Exhibit 10.7
SECURITY AGREEMENT
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This Security Agreement (hereinafter referred to as the "Agreement") is
made as of the 24th day of September, 1996, by MUTUAL BENEFIT CHICAGO MARRIOTT
SUITE HOTEL PARTNERS, L.P., a Rhode Island limited partnership having an address
at c/o Host Marriott Corporation, 10400 Fernwood Drive, Bethesda, Maryland 20817
("Debtor"), and NATIONAL BANK OF CANADA, having an address at 125 West 55th
Street, New York, NY 10019 ("Secured Party").
R E C I T A L S:
- - - - - - - -
A. Debtor and Secured Party previously entered into that certain Loan
Agreement dated as of June 12, 1989 whereby Secured Party made a loan (the
"Original Loan') to Debtor as evidenced by that certain Promissory Note Secured
by Mortgage dated as of June 12, 1989, and having a maturity date of June 12,
1996 (the "Original Note").
B. The Original Note was secured in part by, among other things, that
certain Leasehold Mortgage, Security Agreement and Assignment of Rents granted
by Debtor to Secured Party and dated as of June 12, 1989 and recorded June 13,
1989 in the Recorder's Office for Cook County, Illinois (the "Recorder's
Office") as Document No. 89266493, granting Secured Party a security interest
in, among other things, the collateral described therein and located on the real
property described on Exhibit A hereto (the "Land").
C. In accordance with that certain Amended and Restated Loan Agreement
(the "Loan Agreement") of even date herewith between Debtor and Secured Party,
Debtor has issued to Secured Party a certain Amended and Restated Secured
Promissory Note in the principal sum of Twenty Five Million Five Hundred
Thousand and 00/100 Dollars ($25,500,000.00; the "Loan") with a scheduled
maturity date of June 12, 2001, amending and restating the Original Note in its
entirety (together with any replacement therefor which may be issued from time
to time pursuant to the Loan Agreement, the "Note").
D. The Note is secured by, among other things, that certain Amended and
Restated Leasehold Mortgage (the "Mortgage") dated of even date herewith granted
by Debtor to Secured Party and recorded on ______________, 1996 in the
Recorder's Office as Document No. _________.
E. Debtor owns the leasehold interest in the Land and owns all buildings
and improvements located thereon (said buildings and improvements together with
Debtor's leasehold interest in the Land are hereinafter collectively referred to
as the "Premises").
F. Pursuant to the Loan Agreement, Debtor has agreed to grant to Secured
Party a security interest in all the property, whether presently owned by Debtor
or hereafter acquired, described as the "Collateral" in Exhibit B attached
hereto.
G. The Collateral is or will be located on the Premises.
H. All capitalized terms used herein without definition shall have the
meanings ascribed to them in the Loan Agreement.
NOW, THEREFORE, with reference to the above recitals, and in reliance
thereon, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Creation of Security Interest. Debtor hereby grants to Secured Party a
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security interest in, and does hereby collaterally assign, pledge, mortgage,
convey and set over unto the Secured Party, the Collateral and all of Debtor's
present and hereafter acquired right, title and interest in and to the
Collateral, for the purpose of securing payment of all indebtedness, obligations
and liabilities of Debtor to Secured Party arising under or in connection with
the Note, the Mortgage, the Loan Agreement, and the other Loan Documents (as
defined in the Loan Agreement and the Mortgage) and performance of all
agreements, covenants, terms and conditions contained in the foregoing documents
and instruments.
2. Warranties, Representations and Covenants of Debtor. Debtor hereby
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warrants, represents and covenants to the Secured Party as follows:
(a) Debtor is and will be the sole owner of the Collateral, free from
any lien, security interest, encumbrance or adverse claim of any kind
(except for those matters listed on Exhibit C hereto). Debtor will not
permit any financing statement to be filed with respect to the Collateral
or any portion thereof except in favor of Secured Party. Debtor will
notify Secured Party of, and will defend the Collateral against, all claims
and demands of all persons at any time claiming the same or any interest
therein.
(b) The Collateral will not be used and was not purchased for
personal, family or household purposes.
(c) Subject to the terms of subparagraph 2(e) hereof, the Collateral
will be kept on the Premises, and Debtor will not remove the Collateral
from the Premises without the prior written consent of Secured Party.
(d) At the request of Secured Party, Debtor has or will join Secured
Party in executing one or more financing statements identifying the
Collateral and evidencing the
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security interest of Secured Party in the Collateral pursuant to the
requirements of the Uniform Commercial Code and in form satisfactory to
Secured Party. Debtor will pay the cost of filing the same in all public
offices wherever filing is deemed by Secured Party to be necessary or
desirable.
(e) Except as otherwise expressly permitted under the Loan Agreement,
without the prior written consent of Secured Party, Debtor will not sell,
exchange, dispose of, lease, offer to sell or otherwise transfer or
otherwise deal with the Collateral or any portion or interest therein,
unless simultaneously therewith new items of Collateral, which items may be
similar to those proposed to be disposed of and which shall be of equal or
greater value, are substituted therefor. Together with the information
delivered to Secured Party pursuant to clause (i) of Article 7 of the Loan
Agreement, Debtor shall file with the Secured Party a certificate signed by
Debtor describing such portion of the Collateral consisting of furniture,
fixtures and/or equipment as has been disposed of during the Accounting
Period (as defined in the Loan Agreement) covered by said information and
stating that the same has become obsolete, worn out, damaged, destroyed,
sold, transferred or exchanged, as the case may be, and that said
furniture, fixtures and/or equipment has been replaced. Such certificate
likewise shall certify as to the reasonable and equivalent value of the
property so acquired in replacement or substitution. All after-acquired
property of the Debtor located on the Premises and all additions or
replacements acquired pursuant to the provisions of this paragraph shall
immediately be and become, without any other act on the part of the Debtor,
subject to the security interest and lien of this Security Agreement, which
security interest shall be prior to any other security interest or lien on
such property. Unless expressly recited or provided to the contrary in
this Security Agreement or in the other Loan Documents, Debtor may not
hereafter acquire any property subject to prior security interests. If the
Collateral or any part thereof is sold, transferred, exchanged, or
otherwise disposed of, the security interest of Secured Party shall extend
to the proceeds of such sale, transfer, exchange or other disposition.
(f) Subject to the Insurance Coverage provisions in the Mortgage,
Debtor shall cause the Collateral at all times to be kept insured at its
own expense under one or more policies with such companies, for such
periods and amounts, against such risks and liabilities, and in such form
as are reasonably satisfactory to Secured Party, with Secured Party as a
named insured and with loss payable and mortgagee clauses attached to all
policies in favor of and in form satisfactory to Secured Party. Such
insurance policies shall provide for at least thirty (30) days prior
written notice to Secured Party of cancellation, termination, lapse,
reduction in amount or material change in the coverage of such policies,
and certificates thereof shall be delivered to and held by Secured Party.
Debtor will promptly notify Secured Party of any loss or damage to the
Collateral and will not adjust or settle such or any loss without the
written consent of the Secured Party. In the event of foreclosure or sale
under this Agreement, all right, title and interest of the Debtor
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in and to any insurance policies then in force shall pass to the purchaser
at any sale, and Secured Party is hereby appointed attorney-in-fact for
Debtor to assign and transfer said policies.
In the event of damage or casualty resulting in a loss payable under
any of the aforementioned insurance policies, Secured Party is authorized
(i) to adjust and settle any claim under the appropriate policy pursuant to
which right Secured Party is hereby appointed attorney-in-fact for Debtor
to make proof of loss, or (ii) on behalf of and in the name and stead of
Debtor to adjust and settle any such claim. In either case, Secured Party
is authorized to collect and give receipt for any such insurance proceeds
paid pursuant to the settlement and such authorization is hereby deemed an
assignment to Secured Party by Debtor of its rights to any such proceeds.
Anything in the foregoing to the contrary notwithstanding, Debtor is hereby
authorized to adjust and settle any claim and to collect and give receipt
for the proceeds thereof so long as such claim does not exceed Twenty-Five
Thousand Dollars ($25,000.00), and all such claims so adjusted and settled
in any one (1) Fiscal Year do not exceed the aggregate amount of Seventy-
Five Thousand Dollars ($75,000.00).
(g) Debtor will keep the Collateral free from any lien, security
interest or encumbrance and in good condition and repair. From time to
time and at the request of Secured Party, Debtor will make necessary or
desirable repairs, replacements, renewals and additions to the Collateral
which may be required by reason of use, wear, obsolescence, damage or
destruction, however caused, to the end that the efficiency of the business
conducted on the Premises shall not be impaired. Debtor will not misuse,
abuse, allow to deteriorate, waste or destroy the Collateral or any part
thereof, except for ordinary wear and tear in the course of its normal and
expected use. Debtor will not use the Collateral in violation of any
statute or governmental rule, regulation or ordinance.
(h) Debtor will pay prior to delinquency all taxes and assessments
assessed against the Collateral, imposed on account of its use or operation
or imposed upon the Note (collectively, "Impositions") and shall deliver to
Secured Party, within ten (10) days after Secured Party's request therefor,
a receipt or other evidence satisfactory to Secured Party, of the payment
thereof.
(i) At the Secured Party's request, Debtor will execute and/or procure
any document and will do all other acts which from the character or use of
the Collateral may be reasonably necessary to protect the Collateral
against the rights, claims or interests of third persons, and will
otherwise preserve the Collateral as security hereunder.
(j) Debtor shall furnish promptly to Secured Party such information
concerning the Collateral as Secured Party may from time to time reasonably
request. Debtor shall
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permit and hereby authorizes Secured Party to examine and inspect the
Collateral and any portion thereof wherever the same may be located. Debtor
shall, at the request of Secured Party, assemble all documents and records
pertaining to the Collateral at such place as Secured Party may designate.
3. Preservation of Collateral by Secured Party. Should Debtor fail or
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refuse to make any payment, perform or observe any other covenant, condition or
obligation, or take any other action required by the terms of this Agreement or
the Loan Agreement at the time or in the manner provided, then Secured Party
may, at Secured Party's sole discretion, without notice to or demand upon
Debtor, and without releasing Debtor from any obligation, covenant or condition
hereof, make, perform, observe, take or do the same in such manner and to such
extent as Secured Party may deem necessary to protect its security interest in
or the value of the Collateral. Furthermore, upon Debtor's failure to do so,
Secured Party may commence, defend, appeal or otherwise participate in any
action or proceeding purporting to affect its security interest in or the value
of the Collateral. Debtor hereby agrees to reimburse Secured Party on demand
for any payment made, or any expense incurred by, Secured Party pursuant to the
foregoing authorization (including court costs and reasonable attorneys' fees
and disbursements), and agrees further to pay interest thereon from the date of
said payment or expenditure at the rate specified in the Note as the Default
Rate.
4. Use of Collateral by Debtor. Until the occurrence of an Event of
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Default hereunder, Debtor may have possession of the Collateral and use it in
any lawful manner contemplated in the Loan Agreement and consistent with this
Agreement and any policy of insurance affecting the Collateral.
5. Event of Default. The occurrence of any of the following shall
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constitute an Event of Default ("Event of Default") hereunder:
(a) If an Event of Default shall occur under the Loan Agreement and be
continuing or if Debtor fails to observe or perform any term, covenant or
condition of the Note, the Mortgage or any of the other Loan Documents and
such default is not cured within the time period expressly established
therefor, if any; or
(b) If any writ or any distress warrant shall be issued against or
levied on the Collateral, or any part thereof; or if the Debtor shall sell
or assign or attempt to sell or assign the Collateral, or any interest
therein in violation of subparagraph 2(e) hereof; or
(c) If Debtor defaults under this Agreement, which default is not
corrected or cured by Debtor within thirty (30) days after notice thereof
by Secured Party; provided, however, that if such default is such that it
cannot reasonably be cured within such 30-day period, then an Event of
Default shall occur if Debtor fails to commence the cure of such
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default within such 30-day period or thereafter fails to diligently pursue
such efforts to completion, provided, further, that in no event shall the
amount of time permitted for any such cure exceed 90 days after such
failure shall occur; or
(d) If the Collateral or any part thereof is removed or transferred,
or attempted to be removed or transferred, from the Premises, or sold or
disposed of, in violation of the terms of subparagraphs 2(c) and 2(e); or
(e) If any representation or warranty made by Debtor herein, or in any
other instrument, agreement or written statement in any way related hereto,
to the Collateral or any portion thereof, or to the Loan, shall prove to
have been false or incorrect in any material respect on or after the date
when made.
6. Remedies upon Event of Default. Upon the occurrence of an Event of
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Default, Secured Party may, in addition to exercising those remedies specified
in the Loan Agreement or in any of the Loan Documents, at any time, at its
election, without further notice, and to the extent permitted by law pursue any
one or more of the following remedies concurrently or successively, it being the
intent hereof that none of such remedies shall be to the exclusion of any
others:
(a) Foreclose this Agreement and the security interest granted hereby,
as provided herein, or in any manner permitted by law, either personally,
through agents or by means of a court appointed receiver, and take
possession of all or any of the Collateral and exclude therefrom Debtor and
all others claiming through or under Debtor, and exercise any and all of
the rights and remedies conferred upon Secured Party by this Agreement, the
Note, the Mortgage, the Loan Agreement, and the other Loan Documents or by
applicable law, either concurrently or in such order as Secured Party may
determine. Secured Party may sell, lease or otherwise dispose of, or cause
to be sold, leased or otherwise disposed of in such order as Secured Party
may determine, as a whole or in such parcels as Secured Party may
determine, (i) the Collateral, and/or (ii) the Premises described in the
Mortgage; or exercise any of the other rights conferred upon the Secured
Party by this Agreement, the Note, the Mortgage, the Loan Agreement or
other Loan Documents without affecting in any way the rights or remedies
to which Secured Party may be entitled under any other Loan Document;
(b) Make such payments and do such acts as Secured Party may deem
necessary to protect its security interest in the Collateral, including
without limitation, paying, purchasing, contesting or compromising any
encumbrance, charge, claim or lien which is prior to or superior to the
security interest granted hereunder, and, in exercising any such powers or
authority, pay all expenses incurred in connection therewith, and all funds
expended by Secured Party in protecting its security interest shall be
deemed additional indebtedness secured by this Agreement;
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(c) To the extent any of the Collateral has been stored at a location
other than the Premises, require Debtor to assemble such Collateral, or any
portion thereof, at the Premises, and promptly to deliver such Collateral
to Secured Party, or an agent or representative designated by it;
(d) Publicly or privately sell, lease or otherwise dispose of the
Collateral, without necessarily having the Collateral at the place of sale,
lease or disposition, and upon terms and in such manner as Secured Party
may determine. Secured Party may be a purchaser of the Collateral at any
public sale. Unless the Collateral is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market,
Secured Party will give Debtor reasonable notice of the time and place of
any public sale thereof or of the time after which any private sale or any
other intended disposition thereof is to be made, and such notice, if given
to the Debtor pursuant to the provisions of Paragraph 8 hereof at least
twenty (20) days prior to the date of any public sale or disposition or the
date after which any private sale or disposition may occur, shall
constitute reasonable notice of such sale, lease or other disposition;
(e) Notify any account debtor or any other party obligated on or with
respect to any of the Collateral to make payment to Secured Party or its
nominee of any amounts due or to become due thereunder or with respect
thereto and otherwise perform its obligations with respect to the
Collateral on behalf of and for the benefit of Secured Party. Secured
Party may enforce collection and performance with respect to any of the
Collateral by suit or otherwise, in its own name or in the name of Debtor
or a nominee, and surrender, release or exchange all or any part thereof;
and compromise, extend or renew (whether or not for longer than the
original period) or transfer, assign or endorse for collection or
otherwise, any indebtedness or obligation with respect to the Collateral,
or evidenced thereby, and upon request of Secured Party, Debtor will, at
its own expense, notify any person obligated on or with respect to any of
the Collateral to make payment and performance directly to, in the name of,
and on behalf of Secured Party of any amounts or performance due or to
become due thereunder or with respect thereto; and
(f) Exercise any remedies of a Secured Party under the Uniform
Commercial Code or any other applicable law.
To effectuate the foregoing, Debtor hereby agrees that if the Secured
Party demands or attempts to take possession of the Collateral or any
portion thereof in exercise of its rights and remedies hereunder and under
any other Loan Document, Debtor will immediately turn over and deliver
possession thereof to Secured Party, and Debtor authorizes, to the extent
Debtor may now or hereafter lawfully grant such authority, Secured Party,
its employees and agents, and potential bidders or purchasers to enter upon
any or all of the premises where the Collateral or any portion thereof may
at the time be
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located (or believed to be located) and Secured Party may (i) remove the
same therefrom or render the same inoperable (with or without removal from
such location), (ii) repair, operate, use or manage the Collateral or any
portion thereof, (iii) maintain, repair or store the Collateral or any
portion thereof, (iv) view, inspect and prepare for sale, lease or
disposition the Collateral or any portion thereof, (v) sell, lease, dispose
of or consume the same or bid thereon or (vi) incorporate the Collateral or
any portion thereof into the Premises.
Debtor hereby agrees to indemnify, defend, protect and hold harmless
Secured Party and its employees, officers and agents from and against any
and all damages, liabilities, claims and obligations which may be incurred,
asserted or imposed upon them or any of them as a result of or in
connection with any use, operation, lease or consumption of any of the
Collateral or as a result of Secured Party's seeking to obtain performance
of any of the obligations due with respect to the Collateral, except from
such damages, liabilities, claims or obligations as result from gross
negligence or intentional misconduct of Secured Party, its employees,
officers or agents.
The proceeds of any sale under this Paragraph 6 shall be applied first
to the payment of any sums owing to Secured Party pursuant to the
provisions of the Note, the Mortgage, this Agreement, or any of the other
Loan Documents in such manner as Secured Party may elect, with any funds
remaining after payment of the foregoing to be paid to Debtor or such other
party whom at law may be entitled thereto.
Secured Party shall have the right to enforce one or more remedies
hereunder, successively or concurrently, and such action shall not operate
to estop or prevent Secured Party from pursuing any further remedy which it
may have, and any repos session or retaking or sale of the Collateral
pursuant to the terms hereof shall not operate to release Debtor until full
payment of any deficiency has been made in cash.
7. Other Remedies. The Mortgage and this Agreement shall be construed
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together as a single instrument and in any case in which the Secured Party is
authorized to proceed in the manner set forth in Paragraph 6 hereof, Secured
Party may, at its sole option and in lieu of proceeding under Paragraph 6
hereof, proceed as to both the Premises and the Collateral in accordance with
Secured Party's rights and remedies with respect to the Premises under the
Mortgage. Any receiver appointed in any proceedings to foreclose said Mortgage,
upon taking possession of the Premises, shall have full power to take immediate
possession of, manage and control the Collateral and use the same in the
operation of a business upon the Premises. Any and all remedies herein
expressly conferred upon Secured Party shall be deemed cumulative with, and not
exclusive of, any other remedy conferred hereby or by law or equity on Secured
Party, and the exercise of any one remedy shall not preclude the exercise of any
other. Except as otherwise
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specifically required herein, notice of the exercise of any right, remedy or
power granted to Secured Party by this Agreement is not required to be given.
8. Notices. All notices, requests and demands to or upon the respective
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parties hereto, to be effective, shall be in writing and shall be delivered by
hand or sent by (x) mail (certified or registered, postage prepaid, return
receipt requested), (y) by a nationally recognized overnight courier service, or
(z) by facsimile transmission (provided that the original of any notice sent by
facsimile transmission shall be sent by a nationally recognized overnight
courier service) and unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered if delivered by hand, or three
Business Days (as defined in the Loan Agreement) following deposit if sent by
certified or registered mail, or on the next Business Day following deposit with
a nationally recognized overnight courier service, or upon receipt if sent by
facsimile with an original by nationally recognized overnight courier service
(provided that if said facsimile was received after 5:00 p.m. in the local time
zone of the recipient on any Business Day, said notice shall not be deemed to
have been received until the following Business Day), addressed in each case as
follows, or to such address or other address as may be hereafter notified by
such parties:
Debtor: Mutual Benefit Chicago Marriott Suite Hotel
Partners, L.P.
Host Marriott Corporation
10400 Fernwood Drive
Bethesda, Maryland 20817
Attention: Law Department
Facsimile No.: (301) 380-6332
Secured Party: National Bank of Canada
New York Branch
125 West 55th Street
New York, New York 10022
Attention: LoriAnn Curnyn
Facsimile No.: (212) 632-8775
9. Waiver. By exercising or failing to exercise any of its rights,
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options or elections hereunder, Secured Party shall not be deemed to have waived
any breach or default on the part of Debtor or to have released Debtor from any
of its obligations hereunder, unless such waiver or release is in writing and
signed by Secured Party. In addition, the waiver by Secured Party of any breach
hereof or default in payment of any amounts due under the Note, the Loan
Agreement, the Mortgage or this Agreement shall not be deemed to constitute a
waiver of any succeeding breach or default.
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10. Affixed Collateral. The inclusion in this Security Agreement of any
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Collateral which may now be, or hereafter become, affixed or in any manner
attached to the Premises shall be without prejudice to any claim at any time
made by Secured Party that such Collateral is, or has become, a part of the
Premises, a fixture or an accession to the Premises.
11. Binding Agreement. This Agreement and all provisions hereof shall be
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binding upon Debtor, its successors, assigns, executors, administrators and
legal representatives and all other persons or entities claiming under or
through Debtor, and the word "Debtor," when used herein, shall include all such
persons or entities and any others liable for the payment of the indebtedness
secured hereby or any part thereof, whether or not they have executed the Note
or this Agreement. The word "Secured Party," when used herein, shall include
Secured Party's successors, assigns and legal representatives, including all
other holders, from time to time, of the Note.
12. Governing Law; Interpretation. This Security Agreement shall be
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governed by the laws of the State of Illinois. Wherever possible, each
provision of this Security Agreement shall be interpreted in such a manner as to
be effective and valid under applicable law, but if any provision of this
Security Agreement shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Security Agreement. Time is of the essence in this Security Agreement.
13. Miscellaneous. Neither this Security Agreement nor any provision
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hereof may be amended, modified, waived, discharged or terminated, nor may any
of the Collateral be released, except by an instrument in writing duly signed by
or on behalf of Secured Party hereunder. The Section headings are used herein
for convenience of reference only and shall not define or limit the provisions
of this Security Agreement. As used in this Security Agreement, the singular
shall include the plural, and the plural shall include the singular, and
masculine, feminine and neuter pronouns shall be fully interchangeable, where
the context so requires.
14. Non-Recourse.
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(a) Extent of Non-recourse. Anything in this Agreement to the
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contrary notwithstanding, Secured Party shall have no personal recourse
against either Debtor, any General Partner (as defined in the Loan
Agreement), any limited partner of Debtor, or any Affiliated Party (as
defined in the Loan Agreement) nor any officer, director, employee or agent
of any of the foregoing for the repayment of any of the principal of or
interest on the Loan or for any deficiency judgment that Secured Party may
obtain after foreclosure of the liens securing such repayment, or, subject
to the provisions of Section 14(b) hereof, for any deficiency, loss or
damage suffered by Secured Party as a result of the failure by Debtor or
any General Partner to comply with any of the terms or conditions of this
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Agreement or any of the other Loan Documents and, subject to the provisions
of Section 14(b) hereof, Lender agrees not to seek recourse against any of
the foregoing for any such deficiency, loss or damage. The foregoing
limitations are limitations on Secured Party's right of recourse against
Debtor and shall not impair the validity or enforceability of the
indebtedness evidenced by the Note or any of the other obligations of
Debtor under the Loan Documents secured by the Property (as defined in the
Loan Agreement) or the lien of or security interest in or the right of
Secured Party as mortgagee or secured party to foreclose and/or enforce its
rights in the Property after default by Debtor or any General Partner.
(b) Borrower's Liability for Damages or Misapplication of Funds. The
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provisions of Section 14(a) hereof to the contrary notwithstanding, Debtor
and its General Partner shall be fully liable (i) for any damages
attributable to fraud or material misrepresentation in any Loan Document or
in any written communication by Debtor in connection with the Loan or in
connection with the Original Loan; (ii) for the retention of any rental
income or other income arising with respect to all or any part of the
Property covered by the Mortgage after Secured Party has given to Debtor
any notice that Debtor is in default hereunder or under the other Loan
Documents and that Secured Party has exercised its option to accelerate
maturity of the Note, foreclose or require the foreclosure of the liens
securing payment thereof, receive or collect such rental income or other
income or exercise its rights under the Loan Documents (to the full extent
of the rental income or other income retained after the giving of any such
notice); (iii) for any Gross Revenues (as defined in the Loan Agreement)
distributed to any partners in Debtor subsequent to the date hereof; (iv)
for any Gross Revenues, Net House Profits (as defined in the Loan
Agreement) or Excess Cash Flow (as defined in the Loan Agreement) not
applied as required pursuant to Article 8 of the Loan Agreement; (v) for
the misapplication of (A) proceeds paid prior to any such foreclosure under
any insurance policies by reason of damage, loss or destruction to any
portion of the property covered by the Mortgage (to the full extent of such
proceeds), or (B) any proceeds or awards resulting from the condemnation,
prior to any such foreclosure, of all or any part of the property covered
by the Mortgage (to the full extent of such proceeds or awards); and (v)
for damages arising from the breach of any representation, warranty,
covenant or other obligation concerning Environmental Claims, Environmental
Conditions or Environmental Noncompliance (except for matters set forth on
Exhibit H to the Loan Agreement), including without limitation the
indemnification provisions of Section 12.20 of the Loan Agreement.
(c) Liability of General Partners. To the extent of personal
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liability of Debtor under Section 14(b) hereof, the General Partner of
Debtor hereby agrees to be jointly and severally liable therefor and waives
any requirement of law that in the event of a default hereunder Secured
Party must proceed against Debtor or exhaust any assets of Debtor before
proceeding against such General Partner or such General Partner's assets;
provided,
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however, that in no event shall any limited partner of Debtor, any
Affiliated Party (other than the General Partner) or any officer, director,
employee or agent of any partner of Debtor or of any Affiliated Party
(including any officer, director, employee or agent of the General Partner)
have any liability under Section 14(c) hereof, and Secured Party agrees
that it shall not seek recovery from any party that is excluded from
liability pursuant to this sentence.
15. Rights of Manager. Debtor and Secured Party acknowledge that although
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this Agreement is binding as between Debtor and Secured Party, nothing herein
shall be construed as modifying or detracting from the rights of Manager with
respect to Secured Party pursuant to the terms of Section 9 of the Assignment of
Management Agreement.
16. This Agreement may be executed in any number of counterparts, each of
which shall constitute an original but all of which, taken together, shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWER:
MUTUAL BENEFIT CHICAGO MARRIOTT
SUITE HOTEL PARTNERS, L.P., a
Rhode Island limited partnership
(SEAL)
ATTEST: By: MOHS CORPORATION, a Delaware corporation,
its General Partner
By: /s/ David E. Reichmann By: /s/ Bruce D. Wardinski
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Name: Assistant Secretary Name: Bruce D. Wardinski
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Title: Vice President
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SECURED PARTY:
(SEAL) NATIONAL BANK OF CANADA
ATTEST:
By: /s/ Lori Ann Curnyn
---------------------------------
By: /s/ Joseph M. Triscoli Name: Lori Ann Curnyn
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Name: Joseph M. Triscoli Title: Vice President
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Title: Assistant Vice President
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EXHIBIT A
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LEGAL DESCRIPTION
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PARCEL 1:
LOT 14 IN RIVERWAY SUBDIVISION-PHASE II, BEING A RESUBDIVISION IN THE WEST 1/2
OF SECTION 3, TOWNSHIP 40 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN,
ACCORDING TO THE PLAT RECORDED MARCH 11, 1992 AS DOCUMENT 92157888, IN COOK
COUNTY, ILLINOIS.
PARCEL 2:
NON-EXCLUSIVE EASEMENTS IN FAVOR OF THE LEASEHOLD ESTATE DESCRIBED AS PARCEL 1
HEREIN FOR:
(A) INGRESS AND EGRESS FOR PEDESTRIAN AND VEHICULAR TRAFFIC IN, OVER AND THROUGH
THE COMMON AREAS LOCATED ON THE ADJACENT TRACT (AS DEFINED BELOW), AS CREATED BY
LEASE DATED JUNE 16, 1986, A MEMORANDUM OF WHICH WAS FILED APRIL 3, 1987 AS
DOCUMENT LR3604964, AND RECORDED NOVEMBER 18, 1988 AS DOCUMENT 88535338, MADE
BY AND BETWEEN SIMON-ROSEMONT DEVELOPERS AND MARRIOTT CORPORATION;
(B) INGRESS AND EGRESS FOR PEDESTRIAN TRAFFIC IN, OVER AND THROUGH THE ENCLOSED
WALKWAY ON THE ADJACENT TRACT (AS DEFINED BELOW), AS CREATED BY LEASE DATED JUNE
16, 1986, A MEMORANDUM OF WHICH WAS FILED APRIL 3, 1987 AS DOCUMENT LR3604964,
AND RECORDED NOVEMBER 18, 1988 DOCUMENT 88535338, MADE BY AND BETWEEN
SIMON-ROSEMONT DEVELOPERS AND MARRIOTT CORPORATION;
(C) THE LOCATION, INSTALLATION, MAINTENANCE AND REPAIR OF SATELLITE AND
TELECOMMUNICATIONS EQUIPMENT ON THE ADJACENT TRACT (AS DEFINED BELOW), ALL AS
CREATED BY LEASE DATED JUNE 16, 1986, A MEMORANDUM OF WHICH WAS FILED APRIL 3,
1987 AS DOCUMENT LR3604964, AND RECORDED NOVEMBER 18, 1988 AS DOCUMENT 88535338,
MADE BY AND BETWEEN SIMON-ROSEMONT DEVELOPERS AND MARRIOTT CORPORATION;
(D) MINOR ENCROACHMENTS OF TENANT'S IMPROVEMENTS ONTO THE ADJACENT TRACT (AS
DEFINED BELOW) DUE TO ENGINEERING ERRORS, ERRORS IN ORIGINAL CONSTRUCTION,
CONSTRUCTION, RECONSTRUCTION, REPAIR, SETTLEMENT OR SHIFTING OR MOVING OF THE
TENANT'S IMPROVEMENTS, AS CREATED BY FIRST AMENDMENT DATED MARCH 11, 1987 AND
FILED APRIL 3, 1987 AS DOCUMENT LR3604965, AND RECORDED NOVEMBER 18, 1988 AS
DOCUMENT 88535337, MADE BY AND BETWEEN SIMON-ROSEMONT DEVELOPERS AND MARRIOTT
CORPORATION; AND
(E) INGRESS AND EGRESS OVER THE ADJACENT TRACT AS REASONABLY NECESSARY FOR THE
RECONSTRUCTION, MAINTENANCE, OPERATION AND REPAIR OF TENANT'S IMPROVEMENTS, AS
CREATED BY FIRST AMENDMENT DATED MARCH 11, 1987 AND FILED APRIL 3, 1987 AS
DOCUMENT LR3604965, AND RECORDED NOVEMBER 18, 1988 AS DOCUMENT 88535337, MADE BY
AND BETWEEN SIMON-ROSEMONT DEVELOPERS AND MARRIOTT CORPORATION.
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ADJACENT TRACT:
LOTS 1 TO 8 IN RIVERWAY SUBDIVISION-PHASE I, BEING A RESUBDIVISION IN THE WEST
1/2 OF SECTION 3, TOWNSHIP 40 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL
MERIDIAN, ACCORDING TO THE PLAT RECORDED JUNE 3, 1988 AS DOCUMENT 88241319 AND
FILED AS DOCUMENT LR3713139, IN COOK COUNTY, ILLINOIS.
AND ALSO,
LOTS 9 TO 13 AND LOTS 15 TO 17 IN RIVERWAY SUBDIVISION-PHASE II, BEING A
RESUBDIVISION IN THE WEST 1/2 OF SECTION 3, TOWNSHIP 40 NORTH, RANGE 12, EAST OF
THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT RECORDED MARCH 11, 1992 AS
DOCUMENT 92157888, IN COOK COUNTY, ILLINOIS.
PARCEL 3:
EASEMENT IN FAVOR OF THE LEASEHOLD ESTATE DESCRIBED AS PARCEL 1 HEREIN, AS
CREATED IN SECOND AMENDMENT TO LEASE RECORDED FEBRUARY 9, 1989 AS DOCUMENT
89063670, MADE BY AND BETWEEN LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST
AGREEMENT DATED FEBRUARY 1, 1988 AND KNOWN AS TRUST NUMBER 11300, SIMON-ROSEMONT
DEVELOPERS, AN ILLINOIS LIMITED PARTNERSHIP, AND MARRIOTT CORPORATION, A
DELAWARE CORPORATION, FOR A 5 INCH AT-GRADE EASEMENT FOR ACCOMODATING THE
AS-BUILT CONDITION OF THE HOTEL GARDEN WALL, OVER THE FOLLOWING LEGAL
DESCRIPTION:
THAT PART OF THE WEST 1/2 OF SECTION 3, TOWNSHIP 40 NORTH, RANGE 12, EAST OF THE
THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTHWEST 1/4 OF SAID
SECTION 3 WITH THE EASTERLY LINE OF RIVER ROAD AS WIDENED BY CONDEMNATION IN
CASE NO. 59C16022 AND SHOWN ON PLAT RECORDED AS DOCUMENT NUMBER 19251267; THENCE
NORTH 05 DEGREES 11 MINUTES 36 SECONDS EAST ALONG SAID EASTERLY LINE OF RIVER
ROAD AS WIDENED, 395.35 FEET; THENCE NORTH 79 DEGREES 26 MINUTES 12 SECONDS
WEST, 0.91 FEET TO THE EASTERLY LINE OF RIVER ROAD, BEING A LINE 33.00 FEET, AS
MEASURED AT RIGHT ANGLES, EASTERLY OF AND PARALLEL WITH THE CENTER LINE OF SAID
ROAD; THENCE NORTH 10 DEGREES 38 MINUTES 35 SECONDS EAST ALONG SAID EASTERLY
LINE OF RIVER ROAD, 69.50 FEET; THENCE NORTH 68 DEGREES 08 MINUTES 35 SECONDS,
EAST 56.73 FEET; THENCE NORTH 85 DEGREES 38 MINUTES 35 SECONDS EAST, 47.90 FEET
TO A POINT OF CURVATURE; THENCE NORTHEASTERLY ALONG A CURVED LINE CONVEX
SOUTHEASTERLY, HAVING A RADIUS OF 300.00 FEET AND BEING TANGENT TO SAID LAST
DESCRIBED LINE AT SAID LAST DESCRIBED POINT, AN ARC DISTANCE OF 113.14 FEET TO A
POINT OF TANGENCY (THE CHORE OF SAID ARC BEARS NORTH 74 DEGREES 50 MINUTES 21
SECONDS EAST, 112.47 FEET); THENCE NORTH 64 DEGREES 02 MINUTES 07 SECONDS EAST
ALONG A LINE TANGENT TO SAID LAST DESCRIBED CURVED LINE AT SAID LAST DESCRIBED
POINT, 7.87 FEET; THENCE SOUTH 34 DEGREES 21 MINUTES 25 SECONDS EAST, 169.84
FEET; THENCE SOUTH 10 DEGREES 38 MINUTES 35 SECONDS WEST, 3.41 FEET; THENCE
SOUTH 79 DEGREES 21 MINUTES 25 SECONDS EAST, 25.00 FEET; THENCE SOUTH 10 DEGREES
38 MINUTES 35 SECONDS WEST, 3.50 FEET; THENCE SOUTH 79 DEGREES 21 MINUTES 25
SECONDS EAST, 24.58 FEET; THENCE SOUTH 10 DEGREES 38 MINUTES 35 SECONDS WEST,
14.00 FEET; THENCE SOUTH 79 DEGREES 21 MINUTES 25 SECONDS EAST, 15.00 FEET;
THENCE SOUTH 10 DEGREES 38 MINUTES 35 SECONDS WEST, 8.50 FEET TO A POINT FOR A
PLACE OF BEGINNING; THENCE CONTINUING SOUTH 10 DEGREES 38 MINUTES 35 SECONDS
WEST, 353.17 FEET; THENCE
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SOUTH 79 DEGREES 21 MINUTES 25 SECONDS EAST, 0.40 FEET; THENCE NORTH 10 DEGREES
38 MINUTES 35 SECONDS EAST, 353.17 FEET; THENCE NORTH 79 DEGREES 21 MINUTES 25
SECONDS WEST, 0.40 FEET TO THE PLACE OF BEGINNING, LYING ABOVE A HORIZONTAL
PLANE OF ELEVATION 628.70 FEET ABOVE U.S.G.S. DATUM AND LYING BELOW A HORIZONTAL
PLANE OF ELEVATION 633.75 FEET ABOVE U.S.G.S. DATUM, IN COOK COUNTY, ILLINOIS.
PARCEL 4:
EASEMENT IN FAVOR OF THE LEASEHOLD ESTATE DESCRIBED AS PARCEL 1 HEREIN, AS
CREATED IN SECOND AMENDMENT TO LEASE RECORDED FEBRUARY 9, 1989 AS DOCUMENT
89063670, MADE BY AND BETWEEN LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST
AGREEMENT DATED FEBRUARY 1, 1988 AND KNOWN AS TRUST NUMBER 113000,
SIMON-ROSEMONT DEVELOPERS, AN ILLINOIS LIMITED PARTNERSHIP, AND MARRIOTT
CORPORATION, A DELAWARE CORPORATION, FOR AN 8 INCH BELOW-GRADE EASEMENT FOR
FOUNDATIONS OF THE GARDEN WALL, OVER THE FOLLOWING LEGAL DESCRIPTION:
THAT PART OF THE WEST 1/2 OF SECTION 3, TOWNSHIP 40 NORTH, RANGE 12, EAST OF THE
THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE SOUTH LINE OF THE NORTHWEST 1/4 OF SAID
SECTION 3 WITH THE EASTERLY LINE OF RIVER ROAD AS WIDENED BY CONDEMNATION IN
CASE NO. 59C16022 AND SHOWN ON PLAT RECORDED AS DOCUMENT NUMBER 19251267; THENCE
NORTH 05 DEGREES 11 MINUTES 36 SECONDS EAST ALONG SAID EASTERLY LINE OF RIVER
ROAD AS WIDENED, 395.35 FEET; THENCE NORTH 79 DEGREES 26 MINUTES 12 SECONDS
WEST, 0.91 FEET TO THE EASTERLY LINE OF RIVER ROAD, BEING A LINE 33.00 FEET, AS
MEASURED AT RIGHT ANGLES, EASTERLY OF AND PARALLEL WITH THE CENTER LINE OF SAID
ROAD; THENCE NORTH 10 DEGREES 38 MINUTES 35 SECONDS EAST ALONG SAID EASTERLY
LINE OF RIVER ROAD, 69.50 FEET; THENCE NORTH 68 DEGREES 08 MINUTES 35 SECONDS
EAST, 56.73 FEET; THENCE NORTH 85 DEGREES 38 MINUTES 35 SECONDS EAST, 47.90 FEET
TO A POINT OF CURVATURE; THENCE NORTHEASTERLY ALONG A CURVED LINE CONVEX
SOUTHEASTERLY, HAVING A RADIUS OF 300.00 FEET AND BEING TANGENT TO SAID LAST
DESCRIBED LINE AT SAID LAST DESCRIBED POINT, AN ARC DISTANCE OF 113.14 FEET TO A
POINT OF TANGENCY (THE CHORD OF SAID ARC BEARS NORTH 74 DEGREES 50 MINUTES 21
SECONDS EAST, 112.47 FEET) THENCE NORTH 64 DEGREES 02 MINUTES 07 SECONDS EAST
ALONG A LINE TANGENT TO SAID LAST DESCRIBED CURVED LINE AT SAID LAST DESCRIBED
POINT, 7.87 FEET; THENCE SOUTH 34 DEGREES 21 MINUTES 25 SECONDS EAST, 169.84
FEET; THENCE SOUTH 10 DEGREES 38 MINUTES 35 SECONDS WEST, 3.41 FEET; THENCE
SOUTH 79 DEGREES 21 MINUTES 25 SECONDS EAST, 25.00 FEET; THENCE SOUTH 10 DEGREES
38 MINUTES 35 SECONDS WEST, 3.50 FEET; THENCE SOUTH 79 DEGREES 21 MINUTES 25
SECONDS EAST, 24.58 FEET; THENCE SOUTH 10 DEGREES 38 MINUTES 35 SECONDS WEST,
14.00 FEET; THENCE SOUTH 79 DEGREES 21 MINUTES 25 SECONDS EAST, 15.00 FEET;
THENCE SOUTH 10 DEGREES 38 MINUTES 35 SECONDS WEST, 8.50 FEET TO A POINT FOR A
PLACE OF BEGINNING; THENCE CONTINUING SOUTH 10 DEGREES 38 MINUTES 35 SECONDS
WEST, 353.17 FEET; THENCE SOUTH 79 DEGREES 21 MINUTES 25 SECONDS EAST, 0.67
FEET; THENCE NORTH 10 DEGREES 38 MINUTES 35 SECONDS EAST, 353.17 FEET; THENCE
NORTH 79 DEGREES 21 MINUTES 25 SECONDS WEST 0.67 FEET TO THE PLACE OF BEGINNING,
LYING BELOW A HORIZONTAL PLANE OF ELEVATION 628.70 FEET ABOVE U.S.G.S. DATUM, IN
COOK COUNTY, ILLINOIS.
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PARCEL 5:
NON-EXCLUSIVE EASEMENTS IN FAVOR OF THE LEASEHOLD ESTATE DESCRIBED AS PARCEL 1
HEREIN AS SHOWN ON PLAT OF RIVERWAY SUBDIVISION - PHASE I RECORDED JUNE 3, 1998
AS DOCUMENT 88241321 AND FILED JUNE 3, 1998 AS DOCUMENT LR 3713139.
PARCEL 6:
NON-EXCLUSIVE EASEMENTS IN FAVOR OF THE LEASEHOLD ESTATE DESCRIBED AS PARCEL 1
HEREIN AS SHOWN ON PLAT OF RIVERWAY SUBDIVISION - PHASE II RECORDED MARCH 11,
1992 AS DOCUMENT 92157888.
COMMON ADDRESS
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6155 North River Road
Rosemont, Illinois
PIN
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12-03-103-015
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EXHIBIT B
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DEBTOR: MUTUAL BENEFIT CHICAGO MARRIOTT SUITE HOTEL PARTNERS, L.P.,
a Rhode Island limited partnership
SECURED PARTY: NATIONAL BANK OF CANADA
DESCRIPTION OF COLLATERAL
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Subject to those matters listed on Exhibit C, all of the following property
now or at any time hereafter owned by Debtor or in which the Debtor may now or
at anytime hereafter have any interest or rights, together with all of Debtor's
right, title and interest therein:
1. All fixtures and personal property now or hereafter owned by Debtor and
attached to or contained in and used or useful in connection with the Premises
or any of the improvements now or hereafter located thereon, including, without
limitation, any and all air conditioners, building materials, antennae,
appliances, apparatus, awnings, basins, bathtubs, bidets, boilers, bookcases,
cabinets, carpets, coolers, curtains, dehumidifiers, disposals, doors, drapes,
dryers, ducts, dynamos, elevators, engines, equipment, escalators, fans,
fittings, floor coverings, furnaces, furnishings, furniture, hardware, heaters,
humidifiers, incinerators, inventory, kitchen equipment and utensils, lighting,
machinery, motors, ovens, pipes, plumbing, pumps, radiators, ranges,
recreational facilities, refrigerators, screens, security systems, shades,
shelving, sinks, sound systems, sprinklers, stokers, stoves, televisions,
toilets, ventilators, wall coverings, washers, windows, window coverings,
wiring, all renewals or replacements thereof or articles in substitution
therefor and all property owned by Debtor and now or hereafter used for similar
purposes in or on the "Premises" (as described on Exhibit A hereto);
2. Articles or parts now or hereafter affixed to the property described
in Paragraph 1 of this Exhibit or used in connection with such property, any and
all replacements for such property and all other property of a similar type or
used for similar purposes now or hereafter in or on the Premises or any of the
improvements now or hereafter located thereon;
3. Debtor's right, title, and interest in all personal property used or
to be used in connection with the operation of the Premises or the conduct of
business thereon, including, without limitation, business equipment and
inventories located on the Premises or elsewhere, together with files, books of
account and other records, wherever located;
B-1
4. Debtor's right, title and interest in and to any and all contracts now
or hereafter relating to the Premises executed by any architects, engineers or
contractors, including all amendments, supplements and revisions thereof,
together with all Debtor's rights and remedies thereunder and the benefit of all
covenants and warranties thereon, and also together with all drawings, designs,
estimates, layouts, surveys, plats, plans, specifications and test results
prepared by any architect, engineer or contractor, including any amendments,
supplements and revisions thereof and the right to use and enjoy the same, as
well as all building permits, environmental permits, approvals and licenses and
other governmental or administrative permits, licenses, agreements and rights
relating to construction on the Premises;
5. Debtor's right, title and interest in and to any and all contracts and
contract rights now or hereafter relating to the operation of the Premises or
the conduct of business thereon, including, without limitation, all management
and other service contracts, the books and records and the right to appropriate
and use any and all trade names used or to be used in connection with such
business;
6. Debtor's right, title and interest in the rents, issues, deposits
(including security deposits and utility deposits) and profits in connection
with all leases, contracts and other agreements made or agreed to by any person
or entity (including, without limitation, Debtor and Secured Party under the
powers granted by the Security Agreement made between Debtor and Secured Party
and the other Loan Documents therein described) with any person or entity
pertaining to all or any part of the Premises, whether such agreements have been
heretofore or are hereafter made;
7. Debtor's right, title and interest in all sale contracts, chattel
paper, documents, drafts, letters of credit, notes, service marks, trade names,
trademarks, unearned premiums on insurance policies, earnest money deposits,
proceeds of sale contracts, accounts, accounts receivable, instruments,
insurance policies and general intangibles relating to the Premises;
8. All rights in and proceeds from all fire and hazard, loss-of-income
and other non-liability insurance policies now or hereafter covering
improvements now or hereafter located on the Premises or described in the
Security Agreement between Debtor and Secured Party or in the Amended and
Restated Leasehold Mortgage between Debtor and Secured Party, the use or
occupancy thereof or the business conducted thereon;
9. All awards or payments, including interest thereon, that may be made
with respect to the Premises, whether from the right of the exercise of eminent
domain (including any transfer made in lieu of the exercise of said right) or
for any other injury to or decrease in volume of the Premises; and
B-2
10. All proceeds from the sale, transfer or pledge of any or all of the
foregoing property.
B-3
EXHIBIT C
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LEASED EQUIPMENT
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DEBTOR: MUTUAL BENEFIT CHICAGO MARRIOTT SUITE HOTEL PARTNERS, L.P.,
a Rhode Island limited partnership
SECURED PARTY: NATIONAL BANK OF CANADA
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Total Remaining
Lessor Description Term Payments
=========================================================================
Eastman Kodak Copier 6/93 - 5/98 $25,200.00
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GE Capital Two (2) Vans 12/95 - 11/99 $45,475.60
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GE Capital Two (2) Vans 9/94 - 8/98 $23,689.75
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GE Capital Two (2) Vans 10/92 - 9/96 $ 1,869.40
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GE Capital One (1) Van 11/92 - 10/96 $ 2,164.89
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GE Capital One (1) Van 10/96 - 9/00 $17,294.40
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GE Capital One (1) Van 10/96 - 9/00 $18,561.60
=========================================================================
C-1