MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
Dated as of September 29, 1998
by
__________________________
as Mortgagor
to and for the benefit of
SALOMON BROTHERS REALTY CORP.
as Mortgagee
RETURN TO:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
TABLE OF CONTENTS
Page
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
2. Warranty of Title.. . . . . . . . . . . . . . . . . . . . . . . . . . .4
3. Insurance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
4. Payment of Taxes and Other Charges. . . . . . . . . . . . . . . . . . 10
5. Tax and Insurance Escrow Fund.. . . . . . . . . . . . . . . . . . . . 10
6. Replacement Reserve Fund. . . . . . . . . . . . . . . . . . . . . . . 11
7. Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
8. Representations Concerning Loan.. . . . . . . . . . . . . . . . . . . 13
9. Single Purpose Entity/Separateness. . . . . . . . . . . . . . . . . . 14
10. Maintenance of Mortgaged Property.. . . . . . . . . . . . . . . . . . 16
11. Use of Mortgaged Property.. . . . . . . . . . . . . . . . . . . . . . 17
12. Transfer or Encumbrance of the Mortgaged Property.. . . . . . . . . . 17
13. Estoppel Certificates and No Default Affidavits.. . . . . . . . . . . 20
14. Taxes on Security; Documentary Stamps; Intangibles Tax. . . . . . . . 21
15. No Credits on Account of the Debt.. . . . . . . . . . . . . . . . . . 22
16. Controlling Agreement.. . . . . . . . . . . . . . . . . . . . . . . . 22
17. Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . 22
18. Performance of Other Agreements.. . . . . . . . . . . . . . . . . . . 24
19. Further Acts, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . 24
20. Recording of Mortgage, Etc. . . . . . . . . . . . . . . . . . . . . . 26
21. Reporting Requirements. . . . . . . . . . . . . . . . . . . . . . . . 26
22. Events of Default.. . . . . . . . . . . . . . . . . . . . . . . . . . 26
23. Notice and Cure.. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
24. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
25. Security Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . 34
26. Right of Entry. . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
27. Actions and Proceedings.. . . . . . . . . . . . . . . . . . . . . . . 35
28. Waiver of Setoff and Counterclaim, Marshalling, Statute of Limitations,
Automatic or Supplemental Stay, Etc.. . . . . . . . . . . . . . . . . 35
29. Contest of Certain Claims.. . . . . . . . . . . . . . . . . . . . . . 36
30. Recovery of Sums Required to Be Paid. . . . . . . . . . . . . . . . . 37
31. Handicapped Access. . . . . . . . . . . . . . . . . . . . . . . . . . 37
32. Indemnification.. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
33. Reserved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
34. Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
35. Authority.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
36. ERISA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
37. Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . 39
38. Remedies of Mortgagor.. . . . . . . . . . . . . . . . . . . . . . . . 39
39. Sole Discretion of Mortgagee. . . . . . . . . . . . . . . . . . . . . 39
40. Non-Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
41. Liability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
42. Inapplicable Provisions.. . . . . . . . . . . . . . . . . . . . . . . 40
43. Headings, Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
44. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
45. Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
46. Homestead.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
47. Assignments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
48. Survival of Obligations; Survival of Warranties and Representations.. 41
49. Covenants Running with the Land.. . . . . . . . . . . . . . . . . . . 41
50. Governing Law; Jurisdiction.. . . . . . . . . . . . . . . . . . . . . 41
51. Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
52. No Third-Party Beneficiaries. . . . . . . . . . . . . . . . . . . . . 42
53. Relationship of Parties.. . . . . . . . . . . . . . . . . . . . . . . 42
54. Exculpation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
55. Investigations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
56. Assignment of Leases and Rents. . . . . . . . . . . . . . . . . . . . 42
57. WAIVER OF RIGHT TO TRIAL BY JURY. . . . . . . . . . . . . . . . . . . 42
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (as the same may be amended, restated, extended, supplemented or
otherwise modified from time to time, the "Mortgage"), is made as of the 29th
day of September 1998, by ____________________, a _______________________,
having its principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 ("Mortgagor"), to and for the benefit of Salomon Brothers
Realty Corp., a New York corporation, having its principal place of business at
Seven Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Mortgagee"), the mortgagee
hereunder.
W I T N E S S E T H:
To secure the payment of an indebtedness in the principal sum of
SIXTY-FIVE MILLION, NINE HUNDRED AND NO/100 DOLLARS ($65,900,000),(1) lawful
money of the United States of America, to be paid with interest according to a
certain note dated the date hereof made on a joint and several basis by
Mortgagor and _______________(2) to Mortgagee (the note together with all
extensions, renewals or modifications thereof being hereinafter collectively
called the "Note") and all other sums due hereunder, or otherwise due under the
Loan Documents (as defined in the Note) (said indebtedness, interest and all
sums due hereunder and under the Note and any other Loan Documents being
collectively called the "Debt"), and all of the agreements, covenants,
conditions, warranties, representations and other obligations (other than to
repay the Debt) made or undertaken by Mortgagor or any other person or entity
to Mortgagee or others as set forth in the Loan Documents (the "Obligations"),
Mortgagor has mortgaged, given, granted, bargained, sold, aliened, enfeoffed,
conveyed, confirmed, pledged, assigned, and hypothecated and by these presents
does hereby mortgage, give, grant, bargain, sell, alien, enfeoff, convey,
confirm, pledge, assign and hypothecate unto Mortgagee the real property
described in Exhibit A attached hereto (the "Premises") and the buildings,
structures, fixtures, additions, enlargements, extensions, modifications,
repairs, replacements and improvements now or hereafter located thereon (the
"Improvements");
TOGETHER WITH: all right, title, interest and estate of Mortgagor
now owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements together with the
following property, rights, interests and estates being hereinafter described
are collectively referred to herein as the "Mortgaged Property"):
(a) all easements, rights-of-way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or pertaining to the
Premises and the Improvements and the reversion and reversions, remainder and
remainders,
__________________________
(1) To be modified in states with mortgage recording taxes.
(2) To be filled in.
and all land lying in the bed of any street, road or avenue, opened or
proposed, in front of or adjoining the Premises, to the center line thereof and
all the estates, rights, titles, interests, dower and rights of dower, curtesy
and rights of curtesy, property, possession, claim and demand whatsoever, both
at law and in equity, of Mortgagor of, in and to the Premises and the
Improvements and every part and parcel thereof, with the appurtenances thereto;
(b) all machinery, equipment, fixtures (including but not limited to
all heating, air conditioning, plumbing, lighting, communications and elevator
fixtures) and other property of every kind and nature, whether tangible or
intangible, whatsoever owned by Mortgagor, or in which Mortgagor has or shall
have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, and usable in connection with the present
or future operation and occupancy of the Premises and the Improvements and all
building equipment, materials and supplies of any nature whatsoever owned by
Mortgagor, or in which Mortgagor has or shall have an interest, now or
hereafter located upon the Premises and the Improvements, or appurtenant
thereto, or usable in connection with the present or future operation,
enjoyment and occupancy of the Premises and the Improvements (hereinafter
collectively called the "Equipment"), including the proceeds of any sale or
transfer of the foregoing, and the right, title and interest of Mortgagor in
and to any of the Equipment which may be subject to any security interests, as
defined in the Uniform Commercial Code, as adopted and enacted by the state or
states where any of the Mortgaged Property is located (the "Uniform Commercial
Code") superior in lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Mortgaged Property,
whether from the exercise of the right of eminent domain or condemnation
(including but not limited to any transfer made in lieu of or in anticipation
of the exercise of said rights), or for a change of grade, or for any other
injury to or decrease in the value of the Mortgaged Property;
(d) all leases and subleases (including, without limitation, all
guarantees thereof) and other agreements or arrangements heretofore or
hereafter entered into affecting the use, enjoyment or occupancy of, or the
conduct of any activity upon or in, the Premises and the Improvements,
including any extensions, renewals, modifications or amendments thereof (the
"Leases") and all rents, rent equivalents, moneys payable as damages or in lieu
of rent or rent equivalents, royalties (including, without limitation, all oil
and gas or other mineral royalties and bonuses), income, receivables, receipts,
revenues, deposits (including, without limitation, security, utility and other
deposits), accounts, cash, issues, profits, charges for services rendered, and
other consideration of whatever form or nature received by or paid to or for
the account of or benefit of Mortgagor or its agents or employees from any and
all sources arising from or attributable to the Premises and the Improvements
(the "Rents"), together with all proceeds from the sale or other disposition of
the Leases and the right to receive and apply the Rents to the payment of the
Debt;
(e) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without limitation, the
right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Mortgaged Property or any
part thereof;
(f) the right, in the name and on behalf of Mortgagor, to appear in
and defend any action or proceeding brought with respect to the Mortgaged
Property and to commence any action or proceeding to protect the interest of
the Mortgagee in the Mortgaged Property or any part thereof;
(g) all accounts, escrows, reserves, documents, instruments, chattel
paper, claims, deposits and general intangibles, as the foregoing terms are
defined in the Uniform Commercial Code, and all franchises, trade names,
trademarks, symbols, service marks, books, records, plans, specifications,
designs, drawings, permits, consents, licenses, management agreements, contract
rights (including, without limitation, any contract with any architect or
engineer or with any other provider of goods or services for or in connection
with any construction, repair, or other work upon the Mortgaged Property),
approvals, actions, refunds or real estate taxes and assessments (and any other
governmental impositions related to the Mortgaged Property), and causes of
action that now or hereafter relate to, are derived from or are used in
connection with the Mortgaged Property, or the use, operation, maintenance,
occupancy or enjoyment thereof or the conduct of any business or activities
thereon;
(h) any and all proceeds and products of any of the foregoing and
any and all other security and collateral of any nature whatsoever, now or
hereafter given for the repayment of the Debt and the performance of
Mortgagor's obligations under the Loan Documents, including (without
limitation) the Tax and Insurance Escrow Fund (hereafter defined), the
Replacement Reserve Fund (hereafter defined), the Deposit Account, the
Collection Account and the Expense Account (each as defined in the Cash
Management, Collateral and Security Agreement (hereafter defined)) and any
other escrows set forth in the Loan Documents;
(i) all accounts receivable, contract rights, interests, estate or
other claims, both in law and in equity, which Mortgagor now has or may
hereafter acquire in the Mortgaged Property or any part thereof; and
(j) all rights which Mortgagor now has or may hereafter acquire, to
be indemnified and/or held harmless from any liability, loss, damage, cost or
expense (including, without limitation, attorneys' fees and disbursements)
relating to the Mortgaged Property or any part thereof.
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the use and benefit of Mortgagee, and the successors and
assigns of Mortgagee, forever;
PROVIDED, HOWEVER, these presents are upon the express condition
that, if Mortgagor shall well and truly pay to Mortgagee the Debt at the time
and in the manner provided in the Note and this Mortgage and shall well and
truly abide by and comply with each and every covenant and condition set forth
herein and in the Note in a timely manner, these presents and the estate hereby
granted shall cease, terminate and be void;
AND Mortgagor represents and warrants to and covenants and agrees
with Mortgagee as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Mortgagor shall pay the Debt at the time and in the manner
provided in the Note and in this Mortgage. Mortgagor will duly and punctually
perform all of the covenants, conditions and agreements contained in the Note,
this Mortgage and the other Loan Documents all of which covenants, conditions
and agreements are hereby made a part of this Mortgage to the same extent and
with the same force as if fully set forth herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor has good,
marketable and insurable title to the Mortgaged Property and has the right to
mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm, pledge,
assign and hypothecate the same and that Mortgagor possess an unencumbered fee
estate in the Premises and the Improvements and that it owns the Mortgaged
Property free and clear of all liens, encumbrances and charges whatsoever
except for those exceptions shown in the title insurance policy insuring the
lien of this Mortgage. Mortgagor shall forever warrant, defend and preserve
such title and the validity and priority of the lien of this Mortgage and shall
forever warrant and defend the same to Mortgagee against the claims of all
persons whomsoever.
3. Insurance. (a) Mortgagor, at its sole cost and expense, will
keep the Mortgaged Property insured during the entire term of this Mortgage for
the mutual benefit of Mortgagor and Mortgagee against loss or damage by fire,
lightning, wind and such other perils as are included in a standard "all-risk"
or "special causes of loss" form and against loss or damage by all other risks
and hazards covered by a standard extended coverage insurance policy including,
without limitation, riot and civil commotion, vandalism, malicious mischief,
burglary and theft. Such insurance shall be in an amount equal to the greatest
of (i) the then full replacement cost of the Improvements and Equipment,
without deduction for physical depreciation, (ii) the Allocated Loan Amount of
the Mortgaged Property (as such term is defined in the Cash Management,
Collateral and Security Agreement), and (iii) such amount that the insurer
would not deem Mortgagor a co-insurer under said policies. The policies of
insurance carried in accordance with this section shall be paid annually in
advance and shall contain a "Replacement Cost Endorsement" with a waiver of
depreciation and an "Agreed Amount Endorsement". The policies shall have a
deductible no greater than $100,000 unless agreed to by Mortgagee.
(b) Mortgagor, at its sole cost and expense, for the mutual
benefit of Mortgagor and Mortgagee, shall also obtain and maintain during the
entire term of this Mortgage the following Policies:
(i) Flood insurance if any part of the Mortgaged Property
is located in an area identified by the Federal Emergency Management
Agency as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act
of 1968, the Flood Disaster Protection Act of 1973 or the National Flood
Insurance Reform Act of 1994 (and any amendment or successor act thereto)
in an amount at least equal to the least of (A) the full replacement cost
of the Improvements and the Equipment within the parts of the Mortgaged
Property so affected, (B) the Allocated Loan Amount of the Mortgaged
Property or (C) the maximum limit of coverage available with respect to
the Improvements and Equipment under said Act. Mortgagor hereby agrees to
pay Mortgagee such fees as may be permitted under applicable law for the
costs incurred by Mortgagee in reasonably determining, from time to time,
whether the Mortgaged Property is then located within such area.
(ii) Comprehensive General Liability or Commercial General
Liability insurance, including a broad form comprehensive general
liability endorsement and coverage for broad form property damage,
contractual damages, personal injuries (including death resulting
therefrom) and a liquor liability endorsement if liquor is sold on the
Mortgaged Property, containing minimum limits of liability of $2 million
for the Mortgaged Property for both injury to or death of a person and for
property damage per occurrence, and such other liability insurance
reasonably requested by Mortgagee. In addition, at least $10 million for
the Mortgaged Property excess and/or umbrella liability insurance shall be
obtained and maintained for any and all claims, including all legal
liability imposed upon Mortgagor and all court costs and attorneys' fees
incurred in connection with the ownership, operation and maintenance of
the Mortgaged Property.
(iii) Rental loss and/or business interruption insurance
for a period of 12 months in an amount equal to the greater of (A)
estimated gross revenues from the operations of the Mortgaged Property
over 12 months or (B) the projected operating expenses (including
stabilized management fees, applicable reserve deposits, and debt service)
for the maintenance and operation of the Mortgaged Property over 12
months. The amount of such rental loss insurance shall be increased from
time to time during the term of this Mortgage as and when new Leases and
renewal Leases are entered into in accordance with the terms of this
Mortgage, to reflect all increased rent and increased additional rent
payable by all of the tenants under such Leases.
(iv) Insurance against loss or damage from explosion of
steam boilers, air conditioning equipment, high pressure piping, machinery
and equipment, pressure vessels or similar apparatus now or hereafter
installed in the Improvements and including broad form boiler and
machinery insurance (without exclusion for explosion) covering all boilers
or other pressure vessels, machinery and equipment located in, on, or
about the Premises and the Improvements. Coverage is required in an
amount at least equal to the full replacement cost of such equipment and
the building or buildings housing same. Coverage must extend to
electrical equipment, sprinkler systems, heating and air conditioning
equipment, refrigeration equipment and piping.
(v) If the Mortgaged Property includes commercial
property, worker's compensation insurance with respect to any employees of
Mortgagor, as required by any governmental authority or legal requirement.
(vi) During any period of repair or restoration, builder's
"all risk" insurance in an amount equal to not less than the full
insurable value of the Mortgaged Property against such risks (including,
without limitation, fire and extended coverage and collapse of the
Improvements to agreed limits) as Mortgagee may request, in form and
substance acceptable to Mortgagee.
(vii) Ordinance or law coverage to compensate for the cost
of demolition, increased cost of construction, and loss to any undamaged
portions of the Improvements.
(viii) If applicable, earthquake insurance in an amount
equal to the lesser of the initial Allocated Loan Amount of the Mortgaged
Property and the maximum amount permitted by law.
(ix) Windstorm insurance in an amount equal to the lesser
of the initial Allocated Loan Amount of the Mortgaged Property and the
maximum amount permitted by law.
(x) Such other insurance as may from time to time be
reasonably required by Mortgagee in order to protect its interests;
provided, such insurance is consistent with the types of insurance
required by other lenders of mortgage loans secured by properties of a
similar type in a similar geographic area.
(c) All Policies (i) shall be issued by companies approved by
Mortgagee and licensed to do business in the state where the Mortgaged Property
is located, with a claims paying ability rating of "AA" or better by Standard &
Poor's Ratings Services and a rating of "A:VIII" or better in the current
Best's Insurance Reports; (ii) shall be maintained throughout the term of this
Mortgage without cost to Mortgagee; (iii) shall contain a Non-Contributory
Standard Mortgagee Clause and a Lender's Loss Payable Endorsement, or their
equivalents, naming Mortgagee as the person to which all payments made by such
insurance company shall be paid; (iv) shall contain a waiver of subrogation
against Mortgagee; (v) shall be maintained throughout the term of the Mortgage
without cost to Mortgagee; (vi) shall be assigned and the originals (or
duplicate originals, if a blanket policy) delivered to Mortgagee (including
certified copies of the Policies in effect on the date hereof within thirty
(30) days after the closing of the Loan); (vii) shall contain such provisions
as Mortgagee deems reasonably necessary or desirable to protect its interest
(including, without limitation, endorsements providing that neither Mortgagor,
Mortgagee nor any other party shall be a co-insurer under said Policies and
that Mortgagee shall receive at least thirty (30) days prior written notice of
any modification or cancellation); provided, such insurance is consistent with
the types of insurance required by other lenders of mortgage loans secured by
properties of a similar type in a similar geographic area, (viii) shall be for
a term of not less than one year, (ix) shall be issued by an insurer licensed
in the state in which the Mortgaged Property is located, (x) shall provide that
Mortgagee may, but shall not be obligated to, make premium payments to prevent
any cancellation, endorsement, alteration or reissuance, and such payments
shall be accepted by the insurer to prevent same, (xi) shall be reasonably
satisfactory in form and substance to Mortgagee and shall be approved by
Mortgagee as to amounts, form, risk coverage, deductibles, loss payees and
insureds; and (xii) shall provide that all claims shall be allowable on events
as they occur. Upon demand therefor, Mortgagor shall reimburse Mortgagee as
provided in Section 24(a) for all of Mortgagee's (or its servicer's) reasonable
costs and expenses incurred in obtaining any or all of the Policies or
otherwise causing the compliance with the terms and provisions of this Section
3, including (without limitation) obtaining updated flood hazard certificates
and replacement of any so-called "forced placed" insurance coverages.
Mortgagor shall pay the premiums for such Policies (the "Insurance Premiums")
as the same become due and payable and shall furnish to Mortgagee evidence of
the renewal of each of the Policies with receipts for the payment of the
Insurance Premiums or other evidence of such payment reasonably satisfactory to
Mortgagee (provided, however, that Mortgagor is not required to furnish such
evidence of payment to Mortgagee in the event that such Insurance Premiums have
been paid by Mortgagee pursuant to Section 5 hereof). If Mortgagor does not
furnish such evidence and receipts at least thirty (30) days prior to the
expiration of any expiring Policy, then Mortgagee may procure, but shall not be
obligated to procure, such insurance and pay the Insurance Premiums therefor,
and Mortgagor agrees to reimburse Mortgagee for the cost of such Insurance
Premiums promptly on demand. Within thirty (30) days after request by
Mortgagee, Mortgagor shall obtain such increases in the amounts of coverage
required hereunder as may be reasonably requested by Mortgagee, taking into
consideration changes in the value of money over time, changes in liability
laws, changes in prudent customs and practices, and the like; provided, such
insurance is consistent with the amounts of insurance required by other lenders
of mortgage loans secured by properties of a similar type in a similar
geographic area. Mortgagor shall give Mortgagee prompt written notice if
Mortgagor receives from any insurer any written notification or threat of any
actions or proceedings regarding the non-compliance or non-conformity of the
Mortgaged Property with any insurance requirements. For purposes hereof,
references to "Mortgagee" shall also be deemed to include, without limitation,
Mortgagee's successors, assigns or other designees.
(d) In the event of the entry of a judgment of foreclosure,
sale of the Mortgaged Property by non-judicial foreclosure sale, or delivery of
a deed in lieu of foreclosure, Mortgagee hereby is authorized (without the
consent of Mortgagor) to assign any and all Policies to the purchaser or
transferee thereunder, or to take such other steps as Mortgagee may deem
advisable to cause the interest of such transferee or purchaser to be protected
by any of the Policies without credit or allowance to Mortgagor for prepaid
premiums thereon.
(e) If the Mortgaged Property shall be damaged or destroyed, in
whole or in part, by fire or other casualty (an "Insured Casualty"), the
Mortgagor shall give prompt notice thereof to the Mortgagee and, provided
Mortgagee makes the insurance proceeds available to Mortgagor, Mortgagor shall
promptly repair the Mortgaged Property to be at least equal value and of
substantially the same character as prior to such damage, all to be effected in
accordance with applicable law and plans and specifications approved in advance
by Mortgagee. The expenses incurred by Mortgagee in the adjustment and
collection of insurance proceeds shall become part of the Debt and be secured
hereby and shall be reimbursed by Mortgagor to Mortgagee upon demand.
(f) In case of loss or damages covered by any of the Policies,
the following provisions shall apply:
(i) In the event of an Insured Casualty that does not
exceed $250,000, Mortgagor may settle and adjust any claim without the
consent of Mortgagee and agree with the insurance company or companies on
the amount to be paid upon the loss; provided that such adjustment is
carried out in a competent and timely manner. In such case, Mortgagor is
hereby authorized to collect and receipt for any such insurance proceeds.
(ii) In the event an Insured Casualty shall exceed
$250,000, then and in that event, Mortgagee may settle and adjust any
claim without the consent of Mortgagor and agree with the insurance
company or companies on the amount to be paid on the loss and the proceeds
of any such policy shall be due and payable solely to Mortgagee and held
in escrow by Mortgagee in accordance with the terms of this Mortgage.
(iii) In the event of any Insured Casualty, if (A) the loss
is in an aggregate amount less than twenty-five percent (25%) of the
portion of the original principal balance of the Note equal to the initial
Allocated Loan Amount (as defined in the Cash Management, Collateral and
Security Agreement) of the Mortgaged Property, and (B), in the reasonable
judgment of Mortgagee, the Mortgaged Property can be restored within nine
(9) months after insurance proceeds are made available to an economic unit
not less valuable (including an assessment of the impact of the
termination of any Leases due to such Insured Casualty) and not less
useful than the same was prior to the Insured Casualty, and after such
restoration will adequately secure the outstanding balance of the Debt,
and such restoration can be completed on or before six (6) months prior to
the Maturity Date of the Loan, and (C) no Event of Default (hereinafter
defined) shall have occurred and be then continuing, then the proceeds of
insurance shall be applied to reimburse Mortgagor for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or
part thereof subject to Insured Casualty, as provided for below; and
Mortgagor hereby covenants and agrees forthwith to commence and diligently
to prosecute such restoring, repairing, replacing or rebuilding; provided,
however, in any event Mortgagor shall pay all costs (and if required by
Mortgagee, Mortgagor shall deposit the total thereof with Mortgagee in
advance) of such restoring, repairing, replacing or rebuilding in excess
of the net proceeds of insurance made available pursuant to the terms
hereof.
(iv) Except as provided above, the proceeds of insurance
collected upon any Insured Casualty shall, at the option of Mortgagee in
its sole discretion, be applied to the payment of the Debt or applied to
reimburse Mortgagor for the cost of restoring, repairing, replacing or
rebuilding the Mortgaged Property or part thereof subject to the Insured
Casualty, in the manner set forth below. Any such application to the Debt
shall not be considered a voluntary prepayment requiring payment of the
prepayment consideration provided in the Note, and shall not reduce or
postpone any payments otherwise required pursuant to the Note, other than
the final payment on the Note.
(v) In the event Mortgagor is entitled to reimbursement
out of insurance proceeds held by Mortgagee, such proceeds shall be
disbursed from time to time upon Mortgagee being furnished with (A)
evidence satisfactory to it (which evidence may include inspection[s] of
the work performed) that the restoration, repair, replacement and
rebuilding covered by the disbursement has been completed substantially in
accordance with plans and specifications approved by Mortgagee, such
approval not to be unreasonably withheld or delayed, (B) evidence
satisfactory to it of the estimated cost of completion of the restoration,
repair, replacement and rebuilding, (C) assurances satisfactory to
Mortgagee that sufficient funds are available, in addition to the proceeds
of insurance, to complete the proposed restoration, repair, replacement
and rebuilding, and (D) such architect's certificates, waivers of lien,
contractor's sworn statements, title insurance endorsements, bonds, plats
of survey and such other evidences of cost, payment and performance as
Mortgagee may reasonably require and approve; and Mortgagee may, in any
event, require that all plans and specifications for such restoration,
repair, replacement and rebuilding be submitted to and approved by
Mortgagee prior to commencement of work, such approval not to be
unreasonably withheld or delayed. With respect to disbursements to be
made by Mortgagee: (A) no payment made prior to the final completion of
the restoration, repair, replacement and rebuilding shall exceed ninety
percent (90%) of the value of the work performed from time to time;
(B) funds other than proceeds of insurance shall be disbursed prior to
disbursement of such proceeds; and (C) at all times, the undisbursed
balance of such proceeds remaining in the hands of Mortgagee, together
with funds deposited for that purpose or irrevocably committed to the
satisfaction of Mortgagee by or on behalf of Mortgagor for that purpose,
shall be at least sufficient in the reasonable judgment of Mortgagee to
pay for the cost of completion of the restoration, repair, replacement or
rebuilding, free and clear of all liens or claims for lien and the costs
described in Subsection (vi) below. Any surplus which may remain out of
insurance proceeds held by Mortgagee after payment of such costs of
restoration, repair, replacement or rebuilding shall be paid, at
Mortgagee's option, (x) to Mortgagee and applied to repay the Debt on
subsequent Payment Dates or (y) to Mortgagor, but subject to the rights of
any other party entitled thereto. In no event shall Mortgagee assume any
duty or obligation for the adequacy, form or content of any such plans and
specifications, nor for the performance, quality or workmanship of any
restoration, repair, replacement and rebuilding.
(vi) Notwithstanding anything to the contrary contained
herein, the proceeds of insurance reimbursed to Mortgagor in accordance
with the terms and provisions of this Mortgage shall be reduced by the
reasonable costs (if any) incurred by Mortgagee in the adjustment and
collection thereof and by the reasonable costs incurred by Mortgagee of
paying out such proceeds (including, without limitation, reasonable
attorneys' fees and costs paid to third parties for inspecting the
restoration, repair, replacement and rebuilding and reviewing the plans
and specifications therefor).
4. Payment of Taxes and Other Charges. Subject to the provisions
of Section 5 below, Mortgagor shall pay all taxes, assessments, water rates and
sewer rents, now or hereafter levied or assessed or imposed against the
Mortgaged Property or any part thereof (the "Taxes") and all ground rents,
maintenance charges, other governmental impositions, and other charges,
including without limitation vault charges and license fees for the use of
vaults, chutes and similar areas adjoining the Premises, now or hereafter
levied or assessed or imposed against the Mortgaged Property or any part
thereof (the "Other Charges") as the same become due and payable. Mortgagor
will deliver to Mortgagee, promptly upon Mortgagee's request, evidence
satisfactory to Mortgagee that the Taxes and Other Charges have been so paid or
are not then delinquent. Mortgagor shall not suffer and shall promptly cause
to be paid and discharged any lien or charge whatsoever which may be or become
a lien or charge against the Mortgaged Property, and shall promptly pay for all
utility services provided to the Mortgaged Property. Mortgagor shall furnish
to Mortgagee or its designee receipts for the payment of the Taxes, Other
Charges and said utility services prior to the date the same shall become
delinquent; provided, however, that Mortgagor is not required to furnish such
receipts for payment of Taxes in the event that such Taxes have been paid by
Mortgagee pursuant to Section 5 hereof.
5. Tax and Insurance Escrow Fund. On the Closing Date, Mortgagor
shall make an initial deposit to the Tax and Insurance Escrow Fund, as
hereinafter defined, in an amount which, when added to the monthly amounts to
be deposited as specified below, will be sufficient in the estimation of
Mortgagee to satisfy the next due taxes, assessments, insurance premiums and
other similar charges, one month prior to their respective due dates.
Beginning on the date the first constant monthly payment is due under the Note,
and on the first day of each calendar month thereafter, Mortgagor shall, at the
option of Mortgagee or its designee (including the servicer of the Debt), pay
to Mortgagee (a) one-twelfth of an amount which would be sufficient to pay the
Taxes payable, or estimated by Mortgagee to be payable, during the next ensuing
twelve (12) months, and (b) one-twelfth of an amount which would be sufficient
to pay the Insurance Premiums due for the renewal of the coverage afforded by
the Policies upon the expiration thereof (said amounts in (a) and (b) above
hereinafter called the "Tax and Insurance Escrow Fund"); provided, that
notwithstanding the foregoing, the amount referred to in the preceding clause
(a) shall be adjusted downward to reflect any Taxes which Wal-Mart Stores Inc.
as tenant pays directly to the applicable governmental authority. Mortgagee
may, in its sole discretion, retain a third party tax consultant to obtain tax
certificates or other evidence or estimates of tax due or to become due or to
verify the payment of taxes and Mortgagor will promptly reimburse Mortgagee for
the reasonable cost of retaining any such third parties or obtaining such
certificates. Any unpaid reimbursements for the aforesaid shall be added to
the Debt. The Tax and Insurance Escrow Fund and the payments of interest or
principal or both, payable pursuant to the Note, shall be added together and
shall be paid as an aggregate sum by Mortgagor to Mortgagee. Mortgagor hereby
pledges to Mortgagee any and all monies now or hereafter deposited in the Tax
and Insurance Escrow Fund as additional security for the payment of the Debt.
Mortgagee will apply the Tax and Insurance Escrow Fund to payments of Taxes and
Insurance Premiums required to be made by Mortgagor pursuant to Sections 3 and
4 hereof. In making any payment relating to the Tax and Insurance Escrow Fund,
Mortgagee may do so according to any xxxx, statement or estimate procured from
the appropriate public office (with respect to Taxes) or insurer or agent (with
respect to Insurance Premiums), without inquiry into the accuracy of such xxxx,
statement or estimate or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof. If the amount of the Tax and
Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance
Premiums pursuant to Sections 3 and 4 hereof, Mortgagee shall credit such
excess against future payments to be made to the Tax and Insurance Escrow Fund.
In allocating such excess, Mortgagee may deal with the person shown on the
records of Mortgagee to be the owner of the Mortgaged Property. If at any time
Mortgagee determines that the Tax and Insurance Escrow Fund is not or will not
be sufficient to pay the items set forth in (a) and (b) above, Mortgagee shall
notify Mortgagor of such determination and Mortgagor shall increase its monthly
payments to Mortgagee by the amount that Mortgagee estimates is sufficient to
make up the deficiency at least thirty (30) days prior to delinquency of the
Taxes and/or expiration of the Policies, as the case may be. Upon the
occurrence of an Event of Default, Mortgagee may apply any sums then present in
the Escrow Fund to the payment of the following items in any order in its sole
discretion. Until expended or applied as above provided, any amounts in the
Tax and Insurance Escrow Fund shall constitute additional security for the
Debt. The Tax and Insurance Escrow Fund shall not constitute a trust fund and
may only be commingled with other monies held by Mortgagee as collateral for
the Debt (or, in the event of a Secondary Market Transaction, such
transaction). Unless otherwise required by applicable law, no earnings or
interest on the Tax and Insurance Escrow Fund shall be payable to Mortgagor
even if the Mortgagee or its servicer is paid a fee and/or receives interest or
other income in connection with the deposit or placement of such fund (in which
event such income shall be reported under Mortgagee's or its servicer's tax
identification number, as applicable). Upon payment of the Debt and
performance by Mortgagor of all its obligations under this Mortgage and the
other Loan Documents, any amounts remaining in the Tax and Insurance Escrow
Fund shall be refunded to Mortgagor.
6. Replacement Reserve Fund. Mortgagor and the other mortgagors
pledging properties securing the Note shall pay to Mortgagee beginning on the
date the first constant monthly payment is due under the Note, and on the first
day of each calendar month thereafter, an amount equal to one-twelfth of
$251,805, the amount estimated by Mortgagee in its sole discretion to be due
for replacements and repairs required to be made to the Mortgaged Property and
the other properties pledged to secure the Note during the calendar year for
the replacements and repairs deemed reasonably necessary by Mortgagee (the
"Replacement Reserve Fund"). Mortgagor hereby pledges (and grants a lien and
security interest) to Mortgagee any and all monies now or hereafter deposited
in the Replacement Reserve Fund as additional security for the payment of the
Debt. As required in Section 17 below, Mortgagor shall deliver to Mortgagee a
capital expenditure budget (the "Capital Expenditure Budget") itemizing the
replacements and capital repairs which are anticipated to be made to the
Mortgaged Property during the next immediately succeeding calendar year.
Provided that no Event of Default shall exist and remain uncured, Mortgagee
shall make disbursements from the Replacement Reserve Fund as requested, in
writing, by Mortgagor, and approved by Mortgagee, such approval not to be
unreasonably withheld, on a quarterly basis in increments of no less than
$10,000 upon delivery by Mortgagor of copies of invoices for the amounts
requested, a certification from the Mortgagor stating: (a) the nature and type
of the related replacement or repair, (b) that the related replacement or
repair has been completed in a good and workmanlike manner and (c) that the
related replacement or repair has been paid for in full (or, with respect to
requests in excess of $10,000, will be paid for in full from the requested
disbursement) and, if required by Mortgagee, lien waivers and releases from all
parties furnishing materials and/or services in connection with the requested
payment. Any disbursement by Mortgagee hereunder for a capital item in excess
of $10,000 and not already paid for by Mortgagor, shall be made by check,
payable to the applicable contractor, supplier, materialman, mechanic,
subcontractor or other party to whom payment is due in connection with such
capital item. Mortgagee may require an inspection of the Mortgaged Property at
Mortgagor's expense prior to making a disbursement in order to verify
completion of replacements and repairs for which reimbursement is sought. The
Replacement Reserve Fund is solely for the protection of Mortgagee and entails
no responsibility or obligation on Mortgagee's part beyond the payment of the
costs and expenses described in this section in accordance with the terms
hereof and beyond the allowing of due credit for the sums actually received.
The Replacement Reserve Fund shall be held in an interest bearing account in
Mortgagee's name at a financial institution selected by Mortgagee in its sole
discretion. All earnings or interest on the Replacement Reserve Fund shall be
and become part of such Replacement Reserve Fund and shall be disbursed as
provided in this Section 6. Upon the occurrence and during the continuance of
an Event of Default, Mortgagee may apply any sums then present in the
Replacement Reserve Fund to the payment of the Debt in any order in its sole
discretion. Upon payment of the Debt and performance by Mortgagor of all its
obligations under this Mortgage and the other Loan Documents, any amounts
remaining in the Replacement Reserve Fund shall be refunded to Mortgagor. The
Replacement Reserve Fund shall not constitute a trust fund and may only be
commingled with other monies held by Mortgagee as collateral for the Debt (or,
in the event of a Secondary Market Transaction, such transaction).
7. Condemnation. (a) Mortgagor shall promptly give Mortgagee
written notice of the actual or threatened commencement of any condemnation or
eminent domain proceeding and shall deliver to Mortgagee copies of any and all
papers served in connection with such proceedings. Mortgagee is hereby
irrevocably appointed as Mortgagor's attorney-in-fact, coupled with an
interest, with exclusive power to collect, receive and retain any award or
payment for said condemnation or eminent domain and to make any compromise or
settlement in connection with such proceeding, subject to the provisions of
this Mortgage. Notwithstanding any taking by any public or quasi-public
authority through eminent domain or otherwise (including but not limited to any
transfer made in lieu of or in anticipation of the exercise of such taking),
Mortgagor shall continue to pay the Debt at the time and in the manner provided
for its payment in the Note, in this Mortgage and the other Loan Documents and
the Debt shall not be reduced until any award or payment therefor shall have
been actually received after expenses of collection and applied by Mortgagee to
the discharge of the Debt. Mortgagee shall not be limited to the interest paid
on the award by the condemning authority but shall be entitled to receive out
of the award interest at the rate or rates provided herein and in the Note.
Mortgagor shall cause the award or payment made in any condemnation or eminent
domain proceeding, which is payable to Mortgagor, to be paid directly to
Mortgagee. Subject to the provisions of Section 7(b), Mortgagee may apply any
such award or payment to the reduction or discharge of the Debt whether or not
then due and payable (such application to be without any prepayment
consideration, except that if an Event of Default has occurred and is
continuing, then such application shall be subject to the prepayment
consideration computed in accordance with the Note). If the Mortgaged Property
is sold, through foreclosure or otherwise, prior to the receipt by Mortgagee of
such award or payment, and prior to the payment in full of the Debt, Mortgagee
shall have the right, whether or not a deficiency judgment on the Note shall
have been sought, recovered or denied, to receive said award or payment, or a
portion thereof sufficient to pay the Debt.
(b) Notwithstanding the provisions of Subsection (a) above, in
the event of a condemnation of less than all of the Mortgaged Property where:
(i) no Event of Default shall have occurred and be continuing; (ii) the
condemnation will not, in Mortgagee's sole reasonable discretion, result in a
material adverse effect to the use or operation of the Mortgaged Property, the
Mortgagor's ability to make payments hereunder, or the operating income from
the Mortgaged Property; and (iii) the amount of any award or payment that is
uncontested shall have been paid to Mortgagee, then Mortgagee and Mortgagor
shall jointly make any such compromise or settlement hereunder, or otherwise
adjudicate such claim, and such award or payment (less amounts payable to
Mortgagee for its costs and expenses incurred in connection therewith) shall be
paid by Mortgagee to Mortgagor in the same manner as provided by Subsection
3(f)(v) above to restore the Mortgaged Property to an architecturally and
functionally compatible condition.
8. Representations Concerning Loan. Mortgagor represents, warrants
and covenants as follows:
(a) The Mortgagor shall comply with all of the recommendations
concerning the maintenance and repair of the Mortgaged Property which are
contained in the inspection and engineering report which was delivered to
Mortgagee in connection with the origination of the Loan.
(b) In the event Mortgagor decides to engage a third party
management company to manage the Mortgaged Property, Mortgagor agrees to engage
a management company reasonably satisfactory to Mortgagee, pursuant to a
management agreement reasonably satisfactory to Mortgagee, and to cause such
management company to execute the Acknowledgment of Property Manager in form
and substance as executed by the existing manager of the Mortgaged Property in
connection with the Loan, and to deliver to Mortgagee promptly upon such
engagement, a fully-executed copy of the management agreement, together with
the Acknowledgment of Property Manager signed by such manager.
(c) In the event Mortgagee determines in its sole and
reasonable discretion that the quality of management for the Mortgaged Property
has deteriorated, Mortgagee shall provide to Mortgagor written notice of such
deterioration and thirty (30) days from the date of such notice to remedy such
deterioration. In the event Mortgagee is not satisfied that the deterioration
has been remedied, Mortgagor agrees to engage a management company reasonably
satisfactory to Mortgagee within thirty (30) days after the expiration of such
thirty (30) day period, pursuant to a management agreement reasonably
satisfactory to Mortgagee, and to cause such management company to execute the
Acknowledgment of Property Manager in form and substance as executed by the
existing manager of the Mortgaged Property in connection with the Loan, and to
deliver to Mortgagee promptly upon such engagement, a fully-executed copy of
the management agreement, together with the Acknowledgment of Property Manager
signed by such manager.
(d) The representations and warranties contained in the Closing
Certificate executed by Mortgagor in connection with the Note (which
certificate constitutes one of the Loan Documents) are true and correct and
Mortgagor shall observe the covenants contained therein.
9. Single Purpose Entity/Separateness. Mortgagor represents,
warrants and covenants as follows:
(a) Mortgagor does not own and will not own any asset or
property other than (i) the Mortgaged Property, and (ii) incidental personal
property necessary for the ownership or operation of the Mortgaged Property.
(b) Mortgagor will not engage in any business other than the
ownership, management and operation of the Mortgaged Property and Mortgagor
will conduct and operate its business as presently conducted and operated.
(c) Other than any lease of a portion of the Mortgaged Property
dated as of the date hereof, Mortgagor will not enter into any contract or
agreement with any guarantor of the Debt or any part thereof (a "Guarantor") or
any party which is directly or indirectly controlling, controlled by or under
common control with Mortgagor or Guarantor (an "Affiliate"), except upon terms
and conditions that are intrinsically fair and substantially similar to those
that would be available on an arms-length basis with third parties other than
any Guarantor or Affiliate.
(d) Mortgagor has not incurred and will not incur any
indebtedness, secured or unsecured, direct or indirect, absolute or contingent
(including guaranteeing any obligation), other than (i) the Debt, (ii) trade
and operational debt incurred in the ordinary course of business with trade
creditors and in amounts as are normal and reasonable under the circumstances;
and (iii) debt incurred in the financing of equipment and other personal
property used on the Mortgaged Property. No indebtedness other than the Debt
may be secured (senior, subordinate or pari passu) by the Mortgaged Property.
(e) Mortgagor has not made and will not make any loans or
advances to any third party, nor to Guarantor, any Affiliate or any constituent
party of Mortgagor.
(f) Mortgagor is and will remain solvent and Mortgagor will pay
its debts from its assets as the same shall become due.
(g) Mortgagor has done or caused to be done and will do all
things necessary, to preserve its existence, and Mortgagor will not, nor will
Mortgagor permit Guarantor to amend, modify or otherwise change the partnership
certificate, partnership agreement, articles of incorporation and bylaws,
operating agreement, trust or other organizational documents of Mortgagor or
Guarantor in a manner which would adversely affect the Mortgagor's existence as
a single-purpose entity, without the prior written consent of Mortgagee.
(h) Mortgagor will maintain books and records and bank accounts
separate from those of its Affiliates and any constituent party of Mortgagor
(other than any other maker of the Note).
(i) Mortgagor will be, and at all times will hold itself out to
the public as, a legal entity separate and distinct from any other entity
(including any Affiliate, any constituent party of Mortgagor or any Guarantor),
shall correct any known misunderstanding regarding its status as a separate
entity, shall conduct business in its own name, shall not identify itself or
any of its Affiliates as a division or part of the other and shall maintain and
utilize separate stationery, invoices and checks; provided, that such items may
identify its relationship vis-a-vis the Guarantor.
(j) Mortgagor will preserve and keep in full force and effect
its existence, good standing and qualification to do business in the state in
which the Mortgaged Property is located.
(k) Mortgagor will maintain adequate capital for the normal
obligations reasonably foreseeable in a business of its size and character and
in light of its contemplated business operations.
(l) Neither Mortgagor nor any constituent party of Mortgagor
will seek the dissolution or winding up, in whole or in part, of Mortgagor, nor
will Mortgagor merge with or be consolidated into any other entity (other than
any other maker of the Note).
(m) Mortgagor will not commingle the funds and other assets of
Mortgagor with those of any Affiliate, any Guarantor, any constituent party of
Mortgagor or any other person (other than any other maker of the Note).
(n) Mortgagor has and will maintain its assets in such a manner
that it will not be costly or difficult to segregate, ascertain or identify its
individual assets from those of any constituent party of Mortgagor, Affiliate,
Guarantor or any other person.
(o) Mortgagor does not and will not hold itself out to be
responsible for the debts or obligations of any other person (other than any
other maker of the Note) (provided, that the foregoing shall not prevent
Mortgagor from being and holding itself responsible for expenses incurred or
obligations undertaken by the property manager of the Mortgaged Property in
respect of its duties regarding the Mortgaged Property).
(p) Mortgagor shall obtain and maintain in full force and
effect, and abide by and satisfy the material terms and conditions of, all
material permits, licenses, registrations and other authorizations with or
granted by any governmental authorities that may be required from time to time
with respect to the performance of its obligations under this Mortgage.
(q) If Mortgagor is a limited partnership, each general partner
(each, an "SPC Party") shall be a corporation whose sole asset is its interest
in Mortgagor and each such SPC Party will at all times comply, and will cause
Mortgagor to comply, with each of the representations, warranties, and
covenants contained in this Section 9 as if such representation, warranty or
covenant was made directly by such SPC Party.
(r) Mortgagor shall at all times cause there to be at least one
duly appointed member of the board of directors (an "Independent Director") of
Mortgagor and each SPC Party in Mortgagor reasonably satisfactory to Mortgagee
who shall not have been at the time of such individual's appointment, and may
not have been at any time during the preceding five years (i) a shareholder of,
or an officer, director, partner or employee of, Mortgagor or any of its
shareholders, subsidiaries or affiliates (other than any other maker of the
Note or its corporate general partner, if applicable), (ii) a customer of, or
supplier to, Mortgagor or any of its shareholders, subsidiaries or affiliates,
(iii) a person or other entity controlling or under common control with any
such shareholder, partner, supplier or customer, or (iv) a member of the
immediate family of any such shareholder, officer, director, partner, employee,
supplier or customer of Mortgagor. As used herein, the term "control" means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person or entity, whether through
ownership of voting securities, by contract or otherwise.
(s) Mortgagor shall not cause or permit the board of directors
of each SPC Party in Mortgagor to take any action which, under the terms of any
certificate of incorporation, by-laws or any voting trust agreement with
respect to any common stock, requires the vote of the board of directors of
Mortgagor and/or any SPC Party in Mortgagor unless at the time of such action
there shall be at least one member who is an Independent Director.
(t) Mortgagor shall conduct its business so that the
assumptions made with respect to Mortgagor in that certain opinion letter dated
of even date herewith (the "Nonconsolidation Opinion") delivered by Xxxxxxxx
Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP in connection with the Loan shall be
true and correct in all respects.
10. Maintenance of Mortgaged Property. Mortgagor shall cause the
Mortgaged Property to be operated and maintained in a good and safe condition
and repair and in keeping with the condition and repair of properties of a
similar use, value, age, nature and construction. Mortgagor shall not use,
maintain or operate the Mortgaged Property in any manner which constitutes a
public or private nuisance or which makes void, voidable, or cancelable, or
materially increases the premium of, any insurance then in force with respect
thereto. The Improvements and the Equipment shall not be removed, demolished
or materially altered (except for alteration or demolition permitted by the
tenants under the Leases and for normal replacement of the Equipment) without
the consent of Mortgagee. Mortgagor shall promptly comply in all material
respects with all laws, orders and ordinances affecting the Mortgaged Property,
or the use thereof. Mortgagor shall promptly repair, replace or rebuild any
part of the Mortgaged Property which may be destroyed by any casualty, or
become damaged, worn or dilapidated or which may be affected by any proceeding
of the character referred to in Section 7 hereof and shall complete and pay for
any structure at any time in the process of construction or repair on the
Premises.
11. Use of Mortgaged Property. Mortgagor shall not initiate, join
in, acquiesce in, or consent to any change in any private restrictive covenant,
zoning law or other public or private restriction, limiting or defining the
uses which may be made of the Mortgaged Property or any part thereof, nor shall
Mortgagor initiate, join in, acquiesce in, or consent to any zoning change or
zoning matter affecting the Mortgaged Property. If under applicable zoning
provisions the use of all or any portion of the Mortgaged Property is or shall
become a nonconforming use, Mortgagor will not cause or permit such
nonconforming use to be discontinued or abandoned without the express written
consent of Mortgagee. Mortgagor shall not permit or suffer to occur any waste
on or to the Mortgaged Property or to any portion thereof and shall not take
any steps whatsoever to convert the Mortgaged Property, or any portion thereof,
to a condominium or cooperative form of management. Mortgagor will not install
or permit to be installed on the Premises any underground storage tank without
the written consent of Mortgagee.
12. Transfer or Encumbrance of the Mortgaged Property.
(a) Mortgagor acknowledges that Mortgagee has examined and relied on the
creditworthiness and experience of Mortgagor in owning and operating properties
such as the Mortgaged Property in agreeing to make the loan secured hereby, and
that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged
Property as a means of maintaining the value of the Mortgaged Property as
security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has
a valid interest in maintaining the value of the Mortgaged Property so as to
ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee
can recover the Debt by a sale of the Mortgaged Property. Without the prior
written consent of Mortgagee:
(i) neither Mortgagor nor any other Person having an
ownership or beneficial interest in Mortgagor shall (A) directly or
indirectly sell, transfer, convey, mortgage, pledge, or assign any
interest in the Mortgaged Property or any part thereof (including any
partnership or any other ownership interest in Mortgagor); (B) further
encumber, alienate, xxxxx x xxxx or grant any other interest in the
Mortgaged Property or any part thereof (including any partnership or other
ownership interest in Mortgagor), whether voluntarily or involuntarily; or
(C) enter into any easement or other agreement granting rights in or
restricting the use or development of the Mortgaged Property;
(ii) no new general partner, member, shareholder or
limited partner having the ability to control the affairs of Mortgagor
shall be admitted to or created in Mortgagor (nor shall any existing
general partner or member or shareholder or controlling limited partner
withdraw from Mortgagor), and no change in Mortgagor's organizational
documents relating to control over Mortgagor and/or the Mortgaged Property
shall be effected; and
(iii) no transfer shall be permitted which would cause
Kranzco Realty Trust ("Kranzco") to own less than fifty-one percent (51%)
of the beneficial interest in Mortgagor and the Mortgaged Property and
less than one hundred percent (100%) of the voting stock in the corporate
general partner or managing member of Mortgagor and not to have the power
to direct the affairs of Mortgagor;
provided, that notwithstanding the foregoing, no sale of the Mortgaged Property
by the Mortgagor may occur prior to the fourth (4th) anniversary of the date of
this Mortgage and any such sale after the fourth (4th) anniversary of the date
of this Mortgage may only be consummated in accordance with the provisions of
this Mortgage and the Cash Management, Collateral and Security Agreement, dated
as of the date hereof by and among Mortgagor and the other mortgagors pledging
properties securing the Note, Mortgagee and LaSalle National Bank, as
collateral agent (the "Cash Management, Collateral and Security Agreement").
(b) As used in this Section 12, "transfer" shall include (i) an
installment sales agreement wherein Mortgagor agrees to sell the Mortgaged
Property or any part thereof for a price to be paid in installments; (ii) an
agreement by Mortgagor leasing all or a substantial part of the Mortgaged
Property for other than actual occupancy by a space tenant thereunder or a
sale, assignment or other transfer of, or the grant of a security interest in,
Mortgagor's right, title and interest in and to any Leases or any Rents, (iii)
the sale, transfer, conveyance, mortgage, pledge, or assignment of the legal or
beneficial ownership of any partnership interest in any general partner in
Mortgagor that is a partnership or membership interest in any managing member
in Mortgagor that is a limited liability company, (iv) the sale, transfer,
conveyance, mortgage, pledge, or assignment of the legal or beneficial
ownership of any voting stock in any general partner in Mortgagor that is a
corporation, and (v) a transfer of management of the Mortgaged Property to an
entity other than Kranzco; "transfer" shall not include:
(A) the leasing of portions of the Mortgaged Property so long
as Mortgagor complies with the provisions of the Loan Documents relating
to such leasing activity;
(B) the transfers of limited partnership interests in Mortgagor
so long as the results of such transfers do not result in the transfer of
more than 49% of the ownership or beneficial interest in the Mortgagor and
the provisions of Subsections 12(a)(ii) and 12(a)(iii) are satisfied;
(C) a transfer that occurs by inheritance, devise, or bequest
or by operation of law upon the death of a natural person who is an owner
of the Mortgaged Property or the owner of a direct or indirect ownership
interest in Mortgagor; provided, that, if such person held a managerial or
control position with respect to Mortgagor (as determined by Mortgagee),
unless such person is replaced by another person acceptable to Mortgagee
in its sole discretion within thirty (30) days after such death, such
event shall be deemed to be a "transfer";
(D) a sale or other disposition of obsolete or worn-out
personal property which is contemporaneously replaced by comparable
personal property of equal or greater value which is free and clear of
liens, encumbrances and security interests other than those created by the
Loan Documents;
(E) the grant of an easement, if prior to the granting of the
easement Mortgagor causes to be submitted to Mortgagee all information
required by Mortgagee to evaluate the easement, and if Mortgagee
determines that the easement will not materially affect the operation of
the Mortgaged Property or Mortgagee's interest in the Mortgaged Property
and Mortgagor pays to Mortgagee, on demand, all cost and expense incurred
by Mortgagee in connection with reviewing Mortgagor's request;
(F) purchases and sales of stock of Kranzco on a national stock
exchange; or
(G) a transfer of management of the Mortgaged Property pursuant
to and in connection with or as a result of a merger of Kranzco with
another entity; provided, that in the event a Secondary Market Transaction
shall have occurred, such event referred to in this clause (G) shall not
be a "transfer" only so long as it shall not result in a re-qualification,
reduction or withdrawal of any rating initially assigned or to be assigned
in a Secondary Market Transaction by the Rating Agencies (as hereinafter
defined).
(c) Mortgagee shall not be required to demonstrate any actual
impairment of its security or any increased risk of default hereunder in order
to declare the Debt immediately due and payable upon Mortgagor's sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property in violation of the provisions of this Section 12. This
provision shall apply to every sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property regardless of whether
voluntary or not, or whether or not Mortgagee has consented to any previous
sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property.
(d) Mortgagor agrees to bear and shall pay or reimburse
Mortgagee on demand for all reasonable expenses (including, without limitation,
reasonable attorneys' fees and disbursements, title search costs and title
insurance endorsement premiums) incurred by Mortgagee in connection with the
review, approval and documentation of any such sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer. In addition, prior to the
effectiveness of any such transfer following the initial transfer, Mortgagee
shall have received an assumption fee equal to one percent (1%) of the then
unpaid principal balance of the Note.
(e) Mortgagee's consent to one sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property or any part
thereof shall not be deemed to be a waiver of Mortgagee's right to require such
consent to any future occurrence of same. Any sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in
contravention of this section shall be null and void and of no force and
effect.
(f) Notwithstanding the foregoing provisions of Subsections
12(a) and (b) above, Mortgagee's consent to the one-time sale or transfer of
the Mortgaged Property and the other mortgaged properties securing the Note
will not be unreasonably withheld after consideration of all relevant factors,
provided that:
(i) no Event of Default or event which with the giving of
notice or the passage of time would constitute an Event of Default shall
have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be a
reputable entity or person of good character, creditworthy, with
sufficient financial worth considering the obligations assumed and
undertaken, as evidenced by financial statements and other information
reasonably requested by Mortgagee;
(iii) the Transferee and its property manager shall have
sufficient experience in the ownership and management of properties
similar to the Mortgaged Property, and Mortgagee shall be provided with
reasonable evidence thereof (and Mortgagee reserves the right to approve
the Transferee without approving the substitution of the property
manager);
(iv) unless otherwise waived by Mortgagee based on
applicable guidelines of the Rating Agencies (as hereinafter defined),
Mortgagee shall have recommendations in writing from the Rating Agencies
to the effect that such transfer will not result in a re-qualification,
reduction or withdrawal of any rating initially assigned or to be assigned
in a Secondary Market Transaction (as hereinafter defined). The term
"Rating Agencies" as used herein shall mean each of Standard & Poor's
Ratings Services, a division of XxXxxx-Xxxx Companies, Inc., Xxxxx'x
Investors Service, Inc., Duff & Xxxxxx Credit Rating Co. and Fitch/IBCA
Inc., or any other nationally-recognized statistical rating agency which
has been approved by Mortgagee;
(v) the Transferee shall have executed and delivered to
Mortgagee an assumption agreement in form and substance acceptable to
Mortgagee, evidencing such Transferee's agreement to abide and be bound by
the terms of the Note, this Mortgage and the other Loan Documents together
with such legal opinions and title insurance endorsements as may be
reasonably requested by Mortgagee; and
(vi) Mortgagor shall have paid and Mortgagee shall have
received the payments, fees, and reimbursements required under Section
12(d) hereof.
13. Estoppel Certificates and No Default Affidavits. (a) Upon
request, Mortgagor or Mortgagee shall within ten (10) days furnish the other
with a statement, duly acknowledged and certified, setting forth (i) the
original principal amount of the Note, (ii) the unpaid principal amount of the
Note, (iii) the rate of interest of the Note, (iv) the date installments of
interest and/or principal were last paid, (v) any offsets or defenses to the
payment of the Debt, if any, and (vi) that the Note, this Mortgage and the
other Loan Documents are valid, legal and binding obligations and have not been
modified or if modified, giving particulars of such modification.
(b) After request by Mortgagee, Mortgagor shall within fifteen
(15) days furnish Mortgagee with a certificate reaffirming all representations
and warranties of Mortgagor set forth herein and in the other Loan Documents as
of the date requested by Mortgagee or, to the extent of any changes to any such
representations and warranties, so stating such changes.
(c) If the Mortgaged Property includes commercial property,
Mortgagor shall deliver to Mortgagee tenant estoppel certificates from each
commercial tenant at the Mortgaged Property that is a tenant occupying more
than 5% of the rentable square footage of the Mortgaged Property or shall use
commercially reasonable efforts to deliver, upon request, to Mortgagee tenant
estoppel certificates from any other commercial tenant , in each case in form
and substance reasonably satisfactory to Mortgagee (it being understood that
anchor tenants shall be permitted to deliver their standard form), provided
that Mortgagor shall not be required to deliver such certificates more
frequently than two (2) times (or if a Secondary Market Transaction shall have
occurred, one time) in any calendar year.
14. Taxes on Security; Documentary Stamps; Intangibles Tax.
(a) Mortgagor shall pay all taxes, charges, filing,
registration and recording fees, excises and levies payable with respect to the
Note or the liens created or secured by the Loan Documents, other than income,
franchise and doing business taxes imposed on Mortgagee. If there shall be
enacted any law (a) deducting the Loan from the value of the Mortgaged Property
for the purpose of taxation, (b) affecting any lien on the Mortgaged Property,
or (c) changing existing laws of taxation of mortgages, deeds of trust,
security deeds, or debts secured by real property, or changing the manner of
collecting any such taxes, Mortgagor shall promptly pay to Mortgagee, on
demand, all taxes, costs and charges for which Mortgagee is or may be liable as
a result thereof; however, if such payment would be prohibited by law or would
render the Loan usurious, then instead of collecting such payment, Mortgagee
may declare all amounts owing under the Loan Documents to be immediately due
and payable. No prepayment consideration shall be imposed on any such payment.
(b) If at any time the United States of America, any State
thereof or any subdivision of any such State shall require revenue or other
stamps to be affixed to the Note or this Mortgage, or impose any other tax or
charge on the same, Mortgagor will pay for the same, with interest and
penalties thereon, if any. Mortgagor hereby agrees that, in the event that it
is determined that additional documentary stamp tax or intangible tax is due
hereon or any mortgage or promissory note executed in connection herewith
(including, without limitation, the Note), Mortgagor shall indemnify and hold
harmless Mortgagee for all such documentary stamp tax and/or intangible tax,
including all penalties and interest assessed or charged in connection
therewith. Mortgagor shall pay same within ten (10) days after demand of
payment from Mortgagee.
(c) Mortgagor shall hold harmless and indemnify Mortgagee, its
successors and assigns, against any liability incurred by reason of the
imposition of any tax on the making and recording of this Mortgage.
15. No Credits on Account of the Debt. Mortgagor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes or Other Charges assessed against the Mortgaged Property, or
any part thereof, and no deduction shall otherwise be made or claimed from the
assessed value of the Mortgaged Property, or any part thereof, for real estate
tax purposes by reason of this Mortgage or the Debt. In the event such claim,
credit or deduction shall be required by law, Mortgagee shall have the option,
by written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
16. Controlling Agreement. It is expressly stipulated and agreed to
be the intent of Mortgagor and Mortgagee at all times to comply with applicable
state law or applicable United States federal law (to the extent that it
permits Mortgagee to contract for, charge, take, reserve, or receive a greater
amount of interest than under state law) and that this section shall control
every other covenant and agreement in this Mortgage and the other Loan
Documents. If the applicable law (state or federal) is ever judicially
interpreted so as to render usurious any amount called for under the Note or
under any of the other Loan Documents, or contracted for, charged, taken,
reserved, or received with respect to the Debt, or if Mortgagee's exercise of
the option to accelerate the maturity of the Note, or if any prepayment by
Mortgagor results in Mortgagor having paid any interest in excess of that
permitted by applicable law, then it is Mortgagor's and Mortgagee's express
intent that all excess amounts theretofore collected by Mortgagee shall be
credited on the principal balance of the Note and all other Debt (or, if the
Note and all other Debt have been or would thereby be paid in full, refunded to
Mortgagor), and the provisions of the Note and the other Loan Documents
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder.
All sums paid or agreed to be paid to Mortgagee for the use, forbearance, or
detention of the Debt shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Debt until payment in full so that the rate or amount of interest on
account of the Debt does not exceed the maximum rate permitted under applicable
law from time to time in effect and applicable to the Debt for so long as the
Debt is outstanding. Notwithstanding anything to the contrary contained herein
or in any of the other Loan Documents, it is not the intention of the Mortgagee
to accelerate the maturity of any interest that has not accrued at the time of
such acceleration or to collect unearned interest at the time of such
acceleration.
17. Financial Statements. (a) The financial statements heretofore
furnished to Mortgagee are, as of the dates specified therein, complete and
correct and fairly present the financial condition of the Mortgagor and any
other persons or entities that are the subject of such financial statements,
and are prepared in accordance with generally accepted accounting principles in
the United States of America consistently applied (or such other accounting
basis reasonably acceptable to Mortgagee). Mortgagor does not have any
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable
commitments that are known to Mortgagor and reasonably likely to have a
materially adverse effect on the Mortgaged Property or the operation thereof
for its current use, except as referred to or reflected in said financial
statements. Since the date of such financial statements, there has been no
materially adverse change in the financial condition, operation or business of
Mortgagor or any other persons or entities that are the subject of such
financial statements from that set forth in said financial statements.
(b) Mortgagor will maintain full and accurate books of accounts
and other records reflecting the results of the operations of the Mortgaged
Property and will furnish to Mortgagee the following items, each certified by
Mortgagor as being true and correct and presented in such format as Mortgagee
or its designee (including the servicer of the Debt) may reasonably request, as
follows:
(i) Until the earlier to occur of (A) eighteen (18)
months following the date hereof, or (B) a Secondary Market Transaction
(hereinafter defined), Mortgagor shall furnish quarterly (or more
frequently if requested by Mortgagee in connection with a Secondary Market
Transaction) each of the items listed in Subsection (ii)(A), (ii)(B) and
(ii) (C) below, but dated as of the last day of such quarter
(collectively, the "Pre-Securitization Financials") within forty-five (45)
days after the end of such quarter.
(ii) On or before sixty (60) days after the end of each
calendar quarter: (A) a written statement (rent roll) dated as of the
last day of each such calendar quarter identifying each of the Leases by
the term, renewal options (including rental base), space occupied, rental
and other charges required to be paid, security deposit paid, real estate
taxes paid by tenants, common area charges paid by tenants, tenant pass-
throughs, any rental concessions or special provisions or inducements,
tenant sales (if the tenant is required to report sales to Mortgagor),
rent delinquencies, rent escalations, amounts taken in settlement of
outstanding arrears, collections of rent for more than one (1) month in
advance, continuous operation obligations, cancellation or "go dark"
provisions, "non-competition" provisions (restricting Mortgagor or any
tenant), any defaults thereunder and any other information reasonably
required by Mortgagee; (B) quarterly and year to date operating statements
prepared for each calendar quarter, each of which shall include an
itemization of actual (not pro forma) capital expenditures during the
applicable period; (C) a property balance sheet for such quarter; (D) a
comparison of the budgeted income and expenses with the actual income and
expenses for such quarter and year to date, together with an explanation
of any material variances between budgeted and actual amounts for each
line item therein (it being understood that Mortgagor shall supplement
such explanation in more detail upon reasonable request of Mortgagee from
time to time) and (E) any other operating expenses and revenues
information reasonably requested by Mortgagee in order to calculate the
Debt Service Coverage Test (as defined in the Cash Management, Collateral
and Security Agreement) under the Cash Management, Collateral and Security
Agreement.
(iii) Within one-hundred five (105) days following the end
of each calendar year: (A) a written statement (rent roll) dated as of
the last day of each such calendar year identifying each of the Leases by
the term, space occupied, rental required to be paid, security deposit
paid, any rental concessions, and identifying any defaults or payment
delinquencies thereunder; (B) annual operating statements prepared for
such calendar year, which shall include an itemization of actual (not pro
forma) capital expenditures during the applicable period, total revenues
received, total expenses incurred, total debt service and total cash flow;
and (C) an annual balance sheet and profit and loss statement of
Mortgagor, each general partner, member or principal shareholder of
Mortgagor, and any Guarantors in the form required by Mortgagee, prepared
and certified by the respective Mortgagor, general partner, member or
principal shareholder of Mortgagor and/or Guarantors, or if available,
audited financial statements prepared by an independent certified public
accountant acceptable to Mortgagee.
(iv) On or before December 1 of the year preceding the
year to which such budget pertains, Mortgagor shall furnish to Mortgagee
for its approval, such approval not to be unreasonably withheld or
delayed, an annual budget (including the Capital Expenditure Budget and
the TI/LC Budget) of the operation of the Mortgaged Property.
(c) In the event that Mortgagor fails to provide to Mortgagee
or its designee any of the financial statements, certificates, reports or
information (the "Required Records") required by this Section 17 within thirty
(30) days after the date upon which such Required Record is due, Mortgagor
shall pay to Mortgagee, at Mortgagee's option and in its sole discretion, an
amount equal to $7,500 if the Required Records are not so delivered; provided
that, Mortgagee has given at least ten (10) days prior written notice to
Mortgagor of such failure by Mortgagor to timely submit the applicable Required
Records. Notwithstanding the foregoing, in the event that Mortgagor fails to
provide Mortgagee with Pre-Securitization Financials on or before the date they
are due, Mortgagor shall pay to Mortgagee, at Mortgagee's option and in its
sole discretion, an amount equal to $7,500 if the Pre-Securitization Financials
are not so delivered.
18. Performance of Other Agreements. Mortgagor shall observe and
perform each and every term to be observed or performed by Mortgagor pursuant
to the terms of any agreement or recorded instrument affecting or pertaining to
the Mortgaged Property, except where the failure to observe or perform such
term is not reasonably likely to have a material adverse effect on the
Mortgagor, such determination of a material adverse effect to be in the sole
discretion of the Mortgagee.
19. Further Acts, Etc. (a) Mortgagor will, at the cost of
Mortgagor, and without expense to Mortgagee, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, Uniform Commercial Code financing
statements or continuation statements, transfers and assurances as Mortgagee
shall, from time to time, reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Mortgagee the property
and rights hereby mortgaged, given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated or intended
now or hereafter so to be, or which Mortgagor may be or may hereafter become
bound to convey or assign to Mortgagee, or for carrying out the intention or
facilitating the performance of the terms of this Mortgage or for filing,
registering or recording this Mortgage or for facilitating the sale of the Loan
and the Loan Documents as described in Subsection 19(b) below. Mortgagor, on
demand, will execute and deliver and hereby authorizes Mortgagee to execute
without the signature of Mortgagor to the extent Mortgagee may lawfully do so,
one or more financing statements, chattel mortgages or other instruments, to
evidence more effectively the security interest of Mortgagee in the Mortgaged
Property. Upon foreclosure, the appointment of a receiver or any other
relevant action, Mortgagor will, at the cost of Mortgagor and without expense
to Mortgagee, cooperate fully and completely to effect the assignment or
transfer of any license, permit, agreement or any other right necessary or
useful to the operation of the Mortgaged Property. Mortgagor grants to
Mortgagee an irrevocable power of attorney coupled with an interest for the
purpose of perfecting and, after the occurrence and during the continuance of
an Event of Default, exercising any and all rights and remedies available to
Mortgagee at law and in equity, including, without limitation, such rights and
remedies available to Mortgagee pursuant to this section.
(b) Mortgagor acknowledges that Mortgagee and its successors
and assigns may (i) sell this Mortgage, the Note and other Loan Documents to
one or more investors as a whole loan, (ii) participate the Loan secured by
this Mortgage to one or more investors, (iii) sell this Mortgage, the Note and
other Loan Documents to a depositor which entity shall deposit this Mortgage,
the Note and the other Loan Documents with a trust, which trust may sell
certificates to investors evidencing an ownership interest in the trust assets,
or (iv) otherwise sell the Loan or interest therein to investors (the
transactions referred to in clauses (i) through (iv) are hereinafter each
referred to as a "Secondary Market Transaction"). Mortgagor shall cooperate
with Mortgagee in effecting any such Secondary Market Transaction and shall
cooperate to implement all requirements imposed by any Rating Agency involved
in any Secondary Market Transaction. Mortgagor shall provide such information,
legal opinions and documents relating to Mortgagor, Guarantor, if any, the
Mortgaged Property and any tenants of the Improvements as Mortgagee may
reasonably request in connection with such Secondary Market Transaction.
Mortgagee shall be responsible for payment of the reasonable out-of-pocket
expenses incurred by Mortgagor in complying with the two preceding sentences
(other than amendments to the articles of incorporation or partnership
agreement of Mortgagor referred to in an undelivered items letter). In
addition, Mortgagor shall make available to Mortgagee all information
concerning its business and operations that Mortgagee may reasonably request.
Mortgagee shall be permitted to share all such information with the investment
banking firms, Rating Agencies, accounting firms, law firms and other third-
party advisory firms and investors involved with the Loan and the Loan
Documents or the applicable Secondary Market Transaction; provided, however,
that Mortgagee shall use reasonable efforts to preserve the confidentiality of
any nonpublic information. Mortgagee and all of the aforesaid third-party
advisors and professional firms shall be entitled to rely on the information
supplied by, or on behalf of, Mortgagor and Mortgagor indemnifies Mortgagee,
its successors, assigns and their respective shareholders, employees,
directors, officers, and agents (each an "Indemnified Party" and, collectively,
the "Indemnified Parties") as to any losses, claims, damages or liabilities
that arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in such information or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated in such information or necessary in order to make
the statements in such information, or in light of the circumstances under
which they were made, not misleading. Mortgagee may publicize the existence of
the Loan in connection with its marketing for a Secondary Market Transaction or
otherwise as part of its business development.
20. Recording of Mortgage, Etc. Upon the execution and delivery of
this Mortgage and thereafter, from time to time, Mortgagor will cause this
Mortgage, and any security instrument creating a lien or security interest or
evidencing the lien hereof upon the Mortgaged Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in
such places as may be required by any present or future law in order to publish
notice of and fully to protect the lien or security interest hereof upon, and
the interest of Mortgagee in, the Mortgaged Property. Mortgagor will pay all
filing, registration or recording fees, and all expenses incident to the
preparation, execution and acknowledgment of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, and all federal, state,
county and municipal, taxes, duties, imposts, assessments and charges arising
out of or in connection with the execution and delivery of this Mortgage, any
mortgage supplemental hereto, any security instrument with respect to the
Mortgaged Property or any instrument of further assurance, except where
prohibited by law so to do.
21. Reporting Requirements. Mortgagor agrees to give prompt notice
to Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the death,
insolvency or bankruptcy filing of any Guarantor.
22. Events of Default. Subject to the provisions of Section 23, the
term "Event of Default" as used herein shall mean the occurrence or happening,
at any time and from time to time, of any one or more of the following:
(a) if any portion of the Debt is not paid within ten (10) days
from the date when the same is due;
(b) if the Policies are not kept in full force and effect, or
if certificates or copies of the Policies are not delivered to Mortgagee upon
request;
(c) if Mortgagor fails to timely provide any financial or
accounting report;
(d) if Mortgagor transfers or encumbers any portion of the
Mortgaged Property in violation of Section 12 of this Mortgage;
(e) if any representation or warranty of Mortgagor, or of any
Guarantor, made herein or in any other Loan Document or in any certificate,
report, financial statement or other instrument or document furnished to
Mortgagee shall have been false or misleading in any material respect when
made;
(f) if Mortgagor or any Guarantor shall make an assignment for
the benefit of creditors or if Mortgagor shall generally not be paying its
debts as they become due;
(g) if a receiver, liquidator or trustee of Mortgagor or of any
Guarantor shall be appointed or if Mortgagor or any Guarantor shall be
adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any
similar federal or state law, shall be filed by or against, consented to, or
acquiesced in by, Mortgagor or any Guarantor or if any proceeding for the
dissolution or liquidation of Mortgagor or of any Guarantor shall be instituted
and if such appointment, adjudication, petition or proceeding was involuntary
and not consented to by Mortgagor or such Guarantor, upon the same not being
discharged, stayed or dismissed within sixty (60) days;
(h) if Mortgagor shall be in default under any other mortgage
or security agreement covering any part of the Mortgaged Property and otherwise
permitted hereunder;
(i) subject to Mortgagor's right to contest as provided herein,
if the Mortgaged Property becomes subject to any mechanic's, materialman's,
mortgage or other lien except a lien for local real estate taxes and
assessments not then due and payable;
(j) if Mortgagor fails to cure properly any violations of laws
or ordinances affecting the Mortgaged Property;
(k) except as permitted in this Mortgage, the alteration,
improvement, demolition or removal of any of the Improvements without the prior
consent of Mortgagee;
(l) damage to the Mortgaged Property in any manner which is not
covered by insurance solely as a result of Mortgagor's failure to maintain
insurance required in accordance with this Mortgage;
(m) if Mortgagor or Guarantor shall continue to be in default
under any term, covenant, or provision of the Note or any of the other Loan
Documents, beyond applicable cure periods contained therein;
(n) if without Mortgagee's prior consent, except as permitted
in this Mortgage (i) the manager of the Mortgaged Property is removed by
Mortgagor, or (ii) the manager for the Mortgaged Property approved by Mortgagee
resigns and is not replaced within sixty (60) days by Mortgagor with a manager
satisfactory to Mortgagee, (iii) there is any material change in any management
agreement of the Mortgaged Property, or (iv) the manager engaged by Mortgagor
and approved by Mortgagee fails to execute the Acknowledgment of Property
Manager;
(o) entry of a judgment in excess of $100,000 of which the
Mortgagor has notice and the expiration of any appeal rights or the dismissal
or final adjudication of appeals against Mortgagor and the same shall not have
been discharged or bonded within thirty (30) days from the date of entry of
which the Mortgagor has notice thereof;
(p) the Mortgage shall cease to constitute a first-priority
lien on the Mortgaged Property (other than in accordance with its terms);
(q) seizure or forfeiture of the Mortgaged Property, or any
portion thereof, or Mortgagor's interest therein, resulting from criminal
wrongdoing or other unlawful action of Mortgagor, its affiliates, or any tenant
in the Mortgaged Property under any federal, state or local law;
(r) if, without Mortgagee's prior written consent, Mortgagor
ceases to continuously operate the Mortgaged Property or any material portion
thereof as the same use that is currently permitted under applicable zoning or
other local laws for any reason whatsoever (other than temporary cessation in
connection with any repair or renovation thereof undertaken with the consent of
Mortgagee and other than any tenant's space "going dark"); or
(s) Mortgagor shall fail to deliver any item described in an
undelivered items letter or other post-closing letter on or before the date set
forth in such letter for the delivery of such item.
23. Notice and Cure. Notwithstanding the foregoing, Mortgagee
agrees to give to Mortgagor written notice as described below of (a)
Mortgagor's failure to pay any part of the Debt when due (a "Monetary
Default"), (b) a default referred to in Subsection 22(p) above (a "First Lien
Default") and (c) a default referred to in Subsections 22(c), (h), (i), (j),
(l), (m), (q), (r) or (s) above (a "Nonmonetary Default"). Without limiting
Mortgagee's rights to impose a late charge for Mortgagor's nonpayment as
provided in the Note, Mortgagor shall have a period of ten (10) days from its
receipt of notice in which to cure a Monetary Default which written notice
period may run concurrently with the ten (10) day period referred to in
Subsection 22(a), shall have a period of twenty (20) days from its receipt of
notice to cure a First Lien Default and shall have a period of thirty (30) days
from its receipt of notice in which to cure a Nonmonetary Default; provided,
however, that if such Nonmonetary Default is reasonably susceptible of cure,
but not within such thirty (30) day period, then Mortgagor shall be permitted
up to an additional thirty (30) days to cure such default provided that
Mortgagor diligently and continuously pursues such cure. Notwithstanding the
foregoing, Mortgagee may, but shall not be required, to give notice of a
Monetary Default or a recurrence of the same Nonmonetary Default more
frequently than two times in any twelve-month period. A Monetary Default
and/or First Lien Default and/or Nonmonetary Default (other than those referred
to in Subsections 22 (c), (e), (h), (i), (j), (k) and (r)) shall nevertheless
be an Event of Default for all purposes under the Loan Documents (including,
without limitation, Mortgagee's right to collect Default Interest and any other
administrative charge set forth in the Note) except that the acceleration of
the Debt or other exercise of remedies shall not be prior to the expiration of
the applicable cure and/or grace periods provided in Section 22 or in this
section.
24. Remedies. Upon the occurrence of an Event of Default and
subject to applicable law and any applicable cure period, Mortgagee may, at
Mortgagee's option, by Mortgagee itself, or otherwise, do any one or more of
the following:
(a) Right to Perform Mortgagor's Covenants. If Mortgagor has
failed to keep or perform any covenant whatsoever contained in this Mortgage or
the other Loan Documents, Mortgagee may, but shall not be obligated to any
person to do so, perform or attempt to perform said covenant; and any payment
made or expense incurred in the performance or attempted performance of any
such covenant, together with any sum expended by Mortgagee that is chargeable
to Mortgagor or subject to reimbursement by Mortgagor under the Loan Documents,
shall be and become a part of the Debt, and Mortgagor promises, upon demand, to
pay to Mortgagee, at the place where the Note is payable, all sums so incurred,
paid or expended by Mortgagee, with interest from the date when paid, incurred
or expended by Mortgagee at the Default Rate (as defined and otherwise
specified in the Note).
(b) Right of Entry. Mortgagee may, prior or subsequent to the
institution of any foreclosure proceedings, enter upon the Mortgaged Property,
or any part thereof, and take exclusive possession of the Mortgaged Property
and of all books, records, and accounts relating thereto and to exercise
without interference from Mortgagor any and all rights which Mortgagor has with
respect to the management, possession, operation, protection, or preservation
of the Mortgaged Property, including without limitation the right to rent the
same for the account of Mortgagor and to deduct from such Rents all costs,
expenses, and liabilities of every character incurred by the Mortgagee in
collecting such Rents and in managing, operating, maintaining, protecting, or
preserving the Mortgaged Property and to apply the remainder of such Rents on
the Debt in such manner as Mortgagee may elect. All such costs, expenses, and
liabilities incurred by the Mortgagee in collecting such Rents and in managing,
operating, maintaining, protecting, or preserving the Mortgaged Property, if
not paid out of Rents as hereinabove provided, shall constitute a demand
obligation owing by Mortgagor and shall bear interest from the date of
expenditure until paid at the Default Rate as specified in the Note, all of
which shall constitute a portion of the Debt. If necessary to obtain the
possession provided for above, the Mortgagee may invoke any and all legal
remedies to dispossess Mortgagor, including specifically one or more actions
for forcible entry and detainer, trespass to try title, and restitution. In
connection with any action taken by the Mortgagee pursuant to this subsection,
the Mortgagee shall not be liable for any loss sustained by Mortgagor resulting
from any failure to let the Mortgaged Property, or any part thereof, or from
any other act or omission of the Mortgagee in managing the Mortgaged Property
unless such loss is caused by the willful misconduct of the Mortgagee, nor
shall the Mortgagee be obligated to perform or discharge any obligation, duty,
or liability under any Lease or under or by reason hereof or the exercise of
rights or remedies hereunder. Mortgagor shall and does hereby agree to
indemnify the Indemnified Parties for, and to hold the Indemnified Parties
harmless from, any and all liability, loss, or damage, which may or might be
incurred by any Indemnified Party under any such Lease or under or by reason
hereof or the exercise of rights or remedies hereunder, and from any and all
claims and demands whatsoever which may be asserted against any Indemnified
Party by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants, or agreements contained in
any such Lease, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY, LOSS, DAMAGE, OR
CLAIM CAUSED BY OR RESULTING FROM THE ORDINARY NEGLIGENCE OF ANY INDEMNIFIED
PARTY. Should any Indemnified Party incur any such liability, the amount
thereof, including without limitation costs, expenses, and reasonable
attorneys' fees, together with interest thereon from the date of expenditure
until paid at the Default Rate as specified in the Note, shall be secured
hereby, and Mortgagor shall reimburse such Indemnified Party therefor
immediately upon demand. Nothing in this subsection shall impose any duty,
obligation, or responsibility upon any Indemnified Party for the control, care,
management, leasing, or repair of the Mortgaged Property, nor for the carrying
out of any of the terms and conditions of any such Lease; nor shall it operate
to make any Indemnified Party responsible or liable for any waste committed on
the Mortgaged Property by the tenants or by any other parties, or for any
hazardous substances or environmental conditions on or under the Mortgaged
Property, or for any dangerous or defective condition of the Mortgaged Property
or for any negligence in the management, leasing, upkeep, repair, or control of
the Mortgaged Property resulting in loss or injury or death to any tenant,
licensee, employee, or stranger. Mortgagor hereby assents to, ratifies, and
confirms any and all actions of the Mortgagee with respect to the Mortgaged
Property taken under this subsection.
(c) Right to Accelerate. Mortgagee may, without notice except
as provided in Section 23 above, demand, presentment, notice of nonpayment or
nonperformance, protest, notice of protest, notice of intent to accelerate,
notice of acceleration, or any other notice or any other action, all of which
are hereby waived by Mortgagor and all other parties obligated in any manner
whatsoever on the Debt, declare the entire unpaid balance of the Debt
immediately due and payable, and upon such declaration, the entire unpaid
balance of the Debt shall be immediately due and payable.
(d) Foreclosure-Power of Sale. Mortgagee may institute a
proceeding or proceedings, judicial, or nonjudicial, by advertisement or
otherwise, for the complete or partial foreclosure of this Mortgage or the
complete or partial sale of the Mortgaged Property under the power of sale
contained herein or under any applicable provision of law. Mortgagee may sell
the Mortgaged Property, and all estate, right, title, interest, claim and
demand of Mortgagor therein, and all rights of redemption thereof, at one or
more sales, as an entirety or in parcels, with such elements of real and/or
personal property, and at such time and place and upon such terms as it may
deem expedient, or as may be required by applicable law, and in the event of a
sale, by foreclosure or otherwise, of less than all of the Mortgaged Property,
this Mortgage shall continue as a lien and security interest on the remaining
portion of the Mortgaged Property.
(e) Rights Pertaining to Sales. Subject to the requirements of
applicable law and except as otherwise provided herein, the following
provisions shall apply to any sale or sales of all or any portion of the
Mortgaged Property under or by virtue of Subsection (d) above, whether made
under the power of sale herein granted or by virtue of judicial proceedings or
of a judgment or decree of foreclosure and sale:
(i) Mortgagee may conduct any number of sales from time
to time. The power of sale set forth above shall not be exhausted by any
one or more such sales as to any part of the Mortgaged Property which
shall not have been sold, nor by any sale which is not completed or is
defective in Mortgagee's opinion, until the Debt shall have been paid in
full.
(ii) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or for such
postponed or adjourned sale without further notice.
(iii) After each sale, Mortgagee or an officer of any court
empowered to do so shall execute and deliver to the purchaser or
purchasers at such sale a good and sufficient instrument or instruments
granting, conveying, assigning and transferring all right, title and
interest of Mortgagor in and to the property and rights sold and shall
receive the proceeds of said sale or sales and apply the same as specified
in the Note. Mortgagee is hereby appointed the true and lawful
attorney-in-fact of Mortgagor, which appointment is irrevocable and shall
be deemed to be coupled with an interest, in Mortgagor's name and stead,
to make all necessary conveyances, assignments, transfers and deliveries
of the property and rights so sold, Mortgagor hereby ratifying and
confirming all that said attorney or such substitute or substitutes shall
lawfully do by virtue thereof. Nevertheless, Mortgagor, if requested by
Mortgagee, shall ratify and confirm any such sale or sales by executing
and delivering to Mortgagee or such purchaser or purchasers all such
instruments as may be advisable, in Mortgagee's judgment, for the purposes
as may be designated in such request.
(iv) Any and all statements of fact or other recitals made
in any of the instruments referred to in Subsection (e)(iii) above given
by Mortgagee shall be taken as conclusive and binding against all persons
as to evidence of the truth of the facts so stated and recited.
(v) Any such sale or sales shall operate to divest all of
the estate, right, title, interest, claim and demand whatsoever, whether
at law or in equity, of Mortgagor in and to the properties and rights so
sold, and shall be a perpetual bar both at law and in equity against
Mortgagor and any and all persons claiming or who may claim the same, or
any part thereof or any interest therein, by, through or under Mortgagor
to the fullest extent permitted by applicable law.
(vi) Upon any such sale or sales, Mortgagee may bid for
and acquire the Mortgaged Property and, in lieu of paying cash therefor,
may make settlement for the purchase price by crediting against the Debt
the amount of the bid made therefor, after deducting therefrom the
expenses of the sale, the cost of any enforcement proceeding hereunder,
and any other sums which Mortgagee is authorized to deduct under the terms
hereof, to the extent necessary to satisfy such bid.
(vii) Upon any such sale, it shall not be necessary for
Mortgagee or any public officer acting under execution or order of court
to have present or constructively in its possession any of the Mortgaged
Property.
(f) Mortgagee's Judicial Remedies. Mortgagee may proceed by
suit or suits, at law or in equity, to enforce the payment of the Debt to
foreclose the liens and security interests of this Mortgage as against all or
any part of the Mortgaged Property, and to have all or any part of the
Mortgaged Property sold under the judgment or decree of a court of competent
jurisdiction. This remedy shall be cumulative of any other nonjudicial
remedies available to the Mortgagee under this Mortgage or the other Loan
Documents. Proceeding with a request or receiving a judgment for legal relief
shall not be or be deemed to be an election of remedies or bar any available
nonjudicial remedy of the Mortgagee.
(g) Mortgagee's Right to Appointment of Receiver. Mortgagee,
as a matter of right and (i) without regard to the sufficiency of the security
for repayment of the Debt and without notice to Mortgagor, (ii) without any
showing of insolvency, fraud, or mismanagement on the part of Mortgagor,
(iii) without the necessity of filing any judicial or other proceeding other
than the proceeding for appointment of a receiver, and (iv) without regard to
the then value of the Mortgaged Property, shall be entitled to the appointment
of a receiver or receivers for the protection, possession, control, management
and operation of the Mortgaged Property, including (without limitation), the
power to collect the Rents, enforce this Mortgage and, in case of a sale and
deficiency, during the full statutory period of redemption (if any), whether
there be a redemption or not, as well as during any further times when
Mortgagor, except for the intervention of such receiver, would be entitled to
collection of such Rents. Mortgagor hereby irrevocably consents to the
appointment of a receiver or receivers. Any receiver appointed pursuant to the
provisions of this subsection shall have the usual powers and duties of
receivers in such matters.
(h) Mortgagee's Uniform Commercial Code Remedies. The
Mortgagee may exercise its rights of enforcement under the Uniform Commercial
Code in effect in the state in which the Mortgaged Property is located.
(i) Other Rights. Mortgagee (i) may surrender the Policies
maintained pursuant to this Mortgage or any part thereof, and upon receipt
shall apply the unearned premiums as a credit on the Debt, and, in connection
therewith, Mortgagor hereby appoints Mortgagee as agent and attorney-in-fact
(which is coupled with an interest and is therefore irrevocable) for Mortgagor
to collect such premiums; and (ii) may apply the Tax and Insurance Escrow Fund,
the Replacement Reserve Fund, the Tenant Improvement/Leasing Commission Escrow
and/or the Deposit Account, Collection Account and Expense Account and any
other funds held by Mortgagee toward payment of the Debt; and (iii) shall have
and may exercise any and all other rights and remedies which Mortgagee may have
at law or in equity, or by virtue of any of the Loan Documents, or otherwise.
(j) Discontinuance of Remedies. In case Mortgagee shall have
proceeded to invoke any right, remedy, or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon same for any
reason, Mortgagee shall have the unqualified right so to do and, in such event,
Mortgagor and Mortgagee shall be restored to their former positions with
respect to the Debt, the Loan Documents, the Mortgaged Property or otherwise,
and the rights, remedies, recourses and powers of Mortgagee shall continue as
if same had never been invoked.
(k) Remedies Cumulative. All rights, remedies, and recourses
of Mortgagee granted in the Note, this Mortgage and the other Loan Documents,
any other pledge of collateral, or otherwise available at law or equity: (i)
shall be cumulative and concurrent; (ii) may be pursued separately,
successively, or concurrently against Mortgagor, the Mortgaged Property, or any
one or more of them, at the sole discretion of Mortgagee; (iii) may be
exercised as often as occasion therefor shall arise, it being agreed by
Mortgagor that the exercise or failure to exercise any of same shall in no
event be construed as a waiver or release thereof or of any other right,
remedy, or recourse; (iv) shall be nonexclusive; (v) shall not be conditioned
upon Mortgagee exercising or pursuing any remedy in relation to the Mortgaged
Property prior to Mortgagee bringing suit to recover the Debt; and (vi) in the
event Mortgagee elects to bring suit on the Debt and obtains a judgment against
Mortgagor prior to exercising any remedies in relation to the Mortgaged
Property, all liens and security interests, including the lien of this
Mortgage, shall remain in full force and effect and may be exercised thereafter
at Mortgagee's option.
(l) Election of Remedies. Mortgagee may release, regardless of
consideration, any part of the Mortgaged Property without, as to the remainder,
in any way impairing, affecting, subordinating, or releasing the lien or
security interests evidenced by this Mortgage or the other Loan Documents or
affecting the obligations of Mortgagor or any other party to pay the Debt. For
payment of the Debt, Mortgagee may resort to any collateral securing the
payment of the Debt in such order and manner as Mortgagee may elect. No
collateral taken by Mortgagee shall in any manner impair or affect the lien or
security interests given pursuant to the Loan Documents, and all collateral
shall be taken, considered, and held as cumulative.
(m) Bankruptcy Acknowledgment. In the event the Mortgaged
Property or any portion thereof or any interest therein becomes property of any
bankruptcy estate or subject to any state or federal insolvency proceeding,
then Mortgagee shall immediately become entitled, in addition to all other
relief to which Mortgagee may be entitled under this Mortgage, to obtain (i) an
order from the Bankruptcy Court or other appropriate court granting immediate
relief from the automatic stay pursuant to Section 362 of the Bankruptcy Code
so to permit Mortgagee to pursue its rights and remedies against Mortgagor as
provided under this Mortgage and all other rights and remedies of Mortgagee at
law and in equity under applicable state law, and (ii) an order from the
Bankruptcy Court prohibiting Mortgagor's use of all "cash collateral" as
defined under Section 363 of the Bankruptcy Code. In connection with such
Bankruptcy Court orders, Mortgagor shall not contend or allege in any pleading
or petition filed in any court proceeding that Mortgagee does not have
sufficient grounds for relief from the automatic stay. Any bankruptcy petition
or other action taken by the Mortgagor to stay, condition, or inhibit Mortgagee
from exercising its remedies are hereby admitted by Mortgagor to be in bad
faith and Mortgagor further admits that Mortgagee would have just cause for
relief from the automatic stay in order to take such actions authorized under
state law.
(n) Application of Proceeds. The proceeds from any sale,
lease, or other disposition made pursuant to this Mortgage, or the proceeds
from the surrender of any insurance policies pursuant hereto, or any Rents
collected by Mortgagee from the Mortgaged Property, or the Tax and Insurance
Escrow Fund, the Replacement Reserve Fund or the Tenant Improvement/Leasing
Commission Escrow or sums received pursuant to Section 7 hereof, or proceeds
from insurance which Mortgagee elects to apply to the Debt pursuant to
Section 3 hereof, shall be applied by Mortgagee to the Debt in the following
order and priority: (i) to the payment of all expenses of advertising,
selling, and conveying the Mortgaged Property or part thereof, and/or
prosecuting or otherwise collecting Rents, proceeds, premiums or other sums
including reasonable attorneys' fees; (ii) to that portion, if any, of the Debt
with respect to which no person or entity has personal or entity liability for
payment (the "Exculpated Portion"), and with respect to the Exculpated Portion
as follows: first, to accrued but unpaid interest, second, to matured
principal, and third, to unmatured principal in inverse order of maturity;
(iii) to the remainder of the Debt as follows: first, to the remaining accrued
but unpaid interest, second, to the matured portion of principal of the Debt,
and third, to prepayment of the unmatured portion, if any, of principal of the
Debt applied to installments of principal in inverse order of maturity; (iv)
the balance, if any or to the extent applicable, remaining after the full and
final payment of the Debt to the holder or beneficiary of any inferior liens
covering the Mortgaged Property, if any, in order of the priority of such
inferior liens (Mortgagee shall hereby be entitled to rely exclusively on a
commitment for title insurance issued to determine such priority); and (v) the
cash balance, if any, to the Mortgagor. The application of proceeds of sale or
other proceeds as otherwise provided herein shall be deemed to be a payment of
the Debt like any other payment. The balance of the Debt remaining unpaid, if
any, shall remain fully due and owing in accordance with the terms of the Note
and the other Loan Documents.
25. Security Agreement. This Mortgage is both a real property
mortgage or deed of trust and a "security agreement" within the meaning of the
Uniform Commercial Code. The Mortgaged Property includes both real and
personal property and all other rights and interests, whether tangible or
intangible in nature, of Mortgagor in the Mortgaged Property. Mortgagor by
executing and delivering this Mortgage has granted and hereby grants to
Mortgagee, as security for the Debt, a security interest in the Mortgaged
Property to the full extent that the Mortgaged Property may be subject to the
Uniform Commercial Code (said portion of the Mortgaged Property so subject to
the Uniform Commercial Code being called in this section the "Collateral").
Mortgagor hereby agrees with Mortgagee to execute and deliver to Mortgagee, in
form and substance satisfactory to Mortgagee, such financing statements and
such further assurances as Mortgagee may from time to time, reasonably consider
necessary to create, perfect, and preserve Mortgagee's security interest herein
granted. This Mortgage shall also constitute a "fixture filing" for the
purposes of the Uniform Commercial Code. All or part of the Mortgaged Property
are or are to become fixtures. Information concerning the security interest
herein granted may be obtained from the parties at the addresses of the parties
set forth in the first paragraph of this Mortgage. If an Event of Default
shall occur and be continuing, Mortgagee, in addition to any other rights and
remedies which it may have, shall have and may exercise immediately and without
demand, any and all rights and remedies granted to a secured party upon default
under the Uniform Commercial Code, including, without limiting the generality
of the foregoing, the right to take possession of the Collateral or any part
thereof, and to take such other measures as Mortgagee may deem necessary for
the care, protection and preservation of the Collateral. Upon request or
demand of Mortgagee after the occurrence of an Event of Default, Mortgagor
shall at its expense assemble the Collateral and make it available to Mortgagee
at a convenient place acceptable to Mortgagee. Mortgagor shall pay to
Mortgagee on demand any and all expenses, including legal expenses and
attorneys' fees, incurred or paid by Mortgagee in protecting the interest in
the Collateral and in enforcing the rights hereunder with respect to the
Collateral. Any notice of sale, disposition or other intended action by
Mortgagee with respect to the Collateral sent to Mortgagor in accordance with
the provisions hereof at least ten (10) days prior to such action, shall
constitute commercially reasonable notice to Mortgagor. The proceeds of any
disposition of the Collateral, or any part thereof, may be applied by Mortgagee
to the payment of the Debt in such priority and proportions as Mortgagee in its
discretion shall deem proper. In the event of any change in name, identity or
structure of Mortgagor, Mortgagor shall notify Mortgagee thereof and promptly
after request shall execute, file and record such Uniform Commercial Code forms
as are necessary to maintain the priority of Mortgagee's lien upon and security
interest in the Collateral, and shall pay all expenses and fees in connection
with the filing and recording thereof. If Mortgagee shall require the filing
or recording of additional Uniform Commercial Code forms or continuation
statements, Mortgagor shall, promptly after request, execute, file and record
such Uniform Commercial Code forms or continuation statements as Mortgagee
shall deem necessary, and shall pay all expenses and fees in connection with
the filing and recording thereof, it being understood and agreed, however, that
no such additional documents shall increase Mortgagor's obligations under the
Note, this Mortgage and the other Loan Documents. Mortgagor hereby irrevocably
appoints Mortgagee as its attorney-in-fact, coupled with an interest, to file
with the appropriate public office on its behalf, but only after providing the
Mortgagor notice and the opportunity to do so, any financing or other
statements signed only by Mortgagee, as Mortgagor's attorney-in-fact, in
connection with the Collateral covered by this Mortgage. Notwithstanding the
foregoing, Mortgagor shall appear and defend in any action or proceeding which
affects or purports to affect the Mortgaged Property and any interest or right
therein, whether such proceeding affects title or any other rights in the
Mortgaged Property (and in conjunction therewith, Mortgagor shall fully
cooperate with Mortgagee in the event Mortgagee is a party to such action or
proceeding).
26. Right of Entry. In addition to any other rights or remedies
granted under this Mortgage, Mortgagee and its agents shall have the right to
enter and inspect the Mortgaged Property at any reasonable time upon prior
notice during the term of the Loan. The cost of such inspections or audits
shall be borne by Mortgagor should an Event of Default exist, including the
cost of all follow up or additional investigations or inquiries deemed
reasonably necessary by Mortgagee. The cost of such inspections, if not paid
for by Mortgagor following demand, may be added to the principal balance of the
sums due under the Note and this Mortgage and shall bear interest thereafter
until paid at the Default Rate.
27. Actions and Proceedings. Mortgagee has the right to appear in
and defend any action or proceeding brought with respect to the Mortgaged
Property and to bring any action or proceeding, in the name and on behalf of
Mortgagor, which Mortgagee, in its discretion, decides should be brought to
protect its interest in the Mortgaged Property. Mortgagee shall, at its
option, be subrogated to the lien of any mortgage or other security instrument
discharged in whole or in part by the Debt, and any such subrogation rights
shall constitute additional security for the payment of the Debt.
28. Waiver of Setoff and Counterclaim, Marshalling, Statute of
Limitations, Automatic or Supplemental Stay, Etc. (a) All amounts due
under this Mortgage, the Note and the other Loan Documents shall be payable
without setoff, counterclaim or any deduction whatsoever. Mortgagor hereby
waives the right to assert a setoff, counterclaim or deduction in any action or
proceeding in which Mortgagee is a participant, or arising out of or in any way
connected with this Mortgage, the Note, any of the other Loan Documents, or the
Debt.
(b) Mortgagor hereby expressly, irrevocably, and
unconditionally waives and releases, to the extent permitted by law (i) the
benefit of all appraisement, valuation, stay, extension, reinstatement and
redemption laws now or hereafter in force and all rights of marshalling, sale
in the inverse order of alienation, or any other right to direct in any manner
the order or sale of any of the Mortgaged Property in the event of any sale
hereunder of the Mortgaged Property or any part thereof or any interest
therein; (ii) any and all rights of redemption from sale under any order or
decree of foreclosure of this Mortgage on behalf of Mortgagor, and on behalf of
each and every person acquiring any interest in or title to the Mortgaged
Property subsequent to the date of this Mortgage and on behalf of all persons
to the extent permitted by applicable law; (iii) all benefits that might accrue
to Mortgagor by virtue of any present or future law exempting the Mortgaged
Property from attachment, levy or sale on execution or providing for any
appraisement, valuation, stay of execution, exemption from civil process,
redemption, or extension of time for payment; and (iv) all notices of any Event
of Default except as expressly provided herein.
(c) To the extent permitted by applicable law, Mortgagee's
rights hereunder shall continue even to the extent that a suit for collection
of the Debt, or part thereof, is barred by a statute of limitations. Mortgagor
hereby expressly waives and releases to the fullest extent permitted by law,
the pleading of any statute of limitations as a defense to payment of the Debt.
(d) In the event of the filing of any voluntary or involuntary
petition under the U.S. Bankruptcy Code (the "Bankruptcy Code") by or against
Mortgagor (other than an involuntary petition filed by or joined in by
Mortgagee), the Mortgagor shall not assert, or request any other party to
assert, that the automatic stay under Section 362 of the Bankruptcy Code shall
operate or be interpreted to stay, interdict, condition, reduce or inhibit the
ability of Mortgagee to enforce any rights it has by virtue of this Mortgage,
or any other rights that Mortgagee has, whether now or hereafter acquired,
against any guarantor of the Debt. Further, Mortgagor shall not seek a
supplemental stay or any other relief, whether injunctive or otherwise,
pursuant to Section 105 of the Bankruptcy Code or any other provision therein
to stay, interdict, condition, reduce or inhibit the ability of Mortgagee to
enforce any rights it has by virtue of this Mortgage against any guarantor of
the Debt. The waivers contained in this section are a material inducement to
Mortgagee's willingness to enter into this Mortgage and Mortgagor acknowledges
and agrees that no grounds exist for equitable relief which would bar, delay or
impede the exercise by Mortgagee of Mortgagee's rights and remedies against
Mortgagor or any guarantor of the Debt.
29. Contest of Certain Claims. Notwithstanding the provisions of
Section 4 and Subsection 22(i) hereof, Mortgagor shall not be in default for
failure to pay or discharge Taxes, Other Charges or mechanic's or materialman's
lien asserted against the Mortgaged Property if, and so long as, (a) Mortgagor
shall have notified Mortgagee of same within ten (10) days of obtaining
knowledge thereof; (b) Mortgagor shall diligently and in good faith contest the
same by appropriate legal proceedings which shall operate to prevent the
enforcement or collection of the same and the sale of the Mortgaged Property or
any part thereof, to satisfy the same; (c) Mortgagor shall have furnished to
Mortgagee a cash deposit, or an indemnity bond satisfactory to Mortgagee with a
surety satisfactory to Mortgagee, in the amount of the Taxes, Other Charges or
mechanic's or materialman's lien claim, plus a reasonable additional sum to pay
all costs, interest and penalties that may be imposed or incurred in connection
therewith, to assure payment of the matters under contest and to prevent any
sale or forfeiture of the Mortgaged Property or any part thereof; (d) Mortgagor
shall promptly upon final determination thereof pay the amount of any such
Taxes, Other Charges or claim so determined, together with all costs, interest
and penalties which may be payable in connection therewith; (e) the failure to
pay the Taxes, Other Charges or mechanic's or materialman's lien claim does not
constitute a default under any other deed of trust, mortgage or security
interest covering or affecting any part of the Mortgaged Property; and (f)
notwithstanding the foregoing, Mortgagor shall immediately upon request of
Mortgagee pay (and if Mortgagor shall fail so to do, Mortgagee may, but shall
not be required to, pay or cause to be discharged or bonded against) any such
Taxes, Other Charges or claim notwithstanding such contest, if the Mortgaged
Property or any part thereof or interest therein is in immediate danger of
being sold, forfeited, foreclosed, terminated, canceled or lost. Mortgagee may
pay over any such cash deposit or part thereof to the claimant entitled thereto
at any time when, in the judgment of Mortgagee, the entitlement of such
claimant is established.
30. Recovery of Sums Required to Be Paid. Mortgagee shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Mortgagee thereafter to bring an action of foreclosure, or any other action,
for a default or defaults by Mortgagor existing at the time such earlier action
was commenced.
31. Handicapped Access. (a) Mortgagor agrees that the Mortgaged
Property shall at all times comply in all material respects with applicable
requirements of the Americans with Disabilities Act of 1990, the Fair Housing
Amendments Act of 1988, all state and local laws and ordinances related to
handicapped access and all rules, regulations, and orders issued pursuant
thereto including, without limitation, the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (collectively "Access
Laws").
(b) Notwithstanding any provisions set forth herein or in any
other document regarding Mortgagee's approval of alterations of the Mortgaged
Property, Mortgagor shall not alter the Mortgaged Property in any manner which
would increase Mortgagor's responsibilities for compliance with the applicable
Access Laws without the prior written approval of Mortgagee. The foregoing
shall apply to tenant improvements constructed by Mortgagor or by any of its
tenants. Mortgagee may condition any such approval upon receipt of a
certificate from an architect, engineer, or other person acceptable to
Mortgagee of compliance with Access Laws.
(c) Mortgagor agrees to give prompt notice to Mortgagee of the
receipt by Mortgagor of any complaints related to violation of any Access Laws
and of the commencement of any proceedings or investigations which relate to
compliance with applicable Access Laws.
32. Indemnification. Unless caused solely by an Indemnified Party's
willful misconduct or gross negligence AND REGARDLESS OF WHETHER CAUSED BY AN
INDEMNIFIED PARTY'S ORDINARY NEGLIGENCE, Mortgagor shall protect, defend,
indemnify and save harmless the Indemnified Parties from and against all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expenses (including without limitation reasonable attorneys' fees and
expenses), imposed upon or incurred by or asserted against any Indemnified
Party by reason of (a) ownership of the Mortgage, the Mortgaged Property or any
interest therein or receipt of any rents; (b) any accident, injury to or death
of persons or loss of or damage to property occurring in, on or about the
Mortgaged Property or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (c) any use,
nonuse or condition in, on or about the Mortgaged Property or any part thereof
or on the adjoining sidewalks, curbs, adjacent property or adjacent parking
areas, streets or ways; (d) performance of any labor or services or the
furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof; (e) any actions taken by any Indemnified Party in
the enforcement of this Mortgage and the other Loan Documents; (f) any failure
to act on the part of any Indemnified Party hereunder; (g) the payment or
nonpayment of any brokerage commissions to any party in connection with the
transaction contemplated hereby; and (h) the failure of Mortgagor to file
timely with the Internal Revenue Service an accurate Form 0000-X, Xxxxxxxxx for
Recipients of Proceeds from Real Estate, Broker and Barter Exchange
Transactions, which may be required in connection with this Agreement, or to
supply a copy thereof in a timely fashion to the recipient of the proceeds of
the transaction in connection with which this Agreement is made. Any amounts
payable to an Indemnified Party by reason of the application of this section
shall become immediately due and payable and shall bear interest at the Default
Rate from the date loss or damage is sustained by such Indemnified Party until
paid.
33. Reserved.
34. Notices. Any notice, demand, statement, request or consent made
hereunder shall be in writing, addressed to the address, as set forth above, of
the party to whom such notice is to be given, or to such other address as
Mortgagor or Mortgagee, as the case may be, shall designate in writing, and
shall be deemed to be received by the addressee on (i) the day such notice is
personally delivered to such addressee, (ii) the third (3rd) day following the
day such notice is deposited with the United States postal service first class
certified mail, return receipt requested, (iii) the day following the day on
which such notice is delivered to a nationally recognized overnight courier
delivery service, or (iv) the day facsimile transmission is confirmed after
transmission of such notice by telecopy to such telecopier number as Mortgagor
or Mortgagee, as the case may be, shall have previously designated in writing.
35. Authority. (a) Mortgagor (and the undersigned representative
of Mortgagor, if any) has full power, authority and right to execute, deliver
and perform its obligations pursuant to this Mortgage, and to mortgage, give,
grant, bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge,
hypothecate and assign the Mortgaged Property pursuant to the terms hereof and
to keep and observe all of the terms of this Mortgage on Mortgagor's part to be
performed; and (b) Mortgagor represents and warrants that Mortgagor is not a
"foreign person" within the meaning of Section 1445(f)(3) of the Internal
Revenue Code of 1986, as amended and the related Treasury Department
regulations.
36. ERISA. (a) As of the date hereof and throughout the term of
the Loan, (i) Mortgagor is not and will not be an "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), which is subject to Title I of ERISA, and (ii) the assets
of Mortgagor do not and will not constitute "plan assets" of one or more such
plans for purposes of Title I of ERISA; and
(b) As of the date hereof and throughout the term of the Loan
(i) Mortgagor is not and will not be a "governmental plan" within the meaning
of Section 3(3) of ERISA and (ii) transactions by or with Mortgagor are not and
will not be subject to state statutes applicable to Mortgagor regulating
investments of and fiduciary obligations with respect to governmental plans.
37. Waiver of Notice. Mortgagor shall not be entitled to any
notices of any nature whatsoever from Mortgagee except with respect to matters
for which this Mortgage specifically and expressly provides for the giving of
notice by Mortgagee to Mortgagor and except with respect to matters for which
Mortgagee is required by applicable law to give notice, and Mortgagor hereby
expressly waives the right to receive any notice from Mortgagee with respect to
any matter for which this Mortgage does not specifically and expressly provide
for the giving of notice by Mortgagee to Mortgagor.
38. Remedies of Mortgagor. In the event that a claim or
adjudication is made that Mortgagee has acted unreasonably or unreasonably
delayed acting in any case where by law or under the Note, this Mortgage or the
other Loan Documents, it has an obligation to act reasonably or promptly,
Mortgagee shall not be liable for any monetary damages, and Mortgagor's
remedies shall be limited to injunctive relief or declaratory judgment.
39. Sole Discretion of Mortgagee. Whenever pursuant to this
Mortgage, Mortgagee exercises any right given to it to approve or disapprove,
or any arrangement or term is to be satisfactory to Mortgagee, the decision of
Mortgagee to approve or disapprove or to decide that arrangements or terms are
satisfactory or not satisfactory shall be in the sole discretion of Mortgagee
and shall be final and conclusive, except as may be otherwise expressly and
specifically provided herein.
40. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term
of this Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations
hereunder by reason of (a) the failure of Mortgagee to comply with any request
of Mortgagor or Guarantor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of the Note or other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Debt or any
portion thereof, or (c) any agreement or stipulation by Mortgagee extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Mortgage, or the other Loan Documents. Mortgagee may resort for the
payment of the Debt to any other security held by Mortgagee in such order and
manner as Mortgagee, in its discretion, may elect. Mortgagee may take action
to recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Mortgagee thereafter to foreclosure this
Mortgage. The rights and remedies of Mortgagee under this Mortgage shall be
separate, distinct and cumulative and none shall be given effect to the
exclusion of the others. No act of Mortgagee shall be construed as an election
to proceed under any one provision herein to the exclusion of any other
provision. Mortgagee shall not be limited exclusively to the rights and
remedies herein stated but shall be entitled to every right and remedy now or
hereafter afforded at law or in equity.
41. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Mortgagee's consent to
certain transfers of the Mortgaged Property, this Mortgage shall be binding
upon and inure to the benefit of Mortgagor and Mortgagee and their respective
successors and assigns forever.
42. Inapplicable Provisions. If any term, covenant or condition of
this Mortgage is held to be invalid, illegal or unenforceable in any respect,
this Mortgage shall be construed without such provision.
43. Headings, Etc. The headings and captions of various sections of
this Mortgage are for convenience of reference only and are not to be construed
as defining or limiting, in any way, the scope or intent of the provisions
hereof.
44. Counterparts. This Mortgage may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
45. Definitions. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Mortgage may be used interchangeably in singular or plural form and the word
"Mortgagor" shall mean "each Mortgagor and any subsequent owner or owners of
the Mortgaged Property or any part thereof or any interest therein," the word
"Mortgagee" shall mean "Mortgagee and any subsequent holder of the Note," the
word "Debt" shall mean "the Note and any other evidence of indebtedness secured
by this Mortgage," the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, and the words "Mortgaged Property" shall
include any portion of the Mortgaged Property and any interest therein and the
words "attorneys' fees" shall include any and all attorneys' fees, paralegal
and law clerk fees, including, but not limited to, fees at the pre-trial, trial
and appellate levels incurred or paid by Mortgagee in protecting its interest
in the Mortgaged Property and Collateral and enforcing its rights hereunder.
Whenever the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa.
46. Homestead. Mortgagor hereby waives and renounces all homestead
and exemption rights provided by the constitution and the laws of the United
States and of any state, in and to the Premises as against the collection of
the Debt, or any part hereof.
47. Assignments. Mortgagee shall have the right to assign or
transfer its rights under this Mortgage and the other Loan Documents without
limitation, including, without limitation, the right to assign or transfer its
rights to a servicing agent. Any assignee or transferee shall be entitled to
all the benefits afforded Mortgagee under this Mortgage and the other Loan
Documents.
48. Survival of Obligations; Survival of Warranties and
Representations. Each and all of the covenants and obligations of Mortgagor
(other than warranties and representations contained herein) shall survive the
execution and delivery of the Loan Documents and shall continue in full force
and effect until the Debt shall have been paid in full, provided, however, that
nothing contained in this Section 48 shall limit the obligations of Mortgagor
except as otherwise set forth herein. In addition, any and all warranties and
representations of Mortgagor contained herein shall survive the execution and
delivery of the Loan Documents and shall survive for a period of one (1) year
following any release of this Mortgage executed by Mortgagee and satisfaction
of the loan evidenced by the Loan Documents, the transfer or assignment of this
Mortgage, the entry of a judgment of foreclosure or sale of the Mortgaged
Property by non judicial foreclosure or deed in lieu of foreclosure (including,
without limitation, any transfer of the Mortgage by Mortgagee of any of its
rights, title and interest in and to the Mortgaged Property to any party,
whether or not affiliated with Mortgagee).
49. Covenants Running with the Land. All covenants, conditions,
warranties, representations and other obligations contained in this Mortgage
and the other Loan Documents are intended by Mortgagor and Mortgagee to be, and
shall be construed as, covenants running with the Mortgaged Property until the
lien of this Mortgage has been fully released by Mortgagee.
50. Governing Law; Jurisdiction. THIS MORTGAGE AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED (WITHOUT REGARD TO ANY
CONFLICT OF LAWS PRINCIPLES) AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. MORTGAGOR AND MORTGAGEE HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION
OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE
MORTGAGED PROPERTY IS LOCATED IN CONNECTION WITH ANY PROCEEDING OUT OF OR
RELATING TO THIS MORTGAGE.
51. Time. Time is of the essence in this Mortgage and the other
Loan Documents.
52. No Third-Party Beneficiaries. The provisions of this Mortgage
and the other Loan Documents are for the benefit of Mortgagor and Mortgagee and
shall not inure to the benefit of any third party (other than any successor or
assignee of Mortgagee). This Mortgage and the other Loan Documents shall not
be construed as creating any rights, claims or causes of action against
Mortgagee or any of its officers, directors, agents or employees in favor of
any party other than Mortgagor, including, but not limited to, any claims to
any sums held in the Tax and Insurance Escrow Fund, the Replacement Reserve
Fund or the Tenant Improvement/Leasing Commission Escrow.
53. Relationship of Parties. The relationship of Mortgagee and
Mortgagor is solely that of debtor and creditor, and Mortgagee has no fiduciary
or other special relationship with the Mortgagor, and no term or condition of
any of the Loan Documents shall be construed to be other than that of debtor
and creditor. Mortgagor represents and acknowledges that the Loan Documents do
not provide for any shared appreciation rights or other equity participation
interest.
54. Exculpation.
Notwithstanding anything to the contrary contained herein,
Borrower's liability hereunder shall be limited as set forth in Section 12 of
the Note.
55. Investigations. Any and all representations, warranties,
covenants and agreements made in this Mortgage (and/or in other Loan Documents)
shall survive any investigation or inspection made by or on behalf of
Mortgagee.
56. Assignment of Leases and Rents. Mortgagor acknowledges and
confirms that it has executed and delivered to Mortgagee an Assignment of
Leases and Rents of even date (as the same may be amended, restated,
supplemented, or otherwise modified from time to time, the "Assignment of
Leases and Rents"), intending that such instrument create a present, absolute
assignment to Mortgagee of the Leases and Rents. Without limiting the intended
benefits or the remedies provided under the Assignment of Rents and Leases,
Mortgagor hereby assigns to Mortgagee, as further security for the Debt and the
Obligations, the Leases and Rents. While any Event of Default exists,
Mortgagee shall be entitled to exercise any or all of the remedies provided in
the Assignment of Leases and Rents and in Section 24 hereof, including, without
limitation, the right to have a receiver appointed. If any conflict or
inconsistency exists between the assignment of the Leases and the Rents in this
Mortgage and the absolute assignment of the Leases and the Rents in the
Assignment of Rents and Leases, the terms of the Assignment of Rents and Leases
shall control.
57. WAIVER OF RIGHT TO TRIAL BY JURY. MORTGAGOR AND MORTGAGEE
HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS MORTGAGE OR THE OTHER
LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY MORTGAGOR AND MORTGAGEE, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. EITHER PARTY IS HEREBY AUTHORIZED TO FILE A COPY
OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
MORTGAGOR AND MORTGAGEE.
[Signature page follows]
IN WITNESS WHEREOF, Mortgagor has executed this instrument the day
and year first above written.
WITNESS: [MORTGAGOR]:
____________________________________
__________________________________ a __________________________________
By: /s/ Xxxxxx X. Xxxxxx
________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ACKNOWLEDGMENTS
(TO BE ATTACHED)
EXHIBIT A
Legal Description
