BEE » Topics » Property LLC shall mean SHC Michigan Avenue, LLC, a Delaware limited liability company wholly owned by the Partnership or Mezzanine LLC.

This excerpt taken from the BEE 8-K filed Mar 2, 2005.

“Property LLC” shall mean SHC Michigan Avenue, LLC, a Delaware limited liability company wholly owned by the Partnership or Mezzanine LLC.

 

“Qualified Financing” shall mean any mortgage, deed of trust, pledge or encumbrance or other form of security interest in the assets constituting the Hotel or other financing arrangements contemplated by Strategic to be incurred by the Partnership on or about the Closing that: (i) has an aggregate (with respect to that portion of the financing attributable to the Property) initial principal amount of at least $98,175,000; (ii) is in the form of non-recourse indebtedness (subject to customary non-recourse carve-outs) as defined in Regulations 1.752-1(a)(2), (iii) is not guaranteed by any Partner in the Partnership as to such amount in subsection (i) of this definition (but may be guaranteed as to any excess amount); (iv) has a loan-to-value on the date of funding no greater than seventy-five percent (75%); and (v) in the good faith judgment of Strategic, is on commercially reasonable terms.

 

“Real Property” shall mean the Land, including, without limitation, (a) the Hotel and any other buildings located on the Land and all other improvements, (b) all easements appurtenant to the Land and other easements, grants of right, licenses, privileges or other agreements for the benefit of, belonging to or appurtenant to the Land whether or not situate

 

    Schedule A – 9    


upon the Land, including, without limitation, signage rights and parking rights or agreements, all whether or not specifically referenced on Exhibit A, (c) all mineral, oil and gas rights, riparian rights, water rights, sewer rights and other utility rights allocated to the Land, (d) all right, title and interest, if any, of the owner of the Land in and to any and all strips and gores of land located on or adjacent to the Land, and (e) all right, title and interest of the owner of the Land in and to any roads, streets and ways, public or private, open or proposed, in front of or adjoining all or any part of the Land and serving the Land, all subject to the Permitted Title Exceptions.

 

“Record Exceptions” shall mean all instruments recorded in the real estate records of the County in which the Land is located which affect the status of title to the Real Property.

 

“Remove” with respect to any exception to title shall mean that Partnership causes the Title Company to remove or affirmatively insure over (to the extent reasonably appropriate) the same as an exception to the Title Policy, without any additional cost to Strategic or the Post-Amendment Partnership, whether such removal or insurance is made available in consideration of payment, bonding, indemnity of the Existing Partners, or otherwise.

 

“Rental Payments” shall mean all payments received by on or behalf of Partnership from Tenants or with respect to the Leases or with respect to any other use or occupancy of the Property for items such as minimum or base rent, additional rent, percentage rent, termination or cancellation charges, reimbursement for real estate taxes, utilities, parking fees, operating and maintenance expenses and insurance, as well as any other reimbursements or charges received thereunder.

 

“Representation Exception Schedules” shall mean the exceptions to the representations and warranties of Partnership, if any, as disclosed to Strategic in accordance with Section 7.1.

 

“Representatives” shall mean a party’s officers, employees, agents, advisors, representatives, attorneys, accountants, consultants, lenders, investors, contractors, architects and engineers.

 

“Required Estoppel Certificates” shall have the meaning set forth in Section 4.4.

 

“Required Removal Items” shall mean, collectively, any exceptions to the extent (and only to the extent) that the same (a) have not been caused by Strategic or any of Strategic’s Representatives, and (b) are either: (i) Liens evidencing monetary encumbrances created by the Pre-Amendment Partnership, Existing Partners or Management LLC (other than Liens for non-delinquent general real estate taxes or assessments) which can be Removed by payment of liquidated amounts provided that in no event shall Pre-Amendment Partnership, the Existing Partners or Management LLC be required to Remove any such Lien which is not related to the operation of the Property by any method other than indemnity of the Existing Partners in favor of the Title Company (for example, unrelated items would include a judgment against such party in connection with its other operations; whereas a mechanic’s lien for work on the Property pursuant to a contract entered into by Pre-Amendment Partnership would be related to Property operations), or (ii) Liens or encumbrances (including, but not limited to, monetary Liens and judgment Liens against the Property) created by Pre-Amendment Partnership, Existing Partners or Management LLC after the Effective Date in violation of this Agreement.

 

    Schedule A – 10    


“Reserve Account” shall have the meaning set forth in the Management Agreement.

 

“Securities Act” shall mean the Securities Act of 1933, as amended.

 

“Specially Designated National or Blocked Person” shall mean (i) a person or entity designated by the US Department of Treasury’s Office of Foreign Assets Control from time to time as a “specially designated national or blocked person” or similar status, (ii) a person or entity described in Section 1 of the US Executive Order 13224, issued September 23, 2001, or (iii) a person or entity otherwise identified by governmental authorities as a person or entity with which either Party is prohibited from transacting business. As of the Effective Date, a list of such designations and the text of the Executive Order are published at: www.ustreas.gov/offices/enforcement/ofac.

 

“Strategic” shall mean SHC Michigan Avenue Holdings, LLC, a Delaware limited liability company.

 

“Strategic Affiliate” shall mean (i) any successor to Strategic in connection with a bona fide reorganization, recapitalization, acquisition or merger, (ii) any Person which acquires all or substantially all of the assets of Strategic, and (iii) any other Person which, directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with Strategic or any of the aforesaid specifically identified Strategic Affiliates. The term “control”, as used in the immediately preceding sentence, means, with respect to a Person that is a corporation, the right to the exercise, directly or indirectly, of more than 50% of the voting rights attributable to the shares of the controlled corporation and, with respect to a Person that is not a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the controlled Person.

 

Strategic Costs Cap” shall have the meaning set forth in Section 11.2.

 

“Strategic Indemnitees” shall mean Strategic, the Post-Amendment Partnership, and their respective officers, directors, managers, general partners, partners, employees and agents, other than the Existing Partners and Management LLC.

 

“Strategic’s Knowledge” or “Knowledge”, “Know”, “Knew” or words of similar import applicable to Strategic or Strategic’s Representatives shall mean the actual knowledge of Laurence Geller, Steve Kisielica, Robert McAllister, or Paula Maggio. There shall be no personal liability on the part of such parties arising out of any of Strategic’s representations and warranties.

 

“Strategic TRS Lessee” shall mean DTRS Michigan Avenue/Chopin Plaza, LP, a Delaware limited partnership whose initial partners shall be Management LLC (with a 15% ownership interest as a limited partner) and DTRS General Partner (with an 84.9% ownership interest as a limited partner and a .1% ownership interest as a general partner).

 

“Subsequent Deposit” shall mean the sum of Two Million Five Hundred Thousand and No/100 Dollars ($2,500,000.00).

 

“Survey” shall mean a survey of the Land obtained by Strategic pursuant to Section 4.

 

    Schedule A – 11    


“Survey Objections” shall mean any defects in Survey which (i) are not shown on the Pro Forma Title Policy as an insured over exception, and (ii) were not revealed by the previous survey provided to Strategic by the Existing Partners, that Strategic in good faith determines would have a material adverse effect on the Business, the Property, or its ownership interest therein and as to which Strategic timely objects in accordance with the terms of Paragraph 4.3.

 

“Tax Year” shall mean the year period commencing on January 1 of each calendar year and ending on December 31 of each calendar year.

 

“Tenant” shall mean a tenant under a Lease; collectively, all tenants under the Leases are referred to as the “Tenants.”

 

“Tenant Deposits” shall mean all prepaid rents, advance rentals, security deposits and other deposits made with respect to the Leases.

 

“Terminate” shall mean the termination of this Agreement, by Strategic, Existing Partners, Management LLC, or Partnership as applicable as set forth in this Agreement, in which event thereafter no party hereto shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives such a termination of this Agreement.

 

“Threshold Amount” shall mean Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00).

 

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