EXHIBIT 10.f
MODIFICATION OF CREDIT AGREEMENT
AND GUARANTY
OF MANAGEMENT AGREEMENT
This MODIFICATION OF CREDIT AGREEMENT AND GUARANTY OF MANAGEMENT
AGREEMENT (the "Modification") dated as of February 1, 1995, between THE
SUMITOMO TRUST & BANKING CO., LTD. (the "Bank"), a banking corporation organized
under the laws of Japan, acting through its New York Branch and having an
address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Bank") and
FAIRFIELD INN BY MARRIOTT LIMITED PARTNERSHIP, a limited partnership existing
under the laws of the State of Delaware (the "Borrower").
WITNESSETH:
WHEREAS, the Bank and the Borrower entered into that certain Credit
Agreement dated as of July 31, 1990, as amended (the "Credit Agreement" --
capitalized terms not otherwise defined herein shall have the respective
meanings assigned in the Credit Agreement);
WHEREAS, the Borrower executed that certain Master Indenture of
Mortgage, Deed of Trust, Deed to Secure Debt, Assignment of Rents and Fixture
Filing dated as of July 31, 1990 in favor of the Bank (as the same may be
amended, supplemented or modified from time to time, the "Master Mortgage") and
executed the Implementing Indentures of Mortgage, Deed of Trust, Deed to Secure
Debt, Assignment of Rents and Fixture Filing as short forms of the Master
Mortgage (collectively, the "Implementing Mortgages"; the Master Mortgage and
the Implementing Mortgages, collectively, the "Mortgage");
WHEREAS, the Borrower executed that certain Promissory Note dated July
13, 1990 in favor of the Bank (the "Note");
WHEREAS, the Borrower and the Bank entered into that certain Security
Agreement dated as of July 31, 1990 (the "Security Agreement");
WHEREAS, Marriott executed that certain Guaranty of Management
Agreement dated as of July 31, 1990 in favor of the Bank (the "Management
Guaranty");
WHEREAS, Marriott transferred the stock of the Manager to Marriott
International, Inc., a Delaware corporation ("MI") (such transfer being
hereinafter referred to as the "Manager Transfer");
WHEREAS, Marriott transferred the stock and/or fee interests of all
Ground Lessors to a subsidiary of MI or to MI (the "Ground Lessor Transfer");
WHEREAS, MI would assume, and Marriott would be released from, all
obligations of the Guarantor (as defined in the Management Guaranty) under the
Management Guaranty (the "Management Guaranty Transfer"; the Manager Transfer,
the Ground Lessor Transfer and the Management Guaranty Transfer, collectively,
the "Transfers");
WHEREAS, Marriott has requested that the Bank grant its consent to the
Transfers;
WHEREAS, the Borrower and the Bank are executing modifications of the
Mortgage dated as of the date hereof (collectively, the "Mortgage
Modifications"); and
WHEREAS, the Bank and the Borrower wish to modify certain provisions
of the Credit Agreement in order to provide as set forth herein.
NOW, THEREFORE, to modify certain provisions of the Credit Agreement
and the Management Guaranty, and in consideration of the premises and of the
mutual covenants contained herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree, effective as of the date hereof, as follows:
1. Marriott has changed its name to "Host Marriott Corporation"
(hereinafter "Marriott").
2. The following definition shall be added to Section 1 of the Credit
Agreement:
"Marriott International" shall mean Marriott International, Inc., a
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Delaware corporation, its successors and assigns.
3. Section 3 of the Credit Agreement shall be deleted in its entirety
and the following shall be substituted in its place:
Section 3. Payments of Principal and Interest.
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3.01 Repayment of Loans. The Borrower will pay to the Bank the
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principal of the Loans, and each Loan shall mature, on December 31, 1996 (the
"Maturity Date").
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3.02 Interest. The Borrower will pay to the Bank interest on the
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unpaid principal amount of each Loan for the period from and including the date
of such Loan to but excluding the Maturity Date at the rate of 9.67% per annum.
Notwithstanding the foregoing, the Borrower will pay to the Bank interest at the
Post-Default Rate on any principal of and interest on any Loan and on any other
amount payable by the Borrower hereunder or under the Note, which shall not be
paid in full when due (whether at stated maturity, by acceleration, on a
Prepayment Date or otherwise), for the period from and including the due date
thereof to but excluding the date the same is paid in full. Accrued interest on
each Loan shall be payable semiannually on the Semi-Annual Dates, or upon the
payment or prepayment thereof (but accrued only on the principal amount so paid
or prepaid); provided, further, that interest payable at the Post-Default Rate
shall be payable from time to time on demand.
4. Section 7.23 of the Credit Agreement shall be deleted in its
entirety and the following substituted in its place:
7.23. Relation to Marriott and Marriott International: The Manager
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is a direct or indirect Wholly-Owned Subsidiary of Marriott International. The
General Partner is a direct or indirect Wholly-Owned Subsidiary of Marriott. At
all times, (a) the General Partner shall be the only general partner of the
Borrower, and (b) the General Partner will remain a direct or indirect Wholly-
Owned Subsidiary of Marriott. At all times hereafter, Marriott International or
a subsidiary of Marriott International will be the lessor under each Ground
Lease. At all times hereafter, the Manager will remain a direct or indirect
Wholly-Owned Subsidiary of Marriott International.
5. Clause (1) of Section 9 of the Credit Agreement shall be deleted
in its entirety and the following substituted in its place:
The General Partner shall at any time cease to be the sole general
partner of the Borrower; the General Partner shall at any time cease
to be a direct or indirect Wholly-Owned Subsidiary of Marriott; the
Manager shall at any time cease to be a direct or indirect
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Wholly-Owned Subsidiary of Marriott International; or Marriott
International or a subsidiary of Marriott International shall at any
time cease to be the lessor under the Ground Leases.
6. Simultaneously herewith Marriott International and Marriott are
executing an Assignment and Assumption Agreement dated the date hereof
substantially in the form of Exhibit A (the "Management Guaranty Assignment")
and upon such execution Marriott Corporation shall be released from all
obligations of the Guarantor (as defined in the Management Guaranty) under the
Management Agreement incurred after the date hereof.
7. The parties hereto confirm that the Mortgage, as modified and
supplemented by the Mortgage Modifications, and the Security Agreement as well
as any other Related Agreement given to secure the obligations of the Borrower
shall secure the Credit Agreement as amended and modified hereby as well as any
obligations of the Borrower under any other Related Agreements as amended
hereby.
8. Representations and Warranties: The Borrower further represents
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and warrants to the Bank:
a. The Borrower is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The Borrower is duly qualified to transact business in
the States of Alabama, California, Florida, Georgia, Illinois,
Indiana, Iowa, Kansas, Maryland, Michigan, Missouri, North
Carolina, Ohio, South Carolina, Tennessee, Virginia and Wisconsin
and in such other jurisdictions where failure so to qualify would
have a material adverse effect on the financial condition,
operations, business or prospects of the Borrower.
b. The General Partner is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The General Partner is duly qualified to transact
business in the States of Alabama, California, Florida, Georgia,
Illinois, Indiana, Iowa, Kansas, Maryland, Michigan, Missouri,
North Carolina, Ohio, South Carolina, Tennessee, Virginia, and
Wisconsin and in such other jurisdictions where failure so to
qualify would have a material adverse effect on the financial
condition, operations, business or prospects of the General
Partner.
c. Each of the Borrower and the General Partner has all requisite
legal right, power and authority to execute, deliver and perform
the Modification, the Mortgage Modifications and Management
Guaranty Assignment and to consummate the transaction
contemplated hereby and thereby. The execution, delivery and
performance by the Borrower and the General Partner of the
Modification, the Mortgage Modifications and the Management
Guaranty Assignment have been duly authorized by all necessary
action on the part of the Borrower and the General Partner, as
the case may be. All consents of any other Person (including
partners or creditors of the Borrower) and all consents or
authorizations of, or other acts by or in respect of any
Governmental Authority, required to be obtained by the Borrower
in connection with the execution, delivery and performance by the
Borrower and the General Partner, and the validity, binding
effect and enforceability of each such party's obligations under
the Modification, the Mortgage Modifications and the Management
Guaranty Assignment have been obtained and are in full force and
effect.
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d. The Modification, the Mortgage Modifications and the Management
Guaranty Assignment when executed and delivered will constitute
legal, valid and binding obligations of the Borrower and the
General Partner, enforceable in accordance with its respective
terms, except as such enforceability may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general applicability effecting the enforcement
of creditors' rights and (ii) the application of general
principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
e. The execution, delivery and performance by Borrower and the
General Partner of the Modification, the Mortgage Modifications
and the Management Guaranty Assignment to which either is a party
and the consummation of the transactions contemplated thereby
will not (i) conflict with or constitute a breach of or default
under any agreement, indenture, lease or other instrument to
which either is a party or by which it is or its revenues,
properties, assets or operations are bound or subject, or violate
any Legal Requirements; (ii) result in the creation or imposition
of any Lien upon either of such party's revenues, properties or
assets, other than as specifically contemplated by the
Modification, the Mortgage Modifications and the Management
Guaranty Assignment; (iii) result in the acceleration of any
Indebtedness of such party; or (iv) result in a material adverse
change in any agreement material to the operation of any Hotel.
f. Except as set forth in Exhibit B hereto, no litigation,
investigation or other proceeding is pending or, to the best of
Borrower's knowledge, threatened before or by any Governmental
Authority in any way restraining or enjoining, or threatening or
seeking to restrain or enjoin, or in any way questioning or
affecting the validity, binding effect or enforceability, as
against the Borrower and the General Partner of, any provisions
of the Modification, the Mortgage Modifications and the
Management Guaranty Assignment or the legal existence of the
Borrower and the General Partner, the status of its partners as
partners, or its ability to conduct its operations, to perform
its obligations under the Modification, the Mortgage
Modifications and the Management Guaranty Assignment or to
consummate any of the transactions contemplated thereby or
affecting the Hotels or the Trust Estate.
g. Neither the Borrower nor the General Partner is in default under
any existing judgment, order, award or decree of any Governmental
Authority or any other Legal Requirement, binding upon or
affecting it.
h. The Borrower is not an "investment company" or a company
"affiliated" with or "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as
amended, and the Borrower will not become such by reason of its
execution and delivery of, or performance of its obligations
under, the Modification, the Mortgage Modifications and/or the
Management Guaranty Assignment.
i. All of the representations and warranties set forth in the Credit
Agreement, the Mortgage and the Management Guaranty, as modified
hereby are true and correct as of the date hereof.
j. As of the date hereof, there are no counterclaims, offsets or
defenses with respect to the obligations of the Borrower and the
General Partner under the
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Credit Agreement, the Management Guaranty and/or any other
Related Agreements as modified hereby.
k. As of the date hereof, all the recitals in this Modification are
true and correct.
9. Except as modified hereby, the Credit Agreement and the other
Related Agreements shall remain unmodified and in full force and effect.
10. This Modification may be executed in two counterparts, each of
which shall constitute an original, but both of which together shall constitute
one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Modification
to be duly executed as of the day and year first above written.
FAIRFIELD INN BY MARRIOTT
LIMITED PARTNERSHIP
By Marriott FIBM One Corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxx
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Vice President
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
SENIOR VICE PRESIDENT
MANAGER, PROJECT FINANCE DEPT.
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EXHIBIT A
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ASSIGNMENT AND ASSUMPTION OF MANAGEMENT GUARANTY
This Assignment and Assumption of Guaranty of Management Agreement
dated as of February 1, 1995 (the "Assignment and Assumption") between Host
Marriott Corporation (as a result of a name change from Marriott Corporation), a
corporation organized under the laws of the State of Delaware ("Marriott"), and
Marriott International, Inc. ("International"), a corporation organized under
the laws of the State of Delaware.
W I T N E S S E T H
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WHEREAS, Marriott is the guarantor under that certain Guaranty of
Management Agreement dated as of July 31, 1990 in favor of The Sumitomo Trust &
Banking Co., Ltd. (the "Bank") (the "Management Guaranty");
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
1. Marriott hereby sells, transfers, assigns and sets over to
International all of its obligations, covenants and duties as guarantor under
the Management Guaranty after the date hereof.
2. International hereby accepts such assignment and assumes and
agrees to perform and comply with all the covenants, duties and obligations of
Marriott as guarantor under the Management Guaranty after the date hereof and
consents to Collateral Assignment of Management Agreement from Fairfield Inn by
Marriott Limited Partnership ("Fairfield") to the Bank and the Subordination and
Attornment of Management Agreement among Fairfield, the Bank and Fairfield FMC
Corporation (the "Subordination") and agrees to the provisions of Section 9 of
the Subordination.
This Assignment and Assumption shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Modification
to be duly executed as of the day and year first above written.
HOST MARRIOTT CORPORATION
By:
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Title: Vice President
MARRIOTT INTERNATIONAL, INC.
By:
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Title: Vice President
EXHIBIT B
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LITIGATION
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NONE
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