall not be diminished or
interfered with by Lessor, and Lender's occupancy shall not be disturbed by
Lessor during the term of the Lease or any such extensions or renewals thereof.
7. Lender understands and agrees that Lessor is neither
a party to the Loan nor are Lessor's fee title and Lessor's interest in the
Lease subordinate to the security interest of the Mortgage on the lessee's
interest in the Lease.
8. Lessor hereby agrees that either Lender or Mezzanine
Lender shall have the right, pursuant to the terms of the Lease, to exercise
either of the remaining two (2) options to renew the term of the Lease, if the
Lessee shall fail to do so, whether or not an event of default under the
Mortgage shall have occurred, provided that Lender or Mezzanine Lender shall do
so strictly in accordance with the Lease. In the event Lender or Mezzanine
Lender does so exercise any option to renew, Lender or Mezzanine Lender shall
become obligated with the Lessee for the performance of the obligations set
forth in the Lease.
9. Lessor hereby agrees that for so long as any sums in
respect of the Loan remain outstanding, it shall not, without the prior written
consent of both Lender and Mezzanine Lender: (a) notwithstanding any provisions
of the Lease to the contrary, accept, consent to or join in the execution of any
instrument purporting to (i) effect the termination, prior to April 30, 2022, of
the Lease by Lessee, or (ii) amend or modify the Lease; (b) permit or accept the
exercise by Lessee of any right it may have to purchase the Leased Premises
without having first obtained Lender's written consent thereto. To the extent
Lender shall have approved any such exercise by Lessee of such right, the
conveyance instrument executed in connection therewith
3
shall expressly provide for the preservation of the leasehold under the Lease,
and for the non-merger of the fee and leasehold estates in the Leased Premises.
10. Lessor's fee simple interest in the Leased Premises
and the Lessor's interest under the Lease are not encumbered.
11. Lessor acknowledges that as between Lessor and
Lender, its nominee, or a purchaser at a foreclosure or other sale, the Lease
shall not be deemed to be terminated, notwithstanding the rejection of the Lease
by the Lessee thereunder or its representative in any proceeding under the
Bankruptcy Code (11 U. S. C. Section. 101 et seq.) (the "Bankruptcy Code") or
any other insolvency law. Lender shall be deemed to have satisfied its
obligation to commence foreclosure proceedings by asserting a claim in a
proceeding under the Bankruptcy Code or other insolvency proceeding, and Lender
shall not be deemed to have failed to satisfy such obligation if Lender is
unable to do so as a result of the provisions of Section 362 of the Bankruptcy
Code or similar provisions of any other insolvency law.
12. Lessor acknowledges that Lender shall have the right
to act on behalf of Lessee in any proceeding commenced by or against Lessor
under the Bankruptcy Code.
13. Lessor acknowledges that Lender and Mezzanine Lender
have requested that Lessor execute this Agreement in connection with the Loan
and the Mezzanine Loan, and that Lender has agreed to make the Loan and
Mezzanine Lender has agreed to make the Mezzanine Loan in reliance on the
matters set forth herein.
14. Lessor hereby agrees that for so long as any sums in
respect of the Loan remain outstanding, notwithstanding any provisions of the
Lease to the contrary, in the event of a casualty to or condemnation affecting
the Leased Premises, Lender shall be entitled to receive all insurance proceeds
and condemnation awards and apply the same in accordance with the terms of the
loan documents entered into between Lessee and Lender in connection with the
Loan, and shall have the right, but not the obligation, to restore the Leased
Premises.
15. This Agreement may be executed in counterparts, and
each such counterpart shall constitute an original.
16. Except as amended hereby, the Lease and all the
terms, covenants and conditions thereof remain unchanged and in full force and
effect, and the Lease, as amended hereby, is hereby ratified and confirmed in
all respects.
17. The parties agree that the protections and rights
granted to the Lender and Mezzanine Lender by this Agreement shall also apply to
any other prospective mortgagee of Lessee's interest in the Lease or any other
prospective pledgee of the ownership interests in Lessee, provided that the name
and address of such lender is provided in writing to Lessor, and such other
lender shall be deemed the "Servicer" or the "Leasehold Mortgagee" for the
purposes of this Agreement and for the purposes of the Lease.
18. This Agreement shall be binding upon, and may be
relied upon by, the parties, their successors and assigns, and the terms hereof
shall inure to the benefit of the parties, their successors and assigns.
4
IN WITNESS WHEREOF, Lessor has executed this Agreement as of the date
and year first above written.
LESSOR:
H. W. STEANE COMPANY, INC., a Connecticut
corporation, formerly known as The Poly Choke
Company, Inc.
By: ________________________________
Name:
Title:
[NO FURTHER SIGNATURES ON THIS PAGE]
5
LESSEE:
AMI OPERATING PARTNERS, L. P., a Delaware
limited partnership, acting by and through its sole
general partner, to wit:
AMIOP ACQUISITION CORP., a Delaware
corporation,
By: ________________________________
Name:
Title:
[NO FURTHER SIGNATURES ON THIS PAGE]
LENDER:
MERRILL LYNCH MORTGAGE LENDING, INC.,
as Administrative Agent
By: ________________________________
Name:
Title:
[NO FURTHER SIGNATURES ON THIS PAGE]
MEZZANINE LENDER:
MERRILL LYNCH MORTGAGE LENDING, INC.
By: ________________________________
Name: __________________________
Title: _________________________
[NO FURTHER SIGNATURES ON THIS PAGE]
ACKNOWLEDGMENT
STATE OF NEW YORK )
)ss:
COUNTY OF NEW YORK )
On this ___ day of _____, 2002, before me personally appeared ______________, to
me known, who, being by me duly sworn, did depose and say that he/she is
_________ of MERRILL LYNCH MORTGAGE LENDING, INC. as Administrative Agent,
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of the Board of Directors of the corporation.
_________________________________________
Notary Public, State of New York At Large
Print Name:
[Notarizations continued on following page.]
ACKNOWLEDGMENT
STATE OF NEW YORK )
)ss:
COUNTY OF NEW YORK )
On this ___ day of _____, 2002, before me personally appeared _____________, to
me known, who, being by me duly sworn, did depose and say that he/she is
___________ of MERRILL LYNCH MORTGAGE LENDING, INC. as Administrative Agent,
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of the Board of Directors of the corporation.
_________________________________________
Notary Public, State of New York At Large
Print Name:
[Notarizations continued on following page.]
STATE OF _______________)
)ss:
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this _____ day of
______, 2002 by _______, as __________ of H. W. STEANE COMPANY, INC., a
Connecticut corporation, on behalf of said corporation.
Personally Known _______ OR Produced Identification _______________
Type of Identification Produced: __________________________________
______________________________________
Print or Stamp Name:
Notary Public, State of _____ At Large
Commission No.: ______________________
My Commission Expires: _______________
[Notarizations continued on following page.]
STATE OF _______________)
)ss:
COUNTY OF ______________)
The foregoing instrument was acknowledged before me this ___ day of
_____, 2002 by ____________, as ____________ of AMI Operating Partners, L. P., a
Delaware limited partnership, acting by and through its sole general partner,
AMIOP Acquisition Corp., a Delaware corporation.
Personally Known _____ OR Produced Identification _________________
Type of Identification Produced: __________________________________
______________________________________
Notary Public, State of _____ At Large
Commission No.: ______________________
My Commission Expires: _______________
STATE OF GEORGIA,
COUNTY OF GLYNN:
ESTOPPEL CERTIFICATE
AND AGREEMENT
THIS ESTOPPEL CERTIFICATE AND AGREEMENT (hereinafter referred to as
"Certificate") is made this ____ day of ________, 2002, by and between the
JEKYLL ISLAND-STATE PARK AUTHORITY, a body corporate and politic created by the
General Assembly of the State of Georgia (hereinafter referred to as "Lessor"),
MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation (with its successor
and assigns, hereinafter referred to as "Lender"), PENMOCO, INC., a Georgia
corporation and ISLAND MOTEL ENTERPRISES, INC., a Georgia corporation and a
wholly owned subsidiary of Service, Inc. (hereinafter collectively referred to
as "Lessee").
W I T N E S S E T H THAT:
WHEREAS, Lessee holds the Lessee's interest in and to the leasehold
estate created by virtue of and pursuant to that certain October 23, 1972, Lease
Agreement (hereinafter referred to as the "Lease Agreement") made by and between
the Lessor and Penmoco, Inc., as Lessee, relating to certain land (hereinafter
referred to as "Property") located on Jekyll Island, Georgia, more particularly
described in that certain Declaration of Lease for Recordation dated October 23,
1972, between the Lessor and Penmoco, Inc., of record in the Office of the Clerk
of the Superior Court of Glynn County, Georgia, in Deed Book 127, page 621; and
WHEREAS, the Lease Agreement was subsequently modified and amended by
various instruments, including a "Modification Agreement" dated October 8, 1973,
a "Modification Agreement" dated October 3, 1974, an "Assignment, Assumption and
Agreement" dated October 26, 1976, (wherein SERVICO, INC., a Florida
corporation, bound itself as Guarantor of Island Motel Enterprises, Inc.'s
performance under the Lease Agreement), and a "Modification of Warranty Deed to
Secure Debt" dated April 4, 1978.
N O W, T H E R E F O R E,
For the benefit of the Lessee and Merrill Lynch Mortgage Lending, Inc.,
together with its successors and assigns, the Lessor does hereby acknowledge and
the parties do hereby agree:
1. As of the date hereof, the Lessee has, to the best of Lessor's
knowledge, performed its obligations due and required under
the Lease Agreement and the Lease Agreement is in good
standing, full force and effect and not in default, with the
following exceptions: The Lessee is currently in bankruptcy in
the United States Bankruptcy Court for the Southern District
of New York, having filed for Chapter 11 bankruptcy, and has a
Page 1
pre-petition balance of $7,582.38 due and owing to the Lessor
in accordance with the terms of the orders of the Bankruptcy
Court.
2. That Lessee, as of the date of this Estoppel Certificate, is
not in arrears on payment due Lessor and attributable to the
Lease Agreement identified above, with the following
exceptions: The Lessee is currently in bankruptcy in the
United States Bankruptcy Court for the Southern District of
New York, having filed for Chapter 11 bankruptcy, and has a
pre-petition balance of $7,582.38 due and owing to the Lessor
in accordance with the terms of the orders of the Bankruptcy
Court.
3. That Lessee, as of the date of this Estoppel Certificate, is
required to pay base rent in the amount of $20,976.66 per
month, for the period September 1, 2002 through August 30,
2012, and thereafter adjusted according to the terms of the
Lease, with such payment being due and payable on the 1st day
of the month. In addition, percentage rent is owed when Gross
Income Earned year-to-date multiplied by 3.5% is greater than
the annual base rent.
4. That the Lease Agreement covers the site of the Holiday Inn
Motel on Jekyll Island, Georgia, and the underlying fee of
that site is owned by the State of Georgia, and is leased to
the Jekyll Island-State Park Authority through the year 2049.
5. That the site is a beachfront property, not zoned, per se,
under the existing ordinances of the Jekyll Island-State Park
Authority. However, a combination of the Authority's
ordinances and the Lease Agreement would limit the present use
of the property to the operation of a modern, first-class,
family-oriented hotel and to no other purpose.
6. Because this is a beachfront site, located on a barrier island
off the Georgia coast, whether, if destroyed, the property
could be rebuilt would depend upon the laws and regulations of
the United States Army Corps of Engineers, the Georgia
Department of Natural Resources, and any other regulatory
agency as those laws and regulations may be in effect at the
time of such destruction. The Authority has not undertaken to
determine whether presently existing regulations would allow
for the rebuilding of the property.
7. Notwithstanding anything to the contrary contained in the
Lease, Lessor consents to the mortgaging of the Lease to
Lender pursuant to a loan agreement between Lender and Lessee
(the "Loan Agreement") and agrees that upon such mortgaging,
Lender, and any assignee of the Lender named herein that is a
Qualified Assignee, shall be deemed to be, and shall have all
of the rights and protections granted to a "mortgagee" or
"Leasehold Mortgagee" or to the "Servicer" under the Lease
Agreement. "Qualified Assignee" shall mean any successor or
assign of Lender that is a financial institution, including
any commercial bank, investment bank, savings and loan
association, commercial finance company, commercial
Page 2
mortgage company, or any commercial real estate lender that is
regulated under the laws of any state or the federal laws of
the United States, or any entity wholly-owned subsidiary of
any such financial institution or any financial institution
acting in the capacity of a trustee of a securitization. The
mortgage will be required to maintain an agent in the state of
Georgia.
8. Lessor hereby waives its rights under Section 75 of the Lease
Agreement to exercise any option to purchase the leasehold
note and mortgage upon a default by Lessee under the Leasehold
Mortgage.
9. Lessor hereby waives the requirements of Section 76 of the
Lease Agreement, and hereby agrees that any failure of Lessee
to comply with such Section shall not constitute an event of
default under the Lease Agreement.
10. During the term of Lender's mortgage, Lessee shall make
contributions to a reserve in the amount of 4% of the gross
revenues of the Property as required under the Loan Agreement,
which reserve shall be held by Lender in a segregated account
or subaccount and shall be available only for capital
expenditures relating to the Property; provided, however, that
Lessor hereby acknowledges that such reserve shall be
additional collateral to the loan (made pursuant to the Loan
Agreement) and that Lender may realize on it upon an event of
default of the loan.
This Certificate shall be governed by the laws of the State of Georgia.
IN WITNESS WHEREOF Lessor, Lender and Lessee have caused this
Certificate to be properly signed and sealed the day and date first set out
above.
(SIGNATURES BEGIN NEXT PAGE)
Page 3
Signed, sealed and delivered JEKYLL ISLAND-STATE
for the Jekyll Island-State Park PARK AUTHORITY
Authority in our presence:
________________________________ /s/ William A. Donohue
Unofficial Witness ----------------------
William A. Donohue
________________________________ Executive Director
Notary Public
My Commission Expires:
________________________________
(Notary Seal Affixed Here)
Page 4
Signed, sealed and delivered PENMOCO, INC.
for Penmoco, Inc. in our presence:
__________________________________ ________________________________
Unofficial Witness Name:
Title:
__________________________________
Notary Public
My Commission Expires:
__________________________________
(Notary Seal Affixed Here)
Signed, sealed and delivered ISLAND MOTEL
for Island Motel Enterprises, Inc. ENTERPRISES, INC.
in our presence:
__________________________________ ________________________________
Unofficial Witness Name:
Title:
__________________________________
Notary Public
My Commission Expires:
__________________________________
(Notary Seal Affixed Here)
Signed, sealed and delivered SERVICO, INC, Guarantor
for SERVICO, INC,
in our presence:
__________________________________ ________________________________
Unofficial Witness Name:
Title:
Notary Public
My Commission Expires:
__________________________________
(Notary Seal Affixed Here)
Page 5
Signed, sealed and delivered MERRILL LYNCH MORTGAGE
for Merrill Lynch Mortgage FUNDING, INC.
Funding, Inc. in our presence:
__________________________________ ________________________________
Unofficial Witness Name:
Title:
__________________________________
Notary Public
My Commission Expires:
__________________________________
(Notary Seal Affixed Here)
Page 6
This Document Was Prepared By, Record and Return To: Alan S. Weil, Esq., Sidley
Austin Brown & Wood LLP, 787 Seventh Avenue, New York, New York 10019.
CONSENT, CERTIFICATE AND AGREEMENT OF LESSOR
THIS CONSENT, CERTIFICATE AND AGREEMENT OF LESSOR is executed and
delivered as of this _____ day of _____, 2002, by the City of Cedar Rapids, Iowa
(the "City").
RECITALS:
A. The City is the lessor under that certain Lease of Air Rights
dated October 14, 1976, by and between the City, as lessor, and Five Seasons
Inn, Inc. ("Five Seasons"), as lessee, relating to "air space", "footings and
support columns" and the "stairway and elevator" more particularly described in
Exhibit "A" thereto (the "Hotel Leased Premises"), which lease was recorded in
Volume 1733, at Page 1 of the Records of Linn County, Iowa, as amended pursuant
to that certain Agreement to Correct Legal Description dated January 4, 1978, a
true and correct copy of which is attached hereto as Exhibit "A". (Such lease,
as so amended and as assigned and as it may be further amended and assigned from
tome to time is hereinafter referred to as the "Hotel Air Rights Lease"). The
lessee's interests in the Hotel Air Rights Lease were subsequently assigned to
and assumed by C. R. I. Hotel Associates, L. P. ("CRI") by that certain
Assignment and Assumption of Lease of Air Rights between AETNA Life Insurance
Company ("AETNA") (as successor in interest to Five Seasons), as assignor, and
CRI, as assignee, recorded in Liber 2877, at Page 344, of the Records of Linn
County, Iowa.
B. The City is the lessor under that certain unrecorded Lease
dated May 23, 1979, by and between the City, as lessor, and Five Seasons, as
lessee, relating to an enclosed overhead pedestrian passage in the airspace over
a portion of the alley in Block 16. Original Town, Cedar Rapids, Iowa, more
particularly described therein (the "Pedestrian Passage"), as amended by that
certain Amendment to Lease Originally Executed May 23, 1979, executed by and
between the City and Five Seasons as of January 3, 1984 and that certain
Amendment to Lease Originally Executed May 23, 1979, executed by and between the
City and Five Seasons as of may 22, 1985, true and correct copies of which are
attached hereto as Exhibits "B-1", "B-2" and "B-3". (Such lease, as so amended
and assigned, and as it may be further amended and assigned from time to time,
is hereinafter referred to as the "Block 16 Air Rights Lease"). The lessee's
interests in the foregoing Lease were subsequently assigned to and assumed by
CRI, by Assignment and Assumption of Lease between AETNA (as successor in
interest to Five Seasons), as assignor, and CRI, as assignee.
C. The City is the lessor under that certain Ballroom Rental
Agreement dated October 26, 1977, by and between the City and Five Seasons,
relating to the use of a ballroom (the "Ballroom") located on the second floor
of the City's Community Center, which agreement was recorded in Volume 1733, at
Page 32, of the Records of Linn County, Iowa, as modified by that certain
unrecorded Proposed Amendment to Ballroom Rental Agreement, dated October 26,
1977, by and between the City and CRI (as assignee of AETNA, as successor in
interest to Five Seasons), dated February 17, 1993 (a true and correct copy of
which unrecorded amendment is attached hereto as Exhibit "C" (such agreement, as
to amended and assigned, and as it may be further amended and assigned from time
to time, is hereinafter referred to as the "Ballroom Agreement").
D. The City is a party to that certain unrecorded Parking Space
Agreement dated May 18, 1977, by and between the City and Five Seasons, relating
to the use of City parking facilities by the holder of the lessee's interests in
the Hotel Air Rights Lease, a true and correct copy of which is attached hereto
as Exhibit "D" (such agreement, as assigned as it may further be amended and
assigned form time to time, is hereinafter referred to as the "Parking
Agreement").
E. The City is the owner of that certain pedestrian skywalk (the
"Garage Skywalk ") extending easterly from Block 23, Original Town of Cedar
Rapids, Iowa, across Fourth Street N. E. to the parking garage owned by the City
and referred to in the Parking Agreement.
F. CRI has sold, transferred, conveyed and assigned to Servico
Cedar Rapids, Inc., an Iowa corporation ("Servico") all of its rights, title and
interests in and to the Hotel Air Rights Lease, Block 16 Air Rights Lease,
Ballroom Agreement, Parking Agreement (collectively, the "Lease Agreements") and
any rights of CRI in and to the Garage Skywalk (collectively, the "Assigned
Interests"), by Special Warranty Deed dated May 28, 1997, recorded in Book 3494,
at Page 693, of the Records of Linn County, Iowa and Assignment and Assumption
of Leases dated May 28, 1997, recorded in Book 3494, at Page 684 of the Records
of Linn County, Iowa.
G. In accordance with the provisions of the Lease Agreements, and
in connection with Merrill Lynch Mortgage Lending, Inc. (in its capacity as
lender and mezzanine lender, together with its respective successors and assigns
and any subsequent holder of mortgages or security interests in the Assigned
Interests) (collectively, the "Lender") making a loan to Servico, or any
refinancing of such loan, the City has agreed to execute this Agreement.
AGREEMENT
In consideration of the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the City hereby confirms and agrees as follows:
1. The Recitals contained hereinabove are true
and correct.
2. The City hereby represents and warrants that
it is the current owner, in fee simple, of the Hotel Leased Premises, the
Pedestrian Passage and the Ballroom (collectively, the "Lease Agreements
Premises"), the Garage Skywalk and the "Five Seasons Parkade" (the garage
facility to which the Garage Skywalk is connected). The City is the current
owner and holder of all of the rights and benefits of the "lessor" under the
Lease Agreements.
2
3. The Lease Agreements are all of the
documents pertaining to the Assigned Interests to which the City is a party,
such Lease Agreements have not been modified or amended except as described in
the Recitals, and the Lease Agreements are in full force and effect.
4. To the City's knowledge, after due inquiry,
Servico is not in material default under any of the Lease Agreements, and all
rents and other charges payable thereunder are current.
5. With respect to the Hotel Air Rights Lease,
the City hereby waives its right of first refusal (as set forth in Section 14 of
the Hotel Air Rights Lease) as it applies to the conveyance of the lessee's
interests in the Lease Agreements from Servico to Lender (or any designee of
Lender) pursuant to a foreclosure upon Lender's security interests in the
Assigned Interests, or a conveyance in lieu thereof.
6. With respect to the Block 16 Air Rights
Lease, the City confirms and agrees to the following:
(a) The current rental rate is $1.00
per year,
(b) The date upon which the last
structural inspection certificate required under the Block 16 Air Rights Lease
was filed with the City is _____; and
(c) The City reaffirms the provisions
of the Block 16 Air Rights Lease, and confirms that its records reflect that
such lease has heretofore been assigned to Servico.
7. With respect to the Ballroom Agreement, the
City agrees as follows:
(a) In clarification of the provisions
of Section 4 of the Ballroom Agreement, the rental payable under such Ballroom
Agreement is currently the greater of $50.000.00 per year or the percentage rent
described in Section 4 of the Ballroom Rental Agreement. Rental payable for the
year 2002 is ______________; and
(b) The Ballroom Agreement has been
executed pursuant to Section 11 of the Hotel Air Rights Lease, and the City
agrees that the lessee under the Hotel Air Rights Lease shall have the exclusive
use of the Ballroom throughout the term of the Hotel Air Rights Lease; provided,
however, that the Ballroom Agreement may be amended from time to time with
respect to the rental payments required thereunder. Accordingly, prior to the
expiration of the Ballroom Agreement, City agrees that it shall execute an
amendment, renewal or extension thereof, extending the term of the Ballroom
Agreement on terms reasonably acceptable to City and the then holder of the
lessee's interests under the Hotel Air Rights Lease.
8. With respect to the Parking Agreement, the
City agrees that the applicable parking rate has been negotiated by and between
the City and the holder of the
3
lessee's interest in the Lease Agreements consistent with Iowa law and the Lease
Agreements The current applicable parking rate is _________________________.
9. The Garage Skywalk is public property, and
Servico and all subsequent holders of lessee's interests in the Hotel Air rights
Lease, their officers, employees, licensees and invitees shall have the right to
use the Garage Skywalk for pedestrian access between the Hotel Leased Premises
and the Five Seasons Parkade during the term of the Hotel Air Rights Lease.
10. The City hereby consents to the granting of
liens in Servico's interests in the Assigned Interests in favor of Lender
(without implying herein that the City's consent may be required under any or
all of the Lease Agreements). Neither the foregoing consent nor any other
provision of this Agreement shall be deemed or interpreted as a subordination by
the City of its interests in the Lease Agreements or any of the property
relating thereto.
11. The City hereby agrees that in the event of
any casualty to the Hotel Leased Premises or the Pedestrian Passage, Servico
(and any subsequent holder of the lessee's interests in the Hotel Air Rights
Lease) shall be entitled to all insurance proceeds payable with respect to such
casualty under insurance policies obtained, maintained and whose premiums are
paid by the holder of such lessee's interests, and the City shall have no claim
to such proceeds.
12. Unless otherwise notified by Lender, copies
of any notices to the lessee under the lease Agreements shall be sent to Lender
at the following address:
Merrill Lynch Mortgage Lending, Inc.
4 World Financial Center
New York, NY 10080
Attn: Steven Glassman
Facsimile: (212) 738-1013
With Copy to:
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, NY 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
The City shall accept the cure, by Lender, of any default under the
Lease Agreements with the same force and effect as if such cure had been made by
the leasee under the Lease Agreements.
13. In the event Lender shall acquire, assume or
succeed to Servico's interests under any of the Lease Agreements, then in such
event, so long as Lender is not in default in the performance of any of the
terms, conditions or covenants of the Lease Agreements to be performed by the
lessees thereunder, Lender's possession of the Lease Agreements Premises under
the Lease Agreements and Lender's rights and privileges thereunder, or under
4
any extension or renewals thereof which may be effected in connection with any
option therefor contained in the Lease Agreements, shall not be diminished or
interfered with by City, and Lender's occupancy shall not be disturbed by the
City during the term of the Lease Agreements or any such extensions or renewals
thereof and Lender shall be entitled to the benefit of this Agreement.
14. City hereby agrees that for so long as the
Loan shall not have been satisfied, notwithstanding any provisions of the Lease
Agreements to the contrary, City shall not accept, consent to or join in the
execution of any instrument purporting to effect the termination, prior to April
30, 2020, of the Hotel Air Rights Lease without the prior written consent of
Lender unless a material default shall have occurred under the Hotel Air Rights
Lease and shall not have been waived by resolution of the City Council or cured
within any applicable grace or cure period.
15. City hereby acknowledges that it has not
given Servico any right to purchase or acquire the Lease Agreements Premises and
the City agrees that it shall not permit Servico or any subsequent lessee under
the Hotel Air Rights Lease to purchase the Hotel Leased Premises at any time
prior to the satisfaction of the Loan without first having obtained Lender's
written consent thereto.
16. City acknowledges that, as between City and
the Lender, its nominee or a purchaser at a foreclosure or other sale, the Lease
Agreements shall not be deemed to be terminated notwithstanding the rejection of
the Lease Agreements by the lessee thereunder or its representative in any
proceeding under the Bankruptcy Code (11 U. S. C. Section 101 et. seq.) (the
"Bankruptcy Code ") or any other insolvency law provided Lender shall, from and
after the date it acquires the lessee's interests in the Assigned Interests,
comply with the lessee's obligations under the Lease Agreements.
CITY OF CEDAR RAPIDS, IOWA
By:________________________
Mayor
Attest:___________________________________
its Clerk
5
STATE OF IOWA )
)ss:
COUNTY OF LINN )
On this _____ day of ________________, 2002, before me, the
undersigned, a Notary Public in and for the State of Iowa, personally appeared
__________________ and __________________, to me personally known, who being by
me duly sworn, did say that they are the Mayor and City Clerk, respectively, of
the City of Cedar Rapids, Iowa; a municipal corporation; that the seal affixed
to the foregoing instrument is the corporate seal on behalf of the corporation,
by authority of its City Council, as contained in Resolution No. _____ passed by
the City Council on the _____ day of __________________, 2002; and
___________________________ and _____________________ acknowledged the execution
of the instrument to be their voluntary act and deed and the voluntary act and
deed of the corporation, by it voluntarily executed.
_________________________________
NOTARY PUBLIC - STATE OF IOWA
The following parties have executed this Agreement for the purpose of
acknowledging and consenting to the matters referred to herein
SERVICO CEDAR RAPIDS, INC., an
Iowa corporation
By:_______________________________
Name:
Title:
STATE OF )
)ss:
COUNTY OF )
On this _____ day of _____, 2002, before me, the undersigned, a Notary
Public in and for the State of _______________________, personally appeared
_________________, to me personally known, who being by me duly sworn, did say
he is the ____________________ of Servico Cedar Rapids, Inc. an Iowa
corporation; that the seal affixed to the foregoing instrument is the
corporate seal of the corporation, and that the instrument was signed and sealed
on behalf of the corporation, by authority of its Board of Directors; and
______________________ acknowledged the execution of the instrument to be his
voluntary act and deed and the voluntary act and deed of the corporation, by it
voluntarily executed.
____________________________________
NOTARY PUBLIC - STATE OF IOWA
HARRY G. PAPPAS & SONS, LLC
5504 KEMPER ROAD
BALTIMORE, MD 21210
November 20, 2002
VIA REGULAR MAIL & FACSIMILE (212-738-1013)
Merrill Lynch Mortgage Lending. Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, New York 10080
VIA REGULAR MAIL & FACSIMILE (404-364-0088)
Lodgian AMI, Inc.
c/o Servico, Inc.
3445 Peachtree Road N. E.
Atlanta, Georgia 30326
Re: Lease, December 31, 1962, Harry G. Pappas & Sons, LLC to
Lodgian AMI, Inc.
Holiday Inn - Inner Harbor, Baltimore, Maryland
301 West Lombard Street, Baltimore, Maryland
Dear Ladies and Gentlemen:
Harry G. Pappas & Sons, LLC, the "Lessor" in connection with the above
referenced lease, as amended, (the "Lease"), hereby confirms to you in
connection with the granting of a leasehold mortgage from Lodgian AMI, Inc.
("Lessee") to Merrill Lynch Mortgage Lending, Inc. and its successors and
assigns ("Lender") with respect to the Lease that:
(a) to the best of Lessor's knowledge, information and belief,
without investigation or inquiry, all rents and other sums due
and owing under the Lease as of the date hereof are current
and not in arrears;
(b) the current term of the Lease expires on December 31, 2037,
and there is one (1) remaining twenty (20) year option to
extend the term;
ACKNOWLEDGMENT, ESTOPPEL CERTIFICATE
AND AGREEMENT
(Baltimors - International Airport)
THIS ACKNOWLEDGEMENT, ESTOPPEL CERTIFICATE AND AGREEMENT ("Agreement")
is executed and delivered as of this____ day of ________, 2002, among HARRY W.
RODGERS, III, WILLIAM A. RODGERS and W. DALE HESS, as partners trading as D. R.
H. INVESTMENT COMPANY (as to a 90% undivided interest), and BALTIMORE-WASHINGTON
SCIENCE AND INDUSTRY CENTER, L.P., a Maryland limited partnership (as to a 10%
undivided interest) (collectively, "Lessor "); MERRILL LYNCH MORTGAGE LENDING,
INC., in its capacity as mortgage lender and mezzanine lender (together with its
respective successors and/or assigns, collectively, "Lender "); and LODGIAN AMI,
INC. a Maryland corporation ( "Lessee ").
RECITALS
A. Lessor is the lessor under the ground lease described on
Exhibit "A" hereto between Lessor, as lessor, and Lessee, as lessee, affecting
the real property ("Land") and improvements ("Improvements") known as located at
BWI International Airport, 890 Elkridge Landing Road, Linthicum Heights,
Maryland 21090, more particularly described on Exhibit "B" hereto (the Land and
Improvements, collectively, the "Leased Premises"; such lease, as so amended and
assigned, and as it may be further amended and assigned from time to time, the
"Lease");
B. Lessee is now in the process of obtaining from Lender a
refinancing loan (the "Loan ") to be secured by, among other things, a leasehold
mortgage and collateral assignment of all interests under the Lease;
C. In order to facilitate the transactions described herein,
Lessor has agreed to enter into this Agreement, without which Lender would not
make the Loan.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00),
and for other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, Lessor agrees as follows:
1. Without implying that Lessor's acknowledgment or consent may
be required under the Lease, Lessor does hereby acknowledge and consent to (a)
the granting by Lessee of a leasehold mortgage ("Leasehold Mortgage") to Lender
on Lessee's interests in the Leased Premises, (b) the pledge of the ownership
interests in the Lessee by the holder or holders of all ownership interests in
Lessee (i.e. the mezzanine borrower) to the applicable Merrill Lynch mezzanine
lending entity (together with its successors and assigns, the "Mezzanine
Lender") as security for a mezzanine loan (the "Mezzanine Loan") and the right
of Mezzanine Lender to foreclose on such ownership interests in the event of a
default under the Mezzanine Loan and (c) the address for delivery of notices to
Lender and Mezzanine Lender as set forth below. Upon the mortgaging of the
Leased Premises, the pledge of the ownership interests in Lessee pursuant to the
Mezzanine Loan and the execution of this Agreement, Lessor acknowledges and
agrees that both Lender and Mezzanine Lender shall be deemed to be, and shall
have all of the rights and
protections granted to a "mortgagee" or "Leasehold Mortgagee" or to the
"Servicer" under the Lease.
2. Lessee hereby gives notice of and Lessor hereby accepts
Lessee's election to extend the term of the Lease for an additional 10-year
term, to September 11, 2023.
3. Lessor and Lessee hereby certify to Lender that: (a) Lessor is
the current owner of (i) the fee interest in the Leased Premises, and (ii) all
of the rights and benefits of "Lessor" under the Lease; (b) to the best of
Lessor's knowledge, all rents and other sums due and owing under the Lease as of
the date hereof are current and not in arrears; (c) to the best of Lessor's
knowledge, there exists no uncured default under the Lease by Lessor or Lessee;
(d) the Lease is in full force and effect; (e) the current term of the Lease
expires on September 11, 2003, the first extended term expires on September 11,
2013, the second extended term expires on September 11, 2023 and Lessee has
remaining three (3) 10-year options to extend the term; (f) to the best of
Lessor's knowledge, all of the material obligations under the Lease which have
accrued prior to the date of this Agreement have been fully performed; (g)
Exhibit "A" lists the only instruments governing Lessor's and Lessee's rights
and obligations with respect to the Leased Premises; and (h) to the best of
Lessor's knowledge, the Option to purchase the Leased Premises granted by Lessor
in favor of Lessee expired on June 30, 2002.
4. The "Fixed Rent" for the current period (1/1/02 through
12/31/02) is $51,712.68 per month. Fixed Rent shall remain at this same rate
throughout the Initial Term and any Extended Terms. Fixed Rent is due in advance
on the 1st day of each month, is paid through November 1, 2002, and the next
rent payment is due on December 1, 2002.
5. Unless otherwise notified by Lender, copies of any notices to
Lender shall be sent to the following address:
If to Lender:
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, NY 10080
Attention: Steven Glassman
Facsimile: (212) 738-1013
Attention: John Gluszak
Facsimile: (212) 738-2053
Attention: John Katz
Facsimile: (212) 449-8094
with a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, NY 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
6. Lender understands and agrees that Lessor is neither a party
to the Loan nor are Lessor's fee title and Lessor's interest in the Lease
subordinate to the security interest of the Leasehold Mortgage on the lessee's
interest in the Lease.
7. Lessor's fee simple interest in the Leased Premises and the
Lessor's interest under the Lease are encumbered by the liens described on
Exhibit "C" attached hereto and made a part hereof, in the approximate current
principal balance(s) shown on Exhibit "C."
8. Lessor acknowledges that Lender has requested that Lessor
execute this Agreement in connection with the Loan, and that Lender has agreed
to make the Loan in reliance on the matters set forth herein.
9. This Agreement may be executed in counterparts, and each such
counterpart shall constitute an original.
10. Except as amended hereby, the Lease and all the terms,
covenants and conditions thereof remain unchanged and in full force and effect,
and the Lease, as amended hereby, is hereby rarified and confirmed in all
respects.
11. The parties agree that the protections and rights granted to
the Lender by this Agreement shall also apply to any other prospective mortgagee
of Lessee's interest in the Lease or any other prospective pledgee of the
ownership interests in Lessee, provided that the name and address of such lender
is provided in writing to Lessor, and such other lender shall be deemed the
"Servicer" or the "Leasehold Mortgagee" for the purposes of this Agreement and
for the purposes of the Lease.
12. This Agreement shall be binding upon, and may be relied upon
by, the parties, their successors and assigns, and the terms hereof shall inure
to the benefit of the parties, their successors and assigns.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date and year first above written.
LESSEE: LESSOR:
LODGIAN AMI, INC., a D. R. H. INVESTMENT COMPANY (as to a
Maryland Corporation 90% undivided interest)
By: Harry W. Rodgers, III, as its general
partner
By:_________________________________ /s/ Harry W. Rodgers
Name: -----------------------
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
and
BALTIMORE-WASHINGTON SCIENCE
AND INDUSTRY CENTER, L.P., a Maryland
limited partnership (as to a 10% undivided
interest)
By: Rodgers/BWSIC, LLC, as its general
partner
By: Harry W. Rodgers, III Family Number 2,
L.P., Member
By: H.W.R., III Family Number 2, LLC,
as its general partner
By: /s/ Harry W. Rodgers
--------------------------
Harry W. Rodgers, III,
Manager
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
LENDER:
MERRILL LYNCH MORTGAGE
LENDING, INC.
By:__________________________
Name:
Title:
[ACKNOWLEDGEMENTS ON FOLLOWING PAGE]
STATE OF_______________ )
)ss:
COUNTY OF______________ )
On this ___ day of ___________, 2002, before me personally appeared
_____________, to me known, who, being by me duly swom, did depose and say that
he is the ____________ of Merrill Lynch Mortgage Lending, Inc., a Delaware
corporation, described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by authority of the Board of Directors of the
corporation.
___________________________________
Notary Public
Print Name:________________________
STATE OF_______________ )
)ss:
COUNTY OF______________ )
On this ___ day of _____________, 2002, before me personally appeared
__________________, to me known, who, being by me duly sworn, did depose and say
that he is the ______________ of __________________ described in and which
executed the foregoing instrument; and that he/she signed his/her name thereto
by authority of the Board of Directors of _______________.
___________________________________
Notary Public
Print Name:________________________
STATE OF [ILLEGIBLE] )
)ss:
COUNTY OF [ILLEGIBLE] )
On this 20 day of November, 2002, before me personally appeared Harry
W. Rodgers, III, to me known, who, being by me duly sworn, did depose and say
that he executed the foregoing instrument; and that he signed his name thereto
in his individual capacity and in the capacity as set forth above in the
signature block for Lessor.
/s/ Sandra H. Justis
----------------------------
Notary Public
Print Name: Sandra H. Justis
Expired - 5/1/05
EXHIBIT "A"
Lease dated August 24, 1971, among Samuel H. Heffiner, Edward H.
Dickinson, Harry W. Rodgers, III, William Rodgers and W. Dale Hess, co-partners,
trading as D. R. H. Investment Co. ( "DRH Investment Co. "), Landlord
("Lessor"), and American Motor Inns, Incorporated, Tenant ( "Original Lessee ").
(a) Lease dated August 24, 1971, (recorded in Liber 3883, at Folio
284, Land Records of Anne Arundel County, Maryland).
(b) Agreement to Construct and Lease dated August 24, 1971,
between D. R. H. Investment Co., Landlord, and American Motor Inns,
Incorporated, Tenant.
(c) Option dated August 24, 1971, between D. R. H. Investment Co.,
Owners, and American Motor Inns, Incorporated, Lessee (recorded in Liber MSH No.
2467, at Folio 798, of the Land Records of Anne Arundel County, Maryland).
(d) First Amendment to Agreement to Construct and Lease dated May
18, 1972, among D. R. H. Investment Co., Landlord, and American Motor Inns,
Incorporated, Tenant.
(e) Agreement dated May 18, 1972, among D. R. H. Investment Co.,
Landlord, and American Motor Inns, Incorporated, Tenant (recorded in Liber 2490,
at Page 581, of the Land Records of Anne Arundel County, Maryland).
(f) Subordination Agreement dated May 18, 1972, between American
Motor Inns, Incorporated, Robert J. Schultze and Charles J. Fleury, Trustees,
and Loyola Federal Savings & Loan Association (recorded in Liber 2490, at Page
585, of the Land Records of Anne Arundel County, Maryland); and Non-Disturbance
and Attornment Agreement dated September 8, 1986, between Loyola Federal Savings
and Loan and American Motor Inns, Inc. (recorded in Liber 4212, at Page 211,
Land Records of Anne Arundel County, Maryland).
(g) Consolidated Amendatory Agreement dated May 7, 1984 between
D.R.H. Investment Co. (which now has only 3 partners - Rodgers III, Rodgers
and Hess) and American Motor Inns, Incorporated (recorded in Liber EAC No. 3883,
at Folio 325, Land Records of Anne Arundel County, Maryland).
(h) Notification of Election to Extend Term dated May 9, 1985
(election to extend term to September 11, 2013.
(i) Amendment to Lease, dated December 1, 1985, between D.R.H.
Investment Co., Landlord, and American Motor Inns, Incorporated, Tenant
(recorded in Liber 4009, at Page 445, Land Records of Anne Arundel County,
Maryland).
(j) Amendment of Lease Agreement dated December 31, 1985, between
D. R. H. Investment Co., Landlord, and American Motor Inns, Incorporated,
Tenant.
(k) Amendment to Lease Agreement dated December 20, 1986, between
D.R.H. Investment Co., Lessor, and American Motor Inns, Incorporated, Lessee
(recorded in Liber 4223, at Folio 64, of the Land Records of Anne Arundel
County, Maryland).
(l) Assignment of Lease and Indemnification Agreement, dated
December 23, 1986, between American Motor Inns, Incorporated, Assignor, and AMI
Operating Partners, L.P., Assignee (recorded in Liber 4223, at Folio 70, of the
Land Records of Anne Arundel County, Maryland).
(m) Assignment of Option Agreement dated December 23, 1986, from
American Motor Inns, Incorporated, to AMI Operating Partners, L. P. (recorded in
Liber 4223, folio 75, on the Land Records of Anne Arundel County, Maryland).
(n) Subordination, Non-Disturbance and Attornment Agreement dated
July 26, 1995 between AMI Operating Partners, L. P., DRH Investment Company and
American Enterprise Life Insurance Company.
EXHIBIT "B"
LEASED PREMISES
EXHIBIT "C"
ENCUMBRANCES OF LESSOR'S
INTEREST IN THE FEE AND THE LEASE
Approximate Principal Balance
Lien/Encumbrance As of the Date hereof
[PRIME HOSPITALITY CORP. LOGO]
DOUGLAS W. VICARI
Senior Vice President
& Chief Financial Officer
C/O (973) 808-7776
FAX (973) 882-7669
Email: dwv@primehospitality.com
November 21, 2002
Merrill Lynch Mortgage Lending, Inc.,
In its capacity as mortgage lender and
mezzanine lender (together with its
respective successors and assigns,
collectively, "Merrill")
c/o Merrill Lynch & Co.
4 World Financial Center
New York, New York 10080
Re: Holiday Inn, Glen Burnie, MD
Dear Sir/Madam:
Prime has been requested by our tenant to provide you with information
concerning our lease of the hotel premises described on Schedule A to
his letter.
1. The lease consists of an agreement dated May 10, 1968 by and
between David H. Greenberg and Janice C. Greenberg and A.O.
Krisch, Joel Krisch and Rosalie K. Shaftman, as amended by
Amendment to Lease dated February 24, 1971, Second Amendment
to Lease dated August 22, 1975, and Amendment to Lease dated
as of December 20, 1986, all attached to this letter.
2. The present monthly rental is $2,000 and rent has been paid
through November 30, 2002.
3. There is no notice of default outstanding and uncured. Prime
is not aware of the occurrence of any event of default that is
uncured.
4. Prime will forward to Merrill Lynch Mortgage Lending, Inc.
("Merrill") a copy of any notice sent to tenant, to the extent
that the Lease requires a copy of such notice to be sent to
the "Servicer," as defined in the Lease. The failure of Prime
to forward to Merrill a copy of any other notice or
communication to tenant shall not limit Prime's rights under
the Lease nor create any liability or obligation to Merrill,
the tenant, or another party. Required notices will be sent to
the following addresses unless Prime is otherwise notified by
Merrill in writing:
-2-
Merrill Lynch Mortgage Lending, Inc.,
In its capacity as mortgage lender and
mezzanine lender (together with its
respective successors and assigns,
collectively, "Merrill")
c/o Merrill Lynch & Co.
4 World Financial Center
New York, New York 10080
Attention: Steve Glassman
Facsimile: 212-738-1013
Attention: John Gluszak
Facsimile: 212-738-2053
Attention: John Katz
Facsimile: 212-449-8094
With a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, New York 10019
Attention: Alan S. Weil, Esq.
Facsimile: 212-839-5599
5. Notices to Prime will be addressed to Prime Hospitality Corp.,
700 Route 46 East, Fairfield, New Jersey 07004, Attention:
Douglas Vicari, with a copy to the same address, Law
Department. Merrill will provide Prime with a copy of any
notice of default sent to tenant.
6 Prime agrees that the Lease may be assigned by Merrill, its
successors and assigns, in foreclosure or by a purchaser at
foreclosure without Prime's consent and upon that assignee's
written acknowledgement and assumption of tenant's obligations
under the lease. Merrill shall have no further liability to
perform any of the obligations, conditions or covenants
contained in the Lease.
7 Merrill acknowledge that this letter is provided as an
accommodation to Prime's tenant. Merrill's acceptance of this
letter will evidence its agreement to all of the terms of this
letter.
-3-
This letter is given based on the actual knowledge of its signatory
without independent inquiry. However, the statements contained in this
letter are statements of Prime ("Prime") and no liability will accrue
to the signatory. Prime will be estopped from later claiming any state
of facts contrary to the statements contained in this letter only if
the statements made in this letter were actually known to be false by
the signatory at the time made.
Very truly yours,
PRIME HOSPITALITY CORP.
/s/ Douglas Vicari
Douglas Vicari
Senior Vice President and Chief
Financial Officer
DV: jm
CONSENT, ESTOPPEL CERTIFICATE
AND AGREEMENT
(Crowne Plaza, Albany, New York)
This CONSENT, ESTOPPEL CERTIFICATE AND AGREEMENT is executed and
delivered as of this 15 day of November, 2002, among UDC-TEN EYCK DEVELOPMENT
CORPORATION-III ("Hotel Lessor"). UDC-TEN EYCK DEVELOPMENT CORPORATION-II
("Garage Lessor"). each a wholly-owned subsidiary of New York Urban Development
Corporation, a corporate governmental agency of the State of New York
constituting a political subdivision and a public benefit corporation having an
address at c/o New York State Urban Development Corporation, 633 Third Avenue.
New York, New York 10017 (Hotel Lessor and Garage Lessor, collectively,
"Lessor"), ALBANY HOTEL, INC., a Florida corporation ("Lessee") and MERRILL
LYNCH MORTGAGE LENDING, INC., as Administrative Agent, its permitted successors
and/or assigns as set forth in paragraph 4 hereof, 4 World Financial Center, New
York, New York 10080 ("Lender" as that term is defined below).
WITNESSETH:
WHEREAS, (a) Hotel Lessor is the lessor under a certain Agreement of
Lease dated as of December 20, 1979, with Ten Eyck Hotel Associates, a New York
limited partnership ("Ten Eyck"), as lessee, affecting the real property
described on Exhibit A hereto (the "Hotel Premises") which Lease was recorded
January 4, 1980 in Liber 2181 of Deeds. Page 1000 in the Office of the Albany
County Clerk; which Lease was subsequently amended and restated in its entirety
by Restatement of Agreement of Lease dated as of December 20, 1979 between Hotel
Lessor, as lessor, and Ten Eyck, as lessee, recorded December 17, 1981 in Liber
2216 at page 135 in the Office of the Albany County Clerk; the lessee's
interests in which Lease were subsequently assigned to Albany Motel Enterprises,
Inc., pursuant to Bargain and Sale Deed dated November 11, 1992 and recorded
January 21, 1993 in Liber 2476 at page 871 in the Office of the Albany County
Clerk with respect to which a corrective instrument naming Albany Hotel, Inc., a
Florida corporation, as lessee, dated May 5, 1995 was recorded August 15, 1995
in Liber 2593 at page 703 in the Office of Albany County Clerk (such Lease, as
so amended and assigned, and as it may be further amended and assigned from time
to time, the "Hotel Lease"); and (b) Garage Lessor is the lessor under a certain
Agreement of Lease dated as of December 20, 1979, with Ten Eyck, as lessee,
affecting the real property described on Exhibit B hereto (the "Garage
Premises"; the Hotel Premises and the Garage Premises, collectively, the "Leased
Premises"), which Lease was recorded January 4, 1980 in Liber 2181 of Deeds,
Page 845 in the Office of the Albany County Clerk; which Lease was subsequently
amended and restated in its entirety by Restatement of Agreement of Lease dated
as of December 20, 1979 between Garage Lessor, as lessor, and Ten Eyck, as
lessee, recorded December 17, 1981 in Liber 2216 at page 135 in the Office of
Albany County Clerk; the lessee's interests in which Lease were subsequently
assigned to Albany Motel Enterprises, Inc., pursuant to Bargain and Sale Deed
dated November 11, 1992 and recorded January 21, 1993 in Liber 2476 at page 871
in the Office of the Albany County Clerk with respect to which a corrective
instrument naming Lessee, as lessee, dated May 5, 1995 was recorded August 15,
1995 in Liber 2593 at page 703 in the Office of the Albany County Clerk (such
Lease, as so amended and assigned, and as it may be further amended and assigned
from time to time, the "Garage Lease"; the Hotel Lease and the Garage Lease,
collectively, the "Lease");
WHEREAS, Lessee has requested that Merrill Lynch Mortgage Lending.
Inc., in its capacity as mortgage lender and mezzanine lender (together with its
respective successors and assigns, collectively, "Lender") make a loan to Lessee
to be secured by, among other things, a first mortgage lien on Lessee's interest
in the Leased Premises (such loan, the "Loan"); and
WHEREAS, Lender requires that Lessor enter into this Agreement, without
which Lender would not make the Loan:
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00),
and for other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, Lessor agrees as follows:
1. Without implying that Lessor's acknowledgment or consent may
be required under the Lease, Lessor does hereby acknowledge and consent to (a)
the granting by Lessee of a leasehold mortgage in the principal amount of
[$15,500,000] to Lender on Lessee's interests in the Leased Premises ("Leasehold
Mortgage") and (b) the address for delivery of notices to Lender as set forth
below. Lessor acknowledges and agrees that Lender shall be deemed to be and
shall have all of the rights and protections granted to a "mortgagee,"
"Leasehold Mortgagee," "Institutional Lender" or "Servicer" under the Lease.
2. Lessor does hereby certify to Lender that: (a) Lessor is the
current owner of (i) the fee estate in the Leased Premises, and (ii) all of the
rights and benefits of "Lessor" under the Lease; (b) except as qualified herein,
Base Rent and other sums due and owing under the Lease as of the date hereof are
current and not in arrears; (c) there exist no Events of Default under the Lease
by Lessor or Lessee; (d) the Lease is in full force and effect; (e) the Lease
has not been amended or modified; and (f) to the best of Lessor's knowledge,
there are no offsets, counterclaims, defenses, deductions or credits whatsoever
with respect to the Lease, or any amounts owing under any other agreement.
Notwithstanding anything else herein to the contrary, Lessor makes no
representations as to whether any portion of the Base Rent is due and owing nor
whether Additional Base Rent is due and owing.
3. Lessor does hereby agree that: (a) Lender shall be deemed to
be an "Institutional Lender" (as such term is defined in the Lease) for all
purposes under the Lease; and (b) the mortgage on the Leased Premises securing
the Loan shall be deemed to be a "Permanent Mortgages" (as such term is defined
in the Lease) for all purposes under the Lease.
4. Lessor acknowledges that Lender may assign its interests as
referred to in paragraph I hereof to any of the following: (a) an Institutional
Lender (as referred to in the Lease), and (b) an Institutional Lender acting as
trustee, and Lessor hereby approves any such assignment.
5. Unless otherwise notified by Lender, copies of any notices to
Lessee shall be sent to Lender at the following address:
2
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, NY 10080
Attention: Steven Glassman
Facsimile: (212) 738-1013
Attention: John Gluszak
Facsimile: (212) 738-2053
Attention: John Katz
Facsimile: (212) 449-8094
with a copy to:
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, NY 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
6. In the event Lender shall acquire, assume or succeed to
Lessee's interest under the Lease, then in such event, so long as there exists
no uncured Event of Default under the Lease on Lessee's part to be performed,
Lender's possession under the Lease and Lender's rights and privileges
thereunder, or under any extensions or renewals thereof which may be effected in
accordance with any option therefor contained in the Lease, shall not be
diminished or interfered with by Lessor, and Lender's occupancy shall not be
disturbed by Lessor during the term of the Lease or any such extensions or
renewals thereof.
7. Lessor hereby agrees that for so long as any sums in respect
of the Loan remain outstanding. Lessor shall not mortgage its fee interest in
the Leased Premises unless such mortgage shall expressly provide for the
preservation of the leasehold under the Lease, and for the non-merger of the fee
and leasehold estates in the Leased Premises.
8. Lessor hereby agrees that for so long as any sums in respect
of the Loan remain outstanding, notwithstanding any provisions of the Lease to
the contrary, in the absence of an uncured default. it shall not accept, consent
to or join in the execution of any instrument purporting to effect the early
cancellation or termination of the Lease by Lessee, or a modification or
amendment thereof without the prior written consent of Lender. Lessee hereby
agrees that for so long as any sums in respect of the Loan remain outstanding,
notwithstanding any provisions of the Lease to the contrary, Lessee will not
exercise any right it may have to purchase the Leased Premises without the prior
written consent of Lender.
9. Lessor acknowledges that as between Lessor and Lender, its
nominee or a purchaser at a foreclosure or other sale, the Lease shall not be
deemed to be terminated notwithstanding the rejection of the Lease by the lessee
thereunder or its representative in any proceeding under the Bankruptcy Code (11
U.S.C., Section 101 et seq.) (the "Bankruptcy Code") or any other insolvency
law provided Lender cures any and all defaults susceptible to cure by Lender,
3
including any monetary defaults. Leader shall be deemed to have satisfied its
obligation to commence foreclosure proceedings by asserting a claim in a
proceeding under the Bankruptcy Code or other insolvency proceeding, and Lender
shall not be deemed to have failed to satisfy such obligation if Lender is
unable to do so as a result of the provisions of Section 362 of the Bankruptcy
Code or similar provisions of any other insolvency law.
10. Lessor acknowledges that Lender has requested that Lessor
execute this Agreement in connection with the Loan, and that Lender has agreed
to make the Loan in reliance on the matters set forth herein.
11. This Agreement shall be binding upon, and may be relied upon
by, the parties, their successors and assigns, and the terms hereof shall inure
to the benefit of the parties, their successors and assigns.
[NO FURTHER TEXT ON THIS PAGE]
4
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
LESSOR:
UDC-TEN EYCK DEVELOPMENT
CORPORATION-II
By: /s/ HARRIS ROSENTHAL
---------------------
Name:
Title: VP
UDC-TEN EYCK DEVELOPMENT
CORPORATION-III
By: /s/ HARRIS ROSENTHAL
---------------------
Name:
Title: VP
LESSEE:
ALBANY HOTEL, INC.
By:
---------------------
Name:
Title:
(SIGNATURES CONTINUE OF FOLLOWING PAGE)
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
LENDER:
MERRILL LYNCH MORTGAGE LENDING.
INC., as Administrative Agent
By: ___________________________
Name:
Title:
6
STATE OF NEW YORK )
)ss:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 15 day of Nov,
2002, by Harris Rosenthal, who resides at WEST ORANGE, NJ, as V.P of UDC-TEN
EYCK DEVELOPMENT CORPORATION-II, on behalf of said corporation. He/she is
personally known to me or who has produced a driver's license as identification
and who did take an oath.
/s/ STEVEN J. MATLIN
--------------------
Print or Stamp Name:
Notary Public
STATE OF NEW YORK ) STEVEN J. MATLIN
)ss: NOTARY PUBLIC OF NEW YORK
COUNTY OF NEW YORK ) Qualifief in New York Country
Reg# 02MA6063225
My Commission Expires August 27, 2005
The foregoing instrument was acknowledged before me this 15 day of Nov,
2002, by Harris Rosenthal, who resides at WEST ORANGE, NJ, as V.P. of UDC-TEN
EYCK DEVELOPMENT CORPORATION-III, on behalf of said corporation. He/she is
personally known to me or who has produced a driver's license as identification
and who did take an oath.
/s/ STEVEN J. MATLIN
--------------------
Print or Stamp Name:
Notary Public
STATE OF ) STEVEN J. MATLIN
)ss: NOTARY PUBLIC OF NEW YORK
COUNTY OF _________) Qualifief in New York Country
Reg# 02MA6063225
My Commission Expires August 27, 2005
The foregoing instrument was acknowledged before me this ___ day of
___, 2002, by ____, who resides at _____, as ____ of ALBANY HOTEL, INC., on
behalf of said corporation. He/she is personally known to me or who has produced
a driver's license as identification and who did take an oath.
____________________
Print or Stamp Name:
Notary Public
STATE OF __________)
)ss:
COUNTY OF _________)
The foregoing instrument was acknowledged before me this ____ day of
____, 2002, by ____, who resides at ____, as _____ of MERRILL LYNCH MORTGAGE
LENDING, INC., on behalf of said corporation. He/she is personally known to me
or who has produced a driver's license as identification and who did take an
oath.
____________________
Print or Stamp Name:
Notary Public
2
EXHIBIT A
Legal Description - Hotel
EXHIBIT A
ALL that certain parcel of land in the City and County of Albany, State
of New York, comprising Parcel D on a certain map filed April 29, 1976 in the
Albany County Clerk's Office as Map No. 5197, filed in Drawer No. 168, said
parcel being more particularly bounded and described as follows:
BEGINNING at the point where the division line between Parcels A and D
on said map intersects the Northeasterly line of State Street and which point is
128.68 feet Northwesterly on a course of North 52 degrees 43 minutes 30 seconds
West as measured along the Northeast line of State Street from its intersection
with the Northwest line of North Pearl Street;
RUNNING THENCE along the Northeast line of State Street, the following
courses and distances:
North 52 degrees 43 minutes 30 seconds West 44.77 feet;
North 51 degrees 30 minutes 20 seconds West 47.68 feet, and
North 55 degrees 53 minutes West 134.61 feet to the East line of Lodge
Street; as per deed to the City of Albany recorded November 17, 1976 in Book
2123 of deeds page 120.
THENCE along the said East line of Lodge Street, the following courses
and distances:
North 26 degrees 53 minutes 30 seconds East 159.95 feet, and
North 25 degrees 47 minutes 00 seconds East 83.31 feet to the division
line between Parcel D and Parcel C on said map;
THENCE along said division line, South 17 degrees 38 minutes 30 seconds
East 45.58 feet;
(CONTINUED)
THENCE continuing along said division line and the division line
between Parcel D and Parcel E, South 62 degrees 38 minutes 30 seconds East
206.09 feet to a point in the division line between Parcel D and Parcel E on
said map;
THENCE along said division line, the following courses and distances:
South 27 degrees 21 minutes 30 seconds West 154.84 feet, and
South 17 degrees 38 minutes 30 seconds East 19.72 feet to the division
line between Parcel D and Parcel A on said map;
THENCE along same, South 72 degrees 21 minutes 30 seconds West 34.11
feet, and
South 27 degrees 21 minutes 30 seconds West 50.85 feet to the point of
BEGINNING.
EASEMENT D-1
TOGETHER with an easement for the footings of the building constructed
upon Parcel D to project beyond the division line between Parcel D and Parcel E,
said footings to be constructed as shown on the Construction Contract except as
modified, changed, altered or redesigned to meet existing conditions.
EASEMENT D-2
TOGETHER with an easement for signs erected within the area (Level 51)
of the building constructed upon Parcel D to project beyond the division line
between Parcel D and Parcel E. The signs so erected shall meet the approval of
UDC.
EASEMENT D-7
SUBJECT to an easement for the footings of the building constructed
upon Parcel C, to project beyond the parcel limits of Parcel C into Parcel D,
near the southwest corner of Parcel C.
-2-
EASEMENT D-3
TOGETHER with an easement for exit onto a portion of Parcel E
designated in the Construction Contracts as the "East Plaza" an easement for
ingress and egress across said "East Plaza".
EASEMENT D-4
TOGETHER with an easement for roof projections of the building
constructed upon Parcel D to project beyond the division line between Parcel D
and Parcel E.
EASEMENT D-5
TOGETHER with an easement for the footings of the buildings to be
constructed upon Parcel D to project beyond the Parcel limits of Parcel D into
State Street and Lodge Street.
EASEMENT D-6
TOGETHER with an easement for the construction, operation, maintenance,
repair and replacement of an electric vault within the limits of Lodge Street
and/or State Street adjacent to Parcel D if such vault is required and approved
by UDC.
TOGETHER with the right to erect and maintain within the air space
covered by Easement C-1, mentioned in Exhibit "A" to that certain Restatement of
Agreement of Lease between UDC - Ten Eyck Development Corporation-II and Ten
Eyck Hotel Associates dated as of December 20, 1979, a portion of the Buildings
constructed upon the aforesaid Parcel D pursuant to the Lease.
-3-
EXHIBIT B
Legal Description - Garage
Description of Land
ALL that certain parcel of land in the City and County of Albany, State
of New York, comprising Parcel C on a certain map filed April 29, 1976 in the
Albany County Clerk's Office as Map No. 5197, filed in Drawer No. 168, said
parcel being more particularly bounded and described as follows:
BEGINNING at a point in the east line of Lodge Street at the northwest
corner of Parcel D on said map;
THENCE North 17 degrees 38 minutes 30 seconds West, along the East line
of Lodge Street, 2.92 feet;
THENCE North 27 degrees 21 minutes 30 seconds East, along the East line
of Lodge Street, 32.37 feet;
THENCE South 62 degrees 38 minutes 30 seconds East, along the East line
of Lodge Street, 1.11 feet;
THENCE North 25 degrees 47 minutes 00 seconds East, along the East line
of Lodge Street, 120.40 feet to a point in the South line of Pine Street;
THENCE South 64 degrees 44 minutes East, along the South line of Pine
Street, 129.35 feet;
THENCE South 79 degrees 36 minutes 30 seconds East, along the South
line of Pine Street, 9.25 feet to the division line between Parcels C and E on
said map;
THENCE along said division line South 27 degrees 21 minutes 30 seconds
West, 194.44 feet to the division line between Parcels C and D on said map;
THENCE North 62 degrees 38 minutes 30 seconds West, along said division
line 101.62 feet;
THENCE continuing along said division line North 17 degrees 38 minutes
30 seconds West, 45.58 feet to the point and place of BEGINNING.
EASEMENT C-1
TOGETHER with the right to have that volume of airspace over Parcel D
above an elevation of 104 feet 0 inches above Mean Sea Level (U.S.C.G.S.-1929
Datum) retained free of structures or other encumbrances to the free movement of
air and light within the following limits:
BEGINNING at a point in the south line of Parcel C hereinbefore
described, said point of beginning being more
EXHIBIT "A"
PAGE 1 of 7
particularly described as follows:
beginning at the point of intersection of the north line of State
Street with the west line of North Pearl Street;
thence N. 52 degrees 43' 30" W., along the north line of State Street,
173.45 feet;
thence N. 51 degrees 30' 20" W., along the north line of State Street,
47.68 feet;
thence N. 55 degrees 53' W., along the north line of State Street,
134.61 feet to a point in the east line of Lodge Street;
thence N. 26 degrees 53' 30" E., along the east line of Lodge Street,
159.95 feet;
thence N. 25 degrees 47' 00" E., along the east line of Lodge Street,
83.31 feet;
thence S. 17 degrees 38' 30" E., 45.58 feet to the first mentioned
point of beginning which point is the point of beginning of the parcel herein
described:
THENCE S. 27 degrees 21' 30" W., 10.0 feet;
thence S. 62 degrees 38' 30" E., 183.87 feet;
thence N. 27 degrees 21' 30" E., 10.0 feet to a point in the north line
of Parcel D;
thence N. 62 degrees 38' 30" W., along the north line of Parcel D,
183.87 feet to the point and place of beginning.
OCCUPYING on a horizontal plane at an elevation of 104 feet 0 inches
above Mean Sea Level (U.S.C.G.S.-1929 Datum) an area of 1838.7 square feet
(.04221 Acre).
EASEMENT C-2
TOGETHER with all rights to that volume of airspace over Parcel E above
an elevation of 67 feet 0 inches above Mean Sea Level (U.S.C.G.S.-1929 Datum)
having the following limits:
BEGINNING at the southeast corner of Parcel C hereinbefore described,
said point of beginning being more particularly described as follows:
beginning at the point of intersection of the north
EXHIBIT "A"
PAGE 2 of 7
line of State Street with the west line of North Pearl Street;
thence N. 52 degrees 43' 30" W., along the north line of State Street,
173.45 feet;
thence N. 51 degrees 30' 20" W., along the north line of State Street,
47.68 feet;
thence N. 55 degrees 53' W., along the north line of State Street,
134.61 feet to the east line of Lodge Street;
thence N. 26 degrees 53' 30" E., along the east line of Lodge Street,
159.95 feet;
thence N. 25 degrees 47' 00" E., along the east line of Lodge Street,
83.31 feet;
thence S. 17 degrees 38' 30" E., 45.58 feet;
thence S. 62 degrees 38' 30" E., 101.62 feet to the first mentioned
point of beginning which point is the point of beginning of the parcel herein
described:
THENCE N. 27 degrees 21' 30" E., 194.44 feet to a point in the south
line of Pine Street;
thence S. 79 degrees 36' 30" E., along the north line of Pine Street,
40.95 feet;
thence S. 63 degrees 31' E., along the south line of Pine Street, 25.92
feet;
thence S. 27 degrees 21' 30" W., 170.63 feet;
thence S. 17 degrees 38' 30" E., 10.13 feet;
thence S. 27 degrees 21' 30" W., 29.0 feet;
thence N. 62 degrees 38' 30" W., 72.25 feet to the point and place of
beginning.
OCCUPYING on a horizontal plane at an elevation of 67 feet 0 inches
above Mean Sea Level (U.S.C.G.S.-1929 Datum) an area of 13,438 square
feet (0.30849 Acre).
EASEMENT C-3
TOGETHER with the right to have that volume of airspace over Parcel E
above an elevation of 85 feet 0 inches above Mean Sea Level (U.S.C.G.S.-1929
Datum) retained free of structures or other encumbrances to the free
movement of air and light within the following limits:
EXHIBIT "A"
PAGE 3 of 7
BEGINNING at the southeast corner of Easement C-2 hereinbefore
described, said point of beginning being more particularly described as follows:
beginning at the point of intersection of the north line of State
Street with the west line of North Pearl Street;
thence N. 52 degrees 43' 30" W., along the north line of State Street,
173.45 feet;
thence N. 51 degrees 30' 20" W., along the north line of State Street,
47.68 feet;
thence N. 55 degrees 53' W., along the north line of State Street,
134.61 feet to the east line of Lodge Street;
thence N. 26 degrees 53' 30" E., along the east line of Lodge Street,
159.95 feet;
thence N. 25 degrees 47' 00" E., along the east line of Lodge Street,
83.31 feet;
thence S. 17 degrees 38' 30" E., 45.58 feet;
thence S. 62 degrees 38' 30" E., 173.87 feet to the first mentioned
point of beginning which point is the point of beginning of the parcel herein
described:
THENCE N. 27 degrees 21' 30" E., 29.0 feet;
thence N. 17 degrees 38' 30" W., 10.13 feet;
thence N. 27 degrees 21' 30" E., 170.63 feet to a point in the south
line of Pine Street;
thence S. 63 degrees 31' E., along the south line of Pine Street, 10.00
feet;
thence S. 27 degrees 21' 30" W., 166.64 feet;
thence S. 17 degrees 38' 30" E., 10.13 feet;
thence S. 27 degrees 21' 30" W., 33.14 feet;
thence N. 62 degrees 38' 30" W., 10.00 feet to the point and place of
beginning.
EXHIBIT "A"
PAGE 4 of 7
OCCUPYING on a horizontal plane at an elevation of 85 feet 0 inches
above Mean Sea Level (U.S.C.G.S.-1929 Datum) an area of 2098 square feet
(0.04816 Acre).
EASEMENT C-4
TOGETHER with the right to construct, operate, maintain or repair or
replace a stairway and elevator within that volume of space within Parcel E
below an elevation of 67 feet 0 inches above Mean Sea Level (U.S.C.G.S.-1929
Datum) having the following limits:
BEGINNING at the southeast corner of Easement C-2 hereinbefore
described, said point of beginning being more particularly described as follows:
beginning at the point of intersection of the north line of State
Street with the west line of North Pearl Street;
thence N. 52 degrees 43' 30" W., along the north line of State Street,
173.45 feet;
thence N. 51 degrees 30' 20" W., along the north line of State Street,
47.68 feet;
thence N. 55 degrees 53' W., along the north line of State Street,
134.61 feet to the east line of Lodge Street;
thence N. 26 degrees 53' 30" E., along the east line of Lodge Street,
159.95 feet;
thence N. 25 degrees 47' 00" E., along the east line of Lodge Street,
83.31 feet;
thence S. 17 degrees 38' 30" E., 45.58 feet;
thence S. 62 degrees 38' 30" E., 173.87 feet to the first mentioned
point of beginning which point is the point of beginning of the parcel herein
described:
THENCE N. 27 degrees 21' 30" E., 29.0 feet;
thence N. 62 degrees 38' 30" W., 8.83 feet;
thence S. 27 degrees 21' 30" W., 29.0 feet;
thence S. 62 degrees 38' 30" E., 8.83 feet to the point and place of
beginning.
OCCUPYING on a horizontal plane at an elevation of 67 feet 0 inches
above Mean Sea Level (U.S.C.G.S.-1929 Datum) an area of 256 square feet (0.00588
Acre).
EXHIBIT "A"
PAGE 5 of 7
EASEMENT C-5
TOGETHER with the right to construct, repair, replace and maintain
columns and other structural elements for the proposed parking structure to be
erected upon Parcel C hereinbefore described within that volume of space within
Parcel C below an elevation of 67 feet 0 inches above Mean Sea Level (U. S. C.
G. S. - 1929 Datum) having the following limits:
BEGINNING at the southeast corner of Parcel C hereinbefore described,
said point of beginning being more particularly described as follows:
beginning at the intersection of the north line of State Street with
the west line of North Pearl Street;
thence N. 52 degrees 43' 30" W., along the north line of State Street,
173.45 feet;
thence N. 51 degrees 30' 20" W., along the north line of State Street,
47.68 feet;
thence N. 55 degrees 53' W., along the north line of State Street,
134.61 feet to the east line of Lodge Street;
thence N. 26 degrees 53' 30" E., along the east line of Lodge Street,
159.95 feet;
thence N. 25 degrees 47' 00" E., along the east line of Lodge Street,
83.31 feet;
thence S. 17 degrees 38' 30" E., 45.58 feet;
thence S. 62 degrees 38' 30" E., 101.62 feet to the first mentioned
point of beginning which point is the point of beginning of the parcel herein
described:
THENCE N. 27 degrees 21' 30" E., 183.50 feet;
thence S. 62 degrees 38' 30" E., 7.5 feet;
thence S. 27 degrees 21' 30" W., 57.0 feet;
thence N. 62 degrees 38' 30" W., 6.0 feet;
thence S. 27 degrees 21' 30" W., 126.5 feet;
thence N. 62 degrees 38' 30" W., 1.5 feet to the point and place of
beginning.
EXHIBIT "A"
PAGE 6 of 7
OCCUPYING on a horizontal plane at an elevation of 67 feet 0 inches
above Mean Sea Level (U. S. C. G. S. - 1929 Datum) an area of 617.25 square feet
(0.01417 Acre).
EASEMENT C-6
TOGETHER with an easement for the footings of the building constructed
upon Parcel C to project beyond the parcel limits of Parcel C into Pine Street
and Lodge Street.
TOGETHER with an easement in favor of the Equitable Life Assurance
Society of the United States and the Equitable Life Mortgage and Realty
Investors, their successors and assigns, as set forth in Easement and Seven
Party Agreement dated December 20, 1979 and duly recorded in the office of the
Clerk of the County of Albany on January 4, 1980, in Liber 2181 of Deeds, at
page 775.
SUBJECT to the right of Tenant, as the tenant under a certain
Restatement of Lease Agreement ("Ground Lease") dated as of December 20, 1979
between UDC-Ten Eyck Development Corporation-III, as Landlord, and Ten Eyck
Hotel Associates, as Tenant, to be recorded simultaneously herewith to erect and
maintain within the airspace covered by the foregoing Easement C-1 a portion of
the Buildings to be constructed pursuant to the Ground Lease as located upon
completion thereof.
EXHIBIT "A"
PAGE 7 of 7
ACKNOWLEDGMENT, ESTOPPEL CERTIFICATE
AND AGREEMENT
(Lancaster, PA-East)
THIS ACKNOWLEDGMENT, ESTOPPEL CERTIFICATE AND AGREEMENT ("Agreement")
is executed and delivered as of this 14th day of November, 2002, among JOYCE A.
BRISTOW, as Personal Representative of the estate of Dorothy H. Herr,
("Lessor"); MERRILL LYNCH MORTGAGE LENDING, INC., a Delaware corporation
("Lender") and AMI OPERATING PARTNERS, L. P., a Delaware limited partnership
("Lessee").
RECITALS
A. Lessor is the lessor under the ground lease described on
Exhibit "A" hereto between Lessor, as lessor, and Lessee, as lessee, affecting
the real property ("Land") and improvements ("Improvements") known as and
located at 521 Greenfield Road, Lancaster, Pennsylvania 17601 more particularly
described on Exhibit "B" hereto (the Land and Improvements, collectively, the
"Leased Premises"; such lease, as so amended and assigned, and as it may be
further amended and assigned from time to time, the "Lease");
B. Lessee is now in the process of obtaining from Lender a
refinancing loan (the "Loan") to be secured by, among other things, a mortgage
and collateral assignment of all of Lessee's interests under the Lease;
C. In order to facilitate the transactions described herein,
Lessor has agreed to enter into this Agreement, without which Lender would not
make the Loan.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00),
and for other good and valuable consideration, the receipt and legal sufficiency
of which are hereby acknowledged, Lessor agrees as follows:
1. Without implying herein that Lessor's acknowledgment or
consent may be required under the Lease, Lessor does hereby acknowledge (a) the
granting by Lessee of a leasehold mortgage ("Leasehold Mortgage") to Lender on
Lessee's interests in the Leased Premises (b) the pledge of the ownership
interests in the Lessee by the holder or holders of all ownership interests in
Lessee (i.e. the mezzanine borrower) to the applicable Merrill Lynch mezzanine
lending entity (together with its successors and assigns, the "Mezzanine
Lender") as security for a mezzanine loan (the "Mezzanine Loan") and the right
of Mezzanine Lender to foreclose on such ownership interests in the event of a
default under the Mezzanine Loan and (c) the address for delivery of notices to
Lender and Mezzanine Lender as set forth below. Upon the mortgaging of the
Leased Premises, the pledge of the ownership interests in Lessee pursuant to the
Mezzanine Loan and the execution of this Agreement, Lessor acknowledges and
agrees that both Lender and Mezzanine Lender shall be deemed to be, and shall
have all of the rights and protections granted to the "Servicer" under the
Lease.
2. Lessor and Lessee hereby certify to Lender that: (a) Lessor
is the current owner of (i) the fee interest in the Leased Premises, and (ii)
all of the rights and benefits of "Lessor" under the Lease; (b) all rents and
other sums due and owing under the Lease as of the date hereof are current and
not in arrears; (c) there exists no uncured default under the Lease by Lessor or
Lessee; (d) the Lease is in full force and effect; (e) the current renewal term
of the Lease expires June 30, 2024, and Lessee has remaining two (2) 20-year
options to renew the term; (f) all of the material obligations under the Lease
which have accrued prior to the date of this Agreement have been fully
performed; and (g) Exhibit "A" lists the only instruments governing Lessor's and
Lessee's rights and obligations with respect to the Leased Premises.
3. The annual rental for the current period (08/01/99 through
07/30/04) is $67,456, payable $5,621,34 per month. Annual rental shall next be
adjusted in August, 2004, to be effective for the 5-year period beginning
08/01/04. Rent is due in advance on the 1st day of each month. Rent is paid
through November, 2002 and the next rent payment is due on December 1, 2002.
4. Lessor confirms that, notwithstanding any provisions of the
Lease to the contrary, in the event of casualty to the Improvements on the
Leased Premises, insurance proceeds in respect of such casualty shall be paid to
and held by Lender for Lender's disbursement to Lessee for repair and/or
reconstruction of the Improvements.
5. In accordance with the provisions of Section 13 of the Lease,
Lessor has at all times complied with the covenants regarding non-competition
contained therein.
6. Unless otherwise notified by Lender or Mezzanine Lender,
copies of any notices to Lender or Mezzanine Lender, as the case may be, shall
be sent to the following addresses:
If to Lender:
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, New York 10080
Attn: Steve Glassman
Facsimile: (212) 738-1013
Attn: John Gluszak
Facsimile: (212) 738-2053
With a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, New York 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
If to Mezzanine Lender:
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, New York 10080
Attn: Steven Glassman
Facsimile: (212) 738-1013
Attn: John Katz
Facsimile: (212) 738-8094
With a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, New York 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
7. In the event Lender shall acquire, assume or succeed to
Lessee's interest under the Lease, then in such event, so long as Lender is not
in default in the performance of any of the terms, covenants or conditions of
the Lease on Lessee's part to be performed, Lender's possession under the Lease
and Lender's rights and privileges thereunder, or under any extensions or
renewals thereof which may be effected in accordance with any option therefor
contained in the Lease, shall not be diminished or interfered with by Lessor,
and Lender's occupancy shall not be disturbed by Lessor during the term of the
Lease or any such extensions or renewals thereof.
8. Lender understands and agrees that Lessor is neither a party
to the Loan nor are Lessor's fee title and Lessor's interest in the Lease
subordinate to the security interest of the Leasehold Mortgage on the lessee's
interest in the Lease.
9. Lessor's Encumbrances. Lessor's fee simple interest in the
Leased Premises and the Lessor's interest under the Lease are not encumbered.
10. Lessor hereby agrees that either Lender or Mezzanine Lender
shall have the right, pursuant to the terms of the Lease, to exercise the
remaining two (2) options to renew the term of the Lease, if the Lessee shall
fail to do so, whether or not an event of default under the Leasehold Mortgage
shall have occurred, provided that Lender or Mezzanine Lender shall do so
strictly in accordance with the Lease. In the event Lender or Mezzanine Lender
does so exercise any option to renew, Lender or Mezzanine Lender shall become
obligated with the Lessee for the performance of the obligations set forth in
the Lease.
11. Lessor hereby agrees that for so long as any sums in respect
of the Loan remain outstanding, it shall not, without the prior written consent
of both Lender and Mezzanine Lender: (a) notwithstanding any provisions of the
Lease to the contrary, accept, consent to or join in the execution of any
instrument purporting to (i) effect the termination, prior to June 30, 2024, of
the Lease by Lessee, or (ii) amend or modify the Lease with respect to the term,
amounts payable by
the Lessee thereunder, the protections afforded to Lender as a leasehold
mortgagee thereunder or other material non-monetary modifications and shall give
Lender written notice of any other proposed modification thirty (30) days prior
to the effective date; (b) permit or accept the exercise by Lessee of any right
it may have to purchase the Leased Premises without having first obtained
Lender's written consent thereto. To the extent Lender shall have approved any
such exercise by Lessee of such right, the conveyance instrument executed in
connection therewith shall expressly provide for the preservation of the
leasehold under the Lease, and for the non-merger of the fee and leasehold
estates in the Leased Premises.
12. Lessor acknowledges that as between Lessor and Lender, its
nominee or a purchaser at a foreclosure or other sale, the Lease shall not be
deemed to be terminated notwithstanding the rejection of the Lease by the Lessee
thereunder or its representative in any proceeding under the Bankruptcy Code (11
U. S. C. Section 101 et seq.) (the "Bankruptcy Code") or any other insolvency
law. Lender shall be deemed to have satisfied its obligation to commence
foreclosure proceedings by asserting a claim in a proceeding under the
Bankruptcy Code or other insolvency proceeding, and Lender shall not be deemed
to have failed to satisfy such obligation if Lender is unable to do so as a
result of the provisions of Section 362 of the Bankruptcy Code or similar
provisions of any other insolvency law, provided all arrearages and rents are
paid within ninety (90) days of the institution of the bankruptcy proceeding.
13. Lessor acknowledges that Lender and Mezzanine Lender have
requested that Lessor execute this Agreement in connection with the Loan and the
Mezzanine Loan, and that Lender has agreed to make the Loan and Mezzanine Lender
has agreed to make the Mezzanine Loan in reliance on the matters set forth
herein.
14. This Agreement may be executed in counterparts, and each such
counterpart shall constitute an original.
15. Except as amended hereby, the Lease and all the terms,
covenants and conditions thereof remain unchanged and in full force and effect,
and the Lease, as amended hereby, is hereby ratified and confirmed in all
respects.
16. The parties agree that the protections and rights granted to
the Lender and Mezzanine Lender by this Agreement shall also apply to any other
prospective mortgagee of Lessee's interest in the Lease or any other prospective
pledgee of the ownership interests in Lessee, provided that the name and address
of such lender is provided in writing to Lessor, and such other lender shall be
deemed the "Servicer" or the "Leasehold Mortgagee" for the purposes of this
Agreement and for the purposes of the Lease.
17. This Agreement shall be binding upon, and may be relied upon
by, the parties, their successors and assigns, and the terms hereof shall inure
to the benefit of the parties, their successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed Agreement as of
the date and year first above written.
LENDER: LESSOR
MERRILL LYNCH MORTGAGE
LENDING, INC., a
Delaware corporation
By: __________________________ /s/ Joyce A. Bristow
--------------------
Name: Joyce A. Bristow, as Personal
Title: Representative of the state of
Dorothy H. Herr
MEZZANINE LENDER: LESSEE:
MERRILL LYNCH MORTGAGE AMI OPERATING PARTNERS, L.P.,
LENDING, INC., a Delaware limited partnership
a Delaware corporation
By: _________________________ By: ________________________________
Name: Name:
Title: Title:
[Notarizations commence on following page]
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
} ss.
County of Solano
On Nov 14, 2002 before me, Linda Bergen
Date (Name and Title of Officer (e.g. " Jang Dee, Notary
Public")
personally appeared Joyce A. Bristow
---------------------
Name(s) of Signer(s)
[ ] personally known to me
[X] proved to me on the basis of satisfactory
evidence
to be the person whose name is/ subscribed
to the within instrument and acknowledged to
me that she executed the same in her
authorized capacity. and that by her
signature on the instrument the person. or
the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
[SEAL OF LINDA BERGEN] /s/ Linda Bergen
--------------------------
Place Notary Seal Above Signature of Notary Public
___________________________________ OPTIONAL___________________________________
Though the information below is not required by law, it may prove valuable to
persons relying on the document and could prevent fraudulent removal and
reattachment of this form to another document.
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document: Acknowledgement, Estoppel Cert + agreement
Document Date: Nov 14, 2002 Number of Pages: 7
Signer(s) Other Than Named Above: Merrill Lynch, Mtg, ami operating partners
L.P.
CAPACITY (IES) CLAIMED BY SIGNER
Signer's Name: ________________________________________ RIGHT THUMBPRINT
[X] Individual OF SIGNER
[ ] Corporate Officer -- Title(s):_____________________ Top of thumb here
[ ] Partner -- [ ] Limited [ ] General
[ ] Attorney in Fact
[ ] Trustee
[ ] Guardian or Conservator
[ ] Other:_____________________________________________
Signer is Representing:________________________________
STATE OF _______ )
) ss:
COUNTY OF ______ )
On this _____ day of ______, 2002, before me personally appeared
_________ to me known, who, being by me duly sworn, did depose and say that he
is the ________ of Merrill Lynch Mortgage Lending, Inc., a Delaware corporation,
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of the Board of Directors of the corporation.
______________________________________
Notary Public, State of _____ at Large
Print Name: __________________________
STATE OF _______ )
) ss:
COUNTY OF ______ )
On this _____ day of ______, 2002, before me personally appeared
_________ to me known, who, being by me duly sworn, did depose and say that he
is the ________ of Merrill Lynch Mortgage Lending, Inc., a Delaware corporation,
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of the Board of Directors of the corporation.
______________________________________
Notary Public, State of _____ at Large
Print Name: __________________________
[Notarizations continued on following page]
STATE OF _______ )
) ss:
COUNTY OF ______ )
The foregoing instrument was acknowledged before me this _____ day of
_____, 2002 by Joyce A. Bristow, as Personal Representative of the estate of
Dorothy H. Herr.
Personally Known ______ OR Produced Identification _______
Type of Identification Produced ___________________
______________________________________
Print or Stamp Name:
Notary Public, State of _____ at Large
Commission No.:
Commission Expires:
STATE OF _______ )
) ss:
COUNTY OF ______ )
On this _____ day of _____, 2002, before me personally appeared _____
to me known, who being by me duly sworn, did depose and say that he is the _____
of AMI Operating Partners, L. P., described in and which executed the foregoing
instrument; and that he/she signed his/her name thereto by authority of the
Board of Directors of _____.
______________________________________
Notary Public, State of _____ at Large
Print Name:___________________________
EXHIBIT "A"
LEASE
a. Lease Agreement, dated January 30, 1969, between Paul A. Herr
and Dorothy H. Herr, as lessor, Republic Motor Inns, Inc., as
lessee, and American Motor Inns, Inc., as guarantor, recorded
with the Recorded of Deeds, Lancaster, PA in Record Book W59,
Page 755.
b. Addendum dated January 16, 1971 and recorded with the Recorder
of Deeds, Lancaster, PA in Record Book R60, Page 233,
c. Amendment dated March 15, 1985 and recorded with the recorder
of Deeds, Lancaster, PA in Record Book W91, Page 434,
d. Amendment to Lease dated December 20, 1986 and recorded with
the Recorder of Deeds, Lancaster, PA in Record Book Y96, Page
660,
e. Assignment of Lease and Indemnification Agreement, December
23, 1986, between Republic Motor Inns, Inc. and AMI Operating
Partners, LP, recorded with the Recorder of Deeds, Lancaster,
PA in Record Book Y96, Page 669,
f. Assignment and Assumption of Lessee's Interest in Ground
Lease, dated November 24, 1998, between AMI Operating
Partners, LP and Lodgian AMI Inc., Page 638, and
g. Acknowledgment, Estoppel Certificate and Agreement, dated
November 24, 1998, between Dorothy H. Herr and AMI Operating
Partners LP, recorded with the Recorder of Deeds, Lancaster,
PA in Record Book 6045, Page 1.
EXHIBIT "B"
LEASED PREMISES
GROUND LESSOR ESTOPPEL
(MEMPHIS FRENCH QUARTER HOTEL)
WHEREAS, BILL SUTTON and MARTHA SUTTON, having an address at 1405
Yucca, McAllen, Texas 78504 (hereinafter "Landlord"), are the holders of the
landlord's interest and IMPAC HOTELS I, LLC, a Georgia limited liability
company, having an address at Two Live Oak Center, 3445 Peachtree Road, Suite
700, Atlanta, Georgia 30326 (hereinafter "Tenant") is the holder of the tenant's
interest, respectively, in, to and under that certain lease and amendments
thereto and assignments thereof (the "Lease") described on Exhibit A annexed
hereto and made a part hereof, which Lease covers the land and improvements
therein described (the "Premises"),
WHEREAS, Tenant is desirous of obtaining from Merrill Lynch Mortgage
Lending, Inc., in its capacity as mortgage lender and mezzanine lender (together
with its respective successors and assigns, collectively, "Lender"), having an
office at 4 World Financial Center, New York, New York, 10080, a loan (the
"Loan") secured by, among other things, a first leasehold mortgage upon Tenant's
interest as tenant in the Lease (the "Leasehold Mortgage");
WHEREAS, Lender is unwilling to make the Loan unless Landlord executes
an estoppel certificate as required under the Lease;
NOW THEREFORE, Landlord hereby certifies to Lender as follows:
1. Landlord is the Landlord under the Lease.
2. The Lease constitutes the entire agreement between the
Landlord and the Tenant thereunder and has not been further modified or amended.
3. The Lease is in full force and effect.
4. As of the date hereof, no basic rent or additional rent is due
and payable from Tenant under the lease. The amount of the monthly basic rent is
$1,600.00 and there is no additional rent. The rent due for the period _____
through ______ in the amount of $ _____ has been paid by Tenant.
5. The commencement date for the Lease was April 26, 1972 and the
expiration date for the current lease term is September 30, 2038.
6. To Landlord's knowledge, the Tenant under the Lease is not in
default thereunder.
7. Unless otherwise notified by Lender, copies of any notices to
Lender shall be sent to the following address:
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, NY 10080
Attention: Steven Glassman
Facsimile: (212) 738-1013
Attention: John Gluszak
Facsimile: (212) 738-2053
Attention: John Katz
Facsimile: (212) 738-8094
with a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, NY 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
8. Landlord acknowledges that Lender has requested that Landlord
execute this Agreement in connection with the Loan, and that Lender has agreed
to make the Loan in reliance on the matters set forth herein.
This certificate and the representations made herein shall inured to
the benefit to Lender, its successors and assigns and shall be binding on the
Landlord, its successors and assigns.
Executed this 11 day of Nov, 2002.
LANDLORD:
By: /s/ Bill Sutton
---------------------
Bill Sutton
By: /s/ Martha Sutton
---------------------
Martha Sutton
[Acknowledgement on Following Page]
State of Texas
County of Hidalgo
On this 11 day of Nov, 2002, personally appeared the above named Bill Sutton and
Martha Sutton, and they each acknowledged the foregoing instrument to be their
free act and deed.
Before me, [ILLEGIBLE]
Notary Public
[SEAL OF KRISTINA K. MION]
EXHIBIT A
That certain Lease dated April 26, 1972 between J. Murry Davis and wife, Mary
Alice Davis as Lessor and W. H. Welch, Jr., Meredith L. McCullar, Fred Don
Alfonso and Ernie Barrasso, as Lessee, recorded as Instrument No. H3 3366 in the
Register's Office of Shelby County, Tennessee (the "Register's Office"); as
amended by Agreement Assigning, Modifying and Extending Lease and Granting
Certain Rights, dated as of February 29, 1976 between J. Murry Davis as Lessor
and Waymon H. Welch, Jr. and Waymon H. Welch Sr. as Existing Lessee and The
Group, Inc. as New Lessee, recorded in said Register's Office as Instrument No.
L1 8178; as amended by Agreement Modifying and Extending Lease dated January 19,
1983 between Bill Sutton and Martha Sutton as Lessor and J. Garnett Murphy as
Lessee, recorded in said Register's Office as Instrument No. U6 8978; as amended
by Lease Modification Agreement dated June 4, 1983 by Bill Sutton and Martha
Sutton as Lessor and J. Garnett Murphy as Lessee, recorded in said Register's
Office as Instrument No. U3 3420; as amended by Lease Modification and Extension
Agreement dated October 6, 1983 between Martha Sutton as Lessor and M. K.
Partners, a partnership composed of J. Garnett Murphy and Ronald L. Kirkpatrick
as Lessee, recorded in said Register's Office as Instrument No. U6 8978; as
amended by Warranty Deed dated November 29, 1983 by M. K. Partners to French
Quarter Inn of Memphis, recorded in said Register's Office as Instrument No. U8
0878; as amended by Assignment of Ground Leases dated January 15, 1991 by
Middlesex Development Corporation, a California corporation d/b/a "French
Quarter Inn of Memphis", as Assignor and Memphis Lodging Associates, Inc., a
Florida corporation as Assignee, recorded in said Register's Office as
Instrument No. CA 3996; as assigned by Assignment of Ground Leases dated March
12, 1997 by Memphis Lodging Associates, Inc., a Florida corporation, as Assignor
to Impac Hotels, I. LLC, a Georgia limited liability company, as Assignee,
recorded in said Register's Office as Instrument No. GM 0294; and further
amended by Amendment of Ground Lease dated September 17, 1997, by Bill Sutton
and Martha Sutton, as Landlord and Impac Hotels, I, LLC, a Georgia limited
liability company, as Tenant, recorded in said Register's Office as Instrument
No. HC 9439.
GROUND LESSOR ESTOPPEL
(MEMPHIS FRENCH QUARTER HOTEL)
WHEREAS, HORACE PROCTOR and ANN PROCTOR, having an address at 6555
Brunswick Road, Arlington, Tennessee 38802 (hereinafter "Landlord"), are the
holders of the landlord's interest and IMPAC HOTELS I, LLC, a Georgia limited
liability company, having an address at Two Live Oak Center, 3445 Peachtree
Road, Suite 700, Atlanta, Georgia 30326 (hereinafter "Tenant") is the holder of
the tenant's interest, respectively, in, to and under that certain lease and
amendments thereto and assignments thereof (the "Lease") described on Exhibit A
annexed hereto and made a part hereof, which Lease covers the land and
improvements therein described (the "Premises").
WHEREAS, Tenant is desirous of obtaining from Merrill Lynch Mortgage
Lending, Inc., in its capacity as mortgage lender and mezzanine lender (together
with its respective successors and assigns, collectively, "Lender"), having an
office at 4 World Financial Center, New York, New York, 10080, a loan (the
"Loan") secured by, among other things, a first leasehold mortgage upon Tenant's
interest as tenant in the Lease (the "Leasehold Mortgage");
WHEREAS, Lender is unwilling to make the Loan unless Landlord executes
an estoppel certificate as required under the Lease;
NOW THEREFORE, Landlord hereby certifies to Lender as follows:
1. Landlord is the owner of the fee simple estate in the
Premises, subject to covenants, easements and restrictions of record, and is the
Landlord under the Lease.
2. The Lease constitutes the entire agreement between the
Landlord and the Tenant thereunder and has not been further modified or amended.
3. The Lease is in full force and effect.
4. The Tenant has taken possession of the ground on a rent-paying
basis.
5. As of the date hereof, no basic rent or additional rent is due
and payable from Tenant under the lease. The amount of the monthly basic rent is
$1,000.00 and there is no additional rent. The rent due for the period ______
through ______ in the amount of $ ______ has been paid by Tenant.
6. The commencement date for the Lease was August 24, 1972 and
the expiration date for the current lease term is September 30, 2038.
7. To the best of Landlord's knowledge, all material obligations
under the Lease which have accrued prior to the date hereof have been fully
performed.
8. To the best of Landlord's knowledge, neither the Landlord nor
the Tenant under the Lease is in default under any of the terms, covenants or
provisions of the Lease and the
Landlord knows of no event which, but for the passage of time or the giving of
notice, or both, would constitute an event of default under the Lease by the
Landlord or the Tenant thereunder.
9. Upon the Recording of the Leasehold Mortgage, Landlord hereby
recognizes Lender as a Leasehold Mortgagee as defined in Section 2(h) of the
September 24, 1997 Amendment of Ground Lease, for all purposes under the Lease.
10. All of the Leasehold Mortgage provisions contained in the
Lease, including but not limited to those contained in the September 24, 1997
Amendment of Ground Lease, and all other provisions inuring to the benefit of
Leasehold Mortgagees or their successors and assigns are hereby incorporated
into this estoppel by reference and restated and confirmed by Landlord for the
benefit of Lender, its successors and assigns.
11. Unless otherwise notified by Lender, copies of any notices to
Lender shall be sent to the following address:
Merrill Lynch Mortgage Lending, Inc.
c/o Merrill Lynch & Co.
Global Principal Investments
4 World Financial Center
New York, NY 10080
Attention: Steven Glassman
Facsimile: (212) 738-1013
Attention: John Gluszak
Facsimile: (212) 738-2053
Attention: John Katz
Facsimile: (212) 738-8094
with a copy to:
Sidley Austin Brown & Wood, LLP
787 Seventh Avenue
New York, NY 10019
Attn: Alan S. Weil, Esq.
Facsimile: (212) 839-5599
12. Landlord acknowledges that Lender has requested that Landlord
execute this Agreement in connection with the Loan, and that Lender has agreed
to make the Loan in reliance on the matters set forth herein.
13. To the best of Landlord's knowledge, neither the Landlord nor
the Tenant has commenced any action or given or received any notice for the
purpose of terminating the Lease.
14. To the best of Landlord's knowledge, there are no offsets or
defenses to the payment of the rent or other sums payable under the Lease.
This certificate and the representations made herein shall inure to the
benefit of Lender, its successors and assigns and shall be binding on the
Landlord, its successors and assigns.
[Signatures On Following Page]
Executed this _____ day of _______, 2002.
LANDLORD:
By: ___________________________________
Horace Proctor
By: ___________________________________
Ann Proctor
[Acknowledgement on Following Page]
State of Tennessee
County of Shelby
On this _____ day of _____, 2002, personally appeared the above named Horace
Proctor and Ann Proctor, and they each acknowledged the foregoing instrument to
be their free act and deed.
Before me,_______________________
Notary Public
EXHIBIT F
ACCEPTABLE FRANCHISORS
Exhibit F
EXHIBIT F
Acceptable Franchisors & Franchise Names
- ------------------------------------------------------
TIER 1
- ------------------------------------------------------
Six Continents Crowne Plaza
Hilton Hotels Corp. Hilton
Hilton Hotels Corp. Doubletree
Hilton Hotels Corp. Homewood Suites
Starwood Hotels & Resorts Weslin
Starwood Hotels & Resorts Sheraton
Starwood Hotels & Resorts W
US Franchise Systems, Inc. Hawthorn
Marriott International, Inc. Marriott
Marriott International, Inc. Renaissance
Marriott International, Inc. Courtyard
Marriott International, Inc. Residence Inn
Wyndham International Wyndham Hotel
Carlson Hotels Worldwide Radisson
- ---------------------------------------------------------
TIER 2 (WITH FOOD AND BEVERAGE)
- ---------------------------------------------------------
Six Continents Holiday Inn
Six Continents Holiday Inn Select
Six Continents Holiday Inn SunSpree Resort
Hilton Hotels Corp. Hilton Garden Inn
Choice Hotels International Clarion
Best Western International, Inc. Best Western
Cendant Corporation Ramada
Starwood Hotels & Resorts Four Points
Choice Hotels International Quality
Wyndham International Wyndham Gardens
- ---------------------------------------------------------
TIER 3 (WITHOUT FOOD AND BEVERAGE
- ---------------------------------------------------------
Six Continents Holiday Inn Express
Hilton Hotels Corp. Hampton Inn
Marriott International, Inc. Fairfield
Choice Hotels International Comfort Inn
Choice Hotels International Comfort Suites
I-1
EXHIBIT G
[RESERVED]
Exhibit G
EXHIBIT H
CAPITAL IMPROVEMENTS
Exhibit H
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- -----------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS
TO BE
COMPLETED
PROPERTY WITHIN 6
# CHAIN/NAME CITY STATE MONTHS PURPOSE
- -----------------------------------------------------------------------------------------------------------------------------------
0220 Holiday Inn Dothan AL $ 0
- -----------------------------------------------------------------------------------------------------------------------------------
0230 Hampton Inn Dothan AL $ 0
- -----------------------------------------------------------------------------------------------------------------------------------
0240 Holiday Inn Gadsden AL $ 164,600 Immediate Needs
Express Identified in the EMG
report: ADA accessibility $2,600;
Foundation and sidewalk settlement on
NE side of Bldg. D, $1,500, Asphalt
repair overlay $142,500; Roof
covering, built-up system replacement
on Building D, $18,000.
- -----------------------------------------------------------------------------------------------------------------------------------
0210 Holiday Inn Sheffield AL $ 6,000 Immediate Needs:
$6,000 of ADA
accessibility upgrades.
- -----------------------------------------------------------------------------------------------------------------------------------
0505 Courtyard Bentonville AR $ 0
by Marriott
- -----------------------------------------------------------------------------------------------------------------------------------
0560 Residence Inn Little Rock AR $ 0 EMG PSA notes that
- -----------------------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
YR 1 REPAIRS
TO BE
COMPLETED
PROPERTY PRIOR TO FIRST
# ANNIVERSARY PURPOSE
- -------------------------------------------------------------------------------------------
0220 $ 0
- -------------------------------------------------------------------------------------------
0230 $ 74,530 Common area, carpet ($1080)
Guestroom: carpet (limited service) ($45,200)
Guestroom: soft goods (limited service)
($28,250)
- -------------------------------------------------------------------------------------------
0240 $ 60,750 Roof covering, built-up system replacement
($35,000)
HVAC, thru-the-wall units (older units) ($9,913)
DHW heaters, > 150 gal. Building D ($3,500)
Guestroom: carpet ($9,400)
Guestroom: paint and wallcovering ($2,938)
- -------------------------------------------------------------------------------------------
0210 $ 136,162 Exterior walls, painting & coating ($40,200)
HVAC, thru-the-wall units ($10,238)
Elevator, machinery ($60,000)
Guestroom: carpet ($20,100)
Commercial laundry: washers ($5,625)
- -------------------------------------------------------------------------------------------
0505 $ 0
- -------------------------------------------------------------------------------------------
0560 $ 0
- -------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
the last lifesafety
service/inspection was
March, 2000. Need to
confirm date of last
inspection
- ------------------------------------------------------------------------------------------------------------------------------------
0850 Holiday Inn East CT $ 1,000 Immediate Needs: $70,500 Asphalt pavement ($9,000)
Hartford $1,000 to repair a Rooftop package unit per ton
leaking hydraulic ($8,000) Elevator, machinery
elevator. ($19,000) Guestroom: soft
goods ($32,500) Commercial
kitchen: ice machine ($2,000)
- ------------------------------------------------------------------------------------------------------------------------------------
1168 Hampton Inn Pensacola FL $ 0 $ 0
- ------------------------------------------------------------------------------------------------------------------------------------
1113 Holiday Inn Pensacola FL $ 30,000 Immediate Needs: $ 0
Express replace the roof on
the building at the
southwest corner of
the property adjacent
to the "L"-shaped
building due to leaks
and ponding, $30,000.
- ------------------------------------------------------------------------------------------------------------------------------------
1116 Holiday Inn Pensacola FL $ 87,351 Engineering Report $ 0
(University Immediate Needs: ADA
Mall) Accessibility $10,700,
Roof covering
replacement $45,401;
Soffits
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
replacement/repair
$7,000; Mansard
roofing shingles
replacement $2,250;
Bay window replacement
and lounge restoration
$20,000; Down unit
restoration $3,000.
- ------------------------------------------------------------------------------------------------------------------------------------
1108 Crowne West Palm FL $ 17,400 Immediate Needs: $ 0
Plaza Beach Damaged hollow metal
exterior doors to be
replaced, $2,400;
Repair leaks at
lobby skylights
$10,000; Replace
insulation at roof
top piping for the
chilled water,
$5,000.
- ------------------------------------------------------------------------------------------------------------------------------------
1132 Holiday Inn Winter FL $ 0 $ 0
Haven
- ------------------------------------------------------------------------------------------------------------------------------------
1212 Courtyard Atlanta GA $ 186,950 Engineering Report $ 0
by Marriott Immediate Needs:
$108,600 guestroom
carpet replacement;
$63,800 guestroom
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
paint and
wallcovering
replacement;
$15,000 in Lobby
case good and
furniture
replacement.
- ------------------------------------------------------------------------------------------------------------------------------------
1206 Holiday Inn Brunswick GA $ 39,513 Immediate Repair needs $ 418,840 Asphalt pavement (seal coat
are 3,100 sq.ft. of over term)($8,890)
Sidewalk Concrete Curbing, concrete ($2,500)
Repair, $7,813; Swimming pool equipment
Kitchen and laundry ($4,000)
floor tile repairs to Swimming pool relining
prevent tripping ($3,500)
hazards, $6,500; and, Exterior walls, EIFS minor
Guestroom bathroom tub patching, cleaning, caulking
surroundings need and recoating ($54,000)
replacement to due Common area floors,
improper prepping for carpet-lobby,
refinishing, 126 need meeting rooms,
rooms, $25,200. rest. & lounge ($22,770)
Guestroom: carpet (full
service)($75,600)
Guestroom: soft goods (full
service)(newer)($13,300)
Guestroom: television sets
(older) ($22,880)
Guestroom: case goods &
furniture (full
service-older) ($105,600)
Guestroom: soft goods (full
service) (older) ($30,800)
Commercial kitchen: range
($8,500)
Commercial kitchen:
refrigerator ($4,500)
Commercial kitchen: walk in
cooler/freezer ($28,500)
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
Guest laundry equipment
($1,000)
Ice machines ($4,000)
Lobby: case goods & furniture
($13,500)
Meeting room: case goods
& furniture ($15,000)
- ------------------------------------------------------------------------------------------------------------------------------------
1255 Holiday Inn Marietta GA $0 Engineering Report $119,600 Asphalt pavement (scal coat
(hotel & references on-going over term, striping, minor
suites) capital construction repair)($27,000)
and significant room Rooftop package unit per
renovations. ton ($24,000)
Guestroom: soft goods
(full service)($68,600)
- ------------------------------------------------------------------------------------------------------------------------------------
1280 Fairfield Valdosta GA $0 $ 78,465 Asphalt pavement (seal coat
Inn over term) ($5,565)
Common area floors, carpet
($2,700)
Guestroom: carpet (limited
service)($43,200)
Guestroom: soft goods
(limited service) ($27,000)
- ------------------------------------------------------------------------------------------------------------------------------------
1285 Holiday Inn Valdosta GA $0 $237,850 Asphalt pavement (seal coat
over term) ($7,700)
Roof covering, rubber
membrane ($63,600)
Roof covering, metal
($7,200)
Common area floors, carpet
($18,900)
Rooftop package unit per ton
($30,400)
Hot and cold water
distribution ($1,500)
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
Guestroom: carpet (limited
service) ($66,800)
Guestroom: soft goods
(limited service) ($41,750)
- ------------------------------------------------------------------------------------------------------------------------------------
1840 Crowne Cedar IA $ 401,000 Immediate Needs: $0
Plaza Rapids Repair leaks in the
pool skylight $1,000;
Metal Frames of Window
units to be adjusted,
seals replaced and/or
caulked to prevent
leaks $40,000;
Replacement of a fire
damaged hot water
boiler/storage tank
$150,000; Replace
obsolete and
malfunctioning
components of the fire
monitoring panel and
related alarm system
components $200,000;
Replace in adequate
kitchen range hood
fire suppression
systems $10,000.
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
1310 Holiday Inn Rolling IL $ 15,000 Immediate Needs: $ 396,040 ADA Survey ($6,000)
Meadows $15,000 to bring pool Asphalt repair (cut & patch,
up to code. full-depth) ($65,625)
Asphalt pavement (seal coat
over term)($13,125)
Curbing, concrete - Replace
sections in various locations
($1,500)
Retaining walls, wood timber
south and west property
($8,000)
Roof covering, built-up
system, ballast-five
story sect. ($25,000)
Roof covering, rubber
membrane, ballast-nine-story
section ($16,500)
Window glazing and
seal-replace-5 and 9 story
building ($17,400)
Concrete balcony repair-5
story building front
elevation ($8,640)
Rooftop make-up air unit
($54,000) Holding tank-2
story building
($15,000) Emergency
generator-replace
730KVA-9-story building
($20,000)
Guestroom: carpet (limited
service) ($84,400)
Guestroom: soft goods
(limited service) ($52,750)
Commercial laundry: dryers-50
lb ($2,100)
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
Commercial laundry:
washers - 75 lb ($4,000)
Guest laundry equipment - coin
washers and dryers ($2,000)
- ------------------------------------------------------------------------------------------------------------------------------------
2035 Courtyard Florence KY $ 0 0 $ 61,770 ADA Accessibility ($50)
by Marriott Asphalt pavement (seal
over term)($3,220)
Guestroom: carpet (limited
service) ($31,200)
Guestroom: soft goods
(limited service) ($27,300)
- ------------------------------------------------------------------------------------------------------------------------------------
2040 Hurstbourne Louisville KY $ 403,000 Immediate Needs from $741,000 ADA Accessibility ($20,100)
Hotel EMG PSA are as Common area floors, carpet
follows: 4 City ($99,000) HVAC, thru-the-wall
mandated Backflow units
protectors, $40,000; ($228,800) DHW heaters,>150
Pool area ceiling gal.
repair, $30,000; Pool ($12,000) Fire alarm, horn
de-humidification and strobe
equipment $333,000. lights ($3,000) Guestroom:
carpet (full service)
($238,800) Guestroom: soft
goods (full
service)($139,300)
- ------------------------------------------------------------------------------------------------------------------------------------
2007 Courtyard Paducah KY $ 0 $ 0
by marriott
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
1502 Quality Metairie LA $ 60,600 Immediate Need in the $ 0
Hotel PSA are as follows:
$9,000 of misc. roof
repairs to counter
leaks, ponding and
lack of ventilation;
$5,000 in repairs to
the rusting exterior
stairs; $1,600 replace
corroded metal
exterior doors and
reseal same;
re-sealing and
caulking of the
windows, $30,000;
repair the damaged
exit stairwell doors
and replace inoperable
hardware and closers
in compliance with
code, 2 per floor,
$15,000; replace
penthouse roof vent,
$2,000.
- ------------------------------------------------------------------------------------------------------------------------------------
2777 Residence Dedham MA $ 0 $52,650 Guestroom: carpet (limited
Inn service) ($32,400)
Guestroom: soft goods
(limited service) ($20,250)
- ------------------------------------------------------------------------------------------------------------------------------------
1775 Holiday Inn Baltimore- MD $ 6,000 Immediate Needs: Seal, $ 0
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
BWI patch and layer
Airport asphalt cracks and
depressions in the
parking lot
($6,000).
- ------------------------------------------------------------------------------------------------------------------------------------
1785 Holiday Inn Baltimore MD $ 26,400 Immediate Needs: $ 137,929 Sidewalk maintenance program
West Replace 2, 12.5-ton in ($845)
(Belmont) operable and failing Roof covering, Roof covering,
units serving the Roof covering, overlay
cocktail lounge, (Commercial Building)
restaurant and lobby ($36,000)
to maintain Roof drainage, provide
temperature and adequate slope
climate control (Buildings A & C) ($39,000)
$20,000; Replace two Gas distribution system
leaking water storage ($1,500)
tanks, $6,400. Guestroom: soft goods
($11,333)
Commercial kitchen equipment
($3,500)
Commercial laundry:
dryers ($18,000)
Commercial laundry: washers
($27,750)
- ------------------------------------------------------------------------------------------------------------------------------------
1765 Holiday Inn Baltimore, MD $ 0 $ 0
Inn
Harbor
- ------------------------------------------------------------------------------------------------------------------------------------
1710 Hilton Columbia MD $ 30,000 Immediate Repair $ 219,710 ADA Accessibility ($23,110)
Needs are as follows: Asphalt pavement (seal coat
$10,000 in Mold over term) ($7,525)
remediation mentioned Curbing, concrete ($1,000)
above; Asphalt repair Compactor/coling tower
$7,500; Repair of enclosures, various ($4,000)
compactor/cooling Swimming pool equipment $0
tower pad and gas Level pre-cast concrete
plank floor joints ($3,000)
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
meter pad, $2,000; Roof covering, asphalt
Repair damaged shingles ($1,875)
sidewalk concrete, Exterior walls, caulking and
$2,000; Repair damaged sealants ($45,000)
face bring and Exterior walls, EIFS patch
spalling concrete on and repair $0 Exterior doors,
exterior walls, hollow metal ($1,600)
$3,250, $1,500 in roof Common area floors, carpet
and soffit repair in ($41,000)
the pool area; and, Common area walls, refinish
repair/replace $0
leaking pipe for the Cooling tower $0 Heat pumps,
hot water distribution, air to air $0
$3,750. Guestroom: carpet (full
service) ($91,200)
- ------------------------------------------------------------------------------------------------------------------------------------
1776 Holiday Inn Frederick MD $ 0 Immediate Needs: $ 49,000 Concrete balconies ($1,000)
$2,000 to patch roof Elevator, machinery ($48,000)
leaks.
- ------------------------------------------------------------------------------------------------------------------------------------
1770 Holiday Inn Glen MD $ 53,500 Immediate Needs of $ 0
Burnie $53,000 are as
follows: Asphalt
repair, $2,500; repair
damaged concrete
pavement in service
area, $1,500; repair
damaged concrete
retaining wall,
$3,500; repair
damaged
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
masonry retaining wall,
$2,000; repair cracking
and spalling pool deck,
$1,000; and, replace
three rooftop package
units servicing the
common corridors, they
are currently inoperable,
$42,000.
- ------------------------------------------------------------------------------------------------------------------------------------
1720 Holiday Inn Silver MD $126,000 Two Chillers are down $0
Spring Loss of 110T capacity,
needs replacement,$121K.
(mold concern). Lodgian
has a temporary HVAC
system in place to
provide AC. Sprinkler
heads will need
replacement. Confirm that
the hydraulic elevator is
being repaired.
- ------------------------------------------------------------------------------------------------------------------------------------
1780 Holiday Inn Towson MD $6,800 Immediate Needs are as $0
(Cromwell follows: Asphalt repair
Bridge) $2,500; review
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
and repair subsidence at
drainage inlet to prevent
retaining wall failure
$3,500; patch and repair
damaged EIFS at rear
overhang adjacent to
banquet room $800.
- ------------------------------------------------------------------------------------------------------------------------------------
3970 Holiday Inn Lansing MI $14,600 Immediate Needs are ADA $65,000 Asphalt overlay
upgrades of $2,100 and ($65,000)
Asphalt repairs of
$12,500.
- ------------------------------------------------------------------------------------------------------------------------------------
3930 Hilton Troy MI $7,800 Immediate Needs include $0
(Northfield) ADA accessibility $4,800;
and, $3,000 in roofing
repairs.
- ------------------------------------------------------------------------------------------------------------------------------------
1910 Holiday Inn Arden MN $15,000 ADA Upgrades to the $214,200 Lobby floors; carpet
Hills/St. Elevators totaling ($10,800)
Paul $15,000 are the only Common area floors;
immediate needs. carpet ($45,000)
Meeting room floors;
carpet ($27,000)
Restaurant/lounge
floors; carpet
($13,500)
Guestroom: carpet
(limited service)
($62,400)
Guestroom: soft goods
(limited service)
($39,000)
Commercial laundry:
washers ($16,500)
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
2222 Holiday Inn St. Louis MO $2,500 Preliminary inspection $0
North revealed cracks in the
balcony's that might need
review by a structural
engineer. In addition the
hotel has a adjacent
vacant office building
that is used for storage.
Immediate Needs $2,500 in
structural engineering
review of the A Building
balcony's.
- ------------------------------------------------------------------------------------------------------------------------------------
3311 Crowne Plaza Albany NY $3,600 Immediate Needs: $1,600 $0
in masonry and concrete
repair on an exterior
retaining wall with
visible displacement and
cracks; $2,000 in
concrete repair on the
exterior stairs at the
loading dock area.
- ------------------------------------------------------------------------------------------------------------------------------------
3345 Holiday Inn Grand NY $4,000 Immediate Needs: $4,000 $0
Island in fencing
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
repair/ replacement and
fencing for shored up
fence in the service
area; $1,000 in soffit
repair on the mansard
roofing at the pool area;
and, $500 in bathroom
vent repairs, some
bathroom fans were not
working and led to mold
problems.
- ------------------------------------------------------------------------------------------------------------------------------------
3330 Holiday Inn Jamestown NY $20,200 Immediate Repair Needs: $0
$12,500; Concrete
Entrance Apron Repair,
$2,000; Sidewalk Concrete
Repair, $1,000; Elevated
pedestrian walkway
skylight leakage, $4,700.
- ------------------------------------------------------------------------------------------------------------------------------------
3314 Holiday Inn Niagara NY $6,400 $151,730 Planters, brick
Select Falls ($1,500)
Skylights ($4,000)
Window units, metal
frame ($40,000)
Corridor area floors,
carpet ($36,000)
Common area floors,
carpet ($43,200)
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
Commercial laundry:
dryers ($27,030)
- ------------------------------------------------------------------------------------------------------------------------------------
3326 Four Points Niagara NY $0 Immediate Repairs: $0
Falls replacement and repair
of brick pavers $3,500;
concrete stoop adjacent
to the loading dock area
is in poor condition with
cracking, misalignment,
spalling and missing
handrails, $1,200; and,
repair of spalling
concrete on the loading
dock $1,700.
- ------------------------------------------------------------------------------------------------------------------------------------
3515 Holiday Inn Strongsville OH $2,000 Immediate Needs are only $108,300 ADA Accessibility
Select $2,000 for asphalt repair ($39,300) Commercial
work laundry: washers
($69,000)
- ------------------------------------------------------------------------------------------------------------------------------------
3802 Holiday Inn Greentree PA $10,400 Immediate Needs: $2,500 $0
for engineering review
of spalling loading dock
- ------------------------------------------------------------------------------------------------------------------------------------
3890 Holiday Inn Lancaster PA $17,500 Immediate Needs are $79,000 Rooftop package unit
$17,500 in asphalt per ton ($24,000)
Commercial laundry:
dryers ($25,000)
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
repair for alligatored Commerciallaundry:
areas in the parking lot. washers ($30,000)
- ------------------------------------------------------------------------------------------------------------------------------------
3838 Doubletree Philadelphia PA $4,000 EMG noted $4,000 of $0
Club Immediate Needs in the
form of roofing repairs
for the mansard and
membrane roofing. The
Philadelphia Building
Department has the
following building and
fire code violation on
file: Storm water should
be conducted to the
public storm water
system; secure annual
electric permit; submit
annual fire test records.
- ------------------------------------------------------------------------------------------------------------------------------------
3804 Holiday Inn Pittsburgh PA $12,900 Immediate Needs: ADA $85,000 Epoxy traffic
(Pkwy East) upgrades, $10,400 and a surface at roof of
engineering review of garage area
Repairs to underside of ($35,000)
deck the spalling Repairs to underside
concrete on at loading of deck at loading
dock ($50,000) the dock ($50,000)
underside of the loading
dock floor structure
($2,500).
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
3875 Holiday Inn York PA $0 $0
- ------------------------------------------------------------------------------------------------------------------------------------
4021 Clarion Charleston SC $0 $0
- ------------------------------------------------------------------------------------------------------------------------------------
4040 Holiday Inn Myrtle SC $0 $614,540 Common area floors,
SunSpree Beach carpet ($207,000)
Rooftop package unit
per ton ($5,040)
Boiler ($2,500)
Elevator, machinery
($400,000)
- ------------------------------------------------------------------------------------------------------------------------------------
4215 French Memphis TN $18,020 Immediate Needs: ADA $0
Quarter Deficiencies - One car
Suites and one van stall with
signage $350, Signage
indicating accessible
parking spaces $100,
exterior accessible route
from access aisles
adjacent to parking
space, crossing hazardous
vehicle areas, from main
roadways and public
transportation stops to
the building sidewalks
and entrances $100,
Signage (4 signs)
indicating accessible
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- ------------------------------------------------------------------------------------------------------------------------------------
Restrooms $100, restroom
modifications $1,370.
($2,020 in total ADA
Upgrades) There are also
a number of PTAC units
that are not in service.
Termite infested meeting
room doors to be
replaced, $8,000. Repair
mold damaged meeting
rooms, $8,000.
- ------------------------------------------------------------------------------------------------------------------------------------
4343 Courtyard Abilene TX $0 $96,300 Asphalt pavement
by Marriott (seal coat over term)
($5,250)
Guestroom: carpet
(full service)
($29,700)
Guestroom: soft goods
(full service)
($34,650)
Common area floors,
carpet ($26,730)
- ------------------------------------------------------------------------------------------------------------------------------------
4375 Holiday Inn Austin TX $50,000 Repair Inoperable $0
irrigation system
allowance ($20,000),
Paint metal mansards
($25,000), Replace tower
coping ($5,000)
- ------------------------------------------------------------------------------------------------------------------------------------
EXHIBIT H
CAPITAL IMPROVEMENT PLAN
REQUIRED CAPITAL IMPROVEMENTS
- -----------------------------------------------------------------------------------------------------------------------------------
IMMEDIATE
REPAIRS YR 1 REPAIRS
TO BE TO BE
COMPLETED COMPLETED
PROPERTY WITHIN 6 PRIOR TO FIRST
# CHAIN/NAME CITY STATE MONTHS PURPOSE ANNIVERSARY PURPOSE
- -----------------------------------------------------------------------------------------------------------------------------------
4388 Holiday Inn Dallas TX $ 0 $ 321,907 Asphalt pavement (seal coat over term)
Select (DFW ($14,875)
Airport) Curbing, concrete ($4,000)
Exterior walls, painting & coating
($112,800)
Common area floors, carpet ($30,600)
Common area floors, VCT ($1,350)
Common area walls, refinish ($51,000)
Public restroom finishes ($12,000)
Rooftop package unit per ton ($12,032)
Boilers - package unit ($32,000)
Elevator, cab interiors ($1,500)
Commercial laundry: dryers ($11,000)
Commercial laundry: washers ($11,250)
Ice, machines ($2,500)
Meeting room: case goods &
furniture ($25,000)
- -----------------------------------------------------------------------------------------------------------------------------------
4380 Holiday Inn Dallas (Mkt TX $ 40,000 Immediate Needs: $ 0
Center) Roof is leaking
and requires
repair to avoid
further interior
damage to the
meeting rooms
and lobby areas
where water
intrusion was
evident,
$40,000.
- -----------------------------------------------------------------------------------------------------------------------------------
4310 Crowne Plaza Houston TX $ 0 $ 0
- -----------------------------------------------------------------------------------------------------------------------------------
Totals $1,892,534 $ 4,590,773
- -----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT I
FRANCHISE AGREEMENTS
Exhibit I
EXHIBIT I
FRANCHISE AGREEMENTS
PROPERTY NAME STATE FRANCHISOR
- ----------------------------------------------------------------------
Clarion Charleston SC Choice
Quality Hotel Metairie LA Choice
Doubletree Club Philadelphia PA Hilton
Hampton Inn Dothan AL Hilton
Hampton Inn Pensacola FL Hilton
Hilton Inn Columbia MD Hilton
Hilton Inn Northfield MI Hilton
Courtyard by Marriott - Abilene TX Marriott
Courtyard by Marriott - Atlanta GA Marriott
Courtyard by Marriott - Bentonville AR Marriott
Courtyard by marriott - Florence KY Marriott
Courtyard by Marriott - Paducah KY Marriott
Fairfield Inn Valdosta GA Marriott
Residence Inn Dedham MA Marriott
Residence Inn Little Rock AR Marriott
Crowne Plaza Albany NY Six Continents
Crowne Plaza Cedar Rapids IA Six Continents
Crowne Plaza Houston TX Six Continents
Crowne Plaza West Palm Beach FL Six Continents
Holiday Inn Arden Hills/St. Paul MN Six Continents
Holiday Inn Austin TX Six Continents
Holiday Inn Belmont MD Six Continents
Holiday Inn Brunswick GA Six Continents
Holiday Inn BWI Airport MD Six Continents
Holiday Inn Cromwell Bridge MD Six Continents
Holiday Inn Dothan AL Six Continents
Holiday Inn East Hartford CT Six Continents
Holiday Inn Express Gadsden AL Six Continents
Holiday Inn Express Pensacola FL Six Continents
Holiday Inn Frederick MD Six Continents
Holiday Inn Glen Burnie North MD Six Continents
Holiday Inn Grand Island NY Six Continents
Holiday Inn Greentree PA Six Continents
Holiday Inn Hotel & Suites Marietta GA Six Continents
Holiday Inn Inner Harbor MD Six Continents
Holiday Inn Jamestown NY Six Continents
Holiday Inn Jekyll Island GA Six Continents
Holiday Inn Lancaster PA Six Continents
Holiday Inn Market Center Dallas TX Six Continents
Holiday Inn Parkway East PA Six Continents
Holiday Inn Rolling Meadows IL Six Continents
Holiday Inn Select DFW Airport TX Six Continents
Holiday Inn Select Niagara Falls NY Six Continents
Holiday Inn Select Strongsville OH Six Continents
Holiday Inn Sheffield AL Six Continents
Holiday Inn Silver Spring MD Six Continents
Holiday Inn St. Louis North MO Six Continents
Holiday Inn Sunspree Myrtle Beach SC Six Continents
Holiday Inn University Mall FL Six Continents
Holiday Inn Valdosta GA Six Continents
Holiday Inn West Lansing MI Six Continents
Holiday Inn Winter Haven FL Six Continents
Holiday Inn York PA Six Continents
Four Points Niagara Falls NY Starwood
French Quarter Suites Memphis TN
Hurtsbourne Hotel KY
SCHEDULE 3.1(A)
LIST OF LOAN DOCUMENTS
1. Loan Agreement
2. Note
3. Pledge Agreement
4. Guaranty
5. Environmental Indemnity
6. Assignment of Rate Cap
7. Financing Statements
8. Cash Management Agreement
9. Conditional Assignment of Hotel Management Agreement
10. The Jekyll Island Mortgage/Deed to Secure Debt
11. The Jekyll Island Assignment of Leases and Rents
12. The Jekyll Island Assignment of Agreements, Licenses, Permits and
Contracts
13. The Jekyll Island Cash Management Agreement
14. The Jekyll Island Conditional assignment of Hotel Management Agreement.
15. Post Closing Agreement
Schedule 3.1(A)
SCHEDULE 4.1(C)
ORGANIZATIONAL CHART FOR BORROWER PARTIES
Schedule 4.1(C)
[LODGIAN STRUCTURE CHART]
[LODGIAN STRUCTURE CHART]
[LODGIAN STRUCTURE CHART]
PROPERTY OWNER PROPERTY
- ------------------------------------------------------------------------------------------------------------
ALBANY HOTEL, INC. Crowne Plaza Albany Hotel, Albany, NY
AMI OPERATING PARTNERS, L.P. Holiday Inn East Hartford, CT
Holiday Inn Frederick, MD
Holiday Inn Cromwell Bridge, MD
Holiday Inn Belmont, MD
Holiday Inn York, PA
- ------------------------------------------------------------------------------------------------------------
APICO HILLS, INC. Holiday Inn, Parkway East, Pittsburgh, PA
- ------------------------------------------------------------------------------------------------------------
APICO INNS OF GREEN TREE, INC. Holiday Inn Green Tree, Pittsburgh, PA
- ------------------------------------------------------------------------------------------------------------
BRUNSWICK MOTEL ENTERPRISES, INC. Brunswick Holiday Inn, Brunswick, GA
- ------------------------------------------------------------------------------------------------------------
DEDHAN LODGING ASSOCIATES I, LIMITED PARTNERSHIP Residence Inn, Dedham, MA
- ------------------------------------------------------------------------------------------------------------
DOTHAN HOSPITALITY 3053, INC. Holiday Inn West, Dothan, AL
- ------------------------------------------------------------------------------------------------------------
DOTHAN HOSPITALITY 3071, INC. Hampton Inn, Dothan, AL
- ------------------------------------------------------------------------------------------------------------
GADSDEN HOSPITALITY, INC. Holiday Inn Express Gadsden-Attalia, AL
- ------------------------------------------------------------------------------------------------------------
IMPAC HOTELS I, L.L.C. Marriott Courtyard, Buckhead, Atlanta, GA
Marriott Courtyard, Abilene, TX
Marriott Courtyard, Florence, KY
Marriott Courtyard, Bentonville, AR
Double Tree Club, Philadelphia, PA
The Hurstbourne Hotel, Louisville, KY
Fairfield Inn, Valdosta, GA
Holiday Inn, Valdosta, GA
Holiday Inn Select, Dallas/Fort Worth Airport, TX
Holiday Inn, North St. Louis, MO
Holiday Inn, Surfside Beach, SC
Holiday Inn Select, Strongsville, OH
Holiday Inn Suites, Marietta, GA
Marriott Courtyard, Paducah, KY
- ------------------------------------------------------------------------------------------------------------
LITTLE ROCK LODGING ASSOCIATES I, Residence Inn, Little Rock, AK
LIMITED PARTNERSHIP
- ------------------------------------------------------------------------------------------------------------
LODGIAN AMI, INC. Holiday Inn, Inner Harbor, MD
Holiday Inn, Glen Burnie, MD
Holiday Inn, BWI Airport, Baltimore, MD
Holiday Inn, Lancaster East, PA
- ------------------------------------------------------------------------------------------------------------
LODGIAN MEMPHIS PROPERTY OWNER, LLC French Quarter Suites, Memphis, TN
- ------------------------------------------------------------------------------------------------------------
MINNEAPOLIS MOTEL ENTERPRISES, INC. Holiday Inn St. Paul, St. Paul, MN
- ------------------------------------------------------------------------------------------------------------
NH MOTEL ENTERPRISES, INC. Hilton Northfield in Troy, MI
- ------------------------------------------------------------------------------------------------------------
SERVICO AUSTIN, INC. Holiday Inn, Austin South, TX
- ------------------------------------------------------------------------------------------------------------
SERVICO CEDAR RAPIDS, INC. Crowne Plaza Five Seasons Hotel, Cedar Rapids, IA
- ------------------------------------------------------------------------------------------------------------
SERVICO CENTRE ASSOCIATES, LTD. Crowne Plaza and Separate Office Space, West Palm
Beach, FL
- ------------------------------------------------------------------------------------------------------------
SERVICO COLUMBIA, INC. Hilton Columbia, MD
- ------------------------------------------------------------------------------------------------------------
SERVICO GRAND ISLAND, INC. Holiday Inn Grand Island, Grand Island, NY
- ------------------------------------------------------------------------------------------------------------
SERVICO HOUSTON, INC. Crowne Plaza Houston, Houston, Texas
- ------------------------------------------------------------------------------------------------------------
SERVICO JAMESTOWN, INC. Holiday Inn Jamestown, NY
- ------------------------------------------------------------------------------------------------------------
SERVICO LANSING, INC. Holiday Inn Lansing, MI
- ------------------------------------------------------------------------------------------------------------
SERVICO MARKET CENTER, INC. Holiday Inn Market Center, Dallas, TX
- ------------------------------------------------------------------------------------------------------------
SERVICO MARYLAND, INC. Holiday Inn, Silver Springs, MD
- ------------------------------------------------------------------------------------------------------------
SERVICO METAIRIE, INC. Quality Hotel, metairie, LA
- ------------------------------------------------------------------------------------------------------------
SERVICO NEW YORK, INC. Holiday Inn Select Niagara Falls, Niagara Falls, NY
- ------------------------------------------------------------------------------------------------------------
SERVICO NIAGARA FALLS, INC. Four Points Sheraton Niagara Falls, Niagara Falls, NY
- ------------------------------------------------------------------------------------------------------------
SERVICO NORTHWOODS, INC. Clarion Charleston International Airport, North
Charleston, SC
- ------------------------------------------------------------------------------------------------------------
SERVICO PENSACOLA 7200, INC. Holiday Inn University Mall-Pensacola, FL
- ------------------------------------------------------------------------------------------------------------
SERVICO PENSACOLA 7330, INC. Hampton Inn Pensacola, Pensacola, FL
- ------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------
SERVICO PENSACOLA, INC. Holiday Inn Express, Pensacola, FL
- ------------------------------------------------------------------------------------------------------------
SERVICO ROLLING MEADOWS, INC. Holiday Inn Rolling Meadows - Rolling Meadows, IL
- ------------------------------------------------------------------------------------------------------------
SERVICO WINTER HAVEN, INC. Holiday Inn, Winter Haven, FL
- ------------------------------------------------------------------------------------------------------------
SHEFFIELD MOTEL ENTERPRISES, INC. Holiday Inn, Sheffield, AL
- ------------------------------------------------------------------------------------------------------------
2
SCHEDULE 4.2
CONSENTS
NONE.
Schedule 4.2
SCHEDULE 4.4
CONTINGENT OBLIGATIONS
NONE.
Schedule 4.4
SCHEDULE 4.6
ZONING
NONE.
Schedule 4.6
SCHEDULE 4.7(B)
RENT ROLL
Schedule 4.7(B)
MATERIAL LEASES
- ----------------------------------------------------------------------------------------------------------
PROPERTY
STATE PROPERTY LEASES LANDLORD TENANT AREA (sf)
- ----------------------------------------------------------------------------------------------------------
MD Holiday Inn - a) Parking a) Lodgian a) PMS a) 193 parking
Inner Harbor License AMI, Inc. Parking, Inc. spaces
Baltimore Agreement b) Parking space
for maximum of 20
b) Parking b) Lodgian b) Mayor and vehicles
AMI, Inc. City Council
of Baltimore
- ----------------------------------------------------------------------------------------------------------
MI Holiday Inn Management Rado-Mat TGI Friday's Inc. 8,000 sf
West, Agreement Holdings U.S. 250 parking spaces.
Lansing Inc.
- ----------------------------------------------------------------------------------------------------------
MI Hilton Hotel, Restaurant NH Motel C.A. Muer 10,000 sf
Troy Enterprises, Corporation
Inc.
- ----------------------------------------------------------------------------------------------------------
NY Holiday Inn Parking City of Oakdale 125 parking spaces
Jamestown Jamestown Corporation 24/7; and 75
parking spaces
between 5:00 pm
and 7:00 am 7 days
a week.
- ----------------------------------------------------------------------------------------------------------
NY Holiday Inn Post Office Servico New United States 4,409 sf
Select York, Inc. Postal Service
Niagara Falls
- ----------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
BASE RENT AND PERCENTAGE RENT,
STATE TERM IF ANY
- ---------------------------------------------------------------------------------------
MD a) Commencing 5/1/2000, a) $11,500 per month
expiring 4/30/10
b) 5 year term commencing
12/12/01; Option to renew b) $625 per month
for one additional period of
5 years.
- ---------------------------------------------------------------------------------------
MI 10 years from the date the Fridays receives 7% gross sales
restaurant opens (Lease is profit; landlord receives 12%
dated 5/30/91); Option to gross sales, to extent of gross
renew for four 5-year operating profit; remainder of
terms. gross operating profit is
split equally
- ---------------------------------------------------------------------------------------
MI 20 years, commencing $8,368.33 per month
9/15/76; Option to renew
for 3 additional 5-year
terms. 2 renewal options
exercised, Lease expires
9/15/06.
- ---------------------------------------------------------------------------------------
NY 25 years, commencing when $1,233.33 per month
Lessee notifies city that it
is ready to accept use, which
is no later than 30 days
after occupancy of the hotel
(Lease executed 10/5/77).
Option to renew for one
additional 25-year period.
- ---------------------------------------------------------------------------------------
NY Current term expires on $20,000.00 per year, payable in
5/31/03; no further option to equal installments at the end of
renew. each calendar month.
- ---------------------------------------------------------------------------------------
SCHEDULE 4.7(E)
MATERIAL DEFAULTS UNDER JEKYLL ISLAND FRANCHISE AGREEMENT
NONE
Schedule 4.7(E)
SCHEDULE 4.9
LITIGATION
NONE
Schedule 4.9
SCHEDULE 4.10
PRE-PETITION TAX LIABILITIES
Schedule 4.10
SCHEDULE 4.10
PRE-PETITION TAX LIABILITIES
Page 1 of 1
SCHEDULE 4.20
INSURANCE
Schedule 4.20
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 1 of 14
- --------------------------------------------------------------------------------------------------------------------
POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER
- --------------------------------------------------------------------------------------------------------------------
WORKERS' COMPENSATION Statutory Workers' Comp. 09/01/02 Zurich American WC2346989-03
DEDUCTIBLE to Insurance Company
Employers liability Limits: 0901/03
$1,000,000 Each Accident
$1,000,000 Each Employee
$1,000,000 Policy Limit
Deductibles: Excludes ALAE
$250,000 - WC-BI by Accident
$250,000 - WC BI by Disease
$250,000 - EL BI by Accident
$250,000 - EL BI by Disease
- --------------------------------------------------------------------------------------------------------------------
WORKERS' COMPENSATION Statutory WC 09/01/02 Zurich American WC2346990-03
- - RETRO Employers Liability: to Insurance Company
(MASSACHUSETTS) $1,000,000 Each Accident 0901/03
$1,000,000 Each Employee
$1,000,000 Policy Limit
Stop Gap Liability
$1,000,000 Each Accident
$1,000,000 Each Employee
$1,000,000 Policy Limit
- --------------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------
COVERAGE PREMIUM COMMENTS
- -------------------------------------------------------------------------------------------------
WORKERS' COMPENSATION $990,516 Plus $200 Policy provides medical, disability
DEDUCTIBLE (Expense Constant and death benefits to injured
$93,685 (Surcharges) employees pursuant to the WC
Estimated Premium statutory requirements of states schedule in
subject to audit the policy except Monopolistic States.
Includes Executive Officers
- -------------------------------------------------------------------------------------------------
WORKERS' COMPENSATION $77,554 Plus $220 Policy provides medical, disability
- RETRO Expense Constant & and death benefits to injured employees
(MASSACHUSETTS) $3,230 Surcharge pursuant to the WC statutory requirements of
Estimated premium states scheduled in the policy - Executive
subject to audit Officers are covered
- -------------------------------------------------------------------------------------------------
MCQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 2 of 14
- --------------------------------------------------------------------------------------------------------------------
POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER
- --------------------------------------------------------------------------------------------------------------------
GENERAL LIABILITY $9,750,000 General Aggregate 09/01/02 Zurich American GLO23456985-03
$1,750,000 Products & Completed to Insurance Company
Operations Aggregate 09/01/03
$1,750,000 Each Occurrence
$1,750,000 Personal Injury &
Advertising $
$1,750,000 Tenants Legal Liability.
N/A Medical Expense
750,000 Employee Benefits
Each Claim/Aggregate
750,000 Hospitality
Professional
Liability Each
Occurrence/Aggregate
750,000 Hotel Safe Deposit
Legal Liability Each
Occurrence/Aggregate
Self Insured Retention
$250,000 Cov A BI&PD Each Claim
$250,000 Cov B-Personal & Adv Injury
$250,000 Cov.C.-Medical Payment
$250,000 Hotel Safe Deposit/Legal Liab
250,000 Employee Benefit Liability
- --------------------------------------------------------------------------------------------------------------------
LIQUOR LIABILITY POLICY $1,000,000 Liquor Liability Each 09-01-2002 Zurich American GLO9298953-02
Common Cause to Insurance Co.
Aggregate 09-01-2003
$250,000 Deductible Each Claim
- --------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
COVERAGE PREMIUM COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
GENERAL LIABILITY $721,500 Est. Annual Policy provides legal liability coverage for bodily injury and property
damage claims from the public
Broad Form Named Insured Aggregate Limits
per Location
Notice of Occurrence
Knowledge of Occurrence(Risk Mgt Dept-Dan Ellis)
Pesticide or herbicide applicator Coverage
Unintentional Errors & Omissions
Employee Benefits Liability - (Claims Made Form)
Notice of Error in Claims Reporting
Policy Covers Specific Managed Properties
Extended BI
60 Day NOC
Excludes:
Asbestos
Total Pollution w/hostile fire exception
Employment Related Practices
Medical Payments
Abuse & Molestation
- ------------------------------------------------------------------------------------------------------------------------------------
LIQUOR LIABILITY POLICY $5,000 Estimated Policy provides legal liability coverage for injury is imposed on insured
premium subject to audit by reason of the selling, serving or furnishing of any alcoholic beverage
- ------------------------------------------------------------------------------------------------------------------------------------
McQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 3 of 14
- ------------------------------------------------------------------------------------------------------------------------------------
POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
BUSINESS AUTO Automobile Liability 09/01/02 Zurich TAP2346986-03 $20,106 plus Policy Provides Liability
POLICY (TEXAS) $2,000,000 BI/PD CSL 09/01/03 American $9.00 to the public arising
$5,000 PIP Insurance Co. Surcharge from Owned, Non-Auto
$1,000,000 UM/UIM Estimated Liability: (Texas Only)
Deductible: $250,000 Each Annual (Extensions/Endorsements
Accident Premium See BAP2346987-03)
subject to
Physical Damage: audit
Comprehensive $250,000
deductible
Collision $250,000
deductible
Garage Keepers Legal
Each Location $500,000
less $250,000
Deductible Each Accident
excludes ALAE
- ------------------------------------------------------------------------------------------------------------------------------------
BUSINESS AUTO Automobile Liability 09/01/02 Zurich BAP2346987-03 $283,718 Plus Policy Provides Liability
POLICY- O/S $2,000,000 BI/PD CSL 09/01/03 American $956.83 to the public arising
(EXCEPT TX) $5,000 MEDICAL Insurance Co Surcharge from Owned, Non-Auto
Basic PIP Estimated Liability: All states
&1,000,000 UM/UIM Annual Premium except TX & MA
500,000 Garage Keepers subjects to
Deductible: $250,000 Each audit. Extensions/Endorsements
Accident Additional Insured
Exluces ALAE Broad Form Insured
Physical Damage: Drive Other Car-
Comprehensive $250,000 Designated Person
deductible Employees as Insureds
Collision $250,000 Fellow Employee Coverage
deductible Auto
Hired Autos-Specified as
Covered Autos owned Long-
term leased Auto
Unintentional errors &
Omissions
Knowledge of Occurrence-
(Risk Mgt Dept-Dan Ellis)
60 Days Notice of
Cancellation
Limited Mexico Coverage
Waiver of Subrogation-
- ------------------------------------------------------------------------------------------------------------------------------------
McQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 4 of 14
- ------------------------------------------------------------------------------------------------------------------------------------
POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
BUSINESS AUTO Automobile Liability 09-01-02 Zurich MA2346988-03 $11,176 Policy Provides
POLICY - (MA) $2,000,000 BI/PD CSL 09-01-03 American Estimated Liability to the public
$5,000 MEDICAL PAYMENT Insurance Co. Annual premium arising from Owned,
Basic PIP subject to Non-Auto Liability:
$1,000,000 UM/UIM audit (Massachusetts) For
Deductible: $250,000 Each Accident Extension/Endorsements-
Physical Damage: See BAP2646987
Comprehensive $250,000 deductible
Collision $250,000 deductible
- ------------------------------------------------------------------------------------------------------------------------------------
COMMERCIAL $1,000,000 Products & Completed 09-01-02 Zurich 8830042 $10,000 plus Policy provides legal
GENERAL Operations Aggregate 09-01-03 American 826.80 liability coverage for
LIABILITY $1,000,000 Occurrence Insurance Co. (Canadian Tax) bodily injury and
CANADA $1,000,000 Personal Injury & Premium in US property damage claims
Advertising Dollars from the public for
$1,000,000 Liquor Liability Each Estimated Canadian Location Only.
Common Cause Annual premium
Aggregate subject to
$1,000,000 Tenants Legal Liability. audit
$20,000 Medical Expense
$1,000,000 Employee Benefits
1,000,000 Hired-Non-Owned Auto
Each Claim
- ------------------------------------------------------------------------------------------------------------------------------------
McQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 5 of 14
- -----------------------------------------------------------------------------------------------------------------------------------
POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
EXCESS $25,000,000 Occurrence 09-01-02 Lumbermans 9SX192024-03 $289,000 Policy provides liability limits to the
LIABILTIY $25,000,000 General 09-01-03 Mutual public for injury or property damage in
Aggregate Casualty excess of Employers Liability, General
$25,000,000 Products/ (Kemper) Liability & Automobile Liability as shown
Completed Operations on Schedule of Underlying Information.
10,000 SIR
Follow Form:
Automobile; Employee Benefits;
Foreign Operations; Liquor Liability
Excludes:
ERISA; Nuclear Energy; Asbestos;
Pollution; UM/UIM/No Fault;
Securities & Financial Interest
Employment Related Practices;
Abuse of Molestation;
Professional Services;
Care Custody or Control; Year 2000
Mold
Not Subject to Audit
- ------------------------------------------------------------------------------------------------------------------------------------
EXCESS $25,000,000 Excess of 09-01-02 Great TUU3577779-02 $63,848 Policy provides excess of the underlying
LIABILITY $25,000,000 to American limits with respects to Umbrella Policy
09-01-03 Insurance Co. #9SX192024-03
Exclusions:
Asbestos
Pollution (Except Named Perils &
Time Element
Professional Services
Nuclear
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McQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 6 of 14
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POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
- -------------------------------------------------------------------------------------------------------------------------------
EXCESS $25,000,000 excess of 09-01-02 Zurich Insurance AEC2921558-03 $50,000 Excess Liability
LIABILITY $50,000,000 to Company
09-01-03 Exclusions:
Asbestos
Pollution (Except Named Perils &
Time Element
Professional Services
Nuclear
- -------------------------------------------------------------------------------------------------------------------------------
EXCESS $25,000,000 excess of 09-01-02 Gulf Insurance GA2857860 $37,500 Excess Liability
LIABILITY $75,000,000 to Group
09-01-03 Other Endorsements:
Aggregate Dropdown
Pay on Behalf Of
State Amendatory
Exclusions:
Asbestos; Aircraft; Maritime; EPL;
USL&H; Cross Suits;
Discrimination:Intellectual Property
Temp/Leasing Employee
Terrorism; Mold; Absolute Lead
Pending/Prior Litigation
Designated Premises
Professional;
Pollution (Except Named Perils &
Time Element
Nuclear
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McQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 7 of 14
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POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
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EXCESS $50,000,000 Excess of 09-01-02 Firemans' Fund XXK00084285352 $ 50,000 Excess Liability
LIABILITY $100,000,000 to Insurance
09-01-03 Company Exclusions:
Asbestos Pollution (Except Named
Perils & Time Element Professional
Services Nuclear
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McQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 8 of 14
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POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
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PROPERTY $5,000,000 Blanket Real & 09-01-02 Crum & 2450017341 $1,100,000 Per Schedule of Locations on File
Personal Property 09-01-03 Forester (US Includes (See Attached)
$5,000,000 Annual Fire & Canada ISO Special Property Form, Risk of
Aggregate-Earth Insurance Location Direct Physical loss or damage
Movement Company) including Flood & EQ - Excludes
5,000,000 Annual Aggregate- Wind in Florida and 1st Tier
Flood Locations of GA & SC Replacement
5,000,000 Wind except State Cost Review Coverage Forms for
of Florida and Additional Coverage Forms for
1st Tier GA & SC Additional Coverage & Limits
locations. Which are applicable.
Deductibles: Policy Excludes Terrorism, Y2K,
$ 100,000 Occurrence all Mold, Pollution & Boiler &
perils except Machinery
Flood excess of Max NFIP
in Zone A or V
Earthquake 5% of Values at
risk at time of
loss minimum of
$100,000 as
respects to
California
Earthquake
Wind 2% of values at
risk at time of
loss at affected
locations with a
minimum of
$100,000 per
occurrence as
respects to named
Storm at 1st Tier
locations in TX &
Louisiana - Wind
excluded in the
state of Florida
& 1st Tier GA &
AC
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McQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 9 of 14
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POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
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EXCESS $20,000,000 Each Occurrence 9-1-02/03 Sheffield EAF101029 $400,000 Special Form Covering Building,
PROPERTY and in the annual aggregate Insurance Plus Personal Property, BI/EE,
for flood & earthquake P/O Corporation $16,000 GA including Flood & Earthquake but
Limits; $20,000,000 per Surplus excluding CA Earthquake
occurrence and in annual Lines Tax
aggregate on flood and Valuation: Replacement Cost/BI
earthquake Actual Loss
Deductible Excess of Exclusion: Fungus, Terrorism,
$5,000,000 Primary plus Cyber
primary deductibles.
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EXCESS $500,000,000 per occurrence 9-1-02/03 Royal RHD329335 95,000 Valuation: Replacement cost except
PROPERTY excess of Indemnity Actual Loss sustained as respects
$25,000,000 per occurrence Company to BI
which in turn,
excess of
Underlying
Deductible.
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WINDSTORM $5,000,000 Primary for 9-01-02/03 First CAT000036 $465,000 Primary Wind in Florida and
Florida and 1st Tier GA & SC Specialty Plus scheduled locations in SC & GA.
Per schedule on file with Insurance Co. $16,035 GA
Co. Deductible 2% each Surplus
occurrence per site Lines Tax
Replacement Cost -
Actual Loss Sustained
for BI if Applicable
- ------------------------------------------------------------------------------------------------------------------------------------
McQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 10 of 14
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POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
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EXCESS DIC $4,030,000 Each occurrence 9-01-02/03 Ins. Co of the XHO185154401 10,000 DIC Including Flood & Earthquake
CALIFORNIA not to exceed West At Location: TIV $9,030,000
EQ 4,030,000 in any one 74675 Hwy 111, Palm Desert, CA
policy year 92260
separately as
respects to
Flood & EQ part
of
4,030,000 Per Occurrence
not to exceed
4,030,000 in any one
policy year
separately as
respects Flood
and EQ excess of
5,000,000 Each Occurrence
which in turn
excess of
Underlying
Deductibles
5,000,000 in any one
policy year
separately as
respect Flood
and EQ which in
turn excess of
Underlying
Deductible.
- ------------------------------------------------------------------------------------------------------------------------------------
PROPERTY $25,000,000 Each and Every 9-1-02/03 Price Forbes L2PX114 $243,170 Buildings & Business Interruption-
TERRORISM Occurrence and in the Limited $9,726.80 all as more fully defined in the
Aggregate only to pay the (Lloyds Tax Underlying Policy Wording.
excess of the $150,000 Each Underwriters)
and Every Occurrence in Insureds locations in US & Canada
respect of property TIV $1,296,905,888 or to be
damage/7 days waiting agreed by insurers.
period each and every
occurrence in respects of
business interruption
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EXCESS $10,000,000 each and every 9-1-02/03 Price Forbes L2PX131 $60,000
PROPERTY occurrence and in the Limited $2,400 Tax
TERRORISM Aggregate only to pay the (Lloyds
excess of the $25,000,000 Underwriters)
each and every occurrence
and in the Aggregate
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McQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 11 of 14
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POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
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BOILER & Equipment Breakdown 09-01-02 Travelers BMG302D6931TI $80,479 Policy provides Comprehensive
MACHINERY $100,000,000 Property to Property & L-02 Equipment Coverage including
Damage, BI, EE 09-01-03 Casualty production machines
250,000 Off Premises Direct damage & BI caused by
Service sudden & accidental breakdown of
Interruption Pressure vessel & refrigeration
250,000 Spoilage systems, mechanical objects and
100,000 Media electrical objects.
250,000 Ammonia
Contamination
250,000 Water Damage
500,000 Demolition &
ICC
250,000 Expediting 60 Days Notice of Cancellation
Expense
250,000 Hazardous
Substances
100,000 Ordinance of
Law
1,000,000 Error in
Design
1,000,000 Newly Acquired
Locations
Deductible:
25,000 Damage to
covered
property
24 Hours BI & EE
24 Hours Service
Interruption
- ------------------------------------------------------------------------------------------------------------------------------------
MCQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 12 of 14
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POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
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FIDUCIARY Limit of Liability: $2,000,000 09-01-02 Chubb Insurance 8158 25 39B DAL $ 8,316 Claims Made Policy
LIABILITY Defense outside the Limit of 09-01-03 Group - Federal Provides coverage for claims
Liability Insurance Co arising from breach of
Deductible: $25,000 Fiduciary Duty while
acting as trustee for named
employee pension and welfare
plans.
Extended Reporting Period
(1 Year for 75% of Annual
Premium)
Prior and Pending
Date -8-5-92
Continuity Date 8-5-92
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CRIME $1,000,000 Employee Theft 12-15-01 (American 008747810 11,918 Crime Employee Theft:
$1,000,000 Premises Coverage 12-15-02 International) (Applicable only to employees
$1,000,000 Depositors Forgery National Union at the corporate office 3445
$1,000,000 Funds Transfer Fraud Fire Insurance Peachtree Rd., Atlanta, GA)
$ 50,000 Deductible Co.
- ------------------------------------------------------------------------------------------------------------------------------------
MCQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 13 of 14
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POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
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D&O (CLAIMS MADE) $20,000,000 Each Loss 12-11-01- XL Specialty DO 71 00 09 99 $430,000 Straight Retention for
MANAGEMENT $20,000,000 Each Policy Year 12-11/02 Insurance (90% Minimum Securities Claims
LIABILITY Retention: $200,000 Company Earned) Prior Acts Exclusion
(12-11-01)
General E&O Exclusion
(excludes services for other
for a fee)
One Year Run Off
Change in Condition
Prior & Pending Litigation
Exclusion date: 12-11-01
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EXCESS D&O $10,000,000 Each Loss Excess 12-11-01/ RLI EPG 0002582 $170,000 Prior & Pending Litigation
(CLAIMS MADE) of $20,000,000 Each Loss/ 12-11-02 Insurance Exclusion Date: 12-11-01
$10,000,000 each policy year Company Subject to:
excess of $20,000,000 each No bankruptcy prior to
policy year. 12-11-01
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EXCESS D&O - $15,000,000 12-11-01/ AIG-National 00857 48 89 $136,689 One Year Discovery
CLAIMS MADE 12-11-02 Union Fire Limit is part of and not in
(RUN OFF) Insurance Co addition to limit of
of PA liability under 12-11-98 to
12-11-01 policy period.
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EXCESS D&O - $15,000,000 excess of 12-11-01/ Chubb- 8158 25 83 $ 70,500 One Year Discovery
CLAIMS MADE- $15,000,000 12-11-02 Federal Limit is part of and not in
(RUN OFF) Insurance addition to limit of
Company liability under 12-11-98 to
12-11-01 policy period.
- ------------------------------------------------------------------------------------------------------------------------------------
EXCESS D&O - $10,000,000 excess of 12-11-01/ Gulf GA0431469 24,000 One Year Discovery
CLAIMS MADE $30,000,000 12-11-02 Insurance Limit is part of and not in
(RUN OFF) Company addition to limit of
liability under 12-11-98 to
12-11-01 policy period.
- ------------------------------------------------------------------------------------------------------------------------------------
MCQUEARY HENRY BOWLES TROY, L.L.P
CURRENT INSURANCE
SCHEDULE
For: LODGIAN, INC.. Date Prepared: September 2002
Prepared By: McQueary Henry Bowles Troy, L.L.P.
Michele Mariano Page 14 of 14
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POLICY
COVERAGE AMOUNT OR LIMITS TERM COMPANY NUMBER PREMIUM COMMENTS
- --------------------------------------------------------------------------------
We present this schedule so you may get an overall picture of
your insurance protection. For details of coverage please
refer to your policies or contact McQueary Henry Bowles Troy,
L.L.P.
Please examine this schedule with particular reference to the
amount or limits of your insurance. Today's property values
and liability judgments are higher and insurance should be
adjusted to cover.
Homedir/CSR4/United Schedule
MCQUEARY HENRY BOWLES TROY, L.L.P
SCHEDULE 4.28
COLLECTIVE BARGAINING AGREEMENTS
Schedule 4.28
SCHEDULE 4.28
COLLECTIVE BARGINING AGREEMENTS
HOTEL BORROWER UNION DATE OF AGREEMENT
----- -------- ----- -----------------
Holiday Inn - Windsor Servico Windsor, Inc. United Food and Commercial Workers
International, Local 175 12/1/2000
Holiday Inn - Rolling Meadows, IL Servico Rolling Meadows, Inc. Hotel, Motel, Club, Cafeteria,
Restaurant Employees & Bartenders
Union, Local 450 1/1/2002
Hilton - Northfield, MI NH Motel Enterprises, Inc. Hotel Employees and Restaurant
Employees Union Local 24 8/1/2002
Hilton - Northfield, MI NH Motel Enterprises, Inc. The International Union of Operating
Engineers, Local 547 10/1/2000
Holiday Inn - Niagara Falls, NY Servico New York, Inc. Hotel Employees and Restaurant
Employees Union Local 4 2/10/1999
Holiday Inn - Jamestown, NY Servico Jamestown, Inc. Hotel Employees and Restaurant
Employees Union, Local 4 5/1/2000
Doubletree Hotel - Philadelphia, PA Impac Hotels, I, LLC Hotel Employees and Restaurant
Employees Union, Local 274 10/1/2000
Crowne Plaza - Albany, NY Albany Hotel, Inc. Hotel, Motel & Restaurant Employees &
Bartenders Union, Local 471 2/1/2000
Holiday Inn - St. Paul, IL Minneapolis Motel Enterprises, Inc. Hotel Employees and Restaurant
Employees, Local 17 1/1/2002
SCHEDULE 4.30
GROUND LEASE AMENDMENTS
Schedule 4.30
SCHEDULE OF GROUND LEASE AMENDMENTS
ISLAND MOTEL ENTERPRISES, INC. AND PENMOCO, INC.
HOLIDAY INN, LOCATED AT 200 SOUTH BEACHVIEW DRIVE, JEKYLL ISLAND, GA
Declaration of Lease Agreement for Recordation from Jekyll Island-State Park
Authority, dated October 23, 1972, filed December 28, 1972, and recorded in
Mortgage Book 127, Page 621 of the records of the Superior Court of Glynn
County, Georgia as modified by that certain Modification Agreement, dated
October 8, 1973 and recorded in Deed Book 17-T, Page 1 of the aforesaid records,
as further modified by that certain Modification Agreement, dated October 3,
1974 and recorded October 24, 1974 in Deed Book 18-F, Page 187 of the aforesaid
records, as re-recorded October 24, 1974 in Deed Book 18-F, Page 236, of the
aforesaid records; as further modified by that certain Third Modification
Agreement, dated October 16, 1976 and recorded December 5, 1977 in Deed Book
20-C, Page 142 of the aforesaid records, as affected by that certain Estoppel
Certificate by Jekyll Island-State Park Authority, dated November 20, 1998 and
recorded on December 15, 1998 in Deed Book 529, Page 462 of the aforesaid
records.
Schedule 5.14
Material Agreements
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BORROWER/GUARANTOR VENDOR AGREEMENT TYPE REASON FOR MATERIALITY
- -------------------------------------------------------------------------------------------------------------------
Lodgian, Inc. IDC Construction General Contractor/Renovation of Payment in excess of $1 million
LLC Philadelphia Hotel
- -------------------------------------------------------------------------------------------------------------------
Lodgian, Inc. Harbor Linen Linen Requirements Agreement Payment in excess of $1 million
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