Exhibit 10.H
MORTGAGE AND SECURITY AGREEMENT
RECORD AND RETURN TO:
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Xxxxx X. Xxxxx, Esq.
Xxxxxx Xxxx & Xxxxxx LLP
0 Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
TABLE OF CONTENTS
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Page
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1. Payment of Indebtedness...................................................................... 4
2. Covenants of Title........................................................................... 5
3. Usury........................................................................................ 5
4. Impositions.................................................................................. 5
5. Tax Deposits................................................................................. 6
6. Change in Taxes.............................................................................. 8
7. Insurance.................................................................................... 8
8. Insurance/Condemnation Proceeds.............................................................. 9
9. Restoration Following Fire and Other Casualty or Condemnation................................ 10
10. Disposition of Condemnation or Insurance Proceeds............................................ 13
11. Fire and Other Casualty; Self-Help........................................................... 14
12. Business Interruption Insurance Proceeds..................................................... 15
13. Renovation Work.............................................................................. 15
14. Repair; Alterations; Waste................................................................... 15
15. Environmental Matters........................................................................ 16
16. Independence of Security..................................................................... 17
17. No Other Liens............................................................................... 17
18. Intentionally Omitted........................................................................ 17
19. Fixtures, Furnishings and Equipment Reserve.................................................. 18
20. Sidewalks, Municipal Charges................................................................. 19
21. Assignment of Rents, Revenues and Leases..................................................... 20
22. Future Leases................................................................................ 21
23. Mortgagor's Obligations as Lessor............................................................ 22
24. Leases; Foreclosure.......................................................................... 22
25. Hotel Management Agreement................................................................... 23
26. Events of Default............................................................................ 23
27. Remedies Upon Default........................................................................ 25
28. Interest Following an Event of Default....................................................... 27
29. ERISA........................................................................................ 27
30. Waiver of Statutory Rights................................................................... 28
31. Security Interest............................................................................ 28
32. Right of Entry............................................................................... 28
33. Estoppel Certificate......................................................................... 29
34. Annual Statements............................................................................ 29
35. Rights Cumulative............................................................................ 30
36. Subrogation.................................................................................. 30
37. No Waiver.................................................................................... 30
38. Mortgage Extension........................................................................... 30
39. Indemnification.............................................................................. 30
40. Limitations on Recourse...................................................................... 30
41. Attorneys' Fees.............................................................................. 32
42. Administrative Costs......................................................................... 32
43. Protection of Security; Costs and Expenses................................................... 33
44. Notices...................................................................................... 33
45. Release...................................................................................... 34
46. Applicable Law............................................................................... 34
47. Invalidity................................................................................... 34
48. Captions..................................................................................... 35
49. Modifications................................................................................ 35
50. Bind and Inure............................................................................... 35
51. Replacement of Note.......................................................................... 35
52. Time of the Essence.......................................................................... 35
53. Business Day................................................................................. 35
54. Copy of Mortgage............................................................................. 35
EXHIBIT A........................................................................ Legal Description
EXHIBIT B........................................................................ Subordinate Loan
EXHIBIT C........................................................................ Renovation Work
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MORTGAGE AND SECURITY AGREEMENT
Hanover Marriott
Hanover, New Jersey
THIS MORTGAGE AND SECURITY AGREEMENT is made as of the ___ day of August,
1997 by HANOVER MARRIOTT LIMITED PARTNERSHIP, a Delaware limited partnership
whose sole general partner is Marriott Hanover Hotel Corporation, a Delaware
corporation ("MHHC"), having a place of business at 00000 Xxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000-0000 (hereinafter referred to as "Mortgagor") to
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Connecticut corporation having its
principal place of business at 000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx
00000 (hereinafter referred to as "Mortgagee").
W I T N E S S E T H:
THAT, to secure (i) payment to Mortgagee of the principal indebtedness of
Twenty Nine Million Eight Hundred Seventy Five Thousand AND 00/100 Dollars
($29,875,000.00) together with interest thereon, as evidenced by that certain
promissory note (hereinafter referred to as the "Note") of even date herewith,
and any renewals, extensions or modifications thereof, given by Mortgagor to
Mortgagee and made payable to the order of Mortgagee, with the final payment
being due and payable on August 1, 2004, in and by which Note Mortgagor promises
to pay the said principal indebtedness and interest at the rate and in
installments as provided in the Note, (ii) the performance of the covenants
herein contained and the payment of any monies expended by Mortgagee in
connection therewith and in accordance with the Loan Documents (defined
hereinbelow), (iii) the payment of all obligations and the performance of all
covenants of Mortgagor under any other Loan Documents, agreements or instruments
between Mortgagor and Mortgagee given in connection with or related to this
Mortgage or the Note and (iv) any and all additional advances made by Mortgagee
to protect or preserve the Security (defined hereinbelow) or the security
interest created hereby on the Security, or for taxes, assessments, or insurance
premiums as hereinafter provided or for performance of any of Mortgagor's
obligations hereunder or for any other purpose provided herein (whether or not
the original Mortgagor remains the owner of the Security at the time of such
advances) (all of the aforesaid indebtedness and obligations of Mortgagor being
herein called the "Indebtedness," and all of the documents, agreements and
instruments between Mortgagor and Mortgagee now or hereafter evidencing or
securing the repayment of, or otherwise pertaining to, the Indebtedness,
including but not limited to the Note, being herein collectively called the
"Loan Documents"), Mortgagor does hereby mortgage, grant, bargain, sell, assign,
pledge, transfer and convey unto Mortgagee and to Mortgagee's successors and
assigns forever, all of its estate, right, title and interest in and to the
following described land, improvements, real and personal property, rents and
leases (hereinafter collectively called the "Security"):
The land described in Exhibit A attached hereto and made a part hereof,
situate, lying and being in the Township of Hanover, County of Xxxxxx and State
of New Jersey (the "Land");
TOGETHER with all buildings and other improvements now or hereafter located
on said Land or any part thereof, including but not limited to, all extensions,
betterments, renewals, renovations, substitutes and replacements of, and all
additions and appurtenances to the foregoing (the "Improvements");
TOGETHER with all of the right, title and interest of Mortgagor in and to
the land lying in the bed of any street, road, highway or avenue in front of or
adjoining the Land to the center lines thereof;
TOGETHER with all easements now or hereafter located on or appurtenant to
the Land and/or Improvements or under or above the same or any part thereof,
rights-of-way, licenses, permits, approvals, and privileges, belonging or in any
way appertaining to the Land and/or Improvements, including without limitation
(i) any drainage ponds or other like drainage areas not located on the Land
which may be required for water run-off, (ii) any easements necessary to obtain
access from the Land to such drainage areas, or to any other location to which
Mortgagor has a right to drain water or sewage, (iii) any land required to be
maintained as undeveloped land by the zoning rules and regulations applicable to
the Land, and (iv) any easements and agreements which are or may be established
to allow satisfactory ingress to, egress from and operation of the Land and/or
the Improvements;
TOGETHER with any and all awards heretofore made and hereafter to be made by
any governmental, municipal or state authorities to the present and all
subsequent owners of the Security for the taking of all or any portion of the
Security by power of eminent domain, including, without limitation, awards for
damage to the remainder of the Security and any awards for any change or changes
of grade of streets affecting the Security, which said awards are hereby
assigned to Mortgagee, and Mortgagee, at its option, is hereby authorized,
directed and empowered to collect and receive the proceeds of any such awards
from the authorities making the same and to give proper receipts and
acquittances therefor, and to apply the same toward the payment of the
Indebtedness (without a prepayment premium unless an Event of Default shall
exist hereunder), notwithstanding the fact that such amount may not then be due
and payable; and Mortgagor hereby covenants and agrees to and with Mortgagee,
upon request by Mortgagee, to make, execute and deliver, at Mortgagor's expense,
any and all assignments and other instruments sufficient for the purpose of
assigning the aforesaid awards to Mortgagee, free, clear and discharged of any
and all encumbrances of any kind or nature whatsoever (all of the foregoing
Land, Improvements, rights, easements, rights-of-way, licenses, privileges and
awards, collectively, the "Real Property");
TOGETHER with all proceeds, insurance or otherwise, paid for the damage done
to any of the Security and all proceeds of the conversion, voluntarily or
involuntarily, of any of the Security into cash or liquidated claims;
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TOGETHER with all right, title and interest of Mortgagor now or hereafter
acquired in and to any and all fixtures, furnishings, equipment, furniture and
other items of tangible personal property now or hereafter located on the Land,
other than stocks of food and other supplies held for consumption in normal
operation of the Hotel, including, without limitation, all machinery, equipment,
goods, and every other article of personal property, tangible or intangible, now
or hereafter attached to or used in connection with the Land, or placed on any
part thereof and whether or not attached thereto, appertaining or adapted to the
use, management, operation or improvement of the Land, including, but without
limitation: all office furnishings and equipment, guest room furnishings,
specialized equipment for kitchens, laundries, bars, restaurants, public rooms,
health and recreational facilities and equipment, linens, dishware, and
partitions; vacuum cleaning systems; call or beeper systems; security systems;
reservations system computers and related equipment; screens; awnings; shades;
blinds; artwork; floor coverings; hall and lobby equipment; heating, lighting,
plumbing, ventilating, refrigerating, incinerating, elevator, escalator, air
conditioning and communication plants or systems with appurtenant fixtures;
vacuum cleaning systems; call systems; sprinkler systems and other fire
prevention and extinguishing apparatus and materials; all equipment, manual,
mechanical and motorized, for the construction, maintenance, repair and cleaning
of, and removal of snow from, parking areas, walks, underground ways, truck
ways, driveways, common areas, roadways, highways and streets; all equipment,
manual, mechanical and motorized, for the transportation of customers or
employees to and from the store facilities on the Land; all telephone, computers
and other electronic equipment and appurtenances thereto, including software (to
the extent a lien thereon may be legally granted); and all other machinery,
pipes, poles, appliances, equipment, wiring, fittings, panels and fixtures; and
any proceeds therefrom, any replacements thereof or additions or accessions
thereto; and all building materials, supplies and other property delivered to
the Land for incorporation into the Improvements thereon, all of which are
declared to be a part of the realty and covered by the lien hereof, but said
lien shall not cover any fixture, machinery, equipment or article of personal
property which is owned by a tenant and not required for the operation or
maintenance of the Land, provided said fixture, machinery, equipment or article
of personal property is not permanently affixed to the realty and may be removed
without material damage thereto and is not a replacement of any item which shall
have been subject to the lien hereof, but said lien shall include any other
fixture, machinery, equipment or article of personal property so incorporated
into the Improvements so as to constitute realty under applicable law, whether
or not owned by Mortgagor;
TOGETHER with all of Mortgagor's books of accounts and records relating to
the Security;
TOGETHER with all contracts for sale and leases in the nature of sales of
the Land, or any portion thereof, now and hereafter entered into and all right,
title and interest of Mortgagor thereunder, including, without limitation, cash
or securities deposited thereunder to secure performance by the lessees or
contract purchasers; all income, rents, proceeds, revenues, profits, fees,
charges, concessions, deposits and security deposits arising from or out of the
Land or any part thereof of every kind and description received or receivable
resulting
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or arising from the use, ownership, occupancy or operations of the hotel and all
of its facilities on the Land (the "Hotel"), including, without limitation, all
room revenues, food and beverage operations revenues, credit card receivables
with respect to any credit/charge card organizations and/or entities, including,
but not limited to American Express, Xxxxx Xxxxxxx, Diner's Club, VISA,
Mastercard, Discover and Optima; all monies held by the Operator (as defined in
the immediately succeeding paragraph hereof) (or any subsequent party performing
the same basic functions as the Operator of the Hotel) in the Operating Accounts
(defined in the Management Agreement); all vending machine income and all income
received from tenants, transient guests, lessees, licensees, concessionaires,
customers, guests as well as any other person occupying space at the Hotel
and/or rendering services to guests and/or customers of the Hotel; to the extent
a lien may be legally granted thereon, all licenses, permits, franchises,
governmental approvals and all sanitary sewer, drainage, water and utility
service agreements benefiting the Land or any part thereof, together with all
accounts, hotel operating accounts, payroll accounts, reserve accounts, checking
accounts, depository accounts, management accounts, general intangibles,
documents, instruments and chattel paper arising from or in connection with the
Land, including all books and records in connection therewith; and all rights of
Mortgagor under any leases, covenants, agreements, easements, restrictions or
declarations recorded with respect to, or as an appurtenance to, the Land or any
part thereof (all of the tangible and intangible personal property described in
this and the previous two paragraphs, collectively, the "Personal Property");
TOGETHER with all of Mortgagor's right, title and interest in, to and under
that certain Management Agreement between Mortgagor and Marriott Hotel Services,
Inc. (the "Operator") dated as of even date herewith relating to the hotel
located on the Land (the "Hotel Management Agreement");
TOGETHER with all of the right, title and interest of Mortgagor in and to
all and singular the tenements, hereditaments and appurtenances belonging to or
in any way pertaining to the Security; all the estate, right, title and claim
whatsoever of Mortgagor, either in law or in equity, in and to the Security; and
any and all other, further or additional title, estate, interest or right which
may at any time be acquired by Mortgagor in or to the Security, and if Mortgagor
shall at any time acquire any further estate or interest in or to the Security,
the lien of this Mortgage shall attach, extend to, cover and be a lien upon such
further estate or interest automatically without further instrument or
instruments, and Mortgagor, upon request of Mortgagee, shall execute such
instrument or instruments as shall reasonably be requested by Mortgagee to
confirm such lien;
TO HAVE AND TO HOLD the Security, and each and every part thereof, unto
Mortgagee and its successors and assigns forever, for the purposes and uses
herein set forth.
AND, Mortgagor hereby further covenants, agrees and warrants as follows:
1. Payment of Indebtedness. Mortgagor will pay the principal indebtedness
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and interest thereon in accordance with the provisions of the Note and all
prepayment charges, late
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charges and fees required thereunder, and all extensions, renewals,
modifications, amendments and replacements thereof, and will keep and perform
all the covenants, promises and agreements, and pay all sums provided in (i)
each of the Note or any other promissory note or notes at any time hereafter
issued to evidence the Indebtedness, (ii) this Mortgage and (iii) any and all
other Loan Documents, all in the manner herein or therein set forth. Each of the
persons and/or entities constituting Mortgagor hereunder shall be fully liable
for such payment and performance, and such liability shall be joint and several.
2. Covenants of Title. Mortgagor has good and indefeasible title to the
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Security, and has good right and full power to sell, mortgage and convey the
same; the Security is free and clear of easements, restrictions, liens, leases
and encumbrances, except (i) those easements, restrictions, liens, leases and
encumbrances listed on Schedule B of the policy or policies of title insurance
delivered to Mortgagee as of the recordation of this Mortgage, (ii) any
subordinate mortgage permitted pursuant to Section 17, (iii) any leases
affecting Personal Property, (vi) any encumbrances on Personal Property securing
purchase money financing or other personal property acquisition financing, and
(v) other encumbrances covering de minimus amounts of Personal Property the
value of which in no event exceeds the lesser of One Hundred Thousand Dollars
($100,000.00) or five percent (5%) of all of the Personal Property
(collectively, the "Permitted Encumbrances"), and Mortgagor will warrant and
defend title to the Security against all claims and demands whatsoever except
the Permitted Encumbrances. Mortgagee shall have the right, at its option and
at such time or times as it, in its sole discretion, shall deem necessary, to
take whatever action it may deem necessary to defend or uphold the lien of this
Mortgage or otherwise enforce any of the rights of Mortgagee hereunder or any
obligation secured hereby, including without limitation, the right to institute
appropriate legal proceedings for such purposes.
3. Usury. It is hereby expressly agreed that if from any circumstances
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whatsoever fulfillment of any provision of the Note, this Mortgage, or any other
Loan Document, at the time performance of such provision shall be due, shall
involve transcending the limit of validity presently prescribed by any
applicable usury statute or any other law, with regard to obligations of like
character and amount, then ipso facto the obligation to be fulfilled shall be
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reduced to the limit of such validity, so that in no event shall any exaction be
possible under the Loan Documents that is in excess of the limit of such
validity. In no event shall Mortgagor be bound to pay for the use, forbearance
or detention of the money loaned pursuant to the Loan Documents, interest of
more than the current legal limit; the right to demand any such excess being
hereby expressly waived by Mortgagee.
4. Impositions. Mortgagor will pay or cause to be paid, not later than
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twenty (20) days before the last day on which the same may be paid without
penalty or interest, all real estate taxes, sewer rents, water charges and all
other municipal and governmental assessments, rates, charges, impositions and
liens (hereinafter referred to as "Impositions") which now or hereafter are
imposed by law upon the Security, whether relating directly to the Security or
to property adjoining or abutting the Security. If any Imposition is not paid
within the time hereinabove specified, Mortgagee shall have the right to pay the
same, together with any
5
penalty and interest thereon, and the amount or amounts so paid or advanced
shall forth with be payable by Mortgagor to Mortgagee with interest thereon from
the date demand is made therefor until paid at the Default Rate and shall be
secured by the lien of this Mortgage; but Mortgagor or the Operator may in good
faith contest, at Mortgagor's own cost and expense, by proper legal proceedings,
the validity or amount of any Imposition, on the condition that Mortgagor first
shall deposit with Mortgagee, as security for the payment of such contested
item, an amount equal to the contested item plus all penalties and interest
which would be payable if Mortgagor is ultimately required to pay such contested
item or such other security as is reasonably acceptable to Mortgagee, and on the
further condition that no amount so contested may remain unpaid for such length
of time as shall permit the Security, or the lien thereon created by the item
being contested, to be sold for the nonpayment thereof, or as shall permit an
action, either of foreclosure or otherwise, to be commenced by the holder of any
such lien. Mortgagor will not claim any credit on, or make any deduction from
the Indebtedness by reason of the payment of any Imposition.
Subject to the Hotel Management Agreement if the same is then in
effect, Mortgagor hereby assigns to Mortgagee all rights of Mortgagor now or
hereafter arising in and to the refund of any Imposition and any interest
thereon. If following receipt of any such refund by Mortgagee, there exists no
Event of Default (as hereinafter defined) hereunder, then Mortgagee shall pay
over the same to Mortgagor promptly after demand; if there exists an Event of
Default hereunder, Mortgagee may apply said refund in reduction of the
Indebtedness in whatever order Mortgagee may elect.
5. Tax Deposits. The provisions of this Section 5 shall not be effective
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unless and until the Hotel Management Agreement has terminated or expired or
there shall exist an Event of Default hereunder, whichever is earlier, and
Mortgagee shall notify Mortgagor thereof. Thereafter, until further notice from
Mortgagee, Mortgagor shall comply with the following provision of this Section
5.
Mortgagor shall deposit with Mortgagee or with an escrow agent selected
by Mortgagee, on the first day of each calendar month thereafter (each of which
dates is hereinafter called the "monthly tax deposit date") until the payment in
full of the Indebtedness a sum equal to one-twelfth of the Impositions to be
levied, charged, assessed or imposed upon or for the Security within one year
after said monthly tax deposit date. If on any monthly tax deposit date the
amount of Impositions to be levied, charged, assessed or imposed within the
ensuing one year period shall not be fixed, such amount for the purpose of
computing the deposit to be made by Mortgagor hereunder, shall be estimated by
Mortgagee, with appropriate adjustment when the amount of such Impositions is
fixed.
The sums deposited by Mortgagor under this Section shall be held in an
interest-bearing account with interest being added to the amount on deposit and
applied in payment of such Impositions when due. Mortgagor shall give thirty
(30) days prior written notice to Mortgagee in each instance when an Imposition
is due, specifying the Imposition to
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be paid and the amount thereof, the place of payment and the last day on which
the same may be paid in order to be within the time limit specified in Section 4
hereof entitled "Impositions."
Notwithstanding the foregoing provision and so long as Mortgagor holds
title to and controls the Security, Impositions are paid in full when due and
there exists no Event of Default, the interest earned by such escrows, less
reasonable escrow costs, will be paid to Mortgagor on each real estate tax
payment date.
If for any reason the sums on deposit with Mortgagee or escrow agent
under this Section shall not be sufficient to pay an Imposition within the time
specified in Section 4 hereof, then Mortgagor shall, within ten (10) days after
demand by Mortgagee, deposit sufficient sums so that Mortgagee may pay such
Imposition in full, together with any penalty and interest thereon. Mortgagee
may change its estimate of Impositions for any period, on the basis of a change
in an assessment or tax rate or on the basis of a prior miscalculation or for
any other reason, in which event Mortgagor shall deposit with Mortgagee or
escrow agent within ten (10) days after demand the amount of any excess of the
deposits which would theretofore have been payable under the revised estimate
over the sums actually deposited.
If any Imposition shall be levied, charged, assessed or imposed upon or
for the Security, or any portion thereof, and if such Imposition shall also be a
levy, charge, assessment or imposition upon or for any other premises not
covered by the lien of this Mortgage, then the computation of the amounts to be
deposited under this Section shall be based upon the entire amount of such
Imposition and Mortgagor shall not have the right to apportion any deposit with
respect to such Imposition.
Upon an assignment of this Mortgage, Mortgagee shall have the right to
arrange to transfer all amounts deposited and still in its possession to the
assignee and, upon such transfer, Mortgagee shall be completely released from
all liability with respect to such deposit and Mortgagor or owner of the
Security shall look solely to the assignee or transferee in reference thereto.
Upon the payment in full by Mortgagor of the entire Indebtedness, any
sums then held by Mortgagee under this Section (including interest thereon)
shall be refunded to Mortgagor. All amounts deposited shall be held by
Mortgagee as additional security for the sums secured by this Mortgage, and
Mortgagor hereby grants to Mortgagee a security interest in such sums, and upon
the occurrence and during the continuance of an Event of Default hereunder
Mortgagee may, in its sole and absolute discretion, apply said amounts to the
payment of the Indebtedness in whatever order Mortgagee may elect.
Immediately upon receipt of such by Mortgagor, Mortgagor shall deliver
to Mortgagee copies of all notices, demands, claims, bills, and receipts in
relation to the Impositions.
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Notwithstanding the foregoing provisions, Mortgagee will waive the
requirement for deposits as to that portion of Impositions payable directly to
the governmental or other authority by tenants under the terms of leases
approved by Mortgagee, provided satisfactory proof of payment is promptly
furnished to Mortgagee.
6. Change in Taxes. In the event any tax shall be due or become due and
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payable to the United States of America, the State of New Jersey or any
political subdivision thereof with respect to the execution and delivery or
recordation of this Mortgage or any other Loan Document or the interest of
Mortgagee in the Security (other than income and franchise taxes), Mortgagor
shall pay such tax at the time and in the manner required by applicable law and
Mortgagor shall hold Mortgagee harmless and shall indemnify Mortgagee against
any liability of any nature whatsoever as a result of the imposition of any such
tax. In the event of the enactment, after the date of this instrument, of any
law changing in any way the present law as to the taxation of notes or debts
secured by mortgages, for Federal, State, or local purposes, or the manner of
collection of any Impositions, so as to affect this Mortgage or the Note secured
hereby, then Mortgagor shall upon demand make such payments to Mortgagee and
take such other steps, as may be necessary in Mortgagee's reasonable judgment,
to place Mortgagee in the same financial position as it was prior to any such
enactment, failing which, or if the Mortgagor is not permitted by law to make
such payments, the Indebtedness shall, at the option of Mortgagee, immediately
become due and payable.
7. Insurance. Mortgagor shall at all times until the Indebtedness shall
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be paid in full, keep the Security insured against loss or damage for its full
replacement cost (which cost shall be reset once a year at Mortgagee's option)
under policies of All Risk Replacement Cost Insurance with Agreed Amount
Endorsement (including risks of war and nuclear explosion, if available upon
commercially reasonable terms), and shall further provide flood insurance to the
extent available (if the Security is situated in an area which is considered a
flood risk area by the federal government or any agency thereof), boiler and
machinery insurance, earthquake insurance (if generally required by Mortgagee
for new mortgage loans in the State of New Jersey), business interruption
insurance in an amount sufficient to cover the total of all income accruing from
the Security for a one year period, comprehensive general liability insurance in
a minimum amount of $1,000,000 and excess or umbrella liability of at least
$200,000,000, and during any period of restoration, a policy or policies of
builder's "all risk" insurance in an amount not less than the full insurable
value of the Security against such risks as Mortgagee may request and such other
appropriate insurance as Mortgagee may require from time to time (it being
understood that Mortgagee shall not require other insurance which it does not
generally require for new mortgage loans of similar properties), in such amounts
and with such companies as shall be approved by Mortgagee with a Best's rating
of A-:10 or better, and will deliver original certificates of such insurance to
Mortgagee. Each such policy shall name Mortgagee as an additional insured or
loss payee, as applicable (but being named as both on the policy of All Risk
Placement Cost Insurance), and shall provide that, with respect to property
insurance, all proceeds shall be payable to Mortgagee, that the same may not be
canceled or modified except upon thirty (30) days prior written notice to
Mortgagee, that no act or thing done by Mortgagor shall invalidate the policy as
against Mortgagee, shall be
8
endorsed with standard noncontributory mortgagee clauses in favor of and in form
acceptable to Mortgagee, and shall otherwise be in such form as shall be
reasonably acceptable to Mortgagee, so that at all times until the payment in
full of the Indebtedness, Mortgagee shall have and hold the said policy and
policies as further collateral for the payment of all Indebtedness. If Mortgagor
shall fail to obtain any such certificates required by Mortgagee, or shall fail
to deliver the same to Mortgagee, then Mortgagee may obtain such insurance and
pay the premium or premiums therefor, in which event Mortgagor shall, within
five (5) Business Days after demand of Mortgagee, repay to Mortgagee such
premium or premiums with, if the same is not paid within said five (5) Business
Day period, interest thereon from the date demand is made therefor until paid at
the Default Rate, and such repayment shall be secured by the lien of this
Mortgage. If Mortgagor fails to maintain the levels and coverages of insurance
required under this Mortgage, then Mortgagor shall indemnify Mortgagee to the
extent that a casualty occurs and insurance proceeds would have been available
had such levels and coverages of insurance been maintained.
Mortgagor shall promptly provide to Mortgagee copies of any and all
notices (including notices of non-renewal), claims, and demands which Mortgagor
receives from insurers of the Security. Mortgagor shall also provide to
Mortgagee, upon prior reasonable notice, access to the original policies of
insurance maintained pursuant to this Section 7.
Effective from and after any Event of Default, Mortgagor hereby assigns
to Mortgagee, as further collateral for the Indebtedness, all rights of
Mortgagor in and to any unearned premiums on any insurance policy required to be
furnished by Mortgagor.
8. Insurance/Condemnation Proceeds. Mortgagor hereby assigns to Mortgagee
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all proceeds of any insurance or condemnation awards which Mortgagor may be
entitled to receive for loss or damage to, or a taking of, the Security. In the
event of loss or damage to, or a taking of, the Security, the proceeds of said
insurance or condemnation award shall be payable to Mortgagee alone and
Mortgagor hereby authorizes and directs any affected insurance company or
government agency to make payments of the insurance proceeds or condemnation
awards directly to Mortgagee. In the event that any such insurance proceeds or
condemnation awards are paid directly to Mortgagor, Mortgagor shall make such
proceeds or awards available to Mortgagee within five (5) days of Mortgagor's
receipt thereof. No such loss or damage shall itself reduce the Indebtedness.
Mortgagee is authorized to adjust and compromise such loss without the consent
of Mortgagor (if an Event of Default shall then exist), to collect and receive
such proceeds or awards in the name of Mortgagee and Mortgagor and to endorse
Mortgagor's name upon any check in payment thereof. Subject to the provisions
of Sections 9, 10 and 11 hereof, such proceeds or awards shall be applied first
toward reimbursement of all reasonable costs and expenses of Mortgagee in
collecting said proceeds or awards, and then toward payment of the Indebtedness
or any portion thereof, whether or not then due and payable, in whatever order
Mortgagee may elect.
In the event of foreclosure of this Mortgage or other transfer of title
to the Security in consideration of the extinguishment, in whole or in part, of
the Indebtedness, all
9
right, title, and interest of Mortgagor in and to any insurance policy, or
premiums or payments in satisfaction of claims or any other rights thereunder
then in force, shall pass to the purchaser or grantee notwithstanding the amount
of any bid at such foreclosure sale. Nothing contained herein shall prevent the
accrual of interest as provided in the Note on any portion of the principal
balance due under the Note until such time as the insurance proceeds or
condemnation awards are actually received and applied to reduce the principal
balance outstanding.
9. Restoration Following Fire and Other Casualty or Condemnation. In the
-------------------------------------------------------------
event of damage to the Security by reason of fire or other hazard or casualty,
Mortgagor shall give prompt written notice thereof to Mortgagee and shall
proceed with reasonable diligence to perform repair, replacement and/or
rebuilding work (hereinafter referred to as the "Work") to restore the Security
as nearly as practicable to its condition prior to such damage in full
compliance with all legal requirements. In the event of a taking by power of
eminent domain or conveyance in lieu thereof ("condemnation"), if restoration is
feasible as reasonably determined by Mortgagee, then Mortgagor shall proceed
with reasonable diligence to perform such restoration (also referred to as the
"Work"). Before commencing the Work, Mortgagor shall comply with the following
requirements:
(a) Mortgagor shall furnish to Mortgagee complete plans and
specifications for the Work, for Mortgagee's approval, which approval shall
not be unreasonably withheld. Said plans and specifications shall bear the
signed approval thereof by an architect satisfactory to Mortgagee and shall
be accompanied by the architect's signed estimate, bearing the architect's
seal, of the entire cost of completing the Work, and shall provide that upon
completion of the Work, the general utility of the Security shall be
comparable to its general utility prior to the damage or destruction or
condemnation.
(b) Mortgagor shall furnish to Mortgagee certified copies of all
permits and approvals required by law in connection with the commencement
and conduct of the Work.
(c) Mortgagor shall furnish to Mortgagee, prior to the commencement of
the Work, a surety bond for or guaranty of completion of and payment for the
Work, which bond or guaranty shall be in form satisfactory to Mortgagee and
shall be signed by a surety or sureties, or guarantor or guarantors, as the
case may be, who are acceptable to Mortgagee, and in an amount not less than
the architect's estimate of the entire cost of completing the Work, less the
amount of insurance proceeds or condemnation award, if any, then held by
Mortgagee and which Mortgagee shall have elected or shall be required to
apply toward restoration of the Security as provided in Section 10 hereof.
Mortgagor shall not commence any of the Work until Mortgagor shall have
complied with the above requirements, and thereafter Mortgagor shall perform the
Work diligently and in good faith in accordance with the plans and
specifications referred to in subsection (a) above.
10
If, as provided in Section 10 hereof, Mortgagee shall have elected or
is required to apply any insurance proceeds or condemnation awards toward repair
or restoration of the Security, then so long as the Work is being diligently
performed by Mortgagor in accordance with the provisions of this Mortgage,
Mortgagee shall disburse such insurance proceeds or condemnation awards to
Mortgagor from time to time during the course of the Work in accordance with the
following provisions:
A. The Work shall be in the charge of an experienced construction
manager satisfactory to Mortgagee with the consultation of an architect or
engineer;
B. Each request for payment shall not be made more often than at
thirty (30) day intervals, on ten (10) Business Days (hereinbelow defined)
prior notice to Mortgagee, and shall be accompanied by a certificate,
reasonably satisfactory to Mortgagee of the architect or engineer, dated not
more than ten (10) days prior to the application for withdrawal of funds,
stating:
(i) that all of the Work for which payment is being requested
is in place and has been completed in compliance with the
approved plans and specifications and all applicable legal
requirements;
(ii) that the sum then requested to be withdrawn has been paid
by Mortgagor and/or is justly due to contractors,
subcontractors, materialmen, engineers, architects or other
persons (whose names and addresses shall be stated) who
have rendered or furnished certain services or materials
for the Work and giving a brief description of such
services and materials and the principal subdivisions or
categories thereof and the respective amounts so paid or
due to each of said persons in respect thereof and stating
the progress of the Work up to the date of said
certificate;
(iii) that the sum then requested to be withdrawn, plus all sums
previously withdrawn, does not exceed the cost of the Work
insofar as actually accomplished up to the date of such
certificate;
(iv) that the remainder of the moneys held by Mortgagee will be
sufficient to pay in full for the completion of the Work;
(v) that no part of the cost of the services and materials
described in the foregoing paragraph (ii) of this Clause B
has been or is being made the basis of the withdrawal of
any funds in any previous or then pending application; and
(vi) that, except for the amounts, if any, specified in the
foregoing paragraph (ii) of this Clause B to be due for
services or materials,
11
there is no outstanding indebtedness known, which is then due
and payable for work, labor, services or materials in
connection with the Work which, if unpaid, might become the
basis of a vendor's, mechanic's, laborer's or materialman's
statutory or other similar lien upon the Security or any part
thereof.
C. Mortgagor shall deliver to Mortgagee satisfactory evidence that the
Security and every part thereof, and all materials and all property
described in the certificate furnished pursuant to the foregoing Clause B,
are free and clear of all mortgages, liens, charges or encumbrances, except
(a) encumbrances, if any, securing indebtedness due to persons (whose names
and addresses and the several amounts due them shall be stated) specified in
said certificate furnished pursuant to the foregoing Clause B, which
encumbrances will be discharged upon disbursement of the funds then being
requested, and (b) this Mortgage and the Permitted Encumbrances. Mortgagee
shall accept as satisfactory evidence under this Clause C a certificate of a
title insurance company acceptable to Mortgagee or an endorsement to
Mortgagee's existing loan title policy insuring the lien of this Mortgage,
dated as of the date of the making of the disbursement, confirming the
foregoing.
D. If requested by Mortgagee for the first advance or the final
advance, Mortgagor shall deliver to Mortgagee a survey of the Security dated
as of a date within ten (10) days prior to the making of the advance (or
revised to a date within ten days prior to the advance) showing no
encroachments other than those, if any, acceptable to Mortgagee.
E. There shall be no Event of Default under the Note or under any of
the other Loan Documents.
Mortgagee at its option may waive any of the foregoing requirements.
Upon compliance by Mortgagor with the foregoing Clauses A, B, C, D and
E (except for such requirements, if any, as Mortgagee at its option may have
waived), Mortgagor shall, to the extent of the insurance proceeds or
condemnation award, if any, which Mortgagee shall have elected or shall be
required to apply to restoration of the Security, pay or cause to be paid to
the persons named in the certificate furnished pursuant to the foregoing
Clause B, the respective amounts stated in said certificate to be due them,
less ten percent (10%) retainage ("Retainage"), and Mortgagee shall pay to
Mortgagor the amounts stated in said certificate to have been paid by
Mortgagor, less Retainage.
If upon completion of the Work there shall be condemnation awards held
by Mortgagee over and above the amounts withdrawn pursuant to the foregoing
provisions, plus retainage, then Mortgagee, at Mortgagee's option, may
either retain such awards and apply the same in reduction of the
Indebtedness in whatever order Mortgagee may
12
elect, or Mortgagee may pay over such awards to Mortgagor. If upon
completion of the Work there shall be insurance proceeds held by Mortgagee
over and above the amounts withdrawn pursuant to the foregoing provisions,
plus retainage, then Mortgagee, shall pay over such proceeds to Mortgagor.
Upon completion of the Work, in addition to the requirements of the
foregoing Clauses A, B, C, D and E, Mortgagor shall promptly deliver to
Mortgagee:
(a) A written certificate of the architect or engineer that the Work
has been fully completed in a good and workmanlike manner in accordance with
the approved plans and specifications;
(b) A written report and policy of a title insurance company acceptable
to Mortgagee insuring the Security against mechanics' and materialmen's
liens;
(c) A certificate by Mortgagor in form and substance satisfactory to
Mortgagee, listing all costs and expenses in connection with the completion
of the Work and the amount paid by Mortgagor with respect to the Work;
(d) A temporary certificate of occupancy and all other applicable
certificates, licenses, consents and approvals issued by governmental
agencies or authorities with respect to the Security and by the appropriate
Board of Fire Underwriters or other similar bodies acting in and for the
locality in which the Security is situated, provided that within thirty (30)
days after completion of the Work, Mortgagor shall obtain and deliver to
Mortgagee a permanent certificate of occupancy for the Security.
Upon receipt of the foregoing items, Mortgagee shall pay any Retainage
held by Mortgagee for the benefit of Mortgagor.
Notwithstanding any other provision contained in Section 8, 9 or 10
hereof and provided that there does not then exist an Event Default, in the
event the costs of restoration following any damage by fire or other hazard or
casualty shall not exceed $250,000, then the first sentence of this Section 9
and the second sentence of Section 8 hereof shall be applicable but the other
requirements of this Article shall be inapplicable, and such insurance proceeds
shall be paid to Mortgagor by Mortgagee for application to the cost of the Work;
promptly after the completion thereof, Mortgagor shall provide to Mortgagee
satisfactory proof that the same has been accomplished and paid for in
accordance with all legal requirements.
10. Disposition of Condemnation or Insurance Proceeds. Mortgagee, in its
-------------------------------------------------
absolute discretion, may decide whether and to what extent, if any, proceeds of
insurance or condemnation will be made available to Mortgagor for repair or
restoration of the Security. Notwithstanding the foregoing, Mortgagee agrees to
make insurance or condemnation proceeds available to Mortgagor for repair or
restoration provided:
13
(i) Not more than 20% of the total floor area of the Improvements is
damaged or taken, and, in the case of a condemnation, the portion of
the Improvements not taken by condemnation has not, in Mortgagee's
sole reasonable opinion, been rendered economically nonviable by the
taking;
(ii) There exists no Event of Default;
(iii) Mortgagor can demonstrate to Mortgagee's reasonable satisfaction that
Mortgagor has the financial ability to make all scheduled payments
when due under the Loan Documents during repair or restoration,
whether from proceeds of business interruption insurance or
otherwise;
(iv) Such damage or taking occurs prior to the date which is one (1) year
prior to the maturity date under the Note;
(v) The Work will return the Improvements to substantially the size,
design, and utility as existed immediately before the casualty or
condemnation; and
(vi) The proceeds are released under escrow/construction funding
arrangements specified in Section 9 hereof.
If the above conditions are not met and Mortgagee elects not to make
the proceeds available for the Work, then such proceeds shall be applied to
reduce the Indebtedness in whatever order Mortgagee may elect. Any application
of such proceeds to the principal indebtedness evidenced by the Note shall be at
par (without any premium) and shall cause a recalculation of monthly payments of
principal and interest under the Note based on the reduced principal balance
under the Note; provided, however, that if there exists an Event of Default, the
prepayment fee as provided in the Note shall also be due.
11. Fire and Other Casualty; Self-Help. If within one hundred twenty (120)
----------------------------------
days after the occurrence of any damage to the Security in excess of $250,000 or
the condemnation of any portion of the Security, Mortgagor shall not have
submitted to Mortgagee and received Mortgagee's approval of plans and
specifications for the Work or shall not have obtained approval of such plans
and specifications from all governmental authorities whose approval is required,
or if, after such plans and specifications are approved by Mortgagee and all
such governmental authorities, Mortgagor shall fail to promptly commence the
Work, or if thereafter Mortgagor fails to perform the Work diligently or is
delinquent in the payment to mechanics, materialmen or others of the costs
incurred in connection with the Work, or if Mortgagor shall fail to complete the
Work promptly, then, in addition to all other rights herein set forth, and after
giving Mortgagor twenty (20) days written notice of the nonfulfillment of one or
more of the foregoing conditions Mortgagee, or any lawfully appointed receiver
of the Security, may at its respective option, perform or cause the Work to be
performed, and may take such other steps as it deems advisable to perform the
Work, and may enter upon the Security for any of the foregoing purposes, and
Mortgagor hereby waives, for Mortgagor and
14
all others holding under Mortgagor, any claim against Mortgagee or such receiver
arising out of anything done by Mortgagee or such receiver pursuant to this
Section, and Mortgagee may apply insurance proceeds (without the need to fulfill
the requirements of Section 9 hereof) to reimburse Mortgagee, and/or such
receiver for all amounts expended or incurred by them, respectively, in
connection with the performance of the Work, and any excess costs shall be paid
by Mortgagor to Mortgagee within five (5) Business Days after demand, with (if
the same is not paid within said five (5) Business Day period) interest from the
date demand is made therefor until paid at the Default Rate (hereinafter
defined), and such payment shall be secured by the lien of this Mortgage.
12. Business Interruption Insurance Proceeds. If Mortgagor shall promptly
----------------------------------------
commence and diligently perform the Work, and there shall be no Event of Default
under the Loan Documents, then Mortgagee shall each month pay to Mortgagor out
of the business interruption insurance proceeds held by Mortgagee a sum equal to
the amount, if any, by which the business interruption insurance proceeds paid
by the insurer for the preceding month exceeds the amounts payable to Mortgagee
under the Loan Documents for such month. Mortgagee at its option may waive any
of the foregoing conditions to the payment of business interruption insurance
proceeds. If Mortgagor does not fulfill the foregoing conditions entitling
Mortgagor to monthly disbursements of rent insurance proceeds, then such rent
insurance proceeds may be applied by Mortgagee, at Mortgagee's option, to the
payment of the Indebtedness in whatever order Mortgagee may elect. The
provisions of this Section 12 are subject to the Hotel Management Agreement.
13. Renovation Work. Mortgagor shall diligently and continuously and in
---------------
good faith take all commercially reasonable actions, and shall otherwise take
all necessary measures to encourage and facilitate completion of and payment for
the renovation work described in Exhibit C attached hereto in full compliance
with all applicable laws, ordinances, codes, rules and regulations no later than
January 31, 1999.
14. Repair; Alterations; Waste. Mortgagor shall keep all of the Security
--------------------------
in good and substantial repair, and expressly agrees that it will neither permit
nor commit any waste upon the Security, nor do any act or suffer or permit any
act to be done, whereby the Security will become less valuable or the lien
hereof may be impaired and shall comply with all zoning laws, building codes,
subdivision laws, environmental laws and other laws, ordinances, rules and
regulations made or promulgated by any government or municipality, or by any
agency thereof or by any other lawful authority, which are now or may hereafter
become applicable to the Security. Subject to Sections 9 and 10 hereof,
Mortgagor shall repair or restore any building now or hereafter under
construction on the Security and complete the same within a reasonable period of
time. Mortgagor agrees not to initiate or acquiesce in any zoning variance or
reclassification, without Mortgagee's prior written consent. Subject to Section
9, 10 and 13 hereof, Mortgagor shall not construct any additional building or
buildings or make any other improvements on the Land, nor alter, remove or
demolish any building or other Improvements on the Land, without the prior
written consent of Mortgagee.
15
Mortgagor covenants and agrees to maintain the Real Property in
compliance with the applicable provisions of the Americans With Disabilities Act
of 1990, and all rules and regulations promulgated thereunder, as the same may
be amended from time to time. Mortgagor shall comply with all terms and
implement the recommendations contained in that certain ADA Survey of the Real
Property dated February 24, 1997.
If Mortgagor fails to observe any of the provisions of this Section, or
suffers any Event of Default to exist under this Section, Mortgagee or a
lawfully appointed receiver of the Security at its option, from time to time,
may perform, or cause to be performed, any and all repairs and such other work
as it deems necessary to bring the Security into compliance with the provisions
of this Section and may enter upon the Security for any of the foregoing
purposes, and Mortgagor hereby waives any claim against Mortgagee and/or such
receiver, arising out of such entry or out of any other act carried out pursuant
to this Section. Mortgagor shall upon demand repay to Mortgagee and such
receiver, with interest from the date demand is made therefor until paid at the
Default Rate, all amounts expended or incurred by them, respectively, in
connection with any action taken pursuant to this Section, and such repayment
shall be secured by the lien of this Mortgage.
Mortgagor represents and warrants that there are and at all times while
this Mortgage is outstanding will be at least 650 paved, designated parking
spaces as part of the Security.
15. Environmental Matters. Reference is made to that certain Environmental
---------------------
Indemnification Agreement dated as of even date herewith by Mortgagor and
Marriott Hanover Hotel Corporation to Mortgagee (the "Environmental
Indemnification Agreement"), which Environmental Indemnification Agreement is
hereby incorporated by reference and made a part of this Mortgage in its
entirety. Supplementing, but not limiting, the Environmental Indemnification
Agreement, Mortgagor hereby represents and warrants to Mortgagee that except for
violations of the Environmental Laws and/or Disposals of Hazardous Materials
specifically disclosed as such in the Environmental Reports, true and complete
copies of all of which have been delivered to Mortgagee:
a. Mortgagor has not used, and to the best of Mortgagor's knowledge,
no prior owner or current or prior tenant, subtenant, or other
occupant of all or any part of the Real Property has disposed of
Hazardous Materials on, in, under or above from the Real Property
such that any Remedial Work is required under any of the
Environmental Laws, and Mortgagor will not permit any such
disposal or violation of the violation of the Environmental Laws
to occur or to continue to exist; and
b. Mortgagor has received no notice from any person or entity, public
or private, claiming any violation of any Environmental Law with
regard to the Real Property nor has it received any administrative
order or entered
16
into any administrative consent order with any governmental agency
with respect to Hazardous Materials on or at the Real Property;
and
c. To the best of Mortgagor's knowledge, the Real Property does not
contain any asbestos-containing material in friable form, and
there is no current or potential airborne contamination of the
Real Property by asbestos fiber, including, but not limited to,
any potential contamination that would be caused by maintenance or
tenant finish activities in the Real Property.
Unless otherwise defined herein, all defined terms used in this Section 15
shall have the meanings ascribed thereto in the Environmental Indemnification
Agreement.
16. Independence of Security. Mortgagor shall not by act or omission
------------------------
permit any building or other improvement on any premises not subject to the lien
of this Mortgage to rely on the Security or any part thereof or any interest
therein to fulfill any municipal or governmental requirement, and Mortgagor
hereby assigns to Mortgagee any and all rights to give consent for all or any
portion of the Security or any interest therein to be so used. Similarly, no
part of the Security shall rely on any premises not subject to the lien of this
Mortgage or any interest therein to fulfill any governmental or municipal
requirement. Mortgagor shall not by act or omission impair the integrity of the
Land as a single zoning lot, and as one or more complete tax parcels, separate
and apart from all other premises. Any act or omission by Mortgagor which would
result in a violation of any of the provisions of this Section shall be void.
17. No Other Liens. Mortgagor shall not consent, agree to, or permit any
--------------
mortgage, lien, or security interest upon or affecting the Security or any part
thereof except as granted or permitted in this Mortgage, the Permitted
Encumbrances and any other lien or security interest granted to Mortgagee.
Mortgagor will promptly pay and discharge any and all amounts which are now or
hereafter become liens against the Security whether or not superior to the lien
hereof or to any assignment of rents and leases given to Mortgagee. The
covenants of this Section shall survive any foreclosure and sale of the Security
and any conveyance thereof by deed in lieu of foreclosure with respect to any
such liens in existence as of the date of transfer of title.
Notwithstanding the foregoing provisions of this Article 17, Mortgagor
may grant a single subordinate mortgage encumbering the Security; provided,
however, that (a) the principal amount secured thereby shall not exceed
$9,000,000.00, (b) the holder of such mortgage from time to time shall be Host
Marriott Corporation, a Delaware corporation, or an entity which is directly or
indirectly wholly owned by Host Marriott Corporation, (c) the loan secured by
such mortgage shall only be repaid, if at all, from cash available to Mortgagor
under the Hotel Management Agreement) after payment of all amounts then due and
payable under the Loan Documents, (d) Mortgagor shall give to Mortgagee at least
twenty (20) days prior notice thereof and shall reimburse Mortgagor for its
reasonable counsel fees and other
17
expenses incurred in connection with such subordinate mortgage, and (e)
Mortgagor shall satisfy the requirements of Exhibit B hereto.
18. Intentionally Omitted.
---------------------
19. Fixtures, Furnishings and Equipment Reserve. The provisions of this
-------------------------------------------
Section 19 shall not be effective unless and until (i) the Hotel Management
Agreement shall terminate or expire (unless replaced by a similar agreement in
form and with an operator acceptable to Lender in its sole discretion), or (ii)
deposits are not being made into the Repair and Equipment Reserve Account as and
to the extent required under the Hotel Management Agreement (or a similar escrow
established under any such replacement agreement), whichever is earlier, and
Mortgagee shall notify Mortgagor thereof. Thereafter, until further notice from
Mortgagee to Mortgagor, the provisions of this Section 19 shall be effective.
Mortgagor shall deposit with Mortgagee or with an escrow agent selected by
Mortgagee, on the fifth (5th) day of each calendar month (each of which dates is
hereinafter called the "FF&E deposit date") until the payment in full of the
Indebtedness a sum equal to five percent (5%) of Gross Revenues (as defined in
the Hotel Management Agreement) generated during and/or attributable to the
immediately preceding calendar month along with financial statements and a
reasonably detailed description of the calculation of Gross Revenues for such
month.
The funds deposited under this Section 19 shall be made available by
Mortgagee from time to time for the purposes of making or procuring the
following: (1) replacements and renewals to the Improvements and to the
fixtures, furniture, furnishings and equipment therein, and (2) certain routine
repairs and maintenance to the Improvements which are normally capitalized under
generally acceptable accounting principles such as exterior and interior
repainting, resurfacing building walls, floors, roofs and parking areas, and
replacing folding walls and the like, but which are not major repairs,
alterations, improvements, renewals or replacements to the Improvements
structure or to the mechanical, electrical, heating, ventilating, air
conditioning, plumbing or vertical transportation systems thereof (collectively
the "FF&E").
The sums deposited by Mortgagor under this Section 19 shall be held in
an interest-bearing account with interest being retained by Mortgagee as part of
the reserve, and applied, subject to the approval of Lender, upon satisfaction
of the following conditions:
(i) funds shall be released to Mortgagor to pay for amounts of
money actually owed by Mortgagor for FF&E;
(ii) funds shall be released in minimum increments of at least
$2,500, with such releases not to be made more often than
once each calendar month;
18
(iii) at the time of any release, there shall exist no Event of
Default; and
(iv) Mortgagee shall have received the following:
a. along with each request for release of such funds, a certificate, in
form and substance reasonably satisfactory to Lender, requesting
payment and certifying that the portion of the FF&E for which payment
is being sought has been fully completed or delivered and payment
therefor is due and owing, and funds shall be applied only to the
payment thereof; and
b. if applicable, lien waivers and releases from each contractor,
subcontractor, material supplier or vendor with respect to all work
performed or services provided by such parties with respect to the FF&E
for which funds were previously released.
In the event that at any time there exists an omission, discrepancy and/or
mistake in the calculation of Gross Revenues, or a modification and/or
correction is subsequently necessary due to a change or correction in facts,
circumstances and/or assumptions made in order to calculate Gross Revenues,
Mortgagor shall, within ten (10) days of its first becoming aware of facts that
would indicate the need for a change in the calculation of Gross Revenues,
deliver written notice to Mortgagee describing in reasonable detail the
necessary change and an appropriate increase or decrease shall be made to the
next succeeding monthly payment.
Upon an assignment of this Mortgage, Mortgagee shall have the right to
arrange to transfer all amounts deposited and still in its possession to the
assignee and, upon such transfer, Mortgagee shall be completely released from
all liability with respect to such deposit and Mortgagor or owner of the
Security shall look solely to the assignee or transferee in reference thereto.
Upon the payment in full by Mortgagor of the entire Indebtedness, any
sums then held by Mortgagee under this Section (including interest thereon)
shall be refunded to Mortgagor. All amounts deposited shall be held by
Mortgagee as additional security for the sums secured by this Mortgage, and
Mortgagor hereby grants to Mortgagee a security interest in such sums, and upon
the occurrence and during the continuance of an Event of Default hereunder
Mortgagee may, in its sole and absolute discretion, apply said amounts to the
payment of the Indebtedness in whatever order Mortgagee may elect.
20. Sidewalks, Municipal Charges. Mortgagor will promptly pay and
----------------------------
discharge any and all license fees and similar charges, with penalties and
interest thereon, which may be imposed by the municipality in which the Security
is situated, for the use of vaults, chutes, areas and other space beyond the lot
line and under or abutting the public sidewalks in front of or adjoining the
Security, and Mortgagor will promptly cure any violation of law and comply with
any order of such municipality respecting the repair, replacement or condition
of the
19
sidewalk or curb in front of or adjoining the Security, and in default thereof
Mortgagee may, upon five (5) days notice to Mortgagor, pay any and all such
license fees or similar charges, with penalties and interest thereon, and the
charges of the municipality for such repair or replacement, and any amount so
paid or advanced by Mortgagee and all costs and expenses incurred in connection
therewith (including, without limitation, reasonable attorneys' fees), with
interest thereon from the date of demand until paid at the Default Rate
specified in the Note, shall be a demand obligation of Mortgagor to Mortgagee,
and, to the extent permitted by law, shall be added to the Indebtedness and
shall be secured by the lien of this Mortgage; but Mortgagor may in good faith
contest, at Mortgagor's own cost and expense, by proper legal proceedings, the
validity or amount of any fees, charges, penalties or interest, on the condition
that Mortgagor first shall deposit with Mortgagee, as security for the payment
of such contested item, an amount in cash or a bond assuring payment in an
amount equal to the contested item plus all penalties and interest which would
be payable if Mortgagor is ultimately required to pay such contested item, and
on the further condition that no amount so contested may remain unpaid for such
length of time as shall permit the Security, or the lien thereon created by the
item being contested, to be sold for the nonpayment thereof, or as shall permit
an action, either of foreclosure or otherwise, to be commenced by the holder of
any such lien.
21. Assignment of Rents, Revenues and Leases. Mortgagor hereby presently,
----------------------------------------
irrevocably, absolutely and unconditionally transfers, assigns and sets over
unto Mortgagee all of its right, title and interest in and to all present and
future leases, license agreements, concession agreements, lease termination
agreements and other occupancy agreements of any nature, oral or written, of the
Land and of space in the Improvements, together with all modifications,
supplements, extensions, renewals and replacements thereof now existing or
hereafter made, and also together with the rights to xxx for, collect and
receive all rents, prepaid rents, additional rents, royalties, security
deposits, damages payable upon default by tenant, or other sums in any of said
leases provided to be paid to the lessor thereunder, profits, income, license
fees, concession fees, lease termination fees and issues of the Security
(collectively, "Rents and the Revenues"), to be applied by Mortgagee in payment
of the Indebtedness and also together with any and all guaranties of the
obligations of the tenants thereunder and the rights of Mortgagor to receive,
hold and apply all bonds and security in all of said leases provided to be
furnished to the lessor thereunder, and also together with the rights of
Mortgagor to enforce any and all of the agreements, terms, covenants and
conditions in all of said leases provided and to give notices thereunder. Upon
the occurrence of an Event of Default and for so long as such Event of Default
shall exist, and during the pendency of any foreclosure proceeding and during
any redemption period, Mortgagee may receive and collect the Rents and the
Revenues personally or through a receiver. Mortgagor agrees to consent to a
receiver if this is believed necessary or desirable by Mortgagee to enforce its
rights under this Section.
Notwithstanding anything to the contrary contained herein, Mortgagee
grants to Mortgagor a revocable license (a "Revocable License") to hold and
administer security deposits and to collect, use and distribute (subject to the
provisions of Section 40 of this Mortgage) the Rents and Revenues as they
respectively become due, to enforce such leases,
20
and to exercise the rights of the landlord or licensor thereunder so long as no
Event of Default has occurred and is continuing. The Revocable License shall be
revocable by written notice sent by Mortgagee to Mortgagor, and shall be
revocable only if any Event of Default exists hereunder. If all outstanding
Events of Default are cured or waived prior to Acceleration of Maturity (as
defined in the Note), Mortgagee agrees that Mortgagor shall be entitled to and
shall automatically receive a new Revocable License under the exact same terms
and conditions.
Except in connection with a subordinate mortgage financing permitted
under Section 17 or as permitted under Section 26(f), Mortgagor shall not
otherwise assign or pledge, or contract, expressly or by implication, to assign
or pledge, any lease of the Land or space in the Improvements or the rights to
xxx for, collect and receive any Rents, or the rights to receive, hold and apply
any bonds and security in any of said leases provided to be furnished to the
lessor thereunder, or the rights to enforce any of the agreements, terms,
covenants or conditions of said leases or to give notices thereunder, unless in
each instance the written consent thereto of Mortgagee be first obtained.
Nothing in this Mortgage shall be construed to obligate Mortgagee,
expressly or by implication, to perform any of the covenants of Mortgagor as
lessor under any of the leases hereinabove assigned or to pay any sum of money
or damages therein provided to be paid by the lessor.
If Mortgagee shall from time to time suffer or permit Mortgagor to xxx
for, collect or receive any Rents, or to receive, hold or apply any bonds or
security under said leases, or to enforce any of the agreements, terms,
covenants or conditions thereunder or to give notices thereunder, neither such
sufferance nor permission shall constitute a waiver or relinquishment by
Mortgagee of the rights hereunder and hereby assigned to Mortgagee with respect
to any subsequent Rents or with respect to any subsequent receipt, holding or
application of bonds or security or any subsequent enforcement of such
agreements, terms, covenants or conditions or any subsequent notices.
22. Future Leases. Mortgagor will not hereafter make any lease to any
-------------
tenant, or amend, modify, terminate, renew or extend any lease (other than a
renewal to which a tenant is entitled under the terms of an existing lease or
contained in a lease that is subsequently approved by Mortgagee), affecting the
Security unless Mortgagee shall first consent in writing to the terms of said
lease and the form of the lease; provided, however, that the consent of
Mortgagee will not be required with respect to any lease which covers no more
than 500 square feet of net rentable area, is written on a standard form of
lease reasonably acceptable to Mortgagee without any changes thereto and
contains no option on the part of the tenant thereunder to cancel the lease
(other than as may be provided in the approved standard form) or acquire any
ownership interest in the Security.
All leases must be subordinate to the lien of the Mortgage unless
Mortgagee otherwise specifies. Each lease must contain a provision that, upon
notice to tenant by
21
Mortgagee, the lease shall become superior, in whole or in part, to the lien of
the Mortgage. Without limiting the foregoing, Mortgagee hereby reserves the
right to subordinate this Mortgage to any lease subsequently made by recording a
declaration to that effect, executed by Mortgagee, which declaration once so
recorded shall be binding upon the tenant under such lease and such tenant's
successors and assigns.
Mortgagor will furnish to Mortgagee a true and complete copy of each
lease, amendment, modification, extension, or renewal of lease, hereafter made
by Mortgagor with respect to space in the Security, within ten (10) days after
delivery of each such lease, amendment, modification, extension, or renewal by
the parties thereto. Mortgagor shall also furnish to Mortgagee an original
mortgagee attornment agreement executed by each tenant leasing in excess of 500
square feet of net rentable area in the Security and an original estoppel,
addressed to Mortgagee, from each such tenant in form and substance satisfactory
to Mortgagee.
Mortgagor will from time to time upon demand of Mortgagee, confirm in
writing the assignment to Mortgagee of any or all leases of Land and space in
the Improvements, and such written confirmation shall be in such form as
Mortgagee shall require and as shall be necessary to make the same recordable.
23. Mortgagor's Obligations as Lessor. (a) Mortgagor shall, at Mortgagor's
---------------------------------
cost and expense, promptly and fully perform each and every material covenant,
condition, promise and obligation on the part of the lessor to be performed
pursuant to the terms of each and every lease or letting, written or oral, now
or hereafter made with respect to the Security or any part or parts thereof, and
shall not suffer or permit there to exist any default in such performance on the
part of such lessor or permit any event to occur which would give the tenant
under any such lease the right to terminate the same or to offset rent.
(b) Mortgagor shall give Mortgagee immediate notice of any material default
under any lease, or of the receipt by Mortgagor of any notice of default from
the lessee or its successors or assigns under a lease, and Mortgagor shall
furnish to Mortgagee immediately any and all information which Mortgagee may
request concerning the performance and observance of all covenants, agreements
and conditions contained in the leases by the lessor thereunder to be kept,
observed and performed and concerning the compliance with all terms and
conditions of the leases. Mortgagor hereby authorizes Mortgagee and its
representatives to make investigations and examinations concerning such
performance, observance and compliance, and Mortgagor, upon request, shall
promptly deposit with Mortgagee any and all documentary evidence relating to
such performance, observance and compliance and copies of any and all notices,
communications, plans, specifications or other instruments or documents received
or given by Mortgagor in any way relating to or affecting the leases which may
concern or affect the estate of the lessor or the lessee in or under the leases
or in the premises thereby demised.
(c) In the event of any failure by Mortgagor to keep, observe or perform any
covenant, agreement or condition contained in the leases or to comply with the
terms and
22
conditions of the leases, any performance, observance or compliance by Mortgagee
pursuant to this Mortgage on behalf of Mortgagor shall not remove or waive, as
between Mortgagor and Mortgagee the corresponding Event of Default under the
terms of this Mortgage.
24. Leases; Foreclosure. Any proceedings or other steps taken by Mortgagee
-------------------
to foreclose this Mortgage, or otherwise to protect the interests of Mortgagee
hereunder, shall not operate to terminate the rights of any present or future
tenant of space in the Improvements, notwithstanding that said rights may be
subject and subordinate to the lien of this Mortgage, unless Mortgagee
specifically elects otherwise in the case of any particular tenant. The failure
to make any such tenant a defendant in any such foreclosure proceeding and to
foreclose such tenant's rights will not be asserted by Mortgagor or any other
defendant in such foreclosure proceeding as a defense to any proceeding
instituted by Mortgagee to foreclose this Mortgage or otherwise protect the
interests of Mortgagee hereunder.
25. Hotel Management Agreement. Mortgagor shall, at Mortgagor's cost and
--------------------------
expense, promptly and fully perform each and every covenant, condition, promise
and obligation of the owner of the Security under the Hotel Management
Agreement, and shall make all payments therein and thereby required to be made
by the owner of the Security. Mortgagor shall not cancel, transfer, amend, or
assign the Hotel Management Agreement without the prior written consent of
Mortgagee, and Mortgagor shall not consent to the cancellation, transfer,
amendment, or assignment of the Hotel Management Agreement by any other party
thereto, without the prior written consent of Mortgagee.
Mortgagor shall furnish to Mortgagee, within three (3) days after
receipt thereof, or after the mailing or service thereof by Mortgagor, as the
case may be, a copy of each notice of default which Mortgagor shall give to, or
receive from any person, based upon the occurrence, or alleged occurrence, of
any default or defaults in the performance of any covenant, condition, promise
or obligation under the Hotel Management Agreement.
Whenever and as often as Mortgagor shall fail to perform, promptly and
fully, at Mortgagor's cost and expense, any covenant, condition, promise or
obligation on the part of the owner of the Security under and pursuant to the
Hotel Management Agreement beyond any applicable notice or grace period therein,
Mortgagee, or a lawfully appointed receiver of the Security, may, at their
respective options, enter upon the Security and perform, or cause to be
performed, such work, labor, services, acts or things, and take such other steps
and do such other acts as they may deem advisable, to cure such defaulted
covenant, condition, promise or obligation, and Mortgagor shall reimburse
Mortgagee upon demand for all costs and expenses reasonably incurred by
Mortgagee and any such receiver in taking any action pursuant to this Section,
which reimbursement shall be secured by the lien of this Mortgage.
26. Events of Default. Each of the following shall constitute an "Event of
-----------------
Default" hereunder and shall entitle the Mortgagee to exercise its remedies
hereunder and under any of the other Loan Documents or as otherwise provided by
law:
23
(a) Any payment of any installment of principal or interest due under
the Note, or payment of any other sum due under the Note, or under any of the
other Loan Documents is not received by Mortgagee when due and payable (subject
to any applicable notice or grace period set forth in the Note or any other Loan
Document);
(b) Failure of Mortgagor in any material respect to observe or perform
any covenant, promise or agreement provided in this Mortgage or in any other
Loan Document other than relating to the payment of indebtedness or money (a
"failure to perform"), for thirty (30) days after the giving of notice by
Mortgagee to Mortgagor specifying the nature of the failure to perform;
provided, however, that if the nature of such failure to perform is such that
the same cannot be cured within such thirty (30) day period, such failure to
perform shall not be deemed an Event of Default if Mortgagor shall within such
period commence to cure that failure to perform and thereafter diligently
prosecute the cure to completion, but in no event more than one hundred eighty
(180) days after Mortgagee's original notice to Mortgagor. Notwithstanding
anything contained herein to the contrary, the notice and cure period provided
under this clause (b) shall not be applicable to and shall not be in addition to
any specific notice and cure or performance period provided under any other
provision of this Mortgage and the specific notice and cure or performance
period provided for in such provision shall control, and a failure by Mortgagor
to cure a default under such provision within the applicable cure period shall
be an Event of Default under this Mortgage;
(c) Any representation, warranty, or statement of the Mortgagor or the
managing general partner of Mortgagor contained herein or in any of the Loan
Documents including without limitation the Environmental Indemnification
Agreement, or in any writing delivered to Mortgagee on or before with the
execution and delivery of the Loan Documents, proves to be untrue in any
material respect as of the date when made;
(d) Mortgagor or the managing general partner of Mortgagor shall (i)
have an order for relief entered in a proceeding under Title 11, United States
Code, whether such order shall result from a voluntary or involuntary petition,
(ii) seek or consent to the appointment of a receiver or trustee for itself or
for any of the Security, (iii) file a petition or initiate a proceeding under
the bankruptcy, insolvency, receivership, or similar laws of the United States,
any state or any jurisdiction, (iv) make a general assignment for the benefit of
creditors, or (v) be generally unable to pay its debts as they mature;
(e) A court shall enter an order, judgment or decree appointing,
without the consent of Mortgagor or the managing general partner of Mortgagor, a
receiver or trustee for it or for any of the Security or approving a petition
filed against Mortgagor which seeks relief under the bankruptcy or other similar
laws of the United States, any state or any jurisdiction, and such order,
judgment or decree shall remain in force, undischarged or unstayed, sixty (60)
days after it is entered;
(f) Without the prior written consent of Mortgagee and except as relate
to Permitted Encumbrances, the Security or a portion thereof or interest
therein, or a direct or
24
indirect interest in Mortgagor, shall be mortgaged, encumbered, sold, assigned
or otherwise transferred by Mortgagor or by operation of law, except as
otherwise set forth herein and except that limited partnership interests in
Mortgagor may be transferred so long as (i) no Event of Default then exists
under the Loan Documents, (ii) Marriott Hanover Hotel Corporation or a Permitted
Entity (as hereinafter defined) shall continue to be the sole general partner of
Mortgagor, (iii) Hanover Marriott Limited Partnership shall continue to be the
sole owner the Real Property and the Personal Property and (iv) Host Marriott
Corporation or a Permitted Entity shall, directly or indirectly, continue to
wholly own Marriott Hanover Hotel Corporation. As used herein, "Permitted
Entity" shall mean a United States of America based domestic United States of
America entity in which not less than 90% of the legal or beneficial ownership
interests are owned, directly or indirectly, by Host Marriott Corporation); or
(g) A default by Mortgagor occurs under the Hotel Management Agreement.
27. Remedies Upon Default. Immediately upon the occurrence of any Event of
---------------------
Default, Mortgagee shall have the option, in addition to and not in lieu of or
substitution for all other rights and remedies provided in this Mortgage or any
other Loan Document or provided by law or in equity, and is hereby authorized
and empowered by Mortgagor, to do any or all of the following:
(a) Declare without notice the entire unpaid amount of the Indebtedness
immediately due and payable and, at Mortgagee's option, (i) to bring suit
therefor, or (ii) to bring suit for any delinquent payment of or upon the
Indebtedness, or (iii) to take any and all steps and institute any and all other
proceedings in law or in equity that Mortgagee deems necessary to enforce
payment of the Indebtedness and performance of other obligations secured
hereunder and to protect the lien of this Mortgage.
(b) Commence foreclosure proceedings against the Security, in a single
parcel or in several parcels, through judicial proceedings, by advertisement or
as otherwise provided by law, at the option of Mortgagee, pursuant to the
statutes in such case made and provided, and to sell the Security or to cause
the same to be sold at public sale, and to convey the same to the purchaser, in
accordance with said statutes in a single parcel or in several parcels at the
option of Mortgagee.
(c) Proceed against the Personal Property in accordance with
Mortgagee's rights and remedies with respect to the Personal Property, including
the right to sell the Personal Property together with the Real Property
separately and without regard to the remainder of the Security in accordance
with Mortgagee's rights and remedies provided by the Uniform Commercial Code as
enacted in the State of New Jersey as well as other rights and remedies
available at law or in equity.
(d) Cause to be brought down to date a title examination and tax
histories of the Security, procure title insurance or title reports or, if
necessary, procure new abstracts and tax histories.
25
(e) Procure an updated or entirely new environmental audit of the
Security including building, soil, ground water and subsurface investigations;
have the Improvements inspected by an engineer or other qualified inspector and
procure a building inspection report; procure an MAI or other appraisal of the
Security or any portion thereof; enter upon the Security at any time and from
time to time to accomplish the foregoing and to show the Security to potential
purchasers and potential bidders at foreclosure sale; make available to
potential purchasers and potential bidders all information obtained pursuant to
the foregoing and any other information in the possession of Mortgagee regarding
the Security.
(f) Either by itself or by its agent to be appointed by it for that
purpose or by a receiver appointed by a court of competent jurisdiction, as a
matter of strict right, without notice and without regard to the adequacy or
value of any security for the Indebtedness or the solvency of any party bound
for its payment, take possession of and operate the Security, Mortgagor hereby
waiving any right Mortgagor might have to object to or oppose any such
possession, and, whether or not Mortgagee has taken possession of the Security,
to collect and apply the Rents, including those past due and unpaid, after
payment of all necessary charges and expenses, in reduction of the Indebtedness.
The receiver shall have all of the rights and powers permitted under the laws of
the State of New Jersey. Except for damage caused by Mortgagee's gross
negligence or willful misconduct, Mortgagor hereby waives any claim Mortgagor
may have against Mortgagee for mismanagement of the Security during Mortgagee's
operation of the Security under this subparagraph or as mortgagee in actual
possession under applicable statutes.
(g) Mortgagee may, at its option without waiving any Event of Default,
pay, perform or observe the same, and all payments made or costs or expenses
incurred by Mortgagee in connection therewith shall be secured hereby and shall
be, without demand, immediately repaid by Mortgagor to Mortgagee with interest
thereon at the Default Rate hereunder. Mortgagee shall be the sole judge of the
necessity for any such actions and of the amounts to be paid. Mortgagee is
hereby empowered to enter and to authorize others to enter upon the Security or
any part thereof for the purpose of performing or observing any such defaulted
term, covenant or condition without hereby becoming liable to Mortgagor or any
person in possession holding under Mortgagor.
(h) Apply against the Indebtedness in such order as Mortgagee shall
determine any funds held for the benefit of Mortgagor in escrow by Mortgagee or
by any third-party escrow agent under any of the Loan Documents.
(i) Upon any foreclosure sale, Mortgagee may bid for and purchase the
Security and shall be entitled to apply all or any part of the Indebtedness as a
credit to the purchase price. In the event of any sale of the Security by
foreclosure, through judicial proceedings, by advertisement or otherwise, the
proceeds of any such sale which are applied in accordance with this Mortgage
shall be applied in the following order to: (i) all expenses incurred for the
collection of the Indebtedness and the foreclosure of this Mortgage, including
reasonable attorneys' fees; (ii) all sums expended or incurred by Mortgagee
directly or
26
indirectly in carrying out the terms, covenants and agreements of the Note or
notes evidencing the Indebtedness, of this Mortgage and any other Loan
Documents, together with interest thereon as therein provided; (iii) all late
payment charges, prepayment fees, advances and other amounts due under any of
the Loan Documents; (iv) all accrued and unpaid interest upon the Indebtedness;
(v) the unpaid principal amount of the Indebtedness; and (vi) the surplus, if
any, to the person or persons legally entitled thereto.
In the event of any acceleration of the Indebtedness pursuant to the
first paragraph of this Section, Mortgagor shall pay to Mortgagee together with
the principal indebtedness and interest thereon an amount equal to the
prepayment fee provided for in the Note and such fee shall be included as part
of the Indebtedness.
Failure to exercise any option to accelerate in the event of a default
or other circumstance permitting the exercise of such option, shall not
constitute a waiver of the default or of the right to exercise such option at a
later time, or a waiver of the right to exercise such option in the event of any
other default or circumstance specified above.
28. Interest Following an Event of Default. Upon the occurrence of an
--------------------------------------
Event of Default and so long as it continues to exist, the entire amount of the
Indebtedness shall bear interest at a rate (the "Default Rate") equal to the
lesser of (i) the interest rate set forth in the Note plus two percent (2%) per
annum, or (ii) the maximum rate permitted by law.
29. ERISA. Mortgagee is entering into the Loan Documents in part on behalf
-----
of two of its separate accounts: one established on behalf of the 401(k)
Retirement Savings Plan for certain Represented Employees of Bethlehem Steel
Corporation and subsidiaries companies ("SA XXXX"); and the other established as
the Savings and Profit Sharing Plan established on behalf of certain employees
of Xxxxxxxx Xxxxx, Inc. ("SA 5W"). SA XXXX and XX 0X are each a "separate
account" as defined in Section 3(17) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"). Mortgagee is therefore subject to the
fiduciary obligation provisions of ERISA and as a result may be prohibited by
law from engaging in certain transactions. Mortgagor hereby represents and
warrants to Mortgagee that neither Mortgagor nor the holders of any beneficial
interests in Mortgagor are related to or affiliated with either of such employee
benefit plans or companies, nor to the parent companies, subsidiaries,
affiliates, officers, directors or major stockholders of such parent companies
such that Mortgagor or any such holder is a "party-in-interest" to any such
person or entity as that term is defined in ERISA Section 3(14), as that Section
3(14) may be interpreted or amended from time to time.
Notwithstanding any other provision in this Mortgage, Mortgagor
represents, warrants and covenants that, during the term of the loan evidenced
by the Loan Documents, no interest in the Security or in Mortgagor will be
transferred to any party-in-interest with respect to SA XXXX or XX 0X without
the prior written approval of Mortgagee, which approval may be withheld if in
Mortgagee's sole judgment such transaction will cause a violation by Mortgagee
of any ERISA-related requirement.
27
Mortgagor agrees to indemnify and hold Mortgagee harmless from and
against any loss, cost, expense or damage (including, without limitation,
reasonable attorney's fees) resulting from a breach of the representations,
warranties covenants contained herein.
30. Waiver of Statutory Rights. Mortgagor agrees, to the full extent
--------------------------
permitted by law, that if an Event of Default occurs and is continuing on the
part of Mortgagor hereunder, neither Mortgagor nor anyone claiming through or
under Mortgagor will set up, claim, or seek to take advantage of any moratorium,
reinstatement, forbearance, appraisement, valuation, stay, homestead, extension,
exemption or redemption laws now or hereafter in force, in order to prevent or
hinder the enforcement or foreclosure of this Mortgage, or the sale of the
Security or the delivery of possession thereof immediately after such sale to
the purchaser at such sale, and Mortgagor, for itself and all who may at any
time claim through or under it, hereby waives to the full extent that it may
lawfully do so, the benefit of all such laws, and any and all rights to have the
assets subject to the security interest of this Mortgage marshalled upon any
foreclosure or sale under the power granted herein.
31. Security Interest. This Mortgage shall, as to any equipment and other
-----------------
Personal Property covered hereby, be deemed to constitute a security agreement,
and Mortgagor, as debtor, hereby grants to Mortgagee, as secured party, a
security interest therein pursuant to the Uniform Commercial Code as enacted in
the State of New Jersey. Mortgagor represents that its principal place of
business is located at 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx and agrees that
it shall not change the same without the consent of Mortgagee. Mortgagor
further agrees, upon request of Mortgagee, to furnish an inventory of Personal
Property owned by Mortgagor and subject to this Mortgage and, upon request by
Mortgagee, to execute any supplements to this Mortgage, any separate security
agreement and any financing statements and continuation statements in order to
include specifically said inventory of Personal Property or otherwise to perfect
the security interest granted hereby. Upon the occurrence and continuance of
any Event of Default, Mortgagee shall have all of the rights and remedies
provided in said Code or otherwise provided by law or by this Mortgage,
including but not limited to the right to require Mortgagor to assemble such
Personal Property and make it available to Mortgagee at a place to be designated
by Mortgagee which is reasonably convenient to both parties, the right to take
possession of such Personal Property with or without demand and with or without
process of law and the right to sell and dispose of the same and distribute the
proceeds according to law. The parties hereto agree that any requirement of
reasonable notice shall be met if Mortgagee sends such notice to Mortgagor at
least ten (10) days prior to the date of sale, disposition or other event giving
rise to the required notice, and that the proceeds of any disposition of any
such Personal Property may be applied by Mortgagee first to the reasonable
expenses in connection therewith, including reasonable attorneys' fees and legal
expenses incurred, and then to payment of the Indebtedness. With respect to the
Personal Property that has become so attached to the Land that an interest
therein arises under the real property law of the State, this Mortgage shall
also constitute a financing statement and a fixture filing under the Uniform
Commercial Code as enacted in the State of New Jersey.
28
32. Right of Entry. Mortgagee and Mortgagee's representatives may at all
--------------
reasonable times and upon reasonable prior notice to Mortgagor enter upon the
Security and inspect the same, or cause it to be inspected by agents, employees
or independent contractors of Mortgagee, and show the same to others, but
Mortgagee shall not be obligated to make any such entry or inspection.
Mortgagor, if it shall so elect, may have a representative of Mortgagor
accompany Mortgagee and its agents, employees and independent contractors in
such entry and inspection.
33. Estoppel Certificate. Mortgagor, within fifteen (15) days after
--------------------
written request from Mortgagee, will furnish a signed statement in writing, duly
acknowledged, of the amount then due or outstanding hereunder and whether or not
any offsets or defenses exist against the Indebtedness, and if so, specifying
such offsets and defenses. Upon request by Mortgagee, Mortgagor shall exercise
any right it may have to request an estoppel certificate from any or all of the
tenants on the Security within five (5) days following Mortgagee's request.
34. Annual Statements. Mortgagor shall, within one hundred twenty (120)
-----------------
days after the end of each fiscal year of Mortgagor, deliver to Mortgagee (a)
annual statements audited and certified by an independent certified public
accountant reasonably satisfactory to Mortgagee and prepared on a tax reporting
basis, showing in detail (1) a balance sheet of Mortgagor as of the last day of
such fiscal year, (2) a statement of earnings of Mortgagor for such fiscal year
showing, among other things, all rents and other income therefrom and all
expenses paid or incurred in connection with the operations of Mortgagor; (3) a
cash flow statement for Mortgagor; and (b) a statement signed by Mortgagor
listing all leases of space in the Improvements as of the last day of such
fiscal year, the respective areas demised thereunder, the names of the tenants,
the respective expiration dates of the leases, the respective rentals provided
for therein, and such other information as may reasonably be requested by
Mortgagee. Mortgagee will be added as addressee to any and all statements and
certifications, and provided with copies of any and all financial statements,
prepared by or for Mortgagor and/or Marriott Hotel Services, Inc. with respect
to the Security.
In addition, Mortgagor agrees upon request to provide Mortgagee (no
more frequently than monthly) with a Current Property Report of Periodic Profit
and Loss with respect to the Security, which report shall be certified on an
annual basis by the chief financial officer or a financial or accounting vice
president of Marriott Hotel Services, Inc.
Notwithstanding anything herein to the contrary, for so long as the
Mortgagor originally herein named shall be Mortgagor hereunder and there shall
be no Event of Default, under any of the Loan Documents, then in lieu of the
opinion from certified public accountants, Mortgagee will accept financial
statements containing the information set forth in the preceding two paragraphs,
in form and substance satisfactory to Mortgagee signed by Mortgagor's chief
accounting officer or authorized general partner.
Mortgagee shall afford any information received pursuant to this
Section 34 the same degree of confidentiality that Mortgagee affords similar
information proprietary to
29
Mortgagee; provided, however, that Mortgagee does not in any way warrant or
represent that such information received from Mortgagor will remain
confidential, and, provided further, that Mortgagee shall have the unconditional
right to disclose, as necessary, any such information in the event Mortgagee
sells, transfers, conveys, or assigns the Mortgage or any portion of the
Indebtedness.
35. Rights Cumulative. Each right and remedy of Mortgagee under this
-----------------
Mortgage, the Note and any other Loan Documents, shall be in addition to every
other right and remedy of Mortgagee and such rights and remedies may be enforced
separately or in any combination.
36. Subrogation. To the extent that proceeds of the Indebtedness are used
-----------
to pay any outstanding lien, charge or encumbrance affecting the Security, such
proceeds have been advanced by Mortgagee at Mortgagor's request, and Mortgagee
shall be subrogated to all rights, interest and liens owned or held by any owner
or holder of such outstanding liens, charges and encumbrances, irrespective of
whether such liens, charges or encumbrances are released of record; provided,
however, that the terms and provisions hereof shall govern the rights and
remedies of Mortgagee and shall supersede the terms, provisions, rights, and
remedies under the lien or liens to which Mortgagee is subrogated hereunder.
37. No Waiver. Any failure by Mortgagee to insist upon the strict
---------
performance by Mortgagor of any of the terms and provisions hereof shall not be
deemed to be a waiver of any of the terms and provisions hereof, and Mortgagee,
notwithstanding any such failure, shall have the right thereafter to insist upon
the strict performance by Mortgagor of any and all of the terms and provisions
hereof to be performed by Mortgagor.
38. Mortgage Extension. The lien hereof shall remain in full force and
------------------
effect during any postponement or extension of the time of payment of the
Indebtedness, or of any part thereof, and any number of extensions or
modifications hereof, or any additional notes taken by Mortgagee, shall not
affect the lien hereof or the liability of Mortgagor or of any subsequent
obligor to pay the Indebtedness unless and until such lien or liability be
expressly released in writing by Mortgagee.
39. Indemnification. Mortgagor shall indemnify and hold Mortgagee harmless
---------------
from and against all obligations, liabilities, losses, costs, expenses, fines,
penalties or damages (including attorneys' fees) which Mortgagee may incur by
reason of this Mortgage or with regard to the Security prior to the exercise of
any remedies under this Mortgage. Mortgagor shall defend Mortgagee against any
claim or litigation involving Mortgagee for the same, and should Mortgagee incur
such obligation, liability, loss, cost, expense, fine, penalty or damage, then
Mortgagor shall reimburse Mortgagee upon demand. Any amount owed Mortgagee
under this provision shall bear interest from the date demand is made therefor
until paid at the Default Rate set forth herein and shall be secured hereby.
40. Limitations on Recourse. Except as hereinafter in this Section and in
-----------------------
Section 15 of the Note specifically provided, Mortgagor, Marriott Hanover Hotel
Corporation ("MHHC")
30
and any other partners of the Mortgagor shall not be personally liable for the
payment of any sums due hereunder or the performance of any obligations of
Mortgagor hereunder or under any other Loan Document. No judgment for the
repayment of the Indebtedness and no action to foreclose this Mortgage, or to
collect any amount payable under the Loan Documents, or to satisfy any other
claim relating thereto, will be enforced against Mortgagor or MHHC or any other
partner of Mortgagor personally or any property of Mortgagor or MHHC or any
other partner of Mortgagor other than the Security and any other security
furnished under the Loan Documents in any action to foreclose this Mortgage or
to otherwise realize upon any security furnished under the Loan Documents or to
collect any amount payable under the Loan Documents. Notwithstanding the
foregoing:
(a) Nothing herein contained shall be construed as prohibiting
Mortgagee from exercising any and all remedies which the Loan Documents
permit, including the right to bring actions or proceedings against
Mortgagor and/or MHHC and/or any other general partner of Mortgagor and to
enter a judgment against Mortgagor and/or MHHC and/or any other general
partner in Mortgagor, so long as the exercise of any remedy does not extend
to execution against or recovery out of any property of Mortgagor and/or
MHHC and/or any other general partner other than the security furnished
under the Loan Documents;
(b) Mortgagor and MHHC and any other general partner of Mortgagor, but
not any limited partner of Mortgagor who is not also a general partner,
shall be fully and personally jointly and severally personally liable for
(i) misapplying any condemnation proceeds or insurance proceeds attributable
to the Security, to the full extent of such proceeds so misapplied, (ii)
misapplying any security deposits attributable to the Security, to the full
extent of such deposits so misapplied, (iii) collecting any Rents, Revenues
and any other revenues and income generated by the operation of the hotel on
the Real Property in advance in violation of any covenant contained in any
of the Loan Documents (except for deposits to hold advance room reservations
which occur in the ordinary course of business), to the full extent of such
Rents, Revenues and other revenues and income collected in advance, (iv)
committing fraud, misrepresentation or waste in connection with the
operation of the Security or the making of the loan evidenced hereby, to the
full extent of any remedies available at law or in equity not to exceed
Mortgagee's actual damages, except that no such limit shall apply or be
imposed if Mortgagor, or its general partner(s) intentionally commit(s)
fraud, misrepresentation or waste, (v) Gross Revenues (as defined in the
Hotel Management Agreement) are sufficient to pay any portion of the
Indebtedness, operating expenses, maintenance expenses, insurance premiums,
reserve escrow account deposits, sales and occupancy taxes, wages, salaries,
taxes and benefits relating to hotel employees, employment and withholding
taxes, or other sums required to be paid pursuant to the terms of the Loan
Documents, and Mortgagor fails to make any or all such payments or deposits
when due, all to the extent of any funds diverted from such obligations,
payments and/or expenses during the twelve (12) months prior to Mortgagee
notice of acceleration through the date Mortgagor takes title to the
Security; (vi) failing to pay real estate taxes and assessments
31
which are a lien against the Real Property during the period of Mortgagor's
ownership at a time when there were sufficient Gross Revenues available to
pay all or any portion of such real estate taxes and assessments, to the
full extent of such unpaid taxes; and (vii) failing to maintain the
coverages and levels of insurance required under the Mortgage or any other
of the Loan Documents, to the extent that a casualty or other liability
occurs or arises and insurance proceeds would have been available had such
insurance coverages and levels been maintained, in the amount of the
difference between the actual insurance proceeds and the insurance proceeds
that would have been available had such levels and coverages of insurance
been maintained as required by the terms of the Mortgage;
(c) There shall be no limitation, in any event, of Mortgagor's personal
liability under, and the exercise of any of Mortgagee's rights under any
separate indemnity agreement from Mortgagor to Mortgagee including but not
limited to, the Environmental Indemnification Agreement of even date
herewith from Mortgagor and Marriott Hanover Hotel Corporation to Mortgagee
with regard to the Security except as may be expressly set forth therein;
(d) Nothing contained in this Section shall be deemed to prejudice the
rights of Mortgagee to proceed against any entity or person whatsoever,
including the Mortgagor, with respect to the enforcement of the Hotel
Management Agreement and any guarantees, leases, master leases, or similar
rights of payment.
41. Attorneys' Fees. Any reference to "attorney fees", "attorneys' fees",
---------------
or "attorney's fees" in this document includes but is not limited to both the
fees, charges and costs incurred by Mortgagee through its retention of outside
legal counsel and paralegals and the allocable reasonable fees and all costs and
charges for services rendered by Mortgagee's in-house or staff counsel and
paralegals. Any reference to "attorney fees", "attorneys' fees", or "attorney's
fees" shall also include but not be limited to those attorneys or legal fees,
costs and charges incurred by Mortgagee in the collection of any of the
Indebtedness, the enforcement of any obligations hereunder, the protection of
the Security, the foreclosure of this Mortgage, the sale of the Security, the
defense of actions arising hereunder and the collection, protection or set-off
of any claim the Mortgagee may have in a proceeding under Xxxxx 00, Xxxxxx
Xxxxxx Code. Attorneys' fees provided for hereunder shall accrue whether or not
Mortgagee has provided notice of default or of an intention to exercise its
remedies for such default.
42. Administrative Costs. Mortgagee shall have the right to charge costs
--------------------
actually incurred by Mortgagee related to architects, engineers, attorneys, and
the like, engaged by Mortgagee, in its sole reasonable discretion, in connection
with any servicing requests made by Mortgagor requiring Mortgagee's evaluation,
preparation and processing of any such requests. Such costs shall not be
charged for routine servicing matters contemplated by the Loan Documents
including, without limitation: processing payments; processing insurance and
UCC continuation documentation; processing escrow draws; review of tenant
leases, subordination non-disturbance and attornment agreements and tenant
estoppels on standard
32
forms approved by Mortgagee without material modifications. Such costs shall
apply without limitation to requests for matters not permitted or contemplated
by the Loan Documents (including, without limitation: requests for transfers or
assignments, requests for partial releases; requests for review of new
easements), and to requests, which, while contemplated by the Loan Documents,
because of the nature of the request, will require significantly more time than
an institutional lender, acting reasonably, would contemplate for such request
(including without limitation, requests for the approval of tenant leases,
tenant estoppels and enant subordination, non-disturbance and attornment
agreements which contain material differences from Mortgagee's standard forms).
43. Protection of Security; Costs and Expenses. Mortgagor shall appear in
------------------------------------------
and defend any action or proceeding purporting to affect the security hereof or
the rights or powers of the Mortgagee, and shall pay all costs and expenses,
including without limitation cost of evidence of title and reasonable attorneys'
fees, in any such action or proceeding in which Mortgagee may appear, and in any
suit brought by Mortgagee to foreclose this Mortgage or to enforce or establish
any other rights or remedies of Mortgagee hereunder. If an Event of Default
shall exist hereunder, or if any action or proceeding is commenced which affects
Mortgagee's interest in the Security or any part thereof, including, but not
limited to, eminent domain, code enforcement, or proceedings of any nature
whatsoever under any federal or state law, whether now existing or hereafter
enacted or amended, relating to bankruptcy, insolvency, arrangement,
reorganization or other form of debtor relief, or to a decedent, then Mortgagee
may, but without obligation to do so and upon contemporaneous notice to but
without demand upon Mortgagor and without releasing Mortgagor from any
obligation hereunder, make such appearances, disburse such sums and take such
action as Mortgagee deems necessary or appropriate to protect Mortgagee's
interest, including, but not limited to, disbursement of reasonable attorneys'
fees, entry upon the Security to make repairs or take other action to protect
the security hereof, and payment, purchase, contest or compromise of any
encumbrance, charge or lien which in the judgment of Mortgagee appears to be
prior or superior hereto. Mortgagor further agrees to pay all reasonable
expenses of Mortgagee (including without limitation fees and disbursements of
counsel) incident to the protection of the rights of Mortgagee hereunder, or to
enforcement or collection of payment of the Indebtedness, whether by judicial or
non-judicial proceedings, or in connection with any bankruptcy, insolvency,
arrangement, reorganization or other debtor relief proceeding of Mortgagor, or
otherwise. Any amounts disbursed by Mortgagee pursuant to this Section shall be
additional indebtedness of Mortgagor secured by the Loan Documents as of the
date of disbursement and, if not paid within five (5) Business Days after
demand, shall bear interest from the date demand is made therefor until paid at
the Default Rate. All such amounts shall be payable by Mortgagor within five
(5) Business Days after demand. Nothing contained in this Section shall be
construed to require Mortgagee to incur any expense, make any appearance, or
take any other action.
44. Notices. Any notice, demand, request, statement or consent made
-------
hereunder shall be in writing, signed by the party giving such notice, request,
demand, statement, or consent, and shall be deemed to have been properly given
when either delivered personally,
33
delivered to a reputable overnight delivery service providing a receipt or
deposited in the United States mail, postage prepaid and registered or certified
return receipt requested, in each case to the other party hereto at its address
set forth below, or at such other address within the continental United States
of America as such party may have theretofore designed in writing pursuant to
this Section. The effective date of any notice given as aforesaid shall be the
date of personal service, one (1) Business Day after delivery to such overnight
delivery service, or five (5) Business Days after being deposited in the United
States mail, whichever is applicable. For purposes hereof, the addresses are as
follows:
If to Mortgagee:
Connecticut General Life Insurance Company
/p/ CIGNA Investments, Inc.
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Investment Services, S-319
with a copy to:
CIGNA Corporation
Investment Law Department
000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Real Estate Division, S-215A
If to Mortgagor:
Hanover Marriott Limited Partnership
/p/ Host Marriott Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
With a copy to:
Host Marriott Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Law Department
45. Release. Upon the satisfaction in full of the Indebtedness, Mortgagee
-------
shall release of record the Security from the lien hereof and shall surrender
this Mortgage and all notes evidencing indebtedness secured by this Mortgage to
Mortgagor. Mortgagor shall pay all costs of recordation.
34
46. Applicable Law. The provisions hereof shall be construed in accordance
--------------
with the laws of the State of New Jersey.
47. Invalidity. If any provision of this Mortgage shall be held invalid or
----------
unenforceable, the same shall not affect in any respect whatsoever the validity
of the remainder of this Mortgage, except that if such provision relates to the
payment of a monetary sum, then the Mortgagee may, at its option, declare the
Indebtedness due and payable upon sixty (60) days prior written notice to
Mortgagor and, provided there exists no Event of Default hereunder, without
prepayment fee or premium.
48. Captions. The captions in this instrument are inserted only as a
--------
matter of convenience and for reference, and are not and shall not be deemed to
be any part hereof.
49. Modifications. This Mortgage may not be changed or terminated except
-------------
in writing signed by both parties. The provisions of this Mortgage shall extend
and be applicable to all renewals, amendments, extensions, consolidations, and
modifications of the other Loan Documents, and any and all references herein to
the Loan Documents shall be deemed to include any such renewals, amendments,
extensions, consolidations or modifications thereof.
50. Bind and Inure. The provisions of this Mortgage shall be binding on
--------------
the Mortgagor and its heirs, successors and assigns, and any subsequent owners
of the Security. The covenants of Mortgagor herein shall run with the land, and
this Mortgage and all of the covenants herein contained shall inure to the
benefit of the Mortgagee, its successors and assigns.
51. Replacement of Note. Upon receipt of evidence reasonably satisfactory
-------------------
to Mortgagor of the loss, theft, destruction or mutilation of the Note, and in
the case of any such loss, theft or destruction, upon delivery of an indemnity
agreement reasonably satisfactory to Mortgagor or, in the case of any such
mutilation, upon surrender and cancellation of the Note, Mortgagor will execute
and deliver, in lieu thereof, a replacement Note, identical in form and
substance to the Note and dated as of the date of the Note and upon such
execution and delivery all references in this Mortgage to the Note shall be
deemed to refer to such replacement Note.
52. Time of the Essence. Time is of the essence with respect to the
-------------------
intent, meaning, construction and enforcement of each and every covenant,
agreement and obligation of Mortgagor under this Mortgage, the Note and all of
the other Loan Documents.
53. Business Day. The terms "Business Day" and "Business Days" as used in
------------
this Mortgage shall mean any calendar day other than a Saturday, a Sunday or a
Federal holiday on which the U.S. Postal Service offices are closed for business
in one or more of Bethesda, Maryland, Hanover, New Jersey or Hartford,
Connecticut.
54. Copy of Mortgage. Mortgagor acknowledges receipt of a true copy of
----------------
this Mortgage without charge.
IN WITNESS WHEREOF, Mortgagor has duly executed this Mortgage as of
the date hereinabove set forth in the presence of:
35
MORTGAGOR:
HANOVER MARRIOTT LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Marriott Hanover Hotel Corporation,
a Delaware corporation,
its sole general partner
By X.X. Xxxxx
---------------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
ACKNOWLEDGMENT
--------------
STATE OF Maryland )
-----------------
:ss
COUNTY OF Xxxxxxxxxx )
I, Xxxxx X. Xxxxxx, hereby certify that Xxxxxxxx X. Xxxxx, a Vice
President of MARRIOTT HANOVER HOTEL CORPORATION, personally known to me,
personally came before me and acknowledged under oath to my satisfaction that:
(a) s/he is a Vice President of MARRIOTT HANOVER HOTEL CORPORATION,
the sole general partner of HANOVER MARRIOTT LIMITED PARTNERSHIP,
the partnership named in the foregoing Borrower's Certificate,
and
(b) s/he signed this document, on behalf of the corporation on behalf
of said partnership, as its voluntary act duly authorized by all
the board of directors of said corporation for the purposes
expressed therein.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this 14th day of August, 1997.
Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
Notary Public of the State of Maryland
My commission expires 2-16-99.
36
EXHIBIT A
---------
Legal Description
-----------------
ALL that certain tract, parcel and lot of land lying and being situate in
the Township of Hanover, County of Xxxxxx, State of New Jersey, being more
particularly described as follows:
BEGINNING at a point in the present southwesterly side of New Jersey Xxxxx
Xxxxxxx Xxxxx 00 at a point where the westerly line of the premises to be
described and the easterly line now or formerly of Newark Milk and Cream Company
intersects said sideline of Route 10 and running; thence
(1) South 60 Degrees 59 Minutes 12 Seconds East and along the side of Route
10,774.32 feet to the corner of lands now or formerly of Xxxxxx and Xxxxx
Xxxxxx, his wife; thence
(2) South 29 Degrees 00 Minutes 48 Seconds West 178.12 feet; thence
(3) Still along lands South 60 Degrees 59 Minutes 12 Seconds East 211.0 feet
to line of Lands of Iron Investment Corp., et. als., lands along the same;
thence
(4) The same South 12 Degrees 09 Minutes 55 Seconds West 432.86 feet to a
point; thence
(5) North 81 Degrees 54 Minutes 29 Seconds West 181.92 feet to a point;
thence;
(6) North 61 Degrees 11 Minutes 56 Seconds West 760.78 feet to a point in
line of Lands of Newark Milk and Cream Company; thence
(7) Along the same North 13 Degrees 45 Minutes 24 Seconds East 684.30 feet
to the point and place of BEGINNING.
TOGETHER with access to and egress from said premises by way of a 50
foot wide easement as set forth on filed map no. 3826 and further described as
follows:
Beginning at an angle point in the northerly line of Tax Xxx 0, Xxxxx
0000 as shown on the tax map of the Township of Hanover, Xxxxxx County, New
Jersey, said point being further described as being South 61 Degrees 11 Minutes
56 Seconds East, 436.92 feet from the Northwest Corner of said Lot 4 as shown on
a map entitled "Map of Hanover Park for Industry", dated November 30, 1978 by
Xxxxxxx X. Xxxxxxxx of Montville, New Jersey and filed in the Xxxxxx County
Clerk's Office as filed map number 3826, and running thence
37
1. Through said Xxx 0, Xxxxx 00 Degrees 44 Minutes 34 Seconds West,
33.54 Feet to a Point on the Northerly End of Wing Drive, 50 Feet Wide as shown
on said filed map, thence,
2. Along the end of Wing Drive, North 86 Degrees 11 Minutes 36
Seconds West, 34.73 feet to a point of curvature; thence
3. Continuing along Wing Drive on a curve to the left with a radius
of 60.00 feet, an arc length of 16.44 feet, said curve having a chord of South
85 Degrees 57 Minutes 30 Seconds West, 16.39 feet; thence
4. Through Xxx 0, 00 xxxx Xxxx of and parallel to the first course
above, North 12 Degrees 44 Minutes 34 Seconds East, 58.06 feet to a point on the
Southerly Line of Xxx 00, Xxxxx 0000 as shown on said Tax Map; thence
5. Along said line, South 61 Degrees 11 Minutes 56 Seconds East,
52.03 feet to the point and place of BEGINNING.
38
EXHIBIT B
---------
SUBORDINATE DEBT REQUIREMENTS
Prior to closing Mortgagor shall provide Mortgagee with each of the following
with respect to any existing/proposed single, subordinate debt in form and
substance satisfactory to Mortgagee in its sole reasonable discretion, providing
for, among other things:
1. An Intercreditor and Subordination Agreement between Mortgagee, each holder
of the subordinate debt (collectively the "Subordinate Mortgagee") and
Mortgagor, with respect to any and all loan documents, agreements and
instruments under all tiers of subordinate financing (collectively the
"Subordinate Loan Documents"), providing, among other things that:
A. The Subordinate Loan Documents shall be and remain at all times
subject and subordinate in every respect to the lien, terms and
conditions of Mortgagee's loan documents. The Subordinate Mortgagee
shall have no right to exercise any rights or remedies under the
Subordinate Loan Documents at law or in equity unless and until the
Mortgagee's indebtedness is fully satisfied, provided that Mortgagee
shall as part of the Intercreditor and Subordination Agreement give
Subordinate Mortgagee contemporaneous notice of any default and the
same grace and/or cure period as Mortgagor may have under Mortgagee's
loan documents, if any, in which to cure any default;
B. Until the Mortgagee's indebtedness is fully satisfied (i) Mortgagee
shall have the right to vote the full amount of the loans secured by
the Subordinate Loan Documents and, in connection therewith, to file
any claims of the Subordinate Mortgagee with respect to any plan of
reorganization, compromise, settlement or other bankruptcy related
proceedings with respect to the Mortgagor, and (ii) during the
pendency of any bankruptcy proceedings of the Mortgagor or the
Subordinate Mortgagee, or of both, Mortgagee shall be deemed the owner
of each of the notes which are included within the Subordinate Loan
Documents and shall be deemed the duly authorized agent of the holder
of the Subordinate Loan Documents (coupled with an interest) with
respect to any bankruptcy and insolvency proceedings of the Mortgagor
or of the Subordinate Mortgagee, or of both;
C. Until the Mortgagee's indebtedness is fully satisfied, (i) either
acceleration of the indebtedness under the Subordinate Loan Documents
or commencement of foreclosure proceedings by the Subordinate
Mortgagee shall constitute an Event of Default under the Mortgagee's
loan documents; (ii) Subordinate Mortgagee may not institute
foreclosure, insolvency or enforcement proceedings pursuant to the
Subordinate Loan Documents (provided that Subordinate Mortgagee may
39
accelerate the indebtedness under the Subordinate Loan Documents
without exercising any other remedies thereunder); (iii) Upon the
occurrence of an Event of Default, no payments will be collected or
retained by Subordinate Mortgagee pursuant to the Subordinate Loan
Documents; (iv) Subordinate Mortgagee will join with Mortgagee at
Mortgagee's request in any proceedings to lift any stay imposed by any
court preventing or delaying any foreclosure pursuant to Mortgagee's
loan documents; (v) Subordinate Mortgagee will not take an adverse
position to Mortgagee in any bankruptcy, insolvency or foreclosure
proceeding involving the Mortgagor or the Real Property, or both.
D. The Subordinate Mortgagee shall have no right to amend the Subordinate
Loan Documents without Mortgagee's prior written consent, provided
that Mortgagee's approval of amendments which are non-material in
Mortgagee's sole reasonable opinion shall not be unreasonably withheld
or delayed.
E. If there are any option rights or other benefits (e.g. (i) purchase of
the property, or of any interest therein, or (ii) purchase of any
direct or indirect interest in Mortgagor, or (iii) with respect to
transfer of any of any rights, easements, licenses or agreements (iv)
with respect to or arising out of any of the Subordinate Loan
Documents and/or any modification, termination, extension or
replacement of the Subordinate Loan Documents), all rights and
benefits accruing thereunder to the benefit of Subordinate Mortgagee,
or the Mortgagor, or both, or to any of their respective parents,
subsidiaries, affiliates or other entities directly or indirectly
under common control or ownership, will also be assigned to Mortgagee
pursuant to an of-record, present, absolute and unconditional
Assignment, Pledge and Security Agreement; provided, however, that a
revocable license shall be granted to the Subordinate Mortgagee
providing for its exercise of any rights and benefits so long as no
Event of Default occurs under the Loan Documents, together with
reasonable assurances from the Mortgagor and confirmation from all
other parties thereto that the same are assignable and will have been
properly assigned to Mortgagee), which assignment shall automatically
terminate upon full satisfaction of Mortgagee's indebtedness.
F. The Subordinate Mortgagee shall only be permitted to sell, assign or
transfer any of its interest in the Subordinate Loan Documents so long
as each of the following conditions precedent are satisfied: (i) no
Event of Default exists under Mortgagee's loan documents, (ii)
Mortgagee is given at least (20) twenty business day's written notice
of any proposed transfer, which notice shall include a reasonably
detailed description of the proposed transfer and all reasonably
relevant information regarding the proposed transferee, (iii) the
transfer provides for the transfer of the entire interests of the
holder of the Subordinate Loan Documents to a single transferee, (iv)
the transfer documents expressly prohibit any further transfers which
do not meet all of the same
40
requirements as are applicable to such initial transfer, (v) the
transferee expressly assumes, ratifies and reaffirms for Mortgagee all
of the obligations and agreements between the Subordinate Mortgagee
and Mortgagee, (vi) the transferee is solvent, (vii) the proposed
transferee is not at the time of the transfer an adverse party to
CIGNA Corporation (or any of its direct or indirect affiliates or
subsidiaries) in any litigation, arbitration or other similar
proceedings, (viii) any proposed transferee must be a United States of
America based domestic United States of America entity, (ix) the
Mortgagor or the Subordinate Mortgagee agrees to pay all of
Mortgagee's costs and expenses associated with any proposed transfer,
including but not limited to, reasonable attorneys' fees, (x) such
other reasonable assurances as Mortgagee may reasonably require at the
time to carry out the intent and purpose of these Subordinate Debt
Requirements under the then existing facts and circumstances.
G. The lien, terms and conditions of the Subordinate Loan Documents shall
be made expressly subordinate to the terms and conditions of the Hotel
Management Agreement and Subordinate Mortgagee shall have no right to
amend or to consent to the amendment, modification, replacement or
termination of the Hotel Management Agreement without the prior
written consent of Mortgagee in the exercise of its sole and absolute
discretion. All rights and benefits in any way arising out of or
relating to the Hotel Management Agreement accruing to the benefit of
Subordinate Mortgagee, or to any of its parents, subsidiaries,
affiliates or other entities directly or indirectly under common
control or ownership, will also be assigned to Mortgagee pursuant to
an of-record, present, absolute and unconditional Assignment, Pledge
and Security Agreement, which assignment shall automatically terminate
upon full satisfaction of Mortgagee's indebtedness.
2. An of-record present, absolute and unconditional subordination of all of the
terms and conditions of the Subordinate Loan Documents to the terms and
conditions of Mortgagee's loan documents, together with an off-record
present, absolute and unconditional assignment of all of Subordinate
Mortgagee's right, title and interest in, to and under the Subordinate Loan
Documents, plus a revocable license from Mortgagee back to Subordinate
Mortgagee to allow the Subordinate Mortgagee to collect and/or receive the
rents and revenues and to deal with the tenants and the business operations
on the Real Property as the landlord under the leases and the owner of the
Real Property under the Hotel Management Agreement, which license shall be
revocable by Mortgagee either (i) during the existence of an uncured Event
of Default under Mortgagee's loan documents, or (ii) at any time after
acceleration of the maturity date pursuant to Mortgagee's loan documents.
Notwithstanding the foregoing, in the event that Mortgagee revokes any
license from Mortgagee to Subordinate Mortgagee, in no event shall Mortgagee
seek to recover from Mortgagor an amount greater than the total indebtedness
owed under Mortgagee's loan documents; provided that Mortgagee shall
41
have the option to collect such amount under either or both of the
Mortgagee's loan documents and/or the Subordinate Loan Documents.
3. In addition to the foregoing, and without compromising the integrity of the
absolute assignment provided above, Subordinate Mortgagee shall execute for
the benefit of Mortgagee a pledge of any and all of the Subordinate
Mortgagee's interest in, to and under the security and the Subordinate Loan
Documents without any exceptions, which pledge shall automatically terminate
upon full satisfaction of Mortgagee's indebtedness. Subordinate Mortgagee
shall take such steps and execute such documents as are required by
Mortgagee to provide Mort gagee with a perfected security interest in such
collateral.
4. Evidence reasonably satisfactory to Mortgagee's counsel that appropriate
alonges and endorsements have been attached to and made on all notes related
to the indebtedness evidenced and secured by the Subordinate Loan Documents
so as to evidence their present, absolute and unconditional assignment and
pledge to Mortgagee.
5. Mortgagee shall not institute foreclosure proceedings under the Subordinate
Loan Documents unless Mortgagee is simultaneously instituting foreclosure
proceedings under the Mortgagee's loan documents; provided that Mortgagee
shall in no event be required to institute foreclosure proceedings under the
Subordinate Loan Documents, whether or not foreclosure proceedings have been
instituted under Mortgagee's loan documents.
6. Mortgagee shall not, for so long as the Mortgagee's loan documents remain in
effect, assign or otherwise transfer the Subordinate Loan Documents other
than in connection with a simultaneous assignment or transfer of the
Mortgagee's loan documents to the same assignee or transferee. Any assignee
or transferee of Mortgagee's interest in the Subordinate Loan Documents
shall be subject to the provisions set forth in this Exhibit C and intended
to be encompassed in written documents to be executed and delivered in
connection with the closing of the Loan.
7. Without compromising the integrity of the absolute assignment of the
Subordinate Loan Documents as provided above, Mortgagee shall, upon the
final and absolute payment in full of all amounts due and payable to
Mortgagee in connection with the Loan and at the written request of
Subordinate Mortgagee, reassign the Subordinate Loan Documents to
Subordinate Mortgagee or its designee, which reassignment shall be without
representation, recourse or guaranty.
42
EXHIBIT C
---------
RENOVATION WORK
[LOGO OF MARRIOTT INTERIOR
DESIGN APPEARS HERE] Memorandum
TO: Xxx XxXxxxxx cc: Distribution
FROM: Xxxxxxx Xxxxxxx
DATE: May 23, 1997
Revision #1 July 9, 1997
CC: Distribution
--------------------------------------------------------------------------------
SUBJECT: HANOVER MARRIOTT
ROOMS RENOVATION - Y175
SCOPE OF WORK
A. A site survey was conducted on April 28 to May 1, 1997 by the A & C and
Operations team listed below to determine the Scope of Work for a
Standard Series 2000 softgoods and casegoods renovation of:
. 346 Guestrooms
. 8 Suites
. Guestrooms Corridors
B. Specific requirements for this project are:
1. Color boards required for Guestrooms and Suites.
2. Operations request construction start of January, 1998 through March,
1998.
3. Construction Management by A & C.
4. The design scheme will be based on the "Series 2000" decor package
which was presented to and reviewed by Operations and the Owner at
the time of the survey.
5. Interior Design recommends the "Series 2000" casegoods be provided in
a "light mahogany" finish which will compliment the finish of the
existing "Room That Works" package.
6. The existing 87 RTW desks and built-in lamps, plus the new "Tech
2000" lamps for the rest of the rooms will remain.
7. In accordance with Brand Standards, all armoire units will be
specified to accommodate a refrigerator which will be supplied by the
Property.
8. The Property currently has 14 accessible rooms of which 2 will be
converted to have roll-in showers. The remainder will be brought into
general compliance where technically feasible.
9. Existing circleline bulbs will be reused in the nightstand lamps and
floor lamps.
C. This Scope will become the basis of work to be performed at the Property.
The estimate derived from it, upon approval by the Regional Vice
President, will become the basis for the project budget.
PARTICIPANTS:
-------------
Xxxx Xxxxxxxxx - General Manager
Xxxxx XxxXxxxxx - Vice President, Market Manager
Xxxxxxx Xxxxxxx - Interior Design
Xxxx Xxxxxxxx - Design Management
Xxxx Xxxxxx - Estimating
DISTRIBUTION:
-------------
Operations: A & C:
----------- -----
Xxxx Xxxxxxxxx - GM Xxxxxxx Xxxxx Xxxx Xxxxxx
Xxx Xxxxx - RE Xxx Xxxxxxx Xxx Xxxxxxxxx
Xxx Xxxxxxx - DE Xxxxx Parent Xxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxx Xxxx Xxxxxxxxxx
Xxxx Xxxxxxx-Xxxxxx
Host:
-----
Xxxx Xxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxx
1 REVISED TO CLARIFY ROOM COUNT.
43
Hanover Marriott Rooms Renovation Page 3
Scope of Work - YT75 Revision #1 July 9, 1997
ROOM MIX COUNT
--------------
Rev. 1: GD= 77 Typical Double Double
CDD = 69 Concierge Double Double
GK = 75 Typical Xxxx
XX = 22 Concierge King
KB = 3 Lateral King
CKB = 3 Concierge Lateral Xxxx
XX = 20 King with RTW
CKW = 62 Concierge King with RTW
AK = 6 Accessible King
CAK = 2 Concierge Accessible King
AKW = 4 Accessible King with RTW
CAKW = 2 Concierge Accessible King with RTW
CLPK = 1 Presidential Suite King
CRSS = 4 Sleeping Suite
CRHS = 3 Hospitality Suite
CLPS = 1 Presidential Suite
TOTAL = 354 Rooms in Project
Hanover Marriott Rooms Renovation Page 4
Scope of Work - YT75 Revision #1 July 9, 1997
I. TYPICAL AND CONCIERGE GUESTROOMS
--------------------------------
A. Ceiling: (Height: 8'-0")
-------
1. Repaint textured ceiling.
2. Retexture 10% of textured ceilings.
3. Repaint textured ceiling in foyer (height: 8'-0").
4. Remove existing draperies and cornices. Existing hardware to remain.
Add new hardware for side panels.
X. Xxxxx:
-----
1. Remove vinyl wallcovering to gypsum board, prepare wall surfaces and
install new vinyl wallcovering.
2. Install vinyl border.
3. Repaint entry and connector metal door frames, both sides.
4. Remove existing sound/smoke seals and provide new.
5. Remove, clean, repaint and reinstall HVAC unit covers.
6. Remove, clean, repaint and reinstall all non-aluminum grilles and
vents.
7. Remove, clean, and reinstall aluminum grilles and vents.
8. Touch-up plastic laminate doors as necessary.
9. Existing mirrored sliding closet doors to remain.
10. Evac. plaques to remain.
11. Remove existing and provide new full height 8'-0" corner guards (3 per
room).
12. Provide the following modifications or new electrical receptacles and
telephone jacks for each room type noted below:
Hanover Marriott Rooms Renovation Page 5
Scope of Work - YT75 Revision #1 July 9, 1997
a. In all king rooms, replace existing duplex electrical receptacle
with quad rececptacle. In room type KB (3) and CKB (3) provide new TV
and duplex electrical receptacles at new workstation location.
b. In all double/doubles, provide a new duplex electrical receptacle
and relocate existing phone xxxx to new workstation location.
13. Remove existing closet rack and replace with new closet rack.
Operations to provide new hangers.
14. Raise existing welcome light and junction box to comply with ADA
guidelines. Top of the welcome light to line up with top of guest
bathroom door frame, a minimum of 80" AFF.
15. Provide sealant where vinyl wallcovering abuts door and window frames.
C. Floor:
-----
1. Remove existing carpet and pad.
2. Provide new carpet and pad.
Carpet: Nylon
Pad: Badger
Installation: Stretch-in
D. FF&E:
----
1. Touch-up all existing RTW units.
2. Existing signage to be remain.
3. Provide new box spring covers for installation by Operations on
Concierge floors.
4. Provide new bedspreads for installation by Operations.
5. Provide new artwork.
6. Provide new draperies, sheers, and cornices. Provide new hardware for
stationary panels only.
7 Provide new fluorescent bulbs for new lamps.
Hanover Marriott Rooms Renovation Page 6
Scope of Work - YT75 Revision #1 July 9, 1997
E. FF&E List:
---------
1 GD: Typical Double/Double (77)
1 CDD: Concierge Double/Double (69)
a) New:
---
1) Carpet and pad
2) Fixed side panels and ties, blackout lining, sheers
3) Cornice
4) Drapery hardware for stationary panels
5) Bedspread 54" wide x 21" drop (2)
6) Mattress (2)
7) Boxspring (2)
8) Headboard (2)
9) Nightstand (1)
10) Lounge chair (1)
11) T.V. armoire (1) Fridge by Property
12) Executive desk chair (1)
13) Writing desk with drawers (1)
14) 22" diameter side table (1)
15) Floor lamp with shade (1)
16) Nightstand lamp with shade (1)
17) Mirror (1)
18) Artwork (2)
19) Shower curtain, l part (1)
20) Vanity light (5'-0" vanity) (1)
Note: Additional for Concierge:
21) Pillow shams (2)
22) Boxspring covers (2)
23) Shower curtain, 2 part (1)
b) Existing to remain:
------------------
1) Tech 2000 lamp with shade (1)
2) Welcome light (1)
3) Bedframe (2)
Hanover Marriott Rooms Renovation Page 7
Scope of Work - YT75 Revision #1 July 9, 1997
c) To be liquidated:
----------------
1) Bedspread (2)
2) Mattress (2)
3) Boxspring (2)
4) Headboard (2)
5) Nightstand (1)
6) Lounge chair (2)
7) Dresser (1)
8) Desk (1)
9) Desk chair (1)
10) 32" diameter table (1)
11) Floor lamp with tray (1)
12) Nightstand lamp (1)
13) Mirror (1)
14) Artwork (2)
Hanover Marriott Rooms Renovation Page 8
Scope of Work - YT75 Revision #1 July 9, 1997
D. FF&E List:
---------
1 GK: Typical King (75)
1 CK: Concierge King (22)
KB: Lateral King (3)
CKB: Concierge Lateral King (3)
a) New:
---
1) Carpet and pad
2) Fixed side panels and ties, blackout lining, sheers
3) Cornice
4) Drapery hardware for stationary side panels.
5) Bedspread 72"wide x 2l"drop (1)
6) Mattress (1)
7) Boxspring (2)
8) Headboard (1)
9) Nightstand (2)
10) Lounge chair (1)
11) Ottoman (1)
12) Executive desk chair (1)
13) Writing desk (1)
14) Desk console (1)
15) T.V. armoire (1) Fridge by Property
16) 22" diameter side table (1)
17) Floor lamp with shade (1)
18) Nightstand lamp with shade (2)
19) Mirror (1)
20) Artwork (2)
21) Shower curtain, l part (1)
22) Vanity light (1)
Note: Additional for Concierge Level:
23) Pillow shams (2)
24) Boxspring covers (1)
25) Shower curtain, 2 part (1)
b. Existing to remain:
------------------
1) Tech 2000 lamp with shade (1)
2) Welcome light (1)
3) Bedframe (1)
Hanover Marriott Rooms Renovation Page 9
Scope of Work - YT75 Revision #1 July 9, 1997
c. To be liquidated:
----------------
1) Bedspread (1)
2) Mattress (1)
3) Boxsprings (2)
4) Headboard (1)
5) Nightstand (2)
6) Lounge chair (1)
7) Ottoman (1)
8) Dresser (1)
9) Desk (1)
10) Desk chair (1)
11) Floor lamp w/ tray and shade (1)
12) Nightstand lamp w/shade (2)
13) Dresser lamp w/shade (1)
14) Mirror (1)
15) Artwork (3)
Hanover Marriott Rooms Renovation Page 10
Scope of Work - YT75 Revision #1 July 9, 1997
E. FF&E List:
---------
1 KW: Typical King with RTW (20)
CKW: Concierge King with RTW (62)
a) New:
---
1) Carpet and pad
2) Fixed side panels and ties, blackout lining, sheers
3) Cornice
4) Drapery hardware for stationary panels
5) Bedspread 72" wide x 2l" drop (1)
6) Mattress (1)
7) Boxspring (2)
8) Headboard (1)
9) Nightstand (1)
10) Lounge chair (1)
11) Ottoman (1)
12) T.V. armoire (1) Fridge by Operations
13) 22" diameter side table (1)
14) Floor lamp with shade (1)
15) Nightstand lamp with shade (2)
16) Mirror (1)
17) Artwork (2)
18) Shower curtain, l part (1)
19) Vanity light (1)
Note: Additional for Concierge Level:
20) Pillow shams (2)
21) Shower curtain, 2 part (1)
22) Boxspring cover (1)
b. Existing to remain:
------------------
1) RTW package, (1)
including executive chair
2) Welcome light (1)
3) Bedframe (1)
Hanover Marriott Rooms Renovation Page 11
Scope of Work - YT75 Revision #1 July 9, 1997
c. To be liquidated:
----------------
1) Bedspread (1)
2) Mattress (1)
3) Boxsprings (2)
4) Headboard (1)
5) Nightstand (2)
6) Lounge chair (1)
7) Ottoman (1)
8) Dresser (1)
9) Old desk chair (1)
10) Floor lamp w/tray and shade (1)
11) Nightstand lamp w/ shade (2)
12) Dresser lamp w/shade (1)
13) Mirror (1)
14) Artwork (3)
Hanover Marriott Rooms Renovation Page 12
Scope of Work - YT75 Revision #1 July 9, 1997
II. TYPICAL AND CONCIERGE GUEST BATHS
---------------------------------
A. Ceiling: (Height 7'-0")
-------
1. Repaint existing gypsum board ceiling.
2. Do not paint light fixture trim rings.
3. Remove, clean, repaint and reinstall all non-aluminum grilles, vents
and access panels.
4. Existing heat lamp to remain.
5. Existing sprinkler heads to remain.
X. Xxxxx:
-----
1. Remove vinyl wallcovering to gypsum board, prepare wall surfaces and
install new vinyl wallcovering.
2. Repaint metal door frame, both sides.
3. Remove existing silencers and provide new.
4. Remove, clean, repaint and reinstall all non-aluminum grilles and
vents.
5. Repaint previously painted plastic laminated doors.
6. Remove exiting faucet and provide new, complete with pop-up drain
assembly.
7. Provide new mirror side mirrors to align with edge of vanity on both
sides. Allowance for 10% of mirror breakage due to removal of light
valance.
8. Remove existing light cove valance (wood) and fluorescent light
fixture. Relocate junction box from ceiling to wall, patch and
repair wall surface to match adjacent surfaces and provide new
decorative fluorescent fixture with electronic ballast.
9. Existing white wall tub surround tile to remain.
10. Existing wall tile to remain.
11. OPTION: In bathrooms with peach colored tile, remove and provide new
wall tile. (_ Total)
Hanover Marriott Rooms Renovation Page 13
Scope of Work - YT75 Revision #1 July 9, 1997
12. Provide new sealant where vinyl wallcovering abuts door frame and
ceramic tile.
13. Existing towel bars to remain.
14. Existing towel rack to remain.
15. Remove existing vinyl base and provide new (__% of Guestbaths).
Where we are changing the floor tile, provide and install new ceramic
tile base.
16. Remove existing shower curtain chain hooks and provide plastic sleeve
over existing rod with new shower curtain rings.
17. Existing wall mounted hair dryer to remain.
18. Remove existing and provide new ivory coverplates.
C. Floors:
------
1. Existing floor tile to remain.
2. OPTION: Remove existing and provide new floor tile including new
ceramic tile base.
3. Clean and regrout floor tile as needed.
4. Remove existing and re-caulk base of water closet and tub at juncture
with floor tile.
D. FF & E:
------
1. Provide new shower curtain for installation by Operations.
E. FF&E List:
---------
Typical and Concierge Guestbaths
a. New:
---
1) Shower curtain
2) Vanity light
3) Note: Floors #6, 7 and 8 will have 2 part shower curtains.
All other floors will have 1 part shower curtain.
Hanover Marriott Rooms Renovation Page 14
Scope of Work - YT75 Revision #1 July 9, 1997
III. ACCESSIBLE GUESTROOMS
---------------------
A. Ceiling: (Height: 8'-0")
-------
1. Repaint textured ceiling.
2. Existing welcome light to remain.
3. Repaint Textured ceiling in foyer.
4. Remove existing draperies. Existing hardware to be remain. Provide new
hardware for side panels. Provide new 60" batons.
X. Xxxxx
-----
1. Remove vinyl wallcovering to gypsum board, prepare wall surfaces and
install new vinyl wallcovering.
2. Install vinyl border.
3. Repaint entry and connector metal door frames, both sides.
4. Remove existing seals and provide new.
5. Remove, clean, repaint and reinstall HVAC unit covers.
6. Remove, clean, repaint and reinstall all non aluminum grilles and
vents.
7. Remove, clean and reinstall aluminum grilles and vents.
8. Door graphics to remain. (evac. plaques)
9. Touch-up plastic laminate doors as needed.
10. Provide new full height corner guards. (3 per room)
11. Remove existing closet doors, rack and gypsum board wall above doors.
Patch and repair ceiling and walls to receive new vinyl wallcovering.
Provide and install new ADA closet rack in open shelving configuration
without doors.
12. Remove existing entry door and frame and provide new entry door, frame
and hardware per ADA specs. in new location as shown on plan. Relocate
welcome light switch, patch and repair wall surface to receive new
vinyl wallcovering.
Hanover Marriott Rooms Renovation Page 15
Scope of Work - YT75 Revision #1 July 9, 1997
13. Relocate existing welcome light at bed head 10" towards the outside
wall.
14. Replace existing duplex receptacle behind armoire location with quad
receptacle to accommodate refrigerator service.
15. Remove existing and provide new ivory cover plates for receptacles and
switches.
16. Provide sealant where vinyl wallcovering abuts door and window frames.
17. Raise existing welcome light and junction box to comply with ADA
guidelines. Top of the welcome light to line up with top of guest
bathroom door frame, a minimum of 80" AFF.
18. Relocate existing thermostat to 48" AFF.
C. Floor
-----
1. Remove existing carpet and pad.
2. Install new carpet and pad.
Carpet: Nylon
Pad: Accessible pad
Installation: Stretch-in
D. FF&E
----
1. Existing signage to remain. (evac. plaque)
2. Touch-up all existing RTW units.
3. Provide new box spring covers for installation by Operations on
Concierge floors.
4. Provide new bedspreads for installation by Operations.
5. Provide new artwork.
6. Provide new fluorescent bulbs for new lamps.
4. Provide new drapes, sheers and cornices. Provide new hardware for
stationary panels only.
Hanover Marriott Rooms Renovation Page 16
Scope of Work - YT75 Revision #1 July 9, 1997
E. FF&E List:
---------
AK: Accessible King (6)
CAK: Concierge Accessible King (2)
a) New:
---
1) Carpet and pad
2) Fixed side panels and ties, blackout lining, sheers
3) Cornice
4) Drapery hardware for stationary panels
5) Bedspread 72" wide x 21" drop (1)
6) Mattress (1)
7) Boxspring (2)
8) Headboard (1)
9) Nightstand (2)
10) Lounge chair (1)
11) Ottoman (1)
12) Executive desk chair (1)
13) Writing desk (small) (1)
14) Desk console (small) (1)
15) ADA armoire (1) Fridge by Property
16) 22" diameter side table (1)
17) Floor lamp with shade (1)
18) Nightstand lamp with shade (2)
19) Mirror (1)
20) Artwork (2)
21) Shower curtain, l part (1)
22) Vanity light (1)
Note: Additional for Concierge Level:
23) Pillow shams (2)
24) Boxspring covers (1)
25) Shower curtain, 2 part (1)
b. Existing to remain:
------------------
1) Tech 2000 lamp (1)
2) Welcome light (1)
3) Bedframe (1)
Hanover Marriott Rooms Renovation Page 17
Scope of Work- YT75 Revision #1 July 9,1997
c) To be liquidated:
-----------------
1) Bedspread (1)
2) Mattress (1)
3) Boxspring (2)
4) Headboard (1)
5) Nightstand (2)
6) Lounge chair (1)
7) Ottoman (1)
8) Dresser (1)
9) Desk (1)
10) Desk chair (1)
11) Floor lamp w/tray and shade (1)
12) Nightstand lamp w/shade (2)
13) Dresser lamp w/shade (1)
14) Mirror (1)
15) Artwork (3)
Hanover Marriott Rooms Renovation Page 18
Scope of Work- YT75 Revision #1 July 9, 1997
E. FF&E List:
---------
AKW: Accessible King with RTW (4)
CAKW: Concierge Accessible King with RTW (2)
a) New:
---
1) Carpet and pad
2) Fixed side panels and ties, blackout lining, sheers
3) Cornice
4) Drapery hardware for stationary panels
5) Bedspread 72" wide x 21" drop (1)
6) Mattress (1)
7) Boxspring (2)
8) Headboard (1)
9) Nightstand (2)
10) Lounge chair (1)
11) Ottoman (1)
12) ADA armoire (1) Fridge by Property
13) 22" diameter side table (1)
14) Floor lamp with shade (2)
15) Nightstand lamp with shade (2)
16) Mirror (1)
17) Artwork (2)
18) Shower curtain, 1 part (1)
19) Vanity light (1)
Note: Additional for Concierge Level:
20) Pillow shams (2)
21) Boxspring cover (1)
22) 2 part shower curtain (1)
b. Existing to remain:
------------------
1) RTW package, (1)
Including executive chair
2) Welcome light (1)
3) Bedframe (1)
Hanover Marriott Rooms Renovation Page 19
Scope of Work - YT75 Revision #1 July 9, 1997
c. To be liquidated:
----------------
1) Bedspread (1)
2) Mattress (1)
3) Boxsprings (2)
4) Headboard (1)
5) Nightstand (2)
6) Lounge chair (1)
7) Ottoman (1)
8) Dresser (1)
9) Old desk chair (1)
10) Floor lamp w/tray and shade (1)
11) Nightstand lamp w/shade (2)
12) Dresser lamp w/shade (1)
13) Mirror (1)
14) Artwork (3)
VI. ACCESSIBLE GUESTBATHS
---------------------
A. Ceiling (Height: 7'-0")
-------
1. Repaint existing gypsum board ceiling.
2. Do not paint light fixture trim rings.
3. Remove, clean, repaint and reinstall all non-aluminum grilles, vents
and access panels.
4. Existing heat lamp to remain.
5. Existing sprinkler head to remain.
X. Xxxxx
-----
1. Remove vinyl wallcovering to gypsum board, prepare wall surfaces and
install new vinyl wallcovering.
2. Repaint metal door frame, both sides.
3. Remove existing silencers and provide new.
4. Remove, clean, repaint and reinstall all non-aluminum grilles and
vents.
Hanover Marriott Rooms Renovation Page 20
Scope of Work - YT75 Revision #1 July 9, 1997
5. Repaint previously painted plastic laminated doors.
6. Remove existing light cove valance (wood) and fluorescent light
fixture. Relocate junction box from ceiling to wall, patch and repair
wall surface to match adjacent surfaces and provide new decorative
fluorescent fixture with electronic ballast.
7. Remove existing grab bars, ceramic tiles and gypsum board at tub
surround. Install blocking for installation of four new grab bars
(white). Provide new green gypsum board tub surround and install new
ceramic wall tile.
8. Provide new brightware at tub and shower including: fill spout, drain,
overflow cover and control coverplate.
9. Remove existing lavatory and mirror. Install new blocking and grab bar
(white) behind the water closet and patch and repair walls. Provide new
cultured marble lavatory top and apron with underslung china bowl, new
brightware (lever faucet and drain stop) and wall mirror. Insulate
drain and water lines.
10. In 2 accessible bathrooms to be designated by the Property, remove the
existing bathtubs, fixtures and equipment and install ADA compliant
roll-in showers complete with new ceramic wall tile, fixtures and
equipment. Modify plumbing as needed to facilitate new layout.
11. Provide new sealant where vinyl wallcovering abuts door frame and
ceramic tile.
12. Existing water closet to remain.
13. Existing towel bars to remain.
14. Existing towel rack to remain.
15. Remove existing and provide new vinyl base.
16. Remove existing shower curtain chain hooks and provide plastic sleeve
over existing rod with new shower curtain rings.
17. Existing wall mounted hair dryer to remain.
18. Remove existing and provide new ivory coverplates.
19. Provide new, double roll, recessed, toilet paper dispenser.
Hanover Marriott Rooms Renovation Page 21
Scope of Work - YT75 Revision #1 July 9, 1997
C. Floors:
------
1. Existing floor tile to remain in 12 of 14 accessible bathrooms.
2. Remove existing and provide new ceramic tile floor in 2 bathrooms where
roll-in showers are to be installed.
3. OPTION: Remove existing and provide new floor tile including new
ceramic tile base.
4. Clean and regrout floor tile as needed.
5. Remove existing and re-caulk base of water closet and tub at juncture
with floor tile.
D. FF&E
----
1. Provide new shower curtain liner for installation by Operations.
E. FF&E Lists
----------
1. Accessible Guestbaths
---------------------
a. New
---
1) Shower curtain liner
2) Tissue dispenser
V. SUITES:
CRSS - SLEEPING SUITES (4),
CRHS - HOSPITALITY SUITES (3),
CLPK - PRESIDENTIAL SUITE KING (1),
CLPS - PRESIDENTIAL SUITE (1)
A. Ceiling: (Height: 8'-0")
-------
1. Repaint textured ceiling.
2. Remove existing draperies and cornices. Existing hardware to remain.
Provide new hardware for side panels.
Hanover Marriott Rooms Renovation Page 22
Scope of Work- YT75 Revision #1 July 9, 1997
X. Xxxxx:
-----
1. Remove vinyl wallcovering to gypsum board, prepare wall surfaces and
install new vinyl wallcovering.
2. Install vinyl border.
3. Repaint entry and connector metal door frames, both sides.
4. Remove existing sound/smoke seals and provide new.
5. Remove, clean, repaint and reinstall HVAC unit covers.
6. Remove, clean, repaint and reinstall all non-aluminum grilles and
vents.
7. Remove, clean, and install aluminum grilles and vents.
8. Touch-up plastic laminated doors where necessary.
9. Existing mirrored sliding closet doors to remain.
10. Door graphics to remain.
11. Door graphics to remain.
12. Remove existing and provide new full height corner guards (5 per
room).
13. Remove existing and provide new closet rack. Operations to provide new
hangers.
14. Existing welcome light to remain, raise up to + 81" to top of fixture
-
to line up with top of bathroom door frame.
15. Wall bracket lamps to remain. Clean crystal shades only.
OPTION: Replace with new wall sconces.
16. Repaint existing wood base.
17. Provide sealant where vinyl wallcovering abuts door and window frames.
18. In Sleeping Suites, CRSS (4 Total) provide new pair of painted French
doors with matching side panels to close opening between sleeping and
living space. Remove existing gypsum board wall, door and frame between
the sleeping area and the guestbath. Remove existing lavatory top,
sink, wall mirror, light fixtures,
Hanover Marriott Rooms Renovation Page 23
Scope of Work - YT75 Revision #1 July 9, 1997
threshold and portions of ceramic tile floor where guestbath area to be
converted into sleeping area. Install new gypsum board wall to align
with rear wall of sleeping area, adjacent to guestbath. Reinstall
existing door and frame and patch and repair ceiling, wall and floor
surfaces to match adjacent surfaces. Provide new lavatory top, sink,
brightware, light fixtures and threshold in guestbath area. Relocate
electrical wiring, switches and outlets from demolished wall to new
wall.
C. Floor:
-----
1. Remove existing carpet and pad.
2. Install new carpet and pad.
Carpet: Axminster
Pad: Tred-Mor
Installation: Stretch-in
D. FF&E:
----
1. Existing signage to remain (evac plaque).
2. Provide new bedspreads for installation by Operations.
3. Provide new artwork.
Hanover Marriott Rooms Renovation Page 24
Scope of Work - YT75 Revision #1 July 9, 1997
E. FF&E List:
---------
CRSS Sleeping Suite (4)
a) New:
---
1) Carpet and pad
2) Overdrape, fixed side panels and tiebacks, blackout lining,
sheers
3) Cornice
4) Drapery hardware for stationary panels
5) Sheers on French doors and side panels
6) Bedspread (queen) (1)
7) Pillow shams (2)
8) Pillows (4)
9) Dustruffle (1)
10) Headboard (1)
11) Mattress (1)
12) Boxspring (1)
13) Bedframe (1)
14) Nightstand (2)
15) Nightstand lamp with shade (2)
16) Dining side board (1)
17) Round dining table (1)
18) Dining chairs (6)
19) Florals (3)
20) Chandelier (1)
21) Wall sconces (2)
22) 3 seat sofa with cushions (1)
23) Cocktail table (1)
24) Armchair (2)
25) End tables (2)
26) End table lamps (2)
27) Floor lamp with shade (1)
28) T.V. armoire (1) Fridge by Operations
29) Welcome light (2)
30) Artwork (5)
31) Mirror (1)
32) Plants and pots (2)
33) Vanity lights (2)
34) 2 part shower curtain (1)
35) T.V. armoire (small) (1)
Hanover Marriott Rooms Renovation Page 25
Scope of Work - YT75 Revision #1 July 9, 1997
b. To be reused:
------------
1) Credenza to be relocated to (1)
elevator lobby
c) To be liquidated:
----------------
1) Bedspread (1)
2) Mattress (1)
3) Bedframe (2)
4) Boxspring (2)
5) Headboard (1)
6) Nightstand (1)
7) 3 seat sofa (1)
8) Side chairs (2)
9) Dining table (1)
10) Dining chairs (5)
11) End tables (3)
12) Occasional table (1)
13) Cocktail table (1)
14) Artwork (4)
15) Floor lamp (1)
16) End table lamps (3)
17) Nightstand lamp (1)
18) Armoire (1)
19) Armoire near bed (1)
Hanover Marriott Rooms Renovation Page 26
Scope of Work - YT75 Revision #1 July 9, 1997
E. FF&E List:
---------
CRHS Hospitality Suite (3)
a) New:
---
1) Carpet and pad
2) Overdrape, fixed side panels and tiebacks, blackout lining,
sheers
3) Cornice
4) Drapery hardware for stationary panels
5) Xxxxxx bed bedspread 60"W (1)
6) Sleep sofa with pillows (1)
7) End tables (2)
8) Armchairs (1)
9) End table lamps (2)
10) Cocktail table (2)
11) Round dining table (1)
12) Dining chairs (6)
13) T.V. armoire (1)
14) Writing desk (1)
15) Desk console (1)
16) Executive chair (1)
17) Pots and plants (2)
18) Chandelier (1)
19) Wall sconces (2)
20) Florals (3)
21) Mirror (1)
22) Artwork (4)
23) Floor lamp with shade (1)
24) Chest of drawers (1)
25) 2 part shower curtain (1)
b) To be liquidated:
----------------
1) 3 seat sofa (1)
2) Wingback chairs (2)
3) Armoire (1)
4) Dining chairs (6)
5) Square cocktail table (1)
6) End table (2)
7) End table lamps (2)
8) Artwork (5)
9) Florals (3)
Hanover Marriott Rooms Renovation Page 27
Scope of Work - YT75 Revision #1 July 9,1997
E. FF&E List:
---------
CLPK Presidential Suite King (1)
a) New:
---
1) Carpet and pad
2) Overdrape, fixed side panels and tiebacks, blackout lining,
sheers
3) Cornice
4) Drapery hardware for stationary panels
5) Bedspread (1)
6) Pillow shams (2)
7) Throw pillows (4)
8) Dust ruffle (1)
9) Mattress (1)
10) Boxspring (2)
11) Bedframe (1)
12) Headboard (1)
13) Nightstand (2)
14) Armoire (1) Fridge by Property
15) Executive desk chair (1)
16) Writing desk (1)
17) Desk console (1)
18) Armchair (1)
19) Ottoman (1)
20) Floor lamp with shade (1)
21) Artwork (3)
22) Mirror (1)
23) Nightstand lamp with shade (2)
24) Florals (2)
25) Vanity light (1)
26) 2 part shower curtain (1)
27) Tech2000 lamp with shade (1)
b) To be reused:
------------
1) Credenza to be relocated to (1)
elevator lobby
Hanover Marriott Rooms Renovation Page 28
Scope of Work - YT75 Revision #1 July 9, 1997
c) To be liquidated:
----------------
1) Benches (2)
2) Headboard (1)
3) Nightstand (1)
4) Loveseat (1)
5) Lounge chair (1)
6) Ottoman (1)
7) Mobile T.V. stand (1)
8) Small desk (1)
9) Desk chair (1)
10) Oval table (1)
11) Floor lamp (1)
12) Nightstand lamp (2)
13) Mirror (1)
14) Artwork (3)
15) Bedframe (1)
16) Boxspring (2)
17) Mattress (1)
Hanover Marriott Rooms Renovation Page 29
Scope of Work - YT75 Revision #1 July 9, 1997
E. FF&E List:
---------
CLPS Presidential Suite (1)
a) New:
---
1) Carpet and pad
2) Overdrape, fixed side panels and tiebacks,
blackout lining, sheers
3) Cornice
4) Drapery hardware
5) Dining room sideboard (1)
6) Dining room table (1)
7) Dining room chairs with no arms (8)
8) Dining room chairs with arms (2)
9) Side board lamps with shades (2)
10) Chandelier (1)
11) Centerpiece table floral (1)
12) 3 seat sofa and pillows (1)
13) Side tables (2)
14) Side chairs (4)
15) Armchairs (2)
16) Cocktail table (1)
17) Sofa table (1)
18) Loveseat (1)
19) Oval cocktail table (1)
20) Circular end table (2)
21) Artwork (5)
22) Pots and plants (2)
23) Mirror (1)
24) Floor lamp with shade (2)
25) End table lamp with shade (4)
26) Sofa table lamps (2)
27) Artifacts (3 groups)
28) Wall sconces (2)
b) Existing to remain:
------------------
1) All artifacts
2) Built-in television unit
c) To be reused:
------------
1) Credenza to be relocated to (1)
elevator lobby
Hanover Marriott Rooms Renovation Page 30
Scope of Work - YT75 Revision #1 July 9, 1997
d) To be liquidated:
----------------
1) 3 seat sofa (1)
2) Loveseat (2)
3) Lounge chair (1)
4) Ottoman (1)
5) Bar stools (2)
6) Dining table (1)
7) Dining chairs with arms (2)
8) Dining chairs without arms (6)
9) Octagonal cocktail table (1)
10) Square end table (1)
11) Round end table (1)
12) Mirror (1)
13) Floor lamp (2)
14) T.V. unit lamps (2)
15) End table lamps (2)
16) Chandelier (1)
17) Wall sconces (2)
18) Artwork (5)
19) Silk florals (2)
Hanover Marriott Rooms Renovation Page 31
Scope of Work- YT75 Revision #1 July 9,1997
VI. SUITE BATHROOMS
---------------
A. Ceiling: (Height 7'-0")
-------
1. Repaint existing gypsum board ceiling.
2. Do not paint light fixture trim rings.
3. Remove, clean, repaint and reinstall all non-aluminum grilles,
vents and access panels.
4. Existing heat lamp to remain.
5. Existing sprinkler heads to remain.
X. Xxxxx:
-----
1. Remove vinyl wallcovering to gypsum board, prepare walls surfaces
and install new vinyl wallcovering.
2. Repaint metal door frame, both sides.
3. Remove existing silencers and provide new.
4. Remove, clean, repaint and reinstall all aluminum, non-aluminum
grilles and vents.
5. Repaint previously painted laminated doors.
6. Existing wall tile to remain.
7. Remove existing and provide new sealant.
8. Existing towel bars to remain.
9. Existing towel rack to remain.
10. Remove existing shower curtain chain hooks and provide plastic
sleeve over existing rod with new shower curtain rings.
11. Existing wall mounted hair dryer to remain.
12. Provide sealant where vinyl wallcovering abuts door frames and
ceramic tile.
13. Modify 4 Sleeping Suites (CRSS) bathrooms as described above
under Suites scope.
Hanover Marriott Rooms Renovation Page 32
Scope of Work - YT75 Revision #1 July 9, 1997
C. Floor:
-----
1. Reseal at base of water closet and tub.
D. FF&E:
----
1. Provide new 2 part shower curtain for installation by
Operations.
E. FF&E Lists:
----------
Suite Bathrooms
a. New:
---
1) Shower curtain-2 part (1)
2) Vanity light (2)
VI. GUESTROOM CORRIDORS, ELEVATOR LOBBIES, VENDING AREAS AND ELEVATOR CABS
----------------------------------------------------------------------
A. Ceiling: (Height: Corridors 8'-0)
-------
Soffits 6'-9")
Elevator lobbies 8'-0") and to underside of
bulkhead = 7'-0"
Bulkhead on 2nd floor 7'-2")
1. Repaint textured corridor ceiling.
2. Retexture 5% of textured corridor ceilings.
3. Repaint textured vending area ceilings.
4. Remove existing lenses from recessed fluorescent lights at door
openings and provide new white eggcrate lenses.
5. Remove existing decorative ceiling lights (2) in elevator lobbies
and provide new.
6. Remove, clean, repaint and reinstall all non-aluminum grilles and
vents.
7. Remove, clean and reinstall all aluminum grilles and vents.
8. Existing exit lights to remain.
Hanover Marriott Rooms Renovation Page 33
Scope of Work - YT75 Revision #1 July 9, 1997
X. Xxxxx:
-----
1. Remove existing wall sconce in elevator lobby and replace with new
ADA compliant wall sconce.
2. Remove vinyl wallcovering to gypsum board, prepare wall surfaces
and install new vinyl wallcovering.
3. Remove, clean, repaint and reinstall all non-aluminum grilles and
vents.
4. Remove, clean and reinstall all aluminum grilles and vents.
5. Touch-up plastic laminated doors where necessary.
6. Repaint all metal door frames, both sides.
7. Remove existing graphics and provide new in locations to meet ADA
requirements.
8. Remove existing and provide new full height corner guards.
9. Remove existing base and provide new carpet base.
10. Provide sealant where vinyl wallcovering abuts door and window
frames.
11. Install new wall sconces and junction boxes with electrical
connections as necessary per floorplan.
12. Repaint elevator doors and frames.
C. Floors:
------
1. Remove existing carpet and pad.
2. Install new carpet and pad.
Carpet: Axminster
Pad: Tred-Mor
Installation: Double glue-down
3. Remove existing and provide new VCT flooring in vending areas.
4. Existing flooring in elevator cabs to remain.
Hanover Marriott Rooms Renovation Page 34
Scope of Work - YT75 Revision #1 July 9, 1997
D. FF&E:
----
1. Touch-up all casegoods and exposed wood frames on upholstered
seating.
2. On second floor, replace sheers at windows at both ends of
corridor.
E. FF&E List:
---------
a. New:
---
1) Decorative ceiling fixture (14) 2 per elevator lobby
2) XXX Xxxx sconces (190)
3) Credenzas (7) per floor (reused
form Suites)
4) Florals (7) 1 per floor
