EX-10.14b

EX-10.14B 7 d643219dex1014b.htm EX-10.14B EX-10.14b

Exhibit 10.14b


APN:
Prepared by and after recording, return to:
Bilzin Sumberg Baena Price & Axelrod LLP
1450 Brickell Avenue, Suite 1450
Miami, Florida 33131-5340
Attn: Post-Closing Department

(Space Above For Recorder’s Use Only)

AMENDMENT TO DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND FIXTURE FILING

(WBCMT 2007-C31; LOAN NO. 502860051)

THIS AMENDMENT TO DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND FIXTURE FILING (this “Amendment”) is executed this 19th day of November, 2013, and is entered into among U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF WACHOVIA BANK COMMERCIAL MORTGAGE TRUST, COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-C31 (“Lender”), having an address at c/o Corporation Trust Services, 190 South LaSalle Street, 7^th Floor, Mail Station: MK-IL-SL7R, Chicago, IL 60603, Re: WBCMT 2007-C31; Loan No. 502860051; and ASHFORD SAN FRANCISCO II, LP, a Delaware limited partnership (“Borrower”) having an address at c/o Ashford Hospitality Prime, Inc., 14185 Dallas Parkway, Suite 1100, Dallas, Texas 75254-4308, Attention: David A. Brooks.

PRELIMINARY STATEMENT

A. Borrower is the current owner of title to certain real properties (collectively, the “Land”) and the buildings and improvements thereon (the “Improvements”) known as Courtyard San Francisco Downtown, located in San Francisco, California as more particularly described on Exhibit A attached hereto (the Land and the Improvements are hereinafter sometimes referred to as the “Property”).

B. On April 11, 2007, Wachovia Bank, National Association, a national banking association (“Original Lender”), made a loan (“Loan”) in the original principal amount of $128,408,000.00 to Borrower, which Loan was cross-collateralized with other borrowers, mortgages and properties.

C. The Loan is evidenced by that certain Promissory Note dated April 11, 2007, made by the Cross Collateralized Borrowers (as defined in the Security Instrument) in favor of Original Lender in the original principal amount of $128,408,000.00 (the “Note”) and secured by, among other things, the lien of that certain Deed of Trust, Security Agreement, Assignment of Rents and Fixture Filing dated as of April 11, 2007, executed by Borrower in favor of Original

Lender, recorded April 23, 2007 as Document Number 2007-I371619-00 in the real property records of San Francisco, California (the “Security Agreement”) encumbering the Property. The Note, Security Instrument and such other documents evidencing, securing or pertaining to the Loan, as the same may be amended, supplemented, assigned, assumed, substituted and/or consolidated are collectively referred to herein as the “Loan Documents.”

D. Lender is the current owner and holder of the Loan Documents.

E. Lender and Borrower are parties to that certain Consent Agreement (the “Consent Agreement”) dated as of the date hereof, whereby Lender consented, among other things, to certain transfers (each a “Transfer”) under the Loan Documents. As a condition to Lender granting its consent to the Transfers and entering into the Consent Agreement with Borrower, Lender and Borrower agreed certain modifications be made to the Security Instrument, as more particularly set forth herein.

NOW, THEREFORE, in consideration of $10.00 paid by each of the parties to the other, the mutual covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

ARTICLE 1

DEFINITIONS

1.1. Definitions. All terms not defined herein shall have the meaning set forth in the Security Instrument. All references to the term “Security Instrument” shall mean such document as modified hereby.

ARTICLE 2

AMENDMENT

The Security Instrument is hereby amended as follows:

2.1 The term “Permitted Transfer” as defined in Section 1.01 of the Security Instrument, is deleted in its entirety and the following is substituted therefor:

“Permitted Transfer” shall mean (a) Permitted Liens; (b) all transfers of Equipment and other items of personal property as expressly permitted in the Loan Documents; (c) transfers of direct and indirect interests in Borrower (other than interests held by a General Partner) and/or in General Partner to one or more Affiliates of Borrower; (d) transfers, issuances, conversions, pledges and redemptions of capital stock and partnership interests in any Joint Venture Parent Entity (or their respective successors), in the ordinary course of business and not in connection with a tender offer, merger or sale of such Persons; (e) the merger or consolidation of any Joint Venture Parent Entity (or their respective successors) whereby such Joint Venture Parent Entity is the surviving entity in such merger or consolidation; provided that, Lender shall first obtain, at Borrower’s sole cost and expense, from each Rating Agency a written confirmation that any ratings issued by each such Rating Agency in connection with a Securitization will not, as a result of the proposed merger or consolidation, be downgraded from the then current ratings thereof, qualified or withdrawn; and (f) the foreclosure of any pledge (other than by a Prohibited

Person) of any indirect equity interests in Borrower, the General Partner of Borrower or Operating Tenant held by Ashford Hospitality Trust, Inc., Ashford OP General Partner LLC, Ashford OP Limited Partner LLC or Ashford Hospitality Limited Partnership granted to secure a senior credit facility made to any such parties (but only to the extent that such pledge consists of a pledge by Ashford Hospitality Trust, Inc., Ashford OP General Partner LLC, Ashford OP Limited Partner LLC or Ashford Hospitality Limited Partnership, as applicable, of its direct or indirect limited partnership interests in Ashford Hospitality Prime Limited Partnership) so long as such foreclosure does not result in the foreclosing lender owning more than (x) a 30% direct or indirect interest in Ashford Hospitality Prime Limited Partnership, or (y) following a contribution of the Marriott Crystal Gateway Hotel located in Arlington, Virginia to Ashford Hospitality Prime Limited Partnership, a 45% direct or indirect interest in Ashford Hospitality Prime Limited Partnership and written notice of such foreclosure containing a description of the interest being foreclosed is provided to Lender within ten (10) days prior to the filing of such foreclosure, provided further that, and in addition to any conditions set forth above with respect to any Permitted Transfer (i) that following any of the events contemplated by clauses (a) through (f) above: (1) the majority of the individuals Controlling the board of directors of Ashford Hospitality Prime, Inc. continue to Control the board of directors of Ashford Hospitality Prime, Inc. after any such Permitted Transfer, (2) Ashford Hospitality Prime, Inc. shall at all times continue to Control Ashford Hospitality Prime Limited Partnership and own at least 51% of the equity interests in and Control Ashford Prime OP General Partner LLC; (3) Ashford Hospitality Prime Limited Partnership shall at all times continue to own (directly or indirectly) at least 51% of the equity interests in and Control each General Partner of Borrower and Operating Tenant, Borrower and Operating Tenant; (4) in the event that any Transfer results in any Person which as of the Equity Transfer Date does not own 49% or more of the direct or indirect interests in Borrower, Operating Tenant or the General Partner of Borrower or Operating Tenant, as applicable, obtaining a 49% or greater direct or indirect interest in Borrower, Operating Tenant or any General Partner of Borrower or Operating Tenant, Borrower shall (x) deliver a substantive non-consolidation opinion to Lender in form and substance and from counsel reasonably acceptable to Lender and the Rating Agencies, if applicable; (5) no Transfer may be to a Prohibited Person; and (6) Borrower shall pay or cause to be paid all of the costs and expenses incurred by Lender (including, but not limited to, attorneys’ fees and costs at all trial, appellate and bankruptcy proceedings) in connection with any of the foregoing.

2.2. The term “Equity Transfer Date” shall be added as a defined term under Section 1.01 of the Security Instrument, as follows:

“Equity Transfer Date” shall mean November 19, 2013 [the date the equity transfer and Spin Off Date].

2.3. The term “Joint Venture Parent Entity” shall be added as a defined term under Section 1.01 of the Security Instrument, as follows:

“Joint Venture Parent Entity” shall mean each of the following entities: Ashford Hospitality Trust, Inc., Ashford OP General Partner LLC, Ashford OP Limited Partner LLC, Ashford Hospitality Limited Partnership, Ashford Hospitality Prime, Inc., Ashford Prime OP General Partner LLC, Ashford Prime OP Limited Partner LLC, Ashford Hospitality Prime Limited Partnership and Ashford Prime TRS Corporation.

2.4. Financial Reports. Section 2.09(b) of the Security Agreement is modified such that Borrower shall deliver each annual financial statement required to be furnished to Lender pursuant to Section 2.09(b) of the Security Instrument, accompanied by audited financial statements of Ashford Hospitality Prime, Inc., which are audited by a nationally recognized Independent certified public accountant that is acceptable to Lender in accordance with GAAP and The Uniform System of Accounts (or such other accounting basis reasonably acceptable to Lender).

2.5. Notices. Section 11.01 of the Security Instrument is modified such that the contact information for Borrower and Lender for notices shall be deleted in its entirety and the following substituted therefor:


If to Lender:		U.S. Bank National Association, as Trustee
		c/o Wells Fargo Bank, N.A.
		Wells Fargo Commercial Mortgage Servicing
		MAC D 1086-120
		550 S. Tryon Street, 14^th Floor
		Charlotte, North Carolina 28202
		Re: WBCMT 2007-C31; Loan No. 502860051

With a copy to:		LNR Partners, LLC
		1601 Washington Avenue, Suite 700
		Miami Beach, Florida 33139
		Attn: Director of Servicing
		Facsimile: (305) 695-5601
		Re: WBCMT 2007-C31; Loan No. 502860051

If to Borrower:		c/o Ashford Hospitality Prime, Inc.
		14185 Dallas Parkway, Suite 1100
		Dallas, Texas 75254-4308
		Attention: David A. Brooks
		Facsimile: 972- 490- 9605
		Telephone: 972-490-9600
		Email: dbrooks@ahtreit.com

With a copy to:		Andrews Kurth LLP
		1717 Main Street, Suite 3700
		Dallas, Texas 75201
		Attn: Brigitte Kimichik, Esq.
		Telephone: 214-659-4441
		Facsimile: 214-659-4777
		Email: bkimichik@andrewskurth.com


If to Trustee:		U.S. Bank National Association
		Corporation Trust Services
		190 South LaSalle Street, 7^th Floor
		Mail Station: MK-IL-SL7R
		Chicago, Illinois 60603
		Re: WBCMT 2007-C31; Loan No. 502860051

ARTICLE 3

MISCELLANEOUS

3.1. Reaffirmation. Except as amended by this Amendment, the Security Instrument has not been otherwise modified and is in full force and effect.

3.2. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State where the Property is located without regard to conflict of law principles.

3.3. Counterparts. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute one and the same instrument.

(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)

The Parties have executed and delivered this Amendment, as of the day and year first above written.

Witnesses:

LENDER:

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF WACHOVIA BANK COMMERCIAL MORTGAGE TRUST, COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-C31

By:

LNR Partners, LLC, a Florida limited liability company, successor by statutory conversion to LNR Partners, Inc., a Florida corporation, as attorney-in-fact

/s/ Angela Ospina

By:

/s/ Arnold Shulkin

Print Name:

Angela Ospina

Arnold Shulkin, Vice President

/s/ Neris Franco

Print Name:

Neris Franco


STATE OF FLORIDA		)
		) SS:
COUNTY OF MIAMI-DADE		)

The foregoing instrument was acknowledged before me this 1st day of October, 2013, by Arnold Shulkin, as Vice President of LNR Partners, LLC, a Florida limited liability company, successor by statutory conversion to LNR Partners, Inc., a Florida corporation, as attorney in fact of U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF WACHOVIA BANK COMMERCIAL MORTGAGE TRUST, COMMERCIAL MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-C31 on behalf of the said trust. He ü is personally known to me or has produced a driver’s license as identification.


/s/ Xiomara Alaniz
Notary Public, State of Florida


Print Name:		Xiomara Alaniz


My Commission Expires:		7/17/15


Witnesses:	BORROWER:

	ASHFORD SAN FRANCISCO II, LP, a Delaware limited partnership

	By:	Ashford Sapphire III GP LLC, a Delaware limited liability company, its general partner

		By:	/s/ David A. Brooks
		Name:	David A. Brooks
		Title:	Vice President


STATE OF TEXAS		)
		) SS.:
COUNTY OF DALLAS		)

The foregoing instrument was acknowledged before me this 1st day of October, 2013, by David A. Brooks, the Vice President of Ashford Sapphire III GP LLC, a Delaware limited liability company, the general partner of Ashford San Francisco II, LP, a Delaware limited partnership, on behalf of the partnership. He ü is personally known to me or has produced a driver’s license as identification.


Kathy Sledge
Notary Public, State of Texas
My Commission Expires:		12/27/13

EXHIBIT A

LEGAL DESCRIPTION

The Land referred to herein below is situated in the City of San Francisco, County of San Francisco, State of California, described as follows:

PARCEL ONE:

Beginning at a point on the northwesterly line of Folsom Street, distant thereon 50 feet northeasterly from the northeasterly line of Second Street; running thence northeasterly along said line of Folsom Street, 125 feet; thence at a right angle northwesterly, 80 feet; thence at a right angle northeasterly, 27 feet and 6 inches. thence at a right angle northwesterly, 75 feet to the southeasterly line of Clementina Street; thence at a right angle southwesterly, along said line to Clementina Street, 97 feet and 6 inches, thence at a right angle southeasterly, 75 feet; thence at a right angle southwesterly, 25 feet; thence at a right angle southeasterly, 5 feet, thence at a right angle southwesterly, 30 feet, thence at a right angle southeasterly, 75 feet to the point of the beginning.