Exhibit 10.5
AMENDED AND RESTATED LEASEHOLD MORTGAGE
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THIS AMENDED AND RESTATED LEASEHOLD MORTGAGE ("Mortgage"), dated as of
September 24, 1996, from MUTUAL BENEFIT CHICAGO MARRIOTT SUITE HOTEL PARTNERS,
L.P., a Rhode Island limited partnership, having an address at Host Marriott
Corporation, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Borrower") to
NATIONAL BANK OF CANADA, having an address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ ("Lender").
W I T N E S S E T H:
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A. Reference is made to that certain Marriott Hotel Ground Lease dated as
of June 16, 1986 by and between Marriott Corporation, as lessee,and Simon-
Rosemont Developers (together with any successors from time to time,
"Landlord"), as lessor (a full description of which Marriott Hotel Ground Lease
and all amendments thereto is shown on Exhibit E attached hereto; the "Ground
Lease"), relating to a parcel of real property more particularly described in
Exhibit A attached hereto and made a part hereof (the "Land") and all buildings
and improvements presently located thereon. Marriott Corporation assigned all
of its right, title and interest as lessee under the Ground Lease to Borrower in
that certain Notice of Assignment of Lease dated as of June 12, 1989 and
recorded on June 13, 1989 as Document No. 89266492.
This Mortgage was prepared by
and after recording return to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
B. Borrower and Lender have previously entered into that certain Loan
Agreement dated as of June 12, 1989 (the "Original Loan Agreement") whereby
Lender made a Loan (the "Loan") to Borrower as evidenced by that certain
Promissory Note Secured by Mortgage dated as of June 12, 1989, bearing such
interest as stated in such Promissory Note Secured by Mortgage and having a
maturity date of June 12, 1996 (the "Original Note").
C. The Original Note was secured in part by, among other things, that
certain Lease hold Mortgage, Security Agreement and Assignment of Rents granted
by Borrower to Lender and dated as of June 12, 1989 and recorded June 13, 1989
in the Recorder's Office for ▇▇▇▇ County, Illinois as Document No. 89266493 (the
"Original Mortgage"), which Original Mortgage encumbered the Land and certain
related rights and interests of Borrower.
D. In accordance with that certain Amended and Restated Loan Agreement
(the "Loan Agreement") of even date herewith between Borrower and Lender,
Borrower has issued to Lender 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) 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").
E. Borrower and Lender desire to amend and restate the Original Mortgage
in its entirety in order to conform to the terms and conditions set forth in the
Loan Agreement.
F. This Mortgage amends and restates completely the Original Mortgage.
G. All capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated into the operative provisions of this instrument by reference and
for other good and valuable consideration, the receipt and adequacy of which are
hereby conclusively acknowledged, Borrower hereby represents and warrants to and
covenants and agrees with Lender as follows:
In order to secure the payment of the principal indebtedness under the Note
and interest (including, without limitation, Base Rate Interest, Accrual Rate
Interest and Additional Accrued Interest) and premiums on the principal
indebtedness under the Note (and all replacements, renewals and extensions
thereof, in whole or in part) according to its tenor, and to secure the payment
of all other sums (including, without limitation, Lender's Expenses, the
Restructuring Fee and any compensation required to be paid to Lender under
Section 2.12 of the Note) which may be at any time due under the Note, this
Mortgage or any of the other Loan Documents (as that term is defined in Exhibit
B attached hereto and made a part hereof; the terms and provisions of the Loan
Documents are hereby incorporated herein by this reference as fully and with the
same
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effect as if set forth herein at length) (collectively, such sums are sometimes
referred to herein as "Indebtedness"); and to secure the performance and
observance of all the covenants, agreements and provisions contained in this
Mortgage, the Note and the other Loan Documents; and to charge the properties,
interests and rights hereinafter described with such payment, performance and
observance, and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Borrower DOES HEREBY MORTGAGE AND CONVEY unto
Lender, its successors and assigns forever, the following described property,
rights and interests (which are referred to herein as the "Premises"), all of
which property, rights and interests are hereby pledged primarily and on a
parity with Borrower's interest in the Land and not secondarily:
Borrower's leasehold interest in the Land under the Ground Lease;
TOGETHER WITH all improvements of every nature whatsoever now or hereafter
situated on the Land, and all fixtures and personal property of every nature
whatsoever now or hereafter owned by Borrower and on, or used or intended to be
used in connection with the Land or the improvements, or in connection with any
construction thereon, including all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to any of the foregoing
and all of the right, title and interest of Borrower in and to any such personal
property or fixtures together with the benefit of any deposits or payments now
or hereafter made on such personal property or fixtures by Borrower or on its
behalf (the "Improvements");
TOGETHER WITH all modifications, extensions and renewals of the Ground
Lease, all credits, deposits, options, privileges and rights of Borrower as
tenant thereunder, including, without limitation, the right, if any, to renew or
extend the Ground Lease for a succeeding term or terms;
TOGETHER WITH all easements, rights of way, gores of land, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and powers,
and all estates, rights, titles, interests, privileges, liberties, tenements,
hereditaments and appurtenances whatsoever, in any way now or hereafter
belonging, relating or appertaining to the Land, and the reversions, remainders,
rents, issues and profits thereof, and all the estate, right, title, interest,
property, possession, claim and demand whatsoever, at law as well as in equity,
of Borrower of, in and to the same;
TOGETHER WITH all income from the Premises to be applied against the
Indebtedness; provided, however, that Borrower, so long as no Event of Default
has occurred hereunder and is continuing, may collect income as it becomes due,
pursuant to the terms of the Loan Agreement;
TOGETHER WITH all interest of Borrower in all leases now or hereafter on
the Premises, whether written or oral (the "Leases"), together with all security
therefor and all monies payable thereunder, subject, however, to the conditional
permission hereinabove given to Borrower to collect the rentals under any such
Lease;
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TOGETHER WITH Borrower's right, title and interest in all fixtures and
articles of personal property now or hereafter forming a part of or used in
connection with the Land or the Improvements, including, but without limitation,
any and all accounts, accounts receivable, air conditioners, antennae,
appliances, apparatus, awnings, basins, bathtubs, bidets, boilers, bookcases,
building materials, cabinets, carpets, chattel paper, contract rights, coolers,
curtains, dehumidifiers, disposals, documents, doors, drapes, drafts, dryers,
ducts, dynamos, elevators, engines, equipment, escalators, fans, fittings, floor
coverings, furnaces, furnishings, furniture, general intangibles, hardware,
heaters, humidifiers, incinerators, instruments, insurance policies, insurance
and condemnation awards and proceeds, inventory, letters of credit, lighting,
machinery, motors, notes, ovens, pipes, plans and specifications, plumbing,
pumps, radiators, ranges, recreational facilities, refrigerators, rents, issues
and profits, screens, security systems, service marks, shades, shelving, sinks,
sound systems, sprinklers, stokers, stoves, televisions, toilets, trade names,
trademarks, unearned premiums on insurance policies, ventilators, wall
coverings, washers, windows, window coverings, wiring, and all renewals or
replacements thereof or articles in substitution therefor, whether or not the
same are or shall be attached to the Land or the Improvements in any manner; it
being mutually agreed that all of the aforesaid property owned by Borrower and
placed on the Land or the Improvements, so far as permitted by law, shall be
deemed to be fixtures, a part of the realty, and security for the Indebtedness;
notwithstanding the agreement hereinabove expressed that certain articles of
property form a part of the realty covered by this Mortgage and be appropriated
to its use and deemed to be realty, to the extent that such agreement and
declaration may not be effective and that any of said articles may constitute
goods (as said term is used in the Uniform Commercial Code), this instrument
shall constitute a security agreement, creating a security interest in such
goods, as collateral, in Lender as a secured party and Borrower as Debtor, all
in accordance with said Uniform Commercial Code as more particularly set forth
in Paragraph 15 hereof; and
TOGETHER WITH all proceeds of the foregoing, including, without limitation,
all judgments, awards of damages and settlements hereafter made resulting from
condemnation proceeds or the taking of the Premises or any portion thereof under
the power of eminent domain, any proceeds of any policies of insurance,
maintained with respect to the Premises or proceeds of any sale, option or
contract to sell the Premises or any portion thereof; and Borrower hereby
appoints Lender its attorney-in-fact and authorizes Lender, at its option, on
behalf of Borrower, or the successors or assigns of Borrower, to adjust,
compromise, claim, collect and receive such proceeds, to give proper
acquittances therefor and, after deducting expenses of collection, to apply the
net proceeds as a credit upon any portion, as selected by Lender, of the
Indebtedness, notwithstanding the fact that the same may not then be due or that
the Indebtedness is otherwise adequately secured.
TO HAVE AND TO HOLD the Premises, unto Lender, its successors and assigns,
forever, for the purposes and upon the uses herein set forth together with all
right to possession of the Premises after the occurrence of any Event of Default
as hereinafter defined; Borrower hereby RELEASING AND WAIVING all rights under
and by virtue of the homestead exemption laws of the State of Illinois.
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BORROWER COVENANTS that it holds a leasehold interest in the Land, that the
same is unencumbered (except for the title exceptions referenced in Exhibit C
hereto), and that it has good right, full power and lawful authority to convey
and mortgage its leasehold interest in the same, and that it will warrant and
forever defend its interest in the Land and the quiet and peaceful possession of
the same against the lawful claims of all persons whomsoever.
PROVIDED, NEVERTHELESS, that if Borrower shall pay in full when due the
Indebtedness and shall timely perform and observe all of the provisions herein
and in the Note and the other Loan Documents provided to be performed and
observed by Borrower, then the lien of this Mortgage and the interest of Lender
in the Premises shall be released at the cost of Borrower but shall otherwise
remain in full force.
BORROWER FURTHER REPRESENTS, WARRANTS, COVENANTS AND AGREES AS FOLLOWS:
1. Ground Lease.
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1.1 Leasehold Estate.
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1.1.1 That the Ground Lease is in full force and effect and
unmodified;
1.1.2 That all rents (including additional rents and other
charges) reserved in said Ground Lease have been paid to the extent
they were payable prior to the date hereof;
1.1.3 That Lender shall have quiet and peaceful possession of
the Premises following Lender's foreclosure of its security interests
herein, and Borrower further agrees to defend the leasehold estate
created under the Ground Lease for so long as any of the Indebtedness
remains outstanding, against all and every person or persons lawfully
claiming, or who may claim the same or any part thereof, subject to
the payment of the rents in the Ground Lease reserved and subject to
the performance and observance of all of the terms, covenants,
conditions and warranties thereof;
1.1.4 That there is no uncured default on the part of the
Borrower, as lessee, or Landlord, as lessor, under the Ground Lease or
in the performance of any of the terms, covenants, conditions or
warranties thereof on the part of the lessee to be observed and
performed. Further, no state of facts exist under the Ground Lease
which, with the lapse of time or giving of notice, or both, would
constitute a default thereunder.
1.2 Payment of Ground Lease Expenses. Borrower shall pay or cause to
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be paid all rents, additional rents, taxes, assessments, water rates, sewer
rents, and other
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charges and impositions payable by the lessee under the Ground Lease for
which provision has not otherwise been made in this Mortgage, when and as
often as the same shall become due and payable. Borrower in every case will
deliver, or cause to be delivered to Lender, a proper receipt for any such
item so paid, within ten (10) days after Lender's request for a copy of any
such receipt.
1.3 Borrower's Covenants with Respect to Ground Lease.
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1.3.1 Borrower at all times promptly and faithfully shall keep
and perform, or cause to be kept and performed, all the covenants and
conditions contained in the Ground Lease by the lessee under the
Ground Lease to be kept and performed and in all material respects
conform to and comply with the terms and conditions of the Ground
Lease, and Borrower further covenants that it shall not do or permit
anything which will impair or tend to impair the security of this
Mortgage or will be grounds for declaring a forfeiture of the Ground
Lease, and upon any such failure aforesaid, Borrower shall be subject
to all of the rights and remedies granted Lender in this Mortgage.
1.3.2 Without the prior written consent of Lender, which consent
shall not be unreasonably withheld, Borrower shall not modify, extend
or in any way alter the terms of the Ground Lease or cancel or
surrender the Ground Lease, or waive, execute, condone or in any way
release or discharge the lessor thereunder of or from the obligations,
covenants, conditions and agreements by said lessor to be done and
performed; and Borrower does expressly release, relinquish and
surrender unto Lender all of its rights, power and authority to
cancel, surrender, amend, modify or alter in any way the terms and
provisions of the Ground Lease and any attempt on the part of Borrower
to exercise any such right without the written approval and consent of
Lender thereto being first had and obtained shall constitute an Event
of Default under the terms hereof and the entire Indebtedness, at the
option of Lender, shall become due and payable forthwith.
1.3.3 Borrower shall not subordinate or consent to the
subordination of the Ground Lease to any mortgage, security deed, deed
of trust, lease or other interest in all or any part of the Premises
without the written consent of Lender.
1.3.4 Borrower shall give immediate notice to Lender of any
default under the Ground Lease or of the receipt by it of any notice
of default or of the exercise of any remedies relating to defaults or
breach of the Ground Lease from the Landlord, and shall deliver copies
of any and all such notices to Lender within five (5) days after the
receipt thereof. Borrower also shall furnish Lender with any and all
information that Lender may reasonably request concerning the Ground
Lease including, but not limited to, Borrower's or Landlord's
performance under the Ground Lease that is reasonably available to
Borrower.
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1.3.5 Lender shall be entitled to take all actions necessary or
desirable to cure any default by Borrower under the Ground Lease
within the time provided by the terms of the Ground Lease for such
purpose. Upon receipt by Lender from the Landlord of any written
notice of default by Borrower under the Ground Lease, (i) Lender may
rely thereon and take any action to cure such default even though the
existence of such default or the nature thereof is questioned or
denied by Borrower or by any party on behalf of Borrower, and (ii)
Borrower hereby expressly grants to Lender, and agrees that Lender
shall have, the absolute and immediate right to enter in and upon the
Premises or any part thereof to such extent and as often as Lender, in
its sole discretion, deems necessary or desirable in order to prevent
or to cure any such default by Borrower. Lender may pay and expend
such sums of money as Lender in its sole discretion deems necessary
for any such purpose, and Borrower hereby agrees to pay to Lender,
immediately and without demand, all such sums so paid and expended by
Lender, together with interest thereon from the date of such payment
at the Default Rate. All sums so paid and expended by Lender and the
interest thereon shall be added to and be secured by the lien of this
Mortgage.
1.3.6 Borrower shall notify Lender of any acquisition of the fee
title to the Land by Borrower. If Borrower obtains any further
interest in the property covered by the Ground Lease, including such
fee title, such interest shall be covered by this Mortgage and
Borrower shall execute and deliver to Lender such additional documents
as are reasonably necessary to perfect Lender's interest therein.
1.3.7 No release or forbearance of any of Borrower's obligations
under the Ground Lease, pursuant to the Ground Lease or otherwise,
shall release Borrower from any obligations under this Mortgage,
including, without limitation, release from the obligations with
respect to the payment of rent as provided for in the Ground Lease and
the performance of all of the terms, provisions, covenants, conditions
and agreements contained in the Ground Lease, to be kept, performed
and complied with by Borrower as provided therein.
1.3.8 The provisions hereof shall be deemed to be obligations of
Borrower in addition to Borrower's obligations under the Ground Lease;
provided, however, that nothing in this Mortgage shall be construed as
requiring the taking of or the committing to take any action by
Borrower or Lender that would cause a default under the Ground Lease.
The inclusion in this Mortgage of any covenants and agreements
relating to similar matters under which Borrower is obligated under
the Ground Lease shall not restrict or limit Borrower's duties and
obligations to keep and perform promptly all of its covenants,
agreements and obligations under the Ground Lease.
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1.3.9 Notwithstanding any of the rights of Lender respecting the
Ground Lease as contained in this Paragraph 1 or otherwise in this
Mortgage, Lender shall have no responsibility or obligation under the
Ground Lease as a consequence of the acts or obligations of Borrower
thereto or otherwise.
1.4 Merger. So long as any of the Indebtedness shall remain unpaid,
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unless Lender shall consent otherwise in writing, the fee title to the Land
and the leasehold estate under the Ground Lease shall not merge but shall
always be kept separate and distinct, notwithstanding the union of said
estates either in the lessor or in the lessee, or in a third party, by
purchase or otherwise; and Borrower covenants and agrees that, if it shall
acquire the fee title, or any other estate, title or interest in the
Premises covered by the Ground Lease, such estate shall be considered as
mortgaged, assigned or conveyed to Lender and the lien hereof spread to
cover such estate with the same force and effect as though specifically
herein mortgaged, assigned or conveyed and spread. The provisions of this
paragraph shall not apply if the holder of the Note acquires the fee of the
Premises unless Lender shall so elect.
2. Payment of Indebtedness and Performance of Covenants. Borrower shall
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(a) pay the Indebtedness when due; and (b) punctually perform and observe all of
the requirements of the Note, this Mortgage and the other Loan Documents.
Borrower shall have the privilege of making prepayments on the principal of the
Note (in addition to the required payments thereunder) in accordance with the
terms and conditions set forth in the Note, but not otherwise.
3. Maintenance, Repair, Compliance with Law, Use, etc. Borrower shall
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(a) keep the Premises in good condition and free from waste; (b) pay all
operating costs of the Premises; (c) complete, within a reasonable time, any
Improvements at any time in the process of erection upon the Premises; (d)
comply with all requirements of law relating to the Premises or any part thereof
by any governmental authority; (e) refrain from any action and correct any
condition which would increase the risk of fire or other hazards to the
Improvements; (f) comply with any restrictions of record with respect to the
Premises and the use thereof; and observe and comply with any conditions
necessary to preserve and extend any and all rights, licenses, permits
(including, without limitation, zoning variances, special exceptions and
nonconforming uses), privileges, franchises and concessions that are applicable
to the Premises or its use and occupancy; and (g) cause the Premises to be
managed in a competent and professional manner. Without the prior written
consent of Lender, Borrower shall not cause, suffer or permit any (i) material
alterations of the Premises except as required by law or except as permitted or
required to be made by the terms of any Leases approved by Lender; (ii) change
in the intended use or occupancy of the Premises for which the Improvements were
constructed; (iii) change in the identity of the person or firm responsible for
managing the Premises (other than as may be effected by the Manager (as defined
in the Loan Agreement) without the requirement of obtaining the consent of
Borrower pursuant to the terms of the Management Agreement (as defined in the
Loan Agreement)); (iv) zoning reclassification with respect to the Premises; (v)
unlawful use of, or nuisance to exist upon, the Premises; or (vi) granting of
any easements, licenses, covenants,
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conditions or declarations of use against the Premises, other than use
restrictions contained or provided for in Leases approved by Lender to the
extent such approval is required pursuant to the Loan Documents.
4. Liens.
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4.1 Prohibition. Subject to the provisions of Paragraph 5 hereof,
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Borrower shall not create or suffer or permit any encumbrance to attach to
or be filed against the Premises or any part thereof, excepting only (i)
the lien of real estate taxes and assessments not due, (ii) any liens and
encumbrances of Lender, and (iii) any other lien or encumbrance permitted
by the terms hereof.
4.2 Contest of Mechanics' Liens Claims. Notwithstanding the
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foregoing prohibition against encumbrances, Borrower may in good faith and
with reasonable diligence contest or cause to be contested the validity or
amount of any mechanics' lien and defer payment and discharge thereof
during the pendency of such contest, provided that:
4.2.1 Such contest shall not subject the Premises or any part
thereof, or any interest therein, to sale or forfeiture to satisfy
such mechanics' lien;
4.2.2 Within ten (10) days after Borrower has been notified of
the filing of such mechanics' lien, Borrower shall have notified
Lender in writing of Borrower's intention to contest or cause to be
contested such mechanics' lien; and
4.2.3 Borrower shall have either obtained or cause to be
obtained a title insurance endorsement over such mechanics' lien
insuring Lender against loss by reason of the mechanics' lien or
obtained or caused to be obtained a surety bond (with no rights of
subrogation with respect thereto) that is sufficient to release such
mechanics' lien and that is otherwise acceptable to Lender.
5. Taxes.
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5.1 Payment. Borrower shall pay when due, all taxes, assessments and
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charges of every kind levied or assessed against the Premises or any
interest therein or any obligation or instrument secured hereby, and all
installments thereof (all herein generally called "Taxes"), whether or not
assessed against Borrower, and Borrower shall furnish to Lender receipts
therefor upon Lender's request for copies of the same; and shall discharge
any claim or lien relating to taxes upon the Premises, other than matters
expressly permitted by the terms hereof.
5.2 Contest. Notwithstanding the provisions of Paragraph 5.1, so
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long as no Event of Default has occurred, Borrower may contest such Taxes
provided Borrower gives Lender written notice before the commencement of
such contest, diligently pursues such
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contest, provides for adequate reserves for payment of such contested
Taxes, pays all amounts customarily or required by law to be paid in
connection with such contest and provides Lender with such security as
Lender deems necessary or sufficient to assure Lender that Lender will not
suffer any loss or damage whatsoever by reason of such contest and that the
lien of this Mortgage will not be impaired.
6. Change in Tax Laws. If, by the laws of the United States of America,
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or of any state or municipality having jurisdiction over Lender, Borrower or the
Premises, any tax is imposed or becomes due in respect of the issuance of the
Note or the recording of this Mortgage, Borrower shall pay such tax in the
manner required by such law. In the event that any law, statute, rule,
regulation, order or court decree has the effect of deducting from the value of
the Premises for the purpose of taxation any lien thereon, or imposing upon
Lender the payment of the whole or any part of the taxes required to be paid by
Borrower, or changing in any way the laws relating to the taxation of mortgages
or debts secured by mortgages or the interest of Lender in the Premises, or the
manner of collection of taxes, so as to affect this Mortgage, the Indebtedness
or Lender, then Borrower, upon demand by Lender, shall pay such taxes, or
reimburse Lender therefor on demand, unless Lender determines, in Lender's
exclusive judgment, that such payment or reimbursement by Borrower is unlawful;
in which event the Indebtedness shall be due within thirty (30) days after
written demand by Lender to Borrower. Nothing in this Paragraph 6 shall require
Borrower to pay any income, franchise or excise tax imposed upon Lender,
excepting only such which may be levied against the income of Lender as a
complete or partial substitute for taxes required to be paid by Borrower
pursuant hereto.
7. Insurance Coverage. Borrower will insure or cause to be insured the
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Premises against such perils and hazards, and in such amounts and with such
limits, as Lender may reasonably require from time to time, and in any event,
will continuously maintain the following described policies of insurance (the
"Insurance Policies"):
7.1 Casualty insurance against loss and damage by all risks of
physical loss or damage, including fire, windstorm, flood (to the extent
available through the National Flood Insurance Program), earthquake (to the
extent available and as described in Paragraph 7.5(iii) below) and other
risks covered by the so-called extended coverage endorsement in amounts not
less than ninety percent (90%) of the full insurable replacement value of
all Improvements, fixtures and equipment from time to time on the Premises
and bearing a replacement cost agreed amount endorsement;
7.2 Comprehensive public liability insurance against death, bodily
injury and property damage in an amount not less than Forty Million and
00/100 Dollars ($40,000,000.00) for bodily injury per person per occurrence
and not less than Three Million and 00/100 Dollars ($3,000,000.00) for
property damage liability per occurrence;
7.3 [INTENTIONALLY LEFT BLANK];
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7.4 Rental or business interruption insurance in amounts not less
than twelve (12) months anticipated gross rental income;
7.5 Such other insurance in such amounts as Lender shall reasonably
require from time to time including, without limitation, (i) flood
insurance (including surface waters) if the Federal Insurance
Administration (FIA) has designated the Premises to be in a special flood
hazard area and has designated the community in which the Premises are
located eligible for sale of subsidized insurance through the National
Flood Insurance Program, first and second layer flood insurance when and as
available; (ii) builder's risk insurance; (iii) insurance against
earthquakes (including subsidence) to the extent the same is commonly
available from recognized insurance companies and prudent owners of
premises similarly situated or procuring such insurance (it being
understood that the company or companies providing such coverage for the
Premises must also be providing such coverage for other hotels in the
"Marriott" system); and (iv) if available at commercially reasonably terms,
insurance against risks of war and nuclear explosion, if such occurrences
are commonly insured against by prudent owners of premises similarly
situated, due regard being given to the site and type of the building, and
the construction, location, utilities and occupancy or any replacements or
substitutions therefor. In addition, upon the occurrence of any material
change in the use, operation or value of the Premises, or in the
availability of insurance in the area in which the Premises is located,
Borrower shall, within thirty (30) days after demand by Lender, obtain such
additional amounts and/or such other types of insurance as Lender may
reasonably require.
8. Insurance Policies. All Insurance Policies shall be in form,
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companies and amounts reasonably satisfactory to Lender; provided, however, that
all Insurance Policies shall be deemed reasonably satisfactory to Lender if such
Insurance Policies contain such provisions and are in such form and are issued
by such insurance companies licensed to do business in the State of Illinois,
with a rating of "B" or better as established by Best's Rating (provided,
further, that if any of such Insurance Policies is issued by a company with a
"B" rating as established by Best's Rating, such company must also be providing
similar coverage for other hotels in the "Marriott" system). All Insurance
Policies shall (i) include, when available, non-contributing Lender endorsements
in favor of and with loss payable to Lender, (ii) include standard waiver of
subrogation endorsements, (iii) provide that the coverage shall not be
terminated or materially modified without thirty (30) days' advance written
notice to Lender, (iv) provide that no claims shall be paid thereunder without
ten (10) days' advance written notice to Lender, and (v) provide that no act or
thing done by Lender shall invalidate the policy against Lender. Borrower will
deliver all certificates of insurance to Lender, and will deliver renewal or
replacement certificates of insurance at least fifteen (15) days prior to the
date of expiration of any policy. The requirements of the preceding sentence
shall apply to any separate policies of insurance taken out by Borrower
concurrent in form or contributing in the event of loss with the Insurance
Policies. Insurance Policies maintained by tenants under the Leases, if in
conformity with the requirements of this Mortgage and if reasonably approved by
Lender, may be presented to Lender in satisfaction of Borrower's obligation to
provide the insurance coverages provided by those Insurance Policies.
11
9. [INTENTIONALLY LEFT BLANK]
10. Proceeds of Insurance.
---------------------
10.1 In the event of damage or destruction to the Premises or any
portion thereof, whether insured or uninsured, Borrower promptly shall give
written notice thereof to Lender and promptly shall commence and diligently
shall continue to perform repair, restoration and rebuilding of the portion
of the Premises so damaged or destroyed (hereinafter referred to as the
"Work") to restore the Premises in full compliance with all Legal
Requirements (as defined in the Loan Agreement) and so that the Premises
shall be at least equal in value and quality and general utility as it was
before the damage or destruction, and if the Work to be done is structural
or if the cost of the Work as estimated by Lender shall exceed the sum of
$500,000 (hereinafter referred to as "Major Work"), then Borrower shall,
prior to the commencement of the Work, furnish or cause to be furnished to
Lender: (i) complete plans and specifications for the Work (approved by all
governmental authorities whose approval is required), for Lender's
approval, which approval shall not be unreasonably withheld; which plans
and specifications shall bear the signed approval thereof by an architect
satisfactory to Lender (hereinafter referred to as the "Architect") and
shall be accompanied by the Architect's signed estimate, bearing the
Architect's seal, of the entire cost of completing the Work; (ii) certified
or photostatic copies of all permits and approvals required by law in
connection with the commencement and conduct of the Work; and (iii) a
"fixed price" construction contract executed by a contractor approved by
Lender, together with an assignment thereof to Lender consented to by such
contractor, all for Lender's approval, which approval shall not be
unreasonably withheld.
10.2 Borrower shall not commence any of the Work until Borrower shall
have complied with the applicable requirements referred to in Paragraph
10.1 hereof, and after commencing the Work, Borrower shall perform the Work
diligently in a good and workmanlike manner and in good faith in accordance
with the plans and specifications referred to in Paragraph 10.1(i) hereof,
if applicable, and in compliance with all applicable laws.
11. Disbursement of Insurance Proceeds.
----------------------------------
11.1 Each casualty insurance policy shall provide that the proceeds
thereof shall be paid in accordance with the provisions hereof. Borrower
promptly shall deliver to Lender any proceeds that are paid directly to
Borrower by the casualty insurance carrier. All proceeds delivered to
Lender, together with all proceeds paid directly to Lender on account of
damage or destruction to the Premises, less the cost, if any, to Lender of
such recovery and of paying out such proceeds (including, without
limitation, reasonable attorneys' fees and all costs allocable to
inspecting the Work and reviewing the plans and specifications therefor),
in Lender's discretion, upon the written request of Borrower and
12
subject to the provisions of Paragraphs 10 and 11 hereof, may be applied by
Lender to the payment of the cost of the Work referred to in Paragraph 10.1
hereof and shall be paid out from time to time on behalf of Borrower
directly to the contractor, subcontractors, materialmen, laborers,
engineers, architects and other persons rendering services or materials in
connection with the Work, as such Work progresses, except as otherwise
hereinafter provided, but subject to the following conditions, any of which
Lender may waive:
11.1.1 If the Work to be done is structural or if it is Major
Work, as determined by Lender, the Architect shall be in charge of the
Work.
11.1.2 Each request for payment shall be made at least ten days
before the requested date of disbursement and shall be accompanied by
a certificate of the Architect, if the Work is structural or Major
Work, as determined by Lender, or a certificate of an officer of the
General Partner of Borrower, if the Work is not structural or Major
Work, stating that (1) all of the Work completed has been done in a
good and workmanlike manner and in compliance with the approved plans
and specifications, if any be required under Paragraph 10.1(i) hereof,
and in accordance with all provisions of law; (2) the sum requested is
justly required to reimburse Borrower for payments by Borrower to, or
is justly due to, the contractor, subcontractors, materialmen,
laborers, engineers, architects or other persons rendering services or
materials in connection with the Work (giving a brief description of
such services and materials), that the requested sum and such Work
have not been included in any other request for payment made by
Borrower hereunder, and that when added to all sums previously paid
out by Lender, if any, does not exceed the value of the Work done to
the date of such certificate; and (3) the amount of proceeds remaining
in the hands of Lender together with other funds otherwise available
to Borrower, will be sufficient on completion of the Work to pay for
the same in full (giving, in such reasonable detail as Lender may
require, an estimate of the cost of such completion and if such other
funds are required, including a certificate of a financial officer of
Borrower, as to the sources of such funds).
11.1.3 Each request for payment shall be accompanied by waivers
or releases of liens, satisfactory to Lender, covering that part of
the Work previously paid for, if any, and by a search prepared by a
title company or by other evidence satisfactory to Lender, that there
has not been filed with respect to the Premises or any part thereof,
any mechanic's lien, security interest or other lien or instrument for
the retention of title not discharged of record (by bonding or
otherwise) in respect of any part of the Work and that there exist no
encumbrances on or affecting the Premises or any part thereof, other
than those that may have been approved by Lender.
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11.1.4 The Ground Lease shall not have been cancelled, nor
contain any still exercisable right to cancel, due to such damage or
destruction.
11.1.5 There shall be no Event of Default.
11.1.6 Before commencement of any Work and at any time during
such Work, if the estimated cost of such Work, as determined by
Lender, exceeds the amount of proceeds theretofore received by Lender
with respect to such Work which has not been disbursed, the amount of
such excess shall be paid by Borrower to Lender, upon demand, to be
added to the funds to be disbursed for the Work.
11.1.7 Lender may retain ten percent of the requested funds to
be used for the Work until such Work is fully completed.
11.1.8 The request for any payment after the Work has been
completed shall be accompanied by a copy of any certificate or
certificates required by law to render occupancy and operation of the
Premises legal.
11.2 Upon completion of the Work and payment in full therefor, or
upon failure on the part of Borrower promptly to commence or diligently to
continue the Work, or at any time upon request by Borrower, Lender may
apply the amount of any proceeds then or thereafter in the hands of Lender
to the payment of the Indebtedness in which event said amounts shall be
applied in the manner set forth in Section 2.8 of the Note with respect to
"Prepayments" (as such term is defined in the Note), provided, however,
that nothing herein contained shall prevent Lender from applying at any
time the whole or any part of such proceeds to the Indebtedness after the
occurrence of any Event of Default in the order set forth in Paragraph 21
hereunder. Nothing contained in this Paragraph 11 shall be construed to
limit Borrower's right to prepay the Loan in accordance with the terms of
the Loan Agreement using the proceeds to the extent available.
11.3 If the Work to be done is not structural and is not Major Work,
both as determined by Lender, then the proceeds may be paid to Borrower to
be applied toward the cost of the Work, subject to the provisions of
Paragraphs 10 and 11 hereof, other than those applicable to structural or
Major Work.
11.4 If within 120 days after the occurrence of any damage or
destruction to the Premises or any portion thereof requiring structural
work or Major Work in order to restore the Premises, Borrower shall not
have submitted to Lender and received Lender's approval of plans and
specifications for the repair, restoration and rebuilding of the Premises
so damaged or destroyed, as approved by the Architect and by all
governmental authorities whose approval is required, or if, after such
plans and specifications are approved by all such governmental authorities,
other parties and Lender, Borrower shall fail promptly to commence such
repair, restoration and rebuilding, or if thereafter
14
Borrower fails diligently to continue such repair, restoration and
rebuilding or is delinquent in the payment to mechanics, materialmen or
others of the costs incurred in connection with such Work, or, in the case
of any damage or destruction to the Premises or any part thereof requiring
neither structural work nor Major Work in order to restore the Premises, as
determined by Lender, if Borrower shall fail promptly to repair, restore
and rebuild the Premises so damaged or destroyed, or if Borrower in any
other respect fails to comply with its restoration obligations under
Paragraphs 10 and 11, then, in addition to all other rights herein set
forth, and after giving Borrower ten days' written notice of the
nonfulfillment of one or more of the foregoing conditions, Lender, or any
lawfully appointed receiver of the Premises, may, at their respective
options, perform or cause to be performed such repair, restoration and
rebuilding, and may take such other steps as they deem advisable to perform
such Work; provided, however, that Lender shall be permitted to give such
shorter notice (and in such manner) as is reasonably practical in the case
of emergency or other special circumstances. Borrower hereby waives, for
Borrower and all others holding under Borrower, any claim against Lender
and such receiver arising out of anything done by Lender or such receiver
pursuant to this Paragraph 11.4 and Lender may apply all or a portion of
the proceeds (without the need to fulfill any other requirements of this
Paragraph 11) to reimburse Lender, and/or such receiver, for all amounts
expended or incurred by them, respectively, in connection with the
performance of such Work, and any excess costs shall be paid by Borrower to
Lender upon demand.
12. Condemnation and Eminent Domain.
-------------------------------
12.1 If all or any part of the Premises valued at greater than
$500,000 shall be damaged, diminished in value or taken through
condemnation proceedings, or if a consent settlement is entered or a
transfer is made under threat of such proceedings, either temporarily or
permanently, Lender shall be entitled to all compensation, awards and other
payments or relief therefor to which Borrower is entitled and is hereby
authorized, at its option, to commence, appear in and prosecute, in its own
or Borrower's name, any action or proceeding relating to any condemnation,
and to settle or compromise any claim in connection therewith. All such
compensation, awards, damages, claims, rights, actions and proceedings, and
the right thereto, are hereby assigned by Borrower to Lender. After
deducting from such condemnation proceeds all of its expenses incurred in
the collection and administration of such sums, including attorneys' fees,
Lender shall apply the net proceeds to the reconstruction, restoration and
repair of the Premises if the conditions of Paragraphs 10.1 and 11.1 hereof
are met or to the payment of the Indebtedness outstanding at the time. Any
such proceeds actually received by Lender and not required to reconstruct
the Premises or to satisfy the conditions set forth in Paragraphs 10.1 and
11.1 hereof shall be kept by Lender after expiration of the lien period for
the work of reconstruction for application to the Indebtedness outstanding
at such time, in which event said amounts shall be applied in the manner
set forth in Section 2.8 of the Note with respect to Prepayments; provided,
however, that nothing herein contained shall prevent Lender from applying
at any time the whole or any part of such proceeds to the Indebtedness
after the occurrence
15
of any Event of Default, in the order set forth in Paragraph 21
hereinbelow. Borrower agrees to execute such further assignments of any
compensation, awards, damages, claims, rights, actions and proceedings as
Lender may require. Lender shall not be held responsible for any failure to
collect any amount in connection with any such proceeding regardless of the
cause of such failure.
12.2 If any part of the Premises valued at less than $500,000 is
damaged, diminished in value or taken through condemnation proceedings, or
if a consent settlement for such amount less than $500,000 is entered or a
transfer is made under threat of such proceedings, either temporarily or
permanently, then, provided an Event of Default shall not have occurred,
Borrower shall be entitled to receive all such compensation, awards and
other payments or relief therefor to which Borrower is entitled, and to
commence, appear in and prosecute any action or proceeding relating to any
such condemnation, and to settle or compromise any such claim in connection
therewith.
13. Assignment of Rents, Leases and Profits. To further secure the
---------------------------------------
Indebtedness, Borrower hereby assigns unto Lender all of the rents, leases and
income now or hereafter due under any Leases, it being the intention hereby to
establish an absolute transfer and assignment of all such Leases, rents and
income thereunder, to Lender. Borrower hereby irrevocably appoints Lender its
attorney-in-fact (this power of attorney and any other powers of attorney
granted herein are powers coupled with an interest and cannot be revoked,
modified or altered without the written consent of Lender) with or without
taking possession of the Premises as provided in Paragraph 19 hereof, to lease
any portion of the Premises to any party upon such terms as Lender shall
determine, and to collect all rents due under each of the Leases, with the same
rights and powers and subject to the same immunities, exoneration of liability
and rights of recourse and indemnity as Lender would have upon taking possession
pursuant to the provisions of Paragraph 19 hereof. Borrower represents that
(other than customary advance deposits) no rent has been paid by any person in
possession of any portion of the Premises for more than one installment in
advance and that no payment of the rents for any portion of the Premises has
been or will be waived, reduced or otherwise discharged or compromised by
Borrower. Borrower waives any rights of set-off against any person in
possession of any portion of the Premises. Borrower agrees that it will not
assign any of the rents or profits of the Premises, except to a purchaser or
grantee of the Premises. Nothing herein contained shall be construed as
constituting Lender a mortgagee in possession in the absence of the taking of
actual possession of the Premises by Lender pursuant to Paragraph 19 hereof.
Borrower expressly waives all liability of Lender in the exercise of the powers
herein granted Lender. Borrower shall assign to Lender all future leases upon
any part of the Premises and shall execute and deliver, at the request of
Lender, all such further assurances and assignments in the Premises as Lender
shall require from time to time. Although the assignment contained in this Para
graph is a present assignment, Lender shall not exercise any of the powers
conferred upon it by this Paragraph until an Event of Default shall exist under
this Mortgage. Provided that no Event of Default exists and no event has
occurred that with notice, or lapse of time or both would constitute an Event of
Default, Borrower shall have the right under a license granted hereby and Lender
hereby grants to Borrower a license to collect all of the rents arising from or
out of the
16
Leases or any renewals or extensions thereof, or from or out of the Premises or
any part thereof, but only as trustee for the benefit of Lender. So long as no
Event of Default exists and no event has occurred that with notice, or lapse of
time or both would constitute an Event of Default, Borrower may use the rents in
any manner not inconsistent with the Loan Documents. The license granted hereby
shall be revoked automatically upon the occurrence of an Event of Default or any
event that with notice, or lapse of time or both would constitute an Event of
Default. Within thirty (30) days of Lender's written demand, Borrower will
furnish Lender with executed copies of each of the Leases and with estoppel
letters from each tenant in a form reasonably satisfactory to Lender. If Lender
requires that Borrower execute and record a separate assignment of rents or
separate assignments of any of the Leases to Lender, the terms of those
assignments shall control in the event of a conflict with the terms of this
Mortgage.
14. Observance of Lease Assignment. Borrower agrees that Borrower shall
------------------------------
not terminate or modify any of the Major Leases without Lender's prior written
consent; or if Borrower shall suffer such event to occur then such event shall
constitute an Event of Default and at the option of Lender, and upon notice to
Borrower, the Indebtedness shall become due as in the case of other Events of
Default.
15. Security Agreement. Borrower and Lender agree that this Mortgage
------------------
shall constitute a Security Agreement within the meaning of the Illinois Uniform
Commercial Code (hereinafter referred to as the "Code") with respect to (i) all
sums at any time on deposit for the benefit of Lender or held by the Lender
(whether deposited by or on behalf of Borrower or anyone else) pursuant to any
of the provisions of the Mortgage or the other Loan Documents and (ii) with
respect to any personal property included in the granting clauses of this
Mortgage, which personal property may not be deemed to be affixed to the
Premises or may not constitute a "fixture" (within the meaning of Section 9-313
of the Code) (which property is hereinafter referred to as "Personal Property"),
and all replacements of, substitutions for, additions to, and the proceeds
thereof (all of said Personal Property and the replacements, substitutions and
additions thereto and the proceeds thereof being sometimes hereinafter
collectively referred to as the "Collateral"), and that a security interest in
and to the Collateral is hereby granted to the Lender, and the Collateral and
all of Borrower's right, title and interest therein are hereby assigned to
Lender, all to secure payment of the Indebtedness. All of the provisions
contained in this Mortgage pertain and apply to the Collateral as fully and to
the same extent as to any other property comprising the Premises; and the
following provisions of this Paragraph shall not limit the applicability of any
other provision of this Mortgage but shall be in addition thereto. Subject to
the rights of Borrower pursuant to the last sentence of Section 9.3 of the Loan
Agreement:
15.1 Borrower (being the Debtor as that term is used in the Code) is
and will be the true and lawful owner of the Collateral, subject to no
liens, charges or encumbrances other than the lien hereof, other liens and
encumbrances benefitting Lender and no other party, and liens and
encumbrances, if any, expressly permitted by the other Loan Documents.
17
15.2 The Collateral is to be used by Borrower solely for business
purposes.
15.3 The Collateral will be kept at the Land and, except for Obsolete
Collateral (as hereinafter defined), will not be removed therefrom without
the consent of Lender (being the Secured Party as that term is used in the
Code). The Collateral may be affixed to the Land but will not be affixed to
any other real estate.
15.4 The only persons having any interest in the Premises are
Landlord, Borrower, Lender and holders of interests, if any, expressly
permitted hereby.
15.5 No Financing Statement (other than Financing Statements showing
Lender as the sole secured party, or with respect to liens or encumbrances,
if any, expressly permitted hereby) covering any of the Collateral or any
proceeds thereof is on file in any public office except pursuant hereto;
and Borrower, at its own cost and expense, upon demand, will furnish to
Lender such further information and will execute and deliver to Lender such
financing statements and other documents in form satisfactory to Lender and
will do all such acts as Lender may request at any time or from time to
time or as may be necessary or appropriate to establish and maintain a
perfected security interest in the Collateral as security for the
Indebtedness, subject to no other liens or encumbrances, other than liens
or encumbrances benefitting Lender and no other party and liens and
encumbrances (if any) expressly permitted hereby; and Borrower will pay the
cost of filing or recording such financing statements or other documents,
and this instrument, in all public offices wherever filing or recording is
deemed by Lender to be desirable.
15.6 Upon an Event of Default hereunder, Lender shall have the
remedies of a secured party under the Code, including, without limitation,
the right to take immediate and exclusive possession of the Collateral, or
any part thereof, and for that purpose, so far as Borrower can give
authority therefor, with or without judicial process, may enter (if this
can be done without breach of the peace) upon any place which the
Collateral or any part thereof may be situated and remove the same
therefrom (provided that if the Collateral is affixed to real estate, such
removal shall be subject to the conditions stated in the Code); and Lender
shall be entitled to hold, maintain, preserve and prepare the Collateral
for sale, until disposed of, or may propose to retain the Collateral
subject to Borrower's right of redemption upon satisfaction of Borrower's
obligations, as provided in the Code. Lender may render the Collateral
unusable without removal and may dispose of the Collateral on the Premises.
Lender may require Borrower to assemble the Collateral and make it
available to Lender for its possession at a place to be designated by
Lender which is reasonably convenient to both parties. Lender will give
Borrower at least twenty (20) days' notice of the time and place of any
public sale of the Collateral or of the time after which any private sale
or any other intended disposition thereof is made. The requirements of
reasonable notice shall be met if such notice is mailed, by certified
United States mail or equivalent, postage prepaid, to the address of
Borrower hereinafter set forth at least twenty (20) days before the time of
the sale or disposition. Lender may buy the Collateral
18
at any public sale. Lender may buy at private sale if the Collateral is of
a type customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations. Any such sale may
be held in conjunction with any foreclosure sale of the Premises. If Lender
so elects, the Collateral and Borrower's leasehold interest in the Land may
be sold as one lot. The net proceeds realized upon any such disposition,
after deduction for the expenses of retaking, holding, preparing for sale,
selling and the reasonable attorneys' fees and legal expenses incurred by
Lender, shall be applied against the Indebtedness in such order or manner
as Lender shall select. Lender will account to Borrower for any surplus
realized on such disposition.
15.7 The terms and provisions contained in this Paragraph 15, unless
the context otherwise requires, shall have the meanings and be construed as
provided in the Code.
15.8 This Mortgage is intended to be a financing statement within the
purview of Section 9-402(6) of the Code with respect to the Collateral and
the goods described herein, which goods are or may become fixtures relating
to the Premises. The addresses of Borrower (Debtor) and Lender (Secured
Party) are hereinabove set forth. This Mortgage is to be filed for
recording with the Recorder of Deeds of the county or counties where the
Premises are located. Borrower is the owner of a leasehold interest in the
Land and is the owner of the balance of the Premises.
15.9 To the extent permitted by applicable law, the security interest
created hereby is specifically intended to cover all Leases between
Borrower or its agents as lessor, and various tenants named therein, as
lessee, including all extended terms and all extensions and renewals of the
terms thereof, as well as any amendments to or replacement of said Leases,
together with all of the right, title and interest of Borrower, as lessor
thereunder.
15.10 If Lender requires that Borrower execute and record a separate
security agreement, the terms of that security agreement shall control in
the event of a conflict with the terms of this Mortgage.
16. Restrictions on Transfer. (a) Borrower, without the prior written
------------------------
consent of Lender, shall not effect, suffer or permit any "Prohibited Transfer"
(as defined herein). Subject to Section 9.1 of the Loan Agreement, any
conveyance, sale, assignment, transfer, lien, pledge, mortgage, security
interest or other encumbrance or alienation (or any agreement to do any of the
foregoing) of any of the following properties or interests shall constitute a
"Prohibited Transfer":
16.1 The Premises or any personal property or any part thereof or
interest therein, excepting only (i) sales or other dispositions of
Collateral (herein called "Obsolete Collateral") no longer useful in
connection with the operation of the Premises, provided that prior to the
sale or other disposition thereof, such Obsolete Collateral has been
replaced by Collateral of at least equal value and utility which is subject
to the lien hereof
19
with the same priority as with respect to the Obsolete Collateral, and (ii)
the granting of utility easements not adversely affecting the value of the
Premises to the extent otherwise permitted under this Mortgage;
16.2 Any shares of capital stock of a corporation which is a general
partner in Borrower, or a corporation which is the owner (directly or
through intervening entities) of substantially all of the capital stock of
any corporation which is a general partner of Borrower (other than to a
transferee that is directly or indirectly wholly owned by the same ultimate
parent as the transferor, and further excepting the transfer of shares of
capital stock of a corporation whose stock is publicly traded on a national
securities exchange or on the National Association of Securities Dealers'
Automated Quotation System);
16.3 All or any part of any general partnership interest in Borrower
or any beneficial ownership interests (directly or indirectly) in any
general partner of Borrower excepting, however, transfers of such general
partnership interests or such beneficial ownership interests to a
transferee that is directly or indirectly wholly owned by the same ultimate
parent as the transferor;
in each case whether any such conveyance, sale, assignment, transfer, lien,
pledge, mortgage, security interest, encumbrance or alienation is effected
directly, indirectly (including the nominee agreement), voluntarily or
involuntarily, by operation of law or otherwise; provided, however, that the
foregoing provisions of this Paragraph 16 shall not apply (i) to liens of Lender
securing the Indebtedness, (ii) to the lien of current taxes and assessments not
in default, or (iii) to any transfers of the Premises, or part thereof, or
interest therein, or any beneficial interests, or shares of stock or partnership
or joint venture interests, as the case may be, by or on behalf of an owner
thereof who is deceased or declared judicially incompetent, to such owner's
heirs, legatees, devisees, executors, administrators, estate or personal
representatives.
(b) In determining whether or not to amend and restate the loan secured
hereby, Lender evaluated the background and experience of Borrower and the
general partners thereof in owning and operating property such as the Premises,
found it acceptable and relied and continues to rely upon same as the means of
maintaining the value of the Premises which is Lender's security for the Note.
Borrower and its general partners are well experienced in borrowing money and
owning and operating property such as the Premises, were ably represented by a
licensed attorney at law in the negotiation and documentation of the loan
secured hereby and bargained at arm's length and without duress of any kind for
all of the terms and conditions of the loan, including this provision. Borrower
recognizes that Lender is entitled to keep its loan portfolio at current
interest rates by either making new loans at such rates or collecting assumption
fees and/or increasing the interest rate on a loan, the security for which is
purchased by a party other than the original Borrower. Borrower further
recognizes that any secondary junior financing placed upon the Premises, (a) may
divert funds which would otherwise be used to pay the Note secured hereby; (b)
could result in acceleration and foreclosure by any such junior encumbrancer
which would force Lender to take measures and incur expenses to protect its
security; (c) would detract from the value of the
20
Premises should Lender come into possession thereof with the intention of
selling same; and (d) would impair Lender's right to accept a deed in lieu of
foreclosure, as a foreclosure by Lender would be necessary to clear the title to
the Premises. In accordance with the foregoing and for the purposes of (i)
protecting Lender's security, both of repayment and of value of the Premises;
(ii) giving Lender the full benefit of its bargain and contract with Borrower;
(iii) allowing Lender to raise the interest rate and collect assumption fees;
and (iv) keeping the Premises free of subordinate financing liens, Borrower
agrees that if this Paragraph 16 is deemed a restraint on alienation, that it is
a reasonable one.
17. Events of Default. If one or more of the following events (herein
-----------------
called "Events of Default") shall occur:
17.1 If any default is made in the payment of the monies required
under the Note, under this Mortgage or under the other Loan Documents
within five (5) days after the due date thereof;
17.2 Except as provided under Paragraphs 17.3, 17.4 and 17.5 hereof,
if default shall exist for any reason other than the non-payment of money
hereunder or under any other document or instrument regulating, evidencing,
securing or guarantying any of the Indebtedness, including, but not limited
to, any of the Loan Documents, and in each case after the expiration of the
applicable cure period or if no express cure period is provided, then in
each case, if such default shall continue for thirty (30) days after notice
thereof by Lender to Borrower; 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 Borrower fails to commence the cure of such
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.
17.3 The occurrence of a Prohibited Transfer;
17.4 If any of the information contained in any documentation
provided to Lender by Borrower in conjunction with the Indebtedness shall
not be true, accurate and complete in all material respects;
17.5 If or upon, as the case may be, (and for the purpose of this
subparagraph 17.5 only, the term Borrower shall mean not only Borrower, but
also any general partner of Borrower which is a partnership and each person
who, as guarantor, co-maker or otherwise, shall be or become liable for or
obligated upon all or any part of the Indebtedness or any of the covenants
or agreements contained herein):
17.5.1 Borrower shall file a voluntary petition in bankruptcy or
for relief under the federal Bankruptcy Act or any similar state or
federal law;
21
17.5.2 Borrower shall file a pleading in any proceeding
admitting insolvency;
17.5.3 Within sixty (60) days after the filing against Borrower
of any involuntary proceeding under the federal Bankruptcy Act or
similar state or federal law, such proceedings shall not have been
vacated;
17.5.4 A substantial part of Borrower's assets are attached,
seized, subjected to a writ or distress warrant, or are levied upon,
unless such attachment, seizure, writ, warrant or levy is vacated
within sixty (60) days;
17.5.5 Borrower shall make an assignment for the benefit of
creditors or shall consent to the appointment of a receiver or trustee
or liquidator of all or the major part of its property, or the
Premises; or
17.5.6 Any order appointing a receiver, trustee or liquidator of
Borrower or all or a major part of Borrower's property or the Premises
is not vacated within sixty (60) days following the entry thereof;
17.5.7 The admission in writing by Borrower that it is unable to
pay its debts as they mature or that it is generally not paying its
debts as they mature;
17.5.8 The liquidation, termination or dissolution of Borrower;
provided, however, that a merger of either general partner of Borrower
into an entity that is directly or indirectly controlled by the same
ultimate parent as such general partner shall not constitute a
liquidation, termination, or dissolution of such general partner;
17.5.9 The amendment or modification in any manner of the
articles of incorporation, bylaws, articles of partnership,
certificate of partnership or other charter or enabling documents of
Borrower that would adversely affect Lender and which is without
Lender's prior written consent;
17.6 The failure of Borrower to make any deposit of funds or
instruments required under this Mortgage or under any of the other Loan
Documents, within the time period provided, or if no time period has been
provided, within five (5) days after written demand therefor from Lender;
17.7 The existence of any material encroachment onto the Premises
which (a) has occurred without the prior written consent of Lender, and (b)
is not removed or corrected to Lender's reasonable satisfaction within
sixty (60) days after the earlier to occur of (i) Lender's written notice
to Borrower of the existence thereof, or (ii) Borrower's discovery thereof;
22
17.8 Subject to Borrower's rights as provided in Paragraph 4 hereof,
the filing of any claim of lien or encumbrance against the Premises, or any
part thereof, if such claim of lien or encumbrance has not been vacated or
dismissed within thirty (30) days after such claim was filed.
17.9 Subject to the provisions of Paragraphs 10, 11 and 12 hereof the
demolition, destruction, or substantial damage of the Premises such that,
in Lender's reasonable judgment, the Premises cannot be restored or rebuilt
with available funds (including insurance proceeds which Borrower has the
right to use under the terms of this Mortgage for such purpose) to a
profitable condition within a reasonable time;
17.10 The obtaining by any person or entity of an order or decree in
any court enjoining or prohibiting Borrower or Lender from performing the
Loan Agreement, which order or decree is not vacated and which proceedings
are not discontinued within sixty (60) days after the granting of such
order or decree;
17.11 The neglect, failure, or refusal of Borrower to keep in full
force and effect any permit, license, consent or approval required for the
full occupancy, operation and utilization of the Premises or the
curtailment in availability to the Premises of utilities or other public
services necessary for the full occupancy, operation and utilization of the
Premises;
17.12 The commencement of proceedings by any public or quasi-public
body of competent jurisdiction to acquire the Premises, or any portion
thereof or any interest therein (other than a portion that, in Lender's
judgment, renders the remaining portion of the Premises a complete economic
unit having equivalent value to the Premises as it existed prior to the
taking) pursuant to eminent domain or condemnation powers, and (i) such
proceedings are not dismissed within thirty (30) days, or (ii) Borrower
fails to make a deposit with Lender in an amount sufficient to protect
Lender's security under this Mortgage;
17.13 The occurrence of an "Event of Default" by Borrower as defined
in the Ground Lease or the subordination of the Ground Lease to the lien of
any mortgage of the fee interest in the Land;
17.14 The occurrence of an Event of Default under any of the other
Loan Documents.
then Lender, at its option and without affecting the lien hereby created or
the priority of said lien or any other right of Lender hereunder, may
declare, without further notice, all Indebtedness immediately due with
interest thereon at the Default Rate, whether or not such Event of Default
is thereafter remedied by Borrower, and Lender may immediately
23
proceed to foreclose this Mortgage and to exercise any right provided by
this Mortgage, the Note, the other Loan Documents or otherwise.
18. Foreclosure. Upon the occurrence of an Event of Default, Lender shall
-----------
have the right to foreclose the lien hereof in accordance with the Illinois
Mortgage Foreclosure Act, Ill. Rev. Stat. ch. 110, para. 15-1101 (1987), 735
ILCS 5/15-1101 (1992), et seq. (the "Act") and to exercise any other remedies of
-- ---
Lender provided in the Note, this Mortgage, the other Loan Documents, or which
Lender may have at law, in equity or otherwise. In any suit to foreclose the
lien hereof, there shall be allowed and included as additional Indebtedness in
the decree of sale, all expenditures and expenses which may be paid or incurred
by or on behalf of Lender for attorneys' fees, appraisers' fees, outlays for
documentary and expert evidence, stenographers' charges, publication costs,
costs (which may be estimated as to items to be expended after entry of the
decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies, and similar data and assurance with
respect to title as Lender may deem reasonably necessary either to prosecute
such suit or to evidence to bidders at sales which may be had pursuant to such
decree the true conditions of the title to or the value of the Premises, and any
other expenses and expenditures which may be paid or incurred by or on behalf of
Lender and permitted by the Act to be included in such decree. All expenditures
and expenses of the nature mentioned in this Paragraph, and such other expenses
and fees as may be incurred in the protection of the Premises and rents and
income therefrom and the maintenance of the lien of this Mortgage, including the
fees of any attorney employed by Lender in any litigation or proceedings
affecting this Mortgage, the Note or the Premises, including probate and
bankruptcy proceedings, or in preparation of the commencement or defense of any
proceedings or threatened suit or proceeding, or otherwise in dealing
specifically therewith, shall be so much additional Indebtedness and shall be
immediately due and payable by Borrower, with interest thereon at the Default
Rate until paid.
19. Right of Possession. Upon the occurrence of an Event of Default,
-------------------
Borrower shall surrender to Lender, forthwith upon demand of Lender, and Lender
shall be entitled to be placed in possession of the Premises as provided in the
Act, and Lender, in its discretion and pursuant to court order, may enter upon
and take and maintain possession of all or any part of the Premises, together
with all documents, books, records, papers and accounts of Borrower or the then
owner of the Premises and the owner of the leasehold interest in the Land
relating thereto, and may exclude Borrower, such owner, and any agents and
servants thereof wholly therefrom and, on behalf of Borrower or such owner, or
in its own name as Lender and under the powers herein granted may:
19.1 hold, operate, manage and control all or any part of the
Premises and conduct the business, if any, thereof, either personally or by
its agents, with full power to use such measures, legal or equitable, as
Lender may deem necessary to collect and enforce the payment of the rents,
issues, deposits, profits and avails of the Premises, including, without
limitation, to bring actions for recovery of rent, in forcible detainer,
and in distress for rent, all without notice to Borrower;
24
19.2 cancel or terminate any Lease or sublease of all or any part of
the Premises for any cause or on any ground that would entitle Borrower or
Lender to cancel the same;
19.3 elect to disaffirm and terminate any Lease or sublease of all or
any part of the Premises made subsequent to this Mortgage without Lender's
prior written consent;
19.4 extend or modify any then existing Leases and make new Leases of
all or any part of the Premises, which extensions, modifications, and new
Leases may provide for terms, or for options to extend or renew terms, to
expire on dates beyond the maturity date of the loan evidenced by the Note
and the issuance of a deed to a purchaser at a foreclosure sale, it being
understood and agreed that any such Leases, and the options or other such
provisions to be contained therein, shall be binding upon Borrower, all
persons whose interests in the Premises are subject to the lien hereof, and
the purchaser at any foreclosure sale, notwithstanding any redemption from
sale, reinstatement, discharge of the Indebtedness, satisfaction of any
foreclosure decree, or issuance of any certificate of sale or deed to any
such purchaser;
19.5 make all necessary or proper repairs, decoration renewals,
replacements, alterations, additions, betterments and improvements in
connection with the Premises as may seem judicious to Lender, to insure and
reinsure the Property and all risks incidental to Lender's possession,
operation, and management thereof, and to receive all rents, issues,
deposits, profits and avails therefrom; and
19.6 apply the net income, after allowing a reasonable fee for the
collection thereof and for the management of the Premises, to the payment
of Taxes, Premiums and other charges applicable to the Premises, or in
reduction of the Indebtedness in such order and manner as Lender shall
select.
Without limiting the generality of the foregoing, Lender shall have all power,
authority and duties as provided in the Act. Nothing herein contained shall be
construed as constituting Lender a mortgagee in possession in the absence of the
actual taking of possession of the Premises by Lender.
20. Receiver. Upon the occurrence of an Event of Default or at any time
--------
thereafter, Lender, at Lender's sole option, may seek and petition the court for
the appointment of a receiver of the Premises pursuant to the Act. Such
appointment may be made either before or after sale, without notice, without
regard to solvency or insolvency of Borrower at the time of application for such
receiver, and without regard to the then value of the Premises or whether or not
the same shall be then occupied as a homestead; and Lender hereunder or any
employee or agent thereof may be appointed as such receiver. Such receiver shall
have all powers and duties prescribed by the Act, including, but not limited to,
the power to make leases to be binding upon all parties, including the
mortgagor, the purchaser at a sale pursuant to a judgment of foreclosure and any
person acquiring an interest in the Premises after entry of a judgment of
foreclosure, all as
25
provided in the Act. In addition, such receiver shall also have the power to
extend or modify any then existing leases, which extensions and modifications
may provide for terms to expire, or for options to lessees to extend or renew
terms to expire, beyond the maturity date of the Note and beyond the date the
issuance of a deed or deeds to a purchaser or purchasers at a foreclosure sale,
it being understood and agreed that any such leases, and the options or other
provisions to be contained therein, shall be binding on Borrower and all the
persons whose interest in the Premises are subject to the lien hereof and upon
the purchaser or purchasers at any foreclosure sale, notwithstanding any
redemption, reinstatement, discharge of the Indebtedness, satisfaction of any
foreclosure judgment, or issuance of any certificate of sale or deed to any
purchaser. In addition, such receiver shall have the power to collect the rents,
issues and profits of the Premises during the pendency of such foreclosure suit
and, in case of a sale and deficiency, during the full statutory period of
redemption, if any, whether or not there is a redemption, as well as during any
further times when Borrower, except for the intervention of such receiver, would
be entitled to collection of such rents, issues and profits, and such receiver
shall have all other powers which may be necessary or are usual in such cases
for the protection, possession, control, management and operation of the
Premises during the whole of said period. The court, from time to time, may
authorize the receiver to apply the net income from the Premises in payment in
whole or in part of: (a) the Indebtedness or the indebtedness secured by a
decree foreclosing this Mortgage, or any tax, special assessment, or other lien
which may be or become superior to the lien hereof or of such decree, provided
such application is made prior to the foreclosure sale; or (b) the deficiency in
case of a sale and deficiency.
21. Distribution of Proceeds of Foreclosure Sale. Except to the extent
--------------------------------------------
otherwise required by the Act and except as provided in the Ground Lease, the
proceeds of any foreclosure sale of the Premises (and any condemnation or
insurance proceeds which are applied to the Indebtedness following the
occurrence of an Event of Default) shall be distributed and applied in the
following order of priority:
FIRST, to the payment of all costs and expenses, fees, commissions and
-----
taxes of such sale, collection or other realization, including any amounts
owed to Lender pursuant to Section 2.12 of the Note, any portion of the
Lender's Expenses or the Restructuring Fee (to the extent not previously
paid), compensation to Lender's agents, and Lender's reasonable attorneys'
fees, and all expenses or advances made by Lender in connection therewith,
together with interest on each such amount at the Default Rate then in
effect, from and after the date such amount is due, owing or unpaid until
paid in full;
SECOND, to the indefeasible payment in full in cash of all accrued and
------
unpaid Contract Rate Interest and any and all other accrued and unpaid
interest (other than Additional Accrued Interest) owing by Borrower under
or in connection with this Mortgage or the other Loan Documents, together
with interest on each such amount at the Default Rate then in effect, from
and after the date such amount is due, owing and unpaid until paid in full.
26
THIRD, to the indefeasible payment in full in cash of all accrued and
-----
unpaid Additional Accrued Interest, together with interest on each such
amount at the Default Rate from and after the date such amount is due,
owing or unpaid until paid in full;
FOURTH, to the indefeasible payment in full in cash of principal owing
------
by Borrower under or in connection with this Mortgage or the other Loan
Documents, together with interest on each such amount at the Default Rate
then in effect, from and after the date such amount is due, owing or unpaid
until paid in full; and
FIFTH, any surplus then remaining from such proceeds shall be paid to
-----
Borrower, or its successor or assigns, or to whomever may be lawfully
entitled to receive such proceeds or as a court of competent jurisdiction
may direct.
22. Insurance Proceeds Prior to Foreclosure Sale. All rights and powers
--------------------------------------------
of Lender under Paragraphs 10 and 11 hereof, from and after the entry of
judgment of foreclosure, shall continue in the Lender as decree creditor until
confirmation of sale. In case of an insured loss after foreclosure proceedings
have been instituted, the proceeds of any Insurance Policy, if not applied in
rebuilding or restoring the Improvements, in accordance with Paragraphs 10 and
11 hereof, shall be used to pay the amount due in accordance with any decree of
foreclosure that may be entered in any such proceedings, and the balance, if
any, shall be paid as the court may direct. The foreclosure decree may provide
that the mortgagee's clause attached to each of the casualty Insurance Policies
may be cancelled and that the decree creditor may cause a new loss clause to be
attached to each of said casualty Insurance Policies making the loss thereunder
payable to said decree creditors. In the event of foreclosure sale, Lender,
without the consent of Borrower, may assign any Insurance Policies to the
purchaser at the sale, or take such other steps as Lender may deem advisable to
protect the interest of such purchaser.
23. Waiver of Right of Redemption and Other Rights. To the full extent
----------------------------------------------
permitted by law, Borrower agrees that it will not at any time or in any manner
whatsoever take any advantage of any stay, exemption or extension law or any so-
called "Moratorium Law" now or at any time hereafter in force, nor take any
advantage of any law now or hereafter in force providing for the valuation or
appraisement of the Premises, or any part thereof, prior to any foreclosure sale
thereof to be made pursuant to any provisions herein contained, or to any
decree, judgment or order of any court of competent jurisdiction; or claim or
exercise any rights under any statute now or hereafter in force to redeem the
Premises or any part thereof, or relating to the marshalling thereof, on
foreclosure sale or other enforcement hereof. To the full extent permitted by
law, Borrower hereby expressly waives any and all rights it may have to require
that the Premises be sold as separate tracts or units in the event of
foreclosure. To the full extent permitted by law, Borrower hereby expressly
waives any and all rights to redemption and reinstatement under the Act, on its
own behalf, on behalf of all persons claiming or having an interest (direct or
indirect) by, through or under Borrower and on behalf of each and every person
acquiring any interest in or title to the Premises subsequent to the date
hereof, it being the intent hereof that any and all such rights of redemption of
Borrower and such other persons are and shall
27
be deemed to be hereby waived to the full extent permitted by applicable law. To
the full extent permitted by law, Borrower agrees that, by invoking or utilizing
any applicable law or laws or otherwise, it will not hinder, delay or impede the
exercise of any right, power or remedy herein or otherwise granted or delegated
to Lender, but will permit the exercise of every such right, power and remedy as
though no such law or laws have been or will have been made or enacted. To the
full extent permitted by law, Borrower hereby agrees that no action for the
enforcement of the lien or any provision hereof shall be subject to any defense
which would not be good and valid in an action at law upon the Note. If the
Borrower is a trustee, Borrower represents that the provisions of this Paragraph
23 (including the waiver of redemption rights) were made at the express
direction of Borrower's beneficiaries and the persons having the power of
direction over Borrower and are made on behalf of the trust estate of Borrower
and all beneficiaries of Borrower, as well as all other persons named above.
Borrower acknowledges that the Premises do not constitute agricultural real
estate as defined in Section 15-1201 of the Act or residential real estate as
defined in Section 15-1219 of the Act.
24. Lender's Performance of Borrower's Obligations. In case of an Event
----------------------------------------------
of Default, either before or after acceleration of the Indebtedness or the
foreclosure of the lien hereof, Lender may, but shall not be required to, make
any payment or perform any act herein required of Borrower (whether or not
Borrower is personally liable therefor) in any manner deemed expedient to
Lender. Lender may, but shall not be required to, complete construction,
furnishing and equipping of the Improvements and rent, operate and manage the
Premises and the Improvements and pay operating costs, including management
fees, of every kind in connection therewith, so that the Premises shall be
useable for their intended purposes. All such monies paid and expenses incurred,
including attorneys' fees, shall be so much additional Indebtedness, whether or
not the Indebtedness, as a result thereof, shall exceed the face amount of the
Note, and shall become immediately due with interest thereon at the Default
Rate. Inaction of Lender shall never be considered as a waiver of any right
accruing to it on account of any Event of Default nor shall the provisions of
this Paragraph or any exercise by Lender of its rights hereunder prevent any
default from constituting an Event of Default. Lender, in making any payment
hereby authorized (a) relating to Taxes, may do so according to any ▇▇▇▇,
statement or estimate, without inquiry into the validity of any tax, assessment,
sale, forfeiture, tax lien or title or claim thereof; (b) for the purchase,
discharge, compromise or settlement of any lien, may do so without inquiry as to
the validity or amount of any claim for lien which may be asserted; or (c) in
connection with the completion of construction, furnishing or equipping of the
Premises or the rental, operation or management of the Premises or the payment
of operating costs thereof, may do so in such amounts and to such persons as
Lender may deem appropriate in its good faith business judgment. Nothing
contained herein shall be construed to require Lender to advance monies for any
purpose.
25. Rights Cumulative. Each right herein or in any of the other Loan
-----------------
Documents conferred upon Lender is cumulative and in addition to every other
right provided by law or in equity, and Lender may exercise each such right in
any manner deemed expedient to Lender. Lender's exercise or failure to exercise
any right shall not be deemed a waiver of that right or any
28
other right or a waiver of any default. Except as otherwise specifically
required herein, Lender is not required to give notice of its exercise of any
right given to it by this Mortgage.
26. Landlord's Option to Purchase Mortgage. Notwithstanding anything to
--------------------------------------
the contrary contained herein, if an Event of Default has occurred or any other
act, condition or event has occurred that would permit Lender to declare all or
part of the Indebtedness due and payable, Lender shall serve notice in writing
on Landlord in accordance with Section 6.04 of the Ground Lease of its intent to
commence foreclosure proceedings. Landlord shall have thirty (30) days after
the giving of such notice by Lender to exercise its option to purchase the Loan
and this Mortgage as provided in Section 6.04 of the Ground Lease.
27. Successors and Assigns.
----------------------
27.1 Holder of the Note. This Mortgage and each provision hereof
------------------
shall be binding upon Borrower and its successors and assigns (including,
without limitation, each and every owner from time to time of the leasehold
interest in the Premises or any other person having an interest therein),
and shall inure to the benefit of Lender and its successors and assigns.
Wherever herein Lender is referred to, such reference shall be deemed to
include the holder from time to time of the Note; and each such holder of
the Note shall have all of the rights afforded hereby, and may enforce the
provisions hereof, as fully as if Lender had designated such holder of the
Note herein by name.
27.2 Covenants Run With Land; Successor Owners. All of the covenants
-----------------------------------------
of this Mortgage shall run with the Land and be binding on any successor
owners of the leasehold interest in the Land. If the ownership of Premises
or the leasehold interest in the Land any portion thereof becomes vested in
a person other than Borrower, Lender, without notice to Borrower, may deal
with such person with reference to this Mortgage and the Indebtedness in
the same manner as with Borrower without in any way releasing Borrower from
its obligations hereunder. Borrower will give immediate written notice to
Lender of any conveyance, transfer or change of ownership of the Premises
or of the leasehold interest in the Land, but nothing in this Paragraph
shall vary the effectiveness of the provisions of Paragraph 16 hereof.
Notwithstanding anything to the contrary herein contained, Borrower shall
not assign its rights or obligations hereunder, under the Note or under any
other Loan Document except as permitted in Paragraph 16 hereto. Any such
assignments by Borrower shall be void.
28. Effect of Extensions and Amendments. If the payment of the
-----------------------------------
Indebtedness, or any part thereof, is extended or varied, or if any part of the
security or guarantees therefor are released, all persons now or at any time
hereafter liable therefor, or interested in the Premises, shall be held to
assent to such extension, variation or release, and their liability, and the
lien, and all provisions hereof, shall continue in full force and effect. Any
person, firm or corporation taking a junior mortgage, or other lien upon
the Premises or any part thereof or any interest therein, shall take said lien
subject to the rights of Lender to amend, modify, extend or release the Note,
this
29
Mortgage or any other Loan Document, in each case without obtaining the consent
of the holder of such junior lien and without the lien of this Mortgage losing
its priority over the rights of any such junior lien.
29. [INTENTIONALLY LEFT BLANK]
30. Future Advances. At all times, regardless of whether any loan
---------------
proceeds have been disbursed, this Mortgage secures as part of the Indebtedness
the payment of all loan commissions, service charges, liquidated damages,
attorneys' fees, expenses and advances due to or incurred by Lender in
connection with the Indebtedness, all in accordance with the Note, this
Mortgage, and the other Loan Documents; provided, however, that in no event
shall the total amount of the Indebtedness, including loan proceeds disbursed
plus any additional charges, exceed two hundred percent (200%) of the face
amount of the Note.
31. Execution of Separate Security Agreements, Financing Statements, etc.;
----------------------------------------------------------------------
Estoppel Letter. Borrower will do, execute, acknowledge and deliver all such
---------------
further acts, conveyances, notes, mortgages, security agreements, financing
statements and assurances as Lender shall require for the better assuring,
conveying, mortgaging, assigning and confirming unto Lender all property
mortgaged hereby or property intended so to be, whether now owned by Borrower or
hereafter acquired. Without limitation of the foregoing, Borrower will assign
to Lender, upon request, as further security for the Indebtedness, its interests
in all agreements, contracts, licenses and permits affecting the Premises, such
assignments to be made by instru instruments satisfactory to Lender, but no such
assignment shall be construed as a consent by the Lender to any agreement,
contract, license or permit or to impose upon Lender any obligations with
respect thereto. From time to time, Borrower will furnish within five (5) days
after Lender's request a written and duly acknowledged statement of the
Indebtedness and whether any alleged offsets or defenses exist against the
Indebtedness.
32. Subrogation. If any part of the Indebtedness is used directly or
-----------
indirectly to satisfy, in whole or in part, any prior encumbrance upon the
Premises or any part thereof, then Lender shall be subrogated to the rights of
the holder thereof in and to such other encumbrance and any additional security
held by such holder, and shall have the benefit of the priority of the same.
33. Option to Subordinate. At the option of Lender, this Mortgage shall
---------------------
become subject and subordinate, in whole or in part (but not with respect to
priority of entitlement to insurance proceeds or any award in condemnation) to
any and all leases of all or any part of the Premises upon the execution by
Lender and recording thereof, at any time hereafter, in the Office of the
Recorder of Deeds for the county wherein the Premises are situated, of a
unilateral declaration to that effect.
34. Governing Law. This Mortgage shall be construed and enforced
-------------
according to the laws of the State of Illinois, without reference to the
conflicts of law principles of that State. If
30
any provision in this Mortgage shall be inconsistent with any provision of the
Act, the provisions of the Act shall take precedence over the provisions of this
Mortgage, but shall not invalidate or render unenforceable any other provision
of this Mortgage that can be construed in a manner consistent with the Act. If
any provision of this Mortgage shall grant to Lender any rights or remedies upon
default of the Borrower which are more limited than the rights that would
otherwise be vested in Lender under the Act in the absence of said provision,
Lender shall be vested with the rights granted in the Act to the full extent
permitted by law.
35. Business Loan. The proceeds of the Original Note were used for the
-------------
purposes specified in Ill. Rev. Stat. ch. 17, para. 6404 (1987), 815 ILCS 205/4
(1992), and the principal obligation secured hereby constitutes a "business
loan" coming within the definition and purview of said section.
36. Inspection of Premises and Records. Borrower shall keep full and
----------------------------------
correct books and records showing in detail the income and expenses of the
Premises. Lender and its agents shall have the right to inspect the Premises
and all books, records and documents relating thereto at all reasonable times.
37. [INTENTIONALLY LEFT BLANK]
38. No Joint Ventures. No participation by Lender in profit from
-----------------
operations of, appreciation in value of, or profit from the sale or any further
encumbrance of, the mortgaged Premises shall constitute a partnership, joint
venture, tenancy in common or joint tenancy between the Borrower and the Lender,
it being intended that the only relationship created by the Note and this
Mortgage shall be that of Borrower and Lender. Borrower hereby covenants and
agrees that it shall not take any action or assert or maintain any position at
any time that is inconsistent with the terms of this Paragraph 38.
39. Time of the Essence. Time is of the essence of the Note, this
-------------------
Mortgage, and the other Loan Documents.
40. Captions and Pronouns. The captions and headings of the various
---------------------
sections of this Mortgage are for convenience only, and are not to be construed
as confining or limiting in any way the scope or intent of the provisions
hereof. Whenever the context requires or permits, the singular shall include
the plural, the plural shall include the singular, and the masculine, feminine
and neuter shall be freely interchangeable.
41. Separability. If all or any portion of any provision of this Mortgage
-------------
or the other Loan Documents shall be held to be invalid, illegal or
unenforceable in any respect, then such invalidity, illegality or
unenforceability shall not affect any other provision hereof or thereof, and
such provision shall be limited and construed in such jurisdiction as if such
invalid, illegal or unenforceable provision or portion thereof were not
contained herein or therein.
31
42. Notices. All notices, requests and demands to or upon the respective
-------
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 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:
Borrower: Mutual Benefit Chicago Marriott Suite Hotel
Partners, L.P.
Host Marriott Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Law Department
Facsimile No. :(▇▇▇) ▇▇▇-▇▇▇▇
Lender: National Bank of Canada
New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No. :(▇▇▇) ▇▇▇-▇▇▇▇
43. Anti-forfeiture. Borrower hereby expressly represents and warrants to
---------------
Lender that there has not been committed by Borrower or, to the best of
Borrower's knowledge, any other person involved with the Premises any act or
omission affording the federal government or any state or local government the
right of forfeiture as against the Premises or any part thereof or any monies
paid in performance of its obligations under the Note, Mortgage or under any of
the other Loan Documents, and Borrower hereby covenants and agrees not to
commit, permit or suffer to exist any act or omission affording such right of
forfeiture. In furtherance thereof, Borrower agrees to indemnify, defend with
counsel reasonably acceptable to Lender (at Borrower's sole cost) and hold
Lender harmless from and against any claim or other cost (including, without
limitation, reasonable attorneys' fees and costs incurred by Lender), damage,
liability or injury by reason of the breach of the covenants and agreements or
the warranties and representations set forth in the preceding sentence. Without
limiting the generality of the foregoing, the filing of formal charges or the
commencement of proceedings against Borrower, the Lender or all or any part of
the Premises under any federal or state law in which forfeiture of the Premises
or any part
32
thereof or of any monies paid in performance of Borrower's obligations under the
Loan Documents is a potential result, at the election of Lender, shall
constitute an Event of Default hereunder without notice or opportunity to cure.
44. Jury Trial Waiver. Borrower waives, to the extent permitted by law,
-----------------
trial by jury in any actions brought by either Borrower or Lender in connection
with the Indebtedness.
45. No Merger. It is the desire and intention of the parties hereto that
---------
this Mortgage and the lien hereof shall not merge in fee simple title to the
Premises, unless a contrary intent is ever manifested by Lender as evidenced by
an express statement to that effect in an appropriate document duly recorded.
Therefore, it is hereby understood and agreed that should Lender acquire any
additional or other interests in or to the Premises or the ownership thereof,
then this Mortgage and the lien hereof shall not merge in the fee simple title,
toward the end that this Mortgage may be foreclosed as if owned by a stranger to
the fee simple title.
46. Non-Recourse.
------------
46.1 Extent of Non-recourse. Anything in this Mortgage to the
----------------------
contrary notwithstanding, Lender shall have no personal recourse against
either Borrower, any General Partner, any limited partner of Borrower, or
any Affiliated Party 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 Lender may obtain after
foreclosure of the liens securing such repayment, or, subject to the
provisions of Paragraph 46.2 hereof, for any deficiency, loss or damage
suffered by Lender as a result of the failure by Borrower or any General
Partner to comply with any of the terms or conditions of this Mortgage or
any of the other Loan Documents and, subject to the provisions of Paragraph
46.2 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 Lender's right of recourse against Borrower
and shall not impair the validity or enforceability of the indebtedness
evidenced by the Note or any of the other obligations of Borrower under the
Loan Documents secured by the Premises or the lien of or security interest
in or the right of Lender as mortgagee or secured party to foreclose and/or
enforce its rights in the Premises after default by Borrower or any General
Partner.
46.2 Borrower's Liability for Damages or Misapplication of Funds.
-----------------------------------------------------------
The provisions of Paragraph 46.1 hereof to the contrary notwithstanding,
Borrower 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 Borrower 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
Premises covered by the Mortgage after Lender has given to Borrower any
notice that Borrower is in default hereunder or under the other Loan
Documents and that Lender has exercised its option to accelerate maturity
of the Note, foreclose or require the foreclosure of the liens
33
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 distributed to any partners in
Borrower subsequent to the date hereof; (iv) for any Gross Revenues, Net
House Profits or Excess Cash Flow 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 Premises (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
Premises (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 in
Exhibit D attached hereto), including without limitation the
indemnification provisions of Section 12.20 of the Loan Agreement.
46.3 Liability of General Partners. To the extent of personal
-----------------------------
liability of Borrower under Paragraph 46.2 hereof, the General Partner of
Borrower hereby agrees to be jointly and severally liable therefor and
waives any requirement of law that in the event of a default hereunder
Lender must proceed against Borrower or exhaust any assets of Borrower
before proceeding against such General Partner or such General Partner's
assets; provided, however, that in no event shall any limited partner of
Borrower, any Affiliated Party (other than the General Partner) or any
officer, director, employee or agent of any partner (including any officer,
director, employee or agent of the General Partner) have any liability
under Paragraph 46.3 hereof, and Lender agrees that it shall not seek
recovery from any party that is excluded from liability pursuant to this
sentence.
IN WITNESS WHEREOF, Borrower has caused this Mortgage to be duly signed,
sealed and delivered the day and year first above written.
BORROWER:
MUTUAL BENEFIT CHICAGO
MARRIOTT SUITE HOTEL PARTNERS,
L.P., a Rhode Island limited partnership
By: MOHS CORPORATION, a Delaware
corporation, its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Title: Vice President
--------------------------
34
STATE OF MARYLAND
SS
COUNTY OF ▇▇▇▇▇▇▇▇▇▇
I, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a Notary Public, in and for said County, in the State
aforesaid, DO HEREBY CERTIFY that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President of MOHS
CORPORATION, a Delaware corporation, personally known to me to be the same
person whose name is subscribed to the foregoing instrument as such Vice
President appeared before me this day in person and acknowledged that he/she
signed and delivered said instrument as his/her own free and voluntary act and
as the free and voluntary act of said corporation in its capacity as General
Partner of Mutual Benefit Chicago Marriott Suite Hotel Partners, L.P., for the
uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal, this 24th day of September, 1996.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Notary Public
My Commission expires: 12/5/97
-------------
35
EXHIBIT A
---------
LEGAL DESCRIPTION
-----------------
PARCEL 1:
▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇▇, ▇▇▇▇▇ 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 ▇▇▇▇
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.
A-1
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 ▇▇▇▇ 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 ▇▇▇▇ 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
▇-▇
▇▇▇▇▇ ▇▇ 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 ▇▇▇▇ 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
▇▇▇▇ COUNTY, ILLINOIS.
A-3
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
--------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
PIN
---
▇▇-▇▇-▇▇▇-▇▇▇
A-4
EXHIBIT B
---------
TO
MORTGAGE
--------
THE LOAN DOCUMENTS
------------------
The term "Loan Documents," as used in this Mortgage, means the following
documents and any other documents previously, now, or hereafter given to
evidence, secure or govern the disbursement of the Indebtedness, including any
and all extensions, renewals, amendments, modifications and supplements thereof
or thereto:
1. The Loan Agreement;
2. The Note;
3. The following security documents:
(a) this Mortgage;
(b) a Reaffirmation of Foreclosure Guaranty;
(c) an Assignment of Leases and Rents;
(d) a Security Agreement;
(e) certain Uniform Commercial Code Financing Statement Form UCC-1's
and 2's;
(f) an Amended and Restated Assignment of Management Agreement;
(g) the separate Deposit, Pledge and Security Agreements respecting
each of the following accounts:
(i) the Main Disbursing Account at First National Bank of
Chicago, Account No. 58-06704.
(ii) the General Investment Account at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company,
Account No. ▇▇▇▇▇▇▇-5.
B-1
(iii) the FF&E Account at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, Account No.
3206060-7
(iv) the Operating Account at ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, Account
No. ▇▇▇-▇▇▇▇▇▇▇-▇.
(h) a Reaffirmation of Environmental Indemnification Agreement.
B-2
EXHIBIT C
---------
TITLE EXCEPTIONS
----------------
1. GENERAL TAXES NOT YET DUE AND PAYABLE.
TAX NO.: ▇▇-▇▇-▇▇▇-▇▇▇ VOL NO.: 063
2. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND OF CERTAIN
RECIPROCAL RIGHTS AND EASEMENTS DATED MAY 19, 1988 AND RECORDED JUNE 3, 1988 AS
DOCUMENT 88241321 AND FILED JUNE 3, 1988 AS DOCUMENT LR3713141, AND THE TERMS
AND PROVISIONS THEREOF.
3. EASEMENTS AS SHOWN ON PLAT OF RIVERWAY SUBDIVISION - PHASE I RECORDED JUNE
3, 1988 AS DOCUMENT 88241319 AND FILED JUNE 3, 1988 AS DOCUMENT LR 3713139:
A) RESERVATION BY LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST NUMBER 113000
("OWNER") OF RIGHT AND AUTHORITY TO CONSTRUCT, RECONSTRUCT, REPAIR MAINTAIN, AND
OPERATE LANDSCAPING, IRRIGATION SYSTEMS, PARKING LOTS, ACCESS ROADS, PEDESTRIAN
PATHWAYS, FACILITIES USED IN CONNECTION WITH THE UNDERGROUND TRANSMISSION OF
ELECTRICITY, SOUNDS AND SIGNALS, DEVICES FOR THE RECEPTION AND TRANSMISSION OF
ELECTROMAGNETIC OR OPTICAL SIGNALS, DRAINAGE PIPES AND OTHER FACILITIES OVER THE
EASEMENTS GRANTED THEREIN, ALONG WITH THE RIGHT TO GRANT ADDITIONAL PUBLIC OR
PRIVATE BENEFIT UTILITY OR ACCESS EASEMENTS OVER THE EASEMENTS GRANTED THEREIN.
B) PEDESTRIAN PATHWAY AND MAINTENANCE EASEMENT RESERVED TO OWNER.
C) PUBLIC UTILITY EASEMENT TO VILLAGE OF ROSEMONT ACROSS LOT 6.
D) PUBLIC UTILITY EASEMENT TO NORTHERN ILLINOIS GAS COMPANY ACROSS LOT 6.
E) PUBLIC UTILITY EASEMENT TO CENTRAL TELEPHONE COMPANY OF ILLINOIS ACROSS LOT
6.
F) PUBLIC UTILITY EASEMENT TO COMMONWEALTH EDISON EASEMENT ACROSS LOT 6.
G) SATELLITE SIGNAL EASEMENT ACROSS LOT 6 RESERVED TO OWNER.
(AFFECTS PARCELS 2 AND 5)
4. EASEMENTS SHOWN ON PLAT OF RIVERWAY SUBDIVISION - PHASE II RECORDED MARCH
11, 1992 AS DOCUMENT NO. 92157888
A) RESERVATION BY LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST NUMBER 113000
("OWNER") OF RIGHT AND AUTHORITY TO CONSTRUCT, RECONSTRUCT, REPAIR, MAINTAIN,
AND OPERATE LANDSCAPING, IRRIGATION SYSTEMS, PARKING LOTS, ACCESS ROADS,
PEDESTRIAN PATHWAYS, FACILITIES USED IN CONNECTION WITH THE UNDERGROUND
TRANSMISSION OF ELECTRICITY, SOUNDS AND SIGNALS, DEVICES FOR THE RECEPTION AND
TRANSMISSION OF ELECTROMAGNETIC OR OPTICAL SIGNALS, DRAINAGE PIPES AND OTHER
FACILITIES OVER THE EASEMENTS GRANTED THEREIN, ALONG WITH THE RIGHT TO GRANT
ADDITIONAL PUBLIC OR PRIVATE BENEFIT UTILITY OR ACCESS EASEMENTS OVER THE
EASEMENTS GRANTED THEREIN.
B) GENERAL RESERVATION OF EASEMENTS TO OWNER ACROSS ▇▇▇▇ ▇, ▇▇, ▇▇, ▇▇, ▇▇, ▇▇
▇▇▇ ▇▇.
▇) PEDESTRIAN PATHWAY AND MAINTENANCE EASEMENT RESERVED TO OWNER ACROSS LOTS 9,
10 AND 17.
D) PUBLIC UTILITY EASEMENT TO VILLAGE OF ROSEMONT ACROSS ▇▇▇▇ ▇▇, ▇▇, ▇▇ ▇▇▇ ▇▇.
▇) PUBLIC UTILITY EASEMENT TO CENTRAL TELEPHONE COMPANY OF ILLINOIS ACROSS LOTS
11, 13, 15 AND 16.
F) PUBLIC UTILITY EASEMENT TO NORTHERN ILLINOIS GAS COMPANY ACROSS ▇▇▇▇ ▇▇, ▇▇,
▇▇ ▇▇▇ ▇▇.
▇) PUBLIC UTILITY EASEMENT TO COMMONWEALTH EDISON EASEMENT ACROSS LOTS 11, 13,
15 AND 16.
H) SATELLITE SIGNAL EASEMENT ACROSS ▇▇▇▇ ▇, ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ TO OWNER.
I) THE PLAT CONTAINS APPROVAL BY THE ILLINOIS DEPARTMENT OF TRANSPORTATION WITH
RESPECT TO ROADWAY ACCESS.
J) THE PLAT STATES THAT PORTIONS OF THE PROPERTY IN THE SUBDIVISION ARE ADJACENT
TO WILLOW-▇▇▇▇▇▇▇ CREEK. FLOOD HAZARDS ARE DESCRIBED IN A MAP PUBLISHED BY THE
NATIONAL FLOOD INSURANCE PROGRAM. ALL LAND WITHIN ▇▇▇▇ ▇, ▇▇, ▇▇, ▇▇, ▇▇, ▇▇ ▇▇▇
▇▇ ▇▇▇ BEEN RAISED ABOVE THE 100 YEAR FLOOD ELEVATIONS. THE 100 YEAR FLOOD
ELEVATIONS. THE 100 YEAR FLOOD WATERS FROM WILLOW-▇▇▇▇▇▇▇ CREEK ARE CONFINED
EXCLUSIVELY TO LOT 11.
K) EASEMENT DEPICTED ON LOT 11 OF THE PLAT FOR THE CONVEYANCE OF THE DRAINAGE
WATERS OF WILLOW-▇▇▇▇▇▇▇ CREEK, ACCORDING TO FLOOD PLAIN MAPS PUBLISHED BY U.S.
GOVERNMENT THE WATER SURFACE ELEVATION OF THE 100 YEAR FLOOD VARIES FROM 629.8
U.S.G.S TO 627.0 U.S.G.S.
L) EASEMENT FOR TWO ROADWAY CULVERTS DEPICTED ON LOT 11 OF THE PLAT.
(AFFECTS PARCELS 2 AND 6)
5. 6 FOOT FIRE LANE EASEMENT, CREATED BY AMENDMENT TO LEASE BY SIMON-ROSEMONT
DEVELOPERS AND MARRIOTT CORPORATION RECORDED NOVEMBER 18, 1988 AS DOCUMENT
88535337 AND FILED APRIL 3, 1987 AS DOCUMENT LR3604965, AS SHOWN ON SURVEY BY
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ASSOCIATES, LTD. DATED JULY 29, 1996 AS ORDER NO. 960577.
(AFFECTS PARCEL 1)
6. 15 FOOT WATER MAIN EASEMENT, AS SHOWN ON THE AFORESAID SURVEY.
(AFFECTS PARCEL 1)
7. 15 FOOT STORM SEWER EASEMENT, AS SHOWN ON THE AFORESAID SURVEY.
(AFFECTS PARCEL 1)
8. 10 FOOT COMMONWEALTH EDISON COMPANY EASEMENT, AS SHOWN ON THE AFORESAID
SURVEY.
(AFFECTS PARCEL 1)
9. NATURAL GAS PIPELINE EASEMENT OVER THE WESTERLY LINE OF THE LAND, AS
DISCLOSED BY THE AFORESAID SURVEY.
(AFFECTS PARCELS 2 AND 6)
10. INFORMATION AND DISCLOSURES CONTAINED IN ENVIRONMENTAL DISCLOSURE DOCUMENT
FOR TRANSFER OF REAL PROPERTY RECORDED DECEMBER 20, 1993 AS DOCUMENT 03040838.
11. RIGHTS OF LAND OWNERS OF THE ADJOINING PROPERTIES IN AND TO THE FREE AND
UNOBSTRUCTED FLOW OF THE WATERS OF ▇▇▇▇▇▇▇-WILLOW CREEK, WHICH RIGHTS DO NOT
EXTEND BEYOND THE BANKS OF THE CREEK AS SHOWN ON SURVEY MADE BY ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
& ASSOCIATES, LTD. DATED JULY 29, 1996 AS ORDER NO. 960577.
(AFFECTS PARCELS 2 AND 6)
12. THE RIGHTS OF TENANTS, AS TENANTS ONLY UNDER THOSE CERTAIN LEASES DESCRIBED
IN EXHIBIT ___ TO THIS __________________________________.
13. GRANT OF EASEMENT FROM PARKWAY BANK AND TRUST COMPANY OF CHICAGO, A
CORPORATION OF ILLINOIS, AS TRUSTEE UNDER TRUST AGREEMENT DATED MAY 15, 1979 AND
KNOWN AS TRUST NUMBER 4927 TO THE METROPOLITAN SANITARY DISTRICT OF GREATER
CHICAGO, A MUNICIPAL CORPORATION DATED DECEMBER 26, 1980 AND RECORDED JUNE 15,
1981 A DOCUMENT 25904107 GRANTING THE RIGHT, PRIVILEGE, AND AUTHORITY TO
CONSTRUCT, RECONSTRUCT, REPAIR, MAINTAIN AND OPERATE A TUNNEL SYSTEM.
(AFFECTS PARCELS 2, 5 AND 6)
14. EASEMENT GRANT DATED AUGUST 14, 1978 AND FILED FEBRUARY 14, 1979 AS
DOCUMENT LR3075942 FROM ▇▇▇▇ ▇▇▇▇▇▇, TO THE METROPOLITAN SANITARY DISTRICT OF
GREATER CHICAGO, A MUNICIPAL CORPORATION ITS SUCCESSORS AND ASSIGNS, OF A
PERPETUAL EASEMENT, RIGHT, PERMISSION, AND AUTHORITY TO CONSTRUCT, RECONSTRUCT,
REPAIR, REPLACE, OPERATE AND MAINTAIN THE CONVEYANCE FACILITIES UNDER AND
THROUGH THE FOLLOWING DESCRIBED PROPERTY, REFERRED TO AS PARCEL A - PERMANENT
SUBTERRANEAN EASEMENT.
PARCEL A: PERMANENT SUBTERRANEAN EASEMENT.
THE PROPERTY AND SPACE LYING BETWEEN ELEVATIONS 82.0 FEET AND 157.0 FEET
(CHICAGO CITY DATUM) AND ALSO LYING WITHIN THE BOUNDARIES, PROJECTED VERTICALLY
DOWNWARD FROM THE SURFACE OF THE EARTH, OF THAT PART OF THE NORTH 157.20 FEET OF
LOT `A' WEST OF THE CENTER OF ROAD AND INCLUDING THAT PART OF DES PLAINES RIVER
LYING IN THE SOUTHWEST 1/4 OF SECTION 3 AND IN SAID LOT 19 IN THE ASSESSOR'S
DIVISION OF SAID ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ OF THE THIRD
PRINCIPAL MERIDIAN, IN ▇▇▇▇ COUNTY, ILLINOIS, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT IN THE NORTH LINE OF SAID LOT `A', 165.50 FEET WEST OF THE
CENTER OF DES PLAINES RIVER (SAID POINT BEING THE CENTER OF SAID SECTION 3)
THENCE SOUTH 31 DEGREES 40 MINUTES 33 SECONDS WEST ALONG A LINE (SAID LINE
EXTENDING FROM THE POINT OF COMMENCEMENT TO A POINT WHICH IS 357.44 FEET SOUTH
OF THE NORTH LINE OF SAID LOT A AND 300 FEET WEST OF THE CENTER OF SAID DES
PLAINES RIVER) FOR A DISTANCE OF 163.75 FEET TO THE POINT OF BEGINNING; THENCE
CONTINUING SOUTH 31 DEGREES 40 MINUTES 33 SECONDS WEST ALONG SAID LINE FOR A
DISTANCE OF 25.76 FEET TO THE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ SUBDIVISION; THENCE SOUTH 87 DEGREES 48 MINUTES 17 SECONDS WEST ALONG THE
NORTH LINE OF SAID LOT 4, SAID NORTH LINE ALSO BEING THE SOUTH LINE OF THE NORTH
157.20 FEET OF SAID LOT `A', FOR A DISTANCE OF 24.5 FEET; THENCE NORTH 05
DEGREES 13 MINUTES 30 SECONDS WEST FOR A DISTANCE OF 157.42 FEET TO THE NORTH
LINE OF SAID LOT `A'; THENCE NORTH 87 DEGREES 48 MINUTES 17 SECONDS EAST ALONG
THE NORTH LINE OF SAID LOT A FOR A DISTANCE OF 40.06 FEET; THENCE SOUTH 05
DEGREES 13 MINUTES 30 SECONDS EAST FOR A DISTANCE OF 135.00 FEET TO THE POINT OF
BEGINNING, AND ALL THE COVENANTS, CONDITIONS AND AGREEMENTS THEREIN CONTAINED.
(AFFECTS PARCELS 2, 5 AND 6)
15. EASEMENT FOR INGRESS AND EGRESS, AND FOR THE PUBLIC UTILITIES, ALONG THE
EAST 10 FEET OF ▇▇▇ ▇, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇, ▇▇ ROSEMONT INDUSTRIAL
CENTER AFORESAID, AS SHOWN ON THE PLAT OF SAID SUBDIVISION RECORDED FEBRUARY 17,
1967, AS DOCUMENT 20066369, AND FILED JANUARY 17, 1967, AS DOCUMENT LR2312390.
(AFFECTS PARCELS 2 AND 5)
16. EASEMENT FOR PUBLIC UTILITIES ALONG:
THE NORTH 10 FEET OF ▇▇▇ ▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ FEET THEREOF;
THE SOUTH 10 FEET OF LOT 4; AND
THE WEST 10 FEET OF LOT 5;
ALL IN ROSEMONT INDUSTRIAL CENTER AFORESAID; AS SHOWN ON THE PLAT OF SAID
SUBDIVISION RECORDED FEBRUARY 17, 1967, AS DOCUMENT 20066369 AND FILED JANUARY
17, 1967 AS DOCUMENT LR2312390.
(AFFECTS PARCELS 2 AND 5)
17. EASEMENT OVER:
THE ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇;
THE WEST 10 FEET AND THE NORTH 10 FEET OF LOT 3;
THE SOUTH 10 FEET OF LOT 4; AND
THE WEST 10 FEET OF LOT 5;
ALL IN ROSEMONT INDUSTRIAL CENTER AFORESAID;
FOR THE PURPOSE OF INSTALLING AND MAINTAINING ALL EQUIPMENT NECESSARY TO SERVE
THE SUBDIVISION AND OTHER LAND WITH TELEPHONE AND ELECTRIC SERVICE, TOGETHER
WITH THE RIGHT TO OVERHANG AERIAL SERVICE WIRES AND THE RIGHT OF ACCESS TO SUCH
WIRES, AS CREATED BY GRANT TO THE ILLINOIS ▇▇▇▇ TELEPHONE COMPANY AND THE
COMMONWEALTH EDISON COMPANY AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND AS
SHOWN ON THE PLAT OF SUBDIVISION RECORDED FEBRUARY 17, 1967 AS DOCUMENT
20066369, AND FILED JANUARY 17, 1967 AS DOCUMENT LR2312390.
(AFFECTS PARCELS 2 AND 5)
18. EASEMENT OVER:
THE ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇;
THE WEST 10 FEET AND THE NORTH 10 FEET OF LOT 3;
THE SOUTH 10 FEET OF LOT 4; AND
THE WEST 10 FEET OF LOT 5;
ALL IN ROSEMONT INDUSTRIAL CENTER AFORESAID;
FOR THE INSTALLATION, MAINTENANCE, RELOCATION, RENEWAL AND REMOVAL OF GAS MAINS
AND APPURTENANCES, RESERVED FOR AND GRANTED TO NORTHERN ILLINOIS GAS COMPANY,
ITS SUCCESSORS AND ASSIGNS AND SET FORTH ON THE PLAT OF SUBDIVISION RECORDED
FEBRUARY 17, 1967 AS DOCUMENT 20066369, AND FILED JANUARY 17, 1967 AS DOCUMENT
LR2312390.
(AFFECTS PARCELS 2 AND 5)
19. EASEMENT ALONG THE WEST 10 FEET, MEASURED AT RIGHT ANGLES TO THE
WESTERNMOST LOT LINE, OF THAT PART OF LOT 4 IN ROSEMONT INDUSTRIAL CENTER
AFORESAID LYING NORTH OF THE NORTH LINE OF ▇▇▇▇▇▇▇▇▇ AVENUE. FOR THE
CONSTRUCTION, OPERATION, MAINTENANCE AND REPAIR OF A STORM SEWER, AS CREATED BY
GRANT MADE BY AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE
UNDER TRUST NUMBER 24620, TO THE VILLAGE OF ROSEMONT, RECORDED SEPTEMBER 27,
1967 AS DOCUMENT 20274024.
(AFFECTS PARCELS 2 AND 5)
20. EASEMENT ALONG THE NORTH 10 FEET, MEASURED AT RIGHT ANGLES TO THE NORTH
LOT LINE, OF LOT 4 IN ROSEMONT INDUSTRIAL CENTER AFORESAID, FOR THE
CONSTRUCTION, OPERATION, MAINTENANCE AND REPAIR OF A STORM SEWER, AS CREATED BY
GRANT MADE BY AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE
UNDER TRUST NUMBER 24620, TO THE VILLAGE OF ROSEMONT, RECORDED JANUARY 12, 1968,
AS DOCUMENT 20377727.
(AFFECTS PARCELS 2 AND 5)
21. PROPOSED LOCATION OF SUBTERRANEAN TARP TUNNEL, AS INDICATED ON THE
METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO TARP AND FLOOD CONTROL ATLAS
OF 1981 AND AS SHOWN ON THE SURVEY PREPARED BY ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ASSOCIATES,
LTD, PAGE 1 OF 2.
(AFFECTS PARCELS 2 AND 5)
22. INTENTIONALLY LEFT BLANK
23. (A) TERMS, PROVISIONS, CONDITIONS, LIMITATIONS AND EASEMENTS AS CONTAINED
IN THE INSTRUMENTS CREATING THE EASEMENTS DESCRIBED IN ▇▇▇▇▇▇▇ ▇, ▇, ▇, ▇ ▇▇▇ ▇
▇▇▇ ▇▇▇▇▇▇▇▇▇.
(▇) RIGHTS OF ADJOINING OWNERS OF THE CONCURRENT USE OF THE EASEMENT SET FORTH
IN PARCELS 2, 5 AND 6.
24. FINANCING STATEMENT EVIDENCING AN INDEBTEDNESS FROM MUTUAL BENEFIT CHICAGO
MARRIOTT SUITE HOTEL PARTNERS, L.P., DEBTOR, TO NATIONAL BANK OF CANADA, SECURED
PARTY, FILED ON JUNE 22, 1994 AS NUMBER 94U09566.
CONTINUATION FILED JUNE 22, 1994 AS DOCUMENT 94U09567.
AMENDMENT TO CONTINUATION FILED JUNE 22, 1994 AS DOCUMENT 94U09568.
AMENDMENT FILED SEPTEMBER 20, 1994 AS DOCUMENT 94U13909.
C-1
EXHIBIT D
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TO
MORTGAGE
--------
LIST OF ENVIRONMENTAL REPORTS
-----------------------------
1. Report entitled "Hydraulic and Hydrologic Considerations of the
Office-Hotel Complex, ▇▇▇▇▇▇▇-River Road Properties, Rosemont, Illinois",
prepared by Harza Engineering Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, dated July 18, 1985, prepared for Hawthorn Realty Group, Inc.
2. Report entitled "Report of Preliminary Geotechnical Investigation of
Marriott Suite Hotel Site, ▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇", prepared by ▇▇▇▇▇▇▇▇▇▇ Associates, P.C., Engineering and Geotechnic
Consultants, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
dated January 7, 1986, prepared for Marriott Corporation.
3. Report entitled "Site Contamination Assessment, Marriott Rosemont
Suites Hotel, Rosemont, Illinois", prepared by SCS Engineers, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
and ▇▇▇▇▇▇▇, Consulting Engineers, Inc., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, dated April 15, 1986, prepared for Hawthorn Realty Group.
4. Report entitled "Environmental Assessment of the Riverway Site,
Rosemont, Illinois", prepared by ▇▇▇ ▇. ▇▇▇▇▇▇, Inc., Designers/Consultants,
Bannockburn, Illinois, dated June, 1986, prepared for Marriott Corporation.
5. Letter dated February 19, 1987 from ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President,
Hawthorn Realty Group to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant General Counsel, ▇▇▇▇▇▇
▇▇▇▇▇ & Associates (5 pages).
6. Letter dated December 11, 1986 from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice
President, SCS Engineers to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, Design Manager, Marriott
Corporation (3 pages).
7. Report entitled "Summary and Evaluation of Measures Taken to Mitigate
Environmental Concerns, Marriott Rosemont Suites Hotel", prepared by SCS
Engineers, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, dated October 18,
1988 prepared for Mutual Benefit Chicago Marriott Suite Hotel Partners.
D-1
EXHIBIT E
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TO
MORTGAGE
--------
AMENDMENTS TO GROUND LEASE
--------------------------
The Ground Lease: That certain Marriott Hotel Ground Lease dated as of
June 16, 1986 by and between Simon-Rosemont Developers (defined as "Developers"
for purposes of this Exhibit E only), as landlord and Marriott Corporation
(defined as "Marriott" for purposes of this Exhibit E only), as tenant, as
amended, modified and supplemented by:
1. Memorandum of Lease filed on April 3, 1987, in the Recorder's Office
of ▇▇▇▇ County, Illinois (the "Recorder's Office") as Document No. 3604964;
2. Letter of Agreement dated February 19, 1986 [sic] [should be 1987] by
and between Developers and Marriott;
3. Letter Agreement dated June 13, 1986 by and between Developers and
Marriott;
4. Letter Agreement dated June 16, 1986 by and between Developers and
Marriott;
5. Letter Agreement dated December 3, 1986 by and between Developers and
Marriott;
6. First Amendment to Lease dated March 11, 1987 by and between
Developers and Marriott recorded in the Recorder's Office on April 3, 1987 as
Document No. 36049654;
7. Subordination and Attornment Agreement dated March 11, 1987 by and
between Marriott and Chemical Bank;
8. Letter Agreement dated March 31, 1987 between Developers and Marriott;
9. Deed dated February 1, 1988 between Developers and LaSalle National
Bank in its capacity as Trustee ("Trustee") under Trust Agreement dated February
1, 1988 and known as Trust No. 11300, whereby Developers transferred its
interest in the Ground Lease to a trust under which Developers is the sole
beneficiary;
10. Second Amendment to Lease dated as of December 28, 1988 by and between
Trustee and Marriott recorded in the Recorder's Office on February 9, 1989 as
Document No. 89063670;
▇-▇
▇▇. Certificate dated June 8, 1989 by and between Trustee, Developers and
Marriott memorializing the "Lease Commencement Date", the "Opening Date", and
the "Initial Term", all as defined in the Ground Lease;
12. Notice of Assignment of Lease dated as of June 12, 1989 between
Marriott, as assignor, and Borrower, as assignee; and
13. Letter Agreement dated November 10, 1993 between Developers and the
Borrower.
E-2