1
EXHIBIT 10.53
--------------------------------------------------------------------------------
Date: July 30, 1996
MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES
AND RENTS AND FIXTURE FILING
BETWEEN
SAWGRASS XXXXX PHASE II LIMITED PARTNERSHIP
a Delaware limited partnership
Address: c/o The Xxxxx Corporation
0000 Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
("Mortgagor")
AND
CS FIRST BOSTON MORTGAGE CAPITAL CORP.
a Delaware corporation
having its principal office at 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
("Mortgagee")
--------------------------------------------------------------------------------
This instrument prepared by,
and after recording please return to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
2
Table of Contents
Page
----
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. CERTAIN DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Alteration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Appraisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Appraiser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Approved Control Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Architect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Assignment of Leases and Rents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Available Cash Flow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Critical Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Excusable Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Extended Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Extension Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
General Partner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Hazardous Substances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Impositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Improvements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Independent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Insurance Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
IRC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Legal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Loan Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Management Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Manager . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Master Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Master Lease Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Mortgage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Mortgage Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Mortgagee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Mortgagor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Officer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Operating Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Permitted Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Permitted Owner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00
-x-
0
Xxxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Prime Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
REA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Renewal Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Restoration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Secured Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Threshold Amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Total Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Total Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
U.S. Government Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2. PARTICULAR COVENANTS, REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.1. Validity and Issuance of the Mortgage Note;
Title to the Premises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.2. Maintenance of Validity and Recording. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.3. Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.4. Existence and Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.5. Payment of Taxes and Other Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.6. Payment of the Mortgage Note and
All Other Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3. MAINTENANCE AND REPAIRS, SHORING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4. UTILITY SERVICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5. NO CLAIMS AGAINST MORTGAGEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6. INDEMNIFICATION BY THE MORTGAGOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7. INSPECTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8. PAYMENT OF IMPOSITIONS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9. COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS,
INSTRUMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10. LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11. PERMITTED CONTESTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
12. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
12.1. Risks to be Insured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
12.2. Policy Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
12.3. Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
12.4. Replacement Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
12.5. Reports of Insurance Broker. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-ii-
4
12.6. Separate Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
12.7. Evidence of Payment of Insurance Premiums. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
12.8. Tax Escrow Fund. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
13. ALTERATIONS AND ADDITIONS, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
14. DAMAGE, DESTRUCTION AND RESTORATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
14.1. The Mortgagor to Give Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
14.2. Application of Insurance Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
14.3. Restoration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
15. TAKING OF PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
15.1. The Mortgagor to Give Notice;
Assignment of Awards, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
15.2. Partial Taking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
15.3. Application of Awards, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
16. EVICTION BY PARAMOUNT TITLE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
17. BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS
AND OTHER INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
17.1. Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
17.2. Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
17.3. Additional Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
17.4. Other Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
17.5. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
18. TRANSFERS AND INDEBTEDNESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18.1. Sale of Equipment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18.2. Transfer or Encumbrance of Interests
in the Mortgagor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18.3. Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
18.4. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
19. PERFORMANCE OF LEASES; APPLICATION OF RENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
20. NO ENDORSEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
21. NO CREDIT FOR PAYMENT OF TAXES OR IMPOSITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
22. EVENT OF DEFAULT; ACCELERATION OF MORTGAGE NOTE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
23. COMPROMISE OF ACTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
24. FORECLOSURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
24.1. Foreclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
24.2. The Mortgagor's Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
24.3. Recovery of Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
24.4. Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
25. PURCHASE OF PROPERTY BY MORTGAGEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
26. RECEIPT A SUFFICIENT DISCHARGE TO PURCHASER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
-iii-
5
27. WAIVER OF MARSHALLING, APPRAISEMENT, VALUATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
28. SALE SHALL BE A BAR AGAINST MORTGAGOR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
29. APPLICATION OF PROCEEDS OF SALE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
30. APPOINTMENT OF RECEIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
31. POSSESSION, MANAGEMENT AND INCOME. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
32. RIGHT OF MORTGAGEE TO PERFORM MORTGAGOR'S COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
33. REMEDIES CUMULATIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
34. APPLICABLE LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
35. NO WAIVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
36. OBLIGATIONS ARE WITHOUT RECOURSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
37. STAMP AND OTHER TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
38. FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
39. ESTOPPEL CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
40. ADDITIONAL SECURITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
41. FINANCING STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
42. RELEASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
43. CHANGES IN LAW REGARDING TAXATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
44. SEVERABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
45. SECURITY AGREEMENT, ETC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
45.1. Grant of Security. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
45.2. Financing Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
45.3. Multiple Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
45.4. Waiver of Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
45.5. Expenses of Disposition of the Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
46. EXPENSES OF MORTGAGEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
47. USURY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
48. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
49. NON-MERGER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
50. ASSIGNMENT OF RENTS AND MORTGAGOR'S INTEREST IN LEASES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
51. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
-iv-
6
Exhibit A - Legal Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B - Permitted Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C - Promissory Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
Exhibit D - Insurance Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D-1
Exhibit E - Assumption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E-1
Exhibit F - Subordination Provisions for Tenant Leases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F-1
-v-
7
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF
LEASES AND RENTS AND FIXTURE FILING is dated as of July 30, 1996 and is made by
SAWGRASS XXXXX PHASE II LIMITED PARTNERSHIP, a Delaware limited partnership,
whose address for notices hereunder is c/o The Xxxxx Corporation, 0000 Xxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Vice President
Finance (the "Mortgagor"), in consideration of the premises and covenants
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, to CS FIRST BOSTON MORTGAGE
CAPITAL CORP., a Delaware corporation, as Mortgagee (the "Mortgagee"), whose
address for notices hereunder is 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xx. Xxxxxx Xxxxxxxxx.
PRELIMINARY STATEMENT
WHEREAS, the Mortgagor, as the owner of the Property
(defined below), desires to execute and deliver this Mortgage covering the
Property, and hereby to grant, convey, transfer and assign the Property to the
Mortgagee, in order to secure the payment by the Mortgagor of the principal of
and interest on and all other amounts payable under the Mortgage Note (defined
below) and this Mortgage, and to secure the performance by the Mortgagor of the
covenants and agreements contained in this Mortgage and the other Security
Documents (defined below).
WHEREAS, the Mortgagor has duly authorized the
execution and delivery of this Mortgage and has taken all actions required by
law and all other actions of the Mortgagor required therefor.
NOW, THEREFORE, in order to secure the equal and
ratable payment by the Mortgagor of the principal of and interest on, and all
other amounts payable under, the Mortgage Note; the payment of all amounts
payable under this Mortgage; the performance by the Mortgagor of its covenants
and agreements contained in this Mortgage and the other Loan Documents; and the
payment and performance by the Mortgagor of the covenants and agreements of the
Mortgagor under the REA (defined below) and the Leases (defined below); the
Mortgagor and the Mortgagee by these presents do hereby agree as follows:
THE MORTGAGOR HEREBY IRREVOCABLY GRANTS, CONVEYS,
TRANSFERS, MORTGAGES AND ASSIGNS unto the Mortgagee, its successors and assigns
forever (subject to the Permitted Exceptions), the following property
(hereinafter collectively referred to as the "Property"):
ALL ESTATE, right, title and interest of the
Mortgagor, now owned or hereafter acquired, in and to those certain tracts or
parcels of land situated in the City of Sunrise, County of Broward, State of
Florida, described in Exhibit A hereto together with all rights of way or use,
sidewalks, alleys and strips or gores, rights, privileges, air rights and
development rights, servitudes, licenses, easements, hereditaments and
appurtenances
8
incident, belonging or pertaining to such land (the "Land"), and the buildings
and improvements now or hereafter located or placed thereon that are owned by
Mortgagor, and the rights of the Mortgagor as set forth in the REA (which
buildings and improvements, together with any additions thereto or alterations
or replacements thereof, are referred to as the "Improvements");
TOGETHER WITH all estate, right, title and interest,
now owned or hereafter acquired, of the Mortgagor in and to following property,
rights and interests:
(a) all Equipment (defined below) and Personal
Property of every kind and nature now or hereafter located
upon the Land;
(b) all real estate tax refunds and all awards or
payments, including interest on any of them, and the right to
receive the same which the Mortgagor may have, which may be
made with respect to the Property whether from a Taking
(defined below) thereof or for any other injury to, decrease
in the value of, or other occurrence affecting the Property;
(c) all Leases and all other agreements for,
affecting or related to the use and occupancy of the Property,
now or hereafter entered into, and the right to receive and
apply the rents, incomes, issues and profits derived by the
Mortgagor from the Property to the payment of the Mortgage
Note and the other obligations secured by this Mortgage,
together with the security deposits or other payments or
instruments delivered as security under such Leases and
agreements (the grant of such security deposits and other
security being subject to application in accordance with the
express requirements of such Leases and any other agreements
applicable thereto);
(d) all Proceeds (defined below) of, and any
unearned premiums or refunds of premiums on, any insurance
policies covering all or any part of the Property, including
the right to receive and apply the Proceeds of any insurance,
judgments or settlements made in lieu thereof for damage to or
the diminution of the Property in accordance with the terms of
this Mortgage;
(e) the REA;
(f) all general intangibles relating to design,
development, operation, management and use of the Premises,
all certificates of occupancy, zoning variances, building, use
or other permits, approvals, authorizations, licenses and
consents obtained from any governmental agency in connection
with the development, use, operation or management of the
Premises, all construction, service, engineering, consulting,
management, leasing, architectural and other similar contracts
concerning the design, construction, management, operation,
occupancy and/or use of
- 2 -
9
the Premises (including, without limitation, the Management
Agreement, defined below), all architectural drawings, plans,
specifications, soil tests, appraisals, engineering reports
and similar materials relating to all or any portion of the
Premises and all payment and performance bonds or warranties
or guarantees relating to the Premises (defined below), all to
the extent assignable;
(g) all trademarks, trade names, company names,
business names, fictitious business names, trade styles,
service marks, logos, other source and business identifiers,
trademark registration and applications for registration used
at or relating to the Property; all renewals, extensions and
continuations-in-part of the items referred to above; any
written agreement granting to the Mortgagor any right to use
any trademark or trademark registration at or in connection
with the Property; and the right of Mortgagor to xxx for past,
present and future infringements of the foregoing; and
(h) the right in the name and on behalf of the
Mortgagor to appear in and defend any action or proceeding
brought with respect to the Property and to commence any
action or proceeding to protect the interest of the Mortgagee
in the Property;
TO HAVE AND TO HOLD as provided herein the above
granted and described Property unto and to the proper use and benefit of the
Mortgagee, its successors and assigns, forever, subject in all respects only to
the Permitted Exceptions (defined below).
The following actions of the Mortgagee, taken with or
without notice, shall not affect the liability of any person (other than a
person expressly released pursuant thereto) for payment of the indebtedness and
obligations secured hereby (collectively, the "Secured Obligations"), and shall
not affect the lien hereof upon any portion of the Property not expressly
released herefrom: (a) retaining or obtaining a security interest in any
property to secure all or any portion of the Secured Obligations, (b) retaining
or obtaining the primary or secondary liability of any party or parties with
respect to all or any portion of the Secured Obligations, (c) altering,
exchanging, extending, renewing, modifying, releasing or cancelling for any
period (whether or not longer than their original maturity) any terms,
conditions, provisions or covenants contained in any or all of the Loan
Documents, (d) releasing or compromising any liability of any party or parties
primarily or secondarily liable on all or any portion of the Secured
Obligations, (e) releasing its security interest, if any, in all or any portion
of the Property and permit any substitution or exchange for any such portion of
the Property, (f) resorting to the Property conveyed by this Mortgage, or any
portion thereof, for payment of the Secured Obligations, or any portion
thereof, whether or not the Mortgagee shall have resorted to any other
- 3 -
10
property otherwise securing the Secured Obligations, or proceeding against any
other party primarily or secondarily liable on the Secured Obligations, (g)
applying any of the Property or directing the order or manner of sale thereof
as the Mortgagee in its sole discretion chooses in accordance with the terms of
this Mortgage, and (h) accepting a conveyance or conveyances of all or part of
the Property as partial satisfaction of the liability secured hereby in the
amount of the value of the Property so conveyed and proceeding against the
balance of the Property for the balance of the Secured Obligations after said
conveyance or conveyances.
IT IS HEREBY FURTHER COVENANTED AND AGREED that the
Mortgage Note, any replacement, renewal or extension thereof, and any
additional Mortgage Note, all shall be equitably and ratably secured by this
Mortgage.
AND, to protect the security of this Mortgage, the
Mortgagor covenants and agrees with and represents and warrants to the
Mortgagee, subject in all respects to the Permitted Exceptions, as follows:
1. CERTAIN DEFINITIONS.
(a) For all purposes of this Mortgage, except as
otherwise expressly provided or unless the context otherwise requires:
(1) The terms defined in this Article
shall have the meanings assigned to them in this Article and
shall include the plural as well as the singular;
(2) All accounting terms not otherwise
defined herein shall have the meanings assigned to them in
accordance with generally accepted accounting principles in
the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America as of
the date of such computation;
(3) The word "including" shall be
construed to be followed by the words "without limitation";
(4) Section headings are for the
convenience of the reader and shall not be considered in
interpreting this Mortgage or the intent of the parties
hereto;
(5) The words "herein", "hereof" and
"hereunder" and other words of similar import shall refer to
this Mortgage as a whole and not to any particular Article,
Section or other subdivision; and
- 4 -
11
(6) References to the terms "Land",
"Improvements", "Equipment", "Premises", "Personal Property"
and "Property" shall, unless the context otherwise clearly
requires, refer in each case to such class of property taken
as a whole.
(b) As used in this Mortgage the following terms
have the following respective meanings:
Affiliate shall mean a Person or Persons directly or
indirectly, through one or more intermediaries, controlling,
controlled by or under common control with the Person or
Persons in question. The term "control", as used herein,
shall mean, with respect to a Person that is a corporation,
the right to exercise, directly or indirectly, more than 50%
of the voting rights attributable to the shares of the
controlled corporation and, with respect to a Person that is
not a corporation, the possession, directly or indirectly, of
the power to direct or cause the direction of the management
or policies of the controlled Person.
Alteration shall have the meaning stated in Article
13 hereof.
Appraisal shall mean an appraisal of the Property by
an Appraiser made in accordance with the AIREA Code and
Standards, as the same may have been updated by letter or
letters, which shall not be dated more than one year prior to
the applicable date under this Mortgage for which the use of
such Appraisal is required.
Appraiser shall mean an Independent, MAI certified
appraiser, reasonably acceptable to Mortgagor, with a national
practice and who has at least ten years' experience in
appraising regional shopping center properties.
Approved Control Party shall mean any one or a
combination of the following entities:
(a) A corporation directly or indirectly
100% owned by the Principal;
(b) A trust (including a group trust)
100% of the beneficial ownership of which is vested,
directly or indirectly, in the Principal;
(c) A real estate investment trust 100%
of the beneficial ownership of which is vested,
directly or indirectly, in the Principal; and
(d) Any other entity which is directly
or indirectly at least 51% owned by the Principal and
which may legally transact business, own property and
execute binding agreements under the laws of the
State.
- 5 -
12
Architect shall mean an Independent architect or
engineer, who shall practice with a firm of recognized
standing duly licensed or registered in the State, selected by
the Mortgagor and reasonably approved by the Mortgagee.
Assignment of Leases and Rents shall mean the
Assignment of Leases and Rents dated as of the date hereof
from the Mortgagor, as assignor, to the Mortgagee, as
assignee, together with any amendments thereto pursuant to the
provisions thereof.
Available Cash Flow shall mean with respect to any
period, all Operating Income received during such period less
all Operating Expenses incurred during such period.
Business Day shall mean any day other than (i) a
Saturday or a Sunday or (ii) a day on which federally insured
depository institutions in New York State or Florida are
authorized or obligated by laws, governmental decree or
executive order to be closed.
Cash shall mean coin or currency of the government of
the United States of America.
Closing Date shall mean July 30, 1996 or such other
date as the parties hereto shall mutually agree upon.
Critical Lease shall mean any Lease covering more
than 15,000 square feet of gross leasable area, or from which
is or, if executed, would be derived at least 10% of the
Revenues of the Property, including without limitation, the
Master Lease and that certain Lease, dated as of August 11,
1995, between the Mortgagor, as landlord, and The Neiman
Marcus Group, Inc., as tenant (the "Neiman Lease").
Default shall mean any condition or event which
constitutes or which, after the giving of notice or lapse of
time or both, would constitute an Event of Default hereunder.
Equipment shall mean all machinery, apparatus,
equipment, materials, fittings, fixtures, chattels, articles
of personal property and all other property (real, personal or
mixed), and all appurtenances and additions thereto and
betterments, renewals, substitutions and replacements thereof,
now or hereafter owned by the Mortgagor or in which the
Mortgagor has or shall acquire an interest (to the extent of
such interest), and now or hereafter located on, attached to
or contained in or used in connection with the Land or the
Improvements, or placed on any part thereof though not
attached thereto, including all indoor and outdoor furniture,
landscaping, indoor plants, tools, screens, awnings, shades,
blinds, curtains, draperies, partitions, carpets, rugs,
furniture and furnishings, heating, lighting, plumbing, water
heating, cooking,
- 6 -
13
monitoring, ventilating, air conditioning, refrigerating,
sanitation, waste removal, incinerating or compacting plants
or systems, fixtures and equipment, elevators, escalators,
stoves, ranges, vacuum systems, window washing and other
cleaning systems, call systems, sprinkler systems and other
fire prevention and extinguishing apparatus and materials,
alarms, telecommunications, entertainment, recreational or
security systems and equipment, motors, machinery, pipes,
ducts, conduits, dynamos, engines, compressors, generators,
boilers, stokers, furnaces, pumps, tanks, and appliances.
Event of Default shall have the meaning stated in
Article 22 hereof.
Excusable Delay shall mean a delay due to acts of
God, governmental restrictions, enemy actions, civil
commotion, fire, casualty, strikes, shortages of supplies or
labor, work stoppages or other causes beyond the reasonable
control of the Mortgagor, but lack of funds shall not be
deemed a cause beyond the reasonable control of the Mortgagor.
Extended Maturity Date shall mean the first
anniversary of the Maturity Date.
Extension Notice shall have the meaning stated in
Section 1.09 of the Mortgage Note.
Fiscal Year shall mean the period from January 1
through December 31, inclusive, of any calendar year.
General Partner shall mean the Person or Persons who
from time to time shall be so designated in accordance with an
agreement of limited partnership of the Mortgagor, as the same
may be amended or supplemented from time to time.
Hazardous Substances means (i) those substances
included within definitions of or identified as "hazardous
substances", "hazardous materials", or "toxic substances" in
or pursuant to environmental laws; (ii) those substances
listed in the United States Department of Transportation Table
(40 CFR 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as
hazardous substances (40 CFR Part 302 and amendments thereto);
(iii) any material, waste or substance which is or contains
(A) petroleum, including crude oil or any fraction thereof,
natural gas, or synthetic gas usable for fuel or any mixture
thereof, (B) asbestos, (C) polychlorinated biphenyls, (D) any
substance designated as "hazardous substance" pursuant to
Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et
seq. (33 U.S.C. Section 1321), or listed pursuant to Section
307 of the Clean Water Act (33 U.S.C. Section 1317); (E)
flammable explosives; (F) radioactive materials; and (iv) such
other substances, materials and wastes which are or become
regulated as hazardous, toxic or "special wastes" under
environmental laws.
- 7 -
14
Impositions shall have the meaning stated in Article
8 hereof.
Improvements shall have the meaning stated in the
Preliminary Statement hereof.
Independent when used with respect to any specified
Person shall mean such a Person who (i) does not have any
direct financial interest or any material indirect financial
interest in the Mortgagor or the Manager or in any of their
respective Affiliates and (ii) is not connected with the
Mortgagor or the Manager or any of their respective Affiliates
as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions.
Insurance Requirements shall mean all terms of any
insurance policy required hereunder covering or applicable to
the Property or any part thereof, all requirements of the
issuer of any such policy, and all orders, rules, regulations
and other requirements of the National Board of Fire
Underwriters (or any other body exercising similar functions)
applicable to or affecting the Property or any part thereof or
any use of the Property or any part thereof.
IRC means the Internal Revenue Code of 1986, as
amended from time to time.
Land shall have the meaning stated in the Preliminary
Statement hereof.
Lease shall mean any lease (including without
limitation the Master Lease), sublease, further sublease,
license, occupancy agreement or other agreement existing on
the date hereof or hereafter entered into by the Mortgagor
permitting the use or enjoyment of any part of the Property,
and every modification, amendment, or extension relating
thereto.
Legal Requirements shall mean all laws, statutes,
codes, acts, ordinances, orders, judgments, decrees,
injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all
governments, departments, commissions, boards, courts,
authorities, agencies, officials and officers, of governments,
federal, state, county and municipal, ordinary or
extraordinary, including without limitation the Americans With
Disabilities Act of 1990, 42 U.S.C. Section 12101 et seq. and
all laws pertaining to health and safety and pollution and
protection of the environment, the Resource Conservation and
Recovery Act (42 U.S.C. Section 6901 et seq.), as amended by
the Hazardous and Solid Waste Amendments of 1984, the
Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601 et seq.), as amended by
the Superfund Amendments and Reauthorization Act of 1986, the
- 8 -
15
Hazardous Materials Transportation Act (49 U.S.C. Section 1801
et seq.), the Toxic Substances Control Act (15 U.S.C. Section
2601 et seq.), Clean Air Act (42 U.S.C. Section 9402 et seq.),
the Clean Water Act (33 U.S.C. Section 1251 et seq.), the
Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
Section 136 et seq.), the Occupational Safety and Health Act
(29 U.S.C. Section 651 et seq.), and all applicable federal,
state and local environmental laws, including obligations
under the common law, ordinances, rules and regulations, as
any of the foregoing may have been or may be from time to time
amended, supplemented or supplanted, now or hereafter existing
relating to regulation or control of Hazardous Substances or
environmental health and safety, which now or at any time
hereafter may be applicable to and enforceable against the
Property or any part thereof, or any use of the Property or
any part thereof.
Loan Documents shall mean the Mortgage Note, this
Mortgage, the Assignment of Leases and Rents, the Master
Lease, the Master Lease Guaranty, the financing statements
executed in connection herewith and any additional documents
executed by the Mortgagor to evidence or secure the Mortgage
Loan.
Management Agreement shall mean the management
agreement by and between Mortgagor and the Manager, as
amended, supplemented or restated from time to time.
Manager shall mean Management Associates Limited
Partnership, a Delaware limited partnership, or its successor
from time to time as manager of the Property in accordance
with Sections 18.1 and 19(b) hereof.
Master Lease shall mean a Master Lease dated as of
the date hereof between the Mortgagor, as lessor, and Sunrise
Xxxxx (MLP) Limited Partnership, a District of Columbia
limited partnership ("Master Lessee"), as lessee, demising a
portion of the Property, together with any amendments thereto
pursuant to the provisions thereof.
Master Lease Guaranty shall mean the Guaranty dated
as of the date hereof from The Xxxxx Limited Partnership, a
Delaware limited partnership (the "Master Lease Guarantor") to
the Mortgagor of the Master Lessee's obligations under the
Master Lease, together with any amendments thereto pursuant to
the provisions thereof.
Maturity shall mean the date on which the principal
of or any interest installment on the Mortgage Note shall
become due and payable as therein or herein provided, whether
at the Stated Maturity or by call for redemption, acceleration
or otherwise.
Maturity Date shall mean July 31, 1998.
- 9 -
16
Mortgage shall mean this Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing,
as amended or supplemented from time to time pursuant to the
provisions hereof.
Mortgage Note shall have the meaning stated in the
Preliminary Statement hereof and shall be in the form of
Exhibit C hereto. Every reference to the Mortgage Note shall
include any amendments or endorsements thereto or
replacements, renewals or extensions thereof and any
additional Mortgage Notes made in accordance with the
provisions hereof, all of which shall be equally and ratably
secured by this Mortgage.
Mortgagee shall have the meaning stated in the
Preliminary Statement hereof, and shall include after the date
hereof its successors and assigns.
Mortgagor shall mean Sawgrass Xxxxx Phase II Limited
Partnership, a Delaware limited partnership, for the period
during which the same shall own the Property, and following
any conveyance of the Property which is permitted by the terms
of this Mortgage, shall mean the transferee for the period
during which each transferee shall own the Property.
Officer's Certificate shall mean a certificate
delivered to the Mortgagee and signed by an officer of the
Principal, which certificate shall be subject to the
provisions of Article 36 hereof.
Operating Expenses shall mean any and all (a) actual
cash operating expenses relating to the operation of the
Property, (b) the cost of ordinary maintenance and repairs of
the Property and (c) real estate taxes and assessments
relating to the Property. Operating Expenses shall not
include (i) any interest and principal payments made to the
Mortgagee and any other party and (ii) amounts disbursed for
capital improvements to the Premises
Parties shall have the meaning stated in Article 36
hereof.
Permitted Exceptions shall mean those matters
identified in Exhibit B hereto.
Permitted Owner shall mean any one of the following:
(a) The Principal;
(b) One or more Approved Control Parties; or
(c) Any combination of the Principal and Approved
Control Parties.
- 10 -
17
Person shall mean any individual, sole
proprietorship, corporation, general partnership, limited
partnership, joint venture, limited liability company, limited
liability partnership, association, joint stock company, bank,
trust, estate, unincorporated organization, government (or any
agency or political subdivision thereof) or any other form of
entity.
Personal Property shall have the meaning stated in
Section 45.1 hereof.
Premises shall mean the Land, Improvements and
Equipment and all accessions and additions thereto and
increases therein which constitute a part of the Improvements
and/or Equipment.
Prime Rate shall mean 175 basis points in excess of
the rate of interest per annum as established by The Chase
Manhattan Bank, N.A. or its successor (the "Reference Bank")
in New York, New York from time to time as its prime or base
lending rate, and shall be effective on the day the Reference
Bank establishes such change, which rate, the Mortgagor
acknowledges, may or may not be the Reference Bank's lowest
rate. If the Reference Bank shall abolish or abandon the
practice of establishing its prime or base lending rate or if
such rate shall not be ascertainable, the Mortgagee shall
designate by notice to the Mortgagor the floating commercial
loan interest rate of Citibank, N.A. or its successor
established from time to time as its prime or base lending
rate, to be the Prime Rate hereunder.
Principal shall mean The Xxxxx Limited Partnership or
The Xxxxx Corporation or their respective successors.
Proceeds shall mean amounts, awards or payments
payable to the Mortgagor or the Mortgagee in respect of all or
any part of the Property in connection with the damage,
destruction or Taking thereof (after the deduction therefrom
and payment to the Mortgagor and the Mortgagee, respectively,
of any and all reasonable expenses incurred by the Mortgagor
and the Mortgagee in the recovery thereof, including all
attorneys' fees and expenses, the fees of insurance experts
and adjusters and the costs incurred in any litigation or
arbitration with respect to such damage, destruction or
Taking).
Property shall have the meaning stated in the
Preliminary Statement hereof.
REA shall mean, collectively, the Construction
Operation and Reciprocal Easement Agreement No. 1 dated July
22, 1987 and filed in O.R. Book 15782 at page 1 of the Public
Records of Broward County, Florida as amended, Construction
Operation and Reciprocal Easement Agreement No. 3 filed on
March 23, 1990 in O.R. Book 17270 at page 391
- 11 -
18
of the Public Records of Broward County, Florida, as amended
or supplemented from time to time in accordance with the
provisions hereof and the Declaration of Restrictions between
the Mortgagor and Homeowners Warehouse, Inc. filed December
28, 1994 in O.R. Book 22981 at page 107 of the Public Records
of Broward County, Florida.
Renewal Lease shall have the meaning stated in
Section 19(b) hereof.
Restoration shall mean, in case of damage to or
destruction or Taking of the Premises or any part thereof, the
restoration, replacement or rebuilding of the Premises as
nearly as practicable (after taking into account the
consequences of a Taking, if any) to at least its value,
utility and character (in light of commercial materials and
services then available) immediately prior to such damage,
destruction or Taking, together with such Alterations as may
be made at the Mortgagor's election in accordance with the
applicable provisions of this Mortgage.
Revenues shall mean any and all revenues and receipts
from the Property, including without limitation, all rents,
additional rents and all other amounts received under leases
of space at the Property and proceeds of business interruption
or rent insurance, but excluding any security deposits (unless
forfeited to the Mortgagor), prepayments of rent for more than
one month in advance, amounts received from tenants and others
in order to induce the Mortgagor to accept a surrender of a
lease or occupancy agreement, condemnation awards, casualty
insurance proceeds and the proceeds of the sale of any portion
of the Property.
Secured Obligations shall have the meaning stated in
the Preliminary Statement hereof.
State shall mean the State of Florida.
Stated Maturity means the date specified in the
Mortgage Note as the fixed date on which the principal of or
any interest installment on the Mortgage Note becomes due and
payable.
Taking shall mean a temporary or permanent taking by
a government or political subdivision thereof or by a
governmental agency, as the result or in lieu or in
anticipation of the exercise of the right of condemnation or
eminent domain, of all or any part of the Property, or any
interest therein or right accruing thereto, including any
right of access thereto or any change of grade affecting the
Land or any part thereof.
Tenant shall mean any Person liable by contract or
otherwise to pay rent or a percentage of gross income, revenue
or profits pursuant to a Lease.
- 12 -
19
Threshold Amount shall mean 5% of the original
principal balance of the Mortgage Note.
Total Loss shall mean damage or destruction of the
Property by fire or other casualty (including hurricane and
sinkhole) to the extent that the Mortgagor is not required,
under the REA or under Leases from which are derived more then
80% of the Revenues of the Property to apply the Proceeds to
the Restoration of the Premises.
Total Taking shall mean a permanent Taking of the
whole of the Premises or so much of the Premises such that it
would be impracticable, even after Restoration, to operate the
Premises as an economically viable super regional shopping
mall and for which the REA does not require such Restoration.
U.S. Government Securities shall mean securities
evidencing an obligation to timely pay principal and interest
in a full and timely manner that are (x) direct obligations of
the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or
instrumentality of and guaranteed as a full faith and credit
obligation by the United States of America, which in either
case are not callable or redeemable at the option of the
issuer thereof (including a depository receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act of
1933, as amended) as custodian with respect to any such U.S.
Government Securities or a specific payment of principal of or
interest on any such U.S. Government Securities held by such
custodian for the account of the holder of such depository
receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the
securities or the specific payment of principal of or interest
on the securities evidenced by such depository receipt).
2. PARTICULAR COVENANTS, REPRESENTATIONS AND
WARRANTIES.
2.1. Validity and Issuance of the Mortgage Note;
Title to the Premises. The Mortgagor covenants and agrees and represents and
warrants as follows:
(i) The Mortgagor is duly authorized under
applicable law and under its partnership agreement to execute and deliver this
Mortgage, the Mortgage Note and the other Loan Documents to which it is a party
and to grant, convey, transfer and assign the Property to the Mortgagee in
accordance with this Mortgage; all partnership, corporate and governmental
action, consents, authorizations and approvals necessary therefor have been
duly and effectively taken or obtained; and this Mortgage, the
- 13 -
20
Mortgage Note and the other Loan Documents were duly executed and delivered and
are legal, valid and binding obligations of the Mortgagor enforceable in
accordance with their respective terms.
(ii) At the time of execution of this Mortgage,
the Mortgagor held good and marketable fee simple title to the Land and
Improvements, and good and marketable title to the Equipment and Personal
Property (other than the Equipment and Personal Property which is leased to the
Mortgagor by third parties, as to which the Mortgagor holds a valid,
enforceable and unencumbered leasehold interest), subject to no liens, charges
or encumbrances other than the Permitted Exceptions (excluding, however,
Permitted Exceptions of the type described in clause (c) of Exhibit B hereto
for purposes of this representation), and upon the execution by the Mortgagor
of this Mortgage, the Mortgagee shall have a valid first mortgage lien on the
Land and Improvements and a valid first priority security interest in the
Equipment and Personal Property (other than that excluded above), subject to no
liens, charges or encumbrances other than the Permitted Exceptions. The
Mortgagor represents that there is no condemnation, appropriation or recapture
proceeding pending or, to its knowledge, threatened with respect to the
Property and there are no unrecorded options to purchase all or any part of the
Property. The Permitted Exceptions affecting title to the Property at the time
of execution of this Mortgage shall not materially adversely affect the ability
of the Mortgagor to timely pay principal and interest due under the Mortgage
Note. No title insurance company issuing a policy covering all or any part the
Property shall be considered a beneficiary of, or entitled to rely on, the
representations and warranties contained in this Mortgage.
(iii) At the time of execution of this Mortgage,
there is no litigation to which the Mortgagor is a party which, if determined
adversely to the Mortgagor, would have a material adverse effect on the
financial position of the Mortgagor and would not be covered by insurance. At
the time of execution of this Mortgage, there are no known material contingent
liabilities of the Mortgagor.
(iv) At the time of execution of this Mortgage,
the Mortgagor has no material past due financial obligation under any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Mortgagor is a party.
(v) To the best of the Mortgagor's knowledge the
Property is, on the date hereof, not in violation of any Legal Requirement or
any Insurance Requirement or of any agreement binding upon the Mortgagor or the
Property, in any material respect.
- 14 -
21
2.2. Maintenance of Validity and Recording.
(a) The Mortgagor covenants that it will
forthwith after the execution and delivery of this Mortgage and hereafter as
necessary from time to time cause this Mortgage and the other Loan Documents
and any continuation statement or similar instrument relating to any property
subject thereto or to any property intended to be granted, conveyed,
transferred and assigned by this Mortgage to be filed, registered and recorded
in such manner and in such places as may be required by law in order to publish
notice and fully to protect the validity thereof or the grant thereby of the
property subject thereto and the interest and rights of the Mortgagee therein.
The Mortgagor covenants that it will pay or cause to be paid all taxes and fees
incident to such filing, registration and recording (including without
limitation Florida documentary stamp taxes and intangible taxes), and all
expenses incident to the preparation, execution and acknowledgment thereof, and
of any instrument of further assurance, and all federal or state stamp taxes or
other charges arising out of or in connection with the execution and delivery
of such instruments.
(b) The Mortgagor covenants that at all times it
will itself, or will use its best efforts to cause third parties to, preserve,
warrant and defend the Mortgagee's title and right in and to the Property,
subject to the Permitted Exceptions, against the claims of all Persons and will
maintain and preserve such title and right so long as the Mortgage Note is
outstanding.
(c) Notwithstanding any provision to the contrary
contained herein, the Mortgagee hereby (i) consents to the modification of
existing easements, rights of way, restrictive covenants or similar agreements
included in the Permitted Exceptions and to the creation of additional
easements, rights of way, restrictive covenants or similar agreements affecting
title to the Premises, including in connection with an Alteration, and (ii)
agrees that this Mortgage shall be subordinate to such modifications,
additional easements, rights of way, restrictive covenants or similar
agreements (but not subordinate to any liens that may be created pursuant to
such modifications, additional easements, rights of way, restrictive covenants
or similar agreements), provided that the Mortgagee receives, within five (5)
days prior to the execution by the Mortgagor of such modification, additional
easement, right of way, restrictive covenant or similar agreement, an Officer's
Certificate confirming that such action (A) will either benefit the Property or
will not affect the utility or operation of the Premises in any material
adverse respect and (B) will not, to the best knowledge of the certifying
officer, cause the Premises to be in violation of any Legal Requirement or of
the REA, the Leases or any other agreement encumbering the Property or result
in the loss of any certificate of occupancy and (C) will not result in or
permit a material adverse effect on the value of the Property or impair the
lien of this Mortgage, and with respect to all of the above the Mortgagor's
written agreement to provide the
- 15 -
22
Mortgagee with an updated survey of the Premises, upon the reasonable request
of the Mortgagee.
(d) The Mortgagor covenants that it will deliver
to the Mortgagee a mortgagee's title insurance policy commitment in an amount
not less than the aggregate principal amount of the Mortgage Note which title
insurance policy shall be dated the Closing Date and shall insure that this
Mortgage is a valid first priority grant of, and lien on, the Premises, subject
only to the Permitted Exceptions. The issuer of such title insurance shall be
one or more nationally recognized title insurance companies and there shall be
reinsurance and direct access agreements to the extent the Mortgagee shall
reasonably require.
2.3. Negative Covenants. The Mortgagor
covenants that it will not:
(a) engage, directly or indirectly, in
any business other than that arising out of entering into this Mortgage and the
other Loan Documents to which the Mortgagor is a party and the ownership,
operation, management, leasing, development and financing of the Property;
(b) partition the Property (except to a
tenancy-in-common permitted in accordance with Section 18.1(i));
(c) commingle its assets with the assets
of any of its Affiliates;
(d) guarantee any obligation of any
Person or make loans or advances to Affiliates of the Mortgagor except as
expressly permitted by this Mortgage;
(e) incur, create or assume any
indebtedness, or transfer or lease the Property or any interest therein, except
as permitted by Article 18 or Article 19 hereof; or
(f) voluntarily file, or consent to the
filing of, a petition for bankruptcy, reorganization, assignment for the
benefit of creditors or similar proceeding, without the unanimous consent of
its board of directors or of its general partners, as applicable.
The Mortgagor represents and warrants that on the Closing Date it does not have
any indebtedness or obligations which would cause it to be in violation of the
foregoing covenants.
2.4. Existence and Rights. The Mortgagor
covenants that it will do or cause to be done all things necessary to preserve
and keep in full force and effect its existence and will maintain adequate
capitalization (taking into account, among other things, the market value of
its assets) for its business purposes; that it will not modify its governing
instruments in any manner that would have a material adverse effect on the
interests of the Mortgagee hereunder; will pay all expenses of
- 16 -
23
the Property from property of the Mortgagor; will maintain books and records
and bank accounts separate from those of its Affiliates; will at all times hold
itself out to the public as a legal entity separate and distinct from any of
its Affiliates (including in its leasing activities, in entering into any
contract, in preparing its financial statements, and in its stationery), and
will cause its Affiliates to conduct business with it on an arm's-length basis;
and will file its own tax returns or, if part of a consolidated group, will
join in the consolidated tax return of such group as a separate member thereof.
2.5. Payment of Taxes and Other Claims. Subject
to the provisions of Article 11 hereof, the Mortgagor represents that there is
no default in the payment of, and covenants that it will pay or discharge or
cause to be paid or discharged before any fine, penalty, interest or cost may
be imposed for nonpayment of, all taxes, assessments and governmental charges
levied or imposed upon it or upon its income, profits or property.
2.6. Payment of the Mortgage Note and All Other
Amounts. Subject to the provisions of Article 36 hereof, the Mortgagor will
cause to be duly paid the principal of and interest on the Mortgage Note and
all other amounts due under the Mortgage Note at the places, at the respective
times and in the manner provided in the Mortgage Note. Subject to the
provisions of Article 36 hereof, the Mortgagor also will cause to be duly paid
all other charges, fees or other amounts which become due under this Mortgage
or the other Loan Documents.
3. MAINTENANCE AND REPAIRS, SHORING. The
Mortgagor will keep, or cause to be kept, the Premises and the parking areas,
sidewalks, curbs and streets and ways located on the Land and all other means
of access to the Premises in good and clean order and condition and a first
class manner such that the utility and operation of the Premises will not be
affected in any material adverse respect, subject to ordinary wear and tear,
and, subject to Excusable Delays and the provisions set forth in this Mortgage
with respect to damage or destruction caused by fire other casualty or by a
Taking, the Mortgagor will promptly make or cause to be made all necessary or
appropriate repairs, replacements and renewals thereof (which if not made would
affect the utility or operation of the Premises in any material adverse
respect), whether interior or exterior, structural or nonstructural, ordinary
or extraordinary. All repairs and replacements shall consist of materials
which are compatible with the existing Improvements and installed in a good and
workmanlike manner. The Mortgagor will do or cause others to do, to the extent
permitted by applicable law, all shoring of foundations and walls (i) of any
Improvements or (ii) of the ground adjacent thereto, and every other act
necessary or appropriate for the preservation and safety of the Premises by
reason of or in connection with any excavation or other building operation upon
the Land or any adjoining property, whether or not the Mortgagor or any other
Person shall, by any Legal Requirement, be required
- 17 -
24
to take such action or be liable for failure to do so. Subject (to the extent
applicable) to the provisions of Article 11 relating to permitted contests, the
Mortgagor will not do or permit any act or thing which might affect the utility
or operation of the Property or any part thereof in any material adverse
respect, or commit or permit any waste of the Property or any part thereof.
4. UTILITY SERVICES. Subject to the provisions
of Article 11 hereof, the Mortgagor will pay or cause to be paid when due all
charges for all public or private utility services, all public or private
highway services, all public or private communication services and all
sprinkler systems and protective services at any time rendered to or in
connection with the Property or any part thereof and which are incurred by or
on behalf of the Mortgagor.
5. NO CLAIMS AGAINST MORTGAGEE. Nothing
contained in this Mortgage shall constitute any consent or request by the
Mortgagee, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Property or
any part thereof, nor as giving the Mortgagor any right, power or authority to
contract for or permit the performance of any labor or services or the
furnishing of any materials or other property in such fashion as would permit
the making of any claim against the Mortgagee in respect thereof or any claim
that any lien based on the performance of such labor or services or the
furnishing of any such materials or other property is prior to the interest of
the Mortgagee under this Mortgage.
6. INDEMNIFICATION BY THE MORTGAGOR. Subject to
the provisions of Article 36 hereof, the Mortgagor will protect, indemnify and
save harmless the Mortgagee from and against: all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses (including all
reasonable attorneys' fees and expenses) imposed upon or incurred by or
asserted against the Mortgagee or the Property (without, as to both, the
willful misconduct or negligence of the Mortgagee) by reason of the occurrence
or existence of any of the following (to the extent that the insurance proceeds
payable on account of the following and received by the Mortgagee shall be
inadequate) prior to the payment in full of the Mortgage Note and the
satisfaction of all conditions for the satisfaction and release or defeasance
of this Mortgage: (a) ownership or possession of the Mortgagor's interest in
the Property, or any interest therein, or receipt of any rent or other sum
therefrom, (b) any accident, injury to or death of any Persons or loss of or
damage to property occurring on or about the Premises or any part thereof or
the adjoining parking areas, sidewalks, curbs, streets or ways, (c) any use,
non-use or condition of the Premises or any part thereof or the adjoining
parking areas, sidewalks, curbs, streets or ways, including claims or penalties
arising from a violation of any Legal Requirement or Insurance Requirement, as
well as any claim based on any patent or latent defect, whether
- 18 -
25
or not discoverable by the Mortgagee, any claim the insurance as to which is
inadequate, and any claim in respect of any adverse environmental impact or
effect, (d) any failure on the part of the Mortgagor to perform or comply with
any of the terms of this Mortgage, the REA, any Lease or any other Loan
Document to which it is a party, (e) any performance of any labor or services
or the furnishing of any materials or other property in respect of the Property
or any part thereof, (f) any negligence or tortious act or omission on the part
of the Mortgagor or any of its agents, contractors, servants, employees,
sublessees, licensees or invitees, (g) any contest referred to in Article 11,
or (h) the presence at or under the Premises or the migration from or release
upon the Premises of any Hazardous Substances. The Mortgagee shall give notice
to the Mortgagor of any claims, liabilities, obligations, damages, penalties,
costs or causes of action for which the Mortgagee believes it is entitled to
indemnification hereunder promptly upon its discovery of the action or event
giving rise to such claim, but the failure of the Mortgagee to provide such
notice shall neither cause the forfeiture of the right to receive indemnity
hereunder nor limit such right except to the extent, if any, that the Mortgagor
is prejudiced by the failure of the Mortgagee to promptly give such notice.
Any amounts payable under this Section to the Mortgagee which are not paid
within ten Business Days after written demand therefor by the Mortgagee,
setting forth in reasonable detail the amount of such demand and the basis
therefor, shall bear interest from the date of demand until paid at the Prime
Rate, and shall be secured by this Mortgage. In case any action, suit or
proceeding is brought against the Mortgagee by reason of any such occurrence,
the Mortgagor, upon the request of the Mortgagee, will at the Mortgagor's
expense resist and defend such action, suit or proceeding or will cause the
same to be resisted and defended by counsel for the insurer of the liability or
by counsel selected by the Mortgagor (unless reasonably disapproved by the
Mortgagee). So long as the Mortgagor is resisting and defending such action,
suit or proceeding as provided above in a prudent and commercially reasonable
manner, the Mortgagee shall not be entitled to settle such action, suit or
proceeding and claim the benefit of this Article 6 with respect to such action,
suit or proceeding and the Mortgagee agrees that it will not settle any such
action, suit or proceeding without the consent of the Mortgagor, which consent
shall not be unreasonably withheld or delayed; provided that if the Mortgagor
is not diligently defending such action, suit or proceeding in a prudent and
commercially reasonable manner as provided above, the Mortgagee may settle such
action, suit or proceeding subject only to the consent of the Mortgagor, which
consent shall not be unreasonably withheld or delayed, and claim the benefit of
this Article 6 with respect to settlement of such action, suit or proceeding.
7. INSPECTION. The Mortgagee and its authorized
representatives may, at all reasonable times and upon reasonable notice and
(except in case of emergency) accompanied by an agent of the Mortgagor, enter
and examine the Property, subject to the rights of tenants, and will use
reasonable efforts not to
- 19 -
26
interfere with the operation of the Property. If the Mortgagee reasonably
suspects the presence at or under the Property, or the migration from or
release upon the Property, of any Hazardous Substances, then, within twenty
(20) days after a request by the Mortgagee, the Mortgagor shall cause an
environmental company reasonably satisfactory to the Mortgagee to conduct an
environmental inspection of the Property, at the sole cost and expense of the
Mortgagor, subject to the rights of tenants, and will use reasonable efforts
not to interfere with the operation of the Property. Within thirty (30) days
after the initial request by the Mortgagee, the Mortgagor shall deliver a copy
of the report prepared by such environmental company to the Mortgagee. The
Mortgagee shall not have any duty to make any such inspection and shall not
have any liability or obligation for making or not making any such inspection.
8. PAYMENT OF IMPOSITIONS, ETC. Subject to the
provisions of Article 11 relating to permitted contests, the Mortgagor will
pay, or cause to be paid, before any fine, penalty, interest or cost may be
added for such nonpayment, all real estate taxes, assessments, fees, taxes on
rents or rentals, and other governmental charges that may be levied or assessed
against the Property or the Mortgagor with respect to the Property or rents
therefrom or which become liens upon the Property (collectively,
"Impositions"). The Mortgagor shall provide the Mortgagee evidence of the
payment of such Impositions one Business Day prior to their due dates. The
Mortgagor shall not be required to pay any income, excess profits or revenue
tax, excise tax or inheritance tax, gift tax, franchise tax, corporation tax,
capital levy, estate succession or other similar tax or charge that may be
payable by or chargeable to the Mortgagee, any interest, fines, costs,
additions to tax or penalties in respect thereof, unless such tax is imposed,
levied or assessed in substitution for any Impositions that the Mortgagor is
required to pay pursuant to this Article 8 as set forth in Article 43 hereof.
9. COMPLIANCE WITH LEGAL AND INSURANCE
REQUIREMENTS, INSTRUMENTS. (a) Subject to the provisions of Article 11
relating to permitted contests, the Mortgagor will promptly, subject to
Excusable Delays, (i) comply, or cause compliance, with all Legal Requirements
and Insurance Requirements before the expiration of any applicable extension or
grace period, whether or not compliance therewith shall require structural
changes in the Improvements or interfere with the use and enjoyment of the
Property or any part thereof, (ii) procure, maintain and comply with, all
permits, licenses and other authorizations required by Legal Requirements to be
complied with for any use then being made of the Premises or any part thereof,
and for the proper operation and maintenance of the Improvements and the
Equipment or any part thereof and (iii) comply with applicable duties or
obligations under any instruments of record at the time in force binding upon,
and enforceable against, the Mortgagor or the Property or any part thereof;
provided that it shall not be a Default hereunder if it shall be the obligation
of a Tenant to
- 20 -
27
comply with any Legal Requirement or Insurance Requirement, or to procure,
maintain or comply with any such permit, license or other authorization or
comply with such duties or obligations so long as the Mortgagor promptly after
receiving actual notice of any noncompliance commences and diligently pursues
its rights against such Tenant and uses its diligent efforts to cause such
Tenant to comply with such Legal Requirement or Insurance Requirement or to
procure, maintain or comply with such permit, license or other authorization or
comply with such duties or obligations within a reasonable time and the failure
to comply with the requirement in question does not subject the Mortgagee to
any of the risks described in clause (b) or (c) of Article 11 hereof and does
not impair the validity of any insurance required to be maintained by the
Mortgagor under Article 12 hereof or the right to full payment of any claims
thereunder. The Mortgagor shall pay all fines, penalties, interest and costs
imposed as a result of any failure of the Mortgagor or a Tenant to perform its
respective obligations under this Article 9.
(b) The Mortgagor covenants and agrees (i) to
perform punctually all material obligations and agreements to be performed by
it as lessor under any Lease, or as a party to the REA, the Permitted
Exceptions or the Management Agreement or any replacement management agreement,
such that there will be no material and adverse impairment of the value of the
Property or the Mortgagee's interest under this Mortgage and (ii) to do all
things necessary or appropriate in the ordinary course of its business, to
compel performance by each other party to each of such instruments of such
other party's obligations and agreements thereunder to the extent any such
failure would materially adversely affect the value or operation of the
Property. The Mortgagor will maintain the validity, perfection, priority and
effectiveness of this Mortgage and the other Loan Documents, and will not take
any action, will not permit action to be taken by others and will not omit to
take any action, nor, except as permitted by Article 19 hereof, will the
Mortgagor give any notice, approval or consent or exercise any rights under or
in respect of any Lease, or any of such other instruments, which action,
omission, notice, approval, consent or exercise of rights would release any
Tenant or other party from, or reduce any Tenant's or any other party's
obligations or liabilities under, or would result in the termination, surrender
or assignment of, or the amendment or modification of in any material adverse
respect, or would impair the validity of, any Lease, any of such other
instruments, this Mortgage or any of the other Loan Documents (other than as
expressly permitted by Article 19 hereof), if any of the foregoing would affect
the Property in any material adverse respect, without the prior written consent
of the Mortgagee, and any attempt to do any of the foregoing without such
consent shall be of no force and effect.
(c) The Mortgagor represents that it has not
received any written notice of any violation which remains uncured, and that it
has no actual knowledge, of any material respect in which it or the Premises
is, on the date hereof, in violation of any
- 21 -
28
Legal Requirement (including violations with respect to the presence, use,
storage or handling of any Hazardous Substances on, under, released upon or
migrating from the Property) or Insurance Requirement or of any agreement
binding upon the Mortgagor or the Property.
10. LIENS. Subject to the provisions of Article
11 relating to permitted contests and Section 18.3 relating to permitted
indebtedness, the Mortgagor will not directly or indirectly create or permit or
suffer to be created or to remain, and will discharge or promptly cause to be
bonded or discharged by bonding, payment, final order of a court of competent
jurisdiction or otherwise in an amount not less than the claim, within thirty
Business Days after receiving written notice of the filing thereof, any
mortgage, deed of trust, lien, encumbrance or charge upon, pledge of, or
conditional sale or other title retention agreement with respect to, the
Property or any part thereof, other than the Permitted Exceptions.
11. PERMITTED CONTESTS. Anything to the contrary
contained herein notwithstanding, the Mortgagor at its expense may contest, by
appropriate legal, administrative or other proceedings conducted in good faith
and with due diligence, the amount or validity or application, in whole or in
part, of any Imposition or lien therefor or any Legal Requirement or Insurance
Requirement or any taxes, assessments, charges or other amounts required to be
paid pursuant to the provisions of Section 2.5 or Article 4 hereof, or the
application of any instrument of record affecting the Property or any part
thereof (other than the Loan Documents) or any claims or judgments of
mechanics, materialmen, suppliers or vendors or any lien therefor, and may
withhold payment of the same pending such proceedings if permitted by law;
provided that (a) in the case of any Impositions or lien therefor or any claims
or judgments of mechanics, materialmen, suppliers or vendors or any lien
therefor, such proceedings shall suspend the collection thereof from the
Mortgagor, the Mortgagee and the Property, (b) neither the Property nor any
part thereof or interest therein would be in any danger of being sold,
forfeited or lost if the Mortgagor pays the amount or satisfies the condition
being contested, and the Mortgagor would have the opportunity to so pay or
satisfy, and shall do so, if required, in the event of the Mortgagor's failure
to prevail in the contest, (c) in the case of an Insurance Requirement, the
failure of the Mortgagor to comply therewith shall not impair the validity of
any insurance required to be maintained by the Mortgagor under Article 12 or
the right to full payment of any claims thereunder, (d) in the case of taxes,
if an amount can be contested without being paid, the Mortgagor shall escrow
with the Mortgagee (to be held and invested by the Mortgagee, at the written
direction and for the benefit of Mortgagor, in Permitted Investments) the
amount being contested for so long as such amount is due and payable and
unpaid, (e) in the case of any service described in Article 4, any contest or
failure to pay will not result in a discontinuance of any such service, (f) in
the case of any instrument of record affecting the Property or
- 22 -
29
any part thereof, the contest or failure to perform under any such instrument
shall not result in the placing of any lien on the Property or any part thereof
unless such lien is bonded in an amount not less than the lien and (g) except
to the extent the Mortgagor has provided sufficient Cash security therefor,
neither the failure to pay or perform any obligation which the Mortgagor is
permitted to contest under this Article 11 nor any adverse determination of any
such contest shall result in a material adverse effect on the utility, value or
operation of the Property.
12. INSURANCE.
12.1. Risks to be Insured. The Mortgagor will
maintain or cause to be maintained, with insurers authorized to issue insurance
in the State, insurance coverage as described in Exhibit D hereto and shall pay
in a timely manner all Premiums due in connection therewith.
12.2. Policy Provisions. Each policy of insurance
maintained in respect of the Mortgagor and/or the Property pursuant to Section
12.1 shall (a) except in the case of workers' compensation insurance, name the
Mortgagor as insured and name the Mortgagee as an additional insured or as loss
payee; provided, however, in the case of public liability insurance the
Mortgagee should be named as an additional insured (and not a loss payee); (b)
except in the case of public liability insurance and workers' compensation
insurance, provide that all Proceeds thereunder shall be payable to the
Mortgagee pursuant to a standard first mortgagee endorsement, without
contribution, and that adjustment and settlement of any loss in excess of the
Threshold Amount shall be subject to the reasonable approval of the Mortgagee;
(c) include effective waivers by the insurer of all claims for insurance
premiums against all loss payees, additional insureds and named insureds (other
than the Mortgagor); (d) permit the Mortgagee to pay the premiums and continue
any insurance upon failure of the Mortgagor to pay premiums when due, upon the
insolvency of the Mortgagor or through foreclosure or other transfer of title
to the property; (e) except in the case of public liability and workers'
compensation insurance, provide that any Proceeds shall be payable to the
Mortgagee and that the insurance shall not be impaired or invalidated by virtue
of (i) any act, failure to act, negligence of, or violation of declarations,
warranties or conditions contained in such policy by the Mortgagor, the
Mortgagee or any other named insured, additional insured or loss payee, except
for the willful misconduct of the Mortgagee knowingly in violation of the
conditions of such policy, (ii) the occupation or use of the insured property
for purposes more hazardous than permitted by the terms of the policy, (iii)
any foreclosure or other proceeding or notice of sale relating to the insured
property or (iv) any change in the possession of the insured properties without
a change in the identity of the holder of actual title to the Property
(provided that with respect to items (iii) and (iv), any notice requirements of
the applicable
- 23 -
30
policies are satisfied); (f) be subject to a deductible, if any, not greater in
any material respect, in proportion to the coverage maintained, than the
deductible applicable under such coverage on the date of this Mortgage, but in
any event such deductible shall not exceed the deductible limits in effect as
of the date hereof, unless otherwise agreed to by the Mortgagee and (g) provide
that if all or any part of such policy shall be cancelled or terminated, or
shall expire, the insurer will forthwith give notice thereof to each named
insured, additional insured and loss payee and that no cancellation,
termination, expiration, reduction in amount of, or material change (other than
an increase) in, coverage thereof shall be effective until at least thirty days
after receipt by each named insured, additional insured and loss payee of
written notice thereof.
12.3. Certificates. The Mortgagor will deliver to
the Mortgagee on or prior to the Closing Date certificates setting forth in
reasonable detail the material terms (including any applicable notice
requirements) of all insurance policies that the Mortgagor is required to
maintain hereunder, from the respective insurance companies that issued such
policies and provide a true and certified copy of the policy to the Mortgagee
within 90 days after the Closing Date. The Mortgagor will deliver to the
Mortgagee, concurrently with each material change in or renewal of any
insurance policy covering any part of the Premises required to be maintained by
the Mortgagor hereunder, a true and certified copy of the endorsement
reflecting the policy change.
12.4. Replacement Policies. Not less than ten
Business Days prior to the expiration, termination or cancellation of any
insurance policy which the Mortgagor is required to maintain hereunder, the
Mortgagor shall obtain a replacement policy or policies (or a binding
commitment for such replacement policy or policies), which shall be effective
no later than the date of the expiration, termination or cancellation of the
previous policy, and shall deliver to the Mortgagee a certificate in respect of
such policy or policies in the same form and (i) containing the same
information as the certificates required to be delivered by the Mortgagor
pursuant to the first sentence of Section 12.3, or a copy of the binding
commitment for such policy or policies and (ii) confirming that such policy
complies with all the requirements of Section 12.1. Within 90 days of such
expiration, termination or cancellation the Mortgagor shall deliver to the
Mortgagee a true and certified copy of such replacement policy.
12.5. Reports of Insurance Broker. Within 120 days
following the end of each calendar year during the term of this Mortgage
commencing with the end of the 1996 calendar year, and concurrently with the
delivery of each replacement policy or a binding commitment for the same
pursuant to Section 12.4, the Mortgagor shall deliver to the Mortgagee a report
from a reputable and experienced insurance broker or from the insurer setting
forth the particulars as to all insurance obtained by the
- 24 -
31
Mortgagor pursuant to this Article 12 and then in effect and stating that all
premiums then due thereon have been paid to the applicable insurers, that the
same are in full force and effect and that, in the opinion of such insurance
broker or insurer, such insurance otherwise applies in all material respects
with the requirements of this Article 12.
12.6. Separate Insurance. The Mortgagor will not
take out separate insurance concurrent in form or contributing in the event of
loss with that required to be maintained pursuant to this Article 12 unless
such insurance complies with Section 12.2.
12.7. Evidence of Payment of Insurance Premiums.
The Mortgagor shall, from time to time, supply the Mortgagee with the dates on
which premiums under all existing insurance policies are required to be paid.
The Mortgagor shall supply evidence to the Mortgagee of the payment of all
premiums due on all insurance policies required to be maintained by the
Mortgagor not less than one Business Day prior to their respective due dates.
12.8. Tax Escrow Fund. At the Mortgagee's option
after the occurrence of an Event of Default, the Mortgagor shall pay to the
Mortgagee on the first day of each calendar month one-twelfth of an amount
which would be sufficient to pay the Impositions payable, or estimated by the
Mortgagee to be payable, during the next ensuing twelve (12) months (said
amounts hereinafter called the "Tax Escrow Fund"). At the Mortgagee's Option,
the Tax Escrow Fund and the payments of interest or principal or both, payable
pursuant to the Mortgage Note, shall be added together and shall be paid as an
aggregate sum by the Mortgagor to the Mortgagee. The Mortgagor hereby pledges
to the Mortgagee any and all monies now or hereafter deposited in the Tax
Escrow Fund as additional security for the payment of the Secured Obligations.
The Mortgagee will apply the Tax Escrow Fund to payments of Impositions
required to be made by the Mortgagor pursuant to Section 8 hereof. If the
amount of the Tax Escrow Fund shall exceed the amounts due for Impositions
pursuant to Section 8 hereof, the Mortgagee shall return any excess to the
Mortgagor. In allocating such excess, the Mortgagee may deal with the person
shown on the records of the Mortgagee to be the owner of the Property. If the
Tax Escrow Fund is not sufficient to pay the items set forth above, the
Mortgagor shall promptly pay to the Mortgagee, within ten (10) days after
demand, an amount which the Mortgagee shall estimate as sufficient to make up
the deficiency. Upon the occurrence of an Event of Default, the Mortgagee
shall be entitled to exercise both the rights of setoff and banker's lien, if
applicable, against the interest of the Mortgagor in the Tax Escrow Fund to
the full extent of the outstanding balance of the Secured Obligations,
application of any such sums to the Secured Obligations to be in any order in
the sole discretion of the Mortgagee. Until expended or applied as above
provided, any amounts in the Tax Escrow Fund shall constitute additional
security for the Secured Obligations. The Tax Escrow Fund shall not constitute
a trust fund and may be commingled with other monies held by the Mortgagee. No
earnings
- 25 -
32
or interest on the Tax Escrow Fund shall be payable to the Mortgagor.
13. ALTERATIONS AND ADDITIONS, ETC. (a) The
Mortgagor will not make or permit any material demolition, alteration,
installation, addition, improvement, decoration or new construction (an
"Alteration") to the Premises unless undertaken in accordance with, or not
otherwise prohibited by, the applicable provisions of this Mortgage, the REA
and the Leases and unless no Event of Default shall have occurred and be
continuing or shall occur as a result of such action (except in the case that
the Alteration is required to cure the Event of Default). The Mortgagor shall
give the Mortgagee an Architect's itemized cost estimate of any Alteration
reasonably estimated to exceed $150,000. Any Alteration which involves an
estimated cost of more than $250,000 shall be conducted under the supervision
of an Architect and no such Alteration shall be undertaken until five Business
Days after there shall have been filed with the Mortgagee, for information
purposes only and not for approval by the Mortgagee (unless otherwise required
hereunder), detailed plans and specifications and cost estimates therefor,
prepared and approved in writing by such Architect. Such plans and
specifications may be revised at any time and from time to time provided that
material revisions of such plans and specifications are filed with the
Mortgagee, for information purposes only, together with the written approval
thereof by such Architect. All work done in connection with any Alteration
shall be performed with due diligence in a good and workmanlike manner, all
materials used in connection with any Alteration shall be not less than the
standard of quality of the materials currently used at the Premises and all
work shall be performed and all materials used in accordance with all
applicable Legal Requirements and Insurance Requirements. The cost of any
Alteration shall be promptly and fully paid for by the Mortgagor or the Tenant
performing the Alteration, subject to the Mortgagor's right to contest any
amount claimed to be due in accordance with the provisions in Article 11 of
this Mortgage.
(b) The Mortgagor may make, or cause or permit to
be made, without the prior consent of the Mortgagee, Alterations to the
Premises which involve on a cumulative basis less than 10,000 rentable square
feet and the cost of which does not exceed $150,000. Any other Alterations
shall require the prior written consent of the Mortgagee.
(c) Builder's risk insurance (in completed value
form, with, if applicable, an endorsement for off-site storage of materials)
and public liability insurance, including bodily injury and property damage
liability and comprehensive general liability insurance in accordance with
clause (b) of Exhibit D hereto, shall be maintained or caused to be maintained
by the Mortgagor at all times during which any Alteration estimated by the
Mortgagor to cost more than $250,000 is in progress. The insurance provided
for in this Section 13(c) shall be in addition to the insurance required to be
maintained pursuant to clauses
- 26 -
33
(a) and (b) of Exhibit D hereto and may be effected by an appropriate
endorsement, if obtainable, upon the policy or policies of insurance referred
to in Section 12.1 hereof. All insurance provided for in this Section 13(c)
shall be effected under a valid and enforceable policy or policies issued by
insurers which meet the requirements set forth in Exhibit D hereto, and, prior
to the commencement of any Alteration which is reasonably estimated by the
Mortgagor to cost more than $250,000, the Mortgagor will furnish to the
Mortgagee certificates in respect of such insurance in the form described in
the first sentence of Section 12.3 hereof and either a report of an insurance
broker or an Officer's Certificate containing a statement of the insurance
effected by the Mortgagor pursuant to this Section 13(c) and then in force and
stating that the insurance then in force complies with the covenants in this
Section 13(c).
(d) No Alteration shall be performed by or on
behalf of the Mortgagor at the Property if the costs thereof, as reasonably
estimated by an Architect (other than an Alteration the cost of which a Tenant
is obligated to pay directly or to reimburse the Mortgagor for and which the
Mortgagor reasonably believes and demonstrates to the reasonable satisfaction
of the Mortgagee that the Tenant will be able to pay directly or to reimburse
the Mortgagor, as applicable), which are due and payable and unpaid exceed the
Threshold Amount (adjusted as described below) unless the Mortgagor shall have
furnished the Mortgagee with a completion guarantee made by the Mortgagor,
which is subject to the provisions of Section 36 and which is secured by Cash
deposited with the Mortgagee in an amount not less than the difference between
such due and payable and unpaid costs and the Threshold Amount (adjusted as
described below) to be held and invested by the Mortgagee as the Mortgagee in
its reasonable discretion shall determine (with no assurances whatsoever as to
if and how much interest or earnings will be earned on such sums held and
invested by the Mortgagee), until applied by the Mortgagee in accordance with
the terms hereof. The Threshold Amount shall be reduced on any given date by
the Architect's reasonable estimate of the cost, if work on the Alterations
were to be terminated on such date, to restore the Premises to the extent
necessary so that, as restored, there would be no material adverse effect on
the value of the Premises. Costs which are subject to retainage shall be
treated as due and payable and unpaid from the date they would be due and
payable but for their characterization as subject to retainage. In the event
that any Alteration shall be made in conjunction with any Restoration with
respect to which the Mortgagor shall be entitled to withdraw Proceeds pursuant
to Section 14.2 hereof, the amount of the Cash to be furnished pursuant hereto
need not exceed the aggregate cost of such Restoration and such Alteration (as
reasonably estimated by the Architect) less the sum of the amount of any
Proceeds which the Mortgagor may be entitled to withdraw pursuant to Section
14.2 hereof and the Threshold Amount (adjusted as described above). The
Architect shall deliver to the Mortgagee a schedule setting forth the projected
stages of completion of the
- 27 -
34
Alteration and the corresponding amounts equal to such completion. From time
to time as the Alteration progresses, the amount of any Cash so furnished may
be withdrawn by the Mortgagor and paid or otherwise applied by or returned to
the Mortgagor in an amount equal to the amount the Mortgagor would be entitled
to so withdraw if Section 14.2 hereof were applicable. At any time after
substantial completion of any Alteration in respect whereof Cash was deposited
pursuant hereto, the whole balance of any Cash so deposited with the Mortgagee
and then remaining on deposit may be withdrawn by the Mortgagor and shall be
paid by the Mortgagee to the Mortgagor without any interest, if any, earned
thereon, within ten (10) days after receipt by the Mortgagee of an application
for such withdrawal and/or release, together with (x) duly executed and
acknowledged lien waivers, in form and substance reasonably satisfactory to the
Mortgagee, from all contractors and subcontractors who performed work in
connection with the Alteration and (y) an Officer's Certificate, and signed
also (as to clause (1) of this Section) by the Architect, setting forth in
substance as follows:
(1) that the Alteration in respect of which such
Cash was deposited, has been completed in accordance with any
plans and specifications therefor previously filed with the
Mortgagee under Section 13(a) hereof, with final completion
evidenced either by a certificate to such effect provided by
the Architect or by a certificate of occupancy or temporary
certificate of occupancy, if applicable;
(2) that to the best knowledge of the certifying
Person, all amounts which the Mortgagor is or may become
liable to pay in respect of such Alteration through the date
of the certification have been paid in full or adequately
provided for or are being contested in accordance with Article
11 hereof and that lien waivers have been obtained from the
general contractor and major subcontractors performing such
Alterations;
(3) that to the best knowledge of the certifying
Person, such Alteration has not been performed in violation of
any Legal Requirement and will not result in the loss of any
certificate of occupancy;
(4) that to the best knowledge of the certifying
Person, the Property, after giving effect to such Alteration,
can be used for the purpose for which it was intended; and
(5) that to the best knowledge of the certifying
Person, no Default or Event of Default has occurred and is
continuing.
14. DAMAGE, DESTRUCTION AND RESTORATION.
14.1. The Mortgagor to Give Notice. In case of any
damage to or destruction of the Premises or any part thereof for
- 28 -
35
any reason (which shall include earthquake for all purposes under this
Mortgage), the Restoration of which is reasonably estimated to cost more than
$100,000, the Mortgagor will promptly give written notice thereof to the
Mortgagee, generally describing the nature and extent of such damage or
destruction.
14.2. Application of Insurance Proceeds. If no
Event of Default or a Default with respect to any monetary obligation hereunder
or under the Mortgage Note shall have occurred and be continuing, the Mortgagee
consents to the direct payment to the Mortgagor of Proceeds up to the Threshold
Amount paid on account of any damage to or destruction of the Premises (other
than Proceeds paid in respect of the insurance described in clause (d) of
Exhibit D hereto), subject to the interest of the Mortgagee therein under this
Mortgage and the provisions hereof. The Mortgagor hereby irrevocably assigns
to the Mortgagee, as additional security, all Proceeds payable on account of
any damage to or destruction of all or any part of the Premises, and agrees to
the payment to the Mortgagee of all such Proceeds in excess of the Threshold
Amount to be held and invested by the Mortgagee as the Mortgagee in its
reasonable discretion shall determine (with no assurances whatsoever as to if
and how much interest or earnings will be earned on such sums held and invested
by the Mortgagee), until applied by the Mortgagee in accordance with the terms
hereof. The Mortgagor and the Mortgagee each shall hold all Proceeds received
by it pursuant to this Section (which shall not apply to any Proceeds payable
under public liability insurance and workers' compensation insurance) in trust
to be applied first, to the extent required under this Mortgage, to the cost of
Restoration in accordance with the provisions of this Mortgage (except that
proceeds paid in respect of the insurance described in clause (d) of Exhibit D
hereto shall be paid into a separate trust account established by the Mortgagee
for such purpose to be applied to payment of amounts due under the Mortgage
Note or otherwise secured hereby in accordance with the provisions hereof
applicable to such account). The earnings, if any, which accrue from
investment of any Proceeds shall remain in such trust account, less any
expenses incurred by the Mortgagee in investing such Proceeds and less the
amounts required by the Mortgagor or its direct or indirect partners, if
Mortgagor is a partnership, to pay income taxes on such earnings as and when
due, so long as no Event of Default or a Default of any monetary obligation
hereunder or under the Mortgage Note shall have occurred and be continuing. To
the extent that this Mortgage provides for Proceeds to be held by the Mortgagee
and applied to a Restoration (including Restoration resulting from a Taking as
provided in Section 15.2), provided that no Event of Default has occurred or is
continuing, such Proceeds shall be paid by the Mortgagee to the Mortgagor at
any time or from time to time, as such Restoration progresses, either to pay or
to reimburse the Mortgagor for expenditures made or then required to be made
for Restoration, including payments to contractors, subcontractors,
materialmen, suppliers, attorneys, engineers, architects or other Persons who
have rendered services or furnished materials for such Restoration,
- 29 -
36
subject to and reflecting customary retentions reasonably satisfactory to the
Mortgagee pending completion of the work, and all other costs and expenses
actually incurred by the Mortgagor in connection with such Restoration, upon
the receipt by the Mortgagee of an Officer's Certificate dated not more than 10
days prior to the application for such withdrawal, requesting such payment or
reimbursement and setting forth the work performed which is the subject of the
application, the parties which performed the work and the actual cost thereof,
accompanied by (x) duly executed and acknowledged lien waivers, in form and
substance reasonably satisfactory to the Mortgagee, from contractors and
subcontractors covering in the aggregate all sums previously disbursed from the
Proceeds held by the Mortgagee and (y) an Architect's certificate certifying
without unreasonable qualification the due performance of the work covered by
such application and the cost estimate of the unfinished portion of the
Restoration; provided, however, that to the extent that an Architect's cost
estimate of the unfinished portion of the Restoration exceeds the then
remaining Proceeds on deposit with the Mortgagee, then the Mortgagee shall not
be obligated to make the disbursement requested by the Mortgagor in its
application and no further Proceeds shall be made available to the Mortgagor
unless and until an amount in Cash equal to such excess is deposited with the
Mortgagee for disposition in the same manner as such Proceeds. The Mortgagee
will apply the balance of any remaining Proceeds held by it after the
application of such Proceeds to the Restoration and the completion thereof to
the reduction of the Secured Obligations. The Mortgagor will, in good faith
and with due diligence, subject to Excusable Delays, file and prosecute the
Mortgagor's claim for any such Proceeds and, subject to the provisions of this
Section 14.2 relating to the direct payment to the Mortgagor of any Proceeds up
to the Threshold Amount, will cause the same to be collected and paid over to
the Mortgagee, to be held and applied in accordance with the provisions of this
Mortgage. The Mortgagor hereby irrevocably authorizes and empowers the
Mortgagee, in the name of the Mortgagor as its true and lawful
attorney-in-fact, to file and prosecute such claim and to collect and to make
receipt for any such payment, and, in the event the Mortgagor fails so to act
or if an Event of Default or a Default with respect to any monetary obligation
hereunder or under the Mortgage Note shall have occurred and be continuing,
then in such case the Mortgagee may file such claim and prosecute it with
counsel satisfactory to the Mortgagee at the expense of the Mortgagor. The
Mortgagee shall have the right to approve, such approval not to be unreasonably
withheld, any settlement of any loss in excess of the Threshold Amount, and the
Mortgagor will deliver or cause to be delivered to the Mortgagee all
instruments reasonably requested by the Mortgagee to permit such approval. The
Mortgagor on demand will pay all costs, fees and expenses reasonably incurred
by the Mortgagee (including all reasonable attorneys' fees and expenses, the
fees of insurance experts and adjusters and the reasonable costs incurred in
any litigation or arbitration) in connection with any damage or destruction to
the
- 30 -
37
Premises and seeking and obtaining any payment on account thereof.
14.3. Restoration. In the event that the damage or
destruction does not constitute a Total Loss, the Mortgagor shall be obligated,
at its expense (whether or not the Proceeds are sufficient for such purpose),
to effect the Restoration of the Premises in accordance with the provisions of
the REA and the Leases subject to Excusable Delays, and shall use all or a
portion of such Proceeds to the extent required, and the Mortgagee shall make
such Proceeds paid to Mortgagee as provided in Section 14.2 available to the
Mortgagor (all such Proceeds to be held by the Mortgagor in trust, to be
applied first to the payment of all costs incurred to effect the Restoration),
for Restoration in accordance with the provisions of this Mortgage. In the
event of a Total Loss, if the Mortgagor elects to restore the Property the
Mortgagor shall cause the Architect to prepare both a cost estimate and
schedule for Restoration of the Premises and to provide such estimate and
schedule to the Mortgagee and the Mortgagor. In the event that such schedule
indicates that all of the Restoration except for work with a value not in
excess of the Threshold Amount cannot be completed prior to the earlier of (i)
the date upon which the insurance described in clause (d) of Exhibit D hereto
(plus any extension thereof obtained in addition to that so required) would be
exhausted or (ii) a date which is 90 days prior to the Maturity Date or, if the
Extension Notice has been given and the Mortgagor qualifies for an extension of
the Maturity Date thereunder, the Extended Maturity Date, then the Mortgagee
shall apply the Proceeds to the prepayment in full of the Mortgage Note and all
other sums secured hereby. If, after a Total Loss, the Mortgagor is not
required based upon the Architect's cost estimate and schedule for Restoration
to apply the Proceeds to prepay the Mortgage Note pursuant to the preceding
sentence, the Mortgagee shall apply the Proceeds, at the option of the
Mortgagor (to be exercised by the Mortgagor giving notice thereof to the
Mortgagee, but to be exercised only in accordance with the Mortgagor's
obligations regarding restoration under the REA and the Leases) to either (i)
the Restoration of the Premises in accordance with the provisions of the REA or
(ii) the prepayment in full of the Mortgage Note and all other sums secured
hereby. In the event the Mortgagor is required or elects to apply the Proceeds
to prepay the Mortgage Note in full, any Proceeds remaining after such
prepayment shall be paid to the Mortgagor or as it may direct in writing. In
the event that the Proceeds are insufficient to prepay the Mortgage Note in
full after the Mortgagor elects to so apply the Proceeds, the Mortgagor shall
continue to be obligated, subject to the provisions of Article 36 hereof, to
pay immediately the amount of such insufficiency to the Mortgagee until such
amount is satisfied. In the event the Mortgagor is obligated or elects to
effect Restoration of the Premises, the Mortgagor shall promptly commence and
complete the Restoration of the Premises in accordance with the provisions of
the REA, the Leases, and this Mortgage (including without limitation the
provisions of Section 13(c) hereof), subject to
- 31 -
38
Excusable Delays, and any Proceeds remaining after completion of such
Restoration and delivery of the Officer's Certificate required under Section
13(d) hereof shall be paid to the Mortgagor or as it may direct in writing.
15. TAKING OF PROPERTY.
15.1. The Mortgagor to Give Notice; Assignment of
Awards, etc. In case of a Taking of all or any part of the Premises, or the
commencement of any proceedings or negotiations which might result in any such
Taking, the Mortgagor will promptly give written notice thereof to the
Mortgagee, generally describing the nature and extent of such Taking or the
nature of such proceedings or negotiations and the nature and extent of the
Taking which might result therefrom. As additional security, the Mortgagor
hereby irrevocably assigns, transfers and sets over to the Mortgagee, subject
to the provisions of this Mortgage and the REA, all rights of the Mortgagor to
any Proceeds on account of any Taking, subject to the provisions of this
Mortgage with respect to the use and application of any such Proceeds and
provided that in the case of an amount of such Proceeds which is not more than
the Threshold Amount, if no Event of Default or a Default with respect to any
monetary obligation hereunder or under the Mortgage Note shall have occurred
and be continuing, the Mortgagor shall have the right to receive direct payment
of such Proceeds, to be held and applied to the Restoration in accordance with
the provisions of this Mortgage and the REA (all such Proceeds to be held by
the Mortgagor in trust, to be applied first to the payment of all costs
incurred to effect the Restoration). If the amount of Proceeds is reasonably
estimated by the Mortgagor to exceed the Threshold Amount, the settlement of
any such proceeding and the amount of Proceeds payable in respect thereof shall
be subject to the reasonable approval of the Mortgagee and the Mortgagor will
deliver or cause to be delivered to the Mortgagee all instruments reasonably
requested by it to permit such approval, provided that no such approval shall
be required if the Proceeds shall be sufficient to prepay in full the Mortgage
Note and all other sums secured hereby and the Mortgagor is permitted and has
elected to do so. The Mortgagor will in good faith and with due diligence,
subject to Excusable Delays, file and prosecute the Mortgagor's claim for any
such Proceeds and, subject to the provisions of the second sentence of this
Section 15.1, will cause the same to be collected and paid over to the
Mortgagee, to be held and applied in accordance with the provisions of this
Mortgage and the REA. The Mortgagor hereby irrevocably authorizes and empowers
the Mortgagee, in the name of the Mortgagor as its true and lawful
attorney-in-fact, to file and prosecute such claim (with counsel satisfactory
to the Mortgagee at the expense of the Mortgagor) and to collect and to make
receipt for any such award or payment in the event the Mortgagor fails so to
act or if an Event of Default or a Default of any monetary obligation hereunder
or under the Mortgage Note shall have occurred and be continuing. The Mortgagor
will pay all costs, fees and expenses reasonably incurred by the Mortgagee
(including all reasonable attorneys'
- 32 -
39
fees and expenses, the fees of insurance experts and adjusters and the
reasonable costs incurred in any litigation or arbitration) in connection with
any Taking and seeking and obtaining any award or payment on account thereof.
15.2. Partial Taking. In case of a Taking of the
Property other than a Total Taking, the Mortgagor shall be obligated, at its
expense (whether or not the Proceeds shall be sufficient for such purpose, but
subject to the provisions of Article 36 hereof) to effect Restoration of the
Premises in accordance with the provisions of the REA, the Leases, and this
Mortgage subject to Excusable Delays.
15.3. Application of Awards, etc. All Proceeds
received by or payable to the Mortgagee on account of a Taking shall be held
and invested by the Mortgagee, subject to the provisions of the REA, until
applied by the Mortgagee as follows:
(a) All Proceeds (excluding the Proceeds
on account of a Taking for temporary use) other than Proceeds received on
account of a Total Taking shall be applied to the Restoration of the Premises,
subject to the provisions of the REA, as if such Proceeds were Proceeds of a
casualty to be applied pursuant to Section 14.2, and after the completion of
the Restoration of the Premises, any balance of the Proceeds remaining
(excluding the proceeds on account of a Taking for temporary use or proceeds
which are not in respect of a diminution in value of the Premises) shall be
applied as a partial prepayment (without premium) of the Mortgage Note and all
other sums secured hereby.
(b) All Proceeds received on account of
a Total Taking of the Property shall be applied, subject to the provisions of
the REA, to the prepayment in full (without premium), to the extent that the
Proceeds are sufficient therefor, of the Mortgage Note and all other sums
secured hereby, and the balance, if any, shall be paid over and assigned to the
Mortgagor or as it may direct in writing. In the event that the Proceeds are
insufficient to prepay the Mortgage Note in full (without premium), the
Mortgagor shall be obligated, subject to the provisions of Article 36 hereof,
to pay immediately the amount of such insufficiency to the Mortgagee.
16. EVICTION BY PARAMOUNT TITLE. The Mortgagor,
within two Business Days of obtaining knowledge of the pendency of any
proceedings for the eviction of the Mortgagor from the Premises or any part
thereof by paramount title or otherwise questioning the Mortgagor's title to
the Premises as warranted in this Mortgage, or of any condition which might
reasonably be expected to give rise to any such proceedings, shall notify the
Mortgagee thereof. The Mortgagee may participate in such proceedings, and the
Mortgagor will deliver or cause to be delivered to the Mortgagee all
instruments reasonably requested by the Mortgagee to permit such participation.
In any such proceeding the Mortgagee may be represented by counsel reasonably
- 33 -
40
satisfactory to the Mortgagee at the reasonable expense of the Mortgagor. The
Mortgagor will pay all costs, fees and expenses reasonably incurred by the
Mortgagee (including all reasonable attorneys' fees and expenses, the fees of
insurance experts and adjusters and the reasonable costs incurred in any
litigation or arbitration) in connection with any such proceeding and seeking
and obtaining any award or payment on account thereof.
17. BOOKS AND RECORDS, FINANCIAL STATEMENTS,
REPORTS AND OTHER INFORMATION.
17.1. Books and Records. The Mortgagor will keep
proper books of record and account, in which accurate and complete entries
shall be made of all dealings or transactions of or in relation to the Property
and the business and affairs of the Mortgagor relating to the Premises. The
Mortgagee and its authorized representatives may, from time to time, designate
an agent to examine, at reasonable times and upon reasonable notice, the books
and records of the Mortgagor relating to the operation of the Premises.
17.2. Financial Statements. (a) Not later than one
hundred twenty (120) days after each December 31 after the date hereof and for
the year then ended, the Mortgagor will deliver to the Mortgagee its unaudited
balance sheet and financial statement of income and expenses relating to the
Property for such year, all in reasonable detail as to the sources and
character thereof and stating in comparative form the figures for the previous
year. Such annual financial statements for each year shall be accompanied by
an Officer's Certificate certifying that such statements are true and correct
in all material respects, and that the officer signing such certificate has
obtained no knowledge of any Default or Event of Default or, if so, specifying
each such Default or Event of Default and the nature and status thereof and
what action the Mortgagor is taking and proposes to take with respect thereto;
provided, however, that if the Mortgagee shall reasonably believe that such
financial statements may not have been prepared in accordance with generally
accepted accounting principles, consistently applied, then the Mortgagee may
also require delivery of financial statements certified by a public accounting
firm approved by the Mortgagee. Without limitation, any of the six largest
national accounting firms shall be acceptable to the Mortgagee.
(b) Not later than ninety (90) days after the end of
each fiscal quarter (other than the fourth quarter) of the Mortgagor, the
Mortgagor will deliver to the Mortgagee its unaudited balance sheet and
financial statement of income and expenses relating to the Property for such
quarter, all in reasonable detail as to the sources and character thereof.
Such unaudited financial statements shall be accompanied by an Officer's
Certificate certifying that such statements are true and correct in all
material respects, and that the officer signing such certificate has obtained
no knowledge of a Default or Event of Default or, if so, specifying each such
Default or
- 34 -
41
Event of Default and the nature and status thereof and what action the
Mortgagor is taking and proposes to take with respect thereto; provided,
however, that if the Mortgagee shall reasonably believe that such financial
statements may not have been prepared in accordance with generally accepted
accounting principles, consistently applied, then the Mortgagee may also
require delivery of financial statements certified by a public accounting firm
approved by the Mortgagee. Without limitation, any of the six largest national
accounting firms shall be acceptable to the Mortgagee.
17.3. Additional Information. The Mortgagor will
deliver to the Mortgagee, in each case certified as true and accurate by an
officer of the Principal (i) not later than thirty (30) days after the end of
each fiscal year of the Mortgagor, and more frequently (but not more frequently
than once every 90 days, absent an Event of Default) if so requested by the
Mortgagee, an annual rent roll dated not later than the anniversary of the date
of the last rent roll so delivered, in respect of the Property, setting forth
opposite the name of each Tenant the space occupied by such Tenant, the annual
minimum rent, percentage rent, common area maintenance charges, real estate
taxes, promotional fund contributions and other charges payable by such Tenant,
the expiration date (excluding renewals) of the Lease for such Tenant, renewal
and expansion options contained in such Lease, security deposits and any other
information reasonably requested by the Mortgagee, (ii) notice in the event of
any (a) material change in an insurance policy or coverage, (b) material tort
actions against the Mortgagor relating to the Premises not covered by
insurance, (c) Event of Default under this Mortgage, (d) material casualty to
the Property, (e) change in the Manager, (f) release of the lien of this
Mortgage in whole or in part or (g) amendments to any Loan Document, and (iii)
a copy of any notice from any environmental authority having jurisdiction over
the Property with respect to a condition existing or alleged to exist or
emanate from or at the Property received by the Mortgagor.
17.4. Other Information. The Mortgagor will, at any
and all times, within a reasonable time after written request by the Mortgagee,
furnish or cause to be furnished to the Mortgagee, in such manner and in such
detail as may be reasonably requested by the Mortgagee, additional reasonable
information with respect to the Property.
17.5. Confidentiality. The Mortgagee and its
authorized representatives, officers, directors and employees shall cause their
authorized representatives, directors, officers and employees, agents,
attorneys, accountants, financial advisors and other representatives to keep
confidential all leases, lease abstracts, rent rolls, financial statements,
appraisals and other financial information including information relating to
lease terms and identities of tenants furnished or obtained hereunder (the
"Confidential Information") and to use reasonable efforts, if such material is
not marked "Proprietary" or "Confidential"
- 35 -
42
and to use special efforts, if such marked material is so marked, to not,
without the prior written consent of the Mortgagor, disclose such Confidential
Information in any manner whatsoever, in whole or in part; provided, however,
that the Mortgagee and its authorized representatives shall be permitted to
disclose Confidential Information if required by law or court order or in
connection with any assignment or participation of its interest hereunder.
This Section shall not apply to any provisions of the Confidential Information
which are or become generally available to the public.
18. TRANSFERS AND INDEBTEDNESS. Unless such
action is permitted by the provisions of this Article 18 or the provisions of
Section 2.2(c) or Article 19 hereof, the Mortgagor will not (i) sell, assign,
convey, transfer or otherwise dispose of a legal or beneficial interest in all
or any part of the Property, (ii) incur indebtedness, (iii) mortgage,
hypothecate or otherwise encumber or grant a security interest in the Property
or (iv) sell, assign, convey, transfer, mortgage, encumber, grant a security
interest in, or otherwise dispose of any legal or beneficial interest in the
Mortgagor, or permit any owner of a legal or beneficial interest in the general
partner of the Mortgagor to do the same. Nothing in this Article 18 shall
restrict or prohibit the right of Mortgagor to enter into any Lease if
otherwise not prohibited by the terms of Article 19 hereof.
18.1. Sale of Equipment. The Mortgagor may transfer
or dispose of Equipment which is being replaced or which is no longer necessary
in connection with the operation of the Premises free from the lien of this
Mortgage, provided that such transfer or disposal will not adversely affect the
value of the Property, will not materially impair the utility of the Premises,
will not result in a reduction or abatement of, or right of offset against, the
rentals payable under any Lease and will not violate any term, covenant or
condition of the REA, and provided further that any new Equipment acquired by
the Mortgagor (and not so disposed of) shall be subject to the first lien of
the Mortgagee under this Mortgage unless leased to the Mortgagor. The
Mortgagee shall, from time to time, upon receipt of an Officer's Certificate
requesting the same and confirming satisfaction of the conditions set forth
above, execute a written instrument in form reasonably satisfactory to it to
confirm that such Equipment which is to be, or has been, sold or disposed of is
free from the lien of this Mortgage.
18.2. Transfer or Encumbrance of Interests in the
Mortgagor. A sale, assignment, conveyance, transfer, or other disposition or
hypothecation or other encumbrance of a direct or indirect beneficial interest
in the Mortgagor shall be permitted if (I) the Mortgagee shall have consented
in advance in writing thereto or (II) after giving effect to the proposed
transaction, a Permitted Owner or an Affiliate of the Mortgagor or of a
Permitted Owner, shall, individually or acting in concert, be a managing or
co-managing general partner of, or control, the
- 36 -
43
Mortgagor or such Permitted Owner and the Mortgagor shall continue to be in
compliance with Sections 2.3 and 2.4 hereof; provided, however, that any
permitted transferee of a general partner's interest in the Mortgagor shall
execute an acknowledgement in the form of Exhibit E hereto, subject to the
provisions of Article 36, of the continuing obligation of the Mortgagor under
this Mortgage.
18.3. Indebtedness. The Mortgagor shall not incur,
create or assume any indebtedness or incur any liabilities, unless otherwise
expressly permitted under the terms of this Mortgage, without the prior written
consent of the Mortgagee; provided, however, that the Mortgagor may, without
the consent of the Mortgagee, incur, create or assume the following
indebtedness:
(i) the Mortgage Note and the other
obligations, indebtedness and liabilities secured by this
Mortgage or set forth in any other Loan Document; and
(ii) amounts, not secured by the
Premises, payable by or on behalf of the Mortgagor for or in
respect of the operation of the Property in the ordinary
course of operating the Mortgagor's business, including
amounts payable by or on behalf of the Mortgagor to suppliers,
contractors, mechanics, vendors, materialmen or other persons
providing property or services to the Mortgagor or to the
Premises and capitalized personal property leasing expense, or
in connection with the ownership, management, operation,
leasing, cleaning, maintenance, repair, replacement,
financing, improvement, alteration or restoration thereof
incurred in the ordinary course of operating the Mortgagor's
business.
18.4. Notice. Not less than five Business Days
prior to the closing of any transaction subject to the provisions of Sections
18.2 or 18.3 hereof, the Mortgagor shall deliver to the Mortgagee an Officer's
Certificate describing the proposed transaction and stating that such
transaction is permitted by this Article 18 and that after giving effect
thereto the Mortgagor will remain in compliance with Sections 2.3 and 2.4
hereof, together with any other documents upon which such Officer's Certificate
is based. In addition, the Mortgagor shall provide the Mortgagee with copies
of assignments of partnership interests in the Mortgagor and other similar
closing documents within ten days after such closing.
19. PERFORMANCE OF LEASES; APPLICATION OF RENTS.
(a) The Mortgagor shall timely perform and observe or cause to be performed or
observed all the material terms, covenants and conditions required to be
performed and observed by the Mortgagor under the Leases and the REA, such that
there will be no material and adverse impairment of the value of the Property
or the Mortgagee's interest under this Mortgage. The Mortgagor will promptly
deliver to the Mortgagee a copy of any notice from any
- 37 -
44
Tenant under any Lease covering 5% or more of the gross leasable area of the
Premises (and covering less than 5% or more of the gross leasable area of the
Premises if there are notices from other Tenants under Leases covering in the
aggregate 15% or more of the gross leasable area of the Premises), claiming
that the lessor is materially in default in the performance or observance of
any of the terms, covenants or conditions thereof to be performed or observed
by the lessor.
(b) The Mortgagor has engaged Management
Associates Limited Partnership, a Delaware limited partnership ("MALP"), as
manager. The Mortgagor with the prior written consent of the Mortgagee, which
consent shall not be unreasonably withheld, shall have the right to engage any
other reputable and experienced professional management company having under
management, at the time of engagement, at least six regional shopping centers
comprising an aggregate of at least four million square feet (exclusive of the
Property) and substantial experience in the management of value-oriented malls
or centers, as the Manager of the Property. The Mortgagor shall, or shall
cause the Manager to, manage and operate the Premises in a reasonably prudent
manner and shall not enter into any Lease after the date hereof which would,
evaluated alone or in conjunction with any then existing leases, result in any
material impairment of the fair market value, as of the date such Lease is
executed by the Mortgagor, of the Property. The Mortgagor shall not modify the
Management Agreement in any respect which would have a materially adverse
effect on the operation of, or the Available Cash Flow generated by, or the
value of, the Premises without the prior approval of the Mortgagee. The
Mortgagor may enter into any Lease which is not inconsistent with the
provisions of this Article 19 and the other applicable provisions of this
Mortgage, if any, and the Mortgagor agrees to deliver a true and correct copy
of each Lease to the Mortgagee. Notwithstanding anything contained herein to
the contrary, the Mortgagor shall not, without the prior written consent of the
Mortgagee in each instance, enter into, modify or amend in any material
respect, renew or extend (unless provided for in an existing Lease), waive any
material provision of, terminate or accept a surrender of all or any portion of
the space demised under, any Critical Lease or any Lease or Leases which, in
the aggregate, if so modified, amended, waived, terminated or surrendered would
give rise to a termination right under any Critical Lease; provided, however,
that the Mortgagee shall not unreasonably withhold its consent to the
termination of the Neiman Lease due to the monetary or material nonmonetary
default of the tenant thereunder beyond any applicable notice and grace period.
Furthermore, each Lease entered into after the date hereof (including the
renewal or extension on or after the date hereof of any lease entered into
prior to the date hereof if the rent payable during such renewal or extension,
or a formula to compute such rent, is not provided for in such lease, such a
renewal or extension a "Renewal Lease") either (A) shall provide for rent and
all other material items thereunder to be payable in amounts at least equal to
the fair market rental value (taking into account the type and quality of
- 38 -
45
the tenant), as of the date such Lease is executed by the Mortgagor, of the
space covered by such lease or Renewal Lease for the term thereof, including
any renewal options, (B) shall not have a material adverse effect on the value
of the Property or (C) shall be consented to by the Mortgagee.
(c) The Mortgagor may, without the consent of the
Mortgagee, amend, modify or waive the provisions of any Lease (other than a
Critical Lease); provided that such action does not have a material adverse
effect upon the value of the Property, and provided further that such Lease, as
amended, modified or waived, is otherwise in compliance with the requirements
of this Mortgage and a certified copy of the amendment, modification or waiver
is delivered to the Mortgagee.
(d) The Mortgagor without the prior written
consent of the Mortgagee may terminate or permit the termination of any Lease
(other than a Critical Lease) or accept surrender of all or any portion of the
space demised under the Lease (other than a Critical Lease) or acquire any
Lease (other than a Critical Lease) or reduce the rentals reserved under or
shorten the term of any Lease (other than a Critical Lease) so long as such
action (taking into account the planned alternative uses of the space) does not
adversely affect the value of the Property (it being agreed that termination of
a Lease which is in default, after any applicable notice and cure periods,
shall be considered for the benefit of the Property).
(e) The Mortgagor shall not enter into any Lease
with an Affiliate of the Mortgagor, unless (i) the space is for the use and
occupancy of one or more of such Affiliate and (ii) the material terms of such
Lease comply with the requirements set forth in Section 19(b) hereof. The
Mortgagor shall have the right, subject to the provisions of this Mortgage, to
acquire any Lease by way of assignment, surrender, acquisition or further
sublease.
(f) The Mortgagor shall not receive or collect,
or permit the receipt or collection of, any rental or other payments under any
Lease more than one (1) month in advance of the respective period in respect of
which they are to accrue, except that (i) in connection with the execution and
delivery of any Lease or of any amendment to any Lease, rental payments
thereunder may be collected and received in advance in an amount not in excess
of one (1) month's rent and a security deposit may be required thereunder
(provided that such deposits are maintained in accordance with applicable law
and in accordance with Article 51 hereof) and (ii) the Mortgagor may receive
and collect escalation, percentage rent and other charges in accordance with
the terms of each Lease.
(g) Subject to the terms of any non-disturbance
and attornment agreement which the Mortgagee may provide to any Tenant pursuant
to this Mortgage, the Mortgagor shall not enter
- 39 -
46
into any Lease after the date hereof that does not contain terms to the effect
as set forth in Exhibit F hereto.
(h) Upon receipt by the Mortgagee of a written
request from the Mortgagor therefor, the Mortgagee shall execute and deliver to
the Tenant under any Lease (other than a Lease to an Affiliate of the
Mortgagor) existing on the date hereof or made in accordance with the
provisions of this Article 19, a non-disturbance and attornment agreement in
the Mortgagee's customary form for the Premises if required by such Lease and
specified in such request, provided that such request is accompanied by an
Officer's Certificate stating that such Lease complies in all respects with
this Mortgage, including specifically this Article 19.
20. NO ENDORSEMENT. The Mortgagee shall not
become or be considered to be an endorser, co-maker or co-obligor on the
Mortgage Note or on any obligation of the Mortgagor secured by this Mortgage.
21. NO CREDIT FOR PAYMENT OF TAXES OR
IMPOSITIONS. The Mortgagor shall not be entitled to any credit against the
principal of or interest payable on the Mortgage Note, and the Mortgagor shall
not be entitled to any credit against any other amounts which may become
payable under the terms thereof or hereof, by reason of the payment of any tax
on the Property or any part thereof or by reason of the payment of any other
Imposition or other amount required to be paid hereunder. No deduction shall
be made or claimed from the taxable value of the Property or any part thereof
by reason of this Mortgage.
22. EVENT OF DEFAULT; ACCELERATION OF MORTGAGE
NOTE. If one or more of the following events ("Event of Default") shall occur:
(a) default in the payment of all or any
portion of the principal of the Mortgage Note when the same becomes due and
payable, whether at maturity as stated therein or by declaration of
acceleration or otherwise; or
(b) default in the payment of any
installment of interest on, or any other amount payable under, the Mortgage
Note within five (5) days after such installment or other amount becomes due
and payable; or
(c) default in the payment of any other
amounts due and payable hereunder, which continues for a period of five
Business Days after written demand by the Mortgagee for payment thereof; or
(d) an "Event of Default" as defined in
any Loan Document which has not been cured within any applicable cure or grace
period; or
- 40 -
47
(e) any insurance required to be
maintained in respect of the Premises pursuant to Article 12 hereof shall be
cancelled, terminated or expire (and replacement insurance or a binding
commitment to provide such replacement insurance complying with the provisions
of Article 12 hereof has not been effected prior to such event) or any such
insurance shall be amended or modified so as not to comply with Article 12
hereof, and notice to the Mortgagor of such cancellation, termination,
expiration, amendment or modification shall have been mailed or otherwise
surrendered or released for delivery to the Mortgagor; or
(f) the Mortgagor shall, directly or
indirectly, make or permit to occur a violation of the covenants contained in
Section 2.3 hereof, or a violation of the covenants contained in Article 10
hereof (subject to the provisions of Article 11 hereof), or any sale,
assignment, conveyance, transfer, mortgage, pledge, encumbrance or other
disposition in violation of Article 18 hereof, or incur any indebtedness not
permitted by Article 18 hereof, or take or permit any action not permitted by
Article 19 hereof; or
(g) the Mortgagor shall fail to perform
or comply with any of the material covenants of this Mortgage (other than those
terms and conditions referred to in clauses (a), (b), (c), (d), (e) and (f)
above, and (h), (i), (j) and (k) below), or the Mortgagor shall breach any
representation or warranty made by it in this Mortgage or in any other Loan
Document, and in any such case, such failure or breach shall continue for more
than thirty days after written notice thereof by the Mortgagee to the
Mortgagor; provided that in the case of any such failure that is susceptible of
cure but that cannot with diligence be cured within such thirty-day period, if
the Mortgagor shall promptly have commenced to cure the same and shall
thereafter prosecute the curing thereof with diligence, subject to Excusable
Delays, the period within which such failure may be cured shall be extended for
such further period as shall be reasonably necessary for the curing thereof
with diligence, subject to Excusable Delays, provided that such extended period
shall not exceed one hundred twenty (120) days unless, only in the case of
cures which require construction or remedial work, cure cannot with diligence
reasonably be achieved within such one hundred twenty (120) days and the
Mortgagor has delivered an Officer's Certificate to the Mortgagee to such
effect, in which event such period shall be extended for an additional one
hundred twenty (120) days, subject to Excusable Delays (and provided that cure
of any breach of representation or warranty, and that cure of any failure to
make a delivery, subsequent to the date as of which the representation or
warranty was made or applies or such delivery was required shall constitute
cure of such breach, or with respect to such delivery shall constitute cure of
the failure to make the delivery provided such failure has not had a material
adverse effect on the interest of the Mortgagee, hereunder for all purposes
under this Mortgage) provided, that such extension of the cure period shall be
granted only if the Mortgagor provides
- 41 -
48
the Mortgagee with a written report containing a description of measures being
taken to effect such cure, an estimate of the time needed to effect the cure
and a statement as to why the default is not susceptible of being cured within
the applicable cure period; or
(h) any of the Mortgagor, the Master
Lessee or the Master Lease Guarantor shall (i) be generally not paying its
debts as they become due, (ii) file, or consent by answer or otherwise to the
filing against it of, a petition for relief or reorganization or arrangement or
any other petition in bankruptcy, for liquidation (in connection with a
bankruptcy or insolvency proceeding) or to take advantage of any bankruptcy or
insolvency law of any jurisdiction, (iii) make a general assignment for the
benefit of its creditors, (iv) consent to the appointment of a custodian,
receiver, trustee or other officer with similar powers of itself or of any
material part of the Property, (v) be adjudicated insolvent or be liquidated
(in connection with a bankruptcy or insolvency proceeding) or (vi) take
partnership or other action for the purpose of any of the foregoing; or
(i) if a court having jurisdiction shall
enter a decree or order for relief in respect of the Mortgagor, any general
partner of the Mortgagor, Sunrise Xxxxx Limited Partnership, the Master Lessee
or the Master Lease Guarantor (collectively, the "Acceleration Parties") in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law or code now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of any
Acceleration Party or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs and such decree or order shall remain
unstayed and in effect for a period of 90 consecutive days;
(j) (i) an Event of Default pursuant to
any "Security Document" as such term is defined in that certain Amended and
Restated Mortgage, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated December 1, 1993, between Sunrise Xxxxx Limited
Partnership and Sawgrass Finance L.L.C. (together with its successors and
assigns, the "Phase I Mortgagee") which has not been cured within any
applicable cure or grace period and as a result of which the Phase I Mortgagee
shall accelerate the maturity of the indebtedness secured thereby or initiate
foreclosure or receivership proceedings; provided, however, that this Event of
Default shall be deemed cured if the Phase I Mortgagee rescinds the
acceleration or elects not to pursue the foreclosure or receivership
proceedings within 45 days after prior to the initiation of foreclosure
proceedings by the Mortgagee; or
(k) an "Event of Default" pursuant to
the Master Lease or the Master Lease Guaranty which has not been cured within
any applicable cure or grace period;
- 42 -
49
then, in any such event, the Mortgagee, at its option, may declare the Mortgage
Note due and payable and, to the extent permitted by applicable law, the
Mortgagee may exercise the other remedies provided for herein for an Event of
Default; provided, however, that if an Event of Default described in clause (h)
or (i) occurs, then the Mortgage Note shall automatically be and become due and
payable immediately without any action whatsoever on the part of the Mortgagee,
and, to the extent permitted by applicable law, the Mortgagee may exercise such
other remedies; and provided further that if an Event of Default described in
clause (a) or (b) occurs, then the Mortgagee may immediately give the Mortgagor
notice of declaration of acceleration, and the Mortgage Note shall
automatically be and become due and payable on the date specified in such
notice (which may be the date of such notice).
Within thirty (30) days after any written request by
the Mortgagee therefor, but no more frequently than once in any twelve-month
period, the Mortgagor shall furnish to the Mortgagee an Officer's Certificate,
stating that in the ordinary course of the performance by the general partner
or the officer of the Mortgagor signing such certificate of his duties he
either would normally obtain knowledge or have made due inquiry as to the
existence of any condition or event which would constitute an Event of Default
hereunder or a Default of any monetary obligation under the Mortgage Note and
certifying that to the best of his knowledge there is no such condition or
event, or if any such condition or event exists, specifying each such Event of
Default or a Default of any monetary obligation under the Mortgage Note and the
nature and status thereof and what action the Mortgagor is taking or proposes
to take with respect thereto.
23. COMPROMISE OF ACTIONS. Any action, suit or
proceeding brought by the Mortgagee pursuant to this Mortgage or otherwise and
any claim made by the Mortgagee under this Mortgage or otherwise may be
compromised, withdrawn or otherwise dealt with by the Mortgagee without notice
to or the approval of the Mortgagor.
24. FORECLOSURE.
24.1. Foreclosure. Subject to Article 36, if any
Event of Default shall have occurred and the Mortgage Note shall have been
declared due and payable, the Mortgagee may at any time proceed, at law or in
equity, to enforce the payment of the Mortgage Note in accordance with the
terms hereof and, pursuant thereto, may undertake any of the following actions:
(a) institute an action to foreclose its
interest under and the lien of this Mortgage against the Property by judicial
foreclosure sale or strict foreclosure in one proceeding or against portions of
the Property in a series of separate proceedings, and to have the same sold
under the judgment or decree of a court of competent jurisdiction or proceed to
take any of such actions; or
- 43 -
50
(b) take such other action at law or in
equity for the enforcement of this Mortgage and the realization on the security
or any other security herein or elsewhere provided for, as the law may allow,
and may proceed therein to final judgment and execution for the entire unpaid
balance of the principal debt, together with all other sums payable by
Mortgagor in accordance with the provisions of the Mortgage Note and this
Mortgage, and all sums which may have been advanced by the Mortgagee for taxes,
water or sewer rents, charges or claims, payment on prior liens, insurance or
repairs to the Property, all costs of suit, together with interest thereon at
such interest rate as may be awarded in any judgment obtained by the Mortgagee,
as the case may be, from and after the date of any foreclosure sale until
actual payment is made to the Mortgagee of the full amount due the Mortgagee,
and attorneys' fees through and including all appellate levels.
24.2. The Mortgagor's Waivers. To the fullest
extent allowed by applicable law, upon judicial foreclosure of this Mortgage
the Mortgagor or any person claiming any part of the Property by, through or
under the Mortgagor shall not be entitled to direct the judicial order of sale
in inverse order of alienation. In the event of a judicial foreclosure sale,
to the extent that the Mortgagor is in possession of the Premises, the
Mortgagor shall be deemed a tenant at will of the purchaser at such judicial
foreclosure sale and shall be liable for a reasonable rental for the use of the
Premises; and if the Mortgagor refuses to surrender possession of the Premises
upon demand, the purchaser shall be entitled to institute and maintain the
statutory action of forcible entry and detainer and procure a writ of
possession thereunder, and the Mortgagor expressly waives all damages sustained
by reason thereof and the Mortgagor agrees to pay to the purchaser the
reasonable costs and expenses (including all reasonable attorneys' fees and
expenses) of such action and writ, subject to the provisions of Article 36.
24.3. Recovery of Advances. Subject to the
provisions of Article 36, the Mortgagee shall have the right, from time to
time, to bring an appropriate action to recover any sums required to be paid by
the Mortgagor under the terms of this Mortgage and/or the Mortgage Note as they
become due, without regard to whether the principal indebtedness evidenced by
the Mortgage Note or any other sums secured by this Mortgage shall be due, and
without prejudice to the right of the Mortgagee thereafter to bring an action
of foreclosure, or any other action, for any default by the Mortgagor existing
at the time the earlier action was commenced.
24.4. Sale. Upon the completion of any judicial
foreclosure sale or sales, any officer of any court empowered to do so, shall
execute and deliver to the accepted purchaser or purchasers, good and
sufficient instrument or instruments (subject to the provisions of Article 36
hereof), conveying, assigning and transferring all estate, right, title and
interest in and to the property and rights sold. In such event, the
- 44 -
51
Mortgagee is hereby irrevocably appointed the true and lawful attorney of the
Mortgagor, in its name and stead, to make all the necessary conveyances,
assignments, transfers and deliveries of any part of the Property and rights so
sold, and for that purpose the Mortgagee may execute all necessary instruments
of conveyance, assignment and transfer and may substitute one or more persons
with like power. Any such sale or sales shall operate to divest all the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of the Mortgagor in and to the properties, interests and rights so
sold, and shall be a perpetual bar both at law and in equity against the
Mortgagor and against any and all persons claiming or who may claim the same,
or any part thereof from, through or under the Mortgagor, subject to Article
24.2.
25. PURCHASE OF PROPERTY BY MORTGAGEE. The
Mortgagee or any nominee of the Mortgagee may be a purchaser of the Property or
of any part thereof or of any interest therein at any sale thereof, and may
apply to the purchase price all or any part of the indebtedness secured hereby
in lieu of payment in cash of the amount of such indebtedness applied. Any
such purchaser shall, upon any such purchase, acquire good title to the
properties so purchased, free of the lien of this Mortgage and free of all
rights of redemption in the Mortgagor.
26. RECEIPT A SUFFICIENT DISCHARGE TO PURCHASER.
Upon any sale of the Property after the Mortgage Note becomes due and payable,
whether at maturity, by declaration of acceleration or by automatic
acceleration after an Event of Default or otherwise, the receipt of the
Mortgagee or the receipt of the officer making the sale under judicial
proceedings shall, to the full extent legally permitted, be sufficient
discharge to the purchaser for the purchase money, and such purchaser shall not
be obligated to see to the application thereof.
27. WAIVER OF MARSHALLING, APPRAISEMENT,
VALUATION. The Mortgagor hereby waives all rights, legal and equitable, it may
now or hereafter have to require marshalling of assets or to require upon
foreclosure sales of assets in a particular order. Each successor and assign of
Mortgagor, including a holder of a lien subordinate to the lien created hereby
(without implying that Mortgagor has, except as expressly provided herein, a
right to grant an interest in, or a subordinate lien on, the Property), by
acceptance of its interest or lien agrees that it shall be bound by the above
waiver, as if it gave the waiver itself. The Mortgagor also hereby waives, to
the full extent it may lawfully do so, the benefit of all laws providing for
rights of appraisement, valuation, stay or extension or of redemption after
foreclosure now or hereafter in force.
28. SALE SHALL BE A BAR AGAINST MORTGAGOR. Any
sale of the Property in connection with the exercise of remedies under this
Mortgage after the Mortgage Note becomes due and payable, whether at maturity,
by declaration of acceleration or by automatic acceleration after an Event of
Default or otherwise,
- 45 -
52
shall, to the full extent legally permitted, forever be a perpetual bar against
the Mortgagor's asserting any claim to title to the Property.
29. APPLICATION OF PROCEEDS OF SALE. The
proceeds of any sale of the Property or any part thereof or any interest
therein, after the Mortgage Note becomes due and payable, whether at maturity,
by declaration of acceleration or by automatic acceleration after an Event of
Default or otherwise, together with any other moneys at the time held by the
Mortgagee as part of the Property, shall be applied to pay:
First: the reasonable costs and expenses (including
reasonable attorneys' fees and expenses) of the
Mortgagee in enforcing the rights of the Mortgagee
with respect to the Mortgage Note or under this
Mortgage or the other Loan Documents, including
without limitation the expenses described in Article
31 and Article 47 hereof;
Second: the reasonable costs and expenses (including
reasonable attorneys' fees and expenses) of the sale
of the Property, and of any receiver of the Property
or any part thereof appointed pursuant to Article 30
hereof, and any Impositions other than Impositions
subject to which the Property shall have been sold;
Third: all amounts of interest on, and the principal
of, the Mortgage Note (whether at maturity or on a
date fixed for prepayment or by declaration of
acceleration or by automatic acceleration after an
Event of Default or otherwise) and any other amounts
(including additional amounts, if any) payable under
or secured by this Mortgage or the other Loan
Documents; and
Fourth: the balance, if any, to the Persons
lawfully entitled to such amounts.
30. APPOINTMENT OF RECEIVER. If an Event of
Default shall have occurred and be continuing, the Mortgagee shall, to the
fullest extent permitted by law, as a matter of right, be entitled on an ex
parte basis to the appointment of a receiver for all or any part of the
Property, whether such receivership be incidental to a proposed sale of the
Property or otherwise and shall endeavor to give notice to the Mortgagor of
such appointment prior to or simultaneously with such appointment (but in no
way shall the Mortgagee's failure to give notice be deemed to otherwise
diminish any right of the Mortgagee to seek the appointment of a receiver on an
ex parte basis). The Mortgagor hereby consents to the appointment of such a
receiver and will not oppose any such appointment.
31. POSSESSION, MANAGEMENT AND INCOME. If an
Event of Default shall have occurred and be continuing, the Mortgagee, with
such notice, if any, to the Mortgagor as required by law,
- 46 -
53
and subject to the rights of Tenants and the provisions of applicable law, may
immediately enter upon and take possession of the Premises by self-help,
summary proceedings, ejectment or otherwise, and may remove the Mortgagor and
all other Persons and any and all property therefrom, and may hold, operate and
manage the same and receive all earnings, income, rents, issues and proceeds
accruing with respect thereto. The Mortgagee shall be under no liability for
or by reason of any such taking of possession, entry, removal or holding,
operation or management, except (i) for its gross negligence or willful
misconduct or (ii) to the extent required by applicable law, and except that
any amounts so received by the Mortgagee shall be applied to pay:
First: the reasonable costs and expenses (including
reasonable attorneys' fees and expenses) of so
entering upon, taking possession of, holding,
operating and managing the Premises or any part
thereof, and any Impositions or other taxes,
assessments or charges which shall have priority that
is superior to the record priority of this Mortgage,
which the Mortgagee may consider it necessary or
desirable to pay;
Second: all amounts of interest on, and then
principal of, the Mortgage Note (whether at maturity
or on a date fixed for prepayment or by declaration
of acceleration or by automatic acceleration after an
Event of Default or otherwise) and then any other
amounts payable under or secured by this Mortgage or
the other Loan Documents; and
Third: the balance, if any, to the Persons lawfully
entitled to such amounts, if all conditions to the
release of this Mortgage specified in Article 42
hereof shall have been fulfilled, but if any such
condition shall not have been fulfilled, to be held
by the Mortgagee and thereafter applied to any future
payments required to be made in accordance with
subdivisions First and Second above.
At the request of the Mortgagee, the Mortgagor shall
promptly execute and deliver to the Mortgagee such deeds, instruments of
assignment and other documents as the Mortgagee may deem necessary or advisable
to enable the Mortgagee or any agent or representative designated by the
Mortgagee, at such time or times and place or places as the Mortgagee may
reasonably specify, to obtain possession of all or any portion or portions of
the Property to which the Mortgagee shall at the time be entitled hereunder,
subject to the rights of Tenants.
If the Mortgagor shall fail for any reason to execute
and deliver such instrument or document after such request by the Mortgagee,
the Mortgagee, to the fullest extent permitted by law, may (i) obtain a
judgment conferring on the Mortgagee the right to immediate possession and
requiring the Mortgagor to execute and deliver such instruments and documents
to the Mortgagee,
- 47 -
54
which entry of judgment the Mortgagor, to the extent it may lawfully do so,
hereby specifically consents and (ii) pursue the Property wherever it may be
found and to the extent lawfully permitted, take possession of and remove the
same, subject to the rights of Tenants.
Upon every such taking of possession, the Mortgagee
may (but shall have no obligation), from time to time, at the expense of the
Mortgagor and such expenses to constitute additional indebtedness secured by
the Property, make all such expenditures for maintenance, insurance, repairs,
co-replacements, alterations, additions and improvements to and of the
Premises, as it may deem proper. In such case, the Mortgagee, to the fullest
extent permitted by law, shall have the right to manage, control, use, operate,
store, lease or otherwise deal with the Property and to carry on the business
and exercise all the rights and powers of the Mortgagor relating to the
Property, as the Mortgagee shall deem best, including the right to enter into
any and all such agreements with respect to the management, cleaning, control,
use, operation, storage, leasing of or otherwise dealing with the Property, or
any part thereof, as the Mortgagee may determine; and, to the fullest extent
permitted by law, the Mortgagee shall be entitled to collect and receive all
tolls, rents, revenues, issues, income, products and profits of the Property
and every part thereof, without prejudice, however, to the right of the
Mortgagee under any provision of this Mortgage to collect and receive all cash
held by, or required to be deposited with, the Mortgagee hereunder. Such
tolls, rents, revenues, issues, income, products and profits shall be applied
to pay the reasonable expenses of the management, control, use, operation,
storage, leasing of or otherwise dealing with the Premises and of conducting
the business thereof, and of all reasonable and necessary maintenance, repairs,
replacements, alterations, additions and improvements thereto, and to make all
payments which the Mortgagee may be required or may elect to make, if any, for
Impositions, or other taxes, assessments, insurance or other proper charges
upon the Premises or any part thereof (including the employment of engineers
and accountants to examine, inspect and make reports), and all other reasonable
payments which the Mortgagee may be required or authorized to make under any
provision of this Mortgage, as well as just and reasonable compensation for the
services of the Mortgagee, and all persons properly engaged or employed by the
Mortgagee.
32. RIGHT OF MORTGAGEE TO PERFORM MORTGAGOR'S
COVENANTS. If an Event of Default shall occur and be continuing hereunder, the
Mortgagee, upon notice to the Mortgagor (except in cases of emergency that
threaten bodily injury or material damage to the Property or that may lead to a
forfeiture of the Property or an impairment of the lien of this Mortgage, in
which case the Mortgagee will allow such notice and grace or cure period, if
any, as is reasonable under the circumstances) and subject to the Mortgagor's
right of contest under Article 11 hereof, but without waiving or releasing any
obligation, Default or Event of Default, may (but shall be under no obligation
to) at any time thereafter
- 48 -
55
make such payment or perform such act for the account and at the expense of the
Mortgagor, and, to the extent permitted by applicable law, may enter upon the
Premises for such purpose and take all such action thereon as, in the judgment
of the Mortgagee, may be reasonably necessary or appropriate therefor, subject
to the rights of Tenants. All sums so paid by the Mortgagee and all reasonable
costs and expenses (including all reasonable attorneys' fees and expenses) so
incurred, shall constitute additional indebtedness secured by this Mortgage.
33. REMEDIES CUMULATIVE. Subject to the
provisions of Article 36 hereof, to the extent permitted under applicable law
each right, power and remedy of the Mortgagee provided for in this Mortgage or
now or hereafter existing at law or in equity or by statute or otherwise shall
be cumulative and concurrent and shall be in addition to every other right,
power or remedy provided for in this Mortgage or now or hereafter existing at
law or in equity or by statute (including the Uniform Commercial Code as
enacted in the State) or otherwise, and the exercise or beginning of the
exercise by the Mortgagee of any one or more of the rights, powers or remedies
provided for in this Mortgage or now or hereafter existing at law or in equity
or by statute or otherwise shall not preclude the simultaneous or later
exercise by the Mortgagee, to the extent permitted by law, of any or all of
such other rights, powers or remedies.
34. APPLICABLE LAW. All rights, powers and
remedies provided herein may be exercised only to the extent that the exercise
thereof, including those which do not require the giving of notice, does not
violate any applicable law, and are intended to be limited to the extent
necessary so that they will not render this Mortgage invalid, unenforceable or
not entitled to be recorded, registered or filed under any applicable law. All
waivers, consents, confessions and releases provided for in this Mortgage are
effective only to the extent permitted by applicable law. THIS MORTGAGE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
FLORIDA.
35. NO WAIVER. No failure by the Mortgagee to
insist upon the strict performance of any term hereof or to exercise any right,
power or remedy consequent upon a breach thereof shall constitute a waiver of
any such term or of any such breach. No waiver of any breach shall affect or
alter this Mortgage, which shall continue in full force and effect, or shall
affect or alter the rights of the Mortgagee with respect to any other then
existing or subsequent breach. Neither the Mortgagor nor any other person now
or hereafter obligated for payment of all or any part of the sums now or
hereafter secured by this Mortgage shall be relieved of such obligation by
reason of the failure of the Mortgagee to comply with any request of the
Mortgagor or of any other person so obligated, to take action to foreclose on
this Mortgage or otherwise to enforce any provisions of this Mortgage or the
Mortgage Note or by reason of the release, regardless of consideration, of all
or any part of the security held for the indebtedness secured by this Mortgage,
or by reason of any
- 49 -
56
agreement or stipulation between any subsequent owner of the Property and the
Mortgagee extending the time of payment or modifying the terms of this Mortgage
or the Mortgage Note without first having obtained the consent of the Mortgagor
or such other persons; and in the latter event the Mortgagor and all such other
persons shall continue to be liable, subject to Article 36, to make payments
according to the terms of any such extension or modification agreement, unless
expressly released and discharged in writing by the Mortgagee.
36. OBLIGATIONS ARE WITHOUT RECOURSE. Anything
contained herein or in any other Loan Documents or any Officer's Certificate to
the contrary notwithstanding, the Mortgagee agrees that no recourse shall be
had against the Mortgagor or any constituent partner in the Mortgagor for the
payment of interest and principal or other sums due under the Mortgage Note or
the performance of the Mortgagor's obligations under the Loan Documents, except
to the property and assets of the Mortgagor, including without limitation the
property secured by this Mortgage and any other collateral given as security
for the payment of the Mortgage Note, and in the event that the Mortgagee
pursues any remedies available to it hereunder or under the Mortgage Note or
any other Loan Document, the Mortgagee shall not have recourse to the Mortgagor
or any other person for any deficiencies, losses or claims for damages
resulting therefrom, and none of the property or assets of the Mortgagor or any
other persons (other than the Property and the proceeds thereof) shall be
subject to levy, execution, garnishment, attachment, foreclosure or other
enforcement procedure for the satisfaction of the remedies of the Mortgagee
hereunder; provided, however, that the foregoing limitations shall not be
construed so as to exonerate or exculpate the Mortgagor or any other person who
would otherwise be liable (collectively, the "Parties") from the payment of any
liability, loss or damage suffered by the Mortgagee by reason of (i) any
misapplication by the Mortgagor or the Parties in violation of the Loan
Documents of any funds held by or on behalf of any of them, including without
limitation Proceeds, security deposits and other deposits and reserves of any
kind or nature, (ii) any modification of any existing Lease or occupancy
agreement in contravention of any term, covenant or condition of any Loan
Document, (iii) willful commission of waste against the Property by the
Mortgagor or any of the Parties, (iv) the intentional or willful breach of any
representations or warranties by the Mortgagor or any of the Parties in any of
the Loan Documents or fraud by the Mortgagor or any of the Parties; (v) the
seizure or forfeiture of the Property, or any portion thereof or any interest
therein, resulting from criminal wrongdoing or other unlawful actions of the
Mortgagor or any of the Parties; (vi) the failure of the Mortgagor to pay, in
accordance with the provisions of the Mortgage, Impositions, insurance
premiums, charges for labor or materials or other charges that would if remain
unpaid create a lien on the Property or any portion thereof if and to the
extent that otherwise sufficient Revenues were applied for purposes other than
the payment of Operating Expenses and distributed by or to the Party
- 50 -
57
against whom liability is sought after such taxes, premiums or charges were
incurred, (vii) the breach by the Mortgagor of any covenant in any of the Loan
Documents pertaining to hazardous materials or compliance with environmental
laws, regulations or other legal requirements, (viii) the failure to pay any
Operating Expenses after the occurrence of an Event of Default if and to the
extent that otherwise sufficient Revenues were distributed by or to the Party
against whom liability is sought after such Operating Expenses were incurred or
(ix) the further encumbrancing of the Property; and provided further, that the
foregoing limitations on the Mortgagor's and Parties' personal liability shall
not impair the validity of the indebtedness evidenced by the Mortgage Note, the
lien of this Mortgage, or the validity of any other Loan Document, or the right
of the Mortgagee as secured party to foreclose and/or enforce the lien of the
Mortgage after default by the Mortgagor, or the right of the Mortgagee to
enforce any of the provisions of the Loan Documents against the Mortgagor. In
the event that any person or persons or entity or entities, if any, shall have
guaranteed all or part of the loan secured hereby, or any of the obligations of
the Mortgagor in connection therewith, by separate written guaranty, none of
the foregoing limitations on the Mortgagor's personal liability shall modify,
diminish or discharge the personal liability of any such guarantor as set forth
in any such written guaranty. It is the intention of the Mortgagor and the
Mortgagee that this Article 36 shall govern every other provision of the
Mortgage Note and all the other Loan Documents and that the absence of explicit
reference to this Section in any provision hereof shall not be construed to
derogate the application of this Article 36 to such provision. Subject to the
foregoing limitations on the personal liability of the Parties, nothing herein
shall be deemed to be a waiver of any right which the Mortgagee may have under
Section 506(a), 506(b), 1111(b) or any other provision of the Bankruptcy Reform
Act of 1978 or any successor thereto or similar provisions under applicable
state law to file a claim for the full amount of the debt owing to the
Mortgagee by the Mortgagor or to require that all of the Property shall
continue to secure all of the indebtedness owing to the Mortgagee in accordance
with the Mortgage Note and this Mortgage.
37. STAMP AND OTHER TAXES. Subject to the
provisions of Article 11 relating to permitted contests, the Mortgagor will pay
any United States documentary stamp taxes, with interest and fines and
penalties, if any, and any city, county or state mortgage recording taxes,
documentary stamp taxes and intangible taxes, with interest and fines and
penalties, if any, that may hereafter be levied, imposed or assessed under or
upon or by reason of this Mortgage or any instrument or transaction affecting
or relating to either thereof. In the event of the Mortgagor's default
thereof, the Mortgagee may advance the same and the amount so advanced shall be
due and payable by the Mortgagor to the Mortgagee within ten days after demand
therefor, together with interest thereon at the Prime Rate. The Mortgagor
shall not be obligated to pay any taxes which may be imposed upon the income of
the Mortgagee.
- 51 -
58
38. FURTHER ASSURANCES. The Mortgagor, at its
own expense, will execute, acknowledge and deliver all such instruments and
take all such actions as the Mortgagee from time to time reasonably may request
or as may be reasonably necessary or proper for the better assuring to the
Mortgagee of the properties and rights now or hereafter subject to the lien
hereof or intended so to be.
39. ESTOPPEL CERTIFICATE. The Mortgagor will,
from time to time, upon twenty days' prior written request by the Mortgagee,
execute, acknowledge and deliver to the Mortgagee an Officer's Certificate from
the Mortgagor, stating that this Mortgage is unmodified and in full force and
effect (or, if there have been modifications, that this Mortgage is in full
force and effect as modified and setting forth such modifications) and stating
the interest accrued to date on the principal amount of the Mortgage Note.
40. ADDITIONAL SECURITY. Without notice to or
consent of the Mortgagor and without impairment of the lien and rights created
by this Mortgage, the Mortgagee may accept (but the Mortgagor shall not be
obligated to furnish) from the Mortgagor or from any other Person or Persons,
additional security for the Mortgage Note. Neither the giving of this Mortgage
nor the acceptance of any such additional security shall prevent the Mortgagee
from resorting, first, to such additional security, and, second, to the
security created by this Mortgage without affecting the Mortgagee's interest
under this Mortgage.
41. FINANCING STATEMENT. This Mortgage shall be
deemed to be and may be enforced from time to time as a mortgage, chattel
mortgage, assignment, contract, security agreement, financing statement, or
lien on machinery situated on the Premises, and from time to time as any one or
more thereof, and shall constitute a "fixture filing" for the purposes of
Article 9 of the Uniform Commercial Code as enacted in the state where the
Property is located.
42. RELEASE. If the Mortgagor shall pay the
principal of and interest on, and all other charges and amounts due pursuant to
the Mortgage Note in full at maturity or earlier as permitted in accordance
with the terms thereof and all other sums payable to the Mortgagee hereunder by
the Mortgagor or secured hereby or by the other Loan Documents, then this
Mortgage and all the other Loan Documents shall be discharged and satisfied or
assigned (to the Mortgagor or to any other Person at the Mortgagor's
direction), at the Mortgagor's option, without warranty, other than for the
acts of the Mortgagee, at the expense of the Mortgagor upon its written
request. Concurrently with such release and satisfaction or assignment of this
Mortgage and all the other Loan Documents, the Mortgagee will return to the
Mortgagor the Mortgage Note and all title and other insurance policies relating
to the Property and, on the written request and at the expense of the
Mortgagor, will execute and deliver such proper instruments of release
(including appropriate UCC-3
- 52 -
59
termination statements) as may reasonably be requested by the Mortgagor to
evidence such release and satisfaction or assignment, and any such instrument,
when duly executed by the Mortgagee and duly recorded in the places where this
Mortgage and each other Loan Document is recorded, shall conclusively evidence
the release and satisfaction or assignment of this Mortgage and the other Loan
Documents.
43. CHANGES IN LAW REGARDING TAXATION. In the
event of the passage, after the date of this Mortgage, of any law of the State
changing in any way the laws for the taxation of mortgages or debts secured by
mortgages for state or local purposes or the manner of the collection of any
such taxes, and imposing a tax, either directly or indirectly, on this Mortgage
or the Mortgage Note and resulting in an increase in the taxes or other charges
imposed on or incurred by the Mortgagee by reason of such change in law, the
Mortgagee may, at its option, upon 60 days' notice, declare the Mortgage Note
to be due and payable (without premium); provided, however, that the Mortgagee
shall not make such declaration and this Mortgage shall remain in effect if,
notwithstanding said law, (i) (x) the Mortgagor may lawfully pay such taxes on
behalf of the Mortgagee or (y) the Mortgagor and the Mortgagee may lawfully,
and do, enter into an enforceable agreement obligating the Mortgagor to pay to
the Mortgagee an amount equal to any increase in taxation or charges imposed on
or incurred by the Mortgagee by reason of such change in law (which agreement
shall thereupon become part of this Mortgage), and (ii) the Mortgagor does in
fact pay such taxes or such increases in taxation or charges, as applicable;
provided, however, that this Article 43 shall not apply to any taxes which may
arise in connection with the ownership or transfer of the Mortgage Note or
which may be imposed upon the income of the Mortgagee.
44. SEVERABILITY. In case any one or more of the
provisions contained in this Mortgage or in the Mortgage Note shall be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby.
45. SECURITY AGREEMENT, ETC.
45.1. Grant of Security. This Mortgage is a
security agreement within the meaning of the Uniform Commercial Code of the
state where the Property is located with respect to all personal property now
or hereafter located at the Property and owned by the Mortgagor as to which the
creation and perfection of a security interest are subject to such Uniform
Commercial Code (the "Personal Property"), and is also a mortgage as to those
portions of the Property that are classified as real property. The Mortgagor
hereby grants to the Mortgagee a security interest in and to the Personal
Property to secure the payment of the Mortgage Note. Any completely executed
counterpart of this instrument may be filed as a mortgage on real property or
- 53 -
60
fixtures, or as a security agreement or financing statement or as both. The
address of the Mortgagor, as debtor, and the address of the Mortgagee, as
secured party, are shown on page 1 of this Mortgage.
45.2. Financing Statements. The Mortgagor shall
cause all financing and continuation statements and other instruments with
respect to the Personal Property at all times to be kept recorded, filed or
registered in such manner and in such places as may be required by law fully to
evidence, perfect and secure the interests of the Mortgagee in the Personal
Property, and shall pay all filing fees in connection therewith. The Mortgagor
hereby appoints the Mortgagee as its attorney-in-fact to perform the
obligations of the Mortgagor under this Section 45.2 in the event it fails to
do so.
45.3. Multiple Remedies. If an Event of Default
shall have occurred and be continuing, the Mortgagee shall have the option of
proceeding, to the extent permitted under applicable law, as to both real and
personal property in accordance with its rights and remedies in respect of the
real property, as an alternative to proceeding in accordance with the default
provisions of the Uniform Commercial Code; and the Mortgagee may exercise any
and all of the other rights of a secured party under such Uniform Commercial
Code.
45.4. Waiver of Rights. To the extent permitted
under applicable law, the Mortgagor waives all rights of redemption after
foreclosure and all other rights and remedies of a debtor thereunder and all
formalities prescribed by law relative to the sale or disposition of the
Personal Property after the occurrence and during the continuance of an Event
of Default hereunder and all other rights and remedies of the Mortgagor with
respect thereto. In exercising its right to take possession of the Personal
Property upon the occurrence and during the continuance of an Event of Default
hereunder, the Mortgagee, personally or by its agents or attorneys, and subject
to the rights of any Tenant, may enter upon any part of the Premises without
being guilty of trespass or any wrongdoing, and without liability for damages
thereby occasioned except for its gross negligence or willful misconduct. To
the extent any notice of sale or other disposition of the Personal Property is
required and cannot be waived, in the event the Mortgagee elects to proceed
with respect to the Personal Property separately from the real property, the
Mortgagee shall give at least ten Business Days' notice of the sale of the
Personal Property. All recitals in any instrument of assignment or any other
instrument executed by the Mortgagee incident to any sale, transfer,
assignment, lease or other disposition or utilization of the Personal Property
or any part thereof shall be full proof of the matter stated therein and no
other proof shall be required to establish full legal propriety of the sale or
other action taken by the Mortgagee or of any fact or condition incident
thereto, all of which shall be deemed conclusively to have been performed or to
have occurred.
- 54 -
61
45.5. Expenses of Disposition of the Property. The
Mortgagor shall reimburse the Mortgagee, within ten Business Days after demand,
for all reasonable expenses of retaking, holding, preparing for sale, lease or
other use or disposition, selling, leasing or otherwise using or disposing of
the Personal Property which are incurred, including all reasonable attorneys'
fees and expenses, and all such expenses shall be added to the Mortgagor's
obligations to the Mortgagee and shall be secured hereby.
46. EXPENSES OF MORTGAGEE.
(a) If any action, suit or other proceeding
affecting the Property or any part thereof be commenced, in which action, suit
or proceeding the Mortgagee is made a party or participates or in which the
right to use the Property or any part thereof is threatened, or in which it
becomes necessary in the reasonable judgment of the Mortgagee to defend or
uphold the interest of the Mortgagee under this Mortgage (including any action,
suit or proceeding to establish or uphold the compliance of the Improvements
with any Legal Requirement), then all amounts reasonably paid or incurred by
the Mortgagee for the expense of any such action, suit or other proceeding or
to protect its rights therein (whether or not it is made or becomes a party
thereto) or otherwise to enforce or defend the rights and lien created by this
Mortgage (including all reasonable attorneys' fees and expenses), shall be paid
by the Mortgagor upon demand and, if not paid within thirty days of the giving
of such demand, shall bear interest at the Prime Rate from the date of the
payment or incurring thereof, and any such amount and the interest thereon
shall be a lien on the Property, prior to any right, or right to, interest in,
or claim upon the Property attaching or accruing subsequent to or otherwise
subordinate to the lien of this Mortgage, and the same shall be deemed to be
indebtedness secured hereby, provided such right of payment in the case of any
enforcement of the rights of the Mortgagee under this Mortgage shall only arise
in the case where an Event of Default shall have occurred and be continuing.
All other reasonable amounts paid, advanced or incurred by the Mortgagee after
the occurrence and during the continuance of an Event of Default in order to
secure and protect the interest of the Mortgagee under this Mortgage or the
other Loan Documents shall be a like lien on the Property and be deemed to be
part of the indebtedness secured hereby.
(b) Subject to the provisions of Article 36
hereof, in the event this Mortgage or the Mortgage Note is placed in the hands
of counsel for collection of any amount payable hereunder or thereunder or for
the enforcement of any of the provisions hereof or thereof and if an Event of
Default shall have occurred and shall then be continuing, the Mortgagor agrees
to pay all reasonable costs associated therewith incurred by the Mortgagee,
either with or without the institution of an action, suit or other proceeding,
in addition to all reasonable costs, disbursements and allowances provided by
law, all such costs to be paid upon demand, together with interest thereon at
the Prime
- 55 -
62
Rate from the date of notice or incurring thereof, and the same shall be deemed
to be part of the indebtedness secured hereby.
47. USURY. The Mortgagor and the Mortgagee
intend to conform strictly to applicable laws regarding usury. The Mortgagor
and the Mortgagee hereby stipulate and agree that none of the terms and
provisions contained in the Mortgage Note or this Mortgage shall ever be
construed to create a contract to pay for the use, forbearance, or detention of
money an amount in excess of the maximum nonusurious amount allowed by
applicable law. If the Mortgage Note or this Mortgage or the transactions
contemplated by any of them would be otherwise usurious under applicable law,
then notwithstanding anything to the contrary in any or all of the Mortgage
Note or this Mortgage, the Mortgagor, and the Mortgagee hereby agree as
follows: (i) for any applicable period of time specified by any applicable
law, interest under the Loan Documents shall never exceed the maximum
nonusurious amount allowed by such law; and (ii) if the Mortgage Note shall be
accelerated in whole or in part for any reason, or if any required or permitted
prepayment occurs hereunder, then for any applicable period of time specified
by any applicable law, interest shall never include more than the maximum
nonusurious amount allowed by each such law, and in either such case any excess
interest (if any) otherwise provided for under any or all of the Loan Documents
shall automatically be applied by the Mortgagee in the following order: (1) to
interest properly charged under the Mortgage Note and this Mortgage; (2) to
principal properly charged under the Mortgage Note and this Mortgage (without
premium); (3) if all sums due under (1) and (2) have been or would thereby be
paid in full, all other interest on the Mortgage Note shall be cancelled
automatically as of and through the date of such acceleration or prepayment;
and (4) if any such excess interest has been received by the Mortgagee, it
shall be refunded by the Mortgagee to the Mortgagor. The Mortgagor shall never
be required to pay unearned interest under the Mortgage Note and this Mortgage
or to pay interest under any or all of the Loan Documents in an amount in
excess of the maximum nonusurious amount allowed by applicable law, and the
provisions of this Article 47 shall control over all other provisions of any
Loan Document which may be in apparent conflict herewith.
Notwithstanding anything to the contrary contained in
this Article 47, in the event that any payments required to be made under the
Mortgage Note are determined to be usurious under applicable law, the Mortgagor
shall be required to redeem the Mortgage Note and failure to do so shall be an
Event of Default under this Mortgage.
48. MISCELLANEOUS. This Mortgage may be
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such discharge or termination is sought. In the
event any time period or any date provided in this Mortgage ends or falls on a
day other than a Business Day, then such time period shall be deemed to end and
such date shall
- 56 -
63
be deemed to fall on the preceding Business Day, and performance herein may be
made on such Business Day, with the same force and effect as if made on such
succeeding day. Subject to Article 36 hereof, this Mortgage shall be binding
upon the Mortgagor and the Mortgagee and each of the Persons constituting the
Mortgagor and the Mortgagee and their respective successors and permitted
assigns and all Persons claiming under or through the Mortgagor and the
Mortgagee or any such successors or permitted assigns, and shall inure to the
benefit of and be enforceable by the Mortgagor and the Mortgagee and their
respective successors and assigns. The Mortgagee may assign to any party all
or any part of, or any interest in, the Mortgagee's rights and benefits
hereunder and to the extent of such assignment such assignee shall have the
same rights and benefits against the Mortgagor as it would have had if it were
the Mortgagee hereunder. This Mortgage may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
49. NON-MERGER. It is the intention and
agreement of the Mortgagor and the Mortgagee that there shall be no merger of
any leasehold estate in the Premises with the fee interest in the Premises or
any other estate or interest in the Premises, and there shall be no merger of
this Mortgage and any estate in the Premises, by reason of the fact that the
same Person may own or hold (a) any leasehold estate in the Premises, and/or
(b) this Mortgage, and/or (c) the fee interest in the Premises or any other
estate or interest in the Premises.
50. ASSIGNMENT OF RENTS AND MORTGAGOR'S INTEREST
IN LEASES.
(a) During the term hereof, the Mortgagor
presently hereby irrevocably grants, sells, assigns, conveys, transfers and
sets over to the Mortgagee, subject to the terms and conditions hereof, any and
all existing Leases and any other Leases which may hereafter be entered into by
the Mortgagor, and any modifications, renewals or extensions thereof, and all
right, title and interest of the Mortgagor thereunder, including all claim,
right and demand as lessor to receive, collect and retain all rents and all
other amounts due thereunder, any modification, renewals or extensions thereof,
including:
(i) the immediate and continuing right
to receive and collect all amounts payable by all Tenants,
subtenants or other parties pursuant to the Leases, including
without limitation (A) all rents, income, revenues, issues,
profits, insurance proceeds, condemnation awards and other
payments, tenders and security payable to or receivable by the
Mortgagor under the Leases, (B) all damages or other amounts
payable in the event of any expiration or termination of any
Lease pursuant to the terms thereof, by operation of law or
otherwise, (C) any indemnification against, or reimbursement
for, sums paid and costs and expenses incurred by the
Mortgagor under any Lease or otherwise, (D) any award in the
- 57 -
64
event of the bankruptcy of any Tenant or guarantor of a Lease,
and (E) all security deposits, other security instruments,
other deposits or prepayments with respect to any such Leases;
(ii) all claims, rights, powers,
privileges and remedies of the Mortgagor, whether provided for
in any Lease or arising by statute or at law or in equity or
otherwise, consequent on any failure on the part of any Tenant
to perform or comply with any term of any Lease;
(iii) all right to take all action upon
the happening of a default under any Lease as shall be
permitted by any Lease or by law, including, without
limitation, the commencement, conduct and consummation of
proceedings at law or in equity; and
(iv) the full power and authority, in the
name of the Mortgagor, or otherwise, to enforce, collect,
receive and make receipt for any and all of the foregoing and
to do any and all other acts and things whatsoever which the
Mortgagor, or any landlord is or may be entitled to do under
any Lease;
subject, however, to the license granted to the Mortgagor under paragraph (c)
below.
(b) Any funds received by the Mortgagee, after
payment of all proper costs and charges, under this Article 50 shall be held by
the Mortgagee for application in the priority set forth in Article 29 hereof.
The Mortgagee shall be accountable to the Mortgagor only for monies actually
received by the Mortgagee pursuant to this Article 50. The collection of said
funds and the application thereof as aforesaid shall not cure or waive any
Event of Default or waive, modify or affect any notice of Event of Default or
invalidate any act done pursuant to such notice; provided, however, if the
Mortgagor deposits with the Mortgagee amounts which are sufficient to cover the
amounts to be applied hereunder, the Event of Default shall be deemed to have
been cured.
(c) (i) So long as no Event of Default shall
have occurred and be continuing, the Mortgagor shall have a license, which may
be performed by the Manager, to collect and retain from the Tenants and the
parties to the REA, rent and all other sums payable under the Leases and the
REA, and all Proceeds paid in respect of the insurance described in clause (d)
of Exhibit D hereto to enforce the obligations of Tenants under the Leases and
of such other parties under the REA, and to exercise all the rights and
remedies of the landlord under the Leases and the REA and, subject in each
case, however, to compliance with the provisions of this Mortgage. The
Mortgagor shall deposit as soon as practicable, but in no event later than one
Business Day after receipt, or shall cause the Manager to so deposit, all
monies received in respect of the Property or this mortgage and in
- 58 -
65
respect of all rents, profits, issues and income from any Leases and all other
Operating Income, and all income or other gains from investment or reinvestment
thereof, in an operating account (the "Operating Account") to be established by
the Mortgagor in the name of the Mortgagor at a bank selected by the Mortgagor
(unless reasonably disapproved by the Mortgagee), separate from all other
monies of the Mortgagor or the Mortgagee, provided, however, if in the event of
a dispute with a Tenant, the Mortgagor deems it in the best interest of
maintaining the value of the Property to withhold deposit of any rents received
from such Tenant because of a dispute, it is authorized to do so. The
Mortgagor hereby grants and assigns to the Mortgagee the Operating Account to
secure the performance of the obligations under the Mortgage Note, the Mortgage
and the other Loan Documents and to be used by the Mortgagee to pay amounts
permitted to be withdrawn under Section 50(b).
(ii) If any Event of Default shall have
occurred and be continuing, the license granted in Section 50(c)(i) hereof
shall immediately cease and terminate, with or without any action or proceeding
or the intervention of a receiver appointed by a court, and the Mortgagee or an
agent appointed by the Mortgagee may, to the fullest extent permitted by the
Leases, do any or all of the following:
(A) exercise any of the Mortgagor's
rights under the Leases including notifying Tenants
to pay rent to an account or location selected by the
Mortgagee in accordance with this Mortgage;
(B) enforce the Leases;
(C) demand, collect, xxx for, attach,
levy, recover, receive, compromise and adjust, and
make, execute and deliver receipts and releases for
all rents or other payments that may then be or may
thereafter become due, owing or payable with respect
to the Leases;
(D) demand that any sums held by the
Mortgagor with respect to any Lease (including but
not limited to any security deposits, other deposits
or prepayments) be immediately remitted to the
Mortgagee; and
(E) generally, do, execute and perform
any other act, deed, matter or thing whatsoever that
ought to be done, executed and performed in and about
or with respect to the Leases, as fully as allowed or
authorized by this Article 50.
(d) The Mortgagor hereby irrevocably authorizes
and directs each Tenant under a Lease, upon receipt of notice from the
Mortgagee that an Event of Default has occurred and is continuing, to pay
directly to, or as directed by, the Mortgagee, all rents, issues and profits
accruing or due under such Tenant's
- 59 -
66
Lease from and after the receipt of such notice. The Mortgagor agrees that any
Tenant shall have the right to rely upon the notice from the Mortgagee and
shall pay such rents, issues and profits to or as directed by the Mortgagee
without any obligation to inquire into the actual existence of any Event of
Default claimed by the Mortgagee, notwithstanding any notice from or contrary
claim by the Mortgagor, and the Mortgagor shall have no right or claim for any
rents, issues or profits so paid to the Mortgagee. Such rents, issues and
profits shall continue to be paid to the Mortgagee unless and until the Event
of Default which gave rise to the termination of the Mortgagor's license under
Section 50(c)(i) is, and any intervening Events of Default have been, cured to
the satisfaction of the Mortgagee (so long as no amount shall then be due and
payable under the Mortgage Note, whether at maturity, by declaration of
acceleration or otherwise, and such acceleration has not been rescinded). In
the event each such Event of Default has been cured as aforesaid (or, if the
provisions set forth in the parenthetical in the immediately preceding sentence
are applicable, upon completion of foreclosure or comparable remedies resulting
in a disposition of the Premises) the Mortgagee shall direct each Tenant by
written notice to resume the payment of all rents, issues or profits accruing
or due under its respective Lease in accordance with the provisions of Section
50(c) hereof (or, if the immediately preceding parenthetical is applicable, to
the then-owner of the Premises) from and after receipt of such notice from the
Mortgagee.
(e) Except for any termination of any Lease or
any amendment, modification or waiver of the provisions of any Lease expressly
permitted by the provisions thereof or of Article 19 hereof, the Mortgagor at
its expense will prudently enforce in all material respects each of the Leases
in accordance with their terms. Neither the execution and delivery of this
Mortgage nor any action or inaction on the part of the Mortgagee shall release
(i) any Tenant from its Lease, (ii) any guarantor of any Lease or (iii) the
Mortgagor from any of its obligations under the Leases or constitute an
assumption of any such obligation under the Leases or constitute an assumption
of any such obligation on the part of the Mortgagee. No action or failure to
act on the part of the Mortgagor shall adversely affect or limit the rights of
the Mortgagee under this Mortgage or, through this Mortgage, under any Lease.
(f) During the term hereof, all rights, powers
and privileges of Mortgagee herein set forth are coupled with an interest and
are irrevocable, subject to the terms and conditions hereof, and the Mortgagor
will not take any action under any Lease or otherwise which is inconsistent
with this Mortgage or any of the terms hereof and any such action inconsistent
herewith shall, to the fullest extent permitted by law, be void. Any further
assignment of any rents, issue, or profits from the Property shall to the
fullest extent permitted by law be void except as permitted by Section 18.3 of
this Mortgage. To the fullest extent permitted by applicable law, the
Mortgagor hereby
- 60 -
67
waives any requirement that the Mortgagee commence any foreclosure proceeding
with respect to any or all of the Property prior to enforcement of any remedies
pursuant to this Article 50, including the right to commence and prosecute an
action to appoint a receiver for rents and all other amounts due under any
Leases. Subject to Article 36 hereof, the Mortgagor will, from time to time,
upon request of the Mortgagee, execute all instruments and further assurances
and all supplemental instruments and take all such action as the Mortgagee from
time to time may reasonably request in order to perfect, preserve and protect
the interests intended to be assigned to the Mortgagee hereby.
(g) The assignment granted by this Article 50 may
be modified, amended, discharged or waived only by an agreement in writing
signed by the party against whom enforcement of any such modification,
amendment, discharge or waiver is sought. Subject to Article 36 hereof, the
covenants of this Article 50 shall run with the land and bind the Mortgagor,
the successors and permitted assigns of the Mortgagor, and all present and
subsequent encumbrances, Tenants of any of the Premises, and shall bind and
inure to the benefit of the Mortgagee, its successors and permitted assigns.
(h) The Mortgagor hereby agrees that it will not,
unilaterally or by agreement, subordinate, amend, modify, extend, discharge,
terminate, surrender, waive or otherwise change any term of any Lease in any
manner which would violate this Mortgage. If any Lease shall be amended as
permitted hereby, such Lease shall continue to be subject to the provisions
hereof without the necessity of any further act by any of the parties hereto,
subject to the provisions of any non-disturbance agreement which the Mortgagee
may have granted in accordance with the provisions of this Mortgage.
51. NOTICES. Any notice, demand, consent, waiver,
approval, direction, agreement or other communication (any "Notice") required
or permitted hereunder or under any other Loan Document shall be in writing and
sent via overnight courier, delivered by hand or mailed by certified mail,
return receipt requested, addressed as follows to the person entitled to
receive the same:
- 61 -
68
(1) If to the Mortgagor, two (2) copies to:
Sawgrass Xxxxx Phase II Limited Partnership
c/o The Xxxxx Corporation
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: General Counsel
Attention: Chief Financial Officer
Tel.: (000) 000-0000
Fax.: (000) 000-0000
With a copy to:
Xxxxxxx & Xxxxx
000 Xxxxx Xx Xxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Tel.: (000) 000-0000
Fax.: (000) 000-0000
(2) If to the Mortgagee:
CS First Boston Mortgage Capital
Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Tel.: (000) 000-0000
Fax.: (000) 000-0000
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Tel.: (000) 000-0000
Fax.: (000) 000-0000
Any Notice shall be deemed to have been validly given
hereunder when delivered if sent via courier service, delivered by hand or upon
the third Business Day after deposited with the U.S. Postal Service. Any
person shall have the right to specify, from time to time, at its address or
addresses for purposes of this Note, any other address or addresses upon giving
ten (10) days' notice thereof to each other person then entitled to receive
notices or other instruments hereunder.
The Mortgagor hereby acknowledges receipt, without
charge, of a true copy of this Mortgage.
- 62 -
69
IN WITNESS WHEREOF, the Mortgagee and the Mortgagor
have caused this Mortgage to be duly executed and delivered as of the date
first above written.
SAWGRASS XXXXX PHASE II LIMITED PARTNERSHIP,
as Mortgagor
By: Sawgrass Xxxxx Phase II, L.L.C., a
Delaware limited liability company,
its General Partner
By: The Xxxxx Limited Partnership, a
Delaware limited partnership,
its Executive Manager
By: The Xxxxx Corporation, a
Delaware corporation, its
General Partner
WITNESS/ATTEST
By:
---------------------------
Name:
Title:
---------------------------
Name:
---------------------------
Name:
CS FIRST BOSTON MORTGAGE CAPITAL CORP.,
as Mortgagee
By:
---------------------------------
Name:
Title:
---------------------------
Name:
---------------------------
Name:
- 00 -
00
Xxxxx xx Xxx Xxxx )
) :
County of New York )
The foregoing instrument was acknowledged before me this 30th
day of July, 1996 by _________________, as _____________ of The Xxxxx
Corporation, a Delaware corporation, as general partner of The Xxxxx Limited
Partnership, a Delaware limited partnership, as executive manager of Sawgrass
Xxxxx Phase II, L.L.C., a Delaware limited liability company, as general
partner of Sawgrass Xxxxx Phase II Limited Partnership, a Delaware limited
partnership, on behalf of said partnership. He/She is personally known to me or
has produced ______________ as identification.
------------------------
Notary Public
Name:
-----------------------------------
Commission Expires:
---------------------
- 00 -
00
Xxxxx xx Xxx Xxxx )
) :
County of New York )
The foregoing instrument was acknowledged before me this 30th day of
July, 1996 by __________________ on behalf of and as _________________ of CS
First Boston Mortgage Capital Corp., a Delaware corporation. He/She is
personally known to me or has produced ________________ as identification.
------------------------------
Notary Public
Name:
--------------------------------
Commission Expires:
------------------
- 65 -
72
EXHIBIT A
LEGAL DESCRIPTION
A-1
73
EXHIBIT B
PERMITTED EXCEPTIONS
(a) the right reserved to or vested in any
municipality or public authority to condemn, appropriate, recapture or
designate a purchaser of the Property or any part thereof or interest therein
or under zoning laws and use regulations;
(b) any (i) liens for Impositions and any other
taxes, assessments or charges, (ii) liens of mechanics, materialmen, suppliers,
vendors or other Persons for work or services performed or materials furnished
in connection with the Property and (iii) liens or charges arising from the
imposition of any Legal Requirement, in each case which are not due and payable
in accordance with the terms of this Mortgage or the amount, validity or
application of which is being contested at the time by appropriate legal,
administrative or other proceedings which shall operate to prevent the
collection thereof or other realization thereon and the sale or forfeiture of
the Property or any interest therein to satisfy the same, provided that the
Mortgagor shall have complied with Article 11 dealing with the contest of any
Imposition, lien, tax, assessment, charge or Legal Requirement;
(c) the lien hereof and of any other Loan
Document and any rights granted hereby or thereby;
(d) the state of facts shown on the survey of the
Property by Xxxxxx Xxxxxxxx & Associates, dated July 24, 1996;
(e) rights of Tenants under any Leases existing
on the date hereof or entered into in accordance with the provisions of this
Mortgage, and any memoranda of any of them;
(f) additional Permitted Exceptions allowed by
Section 2.2(c) of this Mortgage; and
(g) the title exceptions set forth in Schedule B
to the title policy insuring the lien of this Mortgage, provided that same are
not violated by the Improvements, the current use of the Property or this
Mortgage or any other Loan Document.
B-1
74
EXHIBIT C
PROMISSORY NOTE
NOTE
U.S.$12,000,000.00 Sunrise, Florida
July 30, 1996
FOR VALUE RECEIVED, SAWGRASS XXXXX PHASE II LIMITED
PARTNERSHIP, a Delaware limited partnership (the "Maker"), having its principal
place of business c/o The Xxxxx Corporation, 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxx 00000, hereby promises to pay to the order of CS FIRST
BOSTON MORTGAGE CAPITAL CORPORATION, a Delaware corporation (together with its
successors and assigns, the "Holder"), the principal sum of TWELVE MILLION
($12,000,000.00) UNITED STATES DOLLARS, at the offices of the Holder, 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000-0000 (or at such other place as the Holder may
from time to time specify to the Maker in writing), in lawful money of the
United States, in immediately available funds not later than 11:00 a.m. (New
York City time) on July 31, 1998 (the "Maturity Date") (subject to extension
pursuant to the terms hereof) or such sooner date as required herein; and to
pay at such place, in like money, interest on any and all principal amounts
outstanding hereunder (the "Principal Balance") from the date hereof until paid
at the Interest Rate (hereinafter defined), except as otherwise herein
provided, in accordance with the terms set forth herein:
ARTICLE I
PAYMENT OF PRINCIPAL AND INTEREST
SECTION 1.01. Certain Defined Terms. As used in this Note,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Available Cash Flow" means, with respect to any period, all
Revenues received during such period less all Operating Expenses incurred
during such period.
"Base LIBO Rate" shall mean, with respect to an Interest
Period, the rate of interest per annum (rounded to the next highest
one-hundredths of one percent) at which U.S. dollar deposits are offered to the
Holder by prime banks in the London interbank Eurodollar market for amounts in
immediately available funds approximately equal to the Principal Balance with
maturities equal to such Interest Period, at approximately 11:00 a.m. (New York
City time) on the day that is two Business Days prior to the first day of such
Interest Period.
C-1
75
"Breakage Costs" shall have the meaning set forth in Section
1.08 hereof.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and dealings are carried on in
the London interbank market.
"Changes in Law" shall mean any law, regulation or requirement
which takes effect after the date of this Note and which applies to and is
binding upon the Holder, any change in any existing law, regulation or
requirement which takes effect after the date of this Note and which applies to
and is binding upon the Holder, any change announced by judicial or
administrative authority and its interpretation of any law, regulation or
requirement which takes effect after the date of this Note and which applies to
and is binding upon the Holder, or any requirement or guideline imposed or made
after the date of this Note which applies to and is binding upon the Holder by
any central bank or fiscal, monetary or a similar authority.
"Debt Service Coverage Ratio" means the ratio of (a) the
Available Cash Flow for the immediately preceding twelve (12) months divided by
(b) the aggregate sum of interest payments that were due and payable to the
Holder pursuant to this Note (whether or not actually paid) in the immediately
preceding twelve (12) months.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Event of Default" shall have the meaning ascribed thereto in
Section 2.01.
"Extended Maturity Date" shall mean the first anniversary of
the Maturity Date.
"Interest Period" means the period commencing on the date
hereof or the day after the last day of the preceding Interest Period, as the
case may be, and ending on a day which is thirty (30) days thereafter;
provided, however, that:
(i) whenever the last day of the Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business Day;
provided, however, that if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the last day of
such Interest Period shall occur on the next preceding Business Day; and
(ii) whenever the first day of any Interest Period occurs
on a day of a calendar month for which there is no numerically corresponding
day in the succeeding calendar month in
C-2
76
which such Interest Period shall end, such Interest Period shall end on the
last Business Day of such succeeding calendar month.
"Interest Rate" shall mean the LIBO Rate.
"LIBO Rate" shall mean, with respect to an Interest Period, a
rate per annum which shall be the Base LIBO Rate applicable to such Interest
Period plus 2.35%.
"Loan" shall mean the loan from the Holder to the Maker, the
obligation to repay such loan being evidenced by this Note.
"Loan Documents" shall mean collectively (i) this Note, (ii) a
Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing
(the "Mortgage") of even date herewith from the Maker to the Holder, securing
the Note and covering the property known as Sawgrass Xxxxx Phase II and located
in Broward County, Florida (the "Property") as more particularly described
therein, (iii) an Assignment of Leases and Rents of even date herewith from the
Maker to the Holder and any and all other documents executed and delivered by
the Maker in connection with the Loan.
"Note" shall mean this Note.
"Officer's Certificate" shall mean a certificate delivered to
the Holder and signed by an officer of The Xxxxx Corporation or its successor,
which certificate shall be subject to the provisions of Section 3.01 hereof.
"Operating Expenses" shall mean any and all (a) actual cash
operating expenses relating to the operation of the Property, (b) the cost of
ordinary maintenance and repairs of the Property and (c) real estate taxes and
assessments relating to the Property. Operating Expenses shall not include (i)
any interest and principal payments made to the Holder and any other party and
(ii) amounts disbursed for capital improvements to the Property.
"Prime Rate" shall mean 175 basis points in excess of the rate
of interest per annum as established by The Chase Manhattan Bank, N.A. or its
successor (the "Reference Bank") in New York, New York from time to time as its
prime or base lending rate, and shall be effective on the day the Reference
Bank establishes such change, which rate, the Maker acknowledges, may or may
not be the Reference Bank's lowest rate. If the Reference Bank shall abolish
or abandon the practice of establishing its prime or base lending rate or if
such rate shall not be ascertainable, the Holder shall designate by notice to
the Maker the floating commercial loan interest rate of Citibank, N.A. or its
successor established from time to time as its prime or base lending rate, to
be the Prime Rate hereunder.
C-3
77
"Revenues" shall mean any and all revenues and receipts from
the Property, including without limitation, all rents, additional rents and all
other amounts received under leases of space at the Property and proceeds of
business interruption or rent insurance, but excluding any security deposits
(unless forfeited to the Maker), prepayments of rent for more than one month in
advance, amounts received from tenants and others in order to induce the Maker
to accept a surrender of a lease or occupancy agreement, condemnation awards,
casualty insurance proceeds and the proceeds of the sale of any portion of the
Property.
SECTION 1.02. Interest. (a) The Maker shall pay interest
on the Principal Balance hereunder at the Interest Rate. Such interest shall
accrue during the Interest Period to which such LIBO Rate applies, from and
including the first day of such Interest Period to and including the last day
of such Interest Period. All accrued and unpaid interest under this Section
1.02 shall be payable monthly, in arrears, on the first day of the succeeding
calendar month; provided, however, that upon the occurrence or during the
continuance of an Event of Default, the Maker shall pay interest on the
Principal Balance, on demand, at a rate per annum equal at all times to four
(4) percentage points per annum above the rate of interest otherwise payable on
the Principal Balance (but in no event less than twelve percent (12%) per
annum)(such rate is hereinafter referred to as the "Default Rate").
(b) If at any time the Holder shall reasonably
determine (which determination shall be conclusive and binding upon the Maker)
that (i) U.S. dollar deposits in an amount equal to the Principal Balance are
not generally available at such time in the London interbank Eurodollar market,
(ii) reasonable means do not exist for ascertaining a LIBO Rate, (iii) the LIBO
Rate on the Principal Balance would be in excess of the maximum interest rate
which the Maker may lawfully pay or (iv) the Holder may not apply a LIBO Rate
to the Principal Balance, or fund any portion of the Principal Balance bearing
interest at a LIBO Rate in the London interbank Eurodollar market, in
accordance with applicable laws, regulations and legal requirements, then the
Holder shall notify the Maker, and the Principal Balance shall bear interest at
the Prime Rate.
(c) If due to any Change of Law the Holder may
not maintain any LIBO Rate then in effect under this Note in accordance with
applicable laws, regulations and requirements, such LIBO Rate shall
automatically be converted to the Prime Rate if and for so long as such law,
regulation or requirement is applicable, in which event the Maker shall, at its
option, either commence and continue to pay the Prime Rate or prepay the
Principal Balance including all interest accrued and unpaid thereon, all
Breakage Costs (if any) relating to or arising from such prepayment, in each
case on the earlier of (i) the last day of the Interest Period with respect
thereto or (ii) the date on
C-4
78
which it becomes unlawful for the Holder to charge such LIBO Rate (provided
that the Maker shall have received not less than ten (10) days' notice of the
same). The Maker agrees to pay to the Holder, within ten (10) days after
demand by the Holder, all costs and expenses incurred by the Holder as a result
of such Change of Law directly attributable to this Note. This statement as to
the amount of such Breakage Cost, or additional interest, costs and expenses
furnished to the Maker by the Holder shall be conclusive and binding upon the
Maker, absent manifest error.
(d) The Maker agrees that each determination of
the Prime Rate shall be made by the Holder and shall be conclusive and binding
upon the Maker. The Maker further acknowledges that the Prime Rate merely
serves as a basis upon which effective rates of interest are calculated for
loans making reference thereto and that such Prime Rate may not be the lowest
or best rate at which interest is calculated or credit is extended.
SECTION 1.03. Prepayments.
(a) Permitted Prepayments. The Maker may, upon
at least thirty (30) days' notice to the Holder, stating the proposed date of
the prepayment, which date shall be only upon the last day of the then current
Interest Period (the "Noticed Prepayment Date") and the portion of the
Principal Balance that will be prepaid (the "Prepayment Amount"), and, if such
notice is given, the Maker shall on the Noticed Prepayment Date, prepay the
Prepayment Amount, in whole and not in part, together with accrued interest to
the date of such prepayment.
(b) Other Prepayments. In the event of any
prepayment in any matter other than that described in subsection (a) of this
Section 1.03, including, without limitation, a prepayment arising from an
acceleration of the Loan upon the Maker's default, the Maker shall pay to the
Holder (i) accrued interest to the date of such prepayment on the portion of
the Principal Balance being prepaid and (ii) any and all costs actually
incurred by the Holder in connection with such prepayment, including, but not
limited to, the Breakage Costs (if applicable).
SECTION 1.04. Additional Interest. In the event that the
Holder shall be required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities in amounts in excess
of those required to be maintained as of the date hereof, from and after the
effective date of such increase, the Maker shall pay additional interest on the
Principal Balance, from the first day of the then current Interest Period until
the Principal Balance is paid in full, at an interest rate equal at all times
through the remainder obtained by subtracting (i) the LIBO Rate for the
Interest Period from (ii) the rate obtained by dividing such LIBO
C-5
79
Rate by a percentage equal to 100% minus such percentage increase in the
reserve requirements for such Interest Period, payable on each date on which
interest is payable hereunder.
SECTION 1.05. Increased Cost. If, due to a Change in Law,
there shall be any increase in the cost to the Holder of making, funding or
maintaining the Loan, then the Maker shall from time to time, upon demand by
the Holder, pay to the Holder additional amounts sufficient to compensate the
Holder for such increased cost. A certificate as to the amount of such
increase in cost, submitted to the Maker by the Holder, shall be conclusive and
binding for all purposes.
SECTION 1.06. Computations. All computations of interest
shall be made by the Holder on the basis of a year of 360 days, in each case
for the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest is paid. Each
determination by the Holder of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
SECTION 1.07. Taxes. (a) All payments made hereunder shall
be free and clear of and without deduction for any and all taxes, levies,
deductions, charges or withholdings, and all liabilities with respect thereto
(excluding franchise and income tax as imposed on, or measured by the income of
the Holder) imposed by the United States or the jurisdiction under the laws of
which it is organized or its principal place of business or any political
subdivision thereof (all such non-excluded taxes, levies, deductions, charges,
withholdings, and liabilities being hereinafter referred to as "Taxes"). If
the Maker shall be required by future law or change in any existing law to
deduct any Taxes from or in respect of any sum payable hereunder (i) the sum
payable shall be increased so that after making all the required deductions
(including the deductions applicable to additional sums payable under this
Section 1.07) the Holder receives an amount equal to the sum it would have
received had no such deduction been made, (ii) the Maker shall make such a
deduction and (iii) the Maker shall pay the full amount deducted to the
relevant taxation authority or authority in accordance with applicable law.
(b) In addition, the Maker agrees to pay any
stamp or documentary taxes, intangible taxes and any other property taxes,
charges or similar levies that arise from any payment made hereunder or from
the execution, delivery or registration of or otherwise with respect to, this
Note (hereinafter referred to as "Other Taxes").
(c) The Maker will indemnify the Holder for the
full amount of Taxes or Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 1.07) incurred by the Holder and in any liability (including penalties,
interests and
C-6
80
expenses) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within thirty days from the date the Holder makes
written demand therefor. Notwithstanding the foregoing, the Maker may forbear
from making such payment during the pendency of a contest brought in good faith
in appropriate proceedings by Maker in opposition to such Taxes or Other Taxes,
provided that security for such payment, together with interest, fines and
penalties thereon, and otherwise in amount and form satisfactory to the Holder,
is delivered to the Holder within the thirty (30) day demand period set forth
in the preceding sentence. Upon the final determination of any such contest,
the Maker shall pay any such Taxes or Other Taxes, together with interest,
fines and penalties thereon; in default of which the Holder may make any such
payment out of the security deposited. Any security remaining after such
payments, if any, shall be returned to the Maker.
(d) Within thirty days after the date of any
payment of Taxes by the Maker, the Maker shall furnish to the Holder, at its
address referred to in Section 4.02, the original or certified copy of the
receipt evidencing payment thereof. Upon receipt by the Maker from the Holder
of an inquiry with respect to whether Taxes are payable with respect of any
payment hereunder, the Maker shall, at the reasonable request of the Holder,
furnish the Holder, at such address, a certificate from each appropriate taxing
authority, or an opinion of counsel acceptable to the Holder, in either case
stating that such payment is exempt from or not subject to Taxes.
(e) Without prejudice to the survival of any
other agreement of the Maker hereunder, the agreements and obligations of the
Maker contained in this Section 1.07 shall survive the payment in full of
principal and interest hereunder.
SECTION 1.08. Breakage Costs. If any payment of principal
hereunder is made by the Maker to the Holder other than on the last day of an
Interest Period, as a result of a payment pursuant to Section 1.03(b),
acceleration of the maturity of this Note pursuant to Section 2.01 or for any
other reason, the Maker shall, upon demand by the Holder, pay to the Holder any
amounts required by the Holder for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment by reason of
liquidation or redeployment of deposits or other funds acquired by the Holder
to fund or maintain such principal amount (collectively, "Breakage Costs").
SECTION 1.09. Maturity Date Extensions. Provided that an
Event of Default has not occurred, the Maker may extend the Maturity Date to
the Extended Maturity Date upon not less than ninety (90) days' advance notice
to the Holder (the "Extension Notice"), provided that, as of the last day of
the calendar month preceding the giving of the Extension Notice (which calendar
month for purposes of this determination may be no earlier than
C-7
81
February 1998), the Debt Service Coverage Ratio is at least equal to 1.25;
provided further, however, that, on or before the Maturity Date, the Maker
shall pay to the Holder an extension fee equal to one-half of one percent
(0.5%) of the then Principal Balance. The Extension Notice shall be
accompanied by financial statements of the Maker for the twelve-month period
ending on the last day of the month preceding the giving of the Extension
Notice and an Officer's Certificate certifying that such financial statements
are true and correct in all material respects and the amount of the Debt
Service Coverage Ratio based on such financial statements. If the Holder shall
reasonably believe that such financial statements may not have been prepared in
accordance with generally accepted accounting principles, consistently applied,
then the Holder may also require the delivery of the Maker's financial
statements certified by a public accounting firm approved by the Holder.
ARTICLE II
EVENTS OF DEFAULT; LATE CHARGE
SECTION 2.01. Event of Default. Each of the following shall
constitute an "Event of Default":
(a) Failure to make payment of any monthly
interest payment hereunder within five (5) days after the date
due, the failure to make any payment of any late charge, late
interest payment or any other charges hereunder or pursuant to
any other Loan Document within five (5) days after the date
due, or the failure to make payment of the Principal Balance
when the same shall have become due, whether by maturity or
acceleration or otherwise (any of which shall hereinafter be
referred to as a "Monetary Default").
(b) Failure by the Maker in the due observance or
performance of any of the terms or provisions contained in
this Note or in any other Loan Document (other than a Monetary
Default) within the grace period (if any), specified herein
with respect thereto, if the Maker shall not have cured the
same (if the same is reasonably susceptible of cure within
such grace period) or, if the same is not reasonably
susceptible of cure within such period, if the Maker shall not
have within such period promptly commenced and thereafter
diligently continued without interruption to cure the same
within such period of time (not to exceed ninety (90) days) as
the same, with the continuous exercise of such diligence, is
reasonably susceptible of cure.
(c) If no applicable grace period is specified
with respect to any term or provision contained in this Note
or any other Loan Document, failure by the Maker
C-8
82
in the due observance or performance of any of the terms or
provisions contained in this Note or in any other Loan
Document (other than a Monetary Default) if, within thirty
(30) days after notice by the Holder, the Maker shall not have
cured the same (if the same is reasonably susceptible of cure
within such thirty (30) days) or, if the same is not
reasonably susceptible of cure within such thirty (30) days,
if the Maker shall not have within such thirty (30) days
promptly commenced and thereafter diligently continued without
interruption to cure the same within such period of time (not
to exceed ninety (90) days) as the same, with the continuous
exercise of such diligence, is reasonably susceptible of cure.
(d) Failure by the Maker in the due observance or
performance of any of the terms or provisions contained in
this Note or in any other Loan Document, if such term or
provision is not susceptible of cure.
(e) An Event of Default pursuant to that certain
Master Lease, dated as of July 30, 1996, between the Maker, as
lessor, and Sunrise Xxxxx (MLP) Limited Partnership, a
Delaware limited partnership ("Master Lessee"), as lessee,
demising a portion of the Property or an Event of Default
pursuant to any guaranty of Master Lessee's obligations
thereunder (a "Master Lease Guaranty"; a guarantor thereunder
being referred to herein as a "Master Lease Guarantor").
(f) An Event of Default pursuant to any "Security
Document" as such term is defined in that certain Amended and
Restated Mortgage, Security Agreement, Assignment of Leases
and Rents and Fixture Filing, dated December 1, 1993, between
Sunrise Xxxxx Limited Partnership (the "Phase I Owner") and
Sawgrass Finance L.L.C. (together with its successors and
assigns, the "Phase I Mortgagee") which has not been cured
within any applicable cure or grace period and as a result of
which the Phase I Mortgagee shall accelerate the maturity of
the indebtedness secured thereby or initiate foreclosure or
receivership proceedings; provided, however that this Event of
Default shall be deemed cured if the Phase I Mortgagee
rescinds the acceleration or elects not to pursue the
foreclosure or receivership proceedings within 45 days after
the initiation of foreclosure proceedings by the Holder under
the Mortgage.
(g) If a court having jurisdiction shall enter a
decree or order for relief in respect of the Maker, any
general partner of the Maker, the Phase I Owner, the Master
Lessee or the Master Lease Guarantor (collectively, the
"Acceleration Parties") in an
C-9
83
involuntary case under any applicable bankruptcy, insolvency
or other similar law or code now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of any
Acceleration Party or for any substantial part of its
property, or ordering the winding-up or liquidation of its
affairs and such decree or order shall remain unstayed and in
effect for a period of 90 consecutive days.
(h) If any Acceleration Party shall commence a
voluntary case under any applicable bankruptcy, insolvency or
other similar law or code now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary
case under any such law or code, or shall consent to the
appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar
official) of any Acceleration Party or for any substantial
part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate or
partnership action in furtherance of any of the foregoing.
(i) If any representation or warranty made by the
Maker in the Note, in any Loan Document, or in any other
instrument which pertains to this Note proves to be false or
misleading, now or hereafter in any material respect.
In the event of an Event of Default, the Holder may, by notice to the Maker,
declare this Note, all interest thereon and all other amounts payable under
this Note to be forthwith due and payable whereupon this Note, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, protest or further notice of any kind, all of which are
hereby expressly waived by the Maker.
SECTION 2.02. Late Charge. In the event that any monthly
payment of interest provided for herein shall not be paid within five (5) days
after the same shall be due, a late charge of four cents ($0.04) for each
dollar so overdue shall become immediately due to the Holder as liquidated
damages for failure to make prompt payment and the same shall be part of the
indebtedness evidenced hereby and secured by the lien of the Mortgage. Late
charges shall be payable with the next monthly payment due. Application of a
late charge shall not be construed as a consent by the Holder to any extension
of time.
C-10
84
ARTICLE III
RECOURSE
SECTION 3.01. Non-Recourse. Anything contained herein or in
any other Loan Documents or any Officer's Certificate to the contrary
notwithstanding, the Holder agrees that no recourse shall be had against the
Maker or any constituent partner in the Maker for the payment of interest and
principal or any other sums due under this Note or for the performance of the
Maker's other obligations under the Loan Documents, except to the property and
assets of the Maker, including without limitation the property secured by the
Mortgage and any other collateral given as security for the payment of this
Note, and in the event that the Holder pursues any remedies available to it
hereunder or under the Mortgage or any other Loan Document, the Holder shall
not have recourse to the Maker or any other person for any deficiencies, losses
or claims for damages resulting therefrom, and none of the property or assets
of the Maker or any other persons (other than the Property and the proceeds
thereof) shall be subject to levy, execution, garnishment, attachment,
foreclosure or other enforcement procedure for the satisfaction of the remedies
of the Holder hereunder; provided, however, that the foregoing limitations
shall not be construed so as to exonerate or exculpate the Maker or any other
person who would otherwise be liable (collectively, the "Parties") from the
payment of any liability, loss or damage suffered by the Holder by reason of
(i) any misapplication by the Maker or the Parties in violation of any of the
Loan Documents of any funds held by or on behalf of any of them, including
without limitation insurance proceeds, condemnation awards, security deposits
and other deposits and reserves of any kind or nature, (ii) any modification of
any existing lease or occupancy agreement in contravention of any term,
covenant or condition of any Loan Document, (iii) willful commission of waste
against the Property by the Maker or any of the Parties, (iv) the intentional
or will-full breach of any representations or warranties by the Maker or any of
the Parties in any of the Loan Documents or fraud by the Maker or any of the
Parties; (v) the seizure or forfeiture of the Property, or any portion thereof
or any interest therein, resulting from criminal wrongdoing or other unlawful
actions of the Maker or any of the Parties; (vi) the failure of the Maker to
pay, in accordance with the provisions of the Mortgage, real property taxes and
assessments, insurance premiums, charges for labor or materials or other
charges that would if remain unpaid create a lien on the Property or any
portion thereof if and to the extent that otherwise sufficient Revenues were
applied for purposes other than the payment of Operating Expenses and
distributed by or to the Party against whom liability is sought after such
taxes, premiums or charges were incurred, (vii) the breach by the Maker of any
covenant in any of the Loan Documents pertaining to hazardous materials or
compliance with environmental laws, regulations or other legal requirements,
(viii) the failure to pay any Operating Expenses after the
C-11
85
occurrence of an Event of Default if and to the extent that otherwise
sufficient Revenues were distributed by or to the Party against whom liability
is sought after such Operating Expenses were incurred or (ix) the further
encumbrancing of the Property; and provided further, that the foregoing
limitations on the Maker's and Parties' personal liability shall not impair the
validity of the indebtedness evidenced hereby, the lien of the Mortgage, or the
validity of any other Loan Document, or the right of the Holder as secured
party to foreclose and/or enforce the lien of the Mortgage after default by the
Maker, or the right of the Holder to enforce any of the provisions of the Loan
Documents against the Maker. In the event that any person or persons or entity
or entities, if any, shall have guaranteed all or part of the loan secured
hereby, or any of the obligations of the Maker in connection therewith, by
separate written guaranty, none of the foregoing limitations on the Maker's
personal liability shall modify, diminish or discharge the personal liability
of any such guarantor as set forth in any such written guaranty. It is the
intention of the Maker and the Holder that this Section shall govern every
other provision of this Note and all the other Loan Documents and that the
absence of explicit reference to this Section in any provision hereof shall not
be construed to derogate the application of this Section to such provision.
Subject to the foregoing limitations on the personal liability of the Parties,
nothing herein shall be deemed to be a waiver of any right which the Holder may
have under Section 506(a), 506(b), 1111(b) or any other provision of the
Bankruptcy Reform Act of 1978 or any successor thereto or similar provisions
under applicable state law to file a claim for the full amount of the debt
owing to the Holder by the Maker or to require that all of the Property shall
continue to secure all of the indebtedness owing to the Holder in accordance
with this Note and the Mortgage.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Amendment, Etc. No amendment or waiver of any
provision of this Note, nor consent to any departure by the Maker herefrom,
shall in any event be effective unless the same shall be in writing and signed
by the party against whom such amendment, waiver and/or consent is asserted and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. If any term or provision of this
Note shall be held to be invalid, illegal or unenforceable in any respect or
under any circumstances, the remainder of this Note and the application hereof
to other circumstances shall not be affected thereby and shall be enforced to
the fullest extent permitted by law.
C-12
86
SECTION 4.02. Notices. Any notice, demand, consent, waiver,
approval, direction, agreement or other communication (any "Notice") required
or permitted hereunder or under any other Loan Document shall be in writing and
sent via overnight courier, delivered by hand or mailed by certified mail,
return receipt requested, addressed as follows to the person entitled to
receive the same:
(1) If to the Maker, two (2) copies to:
Sawgrass Xxxxx Phase II Limited Partnership
c/o The Xxxxx Corporation
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: General Counsel
Attention: Chief Financial Officer
Tel.: (000) 000-0000
Fax.: (000) 000-0000
With a copy to:
Xxxxxxx & Xxxxx
000 Xxxxx Xx Xxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Tel.: (000) 000-0000
Fax.: (000) 000-0000
(2) If to the Holder:
CS First Boston Mortgage Capital
Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Tel.: (000) 000-0000
Fax.: (000) 000-0000
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Tel.: (000) 000-0000
Fax.: (000) 000-0000
Any Notice shall be deemed to have been validly given
hereunder when delivered if sent via courier service, delivered by hand or upon
the third Business Day after deposited with the U.S. Postal Service. Any
person shall have the right to specify,
C-13
87
from time to time, at its address or addresses for purposes of this Note, any
other address or addresses upon giving ten (10) days' notice thereof to each
other person then entitled to receive notices or other instruments hereunder.
SECTION 4.03. No Waiver; Remedies. No failure on the part of
the Holder to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. To the extent permitted by applicable law, the remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
SECTION 4.04. Costs and Expenses. The Maker agrees to pay on
demand all costs and expenses in connection with the preparation, execution and
delivery of this Note, the Loan Documents and any other instruments and
documents to be delivered in connection herewith, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Holder with respect thereto and with respect to advising the Holder as to its
rights and responsibilities under this Note prior to the execution of this Note
or following an event which with the giving of notice or passage of time would
constitute an Event of Default hereunder. The Maker further agrees to pay on
demand all losses, costs and expenses, if any (including reasonable counsel
fees and expenses), in connection with the enforcement of this Note, the Loan
Documents and any other instruments and documents delivered in connection
herewith, including, without limitation, losses, costs and expenses sustained
as a result of a default by the Maker in the performance of its obligations
contained in this Note, the Loan Documents or any other instrument or document
delivered in connection herewith.
SECTION 4.05. Right of Set-Off. Upon the occurrence and
during the continuance of any Event of Default the Holder is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by the Holder to or for the credit or for the account of the Maker now or
hereafter existing under this Note, irrespective of whether or not the Holder
shall have made any demand under this Note and although such obligations may be
unmatured. The Holder agrees promptly to notify the Maker after any such
set-off and application, provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of the
Holder under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Holder may
have.
C-14
88
SECTION 4.06. Binding Effect; Governing Law. This Note shall
be binding upon and inure to the benefit of the Maker and the Holder and their
respective successors and assigns. The Holder may assign to any party all or
any part of, or any interest in, the Holder's rights and benefits hereunder or
participation interests therein and to the extent of such assignment or
participation such assignee or participant shall have the same rights and
benefits against the Maker as it would have had if it were the Holder
hereunder. This Note shall be governed by, and construed in accordance with,
the internal laws of the State of Florida, without regard to principles of
conflict of law.
SECTION 4.07. Usury Savings Clause. It is the intention of
the Maker and the Holder to comply with all applicable usury laws; accordingly,
it is agreed that no provisions in this Note or any of the other Loan Documents
shall require the payment or permit the collection of interest in excess of the
maximum interest rate per annum permitted by applicable law to be charged to
the Maker for the use, forbearance or detention of money (the "Maximum Rate").
If any interest in excess of the Maximum Rate is provided for, or shall be
adjudicated to be so provided for then in such event, (i) the provisions of
this Section shall govern, (ii) neither the Maker, its endorser or guarantors,
nor their respective heirs, legal representatives, successors or assigns nor
any other person or entity liable for the payment of this Note, shall be
obligated to pay interest to the extent that it is in excess of the Maximum
Rate, (iii) any excess interest which may have been collected shall, at the
Holder's option, be either applied as a credit against the Principal Balance or
refunded to the Maker and (iv) the effective rate of interest automatically
shall be reduced to the Maximum Rate; provided, however, if from time to time
thereafter the interest rate otherwise then in effect shall be less than the
Maximum Rate then in force, the interest rate then in effect shall be
automatically increased to the Maximum Rate and remain at the Maximum Rate
until the total amount of (A) any excess interest theretofore credited or
repaid to the Maker (pursuant to this foregoing provisions of this Section) and
(B) any interest which would have been earned if the interest rate had not been
reduced to the Maximum Rate (as provided in this Section) has been fully repaid
or paid to the Holder.
SECTION 4.08. Definitions. As used herein, the terms "Maker"
and "Holder" shall be deemed to include their respective successors and
assigns, voluntary by operation of the parties, or involuntary by operation of
law.
SECTION 4.09. Waivers. Presentment for payment, demand,
protest, notice of demand, notice of dishonor, protest and non-payment are
hereby waived by the Maker, except as herein specifically provided. Failure to
accelerate the debt evidenced hereby by reason of default in the payment of an
installment, or the acceptance of a past due installment, shall not be
construed
C-15
89
as a novation of this Note or as a waiver of the right of the Holder to
thereafter insist upon strict compliance with the terms of this Note without
previous notice of such intention being given to the Maker. THE MAKER AND THE
HOLDER (BY ITS ACCEPTANCE HEREOF) EACH HEREBY AGREES NOT TO ELECT A TRIAL BY
JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY
JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH
REGARD TO THIS NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR
OTHER ACTION ARISING IN CONNECTION THEREWITH.
SECTION 4.10. Reference to Loan Documents. This Note is
given for the Loan and is secured by the Mortgage and the other Loan Documents.
The Mortgage constitutes a lien on the Property. Reference is made to such
documents for a description of the nature and extent of the security afforded
thereby, the rights of the Holder hereof in respect to such security, and the
terms and conditions upon which this Note is secured. The Holder of this Note
is entitled to the benefits of such documents and may enforce the agreements
contained therein and exercise the remedies provided therein or otherwise in
respect thereof, all in accordance with the terms thereof.
IN WITNESS WHEREOF, the Maker has executed this Note, on the
date above first written.
SAWGRASS XXXXX PHASE II LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Sawgrass Xxxxx Phase II, L.L.C., a
Delaware limited liability
company, its general partner
By: The Xxxxx Limited Partnership, a
Delaware limited partnership, its
Executive Manager
By: The Xxxxx Corporation, a
Delaware corporation, its
General Partner
By:
-----------------------------
Name:
Title:
X-00
00
Xxxxx xx Xxx Xxxx )
) ss.:
County of New York )
The foregoing instrument was acknowledged before me this 30th day of July, 1996
by ___________________, as _____________ of The Xxxxx Corporation, a Delaware
corporation, as general partner of the Xxxxx Limited Partnership, a Delaware
limited partnership, as Executive Manager of Sawgrass Xxxxx Phase II, L.L.C., a
Delaware limited liability company, as general partner of Sawgrass Xxxxx Phase
II Limited Partnership, a Delaware limited partnership.
------------------------
Notary Public
C-17
91
EXHIBIT D
INSURANCE REQUIREMENTS
(a) Insurance with respect to the Improvements and the Equipment
against any peril included within the classification "All Risks of Physical
Loss" with extended coverage in amounts at all times sufficient to prevent the
Mortgagor from becoming co-insurer within the terms of the applicable policies,
but in any event such insurance shall be maintained in an amount equal to the
full insurable value of the Improvements and the Equipment, the term "full
insurable value" to mean the actual replacement cost of the Improvements and
the Equipment (without taking into account any depreciation, and exclusive of
excavations, landscaping and paving) determined annually by an insurer, a
recognized independent insurance broker or an appraiser selected and paid by
the Mortgagor (unless reasonably disapproved by the Mortgagee) and in no event
less than the coverage required pursuant to the REA;
(b) Comprehensive general liability insurance, including bodily
injury, death and property damage liability, and umbrella liability insurance
against any and all claims, including all legal liability to the extent
insurable imposed upon the Mortgagee and all court costs and attorneys' fees
and expenses, arising out of or connected with the possession, use, leasing,
operation, maintenance or condition of the Property in such amounts as are
generally available at reasonable premiums and are generally required by
institutional lenders for properties comparable to the Property and in no event
less than the coverage required pursuant to the REA;
(c) Statutory workers' compensation insurance (to the extent the
risks to be covered thereby are not already covered by other policies of
insurance maintained by the Mortgagor), with respect to any work on or about
the Property, which insurance may be provided through a state approved and
regulated employer's self insurance fund;
(d) Business interruption and/or loss of "rental value" insurance
in an amount sufficient to avoid any co-insurance penalty and to provide
Proceeds for a period not less than two years of loss, the term "rental value"
to mean the sum of (A) the total rentals payable under the Leases and (B) the
total amount of all other amounts to be received by the Mortgagor or third
parties which are the legal obligation of the Tenants, reduced to the extent
such amounts would not be received because of expenses not incurred during a
period of non-occupancy of that portion of the Property then not being
occupied, provided, that such insurance may be provided through umbrella
policies insuring other properties;
(e) 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 Property and insurance against loss of
occupancy or use arising from any such
D-1
92
breakdown in such amounts as are generally available at reasonable premiums and
are generally required by institutional lenders for properties comparable to
the Property;
(f) If the Property is located within a federally designated flood
hazard zone, flood insurance if generally available at reasonable premiums and
in such amount as generally required by institutional lenders for similar
properties as determined by the Mortgagee in its reasonable discretion
(provided, however, that if the Mortgagor reasonably believes that it is no
longer obligated to maintain flood insurance pursuant to this provision, the
Mortgagor shall notify the Mortgagee of such circumstance and the Mortgagee
shall have the opportunity to contest by appropriate legal or mutually
agreeable arbitration proceedings whether or not the Mortgagor's obligation
remains in effect in light of the criteria set forth in this provision); and
(g) Such other insurance with respect to the Property against loss
or damage of the kinds from time to time customarily insured against and in
such amounts as are generally available at reasonable premiums and are
generally required by institutional lenders for properties comparable to the
Property, all as determined by the Mortgagee in its reasonable discretion.
All insurance required coverage shall be provided by one or
more primary insurers having an Xxxxxx X. Best Company, Inc. rating of "A" or
better and financial size category of not less than VII, except to the extent
that insurance in force on the date of this Mortgage does not satisfy such
criteria or if otherwise approved by the Mortgagee, and except for workers'
compensation insurance provided through a state approved and regulated
employer's self insurance fund. Insurance may be provided under one or more
umbrella policies covering other properties. Any insurance in force on the
date of this Mortgage which is accepted or approved by Mortgagee and which is
provided by a group or syndicate of insurers shall be satisfactory so long as a
sufficient number of members of the syndicate providing the coverage satisfy
the foregoing criteria for claims-paying-ability even if one or more of the
insurers comprising the group or syndicate no longer participates in the group
or syndicate. All insurers providing insurance required by this Mortgage shall
be authorized to issue insurance in the State.
D-2
93
EXHIBIT E
ASSUMPTION
THE UNDERSIGNED, _______________________, has acquired a
partnership or other interest in the "Mortgagor" under that certain "MORTGAGE,
SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING" (the
"Mortgage"), dated as of July 30, 1996, executed by Sawgrass Xxxxx Phase II
Limited Partnership, a Delaware limited partnership, to CS First Boston
Mortgage Capital Corp., a Delaware corporation, as mortgagee, said Mortgage
constituting a first lien encumbrance on certain real and personal property
forming a part of the property commonly known as Sawgrass Xxxxx in Sunrise,
Broward County, Florida.
In accordance with the requirements of Section 18.2 of the
Mortgage, the undersigned hereby assumes all of the duties and obligations and
covenants of the transferor of the undersigned's interest in the Mortgagor
under or pursuant to the Mortgage, subject, however, to the provisions of
Article 36 of the Mortgage.
IN WITNESS WHEREOF, the undersigned has executed this
Assumption as of the ____ day of ___________, ____.
----------------------------
By:
-------------------------
Name:
Title:
[ADD APPROPRIATE FORM OF ACKNOWLEDGEMENT]
X-0
00
XXXXXXX X
XXXXXXXXXXXXX PROVISIONS FOR TENANT LEASES
Each Lease shall contain a provision whereby the Tenant agrees
that its Lease shall be subordinate to the Mortgage and that the Tenant shall
attorn under the Lease to any Person obtaining title to the Property, which
subordination and attornment in the case of Critical Leases may be conditioned
on delivery of a reasonable and customary nondisturbance agreement.
F-1
