EXHIBIT 10(aaaa)
Loan No. 5922696-001
PROMISSORY NOTE
(000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx)
$2,025,000 January 29, 1997
FOR VALUE RECEIVED, W.E. XXXXXXX CO., INC., a Georgia corporation
("BORROWER"), promises to pay to the order of MetLife Capital Financial
Corporation ("METLIFE") at METLIFE's office at 00000 X.X. 4th St., Suite 500,
Bellevue, Washington 98004, attention: Real Estate Department, or at such other
address as the holder hereof may from time to time designate in writing, the
principal sum of TWO MILLION TWENTY-FIVE THOUSAND DOLLARS ($2,025,000) together
with interest from the date the proceeds of the loan (the "Loan") evidenced by
this Promissory Note (this "Note") are initially disbursed until maturity on the
principal balance from time to time remaining unpaid hereon at the rate of eight
and seventy-five hundredths percent (8.75%) per annum (computed on the basis of
a 360-day year of twelve (12) consecutive thirty (30)-day months) in
installments as follows: (i) interest only in advance at the rate of $492.19
per day shall be due and payable on the date the proceeds of the Loan are
initially disbursed to or for the benefit of BORROWER (including, without
limitation, disbursement into an escrow for the benefit of BORROWER) for the
period beginning on the date of such disbursement and ending on the last day of
the month during which such disbursement occurs; and (ii) one hundred seventy-
nine (179) installments of principal and interest in the amount of Twenty
Thousand Two Hundred Thirty-Eight and eighty-four hundredths Dollars
($20,238.84) each shall be payable commencing on the first day of the second
month following the month in which the proceeds of the loan evidenced by this
Note are initially disbursed and continuing on the first day of each and every
succeeding month until the first day of the one hundred eightieth (180th) month
following the date the proceeds of the Loan are initially disbursed at which
time all then unpaid principal and interest hereon shall be due and payable.
If any payment shall not be paid when due and shall remain unpaid for
ten (10) days, BORROWER shall pay an additional charge equal to five percent
(5.00%) of the delinquent payment or the highest additional charge permitted by
law, whichever is less.
Upon not less than thirty (30) days' advance written notice to METLIFE
at any time after the fifth (5th) anniversary of the due date of the first
monthly principal and interest payment due under this Note, and upon payment of
the Prepayment Premium, BORROWER shall have the right to prepay all, but not
less than all, of the outstanding balance of this Note on any regularly
scheduled principal and interest payment date. The Prepayment Premium shall be
determined by (i) calculating the decrease (expressed in basis points) in the
current weekly average yield of ten (10)-year U.S. Treasury Constant Maturities
(as published in Federal Reserve Statistical Release H.15 [519]) (the "Index")
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from November 8, 1996, to the Friday immediately preceding the week in which the
prepayment is made, (ii) dividing the decrease by 100, (iii) multiplying the
result by the following described applicable premium factor (the "Premium
Factor"), and (iv) multiplying the product by the principal balance to be
prepaid. If the Index is unchanged or has increased from November 8, 1996, to
the Friday immediately preceding the prepayment date, no Prepayment Premium
shall be due. The Premium Factor shall be the amount shown on the following
chart for the month in which prepayment occurs:
No. Mos. Premium
Remaining (Years) Factor
--------- ------- -------
180 - 169 (15) .073
168 - 157 (14) .069
156 - 145 (13) .064
144 - 133 (12) .059
132 - 121 (11) .054
120 - 109 (10) .049
108 - 97 ( 9) .044
96 - 85 ( 8) .039
84 - 73 ( 7) .035
72 - 61 ( 6) .030
60 - 49 ( 5) .025
48 - 37 ( 4) .020
36 - 25 ( 3) .015
24 - 13 ( 2) .010
12 - 1 ( 1) .005
If the Federal Reserve Board ceases to publish Statistical Release H.15 [519],
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then the decrease in the weekly average yield of ten (10)-year U.S. Treasury
Notes will be determined from another source designated by METLIFE. Voluntary
prepayment prior to the fifth (5th) anniversary of the due date of the first
monthly principal and interest payment due under this Note will be permitted
only in the event of a sale of the Property (as hereinafter defined) to a bona-
fide third party and only upon payment of the Prepayment Premium set forth above
If METLIFE at any time accelerates this Note after an Event of Default
(defined below), then BORROWER shall be obligated to pay the Prepayment Premium
in accordance with the foregoing schedule. The Prepayment Premium shall not be
payable with respect to condemnation awards or insurance proceeds from fire or
other casualty which METLIFE applies to prepayment, nor with respect to
XXXXXXXX's prepayment of the Note in full during the last twelve (12) months of
the term of this Note unless an Event of Default has occurred. BORROWER
expressly acknowledges that such Prepayment Premium is not a penalty but is
intended solely to compensate METLIFE for the loss of its bargain and the
reimbursement of internal expenses and administrative fees and expenses incurred
by METLIFE.
BORROWER shall be liable on this Note and on all the representations,
warranties, indemnities and covenants in the Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the
property (the "Property") securing this Note and all other documents executed or
delivered in connection herewith (the "Loan Documents").
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Mortgage executed contemporaneously herewith:
(a) Failure of or refusal by XXXXXXXX to make any payment of
principal, interest, or Prepayment Premium upon this Note when due, and such
failure or refusal shall continue for a period of ten (10) days after written
notice is given to BORROWER by METLIFE specifying such failure; or
(b) Failure of BORROWER within the time required by the Mortgage to
make any payment for taxes, insurance or for reserves for such payments, or any
other payment necessary to prevent filing of or discharge of any lien, and such
failure shall continue for a period of ten (10) days after written notice is
given to BORROWER by METLIFE specifying such failure; or
(c) Failure by BORROWER or Graphic Industries, Inc., a Georgia
corporation ("Guarantor"), to observe or perform any obligations of BORROWER or
Guarantor to METLIFE on or with respect to any transactions, debts, undertakings
or agreements other than the transaction evidenced by this Note following the
giving of any required notice and the expiration of any applicable period of
grace; or
(d) Failure of BORROWER to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder, or commencement of any suit or other action to foreclose
any superior liens or encumbrances; or
(e) Failure by XXXXXXXX to observe or perform any of its obligations
under any of the lease agreements covering the Property; or
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(f) The Property is transferred or any agreement to transfer any part
or interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically allowed
under the Mortgage, including without limitation creating or allowing any liens
on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER or Guarantor of a voluntary petition in
bankruptcy or filing by BORROWER or Guarantor of any petition or answer seeking
or acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, or similar relief for itself under any present or future federal,
state or other statute, law or regulation relating to bankruptcy, insolvency or
other relief for debtors, or the seeking, consenting to, or acquiescing by
BORROWER or Guarantor in the appointment of any trustee, receiver, custodian,
conservator or liquidator for BORROWER or Guarantor , any part of the Property,
or any of the income or rents of the Property, or the making by BORROWER or
Guarantor of any general assignment for the benefit of creditors, or the
inability of or failure by BORROWER or Guarantor to pay its debts generally as
they become due, or the insolvency on a balance sheet basis or business failure
of BORROWER or Guarantor , or the making or suffering of a preference within the
meaning of federal bankruptcy law or the making of a fraudulent transfer under
applicable federal or state law, or concealment by BORROWER or Guarantor of any
of its property in fraud of creditors, or the imposition of a lien upon any of
the property of BORROWER or Guarantor which is not discharged in the manner
permitted by the Mortgage, or the giving of notice by BORROWER or Guarantor to
any governmental body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER or Guarantor seeking any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debts, or the appointment
of any trustee, receiver, custodian, conservator or liquidator of BORROWER or
Guarantor, of any part of the Property or of any of the income or rents of the
Property, unless such petition shall be dismissed within sixty (60) days after
such filing, but in any event prior to the entry of an order, judgment or decree
approving such petition; or
(i) The institution of any proceeding for the dissolution or
termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net
worth of BORROWER or Guarantor from the assets, liabilities or net worth of
BORROWER or Guarantor previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by
or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan
Documents shall prove to have been false or misleading in any material respect;
or
(l) Failure of BORROWER to observe or perform any other covenant or
condition contained in this Note and such default shall continue for thirty (30)
days after notice is given to BORROWER specifying the nature of the failure. No
notice of default and no opportunity to cure shall be required if during the
prior twelve (12) months METLIFE has already sent a notice to BORROWER
concerning default in performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation
under the Mortgage or any other Loan Document when such observance or
performance is due, and such failure shall continue beyond the applicable cure
period set forth in such Loan Document, or if the default cannot be cured within
such applicable cure period, BORROWER fails within such time to commence and
pursue curative action with reasonable diligence or fails at any time after
expiration of such applicable cure period to continue with reasonable diligence
all necessary curative actions. No notice of default and no opportunity to cure
shall be required if during the prior twelve (12) months METLIFE has already
sent a notice to BORROWER concerning default in performance of the same
obligation; or
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(n) XXXXXXXX's abandonment of the Property; or
(o) Any of the foregoing events occur with respect to any tenant of
the Property, with respect to Guarantor or with respect to any guarantor of any
tenant's obligations relating to the Property, or such guarantor dies or becomes
incompetent; or
(p) The occurrence of any default under any of the documents
evidencing or securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No.
5905392, (iii) METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v)
METLIFE Loan No. 59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No.
5922696, or (viii) any other indebtedness with Borrower or any of the guarantors
of the Indebtedness which is now or hereafter owed to METLIFE.
Upon the occurrence of any of the foregoing events of default, METLIFE
shall have the option to declare the entire amount of principal and interest due
under this Note immediately due and payable without notice or demand, and
METLIFE may exercise any of its rights under this Note and any document executed
or delivered herewith. After acceleration or maturity, BORROWER shall pay
interest on the outstanding principal balance of this Note at the rate of five
percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in
effect from time to time, or fifteen percent (15.00%) per annum, whichever is
higher, provided that such interest rate shall not exceed the maximum interest
rate permitted by law.
All payments of the principal and interest on this Note shall be made
in coin or currency of the United States of America which at the time shall be
the legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection,
XXXXXXXX agrees to pay reasonable attorneys' fees and costs incurred by METLIFE
in connection therewith, and in the event suit or action is instituted to
enforce or interpret this Note (including without limitation efforts to modify
or vacate any automatic stay or injunction), the prevailing party shall be
entitled to recover all expenses reasonably incurred at, before or after trial
and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding,
or in connection with post-judgment collection efforts, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
This Note shall be governed and construed in accordance with the laws
of the Commonwealth of Massachusetts applicable to contracts made and to be
performed therein (excluding choice-of-law principles). BORROWER hereby
irrevocably submits to the jurisdiction of any state or federal court sitting in
Massachusetts in any action or proceeding brought to enforce or otherwise
arising out of or relating to this Note, and hereby waives any objection to
venue in any such court and any claim that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to its expressed maturity date,
all in the events, on the terms, and in the manner provided for in the Mortgage.
BORROWER and all sureties, endorsers, guarantors and other parties now
or hereafter liable for the payment of this Note, in whole or in part, hereby
severally (i) waive demand, notice of demand, presentment for payment, notice of
nonpayment, notice of default, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for this
Note; (ii) agree to any substitution, subordination, exchange or release of any
security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (iii) agree that METLIFE shall not be
required to first institute suit or exhaust its remedies hereon against BORROWER
or others liable or to become liable for the payment of this Note or to enforce
its rights against any security for the payment of this Note; and (iv) consent
to any extension of time for the payment of this Note, or any installment
hereof, made by agreement
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by METLIFE with any person now or hereafter liable for the payment of this Note,
even if BORROWER is not a party to such agreement.
All agreements between BORROWER and METLIFE, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the final maturity
of this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to METLIFE exceed the maximum amount permissible under
the applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to METLIFE in excess of the maximum amount permissible
under applicable law, the interest payable to METLIFE shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance
METLIFE shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest or if such excessive amount of interest exceeds
the unpaid balance of principal hereof, such excess shall be refunded to
BORROWER. All interest paid or agreed to be paid to METLIFE shall, to the extent
permitted by applicable law, be amortized, prorated, allocated, and spread
throughout the full period (including any renewal or extension) until payment in
full of the principal so that the interest hereon for such full period shall not
exceed the maximum amount permissible under applicable law. METLIFE expressly
disavows any intent to contract for, charge or receive interest in an amount
which exceeds the maximum amount permissible under applicable law. This
paragraph shall control all agreements between BORROWER and METLIFE.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS
AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE
TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT
MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF
THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, XXXXXXXX has caused this Note to be executed by
its duly authorized officers as of the year and day first written above.
BORROWER:
W.E. XXXXXXX CO., INC.,
a Georgia corporation
By:________________________________________
Name: _____________________________________,
[Vice] President
By:________________________________________
Name:_____________________________________,
Vice President/Treasurer
[SEAL]
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Prepared by and after
recording return to:
Xxxxxxxx X. Xxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx & Xxxx, P.C.
000 Xxxx Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
MetLife Capital Financial Corporation
Loan No.: 5022696-001
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
(000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx)
THIS INSTRUMENT IS ALSO TO BE INDEXED IN THE INDEX OF FINANCING STATEMENTS.
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS, AND FIXTURE
FILING COVERS GOODS WHICH ARE OR ARE TO BECOME FIXTURES ON THE REAL PROPERTY
DESCRIBED HEREIN. THE BORROWER/DEBTOR HEREUNDER IS THE RECORD OWNER OF THE REAL
PROPERTY.
THE NAMES OF THE "DEBTOR" AND THE "SECURED PARTY", THE MAILING ADDRESS OF THE
"SECURED PARTY" FROM WHICH INFORMATION CONCERNING THE SECURITY INTEREST MAY BE
OBTAINED, THE MAILING ADDRESSES OF THE "DEBTOR" AND A STATEMENT INDICATING THE
TYPES, OR DESCRIBING THE ITEMS, OF COLLATERAL ARE AS DESCRIBED BELOW, IN
COMPLIANCE WITH THE REQUIREMENTS OF ARTICLE 9, SECTION 402 OF THE UNIFORM
COMMERCIAL CODE.
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS, AND
FIXTURE FILING (herein "Mortgage"), made as of January 29, 1997, by the Grantor,
W.E. XXXXXXX CO., INC., a Georgia corporation, whose business address is 000
Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (herein "Borrower"), in favor of the
Grantee, METLIFE CAPITAL FINANCIAL CORPORATION, a Delaware corporation, whose
address is Real Estate Department, 00000 X.X. 4th Street, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 (herein "METLIFE"),
W I T N E S S E T H :
THAT, WHEREAS, Borrower is justly indebted to METLIFE in the sum of Two
Million Twenty-Five Thousand and no hundredths Dollars ($2,025,000), as
evidenced by a certain Note (as hereinafter );
NOW, THEREFORE, in consideration of the indebtedness herein recited,
Borrower irrevocably gives, grants, sells, transfers, assigns, conveys,
warrants, and confirms unto METLIFE and its successors and assigns, WITH
MORTGAGE COVENANTS, UPON THE STATUTORY CONDITIONS all of Borrower's right, title
and interest, now owned or hereafter acquired, including any reversion or
remainder interest, in the real property located in the City of Bedford, County
of Middlesex, Commonwealth of Massachusetts, commonly known as 000 Xxxxx Xxxx,
and more particularly described in Exhibit A attached hereto and incorporated
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herein, including all heretofore or hereafter vacated alleys and streets
abutting the property, and all easements, rights, appurtenances, tenements,
hereditaments, rents, royalties, mineral, oil and gas rights and profits, water,
water rights, and water stock appurtenant to the property (collectively
"Premises");
TOGETHER with all of Xxxxxxxx's estate, right, title and interest, now
owned or hereafter acquired, in:
(a) all buildings, structures, improvements, parking areas, landscaping,
fixtures and articles of property now or hereafter erected on, attached to,
or used or adapted for use in the operation of the Premises;
including but without being limited to, all heating, air conditioning and
incinerating apparatus and equipment; all boilers, engines, motors,
dynamos, generating equipment, piping and plumbing fixtures, water heaters,
ranges, cooking apparatus and mechanical kitchen equipment, refrigerators,
freezers, cooling, ventilating, sprinkling and vacuum cleaning systems,
fire extinguishing apparatus, gas and electric fixtures, carpeting, floor
coverings, underpadding, elevators, escalators, partitions, mantels, built-
in mirrors, window shades, blinds, draperies, screens, storm sash, awnings,
signs, furnishings of public spaces, halls and lobbies, and shrubbery and
plants, and including also all interest of any owner of the Premises in any
of such items hereafter at any time acquired under conditional sale
contract, chattel mortgage or other title retaining or security deed, all
of which property mentioned in this clause (a) shall be deemed part of the
realty covered by this Mortgage and not severable wholly or in part without
material injury to the freehold of the Premises (all of the foregoing
together with replacements and additions thereto are referred to herein as
"Improvements"); and
(b) all compensation, awards, damages, rights of action and proceeds, including
interest thereon and/or the proceeds of any policies of insurance therefor,
arising out of or relating to a (i) taking or damaging of the Premises or
Improvements thereon by reason of any public or private improvement,
condemnation proceeding (including change of grade), sale or transfer in
lieu of condemnation, or fire, earthquake or other casualty, or (ii) any
injury to or decrease in the value of the Premises or the Improvements for
any reason whatsoever;
(c) return premiums or other payments upon any insurance any time provided for
the benefit of or naming METLIFE, and refunds or rebates of taxes or
assessments on the Premises;
(d) all written and oral leases and rental agreements (including extensions,
renewals and subleases and all usufructuary interest; all of the foregoing
shall be referred to collectively herein as the "Leases") now or hereafter
affecting the Premises including, without limitation, all rents, issues,
profits and other revenues and income therefrom and from the renting,
leasing or bailment of Improvements and equipment, all guaranties of
tenants' performance under the Leases, and all rights and claims of any
kind that Borrower may have against any tenant under the Leases or in
connection with the termination or rejection of the Leases in a bankruptcy
or insolvency proceeding;
(e) plans, specifications, contracts and agreements relating to the design or
construction of the Improvements; Borrower's rights under any payment,
performance, or other bond in connection with the design or construction of
the Improvements; all landscaping and construction materials, supplies, and
equipment used or to be used or consumed in connection with construction of
the Improvements, whether stored on the Premises or at some other location;
and contracts, agreements, and purchase orders with contractors,
subcontractors, suppliers, and materialmen incidental to the design or
construction of the Improvements;
(f) all contracts (excluding contracts relating to the printing operations of
Borrower), rights, claims or causes of action pertaining to or affecting
the Premises or the Improvements, including, without limitation, all
options or contracts to acquire other property for use in connection with
operation or development of the Premises or Improvements, management
contracts, service or supply contracts, permits, licenses, franchises and
certificates, and all commitments or agreements, now or hereafter in
existence, intended by the obligor thereof to provide Borrower with
proceeds to satisfy the loan evidenced hereby or improve the Premises or
Improvements, and the right to receive all proceeds due under such
commitments or agreements including refundable deposits and fees;
(g) all books, records, surveys, reports and other documents related to the
Premises, the Improvements, the Leases, or other items of collateral
described herein; and
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(h) all additions, accessions, replacements, substitutions, proceeds and
products of the real and personal property, tangible and intangible,
described herein.
(All of the foregoing described collateral is exclusive of any equipment,
furniture, furnishings or trade fixtures owned and supplied by Borrower or
tenants of the Premises. The Premises, the Improvements, the Leases and all of
the rest of the foregoing property are herein referred to as the "Property.")
THIS MORTGAGE IS MADE UPON THE STATUTORY CONDITIONS, FOR ANY BREACH OF
WHICH METLIFE SHALL HAVE THE STATUTORY POWER OF SALE.
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof to the use, benefit and behoof of METLIFE and its
successors and assigns in fee simple forever.
This conveyance is intended to constitute a security agreement as required
under the Uniform Commercial Code as enacted in the Commonwealth of
Massachusetts. Xxxxxx's and Secured Party's addresses and the location of the
collateral are set forth on Schedule 1 attached hereto.
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This Mortgage is made to secure METLIFE (a) the repayment of the
indebtedness evidenced by Xxxxxxxx's promissory note (the "Note") dated of even
date herewith in the principal sum of TWO MILLION TWENTY-FIVE THOUSAND Dollars
($2,025,000), with interest thereon at the rate of eight and seventy-five
hundredths percent (8.75%) per annum, having a maturity date of February 1,
2012, and all renewals, extensions and modifications thereof; (b) the repayment
of any future advances, with interest thereon, made by METLIFE to Borrower
pursuant to Section 28 hereof (herein "Future Advances"); (c) the payment of all
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other sums, with interest thereon, advanced in accordance herewith to protect
the security of this Mortgage or to fulfill any of Borrower's obligations
hereunder or under the other Loan Documents (as defined below); (d) the
performance of the covenants and agreements of Borrower contained herein or in
the other Loan Documents; and (e) the repayment of all sums now or hereafter
owing to METLIFE by Borrower pursuant to any instrument which recites that it is
secured hereby. The indebtedness and obligations described in clauses (a)-(e)
above are collectively referred to herein as the "Indebtedness." The Note, this
Mortgage, and all other documents evidencing, securing or guaranteeing the
Indebtedness (except any Certificate and Indemnity Agreement Regarding Hazardous
Substances), as the same may be modified or amended from time to time, are
referred to herein as the "Loan Documents." The terms of the Note secured
hereby may provide that the interest rate or payment terms or balance due may be
indexed, adjusted, renewed, or renegotiated from time to time, and this Mortgage
shall continue to secure the Note notwithstanding any such indexing, adjustment,
renewal or renegotiation.
Should the indebtedness be paid according to the tenor and effect thereof
where the same shall become due and payable, and should Borrower perform all
covenants herein contained in a timely manner, then this Mortgage is satisfied,
and METLIFE shall execute a proper cancellation at the expense of Borrower.
Borrower represents and warrants that Borrower has good, marketable and
insurable title to, and has the right to mortgage an indefeasible fee simple
estate in, the Premises, Improvements, rents, and leases (or, if this Mortgage
is on a leasehold, good, marketable and insurable title to, and the right to
convey the leasehold estate and that the ground lease is in full force and
effect without modification except as noted above and without default on the
part of either lessor or lessee thereunder), and the right to convey the other
Property, that the Property is unencumbered except as disclosed in writing to
and approved by METLIFE prior to the date hereof, and that Borrower will warrant
and forever defend the title to the Property against all claims and demands,
subject only to the permitted exceptions set forth in Schedule 2 attached
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hereto.
Xxxxxxxx represents, warrants, covenants and agrees for the benefit of
METLIFE as follows:
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1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when
---------------------------------
due the principal of and interest on the Indebtedness, any prepayment and other
charges provided in the Loan Documents and all other sums secured by this
Mortgage.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Upon the occurrence of
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an Event of Default (hereinafter defined), and at METLIFE's sole option at any
time thereafter, Borrower shall pay in addition to each monthly payment on the
Note, one-twelfth of the annual real estate taxes, insurance premiums,
assessments, water and sewer rates, ground rents and other charges (herein
"Impositions") payable with respect to the Property (as estimated by METLIFE in
its sole discretion), to be held by METLIFE without interest to Borrower, for
the payment of such obligations.
If the amount of such additional payments held by METLIFE ("Funds") at the
time of the annual accounting thereof shall exceed the amount deemed necessary
by METLIFE to provide for the payment of Impositions as they fall due, such
excess shall be at Borrower's option, either repaid to Borrower or credited to
Borrower on the next monthly installment or installments of Funds due. If at
any time the amount of the Funds held by METLIFE shall be less than the amount
deemed necessary by METLIFE to pay Impositions as they fall due, Borrower shall
pay to METLIFE any amount necessary to make up the deficiency within thirty (30)
days after notice from METLIFE to Borrower requesting payment thereof.
Upon Xxxxxxxx's breach of any covenant or agreement of Borrower in this
Mortgage, METLIFE may apply, in any amount and in any order as METLIFE shall
determine in METLIFE's sole discretion, any Funds held by METLIFE at the time of
application (i) to pay Impositions which are now or will hereafter become due,
or (ii) as a credit against sums secured by this Mortgage. Upon payment in full
of all sums secured by this Mortgage, METLIFE shall refund to Borrower any Funds
held by METLIFE.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise,
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each complete installment payment received by METLIFE from Borrower under the
Note or this Mortgage shall be applied by METLIFE first in payment of amounts
payable to METLIFE by Borrower under Section 2 hereof, then to interest payable
---------
on the Note, then to principal of the Note, and then to interest and principal
on any Future Advances in such order as METLIFE, at METLIFE's sole discretion,
shall determine. Upon Xxxxxxxx's breach of any covenant or agreement of
Borrower in this Mortgage, METLIFE may apply, in any amount and in any order as
METLIFE shall determine in METLIFE's sole discretion, any payments received by
METLIFE under the Note or this Mortgage. Any partial payment received by
METLIFE shall, at METLIFE's option, be held in a non-interest bearing account
until METLIFE receives funds sufficient to equal a complete installment payment.
4. CHARGES, LIENS. Borrower shall pay all Impositions attributable to the
--------------
Property in the manner provided under Section 2 hereof or, if not paid in such
---------
manner, by Borrower making payment, when due, directly to the payee thereof, or
in such other manner as METLIFE may designate in writing. If requested by
METLIFE, Borrower shall promptly furnish to METLIFE all notices of Impositions
which become due, and in the event Borrower shall make payment directly,
Borrower shall promptly furnish to METLIFE receipts evidencing such payments.
Borrower shall promptly discharge any lien which has, or may have, priority over
or equality with, the lien of this Mortgage, and Borrower shall pay, when due,
the claims of all persons supplying labor or materials to or in connection with
the Property. Without METLIFE's prior written permission, Borrower shall not
allow any lien inferior to this Mortgage to be perfected against the Property.
If any lien inferior to this Mortgage is filed against the Property without
METLIFE's prior written permission and without the consent of Xxxxxxxx, Borrower
shall, within thirty (30) days after receiving notice of the filing of such
lien, cause such lien to be released of record and deliver evidence of such
release to METLIFE.
5. INSURANCE. Borrower shall obtain and maintain the following types of
---------
insurance upon and relating to the Property:
4
(a) "All Risk" property and fire insurance (with extended coverage
endorsement including malicious mischief and vandalism) in an amount not less
than the lesser of the outstanding principal balance of the Note or the full
replacement value of the Property (with a deductible not to exceed $25,000 and
with co-insurance limited to a maximum of 10% of the amount of the policy),
naming METLIFE under a lender's loss payee endorsement (form 438BFU or
equivalent) and including agreed amount, inflation guard, replacement cost and
waiver of subrogation endorsements;
(b) Comprehensive general liability insurance in an amount not less than
$1,000,000 per occurrence and $2,000,000 in the aggregate insuring against
personal injury, death and property damage and naming METLIFE as additional
insured;
(c) Business interruption insurance covering loss of rental or other income
(including all expenses payable by tenants) for up to six (6) months; and
(d) Such other types of insurance or endorsements to existing insurance as
may be required from time to time by METLIFE.
Upon the request of METLIFE, Borrower shall increase the coverages under
any of the insurance policies required to be maintained hereunder or otherwise
modify such policies in accordance with METLIFE's request. All of the insurance
policies required hereunder shall be issued by corporate insurers licensed to do
business in the state in which the Property is located and rated A:X or better
by A.M. Best Company, and shall be in form acceptable to METLIFE. If and to the
extent that the Property is located within an area that has been or is hereafter
designated or identified as an area having special flood hazards by the
Department of Housing and Urban Development or such other official as shall from
time to time be authorized by federal or state law to make such designation
pursuant to any national or state program of flood insurance, Borrower shall
carry flood insurance with respect to the Property in amounts not less than the
maximum limit of coverage then available with respect to the Property or the
amount of the Indebtedness, whichever is less. Certificates of all insurance
required to be maintained hereunder shall be delivered to METLIFE, along with
evidence of payment in full of all premiums required thereunder,
contemporaneously with Xxxxxxxx's execution of this Mortgage. All such
certificates shall be in form acceptable to METLIFE and shall require the
insurance company to give to METLIFE at least thirty (30) days' prior written
notice before canceling the policy for any reason or materially amending it.
Certificates evidencing all renewal and substitute policies of insurance shall
be delivered to METLIFE, along with evidence of the payment in full of all
premiums required thereunder, at least fifteen (15) days before termination of
the policies being renewed or substituted. If any loss shall occur at any time
when Borrower shall be in default hereunder, METLIFE shall be entitled to the
benefit of all insurance policies held or maintained by Borrower, to the same
extent as if same had been made payable to METLIFE, and upon foreclosure
hereunder, METLIFE shall become the owner thereof. METLIFE shall have the
right, but not the obligation, to make premium payments, at Borrower's expense,
to prevent any cancellation, endorsement, alteration or reissuance of any policy
of insurance maintained by Xxxxxxxx, and such payments shall be accepted by the
insurer to prevent same.
If any act or occurrence of any kind or nature (including any casualty for
which insurance was not obtained or obtainable) shall result in damage to or
destruction of the Property (such event being called a "Loss"), Borrower will
give prompt written notice thereof to METLIFE. All insurance proceeds paid or
payable in connection with any Loss shall be paid to METLIFE. If (i) no Event
of Default has occurred and is continuing hereunder, (ii) Borrower provides
evidence satisfactory to METLIFE of its ability to pay all amounts becoming due
under the Note during the pendency of any restoration or repairs to or
replacement of the Property, (iii) the available insurance proceeds are, in
METLIFE's judgment, sufficient to fully and completely restore, repair or
replace the Property, and (iv) Borrower provides evidence satisfactory to
METLIFE that none of the tenants of the Property will terminate their lease
agreements as a result of either the Loss or the repairs to or replacement of
the Property, Borrower shall have the right to apply all insurance proceeds
received in connection with such Loss either (a) to restore, repair, replace and
rebuild the Property as nearly as possible to its value, condition and character
immediately prior to such Loss, or (b) to the payment of the Indebtedness in
such order as METLIFE may elect. If an Event of Default has occurred
5
and is continuing hereunder at the time of such Loss, if METLIFE determines that
Borrower will be unable to pay all amounts becoming due under the Note during
the pendency of any restoration or repairs to or replacement of the Property, if
the available insurance proceeds are insufficient, in METLIFE's judgment, to
fully and completely restore, repair or replace the Property or if METLIFE
believes that one or more tenants of the Property will terminate their lease
agreements as a result of either the Loss or the repairs to or replacement of
the Property, then all of the insurance proceeds payable with respect to such
Loss will be applied to the payment of the Indebtedness, or if so instructed by
METLIFE, Borrower will promptly, at Xxxxxxxx's sole cost and expense and
regardless of whether sufficient insurance proceeds shall be available, commence
to restore, repair, replace and rebuild the Property as nearly as possible to
its value, condition, character immediately prior to such Loss. Borrower shall
diligently prosecute any restoration, repairs or replacement of the Property
undertaken by or on behalf of Borrower pursuant to this Section 5. All such
----------
work shall be conducted pursuant to written contracts approved by METLIFE in
writing. Notwithstanding anything contained herein to the contrary, in the
event the insurance proceeds received by METLIFE following any Loss are
insufficient in METLIFE's judgment to fully and completely restore, repair or
replace the Property, and if Borrower has complied with all of the other
conditions described in this Section 5, Borrower may elect to restore, repair or
---------
replace the Property if it first deposits with METLIFE such additional sums as
METLIFE determines are necessary in order to fully and completely restore,
repair or replace the Property. In the event any insurance proceeds remain
following the restoration, repair or replacement of the Property, such proceeds
shall be applied to the Indebtedness in such order as METLIFE may elect.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a) shall not
----------------------------------------
commit waste or permit impairment or deterioration of the Property, (b) shall
not abandon the Property, (c) shall restore or repair promptly and in a good and
workmanlike manner all or any part of the Property to the equivalent of its
original condition, or such other condition as METLIFE may approve in writing,
in the event of any damage, injury or loss thereto, whether or not insurance
proceeds are available to cover in whole or in part the costs of such
restoration or repair, (d) shall keep the Property, including all improvements,
fixtures, equipment, machinery and appliances thereon, in good repair and shall
replace fixtures, equipment, machinery and appliances on the Property when
necessary to keep such items in good repair, (e) shall comply with all laws,
ordinances, regulations and requirements of any governmental body applicable to
the Property, (f) if all or part of the Property is for rent or lease, then
METLIFE, at its option after the occurrence of an Event of Default, may require
Borrower to provide for professional management of the Property by a property
manager satisfactory to METLIFE pursuant to a contract approved by METLIFE in
writing, unless such requirement shall be waived by METLIFE in writing, (g)
shall generally operate and maintain the Property in a manner to ensure maximum
rentals, and (h) shall give notice in writing to METLIFE of and, unless
otherwise directed in writing by METLIFE, appear in and defend any action or
proceeding purporting to affect the Property, the security of this Mortgage or
the rights or powers of METLIFE hereunder. Neither Borrower nor any tenant or
other person, without the written approval of METLIFE, shall remove, demolish or
alter any improvement now existing or hereafter erected on the Property or any
fixture, equipment, machinery or appliance in or on the Property except when
incident to the replacement of fixtures, equipment, machinery and appliances
with items of like kind.
Borrower represents, warrants and covenants that the Property is and shall
be in compliance with the Americans with Disabilities Act of 1990 and all of the
regulations promulgated thereunder, as the same may be amended from time to
time.
7. USE OF PROPERTY. Unless required by applicable law or unless METLIFE
---------------
has otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the Property was intended at the time this Mortgage was
executed. Borrower shall not, without METLIFE's prior written consent, (i)
initiate or acquiesce in a change in the zoning classification (including any
variance under any existing zoning ordinance applicable to the Property), (ii)
permit the use of the Property to become a non-conforming use under applicable
zoning ordinances, (iii) file any subdivision or parcel map affecting the
Property, or (iv) amend, modify or consent to any easement or covenants,
conditions and restrictions pertaining to the Property.
6
8. PROTECTION OF METLIFE'S SECURITY. If Borrower fails to perform any of
--------------------------------
the covenants and agreements contained in this Mortgage, or if any action or
proceeding is commenced which affects the Property or title thereto or the
interest of METLIFE therein, including, but not limited to, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then METLIFE at METLIFE's option may make such
appearances, disburse such sums and take such action as METLIFE deems necessary,
in its sole discretion, to protect METLIFE's interest, including, but not
limited to, (i) disbursement of attorneys' fees, (ii) entry upon the Property to
make repairs, (iii) procurement of satisfactory insurance as provided in Section
-------
5 hereof, and (iv) if this Mortgage is on a leasehold, exercise of any option to
-
renew or extend the ground lease on behalf of Borrower and the curing of any
default of Borrower in the terms and conditions of the ground lease.
Any amounts disbursed by METLIFE pursuant to this Section 8, with interest
---------
thereon, shall become additional Indebtedness of Borrower secured by this
Mortgage. Unless Borrower and METLIFE agree to other terms of payment, such
amounts shall be immediately due and payable and shall bear interest from the
date of disbursement at the highest rate which may be collected from Borrower
under applicable law or, at METLIFE's option, the rate stated in the Note.
Borrower hereby covenants and agrees that METLIFE shall be subrogated to the
lien of any mortgage or other lien discharged, in whole or in part, by the
Indebtedness. Nothing contained in this Section 8 shall require METLIFE to
---------
incur any expense or take any action hereunder.
9. INSPECTION. METLIFE may make or cause to be made reasonable entries
----------
upon the Property to inspect the interior and exterior thereof.
10. FINANCIAL DATA. Borrower will furnish to METLIFE within one hundred
--------------
twenty (120) days after the close of its fiscal year (i) current financial
statements of Borrower's parent corporation, Graphic Industries, Inc., a Georgia
corporation ("Guarantor"), including a balance sheet and profit and loss
statements prepared in accordance with generally accepted accounting principles
and practices consistently applied and, if METLIFE so requires, accompanied by
the annual audit report of an independent certified public accountant reasonably
acceptable to METLIFE, (ii) if requested by METLIFE, an annual operating
statement, together with other supporting data reflecting all material
information with respect to the operation of the Property and Improvements
during the period covered thereby, and (iii) all other financial information and
reports that METLIFE may from time to time reasonably request.
11. CONDEMNATION. If the Property, or any part thereof, shall be
------------
condemned for any reason, including without limitation fire or earthquake
damage, or otherwise taken for public or quasi-public use under the power of
eminent domain, or be transferred in lieu thereof, all damages or other amounts
awarded for the taking of, or injury to, the Property shall be paid to METLIFE
who shall have the right, in its sole and absolute discretion, to apply the
amounts so received against (a) the costs and expenses of METLIFE, including
reasonable attorneys' fees incurred in connection with collection of such
amounts, and (b) the balance against the Indebtedness; provided, however, that
if (i) no Event of Default shall have occurred and be continuing hereunder, (ii)
Borrower provides evidence satisfactory to METLIFE of its ability to pay all
amounts becoming due under the Note during the pendency of any restoration or
repairs to or replacement of the Property, (iii) METLIFE determines, in its sole
discretion, that the proceeds of such award are sufficient to restore, repair,
replace and rebuild the Property as nearly as possible to its value, condition
and character immediately prior to such taking (or, if the proceeds of such
award are insufficient for such purpose, if Borrower provides additional sums to
METLIFE's satisfaction so that the aggregate of such sums and the proceeds of
such award will be sufficient for such purpose), and (iv) Borrower provides
evidence satisfactory to METLIFE that none of the tenants of the Property will
terminate their lease agreements as a result of either the condemnation or
taking or the repairs to or replacement of the Property, the proceeds of such
award, together with additional sums provided by Xxxxxxxx, shall be placed in a
separate account for the benefit of METLIFE and Borrower to be used to restore,
repair, replace and rebuild the Property as nearly as possible to its value,
condition and character immediately prior to such taking. All work to be
performed in connection therewith shall be pursuant to a written contract
therefor, which contract shall be subject to the prior approval of METLIFE. To
the extent that any funds remain after the Property has been so restored and
repaired,
7
the same shall be applied against the Indebtedness in such order as METLIFE may
elect. To enforce its rights hereunder, METLIFE shall be entitled to participate
in and control any condemnation proceedings and to be represented therein by
counsel of its own choice, and Xxxxxxxx will deliver, or cause to be delivered
to METLIFE such instruments as may be requested by it from time to time to
permit such participation. In the event METLIFE, as a result of any such
judgment, decree or award, believes that the payment or performance of any of
the Indebtedness is impaired, METLIFE may declare all of the Indebtedness
immediately due and payable.
12. BORROWER AND LIEN NOT RELEASED. From time to time, METLIFE may, at
------------------------------
METLIFE's option, without giving notice to or obtaining the consent of Borrower,
Xxxxxxxx's successors or assigns or of any junior lienholder or guarantors,
without liability on METLIFE's part and notwithstanding Borrower's breach of any
covenant or agreement of Borrower in this Mortgage, extend the time for payment
of the Indebtedness or any part thereof, reduce the payments thereon, release
anyone liable on any of the Indebtedness, accept an extension or modification or
renewal note or notes therefor, modify the terms and time of payment of the
Indebtedness, release from the lien of this Mortgage any part of the Property,
take or release other or additional security, reconvey any part of the Property,
consent to any map or plan of the Property, consent to the granting of any
easement, join in any extension or subordination agreement, and agree in writing
with Borrower to modify the rate of interest or period of amortization of the
Note or change the amount of the monthly installments payable thereunder. Any
actions taken by METLIFE pursuant to the terms of this Section 12 shall not
----------
affect the obligation of Borrower or Xxxxxxxx's successors or assigns to pay the
sums secured by this Mortgage and to observe the covenants of Borrower contained
herein, shall not affect the guaranty of any person, corporation, partnership or
other entity for payment of the Indebtedness, and shall not affect the lien or
priority of the lien hereof on the Property. Borrower shall pay METLIFE a
service charge, together with such title insurance premiums and attorneys' fees
as may be incurred at METLIFE's option, for any such action if taken at
Borrower's request.
13. FORBEARANCE BY METLIFE NOT A WAIVER. Any forbearance by METLIFE in
-----------------------------------
exercising any right or remedy hereunder, or otherwise afforded by applicable
law, shall not be a waiver of or preclude the exercise of any other right or
remedy. The acceptance by METLIFE of payment of any sum secured by this
Mortgage after the due date of such payment shall not be a waiver of METLIFE's
right to either require prompt payment when due of all other sums so secured or
to declare a default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by METLIFE shall not
be a waiver of METLIFE's right to accelerate the maturity of the Indebtedness
secured by this Mortgage, nor shall METLIFE's receipt of any awards, proceeds or
damages under Sections 5 and 11 hereof operate to cure or waive Borrower's
-----------------
default in payment of sums secured by this Mortgage.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Mortgage is intended
------------------------------------------
to be a security agreement pursuant to the Uniform Commercial Code for any of
the items specified above as part of the Property which, under applicable law,
may be subject to a security interest pursuant to the Uniform Commercial Code,
and Borrower hereby grants and conveys to METLIFE a first and prior security
interest in all of the Property that constitutes personalty, whether now owned
or hereafter acquired. Xxxxxxxx agrees that METLIFE may file this Mortgage, or
a reproduction thereof, in the real estate records or other appropriate index,
as a financing statement for any of the items specified above as part of the
Property. Any reproduction of this Mortgage or of any other security agreement
or financing statement shall be sufficient as a financing statement. In
addition, Xxxxxxxx agrees to execute and deliver to METLIFE, upon METLIFE's
request, any financing statements, as well as extensions, renewals and
amendments thereof, and reproductions of this Mortgage in such form as METLIFE
may require to perfect a security interest with respect to the foregoing items.
Borrower shall pay all costs of filing such financing statements and any
extensions, renewals, amendments and releases thereof, and shall pay all costs
and expenses of any record searches for financing statements METLIFE may
require. Without the prior written consent of METLIFE, Borrower shall not
create or suffer to be created pursuant to the Uniform Commercial Code any other
security interest in said items, including replacements and additions thereto.
Upon Xxxxxxxx's breach of any covenant or agreement of Borrower contained in
this Mortgage, including the covenants to pay when due all sums secured by this
Mortgage, METLIFE shall have the remedies of a secured party under the Uniform
Commercial Code, and METLIFE may also invoke the remedies provided in Section 26
----------
of this Mortgage as to such items. In
8
exercising any of said remedies METLIFE may proceed against the items of
Property separately or together and in any order whatsoever, without in any way
affecting the availability of METLIFE's remedies under the Uniform Commercial
Code or of the remedies provided in Section 26 of this Mortgage. Within ten (10)
----------
days following any request therefor by METLIFE, Borrower shall prepare and
deliver to METLIFE a written inventory specifically listing all of the personal
property covered by the security interest herein granted, which inventory shall
be certified by Borrower as being true, correct, and complete.
15. LEASES OF THE PROPERTY. Borrower shall comply with and observe
----------------------
Borrower's obligations as landlord under all Leases of the Property or any part
thereof. All Leases now or hereafter entered into will be in form and substance
subject to the approval of METLIFE. All Leases of the Property shall
specifically provide that such Leases are subordinate to this Mortgage; that the
tenant attorns to METLIFE, such attornment to be effective upon METLIFE's
acquisition of title to the Property; that the tenant agrees to execute such
further evidences of attornment as METLIFE may from time to time request; that
the attornment of the tenant shall not be terminated by foreclosure; and that
METLIFE may, at METLIFE's option, accept or reject such attornments. Borrower
shall not, without METLIFE's written consent, request or consent to the
subordination of any Lease of all or any part of the Property to any lien
subordinate to this Mortgage. If Xxxxxxxx becomes aware that any tenant
proposes to do, or is doing, any act or thing which may give rise to any right
of set-off against rent, Borrower shall (i) take such steps as shall be
reasonably calculated to prevent the accrual of any right to a set-off against
rent, (ii) immediately notify METLIFE thereof in writing and of the amount of
said set-offs, and (iii) within ten (10) days after such accrual, reimburse the
tenant who shall have acquired such right to set-off or take such other steps as
shall effectively discharge such setoff and as shall assure that rents
thereafter due shall continue to be payable without set-off or deduction. Upon
METLIFE's receipt of notice of the occurrence of any default or violation by
Borrower of any of its obligations under the Leases, METLIFE shall have the
immediate right, but not the duty or obligation, without prior written notice to
Borrower or to any third party, to enter upon the Property and to take such
actions as METLIFE may deem necessary to cure the default or violation by
Borrower under the Leases. The costs incurred by METLIFE in taking any such
actions pursuant to this paragraph shall become part of the Indebtedness, shall
bear interest at the rate provided in the Note, and shall be payable by Borrower
to METLIFE on demand. METLIFE shall have no liability to Borrower or to any
third party for any actions taken by METLIFE or not taken pursuant to this
paragraph.
16. REMEDIES CUMULATIVE. Each remedy provided in this Mortgage is
-------------------
distinct and cumulative to all other rights or remedies under this Mortgage or
afforded by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER;
--------------------------------------------------------------
ASSUMPTION. METLIFE may, at its option, declare all sums secured by this
----------
Mortgage to be immediately due and payable, and METLIFE may invoke any remedies
permitted by Section 26 of this Mortgage, if title to the Property is changed
----------
without the prior written consent of METLIFE, which consent shall be at
METLIFE's sole discretion. Any transfer of any interest in the Property or in
the income therefrom, by sale, lease (except for leases to tenants in the
ordinary course of managing income property which are approved by METLIFE
pursuant to Section 15 of this Mortgage), contract, Mortgage, security deed,
----------
mortgage, deed of trust, further encumbrance or otherwise (including any such
transfers as security for additional financing of the Property), and any change
in the ownership interests in Borrower (including any change in the ownership
interests of any legal entities which comprise or control Borrower), except
transfers and changes in ownership by devise or descent, shall be considered a
change of title. METLIFE shall have the right to condition its consent to any
proposed sale or transfer described in this Section 17 upon, among other things,
-----------
METLIFE's approval of the transferee's creditworthiness and management ability
and the transferee's execution, prior to the sale or transfer, of a written
assumption agreement containing such terms as METLIFE may require, including, if
required by METLIFE, the imposition of an assumption fee of one percent (1%) of
the then outstanding balance of the Indebtedness, except in the case of a
transfer to one of Xxxxxxxx's direct or indirect subsidiaries, in which case
Borrower will be liable only for payment of all third-party costs, such as
METLIFE's attorneys' fees and recording costs. In addition to the foregoing,
Borrower shall have a one-time right to transfer the Property to a third party
approved by METLIFE, subject to Borrower's payment of
9
all third-party costs, such as METLIFE's attorneys' fees and recording costs.
Consent by METLIFE to one transfer of the Property shall not constitute consent
to subsequent transfers or waiver of the provisions of this Section 17. No
----------
transfer by Borrower shall relieve Borrower of liability for payment of the
Indebtedness. METLIFE acknowledges that is a publicly-held company and that
purchases and sales of its common stock from time to time on the NASDAQ market
and in the ordinary course of business shall not constitute a transfer of the
Property or a change in the ownership interests in Guarantor pursuant to this
Section 17. Further, offerings and sales of additional securities of Guarantor,
----------
payment of stock dividends, redemptions of stock, issuance of securities
pursuant to stock options, bonus or incentive plans or other common uses of
publicly traded securities shall not be considered to be changes in the
ownership interests in Borrower under this Section 17.
----------
18. NOTICE. Except for any notice required under applicable law to be
------
given in another manner, any and all notices, elections, demands, or requests
permitted or required to be made under this Mortgage or under the Note shall be
in writing, signed by the party giving such notice, election, demand or request,
and shall be delivered personally, by telegram, or sent by registered,
certified, or Express United States mail, postage prepaid, or by Federal Express
or similar service requiring a receipt, to the other party at the address stated
above, or to such other party and at such other address within the United States
of America as any party may designate in writing as provided herein. The date
of receipt of such notice, election, demand or request shall be the earliest of
(i) the date of actual receipt, (ii) three (3) days after the date of mailing by
registered or certified mail, (iii) one (1) day after the date of mailing by
Express Mail or the delivery (for redelivery) to Federal Express or another
similar service requiring a receipt, or (iv) the date of personal delivery (or
refusal upon presentation for delivery).
19. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
------------------------------------------------------------------
CAPTIONS. The covenants and agreements herein contained shall bind, and the
--------
rights hereunder shall inure to, the respective heirs, successors and assigns of
METLIFE and Xxxxxxxx, subject to the provisions of Section 17 hereof. If
----------
Borrower is comprised of more than one person or entity, whether as individuals,
partners, partnerships or corporations, each such person or entity shall be
jointly and severally liable for Borrower's obligations hereunder. In
exercising any rights hereunder or taking any actions provided for herein,
METLIFE may act through its employees, agents or independent contractors as
authorized by METLIFE. The captions and headings of the sections of this
Mortgage are for convenience only and are not to be used to interpret or define
the provisions hereof.
20. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right to
--------------------------------
assert any statute of limitations as a bar to the enforcement of the lien of
this Mortgage or to any action brought to enforce the Note or any other
obligation secured by this Mortgage.
21. WAIVER OF MARSHALLING. Notwithstanding the existence of any other
---------------------
security interests in the Property held by METLIFE or by any other party,
METLIFE shall have the right to determine the order in which any or all of the
Property shall be subjected to the remedies provided herein. METLIFE shall have
the right to determine the order in which any or all portions of the
Indebtedness secured hereby are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents to
this Mortgage and any party who now or hereafter acquires a security interest in
the Property and who has actual or constructive notice hereof hereby waives any
and all right to require the marshalling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein.
22. HAZARDOUS WASTE. Borrower and Guarantor (collectively "Indemnitors")
---------------
have furnished to METLIFE a Phase I Environmental Site Assessment Report dated
December 6, 1996, prepared by Environmental Technology Resources, Inc. (the
"Engineer"), related letters from the Engineer to Borrower dated January 23,
1997, and an Environmental Questionnaire dated December 17, 1996 (collectively,
the "Report"). Except as disclosed to METLIFE in the Report, Xxxxxxxx has
received no notification of any kind suggesting that the Property or any
adjacent property is or may be contaminated with any hazardous waste or
materials or is or may be required to be cleaned up in accordance with any
applicable law or regulation; and Borrower further represents and warrants that,
except as previously disclosed to METLIFE in writing, to the best of its
knowledge as of the date hereof after due and diligent inquiry, there are no
hazardous waste or materials located in, on or under the Property
10
or any adjacent property, or incorporated in any Improvements, nor has the
Property or any adjacent property ever been used as a landfill or a waste
disposal site, or a manufacturing, handling, storage, distribution or disposal
facility for hazardous waste or materials. As used herein, the term "hazardous
waste or materials" includes any substance or material defined in or designated
as hazardous or toxic wastes, hazardous or toxic material, a hazardous, toxic or
radioactive substance, or other similar term, by any federal, state or local
statute, regulation or ordinance now or hereafter in effect. Borrower shall
promptly comply with all statutes, regulations and ordinances, and with all
orders, decrees or judgments of governmental authorities or courts having
jurisdiction, relating to the use, collection, treatment, disposal, storage,
control, removal or cleanup of hazardous waste or materials in, on or under the
Property or any adjacent property, or incorporated in any Improvements, at
Borrower's expense. In the event that METLIFE at any time believes that the
Property is not free of all hazardous waste or materials or that Borrower has
violated any applicable environmental law with respect to the Property, then
immediately upon request by METLIFE, Borrower shall obtain and furnish to
METLIFE, at Borrower's sole cost and expense, an environmental audit and
inspection of the Property from an expert satisfactory to METLIFE. In the event
that Borrower fails to immediately obtain such audit or inspection, METLIFE or
its agents may perform or obtain such audit or inspection at Borrower's sole
cost and expense. METLIFE may, but is not obligated to, enter upon the Property
and take such actions and incur such costs and expenses to effect such
compliance as it deems advisable to protect its interest in the Property; and
whether or not Borrower has actual knowledge of the existence of hazardous waste
or materials on the Property or any adjacent property as of the date hereof,
Borrower shall reimburse METLIFE as provided in Section 23 below for the full
----------
amount of all costs and expenses incurred by METLIFE prior to METLIFE acquiring
title to the Property through foreclosure or acceptance of a deed in lieu of
foreclosure, in connection with such compliance activities. Neither this
provision nor any of the other Loan Documents shall operate to put METLIFE in
the position of an owner of the Property prior to any acquisition of the
Property by METLIFE. The rights granted to METLIFE herein and in the other Loan
Documents are granted solely for the protection of METLIFE's lien and security
interest covering the Property, and do not grant to METLIFE the right to control
Xxxxxxxx's actions, decisions or policies regarding hazardous waste or
materials.
23. ADVANCES, COSTS AND EXPENSES. Borrower shall pay within ten (10) days
----------------------------
after written demand from METLIFE all sums advanced by METLIFE and all costs and
expenses incurred by METLIFE in taking any actions pursuant to the Loan
Documents including attorneys' fees and disbursements, accountants' fees,
appraisal and inspection fees and the costs for title reports and guaranties,
together with interest thereon at the rate applicable under the Note after an
Event of Default from the date such costs were advanced or incurred. All such
costs and expenses incurred by METLIFE, and advances made, shall constitute
advances under this Mortgage to protect the Property and shall be secured by and
have the same priority as the lien of this Mortgage. If Borrower fails to pay
any such advances, costs and expenses and interest thereon, METLIFE may apply
any undisbursed loan proceeds to pay the same, and, without foreclosing the lien
of this Mortgage, may at its option commence an independent action against
Borrower for the recovery of the costs, expenses and/or advances, with interest,
together with costs of suit, costs of title reports and guaranty of title,
disbursements of counsel and reasonable attorneys' fees incurred therein or in
any appeal therefrom.
24. ASSIGNMENT OF LEASES AND RENTS. Borrower, for good and valuable
------------------------------
consideration, the receipt of which is hereby acknowledged, to secure the
Indebtedness, does hereby absolutely and unconditionally grant, bargain, sell,
transfer, assign, convey, set over and deliver unto METLIFE all right, title and
interest of Borrower in, to and under the Leases of the Property, whether now in
existence or hereafter entered into, and all guaranties, amendments, extensions
and renewals of said Leases and any of them, and all rents, income and profits
which may now or hereafter be or become due or owing under the Leases, and any
of them, or on account of the use of the Property.
Borrower represents, warrants, covenants and agrees with METLIFE as
follows:
(a) The sole ownership of the entire lessor's interest in the Leases is
vested in Borrower, and Borrower has not, and shall not, perform any acts or
execute any other instruments which might prevent METLIFE
11
from fully exercising its rights with respect to the Leases under any of the
terms, covenants and conditions of this Mortgage.
(b) The Leases are and shall be valid and enforceable in accordance with
their terms and have not been and shall not be altered, modified, amended,
terminated, canceled, renewed or surrendered except as approved in writing by
METLIFE. The terms and conditions of the Leases have not been and shall not be
waived in any manner whatsoever except as approved in writing by METLIFE.
(c) Borrower shall not materially alter the term or the amount of rent
payable under any Lease without prior written notice to METLIFE and METLIFE's
consent, which shall not be unreasonably withheld.
(d) To the best of Xxxxxxxx's knowledge, there are no defaults now existing
under any of the Leases and there exists no state of facts which, with the
giving of notice or lapse of time or both, would constitute a default under any
of the Leases.
(e) Borrower shall give prompt written notice to METLIFE of any notice
received by Borrower claiming that a default has occurred under any of the
Leases on the part of Borrower, together with a complete copy of any such
notice.
(f) Each of the Leases shall remain in full force and effect irrespective
of any merger of the interest of lessor and any lessee under any of the leases.
(g) Borrower will not permit any Lease to become subordinate to any lien
other than the lien of this Mortgage.
This assignment is absolute, is effective immediately, and is irrevocable
by Borrower so long as the Indebtedness remains outstanding. Notwithstanding
the foregoing, until a Notice is sent to Borrower in writing that an Event of
Default has occurred (which notice is hereafter called a "Notice"), Borrower may
receive, collect and enjoy the rents, income and profits accruing from the
Property.
Upon the occurrence of an Event of Default hereunder, METLIFE may, at its
option, after service of a Notice, receive and collect all such rents, income
and profits from the Property as they become due. METLIFE shall thereafter
continue to receive and collect all such rents, income and profits, as long as
such default or defaults shall exist, and during the pendency of any foreclosure
proceedings.
Borrower hereby irrevocably appoints METLIFE its true and lawful attorney
with power of substitution and with full power for METLIFE in its own name and
capacity or in the name and capacity of Borrower, from and after service of a
Notice, to demand, collect, receive and give complete acquittances for any and
all rents, income and profits accruing from the Property, either in its own name
or in the name of Borrower or otherwise, which METLIFE may deem necessary or
desirable in order to collect and enforce the payment of the rents, income and
profits of and from the Property. Lessees of the Property are hereby expressly
authorized and directed, following receipt of a Notice from METLIFE, to pay any
and all amounts due Borrower pursuant to the Leases to METLIFE or such nominee
as METLIFE may designate in a writing delivered to and received by such lessees,
and the lessees of the Property are expressly relieved of any and all duty,
liability or obligation to Borrower in respect of all payments so made.
Upon the occurrence of any Event of Default, from and after service of a
Notice, METLIFE is hereby vested with full power to use all measures, legal and
equitable, deemed by it to be necessary or proper to enforce this Section 24 and
----------
to collect the rents, income and profits assigned hereunder, including the right
of METLIFE or its designee, to enter upon the Property, or any part thereof, and
take possession of all or any part of the Property together with all personal
property, fixtures, documents, books, records, papers and accounts of Borrower
relating thereto, and METLIFE may exclude Borrower, its agents and servants,
wholly therefrom. Borrower hereby grants full power and authority to METLIFE to
exercise all rights, privileges and powers herein granted at any and all times
after service of a Notice, with full power to use and apply all of the rents and
other
12
income herein assigned to the payment of the costs of managing and operating the
Property and of any indebtedness or liability of Borrower to METLIFE, including
but not limited to the payment of taxes, special assessments, insurance
premiums, damage claims, the costs of maintaining, repairing, rebuilding and
restoring the improvements on the Property or of making the same rentable,
reasonable attorneys' fees incurred in connection with the enforcement of this
Mortgage, and of principal and interest payments due from Borrower to METLIFE on
the Note and this Mortgage, all in such order as METLIFE may determine. METLIFE
shall be under no obligation to exercise or prosecute any of the rights or
claims assigned to it hereunder or to perform or carry out any of the
obligations of the lessor under any of the Leases and does not assume any of the
liabilities in connection with or arising or growing out of the covenants and
agreements of Borrower in the Leases. It is further understood that the
assignment set forth in this Section 24 shall not operate to place
----------
responsibility for the control, care, management or repair of the Property, or
parts thereof, upon METLIFE, nor shall it operate to make METLIFE liable for the
performance of any of the terms and conditions of any of the Leases, or for any
waste of the Property by any lessee under any of the Leases, 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 lessee, licensee, employee or
stranger.
25. DEFAULT. The following shall each constitute an event of default
-------
("Event of Default"):
(a) Failure of or refusal by Borrower to pay any portion of the sums
secured by this Mortgage when due, and such failure or refusal shall continue
for a period of ten (10) days after written notice is given to Borrower by
METLIFE specifying such failure; or
(b) Failure of Borrower within the time required by this Mortgage to make
any payment for taxes, insurance or for reserves for such payments, or any other
payment necessary to prevent filing of or discharge of any lien, and such
failure shall continue for a period of ten (10) days after written notice is
given to Borrower by METLIFE specifying such failure; or
(c) Failure by Borrower or Guarantor to observe or perform any obligations
of Borrower or Guarantor to METLIFE on or with respect to any transactions,
debts, undertakings or agreements other than the transaction evidenced by the
Note following the giving of any required notice and the expiration of any
applicable period of grace; or
(d) Failure of Borrower to make any payment or perform any obligation under
any superior liens or encumbrances on the Property, within the time required
thereunder, or commencement of any suit or other action to foreclose any
superior liens or encumbrances; or
(e) Failure by Borrower to observe or perform any of its obligations under
any of the Leases following the giving of any required notice and the expiration
of any applicable cure period; or
(f) The Property is transferred or any agreement to transfer any part or
interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically allowed
under this Mortgage, including without limitation creating or allowing any liens
on the Property or leasing any portion of the Property; or
(g) Filing by Borrower or Guarantor of a voluntary petition in bankruptcy
or filing by Borrower or Guarantor of any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition, readjustment,
liquidation, or similar relief for itself under any present or future federal,
state or other statute, law or regulation relating to bankruptcy, insolvency or
other relief for debtors, or the seeking, consenting to, or acquiescing by
Borrower or Guarantor in the appointment of any trustee, receiver, custodian,
conservator or liquidator for Borrower or Guarantor, any part of the Property,
or any of the income or rents of the Property, or the making by Borrower or
Guarantor of any general assignment for the benefit of creditors, or the
inability of or failure by Borrower or Guarantor to pay its debts generally as
they become due, or the insolvency on a balance sheet basis
13
or business failure of Borrower or Guarantor, or the making or suffering of a
preference within the meaning of federal bankruptcy law or the making of a
fraudulent transfer under applicable federal or state law, or concealment by
Borrower or Guarantor of any of its property in fraud of creditors, or the
imposition of a lien upon any of the property of Borrower or Guarantor which is
not discharged in the manner permitted by Section 4 of this Mortgage, or the
---------
giving of notice by Xxxxxxxx or Guarantor to any governmental body of insolvency
or suspension of operations; or
(h) Filing of a petition against Borrower or Guarantor seeking any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debts, or the appointment
of any trustee, receiver, custodian, conservator or liquidator of Borrower or
Guarantor, of any part of the Property or of any of the income or rents of the
Property, unless such petition shall be dismissed within sixty (60) days after
such filing, but in any event prior to the entry of an order, judgment or decree
approving such petition; or
(i) The institution of any proceeding for the dissolution or termination of
Borrower voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or net
worth of Borrower or any of the guarantors of the indebtedness evidenced by the
Note from the assets, liabilities or net worth of Borrower or any of the
guarantors of the indebtedness evidenced by the Note previously disclosed to
METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by or on
behalf of Borrower under the Note, this Mortgage, any of the other Loan
Documents or the Certificate and Indemnity Agreement Regarding Hazardous
Substances, shall prove to have been false or misleading in any material
respect; or
(l) Failure of Borrower to observe or perform any other covenant or
condition contained in the Note and such default shall continue for thirty (30)
days after notice is given to Borrower specifying the nature of the failure. No
notice of default and no opportunity to cure shall be required if during the
prior twelve (12) months METLIFE has already sent a notice to Borrower
concerning default in performance of the same obligation; or
(m) Failure of Borrower to observe or perform any other obligation under
this Mortgage, any other Loan Document or the Certificate and Indemnity
Regarding Hazardous Substances when such observance or performance is due, and
such failure shall continue beyond the applicable cure period set forth in such
Loan Document, or if the default cannot be cured within such applicable cure
period, Borrower fails within such time to commence and pursue curative action
with reasonable diligence or fails at any time after expiration of such
applicable cure period to continue with reasonable diligence all necessary
curative actions. No notice of default and no opportunity to cure shall be
required if during the prior twelve (12) months METLIFE has already sent a
notice to Borrower concerning default in performance of the same obligation; or
(n) Xxxxxxxx's abandonment of the Property; or
(o) Any of the foregoing events occur with respect to Guarantor; or
(p) The occurrence of any default under any of the documents evidencing or
securing (i) METLIFE Loan No. 5905292, (ii) METLIFE Loan No. 5905392, (iii)
METLIFE Loan No. 5905393, (iv) METLIFE Loan No. 5904594 (v) METLIFE Loan No.
59009791, (vi) METLIFE Loan No. 5922796, (vii) METLIFE Loan No. 5922696, or
(viii) any other indebtedness with Borrower or any of the guarantors of the
Indebtedness which is now or hereafter owed to METLIFE.
26. RIGHTS AND REMEDIES ON DEFAULT.
------------------------------
14
26.1 Remedies. Upon the occurrence of any Event of Default and at any
--------
time thereafter, METLIFE may exercise any one or more of the following rights
and remedies:
(a) METLIFE may declare all sums secured by this Mortgage immediately due
and payable, including any prepayment premium which Borrower would be required
to pay.
(b) METLIFE shall have the right to foreclose this Mortgage in accordance
with applicable law.
(c) In the event of any foreclosure, to the extent permitted by applicable
law, METLIFE will be entitled to a judgment which will provide that if the
foreclosure sale proceeds are insufficient to satisfy the judgment, execution
may issue for any amount by which the unpaid balance of the obligations secured
by this Mortgage exceeds the net sale proceeds payable to METLIFE.
(d) With respect to all or any part of the Property that constitutes
personalty, METLIFE shall have all rights and remedies of secured party under
the Uniform Commercial Code.
(e) METLIFE shall have the right to have a receiver appointed to take
possession of any or all of the Property, with the power to protect and preserve
the Property, to operate the Property preceding foreclosure or sale, to collect
all the rents and revenues from the Property and apply the proceeds, over and
above cost of the receivership, against the sums due under this Mortgage, and to
exercise all of the rights with respect to the Property described in Section 24
----------
above. The receiver may serve without bond if permitted by law. METLIFE's
right to the appointment of a receiver shall exist whether or not apparent value
of the Property exceeds the sums due under this Mortgage by a substantial
amount. Employment by METLIFE shall not disqualify a person from serving as a
receiver.
(f) In the event Borrower remains in possession of the Property after the
Property is sold as provided above or METLIFE otherwise becomes entitled to
possession of the Property upon default of Borrower, Borrower shall become a
tenant at will of METLIFE or the purchaser of the Property and shall pay a
reasonable rental for use of the Property while in Xxxxxxxx's possession.
(g) METLIFE shall have any other right or remedy provided in this Mortgage,
the Note, or any other Loan Document or deed delivered by Borrower in connection
therewith, or available at law, in equity or otherwise.
(h) METLIFE shall have all the rights and remedies set forth in Sections 23
-----------
and 24.
------
26.2 Sale of the Property. In exercising its rights and remedies,
--------------------
including, without limitation, the STATUTORY POWER OF SALE, METLIFE may, at
METLIFE's sole discretion, cause all or any part of the Property to be sold as a
whole or in parcels, and certain portions of the Property may be sold without
selling other portions. METLIFE may bid at any public sale on all or any portion
of the Property.
26.3 Notice of Sale. METLIFE shall give Borrower reasonable notice of the
--------------
time and place of any public sale of any personal property or of the time after
which any private sale or other intended disposition of the personal property is
to be made. Reasonable notice shall mean notice given in accordance with
applicable law, including notices given in the manner and at the times required
for notices in a nonjudicial foreclosure.
26.4 Waiver; Election of Remedies. A waiver by either party of a breach
----------------------------
of a provision of this Instrument shall not constitute a waiver of or prejudice
the party's right otherwise to demand strict compliance with that provision or
any other provision. Election by METLIFE to pursue any remedy shall not exclude
pursuit of any other remedy, and all remedies of METLIFE under this Instrument
are cumulative and not exclusive. An election
15
to make expenditures or take action to perform an obligation of Borrower shall
not affect METLIFE's right to declare a default and exercise its remedies under
this Instrument.
27. SATISFACTION OF MORTGAGE. Upon payment of all sums secured by this
------------------------
Mortgage, METLIFE shall execute a satisfaction of this Mortgage and shall
surrender this Mortgage and all notes evidencing Indebtedness secured by this
Mortgage to the person or persons legally entitled thereto. Such person or
persons shall pay METLIFE's costs incurred in connection with satisfaction of
this Mortgage.
28. FUTURE ADVANCES. Upon request of Xxxxxxxx, METLIFE, at METLIFE's
---------------
option so long as this Mortgage secures Indebtedness held by METLIFE, may make
Future Advances to Borrower. Such Future Advances, with interest thereon, shall
be secured by this Mortgage when evidenced by promissory notes stating that said
notes are secured hereby.
29. IMPOSITION OF TAX BY STATE.
--------------------------
(a) State Taxes Covered. The following constitute state taxes to which
-------------------
this Section applies:
(1) A specific tax upon mortgages or upon all or any part of the
indebtedness secured by a mortgage.
(2) A specific tax on a grantor which the taxpayer is authorized or
required to deduct from payments on the indebtedness secured by a mortgage.
(3) A tax on a mortgage chargeable against the grantee or the holder of the
note secured.
(4) A specific tax on all or any portion of the indebtedness or on payments
of principal and interest made by a grantor.
(b) Remedies. If any state tax to which this Section applies is enacted
--------
subsequent to the date of this Mortgage, this shall have the same effect as an
Event of Default, and METLIFE may exercise any or all of the remedies available
to it unless the following conditions are met:
(1) Borrower may lawfully pay the tax or charge imposed by state tax, and
(2) Borrower pays the tax or charge within thirty (30) days after notice
from METLIFE that the tax law has been enacted.
30. ATTORNEYS' FEES. In the event suit or action is instituted to enforce
---------------
or interpret any of the terms of this Mortgage (including without limitation
efforts to modify or vacate any automatic stay or injunction), the prevailing
party shall be entitled to recover all expenses reasonably incurred at, before
and after trial and on appeal whether or not taxable as costs, or in any
bankruptcy proceeding including, without limitation, attorneys' fees, witness
fees (expert and otherwise), deposition costs, copying charges and other
expenses. Whether or not any court action is involved, all reasonable expenses,
including but not limited to the costs of searching records, obtaining title
reports, surveyor reports, and title insurance, incurred by METLIFE that are
necessary at any time in METLIFE's opinion for the protection of its interest or
enforcement of its rights shall become a part of the Indebtedness payable on
demand and shall bear interest from the date of expenditure until repaid at the
interest rate as provided in the Note. The term "attorneys' fees" as used in the
Loan Documents shall be deemed to mean such fees as are reasonable and are
actually incurred.
31. GOVERNING LAW; SEVERABILITY. This Mortgage shall be governed by the
---------------------------
law of the Commonwealth of Massachusetts applicable to contracts made and to be
performed therein (excluding choice-of-law principles). In the event that any
provision or clause of this Mortgage or the Note conflicts with applicable law,
16
such conflict shall not affect other provisions of this Mortgage or the Note
which can be given effect without the conflicting provision, and to this end the
provisions of this Mortgage and the Note are declared to be severable.
32. TIME OF ESSENCE. Time is of the essence of this Mortgage.
---------------
33. CHANGES IN WRITING. This Mortgage and any of its terms may only be
------------------
changed, waived, discharged or terminated by an deed in writing signed by the
party against which enforcement of the change, waiver, discharge or termination
is sought. Any agreement subsequently made by Borrower or METLIFE relating to
this Mortgage shall be superior to the rights of the holder of any intervening
lien or encumbrance.
34. NO OFFSET. Borrower's obligation to make payments and perform all
---------
obligations, covenants and warranties under this Mortgage and under the Note
shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation any setoff, counterclaim, abatement,
suspension, recoupment, deduction, defense or other right that Borrower or any
guarantor may have or claim against METLIFE or any entity participating in
making the loan secured hereby. The foregoing provisions of this section,
however, do not constitute a waiver of any claim or demand which Borrower or any
guarantor may have in damages or otherwise against METLIFE or any other person,
or preclude Borrower from maintaining a separate action thereon; provided,
however, that Borrower waives any right it may have at law or in equity to
consolidate such separate action with any action or proceeding brought by
METLIFE.
35. AUTHORIZATION TO INSERT. [INTENTIONALLY DELETED.]
-----------------------
36. MAXIMUM INTEREST CHARGES. Notwithstanding anything contained herein
------------------------
or in any of the Loan Documents to the contrary, in no event shall METLIFE be
entitled to receive interest on the loan secured by this Mortgage (the "Loan")
in amounts which, when added to all of the other interest charged, paid to or
received by METLIFE on the Loan, causes the rate of interest on the Loan to
exceed the highest lawful rate. Borrower and METLIFE intend to comply with the
applicable law governing the highest lawful rate and the maximum amount of
interest payable on or in connection with the Loan. If the applicable law is
ever judicially interpreted so as to render usurious any amount called for under
the Loan Documents, or contracted for, charged, taken, reserved or received with
respect to the Loan, or if acceleration of the final maturity date of the Loan
or if any prepayment by Borrower results in Borrower having paid or demand
having been made on Borrower to pay, any interest in excess of the amount
permitted by applicable law, then all excess amounts theretofore collected by
METLIFE shall be credited on the principal balance of the Note (or, if the Note
has been or would thereby be paid in full, such excess amounts shall be refunded
to Borrower), and the provisions of the Note, this Mortgage and any demand on
Borrower shall immediately be deemed reformed and the amounts thereafter
collectible thereunder and hereunder shall be reduced, without the necessity of
the execution of any new document, so as to comply with the applicable law, but
so as to permit the recovery of the fullest amount otherwise called for
thereunder and hereunder. The right to accelerate the final maturity date of
the Loan does not include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and METLIFE does not intend
to collect any unearned interest in the event of acceleration. All sums paid or
agreed to be paid to METLIFE for the use, forbearance or detention of the Loan
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread through the full term of the Loan until payment in full so
that the rate or amount of interest on account of the Loan does not exceed the
applicable usury ceiling. By execution of this Mortgage, Xxxxxxxx acknowledges
that it believes the Loan to be nonusurious and agrees that if, at any time,
Borrower should have reason to believe that the Loan is in fact usurious, it
will give METLIFE written notice of its belief and the reasons why Xxxxxxxx
believes the Loan to be usurious, and Xxxxxxxx agrees that METLIFE shall have
ninety (90) days following its receipt of such written notice in which to make
appropriate refund or other adjustment in order to correct such condition if it
in fact exists.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO
OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN
17
THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF
THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
BY EXECUTION OF THIS MORTGAGE, XXXXXXXX EXPRESSLY: ACKNOWLEDGES THE RIGHT
TO ACCELERATE THE INDEBTEDNESS EVIDENCED BY THE NOTE AND THE POWER GIVEN
HEREIN TO METLIFE TO SELL THE PROPERTY BY NONJUDICIAL FORECLOSURE UPON
DEFAULT BY BORROWER WITHOUT ANY JUDICIAL HEARING AND WITHOUT ANY NOTICE
OTHER THAN SUCH NOTICE AS IS SPECIFICALLY REQUIRED TO BE GIVEN UNDER THE
NOTE OR PROVISIONS OF THIS MORTGAGE OR BY LAW; ACKNOWLEDGES THAT THE
UNDERSIGNED HAS READ THIS MORTGAGE AND THAT ANY AND ALL QUESTIONS REGARDING
THE LEGAL EFFECT OF THIS MORTGAGE AND ITS PROVISIONS HAVE BEEN EXPLAINED
FULLY TO BORROWER. XXXXXXXX HAS CONSULTED WITH ITS COUNSEL PRIOR TO
EXECUTING THIS MORTGAGE AND ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID
RIGHTS OF BORROWER HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY
THE UNDERSIGNED, ON BEHALF OF XXXXXXXX, AS PART OF A BARGAINED-FOR LOAN
TRANSACTION AND THAT THIS MORTGAGE IS VALID AND ENFORCEABLE BY METLIFE
AGAINST BORROWER IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Mortgage or has caused
the same to be executed by its representatives thereunto duly authorized.
BORROWER:
W.E. XXXXXXX CO., INC.,
a Georgia corporation
By:_________________________________________
Name:____________________________________________
[Vice] President
By:_______________________________________________
Name:____________________________________________
Vice President/ Treasurer
[SEAL]
Exhibits:
--------
Exhibit A - Description of Property
Schedule 1 - Description of Debtor and Secured Party
Schedule 2 - Permitted Exceptions
18
STATE OF GEORGIA )
) ss.
COUNTY OF XXXXXX )
ACKNOWLEDGEMENT
---------------
On this _____ day of January 1997, before me, a Notary Public in and
for the State of Georgia, personally appeared ________________________________
and ___________________________________, personally known to me (or proved to me
on the basis of satisfactory evidence) to be the persons who executed this
instrument, on oath stated that they were authorized to execute the instrument,
and acknowledged it as the [Vice] President and Vice President/Treasurer,
respectively, of W.E. Xxxxxxx Co., Inc., to be the free and voluntary act and
deed of said corporation for the uses and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
______________________________________
NOTARY PUBLIC in and for the
State of_______________,
residing at __________________________
My appointment expires________________
19
Loan No: 5922696-001
EXHIBIT A
(000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx)
Legal Description:
-----------------
All that certain parcel of land with the buildings thereon situated at 000-
000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx, all more
particularly described in Exhibit "A" attached hereto and made a part
hereof.
SCHEDULE 1
----------
Loan No. 5922696-001
Part 1
------
Description of "Debtor" and "Secured Party"
-------------------------------------------
A. Debtor:
------
1. Name and Identity or Corporate Structure: W.E. Xxxxxxx Co., Inc., a Georgia
corporation
2. Debtor has been using or operating under such name and identity or
corporate structure, without change, since:
3. The principal place of business and chief executive office of Debtor are
located at:
0000 Xxxxxx Xxxxx, X.X.
Atlanta, Georgia 30324
Attention: Xxxx X. Xxxx, III, President
B. Secured Party: MetLife Capital Financial Corporation, a Delaware
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corporation.
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Part 2
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(Notice Mailing Addresses of "Debtor" and "Secured Party")
A. The mailing address of Debtor is:
0000 Xxxxxx Xxxxx, X.X.
Atlanta, Georgia 30324
Attention: Xxxx X. Xxxx, III, President
B. The mailing address of Secured Party is:
MetLife Capital Financial Corporation
Real Estate Department
00000 X.X. 4th Street, Suite 000
Xxxxxxxx, Xxxxxxxxxx 00000
Loan No: Loan No.: 5922696-001
SCHEDULE 2
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(000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx)
Permitted Exceptions:
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1. Title to and rights of the public and others entitled thereto in and
to those portions of the insured premises lying within the bounds of South Road
and adjacent streets and ways.
2. Taking by the Town of Bedford for South Road (relocated and declared a
public highway) as noted on a document recorded at the Middlesex South District
Registry of Deeds in Book 7006, Page 5.
3. Rights and easements granted by Xxxxx X. Xxxxx to the Town of Bedford
dated October 29, 1952, and recorded with said Deeds in Book 7994, Page 302.
4. Easement by the Town of Bedford for sewer assessment on South Road as
noted on a document recorded at said Registry on May 22, 1959, in Book 9379,
Page 391.
5. Rights, easements, restrictions and covenants contained in Deed from
Boston and Main Railroad to Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx as Trustee
of The Xxxxxxxx Realty Trust dated November 1, 1962, and recorded with Middlesex
South District Registry of Deeds in Book 10158, Page 106.
6. Rights of upper and lower riparian owners in and to the waters of the
Elm Brook and the natural flow thereof.
7. Taking by the County Commissioners for the County of Middlesex for the
relocation of Lincoln and South Streets dated September 20, 1946, and recorded
with said Deeds in Book 7006, Page 5.
8. Order of Conditions from the Bedford Conservation Commission to W.E.
Xxxxxxx, Inc., dated June 6, 1990, and recorded at the Middlesex South District
Registry of Deeds in Book 20656, Page 335. Revised by Xxxxxxxx Order of
Conditions dated January 2, 1990, and recorded at said Registry in Book 20975,
Page 513.
9. Order of Conditions from The Bedford Conservation Commission to W.E.
Xxxxxxx Co., Inc., dated January 4, 1995, and recorded at the Middlesex South
District Registry of Deeds in Book 25128, Page 346.
Loan No. 5922696-001
SECURITY AGREEMENT
(000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx)
Debtor:
Name: W.E. Xxxxxxx Co., Inc., a Georgia corporation
Address: 000 Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Secured Party:
Name: MetLife Capital Financial Corporation,
a Delaware corporation
Address: Real Estate Department
00000 X.X. 4th Street, Suite 000
Xxxxxxxx, Xxxxxxxxxx 00000
Debtor, for valuable consideration, hereby grants to Secured Party a
security interest in the property listed on Exhibit B hereto, and any and all
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additions and substitutions thereto (the "Collateral") (i) to secure payment of
the indebtedness evidenced by that certain promissory note of even date
herewith, payable to the order of Secured Party, in the principal amount of Two
Million Twenty-Five Thousand Dollars ($2,025,000) (the "Note") and (ii) to
secure all other obligations of Debtor arising under all documents securing or
executed in connection with the Note, except any Certificate and Indemnity
Agreement Regarding Hazardous Substances or Environmental Indemnity Agreement
(the "Loan Documents").
Debtor expressly warrants and covenants:
1. Except for the security interest granted hereby, Debtor is, or to the extent
that this Security Agreement states that the Collateral is to be acquired after
the date hereof, will be, the owner of the Collateral free from any lien,
security interest or encumbrance. Debtor shall defend the Collateral against
all claims and demands of all persons at any time claiming the same or any
interest therein.
2. The Collateral is used or bought primarily for use in the business of
Debtor.
3. Xxxxxx's business address is as stated above. The Collateral is located at
or on or is used or owned for or in connection with the real estate situated in
Bedford, Middlesex County, Massachusetts, commonly known as 000 Xxxxx Xxxx and
more particularly described on the attached Exhibit A herein incorporated by
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this reference (the "Property").
4. Debtor shall notify Secured Party of any change in the location of the
Collateral or any change in Debtor's principal place of business.
5. Debtor shall pay all taxes and assessments of every nature which may be
levied or assessed against the Collateral.
6. Debtor shall not permit or allow any lien, security interest or encumbrance
whatsoever upon the Collateral and shall not permit the Collateral to be
attached or replevied.
7. The Collateral is in good condition and Debtor shall keep the in good
condition and from time to time, forthwith, replace and repair all such parts of
the Collateral as may be broken, worn out, or damaged without allowing any lien
to be created upon the Collateral on account of such replacement or repairs.
Secured Party may examine and inspect the Collateral at any time, wherever
located.
8. Debtor will not use the Collateral in violation of any applicable statutes,
regulations or ordinances.
9. Notwithstanding anything else contained herein to the contrary, Secured
Party has been advised that certain personal property will be leased to Debtor,
and Secured Party's interest therein shall be subordinate to lessor's interest
therein.
Until default Debtor may have possession of the Collateral and use it in
any lawful manner, and upon default Secured Party shall have the immediate right
to the possession of the Collateral.
Debtor shall be in default under this Security Agreement upon the happening
of any of the following events (an "Event of Default"):
(a) default in the payment or performance of any obligation, covenant or
liability contained or referred to in this Security Agreement and such
default shall continue for a period of thirty (30) days after written
notice is given to Debtor by Secured Party specifying such default; or
(b) the occurrence of an Event of Default as defined under the Note, any
instrument securing the Note, including the Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing or securing the Note (the
"Mortgage"), any other Loan Document, or the Certificate and Indemnity
Agreement Regarding Hazardous Substances or the Environmental Indemnity
Agreement; or
(c) loss, theft, damage or destruction to or of any of the Collateral which
shall materially and substantially diminish the aggregate value of the
Collateral, the sale or encumbrance of any of the Collateral, or the making
of any levy, seizure or attachment on or to the Collateral.
Upon an Event of Default and at any time thereafter, Secured Party may
declare the Note immediately due and payable and shall have the remedies of a
secured party under the Articles of the Massachusetts Uniform Commercial Code.
Secured Party may require Debtor to assemble the Collateral and deliver or make
it available to Secured Party at a place to be designated by Secured Party which
is reasonably convenient to both parties.
Secured Party may require that the Collateral be sold at a public sale at
the same time and place as the sale of the Property, or Secured Party may sell
the Collateral at one or more other public or private sales in accordance with
the Massachusetts Uniform Commercial Code. The Collateral shall not be required
to be exhibited, presented or displayed at any sale. In the event that the
Collateral is sold under the Mortgage, Secured Party hereby assigns its security
interest in the Collateral to the trustee or Sheriff selling the Property under
the Mortgage. Xxxxxx agrees that a sale of the Collateral under the Mortgage
and the notices required under the laws of Massachusetts for the sale of real
property are commercially reasonable and adequate under the Massachusetts
Uniform Commercial Code.
Xxxxxx agrees to pay to Secured Party in addition to the indebtedness
secured hereby, all expenses of retaking, holding, preparing for sale and
selling incurred by Secured Party in connection with realization on the
2
Collateral including reasonable attorneys' fees and costs. In addition, in the
event suit or action is instituted to enforce or interpret this Agreement
(including without limitation efforts to modify or vacate any automatic stay or
injunction), the prevailing party shall be entitled to recover all expenses
reasonably incurred at, before or after trial and on appeal whether or not
taxable as costs, or in any bankruptcy proceeding, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
No waiver by Secured Party of an Event of Default shall operate as a waiver
of any other default or of the same default on a future occasion. The taking of
this Security Agreement shall not waive or impair any other security said
Secured Party may have or hereafter acquire for the payment of the Note nor
shall the taking of any such additional security waive or impair this Security
Agreement. Secured Party may resort to any security it may have in the order it
may deem proper.
All rights of Secured Party hereunder shall inure to the benefit of its
successors and assigns. All promises and duties of Debtor shall bind its
successors and assigns.
Any and all notices, elections, demands, or requests permitted or required
to be made under this Security Agreement shall be in writing, signed by the
party giving such notice, election, demand or request, and shall be delivered
personally, by telegram, or sent by registered, certified, or Express United
States mail, postage prepaid, or by Federal Express or similar service requiring
a receipt, to the other party at the address set forth above or to such other
party and at such other address within the United States of America as any party
may designate as provided herein. The date of receipt of such notice, election,
demand or request shall be the earliest of (i) the date of actual receipt, (ii)
three (3) days after the date of mailing by registered or certified mail, (iii)
one (1) day after the date of mailing by Express Mail, or the delivery (for
redelivery) to Federal Express or another similar service requiring a receipt,
or (iv) the date of personal delivery (or refusal upon presentation for
delivery).
This Security Agreement shall be governed and construed in accordance with
the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Xxxxxx has executed this Security Agreement as of
January 29, 1997.
DEBTOR:
W.E. XXXXXXX CO., INC.,
a Georgia corporation
By:________________________________________
Name: ____________________________________,
[Vice] President
By:________________________________________
Name: _____________________________________,
Vice President/Treasurer
[SEAL]
Exhibits:
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Exhibit A - Legal Description
Exhibit B - Personal Property
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Loan No: 5922696-001
EXHIBIT A
(000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx)
Legal Description:
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All that certain parcel of land with the buildings thereon situated at 000-
000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxxx, all more
particularly described in Exhibit "A" attached hereto and made a part
hereof.
EXHIBIT B
(000 Xxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx)
Secured Party: MetLife Capital Financial Corporation
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Debtor: W.E. Xxxxxxx Co., Inc.
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Loan No.: 5922696-001
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All right, title, and interest of Debtor in:
1. All buildings, structures, improvements, parking areas,
landscaping, fixtures and articles of property now or hereafter attached to, or
used or adapted for use in the operation of the real estate (herein the
"Premises") described in Exhibit "A" attached to the financing statement or
security agreement with respect to which this Exhibit "B" is attached, including
but without being limited to, all heating, air conditioning, and incinerating
apparatus and equipment; all boilers, engines, motors, dynamos, generating
equipment, piping and plumbing fixtures, water heaters, ranges, cooking
apparatus and mechanical kitchen equipment, refrigerators, freezers, cooling,
ventilating, sprinkling and vacuum cleaning systems, fire extinguishing
apparatus, gas and electric fixtures, carpeting, floor coverings, underpadding,
elevators, escalators, partitions, mantels, built-in mirrors, window shades,
blinds, draperies, screens, storm sash, awnings, signs, furnishings of public
spaces, halls and lobbies, and shrubbery and plants, and including also all
interest of any owner of the Premises in any of such items hereafter at any time
acquired under conditional sale contract, chattel mortgage or other title
retaining or security instrument, all of which property mentioned in this
paragraph 1 shall be referred to as the "Improvements" and shall be deemed part
of the realty and not severable wholly or in part without material injury to the
freehold of the Premises.
2. All compensation, awards, damages, rights of action and proceeds,
including interest thereon and/or the proceeds of any policies of insurance
therefor, arising out of or relating to a (a) taking or damaging of the Premises
or Improvements thereon by reason of any public or private improvement,
condemnation proceeding (including change of grade), sale or transfer in lieu of
condemnation, or fire, earthquake or other casualty, or (b) any injury to or
decrease in the value of the Premises or the Improvements for any reason
whatsoever.
3. Return premiums or other payments upon any insurance any time
provided for the benefit of or naming Secured Party, and refunds or rebates of
taxes or assessments on the Premises.
4. All the right, title and interest of Debtor in and under all
written and oral leases and rental agreements (including extensions, renewals
and subleases; all of the foregoing shall be referred to collectively herein as
the "Leases") now or hereafter affecting the Premises including, without
limitation, all rents, issues, profits and other revenues and income therefrom
and from the renting, leasing or bailment of Improvements and equipment, all
guaranties of tenants' performance under the Leases, and all rights and claims
of any kind that Debtor may have against any tenant under the Leases or in
connection with the termination or rejection of the Leases in a bankruptcy or
insolvency proceeding.
5. Plans, specifications, contracts and agreements relating to the
design or construction of the Improvements; Debtor's rights under any payment,
performance, or other bond in connection with the design or construction of the
Improvements; all landscaping and construction materials, supplies, and
equipment used or to be used or consumed in connection with construction of the
Improvements, whether stored on the Premises or at some other location; and
contracts, agreements, and purchase orders with contractors, subcontractors,
suppliers, and materialmen incidental to the design or construction of the
Improvements.
6. All contracts (excluding contracts relating to the printing
operations of Debtor), rights, claims or causes of action pertaining to or
affecting the Premises or the Improvements, including, without limitation, all
options or contracts to acquire other property for use in connection with
operation or development of the Premises or Improvements, management contracts,
service or supply contracts, permits, licenses, franchises and certificates, and
all commitments or agreements, now or hereafter in existence, intended by the
obligor thereof to provide Debtor with proceeds to satisfy the loan evidenced
hereby or improve the Premises or Improvements, and the right to receive all
proceeds due under such commitments or agreements including refundable deposits
and fees.
7. All books, records, surveys, reports and other documents related
to the Premises, the Improvements, the Leases, or other items of collateral
described herein.
8. All additions, accessions, replacements, substitutions, proceeds
and products of the real and personal property, tangible and intangible,
described herein.
All of the foregoing described collateral is exclusive of any
equipment, furniture, furnishings or trade fixtures owned and supplied by Debtor
or any tenant of the Premises.
