EXHIBIT 10.o
ASSIGNMENT OF CLOSING AND INDEMNITY AGREEMENT
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THIS ASSIGNMENT OF CLOSING AND INDEMNITY AGREEMENT (the
"Assignment"), made as of this 30th day of June, 1993, by and among MARRIOTT
DIVERSIFIED AMERICAN HOTELS, L.P., a Delaware limited partnership ("Owner"),
MARRIOTT CORPORATION, a Delaware corporation ("Marriott"), and NATIONSBANK OF
GEORGIA, NATIONAL ASSOCIATION, a national banking association chartered under
the laws of the United States of America and formerly known as The Citizens and
Southern National Bank ("Lender").
WITNESSETH:
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WHEREAS, on February 7, 1990, pursuant to that certain Loan
Agreement dated February 7, 1990 (the "Existing Loan Agreement") between Owner
and Lender, Lender made a loan (as modified from time to time, the "Loan") in
the original principal amount of One Hundred Twenty-Eight Million and No/100
Dollars ($128,000,000.00) to Owner, which Loan is secured by, among other
things, that certain (i) Deed of Trust, Assignment of Rents and Security
Agreement from Owner to Lender, dated February 7, 1990 and recorded as document
#00-000-000 of the Official Records of Orange County, California, as amended by
that certain First Modification of Deed of Trust, Assignment of Rents and
Security Agreement and Assignment of Leases dated of even date herewith and to
be recorded, (ii) Mortgage, Assignment of Rents and Security Agreement from
Owner to Lender, dated February 7, 1990 and recorded in Liber 11260, page 17 of
the Register of Deeds of Oakland County, Michigan, as amended by that certain
First Modification of Mortgage, Assignment of Rents and Security Agreement and
Assignment of Leases dated of even date herewith and to be recorded, (iii)
Mortgage, Assignment of Rents and Security Agreement from Owner to Lender, dated
February 7, 1990 and recorded in Liber 24534, page 575 of the Register of Deeds
of Xxxxx County, Michigan, as amended by that certain First Modification of
Mortgage, Assignment of Rents and Security Agreement and Assignment of Leases
dated of even date herewith and to be recorded, (iv) Deed of Trust, Assignment
of Rents and Security Agreement from Owner to Lender, dated February 7, 1990 and
recorded in Book 1575, page 186 of the Register of Deeds of Durham County, North
Carolina, as amended by that certain First Modification of Deed of Trust,
Assignment of Rents and Security Agreement and Assignment of Leases dated of
even date herewith and to be recorded, (v) Mortgage, Assignment of Rents and
Security Agreement from Owner to Lender, dated February 7, 1990 and recorded as
document #0006593 in the deed records of Xxxxxxxxxx County, Ohio, as amended by
that certain First Modification of Mortgage, Assignment of Rents and Security
Agreement and Assignment of Leases dated of even date herewith and to be
recorded, and (vi) Deed of Trust, Assignment of Rents and Security Agreement
from Owner to Lender, dated February 7, 1990 and recorded in Book 7529, page
1702 of the land records of
Fairfax County, Virginia, as amended by that certain First Modification of Deed
of Trust, Assignment of Rents and Security Agreement and Assignment of Leases
dated of even date herewith and to be recorded (the aforesaid Deeds of Trust,
Assignments of Rents and Security Agreements and Mortgages, Assignments of Rents
and Security Agreements, as further amended, restated, supplemented or otherwise
modified from time to time in accordance with the terms thereof, collectively
referred to as the "Security Documents"); and
WHEREAS, Owner has title to real property more particularly
described on Exhibit "A" attached hereto and incorporated herein by this
reference, except that the interest acquired with respect to the real property
located in California is a leasehold estate and a portion of the real property
located in Virginia is a leasehold estate (together with the improvements
situated thereon, collectively referred to as the "Property"), upon which are
located six (6) Marriott full-service hotels and other improvements
(collectively referred to as the "Hotels"); and
WHEREAS, Owner and Marriott entered into that certain Closing
and Indemnity Agreement dated as of February 8, 1990 (the "Closing and Indemnity
Agreement") providing, among other things, certain covenants, assurances and
indemnities to Owner relating to the Property and the Hotels, as more fully set
forth therein; and
WHEREAS, Owner is in default of its obligations under the
Existing Loan Agreement and Lender and Owner desire to restructure such
obligations by amending and restating the Existing Loan Agreement pursuant to
the terms of that certain Amended and Restated Loan Agreement dated as of the
date hereof (as amended, restated, supplemented or otherwise modified from time
to time in accordance with the terms thereof, the "Loan Agreement"); and
WHEREAS, as a condition to Lender's restructuring such
obligations pursuant to the Loan Agreement, the parties hereto desire to enter
into an assignment of the Closing and Indemnity Agreement, all as hereinafter
provided;
NOW, THEREFORE, in consideration of the foregoing premises, to
induce Lender to enter into the Loan Agreement, the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Assignment. As security for payment by Owner of all of its
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obligations under the Loan Agreement, the indebtedness evidenced and secured by
the Security Documents and all other documents, instruments and agreements now
or hereafter evidencing or securing the Loan (collectively referred to as the
"Loan Documents"), Owner hereby grants, transfers and assigns to Lender, its
successors and assigns, all of the right, title and interest of Owner in, to and
under the Closing
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and Indemnity Agreement; provided, however, Owner may continue to exercise its
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rights, powers and privileges thereunder so long as no event of default under
this Assignment has occurred and is continuing after expiration of any
applicable cure period. This Assignment is intended as a present and absolute
assignment and not merely as the passing of a security interest.
2. Consent to Assignment. Marriott consents to the assignment
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of the Closing and Indemnity Agreement by Owner to Lender.
3. Termination. Marriott acknowledges, confirms, covenants and
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agrees that it has no right, of any kind or nature whatsoever, to terminate the
Closing and Indemnity Agreement.
4. Certification of Owner and Marriott. Owner and Marriott
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further certify and confirm to and for the benefit of Lender as follows:
(a) Attached hereto as Exhibit "B" and incorporated
herein by this reference is a true, correct and complete copy
of the Closing and Indemnity Agreement, and there have been no
amendments, modifications or supplementations thereto as of
the date hereof except as attached hereto.
(b) The Closing and Indemnity Agreement is valid, binding
and enforceable in accordance with its terms and is in full
force and effect.
(c) To the best knowledge of Owner and Marriott, the only
items identified on Schedule A to the Closing and Indemnity
Agreement which have not been performed, completed, or
otherwise resolved in a manner satisfactory to Owner as of the
date hereof are the following:
(i) Dayton Hotel: none
(ii) Fairview Park Hotel: 2 and 3
(iii) Research Triangle Park Hotel: none
(iv) Southfield Hotel: 1 and 2
(v) All Hotels: 1, to the extent that any
such licenses or permits can be issued
in the name of Owner and have not been
so issued.
5. Amendments to Agreement. Owner and Marriott agree not to
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enter into any amendment to or modification of the Closing and Indemnity
Agreement without the prior written consent of Lender, such consent not to be
unreasonably withheld, conditioned or delayed. Any amendment or modification
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thereto entered into without Lender's prior written consent shall be null and
void, and of no force or effect.
6. Effect of this Instrument on Closing and Indemnity
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Agreement. Owner is executing this Assignment for the purposes of (i) assigning
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its right, title and interest in the Closing and Indemnity Agreement to Lender
as set forth in this Assignment, and (ii) acknowledging and consenting to the
covenants and agreements of Lender and Marriott hereunder; accordingly, nothing
contained herein shall alter, modify or diminish the obligations, covenants and
agreements of Marriott or Owner, one to the other, under the Closing and
Indemnity Agreement except as expressly provided to the contrary herein.
7. Events of Default. It shall be an event of default
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hereunder if (i) either Owner or Marriott shall fail to observe or perform any
of their respective obligations hereunder or (ii) if any warranty,
representation or certification herein made or confirmed to Lender shall prove
to have been false or misleading in any material respect when made. The
occurrence of any Event of Default by Owner under any of the Loan Documents
shall constitute an event of default hereunder. No remedies shall be exercised
by Lender for the occurrence of any event of default or default herein until
written notice is given to Owner and any applicable cure rights have expired
without cure, to the extent provided by the Loan Documents.
8. Reliance by Lender. Owner and Marriott each acknowledge
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and recognize that the covenants and certifications contained herein will be
relied upon by Lender in entering into the Loan Agreement.
9. Governing Law. This Assignment shall be construed in
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accordance with the laws of the State of Georgia, and such laws shall govern the
interpretation, construction and enforcement hereof. Wherever possible each
provision of this Assignment shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Assignment shall be prohibited by or invalid under such law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Assignment.
10. Counterparts. This Assignment may be executed in
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counterparts, each of which shall constitute an original and all of which
counterparts together shall constitute one and the same agreement.
11. Survival. This Assignment shall survive any foreclosure of
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the Loan Documents and any extinguishment of the indebtedness secured hereby or
thereby as a result of such foreclosure.
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12. Successors and Assigns. This Assignment shall be binding
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upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.
13. Termination. Upon the payment in full of all indebtedness
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secured by the Loan Documents, this Assignment shall become and be void and of
no effect.
14. Limitation of Liability. Notwithstanding anything in this
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Assignment to the contrary, all of Lender's rights and remedies for any default
by Owner hereunder are expressly limited by, and subject to, the provisions of
Section 2.20 of the Loan Agreement dated of even date herewith between Owner and
Lender entitled "Limitation of Liability." The foregoing shall in no manner
whatsoever limit the obligations or liabilities of Marriott under the Closing
and Indemnity Agreement.
15. Inconsistent Terms. To the extent any term or condition
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contained in the Closing and Indemnity Agreement is inconsistent with any of the
terms and conditions contained in this Assignment, the terms and conditions of
this Assignment shall control.
16. Lender's Acknowledgment. Lender hereby acknowledges and
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agrees that it has received evidence satisfactory to it as to the performance or
completion of all of the items identified on Schedule A to the Closing and
Indemnity Agreement, or that all of such items have otherwise been resolved in a
manner satisfactory to it, except for such items identified in Section 4(c)(ii)
and 4(c)(iv) hereof.
17. Loan Agreement. This Assignment is being executed and
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delivered pursuant to the Loan Agreement. All capitalized terms used herein,
unless otherwise herein defined, shall have the meanings ascribed to them in the
Loan Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused their
respective authorized officers or general partners to execute this Assignment
under seal as of the day and year first above written.
MARRIOTT DIVERSIFIED AMERICAN
HOTELS, L.P., a Delaware limited
partnership
By: Marriott MIDAH One Corporation, a
Delaware corporation, Sole General
Partner
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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[CORPORATE SEAL]
MARRIOTT CORPORATION, a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: SR. VICE PRESIDENT
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[CORPORATE SEAL]
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION
By:
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Name:
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Title:
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TABLE OF EXHIBITS
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Exhibit A - Legal Description
Exhibit B - Closing and Indemnity Agreement
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