Loan No. 20059205022 (Pool
1)
AMENDED AND RESTATED
CROSS-COLLATERALIZATION AND COOPERATION
AGREEMENT
THIS AMENDED AND
RESTATED CROSS-COLLATERALIZATION AND COOPERATION AGREEMENT (this
“ Agreement ”) is made as of the 13th
day of October, 2005, by and between
(i) ASHFORD ORLANDO SEA WORLD LIMITED PARTNERSHIP, ASHFORD SALT
LAKE LIMITED PARTNERSHIP, ASHFORD RUBY PALM DESERT I LIMITED
PARTNERSHIP and ASHFORD CHARLOTTE LIMITED PARTNERSHIP
(collectively, the “ Original Borrowers ”),
(ii) ASHFORD CHARLOTTE LIMITED PARTNERSHIP, ASHFORD ORLANDO
SEA WORLD LIMITED PARTNERSHIP, ASHFORD OVERLAND PARK LIMITED
PARTNERSHIP, ASHFORD RALEIGH LIMITED PARTNERSHIP, ASHFORD RUBY
DESERT I LIMITED PARTNERSHIP, ASHFORD SALT LAKE LIMITED
PARTNERSHIP, KEY WEST FLORIDA HOTEL LIMITED PARTNERSHIP, MINNETONKA
MINNESOTA HOTEL LIMITED PARTNERSHIP and ANNAPOLIS MARYLAND HOTEL
LIMITED PARTNERSHIP (collectively, the “ Pool 1
Borrowers ”) and (iii) MERRILL LYNCH MORTGAGE
LENDING, INC., in its capacity as mortgage lender (“
Lender ”).
A. The
Original Borrowers and Lender entered into a certain
Cross-Collateralization and Cooperation Agreement dated as of
June 17, 2005 (the “ Original Agreement ”)
in connection with a certain loan from Lender to Borrower described
in the Original Agreement (the “ Original Loan
”).
B. Lender,
the Original Borrowers and the Pool 1 Borrowers have agreed to
modify the terms of the Original Loan to, among other things, cause
the Original Borrowers to assign to the Pool 1 Borrowers, and the
Pool 1 Borrowers to assume from the Original Borrowers, all rights
and obligations of the Original Borrowers in and to the Original
Loan, as modified.
C. As a
condition to modifying the terms of the Original Loan, Lender has
required that the Pool 1 Borrowers and the Original Borrowers enter
into this Agreement with Lender to amend and restate the terms of
the Original Agreement in their entirety.
D. The Pool 1
Borrowers, under that certain Amended and Restated Promissory Note
of even date herewith given to Lender (“ Note 1
”), are indebted to Lender in the original principal sum of
$160,490,000 (“ Loan 1 ”) as governed by that
certain Amended and Restated Loan Agreement of even date herewith
between the Original Borrowers, the Pool 1 Borrowers and Lender
(together with all extensions, renewals, modifications,
substitutions and amendments thereof, “ Loan Agreement
1 ”).
E. The
Borrowers identified on Schedule 1 as the “Pool 2
Borrowers” (collectively, the “ Pool 2 Borrowers
”), under that certain Promissory Note of even date herewith
given to Lender (“ Note 2 ”), are indebted to
Lender in the original principal sum of $77,555,000 (“
Loan
2
”) as governed by that certain
Loan Agreement of even date herewith between the Pool 2 Borrowers
and Lender (together with all extensions, renewals, modifications,
substitutions and amendments thereof, “ Loan Agreement
2 ”).
F. The
Borrowers identified on Schedule 1 as the “Pool 3
Borrowers” (collectively, the “ Pool 3 Borrowers
”), under that certain Amended and Restated Promissory Note
of even date herewith given to Lender (“ Note 3
”), are indebted to Lender in the original principal sum of
$95,905,000 (“ Loan 3 ”) as governed by that
certain Amended and Restated Loan Agreement of even date herewith
between, inter alia , the Pool 3 Borrowers and Lender
(together with all extensions, renewals, modifications,
substitutions and amendments thereof, “ Loan Agreement
3 ”).
G. The
Borrowers identified on Schedule 1 as the “Pool 7
Borrowers” (collectively, the “ Pool 7 Borrowers
”, and together with Pool 1 Borrowers, Pool 2 Borrowers and
Pool 3 Borrowers, collectively, the “ Borrowers
”), under that certain Amended and Restated Promissory Note
of even date herewith given to Lender (“ Note 7
”, and together with Note 1, Note 2 and Note 3, collectively,
the “ Notes ”), are indebted to Lender in the
original principal sum of $83,075,000 (“ Loan 7
”, and together with Loan 1, Loan 2 and Loan 3, collectively,
the “ Loans ”) as governed by that certain
Amended and Restated Loan Agreement of even date herewith between,
inter alia , the Pool 7 Borrowers and Lender (together with
all extensions, renewals, modifications, substitutions and
amendments thereof, “ Loan Agreement 7 ”, and
together with Loan Agreement 1, Loan Agreement 2 and Loan Agreement
3, collectively, the “ Loan Agreements
”).
H. Loan 1,
Loan 2, Loan 3 and Loan 7 are secured, in part, by Mortgages (as
defined in the Loan Agreements) on the Properties in the respective
pools of Properties identified on Schedule 2 (each, a
“ Pool ”, and collectively, the “
Pools ”). Each of such Properties is referred to
herein as a “ Property ” and, collectively, as
the “ Properties ”. The Properties in each Pool
are referred to, respectively, as the “ Pool 1
Properties ”, “ Pool 2 Properties ”,
“ Pool 3 Properties ” and “ Pools 7
Properties ”.
For ten ($10)
dollars and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree
as follows:
Section 1.
Cross Collateralization Within Pool; Contribution
.
(a) Each
Pool 1 Borrower acknowledges that Lender is making Loan 1 to the
Pool 1 Borrowers upon the security of its collective interest in
the Pool 1 Properties and in reliance upon the aggregate of the
Pool 1 Properties taken together being of greater value as
collateral security than the sum of each Pool 1 Property taken
separately. Each Pool 1 Borrower agrees that each Mortgage of a
Pool 1 Property is and will be cross-collateralized and
cross-
defaulted with
each other Mortgage of a Pool 1 Property so that (i) an Event
of Default which continues beyond the expiration of any applicable
notice and cure periods under any of such Mortgages shall
constitute an Event of Default under each of the other such
Mortgages securing the related Note; (ii) an Event of Default
which continues beyond the expiration of any applicable notice and
cure periods under the related Loan Agreement or this Agreement
shall constitute an Event of Default under each such Mortgage;
(iii) each such Mortgage shall constitute security for the
related Note as if a single blanket lien were placed on all of the
Pool 1 Properties as security for Note 1; and (iv) such
cross-collateralization shall in no event be deemed to constitute a
fraudulent conveyance.
(b) Without
limitation to any other right or remedy provided to Lender in this
Agreement or any of the other Loan Documents, each Pool 1 Borrower
covenants and agrees that (i) Lender shall have the right to
pursue all of its rights and remedies in one proceeding, or
separately and independently in separate proceedings which it, as
Lender, in its sole and absolute discretion, shall determine from
time to time, (ii) Lender is not required to either marshall
assets, sell any or all of the Collateral in any inverse order or
alienation, or be subjected to any “one action” or
“election of remedies” law or rule, (iii) the
exercise by Lender of any remedies against any of the Collateral
will not impede Lender from subsequently or simultaneously
exercising remedies against any other Collateral, (iv) all
Liens and other rights, remedies and privileges provided to Lender
in this Agreement and/or any other Loan Documents otherwise shall
remain in full force and effect until Lender has exhausted all of
its remedies against the Collateral and all the Collateral has been
foreclosed, sold and/or otherwise realized upon and (v) each
Pool 1 Property and all Collateral as defined in Loan Agreement 1
shall be security for the performance of all each Pool 1
Borrower’s obligations hereunder and under each of the other
Loan Documents.
(c) As
a result of the transactions contemplated by this Agreement, each
Pool 1 Borrower will benefit, directly and indirectly, from the
obligation of each other Pool 1 Borrower to pay the related
Indebtedness and perform its obligations hereunder and under the
other related Loan Documents and in consideration therefore each
Pool 1 Borrower desires to enter into an allocation and
contribution agreement among themselves as set forth in this
Section 1(c) to allocate such benefits among themselves
and to provide a fair and equitable agreement to make contributions
among each Pool 1 Borrower in the event any payment is made by any
individual Pool 1 Borrower under the Loan Documents to Lender (such
payment being referred to herein as a “ Contribution
”, and for purposes of this Section, includes any exercise of
recourse by Lender against any Collateral of a Pool 1 Borrower and
application of proceeds of such Collateral in satisfaction of such
Borrower’s obligations, to Lender under the Loan
Documents).
(i)
Each Pool 1 Borrower shall be liable under the related Loan
Documents with respect to the related Indebtedness only for such
total maximum amount (if any) that would not render its
Indebtedness under the related Loan Agreement or under any of the
Loan Documents subject to avoidance under Section 548 of the
Federal Bankruptcy Code or any comparable provisions of any state
law.
(ii)
In order to provide for a fair and equitable contribution among
Pool 1 Borrowers in the event that any Contribution is made by an
individual Pool 1 Borrower (a “ Funding Borrower
”), such Funding Borrower shall be entitled to a
reimbursement Contribution (“ Reimbursement
Contribution ”) from all other Pool 1 Borrowers for all
payments, damages and expenses incurred by that Funding Borrower in
discharging any of the Indebtedness, in the manner and to the
extent set forth in this Section.
(iii)
For purposes hereof, the “ Benefit Amount ” of
any individual Pool 1 Borrower as of any date of determination
shall be the net value of the benefits to such Borrower from
extensions of credit made by Lender to (A) such Borrower and
(B) to the other Pool 1 Borrowers under the related Loan
Documents.
(iv)
Each Pool 1 Borrower shall be liable to a Funding Borrower in an
amount equal to the (A) ratio of the Benefit Amount of such
Borrower to the total amount of related Indebtedness, multiplied by
(B) the amount of such Indebtedness paid by such Funding
Borrower.
(v)
In the event that at any time there exists more than one Funding
Borrower with respect to any Contribution (in any such case, the
“ Applicable Contribution ”), then Reimbursement
Contributions from other Pool 1 Borrowers pursuant hereto shall be
allocated among such Funding Borrowers in proportion to the total
amount of the Contribution made for or on account of the other Pool
1 Borrowers by each such Funding Borrower pursuant to the
Applicable Contribution. In the event that at any time any Pool 1
Borrower pays an amount hereunder in excess of the amount
calculated pursuant to this Section 1 above, that
Borrower shall be deemed to be a Funding Borrower to the extent of
such excess and shall be entitled to a Reimbursement Contribution
from the other Pool 1 Borrowers in accordance with the provisions
of this Section.
(vi)
Each Pool 1 Borrower acknowledges that the right to Reimbursement
Contribution hereunder shall constitute an asset in favor of such
Borrower to which such Reimbursement Contribution is
owing.
(vii)
No Reimbursement Contribution payments payable by a Pool 1 Borrower
pursuant to the terms of this Section 1 shall be paid
until all amounts then due and payable by all Pool 1 Borrowers to
Lender, pursuant to the terms of the related Loan Documents, are
paid in full in cash. Nothing contained in this
Section 1 shall limit or affect in any way the
Indebtedness of any Pool 1 Borrower to Lender under the Note or any
other Loan Documents.
(viii)
Each Pool 1 Borrower waives:
(A) any
right to require Lender to proceed against any other Borrower or
any other person or to proceed against or exhaust any security held
by Lender at any time or to pursue any other remedy in
Lender’s power before proceeding against Borrower;
(B) any
defense based upon any legal disability or other defense of any
other Borrower, any guarantor of any other person or by reason of
the cessation or limitation of the liability of any other Borrower
or any guarantor from any cause other than full payment of all sums
payable under the Notes, this Agreement and any of the other Loan
Documents;
(C) any
defense based upon any lack of authority of the officers,
directors, partners or agents acting or purporting to act on behalf
of any other Borrower or any principal of any other Borrower or any
defect in the formation of any other Borrower or any principal of
any other Borrower;
(D) any
defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in
any other respects more burdensome than that of a
principal;
(E) any
defense based upon any failure by Lender to obtain collateral for
the Indebtedness or failure by Lender to perfect a lien on any
Collateral;
(F) presentment,
demand, protest and notice of any kind;
(G) any
defense based upon any failure of Lender to give notice of sale or
other disposition of any collateral to any other Borrower or to any
other person or entity or any defect in any notice that may be
given in connection with any sale or disposition of any
Collateral;
(H) any
defense based upon any failure of Lender to comply with applicable
laws in connection with the sale or other disposition of any
Collateral, including any failure of Lender to conduct a
commercially reasonable sale or other disposition of any
Collateral;
(I) any
defense based upon any use of cash collateral under
Section 363 of the Federal Bankruptcy Code;
(J) any
defense based upon any agreement or stipulation entered into by
Lender with respect to the provision of adequate protection in any
bankruptcy proceeding;
(K) any
defense based upon any borrowing or any grant of a security
interest under Section 364 of the Federal Bankruptcy
Code;
(L) any
defense based upon the avoidance of any security interest in favor
of Lender for any reason;
(M) any
defense based upon any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution
proceeding, including any discharge of, or bar or stay against
collecting, all or any of the obligations evidenced by the Notes or
owing under any of the Loan Documents;
(N) any
defense or benefit based upon such Borrower’s, or any other
party’s, resignation of the portion of any obligation secured
by the Mortgages to be satisfied by any payment from any other
Borrower or any such party;
(O) all
rights and defenses arising out of an election of remedies by
Lender even though the election of remedies, such as non-judicial
foreclosure with respect to security for the Loan or any other
amounts owing under the Loan Documents, has destroyed
Borrower’s rights of subrogation and reimbursement against
any other Borrower;
(P) all
rights and defenses that such Borrower may have because any
Indebtedness is secured by real property. This means, among other
things: (1) Lender may collect from such Borrower without
first foreclosing on any real or personal property collateral
pledged by any other Borrower, (2) if Lender forecloses on any
real property collateral pledged by any other Borrower,
(I) the amount of the Indebtedness may be reduced only by the
price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price,
(II) Lender may collect from such Borrower even if any other
Borrower, by foreclosing on the real property collateral, has
destroyed any right such Borrower may have to collect from any
other Borrower. This is an unconditional and irrevocable waiver of
any rights and defenses such Borrower may have because any of the
Indebtedness is secured by real property; and
(Q) except
as may be expressly and specifically permitted herein, any claim or
other right which such Borrower might now have or hereafter acquire
against any other Borrower or any other person that arises from the
existence or performance of any obligations under the Notes, this
Agreement or the other Loan Documents, including any of the
following: (i) any right of subrogation, reimbursement,
exoneration, contribution, or indemnification; or (ii) any
right to participate in any claim or remedy of Lender against any
other Borrower or any collateral security therefore, whether or not
such claim, remedy or right arises in equity or under contract,
statute or common law.
Section 2.
Cross-Collateralization Across Pools; Contribution; Release of
Cross-Collateralization .
(a) Until
repayment of the Indebtedness under each Loan Agreement and
satisfaction of all obligations under each Loan Agreement, each
Pool 1 Borrower acknowledges and agrees (subject to Lender’s
election(s) at Lender’s sole discretion from time to time or
otherwise pursuant to Section 2(g) below):
(i) that each of the Pool 1 Properties shall
secure not only
Loan 1 but also all of the other Loans, and that the Liens of the
related Loan Documents shall constitute Liens securing not only
Loan 1 but also all of the other Loans; and (ii) that Lender
would not make the Loans to the Pool 1 Borrowers unless the Pool 1
Borrowers granted liens on the Pool 1 Properties to secure the
payment of each of the Loans.
(b) Until
the date that all of the Loans shall have been paid and satisfied
in full, the Pool 1 Borrowers (i) shall have no right of
subrogation with respect to the Loans and (ii) waive any right
to enforce any remedy which Lender now has or may hereafter have
against the Borrowers, any endorser or any guarantor of all or any
part of the Loans or any other individual or entity, and the Pool 1
Borrowers waive any benefit of, and a
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