Exhibit 10.C
After recording, this document
should be returned to:
Host Marriott Corporation
10400 Fernwood Road
Bethesda, Maryland 20817
Attn: David E. Reichmann, Esq.
SECOND MORTGAGE, ASSIGNMENT OF RENTS AND LEASES,
SECURITY AGREEMENT, AND
FIXTURE FILING
Dated as of April 30, 1997
made by
HANOVER MARRIOTT LIMITED PARTNERSHIP
(the "MORTGAGOR")
to
HOST MARRIOTT CORPORATION
(the "MORTGAGEE")
THIS SECOND MORTGAGE ("MORTGAGE") IS A "NON-RECOURSE" MORTGAGE. THE LIABILITY OF
THE MORTGAGOR IS LIMITED IN THE MANNER DESCRIBED IN SECTION 4.12 HEREOF.
THIS SECOND MORTGAGE IS BASED ON A MULTI-STATE FORM OF SECURITY DOCUMENT THAT
IS USED IN A NUMBER OF STATES. AMENDMENTS TO CERTAIN PROVISIONS CONTAINED IN
THIS MORTGAGE, AS APPLICABLE TO NEW JERSEY, ARE SET FORTH IN ANNEX I ATTACHED
HERETO. ANNEX I SHALL NOT BE DEEMED TO LIMIT OR OTHERWISE AFFECT ANY OTHER
PROVISION HEREOF NOT EXPRESSLY AMENDED THEREBY. SECTION 1.14 HEREOF IS INTENDED
TO CONFIRM THE U.C.C. SECURITY INTERESTS IN CERTAIN PROPERTY (INCLUDING, WITHOUT
LIMITATION, FIXTURES) CREATED HEREBY.
TABLE OF CONTENTS
Page
----
1. COVENANTS, REPRESENTATIONS AND WARRANTIES............................. 3
1.1. Payment of Mortgage Note; Performance of Other Obligations...... 3
1.2. General Representations, Warranties and Covenants............... 4
1.2.1. Authority, Enforceability, Etc. ........................ 4
1.2.2 No Defaults............................................. 4
1.2.3. No Litigation........................................... 4
1.2.4. Compliance with Law, Etc. .............................. 4
1.2.5. Good Title.............................................. 4
1.2.6. Covenant of Title....................................... 5
1.2.7. Negative Pledge......................................... 5
1.2.8. Qualification........................................... 5
1.2.9. Necessary Permits....................................... 5
1.3. Title Insurance.................................................. 6
1.4. Recordation; Preservation of Lien................................ 6
1.5. Taxes, Liens, and Permitted Encumbrances......................... 6
1.5.1. Taxes................................................... 6
1.5.2. Liens; Permitted Encumbrances........................... 6
1.5.3. Permitted Contests...................................... 6
1.5.4. No Credit for Payment of Taxes or Impositions........... 7
1.6. Care of the Property............................................ 7
1.6.1. Condition of the Property............................... 7
1.6.2. Alterations; Hotel Only................................. 7
1.6.3. Right to Inspect........................................ 7
1.6.4. Compliance with Laws and Covenants...................... 7
1.7. Insurance....................................................... 7
1.7.1. Risks to Be Insured..................................... 7
1.7.2. Policy Provisions....................................... 8
1.7.3. Delivery of Certificates................................ 9
1.8. Damage to or Destruction of Property............................ 9
1.8.1. Notice.................................................. 9
1.8.2. Restoration............................................. 9
1.9. Condemnation.................................................... 9
1.9.1. Mortgagor to Give Notice, Etc. ......................... 9
1.9.2. Total and Substantial Taking............................ 9
1.9.3. Partial and Temporary Taking............................ 9
1.10. Alterations..................................................... 10
1.10.1. Right to Inspect........................................ 10
1.10.2. Cooperation............................................. 10
1.11. Expenses........................................................ 10
1.12. Further Assurances.............................................. 10
1.13. Additions to Security........................................... 10
1.14 U.C.C. Security Agreement and Fixture Filing.................... 11
1.14.1. Grant of Security....................................... 11
1.14.2. Financing Statements.................................... 11
1.14.3. Multiple Remedies....................................... 11
1.14.4. Expenses of Disposition of the Properties............... 11
1.14.5. Fixture Filing.......................................... 11
1.15. Management Agreement............................................ 12
1.16. Assignment of Rents and Revenues and Mortgagor's
Interest in Leases............................................ 12
1.16.1. Assignment and License................................ 12
1.16.2. Termination of License................................ 12
1.16.3. Satisfaction and Release.............................. 13
1.16.4. No Obligations........................................ 13
1.16.5. Rights in Litigation and Bankruptcy................... 13
1.17. Environmental Covenants and Representations................... 13
1.18. Release Upon Satisfaction of Obligations...................... 13
1.19. Utility Services.............................................. 14
2. EVENTS OF DEFAULT................................................... 14
2.1. Payment Default............................................... 14
2.2. Material Breach of Representation and Warranty................ 14
2.3. Material Breach of Covenant................................... 15
2.4. Event of Default Under Loan Agreement......................... 15
3. REMEDIES............................................................ 15
3.1. Legal Proceedings; Cost of Enforcement........................ 15
3.1.1. Legal Proceedings..................................... 15
3.1.2. Cost of Enforcement................................... 15
3.2. Acceleration.................................................. 15
3.3. Right to Perform Mortgagor's covenants, Etc. ................. 16
3.4. Possession Upon Default....................................... 16
3.4.1. Surrender or Taking of Possession..................... 16
3.4.2. Entering into Possession.............................. 16
3.4.3. Satisfaction of Default............................... 17
3.5. Foreclosure; Power of Sale.................................... 17
3.6. Appointment of Receiver....................................... 17
3.7. Purchase of the Property by the Mortgagee..................... 17
3.8. Foreclosure of Personalty..................................... 17
3.9. Receipt a Sufficient Discharge to Purchaser................... 18
3.10. Sale Shall be a Bar Against Mortgagor......................... 18
3.11. Application of Proceeds of Sale and Other Monies.............. 18
3.12. Remedies Cumulative........................................... 18
3.13. No Waiver, Etc................................................ 18
4. MISCELLANEOUS........................................................ 19
4.1. Notices....................................................... 19
4.2. Invalidity of Any Provision................................... 20
4.3. Amendment..................................................... 20
4.4. Parties Bound and Benefited................................... 20
4.5. Estoppel Certificates......................................... 20
4.6. Headings...................................................... 20
4.7. Pronouns...................................................... 20
4.8. Governing Law................................................. 21
4.9. Waiver of Jury Trial.......................................... 21
4.10. Limitation of Liability....................................... 21
4.11. State Specific Provisions..................................... 22
5. DEFINITIONS.......................................................... 22
5.1. Certain Defined Terms......................................... 22
THIS SECOND MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT, AND
FIXTURE FILING (this "MORTGAGE") is made and entered into as of this 30th day of
April, 1997 by and between HANOVER MARRIOTT LIMITED PARTNERSHIP, a Delaware
limited partnership having its principal offices at 10400 Fernwood Road,
Bethesda, Maryland 20817 (the "MORTGAGOR"), and HOST MARRIOTT CORPORATION, a
Delaware corporation, having its principal offices at 10400 Fernwood Road,
Bethesda, Maryland 20817, and its successors and assigns (the "MORTGAGEE").
RECITALS
--------
A. The Mortgagee has agreed to make a loan (the "LOAN") to the Mortgagor
in the aggregate principal amount of up to Eleven Million Seven Hundred Thousand
Dollars ($11,700,000) pursuant to a Loan Agreement dated as of the date hereof
(the "LOAN AGREEMENT"), which Loan is evidenced by the Mortgage Note (the
"MORTGAGE NOTE") of even date herewith by the Mortgagor to the order of the
Mortgagee (together with its successors and assigns thereto, the "NOTEHOLDER")
in the face amount of the Loan, which Mortgage Note has a final maturity date of
June 1, 2012.
B. The Mortgagor is the owner of the Hanover Marriott Hotel (the
"HOTEL"), located on the land described on EXHIBIT A attached hereto and
---------
incorporated herein (the "LAND").
C. The Mortgagor is executing and delivering this Mortgage for the
purpose of granting, conveying, transferring and assigning to the Mortgagee a
lien on and security interest in the Mortgagor's right, title and interest in
and to the Land and the Hotel and all other buildings, structures, fixtures and
improvements now or hereafter located or placed thereon (which Hotel and other
buildings, structures, fixtures and improvements, together with any additions
thereto or alterations or replacements thereof, are sometimes herein referred to
as the "IMPROVEMENTS") and in certain other Property more fully described
herein, as security for the Loan and the payment and satisfaction when due of
the Obligations (as defined herein).
D. A glossary of capitalized terms used herein may be found at Article V
hereof.
E. Amendments to certain provisions contained herein as applicable in the
State of New Jersey may be found in ANNEX I attached hereto.
-------
NOW, THEREFORE, in order to secure: (i) payment by the Mortgagor, as and
when due, of the principal of and interest on the Mortgage Note, (ii) any and
all other amounts that may become due and payable under the Mortgage Note; (iii)
the payment of all amounts payable under this Mortgage, the Loan Agreement and
the other Loan Documents; and (iv) the performance by the Mortgagor of its
covenants and agreements contained in this Mortgage and the other Loan Documents
as the same may hereafter be amended, modified or supplemented (the items in
clauses (i) through (iv) of this paragraph being sometimes collectively referred
to herein as the "OBLIGATIONS"); and for other good and valuable consideration,
the receipt and sufficiency of which the parties hereto acknowledge, the
Mortgagor and the Mortgagee, by these presents do hereby agree as follows:
GRANTING CLAUSES
----------------
The Mortgagor does hereby grant, bargain, sell, mortgage, warrant, pledge,
assign, convey, confirm and transfer to the Mortgagee, and its successors and
assigns forever, subject to the existing first mortgage lien in favor of Toyo
Trust & Banking Co., Ltd., New York Branch, all right, title and interest of the
Mortgagor, whether now owned or hereafter acquired, and the Mortgagor hereby
grants unto Mortgagee a security interest in and to, all of its right, title and
interest, if any, in and to real and personal property of every kind and nature
whatsoever, whether now owned or hereafter acquired, relating to the Hotel,
including, without limitation, the following (such right, title and interest of
the Mortgagor being hereinafter referred to as the "PROPERTY"):
(i) the Land described in EXHIBIT A attached hereto, together with
---------
the Hotel and all other Improvements located on the Land;
(ii) all estate, title, rights and interests appurtenant to or
benefiting the Land and/or the Improvements, of every kind and nature
whatsoever, relating to or located in, on or under the Land or the Improvements
and all extensions, additions, improvements, betterments, renewals,
substitutions and replacements to or of any of the foregoing rights and
interests (hereinafter, together with the items described in Granting Clause (i)
and the real property, if any, described in Granting Clause (iii), being
hereinafter sometimes referred to as the "REAL PROPERTY RIGHTS");
(iii) all real and personal property of whatever kind or nature
whatsoever used or useful in the operation of the Hotel, or in any way related
to the Land, the Hotel or the other Improvements, whether located on, affixed
to, or attached to the Land or the Improvements or otherwise related thereto or
arising therefrom, and whether tangible or intangible, direct or indirect, fully
matured or contingent, and all extensions, additions, improvements, betterments,
renewals, substitutions, and replacements to or of any of the foregoing; it
being mutually intended, agreed and declared by the parties hereto that all
items of the foregoing property that now are or hereafter become attached or
affixed to the Land or the Improvements in such a way as to constitute them
"fixtures" under applicable law (the "FIXTURES"), shall, to the fullest extent
permitted by law, be deemed to be and form a part of the Land and Improvements
and, for purposes of this Mortgage, shall be deemed to be real estate subject to
the lien created by this Mortgage;
(iv) any and all additions and accessions to the foregoing, and all
proceeds thereof, including, without limitation, proceeds of the conversion,
voluntary or involuntary, of any of the foregoing into cash or liquidated
claims, including, without limitation, all Awards (as defined in SECTION 1.9
hereof) and other payments as a result of any Taking (as defined in SECTION 1.9
hereof), all Insurance Proceeds (as defined in SECTION 1.8 hereof), and all
proceeds of the title insurance referred to in SECTION 1.3 hereof, together with
all amounts received by the Mortgagee or due and payable to the Mortgagee
pursuant to this Mortgage;
(v) all real estate tax refunds and credits and all awards or
payments, including interest on any of them, and the right to receive the same,
which the Mortgagor may have, which may be made with respect to the Land or any
Improvements whether from a Taking thereof or for any other injury to, decrease
in the value of, or other occurrence affecting the Land or any Improvements,
subject, in each case, to the rights of tenants under any leases or subleases of
the Property to the extent such leases are not subordinate to the terms of this
Mortgage;
(vi) all "accounts" (as defined in the Uniform Commercial Code in
effect in the State in which the Land is located and, to the extent a broader
definition is contained therein, in the State of Maryland (the "U.C.C."), all
accounts receivable, rents, issues, profits and revenues, arising out of the
Property, including, without limitation, all fees, charges or other payments for
the use or occupancy of rooms and other public facilities at the Hotel, all room
rents related to the overnight occupancy of guests at the Hotel, and all other
revenues derived from or generated at the Hotel (collectively, the "RENTS AND
REVENUES"), and the Mortgagor assigns to the Mortgagee all present and future
leases and subleases, or other agreements relating to the ownership of the Land
and/or the Improvements (collectively, the "LEASES AND CONTRACTS") and all Rents
and Revenues derived by the Mortgagor therefrom, together with the security
deposits or other payments or instruments delivered as security under such
Leases and Contracts ; provided, however, that the Mortgagee hereby grants to
-------- -------
the Mortgagor the right to collect and receive the Rents and Revenues as they
become due until an Event of Default has occurred and is continuing; and
provided further, that the existence of such right to collect and receive Rents
- -------- -------
and Revenues shall not operate to subordinate this assignment to any subsequent
assignment, in whole or in part, by Mortgagor, and any such subsequent
assignment shall be subject to the rights of the Mortgagee under this Mortgage;
-2-
(vii) all "general intangibles" (as defined in the U.C.C.),
including, without limitation, to the extent assignable, all rights relating to
design, development, operation, and use of the Land or Improvements, all
certificates, permits, approvals, licenses and consents, all construction,
service and similar contracts, all architectural drawings, plans,
specifications, soil tests, appraisals, engineering reports and similar
materials relating to all or any portion of the Land or Improvements, and all
payment and performance bonds or warranties or guarantees relating to the Land
or Improvements; all rights in bank accounts and any investments of Rents and
Revenues, rights under contracts, and all rights to trademarks and other
intellectual property;
(viii) all "goods," "documents," "instruments," "securities," and
"chattel paper" (as those terms are defined in the U.C.C.);
(ix) all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
foregoing and of hereafter acquired property of the foregoing types; and
(x) all other proceeds (including, without limitation, as defined
in the U.C.C.), both cash and noncash, of the foregoing which may be sold or
otherwise disposed of.
TO HAVE AND TO HOLD the said Property unto the Mortgagee and its successors
and assigns forever; provided, however, that unless and until an Event of
-------- -------
Default (as defined in Article II hereof) shall have occurred and be continuing,
the Mortgagor shall have the right to possess and enjoy the Property, and to
receive the rents, issues, and profits therefrom, but in all cases subject to
the terms of this Mortgage and the other Loan Documents; and provided, further,
-------- --------
that if the Mortgagor shall pay and satisfy in full the principal of and
interest on the Mortgage Note and all other Obligations which this Mortgage
secures, then the lien hereof shall be released by the Mortgagee to the
Mortgagor, upon the written request of the Mortgagor, and at the expense of the
Mortgagor; and provided, further, that nothing herein contained shall be
-------- -------
construed as constituting the Mortgagee as a mortgagee-in-possession unless the
Mortgagee shall have taken actual possession of the Land and Improvements;
provided, further, that nothing contained herein shall be construed as imposing
- -------- -------
on the Mortgagee any of the obligations of the lessee or of the lessor under any
lease of the Land or the Improvements, or of any contract party to any of the
other Leases and Contracts, unless the Mortgagee shall have foreclosed the lien
hereof or expressly assumed such obligations in writing; and provided, further,
-------- -------
that all items of the foregoing Property that may constitute collateral of the
kind in which a security interest may be created and perfected under the Uniform
Commercial Code as in effect in New Jersey shall be subject to the grant of
security interest made in SECTION 1.14 hereof, which SECTION 1.14 shall be
supplemental to, and shall not be deemed to limit, supersede or impair, these
Granting Clauses.
AND IT IS HEREBY COVENANTED AND AGREED by the Mortgagor, for itself and its
heirs, legal representatives, successors, and assigns, that the Property is to
be held and applied subject to the terms herein set forth, and the Mortgagor,
for itself and its heirs, legal representatives, successors, and assigns, hereby
covenants and agrees with the Mortgagee as follows:
ARTICLE I
1. COVENANTS, REPRESENTATIONS AND WARRANTIES
1.1. PAYMENT OF MORTGAGE NOTE; PERFORMANCE OF OTHER OBLIGATIONS
The Mortgagor represents and warrants that it has duly authorized,
executed, issued and delivered this Mortgage and the other Loan Documents and
covenants that it shall duly and punctually pay and perform all of its
Obligations as the same shall become due and payable, and shall otherwise duly,
fully
-3-
and timely comply with all of the terms, covenants, conditions, and agreements
contained in (or incorporated into) this Mortgage and the other Loan Documents.
1.2. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Mortgagor hereby covenants, represents and warrants that:
1.2.1. AUTHORITY, ENFORCEABILITY, ETC.
This Mortgage and all of the other Loan Documents executed by Mortgagor
have been duly executed and delivered by Mortgagor pursuant to authority legally
adequate therefor, and Mortgagor has been and is authorized and empowered by all
necessary persons having the power of direction over it to execute and deliver
this Mortgage and all other Loan Documents and to carry out the transactions
contemplated herein and therein. This Mortgage and each such other Loan
Document is a legal, valid and binding obligation of Mortgagor, enforceable
against Mortgagor in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law); and
1.2.2. NO DEFAULTS
Mortgagor is not now in material default of any obligations relating to the
Property, and no party has asserted any material claim of default. The
execution and delivery by Mortgagor of the Mortgage and the Loan Documents will
not result in any default under any contract or agreement binding on the
Mortgagor; and
1.2.3. NO LITIGATION
There are no actions or proceedings pending or, to Mortgagor's knowledge,
threatened against or affecting the Property, which may materially and adversely
affect the Property or the validity or enforceability of this Mortgage or any
other Loan Document before or by any court or other governmental authority; and
1.2.4. COMPLIANCE WITH LAW, ETC.
The Property and the operation thereof comply in all material respects with
applicable law; and
1.2.5. GOOD TITLE
Mortgagor has good, valid and marketable, fee simple title in and to the
Property, free and clear of any mortgage or encumbrance, condition, restriction,
preference or priority of any kind or nature whatsoever, (all of the foregoing
being hereinafter referred to each individually as a "LIEN" and collectively as
"LIENS"), subject only to the following (the "PERMITTED LIENS AND
ENCUMBRANCES"):
(i) Liens securing the Toyo Loan;
(ii) Liens securing the Senior Loan;
(iii) Liens created by the Loan Documents in favor of the
Mortgagee;
(iv) Liens, if any, for taxes, assessments and other charges
that are not yet due or payable (or are due and payable but not yet delinquent);
-4-
(v) Applicable building and zoning laws and regulations and
other applicable laws and regulations affecting the use and occupancy of the
Property;
(vi) Liens of mechanics and materialmen currently affecting
the Property against which the Mortgagee has been adequately insured by the
Title Insurance Policy described in SECTION 1.3 hereof and future liens of
mechanics or materialmen for work or services for which payment is not yet due
or the payment of which is being contested by appropriate proceedings in
accordance with SECTION 1.5.3 hereof and as to which Mortgagor has deposited
with the Mortgagee any amounts required by SECTION 6.2 of the Loan Agreement;
(vii) Municipal and public utility easements of record, and
other matters affecting title to the Property as are set forth on EXHIBIT B
---------
attached hereto;
(viii) Easements, restrictions, covenants, reservations and
rights of way granted in the ordinary course of business for traffic
circulation, ingress, egress, parking, access or utilities or for other similar
purposes that are not violated by the Improvements;
(ix) Space leases for operations complementary to the
operation of the Hotel that are subordinate to the Lien hereof;
(x) Liens securing purchase money financing or finance
leasing of the kind permitted by SECTION 1.5.2 hereof; and
(xi) Matters described as "PERMITTED ENCUMBRANCES" in the
Security Agreement.
1.2.6. COVENANT OF TITLE
The Mortgagor, at its own expense, does hereby and shall forever warrant
and defend to the Mortgagee and its successors and assigns forever, a mortgage
lien on the fee simple title to the Property, as described in SECTION 1.2.5 and
the lien and interest of the Mortgagee created by this Mortgage on and in the
Property, and the priority thereof, against all claims and demands, and shall
maintain and preserve such title and lien so long as this Mortgage or any other
Loan Document is outstanding and until such time as all sums secured hereby and
thereby have been paid in full and all other Obligations have been duly
performed; and
1.2.7. NEGATIVE PLEDGE
Except as set forth in SECTIONS 1.5.2 and 1.23 hereof, during the term of
this Mortgage, Mortgagor shall not, directly or indirectly, assign, transfer,
pledge, convey, mortgage or encumber, or permit the assignment, transfer,
pledge, conveyance, mortgaging or encumbrance of, any or all of Mortgagor's
legal or equitable interest in the Property, other than Permitted Liens and
Encumbrances, without the prior written consent of the Mortgagee; and
1.2.8. QUALIFICATION
Mortgagor is a limited partnership duly formed, validly existing and in
good standing in the State of Delaware and is registered or qualified to do
business in each state in which the conduct of its business or the ownership of
its assets makes such qualification or registration necessary; and
1.2.9. NECESSARY PERMITS
Mortgagor, directly or through the Manager under the Management Agreement,
owns, or otherwise has the right to use or is in possession of, all licenses,
permits and government approvals or
-5-
authorizations that are required by applicable law to occupy and conduct its
operations as currently conducted, except to the extent the lack of any such
license, permit, approval or authorization would not reasonably be expected to
materially and adversely affect the occupancy of the Land or Improvements, the
operation or value of the Hotel or the ability of the Mortgagee to exercise its
rights or remedies hereunder.
1.3. TITLE INSURANCE
The Mortgagor has delivered to the Mortgagee a prepaid Mortgagee's policy
of title insurance (the "TITLE INSURANCE POLICY") issued by Chicago Title
Insurance Company or another title insurance company reasonably satisfactory to
the Mortgagee (singly or collectively, the "TITLE COMPANY"), insuring the
interest of the Mortgagee as holder of a valid second-priority mortgage on the
Land and Improvements in a total amount equal to the maximum Loan Amount subject
only to Permitted Liens and Encumbrances.
1.4. RECORDATION; PRESERVATION OF LIEN
The Mortgagor, at its expense, shall at all times cause this Mortgage and
all amendments and supplements hereto, and such financing statements,
continuation statements, and other instruments as may be reasonably required by
the Mortgagee to be filed in such manner and in such places as may be required
to establish, preserve, maintain, and protect the lien of this Mortgage on all
or substantially all of the Property, and to perfect and maintain the security
interest granted by this Mortgage or any other Loan Document.
1.5. TAXES, LIENS, AND PERMITTED ENCUMBRANCES
1.5.1. TAXES
Subject to the right of contest described in SECTION 1.5.3 hereof, the
Mortgagor shall pay all taxes, assessments, ground rents, water, sewer and other
rents, fees and charges, applicable to the Property (collectively,
--------------------------
"IMPOSITIONS"), which may be assessed or imposed on (i) the Property, or (ii)
any occupancy or use on the Property. Such payments shall be made before any
fine, penalty, interest or cost may be added for nonpayment. At the Mortgagee's
request, the Mortgagor shall furnish to the Mortgagee satisfactory proof
evidencing such payments. Upon default by the Mortgagor in the payment of any
such tax, assessment or other charge, unless the same is being properly
contested in accordance with SECTION 1.5.3 hereof, the Mortgagee may (but shall
have no obligation to) pay or cause to be paid the amount thereof, together with
any amount of interest or penalties that may be due with respect thereto, and
such amounts (together with any expenses incurred by the Mortgagee in connection
therewith, including, without limitation, reasonable attorneys' fees and
charges) shall be secured by this Mortgage and shall be repaid upon demand,
together with interest thereon at the Default Rate specified in the Loan
Agreement.
1.5.2. LIENS; PERMITTED ENCUMBRANCES
The Mortgagor shall not effect any financing using the Property or any part
thereof as security, except for (i) the Loan, (ii) the Toyo Loan, (iii) the
Senior Loan and (iv) purchase money financings or finance leasing of FF&E, to
the extent permitted under the Loan Agreement, and shall not permit to exist,
any Lien on or with respect to the Property other than (1) this Mortgage, and
(2) the Permitted Liens and Encumbrances.
1.5.3. PERMITTED CONTESTS
Anything to the contrary contained herein notwithstanding, the Mortgagor,
at its expense, may contest, by appropriate legal, administrative or other
proceedings conducted in good faith and with due
-6-
diligence, any Impositions, or the application of any instrument of record
affecting the Property (other than the Loan Documents), or any claims, judgments
or costs imposed on the Mortgagor or the Property and may withhold payment of
the same pending such proceedings if permitted by law.
1.5.4. NO CREDIT FOR PAYMENT OF TAXES OR IMPOSITIONS
The Mortgagor shall not be entitled to any credit against the principal of
or interest, if any, payable on the Mortgage Note or under the Loan Documents,
by reason of the payment of any tax on the Property or any other Imposition or
other amount required to be paid hereunder. No deduction shall be made or
claimed from the taxable value of the Property or any part thereof by reason of
this Mortgage.
1.6. CARE OF THE PROPERTY
1.6.1. CONDITION OF THE PROPERTY
The Mortgagor shall keep the Property in good and clean order and condition
and repair in accordance with the requirements of the Loan Agreement, shall not
commit or suffer waste thereto, and shall not do or suffer to be done anything
that will increase the risk of fire or other hazard to the Property and shall
keep all Collateral used or useful in its business in good repair, working order
and condition.
1.6.2. ALTERATIONS; HOTEL ONLY
The Mortgagor shall not remove or demolish or materially alter the overall
design or structural character or integrity of the Property except in accordance
with SECTION 1.10 hereof and shall at all times use the Property or cause the
Property to be used in substantially the same manner as it is currently being
used; provided, however, that the Mortgagor shall be permitted to make
-------- -------
alterations and repairs to the Property without restriction as required under
the Management Agreement.
1.6.3. RIGHT TO INSPECT
The Mortgagee or its representatives or both are hereby authorized to enter
upon and inspect the Property at their own cost (or, upon the occurrence and
during the continuation of an Event of Default, at the Mortgagor's cost) at any
time upon reasonable notice and during normal business hours; provided, however,
-------- -------
that the Mortgagee must at all times use reasonable efforts to minimize any
disruption to the operations on the Land.
1.6.4. COMPLIANCE WITH LAWS AND COVENANTS
The Mortgagor shall promptly comply in all material respects with (a) all
present and future Laws affecting the Property and (b) all conditions,
covenants, restrictions and agreements affecting the Property.
1.7. INSURANCE
1.7.1. RISKS TO BE INSURED
The Mortgagor (or its designee), at the Mortgagor's expense, will obtain
and maintain in full force and effect at all times until all Obligations have
been fully paid and performed, insurance against the following risks:
(i) Loss and damage by fire and all other casualties on or
to the Property as are included in the form of casualty insurance commonly
referred to as "extended coverage" in such amounts as are reasonably
satisfactory to the Mortgagee, but in no event less than one hundred percent
-7-
(100%) of the full replacement cost of the Property (exclusive of excavation and
foundations and without deduction for physical depreciation) and in no event
less than the amount required to prevent Mortgagor from becoming a co-insurer
within the terms of the applicable policies;
(ii) Comprehensive public liability insurance on an
"occurrence basis" against claims for personal injury or property damage
occurring on, in or about the Property with a combined single limit of not less
than $1,000,000 with respect to personal injury or death to one or more persons
and with "umbrella" liability coverage of not less than that required by the
Senior Loan Documents or the Management Agreement, or such greater amounts as
may from time to time be required by institutional lenders for similar loans
secured by properties similar to the Property;
(iii) Business interruption insurance for an amount not less
than one year's profits and necessary continuing expenses from the Property (on
an "actual loss sustained" basis) covering the same risks as are covered by the
policies described in SECTION 1.7.1(I);
(iv) If the Land is located in an area designated by the
U.S. Department of Housing and Urban Development as a flood hazard area,
insurance for the peril of flood as is available through the National Flood
Insurance Program;
(v) Broad form boiler and machinery insurance on a
"comprehensive" form in an amount adequate to provide protection against the
maximum amount of damage possible to the Property resulting from explosion or
other covered occurrences relating to boilers, pressure vessels, machinery and
equipment on or about the Property;
(vi) Workers' compensation insurance in such forms and in
such amounts as may be required by the laws of New Jersey; and
(vii) Such other insurance as is generally available on
commercially reasonable terms and is generally required by institutional lenders
on loans secured by properties similar to the Property.
1.7.2. POLICY PROVISIONS
All insurance policies required by SECTION 1.7.1 shall be on forms, with
companies and with endorsements satisfactory to the Mortgagee and in all other
respects shall be reasonably satisfactory to the Mortgagee.
All policies of insurance maintained by the Mortgagor pursuant to
this SECTION 1.7 shall:
(i) Name the Mortgagee as a second mortgagee and an
additional insured and loss payee, as its interest may appear;
(ii) include effective waivers by the insurer of all claims
for insurance premiums against all loss payees and additional insureds (other
than the Mortgagor) and, where applicable, all rights of subrogation against any
loss payee, additional insured or named insured; and
(iii) permit the Mortgagee to pay the premiums and continue
any insurance upon failure of the Mortgagor to pay premiums when due, upon the
insolvency of the Mortgagor, or through foreclosure or other transfer of title
to the Property (it being understood that such amounts paid by the Mortgagee
shall be secured by this Mortgage and shall be repaid upon demand, together with
interest thereon at the Default Rate specified in the Loan Agreement).
The insurance required to be maintained by clauses (i), (ii), (iii) and (v)
of SECTION 1.7.1 may be provided by a blanket policy.
-8-
1.7.3. DELIVERY OF CERTIFICATES
Prior to the execution of this Mortgage, and thereafter not less than five
(5) days prior to the expiration date of any policy required pursuant to this
SECTION 1.7, the Mortgagor will deliver to the Mortgagee original certificates
of the insurers for all policies of insurance required by this Mortgage.
1.8. DAMAGE TO OR DESTRUCTION OF PROPERTY
1.8.1. NOTICE
In case of any material damage to or destruction of the Property or any
part thereof (each a "CASUALTY"), the Mortgagor will, promptly upon becoming
aware thereof, give written notice thereof to the Mortgagee describing the
nature and extent of such damage or destruction.
1.8.2. RESTORATION
In case of a Casualty, the Mortgagor, to the extent the proceeds of
insurance described in clauses (i), (iv) or (v) of SECTION 1.7.1 hereof
(hereafter "INSURANCE PROCEEDS") on account of such Casualty shall be sufficient
for such purpose, will promptly commence and complete the restoration,
replacement or rebuilding of the Property as nearly as possible to its value,
condition and character immediately prior to such Casualty.
1.9. CONDEMNATION
1.9.1. MORTGAGOR TO GIVE NOTICE, ETC.
In case of any taking during the term hereof of all or any part of the
Property, or the taking or transfer of any interest therein or right accruing
thereto, as the result of or in lieu or in anticipation of the exercise of the
right of condemnation or eminent domain by any governmental authority (each
hereinafter a "TAKING"), the Mortgagor will promptly give written notice thereof
to the Mortgagee, describing the nature and extent of the Taking or any
potential Taking, or the nature of the proceedings and negotiations for such
Taking or potential Taking, as the case may be. The Mortgagor will, in good
faith and with due diligence, file and prosecute its claims for any award or
payment on account of any Taking (hereinafter an "AWARD"), and Mortgagor will
pay all costs and expenses (including, without limitation, reasonable attorneys'
and accountants' fees and charges and the reasonable expenses of the Mortgagee)
in connection with any such Taking. Such costs and expenses, to the extent
advanced or paid by the Mortgagee, shall constitute indebtedness secured by this
Mortgage, provided that the Mortgagee shall have no obligation to make such
advances or payments.
1.9.2. TOTAL AND SUBSTANTIAL TAKING
In the case of (i) a Taking of the fee or leasehold of the entire Property,
or (ii) a Taking resulting in the imposition of a perpetual easement on the
entire Property, or (iii) a Taking that adversely affects the cash flow from the
Property in any material respect and as to which any necessary Restoration
cannot reasonably be expected to be completed within one year from the date of
the Taking, then the Award shall be collected and paid over to the Mortgagee to
be held by the Mortgagee.
1.9.3. PARTIAL AND TEMPORARY TAKING
In the case of any Taking other than a Taking referred to in SECTION 1.9.2
hereof, and in case such Taking requires repairs to or Restoration of the
Property in order to maintain the quality of the Hotel
-9-
operations, any Award shall be used in the same manner as if such Taking were a
Casualty affecting the Property and as if such Award constituted Insurance
Proceeds.
1.10. ALTERATIONS
1.10.1. RIGHT TO INSPECT
Mortgagee and any Persons authorized by it at all reasonable times and upon
reasonable notice may enter and examine the Property and may inspect all work
done, labor performed and materials furnished in respect of any alteration,
improvement or removal (each, an "ALTERATION") subject in all instances to the
rights of Manager. Mortgagee shall not have any duty to make any such
inspection and shall not have any liability or obligation for making (except for
its negligence or willful misconduct) or not making any such inspection.
1.10.2. COOPERATION
Mortgagee will cooperate with Mortgagor and execute and deliver such
instruments and agreements as are reasonably requested of it by Mortgagor, at
Mortgagor's expense, in order to facilitate any Alteration (provided the same
shall not subject the Mortgagee to any risk of liability or cost not paid for by
the Mortgagor).
1.11. EXPENSES
The Mortgagor, on demand, shall pay or reimburse the Mortgagee for all
reasonable costs and expenses, including, without limitation, reasonable
attorneys' fees and charges, incurred by the Mortgagee in any action, legal
proceedings or dispute of any kind with respect to which the Mortgagee is made a
party (except claims, suits or other actions brought by or on behalf of
Mortgagee or Mortgagor against the other in which the Mortgagee is not the
substantially prevailing party and except for claims arising from the gross
negligence and willful misconduct of the Mortgagee), affecting the Property,
this Mortgage or the indebtedness secured hereby, and any such amounts that are
paid by the Mortgagee and not reimbursed as aforesaid shall be added to the
Obligations secured by the Lien of this Mortgage.
1.12. FURTHER ASSURANCES
At any time, and from time to time, upon request by the Mortgagee and the
Mortgagor, at the expense of the Mortgagor, shall make, execute, deliver, and
record, or cause to be made, executed, delivered, and recorded, any and all
further instruments, certificates, and other documents, and shall take all such
further actions as may, in the reasonable opinion of the Mortgagee, be necessary
or desirable in order to effectuate, complete, perfect, continue, and/or
preserve the obligations of the Mortgagor under this Mortgage, the lien hereof,
and all modifications, extensions, and other amendments hereof or hereto.
1.13. ADDITIONS TO SECURITY
All right, title, and interest of the Mortgagor in and to all extensions,
improvements, betterments, renewals, substitutes, and replacements of, and all
additions and appurtenances to the Property, hereafter acquired by or released
to the Mortgagor, and all conversions of the security constituted thereby,
immediately upon such acquisition, release, construction, assembling, placement
or conversion, as the case may be, and in each such case, without any further
pledge, grant of security interest, conveyance, assignment or other act by the
Mortgagor of any kind, shall become subject to the lien of this Mortgage as
-10-
fully and completely, and with the same effect, as though now owned by the
Mortgagor and specifically described in the granting clauses hereof.
1.14. U.C.C. SECURITY AGREEMENT AND FIXTURE FILING
1.14.1. GRANT OF SECURITY
This Mortgage is intended to be, among other things, a security agreement
within the meaning of the Uniform Commercial Code as in effect in the State of
Maryland and the State of New Jersey with respect to all Property in which a
security interest may be created and perfected under the Uniform Commercial Code
(the "U.C.C. COLLATERAL"). The Mortgagor hereby grants to the Mortgagee a
security interest in and to all of the Mortgagor's right, title, and interest in
all such U.C.C. Collateral to secure the Obligations. The Mortgagor hereby
agrees that it will not change the location of its principal place of business
or the place where its books and records are kept from the location of the Hotel
or the Mortgagee's principal offices at 10400 Fernwood Road, Bethesda, Maryland
20817 without first giving Mortgagee at least thirty (30) days' advance written
notice thereof. Any completely executed counterpart of this instrument may be
filed as a mortgage on real property or fixtures, as a security agreement or
financing statement on personal property, or as both.
1.14.2. FINANCING STATEMENTS
The Mortgagor shall cause financing statements and other instruments with
respect to the U.C.C. Collateral at all times to be kept recorded, filed or
registered in such manner and in such places as may be required by law as fully
as possible to evidence, perfect and secure the interests of the Mortgagee in
all of the U.C.C. Collateral, and shall pay all filing fees in connection
therewith.
1.14.3. MULTIPLE REMEDIES
If an Event of Default shall have occurred and be continuing, the Mortgagee
shall have the option of proceeding, to the extent permitted under applicable
law, as to both real and personal property in accordance with its rights and
remedies in respect of the real property as an alternative to proceeding in
accordance with the provisions of the U.C.C., and the Mortgagee may exercise any
and all of the other rights of a secured party under the U.C.C. All of
Mortgagee's rights and remedies hereunder, under any other Loan Document, at
law, under statute or otherwise shall be deemed cumulative and not exclusive or
exhaustive, and the exercise of any one remedy shall not impair Mortgagee's
right simultaneously or at any time or in any order to exercise any other remedy
nor shall the exercise of any remedy in one case impair or otherwise affect the
Mortgagee's right or ability to exercise such remedy contemporaneously or again
in the same case or in any other case.
1.14.4. EXPENSES OF DISPOSITION OF THE PROPERTIES
The Mortgagor shall reimburse the Mortgagee, on demand, for all reasonable
expenses of retaking, holding, preparing for sale, lease or other use or
disposition, selling, leasing or otherwise using or disposing of the U.C.C.
Collateral which Mortgagee incurs, including all reasonable attorneys' fees and
expenses, and all such expenses shall be added to the Obligations secured
hereby.
1.14.5. FIXTURE FILING
To the fullest extent permitted by law, this instrument, upon recording or
registration in the real estate records of the proper office in the State in
which the Hotel is located, shall constitute a "fixture-filing" within the
meaning of Sections 9-313 and 9-402 of the U.C.C. (or the local state-law
equivalents of such sections). The address of the Mortgagor, which is the
"DEBTOR" for purposes of the U.C.C. and this
-11-
SECTION 1.14, and the address of the Mortgagee, which is the "SECURED PARTY" for
purposes of the U.C.C. and this SECTION 1.14, from whom information regarding
the U.C.C. Collateral may be obtained, are as stated in SECTION 4.1 of this
Mortgage.
1.15. MANAGEMENT AGREEMENT
Notwithstanding any other provision of this Mortgage or of the Management
Agreement, if Mortgagor shall fail so to do, Mortgagee may (but shall not be
obligated to) take any such action that Mortgagee reasonably deems necessary to
prevent, mitigate or cure, in whole or in part, any default by Mortgagor under
the Management Agreement, provided that Mortgagee shall have first given the
Mortgagor notice of the Mortgagee's intent so to act and a reasonable time for
the Mortgagor to act to prevent or cure such default (unless there is inadequate
time for such notice without risking further damage to the Property or any
material adverse affect thereon or on Mortgagee's interest therein) and if
Mortgagor fails so to act, Mortgagee may so act at the cost and expense of
Mortgagor, and upon the receipt by the Mortgagee of any written notice of any
such default by Mortgagor thereunder, the Mortgagee may rely thereon, and such
notice shall constitute full authority and protection to the Mortgagee for any
action taken by the Mortgagee or its agents in good faith reliance thereon. Any
costs or expenses incurred by the Mortgagee in connection with the exercise of
its rights under this SECTION 1.15 shall be secured by this Mortgage and shall
be repaid upon demand, together with interest thereon at the Default Rate
specified in the Loan Agreement. Nothing in this SECTION 1.15 shall limit the
Mortgagor's rights under the Management Agreement to contest issues concerning
requirements of law or other similar matters to the extent permitted by the
Management Agreement.
1.16. ASSIGNMENT OF RENTS AND REVENUES AND MORTGAGOR'S INTEREST IN LEASES
1.16.1. ASSIGNMENT AND LICENSE
The assignment by Mortgagor in Granting Clause (vi) of this Mortgage of all
of Mortgagor's right, title and interest, if any, in and to all present and
future leases of all or any part of the Property (each, an "OPERATING LEASE") by
Mortgagor, as landlord, to any other Person, as tenant (each a "TENANT"), shall
also be deemed to be an assignment of any and all modifications, renewals,
extensions or replacements thereof, and of any guaranties of the Tenant's
obligations under any Operating Lease (each, a "GUARANTY") and shall be deemed
to be, and is, a present, absolute, effective, irrevocable and complete
assignment by the Mortgagor to the Mortgagee of the Operating Leases and
Guaranties and the right to collect all Rents and Revenues and all other sums
payable to the Mortgagor thereunder and apply the same against the Obligations
in accordance with the terms of this Mortgage, which assignment is not
conditioned upon the Mortgagee being in possession of the Property. However, so
long as no Event of Default shall have occurred and be continuing, the Mortgagor
shall have a license, which may be exercised by the Manager, to collect, receive
and retain from the Tenants under the Operating Leases rent and all other sums
payable under the Operating Leases, to enforce the obligations of Tenants under
the Operating Leases and to exercise all the rights and remedies of the landlord
under the Operating Leases, subject, however, to compliance with the provisions
of this Mortgage. The portion of all sums received by the Mortgagor or the
Manager under the license granted hereby equal to the Obligations then due and
owing, shall be held in trust for the benefit of the Mortgagee and used, as
necessary, to pay the Obligations then due and owing.
1.16.2. TERMINATION OF LICENSE
If any Event of Default shall have occurred and be continuing, the license
granted in SECTION 1.16.1 hereof shall immediately cease and terminate, without
waiver of such Event of Default, with or without notice, any action or
proceeding, or the intervention of a receiver appointed by a court, and the
Mortgagee or an agent or receiver appointed by the Mortgagee may, subject to
applicable statutory requirements, if any, do any or all of the following:
-12-
(i) exercise any of the Mortgagor's rights under the
Operating Leases and Guaranties, including notifying Tenants to pay rent to an
account or location selected by the Mortgagee;
(ii) enforce the Operating Leases and Guaranties;
(iii) demand, collect, sue for, attach, levy, recover,
receive, compromise and adjust, and make, execute and deliver receipts and
releases for all rents or other payments that may then be or may thereafter
become due with respect to the Operating Leases and Guaranties;
(iv) demand that any sums held by the Mortgagor with
respect to any Operating Lease or Guaranty be immediately remitted to the
Mortgagee, to the extent permitted by applicable law; and
(v) generally, do, execute and perform any other act,
deed, matter or thing whatsoever that ought to be done, executed and performed
in and about or with respect to the Operating Leases and Guaranties.
1.16.3. SATISFACTION AND RELEASE
Upon satisfaction of the requirements of SECTION 1.18 hereof providing for
a release of the lien of this Mortgage, the assignment made in this SECTION 1.16
and all rights hereunder assigned to the Mortgagee shall cease and terminate and
shall revert to the Mortgagor.
1.16.4. NO OBLIGATIONS
This SECTION 1.16 shall not be construed to bind the Mortgagee to the
performance of any of the covenants, conditions or provisions contained in any
Operating Lease or Guaranty or otherwise impose any obligation upon the
Mortgagee.
1.16.5. RIGHTS IN LITIGATION AND BANKRUPTCY
If an Event of Default shall have occurred and be continuing, the
Mortgagee shall have the right to proceed in its own name or in the name of the
Mortgagor in respect of any claim, suit, action or proceeding relating to the
rejection of any Operating Lease by or on behalf of any lessee thereunder
pursuant to the Bankruptcy Code.
1.17. ENVIRONMENTAL COVENANTS AND REPRESENTATIONS
The Mortgagor represents and covenants that:
1.17.1. To Mortgagor's knowledge, the operations of the Mortgagor
at the Land and Improvements, and the Land and Improvements themselves,
substantially comply with all applicable Environmental Laws; and
1.17.2. The Mortgagor will hereafter comply with and cause the Land
and Improvements to comply with and use diligent efforts to cause its employees,
agents and contractors on the Land or the Improvements to comply with all
applicable Environmental Laws.
1.18. RELEASE UPON SATISFACTION OF OBLIGATIONS
If the Mortgagor shall pay the principal of and interest on the Mortgage
Note in full at maturity or earlier as permitted in accordance with the terms of
the Loan Agreement and this Mortgage and shall pay
-13-
all other Obligations payable to the Mortgagee by the Mortgagor hereunder and
under the other Loan Documents, then this Mortgage and all the other Loan
Documents shall be discharged and satisfied or, to the extent not prohibited by
law, assigned to the Mortgagor or to any other Person at the Mortgagor's
direction, at the Mortgagor's option, without representation, recourse or
warranty, other than for the acts of the Mortgagee, at the expense of the
Mortgagor upon its written request, except that the indemnifications of
Mortgagor in favor of Mortgagee set forth in the Environmental Indemnity
Agreement shall survive as set forth therein. Concurrently with such release and
satisfaction or assignment of this Mortgage and all the other Loan Documents,
the Mortgagee will return to the Mortgagor the Mortgage Note and all title and
other insurance policies relating to the Property and, on the written request
and at the expense of the Mortgagor, will execute and deliver such proper
instruments of release as may reasonably be requested by the Mortgagor.
1.19. UTILITY SERVICES
The Mortgagor will pay or cause to be paid when due all charges for all
public or private utility services, all public or private highway services, all
public or private communication services and all sprinkler systems and
protective services at any time rendered to or in connection with the Property
and which are incurred by or on behalf of the Mortgagor.
ARTICLE II
2. EVENTS OF DEFAULT
Mortgagor hereby agrees that the occurrence of any one or more of the
following shall constitute an Event of Default ("EVENT OF DEFAULT") under this
Mortgage, entitling the Mortgagee, its successors and assigns, to exercise the
remedies set forth in Article III hereof, and any other remedies available at
law, in equity or under the other Security Documents (and the Mortgagee agrees
that no matter requiring notice and opportunity to cure before such matter would
be an Event of Default hereunder shall constitute an Event of Default hereunder
unless such notice and opportunity to cure shall first have been given to the
Mortgagor):
2.1. PAYMENT DEFAULT
Failure by the Mortgagor to make any payment of principal, interest, or
other amount due and payable under the Mortgage Note or any other Loan Document
within five (5) days after written notice from the Mortgagee that any such
amount is past due (whether at maturity, on a date fixed for any payment or
prepayment thereof, upon acceleration or otherwise);
2.2. MATERIAL BREACH OF REPRESENTATION AND WARRANTY
Any representation or warranty made by the Mortgagor in this Mortgage or
any other Loan Document shall fail to have been true in any material and adverse
respect when made, which failure remains uncured for a period of thirty (30)
days after receipt by the Mortgagor of written notice of such failure; provided,
--------
however, that it shall not be an Event of Default if such failure is curable but
- -------
is not reasonably susceptible of being cured within such 30-day period but the
Mortgagor promptly commences to cure within such 30-day period (and so notifies
the Mortgagee) and thereafter diligently pursues such cure to completion (but in
no event later than 180 days after receipt of such written notice);
-14-
2.3. MATERIAL BREACH OF COVENANT
Failure by the Mortgagor to perform or comply in any material respect with
any term, covenant or condition imposed in this Mortgage or any other Loan
Document, other than with respect to any payment referred to in Section 2.1
above, (a) which failure remains uncured for a period of thirty (30) days after
receipt by the Mortgagor of written notice of such failure, or (b) in the case
of any failure or breach of covenant relating to the payment of taxes or
maintenance of insurance as provided herein, which failure remains uncured for a
period of ten (10) days after receipt of written notice of such failure;
provided, however, that, in the case of clause (a), it shall not be an Event of
- -------- -------
Default if such failure is curable but is not reasonably susceptible of being
cured within such 30-day period but the Mortgagor promptly commences to cure
within such 30-day period (and so notifies the Mortgagee) and thereafter
diligently pursues such cure to completion (but in no event later than 180 days
after receipt of such written notice); and
2.4. EVENT OF DEFAULT UNDER LOAN AGREEMENT
The occurrence of an "Event of Default" under the Loan Agreement.
ARTICLE III
3. REMEDIES
If an Event of Default shall have occurred and be continuing, the Lender
shall have the right, subject to the rights of each of the respective lenders
under the Toyo Loan and the Senior Loan, as applicable, to take one or more of
the actions set forth in this Article 3.
3.1. LEGAL PROCEEDINGS; COST OF ENFORCEMENT
3.1.1. LEGAL PROCEEDINGS
If an Event of Default shall have occurred and be continuing, the Mortgagee
may proceed to protect and enforce its rights by any action at law, suit in
equity or other appropriate proceeding, whether for the specific performance of
any agreement contained herein, or for an injunction against the violation of
any of the terms hereof, or in aid of the exercise of any power granted hereby
or by law.
3.1.2. COST OF ENFORCEMENT
The Mortgagor shall pay within ten (10) days after written demand therefor
all costs and expenses (including, without limitation, attorneys' fees and
charges) incurred by or on behalf of the Mortgagee in enforcing or sustaining
the Lien of this Mortgage or the priority thereof, the Mortgage Note or any
other Loan Documents, or occasioned by any Event of Default. Such costs and
expenses shall constitute Obligations secured by this Mortgage, shall be payable
on demand and, beginning ten (10) days after demand, shall bear interest at the
Default Rate.
3.2. ACCELERATION
If an Event of Default shall have occurred and be continuing, regardless of
the pendency of any proceeding which has or might have the effect of preventing
the Mortgagor from complying with the terms of this Mortgage or any other Loan
Document, then, in any such event, the entire unpaid amount of the indebtedness
evidenced by the Mortgage Note, this Mortgage or any other Loan Documents, and
any other
-15-
unpaid obligations, shall, at the option of the Mortgagee become immediately due
and payable in full without presentment, demand, protest or notice, all of which
are hereby waived by the Mortgagor (except to the extent notice is expressly
required herein) and shall thereafter bear interest at the Default Rate.
3.3. RIGHT TO PERFORM MORTGAGOR'S COVENANTS, ETC.
If the Mortgagor shall fail to make any payment or perform any act required
to be made or performed under this Mortgage or any other Loan Document, within
ten (10) days after written notice thereof to the Mortgagor (or such shorter
notice or without notice as shall be required to avoid a material impairment in
the value of the Property or in the Mortgagee's security, the Mortgagee, without
waiving or releasing any obligation or Event of Default, may (but shall be under
no obligation to) make such payment or perform such act for the account of the
Mortgagor and may enter upon the Property or any part thereof for such purpose
and take all such actions thereon as, in the reasonable opinion of the
Mortgagee, may be necessary or appropriate therefor. All sums so paid by the
Mortgagee and all costs and expenses (including, without limitation, reasonable
attorneys' fees and charges) so incurred, shall constitute part of the
Obligations secured by this Mortgage and shall be paid by the Mortgagor to the
Mortgagee upon demand therefor and, if not so paid within ten (10) days after
demand, shall thereafter bear interest at the Default Rate.
3.4. POSSESSION UPON DEFAULT
3.4.1. SURRENDER OR TAKING OF POSSESSION
If an Event of Default shall have occurred and be continuing, the
Mortgagor, upon demand of the Mortgagee, shall forthwith surrender to the
Mortgagee the actual possession of the Property or any part thereof from time to
time (without limit as to the number of times) as may be designated by the
Mortgagee and, to the extent permitted by law, the Mortgagee may enter and take
possession of all or any such part of the Property and may exclude the Mortgagor
and its agents and invitees wholly therefrom. If the Mortgagor shall fail to
surrender to the Mortgagee the actual possession of such Property upon demand,
then the Mortgagee, to the extent permitted under applicable law, without
further notice, may (1) enter upon and take possession of the Property or any
part thereof by force, summary proceedings, ejectment or otherwise; (2) remove
the Mortgagor and all other persons from the Property; and (3) remove from the
Property any and all property owned by third parties (so long as reasonable
measures for the safekeeping of such third party property are taken).
3.4.2. ENTERING INTO POSSESSION
Upon every such entering and taking of possession, the Mortgagee may hold,
store, use, operate, manage, control, and maintain the Property and conduct the
business thereof. The Mortgagee also may collect and receive all of the
earnings, income, rents, profits, issues and revenues of the Property or any
part thereof, including those past due as well as those accruing thereafter;
provided, however, that any amount so received by the Mortgagee shall be applied
- -------- -------
as provided in SECTION 3.11 hereof. The Mortgagee shall not be liable for or by
reason of any such entry, taking of possession or removal, or holding, operation
or management, except for liability arising out of the gross negligence or
willful misconduct of the Mortgagee or the agents, officers, directors or
employees of the Mortgagee. All sums expended by the Mortgagee pursuant to this
SECTION 3.4.2, including any such amount in excess of the principal amount of
the Mortgage Note, shall be deemed to have been advanced to the Mortgagor by the
Mortgagee, shall be secured by this Mortgage and shall be paid by the Mortgagor
to the Mortgagee upon demand therefor and, if not so paid within ten (10) after
demand, shall thereafter bear interest at the Default Rate.
-16-
3.4.3. SATISFACTION OF DEFAULT
Whenever all Events of Default have been cured and satisfied, the Mortgagee
shall, in its sole and absolute discretion, upon receipt of a written request
therefor from the Mortgagor, surrender possession, provided that the right of
the Mortgagee to take possession of the Property from time to time pursuant to
SECTION 3.4.1 shall continue to exist unimpaired and undiminished if any
subsequent Event of Default shall occur and be continuing.
3.5. FORECLOSURE; POWER OF SALE
If an Event of Default shall have occurred and be continuing, (a) the
Mortgagee may at any time proceed at law or in equity or otherwise to foreclose
the lien of this Mortgage as against all or any part of the Property, either by
strict foreclosure or foreclosure by sale, or in part by any such method or in
any other manner permitted by law or (b) the Mortgagee may sell (and, in the
case of default of any purchaser, resell), assign, transfer, and deliver, to the
fullest extent permitted by applicable law, the whole or, from time to time, any
part of the Property, or any interest in any part thereof under power of sale,
at such time and place in the County and State in which the Hotel is located as
the Mortgagee shall deem advantageous and proper, for immediate or for future
delivery, and for such price or prices and on such terms as the Mortgagee shall
deem advantageous and proper. Notwithstanding anything herein to the contrary
or in any of the other Loan Documents, the Mortgagee shall not initiate
foreclosure proceedings unless five (5) Business Days' prior written notice of
such intention is given to the Mortgagor.
3.6. APPOINTMENT OF RECEIVER
If an Event of Default shall have occurred and be continuing, the Mortgagee
shall, as a matter of right and without any requirement of notice, to the extent
permitted under applicable law, be entitled to appoint a receiver for all or any
part of the Property, whether such receivership be incidental to a proposed sale
of the Property or otherwise, and Mortgagor hereby consents to the appointment
of such receiver. All disbursements made by the receiver under this SECTION 3.6
and the expenses of receivership shall be added to and be a part of the
Obligations, and, whether or not said principal sum, including such
disbursements and expenses, exceeds the indebtedness originally intended to be
secured hereby, the entire amount of said sum, including such disbursements and
expenses, shall be secured by this Mortgage and shall be due and payable upon
demand and, if not so paid within ten (10) days after demand therefor, shall
thereafter bear interest at the Default Rate.
3.7. PURCHASE OF THE PROPERTY BY THE MORTGAGEE
The Mortgagee may be a purchaser of the Property or of any part thereof or
of any interest therein at any sale thereof, whether pursuant to foreclosure or
power of sale or otherwise hereunder (subject to applicable provisions of the
UCC), and may apply upon the purchase price the indebtedness secured hereby
owing to the Mortgagee. The Mortgagee shall, upon any such purchase, acquire
good title to the properties so purchased, free of the lien of this Mortgage
and, to the fullest extent permitted by applicable law, free of all rights of
redemption in the Mortgagor and free of all liens and encumbrances subordinate
to this Mortgage.
3.8. FORECLOSURE OF PERSONALTY
Upon the occurrence and during the continuation of an Event of Default,
should the Mortgagee elect to cause any of the Property to be disposed of as
personal property because the same consists of a right of action or property
that can be severed from the Land or the Improvements without causing material
-17-
damage thereto, the Mortgagee may dispose of all or any part thereof in any
manner now or hereafter permitted under the U.C.C. or in accordance with any
other remedy provided by law.
3.9. RECEIPT A SUFFICIENT DISCHARGE TO PURCHASER
Upon any sale of the Property or any part thereof or any interest therein,
whether pursuant to foreclosure or power of sale or otherwise hereunder, the
receipt of the officer making the sale under judicial proceedings or auctioneer
in the event of a private sale shall be sufficient discharge to the purchaser
for the purchase money, and such purchaser shall not be obligated to see to the
application thereof.
3.10. SALE SHALL BE A BAR AGAINST MORTGAGOR
The sale of all or any portion of the Property in connection with the
exercise of remedies under this Mortgage after the Mortgage Note becomes due and
payable, whether at maturity, by declaration of acceleration or by automatic
acceleration after an Event of Default or otherwise, shall, upon the expiration
of any applicable redemption period, to the full extent legally permitted,
forever be a perpetual bar against the Mortgagor asserting any claim to title to
such portion of the Property so sold.
3.11. APPLICATION OF PROCEEDS OF SALE AND OTHER MONIES
The proceeds of any such sale of the Property or of any interest therein,
whether pursuant to foreclosure or power of sale or otherwise hereunder,
together with any other monies at any time held by the Mortgagee pursuant to
this Mortgage, the Mortgage Note, or any Loan Document, shall, unless otherwise
elected by Mortgagee in its sole discretion, or unless otherwise required by
applicable law, be applied as set forth in the Loan Agreement, and any amounts
remaining after payment in full of all Debt under the Loan Agreement shall be
returned to the Mortgagor.
3.12. REMEDIES CUMULATIVE
Each of the rights, powers, and remedies provided herein are intended and
are hereby deemed to be cumulative, concurrent and in addition to, and not in
limitation of, those rights, powers, and remedies provided elsewhere hereunder
or in any other Loan Document or now or hereafter existing at law or in equity
or by statute or otherwise.
3.13. NO WAIVER, ETC.
No failure by the Mortgagee to insist upon the strict performance of any
term hereof or to exercise any right, remedy, power or privilege provided herein
or by statute or at law or in equity or otherwise, nor delay therein, shall
constitute a waiver thereof, nor shall any single or partial exercise of any
such right, remedy, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege. The
waiver of any Event of Default hereunder shall not impair the rights of the
Mortgagee to enforce any concurrent or future Event of Default, whether similar
or dissimilar to the Event of Default waived, or otherwise affect or alter this
Mortgage, which shall continue in full force and effect.
-18-
ARTICLE IV
4. MISCELLANEOUS
4.1. NOTICES
All notices, requests and demands to or upon the respective parties
hereto shall be in writing (except as is otherwise specifically provided in this
Agreement) and shall be deemed to have been duly given or made when received (or
when delivery thereof is refused by the intended recipient) if mailed by first-
class registered or certified mail, return receipt requested, postage prepaid,
or sent by facsimile transmission, with confirmation of receipt or delivery, or
sent by nationally recognized overnight courier, delivery charges prepaid, or
delivered by hand, in each case addressed or directed as follows (or to such
other address or facsimile transmission number as may be hereafter designated in
writing by the respective parties hereto):
if to Mortgagor: Hanover Marriott Limited Partnership
c/o Host Marriott Corporation
10400 Fernwood Road
Bethesda, Maryland 20817
Dept. 923
Attention: Law Dept.
Fax No.: (301) 380-6332
with a copy to:
Hanover Marriott Limited Partnership
10400 Fernwood Road
Bethesda, Maryland 20817
Dept. 908
Attention: Asset Management Dept.
Fax No.: (301) 380-8260
if to Mortgagee: Host Marriott Corporation
10400 Fernwood Road
Bethesda, Maryland 20817
Dept. 923
Attention: Law Dept.
Fax No.: (301) 380-6332
with a copy to:
Host Marriott Corporation
10400 Fernwood Road
Bethesda, Maryland 20817
Dept. 902
Attention: Executive Dept.
Fax No.: (301) 380-6332
-19-
4.2. INVALIDITY OF ANY PROVISION
All rights, powers and remedies provided herein may be exercised only to
the extent the exercise thereof does not violate any applicable law, and are
intended to be limited to the extent necessary so that they will not render this
Mortgage invalid, unenforceable or not entitled to be recorded, registered or
filed under any applicable law. The invalidity of any one or more phrases,
sentences, clauses, paragraphs or Sections hereof shall not affect the remaining
portions of this Mortgage or any part thereof. In the event that one or more of
the phrases, sentences, clauses, paragraphs or Sections contained herein shall
be invalid, or would operate to render this Mortgage invalid, this Mortgage
shall be construed as if such invalid phrase or phrases, sentence or sentences,
clause or clauses, paragraph or paragraphs or Section or Sections had not been
inserted.
4.3. AMENDMENT
This Mortgage shall not be amended, altered, modified, waived, discharged
or terminated except by an instrument in writing signed by the party against
which enforcement of such amendment, alteration, modification, waiver, discharge
or termination is sought.
4.4. PARTIES BOUND AND BENEFITED
This Mortgage shall be binding upon and be enforceable against the
Mortgagor and the Mortgagee and their respective successors, and assigns, and
shall be enforceable by and inure to the benefit of the Mortgagee and its
successors, and assigns and the Mortgagor and its successors and permitted
assigns.
4.5. ESTOPPEL CERTIFICATES
If requested by the Mortgagee, the Mortgagor will furnish the Mortgagee,
and at the request of the Mortgagor, the Mortgagee will furnish to the
Mortgagor, within fifteen (15) days after written demand therefor, an estoppel
certificate or a written statement which shall set forth the amount due under
the Mortgage Note (whether of principal, interest or any other amount) and shall
indicate in the case of an estoppel certificate issued by the Mortgagor whether
any offsets or defenses exist against the payment of the indebtedness secured
hereby and, if any offsets or defenses are alleged to exist, a detailed
description of such alleged offsets or defenses and the amount or amounts
thereof, and shall indicate, in the case of estoppel certificates issued by the
Mortgagee, whether to the knowledge of the Mortgagee, any Default or Event of
Default has occurred and is continuing (and describing the nature of any Default
or Event of Default in reasonable detail).
4.6. HEADINGS
Article, Section and subsection headings contained in this Mortgage are
inserted for convenience of reference only, shall not be deemed to be a part of
this Mortgage for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
4.7. PRONOUNS
All pronouns and other words and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity of
the person or entity or the context may require.
-20-
4.8. GOVERNING LAW
This Mortgage, the rights and obligations of the parties hereto, and any
claims or disputes relating thereto, shall be governed by and construed in
accordance with the laws of the state of Maryland, except that, for purposes of
determining the creation, validity, priority and enforcement of the Lien created
hereby and the exercise of remedies hereunder in connection with such Lien, the
law of the State of New Jersey shall govern.
4.9. WAIVER OF JURY TRIAL
THE PARTIES HERETO WAIVE ANY RIGHT THEY MAY HAVE TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES HEREUNDER,
UNDER THE MORTGAGE NOTE, OR UNDER ANY LOAN DOCUMENT RELATING TO ANY OF THE
FOREGOING.
4.10. LIMITATION OF LIABILITY
Notwithstanding any contrary provision in any of the Loan Documents, it is
hereby expressly agreed that, except as otherwise provided in this SECTION 4.10
or in any similar Section of any Loan Document, there shall be no recourse to
the assets of Mortgagor or any of its partners, officers, directors, employees
or shareholders (other than against the Property and any other property given as
security for payment of the Mortgage Note) for (i) the payment of principal,
interest, or any other amount that is or may become due under this Mortgage or
any other Loan Document or (ii) the performance or discharge of any covenant or
undertaking hereunder or under the other Loan Documents, and in the event of any
Event of Default hereunder or thereunder, Mortgagee agrees to proceed solely
against the Property and any other property given as security for payment of the
Mortgage Note, and Mortgagee shall not seek or claim recourse against Mortgagor
or any of its partners, officers, directors, employees or shareholders (other
than against the Property and any other property given as security for payment
of the Mortgage Note) for any deficiency or for any personal judgment after a
foreclosure of the Mortgage or other Security Documents or for the performance
or discharge of any covenants or undertakings of Mortgagor hereunder or under
other Loan Documents (except that the Mortgagor may be made a party to a
proceeding to the extent legally necessary for the conduct of a foreclosure or
the exercise of other similar remedies under the Mortgage or other Security
Documents). Notwithstanding the foregoing, nothing contained in this SECTION
4.10 shall relieve Mortgagor or the General Partner of any personal liability
for any loss, cost, expense, damage or liability arising or resulting from (A)
any breach of any representation or warranty made by Mortgagor in this Mortgage
that was materially incorrect when made and that was made with fraudulent
intent, (B) any amount paid or distributed by Mortgagor to the General Partner,
the Manager, or any Affiliate of any of them in violation of the provisions of
the Loan Documents, (C) fraud or breach of trust or (D) liability of any party
under the Environmental Indemnity Agreement (as described in the Loan
Agreement). It is hereby expressly agreed that neither the General Partner nor
any director, officer, partner or employee of Mortgagor or the General Partner,
nor the legal or personal representative, successor or assign of any of the
foregoing, nor any other principal of Mortgagor or any of its partners, whether
disclosed or undisclosed, shall have any personal liability under this Mortgage
or any of the other Loan Documents, except as personal liability may be
specifically imposed upon the General Partner in accordance with clauses (A),
(B), (C) and (D) of this SECTION 4.10, and in no event shall any limited partner
of the Mortgagor have any liability whatsoever with respect to the Loan or any
monetary obligations with respect thereto, or any of the matters described in
clauses (A), (B), (C) or (D) above. It is the intention of the parties hereto
that this SECTION 4.10 shall govern every other provision of the Loan Documents
and that the absence of explicit reference to this SECTION 4.10 in any provision
of the Loan Documents or the absence of any Section similar to this SECTION 4.10
in any Loan Document shall not be construed to deny the application of this
SECTION 4.10 to such provision, notwithstanding the presence of explicit
reference to this SECTION 4.10 in other provisions of the Loan Documents.
-21-
4.11. STATE SPECIFIC PROVISIONS
Annex I attached hereto and made a part hereof sets forth certain
-------
provisions applicable to the state in which the Land is located which provisions
amend certain provisions hereof as set forth therein. Annex I shall not be
-------
deemed to limit or otherwise affect any other provision hereof not expressly
amended thereby.
ARTICLE V
5. DEFINITIONS
5.1. CERTAIN DEFINED TERMS
Wherever used in this Mortgage the capitalized terms set forth below shall
have the meanings ascribed to them below (or in the Sections of this Mortgage or
any other Loan Document referred to below) such definitions to be equally
applicable to the singular and plural forms of the terms defined below.
"AFFILIATE" has the meaning set forth in the Loan Agreement.
"ALTERATION" has the meaning ascribed to it in SECTION 1.11 hereof.
"AWARD(S)" has the meaning set forth in SECTION 1.9.1 hereof.
"BANKRUPTCY CODE" has the meaning set forth in SECTION 1.18.7.2 hereof.
"CASUALTY" has the meaning set forth in SECTION 1.8.1 hereof.
"CERTIFICATES" has the meaning set forth in Paragraph E of the Recitals
hereof.
"COLLATERAL" has the meaning set forth in the Loan Agreement.
"COLLATERAL ASSIGNMENT OF MANAGEMENT AGREEMENT" means that certain
Collateral Assignment of Management Agreement and Subordination Agreement dated
as of the date hereof by and among the Mortgagor, the Manager and the Mortgagee.
"DEBT" has the meaning set forth in the Loan Agreement.
"DEBTOR" has the meaning set forth in SECTION 1.14.5 hereof.
"DEFAULT RATE" has the meaning ascribed to "Default Interest Rate" in the
Loan Agreement.
"ENVIRONMENTAL LAW" has the meaning ascribed to it in the definition of
"Hazardous Materials" herein.
"ENVIRONMENTAL INDEMNITY AGREEMENT" means that certain Environmental
Indemnity Agreement dated as of the dated hereof by and among the Mortgagor, as
"Indemnitor," and the Mortgagee, as "Lender."
"EVENT OF DEFAULT" has the meaning set forth in ARTICLE II hereof.
"FF&E" means (i) furniture, fixtures, furnishings and equipment and (ii)
FF&E replacements.
"FIXTURES" has the meaning set forth in Granting Clause (iii) hereof.
-22-
"GENERAL PARTNER" has the meaning set forth in the Loan Agreement.
"GUARANTY" has the meaning set forth in SECTION 1.20 hereof.
"HAZARDOUS MATERIAL(S)" means any substances, materials, or wastes, whether
solids, liquids or gases, that are defined as "hazardous wastes," "hazardous
substances," "toxic substances," "radioactive materials," or other substantially
similar designations in, or otherwise subject to regulation under applicable
Laws pertaining to the regulation of hazardous, toxic or dangerous materials or
wastes or the protection of the environment, (collectively referred to herein as
"ENVIRONMENTAL LAWS"). Hazardous Materials includes, but is not limited to,
polychlorinated biphenyls (PCBs), petroleum and petroleum products and
byproducts, and asbestos..
"HOTEL" has the meaning set forth in Paragraph B of the Recitals hereof.
"IMPOSITIONS" has the meaning set forth in SECTION 1.5.1 hereof.
"IMPROVEMENTS" has the meaning set forth in Paragraph C of the Recitals
hereof.
"INSURANCE PROCEEDS" has the meaning set forth in SECTION 1.8.2 hereof.
"LAND" has the meaning set forth in Paragraph B of the Recitals hereof.
"LAWS" means any statute or law, or any rules, regulations, orders or
determinations made by any applicable Governmental Authority.
"LEASES AND CONTRACTS" has the meaning set forth in Granting Clause (vi)
hereof.
"LIEN(S)" has the meaning set forth in SECTION 1.2.5 hereof.
"LOAN" has the meaning set forth in Paragraph A of the Recitals hereof.
"LOAN AGREEMENT" has the meaning set forth in Paragraph A of the Recitals
hereof.
"LOAN DOCUMENTS" has the meaning set forth in the Loan Agreement.
"MANAGEMENT AGREEMENT" has the meaning set forth in the Loan Agreement.
"MANAGER" has the meaning set forth in the Loan Agreement.
"MORTGAGE" has the meaning set forth in the first paragraph of this
document.
"MORTGAGE NOTE" has the meaning set forth in Paragraph A of the Recitals
hereof.
"MORTGAGEE" has the meaning set forth in the first paragraph of this
Mortgage.
"MORTGAGOR" has the meaning set forth in the first paragraph of this
Mortgage.
"NOTEHOLDER" has the meaning set forth in Paragraph A of the Recitals
hereof.
"OBLIGATIONS" has the meaning set forth in the paragraph beginning with the
words "NOW, THEREFORE . . . " on page 1 hereof.
"OPERATING LEASES" has the meaning set forth in SECTION 1.16 hereof.
-23-
"PERMITTED ENCUMBRANCES" has the meaning set forth in the Security
Agreement.
"PERMITTED LIENS AND ENCUMBRANCES" has the meaning set forth in SECTION
1.2.5 hereof.
"PERSON" has the meaning ascribed to such term in the Loan Agreement.
"PROPERTY" has the meaning set forth in the first full paragraph following
the heading "GRANTING CLAUSES," on page 2 hereof.
"REAL PROPERTY RIGHTS" has the meaning set forth in Granting Clause (ii)
hereof.
"RENTS AND REVENUES" has the meaning set forth in Granting Clause (vi)
hereof.
"RESTORATION" has the meaning set forth in SECTION 1.8.2 hereof.
"SECURED PARTY" has the meaning set forth in SECTION 1.14.5 hereof.
"SECURITY AGREEMENT" has the meaning ascribed to it in the Loan Agreement.
"SECURITY DOCUMENTS" has the meaning set forth in the Loan Agreement.
"SENIOR LOAN" has the meaning ascribed to it in the Loan Agreement.
"SENIOR LOAN DOCUMENTS" has the meaning ascribed to it in the Loan
Agreement.
"TAKING" has the meaning set forth in SECTION 1.9.1 hereof.
"TENANT" has the meaning set forth in SECTION 1.16.1 hereof.
"TITLE COMPANY" has the meaning set forth in SECTION 1.3 hereof.
"TITLE INSURANCE POLICY" has the meaning set forth in SECTION 1.3 hereof.
"TOYO LOAN" has the meaning ascribed to it in the Loan Agreement.
"U.C.C." has the meaning set forth in Granting Clause (vi) hereof.
"U.C.C. COLLATERAL" has the meaning set forth in SECTION 1.14.1 hereof.
-24-
IN WITNESS WHEREOF, the parties hereto have caused this Mortgage to be
duly executed and delivered as of the date first set forth hereinabove.
MORTGAGOR:
HANOVER MARRIOTT LIMITED PARTNERSHIP,
a Delaware limited partnership
WITNESS: By: Marriott Hanover Hotel Corporation, general
partner
By: By: P.K. Brady
------------------------- ----------------------------------
Print Name: Patricia K. Brady,
----------------- Vice President
ATTEST:
By: Anna Mary Coburn
--------------------------------
Print Name: Anna Mary Coburn
------------------------
Title: Corporate Secretary
-----------------------------
[SEAL]
WITNESS: MORTGAGEE:
HOST MARRIOTT CORPORATION
By: By: W. Edward Walter
------------------------- --------------------------------------
Print Name: W. Edward Walter,
----------------- Senior Vice President
ATTEST:
By: Anna Mary Coburn
--------------------------------
Print Name: Anna Mary Coburn
------------------------
Title: Corporate Secretary
-----------------------------
[SEAL]
-25-
STATE OF Maryland
ss.: Multistate Acknowledgment
COUNTY OF Montgomery
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above duly commissioned to take
acknowledgments, there personally appeared Patricia K. Brady, who is personally
known to me to be a person named in and who signed the legal instrument to which
this acknowledgment is attached and which was produced to me in the State and
County aforesaid, and being by me first duly sworn did acknowledge, depose and
say to me that she is a Vice President of Marriot Hanover Hotel Corporation, a
Delaware Corporation, and one of the parties to the aforementioned legal
instrument; that after being duly informed of the contents and import of such
legal instrument she had signed such legal instrument as the Vice President of
such entity indicated above; that s/he had signed the same in the name of and on
behalf of such entity by the authority, order and resolution thereof; that s/he
had signed her/his name thereto on behalf of said entity by like order; that the
execution of said legal instrument was her/his free and voluntary act and deed
of said entity for the consideration, purposes, and uses set forth in such legal
instrument; that s/he had delivered such legal instrument to the other parties
thereto as such; and that on behalf of said entity s/he had received a true copy
of such legal instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial seal
on this acknowledgment in the State and County named above on the 30th day
of April, 1997.
My commission expires: October 18, 1998
Notary Seal
Print Name: Susan Levenson
-----------------------
STATE OF Maryland
ss.: Multistate Acknowledgment
COUNTY OF Montgomery
Know all men by these presents that before me, the below-named Notary
Public in and for the State and County named above duly commissioned to take
acknowledgments, there personally appeared W. Edward Walter, who is personally
known to me to be a person named in and who signed the legal instrument to which
this acknowledgment is attached and which was produced to me in the State and
County aforesaid, and being by me first duly sworn did acknowledge, depose and
say to me that he is a Senior Vice President of Host Marriot Corporation, a
Delaware Corporation, and one of the parties to the aforementioned legal
instrument; that after being duly informed of the contents and import of such
legal instrument s/he had signed such legal instrument as the Senior Vice
President of such entity indicated above; that s/he had signed the same in the
name of and on behalf of such entity by the authority, order and resolution
thereof; that s/he had signed her/his name thereto on behalf of said entity by
like order; that the execution of said legal instrument was her/his free and
voluntary act and deed of said entity for the consideration, purposes, and uses
set forth in such legal instrument; that s/he had delivered such legal
instrument to the other parties thereto as such; and that on behalf of said
entity s/he had received a true copy of such legal instrument without charge.
IN WITNESS WHEREOF, I have signed and imprinted my official notarial seal
on this acknowledgment in the State and County named above on the 30th day of
April, 1997.
My commission expires: October 18, 1998
Notary Seal
Print Name: Susan Levenson
------------------------
EXHIBITS
EXHIBIT A Description of Land
EXHIBIT B Permitted Liens and Encumbrances
ANNEXES
ANNEX I State Specific Amendments to Mortgage
EXHIBIT A
---------
Description Of Land
-------------------
- --------------------------------------------------------------------------------
Issued By:
CHICAGO TITLE INSURANCE COMPANY
- --------------------------------------------------------------------------------
------------
ALTA TITLE INSURANCE POLICY No: 9721-00329
Loan Form (1992) ------------
5. The land referred to in this Policy is described as follows:
------
ALL THAT CERTAIN TRACT, PARCEL AND LOT OF LAND LYING AND BEING SITUATE IN
THE TOWNSHIP OF HANOVER, COUNTY OF MORRIS, STATE OF NEW JERSEY, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE PRESENT SOUTHWESTERLY SIDE OF NEW JERSEY STATE
HIGHWAY ROUTE 10 AT A POINT WHERE THE WESTERLY LINE OF THE PREMISES TO BE
DESCRIBED AND THE EASTERLY LINE NOW OR FORMERLY OF NEWARK MILK AND CREAM
COMPANY INTERSECTS SAID SIDELINE OF ROUTE 10 AND RUNNING; THENCE
(1) SOUTH 60 DEGREES 59 MINUTES 12 SECONDS EAST AND ALONG THE SIDE OF
ROUTE 10, 774.32 FEET TO THE CORNER OF LANDS NOW OR FORMERLY OF MELVIN AND
IRENE WYKOFF, HIS WIFE; THENCE
(2) SOUTH 29 DEGREES 00 MINUTES 48 SECONDS WEST 178.12 FEET; THENCE
(3) STILL ALONG LANDS SOUTH 60 DEGREES 59 MINUTES 12 SECONDS EAST 211.0
FEET TO LINE OF LANDS OF IRON INVESTMENT CORP., ET.ALS., LANDS ALONG THE
SAME; THENCE
(4) THE SAME SOUTH 12 DEGREES 09 MINUTES 55 SECONDS WEST 432.86 FEET TO A
POINT; THENCE
(5) NORTH 81 DEGREES 54 MINUTES 29 SECONDS WEST 181.92 FEET TO A POINT;
THENCE
(6) NORTH 61 DEGREES 11 MINUTES 56 SECONDS WEST 760.78 FEET TO A POINT IN
LINE OF LANDS OF NEWARK MILK AND CREAM COMPANY; THENCE
(7) ALONG THE SAME NORTH 13 DEGREES 45 MINUTES 24 SECONDS EAST 684.30 FEET
TO THE POINT AND PLACE OF BEGINNING.
THE ABOVE MADE DESCRIPTION IS MADE IN ACCORDANCE WITH A SURVEY MADE BY
THOMAS R. BUDENTOCH, L.L., DATED APRIL 10, 1997.
TOGETHER WITH ACCESS TO AND ACCESS FROM THE PREMISES BY WAY OF A 50 FOOT
EASEMENT OVER AN EXISTING PAVED ROADWAY TO WING DRIVE AS DEPICTED ON FILED
MAP NO. 3826.
BEING ALSO KNOWN AS (REPORTED FOR INFORMATIONAL PURPOSES ONLY);
LOT 13, BLOCK 1002, ON THE OFFICIAL TAX MAP OF THE TOWNSHIP OF HANOVER IN
COUNTY OF MORRIS
Page A2 - 1
EXHIBIT B
---------
Permitted Liens and Encumbrances
--------------------------------
1. Those items listed in Section 1.2.5 of this Mortgage.
2. Those title exceptions listed on the title commitment attached hereto
as Schedule 1.
----------
SCHEDULE 1 TO EXHIBIT B
-----------------------
Title Commitment
----------------
1. FINANCING STATEMENT NO. 90141, WHEREIN HANOVER MARRIOTT LIMITED
PARTNERSHIP, IS THE DEBTOR AND THE TOYO TRUST AND BANKING COMPANY,
LIMITED IS THE SECURED PARTY FILED OCTOBER 26, 1989. CONTINUED BY NO.
113625 FILED OCTOBER 13, 1994, IN MORRIS COUNTY.
2. MORTGAGE BOOK 3158, PAGE 132, BETWEEN HANOVER MARRIOTT LIMITED
PARTNERSHIP (MORTGAGOR/BORROWER) AND HANOVER MARRIOTT LIMITED
PARTNERSHIP, (MORTGAGE/LENDER) DATED OCTOBER 25, 1989, RECORDED OCTOBER
26, 1989, IN THE OFFICE OF THE CLERK/REGISTER OF MORRIS; IN THE INITIAL
AMOUNT OF $37,000,000.00.
ASSIGNMENT AGREEMENT FROM HANOVER MARRIOTT LIMITED PARTNERSHIP,
ASSIGNOR TO THE TOYO TRUST AND BANKING COMPANY, LIMITED, RECORDED
OCTOBER 26, 1989 IN MORTGAGE BOOK 3158 PAGE 189.
SUBORDINATION AND ATTORNMENT AGREEMENT AMONG THE TOYO TRUST AND BANKING
COMPANY, LIMITED, LENDER, MARRIOTT HOTEL SERVICES, INC., TENANT, AND
HANOVER MARRIOTT LIMITED PARTNERSHIP, LANDLORD, RECORDED OCTOBER 26,
1989 IN MORTGAGE BOOK 3158 PAGE 204.
MODIFICATION AND EXTENSION AGREEMENT RECORDED DECEMBER 4, 1996 IN
MORTGAGE BOOK 6759 PAGE 177.
3. AMENDED AND RESTATED LEASE BETWEEN MARRIOTT CORPORATION AND MARRIOTT
HOTEL SERVICES, INC. RECORDED NOVEMBER 25, 1986 IN DEED BOOK 2904 PAGE
634.
ASSIGNMENT OF LEASE BY MARRIOTT CORPORATION, ASSIGNOR, AND HANOVER
MARRIOTT LIMITED PARTNERSHIP, ASSIGNEE, RECORDED NOVEMBER 25, 1986 IN
DEED BOOK 2904 PAGE 723.
4. THE FOLLOWING ITEMS DISCLOSED BY A SURVEY PREPARED BY THOMAS R.
BUDENOCH, L.S., DATED APRIL 10, 1997, ARE HEREBY ADDED AS EXCEPTIONS IN
SCHEDULE B:
MISLOCATION OF TOWERS, PARKING AREA AND HEADWALL ALONG EASTERLY LINE;
MISLOCATION OF BRIDGE DECK ALONG SOUTHERLY LINE; WOODED AREA ALONG
WESTERLY LINE; MISLOCATION OF TRANSFORMERS AND CURBING ALONG NORTHERLY
LINE; SETBACK LINES AS SHOWN ON SURVEY; CURBING ALONG BOUNDARY LINES;
5. EASEMENT(S) IN DEED BOOK F-31 PAGE 134.
6. RIGHTS OF WAY AND EASEMENT; DEED BOOK 2764 PAGE 738; DEED BOOK 2793
PAGE 408; DEED BOOK 3266 PAGE 62 AND DEED BOOK 3336 PAGE 338.
7. SLOPE AND DRAINAGE RIGHTS IN DEED BOOK 3453 PAGE 64; DEED BOOK 3453
PAGE 69 AND DEED BOOK 2725 PAGE 495.
8. LIEN OF UNPAID REAL ESTATE TAXES FOR THE YEAR 1997. TAXES PAID THROUGH
FIRST QUARTER PAID. SUBSEQUENT TAXES NOT YET DUE AND PAYABLE.
9. 290' WIDE JERSEY CENTRAL POWER & LIGHT ROW UTILITY EASEMENT AS SHOWN ON
SURVEY PREPARED BY THE RBA GROUP, DATED 4/28/97, AND A PORTION OF SUCH
EASEMENT HAS BEEN RECORDED IN DEED BOOK 071 PAGE 70 (140' WIDE) DEED
BOOK F31 PAGE 134 (100' WIDE)
ANNEX I - STATE SPECIFIC AMENDMENTS TO MORTGAGE
-----------------------------------------------
The provisions of this Annex I are applicable to Property located in
-------
the State of New Jersey. To the extent the terms of this Annex I conflict with
-------
any other provisions of this Mortgage, the terms of this Annex I shall govern.
-------
A. TAXATION OF MORTGAGE. If at any time after the date hereof and
--------------------
before the debt hereby secured is fully paid any law of the State of New Jersey
be enacted, deducting from the value of the Property, for the purposes of
taxation, the amount of any lien thereon, or imposing upon the Mortgagee the
payment of the whole or any part of the taxes or assessments or charges or liens
herein required to be paid by the Mortgagor or revising or changing in any way
the laws relating to the taxation of mortgages or debts secured by mortgages or
the Mortgagee's interest in the Property or the manner of collection of taxes,
so as to affect adversely this Mortgage or the debt hereby secured, or the owner
and holder thereof in respect thereto, then and in any such event, Mortgagor
within fifteen (15) days after demand by Mortgagee, shall pay such taxes or
assessments or reimburse Mortgagee.
B. FURTHER ASSURANCES. At any time, and from time to time, upon
------------------
request by Mortgagee, Mortgagor will make, execute, acknowledge and deliver or
cause to be made, executed, acknowledged and delivered to Mortgagee any and all
further instruments, mortgages, conveyances, deeds, certificates and other
documents as may, in the reasonable opinion of Mortgagee, be necessary or
desirable in order to effectuate, complete confirm, or perfect or to continue
and preserve the obligations of Mortgagor under this Mortgange, the Mortgage
Note, Loan Documents, and/or the lien of this Mortgage.
C. AMENDMENTS. If modified, this Mortgage and the Mortgage Note and
----------
Loan Documents which it secures shall be subject to the terms and conditions of
P.L. 1985, c. 353 (N.J.S.A. 56:9-8.1, et seq.).
-------- -- ---
D. MORTGAGOR'S ACKNOWLEDGMENT. Mortgagor hereby acknowledges
--------------------------
receipt, without charge, of a true copy of this Mortgage.