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EXHIBIT 10.17
SECOND AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT
This Second Amendment To Mortgage and Security Agreement (the
"Second Amendment") is being executed as of May 27, 1997, by and among 000 Xxxxx
Xxxxxxxx Xxxxxx Corporation ("Hotel Corporation"), The Westin Chicago Limited
Partnership (the "Hotel Partnership," and together with Hotel Corporation,
individually and collectively, the "Mortgagor") and Teacher Retirement System of
Texas ("Mortgagee") in connection with that certain Mortgage and Security
Agreement dated as of August 21, 1986, by Hotel Corporation (and Hotel
Partnership, as its assignee) to Mortgagee as amended by that certain First
Amendment to Mortgage and Security Agreement dated as of June 2, 1994 (the
"First Amendment") (the "Existing Mortgage," and as amended by this Second
Amendment, the "Mortgage").
R E C I T A L S
A. Mortgagor and Mortgagee are parties to the Existing
Mortgage, encumbering certain real property (including improvements thereon)
located in the County of Xxxx, State of Illinois (a legal description of which
is attached hereto as Exhibit A) and recorded in the Recorder's Office in County
of Xxxx, Illinois as Document No. 86378850. Pursuant to the Existing Mortgage,
Mortgagor granted a first-priority lien on The Westin Chicago (the "Chicago
Hotel") and the other Premises (as defined therein) as security for a loan
("Loan") in the original principal amount of $32,825,000 made by Mortgagee to
Hotel Corporation, and for all other indebtedness (as defined in the Mortgage).
Unless otherwise defined herein, all capitalized terms used herein shall have
the respective meanings given such terms in the Mortgage (as amended hereby).
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B. Hotel Corporation, Hotel Partnership, Mortgagee, Westin
Hotels Limited Partnership ("WHLP"), Westin Hotel Company ("Westin") and certain
other parties have entered into that certain Second Restructuring Agreement of
even date herewith (the "Restructuring Agreement"), which, among other things,
requires the execution and delivery of this Second Amendment.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein contained and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto, intending legally to be bound hereby, agree as follows:
1. Amendments.
1.1. Amended Definitions.
a. Definition of Note. The first Recital in the Existing
Mortgage is hereby amended by deleting the phrase "("the "Note")" in line 5
thereof and substituting therefore the following:
"as amended by that certain First Amendment to Promissory Note
dated as of June 2, 1994 and by that certain Second Amendment
to Promissory Note dated as of May 27, 1997 (as so amended,
together with any and all extensions, substitutions,
amendments, modifications, replacements, rearrangements and/or
renewals thereof from time to time, the "Note")."
b. Definition of Indebtedness and Loan Documents. The
Existing Mortgage is hereby amended by deleting the entirety of that portion of
the second Recital paragraph (which second Recital paragraph was added by
Section 1.1(b) of the First Amendment) that immediately follows clause (iv)
thereof (which portion begins with "All of
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the covenants" and ends with "... modified from time to time") and replacing it
with the following:
"All of the covenants, obligations and liabilities described
in clauses (i) through (iv) of this Recital shall hereinafter
be collectively referred to as the "indebtedness." As used
herein, the term "Loan Documents" shall mean (i) the Note,
(ii) the Mortgage, as amended by that certain First Amendment
To Mortgage and Security Agreement dated as of June 2, 1994
(the "First Amendment to Mortgage") and by that certain Second
Amendment to Mortgage and Security Agreement dated as of May
27, 1997 (the "Second Amendment to Mortgage"), as further
amended, restated, supplemented or otherwise modified from
time to time, (iii) that certain Absolute Assignment of
Lessor's Interest in Leases dated as of August 21, 1986, by
000 Xxxxx Xxxxxxxx Xxxxxx Corporation (and The Westin Chicago
Limited Partnership, as its assignee) in favor of Mortgagee,
as amended by that certain Amendment to Assignment of Rents
and Leases, Assignment of Management Agreement and
Subordination of Management Agreement dated as of June 2, 1994
(the "First Amendment to Other Loan Documents"), and by that
certain Second Amendment to Assignment of Rents and Leases,
Assignment of Management Agreement and Subordination of
Management Agreement dated as of May 27, 1997 (the "Second
Amendment to Other Loan Documents"), and as further amended,
restated, supplemented or otherwise modified from time to time
(the "Assignment of Leases"), (iv) that certain Assignment of
Management Agreement dated as of August 21, 1986, by 000 Xxxxx
Xxxxxxxx Xxxxxx Corporation (and The Westin Chicago Limited
Partnership, as its assignee) as Owner, The Westin Chicago
Limited Partnership and Westin Hotels Limited Partnership
("WHLP") for the benefit of Mortgagee, as amended by the First
Amendment to Other Loan Documents and the Second Amendment to
Other Loan Documents, and as further amended, restated,
supplemented or otherwise modified from time to time (the
"Assignment of Management Agreement"), (v) the Subordination
of Management Agreement dated August 21, 1986, among the
Mortgagee, The Westin Chicago Limited Partnership, 000 Xxxxx
Xxxxxxxx Xxxxxx Corporation, WHLP and Westin Hotel Company
("Westin"), as amended by the First Amendment to Other Loan
Documents and the Second Amendment to Other Loan Documents,
and as further amended, restated, supplemented or otherwise
modified from time to time, (vi) the Restructuring Agreement
dated as of June 2, 1994, among 909 North Michigan
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Avenue Corporation, The Westin Chicago Limited Partnership,
Mortgagee, Westin, WHLP and certain other parties (as amended,
restated, supplemented or otherwise modified from time to
time, the "First Restructuring Agreement") to the extent the
First Restructuring Agreement relates to the indebtedness
secured hereby, the Mortgagor or the Premises and the Second
Restructuring Agreement dated as of May 27, 1997, among 000
Xxxxx Xxxxxxxx Xxxxxx Corporation, The Westin Chicago Limited
Partnership, Mortgagee, Westin, WHLP and certain other parties
(as amended, restated, supplemented or otherwise modified from
time to time, the "Second Restructuring Agreement") to the
extent the Second Restructuring Agreement relates to the
indebtedness secured hereby, the Mortgagor or the Premises,
(vii) the Tax Escrow Agreement (as hereinafter defined),
(viii) the Chicago FF&E Escrow Agreement (as hereinafter
defined), and (ix) all other security agreements, financing
statements, lease assignments, guarantees and other
agreements, instruments, documents and written indicia of
contractual obligations between the Mortgagee, on the one
hand, and any or all of The Westin Chicago Limited
Partnership, 000 Xxxxx Xxxxxxxx Xxxxxx Corporation, WHLP, or
Westin or any other person or entity having any right or
interest in any security for the Loan, on the other hand,
executed in connection with any of the transactions
contemplated by any of the documents referenced in this
definition of Loan Documents, as each such agreement,
instrument or other document referenced in any of the
foregoing clauses may be amended, restated, supplemented or
otherwise modified from time to time."
c. Definition of St. Xxxxxxx Note. Clause (m) of the
first paragraph of Paragraph 13 of the Existing Mortgage is hereby amended and
restated in its entirety to read as follows:
"(m) default shall be made under (x) that certain Deed of
Trust, Financing Statement, Security Agreement and Fixture
Filing (With Assignment of Rents and Leases) executed by St.
Xxxxxxx Hotel Corporation, a Delaware corporation, and assumed
by The Westin St. Xxxxxxx Limited Partnership, a Delaware
partnership, as assignee of St. Xxxxxxx Hotel Corporation,
each as Trustor (St. Xxxxxxx Hotel Corporation and The Westin
St. Xxxxxxx Limited Partnership, collectively, "St. Xxxxxxx")
on August 21, 1986, to Transnation Title Insurance Company
(formerly known as Transamerica Title Insurance Company), as
Trustee, for the benefit of Mortgagee, as
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Beneficiary, as amended by that certain First Amendment to
Deed of Trust, Financing Statement, Security Agreement, and
Fixture Filing (with Assignment of Rents and Leases) dated as
of June 2, 1994, and by that certain Second Amendment to Deed
of Trust, Financing Statement, Security Agreement, and Fixture
Filing (with Assignment of Rents and Leases) dated as of May
27, 1997, as the same may be further amended, restated,
supplemented or otherwise modified from time to time (the "St.
Xxxxxxx Deed of Trust"), or (y) that certain Promissory Note
executed by St. Xxxxxxx as Maker, on August 21, 1986, in favor
of Mortgagee, as Holder, as amended by that certain First
Amendment to Promissory Note dated June 2, 1994 and by that
certain Second Amendment to Promissory Note dated as of May
27, 1997, and as the same may be further amended, restated,
supplemented or otherwise modified from time to time (the "St.
Xxxxxxx Note"), or (z) any other Loan Document (as defined in
the St. Xxxxxxx Note); or"
1.2 Notices. The addresses for notice to Mortgagee in
Paragraph 21(b) of the Existing Mortgage are hereby amended and restated in
their entirety to read as follows:
"(b) If to Mortgagee:
Teacher Retirement System of Texas
0000 Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
with a copy to:
Teacher Retirement System of Texas
0000 Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Legal Services Department
Telecopy: (000) 000-0000
LaSalle Advisors Limited
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
Xxxxxx & Xxxxxxx
5800 Sears Tower
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000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: J. Xxxxxxx Xxxxx
Telecopy: (000) 000-0000"
1.3 Prepayment Premium in Event of Foreclosure. Paragraph 27
of the Existing Mortgage is hereby amended by adding the following paragraph as
the second-to-last paragraph thereof:
"Upon any default by Mortgagor and following the acceleration
of maturity as herein provided, a tender of payment by the
Mortgagor or by anyone on behalf of the Mortgagor of the
amount necessary to satisfy the entire indebtedness secured
hereby made at any time prior to foreclosure sale shall
constitute an evasion of the prepayment terms of the Note and
be deemed to be a voluntary prepayment thereunder and any such
payment shall, therefore, include the additional payment
required under the prepayment provisions contained in the
Note."
2. Representations and Warranties of Hotel Corporation and
Hotel Partnership. To induce Mortgagee to enter into this Second Amendment, each
Mortgagor hereby jointly and severally reaffirms, and incorporates by reference
herein, each of its representations and warranties set forth in the Second
Restructuring Agreement.
3. Conditions to Effectiveness. The amendments to the Existing
Mortgage set forth in Section 1 hereof shall become effective on the Effective
Date (as defined in the Second Restructuring Agreement).
4. Miscellaneous.
4.1 Reference to and Effect on the Mortgage. Upon the
Effective Date, each reference in the Existing Mortgage to "this Mortgage,"
"hereunder," "hereof," "herein," "hereby" or words of like import shall mean and
be a reference to the Existing Mortgage as
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amended hereby, and each reference to the Existing Mortgage in the Note, any
other Loan Document, any Restructuring Document (as defined in the Second
Restructuring Agreement), or any other document, instrument or agreement
executed and/or delivered in connection with this Second Amendment, the Existing
Mortgage, the Note, any other Loan Documents, or any Restructuring Documents
shall mean and be a reference to the Existing Mortgage as amended hereby.
4.2 No Waiver. The execution, delivery and effectiveness of
this Second Amendment shall not operate as a waiver of any right, power or
remedy of the Mortgagee under the Existing Mortgage, as amended by the First
Amendment and the Second Amendment, the Note, the Loan Documents, the
Restructuring Documents or any other document, instrument or agreement executed
in connection herewith or therewith, nor constitutes a waiver of any provision
contained therein, except as specifically set forth herein or contemplated
hereby.
4.3 Reaffirmation. The terms and conditions of this Second
Amendment and the Mortgagee's rights, powers and remedies pursuant hereto shall
apply to all of the indebtedness secured hereby. Except as specifically modified
herein, the Existing Mortgage remains in full force and effect, and Mortgagor
hereby ratifies and reaffirms the terms and provisions of the Mortgage and the
validity and enforceability thereof (as if The Westin Chicago Hotel Partnership
were a party thereto in the same capacity as 000 Xxxxx Xxxxxxxx Xxxxxx
Corporation). This Second Amendment is an amendment of the Existing Mortgage and
does not constitute a novation of any of the indebtedness secured hereby.
4.4 Governing Law and Severability. This Second Amendment
shall be governed by and construed in accordance with the internal laws (as
opposed to the conflicts of
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law provisions) and decisions of the State of Illinois. Any provision of this
Second Amendment which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
4.5 Counterparts. This Second Amendment may be executed
(including, without limitation, by way of facsimile) in any number of
counterparts and by different parties hereto and separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute but one and the same instrument.
Executed signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically
attached to the same document.
4.6 Headings. Section headings in this Second Amendment are
included herein for convenience and reference only and shall not constitute a
part of this Second Amendment for any purpose.
This Document was prepared by:
Xxxxxxx Xxxxx
Xxxxxx & Xxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed as of the date first above written.
000 XXXXX XXXXXXXX XXXXXX CORPORATION,
a Delaware corporation, as Mortgagor
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Its: Vice President
THE WESTIN CHICAGO LIMITED PARTNERSHIP,
a Delaware limited partnership, as
Mortgagor
By: 000 Xxxxx Xxxxxxxx Xxxxxx Corporation,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Its: Vice President
TEACHER RETIREMENT SYSTEM OF TEXAS,
a public pension fund and an agency
of the State of Texas, as Mortgagee
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Its: Loan Administration Manager
[Signature Page to Second Amendment to Mortgage and Security Agreement.]
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STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 22nd day of May, 1997, before me personally appeared Xxxxxxx X.
Xxxxxx, to me known to be the Vice President of 000 Xxxxx Xxxxxxxx Xxxxxx
Corporation, the corporation that executed the within and foregoing instrument,
and acknowledged said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath
stated that he is authorized to execute the said instrument, and that the seal
affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the
day and year first above written.
/s/ Xxxxxx X. Xxxxx
---------------------------------------------
(Signature)
Xxxxxx X. Xxxxx
NOTARY PUBLIC in and for the
State of Washington, residing at Seattle.
My commission expires: 4/1/99
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 22nd day of May, 1997, before me personally appeared Xxxxxxx X.
Xxxxxx, to me known to be the Vice President of 000 Xxxxx Xxxxxxxx Xxxxxx
Corporation, the corporation that executed the within and foregoing instrument
in its capacity as the sole general partner of The Westin Chicago Limited
Partnership, and acknowledged said instrument to be the free and voluntary act
and deed of said corporation, for the uses and purposes therein mentioned, and
on oath stated that he is authorized to execute the said instrument, and that
the seal affixed, if any, is the corporate seal of said corporation.
IN WITNESS WHEREOF I have hereunto set my hand and official seal the
day and year first above written.
/s/ Xxxxxx X. Xxxxx
--------------------------------------------
(Signature)
Xxxxxx X. Xxxxx
NOTARY PUBLIC in and for the
State of Washington, residing at Seattle.
My commission expires: 4/1/99
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STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
On this 23rd day of May, 1997, before me personally appeared Xxxxxxx X.
Xxxxxx, to me known to be the Loan Portfolio Manager of TEACHER RETIREMENT
SYSTEM OF TEXAS, a public pension fund and an agency of the State of Texas,
which executed the within and foregoing instrument, and acknowledged the said
instrument to be the free and voluntary act and deed of said public pension
fund, for the uses and purposes therein mentioned, and on oath stated that she
is authorized to execute the said instrument on behalf of said public pension
fund.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
/s/ Xxxxx X. Xxxxxxxxx
---------------------------------------------
Notary Public
My Commission Expires: 00-0-00
Xxxxx X. Xxxxxxxxx
Xxxxxx Xxxxxx
Xxxxx xx Xxxxx
Comm. Exp. 10-02-99
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EXHIBIT A
PARCEL 1: XXXX 00, 00 XXX 00 XX XXXXXXXXXXXX'X XXXX XXXXX DRIVE ADDITION TO
CHICAGO, BEING A SUBDIVISION OF PART OF BLOCK 13 IN CANAL TRUSTEES' SUBDIVISION
OF SOUTH FRACTIONAL 1/4 OF SECTION 3, TOWNSHIP 39 NORTH, RANGE 14, EAST OF THE
THIRD PRINCIPAL MERIDIAN.
-ALSO-
PARCEL 2: THAT CERTAIN TRACT OF LAND (EXCEPT THE NORTH 1/2 THEREOF), DESCRIBED
AS FOLLOWS: XXXX 00 XX 00, XXXX XXXXXXXXX, XX ALLMENDINGER'S LAKE SHORE DRIVE
ADDITION TO CHICAGO, A SUBDIVISION OF PART OF BLOCK 13 IN THE CANAL TRUSTEES'
SUBDIVISION OF THE SOUTH FRACTIONAL 1/4 OF SECTION 3, TOWNSHIP 39 NORTH, RANGE
14, EAST OF THE THIRD PRINCIPAL MERIDIAN.
-ALSO-
PARCEL 3: THE EASEMENT OF LIGHT, AIR AND VIEW FOR THE BENEFIT OF PARCEL 2, OVER
AND UPON THE PREMISES DESCRIBED AS FOLLOWS: COMMENCING AT A HORIZONTAL PLANE
PARALLEL TO AND 63 FEET ABOVE CHICAGO CITY DATUM AND EXTENDING VERTICALLY
UPWARDS TO THE ZENITH, BEGINNING AT A POINT ON THE NORTH LINE OF PARCEL 2
AFORESAID, 62 FEET EAST OF THE WESTERLY LINE OF SAID PARCEL 2; THENCE NORTH
ALONG A LINE PARALLEL TO AND 62 FEET EAST OF THE WESTERLY LINE OF LOTS 23 TO 31
INCLUSIVE (AS A TRACT) IN XXXXXXXXXXX'X LAKE SHORE DRIVE ADDITION TO CHICAGO
AFORESAID, A DISTANCE OF 30 FEET TO A POINT; THENCE EAST AND PARALLEL WITH THE
CENTER LINE OF LOTS 23 TO 31 INCLUSIVE (AS A TRACT), A DISTANCE OF 88 FEET TO A
POINT; THENCE SOUTH AND PARALLEL TO THE WESTERLY LINE OF SAID TRACT, A DISTANCE
OF 30 FEET TO THE CENTER LINE OF SAID TRACT; THENCE WEST ALONG THE CENTER LINE
OF SAID TRACT, A DISTANCE OF 88 FEET TO THE PLACE OF BEGINNING, AS CREATED BY
AGREEMENT BETWEEN THE PALMOLIVE-PEET COMPANY, A CORPORATION OF DELAWARE, AND
CHICAGO TITLE AND TRUST COMPANY, A CORPORATION OF ILLINOIS, AS TRUSTEE UNDER
TRUST AGREEMENT DATED JULY 25, 1927 AND KNOWN AS TRUST NUMBER 19104, DATED MARCH
31, 1928, AND RECORDED APRIL 30, 1928, AS DOCUMENT NUMBER 10 005 790 AND ALSO
RECORDED ON JUNE 21, 1932, AS DOCUMENT NUMBER 11 106 014 AND AS CONTINUED AND
RESERVED BY INSTRUMENT, DATED DECEMBER 26, 1958 AND RECORDED ON DECEMBER 26,
1958, AS DOCUMENT NUMBER 17 413 316, ALL IN THE RECORDER'S OFFICE OF XXXX
COUNTY, ILLINOIS, WHICH EASEMENTS ARE DEPICTED ON THE SURVEY, DATED MAY 30, 1986
AND PREPARED BY CHICAGO GUARANTEE SURVEY COMPANY, HEREINAFTER REFERRED TO AS
"THE SURVEY".
-ALSO-
PARCEL 4: AN EASEMENT FOR THE MAINTENANCE OF A REFRIGERATION OF CHILLED WATER
PLANT LOCATED IN THE SOUTHWEST CORNER OF THE SUB-BASEMENT OF THE PLAYBOY
BUILDING, AS CREATED BY AN AGREEMENT BETWEEN THE AMERICAN NATIONAL BANK OF
CHICAGO, AS TRUSTEE, UNDER TRUST AGREEMENT DATED OCTOBER 8, 1959, AND KNOWN AS
TRUST NUMBER
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14758, AND LESSEE OF THE PLAYBOY BUILDING, AND 000 XXXXX XXXXXXXX XXXXXX
CORPORATION, RECORDED FEBRUARY 2, 1976, AS DOCUMENT NUMBER 23 378 328.
Commonly known address: 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
PIN: 17 03 213 006
17 03 213 005
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