EXHIBIT 4
[Execution Counterpart]
CONTRACT AMENDMENT NO. 2
THIS CONTRACT AMENDMENT NO. 2 (this "Amendment"), made
as of the 18th day of November, 1996 by and among HUDSON HOTELS
PROPERTIES CORP., a New York corporation with offices at Xxx
Xxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("Purchaser"),
SB MOTEL RICHMOND CORP., SB MOTEL DURHAM-RESEARCH TRIANGLE PARK
CORP., SB MOTEL CARY CORP., SB MOTEL STATESVILLE CORP., SB MOTEL
WILMINGTON CORP., SB MOTEL COLUMBIA CORP., SB MOTEL CHARLESTON
CORP., SB MOTEL ALBANY CORP., SB MOTEL VIRGINIA BEACH CORP., SB
MOTEL XXXXXX-XXXX CORP., SB MOTEL RALEIGH CORP. and SB MOTEL
CHARLOTTE I-85 CORP., each a Delaware corporation with offices at
Xxxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xx.
Xxxx X. Xxxx, Vice President (collectively, "Sellers") and HUDSON
HOTELS CORPORATION, a New York corporation with offices at Xxx
Xxxxxxx Xxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Sellers, Purchaser and Xxxxxx entered into
that certain Agreement of Purchase and Sale, dated September 27,
1996, as amended by (i) that certain Contract Amendment No. 1,
dated October 31, 1996 (the "First Amendment") and (ii) that
certain letter agreement dated November 15, 1996; and the
Agreement of Purchase and Sale as amended by the First Amendment,
the "P&S Agreement"); all capitalized terms not herein defined
shall have the meanings ascribed to such terms in the P&S
Agreement;
WHEREAS, Sellers, Purchaser and Xxxxxx wish to amend
the P&S Agreement as provided below.
NOW THEREFORE, for $1.00 and other good and valuable
consideration, the receipt and sufficiency of which is hereby
mutually acknowledged, and the mutual covenants contained herein,
the parties hereto, intending to be legally bound, hereby agree,
and the P&S Agreement is hereby amended, as follows:
1. (a) The Purchase Price is hereby reduced by
$600,000 to Sixty Million Four Hundred Thousand and no/100
Dollars ($60,400,000). Section 2.2 of the P&S Agreement is hereby
deleted in its entirety and the following is hereby substituted
therefor:
"2.2. The balance of the Purchase Price
($58,950,000.00) shall be paid by Purchaser to
Sellers at the Closing (as hereinafter defined)
as follows:
(a) The sum of Fifty Three Million Five Hundred
Fifty Thousand and NO/100 Dollars
($53,550,000.00), plus the Stock Price Adjustment
Amount (as hereinafter defined), if any, shall be
paid by Purchaser in cash by wire transfer of
immediately available funds to an account or
accounts designated in writing by Sellers;
(b) Xxxxxx shall deliver to Sellers (i) a
promissory note executed by Xxxxxx in the amount
of Three Million and NO/00 Dollars ($3,000,000),
plus or minus any closing adjustments made
pursuant to Section 9, in the form of Exhibit D,
attached hereto and incorporated herein by
reference (the "Note"); and
(c) Purchaser shall deliver to Sellers the lesser
of (i) 400,000 shares of the common stock, par
value $0.001, of Xxxxxx (the "Xxxxxx Common
Stock") or (ii) that number of shares of Xxxxxx
Common Stock that is equal to the number
determined by dividing $2,400,000 by the Per
Share Market Price (such number of shares of
Xxxxxx Common Stock determined in accordance with
clauses (i) and (ii) above shall be referred to
herein as the "Shares").
For purposes hereof, the term "Stock Price
Adjustment Amount" shall mean the amount, if any,
by which (i) the product of the Per Share Market
Price (as defined below) multiplied by 400,000 is
less than (ii) $2,400,000, and the term "Per
Share Market Price" shall mean the average
closing price per share of Xxxxxx Common Stock on
NASDAQ for the five trading days immediately
preceding the Closing Date. If the Closing
occurs, Purchaser will be entitled to a $50,000
credit against the Purchase Price (which $50,000
represents the deposit previously paid by
Purchaser to Sellers which had been forfeited)."
(b) Exhibit E of the P&S Agreement is hereby deleted
in its entirety and replaced with the Exhibit E attached hereto
and incorporated herein by reference.
2. Subpart (k) of Section 5.2 of the P&S Agreement is
hereby deleted in its entirety and replaced with the following:
"(k) An indemnity agreement in the form of Exhibit J;
and
(l) Such other instruments as are customarily
executed by sellers to effectuate the sale of
property similar to the Premises, provided that
this subpart
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(l) shall not require Sellers to incur expenses,
liabilities or obligations in excess of those
provided for elsewhere in this Agreement."
3. The following Section 12.7 is hereby added to the
P&S Agreement immediately following Section 12.6 of the P&S
Agreement:
"12.7. (a) Seller's parent corporation, SB Motel
Corp., a Delaware corporation, hereby represents
and warrants that, to SB Motel's knowledge,
neither it nor any of its affiliates or
subsidiaries (including, but not limited to, SB
Motel Columbia Corp.) (x) has been named or
joined as a party in that certain litigation in
the Court of Common Pleas of the State of South
Carolina captioned Xxxx Xxxxxxx and Xxxxx Xxxxxx
Xxxxx v. Hotel Renovations of Dallas and American
General Hospitality Incorporated, CA No.
95-CP-40-0773 (the "Xxxxxxx Litigation"), or (y)
is a defendant in or party to any other action or
proceeding of any kind with respect to the claim
asserted in the Xxxxxxx Litigation.
The term to "SB Motel Corp.'s knowledge" or any
similar phrase, as used above, shall mean the
actual knowledge, without specific investigation
or inquiry, of Xxxx X. Xxxx, Vice President of SB
Motel Corp.
(b) The representation and warranty made by SB
Motel Corp. in subsection (a) shall survive the
Closing until the fifth anniversary of the
Closing Date or until a sale, assignment or other
transfer of the Premises (or any part thereof) by
Purchaser, if sooner (provided that neither an
assignment pursuant to Section 16.2 of the P&S
Agreement nor a grant to a lender of a deed of
trust, shall constitute such a sale, assignment
or other transfer). No claim may be asserted by
Purchaser under the foregoing representation or
warranty after the expiration of such survival
period, and all claims for breach of such
representation and warranty asserted during such
survival period may continue to be asserted after
such survival period only if during the survival
period the claiming party provided the other
party specific and detailed written notice
thereof and commenced and diligently prosecuted a
law suit against the other in connection
therewith.
(c) SB Motel Corp. has executed this Agreement
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solely to acknowledge its representation and
warranty set forth in subsection 12.7(a)."
4. Sections 12.4 and 12.5 are hereby amended to add
the following sentence as the second sentences of such Sections:
"Neither an assignment pursuant to Section 16.2 hereof nor the
execution and delivery of deeds of trust and mortgages by
Purchaser to its lender shall constitute a sale, assignment or
other transfer of the Premises."
5. Section 3.11 of the P&S Agreement is hereby deleted
in its entirety and the following is hereby substituted there for:
"3.11. (a) In the event that on or before the
Closing, either (i) the ground lessor under the
Statesville Ground Lease has not executed and
delivered to Purchaser an estoppel certificate in
substantially the form attached hereto as Exhibit
K or in a form which is otherwise reasonably
acceptable to Purchaser, or (ii) a Deed of
Easement substantially in the form attached
hereto as Exhibit L or in a form which is
otherwise reasonably acceptable to Purchaser has
not been executed by the parties thereto and
delivered to Purchaser, then Purchaser shall have
the right to exclude from the Premises being
purchased and sold hereunder the Statesville
Property, the Statesville Ground Lease and any
Personalty, Contracts, Permits, Inventory,
Intangible Rights, books and records, "as-built
drawings", documentation, instrumentation, rights
and other aspects of the Premises which relate to
the Statesville Property (collectively, the
"Statesville Premises"). Purchaser's right to
exclude the Statesville Premises from the
Premises may be exercised by written notice to
Sellers on or before the Closing Date. Any
exercise of such right shall be irrevocable.
(b) If the Statesville Premises are excluded from
the Premises being purchased and sold hereunder
pursuant to subsection 3.11(a), then the Purchase
Price shall be reduced by $3,741,000.00 (the
"Statesville Purchase Price Reduction Amount") to
the sum of Fifty Six Million Six Hundred Fifty
Nine Thousand and No/100 Dollars
($56,659,000.00), and, to reflect such reduction,
Section 2.2 shall be deemed to have been deleted
in its entirety and the following substituted
therefor:
'2.2. The balance of the Purchase Price
($55,209,000.00) shall be paid by Purchaser to
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Sellers at the Closing (as hereinafter
defined) as follows:
(a) The sum of Fifty Million Five Hundred
Fifty-Seven Thousand Two Hundred Dollars
($50,557,200.00), plus the Stock Price
Adjustment Amount (as hereinafter defined),
if any, shall be paid by Purchaser in cash
by wire transfer of immediately available
funds to an account or accounts designated
in writing by Sellers;
(b) Xxxxxx shall deliver to Sellers (i) a
promissory note executed by Xxxxxx in the
amount of Two Million Six Hundred and Twenty
Five Thousand Nine Hundred Dollars
($2,625,900), plus or minus any closing
adjustments made pursuant to Section 9, in
the form of Exhibit D, attached hereto and
incorporated herein by reference (the
"Note"); and
(c) Purchaser shall deliver to Sellers the
lesser of (i) 337,650 shares of the common
stock, par value $0.001, of Xxxxxx (the
"Xxxxxx Common Stock") or (ii) that number
of shares of Xxxxxx Common Stock that is
equal to the number determined by dividing
$2,025,900 by the Per Share Market Price
(such determined in accordance with clauses
(i) and (ii) above shall be referred to
herein as the "Shares").
For purposes hereof, the term "Stock price
Adjustment Amount" shall mean the amount, if
any, by which (i) the product of the Per
Share Market Price (as defined below)
multiplied by 337,650 is less than (ii)
$2,025,900, and the term "Per Share Market
Price" shall mean the average closing price
per share of Xxxxxx Common Stock on NASDAQ
for the five trading days immediately
preceding the Closing Date. If the Closing
occurs, Purchaser will be entitled to a
$50,000 credit against the Purchase Price
(which $50,000 represents the deposit
previously paid by Purchaser to Sellers
which had been forfeited) .'
(c) If the Statesville Premises are excluded from the
Premises being purchased hereunder pursuant to
Subsection 3.11(a), any and all covenants,
representations, warranties, obligations and
liabilities set forth herein relating to the
Statesville Premises shall be null and
5
void and of no further force and effect, and every
reference to either SB Motel Statesville Corp. or any
of the Statesville Premises shall be stricken from the
provisions hereof, in each case as if the Statesville
Premises had never been the subject of this Agreement.
If the Statesville Premises are excluded from the
Closing pursuant to this Section 3.11, SB Motel
Statesville Corp. shall use good faith efforts (which
shall not include the expenditure of any funds or the
making of any changes, alterations or improvements to
any Premises) to assist Purchaser to obtain the
documents attached hereto as Exhibits K and L (or
substitutes reasonably acceptable to Purchaser) prior
to December 31, 1996. If the documents attached hereto
as Exhibits K and L (or substitutes reasonably
acceptable to Purchaser) can be obtained on or prior
to December 31, 1996, Purchaser and SB Motel
Statesville Corp. shall close on the Statesville
Premises on or before December 31, 1996 at the
Statesville Purchase Price Reduction Amount, and
otherwise on the terms set forth in this Agreement,
with the purchase price thereof paid in the same
proportions of cash, a promissory note executed by
Xxxxxx, and shares of Xxxxxx Common Stock as set forth
in Section 2.2 as amended by this Contract Amendment
No. 2. If the Closing of the Statesville Premises has
not occurred on or before December 31, 1996 as
contemplated hereunder, then Purchaser shall (x) have
no right or claim whatsoever in or to the Statesville
Premises and shall, if so requested by Sellers,
promptly execute a recordable instrument evidencing
same and waiving all rights with respect to the
Statesville Premises and (y) promptly deliver to
Sellers all Statesville Premises related due diligence
reports, surveys and other materials in Purchaser's
possession together with documentation sufficient to
grant to Sellers (and their assignees) full right and
title thereto."
6. Purchaser acknowledges that it has completed its
investigation of the Premises and is satisfied with all aspects
thereof. Accordingly, Section 3.4 of the P&S Agreement and
Section 1 of the First Amendment are hereby deleted in their
entirety and each of the parties hereto waives any and all rights
it had or may have had under such Sections. Purchaser hereby
waives any and all objections it had or might have with respect
to the condition of the Premises and agrees that Sellers shall
have no obligations whatsoever to cure any defects in or problems
with the Premises or to incur any costs or expenses in connection
therewith, whether such defects or problems are set forth in
Exhibit A to the First Amendment, in the Xxxx Damage Schedule, or
otherwise. Purchaser waives any and all rights which it might
have under or in connection with the Xxxx Damage Schedule and/or
the letter from Sellers which is attached as Exhibit A to the
First Amendment (and
6
such schedule and letter shall be null and void). Purchaser
hereby waives any right to terminate the P&S Agreement under
Section 3.1 thereof or otherwise. As of the date hereof,
Purchaser's and Xxxxxx'x obligation to close the transactions
contemplated by the P&S Agreement are unconditional, the Deposit
is non refundable, and neither Purchaser nor Xxxxxx has or shall
have any termination rights under the P&S Agreement whatsoever
(provided that the foregoing shall not invalidate Purchaser's
remedies for any default by Sellers, as set forth in Section 8 of
the P&S Agreement). Purchaser further waives any and all
objections and other matters set forth in the Title Notice sent
to Sellers (including, without limitation, all Title Defects) and
acknowledges that Sellers have not agreed to cure any such
objections or other matters. All such objections or other matters
constitute Permitted Exceptions, and Purchaser (x) waives any
right to object thereto and (y) agrees to take title subject
thereto at Closing. Purchaser hereby waives any and all rights it
might have under Section 4.1 of the P&S Agreement and accepts the
quality and condition of title to the Premises.
Notwithstanding the foregoing, Sellers have agreed to provide the
following title curatives at Closing:
(i) The inclusion in the deeds to each of the
Properties of standard quit claim language
utilizing the insured legal descriptions required
by Purchaser's Title Notice where such legal
descriptions vary from the vesting deed legal
descriptions;
(ii) Standard gap/hold harmless indemnities or owner's
affidavits of liens and parties in possession as
required by the Purchaser's Title Company (which
shall not cover any Permitted Exceptions);
(iii)Evidence of payment of $5,000 to the sealing
contractor with respect to the Richmond property
(referenced in Exhibit F to the P&S Agreement);
and
(iv) Evidence of payment or an indemnity reasonably
satisfactory to the Title Company regarding the
$25,000 owed to the contractor with respect to
the Columbia Property (referenced in Exhibit F to
the P&S Agreement).
Sellers will, additionally, use their good faith efforts (which
shall not include the expenditure of any funds or the making of
any changes, alterations or improvements to any Premises) to
assist Purchaser to secure the following:
(a) An Estoppel Certificate from the Xxxxxxx Company
with respect to the Richmond Property in the form
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attached as Exhibit M;
(b) An Encroachment Agreement in the form provided
with respect to the Virginia Beach property in
the form attached hereto as Exhibit M;
(c) A Subordination, Nondisturbance and Attornment
Agreement and estoppel letter in the form
provided by the Purchaser with respect to the
cellular dish lease affecting the Xxxxxx-Xxxx
Property in the form attached hereto as Exhibit
M; and
(d) Two estoppel letters in forms provided by the
Purchaser regarding the driveway easement and the
Declaration of Covenants, Conditions and
Restrictions with respect to the Raleigh Property
in the form attached hereto as Exhibit M.
Purchaser's receipt of the foregoing items (a) through (d) shall
not be a condition to Closing. Sellers have not provided any
assurances, representations or warranties that any of the
foregoing items will be secured. Provided that Sellers use good
faith efforts (as limited above) to assist Purchaser in securing
the aforesaid items, if such items are not secured, (x) Sellers
shall have no obligation or liability in connection therewith,
and (y) Purchaser shall not have any right to terminate this
Agreement, fail to close hereunder or seek any remedy or recourse
against Sellers as a result thereof.
Nothing contained herein is intended to waive Sellers'
obligation to produce documents of conveyance or standard title
curatives expressly provided for in Section 5 of the P&S
Agreement.
7. Except as expressly modified by provisions of this
Amendment, all of the terms, covenants and conditions of the P&S
Agreement shall remain unmodified and in full force and effect.
8. This Amendment may not be changed orally and shall
be construed according to the laws of the State of New York, and
any legal action or proceeding with respect to or in connection
with this Amendment must be brought in the Supreme Court of the
State of New York within the First Judicial Department, 1st
District, New York City, or the Federal Courts for the Southern
District of New York.
9. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed
this Amendment as of the day and year first above written.
8
SB MOTEL RICHMOND CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL DURHAM-RESEARCH TRIANGLE PARK
CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL CARY CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL STATESVILLE CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL WILMINGTON CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
9
SB MOTEL COLUMBIA CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL CHARLESTON CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL ALBANY CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL VIRGINIA BEACH CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL XXXXXX-XXXX CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL RALEIGH CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
SB MOTEL CHARLOTTE I-85 CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
10
XXXXXX HOTELS PROPERTIES CORP.
By:______________________
Name: E. Xxxxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
XXXXXX HOTELS CORPORATION
By:______________________
Name: E. Xxxxxxx Xxxxxx
Title: Chairman and Chief
Executive Officer
E. Xxxxxxx Xxxxxx is executing this Contract
Amendment No. 2 in his individual capacity
solely to acknowledge and confirm his
covenant set forth in Section 15.3(b) of the
P&S Agreement.
________________________________
E. XXXXXXX XXXXXX
11
Escrow Agent is executing this Contract
Amendment No. 2 solely to acknowledged its
continued obligations as Escrow Agent
LAWYERS TITLE INSURANCE CORPORATION
By:_______________________________
Name:____________________________
Title:___________________________
12
SB Motel Corp is executing this Contract
Amendment No. 2 solely to acknowledge and
confirm its representations and warranties
made in Section 3 hereof.
SB MOTEL CORP.
By:______________________
Name: Xxxx X. Xxxx
Title: Vice President
13
EXHIBIT E
Purchase Price Allocation
SB Motel Albany Corp. $3,151,000
SB Motel Xxxx Corp. $6,008,000
SB Motel Charleston Corp. $5,938,000
SB Motel Charlotte 1-85 Corp. $3,291,000I
SB Motel Columbia Corp. $5,811,000
SB Motel Xxxxxx-Xxxx Corp. $8,929,000
SB Motel Durham Research Triangle Park Corp. $4,920,000
SB Motel Raleigh Corp. $3,835,000
SB Motel Richmond Corp. $6,510,000
SB Motel Statesville Corp. $3,741,000
SB Motel Virginia Beach Corp. $2,286,000
SB Motel Wilmington Corp. $5,980,000
Total $60,400,000
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Exhibit J
November 27, 1996
HH Properties-I, Inc.
HH Properties-VB, Inc.
Xxx Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attn: E. Xxxxxxx Xxxxxx, Chairman
Re: Agreement of Purchase and Sale, dated September 27, 1996,
among Xxxxxx Hotels Properties Corp. ("Purchaser"), SB Motel
Albany Corp., SB Motel Raleigh Corp., SB Motel Xxxx Corp., SB
Motel Richmond Corp., SB Motel Charleston Corp., SB Motel
Statesville Corp., SB Motel Charlotte 1-85 Corp., SB Motel
Virginia Beach Corp., SB Motel Columbia Corp., SB Motel
Xxxxxx-Xxxx Corp., SB Motel Wilmington Corp., SB Motel Durham-
Research Triangle Park Corp. (collectively, "Sellers"), and
Xxxxxx Hotels Corp. ("Xxxxxx"), as amended by (i) that certain
Contract Amendment No. 1, dated
October 31, 1996 and (ii) that certain Contract Amendment No.
2, dated November 18, 1996 (as amended, the "P&S Agreement");
all capitalized terms not herein defined shall have the
meanings ascribed to such terms in the P&S Agreement
Gentlemen:
Reference is hereby made to the following: (a) a certain
Adversary Proceeding that was commenced by Motels of America
("MOA") as Debtor and Debtor-in-Possession, and Ben Franklin
Properties, Inc. in its own right and as Assignee of Ameritech
Pension Trust ("Ben Franklin") against Salomon Brothers Inc
("Salomon") and Salomon Brothers Realty Corp. ("SBRC") captioned
Motels of America. Inc. et al. x. Xxxxxxx Brothers Inc et al. No.
A-91-167 in the United States Bankruptcy Court for the District of
Delaware (the "MOA Litigation"), which proceeding was settled
pursuant to a certain settlement agreement by and among MOA, Xxx
Xxxxxxxx, Xxxxxxx and SBRC, dated as of March 27, 1992 (which was
approved by Order of such Bankruptcy Court by Order dated July 23,
1992 filed with the Clerk thereof on July 27, 1992); (b) a certain
action that was commenced in the United
E. Xxxxxxx Xxxxxx
Xxxxxx Hotels Properties Corp.
November 27, 1996
Page 2
the United States District Court for the Northern District of
Illinois by purchasers of certain of the first mortgage notes
(collectively, "Xerox") secured by mortgages on, among other
things, the Properties and captioned Xerox Financial Services
Life Ins. Co. et al. x. Xxxxxxx Brothers Inc et al. No. 93-C-
1767 (the "Xerox Litigation"), which action was settled pursuant
to a certain settlement agreement dated September 9, 1993 by and
among Xerox and Salomon; (c) a certain action filed in the United
States District Court for the Northern District of Illinois which
is known as Xxxxxx Trust Savings Bank, not individually but
solely as trustee for Ameritech Pension Trust ("APT"), Ameritech
Corporation and Xxxx X. Xxxxxxxxx (collectively, "Ameritech") x.
Xxxxxxx Brothers Inc and Salomon Brothers Realty Corp. (92 Civ.
5883 (MEA)) (the "Ameritech Litigation"); (d) an investigation
conducted by the United States Department of Labor (the "DOL") of
certain transactions between Salomon, SBRC and APT which are also
a subject of the Ameritech Litigation (the "DOL Investigation");
and (e) the potential assessment against Salomon, SBRC and APT of
excise taxes by the United States Internal Revenue Service (the
"IRS") for alleged prohibited transactions arising out of certain
transactions between Salomon, SBRC and APT which are also a
subject of the Ameritech Litigation (the "IRS Investigation"; the
MOA Litigation, the Xerox Litigation, the Ameritech Litigation,
the DOL Investigation and the IRS Investigation being referred to
herein collectively as, the "Litigation"). Salomon and SBRC
disputed both the factual and the legal basis for the claims
asserted in the MOA Litigation and the Xerox Litigation, and
dispute both the factual and the legal basis for the claims
asserted or which would be asserted in the Ameritech Litigation,
the DOL Investigation and the IRS Investigation.
Subject to the terms and conditions of this letter,
Salomon shall, from and after the Closing, indemnify and protect
HH Properties-I, Inc. and HH Properties-VB, Inc. (collectively,
"Indemnitees" and each an "Indemnitee") from and against any and
all actions, causes of action, suits, claims, judgments, demands
or liens whatsoever, in law or at equity (collectively, "Claims")
which (i) are made by MOA or Ben Franklin against Indemnitees, or
either of them, and result directly by reason of or on account of
the MOA Litigation, (ii) are made by Xerox against Indemnitees,
or either of them, and result directly by reason of or on account
of the Xerox Litigation, (iii) are made by Ameritech against
Indemnitees, or either of them, and result directly by reason of
or on account of the Ameritech Litigation, (iv) are made by the
DOL against Indemnitees, or either of them, and result directly
E. Xxxxxxx Xxxxxx
Xxxxxx Hotels Properties Corp.
November 27, 1996
Page 3
by reason of or on account of the DOL Investigation, and (v) are
made by the IRS against Indemnitees, or either of them, and
result directly by reason of or on account of the IRS
Investigation (each, an "Indemnified Claim"), provided that,
notwithstanding the foregoing, in no event shall Salomon have any
liability or responsibility for and the Indemnified Claims shall
not include, Indemnitees' incidental or consequential damages or
any Claims by any party other than (i) MOA or Ben Franklin (by
reason of or on account of the MOA Litigation), (ii) Xerox (by
reason of or on account of the Xerox Litigation), (iii) Ameritech
(by reason of or on account of the Ameritech Litigation), (iv)
the DOL (by reason of or on account of the DOL Investigation),
and (v) the IRS (by reason of or on account of the IRS
Investigation).
The obligations and liabilities of Salomon which are
set forth above shall be subject to the following terms,
conditions and limitations:
(a) Indemnitees, or either of them, within ten (10)
days of obtaining any knowledge of any Claim which has
given rise to, or which might reasonably be expected to
give rise to, an Indemnified Claim, shall give written
notice ("Notice of Claim") of such Claim to Salomon, which
Notice of Claim shall include in reasonable detail all
information available to Indemnitees, or either of them,
with respect to such Indemnified Claim (including, without
limitation, the nature and basis of such Indemnified Claim,
and the amount thereof to the extent known). Indemnitees,
or either of them, shall provide with each Notice of Claim
copies of any summons, complaint or other pleading which
may have been served on it and any written claim, demand,
invoice, billing or other document evidencing or asserting
the same. Thereafter, Indemnitees, or either of them,
shall, as promptly as practicable but in any event no later
than ten (10) days after receiving from time to time any
documentation, notice or information relating to any
Indemnified Claim, provide copies thereof to Salomon;
(b) Salomon shall have the right to assume the defense
of any Indemnified Claim at its own expense and by its own
counsel. If Salomon shall assume the defense of an
Indemnified Claim, Salomon shall not be responsible for any
legal or other defense costs subsequently incurred by
Indemnitees, or either of them, in connection with the
defense thereof. If Salomon does not exercise its right to
E. Xxxxxxx Xxxxxx
Xxxxxx Hotels Properties Corp.
November 27, 1996
Page 4
assume the defense of any Indemnified Claim, then
In-demnitees, or either of them, may assume such defense
but the costs, expenses and reasonable attorneys' fees
incurred shall be paid by Salomon hereunder;
(c) Anything contained herein to the contrary
notwithstanding, Indemnitees, or either of them, shall not
admit any liability with respect to, or defend, settle,
compromise or discharge, any Indemnified Claim without the
express written consent of Salomon, which consent shall not
be unreasonably withheld. Indemnitees, or either of them,
shall in all respects cooperate with Salomon and act in a
reasonable and good faith manner to minimize Salomon's
liability in connection with any Indemnified Claim; and
(d) Indemnitees' right to indemnification hereunder
shall be the sole remedy to which Indemnitees and Xxxxxx
shall be entitled with respect to the Litigation and/or any
Indemnified Claims.
This indemnity shall survive (i) with respect to the
indemnities arising in connection with the MOA Litigation, the
Xerox Litigation, the DOL Investigation and the IRS
Investigation, until the fifth anniversary of the Closing Date or
until a sale, assignment or other transfer of the Premises (or
any part thereof) by Indemnitees, if sooner (provided, however,
that neither an assignment pursuant to Section 16.2 of the P&S
Agreement, nor a grant to a lender of a deed of trust covering
the Premises or any part thereof shall constitute such a sale,
assignment or other transfer, and (ii) with respect to the
indemnity arising in connection with the Ameritech Litigation,
until the fifth anniversary of a final, non-appealable judgment
concluding the Ameritech Litigation. No claim may be asserted by
Indemnitees under the foregoing indemnity after the expiration of
such survival period, and all claims for breach of such indemnity
asserted during such survival period may continue to be asserted
after such survival period only if during the survival period the
claiming party provided the other party specific and detailed
written notice thereof and commenced and diligently prosecuted a
law suit against the other in connection therewith.
Neither this indemnity nor any of the respective
obligations, covenants or agreements hereunder may be assigned in
whole or in part, directly or indirectly, by operation of law or
otherwise excepting, however, an assignment pursuant to Section
16.2 of the P&S Agreement.
E. Xxxxxxx Xxxxxx
Xxxxxx Hotels Properties Corp.
November 27, 1996
Page 5
Any notice to be given hereunder shall be given in the
manner and subject to the provisions set forth in Section 10 of
the P&S Agreement. Any notice to be given to Indemnitees, or
either of them, hereunder shall be to the address set forth in
Section 10 of the P&S Agreement, and any notice to be given to
Salomon hereunder shall sent to the following address:
Salomon Brothers Inc, Seven World Trade Center, 33rd Floor, New
York, New York 10048, Attn: Xxxx X. Xxxx.
The provisions hereof may not be changed orally and
shall be construed according to the laws of the State of New
York, and any legal action or proceeding with respect to or in
connection with the provisions hereof must be brought in the
Supreme Court of the State of New York within the First Judicial
Department, 1st District, New York City, or the Federal Courts
for the Southern District of New York.
Very truly yours,
SALOMON BROTHERS INC
By:__________________________
Name:
Title:
ACKNOWLEDGED, APPROVED
AND ACCEPTED:
HH PROPERTIES-I, INC.
By:_______________________
Name:
Title:
HH PROPERTIES-VB, INC.
By:_______________________
Name:
Title:
Location: Statesville, North Carolina
Name of Facility; Fairfield Inn
(formerly, a Cricket Inn)
Exhibit K
GROUND LESSOR ESTOPPEL
THIS GROUND LESSOR ESTOPPEL (this "Agreement"), made
as of October, 1996, is entered into by and among INTERSTATE
DEVELOPMENT COMPANY, a North Carolina corporation ("Landlord"),
having an address at X.X. Xxx 0000, Xxxxxxxxxxx, Xxxxx Xxxxxxxx
00000, NOMURA ASSET CAPITAL CORPORATION, a Delaware corporation
("Lender"), having an address at 2 World Financial Xxxxxx,
Xxxxxxxx X, Xxx Xxxx, Xxx Xxxx 00000-0000, and HH Properties-- I,
Inc. a New York corporation ("New Tenant"), having an address c/x
Xxxxxx Hotels Corporation, Xxx Xxxxxxx Xxx, Xxxxx 0x Xxxxxxxxx
International Airport, Rochester, New York 14624, Attn: E.
Xxxxxxx Xxxxxx, Chairman.
RECITALS
A. Pursuant to that certain Ground Lease dated
February 20, 1984 (the "Lease"), a Memorandum of which was
recorded on February 24, 1984 in Book 696, Page 475 of the
Iredell County, North Carolina Registry (the "Iredell County
Registry"), Landlord leased certain real property described on
Exhibit A attached hereto (together with all rights of way,
easements and appurtenances relating thereto and described in the
Lease, including, without limitation, easements for vehicular and
pedestrian ingress and egress and parking on, over and across
adjoining or abutting property, the "Demised Premises") to
Turnpike Properties, Inc., a North Carolina corporation
("Turnpike Properties"), as tenant.
B. Pursuant to a certain Amendment to Ground Lease by
and between Landlord and Turnpike Properties dated March 30, 1984
and recorded on April 19, 1984 in Book 698, Page 589 of the
Iredell County Registry, the Lease was further modified and
amended.
C. Pursuant to that certain Assignment of Lease dated
July 28, 1989 and recorded on August 4, 1989 in Book 789, Page
329 of the Iredell County Registry, Turnpike Properties, as
tenant, assigned all of its right, title and interest in, to and
under the Lease to Motels of America, Inc., a Delaware
corporation ("Motels of America").
D. Pursuant to a certain Assignment of Lease dated
December 1, 1993 and recorded on December 1, 1993 in Book 903,
Page 580 of the Iredell County Registry, Motels of America, as
tenant, assigned all of its right, title and interest in, to and
under the Lease to SB Motel Statesville Corp., a Delaware
corporation
1
("Tenant").
E. Pursuant to that certain Assignment of Lease dated
October __, 1996 and intended to be forthwith recorded in the
Iredell County Register, Tenant, as tenant, has assigned all of
its right, title and interest in, to and under the Lease to New
Tenant.
F. Pursuant to a certain Loan Agreement by and between
Lender and New Tenant (as the same may be amended, modified,
supplemented or assigned from time to time, the "Loan
Agreement"), Lender intends to extend a loan (the "Loan") to New
Tenant to be secured by, among other things, a first lien
leasehold mortgage or deed of trust, as the case may be (as the
same may be amended, modified, supplemented or assigned from time
to time, the "Mortgage"), encumbering New Tenants leasehold
interest in the Demised Premises and its interest in the Lease.
NOW, THEREFORE, to induce New Tenant to purchase by
assignment all of Tenant's right, title and interest in, to and
under the Lease and to induce Lender to make the Loan to New
Tenant and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, hereby agree as follows:
1. Landlord's Representations and Warranties. Landlord
represents and warrants to Lender and New Tenant the following:
1.1 Lease. A true, correct and complete copy of
the Lease is attached hereto as Exhibit B and such Lease
has not been assigned, modified, amended or supplemented
except as expressly set forth in Exhibit B. The Lease is in
full force and effect and constitutes the entire agreement
between Landlord and Tenant with respect to the Demised
Premises. There do not exist any other agreements or
understandings (including, but not limited to,
subordination, non-disturbance and attornment agreements)
concerning the Demised Premises and/or the Lease, whether
oral or written, between Landlord and Tenant (or any of
their respective predecessors or successors).
1.2 Tenant. Tenant is the tenant under the Lease
and is in peaceful, quiet and undisturbed possession of the
entire Demised Premises. Upon execution of the Assignment
of Lease identified in Paragraph F above, New Tenant shall
be the tenant under the Lease.
1.3 Enforceability. The Lease constitutes the
legal, valid and binding obligation of Landlord,
enforceable against Landlord in accordance with its terms.
1.4 Rent. The rent payable under the Lease
currently is $ per annum, which rent is paid in equal
2
monthly installments in advance on the first day of each
month, and such rent has been paid through the month of
, 1996. No rent, other than for the current month,
has been paid in advance. The Lease in a triple net lease
and Tenant receives all real estate tax bills relating to
the Demised Premises directly from the applicable taxing
authorities.
1.5 Term. The current term of the Lease commenced
on February 20, 1985 and expires on February 20, 2005. Upon
execution of the Assignment of Lease identified in
Paragraph F above, however, and pursuant to Section 2.1
below, the current term of the Lease shall be extended so
as to expire on February 20, 2035.
1.6 Escrow. The amount of any escrows and deposits
presently held by Landlord under the Lease is
$ . (If none, so state.)
1.7 Tenant's Defaults. Tenant is not in default
under the Lease and Landlord has no knowledge of the
existence of any event which, with the giving of notice,
the passage of time, or both, would constitute a default
(or event of default) by Tenant under the Lease.
1.8 Landlord's Defaults. Landlord is not in
default under the Lease and Landlord has no knowledge of
the existence of any event which, with the giving of
notice, the passage of time, or both, would constitute a
default (or event of default) by Landlord under the Lease.
1.9 No Mortgages. Landlord has not assigned,
conveyed, transferred, sold, encumbered or mortgaged its
interest in the Lease or the Demised Premises (or any part
of it) and there currently are no mortgages, deeds of trust
or other security interests encumbering Landlord's fee
interest in the Demised Premises (or any part of it). No
third party (including, without limitation, Roses
Department Stores, Inc.) has any option, preferential right
or right of first refusal to purchase all or any part of
the Demised Premises or Landlord's underlying fee interest.
No consent or approval of any third party (including,
without limitation, any lender) is required in order for
Landlord to deliver this Agreement and to perform fully its
obligations hereunder.
1.10 No Offsets. There are no offsets, coun-
terclaims, defenses, deductions or credits whatsoever with
respect to the Lease, or any amounts owning under any other
agreement.
1.11 Eminent Domain. Landlord has not received
written notice of any pending eminent domain proceedings or
3
other governmental actions or any judicial actions of any
kind against Tenant's or Landlord's interest in the Demised
Premises.
1.12 Violations. Landlord has not received
written notice that it is in violation of any governmental
law or regulation applicable to Tenant's or Landlord's
interest in the Demised Premises and its operation thereon,
including, without limitation, any zoning, subdivision or
environmental laws or the Americans with Disabilities Act,
and has no reason to believe that there are grounds for any
claim of any such violation.
1.13 Acceptance of the Premises. The Demised
Premises have been fully accepted by Tenant and neither
Landlord nor Tenant has any outstanding right or option to
terminate or cancel the Lease prior to its stated
expiration date.
1.14 Title Improvements. Title to the buildings,
improvements, and fixtures at the Demised Premises is vested
in Tenant.
2. Landlord's Covenants. Landlord hereby consents and
agrees to each and every one of the following covenants and
agreements for the benefit of Lender and, as applicable, New
Tenant:
2.1 Recognition of New Tenants as Tenant.
Landlord hereby approves of and recognizes New Tenant as
the tenant under the Lease. Landlord hereby acknowledges
and agrees that, notwithstanding anything set forth in the
Lease (including Section 13 thereof) to the contrary, all
existing extension options under the Lease have been
effectively exercised by New Tenant, and are hereby
accepted by Landlord, and that as such, the initial term of
the Lease shall henceforth expire on February 20, 2035.
2.2 Recognition of Lender as Leasehold Mortgagee.
Landlord hereby recognizes Lender as a first lien leasehold
mortgagee under the Lease and consents to Mortgage. All of
the leasehold mortgagee protection provisions contained in
the Lease, 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, its successors and assigns, subject to any
modification of such protection provisions as provided
herein. Landlord acknowledges and confirms that New Tenant
shall have the absolute right to grant a leasehold mortgage
on the Demised Premises in favor of Lender or any other
mortgagee or third party in connection with any refinancing
of the Mortgage on
4
such terms and conditions as New Tenant may agree to in its
sole discretion.
2.3 Notice to Lender of Proposed Termination
Date. Notwithstanding anything in the Lease to the
contrary, if any default or event of default shall occur
which entitles Landlord to terminate the Lease, Landlord
shall have no right to terminate the Lease unless,
following the expiration of the period of time given New
Tenant to cure such default (or if New Tenant has no right
to cure, following such default), Landlord shall deliver a
notice (the "Proposed Termination Notice") to Lender of
Landlord's intent to terminate the Lease (i) at least
forty-five (45) days in advance of the proposed effective
date of such termination (the "Proposed Termination"), if
such default is capable of being cured by the payment of
money and (ii) at least ninety (90) days in advance of the
Proposed Termination Date if such default is not capable of
being cured by the payment of money. The provisions of
Section 2.4 below shall apply if, during such forty-five
(45) or ninety (90) day period, as applicable, Lender
shall: (i) notify Landlord in writing of Lender's desire to
nullify the Proposed Termination Notice; (ii) pay or cause
to be paid to Landlord all sums then due and in arrears as
specified in the Proposed Termination Notice and which may
become due during such forty-five (45) or ninety (90) day
periods, as applicable; and (iii) comply or in good faith,
with reasonable diligence and continuity, commence to
comply with all non-monetary requirements of the Lease then
in default and reasonably susceptible of being complied
with by Lender.
2.4 Procedure on New Tenant Default. (i) If
Landlord shall elect to terminate the Lease by reason of a
default or event of default of New Tenant, and Lender shall
have complied with the provisions of Section 2.3 above, the
Proposed Termination Date stated in the Proposed
Termination Notice shall be (A) nullified if the default or
event of default is completely cured or (B) extended for an
additional period of six (6) months provided that, in the
latter instance, during such additional six (6) month
period, Lender shall:
(A) pay or cause to be paid all monetary
obligations of New Tenant under the Lease as the same
become due and continue in good faith to perform all
of New Tenant's other obligations under the Lease
except (1) past non-monetary obligations then in
default and not reasonably susceptible of being cured
by Lender and (2) obligations of New Tenant to satisfy
and discharge any lien or encumbrance junior in
priority to the Mortgage, if any; and
5
(B) if not enjoined or stayed, commence
steps to acquire all of New Tenant's interest in the
Lease by foreclosure, assignment in lieu of
foreclosure, or other appropriate means and prosecute
the same to completion with due diligence. If Lender
is enjoined or stayed during such six (6) month
period, such period shall be extended by the number of
days that any injunction or stay is in effect.
(ii) If at the end of such additional six (6) month
period (as it may be extended under Section 2.4(i) (B),
Lender is complying with the terms of Section 2.4, the
Lease shall not terminate, and the time for completion by
Lender of its proceedings to acquire or sell all of New
Tenant's interest in the Lease shall continue so long as
Lender is enjoined or stayed and thereafter for so long as
Lender proceeds to complete steps to acquire or sell New
Tenant's interest in the Lease by foreclosure, assignment
in lieu of foreclosure, or by other appropriate means with
reasonable diligence and continuity. Notwithstanding the
terms of Section 2.3 or 2.4, nothing contained in the Lease
or this Agreement shall require Lender, its successors,
assigns or designees, to cure any default or event of
default of New Tenant under the Lease, it being understood
that the right to cure a New Tenant default or event of
default shall be in Lender's sole discretion.
2.5 Continuation of Lease. If Lender is complying
with Section 2.4, upon the acquisition of the leasehold
estate by Lender or its designee or any other purchaser at
a foreclosure sale or otherwise, the Lease shall continue
in full force and effect as if New Tenant had not defaulted
under the Lease.
2.6 No Amendments to Lease. From and after the
date hereof, Landlord will not amend or modify the Lease
without the prior written consent of Lender. In the event
Landlord fails to secure such prior written approval to any
such amendment or modification, such amendments or
modifications to the Lease shall be null and void as if
never made. In no event shall the Lease be cancelled,
terminated or surrendered without the prior written consent
of Lender.
2.7 Delivery of Notices. Landlord shall
simultaneously deliver to Lender copies of all notices,
statements, information and communications delivered or
required to be delivered to New Tenant pursuant to the
Lease, including, without limitation, any notice of any
default by New Tenant. Landlord shall advise Lender in
writing if New Tenant fails to make any rental payment on
the date such payment is due under the Lease.
2.8 Further Assurances. Landlord shall from time
6
to time (i) execute such affidavits and certificates as
Lender shall reasonably require to further evidence the
agreements herein contained and (ii) cooperate with
Lender's representatives in any inspection of all or any
portion of the Demised Premises to the extent Lender is
permitted to enter and inspect such Demised Premises in
accordance with the Mortgage and/or the Loan Agreement.
2.9 Lender Not Obligated Under Lease; Permitted
Transfers. The granting of the Mortgage shall not be deemed
to constitute an assignment or transfer of the Lease or the
Demised Premises to Lender, nor shall Lender, as such, be
deemed to be an assignee or transferee of the Lease or the
leasehold estate thereby created so as to require Lender,
as such, to assume the performance of any of the terms,
covenants or conditions on the part of New Tenant to
perform thereunder. Notwithstanding the foregoing, the
purchase at any sale of the Lease and the leasehold estate
thereby created in any proceedings for the foreclosure of
the Mortgage (including, without limitation, power of sale)
or the assignee or transferee of the Lease and the
leasehold estate thereby created under any instrument of
assignment or transfer in lieu of the foreclosure (whether
Lender or any third party) shall be deemed to be a
permitted assignee or transferee under the Lease without
the need to obtain Landlord's consent, and shall be deemed
to have agreed to perform all of the terms, covenants and
conditions on the part of New Tenant to be performed under
the Lease from and after the date of such purchase and/or
assignment (but not for any obligations or liabilities
accruing prior to such date), but only for so long as such
purchaser or assignee is the owner of the Lease and the
leasehold estate thereby created, it being understood and
agreed that upon a sale or transfer of the Lease by such
party (which sale or transfer shall not require the consent
of Landlord) and written assumption of its obligations
under the Lease by any new purchaser or assigner, the
transferring party shall be relieved of all future
liability under the Lease.
2.10 Lender's Reliance on Representations.
Landlord has executed this Agreement for the purpose of
inducing New Tenant to purchase by assignment all of
Tenant's right, title and interest in, to and under the
Lease and inducing Lender to make the Loan and with full
knowledge that New Tenant and Lender, respectively, shall
rely upon the representations, warranties, covenants and
agreements herein contained when acquiring such assignment
from Tenant and making the Loan to New Tenant and that, but
for this instrument and the representations, warranties,
covenants and agreements herein contained, New Tenant and
Lenders, respectively, would not take such actions.
2.11 Landlord's Mortgagees; Fee Mortgagees
7
Subordinate. Notwithstanding anything in the Lease to the
contrary, Landlord acknowledges and agrees that if it
sells, transfers, assigns, mortgages, hypothecates, pledges
or otherwise encumbers its fee interest in the Demised
Premises, or any part of it, or the Lease to any mortgagee,
lender or any other third party, any such sale, transfer,
assignment, mortgage, deed of trust, hypothecation, pledge
or encumbrance shall be expressly subject and subordinate
in all respects to the Mortgage, Lender's interest in the
Demised Premises and the Lease. Landlord hereby further
acknowledges and agrees that the Lease and the Mortgage
shall be senior in all respects to any such future
mortgage, deed of trust or other security interest
encumbering all or any portion of Landlord's fee interest
in the Demised Premises and that any provision of the Lease
requiring that the Lease or the leasehold interest created
thereby (or any leasehold mortgage or deed of trust
thereon) be junior, subordinate or inferior in any respect
to any mortgage or other lien on such fee interest is
hereby deleted in its entirety and declared to be null and
void.
2.12 Casualty and Insurance Proceeds.
Notwithstanding anything in the Lease to the contrary and
so long as the indebtedness, or any part of it, secured by
the Mortgage remains outstanding and unpaid and the
Mortgage remains of record: (i) the Lease shall not
terminate or be cancelled upon the damage or destruction by
fire or other casualty of all, substantially all, or any
part of the Demised Premises; (ii) the public liability and
property damage insurance policies required to be
maintained pursuant to the Lease shall name Lender as an
additional named insured and loss payee/mortgagee,
respectively; (iii) the form of such policies and amounts
thereof shall at all times be in accordance with the terms
of the Mortgage and Lender shall have the sole and absolute
right to adjust and settle any insurance claim; and (iv)
Landlord hereby subordinates its interest in and rights to
receive any insurance proceeds to Lender and agrees that
all proceeds of such insurance polices shall be payable to
Lender as loss payee to be applied by Lender in accordance
with the terms of the Mortgage and the Loan Agreement.
2.13 Condemnation and Condemnation Proceeds.
Notwithstanding anything in the Lease to the contrary and
so long as the indebtedness, or any part of it, secured by
the Mortgage remains outstanding and unpaid and the
Mortgage remains of record: (i) the Lease shall not
terminate or be cancelled upon a taking or condemnation
pursuant to an eminent domain proceeding of all,
substantially all, or any part of the Demised Premises
without Lender's consent or unless required by law; (ii)
Lender shall be entitled to make a claim for the value of
the leasehold improvements and leasehold estate and shall
have the sole and absolute right to settle any claim with
respect to the Demised Premises, provided that
8
Landlord shall be entitled to make an independent claim for
the value of the land as if it were unimproved and as
encumbered by the Lease; and (iii) that Lender shall have
the right to apply its portion of the condemnation proceeds
in accordance with the terms of the Mortgage and the Loan
Agreement.
2.14 Intentionally Omitted.
2.15 Agreement to Modify. In the event Lender
succeeds to the rights of the New Tenant under the Lease,
Landlord agrees that it shall enter into such amendments or
modifications of the Lease as Lender may reasonably request
from time to time to reflect the intent hereof so long as
such modifications do not materially and adversely affect
Landlord's rights thereunder or affect the economic terms
thereof.
2.16 New Direct Lease. In the event the Lease is
terminated or cancelled for any reason or rejected by New
Tenant (in the event of a bankruptcy, insolvency or similar
proceeding involving New Tenant) Landlord hereby
acknowledges and agrees that it shall, upon Lender's
written election, promptly enter into a new, direct lease
with Lender (or its nominee) with respect to the Demised
Premises on the same terms and conditions as the Lease, it
being the intention of the parties to preserve the Lease
and leasehold estate for the benefit of Lender without
interruption. In the event the Lease is rejected or deemed
rejected by New Tenant in any such bankruptcy, insolvency
or similar proceeding, such rejection shall not as between
Lender and Landlord effect or modify any of the rights and
obligations set forth in this Agreement and the terms and
conditions of this Agreement shall expressly survive any
such rejection. Upon Lender's request, New Tenant agrees to
cause Landlord to promptly deliver to Lender a separate
writing from Landlord to New Tenant containing the
foregoing two sentences of this Section 2.16.
3. Permitted Uses Notwithstanding anything contained
in the Lease or otherwise to the contrary, Landlord acknowledges
and agrees that in the event Lender succeeds to the interests of
New Tenant under the Lease, Lender, and any successor or assignee
thereof, shall be permitted to use and operate the Demised
Premises for any lawful use. In the event Lender, or any
successor or assignee thereof, elects to change or modify the use
of the Demised Premises, Landlord agrees to cooperate with
Lender, and any successor or assignee thereof, in obtaining any
and all permits, approvals and licenses that may be necessary in
connection with or as a result of any such conversion of the
Demised Premises.
4. No Duty to Continue to Operate. Notwithstanding
anything contained in the Lease or otherwise to the contrary,
9
Lender shall have no duty to continue to operate the Demised
Premises during any period(s) in which Lender is in possession of
the Demised Premises or otherwise exercising any other rights or
remedies against New Tenant under the Mortgage or applicable law.
5. Deleted Provisions. Landlord acknowledges and
agrees that the following sections of the Lease are hereby
deleted in their entirety and are of no further force and effect:
4.1.(3) (which appears on page 9 of the Lease); 7.1(c); 7.1(d);
7.1(e); 7.1(f); and 7.2. The phrase "to the extent of up to
seventy-five percent (75%) of the appraised value of said Demised
Premises, improvements, fixtures, furnishings and equipment
thereon" appearing in the fifth through eighth lines of Section
7.1(b) of the Lease is hereby deleted. Nothing contained in the
Lease, including, without limitation Section 14.5 thereof, shall
limit or modify in any way (i) Lender's rights and remedies
against New Tenant under the Loan Agreement, the Mortgage or any
other document delivered in connection therewith or (ii) New
Tenant's obligations and liabilities to Lender thereunder with
respect to the Loan.
6. Intentionally Omitted.
7. Notices. All notices, demands, consents, or
requests which are either required or desired to be given or
furnished hereunder to Landlord, Lender or New Tenant shall be
sent to the appropriate party at the address set forth in the
preamble to this Agreement and shall be given in writing and
shall be effective for all purposes if hand delivered or sent by
(a) certified or registered United States mail, postage prepaid,
return receipt requested, or (b) expedited prepaid delivery
service, either commercial or United States Postal Service, with
proof of attempted delivery. A copy of all notices, demands,
consents, or requests delivered to Lender also shall be delivered
to Xxxxxx X. Xxxx, Esquire, Dechert Price & Xxxxxx, 0000 Xxxx
Xxxxxx, 0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000. A notice shall be deemed to have been given: in the case
of hand delivery, at the time of delivery; in the case of
registered or certified mail, when delivered (as evidenced by the
receipt) or the first attempted delivery on a business day; or in
the case of expedited prepaid delivery, upon the first attempted
delivery on a business day. A party receiving a notice which does
not comply with the technical requirements for notice under this
Section may elect to waive any deficiencies and treat the notice
as having been properly given. By notice complying with this
Section, any party may from time to time change the address to be
subsequently applicable to it or the identity of its individual
officer or its counsel.
8. No Joint Venture. The relationship of Lender to New
Tenant is one of a creditor to a debtor, and Lender is not a joint
venturer or partner of New Tenant.
10
9. Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall in all respects be
governed by, and construed and enforced in accordance with, the
laws of the State of North Carolina (without giving effect to
such state's principles of conflicts of law).
10. Successors. This Agreement shall be binding upon
and shall inure to the benefit of Landlord, Lender and New Tenant
and each of their respective successors and assigns.
11. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original
and all of which, when taken together, shall constitute one and the
same original.
12. Rights Cumulative; Original Agreement. The rights
of Lender hereunder are in addition to the rights of Lender granted
in the Lease and shall not be in derogation thereof. To the degree
terms in this Agreement conflict with the terms of the Lease, the
terms of the Agreement shall control
13. Recording of Agreement. At Lender's option, this
Agreement shall be recorded in the public land records of the
jurisdiction in which the Demised Premises is located.
11
IN WITNESS WHEREF, the parties hereto have caused this
Ground Lessor's Estoppel to be duly executed and delivered as of
the day and year first above written.
LANDLORD:
INTERSTATE DEVELOPMENT COMPANY, a
North Carolina corporation
By:____________________________
Name:
Title:
Attest:________________________
Name:
Title:
[CORPORATE SEAL]
LENDER:
NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation
By:____________________________
Name:
Title:
Attest:________________________
Name:
Title:
[CORPORATE SEAL]
NEW TENANT:
HH PROPERTIES-I, INC. a
New York Corporation
By:____________________________
Name:
Title:
Attest:________________________
Name:
Title:
[CORPORATE SEAL]
STATE OF NORTH CAROLINA
COUNTY OF IREDELL
I, _________________________________________________,
a Notary Public within and for said County and State, do hereby
certify that _________________________ personally appeared before
me this day and acknowledged that he/she is Secretary of
Interstate Development Company, and that by authority duly given
and as the act of the corporation, the foregoing instrument was
signed in its name by its _____________________, sealed with its
corporate seal, and attested by himself/herself as its Secretary.
WITNESS my hand and official seal this ___ day of
October, 1996.
-------------------------------
Notary Public
My Commission Expires
---------------------
[NOTARY SEAL]
STATE OF NEW YORK
COUNTY OF
I, _________________________________________________,
a Notary Public within and for said County and State, do hereby
certify that _________________________ personally appeared before
me this day and acknowledged that he/she is Secretary of Nomura
Asset Capital Corporation, and that by authority duly given and
as the act of the corporation, the foregoing instrument was
signed in its name by its _____________________, sealed with its
corporate seal, and attested by himself/herself as its Secretary.
WITNESS my hand and official seal this ___ day of
October, 1996.
-------------------------------
Notary Public
My Commission Expires
---------------------
[NOTARY SEAL]
STATE OF NEW YORK
COUNTY OF
I, _________________________________________________,
a Notary Public within and for said County and State, do hereby
certify that _________________________ personally appeared before
me this day and acknowledged that he/she is Secretary of HH
Properties-I, Inc. and that by authority duly given and as the
act of the corporation, the foregoing instrument was signed in
its name by its _____________________, sealed with its corporate
seal, and attested by himself/herself as its Secretary.
WITNESS my hand and official seal this ___ day of
October, 1996.
-------------------------------
Notary Public
My Commission Expires
---------------------
[NOTARY SEAL]
EXHIBIT B
GROUND LEASE
EXHIBIT L
NORTH CAROLINA DEED OF EASEMENT
IREDELL COUNTY
THIS DEED OF EASEMENT, made and entered into this ___
day of November, 1996, by and between INTERSTATE DEVELOPMENT
COMPANY, of the City of Statesville, County of Iredell, State of
North Carolina, a North Carolina corporation (the "Grantor") and
SB MOTEL STATESVILLE CORP., a Delaware corporation (the
"Grantee");
W I T N E S S E T H:
Grantor, for and in consideration of the sum of $10.00
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, does hereby give,
grant, bargain, sell and convey to Grantee, its successors and
assigns, a non-exclusive easement of ingress and egress for
vehicular and pedestrian traffic and right of parking for
Grantee, its customers, employees, invitees, guests and licensees
over existing paved drive areas and walkways on Grantor's
property described in Exhibit A attached hereto and incorporated
herein by reference (the "Easement Property"), together with
easements for installation, maintenance and operation of
utilities, including sewer, water, gas, electricity, telephone
and other utility lines over the Easement Property; and together
with all Grantor's easements in adjoining lands, highways, roads,
streets, lanes, whether public or private, reasonably required
for the installation, maintenance, operation and service of said
utilities and utility lines and for driveways and approaches to
and from abutting highways, all for the use and benefit of the
premises
demised to the Grantee pursuant to the terms of that certain
Ground Lease dated February 20, 1984, a Memorandum of which is
recorded in Book 696, Page 475, Iredell County Registry, and
which Lease has been amended by that certain Amendment of Lease
recorded in Book 698, Page 589, Iredell Country Registry (the
"Ground Lease"), together with a non-exclusive easement for
vehicular and pedestrian ingress and egress across and over the
roadway described in Exhibit B attached hereto and incorporated
herein by reference.
TO HAVE AND HOLD the above-described right and
easement upon Grantee, its successors and assigns for the
duration of the term of the Ground Lease, as it may be extended
and/or amended from time to time.
First Union National Bank of North Carolina ("Lender")
and Xxxxxx X. Xxxxx, as trustee (the "Trustee"), join the
execution of this Easement Agreement for the sole purpose of
evidencing their consent as beneficiary and trustee of the Deed
of Trust encumbering all or part of the Easement Property and
recorded in Book ____, Page ____, Iredell County Registry (the
"Deed of Trust"), and accordingly Lender and Trustee hereby
subordinate the lien of the Deed of Trust to the rights and
easements hereby established. Except as specified herein, the
Deed of Trust shall remain unmodified and in full force and
effect.
IN TESTIMONY WHEREOF, Grantor has caused this Deed of
Easement to be signed by its duly authorized officers under seal
as of the day herein first above written.
INTERSTATE DEVELOPMENT COMPANY,
a North Carolina corporation
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By: __________________________
________________ President
ATTEST:
-------------------------
_______________ Secretary
[CORPORATE SEAL]
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, a national
banking association
By: __________________________
________________ President
ATTEST:
-------------------------
_______________ Secretary
[CORPORATE SEAL]
-------------------------------
Xxxxxx X. Xxxxx, Trustee
3
EXHIBIT M
ESTOPPEL CERTIFICATE
THIS CERTIFICATE is given this ___ day of November,
1996 by XXXXXXX COMPANY, a __________ corporation having an
office at 0000 Xxxx Xxxx, Xxx 0000, Xxxxxxxxxx, Xxxx 00000
("Xxxxxxx") to HH PROPERTIES-I, INC., a New York corporation, its
successors and assigns (HHP-I), NOMURA ASSET CAPITAL CORPORATION,
a Delaware corporation, its successors and assigns ("Nomura") and
LAWYERS TITLE INSURANCE CORPORATION, a ______________ corporation
its successors and assigns ("Lawyers Title").
WHEREAS, SB Motel Richmond Corp. ("SB") is the owner
of certain premises located in the County of Henrico,
Commonwealth of Virginia and commonly referred to as the
Fairfield Inn, 0000 Xxxx Xxxxx Xxxxxx (the "SB Premises"); and
WHEREAS, Xxxxxxx is the owner of certain premises
adjoining the SB Premises, located south of such Premises along
the easterly line of West Broad Street (the "Xxxxxxx Premises");
and
WHEREAS, pursuant to a certain Shared Access Easement
Agreement by and between Xxxxxx X. Xxxxxxx, Xx. and M. Xxx
Xxxxxxx and Commercial Title Agency, a South Carolina
corporation, dated March 7, 1986 and recorded in Deed Book 2004,
at page 1894 (the "Easement"), the SB Premises and the Xxxxxxx
Premises are each encumbered by and enjoy the benefit of a
non-exclusive easement for vehicular and pedestrian passage to
and from each of said Premises in accordance with the terms and
conditions thereof; and
WHEREAS, pursuant to the terms and conditions of the
Easement each of the parties hereto, and their respective
successors and assigns, are obligated to perform certain
obligations and to make certain payments all as more fully set
forth therein; and
WHEREAS, SB proposes to convey all of its right, title
and interest in and to the SB Premises to HHP-I and HHP-I intends
to finance its acquisition of such premises by obtaining mortgage
loan financing from Nomura; and
WHEREAS, Lawyers Title intends to issue its policies
of title insurance to insure HHP-I's fee title in and to the SB
Premises and to insure the Nomura mortgage as a good and valid
first mortgage lien on such Premises; and
WHEREAS, in connection with its acquisition of the SB
Premises, the financing by Nomura thereof and the issuance by
Lawyers title of its fee and mortgagee policies of title
insurance, HHP-I, Nomura and Lawyers Title require that Xxxxxxx
execute and deliver the within Certificate.
NOW, THEREFORE, for good and valuable consideration,
the receipt and sufficiency of which are hereby mutually
acknowledged, Xxxxxxx hereby represents, warrants, certifies,
covenants and agrees that:
1. The Easement constitutes the valid and binding
obligation of Xxxxxxx, enforceable by and against it in
accordance with its terms and conditions and remains in full
force and effect. Attached hereto is an accurate and complete
copy of the Easement and the same has not been modified or
amended in any manner.
2. There exist no unpaid maintenance costs, real
estate taxes, lighting costs or other sums, charges, costs or
amounts of any kind under the Easement. All duties, covenants and
obligations of the parties thereunder have been performed in
full.
3. The undersigned agrees that, notwithstanding
anything to the contrary contained in the Easement, express or
implied, any lien or encumbrance created by or pursuant to the
terms of the Easement for any unpaid sums, amounts, charges,
costs, taxes, or expenses, including, but not limited to, any
lien created pursuant to Section 5(d) thereof, is and shall in
all respects be subject and subordinate to the right, title and
interest, legal or equitable, of the beneficiary of any deed of
trust covering, among other things, all or any portion of the SB
Premises and/or the Xxxxxxx Premises and to the lien and/or
security interest created by any such deed of trust, as the same
may be amended, modified, consolidated, increased, spread,
extended, restated, assigned and/or refinanced from time to time.
Without limiting the foregoing, the undersigned acknowledges that
Nomura is the beneficiary under a deed of trust from HHP-I and
further acknowledges and agrees that the aforesaid liens or
encumbrances are and shall in all respects be subject and
subordinate to Nomura's right, title and interest, legal or
equitable, as beneficiary under the deed of trust in and to the
SB Premises and the lien and/or security interest created by such
deed of trust on, in and to such Premises.
4. The undersigned acknowledges and agrees that this
Certificate, and the representations and warranties herein
contained, is being given to induce (a) HHP-I to acquire the SB
Premises; (b) Nomura to finance HHP-I's acquisition of the SB
Premises, and (c) Lawyers title to issue its policies of fee and
mortgage title insurance for the benefit of HHP-I and Nomura,
respectively, and that HHP-I, Nomura and Lawyers Title may rely
upon the same.
IN WITNESS WHEREOF, Xxxxxxx has duly executed and
delivered this Certificate on the date and year first above
written.
XXXXXXX COMPANY
By:_______________________
Its:______________________
STATE OF VIRGINIA
COUNTY OF HENRICO, to-wit:
The foregoing instrument was acknowledged before me
this ____ day of November, 1996, by _________________________ of
Xxxxxxx Company, a _______________ corporation.
My commission expires:
----------------------------
Notary Public
CONSENT TO ENCROACHMENT
THIS CONSENT AGREEMENT is made as of this ___ day of
November, 1996, by and between HH PROPERTIES-VB, INC., a Virginia
corporation (hereinafter referred to as "Owner"), and NORTHAMPTON
INVESTORS (hereinafter referred to as "Northampton").
RECITALS
A. Concurrently herewith, Owner has acquired that
certain property containing 3,895 acres located off of
Xxxxxxxxxxx Xxxxxxxxx, X.x. Xxxxx 00, in the City of Virginia
Beach, Virginia, having a street address of 0000 Xxxxxxxxxxx
Xxxxxxxxx and commonly known as the "Cricket Inn" (the "Hotel
Parcel").
B. Northampton is the owner of the property located
west of, and adjoining, the Hotel Parcel on which there is located
a Bojangles Restaurant (the "Restaurant Facility").
C. The eastern walls and some curbing of the
improvements constructed on the Restaurant Facility (hereinafter
referred to as the "Encroachment") encroach upon the Hotel Parcel
as shown on that certain plat of survey prepared by
Xxxxxxxxx-Xxxxxxxxxxx & Associates, Inc. dated August 21, 1996,
entitled "ALTA/ACSM LAND TITLE SURVEY FOR HH PROPERTIES - VR,
INC.," a copy of which plat is recorded among the land records of
the Clerk's Office of the Circuit Court of the City of Virginia
Beach, Virginia, in Plat Book ___, at Page ___, which plat is
incorporated herein by reference.
D. The parties hereto desire to set forth their
agreement with respect to the Encroachment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and
other valuable consideration, Owner does hereby grant to
Northampton, for its sole, exclusive use, the right to encroach
upon the Hotel Parcel, which right shall be revocable at any time
and at the sole discretion of the Owner. Owner agrees to give
Northampton written notice, as specified below, of such
termination in which event Northampton shall have a period of
thirty (30) days from its receipt of such notice to remove the
Encroachment. Removal of the Encroachment and all costs incurred
in conjunction therewith shall be the sole responsibility of
Northampton. If Northampton fails to remove the Encroachment
within such thirty-day period, Owner shall have the right, but
not the obligation, to remove the Encroachment and Northampton
agrees to reimburse Owner for all costs associated therewith.
The parties further agree that the occupation of the
Encroachment and the exercise of rights with respect to the
Encroachment shall be made solely pursuant to this agreement.
The execution by Owner of this Consent is not to be
construed in any manner as a license for further encroachment on
the Hotel Parcel. This Consent shall automatically terminate upon
removal of the Encroachment. The parties agree that the
destruction or removal of the Encroachment shall not entitle
Northampton to rebuild the encroachment. Changes in the physical
shape or size of the Encroachment or reconstruction of it shall
be considered an additional encroachment without authority and in
violation of the legal rights and interests of the Owner.
The Encroachment is subject and subordinate at all
times to the paramount rights of the Owner and lienholders.
Northampton agrees to indemnify, defend and save Owner, its
successors in title and assigns, harmless from any and all
claims, demands, charges, suits or actions for property damage or
loss, or loss of use thereof, and personal injury and death,
whether at law or in equity, brought by any person, entity or
agency, including but not limited to employees or agents of
Northampton, and all expenses of litigation including but not
limited to attorneys' fees and litigation expenses, arising out
of or in any manner connected with the use, care, maintenance or
removal of the Encroachment. In the event any such proceeding
shall be filed, Northampton agrees that Owner shall have the
right to select counsel to defend such proceeding, and that
Northampton shall make payment of any and all court costs,
expenses of litigation, reasonable attorneys' fees and any
judgments entered therein.
Any notice or election required or permitted to be
given or served by any party hereto shall be deemed given or
served when deposited in the United States mail registered or
certified, return receipt requested, postage prepaid,
electronically transmitted by facsimile, delivered in a
recognized or established overnight courier services, or
delivered in person, properly addressed as follows:
In the case of notices directed to Northampton:
Northampton Investors
===============================
Attention____________________
Facsimile No.:_________________
In the case of notices directed to the Owner:
HH Properties-VB, Inc.
===============================
Attention:_____________________
Facsimile No._________________
This Consent in no way relieves Northampton, its
successors and assigns, from any restrictions, if any, to which
2
either the Restaurant Facility or the Hotel Parcel is made
subject by deed or otherwise, and the restrictions contained in
all applicable zoning ordinances.
IN WITNESS WHEREOF, Owner has caused this instrument
to be executed on its behalf by its duly authorized officer.
HH PROPERTIES-VB, INC.
By:_______________________
Title:____________________
IN WITNESS WHEREOF, Northampton agrees to the terms
and conditions of the foregoing consent.
NORTHAMPTON INVESTORS
By:_______________________
Title:____________________
3
COMMONWEALTH OF VIRGINIA _________ of ____________, to-wit:
The foregoing instrument was acknowledged before me
this ____ day of November, 1996, by _________________________,
the duly authorized ___________________ of H&H Properties-VB,
Inc., a Virginia corporation, on behalf of said corporation.
My commission expires: _____________________
----------------------------
Notary Public
COMMONWEALTH OF VIRGINIA _________ of ____________, to-wit:
The foregoing instrument was acknowledged before me
this ____ day of November, 1996, by _________________________,
the duly authorized ___________________ of Northampton Investors,
a Virginia corporation, on behalf of said corporation.
My commission expires: _____________________
----------------------------
Notary Public
NONDISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
THIS AGREEMENT is made as of the ___ day
of____________, 1996, by and among Nomura Asset Capital
Corporation, a Delaware corporation (together with its successors
and assigns, "Mortgagee"), Raleigh-Durham MSA Limited
Partnership, a ___________________ limited partnership, as
successor in interest to SBA, Inc. ("Tenant"), and HH
Properties-I, Inc., a New York corporation ("Landlord").
RECITALS
A. Landlord is the owner of those certain premises
commonly known as 0000 Xxxx Xxxxxx, Xxxxxx, XX, more particularly
described in Exhibit "A" attached hereto (the "Real Estate");
B. Mortgagee is now or will be the owner and holder of
a note (the "Note") and a mortgage (the "Mortgage");
C. The Mortgage constitutes or will constitute a first
lien upon the Real Estate and the improvements (the "Improvements")
situated thereon (collectively, the "Property");
D. Under the terms of a certain Lease (the "Lease")
dated December 14, 1995, and Assigned December 14, 1995, Landlord
leased to Tenant a portion of the improvements, as more
particularly described in the Lease; and
E. The parties hereto desire to establish additional
rights of quiet and peaceful possession for the benefit of Tenant
under the Lease and further to define the terms, covenants and
conditions precedent for such additional rights.
AGREEMENTS
1. Subordination. The Lease is and at all times shall be
subordinate to the Mortgage and to all renewals, modifications
and amendments thereof and thereto.
2. Non-Disturbance. In the event of foreclosure of the Mortgage
(by judicial process, power of sale or otherwise) or
conveyance in lieu of foreclosure, which foreclosure, power of
sale, or conveyance occurs prior to the expiration date of the
Lease, including any extensions and renewals of the Lease now
provided thereunder, and so long as Tenant is not in default
under any of the terms, covenants and conditions of the Lease
beyond any applicable grace or cure period, Mortgagee agrees
on behalf of itself, its successors and assigns, and on behalf
of any purchase at such foreclosure ("Purchaser") that Tenant
shall not be disturbed in the quiet and peaceful possession of
the premises demised under the Lease. Tenant acknowledges
that Mortgagee has a claim superior to Tenant's claim for
insurance proceeds, if any, received with respect to the
Improvements or the Property.
3. Attornment. In the event of foreclosure of the Mortgage or
conveyance in lieu of foreclosure, which foreclosure or
conveyance occurs prior to the expiration date of the Lease,
including any extensions and renewals of the Lease now
provided thereunder, Tenant shall attorn to Mortgagee or
Purchaser and recognize Mortgagee or Purchaser as its landlord
under the Lease, and so long as Tenant is not in default under
any of the terms, covenants and conditions of the Lease beyond
any applicable grace or cure period, Mortgagee or Purchaser
shall recognize and accept Tenant as its tenant thereunder,
whereupon the Lease shall continue, without further agreement,
in full force and effect as a direct lease between Mortgagee
or Purchaser and Tenant for the full term thereof, together
with all extensions and renewals now provided thereunder, upon
the same terms, covenants and conditions as therein provided,
and Mortgagee or Purchaser shall thereafter assume and perform
all of Landlord's subsequent obligations, as landlord under
the Lease, with the same force and effect as if Mortgagee or
Purchaser were originally named therein as Landlord and Tenant
shall thereafter make all rent payment directly to either
Mortgagee or Purchaser, as the case may be, subject to
limitations contained in Paragraphs 4 and 8 below.
4. Limitation of Liability. Notwithstanding anything to the
contrary contained herein or in the Lease, in the event of
foreclosure of the Mortgagee (by judicial process, power of
sale or otherwise) or conveyance in lieu of foreclosure, which
foreclosure, power of sale or conveyance occurs prior to the
expiration date of the Lease, including any extensions and
renewals of the Lease now provided thereunder, the liability
of Mortgagee or Purchaser, as the case may be, shall be
limited as set forth below in Paragraph 8; provided, however,
that Mortgagee or Purchaser, as the case may be, shall in no
event or to any extent:
(a) be liable to Tenant for any past act, omission or
default on the part of the original or any prior
landlord under the Lease and Tenant shall have no
right to assert the same or any damages arising
therefrom as an offset, defense or deficiency against
Mortgagee, Purchaser, or the successors or assigns of
any of them.
(b) be liable to Tenant for any prepayment of rent or
deposit, rental security or any other sums deposited
with the original or any prior landlord under the
Lease and not delivered to Mortgagee;
(c) be bound by any amendment or modification of the Lease
not consented to by Mortgagee;
(d) be bound by any warranty or representation of Landlord
relating to work performed by Landlord under the Lease;
2
or
(e) be liable to Tenant for construction or restoration,
or delays in construction or restoration, of the
Improvements or the portion thereof leased to Tenant.
5. Further Documents. The foregoing provisions shall be
self-operative and effective without the execution of any
further instruments of the part of any party hereto. Tenant
agrees, however, to execute and deliver to Mortgagee or to
any person to whom Tenant herein agrees to attorn such
other instruments as either shall reasonably request in
order to effectuate said provisions.
6. Notice and Cure. Tenant agrees that if there occurs a default
by Landlord under the Lease:
(a) A copy of each notice given to Landlord pursuant to
the Lease shall also be given to Mortgagee, and no
such notice shall be effective for any purpose under
the Lease unless so given to Mortgagee; and
(b) If Landlord shall fail to cure any default within the
time prescribed by the Lease, Tenant shall give further
notice of such fact to Mortgagee, Mortgagee shall have an
additional 15 days after the expiration of Landlord's
cure period within which to cure such default or, if such
default cannot be cured within that time, then such
additional time as may be necessary if, within the
initial 15 day cure period, Mortgagee shall have
commenced and shall be diligently pursuing the remedies
necessary to cure such default including, but not limited
to, commencement of foreclosure proceedings or otherwise
acquiring title to the Improvements, if necessary to
effect such cure.
7. Notices. All notices, demands and requests given or required
to be given hereunder shall be in writing and shall be deemed
to have been properly given when personally served or if sent
by U.S. registered or certified mail, postage prepaid,
addressed as follows:
Mortgagee: Nomura Asset Capital Corporation
2 World Financial Xxxxxx
Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
3
with a copy to: Dechert Price & Xxxxxx
0000 Xxxx Xxxxxx
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esq.
Tenant: Raleigh-Durham MSA Limited Partnership
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Landlord: HH Properties-I, Inc.
Xxx Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attn: E. Xxxxxxx Xxxxxx
with a copy to: Boylan, Brown, Code, Xxxxxx, Xxxxxx &
Xxxxxx, LLP
0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxx, Esq.
8. Limitation of Personal Liability. Notwithstanding anything to
the contrary herein or in the Lease, in the event that
Mortgagees or any Purchaser shall acquire title to the
Property, Mortgagee or Purchaser shall have no obligation, nor
incur any liability, beyond the then interest, if any, of
Mortgagee or Purchaser in the Property. Tenant shall look
exclusively to such interest of Mortgagee or Purchaser, if
any, in the Property for the payment and discharge of any
obligations imposed upon Mortgagee or Purchaser hereunder or
under the Lease, and Mortgagee and Purchaser are hereby
released and relieved of any other liability hereunder and
under the Lease. As regards Mortgagee or Purchaser, Tenant
shall look solely to the estate or interest owned by Mortgagee
or Purchaser in the Property and Tenant will not collect or
attempt to collect any such judgment out of any other assets
of Mortgagee or Purchaser. By executing this Agreement,
Landlord specifically acknowledges and agrees that noting
contained in this Paragraph 8 shall impair, limit, affect,
lessen, abrogate or otherwise modify the obligations of
Landlord to Tenant under the Lease.
9. Binding Effect. The terms, covenants and conditions hereof
shall inure to the benefit of and be binding upon the parties
hereto, and their respective heirs, executors, administrators,
successors and assigns.
10. Modification. This Agreement may not be modified orally or in
a manner other than by an agreement signed by the parties
hereto or their respective successors in interest.
11. Choice of Law. This Agreement shall be governed by the
4
internal law (and not the law of conflicts) of the State in
which the Property is located.
WITNESS the due execution of this instrument by the
parties hereto the day and year first above written.
MORTGAGEE:
NOMURA ASSET CAPITAL
CORPORATION,
a Delaware corporation
By: ________________________
Name:
Title:
Attest:
-----------------------
_________Secretary
(Corporate Seal)
TENANT:
Raleigh-Durham MSA Limited
Partnership (SEAL)
By: TeleSpectrum, Inc.,
its General Partner
By: ________________________
Name:
Title:
Attest:
------------------------
_________Secretary
(Corporate Seal)
5
LANDLORD:
HH Properties-I, Inc., a New
York corporation
By: ________________________
Name:
Title:
Attest:
-----------------------
_________Secretary
(Corporate Seal)
6
STATE OF______________)
COUNTY OF ____________)
I, __________________________________, a Notary Public of
the county and State aforesaid, certify that
__________________________________ personally came before me this
day and acknowledged that ___ he is _____________ Secretary of
Nomura Asset Capital Corporation and that by authority duly given
and as the act of the corporation, the foregoing instrument was
signed in its name by its _______ President, sealed with its
corporate seal, and attested by _______ self as its ______
Secretary.
Witness my hand and official stamp this _______ day of
________, 19__.
------------------------
Notary Public
My Commission Expires:
(Seal)
-------------------------
STATE OF ________________)
COUNTY OF _______________)
I, _____________________________________, a Notary Public
of the county and State aforesaid, certify that
___________________________________________ personally came
before me this day and acknowledged that ___ he is
___________________ Secretary of TeleSpectrum, Inc., General
Partner of Raleigh-Durham MSA Limited Partnership and that by
authority duly given and as the act of the corporation, the
foregoing instrument was signed in its name by its ______
President, sealed with its corporate seal, and attested by _____
self as its ______ Secretary.
Witness my hand and official stamp this ____ day of
________, 19__.
------------------------
Notary Public
My Commission Expires:
(Seal)
-------------------------
STATE OF ______________)
COUNTY OF _____________)
I, ____________________________, a Notary Public of the
county and State aforesaid, certify that
____________________________________ personally came before me
this day and acknowledged that ___ he is ______________ Secretary
of HH Properties-I, Inc. and that by authority duly given and as
the act of the corporation, the foregoing instrument was signed
in its name by its ______ President, sealed with its corporate
seal, and attested by ______ self as its _______ Secretary.
Witness my hand and official stamp this ______ day of
_______, 19 ____.
-----------------------------
Notary Public
My Commission Expires:
(Seal)
----------------------
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Esquire
TENANT ESTOPPEL CERTIFICATE
Dated: _______________, 1996
TO: Nomura Asset Capital Corporation
Together with its successors and assigns
Two World Xxxxxxxxx Xxxxxx
Xxxxxxxx X
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx Xxxxx
and
HH Properties-I, Inc.
Xxx Xxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attn: B. Xxxxxxx Xxxxxx
Lease Dated: December 14, 1995
Landlord: HH Properties-I, Inc.
Xxx Xxxxxxx Xxx
Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
Attn: E. Xxxxxxx Xxxxxx
Tenant: Raleigh-Durham MSA Limited Partnership
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Premises: 336 square feet of space located on the
roof top of 0000 Xxxx Xxxxxx xx Xxxxxx,
XX
The undersigned ("Tenant") hereby confirms, as of the date
hereof, the following:
1. Tenant is the tenant under the captioned lease (the
"Lease") covering the captioned space (the "Premises") in the
building located at the above address (the "Building"). Attached
hereto as Exhibit A is a true and correct copy of the Lease.
2. Tenant is in full and complete possession of the
Premises, such possession having been delivered by the captioned
landlord (the "Landlord") or its predecessor in title pursuant to
the Lease and having been accepted by Tenant. If the landlord
named in the Lease is other than Landlord, Tenant recognizes
9
Landlord as the landlord under the Lease.
3. The improvements and space required to be furnished by
the terms of the Lease have been completed in all respects and
the satisfaction of Tenant, and are open for the use of Tenant,
its employees, patients (or customers) and invitees.
4. All duties of an inducement nature required of the
Landlord in the Lease have been fulfilled.
5. The Lease is in full force and effect; to the best of
Tenant's knowledge after due inquiry, there is no existing
default on the part or Tenant or on the part of the Landlord
under the Lease and the Lease has not been amended, modified,
supplemented, superseded or otherwise changed.
6. There are no other agreements between the Landlord and
the Tenant with respect to the Premises.
7. No rents have been prepaid more than thirty (30) days in
advance of its due date, except as provided by the Lease, and
Tenant has not asserted, and has no knowledge of, any claim
against the Landlord under the Lease that might be set-off or
credited against future accruing rents.
8. Tenant has received no notice of a prior sale, transfer,
assignment, hypothecation or pledge of the Lease or of the rents
secured therein.
9. Rents provided in the Lease commenced to accrue on the 1
day of February, 1996.
10. A security deposit of $-0- has been paid to Landlord.
11. The term of the Lease commenced on February 1, 1996.
The termination date of the present term of the Lease, excluding
renewal, is January 31, 2016.
12. Tenant has no right to renew or extend the current term
of its Lease except as follows:
Two additional terms of five (5) years each on the same
terms and conditions as stated in the Lease except rent shall be
adjusted as provided for in the Lease.
13. The current monthly rental (base rent, plus all
additional rents imposed in connection with Tenant's obligation,
if any, to contribute to the payment of real estate taxes,
insurance premiums, common area maintenance and other similar
charges) due under the Lease is $ _______________________.
14. Tenant has no right of first refusal, option or other
10
right to purchase the Premises or the Building, nor does Tenant
have any right to unilaterally cancel the Lease.
15. The address for notices to be sent to Tenant is as set
forth in the Lease.
16. There are no actions, whether voluntary or otherwise,
pending against Tenant under the bankruptcy laws of the United
States or any state thereof.
17. Tenant acknowledges that the address hereof will rely
upon this statement in making a loan to Landlord, secured by a
mortgage lien upon the property of which the Premises is a part.
Very truly yours,
Raleigh-Durham MSA Limited
Partnership (Seal)
By: ____________________________
Name:
Title:
Attest:
-------------------------
_______ Secretary
11
HH Properties-I, Inc., a
New York Corporation
Xxx Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
and
Nomura Asset Capital Corporation and
its successors and assigns
Two World Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Declaration of Covenants and Easements recorded in
Book 3108, Page 819, Wake County Registry (the
"Easement")
Ladies and Gentlemen:
The undersigned Marriott Residence Inn USA
("Marriott") is the owner of Tract 3 as shown in Book of Maps
1983, Pages 378 and 379, Wake County Registry ("Tract 3"). SB
Motel Raleigh Corp. is the owner of, and HH Properties-I, Inc. is
the contract purchaser of Tract 2 as shown in Book of Maps 1983,
Page 379, Wake County Registry ("Tract 2"). Nomura Asset Capital
Corporation ("Nomura") is the lender of HH Properties-I, Inc.
("HH") in its proposed purchase of Tract 2. Tract 2 and Tract 3
share a nonexclusive private access drive as shown in Book of
Maps 1983, Pages 378 and 379 pursuant to the Easement. This
estoppel letter is intended, pursuant to the Easements, to
certify to HH and to Nomura, which certifications they are
entitled to rely upon, certain facts regarding the status of the
Easement.
Please accept this certification and confirmation, as
of the date of this estoppel letter, of Marriott with regard to
the following:
1. The Easement constitutes the valid and binding
obligation of Marriott, enforceable by and against it in
accordance with its terms and conditions and remains in full
force and effect. Attached hereto is an accurate and complete
copy of the Easement and the same has not been modified or
amended in any manner.
2. The Easement has been maintained properly and no
maintenance or repairs of the Easement is scheduled or required as
of this time.
3. The owners of Tract 2 are not obligated to the owner
of Tract 3 for any costs or expense arising out of the Easements
for maintenance, repair or otherwise of the Easement. There exist
no unpaid maintenance costs, real estate taxes or other sums,
charges, costs or amounts of any kind under the Easement. All
duties, covenants and obligations of the parties thereunder have
been performed in full.
The undersigned understands that this letter has been
requested in connection with Nomura's loan to HH and that in
making such loan, Nomura is relying on the information contained
herein. The undersigned also understands that HH is relying on
the information contained herein in agreeing to purchase Tract 2.
The undersigned understands that Lawyers Title Insurance
Corporation is relying on the information contained herein to
issue its policies of fee and mortgage title insurance for the
benefit of HH and Nomura, respectively. The undersigned signatory
warrants to Nomura and HH that such signatory is authorized and
empowered to execute this document and bind the undersigned.
Marriott Residence Inn USA
By:_____________________ (seal)
Date:___________________
2
HH Properties-I, Inc., a
New York Corporation
Xxx Xxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxx 00000
and
Nomura Asset Capital Corporation and
its successors and assigns
Two World Xxxxxxxxx Xxxxxx
Xxxxxxxx X, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Re: Easement Agreements for Ingress, Egress and
Driveway Purposes recorded in Book 3140, Page 104
and Declaration of Covenants and Easements recorded
in Book 3108, Page 819, Wake County Registry (the
"Easements")
Ladies and Gentlemen:
The undersigned Denny's Inc. ("Denny's") is the owner
of Tract 1 as shown in Book of Maps 1983, Page 379, Wake Country
Registry ("Tract 1"). SB Motel Raleigh Corp. is the owner of, and
HH Properties-I, Inc. is the contract purchaser of Tract 2 as
shown in Book of Maps 1983, Page 379, Wake County Registry
("Tract 2"). Nomura Asset Capital Corporation ("Nomura") is the
lender of HH Properties-I, Inc. ("HH") in its proposed purchase
of Tract 2. Tract 1 and Tract 2 share a nonexclusive private
access drive as shown in Book of Maps 1983, Page 379 pursuant to
the Easement. This estoppel letter is intended, pursuant to the
Easements, to certify to HH and to Nomura, which certifications
they are entitled to rely upon, certain facts regarding the
status of the Easement.
Please accept this certification and confirmation, as
of the date of this estoppel letter, of Denny's with regard to
the following:
1. The Easements constitute valid and binding
obligations of Denny's, enforceable by and against it in
accordance with its terms and conditions and remain in full force
and effect. Attached hereto are accurate and complete copies of
the Easement and the same have not been modified or amended in
any manner.
2. The Easement has been maintained properly and no
maintenance or repairs of the Easements are scheduled or required
as of this time.
3. The owners of Tract 2 are not obligated to the
owner of Tract 1 for any costs or expense arising out of the
Easements for maintenance, repair or otherwise of the Easement.
There exist no unpaid maintenance costs, real estate taxes or
other sums,
3
charges, costs or amounts of any kind under the Easement. All
duties, covenants and obligations of the parties thereunder have
been performed in full.
The undersigned understands that this letter has been
requested in connection with Nomura's loan to HH and that in
making such loan, Nomura is relying on the information contained
herein. The undersigned also understands that HH is relying on
the information contained herein in agreeing to purchase Tract 2.
The undersigned understands that Lawyers Title Insurance
Corporation is relying on the information contained herein to
issue its policies of fee and mortgage title insurance for the
benefit of HH and Nomura, respectively. The undersigned signatory
warrants to Nomura and HH that such signatory is authorized and
empowered to execute this document and bind the undersigned.
Xxxxx'x Inc.
By:_____________________ (seal)
Date:___________________
4
