Exhibit 10.r
INTERCREDITOR AGREEMENT
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INTERCREDITOR AGREEMENT, dated as of March 21, 1997 (this "Agreement"), by
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and between XXXXXX BROTHERS HOLDINGS INC., DOING BUSINESS AS XXXXXX CAPITAL, A
DIVISION OF XXXXXX BROTHERS HOLDINGS INC., a Delaware corporation, together with
its successors and assigns ("Senior Lender"), and CBM One Holdings, Inc., a
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Delaware corporation ("Junior Lender").
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WHEREAS, Senior Lender has agreed to provide certain financing to an
affiliate of Junior Lender, Courtyard by Marriott Limited Partnership, a
Delaware limited partnership ("Borrower"), in the approximate aggregate amount
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of $325,000,000.00 (the "Senior Loan") and secured primarily by 50 Courtyard by
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Marriott Hotels, including the fee and/or leasehold interest in the land on
which the Hotels are located and related assets, on the terms set forth in the
Loan Agreement, dated as of the date hereof (as modified or amended from time to
time, the "Senior Loan Agreement"), between Borrower and Senior Lender, and the
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other Loan Documents (as defined in the Senior Loan Agreement), which documents
evidence and/or govern the Senior Loan (the Senior Loan Agreement, collectively
with such other Loan Documents, as such documents may be amended or modified
from time to time, the "Senior Loan Documents");
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WHEREAS, Junior Lender is a wholly-owned subsidiary of Host Marriot
Corporation, a Delaware corporation ("Host"), the parent corporation of the sole
general partner of Borrower, and has outstanding as of the date hereof
approximately $13,000,000 of unsecured, subordinated loans to Borrower (the
"Junior Loan"), which Junior Loan is evidenced by a promissory note, dated March
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21, 1997, made by Borrower to the order of Junior Lender (the "Junior Note");
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and
WHEREAS, as a material inducement to, and a condition of, Senior Lender's
agreement to originate the Senior Loan to Borrower, Senior Lender has required
that Junior Lender enter into this Agreement to govern the respective rights of
Senior Lender and Junior Lender with respect to the Borrower (including Junior
Lender's undertaking to pledge to Senior Lender the Junior Note and to assign
and deliver immediately to Senior Lender the Junior Note and all of Junior
Lender's rights thereunder and under the Junior Loan as security for Junior
Lender's obligations hereunder);
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Certain Definitions. When used herein, the following
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capitalized terms shall have the following meanings:
"Agreement" has the meaning set forth in the first paragraph of this
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Agreement.
"Borrower" has the meaning set forth in the recitals.
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"Host" has the meaning set forth in the recitals.
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"Junior Lender" has the meaning set forth in the first paragraph of
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this Agreement.
"Junior Loan" has the meaning set forth in the recitals.
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"Junior Loan Documents" means the Junior Notes, and any and all other
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documents, agreements, certificates, notes or other instruments delivered
pursuant to, or in connection with, the Junior Loan.
"Junior Note" has the meaning set forth in the recitals.
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"Person" means an individual, a partnership, a corporation, a trust,
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an unincorporated organization, a joint venture or other business entity, a
limited liability company, or a government or any department, agency, or
political subdivision thereof.
"Senior Lender" has the meaning set forth in the first paragraph of
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this Agreement.
"Senior Loan" means the indebtedness outstanding under the Senior Loan
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Documents.
"Senior Loan Agreement" has the meaning set forth in the recitals.
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"Senior Loan Documents" has the meaning set forth in the recitals.
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"Senior Note" means the note evidencing the Senior Loan, as such note
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may be amended, modified, restated or otherwise supplemented from time to
time.
"Single Purpose" means, with respect to a person, that such Person,
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(A) at all times since its formation, (i) has been a duly formed and
existing limited partnership, limited liability company or corporation, as
the case may be; (ii) has observed all customary formalities regarding its
partnership, limited liability company, or corporate existence; (iii) has
maintained financial statements, accounting records, and other partnership,
limited liability company, or corporate documents separate from those of
any other Person (provided, that nothing shall prohibit such Person from
being included in the consolidated financial statements or tax group of
another Person); (iv) has not commingled its assets with those of any other
Person; (v) has paid its own liabilities out of its own funds, including
funds contributed to its capital by its respective equity holders, and all
such capital contributions have been reflected properly in its books and
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records; (vi) has allocated fairly and reasonably any overhead for shared
office expenses; (vii) has identified itself in all dealings with the
public under its own name and as a separate and distinct entity; (viii) has
not identified itself as being a division or part of any other Person; (ix)
has not identified any other Person as being a division or part of such
Person; (x) has corrected any known misunderstandings regarding its
separate identity; (xi) has been adequately capitalized in light of the
nature of its business; (xii) has not assumed or guaranteed the obligations
of any other Person; and (xiii) has not engaged in any other business other
than holding the Junior Notes; and (B) has and covenants to maintain
customary "single purpose" provisions in its organizational documents.
"Termination Date" means that date that is one year and one day after
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the Senior Loan is repaid in full (including interest on, principal of
and any other amounts owing with respect to the Senior Loan).
Section 2. Subordination.
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(a) Notwithstanding anything to the contrary contained herein or in
the Junior Loan Documents, Junior Lender agrees that until the Termination Date,
Junior Lender will not (A) initiate any judicial or other remedial proceeding
(including, without limitation, bankruptcy or insolvency proceedings) against
the Borrower or against any of Borrower's rights, interests, assets or
properties to collect any moneys due under the Junior Loan Documents or any
agreement, instrument or document relating or incidental thereto or (B) directly
or indirectly, exercise or enforce any rights or remedies against the Borrower
or against any of Borrower's rights, interests, assets or properties of any
nature whatsoever, whether at law or in equity, that Junior Lender might have
under, pursuant to or as a result of the Junior Note or any Junior Loan Document
or otherwise, in connection with or as a result of any default or event of
default thereunder.
(b) Junior Lender agrees that (i) all indebtedness under the Junior
Note is hereby expressly made subject, subordinate and junior in right of
payment to the prior payment in full of all indebtedness due and payable on the
Senior Loan and (ii) all liens and security interests of Junior Lender (if any),
whether now or hereafter arising and however existing, in any assets of the
Borrower or any assets securing the Senior Loan now owned or hereafter acquired,
shall be and hereby are subordinated to any rights and interests of Senior
Lender in those assets. Junior Lender also hereby agrees that, regardless of
whether the Senior Loan is secured or unsecured, following the occurrence of an
event of default under any Senior Loan Document, Senior Lender shall be
subrogated for Junior Lender with respect to Junior Lender's claims against the
Borrower and Junior Lender's rights, liens and security interests, if any, in
any of the Borrower's assets and the proceeds thereof until the Senior Loan
shall have been fully paid and satisfied and all financing and security
arrangements between the Borrower and the Senior Lender under the Senior Loan
Documents have been terminated. Junior Lender further agrees that it will not
challenge the liens and security interests of Senior Lender securing payment of
Senior Lender under the Senior Loan and that as between Senior Lender and Junior
Lender, the terms of this Section 2 shall govern even if part or all of the
Senior
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Loan or the liens or security interests securing payment thereof are avoided,
disallowed, set aside or otherwise invalidated in any judicial proceeding or
otherwise.
(c) In the event of (i) any payment being required to be made by the
Borrower on, under or in respect of the Junior Loan (except payment by the
Borrower prior to the Scheduled Maturity Date (as defined in the Senior Loan
Agreement) to the Junior Lender from, and only to the extent of, amounts
distributed to the Borrower pursuant to the Senior Loan Agreement), either in
accordance with the terms of such Junior Loan or upon any declaration of
acceleration thereof, (ii) any dissolution, winding-up, total or partial
liquidation or reorganization of the Borrower, whether voluntary or involuntary
and whether or not involving bankruptcy, insolvency, receivership or other
similar proceedings, or (iii) any assignment for the benefit of or other
arrangement with creditors, any other marshalling of assets and liabilities of
the Borrower or any sale or other disposition of all or substantially all of the
assets of the Borrower, then (x) all amounts then due and payable in respect of
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the Senior Loan shall first be paid in full in cash before any payment is made
on, under or in respect of the Junior Loan by or on behalf of the Borrower or
out of its property or from any other source, directly or indirectly, and (y)
any payment or distribution of assets of the Borrower of any kind or character,
whether in cash, instruments, securities or other property, by set-off or
otherwise, to which Junior Lender would be entitled but for the provisions
hereof, shall be paid by the Borrower or by any receiver, trustee in bankruptcy,
liquidating trustee, agency or other person making such payment or distribution,
directly to Senior Lender to the extent necessary to pay all amounts then due
and payable to Senior Lender under the Senior Loan in full, in cash, before any
payment or distribution is made in respect of the Junior Loan. In furtherance
of the foregoing, in the event that the Borrower shall file or have filed
against it a petition under any bankruptcy or other insolvency law or be
adjudicated a bankrupt thereunder, with the result that the Borrower is excused
from the obligation to pay all or any part of the interest otherwise payable in
respect of the Senior Loan during the period subsequent to the commencement of
any such proceedings thereunder, Junior Lender agrees that all or such part of
such interest then due and payable on the Senior Loan, as the case may be, shall
be payable in full in money out of, and to that extent diminish and be at the
expense of, reorganization, dividends or other payments in respect to the Junior
Loan.
(d) In order to enable Senior Lender to enforce its rights hereunder
in any action or proceeding described in Section 2(c)(ii) or (iii) above, Senior
Lender is irrevocably authorized and empowered, in its discretion, to make and
present for and on behalf of Junior Lender such proofs of claims against the
Borrower on account of the Junior Loan or other motions or pleadings as Senior
Lender may deem expedient or proper and to vote and take such other actions, in
the name of Junior Lender or Senior Lender or otherwise, as Senior Lender may
deem necessary or advisable. Junior Lender further agrees not to object to,
interfere with or oppose any efforts by the Senior Lender to obtain relief from
the automatic stay under Section 362 of the United States Bankruptcy Code or any
of Senior Lender's other bankruptcy-related actions. In furtherance of the
foregoing, Junior Lender agrees to execute and deliver to Senior Lender such
powers of attorney, assignments and other instruments or documents as may be
requested by Senior Lender in order to enable Senior Lender to file and enforce
any and all claims upon or with respect to the Junior Loan.
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(e) In the event that any payment or distribution of assets of the
Borrower of any kind or character, whether in cash, instruments, securities or
other property, shall be received by Junior Lender in respect of the Junior Loan
from any source, directly or indirectly, such payment or distribution shall be
held for the benefit of, and shall be immediately paid over and delivered to,
Senior Lender to the extent necessary to pay all amounts then due and payable to
Senior Lender.
(f) No right of Senior Lender to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Borrower or by any act or failure to act by
Senior Lender or by any noncompliance by the Borrower with the terms, provisions
and covenants contained in the Senior Loan Agreement, regardless of any
knowledge thereof which such person may have or be otherwise charged with.
Further, Senior Lender may (without affecting the priority of the Senior Loan)
modify, supplement, refinance, waive, consolidate, extend, replace, restate or
amend the terms of the Senior Loan or modify, supplement, replace, restate or
amend any Senior Loan Document, as the case may be, or any security therefor and
sell or exchange such security and otherwise deal freely with the Borrower, all
without Senior Lender obtaining consent of Junior Lender and without affecting
the liabilities and obligations of Junior Lender under this Section 2.
(g) The provisions of this Section 2 shall continue to be effective
if at any time any payment of any part of the Senior Loan is rescinded or must
otherwise be returned by the Senior Lender upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though such payment had not
been made.
(h) The provisions of this Agreement relating to the subordination of
the Junior Loan to the Senior Loan are intended to benefit Senior Lender and
until the Senior Loan is repaid in full and all financing arrangements between
Borrower and Senior Lender have been terminated, neither the Borrower nor Junior
Lender shall amend, supplement, waive or modify, or agree to the amendment,
supplementation, waiver or modification of any term or provision of the Junior
Note or other Junior Loan Documents without the prior written consent of Senior
Lender and any such amendment, supplementation, waiver or modification shall be
void ab initio and without effect unless such consent is given. No waiver of
any provisions of this Section 2 shall be deemed to be made by Senior Lender of
any of its rights hereunder unless the same shall be in writing signed by Senior
Lender. Each waiver, if any, by Senior Lender shall be a waiver only with
respect to the specific instance involved and shall in no way impair the rights
of Senior Lender in any other respect at any other time.
(i) Any instrument evidencing the Junior Loan or any portion thereof,
including, without limitation, the Junior Note, which has been or is hereafter
executed by the Borrower will, on the date hereof or the date of execution, be
inscribed with a legend conspicuously indicating that payment thereof is
subordinated to the claims of the Senior Lender pursuant to the terms of this
Agreement.
(j) Junior Lender shall take such actions and deliver such
instruments, in addition to the actions and instruments specifically provided
for herein, as may be requested or required to effectuate the subordination of
the Junior Loan in accordance with this Section 2.
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Section 3. Additional Covenants of Junior Lender. Junior Lender covenants
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and agrees, that unless Senior Lender shall otherwise consent in writing, from
and after the date hereof until the date that this Agreement is terminated in
accordance with its terms:
(a) No additional advances of principal are permitted under the
Junior Loan. Any amounts repaid to Junior Lender under the Junior Loan may not
be reborrowed. Junior Lender shall not make any loans (or otherwise extend
credit) to Borrower other than the Junior Loan.
(b) No portion of the outstanding principal amount of the Junior Loan
nor any interest thereon shall be due prior to the Termination Date.
(c) No portion of the Junior Loan shall be secured by any of the
Borrower's rights, interests, assets or properties (including, without
limitation, all or any portion of the Mortgaged Properties (as defined in the
Senior Loan Agreement)).
(d) The Borrower may pay accrued interest on, and prepay the
outstanding principal of, the Junior Loan from, and only to the extent of
amounts distributed to Borrower pursuant to the Cash Management Procedures (as
defined in the Senior Loan Agreement) and only prior to and including the
Scheduled Maturity Date (as defined in the Senior Loan Agreement).
Notwithstanding the foregoing, no portion of the Junior Loan (nor any other
amount) shall be payable by the Borrower to the Junior Lender upon the
occurrence of a default or event of default under the Senior Loan.
(e) The Junior Loan shall not be assignable or otherwise
transferrable except to a Person that (i) is a wholly-owned subsidiary of Host
and (ii) is a Single Purpose entity.
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Section 4. Representations and Warranties of Junior Lender. Junior Lender
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represents and warrants to, and covenants with, Senior Lender as follows:
(a) Junior Lender is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware and is duly
licensed or qualified to do business in all jurisdictions in which it is
currently doing business and the nature of such business requires such license
or qualifications.
(b) Junior Lender has the requisite power and authority to execute
and deliver this Agreement and to carry out the transactions contemplated by
this Agreement.
(c) The execution, delivery and performance of this Agreement by
Junior Lender have been duly authorized by all necessary action and proceedings,
and no further approvals or filings of any kind, including, without limitation,
any approval of or filing with any agency or body, are required as a condition
to the valid execution, delivery and performance by Junior Lender of this
Agreement.
(d) Neither the execution and delivery of this Agreement nor the
fulfillment or compliance with the terms and conditions of this Agreement:
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(i) will result in any breach or violation of any law, rule or
regulation issued by any administrative agency or other authority having
jurisdiction over Junior Lender or its properties or assets, or any
judgment, or order applicable to Junior Lender or to which Junior Lender or
its properties or assets are subject; or
(ii) will conflict with or result in any breach or violation of,
or constitute a default under, any of the terms, conditions, or provisions
of Junior Lender's organizational documents or any existing agreement or
instrument to which Junior Lender is a party or to which any of its
property is subject.
(e) There is no pending or threatened action, proceeding or
investigation before any court, governmental agency or arbitrator against or
affecting Junior Lender or its property, or action or proceeding before any of
the foregoing which, if decided adversely to Junior Lender, would materially and
adversely affect the financial condition of Junior Lender or would materially
and adversely affect the ability of Junior Lender to perform its obligations
under this Agreement.
(f) This Agreement has been duly executed and delivered by Junior
Lender, and constitutes the valid and legally binding obligation of Junior
Lender, enforceable against Junior Lender in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; and
(g) as of the date hereof, the outstanding balance (including
principal and accrued interest) of the Junior Loan is approximately $13,000,000.
Section 5. Pledge of Junior Note; Assignment of Junior Loan.
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(a) Grant of Security Interest. For good and valuable consideration
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received and to induce the Senior Lender to originate the Senior Loan to the
Borrower, Junior Lender hereby grants to Senior Lender, as security for the due
performance by Junior Lender of its obligations under this Agreement, a security
interest in the following property (collectively, the "Collateral"): (i) Junior
Note; and (ii) the products, proceeds and accessions of the foregoing and all
rights relating thereto.
(b) Delivery of Junior Note. Simultaneously with the execution of
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this Agreement, Junior Lender has delivered the Junior Note to Senior Lender
endorsed in blank.
(c) Remedies. Following the occurrence of any breach by Junior
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Lender of any of Junior Lender's obligations hereunder, Senior Lender shall have
all of the following rights and remedies with respect to the Collateral, each of
which may be exercised with or without further notice to Junior Lender:
a. To notify any obligors on the Junior Note that the Junior
Note has been assigned to Senior Lender and/or that all payments on the Junior
Note are to be made directly to Senior Lender (and Junior Lender hereby
covenants that on the request of Senior
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Lender, Junior Lender will in writing confirm to any and all obligors on the
Junior Note that all payments on the Junior Note are to be made to Senior
Lender);
b. To settle, compromise or release on terms acceptable to
Senior Lender, in whole or in part, any amounts owing on the Junior Note;
c. To enforce payment and prosecute any action or proceeding
with respect to the Junior Note;
d. To extend the time of payment, make allowances and
adjustments and issue credits with respect to the Junior Note, in Senior
Lender's name or in the name of Junior Lender.
e. To foreclose the liens and security interests created under
this Agreement or under any other agreement relating to any Collateral by any
available judicial procedure or without judicial process;
f. To sell, assign, lease or otherwise dispose of the Collateral
or any part thereof, either at public or private sale, in lots or in bulk, for
cash, on credit, or otherwise, with or without representations or warranties,
and upon such terms as shall be acceptable to Senior Lender, all at Senior
Lender's sole option and as Senior Lender may deem advisable in its sole
discretion; and
g. To exercise any and all other rights and remedies that Senior
Len der may have in any jurisdiction where enforcement of this Agreement is
sought, including without limitation all rights and remedies of a secured party
under any applicable section of the Uniform Commercial Code of the State of New
York. Senior Lender shall have the right to enforce one or more of Senior
Lender's remedies successively or concurrently, and such action shall neither
estop nor prevent Senior Lender from pursuing any and all further remedies that
it may have. No failure on the part of Senior Lender to exercise, and no delay
in exercising, any right or remedy shall operate as a waiver thereof or of any
default, nor shall any single or partial exercise of any right or remedy
preclude any other or further exercise thereof or the exercise of any other
right or remedy.
(d) Sale of Collateral. The following shall apply with respect to
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any sale, assignment or other disposition of the Collateral by Senior Lender
pursuant to this Agreement.
a. Senior Lender shall give Junior Lender no less than 5 days'
prior written notice of any such sale, assignment, lease or other disposition.
Junior Lender agrees that such notice is commercially reasonable and Senior
Lender hereby waives all other notices, demands and advertisements of any kind.
b. Senior Lender may bid or purchase at any such sale, if public,
free from any right or redemption that Junior Lender may have, which right of
redemption is hereby waived, and Senior Lender may restrict the prospective
bidders or purchasers at any such sale to persons who will represent and warrant
that they are acquiring the Collateral for
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their own account and otherwise in compliance with the federal Securities Act of
1933, as amended, as now or hereafter in effect, or any similar statute
hereafter enacted analogous in purpose or effect (such act and any such similar
statute as from time to time in effect being hereinafter called the "Federal
Securities Laws"). -------
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c. Because of present or future circumstances, a question may arise
under the Federal Securities Laws with respect to any disposition of the
Collateral. Junior Lender acknowledges that compliance with the Federal
Securities Laws may strictly limit Senior Lender's course of conduct in
disposing of all or any part of the Collateral and may also limit the extent to
which or the manner in which any subsequent transferee of the Collateral may
dispose of the same, and that there may be other legal restrictions or
limitations affecting Senior Lender in any attempts to dispose of all or any
part of the Collateral under applicable "Blue Sky" or other state securities
laws or similar laws analogous in purpose or effect.
Section 6. Governing Law. THIS AGREEMENT WAS NEGOTIATED IN THE STATE
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OF NEW YORK, AND IN ALL RESPECTS, INCLUDING MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF SENIOR LENDER AND JUNIOR
LENDER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT
THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, AND THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK PURSUANT TO (S) 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
Section 7. Submission to Jurisdiction. ANY LEGAL SUIT, ACTION
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ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE INSTITUTED IN ANY FEDERAL
OR STATE COURT IN NEW YORK, NEW YORK, PURSUANT TO (S) 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW, AND JUNIOR LENDER WAIVES ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
AND HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUIT, ACTION OR PROCEEDING.
Section 8. Waiver of Jury Trial. JUNIOR LENDER HEREBY AGREES NOT TO
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ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY
RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT, OR ANY CLAIM, COUNTERCLAIM OR
OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY JUNIOR LENDER, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. SENIOR LENDER IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY JUNIOR LENDER.
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Section 9. Notices. All notices, requests, demands and other
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communications required under the terms and provisions hereof shall be in
writing and shall become effective when delivered by hand or received by
telecopier, telegram, certified or registered airmail, postage prepaid, or an
established overnight delivery service, addressed as follows:
If to Senior Lender:
Xxxxxx Brothers Holdings Inc., doing business as Xxxxxx Capital, a
division of Xxxxxx Brothers Holdings Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Commercial Mortgage Loan Surveillance
Fax: (000) 000-0000
with a copy to:
If to Junior Lender:
CBM One Holdings, Inc.
c/o Host Marriott Corporation
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Dept. 923
Attention: Law Department
Fax: (000)000-0000
with a copy to:
Host Marriott Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Dept. 908
Attention: Asset Management
Fax: (000) 000-0000
or to such other address (and such additional addressees, not to exceed two (2)
in number for each party hereto) as the party to receive the notice shall
designate by notice to the other parties.
Section 10. Rules of Construction. The headings used in this
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Agreement are for convenience only and constitute no part of this Agreement, and
references herein to articles, sections, subsections or clauses are to this
Agreement unless otherwise specified. Unless otherwise specified, the words
"hereof", "herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The words "includes", "including" and similar
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terms shall be construed as if followed by the words "without limitation."
Unless otherwise specified, all meanings attributed to defined terms herein
shall be equally applicable to both the singular and plural forms of the terms
so defined. Whenever in this Agreement any person is referred to, such
reference shall be deemed to include the legal representatives, successors and
assigns of such person.
Section 11. Counterparts. This Agreement may be executed in
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counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
Section 12. Modification, Waiver in Writing. No modification,
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amendment, extension, discharge, termination or waiver of any provision of this
Agreement, nor consent to any departure by Junior Lender therefrom, shall in any
event be effective unless the same shall be in a writing signed by the party
against whom enforcement is sought, and then such waiver or consent shall be
effective only in the specific instance, and for the purpose, for which given.
Except as otherwise expressly provided herein, no notice to, or demand on Junior
Lender, shall entitle Junior Lender to any other or future notice or demand in
the same, similar or other circumstances. Any failure or delay by Senior Lender
in insisting upon strict performance of any term, condition, covenant or
agreement, or exercising any right, power, remedy or privilege hereunder, shall
operate as or constitute a waiver thereof, nor shall a single or partial
exercise thereof preclude any other future exercise, or the exercise of any
other right, power, remedy or privilege.
Section 13. Severability. Wherever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
Section 14. No Third Party Beneficiaries. This Agreement is solely
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for the benefit of the parties hereto, and nothing contained herein shall be
deemed to confer upon other Person any right to insist upon or to enforce the
performance or observance of any of the obligations contained herein.
Section 15. Headings. Section headings herein are for the
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convenience of reference only, and shall not govern the interpretation of any
provisions hereof.
Section 16. Termination. The term of this Agreement shall commence
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on the date hereof, and such term and this Agreement shall terminate on the
Termination Date. Upon such termination, no party shall have any further
obligations or liabilities hereunder; provided, that such termination shall not
relieve any party from liability for any breach of this Agreement prior to such
termination.
Section 17. Further Assurances. Junior Lender shall execute and
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deliver such further instruments and documents as Senior Lender may reasonably
request to further effectuate the intentions of the parties hereto.
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Section 18. Successors and Assigns. The provisions of this Agreement
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shall be binding on and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Senior Lender may freely transfer
and assign its rights hereunder to the same extent that Senior Lender may
transfer and assign the Senior Loan pursuant to the terms of the Senior Loan
Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first hereinabove set forth.
SENIOR LENDER:
XXXXXX BROTHERS HOLDINGS INC., DOING BUSINESS AS XXXXXX
CAPITAL, A DIVISION OF XXXXXX BROTHERS HOLDINGS INC.
By:
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Name:
Title:
JUNIOR LENDER:
CBM ONE HOLDINGS, INC.
By:
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Name:
Title:
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