Exhibit 10.2
AMENDED AND RESTATED
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ASSIGNMENT OF MANAGEMENT AGREEMENT
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This Amended and Restated Assignment of Management Agreement (the
"Assignment") is made as of September 24, 1996 by and among MUTUAL BENEFIT
CHICAGO MARRIOTT SUITE HOTEL PARTNERS, L.P., a Rhode Island limited partnership
("Borrower"), MARRIOTT INTERNATIONAL, INC., a Delaware corporation ("Manager"),
and NATIONAL BANK OF CANADA ("Lender").
R E C I T A L S:
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A. Borrower and Manager are parties to that certain Management Agreement
(the "Management Agreement") dated as of June 12, 1989 pursuant to which Manager
manages the hotel commonly known as the Chicago X'Xxxx Marriott Suites Hotel
situated in Rosemont, Illinois (the "Hotel").
B. Borrower and Lender previously entered into that certain Loan
Agreement dated as of June 12, 1989 whereby Lender made a loan (the "Original
Loan") to Borrower as evidenced by that certain Promissory Note Secured by
Mortgage dated as of June 12, 1989, and having a maturity date of June 12, 1996
(the "Original Note").
C. The Original Note was secured, in part, by that certain Leasehold
Mortgage, Security Agreement and Assignment of Rents (the "Original Mortgage")
granted by Borrower to Lender and recorded in the Recorder's Office for Xxxx
County, Illinois (the "Recorder's Office") as Document No. 89266493, which
Original Mortgage covered, among other security, Borrower's interest in the
Hotel and Borrower's leasehold estate in the land under the Ground Lease.
D. In order to induce Lender to make the Original Loan to Borrower,
Manager entered into that certain Assignment of Management Agreement dated as of
June 12, 1989 by and among Manager, Borrower and Lender.
E. In accordance with that certain Amended and Restated Loan Agreement
(the "Loan Agreement") of even date herewith between Borrower and Lender, Lender
has made a loan to Borrower which is evidenced by an Amended and Restated
Secured Promissory Note (the "Note") in the principal sum of Twenty Five Million
Five Hundred Thousand and 00/100 Dollars ($25,500,000.00; sometimes referred to
herein as the "Loan") with a scheduled maturity date of June 12, 2001.
F. The Note is secured, in part, by that certain Amended and Restated
Leasehold Mortgage (the "Mortgage") dated of even date herewith granted by
Borrower to Lender and
recorded on ____________, 1996 in the Recorder's Office as Document No.
____________, which Mortgage covers, among other security, Borrower's interest
in the Hotel and Borrower's leasehold estate in the land under the Ground Lease.
G. Manager desires that Lender make the Loan to Borrower and, as an
inducement thereto, is willing to duly execute and deliver, and perform its
obligations under, this Assignment.
H. All capitalized terms used herein without definition shall have the
meanings ascribed to them in the Loan Agreement.
NOW THEREFORE, in consideration of the above-recited matters and the mutual
agreements herein, the parties hereto agree as follows:
1. Assignment. Borrower hereby grants, transfers, and assigns to Lender
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all of its right, title, and interest in, to and under the Management Agreement.
2. Purpose of Assignment. This Assignment is made for the purpose of
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securing:
(a) payment of all indebtedness evidenced by the Note;
(b) performance of and compliance with all of the terms, covenants,
and conditions set forth herein, in the Note, the Mortgage, the Loan
Agreement and the other Loan Documents (as defined in the Loan Agreement);
(c) payment of further advances, and interest thereon, which may be
made by Lender to Borrower, whether or not Lender is obligated to make such
advances; and
(d) payment of all other sums agreed to be paid by Borrower herein or
in the Note, the Mortgage, the Loan Agreement or any of the other Loan
Documents.
3. Security Agreement. This Assignment shall constitute a security
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agreement within the meaning of the Illinois Uniform Commercial Code, and
Borrower hereby grants to Lender a security interest in the Management
Agreement.
4. Borrower's Covenants. Borrower hereby covenants and agrees as
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follows:
(a) Borrower shall perform each and every obligation, covenant, and
agreement of the Management Agreement to be performed by Borrower
thereunder.
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(b) Borrower shall, at no cost or expense to Lender, enforce or secure
the performance of each and every obligation, covenant, condition and
agreement of the Management Agreement by the other parties thereto to be
performed.
(c) Borrower shall not modify, extend, or in any way alter the terms
of the Management Agreement or accept a surrender or termination thereof,
or waive, excuse, condone, or in any manner release or discharge any party
thereto of or from the obligations, covenants, conditions, and agreements
by such party to be performed thereunder, in the manner and at the place
and time specified therein. Borrower hereby expressly releases,
relinquishes, and surrenders unto Lender all its right, power, and
authority, to amend, modify, cancel, terminate, or in any way alter the
terms or provisions of the Management Agreement without the prior written
consent of Lender.
(d) Borrower shall not consent to any change of the name of the Hotel
(except in connection with a change of the name of the Marriott Suites
Hotel system) without the prior written consent of Lender.
(e) At no cost or expense to Lender, Borrower shall appear in and
defend any action or proceeding arising under, growing out of, or in any
manner connected with the Management Agreement or the obligations, duties,
or liabilities of any party thereto, and shall pay all costs and expenses
of Lender, including attorneys' fees in any action or proceeding concerning
the Management Agreement in which Lender may appear.
(f) If Borrower fails to make any payment or to do any act as herein
provided, then Lender shall have the right but without the obligation so to
do and without notice to or demand on Borrower, and without releasing
Borrower from any obligation hereof, to make such payment or do such act in
such manner and to such extent as Lender may deem necessary to protect the
security hereof, including, without limiting the generality of the
foregoing, the right to appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of Lender,
to perform and discharge each and every obligation, covenant, and agreement
of Borrower contained in the Management Agreement and in the exercise of
any such rights or powers to pay necessary costs and expenses, employ
counsel and incur and pay reasonable attorneys' fees.
(g) Borrower shall pay all sums expended by Lender under the authority
hereof, as provided in Section 12.4 of the Loan Agreement.
(h) Upon Lender's request, Borrower shall transfer and assign to
Lender any and all subsequent agreements that are entered into pursuant to,
in replacement of or to serve substantially the same purpose as the
Management Agreement upon the same or substantially the same terms and
conditions as are contained in this Assignment, and to
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make, execute, and deliver to Lender, upon demand, any and all instruments
that may be necessary therefor.
5. Status of Management Agreement. Each of Manager and Borrower
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represents and warrants that the Management Agreement has not been amended or
modified and that no default exists under the Management Agreement and that no
event has occurred or exists that, with notice or lapse of time or both, would
constitute a default under the Management Agreement.
6. Limited License. As long as no Event of Default has occurred under
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the Note, the Mortgage, the Loan Agreement or any of the other Loan Documents,
Borrower shall have the right to (a) exercise all of its rights under the
Management Agreement, other than its rights to (i) amend, modify, cancel,
terminate, or in any way alter the terms of the Management Agreement, or (ii)
consent to a change of the name of the Hotel, and (b) collect all sums due under
the Management Agreement, provided that any sums collected by Borrower or on
Borrower's behalf shall be treated as Gross Revenues for purposes of the Loan
Agreement and Borrower's rights with respect thereto shall be subject to Section
8 of the Loan Agreement and the other provisions of the Loan Documents.
7. Lender's Rights and Remedies. Upon or at any time after any Event of
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Default under the Note, the Mortgage, the Loan Agreement, or any of the other
Loan Documents, Lender may exercise Borrower's rights to amend, modify or
enforce the Management Agreement, exercise any of Borrower's rights or remedies
thereunder and do any acts that Lender deems proper to protect the security
hereof, in its own name xxx for or otherwise collect and receive amounts due and
payable to Borrower under the Management Agreement, including those past due and
unpaid and apply the same, less costs and expenses of operation and collection,
including reasonable attorneys' fees, to any indebtedness secured hereby, and in
such order as Lender may determine. The exercise of any of the foregoing rights
or remedies or the collection of such amounts and the application thereof as
aforesaid, shall not cure or waive any default under the Note, the Mortgage, the
Loan Agreement, or any of the other Loan Documents. Lender may exercise its
rights under this Assignment as often as any Event of Default may occur. The
exercise of such rights shall not constitute a waiver of any other remedies of
Lender under the Note, the Mortgage, the Loan Agreement, or any of the other
Loan Documents or law.
8. Limited Obligations of Lender. Lender shall not be obligated to
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Borrower or, unless Lender assumes Borrower's obligations under the Management
Agreement, to Manager to perform or discharge, nor does it hereby undertake to
perform or discharge, any obligation, duty, or liability under the Management
Agreement or under or by reason of this Assignment, and Borrower shall and does
hereby agree to indemnify and to hold Lender harmless of and from any and all
liability, loss, or damage that it might incur under the Management Agreement or
under or by reason of this Assignment and of and from any and all claims and
demands whatsoever that may be asserted against it by reason of any alleged
obligation or undertaking upon its part to
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perform or discharge any of the terms, covenants, or agreements contained in the
Management Agreement; provided, however, that such indemnification shall exclude
any such liability, loss, damage, claim or demand arising out of any wrongful or
negligent act or omission of Lender, its agents or employees. Should Lender
incur any such liability, loss, or damage under the Management Agreement or
under or by reason of this Assignment, or in the defense of any such claim or
demand, the amount thereof, including costs, expenses, and attorneys' fees,
shall be secured hereby, and Borrower shall reimburse Lender therefor
immediately upon demand.
9. Recognition/Nondisturbance of Management Agreement. So long as the
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Management Agreement remains in effect, (a) Lender's right to enter and take
physical possession of the Hotel, collect rents from the Hotel, assemble or sell
any personalty located at or used in connection with the Hotel shall be subject
to the terms of the Management Agreement and shall not otherwise interfere with
the use or operation of the Hotel by Manager pursuant to the Management
Agreement, and (b) Lender shall permit Manager to withdraw funds from the "Main
Disbursing Account", the "General Investment Account" and the "FF&E Account" (as
such terms are defined in the Loan Agreement) in accordance with the terms of
the Management Agreement for the operation of the Hotel and other payments due
and owing to Manager under the terms of the Management Agreement,
notwithstanding the pledge of the foregoing accounts to Lender as security for
the Loan.
10. Notice to Lender. Manager shall deliver to Lender a copy of any
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default notice given to Borrower under the Management Agreement
contemporaneously with the delivery of any such notice to Borrower.
11. Lender's Right to Cure. Manager grants to Lender the right, but not
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the obligation, to cure any default of Borrower under the Management Agreement
before termination by Manager of the Management Agreement. Lender may cure such
default within the grace period, if any, allowed to Borrower; provided, however,
that in addition to such grace periods, if any, Lender shall have 30 days to
cure monetary defaults and 60 days to cure non-monetary defaults; provided,
further that if any such default is incapable of being cured, Manager will not
terminate the Management Agreement as to Lender by reason of such default if
Lender shall:
(a) within 90 days after receipt of notice from Manager of such
default, institute foreclosure of the Mortgage or otherwise enforce
Lender's remedies thereunder and diligently prosecute such foreclosure or
enforcement to conclusion; and
(b) have cured and continue to cure respectively:
(i) in a prompt manner all other defaults that may have arisen
under the provisions of the Management Agreement before
Lender institutes such foreclosure and enforcement remedies;
and
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(ii) within the cure periods provided to Borrower in the
Management Agreement, all defaults that arise during the
pendency of such foreclosure and enforcement of remedies.
12. Acceptance of Lender's Performance. Manager agrees to accept any
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payment or act from Lender with the same effect as if made or performed by
Borrower provided such performance and payment is accomplished by Lender within
the time periods required by the Management Agreement, as affected by Section 11
hereof.
13. Attornment Following Foreclosure. Unless Borrower or Manager shall
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have theretofore terminated the Management Agreement, and provided that Lender
shall have assumed and performed all of Borrower's obligations and shall have
cured all of Borrower's defaults under the Management Agreement pursuant to
Section 11 hereof, Manager shall attorn to and recognize Lender as successor to
Borrower under the Management Agreement if Lender shall succeed Borrower in
title to the Hotel through foreclosure or delivery of a deed in lieu of
foreclosure, and Manager shall, in such event, continue to perform for Lender
under, and be bound in all respects to Lender by, the Management Agreement.
14. Estoppel Certificates. Manager shall, no later than 15 days after its
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receipt of a written request of Lender, execute an estoppel letter stating that:
(a) the Management Agreement is in full force and effect and has not
been modified, amended or assigned;
(b) neither Manager nor, to the best of Manager's knowledge, Borrower
is in default under any of the terms, covenants or provisions of the
Management Agreement and Manager knows of no event that with the passage of
time, the giving of notice, or both, would constitute a default under the
Management Agreement;
(c) Manager has not commenced any action or given or received any
notice for the purpose of terminating the Management Agreement; and
(d) all sums due and payable to the Manager under the Management
Agreement have been paid in full;
or identifying such modification, amendment, assignment, default, event, action,
notice or delinquency.
15. Termination of Assignment. This Assignment is executed and delivered
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as collateral security and the execution and delivery hereof shall not in any
way impair or diminish any obligation of Borrower under the Management Agreement
and shall not impose any of such
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obligations on Lender. Upon the payment in full of all indebtedness secured
hereby, this Assignment shall terminate, but the certificate of any officer of
Lender showing any part of such indebtedness remaining unpaid shall be and
constitute conclusive evidence of the validity, effectiveness, and continuing
force of this Assignment, and any person may and is hereby authorized to rely
thereon.
16. Successors and Assigns. This Assignment shall be binding upon and
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inure to the benefit of Borrower and Lender and their successors and assigns;
provided that Borrower shall not be permitted to assign its rights or
obligations under this Assignment and any such purported assignment shall be
void. The term "Management Agreement" as used herein means the Management
Agreement hereby assigned and any extension or renewal thereof or any agreements
entered into pursuant to, in replacement of or to serve substantially the same
purpose as, the Management Agreement provided that Manager agrees that (i) the
Management Agreement shall not be amended without the prior written consent of
Lender, and (ii) the term "Management Agreement" shall not include any
amendments entered into without such prior written consent of Lender.
17. Notices. All notices, requests and demands to or upon the respective
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parties hereto, to be effective, shall be in writing and shall be delivered by
hand or sent by (x) mail (certified or registered, postage prepaid, return
receipt requested), (y) by a nationally recognized overnight courier service, or
(z) by facsimile transmission (provided that the original of any notice sent by
facsimile transmission shall be sent by a nationally recognized overnight
courier service) and unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered if delivered by hand, or three
Business Days (as defined in the Loan Agreement) following deposit if sent by
certified or registered mail, or on the next Business Day following deposit with
a nationally recognized overnight courier service, or upon receipt if sent by
facsimile with an original by nationally recognized overnight courier service
(provided that if said facsimile was received after 5:00 p.m. in the local time
zone of the recipient on any Business Day, said notice shall not be deemed to
have been received until the following Business Day), addressed in each case as
follows, or to such address or other address as may be hereafter notified by
such parties:
Borrower: Mutual Benefit Chicago Marriott Suite Hotel
Partners, L.P.
Host Marriott Corporation
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Law Department
Facsimile No.: (000) 000-0000
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Lender: National Bank of Canada
New York Branch
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: XxxxXxx Xxxxxx
Facsimile No.: (000) 000-0000
Manager: Marriott International, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Law Department/Hotel Operations
Facsimile No. : (000) 000-0000
with a copy to: Marriott Suites Hotel
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Manager
Facsimile No.: (000) 000-0000
18. Governing Law. This Assignment is governed by and shall be construed
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in accordance with the laws of the State of Illinois except to the extent
preempted by United States federal law.
19. Counterparts. This Assignment may be executed in any number of
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counterparts, each of which shall constitute an original but all of which, taken
together, shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each party hereto has duly executed and delivered this
Assignment as of the day and year first above written.
BORROWER:
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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/ Xxxxx X. Xxxxxxxxx
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Its: Vice President
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MANAGER:
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MARRIOTT INTERNATIONAL, INC., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxx
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Its: Vice President
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LENDER:
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NATIONAL BANK OF CANADA
By: /s/ Xxxx Xxx Xxxxxx
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Its: Vice President
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