Exhibit 10.240
GM OLATHE, LLC,
a Delaware limited liability company, as mortgagor
(Borrower)
to
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
a New York corporation, as mortgagee
(Lender)
--------------------------
AMENDED AND RESTATED
FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
--------------------------
Dated: As of June 9, 2004
Location: Great Mall of the Great Plains
Olathe, Kansas
County: Xxxxxxx County, Kansas
PREPARED BY AND UPON
RECORDATION RETURN TO:
Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
AMENDED AND RESTATED FEE AND LEASEHOLD MORTGAGE,
ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT (this "Security Instrument") is made as of this
9th day of June, 2004, by GM OLATHE, LLC, a Delaware limited liability company,
having an address at 000 Xxxx Xxx Xxxxxx, Xxxxxxxx, Xxxx 00000, as mortgagor
("Borrower") for the benefit of XXXXXX XXXXXXX MORTGAGE CAPITAL INC., having an
address at 1221 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
mortgagee ("Lender").
This Security Instrument amends and restates in their entirety the
mortgages described on the Schedule of Mortgages attached hereto and made a part
hereof which are each now held by Lender, to form a single lien in the principal
sum of $30,000,000.00.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, this Security Instrument is given to secure a loan (the "Loan")
in the principal sum of THIRTY MILLION AND NO/100 DOLLARS ($30,000,000.00) or so
much thereof as may be advanced pursuant to that certain Loan Agreement dated as
of the date hereof between Borrower and Lender (as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time, the
"Loan Agreement") and evidenced by those certain Promissory Notes dated the date
hereof made by Borrower to Lender (such Notes, together with all extensions,
renewals, replacements, restatements or modifications thereof being hereinafter
collectively referred to as the "Note");
WHEREAS, Borrower desires to secure the payment of the Debt (as defined in
the Loan Agreement) and the performance of all of its obligations under the
Note, the Loan Agreement and the other Loan Documents; and
WHEREAS, this Security Instrument is given pursuant to the Loan Agreement,
and payment, fulfillment, and performance by Borrower of its obligations
thereunder and under the other Loan Documents are secured hereby, and each and
every term and provision of the Loan Agreement and the Note, including the
rights, remedies, obligations, covenants, conditions, agreements, indemnities,
representations and warranties of the parties therein, are hereby incorporated
by reference herein as though set forth in full and shall be considered a part
of this Security Instrument (the Loan Agreement, the Note, this Security
Instrument, that certain Assignment of Leases and Rents of even date herewith
made by Borrower in favor of Lender (the "Assignment of Leases") and all other
documents evidencing or securing the Debt or delivered in connection with the
making of the Loan are hereinafter referred to collectively as the "Loan
Documents").
NOW THEREFORE, in consideration of the making of the Loan by Lender and
the covenants, agreements, representations and warranties set forth in this
Security Instrument:
Article 1 - GRANTS OF SECURITY
Section 1.1 PROPERTY MORTGAGED . Borrower does hereby irrevocably
mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey to
Lender and its successors and assigns the following property, rights, interests
and estates now owned, or hereafter acquired by Borrower (collectively, the
"Property"):
(a) Land. The real property described in Exhibit A attached hereto and
made a part hereof (the "Land");
(b) Additional Land. All xxxxxxxxxx xxxxx, xxxxxxx and development rights
hereafter acquired by Borrower for use in connection with the Land and the
development of the Land and all additional lands and estates therein which may,
from time to time, by supplemental mortgage or otherwise be expressly made
subject to the lien of this Security Instrument;
(c) Improvements. The buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
now or hereafter erected or located on the Land (collectively, the
"Improvements");
(d) Easements. All easements, rights-of-way or use, rights, strips and
gores of land, streets, ways, alleys, passages, sewer rights, water, water
courses, water rights and powers, air rights and development rights, and all
estates, rights, titles, interests, privileges, liberties, servitudes,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
now or hereafter belonging, relating or pertaining to the Land and the
Improvements and the reversion and reversions, remainder and remainders, and all
land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Land, to the center line thereof and all the estates,
rights, titles, interests, dower and rights of dower, curtesy and rights of
curtesy, property, possession, claim and demand whatsoever, both at law and in
equity, of Borrower of, in and to the Land and the Improvements and every part
and parcel thereof, with the appurtenances thereto;
(e) Equipment. All "equipment," as such term is defined in Article 9 of
the Uniform Commercial Code (as hereinafter defined), now owned or hereafter
acquired by Borrower, which is used at or in connection with the Improvements or
the Land or is located thereon or therein (including, but not limited to, all
machinery, equipment, furnishings, and electronic data-processing and other
office equipment now owned or hereafter acquired by Borrower and any and all
additions, substitutions and replacements of any of the foregoing), together
with all attachments, components, parts, equipment and accessories installed
thereon or affixed thereto (collectively, the "Equipment"). Notwithstanding the
foregoing, Equipment shall not include any property belonging to tenants under
leases except to the extent that Borrower shall have any right or interest
therein;
(f) Fixtures. All Equipment now owned, or the ownership of which is
hereafter acquired, by Borrower which is so related to the Land and Improvements
forming part of the Property that it is deemed fixtures or real property under
the law of the particular state in which the Equipment is located, including,
without limitation, all building or construction materials intended for
construction, reconstruction, alteration or repair of or installation on the
Property,
construction equipment, appliances, machinery, plant equipment, fittings,
apparatuses, fixtures and other items now or hereafter attached to, installed in
or used in connection with (temporarily or permanently) any of the Improvements
or the Land, including, but not limited to, engines, devices for the operation
of pumps, pipes, plumbing, cleaning, call and sprinkler systems, fire
extinguishing apparatuses and equipment, heating, ventilating, plumbing,
laundry, incinerating, electrical, air conditioning and air cooling equipment
and systems, gas and electric machinery, appurtenances and equipment, pollution
control equipment, security systems, disposals, dishwashers, refrigerators and
ranges, recreational equipment and facilities of all kinds, and water, gas,
electrical, storm and sanitary sewer facilities, utility lines and equipment
(whether owned individually or jointly with others, and, if owned jointly, to
the extent of Borrower's interest therein) and all other utilities whether or
not situated in easements, all water tanks, water supply, water power sites,
fuel stations, fuel tanks, fuel supply, and all other structures, together with
all accessions, appurtenances, additions, replacements, betterments and
substitutions for any of the foregoing and the proceeds thereof (collectively,
the "Fixtures"). Notwithstanding the foregoing, "Fixtures" shall not include any
property which tenants are entitled to remove pursuant to leases except to the
extent that Borrower shall have any right or interest therein;
(g) Personal Property. All furniture, furnishings, objects of art,
machinery, goods, tools, supplies, appliances, general intangibles, contract
rights, accounts, accounts receivable, franchises, licenses, certificates and
permits, and all other personal property of any kind or character whatsoever (as
defined in and subject to the provisions of the Uniform Commercial Code as
hereinafter defined), other than Fixtures, which are now or hereafter owned by
Borrower and which are located within or about the Land and the Improvements,
together with all accessories, replacements and substitutions thereto or
therefor and the proceeds thereof (collectively, the "Personal Property"), and
the right, title and interest of Borrower in and to any of the Personal Property
which may be subject to any security interests, as defined in the Uniform
Commercial Code, as adopted and enacted by the state or states where any of the
Property is located (the "Uniform Commercial Code"), superior in lien to the
lien of this Security Instrument and all proceeds and products of the above;
(h) Leases and Rents. All leases, subleases and other agreements affecting
the use, enjoyment or occupancy of the Land and the Improvements heretofore or
hereafter entered into, whether before or after the filing by or against
Borrower of any petition for relief under 11 U.S.C. ss.101 et seq., as the same
may be amended from time to time (the "Bankruptcy Code") (collectively, the
"Leases") and all right, title and interest of Borrower, its successors and
assigns therein and thereunder, including, without limitation, cash or
securities deposited thereunder to secure the performance by the lessees of
their obligations thereunder and all rents, additional rents, revenues, issues
and profits (including all oil and gas or other mineral royalties and bonuses)
from the Land and the Improvements whether paid or accruing before or after the
filing by or against Borrower of any petition for relief under the Bankruptcy
Code (collectively, the "Rents") and all proceeds from the sale or other
disposition of the Leases and the right to receive and apply the Rents to the
payment of the Debt;
(i) Condemnation Awards. All awards or payments, including interest
thereon, which may heretofore and hereafter be made with respect to the
Property, whether from the exercise of the right of eminent domain (including
but not limited to any transfer made in lieu of
or in anticipation of the exercise of the right), or for a change of grade, or
for any other injury to or decrease in the value of the Property;
(j) Insurance Proceeds. All proceeds in respect of the Property under any
insurance policies covering the Property, including, without limitation, the
right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Property;
(k) Tax Certiorari. All refunds, rebates or credits in connection with
reduction in real estate taxes and assessments charged against the Property as a
result of tax certiorari or any applications or proceedings for reduction;
(l) Rights. The right, in the name and on behalf of Borrower, to appear in
and defend any action or proceeding brought with respect to the Property and to
commence any action or proceeding to protect the interest of Lender in the
Property;
(m) Agreements. All agreements, contracts, certificates, instruments,
franchises, permits, licenses, plans, specifications and other documents, now or
hereafter entered into, and all rights therein and thereto, respecting or
pertaining to the use, occupation, construction, management or operation of the
Land and any part thereof and any Improvements or respecting any business or
activity conducted on the Land and any part thereof and all right, title and
interest of Borrower therein and thereunder, including, without limitation, the
right, upon the happening of any default hereunder, to receive and collect any
sums payable to Borrower thereunder;
(n) Trademarks. All tradenames, trademarks, servicemarks, logos,
copyrights, goodwill, books and records and all other general intangibles
relating to or used in connection with the operation of the Property;
(o) Ground Lease. All of Borrower's right, title and interest in and to
that certain Lease Agreement dated as of June 1, 1996 between the City of
Olathe, Kansas, a Kansas municipal corporation, as landlord, and Olathe Mall
LLC, a Colorado limited liability company, as tenant, a memorandum of which was
recorded with the Register of Deeds in Xxxxxxx County, Kansas in Liber 4924,
page 375; as assigned by that certain Assignment of Lease Agreement dated as of
June 1, 1996 by the City of Olathe, Kansas to The Huntington National Bank, a
national banking association, and recorded with the Register of Deeds in Xxxxxxx
County, Kansas in Liber 4924, page 381; as further assigned by that certain
Assignment of Lease Agreement dated November 26, 1996 by Olathe Mall LLC to
Great Plains Metromall, LLC, a Delaware limited liability company, and recorded
with the Register of Deeds in Xxxxxxx County, Kansas in Book 5054 at Page 271;
as further assigned by that certain Assignment And Assumption Of Lease Agreement
dated as of June 9, 2004, by Great Plains Metromall, LLC to GM Mezz, LLC, a
Delaware limited liability company, and submitted for recording with the
Register of Deeds in Xxxxxxx County, Kansas immediately prior hereto; and as
further assigned by that certain Assignment And Assumption Of Lease Agreement
dated as of June 9, 2004, by GM Mezz, LLC to Borrower and submitted for
recording with the Register of Deeds in Xxxxxxx County, Kansas immediately prior
hereto (the "Ground Lease") and the leasehold estate created thereby, together
with all modifications, extensions and renewals of the Ground Lease and all
credits, deposits (including, without limitation, any deposit of cash or
securities or any other property which may be held to secure Borrower's
performance of its obligations under the Ground Lease), options, privileges and
rights of Borrower as tenant under the Ground Lease, including, but not limited
to, (i) the right to cause fee title to the premises demised by the Ground Lease
to be conveyed to Borrower as provided in Article 11 of the Ground Lease, as
amended and (ii) all the estate, right, title, claim or demand whatsoever of
Borrower either in law or in equity, in possession or expectancy, of, in and to
the Property or any part thereof, including the fee title to the property
conveyed or to be conveyed pursuant to the right described in clause (i) of this
Section 1.1(o);
(p) Proceeds. All proceeds of any of the foregoing, including, without
limitation, proceeds of insurance and condemnation awards, whether cash,
liquidation or other claims or otherwise; and
(q) Other Rights. Any and all other rights of Borrower in and to the items
set forth in Subsections (a) through (p) above.
AND without limiting any of the other provisions of this Security
Instrument, to the extent permitted by applicable law, Borrower expressly grants
to Lender, as secured party, a security interest in the portion of the Property
which is or may be subject to the provisions of the Uniform Commercial Code
which are applicable to secured transactions; it being understood and agreed
that the Improvements and Fixtures are part and parcel of the Land (the Land,
the Improvements and the Fixtures collectively referred to as the "Real
Property") appropriated to the use thereof and, whether affixed or annexed to
the Real Property or not, shall for the purposes of this Security Instrument be
deemed conclusively to be real estate and mortgaged hereby.
Section 1.2 ASSIGNMENT OF RENTS. Borrower hereby absolutely and
unconditionally assigns to Lender all of Borrower's right, title and interest in
and to all current and future Leases and Rents; it being intended by Borrower
that this assignment constitutes a present, absolute assignment and not an
assignment for additional security only. Nevertheless, subject to the terms of
the Assignment of Leases and Section 7.1(h) of this Security Instrument, Lender
grants to Borrower a revocable license to collect, receive, use and enjoy the
Rents. Borrower shall hold the Rents, or a portion thereof sufficient to
discharge all current sums due on the Debt, for use in the payment of such sums.
Section 1.3 SECURITY AGREEMENT. This Security Instrument is both a real
property mortgage and a "security agreement" within the meaning of the Uniform
Commercial Code. The Property includes both real and personal property and all
other rights and interests, whether tangible or intangible in nature, of
Borrower in the Property. By executing and delivering this Security Instrument,
Borrower hereby grants to Lender, as security for the Obligations (hereinafter
defined), a security interest in the Fixtures, the Equipment, the Personal
Property and other property constituting the Property to the full extent that
the Fixtures, the Equipment, the Personal Property and such other property may
be subject to the Uniform Commercial Code (said portion of the Property so
subject to the Uniform Commercial Code being called the "Collateral"). If an
Event of Default shall occur and be continuing, Lender, in addition to any other
rights and remedies which it may have, shall have and may exercise immediately
and
without demand, any and all rights and remedies granted to a secured party upon
default under the Uniform Commercial Code, including, without limiting the
generality of the foregoing, the right to take possession of the Collateral or
any part thereof, and to take such other measures as Lender may deem necessary
for the care, protection and preservation of the Collateral. Upon request or
demand of Lender after the occurrence and during the continuance of an Event of
Default, Borrower shall, at its expense, assemble the Collateral and make it
available to Lender at a convenient place (at the Land if tangible property)
reasonably acceptable to Lender. Borrower shall pay to Lender on demand any and
all expenses, including reasonable legal expenses and attorneys' fees, incurred
or paid by Lender in protecting its interest in the Collateral and in enforcing
its rights hereunder with respect to the Collateral after the occurrence and
during the continuance of an Event of Default. Any notice of sale, disposition
or other intended action by Lender with respect to the Collateral sent to
Borrower in accordance with the provisions hereof at least ten (10) business
days prior to such action, shall, except as otherwise provided by applicable
law, constitute reasonable notice to Borrower. The proceeds of any disposition
of the Collateral, or any part thereof, may, except as otherwise required by
applicable law, be applied by Lender to the payment of the Debt in such priority
and proportions as Lender in its discretion shall deem proper. The principal
place of business of Borrower (Debtor) is as set forth on page one hereof and
the address of Lender (Secured Party) is as set forth on page one hereof.
Section 1.4 FIXTURE FILING. Certain of the Property is or will become
"fixtures" (as that term is defined in the Uniform Commercial Code) on the Land,
described or referred to in this Security Instrument, and this Security
Instrument, upon being filed for record in the real estate records of the city
or county wherein such fixtures are situated, shall operate also as a financing
statement filed as a fixture filing in accordance with the applicable provisions
of said Uniform Commercial Code upon such of the Property that is or may become
fixtures.
Section 1.5 PLEDGES OF MONIES HELD. Borrower hereby pledges to Lender any
and all monies now or hereafter held by Lender or on behalf of Lender in
connection with the Loan, including, without limitation, any sums deposited in
the Accounts (as defined in the Cash Management Agreement) and Net Proceeds, as
additional security for the Obligations until expended or applied as provided in
this Security Instrument.
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property unto and to
the use and benefit of Lender and its successors and assigns, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that, if
Borrower shall well and truly pay to Lender the Debt at the time and in the
manner provided in the Note, the Loan Agreement and this Security Instrument,
shall well and truly perform the Other Obligations as set forth in this Security
Instrument and shall well and truly abide by and comply with each and every
covenant and condition set forth herein and in the Note, the Loan Agreement and
the other Loan Documents, these presents and the estate hereby granted shall
cease, terminate and be void; provided, however, that Borrower's obligation to
indemnify and hold harmless Lender pursuant to the provisions hereof shall
survive any such payment or release.
Article 2 - DEBT AND OBLIGATIONS SECURED
Section 2.1 DEBT. This Security Instrument and the grants, assignments and
transfers made in Article 1 are given for the purpose of securing the Debt.
Section 2.2 OTHER OBLIGATIONS. This Security Instrument and the grants,
assignments and transfers made in Article 1 are also given for the purpose of
securing the following (the "Other Obligations"):
(a) the performance of all other obligations of Borrower contained herein;
(b) the performance of each obligation of Borrower contained in the Loan
Agreement and any other Loan Document; and
(c) the performance of each obligation of Borrower contained in any
renewal, extension, amendment, modification, consolidation, change of, or
substitution or replacement for, all or any part of the Note, the Loan Agreement
or any other Loan Document.
Section 2.3 DEBT AND OTHER OBLIGATIONS. Borrower's obligations for the
payment of the Debt and the performance of the Other Obligations shall be
referred to collectively herein as the "Obligations."
Article 3 - BORROWER COVENANTS
Borrower covenants and agrees that:
Section 3.1 PAYMENT OF DEBT. Borrower will pay the Debt at the time and in
the manner provided in the Loan Agreement, the Note and this Security
Instrument.
Section 3.2 INCORPORATION BY REFERENCE. All the covenants, conditions and
agreements contained in (a) the Loan Agreement , (b) the Note and (c) all and
any of the other Loan Documents, are hereby made a part of this Security
Instrument to the same extent and with the same force as if fully set forth
herein.
Section 3.3 INSURANCE. Borrower shall obtain and maintain, or cause to be
maintained, in full force and effect at all times insurance with respect to
Borrower and the Property as required pursuant to the Loan Agreement.
Section 3.4 MAINTENANCE OF PROPERTY. Borrower shall cause the Property to
be maintained in a good and safe condition and repair. The Improvements, the
Fixtures, the Equipment and the Personal Property shall not be removed,
demolished or materially altered (except for normal replacement of the Fixtures,
the Equipment or the Personal Property, tenant finish and refurbishment of the
Improvements) without the consent of Lender. Borrower shall promptly repair,
replace or rebuild any part of the Property which may be destroyed by any
Casualty or become damaged, worn or dilapidated or which may be affected by any
Condemnation, and shall complete and pay for any structure at any time in the
process of construction or repair on the Land.
Section 3.5 WASTE. Borrower shall not commit or suffer any waste of the
Property or make any change in the use of the Property which will in any way
materially increase the risk of fire or other hazard arising out of the
operation of the Property, or take any action that might invalidate or allow the
cancellation of any Policy, or do or permit to be done thereon anything that may
in any way materially impair the value of the Property or the security of this
Security Instrument. Borrower will not, without the prior written consent of
Lender, permit any drilling or exploration for or extraction, removal, or
production of any minerals from the surface or the subsurface of the Land,
regardless of the depth thereof or the method of mining or extraction thereof.
Section 3.6 PAYMENT FOR LABOR AND MATERIALS. (a) Borrower will promptly
pay when due all bills and costs for labor, materials, and specifically
fabricated materials ("Labor and Material Costs") incurred in connection with
the Property and never permit to exist beyond the due date thereof in respect of
the Property or any part thereof any lien or security interest, even though
inferior to the liens and the security interests hereof, and in any event never
permit to be created or exist in respect of the Property or any part thereof any
other or additional lien or security interest other than the liens or security
interests hereof except for the Permitted Encumbrances.
(b) After prior written notice to Lender, Borrower, at its own expense,
may contest by appropriate legal proceeding, promptly initiated and conducted in
good faith and with due diligence, the amount or validity or application in
whole or in part of any of the Labor and Material Costs, provided that (i) no
Event of Default has occurred and is continuing under the Loan Agreement, the
Note, this Security Instrument or any of the other Loan Documents, (ii) Borrower
is permitted to do so under the provisions of any other mortgage, deed of trust
or deed to secure debt affecting the Property, (iii) such proceeding shall
suspend the collection of the Labor and Material Costs from Borrower and from
the Property or Borrower shall have paid all of the Labor and Material Costs
under protest, (iv) such proceeding shall be permitted under and be conducted in
accordance with the provisions of any other instrument to which Borrower is
subject and shall not constitute a default thereunder, (v) neither the Property
nor any part thereof or interest therein will be in danger of being sold,
forfeited, terminated, canceled or lost, and (vi) Borrower shall have furnished
the security as may be required in the proceeding, or as may be reasonably
requested by Lender to insure the payment of any contested Labor and Material
Costs, together with all interest and penalties thereon.
Section 3.7 PERFORMANCE OF OTHER AGREEMENTS. Borrower shall observe and
perform each and every term, covenant and provision to be observed or performed
by Borrower pursuant to the Loan Agreement, any other Loan Document and any
other agreement or recorded instrument affecting or pertaining to the Property
and any amendments, modifications or changes thereto.
Section 3.8 CHANGE OF NAME, IDENTITY OR STRUCTURE. Borrower shall not
change Borrower's name, identity (including its trade name or names) or, if not
an individual, Borrower's corporate, partnership or other structure without
first (a) notifying Lender of such change in writing at least thirty (30) days
prior to the effective date of such change, (b) taking all action required by
Lender for the purpose of perfecting or protecting the lien and security
interest of Lender and (c) in the case of a change in Borrower's structure,
without first obtaining the prior
written consent of Lender. Borrower shall promptly notify Lender in writing of
any change in its organizational identification number. If Borrower does not now
have an organizational identification number and later obtains one, Borrower
shall promptly notify Lender in writing of such organizational identification
number. Borrower shall execute and deliver to Lender, prior to or
contemporaneously with the effective date of any such change, any financing
statement or financing statement change required by Lender to establish or
maintain the validity, perfection and priority of the security interest granted
herein. At the request of Lender, Borrower shall execute a certificate in form
satisfactory to Lender listing the trade names under which Borrower intends to
operate the Property, and representing and warranting that Borrower does
business under no other trade name with respect to the Property.
Section 3.9 GROUND LEASE.
(a) Borrower will: (i) pay the rent required by the Ground Lease as the
same becomes due and payable; (ii) promptly perform and observe all of the
material covenants, agreements, obligations and conditions required to be
performed and observed by Borrower under the Ground Lease, and do all things
necessary to preserve and keep unimpaired its rights thereunder; (iii) promptly
notify Lender in writing of the commencement of a proceeding under the federal
bankruptcy laws by or against Borrower or, upon Borrower's receipt of
notification thereof, the lessor under the Ground Lease; (iv) if any of the
indebtedness secured hereby remains unpaid at the time when notice may be given
by the lessee under the Ground Lease of the exercise of any right to renew or
extend the term of the Ground Lease, promptly give notice to the lessor
thereunder of the exercise of such right of extension or renewal; (v) in case
any proceeds of insurance upon the Property or any part thereof are deposited
with any Person other than Lender, promptly notify Lender in writing of the name
and address of the Person with whom such proceeds have been deposited and the
amount so deposited; (vi) promptly notify Lender in writing of the receipt by
Borrower of any notice (other than notices customarily sent on a regular
periodic basis) from the lessor under the Ground Lease and of any notice noting
or claiming any default by Borrower in the performance or observance of any of
the terms, covenants, or conditions on the part of Borrower to be performed or
observed under the Ground Lease; (vii) promptly notify Lender in writing of the
receipt by Borrower of any notice from the lessor of any termination of the
Ground Lease and promptly cause a copy of each such notice to be delivered to
Lender; and (viii) promptly notify Lender in writing of any request made by
either party to the Ground Lease to the other party thereto for arbitration or
appraisal proceedings pursuant to the Ground Lease, and of the institution of
any arbitration or appraisal proceedings and promptly deliver to Lender a copy
of the determination of the arbitrators or appraisers in each such proceeding.
(b) Except as set forth in Article 11 of the Ground Lease in connection
with the transfer of fee title to the Property to Borrower, Borrower will not
surrender the Ground Lease or Borrower's leasehold estate and interest therein,
nor terminate or cancel the Ground Lease; and except as set forth in the Loan
Agreement, will not, without the prior written consent of Lender, modify,
change, supplement, alter or amend the Ground Lease, either orally or in
writing, and as further security for the repayment of the indebtedness hereby
secured and for the performance of the covenants, agreements, obligations and
conditions herein and in the Ground Lease contained, Borrower hereby assigns to
Lender all of its rights, privileges and prerogatives as lessee under the Ground
Lease to terminate, cancel, modify, change, supplement, alter or amend the
Ground
Lease and, except as set forth in the Loan Agreement, any such termination,
cancellation, modification, change, supplement, alteration or amendment of the
Ground Lease, without the prior written consent thereto by Lender, shall be void
and of no force and effect. Without limiting the generality of the foregoing,
Borrower will not reject the Ground Lease pursuant to Section 365(a) of the
Bankruptcy Code or any successor law, or allow the Ground Lease to be deemed
rejected by inaction and lapse of time, and will not elect to treat the Ground
Lease as terminated by the related lessor's rejection of such Ground Lease
pursuant to Section 365(h)(1) of the Bankruptcy Code or any successor law, and
as further security for the repayment of the indebtedness secured hereby and for
the performance of the covenants, agreements, obligations and conditions herein
and in the Ground Lease contained, Borrower hereby assigns to Lender all of its
rights, privileges and prerogatives of Borrower and Borrower's bankruptcy
trustee to deal with the Ground Lease, which right may arise as a result of the
commencement of a proceeding under the federal bankruptcy laws by or against
Borrower or any lessor under the Ground Lease, including, without limitation,
the right to assume or reject, or to compel the assumption or rejection of the
Ground Lease pursuant to Section 365(a) of the Bankruptcy Code or any successor
law, the right to seek and obtain extensions of time to assume or reject the
Ground Lease, the right to elect whether to treat the Ground Lease as terminated
by the lessor's rejection of such Ground Lease or to remain in possession of the
Property and offset damages pursuant to Section 365(b)(1) of the Bankruptcy Code
or any successor law; and any exercise of such rights, privileges or
prerogatives by Borrower or Borrower's bankruptcy trustee without the prior
written consent thereto by Lender shall be void and of no force and effect. No
release or forbearance of any of Borrower's obligations as lessee under the
Ground Lease, whether pursuant to the Ground Lease or otherwise, shall release
Borrower from any of its obligations under this Security Instrument, including,
but not limited to, Borrower's obligations with respect to the payment of rent
as provided for in the Ground Lease and the observance and performance of all of
the covenants, agreements, obligations and conditions contained in the Ground
Lease to be observed and performed by the lessee thereunder. Unless Lender shall
otherwise expressly consent in writing, the fee title to the real property
demised by the Ground Lease and the leasehold estate thereunder shall not merge,
but shall always remain separate and distinct, notwithstanding the union of such
estates either in Borrower or in a third party by purchase or otherwise.
(c) Upon the written demand of Lender, Borrower will promptly deliver to
Lender a certificate stating that the Ground Lease is in full force and effect,
is unmodified, that no notice of termination thereon has been served on
Borrower, stating the date to which the net rent has been paid and stating, to
the knowledge of Borrower, whether or not there are any defaults thereunder and
specifying the nature of such defaults, if any. Borrower shall deliver to Lender
such certificate within twenty (20) days after Lender's demand therefor.
(d) Borrower will furnish to Lender, upon demand, proof of payment of all
items which are required to be paid by Borrower pursuant to the Ground Lease.
Section 3.10 Right to Conveyance of Fee Title. Borrower hereby
relinquishes forever its right to cause fee title to the premises demised by the
Ground Lease to be conveyed to any party other than to Borrower pursuant to
Article 11 of the Ground Lease, as amended, unless specifically and expressly
consented to by Lender.
Article 4 - OBLIGATIONS AND RELIANCES
Section 4.1 RELATIONSHIP OF BORROWER AND LENDER. The relationship between
Borrower and Lender is solely that of debtor and creditor, and Lender has no
fiduciary or other special relationship with Borrower, and no term or condition
of any of the Loan Agreement, the Note, this Security Instrument and the other
Loan Documents shall be construed so as to deem the relationship between
Borrower and Lender to be other than that of debtor and creditor.
Section 4.2 NO RELIANCE ON LENDER. The general partners, members,
principals and (if Borrower is a trust) beneficial owners of Borrower are
experienced in the ownership and operation of properties similar to the
Property, and Borrower and Lender are relying solely upon such expertise and
business plan in connection with the ownership and operation of the Property.
Borrower is not relying on Lender's expertise, business acumen or advice in
connection with the Property.
Section 4.3 NO LENDER OBLIGATIONS. (a) Notwithstanding the provisions of
Subsections 1.1(h) and (m) or Section 1.2, Lender is not undertaking the
performance of (i) any obligations under the Leases; or (ii) any obligations
with respect to such agreements, contracts, certificates, instruments,
franchises, permits, trademarks, licenses and other documents.
(b) By accepting or approving anything required to be observed, performed
or fulfilled or to be given to Lender pursuant to this Security Instrument, the
Loan Agreement, the Note or the other Loan Documents, including, without
limitation, any officer's certificate, balance sheet, statement of profit and
loss or other financial statement, survey, appraisal, or insurance policy,
Lender shall not be deemed to have warranted, consented to, or affirmed the
sufficiency, the legality or effectiveness of same, and such acceptance or
approval thereof shall not constitute any warranty or affirmation with respect
thereto by Lender.
Section 4.4 RELIANCE. Borrower recognizes and acknowledges that in
accepting the Loan Agreement, the Note, this Security Instrument and the other
Loan Documents, Lender is expressly and primarily relying on the truth and
accuracy of the warranties and representations set forth in Article III of the
Loan Agreement without any obligation to investigate the Property and
notwithstanding any investigation of the Property by Lender; that such reliance
existed on the part of Lender prior to the date hereof, that the warranties and
representations are a material inducement to Lender in making the Loan; and that
Lender would not be willing to make the Loan and accept this Security Instrument
in the absence of the warranties and representations as set forth in Article III
of the Loan Agreement.
Article 5 - FURTHER ASSURANCES
Section 5.1 RECORDING OF SECURITY INSTRUMENT, ETC. Borrower forthwith upon
the execution and delivery of this Security Instrument and thereafter, from time
to time, will cause this Security Instrument and any of the other Loan Documents
creating a lien or security interest or evidencing the lien hereof upon the
Property and each instrument of further assurance to be filed, registered or
recorded in such manner and in such places as may be required by any present or
future law in order to publish notice of and fully to protect and perfect the
lien or security interest hereof upon, and the interest of Lender in, the
Property. Borrower will pay all taxes,
filing, registration or recording fees, and all expenses incident to the
preparation, execution, acknowledgment and/or recording of the Note, this
Security Instrument, the other Loan Documents, any note, deed of trust or
mortgage supplemental hereto, any security instrument with respect to the
Property and any instrument of further assurance, and any modification or
amendment of the foregoing documents, and all federal, state, county and
municipal taxes, duties, imposts, assessments and charges arising out of or in
connection with the execution and delivery of this Security Instrument, any deed
of trust or mortgage supplemental hereto, any security instrument with respect
to the Property or any instrument of further assurance, and any modification or
amendment of the foregoing documents, except where prohibited by law so to do.
Section 5.2 FURTHER ACTS, ETC. Borrower will, at the cost of Borrower, and
without expense to Lender, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, deeds of trust, mortgages, assignments,
notices of assignments, transfers and assurances as Lender shall, from time to
time, reasonably require, for the better assuring, conveying, assigning,
transferring, and confirming unto Lender the property and rights hereby
mortgaged, deeded, granted, bargained, sold, conveyed, confirmed, pledged,
assigned, warranted and transferred or intended now or hereafter so to be, or
which Borrower may be or may hereafter become bound to convey or assign to
Lender, or for carrying out the intention or facilitating the performance of the
terms of this Security Instrument or for filing, registering or recording this
Security Instrument, or for complying with all Legal Requirements. Borrower, on
demand, will execute and deliver, and in the event it shall fail to so execute
and deliver, hereby authorizes Lender to execute in the name of Borrower or
without the signature of Borrower to the extent Lender may lawfully do so, one
or more financing statements (including, without limitation, initial financing
statements and amendments thereto and continuation statements) with or without
the signature of Borrower as authorized by applicable law, to evidence more
effectively the security interest of Lender in the Property. Borrower also
ratifies its authorization for Lender to have filed any like initial financing
statements, amendments thereto and continuation statements, if filed prior to
the date of this Security Instrument. Borrower grants to Lender an irrevocable
power of attorney coupled with an interest for the purpose of exercising and
perfecting any and all rights and remedies available to Lender at law and in
equity, including without limitation such rights and remedies available to
Lender pursuant to this Section 5.2. To the extent not prohibited by applicable
law, Borrower hereby ratifies all acts Lender has lawfully done in the past or
shall lawfully do or cause to be done in the future by virtue of such power of
attorney. Nothing contained in this Section 5.2 shall be deemed to create an
obligation on the part of Borrower to pay any costs and expenses incurred by
Lender in connection with the Securitization or other sale or Transfer of the
Loan.
Section 5.3 CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS. (a)
If any law is enacted or adopted or amended after the date of this Security
Instrument which deducts the Debt from the value of the Property for the purpose
of taxation or which imposes a tax, either directly or indirectly, on the Debt
or Lender's interest in the Property, Borrower will pay the tax, with interest
and penalties thereon, if any. If Lender is advised by counsel chosen by it that
the payment of tax by Borrower would be unlawful or taxable to Lender or
unenforceable or provide the basis for a defense of usury then Lender shall have
the option by written notice of not less than one hundred twenty (120) days to
declare the Debt immediately due and payable.
(b) Borrower will not claim or demand or be entitled to any credit or
credits on account of the Debt for any part of the Taxes or Other Charges
assessed against the Property, or any part thereof, and no deduction shall
otherwise be made or claimed from the assessed value of the Property, or any
part thereof, for real estate tax purposes by reason of this Security Instrument
or the Debt. If such claim, credit or deduction shall be required by law, Lender
shall have the option, by written notice of not less than one hundred twenty
(120) days, to declare the Debt immediately due and payable.
(c) If at any time the United States of America, any State thereof or any
subdivision of any such State shall require revenue or other stamps to be
affixed to the Note, this Security Instrument, or any of the other Loan
Documents or impose any other tax or charge on the same, Borrower will pay for
the same, with interest and penalties thereon, if any.
Section 5.4 SPLITTING OF MORTGAGE. This Security Instrument and the Note
shall, at any time until the same shall be fully paid and satisfied, at the sole
election of Lender, be split or divided into two or more notes and two or more
security instruments, each of which shall cover all or a portion of the Property
to be more particularly described therein. To that end, Borrower, upon written
request of Lender, shall execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered by the then owner of the Property, to
Lender and/or its designee or designees substitute notes and security
instruments in such principal amounts, aggregating not more than the then unpaid
principal amount of the Note, and containing terms, provisions and clauses
similar to those contained herein and in the Note, and such other documents and
instruments as may be required by Lender.
Section 5.5 REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an
officer of Lender as to the loss, theft, destruction or mutilation of the Note
or any other Loan Document which is not of public record, and, in the case of
any such mutilation, upon surrender and cancellation of such Note or other Loan
Document, Borrower will issue, in lieu thereof, a replacement Note or other Loan
Document, dated the date of such lost, stolen, destroyed or mutilated Note or
other Loan Document in the same principal amount thereof and otherwise of like
tenor.
Article 6 - DUE ON SALE/ENCUMBRANCE
Section 6.1 LENDER RELIANCE. Borrower acknowledges that Lender has
examined and relied on the experience of Borrower and its general partners,
members, principals and (if Borrower is a trust) beneficial owners in owning and
operating properties such as the Property in agreeing to make the Loan, and will
continue to rely on Borrower's ownership of the Property as a means of
maintaining the value of the Property as security for repayment of the Debt and
the performance of the Other Obligations. Borrower acknowledges that Lender has
a valid interest in maintaining the value of the Property so as to ensure that,
should Borrower default in the repayment of the Debt or the performance of the
Other Obligations, Lender can recover the Debt by a sale of the Property.
Section 6.2 NO TRANSFER . Borrower shall not permit or suffer any Transfer
to occur, unless specifically permitted by Article 8 of the Loan Agreement or
unless Lender shall consent thereto in writing.
Section 6.3 TRANSFER DEFINED. As used in this Article 6 "Transfer" shall
mean any voluntary or involuntary sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer of: (a) all or any part of the
Property or any estate or interest therein including, but not be limited to, (i)
an installment sales agreement wherein Borrower agrees to sell the Property or
any part thereof for a price to be paid in installments, (ii) an agreement by
Borrower leasing all or a substantial part of the Property for other than actual
occupancy by a space tenant thereunder and its affiliates or (iii) a sale,
assignment or other transfer of, or the grant of a security interest in,
Borrower's right, title and interest in and to any Leases or any Rents; or (b)
any ownership interest in (i) Borrower or (ii) any indemnitor or guarantor of
any Obligations or (iii) any corporation, partnership, limited liability
company, trust or other entity owning, directly or indirectly, any interest in
Borrower or any indemnitor or guarantor of any Obligations.
Section 6.4 LENDER'S RIGHTS. Without obligating Lender to grant any
consent under Section 6.2 hereof which Lender may grant or withhold in its sole
discretion, Lender reserves the right to condition the consent required
hereunder upon (a) a modification of the terms hereof and of the Loan Agreement,
the Note or the other Loan Documents; (b) an assumption of the Loan Agreement,
the Note, this Security Instrument and the other Loan Documents as so modified
by the proposed transferee, subject to the provisions of Section 11.22 of the
Loan Agreement; (c) payment of all of Lender's reasonable expenses incurred in
connection with such transfer; (d) the confirmation in writing by the applicable
Rating Agencies that the proposed transfer will not, in and of itself, result in
a downgrade, qualification or withdrawal of the initial, or, if higher, then
current ratings assigned in connection with any Securitization; (e) the delivery
of a nonconsolidation opinion reflecting the proposed transfer satisfactory in
form and substance to Lender; (f) the proposed transferee's continued compliance
with the representations and covenants set forth in Section 3.1.24 and 4.2.11 of
the Loan Agreement; (g) the delivery of evidence satisfactory to Lender that the
single purpose nature and bankruptcy remoteness of Borrower, its shareholders,
partners or members, as the case may be, following such transfers are in
accordance with the standards of the Rating Agencies; (h) the proposed
transferee's ability to satisfy Lender's then-current underwriting standards; or
(i) such other conditions as Lender shall determine in its reasonable discretion
to be in the interest of Lender, including, without limitation, the
creditworthiness, reputation and qualifications of the transferee with respect
to the Loan and the Property. Lender shall not be required to demonstrate any
actual impairment of its security or any increased risk of default hereunder in
order to declare the Debt immediately due and payable upon a Transfer without
Lender's consent. This provision shall apply to every Transfer, other than any
Transfer permitted pursuant to the Loan Agreement, regardless of whether
voluntary or not, or whether or not Lender has consented to any previous
Transfer.
Article 7 - RIGHTS AND REMEDIES UPON DEFAULT
Section 7.1 REMEDIES. Upon the occurrence and during the continuance of
any Event of Default, Borrower agrees that Lender may take such action, without
notice or demand, as it deems advisable to protect and enforce its rights
against Borrower and in and to the Property, including, but not limited to, the
following actions, each of which may be pursued concurrently or otherwise, at
such time and in such order as Lender may determine, in its sole discretion,
without impairing or otherwise affecting the other rights and remedies of
Lender:
(a) declare the entire unpaid Debt to be immediately due and payable;
(b) institute proceedings, judicial or otherwise, for the complete
foreclosure of this Security Instrument under any applicable provision of law,
in which case the Property or any interest therein may be sold for cash or upon
credit in one or more parcels or in several interests or portions and in any
order or manner;
(c) with or without entry, to the extent permitted and pursuant to the
procedures provided by applicable law, institute proceedings for the partial
foreclosure of this Security Instrument for the portion of the Debt then due and
payable, subject to the continuing lien and security interest of this Security
Instrument for the balance of the Debt not then due, unimpaired and without loss
of priority;
(d) sell for cash or upon credit the Property or any part thereof and all
estate, claim, demand, right, title and interest of Borrower therein and rights
of redemption thereof, pursuant to power of sale or otherwise, at one or more
sales, as an entirety or in parcels, at such time and place, upon such terms and
after such notice thereof as may be required or permitted by law;
(e) institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein, in the
Note, the Loan Agreement or in the other Loan Documents;
(f) recover judgment on the Note either before, during or after any
proceedings for the enforcement of this Security Instrument or the other Loan
Documents;
(g) apply for the appointment of a receiver, trustee, liquidator or
conservator of the Property, without notice and without regard for the adequacy
of the security for the Debt and without regard for the solvency of Borrower,
any guarantor, indemnitor with respect to the Loan or of any Person liable for
the payment of the Debt;
(h) the license granted to Borrower under Section 1.2 hereof shall
automatically be revoked and Lender may enter into or upon the Property, either
personally or by its agents, nominees or attorneys and dispossess Borrower and
its agents and servants therefrom, without liability for trespass, damages or
otherwise and exclude Borrower and its agents or servants wholly therefrom, and
take possession of all books, records and accounts relating thereto and Borrower
agrees to surrender possession of the Property and of such books, records and
accounts to Lender upon demand, and thereupon Lender may (i) use, operate,
manage, control, insure, maintain, repair, restore and otherwise deal with all
and every part of the Property and conduct the business thereat; (ii) complete
any construction on the Property in such manner and form as Lender deems
advisable; (iii) make alterations, additions, renewals, replacements and
improvements to or on the Property; (iv) exercise all rights and powers of
Borrower with respect to the Property, whether in the name of Borrower or
otherwise, including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, xxx for, collect and
receive all Rents of the Property and every part thereof; (v) require Borrower
to pay monthly in advance to Lender, or any receiver appointed to collect the
Rents, the fair and reasonable rental value for the use and occupation of such
part of the Property as may be occupied by Borrower; (vi) require Borrower to
vacate and surrender possession of the Property
to Lender or to such receiver and, in default thereof, Borrower may be evicted
by summary proceedings or otherwise; and (vii) apply the receipts from the
Property to the payment of the Debt, in such order, priority and proportions as
Lender shall deem appropriate in its sole discretion after deducting therefrom
all expenses (including reasonable attorneys' fees) incurred in connection with
the aforesaid operations and all amounts necessary to pay the Taxes, Other
Charges, insurance and other expenses in connection with the Property, as well
as just and reasonable compensation for the services of Lender, its counsel,
agents and employees;
(i) exercise any and all rights and remedies granted to a secured party
upon default under the Uniform Commercial Code, including, without limiting the
generality of the foregoing: (i) the right to take possession of the Fixtures,
the Equipment and the Personal Property, or any part thereof, and to take such
other measures as Lender may deem necessary for the care, protection and
preservation of the Fixtures, the Equipment and the Personal Property, and (ii)
request Borrower at its expense to assemble the Fixtures, the Equipment and the
Personal Property and make it available to Lender at a convenient place
acceptable to Lender. Any notice of sale, disposition or other intended action
by Lender with respect to the Fixtures, the Equipment and/or the Personal
Property sent to Borrower in accordance with the provisions hereof at least five
(5) days prior to such action, shall constitute commercially reasonable notice
to Borrower;
(j) apply any sums then deposited or held in escrow or otherwise by or on
behalf of Lender in accordance with the terms of the Loan Agreement, this
Security Instrument or any other Loan Document to the payment of the following
items in any order in its uncontrolled discretion:
(i) Taxes and Other Charges;
(ii) Insurance Premiums;
(iii) Interest on the unpaid principal balance of the Note;
(iv) Amortization of the unpaid principal balance of the Note;
(v) All other sums payable pursuant to the Note, the Loan Agreement,
this Security Instrument and the other Loan Documents, including without
limitation advances made by Lender pursuant to the terms of this Security
Instrument;
(k) pursue such other remedies as Lender may have under applicable law; or
(l) apply the undisbursed balance of any Net Proceeds Deficiency deposit,
together with interest thereon, to the payment of the Debt in such order,
priority and proportions as Lender shall deem to be appropriate in its
discretion.
In the event of a sale, by foreclosure, power of sale or otherwise, of less than
all of Property, this Security Instrument shall continue as a lien and security
interest on the remaining portion of the Property unimpaired and without loss of
priority.
Section 7.2 APPLICATION OF PROCEEDS. The purchase money, proceeds and
avails of any disposition of the Property, and or any part thereof, or any other
sums collected by Lender pursuant to the Note, this Security Instrument or the
other Loan Documents, may be applied by Lender to the payment of the Debt in
such priority and proportions as Lender in its discretion shall deem proper, to
the extent consistent with law.
Section 7.3 RIGHT TO CURE DEFAULTS. Upon the occurrence and during the
continuance of any Event of Default, Lender may, but without any obligation to
do so and without notice to or demand on Borrower and without releasing Borrower
from any obligation hereunder, make or do the same in such manner and to such
extent as Lender may deem necessary to protect the security hereof. Lender is
authorized to enter upon the Property for such purposes, or appear in, defend,
or bring any action or proceeding to protect its interest in the Property or to
foreclose this Security Instrument or collect the Debt, and the cost and expense
thereof (including reasonable attorneys' fees to the extent permitted by law),
with interest as provided in this Section 7.3, shall constitute a portion of the
Debt and shall be due and payable to Lender upon demand. All such costs and
expenses incurred by Lender in remedying such Event of Default or such failed
payment or act or in appearing in, defending, or bringing any such action or
proceeding shall bear interest at the Default Rate, for the period after notice
from Lender that such cost or expense was incurred to the date of payment to
Lender. All such costs and expenses incurred by Lender together with interest
thereon calculated at the Default Rate shall be deemed to constitute a portion
of the Debt and be secured by this Security Instrument and the other Loan
Documents and shall be immediately due and payable upon demand by Lender
therefor.
Section 7.4 ACTIONS AND PROCEEDINGS. Lender has the right to appear in and
defend any action or proceeding brought with respect to the Property and to
bring any action or proceeding, in the name and on behalf of Borrower, which
Lender, in its discretion, decides should be brought to protect its interest in
the Property.
Section 7.5 RECOVERY OF SUMS REQUIRED TO BE PAID. Lender shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Lender thereafter to bring an action of foreclosure, or any other action, for
a default or defaults by Borrower existing at the time such earlier action was
commenced.
Section 7.6 EXAMINATION OF BOOKS AND RECORDS. At reasonable times and upon
reasonable notice, Lender, its agents, accountants and attorneys shall have the
right to examine the records, books, management and other papers of Borrower
which reflect upon its financial condition, at the Property or at any office
regularly maintained by Borrower where the books and records are located. Lender
and its agents shall have the right to make copies and extracts from the
foregoing records and other papers. In addition, at reasonable times and upon
reasonable notice, Lender, its agents, accountants and attorneys shall have the
right to examine and audit the books and records of Borrower pertaining to the
income, expenses and operation of the Property during reasonable business hours
at any office of Borrower where the books and records are located. This Section
7.6 shall apply throughout the term of the Note and without regard to whether an
Event of Default has occurred or is continuing.
Section 7.7 OTHER RIGHTS, ETC. (a) The failure of Lender to insist upon
strict performance of any term hereof shall not be deemed to be a waiver of any
term of this Security Instrument. Borrower shall not be relieved of Borrower's
obligations hereunder by reason of (i) the failure of Lender to comply with any
request of Borrower or any guarantor or indemnitor with respect to the Loan to
take any action to foreclose this Security Instrument or otherwise enforce any
of the provisions hereof or of the Note or the other Loan Documents, (ii) the
release, regardless of consideration, of the whole or any part of the Property,
or of any person liable for the Debt or any portion thereof, or (iii) any
agreement or stipulation by Lender extending the time of payment or otherwise
modifying or supplementing the terms of the Note, this Security Instrument or
the other Loan Documents.
(b) It is agreed that the risk of loss or damage to the Property is on
Borrower, and Lender shall have no liability whatsoever for decline in value of
the Property, for failure to maintain the Policies, or for failure to determine
whether insurance in force is adequate as to the amount of risks insured.
Possession by Lender shall not be deemed an election of judicial relief, if any
such possession is requested or obtained, with respect to any Property or
collateral not in Lender's possession.
(c) Lender may resort for the payment of the Debt to any other security
held by Lender in such order and manner as Lender, in its discretion, may elect.
Lender may take action to recover the Debt, or any portion thereof, or to
enforce any covenant hereof without prejudice to the right of Lender thereafter
to foreclose this Security Instrument. The rights of Lender under this Security
Instrument shall be separate, distinct and cumulative and none shall be given
effect to the exclusion of the others. No act of Lender shall be construed as an
election to proceed under any one provision herein to the exclusion of any other
provision. Lender shall not be limited exclusively to the rights and remedies
herein stated but shall be entitled to every right and remedy now or hereafter
afforded at law or in equity.
Section 7.8 RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may
release any portion of the Property for such consideration as Lender may require
without, as to the remainder of the Property, in any way impairing or affecting
the lien or priority of this Security Instrument, or improving the position of
any subordinate lienholder with respect thereto, except to the extent that the
obligations hereunder shall have been reduced by the actual monetary
consideration, if any, received by Lender for such release, and may accept by
assignment, pledge or otherwise any other property in place thereof as Lender
may require without being accountable for so doing to any other lienholder. This
Security Instrument shall continue as a lien and security interest in the
remaining portion of the Property.
Section 7.9 VIOLATION OF LAWS. If the Property is not in material
compliance with Legal Requirements, Lender may impose additional requirements
upon Borrower in connection herewith including, without limitation, monetary
reserves or financial equivalents.
Section 7.10 RECOURSE AND CHOICE OF REMEDIES. Notwithstanding any other
provision of this Security Instrument or the Loan Agreement, including, without
limitation, Section 11.22 of the Loan Agreement, Lender and other Indemnified
Parties (as hereinafter defined) are entitled to enforce the obligations of
Borrower, any guarantor and indemnitor contained in Sections 9.2 and 9.3 herein
and Section 9.2 of the Loan Agreement without first
resorting to or exhausting any security or collateral and without first having
recourse to the Note or any of the Property, through foreclosure or acceptance
of a deed in lieu of foreclosure or otherwise, and in the event Lender commences
a foreclosure action against the Property, Lender is entitled to pursue a
deficiency judgment with respect to such obligations against Borrower and any
guarantor or indemnitor with respect to the Loan. The provisions of Sections 9.2
and 9.3 herein and Section 9.2 of the Loan Agreement are exceptions to any
non-recourse or exculpation provisions in the Loan Agreement, the Note, this
Security Instrument or the other Loan Documents, and Borrower and any guarantor
or indemnitor with respect to the Loan are fully and personally liable for the
obligations pursuant to Sections 9.2 and 9.3 herein and Section 9.2 of the Loan
Agreement. The liability of Borrower and any guarantor or indemnitor with
respect to the Loan pursuant to Sections 9.2 and 9.3 herein and Section 9.2 of
the Loan Agreement is not limited to the original principal amount of the Note.
Notwithstanding the foregoing, nothing herein shall inhibit or prevent Lender
from foreclosing or exercising any other rights and remedies pursuant to the
Loan Agreement, the Note, this Security Instrument and the other Loan Documents,
whether simultaneously with foreclosure proceedings or in any other sequence. A
separate action or actions may be brought and prosecuted against Borrower
pursuant to Sections 9.2 and 9.3 herein and Section 9.2 of the Loan Agreement,
whether or not action is brought against any other Person or whether or not any
other Person is joined in the action or actions. In addition, Lender shall have
the right but not the obligation to join and participate in, as a party if it so
elects, any administrative or judicial proceedings or actions initiated in
connection with any matter addressed in the Environmental Indemnity.
Section 7.11 RIGHT OF ENTRY. Upon reasonable notice to Borrower, Lender
and its agents shall have the right to enter and inspect the Property at all
reasonable times.
Article 8 - INTENTIONALLY OMITTED
Article 9 - INDEMNIFICATION
Section 9.1 GENERAL INDEMNIFICATION. Borrower shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless the Indemnified
Parties from and against any and all claims, suits, liabilities (including,
without limitation, strict liabilities), actions, proceedings, obligations,
debts, damages, losses, costs, expenses, diminutions in value, fines, penalties,
charges, fees, expenses, judgments, awards, amounts paid in settlement, punitive
damages, foreseeable and unforeseeable consequential damages, of whatever kind
or nature (including but not limited to reasonable attorneys' fees and other
costs of defense) (collectively, the "Losses") imposed upon or incurred by or
asserted against any Indemnified Parties and directly or indirectly arising out
of or in any way relating to any one or more of the following: (a) ownership of
this Security Instrument, the Property or any interest therein or receipt of any
Rents; (b) any amendment to, or restructuring of, the Debt, and the Note, the
Loan Agreement, this Security Instrument, or any other Loan Documents; (c) any
and all lawful action that may be taken by Lender in connection with the
enforcement of the provisions of this Security Instrument or the Loan Agreement
or the Note or any of the other Loan Documents, whether or not suit is filed in
connection with same, or in connection with Borrower, any guarantor or
indemnitor and/or any partner, joint venturer or shareholder thereof becoming a
party to a voluntary or involuntary federal or state bankruptcy, insolvency or
similar proceeding; (d) any accident,
injury to or death of persons or loss of or damage to property occurring in, on
or about the Property or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (e) any use,
nonuse or condition in, on or about the Property or any part thereof or on the
adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets
or ways; (f) any failure on the part of Borrower to perform or be in compliance
with any of the terms of this Security Instrument; (g) performance of any labor
or services or the furnishing of any materials or other property in respect of
the Property or any part thereof; (h) the failure of any person to file timely
with the Internal Revenue Service an accurate Form 0000-X, Xxxxxxxxx for
Recipients of Proceeds from Real Estate, Broker and Barter Exchange
Transactions, which may be required in connection with this Security Instrument,
or to supply a copy thereof in a timely fashion to the recipient of the proceeds
of the transaction in connection with which this Security Instrument is made;
(i) any failure of the Property to be in compliance with any Legal Requirements;
(j) the enforcement by any Indemnified Party of the provisions of this Article
9; (k) any and all claims and demands whatsoever which may be asserted against
Lender by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants, or agreements contained in any
Lease; (1) the payment of any commission, charge or brokerage fee to anyone
claiming through Borrower which may be payable in connection with the funding of
the Loan; or (m) any misrepresentation made by Borrower in this Security
Instrument or any other Loan Document. Notwithstanding the foregoing, Borrower
shall not be liable to the Indemnified Parties under this Section 9.1 for any
Losses to which the Indemnified Parties may become subject to the extent such
Losses arise by reason of the gross negligence, illegal acts, fraud or willful
misconduct of the Indemnified Parties. Any amounts payable to Lender by reason
of the application of this Section 9.1 shall become immediately due and payable
and shall bear interest at the Default Rate from the date loss or damage is
sustained by Lender until paid. For purposes of this Article 9, the term
"Indemnified Parties" means Lender and any Person who is or will have been
involved in the origination of the Loan, any Person who is or will have been
involved in the servicing of the Loan secured hereby, any Person in whose name
the encumbrance created by this Security Instrument is or will have been
recorded, persons and entities who may hold or acquire or will have held a full
or partial interest in the Loan secured hereby (including, but not limited to,
investors or prospective investors in the Securities, as well as custodians,
trustees and other fiduciaries who hold or have held a full or partial interest
in the Loan secured hereby for the benefit of third parties) as well as the
respective directors, officers, shareholders, partners, employees, agents,
servants, representatives, contractors, subcontractors, affiliates,
subsidiaries, participants, successors and assigns of any and all of the
foregoing (including but not limited to any other Person who holds or acquires
or will have held a participation or other full or partial interest in the Loan,
whether during the term of the Loan or as a part of or following a foreclosure
of the Loan and including, but not limited to, any successors by merger,
consolidation or acquisition of all or a substantial portion of Lender's assets
and business).
Section 9.2 MORTGAGE AND/OR INTANGIBLE TAX. Borrower shall, at its sole
cost and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all Losses imposed upon or incurred
by or asserted against any Indemnified Parties and directly or indirectly
arising out of or in any way relating to any tax on the making and/or recording
of this Security Instrument, the Note or any of the other Loan Documents, but
excluding any income, franchise or other similar taxes.
Section 9.3 ERISA INDEMNIFICATION. Borrower shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless the Indemnified
Parties from and against any and all Losses (including, without limitation,
reasonable attorneys' fees and costs incurred in the investigation, defense, and
settlement of Losses incurred in correcting any prohibited transaction or in the
sale of a prohibited loan, and in obtaining any individual prohibited
transaction exemption under ERISA that may be required, in Lender's sole
discretion) that Lender may incur, directly or indirectly, as a result of a
default under Sections 3.1.8 or 4.2.11 of the Loan Agreement.
Section 9.4 INTENTIONALLY OMITTED.
Section 9.5 DUTY TO DEFEND; ATTORNEYS' FEES AND OTHER FEES AND EXPENSES.
Upon written request by any Indemnified Party, Borrower shall defend such
Indemnified Party (if requested by any Indemnified Party, in the name of the
Indemnified Party) by attorneys and other professionals approved by the
Indemnified Parties. Notwithstanding the foregoing, if the defendants in any
such claim or proceeding include both Borrower and any Indemnified Party and
Borrower and such Indemnified Party shall have reasonably concluded that there
are any legal defenses available to it and/or other Indemnified Parties that are
different from or additional to those available to Borrower, such Indemnified
Party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such Indemnified Party, provided that no compromise or settlement shall be
entered without Borrower's consent, which consent shall not be unreasonably
withheld. Upon demand, Borrower shall pay or, in the sole and absolute
discretion of the Indemnified Parties, reimburse, the Indemnified Parties for
the payment of reasonable fees and disbursements of attorneys, engineers,
environmental consultants, laboratories and other professionals in connection
therewith.
Article 10 - WAIVERS
Section 10.1 WAIVER OF COUNTERCLAIM. To the extent permitted by applicable
law, Borrower hereby waives the right to assert a counterclaim, other than a
mandatory or compulsory counterclaim, in any action or proceeding brought
against it by Lender arising out of or in any way connected with this Security
Instrument, the Loan Agreement, the Note, any of the other Loan Documents, or
the Obligations.
Section 10.2 MARSHALLING AND OTHER MATTERS. To the extent permitted by
applicable law, Borrower hereby waives the benefit of all appraisement,
valuation, stay, extension, reinstatement and redemption laws now or hereafter
in force and all rights of marshalling in the event of any sale hereunder of the
Property or any part thereof or any interest therein. Further, Borrower hereby
expressly waives any and all rights of redemption from sale under any order or
decree of foreclosure of this Security Instrument on behalf of Borrower, and on
behalf of each and every person acquiring any interest in or title to the
Property subsequent to the date of this Security Instrument and on behalf of all
persons to the extent permitted by applicable law.
Section 10.3 WAIVER OF NOTICE. To the extent permitted by applicable law,
Borrower shall not be entitled to any notices of any nature whatsoever from
Lender except with respect to
matters for which this Security Instrument specifically and expressly provides
for the giving of notice by Lender to Borrower and except with respect to
matters for which Lender is required by applicable law to give notice, and
Borrower hereby expressly waives the right to receive any notice from Lender
with respect to any matter for which this Security Instrument does not
specifically and expressly provide for the giving of notice by Lender to
Borrower.
Section 10.4 WAIVER OF STATUTE OF LIMITATIONS. To the extent permitted by
applicable law, Borrower hereby expressly waives and releases to the fullest
extent permitted by law, the pleading of any statute of limitations as a defense
to payment of the Debt or performance of its Other Obligations.
Section 10.5 SURVIVAL. The indemnifications made pursuant to Section 9.3
herein and the representations and warranties, covenants, and other obligations
arising under the Environmental Indemnity, shall continue indefinitely in full
force and effect and shall survive and shall in no way be impaired by: any
satisfaction or other termination of this Security Instrument, any assignment or
other transfer of all or any portion of this Security Instrument or Lender's
interest in the Property (but, in such case, shall benefit both Indemnified
Parties and any assignee or transferee), any exercise of Lender's rights and
remedies pursuant hereto including but not limited to foreclosure or acceptance
of a deed in lieu of foreclosure, any exercise of any rights and remedies
pursuant to the Loan Agreement, the Note or any of the other Loan Documents, any
transfer of all or any portion of the Property (whether by Borrower or by Lender
following foreclosure or acceptance of a deed in lieu of foreclosure or at any
other time), any amendment to this Security Instrument, the Loan Agreement, the
Note or the other Loan Documents, and any act or omission that might otherwise
be construed as a release or discharge of Borrower from the obligations pursuant
hereto.
Article 11 - EXCULPATION
The provisions of Section 11.22 of the Loan Agreement are hereby
incorporated by reference into this Security Instrument to the same extent and
with the same force as if fully set forth herein.
Article 12 - NOTICES
All notices or other written communications hereunder shall be delivered
in accordance with Section 11.6 of the Loan Agreement.
Article 13 - APPLICABLE LAW
Section 13.1 GOVERNING LAW. (A) THIS SECURITY INSTRUMENT WAS NEGOTIATED IN
THE STATE OF NEW YORK, AND MADE BY BORROWER AND ACCEPTED BY LENDER IN THE STATE
OF NEW YORK, AND THE PROCEEDS OF THE NOTE SECURED HEREBY WERE DISBURSED FROM THE
STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP
TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL
RESPECTS, INCLUDING, WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS SECURITY INSTRUMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED
STATES OF AMERICA, EXCEPT THAT AT ALL TIMES (I) THE PROVISIONS FOR THE CREATION,
PERFECTION, PRIORITY AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED
PURSUANT HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS WITH RESPECT TO THE
PROPERTY (OTHER THAN THAT DESCRIBED IN SUBPARAGRAPH II BELOW) SHALL BE GOVERNED
BY AND CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE PROPERTY AND
FIXTURES ARE LOCATED AND (II) WITH RESPECT TO THE PERFECTION, PRIORITY AND
ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS CREATED BY THIS SECURITY
INSTRUMENT AND THE OTHER LOAN DOCUMENTS IN PROPERTY WHOSE PERFECTION AND
PRIORITY IS COVERED BY ARTICLE 9 OF THE UCC (INCLUDING, WITHOUT LIMITATION, THE
ACCOUNTS), THE LAW OF THE JURISDICTION APPLICABLE IN ACCORDANCE WITH SECTIONS
9-301 THROUGH 9-307 OF THE UCC AS IN EFFECT IN THE STATE OF NEW YORK SHALL
GOVERN. TO THE FULLEST EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY
AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER
JURISDICTION GOVERNS THIS SECURITY INSTRUMENT AND THE NOTE, AND THIS SECURITY
INSTRUMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW EXCEPT AS SPECIFICALLY SET FORTH ABOVE.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS SECURITY INSTRUMENT MAY AT LENDER'S OPTION BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXXX XX XXX
XXXX, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND
BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE
AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT,
ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT
CORPORATION SERVICE COMPANY
0000 XXXXXX XX XXX XXXXXXXX
00XX XXXXX
XXX XXXX, XXX XXXX 00000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT
WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE
DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
Section 13.2 USURY LAWS. Notwithstanding anything to the contrary, (a) all
agreements and communications between Borrower and Lender are hereby and shall
automatically be limited so that, after taking into account all amounts deemed
interest, the interest contracted for, charged or received by Lender shall never
exceed the maximum lawful rate or amount, (b) in calculating whether any
interest exceeds the lawful maximum, all such interest shall be amortized,
prorated, allocated and spread over the full amount and term of all principal
indebtedness of Borrower to Lender, and (c) if through any contingency or event,
Lender receives or is deemed to receive interest in excess of the lawful
maximum, any such excess shall be deemed to have been applied toward payment of
the principal of any and all then outstanding indebtedness of Borrower to
Lender, or if there is no such indebtedness, shall immediately be returned to
Borrower.
Section 13.3 PROVISIONS SUBJECT TO APPLICABLE LAW. All rights, powers and
remedies provided in this Security Instrument may be exercised only to the
extent that the exercise thereof does not violate any applicable provisions of
law and are intended to be limited to the extent necessary so that they will not
render this Security Instrument invalid, unenforceable or not entitled to be
recorded, registered or filed under the provisions of any applicable law. If any
term of this Security Instrument or any application thereof shall be invalid or
unenforceable, the remainder of this Security Instrument and any other
application of the term shall not be affected thereby.
Article 14 - DEFINITIONS
All capitalized terms not defined herein shall have the respective
meanings set forth in the Loan Agreement. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Security Instrument may be used interchangeably in singular or plural form
and the word "Borrower" shall mean "each Borrower and any subsequent owner or
owners of the Property or any part thereof or any interest therein," the word
"Lender" shall mean "Lender and any subsequent holder of the Note," the word
"Note" shall
mean "the Note and any other evidence of indebtedness secured by this Security
Instrument," the word "Property" shall include any portion of the Property and
any interest therein, and the phrases "attorneys' fees", "legal fees" and
"counsel fees" shall include any and all attorneys', paralegal and law clerk
fees and disbursements, including, but not limited to, fees and disbursements at
the pre-trial, trial and appellate levels incurred or paid by Lender in
protecting its interest in the Property, the Leases and the Rents and enforcing
its rights hereunder.
Article 15 - MISCELLANEOUS PROVISIONS
Section 15.1 NO ORAL CHANGE. This Security Instrument, and any provisions
hereof, may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of Borrower or
Lender, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
Section 15.2 SUCCESSORS AND ASSIGNS. This Security Instrument shall be
binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns forever.
Section 15.3 INAPPLICABLE PROVISIONS. If any term, covenant or condition
of the Loan Agreement, the Note or this Security Instrument is held to be
invalid, illegal or unenforceable in any respect, the Loan Agreement, the Note
and this Security Instrument shall be construed without such provision.
Section 15.4 HEADINGS, ETC. The headings and captions of various Sections
of this Security Instrument are for convenience of reference only and are not to
be construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
Section 15.5 NUMBER AND GENDER. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
Section 15.6 SUBROGATION. If any or all of the proceeds of the Note have
been used to extinguish, extend or renew any indebtedness heretofore existing
against the Property, then, to the extent of the funds so used, Lender shall be
subrogated to all of the rights, claims, liens, titles, and interests existing
against the Property heretofore held by, or in favor of, the holder of such
indebtedness and such former rights, claims, liens, titles, and interests, if
any, are not waived but rather are continued in full force and effect in favor
of Lender and are merged with the lien and security interest created herein as
cumulative security for the repayment of the Debt, the performance and discharge
of Borrower's obligations hereunder, under the Loan Agreement, the Note and the
other Loan Documents and the performance and discharge of the Other Obligations.
Section 15.7 ENTIRE AGREEMENT. The Note, the Loan Agreement, this Security
Instrument and the other Loan Documents constitute the entire understanding and
agreement between Borrower and Lender with respect to the transactions arising
in connection with the Debt and supersede all prior written or oral
understandings and agreements between Borrower
and Lender with respect thereto. Borrower hereby acknowledges that, except as
incorporated in writing in the Note, the Loan Agreement, this Security
Instrument and the other Loan Documents, there are not, and were not, and no
persons are or were authorized by Lender to make, any representations,
understandings, stipulations, agreements or promises, oral or written, with
respect to the transaction which is the subject of the Note, the Loan Agreement,
this Security Instrument and the other Loan Documents.
Section 15.8 LIMITATION ON LENDER'S RESPONSIBILITY. No provision of this
Security Instrument shall operate to place any obligation or liability for the
control, care, management or repair of the Property upon Lender, nor shall it
operate to make Lender responsible or liable for any waste committed on the
Property by the tenants or any other Person, or for any dangerous or defective
condition of the Property, or for any negligence in the management, upkeep,
repair or control of the Property resulting in loss or injury or death to any
tenant, licensee, employee or stranger. Nothing herein contained shall be
construed as constituting Lender a "mortgagee in possession."
Section 15.9 WAIVER OF TRIAL BY JURY. BORROWER HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THE NOTE, THE APPLICATION FOR
THE LOAN EVIDENCED BY THE NOTE, THIS SECURITY INSTRUMENT OR THE OTHER LOAN
DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER, ITS OFFICERS, EMPLOYEES, DIRECTORS
OR AGENTS IN CONNECTION THEREWITH.
Article 16 - STATE-SPECIFIC PROVISIONS
Section 16.1 PRINCIPLES OF CONSTRUCTION. In the event of any
inconsistencies between the terms and conditions of this Article 16 and the
other terms and conditions of this Security Instrument, the terms and conditions
of this Article 16 shall control and be binding.
Section 16.2 FUTURE ADVANCES AND MAXIMUM AMOUNT SECURED. This Security
Agreement secures all future advances and obligations under the Obligations up
to the maximum principal sum of $30,000,000 for the Property located in the
county in which this Security Instrument was filed. The total amount of
obligations and advances secured hereby may decrease or increase from time to
time, provided that the amount of the lien shall not exceed, at any one time,
the maximum principal sum of $30,000,000, all accrued interest thereon, and all
amounts (other than principal) payable by Borrower under the Loan and the Loan
Agreement and the other Loan Documents, including, without limitation, all taxes
and insurance premiums paid or advanced by Lender with respect to the Property,
all costs of enforcing and foreclosing on the lien of this Security Instrument,
and all sums expended or incurred for the protection of the security interest
hereby created in the Property, regardless of whether the foregoing was
advanced, paid, incurred or expended now or at any future time or times.
Section 16.3 The following revisions are hereby incorporated in the body
of this Security Instrument:
(a) The following sentences are hereby added to the end of Section 1.4 of
this Security Instrument: "The addresses of Borrower (Debtor) and Lender
(Secured Party) are as set forth in page one of this Security Instrument.
Borrower's (Debtor's) Organizational Identification Number is 3795012. A
description of the Property is attached hereto as Exhibit A. Borrower (Debtor)
is the record owner of a leasehold interest in the Property.
(b) The following language is hereby added to the last sentence of Section
5.4 of this Security Instrument: "provided, however, Borrower shall not be
required to modify or amend any Loan Document if such modification or amendment
would cause Borrower to incur additional Kansas mortgage registration fees."
(c) Subsection (d) of Section 7.1 of this Security Instrument is deleted
and replaced with the phrase "Intentionally Omitted".
Section 16.4 Borrower agrees that it will use the proceeds of the Note for
business purposes (other than agricultural purposes) only, and not for personal,
family or household purposes. The Loan is for "business purposes" within the
meaning of Section 16-207 of the Kansas Revised Statutes.
[NO FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, THIS SECURITY INSTRUMENT has been executed by Borrower
as of the day and year first above written.
WITNESS: GM OLATHE, LLC, a Delaware limited liability
company
------------------------ By: GM MEZZ, LLC, a Delaware limited liability
Name: company, its sole member
By: GREAT PLAINS METROMALL, LLC, a Delaware
limited liability company, its sole
member
By: GLIMCHER PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited
partnership, its sole member
By: GLIMCHER PROPERTIES
CORPORATION, a Delaware
corporation, its sole general
partner
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
WITNESS: XXXXXX XXXXXXX MORTGAGE CAPITAL INC., a New
York corporation
------------------------- By: /s/ Xxxxx X. Xxxxxx
Name: -------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
STATE OF )
) ss:
COUNTY OF )
On the 7th day of June, 2004, before me, the undersigned, personally
appeared Xxxxxx X. Xxxxxxx, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person on behalf of which the individual acted, executed the instrument.
/s/ Xxxxxx X. Xxxx
-------------------------------------
Signature & office of individual
taking the acknowledgement
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ___ day of June, 2004, before me, the undersigned, personally
appeared Xxxxx X. Xxxxxx, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person on behalf of which the individual acted, executed the instrument.
-------------------------------------
Signature & office of individual
taking the acknowledgement
EXHIBIT A
LEGAL DESCRIPTION
Lots 1 thru 6, and Tract A, The Great Mall, a subdivision in the City of Olathe,
recorded October 31, 1996 in Plat Book 97, Page 31, in Xxxxxxx County, Kansas.
and
All of Xxx 00, Xxx Xxxxx Xxxx, a subdivision in the City of Olathe, Xxxxxxx
County, Kansas, less and except that Part of Xxx 00, Xxx Xxxxx Xxxx, a
subdivision in the City of Olathe, Xxxxxxx County, Kansas being more
particularly described as follows:
Beginning at the Southeast corner of Xxx 00, xx xxxx Xxx Xxxxx Xxxx; thence S
44(0) 40' 49" W, along the South line of said Lot 15, 20.00 feet; thence S 60(0)
09' 06" W, along said South line, 779.98 feet; thence N 00(0) 07' 40" E, 137.59
feet to a point on the North line of said Lot 15; thence along said North line
on a curve to the left, having an initial tangent bearing of N 85(0) 19' 31" E,
a radius of 202.00 feet, an arc distance of 88.75 feet; thence N 60(0) 09' 06"
E, along said North line 644.59 feet to the Northeast corner of said Lot 15;
thence S 29(0) 50' 54" E, along the East line of said Lot 15, 94.66 feet to the
point of beginning.
SCHEDULE OF MORTGAGES
Leasehold Mortgage And Security Agreement ("Mortgage") from Olathe Mall, LLC,
a Colorado limited liability company, Borrower, in favor of The Huntington
National Bank, a national banking association, Key Bank National
Association, a national banking association, and Bank One, Arizona, NA, a
national banking association, Co-Agents, dated March 1, 1996, and recorded
July 2, 1996, as Document No. 2612458 in Book 4924, page 385, of the
records of the Register of Deeds for Xxxxxxx County, Kansas.
Said Mortgage was modified by virtue of Assumption Agreement and Modification
of Mortgage and Construction Loan Agreement by and between The Huntington
National Bank, Key Bank National Association, and Bank One, Arizona, NA,
Co-Agents, and Great Plains Metromall, LLC, a Delaware limited liability
company, New Borrower and Olathe Mall, LLC, Original Borrower, dated
November 27, 1996, and recorded December 18, 1996, as Document No. 2662033
in Book 5063, page 664, of the records of the Register of Deeds for
Xxxxxxx County, Kansas.
Said Mortgage was modified by virtue of Second Modification of Mortgage and
Construction Loan Agreement and Modification of Note dated November 3,
1997, and recorded on November 17, 1997, as Document No. 276317 in Book
5374, page 531, of the records of the Register of Deeds for Xxxxxxx
County, Kansas.
Said Mortgage was assigned by virtue of Assignment of Mortgage from The
Huntington National Bank, Key Bank National Association and Bank One
Arizona, NA, to German American Capital Corporation, a Maryland
corporation, dated as of June 30, 2000, and recorded on July 13, 2000, as
Document No. 3138530 in Book 6630, page 544, of the records of the
Register of Deeds for Xxxxxxx County, Kansas.
Said Mortgage was modified by virtue of Amended and Restated Leasehold
Mortgage, Security Agreement Financial Statement, Filing Fixture and
Assignment of Leases, Rents and Security Deposits by and between Great
Plains Metromall, LLC, and German American Capital Corporation, dated as
of June 30, 2000, and recorded July 13, 2000, as Document No. 3138531 in
Book 6630, page 552, of the records of the Register of Deeds for Xxxxxxx
County, Kansas.
Said Mortgage was assigned to LaSalle Bank National Association, as trustee
for the registered holders of COMM 2001-FL4 Commercial Mortgage
Pass-Through Certificates, Series COMM 2001-FL4, by Assignment of Recorded
Mortgage Collateral Security Documents dated June 28, 2001, by German
American Capital Corporation, and recorded on July 9, 2001, as Document
No. 3268076, in Book 7147, Page 562, in the records of the Register of
Deeds of Xxxxxxx County, Kansas.
Said Mortgage was assigned to Lender by Assignment of Mortgage dated June 9,
2004, by LaSalle Bank National Association, as trustee for the registered
holders of COMM 2001-FL4 Commercial Mortgage Pass-Through Certificates,
Series COMM 2001-FL4,, and submitted for recording in the records of the
Register of Deeds of Xxxxxxx County, Kansas immediately prior hereto.
Exhibit B
