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EXHIBIT 10.51
MORTGAGE
Ramco Madison Center LLC
(Mortgagor/Borrower)
To
LASALLE BANK NATIONAL ASSOCIATION
(Mortgagee/Lender)
Dated: As of April 23, 2001
Property Location:
Madison Center
00000 Xxxx X Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Tax Parcel Numbers: 00-00-000-000 and 00-00-000-000
Loan No.: 00-00-000
DRAFTED BY, RECORD AND RETURN TO:
Xxxxxxx Zelenock, P.C.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn.: Xxxxxxx X. Xxxxx, Esq.
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DEFINED TERMS
As used in this Mortgage, the following terms shall have the following
meanings assigned to them:
BORROWER Ramco Madison Center LLC, a limited liability company organized in
Michigan
BORROWER'S ADDRESS 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000
LENDER LASALLE BANK NATIONAL ASSOCIATION, a national banking association, and its
successors and assigns as holders of the Note
LENDER'S ADDRESS 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
NOTE That Promissory Note of even date herewith made by Borrower to the order
of Lender in the Principal Amount, together with all notes issued in
substitution or exchange therefor, as any of the foregoing may be amended,
modified or supplemented from time to time
PRINCIPAL AMOUNT $10,340,000
MATURITY DATE May 1, 2011
LAND The property described on Exhibit A to this Mortgage
PERSONAL PROPERTY The property described on Exhibit B to this Mortgage
REPLACEMENT RESERVE
MONTHLY PAYMENT $2,752.23/month - up to $49,540.05 (18 months) "Replacement Reserve Cap"
subject to the provisions of Paragraph 3(c)
TI AND LEASING RESERVE $10,484/month up to a $187,000 "TI and Leasing Reserve Cap" subject to the
MONTHLY PAYMENT provisions of Paragraph 3(d)
PERMITTED USE Retail (including service office uses such as banks, brokerage services,
insurance agencies and medical/professional offices)
PRINCIPALS Ramco-Xxxxxxxxxx Properties, L.P.
BEST'S RATING A General Policy Rating of A: VIII or better in Best's Key Rating Guide.
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This Mortgage ("MORTGAGE") is made as of April 23, 2001, by Borrower to
and for the benefit of Lender.
R E C I T A L S:
Borrower has executed and delivered to Lender the Note (which is
hereinafter referred to as the "Note"), providing for monthly installments of
principal and interest, with the balance thereof, if not sooner due or paid as
set forth in the Note, due and payable on the Maturity Date;
Lender wishes to secure (i) the prompt payment of the Note, together
with all interest thereon in accordance with the terms of the Note, as well as
the prompt payment of any additional indebtedness accruing to Lender on account
of any future payments, advances or expenditures made by Lender pursuant to the
Note or this Mortgage or any other agreement, document, or instrument securing
the payment of the indebtedness evidenced by the Note (the Note, this Mortgage,
and any other documents evidencing or securing the indebtedness evidenced by the
Note or executed in connection therewith, and any modification, renewal,
extension thereof, are hereinafter collectively referred to as the "LOAN
DOCUMENTS"), and (ii) the prompt performance of each and every covenant,
condition, and agreement now or hereafter arising contained in the Loan
Documents of Borrower or any "PRINCIPAL" (as defined in the Note). All payment
obligations of Borrower or any Principal are hereinafter sometimes collectively
referred to as the "INDEBTEDNESS" and all other obligations of Borrower or any
Principal are hereinafter sometimes collectively referred to as the
"OBLIGATIONS".
The schedule of Defined Terms attached hereto is incorporated into this
Mortgage by this reference.
NOW, THEREFORE, TO SECURE TO LENDER the repayment of the Indebtedness
and the performance of the Obligations, Borrower has mortgaged, given, granted,
bargained, sold, alienated, enfeoffed, conveyed, confirmed, warranted, pledged,
assigned, hypothecated and granted and by these presents does hereby irrevocably
mortgage, give, bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge,
assign, hypothecate and grant a security interest in and to Lender, with power
of sale, the following described property and all proceeds thereof (which
property is hereinafter sometimes collectively referred to as the "PROPERTY"):
1. The Land;
2. All improvements of every nature whatsoever now or hereafter
situated on the Land and owned by Borrower (the "IMPROVEMENTS"), and all
machinery, furnishings, equipment, fixtures, mechanical systems and other
personal property now or hereafter owned by Borrower and used in connection with
the operation of the Improvements;
3. All easements, rights-of-way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or pertaining to the Land
and the Improvements and the reversion and reversions, remainder and remainders,
and all land lying in the bed of any street, road or avenue, opened or proposed,
in front of or adjoining the Land, to the center line thereof and all the
estates, rights, titles, interests, dower and rights of dower, curtesy and
rights of curtesy, property, possession, claim and demand whatsoever, both at
law and in equity, of Borrower of, in and to the Land and the Improvements and
every part and parcel thereof, with the appurtenances thereto;
4. All agreements affecting the use, enjoyment or occupancy of the Land
and/or Improvements now or hereafter entered into (the "LEASES"), including any
and all guaranties of such Leases, and the immediate and continuing right to
collect all rents, income, receipts, royalties, profits, issues, service
reimbursements, fees, accounts receivables, revenues and prepayments of any of
the same from or related to the Land and/or Improvements from time to time
accruing under the Leases
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and/or the operation of the Land and/or Improvements (the "RENTS"), reserving to
Borrower, however, so long as no "EVENT OF DEFAULT" (hereinafter defined) has
occurred hereunder, a revocable license to receive and apply the Rents in
accordance with the terms and conditions of Paragraph 13 of this Mortgage;
5. The Personal Property;
6. All awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Land and the Improvements,
whether from the exercise of the right of eminent domain or condemnation
(including but not limited to any transfer made in lieu of or in anticipation of
the exercise of said rights), or for a change of grade, or for any other injury
to or decrease in the value of the Land and Improvements;
7. All proceeds of and any unearned premiums on any insurance policies
covering the Property, including, without limitation, the right to receive and
apply the proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Property;
8. All proceeds of the conversion, voluntary or involuntary, of any of
the foregoing including, without limitation, proceeds of insurance and
condemnation awards, into cash or liquidation claims; and
9. Any and all proceeds and products of any of the foregoing and any
and all other security and collateral of any nature whatsoever, now or hereafter
given for the repayment of the Indebtedness and the performance of Borrower's
obligations under the Loan Documents, including (without limitation) the
Replacement Reserve, the TI and Leasing Reserve, and all other escrows
established with Lender by Borrower.
TO HAVE AND TO HOLD the Property and all parts thereof, together with
the rents, issues, profits and proceeds thereof, unto Lender to its own proper
use, benefit, and advantage forever, subject, however, to the terms, covenants,
and conditions herein.
At no time shall the principal amount of the Indebtedness, not
including sums advanced in accordance herewith to protect the security of this
Mortgage, exceed TWO HUNDRED PERCENT (200%) of the original amount of the Note.
Borrower covenants and agrees with Lender as follows:
PART I
1. PAYMENT OF INDEBTEDNESS; PERFORMANCE OF OBLIGATIONS Borrower shall
promptly pay when due the Indebtedness and shall promptly perform all
Obligations.
2. TAXES AND OTHER OBLIGATIONS. Borrower shall pay, when due, and
before any interest, collection fees or penalties shall accrue, all taxes,
assessments, fines, impositions and other charges and obligations, including
charges and obligations for any present or future repairs or improvements made
on the Property, or for any other goods or services or utilities furnished to
the Property, which may become a lien on or charge against the Property prior to
this Mortgage, subject, however, to Borrower's right to contest to such lien or
charge upon the posting of security reasonably satisfactory to Lender so long as
such contest stays the enforcement or collection of such lien or charge. Should
Borrower fail to make such payments, Lender may, at its option and at the
expense of Borrower, pay the amounts due for the account of Borrower. Upon the
request of Lender, Borrower shall immediately furnish to Lender all notices of
amounts due and receipts evidencing payment. Borrower shall promptly notify
Lender of any lien on all or any part of the Property and shall promptly
discharge any unpermitted lien or encumbrance.
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3. RESERVES FOR TAXES/INSURANCE/REPLACEMENT RESERVE/TENANT IMPROVEMENTS
AND LEASING RESERVE
(a) Tax Reserve. Subject to the terms of that Closing Terms Letter
entered into between Borrower and Lender on even date hereof, Borrower shall pay
to Lender, at the time of and in addition to the monthly installments of
principal and/or interest due under the Note, a sum equal to 1/12 of the amount
estimated by Lender from time to time to be sufficient to enable Lender to pay
at least 30 days before they become due and payable, all taxes, assessments and
other similar charges levied against the Property. So long as no Event of
Default exists hereunder, Lender shall apply the sums so paid by Borrower to pay
such tax items. If such amount on deposit with Lender is insufficient to fully
pay such tax items, Borrower shall, within 10 days following notice at any time
from Lender, deposit such additional sum as may be required for the full payment
of such tax items. Upon the Maturity Date, the moneys then remaining on deposit
with Lender or its agent shall, at Lender's option, be applied against the
Indebtedness. The obligation of Borrower to pay such tax items is not affected
or modified by the provisions of this paragraph. Notwithstanding the foregoing
requirements with respect to monthly deposits into the Tax Reserve, Lender
acknowledges that under the terms of its lease with Borrower, Kmart Corporation
("KMART") is not required to pay its share of taxes on a monthly basis and is
allowed, instead, to pay its share after the tax bills have been received by
Borrower and are presented to Kmart for payment in a reasonably sufficient time
to permit Borrower's timely payment of the corresponding tax xxxx. Lender shall
permit similar payments by Borrower into the Tax Reserve with respect to that
portion of the real estate taxes attributable to Kmart (i.e., not on a monthly
basis, but on a periodic basis corresponding to the required payment cycles for
taxes, but in all events to be received by the Lender at least 30 days in
advance of the delinquency date) provided that Borrower shall make payment on
account of the Kmart portion of the taxes into the Tax Reserve so that the
necessary Tax Reserve balance is established no later than 30 days before the
delinquency date. This special waiver for Kmart is dependent upon Kmart making
its required payments to Borrower on a timely basis, and only so long as there
shall be no Event of Default under the Mortgage. In addition, at such time as a
separate tax parcel is created for Kmart, Lender shall not require that portion
of the Property's real estate taxes which is paid directly to the taxing
authority by Kmart be included in the amount required to be deposited by
Borrower into the Tax Reserve, provided that all of the following conditions are
satisfied: (a) No Event of Default shall exist and remain uncured; (b) Borrower
shall provide Lender with written evidence that Kmart is required, under the
terms of its lease, to pay the annual tax bills directly to the taxing
authority; and (c) Borrower shall provide Lender with written evidence that the
taxes have been paid no less than ten (10) days prior to the date on which they
would become delinquent. Notwithstanding the foregoing, in the event that Kmart,
under the terms of its lease, is permitted to pay those taxes up until the last
day prior to the date they would become delinquent, Borrower shall provide
written evidence of payment to Lender promptly thereafter and in any event
within 10 days from the date thereof. In the event that any of the above
conditions are not satisfied, Lender reserves the right, at its sole discretion,
to (i) collect the full amount of the annual tax payment from the Borrower upon
demand, and (ii) increase the monthly deposits into the Tax Reserve in
accordance with Lender's standard requirements taking into account the full
amount of real estate taxes in connection with the Property.
(b) Insurance Reserve. Borrower shall pay to Lender, at the time of and
in addition to the monthly installments of principal and/or interest due under
the Note, a sum equal to 1/12 of the amount estimated by Lender from time to
time to be sufficient to enable Lender to pay at least 30 days before they
become due and payable, all insurance premiums due for the renewal of the
coverage afforded by the insurance policies required hereunder upon the
expiration thereof. So long as no Event of Default exists hereunder, Lender
shall apply the sums so paid by Borrower to pay such insurance premiums. If such
amount on deposit with Lender is insufficient to fully pay such insurance
premiums, Borrower shall, within 10 days following notice at any time from
Lender, deposit such additional sum as may be required for the full payment of
such insurance premiums. Upon the Maturity Date, the moneys then remaining on
deposit with Lender or its agent shall, at Lender's option, be applied against
the Indebtedness. The obligation of Borrower to pay such insurance premiums is
not affected or modified by the provisions of this paragraph. Notwithstanding
the foregoing, Lender acknowledges that under the terms of its lease, Kmart is
permitted to "self insure" the premises it leases from Borrower which is
reflected in the amount of coverage obtained by Borrower under its current
insurance policies. During the time that Kmart remains
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in possession of its leased premises and continues to "self insure" its
premises, Borrower's monthly Insurance Reserve payment shall be calculated based
upon the premiums due for all insurance policies required by Lender under this
Mortgage and shall not include any additional payment due to Kmart's self
insurance. In the event Borrower is entitled to any reimbursement or payment
from Kmart in connection with any casualty to the Property (the "KMART
PROCEEDS"), Borrower shall cause Kmart to make that payment or reimbursement
directly to Lender and the Kmart Proceeds shall be held by Lender pursuant to
the terms of this Mortgage.
(c) Replacement Reserve. At the time of and in addition to the monthly
installments of principal and/or interest due under the Note, Borrower shall pay
to Lender the Replacement Reserve Monthly Payment (such payments shall be
referred to as the "REPLACEMENT RESERVE"). The total amount required to be
maintained in the Replacement Reserve shall not exceed eighteen (18) months of
required payments into that Replacement Reserve (the "REPLACEMENT RESERVE CAP").
If the Replacement Reserve Cap is reached, continuing payments shall be
suspended unless any sum shall be drawn from the Replacement Reserve which
reduces that Replacement Reserve below the Replacement Reserve Cap, in which
case monthly Replacement Reserve payments shall resume or be increased to
one-twelfth of the greater of (x) the monthly deposit amount previously in
effect immediately prior to the Replacement Reserve Cap being achieved or (y)
the amount estimated by Lender in its sole discretion as the deficiency in the
Replacement Reserve at that time. The funds contained in the Replacement Reserve
shall be utilized by Borrower solely for capital improvements approved in
advance by Lender. Lender shall reimburse Borrower from the Replacement Reserve
for the actual cost of such approved capital improvements upon Borrower's
providing Lender with paid receipts, lien waivers, photographs and other
documentation deemed necessary by Lender with minimum draws of $5,000.00, which
shall occur no more than once per month. Borrower hereby grants Lender a
security interest in the Replacement Reserve and shall execute any other
documents and take any other actions necessary to provide Lender with a
perfected security interest in the Replacement Reserve.
(d) Tenant Improvements and Leasing Reserve. At the time of and in
addition to the monthly installments of principal and/or interest due under the
Note, Borrower shall pay to Lender the TI and Leasing Reserve Monthly Payment to
be used for approved tenant improvements and leasing commissions (the "TI AND
LEASING RESERVE"). The total amount required to be maintained in the TI and
Leasing Reserve shall not exceed $187,000 (the "TI AND LEASING RESERVE CAP")
provided that in the event the investment rating of Borrower's tenant, Kmart,
improves to BBB- stable or better at any time during the Loan term, Lender will
reduce the TI and Leasing Reserve Cap to $72,000. Borrower shall be permitted to
fund the TI and Leasing Reserve with an irrevocable and unconditional letter of
credit in an amount equal to the TI and Leasing Reserve Cap in the form and from
a financial institution acceptable to Lender. In the event any sum shall be
drawn from the TI and Leasing Reserve which reduces that TI and Leasing Reserve
below the TI and Leasing Reserve Cap, Borrower shall be required to deposit with
Lender with its next monthly installment of principal and/or interest due under
the Note, the amount estimated by Lender in its sole discretion as the
deficiency in the TI and Leasing Reserve at that time. The funds contained in
the TI and Leasing Reserve shall be utilized by Borrower solely for tenant
improvements and leasing commissions approved in advance by Lender. Lender shall
reimburse Borrower from the TI and Leasing Reserve for the actual cost of such
approved tenant improvements and leasing commissions upon Borrower's providing
Lender with invoices, paid receipts, lien waivers, photographs and other
documentation deemed necessary by Lender with minimum draws of $5,000.00, which
shall occur no more than once per month. Borrower hereby grants Lender a
security interest in the TI and Leasing Reserve and shall execute any other
documents and take any other actions necessary to provide Lender with a
perfected security interest in the TI and Leasing Reserve.
Interest will be paid on the funds in the Tax, Insurance, Replacement
and TI and Leasing Reserves for the benefit of the Borrower at the rate which is
the lower of (i) the amount paid from time to time by Lender on commercial money
market accounts; or (ii) the return on permitted investments to be made with the
funds by any third party servicer, rating agency or loan purchaser and all such
interest shall be added to and become part of such Tax, Insurance, Replacement
or TI and Leasing Reserves Reserve, provided Lender shall make no representation
or warranty as to the actual rate of interest.
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Upon the occurrence of an Event of Default, Lender may apply any sums then
present in the above reserve accounts for payment of the Indebtedness in any
order in Lender's sole discretion.
4. USE OF PROPERTY. Unless required by applicable law, Borrower shall
not permit changes in the use of any part of the Property from the use existing
at the time this Mortgage was executed, which use Borrower represents and
warrants is limited to the Permitted Use and related uses. Borrower shall not
initiate or acquiesce in a change in the zoning classification of the Property
without Lender's prior written consent.
5. INSURANCE AND CONDEMNATION Borrower shall keep the Improvements
insured, and shall maintain during the entire term of this Mortgage, general
liability coverage and such other coverages requested by Lender, by carrier(s),
in amounts and in form at all times satisfactory to Lender, which carrier(s),
amounts and form shall not be changed without the prior written consent of
Lender. All such policies of insurance shall be issued by insurers qualified
under the laws of the state in which the Land is located, duly authorized and
licensed to transact business in such state and reflecting the Best's Rating.
Borrower shall maintain all coverages on the Property as are required by Lender
at the closing of the Loan, and all other coverages as may be deemed reasonably
necessary by Lender from time to time during the term of the Loan. Unless
Borrower provides Lender with evidence of the insurance coverage required by
this Mortgage, Lender may purchase insurance at Borrower's expense to protect
Lender's interests in the Property and to maintain the insurance required by
this Mortgage. This insurance may, but need not, protect Borrower's interests.
The coverage purchased by Lender may not pay any claim made by Borrower or any
claim that is made against Borrower in connection with the Property or any
required insurance policy. Borrower may later cancel any insurance purchased by
Lender, but only after providing Lender with evidence that Borrower has obtained
insurance as required by this Mortgage. If Lender purchases insurance for the
Property or insurance otherwise required by this Mortgage, Borrower will be
responsible for the costs of that insurance, including interest and other
charges imposed by Lender in connection with the placement of the insurance,
until the effective date of the cancellation or expiration of the insurance. The
costs of the insurance may be added to the Indebtedness. The costs of the
insurance may be more than the cost of insurance Borrower is able to obtain on
its own.
In case of loss or damage by fire or other casualty, Borrower shall
give immediate written notice thereof to the insurance carrier(s) and to Lender.
Lender is authorized and empowered to make or file proofs of loss or damage (in
each case only so long as such loss or damage is equal to or greater than
$100,000.00 and to settle and adjust any claim under insurance policies which
insure against such risks, or to direct Borrower, in writing, to agree with the
insurance carrier(s) on the amount to be paid in regard to such loss provided,
however, that as long as no Event of Default has occurred and is continuing, or
any condition has occurred which with the giving of notice, the passage of time,
or both, would constitute such an Event of Default, Lender shall not do any of
the foregoing without the Borrower's participation and agreement.
Borrower shall immediately notify Lender of any action or proceeding
relating to any condemnation or other taking, whether direct or indirect, of the
Property, or part thereof, and Borrower shall appear in and prosecute any such
action or proceeding unless otherwise directed by Lender in writing. Borrower
authorizes Lender, at Lender's option, as attorney-in-fact for Borrower, to
commence, appear in and prosecute, in Lender's or Borrower's name, any action or
proceeding relating to any condemnation or other taking of the Property, whether
direct or indirect, and to settle or compromise any claim in connection with
such condemnation or other taking, provided such claim is for an amount equal to
or greater than $50,000.00 provided, however, that as long as no Event of
Default has occurred and is continuing, or any condition has occurred which with
the giving of notice, the passage of time, or both, would constitute such an
Event of Default, Lender shall not do any of the foregoing without the
Borrower's participation and agreement. The proceeds of any award, payment or
claim for damages, direct or consequential, in connection with any condemnation
or other taking, whether direct or indirect, of the Property, or part thereof,
or for conveyances in lieu of condemnation, are hereby assigned to and shall be
paid to Lender as further security for the payment of the Indebtedness and
performance of the Obligations.
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Provided no Event of Default then exists hereunder, the net insurance
proceeds and net proceeds of any condemnation award (in each case after
deducting only of Lender's reasonable costs and expenses, if any, in collecting
the same) shall be made available for the restoration or repair of the Property
if, in Lender's sole and reasonable judgment (a) restoration or repair and the
continued operation of the Property is economically feasible, (b) the value of
Lender's security is not reduced, (c) the loss or condemnation, as applicable,
does not occur in the 6-month period preceding the stated Maturity Date and
Lender's independent consultant certifies that the restoration of the Property
can be completed at least 90 days prior to the Maturity Date, and (d) Borrower
deposits with Lender an amount, in cash, which Lender, in its sole discretion,
determines is necessary, in addition to the net insurance proceeds or net
proceeds of any condemnation award, as applicable, to pay in full the cost of
the restoration or repair. Notwithstanding the foregoing, it shall be a
condition precedent to any disbursement of insurance proceeds held by Lender
hereunder that Lender shall have approved (x) all plans and specifications for
any proposed repair or restoration, (y) the construction schedule and (z) the
architect's and general contractor's contract for all restoration that exceeds
$25,000.00 in the aggregate. Lender may establish other conditions it deems
reasonably necessary to assure the work is fully completed in a good and
workmanlike manner free of all liens or claims by reason thereof. Borrower's
deposits made pursuant to this paragraph shall be used before the net insurance
proceeds or net proceeds of any condemnation award, as applicable, for such
restoration or repair. If the net insurance proceeds or net proceeds of any
condemnation award, as applicable, are made available for restoration or repair,
such work shall be completed by Borrower in an expeditious and diligent fashion,
and in compliance with all applicable laws, rules and regulations. At Lender's
option, the net insurance proceeds or net proceeds of any condemnation award, as
applicable, shall be disbursed pursuant to a construction escrow acceptable to
Lender. If following the final payments for the completion of such restoration
or repair there are any net insurance proceeds or net proceeds of any
condemnation award, as applicable, remaining, such proceeds shall be paid (i) to
Borrower to the extent Borrower was required to make a deposit pursuant to this
paragraph, (ii) then to Lender to be applied to the Indebtedness, whether or not
due and payable until paid in full, and (iii) then to Borrower. If an Event of
Default then exists, or any of the conditions set forth in subparagraphs (a)
through (d) of this Paragraph 5 have not been met or satisfied, the net
insurance proceeds or net proceeds of any condemnation award, as applicable,
shall be applied to the Indebtedness, whether or not due and payable, with any
excess paid to Borrower. Notwithstanding the foregoing, the application of any
insurance proceeds or condemnation award to the Indebtedness in accordance with
this Paragraph 5 shall not result in the payment of any prepayment fee, or Yield
Maintenance Amount.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a) shall not
commit waste or permit impairment or deterioration of the Property; (b) shall
not abandon the Property; (c) shall keep the Property in good repair and restore
or repair promptly, in a good and workmanlike manner, all or any part of the
Property to the equivalent of its original condition, ordinary wear and tear
excepted, or such other condition as Lender may approve in writing, upon any
damage or loss thereto, if net insurance proceeds are made available to cover in
whole or in part the costs of such restoration or repair; (d) shall comply with
all laws, ordinances, regulations and requirements of any governmental body and
all requirements of any documents applicable to the Property; (e) shall provide
for management of the Property by Borrower or by a property manager satisfactory
to Lender pursuant to a contract in form and substance satisfactory to Lender;
(f) shall not take any steps whatsoever to convert the Property, or any portion
thereof, to a condominium or cooperative form of management; (g) shall not
install or permit to be installed on the Property any underground storage tank
or above-ground storage tank without the written consent of Lender; and (h)
shall give notice in writing to Lender of and, unless otherwise directed in
writing by Lender, appear in and defend any action or proceeding purporting to
affect the Property, the security granted by the Loan Documents or the rights or
powers of Lender. Neither Borrower nor any tenant or other person shall remove,
demolish or alter any Improvement or any fixture, equipment, machinery or
appliance in or on the Land and owned or leased by Borrower except when incident
to the replacement of fixtures, equipment, machinery and appliances with items
of like kind.
7. PROTECTION OF LENDER'S SECURITY; LEASES. If Borrower fails to pay
the Indebtedness or perform the Obligations, or if any action or proceeding is
commenced which affects the Property or Lender, at Lender's option, Lender may
make such appearances, disburse such sums and take such
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action as Lender deems necessary, in its sole discretion, to protect the
Property or Lender's interest herein, including entry upon the Property to make
repairs and perform environmental tests and studies. Any amounts disbursed by
Lender pursuant to this Paragraph 7 (including attorneys' costs and expenses),
with interest thereon at the "DEFAULT RATE" (defined in the Note) from the date
of disbursement, shall become additional Indebtedness of Borrower secured by the
Loan Documents and shall be due and payable on demand. Nothing contained in this
Paragraph 7 shall require Lender to incur any expense or take any action
hereunder.
Borrower shall not be authorized to enter into any ground lease of the
Property, without Lender's prior written approval. Borrower shall not, without
Lender's prior written consent, modify, amend, surrender or terminate any Lease,
which approval shall not be unreasonably withheld or delayed. All Leases of
space in the Property shall be on the form of lease previously approved by
Lender (as modified to include reasonable and customary alterations) with
tenants and for a use acceptable to Lender. All Leases of space in the Property
executed or renewed after the date hereof must be approved by Lender prior to
the execution thereof by Borrower which approval shall not to be unreasonably
withheld or delayed and shall in any event be communicated to Borrower with 15
Business Days from that date that Lender or its servicing agent receives all
information reasonable necessary for Lender to make such determination. In the
event Lender fails to communicate its response to Borrower within such 15
Business Days then that Lease shall be deemed approved by Lender.
Notwithstanding anything contained herein to the contrary, Borrower may
enter into a proposed Lease (including the amendment, renewal or extension of an
existing Lease ("a RENEWAL LEASE")) without the prior written consent of Lender,
provided such proposed Lease or Renewal Lease (i) provides for rental rates and
terms comparable to existing local market rates and terms (taking into account
the type and quality of the tenant) as of the date such Lease or Renewal Lease
is executed by Borrower (unless, in the case of a Renewal Lease, the rent
payable during such renewal, or a formula or other method to compute such rent,
is provided for in the original Lease), (ii) is an arms-length transaction with
a bona fide, independent third party tenant, (iii) is not for premises greater
than or equal to ten percent (10%) of the gross leaseable area of the Property,
(iv) is not for a rental, or greater than or equal to ten percent (10%) of the
total gross rental revenues of the Property; (v) shall have an initial term of
not less than three (3) years or greater than ten (10) years, (vi) is for the
same use as the current use of the Property, (vii) shall not contain any options
for renewal or expansion by the tenant thereunder at rental rates which are
either below comparable market levels or less than the rental rates paid by the
tenant during initial lease term; and (viii) shall be to a tenant which is
experienced, creditworthy and reputable. If Lender consents to any new Lease of
space in the Property or the renewal of any existing Lease of space in the
Property, at Lender's request, Borrower shall cause the tenant thereunder to
execute a subordination and attornment agreement in form and substance
satisfactory to Lender contemporaneously with the execution of such Lease.
Borrower expressly understands that any and all new or proposed leases
or Renewal Leases are included in the definition of "Lease" or "Leases" as such
terms may be used throughout this Mortgage or any of the other Loan Documents.
8. INSPECTION. Lender and its agents and designees may make or cause to
be made reasonable entries upon and inspections of the Property, including for
performing any environmental inspections and testing of the Property, and
inspections of Borrower's books, records, and contracts at all reasonable times
upon reasonable advance notice, which notice may be given in writing or orally.
Borrower shall cooperate with Lender and its agents and designees with respect
to all such inspections, including any related to the sale or potential sale of
all or any portion of the Loan by Lender and any securitization or potential
securitization involving the Loan.
9. BOOKS AND RECORDS. Borrower shall keep and maintain at all times at
Borrower's address stated above, or such other place as Lender may approve in
writing, complete and accurate books of accounts and records adequate to reflect
correctly the results of the operation of the Property and copies of all written
contracts, Leases and other instruments affecting the Property.
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10. FINANCIAL STATEMENTS. Borrower shall furnish to Lender, within 20
days after the end of each calendar month, until the later of (i) the first 12
calendar months following the closing of the loan (the "LOAN") evidenced by the
Note, or (ii) the Loan is securitized as described in Paragraph 43 below, a
monthly unaudited statement of income and expenses and a rent roll in the format
of subclause (a) below, each in reasonable detail and dated and certified as
true and complete by Borrower or its general partner or chief financial officer.
Borrower shall furnish to Lender, within 45 days after the end of each fiscal
quarter of the operation of the business of Borrower and at any other time upon
Lender's request, a balance sheet and a statement of income and expenses of the
Property, each in reasonable detail, prepared in accordance with generally
accepted accounting principles and certified as true and complete by Borrower or
its general partner, manager or chief financial officer. Borrower shall also
furnish to Lender within 60 days after the end of each fiscal year of Borrower,
a balance sheet, a statement of income and expenses and a statement of cash
flows, each in reasonable detail, prepared in accordance with generally accepted
accounting principles and certified as true and complete by Borrower or its
general partner, manager or chief financial officer and each Principal, as the
case may be. Borrower shall furnish, together with the foregoing quarterly
financial statements and at any other time upon Lender's request (a) a rent
schedule for the Property, showing the name of each tenant, and for each tenant,
the space occupied, the lease expiration date, the rent payable, the rent paid
to date, and the security deposit being held for such tenant, (b) a leasing
activity report for the Property during such fiscal quarter, (c) a capital
expenditure report indicating the type and amount of each capital expenditure
made during such fiscal quarter, and (d) any other information that Lender may
reasonably require, all of the foregoing shall be certified as true and complete
by Borrower or its general partner, manager or chief financial officer. In
addition, Borrower shall cause Principal, or Principal's general partner, to
provide to Lender a copy of its financial statements prepared in accordance with
generally accepted accounting principles, certified by Principal or its general
partner to be a true and complete copy of such financial statements and in form
reasonably satisfactory to Lender, within 60 days of the end of the calendar
year if that information has been made available to the public and in any event
within 90 days of the end of the calendar. All of the information required by
Lender in this paragraph must be acceptable to Lender in its absolute and sole
discretion. If Borrower fails to timely furnish Lender with any of the financial
information and reports set forth in this paragraph within the required time
periods, Lender shall have the right, acting in its sole discretion, to hire a
certified public accounting firm acceptable to Lender, to prepare such financial
information and reports, on an audited basis. The costs and expenses of such
accounting firm shall be paid by Borrower on demand and, to the extent advanced
by Lender become, with interest thereon from the date advanced by Lender at the
Default Rate, additional Indebtedness of Borrower secured by the Loan Documents.
Additionally, if Borrower fails to timely furnish Lender with any of the
financial information and reports set forth in this paragraph within the
required time periods, Lender shall be entitled to receive a late charge equal
to $500.00 for each date that financial information is not timely furnished to
Lender (the "FINANCIAL LATE CHARGE") provided that Borrower shall have a one
time right to a five day notice and cure period prior to the enforcement by
Lender of any Financial Late Charge. The Financial Late Charge shall be due and
payable by Borrower immediately upon receipt by Borrower of an invoice for same
from Lender. Until paid, the Financial Late Charge shall bear interest at the
Default Rate, and shall be deemed additional Indebtedness of Borrower secured by
the Loan Documents. Borrower's failure to provide any of the financial
statements, certificates, reports or information (the "REQUIRED RECORDS")
required by this Paragraph 10 by the date upon which such Required Record is
due, shall be deemed an Event of Default under the Loan, provided that, Lender
has given at least five (5) days prior written notice to Borrower of such
failure by Borrower to timely submit the applicable Required Record.
11. HAZARDOUS MATERIALS. Borrower covenants and agrees that it (a)
shall not use, generate, store, or allow to be generated, stored or used, any
"Hazardous Materials" (hereinafter defined) on the Property, except in the
ordinary course of Borrower's business and in accordance with all "Environmental
Laws" (hereinafter defined), (b) shall at all times maintain the Property in
full compliance with all applicable Environmental Laws, including timely
remediating the Property if and when required, and (c) shall use its best
efforts to cause compliance by all tenants and sub-tenants on the Property with
Borrower's covenants and agreements contained in this Paragraph 11. Borrower
shall promptly notify Lender in writing of (i) any investigation, claim or other
proceeding by any party caused or threatened in connection with any Hazardous
Materials on the Property, or the failure or alleged failure of the Property
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to comply with any applicable Environmental Laws, or (ii) Borrower's discovery
of any condition on or in the vicinity of the Property to fail to comply with
applicable Environmental Laws.
The term "ENVIRONMENTAL LAWS" shall include any present and future
federal, state and/or local law, statute, ordinance, code, rule, regulation,
license, authorization, decision, order, injunction or decree and/or other
governmental directive or requirement, as well as common law, which pertains or
relates to health, safety or the environment (including but not limited to,
ground or air or water or noise pollution or contamination, and underground or
above ground tanks) and shall include, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended
("RCRA"), and any state or federal lien or superlien or environmental clean-up
statutes, and regulations, rules, guidelines, or standards promulgated pursuant
thereto all as amended from time to time. The term "HAZARDOUS MATERIALS" shall
include any substance, whether solid, liquid or gaseous: (i) which is listed,
defined or regulated as a "hazardous substance," "hazardous waste" or "solid
waste," or otherwise classified as hazardous or toxic, in or pursuant to any
Environmental Laws; or (ii) which is or contains asbestos, radon, any
polychlorinated biphenyl, urea formaldehyde foam insulation, explosive or
radioactive material, lead paint, or motor fuel or other petroleum hydrocarbons;
or (iii) which causes or poses a threat to cause a contamination or nuisance on
the Property or any adjacent property or a hazard to the environment or to the
health or safety of persons on or about the Property.
12. REPRESENTATIONS AND COVENANTS.
(a) If Borrower is a corporation, it represents that it is a
corporation duly organized, existing and in good standing under the laws of its
state of incorporation, that it is duly qualified and in good standing under the
laws of the state where the Land is located, and that the execution and delivery
of the Loan Documents and the performance of the obligations thereunder are
within Borrower's corporate powers, have been duly authorized by all necessary
action of its board of directors, and do not contravene the terms of its
articles of incorporation or by-laws.
(b) If Borrower is a general or limited partnership or a limited
liability company, it represents that it is duly formed, organized and existing
in the state of its formation, that it is qualified to do business under the
laws of the state where the Land is located, and that the execution and delivery
of the Loan Documents and the performance of the obligations thereunder do not
conflict with any provision of Borrower's partnership agreement or operating
agreement, as applicable, and all other certificates and agreements governing
Borrower, and have been duly authorized by all necessary action of its partners
or members.
(c) Borrower represents that (i) the execution and delivery of the Loan
Documents, the payment of the Indebtedness, and the performance of the
Obligations do not violate any law or conflict with any agreement by which
Borrower is bound, or any court order by which Borrower is bound, (ii) no
consent or approval of any governmental authority or any third party is required
for the execution or delivery of the Loan Documents, the payment of
Indebtedness, and the performance of the Obligations, and (iii) the Loan
Documents are valid and binding agreements, enforceable in accordance with their
terms.
(d) Borrower represents that (i) it is lawfully seized with fee simple
title in the estate hereby conveyed; (ii) it has the right to mortgage, convey,
assign and grant a first security interest in the Property; (iii) the Property
is unencumbered, and Borrower will warrant and defend title to the Property
against all claims and demands, subject to easements and restrictions listed in
a schedule of exceptions to coverage in the title insurance policy accepted by
Lender insuring Lender's interest in the Property; and (iv) it has no
operations, assets or activities other than the Property.
(e) Borrower represents and covenants that (i) all material permits,
approvals, and certificates, including certificates of completion and occupancy
permits, required by law or regulation have been obtained and are and shall
remain in full force and effect; and (ii) the use and occupancy of the Land and
all improvements thereon are and shall remain in compliance with all laws.
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(f) Borrower represents that all of the improvements on the Land lie
wholly within the boundaries of and building line restrictions relating to the
Land and no improvements located on adjoining lands encroach upon the Land so as
to effect the value or marketability of the Property, except those which are
insured against by the title insurance policy accepted by Lender insuring
Lender's interest in the Property.
(g) Borrower represents that the Property is served by public utilities
and services in the surrounding community, including police and fire protection,
public transportation, refuse removal, public education, and enforcement of
safety codes which are adequate in relation to the premises and location on
which the Property is located.
(h) Borrower represents that the Property is serviced by public water
and sewer systems which are adequate in relation of the improvements and
location on which the Property is located. All liquid and solid waste disposal,
septic and sewer systems located on the Property are in good and safe condition
and repair and in compliance with all applicable laws.
(i) Borrower represents that the Property has parking and other
amenities necessary for the operation of the business currently conducted
thereon which are adequate in relation to the premises and location on which the
Property is located.
(j) Borrower represents that the Property is a contiguous parcel and a
separate tax parcel, and there are no delinquent taxes or other outstanding
charges adversely affecting the Property.
(k) Borrower represents that no action, omission, misrepresentation,
negligence, fraud or similar occurrence has taken place on the part of any
person that would reasonably be expected to result in the failure or impairment
of full and timely coverage under any insurance policies providing coverage for
the Property.
(l) None of Borrower, any Principal, or any other holder of a direct or
indirect legal or beneficial interest in Borrower is or will be, held, directly
or indirectly, by a "foreign corporation," "foreign partnership," "foreign
trust," "foreign estate," "foreign person," "affiliate" of a "foreign person" or
a "United States intermediary" of a "foreign person" within the meaning of IRC
Sections 897 and 1445, the Foreign Investments in Real Property Tax Act of 1980,
the International Foreign Investment Survey Act of 1976, the Agricultural
Foreign Investment Disclosure Act of 1978, the regulations promulgated pursuant
to such acts or any amendments to such acts.
(m) None of Borrower or any Principal is insolvent, and there has been
no (i) assignment made for the benefit of the creditors of any of them, (ii)
appointment of a receiver for any of them or for the properties of any of them,
or (iii) any bankruptcy, reorganization, or liquidation proceeding instituted by
or against any of them.
(n) All information in the application for the Loan submitted to Lender
(the "Loan Application") and in all financial statements, rent rolls, reports,
certificates and other documents submitted in connection with the Loan
Application or in satisfaction of the terms thereof, are accurate, complete and
correct in all material respects. There has been no adverse change in the
representations made or information heretofore supplied by or on behalf of
Borrower or any Principal in connection with the Loan or the Loan Application as
to Borrower, any Principal, or the Property. There has been no adverse change in
any condition, fact, circumstance or event that would make any such
representations or information inaccurate, incomplete or otherwise misleading.
(o) Except as listed on Exhibit C hereto, there is no litigation,
arbitration, or other proceeding or governmental investigation pending or, to
Borrower's knowledge, threatened against or relating to Borrower, any Principal,
or the Property.
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(p) The proceeds evidenced by the Note will be used by Borrower solely
and exclusively for proper business purposes and will not be used for the
purchase or carrying of registered equity securities within the purview and
operation of any regulation issued by the Board of Governors of the Federal
Reserve System or for the purpose of releasing or retiring any indebtedness
which was originally incurred for any such purpose.
(q) Borrower represents and covenants that all Leases of space in the
Property existing as of the date hereof are in writing.
(r) Borrower covenants that Lender shall be allowed to advertise in the
various news or financial media that Lender has provided the Loan to Borrower.
(s) Borrower represents and covenants that it does not have and will
not incur any other indebtedness other than (i) the Indebtedness, and (ii) trade
payables incurred in the ordinary course of business.
(t) Borrower represents that Borrower and all Principals have filed all
federal, state, county, municipal, and city income and other tax returns
required to have been filed by them and have paid all taxes and related
liabilities which have become due pursuant to such returns or pursuant to any
assessments received by them. Except as set forth in Exhibit C, neither Borrower
nor any Principal knows of any basis for any additional assessment in respect to
any such taxes and related liabilities for prior years. Borrower confirms that
its federal tax identification number is 00-0000000.
(u) Borrower covenants that if at any time the United States of
America, any State thereof or any subdivision of any such State shall require
revenue or other stamps to be affixed to the Note or this Mortgage, or impose
any other tax or charge on the same, Borrower will pay for the same, with
interest and penalties thereon, if any.
Except as otherwise provided herein, each and all of the
representations, covenants and obligations of Borrower shall survive the
execution and delivery of the Loan Documents and shall continue in full force
and effect until the Indebtedness is paid in full.
13. LEASE ASSIGNMENT. Borrower acknowledges that, concurrently herewith
Borrower is delivering to Lender, as additional security for the repayment of
the Loan, an Assignment of Leases and Rents (the "ASSIGNMENT") pursuant to which
Borrower has assigned to Lender all of Borrower's right, title and interest in
the Leases and the Rents and income from the Premises. All of the provisions of
the Assignment are hereby incorporated herein as if fully set forth at length in
the text of this Mortgage. Borrower agrees to abide by all of the provisions of
the Assignment.
14. ESTOPPEL CERTIFICATES.
(a) Borrower shall, within 10 days after Lender's request, furnish
Lender with a written statement, duly acknowledged, setting forth the sums
secured by the Loan Documents and any right of set-off, counterclaim or other
defense which exists against such sums and the Obligations.
(b) If the Property includes commercial property, Borrower shall
deliver to Lender upon request, tenant estoppel certificates from each
commercial tenant at the Property in form and substance reasonably satisfactory
to Lender provided that Borrower shall not be required to deliver such
certificates more frequently than one time in any calendar year.
15. TRANSFERS OF THE PROPERTY OR OWNERSHIP INTERESTS IN BORROWER;
ASSUMPTION; DUE ON SALE/ENCUMBRANCE.
(a) No Sale/Encumbrance. Borrower agrees that Borrower shall not,
without the prior written consent of Lender, sell, convey, mortgage, grant,
bargain, encumber, pledge, assign, or otherwise
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transfer the Property or any interest therein any part thereof or permit the
Property or any part thereof to be sold, conveyed, mortgaged, granted,
bargained, encumbered, pledged, assigned, or otherwise transferred except for:
(i) pursuant to Leases of space in the Property to tenants in accordance with
the provisions of Paragraph 7; (ii) in connection with a condemnation action or
other taking; or (iii) the disposal of personalty that is obsolete or no longer
used or useful, so long as such personalty is replaced with similar items of
comparable value and utility and in which Lender has a first lien and mortgage.
(b) Sale/Encumbrance Defined. A sale, conveyance, mortgage, grant,
bargain, encumbrance, pledge, assignment, or transfer of the Property within the
meaning of this Paragraph 15 shall be deemed to include, but not limited to the
following: (i) an installment sales agreement wherein Borrower agrees to sell
the Property or any part thereof for a price to be paid in installments; (ii) an
agreement by Borrower leasing all or a substantial part of the Property for
other than actual occupancy by a space tenant thereunder or a sale, assignment
or other transfer of, or the grant of a security interest in, Borrower's right,
title and interest in and to any Leases or any Rents; (iii) a sale or transfer
of the ownership interests of Principal (i.e. Ramco-Xxxxxxxxxx Properties, L.P.)
in Borrower that would result in Principal owning directly or indirectly less
than 25% of the total ownership interests (including beneficial interests) in
Borrower; or (iv) if Principal's General Partner, Ramco-Xxxxxxxxxx Properties
Trust, a Maryland real estate investment trust fails to continue to make the
day-to-day decisions for Borrower's business or if the Principal's consent is no
longer required for all material decisions (for purposes of this Paragraph 15
the foregoing shall be deemed to constitute "control"). Additionally, if the
transfer of an ownership interest in or change in control of Borrower prohibited
by the foregoing results from the death of a Principal who is an individual and
if the transferee or subsequently controlling party, as applicable, has the
creditworthiness and management ability which are satisfactory to Lender in its
sole and absolute discretion, such transfer or change in control shall be
permitted upon the execution of a written assumption agreement containing such
terms as Lender may require.
(c) Assumption. Notwithstanding the foregoing provisions of this
Paragraph 15, a sale of the Property and assumption of this Loan (hereinafter,
an "ASSUMPTION") in its entirety prohibited by the foregoing may be permitted no
more than twice during the term of the Note to any person or entity, subject to
Lender's prior written consent, which shall not be unreasonably withheld or
delayed, provided that each of the following terms and conditions are satisfied:
(i) no default has occurred and is then continuing hereunder or
under any of the Loan Documents;
(ii) Borrower gives Lender written notice of the terms of such
prospective Assumption not less than sixty (60) days before
the date on which such Assumption is scheduled to take place
and, concurrently therewith, gives Lender all such information
concerning the proposed transferee of the Loan (hereinafter, a
"TRANSFEREE") as Lender would reasonably require in evaluating
an initial extension of credit to a borrower on a non-recourse
basis. Lender shall have the right to approve or disapprove
the proposed Transferee. In determining whether to give or
withhold its approval of the proposed Transferee, Lender shall
consider the Transferee's experience in owning and operating a
facility similar to the Property, the Transferee's entity
structure, the Transferee's financial strength, the
Transferee's general business standing and the Transferee's
relationships and experience with contractors, vendors,
tenants, lenders and other business entities; provided,
however, that notwithstanding Lender's agreement to consider
the foregoing factors in determining whether to give or
withhold such approval, such approval shall be given or
withheld based upon what Lender determines to be commercially
reasonable in Lender's sole discretion and, if given, may be
given subject to such conditions as Lender may deem
appropriate, but no such conditions shall result in an
increase in the interest rate or monthly payment under the
Note or reduce the term thereof;
(iii) Borrower shall pay Lender (A) in connection with such proposed
Assumption, all reasonable out-of-pocket costs and expenses,
including, without limitation, reasonable attorneys' fees
incurred by Lender, plus (B) concurrently with the closing of
such
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Assumption, a nonrefundable assumption fee in an amount equal
to 1% of the then outstanding principal balance of the Note at
the time of such Assumption;
(iv) the Transferee assumes and agrees to pay the Indebtedness and
perform the Obligations secured hereby subject to Paragraph 11
of the Note, and prior to or concurrently with the closing of
such Assumption, the Transferee executes, without any cost or
expense to Lender, such documents and agreements as Lender
shall reasonably require to evidence and effectuate said
assumption and deliver such legal opinions as Lender may
reasonably require;
(v) transferee executes, without any cost or expense to Lender,
new financing statements or financing statement amendments and
any additional documents reasonably requested by Lender;
(vi) Borrower delivers to Lender, without any cost or expense to
Lender, hazard insurance endorsements or certificates and
other similar materials as Lender may deem necessary at the
time of the Assumption, all in form and substance satisfactory
to Lender, including, without limitation, an endorsement or
endorsements to Lender's loan title insurance policy insuring
the lien of this Mortgage, extending the effective date of
such policy to the date of execution and delivery of the
assumption agreement referenced above in subparagraph
15(c)(iv), with no additional exceptions added to such policy,
except for items consented to by Lender or permitted under
this Mortgage, and insuring that fee simple title to the
Property is vested in the Transferee;
(vii) Borrower executes and delivers to Lender, without any cost or
expense to Lender, a release of Lender, its officers,
directors, employees and agents, from all claims and liability
relating to the transactions evidenced by the other security
documents through and including the date of the closing of the
Assumption, which agreement shall be in form and substance
satisfactory to Lender and shall be binding upon the
Transferee;
(viii) subject to the provisions of Paragraph 11 of the Note, such
Assumption is not construed so as to relieve Borrower of any
personal liability under the Note or any of the Loan Documents
for any act or events occurring or obligations arising prior
to or simultaneously with the closing of such Assumption
(excluding payment of the principal amount of the Note and
interest accrued thereon) and Borrower executes, without any
cost or expense to Lender, such documents and agreements as
Lender shall reasonably require to evidence and effectuate the
ratification of such personal liability;
(ix) the Transferee or a party associated with the Transferee
approved by Lender in its sole discretion shall assume the
obligations of the current Guarantors or Indemnitors under
their guarantees or indemnity agreements and the Transferee or
such party associated with the Transferee if applicable, shall
execute, without any cost or expense to Lender, a new
guarantee and/or indemnity agreement in form and substance
satisfactory to Lender, (in which event Lender shall release
the current Guarantors or Indemnitors from all obligations
first arising under their guarantees or indemnity agreements
after the closing of such Assumption);
(x) the Transferee shall furnish, if the Transferee is a
corporation, partnership or other entity, all appropriate
papers evidencing the Transferee's capacity in good standing
and the qualification of the signers to execute the assumption
of the Obligations, which paper shall include certified copies
of all documents relating to the organization and formation of
the Transferee and of the entities, if any, which are
partners, members or shareholders of the Transferee. The
Transferee and such constituent partners, members or
shareholders of the Transferee (as the case may be) as Lender
shall require, shall be single purpose, bankruptcy remote
entities, whose formation documents shall be approved by
counsel to Lender. An individual recommended by Transferee and
approved by Lender shall serve
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as an independent director of the Transferee (if the
Transferee is a corporation) or the Transferee's corporate
general partner or an independent member or in Lender's
discretion, manager of Transferee if the Transferee is a
limited liability company. The consent of such independent
parties shall be required for, among other things, any merger,
consolidation, dissolution, bankruptcy or insolvency of such
independent party or of the Transferee;
(xi) the Transferee shall assume the obligations of Borrower under
the management agreements, if any, pertaining to the Property;
and
(xii) the Transferee shall furnish an opinion of counsel
satisfactory to Lender and its counsel stating that (A) the
Transferee's formation documents provide proof for the matters
described in subparagraph (x) above, (B) the assets of the
Borrower will not be consolidated with the assets of any other
entity having an interest in, or affiliation with, the
Transferee, in the event of a bankruptcy or insolvency of any
such entity, (C) the assumption of the Obligations has been
duly authorized, executed and delivered and the Loan Documents
are valid, binding and enforceable against the Transferee in
accordance with their terms, (D) the Transferee and any entity
which is a controlling stockholder, general partner or
managing member of the Transferee have been duly organized and
are in good standing and in existence, and (E) with respect to
such other matters as Lender may request; and
(xiii) if the Loan has previously been securitized pursuant to
Paragraph 43 Lender shall have received evidence in writing
from the rating agencies to the effect the proposed transfer
will not result in a downgrade, qualification reduction or
withdrawal or any rating initially assigned or to be assigned
in a Secondary Market Transaction. For purposes hereof, a
"Secondary Market Transaction" shall be (i) any sale of this
Mortgage, Note and Loan Documents to one or more investors as
a whole loan; (ii) a participation of the Note to one or more
investors; (iii) any deposit of this Mortgage, Note and Loan
Documents with a trust or other entity which may sell
certificates or other instruments to investors evidencing an
ownership interest in the assets of such trust or other
entity, or (iv) any other sale or transfer of the Note or any
interest therein to one or more investors.
(d) Lender's Rights. Except as provided in subparagraph 15(c) above,
Lender reserves the right to condition the consent required hereunder upon a
modification of the terms hereof and on assumption of the Note, this Mortgage
and the other Loan Documents as so modified by the proposed transferee (such
modification shall not increase the amount of the Loan or change the payment
terms or interest rate), payment of an assumption fee, and all of Lender's
expenses incurred in connection with such transfer, the approval by a rating
agency of the proposed transferee, the proposed transferee's continued
compliance with the covenants set forth in this Mortgage, including, without
limitation, the covenants contained in Paragraph 17, or such other conditions as
Lender shall determine in its sole discretion to be in the interest of Lender.
All of Lender's out-of-pocket expenses incurred shall be payable by Borrower
whether or not Lender consents to the Assumption. Lender shall not be required
to demonstrate any actual impairment of its security or any increased risk of
default hereunder in order to declare the Note immediately due and payable upon
Borrower's prohibited sale, conveyance, mortgage, grant, bargain, encumbrance,
pledge, assignment, or transfer of the Property without Lender's consent. This
provision shall apply to every sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer of the Property regardless of
whether voluntary or not, or whether or not Lender has consented to any previous
sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or
transfer of the Property.
16. NO ADDITIONAL LIENS. Borrower covenants not to execute any
mortgage, security agreement, assignment of leases and rents or other agreement
granting a lien (except the liens granted to Lender by the Loan Documents) or,
except as set forth in Paragraph 2 above (i.e. Borrower's right to contest such
lien), take or fail to take any other action which would result in a lien
against the interest of Borrower in the Property without the prior written
consent of Lender.
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17. SINGLE ASSET ENTITY. Borrower shall not hold or acquire, directly
or indirectly, any ownership interest (legal or equitable) in any real or
personal property other than the Property, or become a shareholder of or a
member or partner in any entity which acquires any property other than the
Property, until such time as the Indebtedness has been fully repaid and all
Obligations are satisfied. Borrower's articles of incorporation, partnership
agreement or operating agreement, as applicable, limit its purpose to the
acquisition, operation and disposition of the Property, and such purposes shall
not be amended without the prior written consent of Lender. Borrower covenants:
(a) To maintain its assets, accounts, books, records, financial
statements, stationery, invoices, and checks separate from and not commingled
with any of those of any other person or entity;
(b) To conduct its own business in its own name, pay its own
liabilities out of its own funds, allocate fairly and reasonably any overhead
for shared employees and office space, and to maintain an arm's length
relationship with its affiliates;
(c) To hold itself out as a separate entity, correct any known
misunderstanding regarding its separate identity, maintain adequate capital in
light of its contemplated business operations, and observe all organizational
formalities;
(d) Not to guarantee or become obligated for the debts of any other
entity or person or hold out its credits as being available to satisfy the
obligations of others, including not acquiring obligations or securities of its
partners, members or shareholders; and
(e) Not to pledge its assets for the benefit of any other entity or
person or make any loans or advances to any person or entity.
(f) Not to enter into any contract or agreement with any Principal or
any party which is directly or indirectly controlling, controlled by or under
common control with Borrower or Principal (an "AFFILIATE"), except upon terms
and conditions that are intrinsically fair and substantially similar to those
that would be available on an arms-length basis with third parties other than
any Principal or Affiliate.
(g) Borrower will maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of
its contemplated business operations.
(h) Neither Borrower nor any constituent party of Borrower will seek
the dissolution or winding up, in whole or in part, of Borrower, nor will
Borrower merge with or be consolidated into any other entity.
(i) Borrower has and will maintain its assets in such a manner that it
will not be costly or difficult to segregate, ascertain or identify its
individual assets from those of any constituent party of Borrower, Affiliate,
Principal or any other person.
(j) Borrower shall obtain and maintain in full force and effect, and
abide by and satisfy the material terms and conditions of, all material permits,
licenses, registrations and other authorizations with or granted by any
governmental authorities that may be required from time to time with respect to
the performance of its obligations under this Mortgage.
(k) From and after the date hereof, Borrower shall not own any asset,
conduct any business or operate or engage in any business or activity other than
ownership and operation of the Property. Borrower has no debts or obligations
other than normal accounts payable in the ordinary course of business, this
Mortgage, and the Loan it secures. Any other indebtedness or other obligation of
Borrower has been paid in full prior to or through application of proceeds from
the funding of the Loan.
18. BORROWER AND LIEN NOT RELEASED. Without affecting the liability of
Borrower or any other person liable for the payment of the Indebtedness, and
without affecting the lien or charge of this
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Mortgage as security for the payment of the Indebtedness, Lender may, from time
to time and without notice to any junior lien holder or holder of any right or
other interest in and to the Property: (a) release any person so liable, (b)
waive or modify any provision of this Mortgage or the other Loan Documents or
grant other indulgences, (c) release all or any part of the Property, (d) take
additional security for any obligation herein mentioned, (e) subordinate the
lien or charge of this Mortgage, (f) consent to the granting of any easement, or
(g) consent to any map or plan of the Property.
19. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT AND FIXTURE FILING. This
Mortgage shall constitute a security agreement and fixture filing pursuant to
the Uniform Commercial Code for any of the items specified herein as part of the
Property which, under applicable law, may be subject to a security interest
pursuant to the Uniform Commercial Code (collectively, the "COLLATERAL"), and
Borrower hereby grants Lender a security interest in the Collateral. Any
reproduction of this Mortgage or of any other security agreement or financing
statement shall be sufficient as a financing statement. In addition, Borrower
agrees to execute and deliver to Lender any financing statements, as well as
extensions, renewals and amendments thereof, and reproductions of this Mortgage
in such form as Lender may require to perfect a security interest with respect
to said items. Borrower shall pay all costs of filing such financing statements
and any extensions, renewals, amendments and releases thereof, and shall pay all
reasonable costs and expenses of any record searches for financing statements
Lender may reasonably require. If an Event of Default shall occur, Lender, in
addition to any other rights and remedies which it may have, shall have and may
exercise immediately and without demand, any and all rights and remedies granted
to a secured party upon default under the Uniform Commercial Code, including
without limitation, the right to take possession of the Collateral or any part
thereof, and to take such other measures as Lender may deem necessary for the
care, protection and preservation of the Collateral. Upon request or demand of
Lender, Borrower shall, at its expense, assemble the Collateral and make it
available to Lender at a convenient place acceptable to Lender. Borrower shall
pay to Lender on demand any and all expenses, including legal expenses and
attorneys' fees, incurred or paid by Lender in protecting the interest in the
Collateral and in enforcing the rights hereunder with respect to the Collateral.
Any notice of sale, disposition or other intended action by Lender, with respect
to the Collateral, sent to Borrower in accordance with the provisions hereof at
least five (5) days prior to such action, shall constitute commercially
reasonable notice to Borrower.
20. EVENTS OF DEFAULT; ACCELERATION OF INDEBTEDNESS; REMEDIES. The
occurrence of any one or more of the following events shall constitute an "EVENT
OF DEFAULT" under this Mortgage:
(a) failure of Borrower to pay, within 5 days of the due date, any of
the Indebtedness, including any payment due under the Note; or
(b) failure of Borrower to strictly comply with Paragraphs 10, 15, 16
and 17 of this Mortgage; or
(c) a petition under any Chapter of Title 11 of the United States Code
or any similar law or regulation is filed by or against Borrower or any
Principal (and in the case of an involuntary petition in bankruptcy, such
petition is not discharged within 60 days of its filing), or a custodian,
receiver or trustee for any of the Property is appointed, or Borrower or any
Principal makes an assignment for the benefit of creditors, or any of them are
adjudged insolvent by any state or federal court of competent jurisdiction, or
an attachment or execution is levied against any of the Property; or
(d) the occurrence of an "Event of Default" under and as defined in any
other Loan Document; or
(e) Borrower is in default in the payment of any indebtedness (other
than the Indebtedness) and such default is declared and is not cured within the
time, if any, specified therefor in any agreement governing the same; or
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(f) any statement, report or certificate made or delivered to Lender by
Borrower or any Principal is not materially true and complete, or any
representation or warranty made or delivered to Lender by Borrower or any
Principal is not materially true and correct; or
(g) seizure or forfeiture of the Property, or any portion thereof, or
Borrower's interest therein, resulting from criminal wrongdoing or other
unlawful action of Borrower, its affiliates, or any tenant in the Property under
any federal, state or local law.
(h) failure of Borrower, within 30 days after notice and demand, to
satisfy each and every Obligation, other than those set forth in the
subparagraphs above; provided, however, if such failure to satisfy such
Obligation cannot by its nature be cured within 30 days, and if Borrower
commences to cure such failure promptly after written notice thereof and
thereafter diligently pursues the curing thereof (and then in all events cures
such failure within 60 days after the original notice thereof), Borrower shall
not be in default hereunder during such period of diligent curing.
Upon the occurrence of an Event of Default, the Indebtedness, at the
option of the Lender, shall become immediately due and payable without notice to
Borrower; and Lender shall be entitled to immediately exercise and pursue any or
all of the rights and remedies contained in this Mortgage and any other Loan
Document or otherwise available at law or in equity. Each remedy provided in the
Loan Documents is distinct and cumulative to all other rights or remedies under
the Loan Documents or afforded by law or equity, and may be exercised
concurrently, independently, or successively, in any order whatsoever.
21. ENTITY; FORECLOSURE; REMEDIES. Upon the occurrence of an Event of
Default, (a) Borrower, upon demand of Lender, shall forthwith surrender to
Lender the actual possession, or to the extent permitted by law, Lender itself,
or by such officers or agents as it may appoint, may enter and take possession
of all or any part of the Property, and may exclude Borrower and its agents and
employees wholly therefrom, and may have joint access with Borrower to the
books, papers and accounts of Borrower; and (b) if Borrower shall for any reason
fail to surrender or deliver the Property or any part thereof after such demand
by Lender, Lender may obtain a judgment or decree conferring on Lender the right
to immediate possession or requiring the delivery to Lender of the Property, and
Borrower specifically consents to the entry of such judgment or decree. Upon
every such entering upon or taking of possession, Lender may hold, store, use,
operate, manage and control the Property and conduct the business thereof.
Lender shall have no liability for any loss, damage, injury, cost or expense
resulting from any action or omission by it or its representatives which was
taken or omitted in good faith.
Upon any foreclosure sale, Lender may bid for and purchase the Property
and shall be entitled to apply all or part of the Indebtedness as a credit to
the purchase price.
Upon the occurrence of an Event of Default, then, without notice to or
the consent of Borrower, Lender shall be entitled to invoke the power of sale
and immediately exercise or pursue or cause to be exercised or pursued any or
all of the rights and remedies contained in this Mortgage and in any other Loan
Document or otherwise available at law or in equity including the right to do
any one or more of the following:
(1) To enter upon, take possession of and manage the Property for
the purpose of collecting the Rents;
(2) To require Borrower to hold all Rents collected in trust for
the benefit of Lender;
(3) Dispossess by the usual summary proceedings any Tenant
defaulting in the payment of Rent to Borrower;
(4) Lease the Property or any part thereof;
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(5) Repair, restore, and improve the Property;
(6) Apply the Rent after payment of Property expenses as
determined by Lender to Borrower's indebtedness under the Loan
Documents;
(7) Sell for cash or upon credit the Property or any part thereof
and all estate, claim, demand, right, title and interest of
Borrower therein and rights of redemption thereof, pursuant to
the power of sale contained herein or otherwise, at one or
more sales, as an entirety or in parcels, at such time and
place, upon such terms and after such notice there of as may
be required or permitted by law; and
(8) Apply to any court of competent jurisdiction for specific
performance of this Mortgage, an injunction against the
violation hereof and/or the appointment of a receiver.
The foregoing remedies shall be cumulative of any other nonjudicial remedies
available to Lender under this Mortgage or the other Loan Documents, at law or
in equity. Proceeding with a request or receiving a judgment for legal relief
shall not be or be deemed to be an election of remedies or bar any available
nonjudicial remedy of Lender.
22. EXPENDITURES AND EXPENSES. Borrower acknowledges and confirms that
Lender shall impose certain administrative processing and/or commitment fees in
connection with (a) the extension, renewal, modification, amendment and
termination of its loans, (b) the release or substitution of collateral
therefor, (c) obtaining certain consents, waivers and approvals with respect to
the Property, or (d) the review of any Lease or proposed Lease or the
preparation or review of any subordination, non-disturbance and attornment
agreement. In addition, in any civil action to foreclose the lien hereof or
otherwise enforce Lender's rights, there shall be allowed and included as
additional Indebtedness in the order or judgment for foreclosure and sale or
other order all expenditures and expenses which may be paid or incurred by or on
behalf of Lender including reasonable attorneys' fees, costs and expenses,
receiver's fees, costs and expenses, appraiser's fees, engineers' fees, outlays
for documentary and expert evidence, stenographers' charges, publication costs,
and costs (which may be estimates as to items to be expended after entry of said
order or judgment) of procuring all such abstracts of title, title searches and
examination, title insurance policies, Torrens' Certificates and similar data
and assurances with respect to the title as Lender may deem reasonably necessary
either to prosecute such civil action or to evidence to bidders at any sale
which may be had pursuant to such order or judgment the true condition of the
title to, or the value of, the Property (said expenditures and expenses are
hereinafter collectively referred to as the "REIMBURSABLE EXPENSES"). All
Reimbursable Expenses, and such costs, expenses and fees as may be incurred by
Lender at any time or times hereafter in the protection of the Property, in
enforcing the Obligations, and/or the maintenance of the lien established by any
of the Loan Documents, including accountants' and reasonable attorneys' fees,
costs and expenses in any advice, litigation, or proceeding affecting the Loan
Documents or the Property, whether instituted by Lender, Borrower or any other
party, or in preparation for the commencement or defense of any action or
proceeding or threatened action or proceeding, shall be immediately due and
payable to Lender by Borrower, with interest thereon at the Default Rate set
forth in the Note, and shall be secured by the Loan Documents. In addition,
Borrower shall be liable for the payment of all commissions and brokerage fees
relating to the Loan.
23. APPLICATION OF PROCEEDS OF FORECLOSURE SALE. The proceeds of any
foreclosure sale of the Property shall be distributed and applied in the order
of priority set forth in the Note with the excess, if any, being applied to any
parties entitled thereto as their rights may appear.
24. APPOINTMENT OF RECEIVER OR MORTGAGEE IN POSSESSION. If an Event of
Default is continuing or if Lender shall have accelerated the Indebtedness,
Lender, upon application to a court of competent jurisdiction, shall be entitled
as a matter of strict right, without notice, and without regard to the occupancy
or value of any security for the Indebtedness, without any showing of fraud or
mismanagement on the part of Borrower or the insolvency of any party bound for
its payment, to the
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appointment of a receiver or the immediate appointment of Lender to take
possession of and to operate the Property, and to collect and apply the rents,
issues, profits and revenues thereof.
25. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in
exercising any right or remedy under any of the Loan Documents, or otherwise
afforded by applicable law, shall not be a waiver of or preclude the exercise of
any right or remedy. Lender's acceptance of payment of any sum secured by any of
the Loan Documents after the due date of such payment shall not be a waiver of
Lender's right to either require prompt payment when due of all other sums so
secured or to declare a default for failure to make prompt payment. The
procurement of insurance or the payment of taxes or other liens or charges by
Lender shall not be a waiver of Lender's right to accelerate the maturity of the
Indebtedness, nor shall Lender's receipt of any awards, proceeds or damages
under Paragraph 5 hereof operate to cure or waive Borrower's default in payment
or sums secured by any of the Loan Documents. With respect to all Loan
Documents, only waivers made in writing by Lender shall be effective against
Lender.
26. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right
to assert any statute of limitations as a bar to the enforcement of the lien
created by any of the Loan Documents or to any action brought to enforce the
Note or any other obligation secured by any of the Loan Documents.
27. WAIVER OF HOMESTEAD AND REDEMPTION. Borrower hereby waives all
rights of homestead exemption in the Property. Borrower hereby waives all right
of redemption on behalf of Borrower and on behalf of all other persons acquiring
any interest or title in the Property subsequent to the date of this Mortgage,
except decree or judgment creditors of Borrower.
28. JURY TRIAL WAIVER. BORROWER AND LENDER BY ITS ACCEPTANCE OF THIS
MORTGAGE, EACH HEREBY WAIVES ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THE LOAN
DOCUMENTS AND THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED. THIS WAIVER
IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BY LENDER, AND
BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF OF
LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY
JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
BORROWER AND LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT BORROWER AND LENDER HAVE ALREADY RELIED
ON THIS WAIVER IN ENTERING INTO THE LOAN DOCUMENTS AND THAT EACH OF THEM WILL
CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER AND
LENDER FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THE LOAN DOCUMENTS AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL.
29. INDEMNIFICATION. In addition to any other indemnifications provided
in any of the other Loan Documents, Borrower shall, at its sole cost and
expense, protect, defend, indemnify, release and save harmless Lender or any
person or entity who is or will have been involved in the servicing of this
Loan, as well as the respective affiliates, subsidiaries, persons controlling or
under common control, directors, officers, shareholders, members, partners,
employees, agents, servants, representatives, contractors, subcontractors,
participants, successors and assigns of any and all of the foregoing
(collectively, the "INDEMNIFIED PARTIES"), from and against all liabilities,
obligations, claims, demands, damages, penalties, causes of action, losses,
fines, costs and expenses (including without limitation reasonable attorneys'
fees and expenses), imposed upon or incurred by or asserted against any of the
Indemnified Parties and directly or indirectly arising out of or in any way
relating to any one or more of the following: (a) ownership of this Mortgage,
the Property or any interest therein or receipt of any Rents; (b) any amendment
to, or restructuring of, the Indebtedness, the Note, this Mortgage or any other
Loan Documents; (c) any and all lawful action that may be taken by Lender in
connection with the enforcement of the provisions of this Mortgage or the Note
or any other Loan Documents, whether or not suit is filed in connection with
same, or in connection with Borrower or any Principal becoming a party to a
voluntary or
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involuntary federal or state bankruptcy, insolvency or similar proceeding; (d)
any accident, injury to or death of persons or loss of or damage to property
occurring in, on or about the Property or any part thereof or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(e) any failure on the part of Borrower to perform or comply with any of the
terms of this Mortgage; (f) performance of any labor or services or the
furnishing of any materials or other property in respect of the Property or any
part thereof; (g) any failure of the Property to comply with any laws or
ordinances affecting or which may be interpreted to affect the Property; or (h)
any representation or warranty made in the Note, this Mortgage or the other Loan
Documents being false or misleading in any respect as of the date such
representation or warranty was made. The obligations and liabilities of Borrower
under this Paragraph 29 (A) shall survive for a period of one (1) year following
any release of this Mortgage executed by Lender and satisfaction of the Loan
evidenced by the Loan Documents, and (B) shall survive the transfer or
assignment of this Mortgage, the entry of a judgment of foreclosure, sale of the
Property by nonjudicial foreclosure sale, or delivery of a deed in lieu of
foreclosure (including, without limitation, any transfer by Borrower of any of
its rights, title and interest in and to the Property to any party, whether or
not affiliated with Borrower); provided, however, that any act or omission
pursuant to subparagrahs (a) through (h) above was taken or occurred prior to
the payment in full of the Indebtedness. Notwithstanding the foregoing, Borrower
shall not be liable to Lender under the foregoing indemnity for damages or
injuries which result from or are caused by the intentional misconduct or gross
negligence of Lender.
30. DUTY TO DEFEND. Upon written request by an Indemnified Party,
Borrower shall defend such Indemnified Party (if requested by an Indemnified
Party, in the name of the Indemnified Party) by attorneys and other
professionals approved by the Indemnified Parties. Notwithstanding the
foregoing, any Indemnified Parties may, in their sole and absolute discretion,
engage their own attorneys and other professionals to defend or assist them,
and, at the option of the Indemnified Parties, their attorneys shall control the
resolution of the claim or proceeding. Upon demand, Borrower shall pay or, in
the sole and absolute discretion of the Indemnified Parties, reimburse, the
Indemnified Parties for the payment of reasonable fees and disbursements of
attorneys, engineers, and other professionals in connection therewith. Any
amounts payable to any of the Indemnified Parties by reason of the application
of Paragraph 29 or this Paragraph shall be secured by this Mortgage and shall
become immediately due and payable and shall bear interest at the Default Rate
specified in the Note from the date loss or damage is sustained by any of the
Indemnified Parties until paid.
31. ERISA. Borrower covenants and agrees that during the term of the
Loan, unless Lender shall have previously consented in writing, (a) Borrower
will take no action that would cause it to become an "employee benefit plan" as
defined in 29 C.F.R. Section 2510.3-101, or "assets of a governmental plan"
subject to regulation under the state statutes, and (b) Borrower will not sell,
assign or transfer the Property, or any portion thereof or interest therein, to
any transferee that does not execute and deliver to Lender its written
assumption of the obligations of this covenant. Borrower further covenants and
agrees to protect, defend, indemnify and hold Lender harmless from and against
all loss, cost, damage and expense (including without limitation, all attorneys'
fees and excise taxes, costs of correcting any prohibited transaction or
obtaining an appropriate exemption) that Lender may incur as a result of
Borrower's breach of this covenant. This covenant and indemnity shall survive
the extinguishment of the lien of this Mortgage by foreclosure or action in lieu
thereof; furthermore, the foregoing indemnity shall supersede any limitations on
Borrower's liability under any of the Loan Documents.
32. NO ORAL CHANGE. This Mortgage may not be modified, amended, waived,
extended, changed, discharged or terminated orally or by any act or failure to
act on the part of Borrower or Lender, but only by an agreement in writing
signed by the party against whom enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.
33. NOTICE. Except for any notice required under applicable law to be
given in another manner, (a) any notice to Borrower provided for in the Loan
Documents shall be given by mailing such notice by Federal Express or any other
overnight carrier addressed to Borrower at Borrower's address stated above or at
such other address as Borrower may designate by notice to Lender as provided
herein, and (b) any notice to Lender shall be given by Federal Express or any
other overnight carrier to
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Lender's address stated above or to such other address as Lender may designate
by notice to Borrower as provided herein. Any notice provided for in the Loan
Documents shall be deemed to have been given to Borrower or Lender on the first
business day following such mailing in the manner designated herein.
34. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS;
CAPTIONS. The covenants and agreements contained in the Loan Documents shall
bind, and the rights thereunder shall inure to, the respective successors and
assigns of Lender and Borrower, subject to the provisions of Paragraph 15
hereof. All covenants and agreements of Borrower shall be joint and several. In
exercising any rights under the Loan Documents or taking any actions provided
for therein, Lender may act through its employees, agents, or independent
contractors as authorized by Lender. The captions and headings of the paragraphs
of this Mortgage are for convenience only and are not to be used to interpret or
define the provisions hereof.
35. GOVERNING LAW; SEVERABILITY. THIS MORTGAGE SHALL BE GOVERNED BY,
CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN
WHICH THE PROPERTY IS LOCATED, WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES
OF SUCH STATE. IF ANY PROVISION OF THE LOAN DOCUMENTS CONFLICTS WITH APPLICABLE
LAW, SUCH CONFLICT SHALL NOT AFFECT OTHER PROVISIONS OF THE LOAN DOCUMENTS WHICH
CAN BE GIVEN EFFECT WITHOUT THE CONFLICTING PROVISIONS, AND TO THIS END THE
PROVISIONS OF THE LOAN DOCUMENTS ARE DECLARED TO BE SEVERABLE.
36. RELEASE. Upon payment of all sums secured by this Mortgage, Lender
shall release this Mortgage. Borrower shall pay Lender's reasonable costs
incurred in releasing this Mortgage and any financing statements related hereto.
37. COVENANTS RUNNING WITH THE LAND. All covenants, conditions,
warranties, representations and other obligations contained in this Mortgage and
the other Loan Documents are intended by Borrower and Lender to be, and shall be
construed as, covenants running with the Property until the lien of this
Mortgage has been fully released by Lender.
38. TERMS. As used in the Loan Documents, (i) "business day" means a
day when banks are not required or authorized to be closed in Chicago, Illinois;
and (ii) the words "include" and "including" shall mean "including but not
limited to" unless specifically set forth to the contrary.
39. LOSS OF NOTE. Upon notice from Lender of the loss, theft, or
destruction of the Note and upon receipt of indemnity reasonably satisfactory to
Borrower from Lender, or in the case of mutilation of the Note, upon surrender
of the mutilated Note, Borrower shall make and deliver a new note of like tenor
in lieu of the then to be superseded Note.
40. CHANGES IN THE LAWS REGARDING TAXATION. If any law is amended,
enacted or adopted after the date of this Mortgage which deducts the
Indebtedness from the value of the Property for the purpose of taxation or which
imposes a tax, either directly or indirectly, on the Indebtedness of Lender's
interest in the Property, Borrower will pay such tax, with interest and
penalties thereon, if any. In the event Lender is advised by counsel chosen by
it that the payment of such tax or interest and penalties by Borrower would be
unlawful or taxable to Lender or unenforceable or provide the basis for a
defense of usury, then in any such event, Lender shall have the option, by
written notice of not less than forty-five (45) days, to declare the
Indebtedness immediately due and payable.
41. EXCULPATION. This Mortgage and other Loan Documents and all of
Borrower's obligations hereunder and thereunder are subject to the provisions of
Paragraph 11 of the Note entitled Exculpation. All of the provisions of the
Note, including Paragraph 11, are incorporated herein by this reference.
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42. DISCLOSURE OF INFORMATION. Lender shall have the right (but shall
be under no obligation) to make available to any party for the purpose of
granting participation in or selling, transferring, assigning or conveying all
or any part of the Loan (including any governmental agency or authority and any
prospective bidder at any foreclosure sale of the Property) any and all
information which Lender may have with respect to the Property and Borrower,
whether provided by Borrower, any Principal or any third party or obtained as a
result of any environmental assessments. Borrower and each Principal agree that
Lender shall have no liability whatsoever as a result of delivering any such
information to any third party, and Borrower and each Principal, on behalf of
themselves and their successors and assigns, hereby release and discharge Lender
from any and all liability, claims, damages, or causes of action, arising out
of, connected with or incidental to the delivery of any such information to any
third party.
43. SALE OF LOAN; SECURITIZATION. Lender, at any time and without the
consent of Borrower or any Principal, may grant participation in or sell,
transfer, assign and convey all or any portion of its right, title and interest
in and to the Loan, the servicing of the Loan, this Mortgage and the other Loan
Documents, any guaranties given in connection with the Loan and any collateral
given to secure the Loan. Borrower covenants to cooperate with Lender's efforts
in the securitization of the Loan; such cooperation includes Borrower's
obligation to (a) make non-material modifications of the Loan Documents (such
modifications shall not increase the amount of the Indebtedness or change the
payment terms or interest rate), (b) provide additional information regarding
Borrower's financial statements, (c) deliver updated information regarding
Borrower and the Property, and (d) review Lender's securitization offering
materials to the extent such materials relate to Borrower, the Property or the
Loan and (e) respond to any inquiries of Lender or other party relating thereto.
Borrower agrees to represent and warrant the absence of misstatements and/or
omissions in the information relating to Borrower, the Property and the Loan
that is contained in the offering materials and which has been furnished to
Lender by Borrower or approved by Borrower. Borrower shall not be liable for
Lender's post-closing costs incurred pursuant to any securitization of the Loan
by Lender.
44. CONSTRUCTION OF OUTLOT PARCEL. Borrower has informed Lender that it
plans to enter into a ground lease with a proposed tenant (the "GROUND LEASE
TENANT") under which ground lease the Ground Lease Tenant shall be required to
construct a restaurant and related amenities on a portion of the Property (the
"OUTLOT PROJECT"). Lender will permit the development of the Outlot Project,
upon satisfaction of each of the following conditions precedent:
(a) Borrower shall provide Lender, as additional security for the
Loan, with either (i) an unconditional, irrevocable letter of
credit, satisfactory to Lender in its sole discretion from an
issuer with a claims payment rating of AA or better from
Standard & Poors Ratings Group (the "LETTER OF CREDIT"), or
(ii) good funds to be held by Lender or its agent in escrow,
in an amount equal to $432,000 (seven (7) annual payments of
rent to be paid by Ground Lease Tenant to Borrower),
(b) no Event of Default shall have occurred under the Loan
Documents and be continuing;
(c) The Outlot Project shall be completed within eighteen (18)
months from the date of the this Mortgage;
(d) The Outlot Project shall be acceptable to Lender in all
respects, including without limitation, the following:
(i) There has been no material adverse change in or to
the financial or credit position of the proposed
Ground Lease Tenant;
(ii) The ground lease shall be executed by Ground Lease
Tenant in substantially the same form as submitted to
Lender prior to the date hereof;
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(iii) To the extent Borrower has approval rights, all plans
and specifications, construction contract and the
general contractor shall be acceptable to Lender in
all respects, and Lender shall approve such plans and
specifications, construction contract and general
contractor prior to construction; and
(iv) the Property, after giving effect to the construction
of the Outlot Project, will (and evidence thereof
shall be provided to Lender) (1) comply with all
zoning ordinances, including without limitation those
related to parking, lot size and density, or a
variance with respect thereto shall have been
obtained, and (2) comply with all subdivision
ordinances and regulations.
(e) Borrower shall pay Lender's reasonable costs and expenses
(including, without limitation, Lender's attorney's fees and costs) incurred in
connection with Lender's review and approval of the Outlot Project;
(f) Borrower shall deliver to Lender evidence of hazard and liability
insurance, and other items of due diligence with respect to the Outlot Project
as Lender shall require;
(g) Borrower shall comply with any terms and conditions as any Rating
Agencies shall require in connection with such development provided that those
requirements do not effect the economic terms of the Loan;
(h) Borrower shall deliver or take, as the case may be, any other items
or actions reasonably requested by Lender or Lender's counsel; and
(i) Lender shall be entitled, pursuant to the provisions of this
Mortgage, to make inspections of the Outlot Project from time to time.
Borrower shall cause the completion of the construction thereof in the time
frames provided in the materials submitted to Lender, and according to the plans
and specifications submitted to Lender. Such construction shall be in compliance
with all building codes, shall not have a material, adverse impact on any of the
tenants on the Property, shall not result or give rise to a default under or the
termination of any Leases, and shall be free of any liens. Upon completion of
construction, Borrower shall deliver to Lender (i) an as-built survey of the
Property showing such completed construction, (ii) an endorsement to the title
policy delivered to Lender in connection with the Loan, updated through the
completion of construction and free of any exceptions not acceptable to Lender,
(iii) any UCC and lien searches requested by Lender, (iv) copies of certificates
of occupancy for the completed construction, and (v) evidence that the Ground
Lease Tenant is in physical and economic occupancy under the terms of its lease.
Upon Lender's receipt of satisfactory evidence of the immediately preceding
items (i) through (v) (the "EVIDENCE OF COMPLETION"), Lender shall release the
Letter of Credit as additional security for the Loan.
In the event that Lender shall at any time determine that Borrower or the Ground
Lease Tenant has abandoned the Outlot Project prior to physical and economic
occupancy by the Ground Lease Tenant, or is unable to provide satisfactory
evidence to Lender of the Evidence of Completion within eighteen (18) months
from the date of this Mortgage, Lender shall have the right to draw down on the
Letter of Credit and apply such funds to the payment of the Indebtedness and
Borrower shall be required to pay the Yield Maintenance Amount as set forth in
Paragraph 3.2 of the Note. Provided that there is not then in existence any
Event of Default under the Note or Mortgage, Lender shall give written notice to
Borrower at least five (5) Business Days prior to Lender drawing on the Letter
of Credit.
45. CASH MANAGEMENT ARRANGEMENTS. As of the date of Closing, Cash
Management Arrangements have been established that, while not funded at Closing,
upon the occurrence of a monetary Event of Default by Borrower will provide for
the collection and deposit of all receipts with respect to the Property into a
separate "LOCKBOX" account (to be established in Borrower's name but under the
Lender's control) with a bank acceptable to the Lender (the "CLEARING BANK"),
through which all
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of those receipts will be cleared. After a monetary Event of Default, Borrower
will be required to notify each tenant and account debtor to remit (or wire
directly) all amounts due directly to a Clearing Bank lock box and all receipts
will be deposited into and cleared through that lockbox account. All direct
receipts by Borrower will be required to be deposited into the lockbox account
within one Business Day. As they are cleared, receipts will be transferred by
the Clearing Bank to a "CASH COLLATERAL ACCOUNT" established by and under
Lender's control at a bank of its choice (the "DEPOSIT BANK"), which will
allocate those funds into separate accounts established for each of the various
payments and reserves required under the Loan.
46. ACTIONS AND PROCEEDINGS. Lender has the right to appear in and
defend any action or proceeding brought with respect to the Property and to
bring any action or proceeding, in the name and on behalf of Borrower, which
Lender, in its discretion, decides should be brought to protect their respective
interests in the Property. Lender, at its option, shall be subrogated to the
lien of any mortgage or other security instrument discharged in whole or in
party by the Indebtedness, and any such subrogation rights shall constitute
additional security for the payment of the Indebtedness.
47. NO THIRD PARTY BENEFICIARIES. The provisions of this Mortgage and
the other Loan Documents are for the benefit of Borrower and Lender and shall
not inure to the benefit of any third party (other than any successor or
assignee of Lender). This Mortgage and the other Loan Documents shall not be
construed as creating any rights, claims or causes of action against Lender or
any of its officers, directors, agents or employees in favor of any party other
than Borrower including but not limited to any claims to any sums held in the
Replacement Reserve or the TI and Leasing Reserve.
48. EXHIBITS AND RIDERS. The following Exhibits and Riders (which may
contain additional representations, warranties, and covenants) are attached to
this Mortgage and hereby made a part of this Mortgage: Exhibit A (legal
description for Land) Exhibit B (definition of Personal Property), and Exhibit C
(pending and threatened litigation).
49. COUNTERPARTS. This Mortgage may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
PART II
SPECIAL MICHIGAN PROVISIONS
50. INCONSISTENCIES. In the event of any inconsistencies between the
terms and conditions of Part I and Part II of this Mortgage, the terms of Part
II shall control and be binding.
51. WASTE. Borrower's failure to pay taxes and/or assessments assessed
against the Premises, or any installment thereof, or any insurance premium upon
policies covering the Premises or any part thereof, shall constitute waste
(although the meaning of the term "waste" shall not necessarily be limited to
the non-payment of those items), as provided by Act No. 236 of the Public Acts
of Michigan of 1961, as amended, and shall entitle Lender to all remedies
provided therein. Borrower further agrees to and does hereby consent to the
appointment of a receiver under that statute, in the event that Lender elects to
seek a receiver thereunder.
52. POWER OF SALE. THIS MORTGAGE CONTAINS A POWER OF SALE AND, UPON
THE OCCURRENCE OF AN EVENT OF DEFAULT HEREUNDER, MAY BE FORECLOSED BY
ADVERTISEMENT UNDER THE PROVISIONS OF MCLA 600.3201 (OR ANY SUCCESSOR
PROVISION). IN SUCH A FORECLOSURE BY ADVERTISEMENT, NO HEARING IS INVOLVED AND
THE ONLY NOTICE REQUIRED IS PUBLICATION OF A FORECLOSURE NOTICE IN A LOCAL
NEWSPAPER AND POSTING OF A COPY OF THE NOTICE UPON THE PROPERTY. IF THIS
MORTGAGE IS FORECLOSED BY SUCH A SALE BY ADVERTISEMENT, BORROWER HEREBY
VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY WAIVES ALL RIGHTS UNDER THE
CONSTITUTION AND THE LAWS OF THE STATE OF MICHIGAN AND THE CONSTITUTION AND LAWS
OF THE UNITED STATES OF AMERICA IN CONNECTION WITH SAID FORECLOSURE BY
ADVERTISEMENT TO (A) ANY NOTICE OF SALE, (B) A HEARING PRIOR TO SALE, EXCEPT AS
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SET FORTH IN FORESAID STATUTE, OR (C) ANY OTHER RIGHT BORROWER MIGHT OTHERWISE
HAVE TO REQUIRE A JUDICIAL FORECLOSURE.
53. ASSIGNMENT OF RENTS AND LEASES. The following provisions supplement
the provisions of this Mortgage with respect to the Assignment of Leases and
Rents:
(a) Included Rights and Property. The Property includes (without
limitation upon the description of the Property in the foregoing provisions of
this Mortgage) (i) all rents, issues, profits, income, proceeds and security
deposits (in accordance with Act No. 210 of the Michigan Public Acts of 1953 as
amended by Act No. 151 of the Michigan Public Acts of 1966 [MCLA 554.231 et
seq.] and to the extent applicable Act No. 228 of the Michigan Public Acts of
1925 [MCLA 554.211 et seq.], and (ii) all or any part of the oil and gas located
in, on or under oil and gas properties, and all or any of the rents and profits
from oil and gas properties, and the income from the sales of oil and gas
produced or to be produced form oil and gas properties (in accordance with Act
No. 66 of the Michigan Public Acs of 1956 [MCLA 565.81 et seq.]).
(b) Lender's Rights. Lender shall be entitled to all the rights and
remedies conferred by (MCLA 554.231, et seq.), (MCLA 554.211, et seq.) to the
extent applicable, and (MCLA 554.81, et seq.).
(c) Notice of Absolute Assignment. BORROWER ACKNOWLEDGES AND AGREES
THAT THE ASSIGNMENT OF RENTS TO LENDER UNDER THIS MORTGAGE IS AND IS INTENDED TO
BE AN ABSOLUTE PRESENT ASSIGNMENT OF RENTS PURSUANT TO MCLA 554.231 ET SEQ.,
MCLA 565.81 ET SEQ, AND TO THE EXTENT APPLICABLE MCLA 554.211 ET SEQ. As such,
upon the occurrence of an Event of Default and without any action by Lender,
Borrower shall have no further right to collect or otherwise receive such Rents,
which will be the absolute and sole property of Lender pursuant to those
statutes.
(d) Waiver of Notice of Exercise of Assignment of Rents. BORROWER
HEREBY WAIVES ANY RIGHT TO NOTICE OF ASSIGNMENT OF RENTS, OTHER THAN SUCH NOTICE
AS MAY BE PROVIDED IN ACT 210 OF THE PUBLIC ACTS OF MICHIGAN OF 1953 AND ACT 66
OF THE PUBLIC ACTS OF MICHIGAN OF 1956, EACH AS AMENDED OR SUPERSEDED, AND
WAIVES ANY RIGHT TO ANY HEARING, JUDICIAL OR OTHERWISE, PRIOR TO LENDER'S
EXERCISE OF ITS RIGHTS UNDER THIS MORTGAGE AND/OR THE ASSIGNMENT WITH RESPECT TO
THE ASSIGNMENT OF RENTS GRANTED TO LENDER HEREUNDER OR UNDER THE SEPARATE
ASSIGNMENT OF RENTS AND LEASES GRANTED TO LENDER IN CONNECTION WITH THIS
MORTGAGE.
54. RIGHT TO DEEM ALL OF PROPERTY AS REAL PROPERTY. IN ANY SALE OF THE
PROPERTY MADE PURSUANT TO THIS MORTGAGE, LENDER, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, MAY ELECT TO DEEM ALL OF THE PROPERTY TO BE REAL PROPERTY FOR
PURPOSES THEREOF.
55. FUTURE ADVANCE MORTGAGE. This Mortgage is a "Future Advance
Mortgage" under MCLA 565.901 et seq. All future advances under the Note, this
Mortgage and the other Loan Documents shall have the same priority as if the
future advance was made on the date that this Mortgage was recorded. Notice is
hereby given that the Indebtedness secured hereby may increase as a result of
defaults hereunder by Borrower, which may include (but are not limited to)
unpaid interest or late charges, unpaid taxes, assessments or insurance premiums
which Lender elects to advance, defaults under Leases that Lender elects to
cure, attorney fees or costs incurred in enforcing the Loan Documents, or other
expenses incurred by Lender in protecting the Property, the security of this
Mortgage or Lender's rights and interests. The unpaid Indebtedness (inclusive of
all such future advances), together with all accrued but unpaid interest thereon
as provided in the Note and this Mortgage, will be paid on the Maturity Date of
the Note (if not required to be paid prior to that time by any other provisions
of the Note, this Mortgage and/or the other Loan Documents).
56. POSSESSION. In connection with Lender's right to possession of the
Property, Borrower acknowledges that it has been advised that there is a
significant body of law in Michigan which purportedly provides that in the
absence of a showing of waste of a character sufficient to endanger the value of
the Property (or of other special factors) a person in the role of Borrower is
entitled to remain in possession of the Property and to enjoy the earnings,
revenues, rents, issues, profits and income of the
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Property during the pendency of foreclosure proceedings and until the expiration
of the redemption period, notwithstanding that the Mortgage expressly provides
to the contrary. Borrower further acknowledges that it has been advised that
Lender considers that the value of the security granted hereby is inextricably
intertwined with the effectiveness of the management, maintenance and general
operation of the Property and that Lender would not make the loan secured hereby
unless it could be assured that it would have the right to take possession of
the Property and manage or control management thereof and enjoy the earnings,
revenues, rents, issues, profits and income of the Property therefrom
immediately upon an Event of Default notwithstanding that foreclosure
proceedings may not have been instituted or are pending or that the redemption
period, if any, may not have expired. Borrower hereby knowingly, intelligently
and voluntarily waives all rights to possession of the Property from and after
the occurrence of an Event of Default and upon demand for possession by Lender
Borrower agrees not to assert any objection or defense to Lender's request or to
petition to a court for possession, and hereby conferred to the appointment of a
receiver for the Property. The rights hereby conferred upon Lender have been
agreed upon prior to the occurrence of an Event of Default and the exercise by
Lender of these rights shall not be deemed to put Lender in the status of a
"Lender in possession". Borrower acknowledges that this provision is material to
this transaction and that Lender would not make the loan secured hereby but for
this paragraph.
IN WITNESS WHEREOF, Borrower has executed this Mortgage or has caused
the same to be executed by its representatives thereunto duly authorized.
WITNESSED: BORROWER:
RAMCO MADISON CENTER LLC, a Michigan
limited liability company by its sole
Member, Ramco-Xxxxxxxxxx Properties,
L.P., a Delaware limited partnership
_____________________________ By: __________________________________
Xxxxxx Xxxxxxxxxx, President of and on
behalf of Ramco-Xxxxxxxxxx Properties
Trust, a Maryland real estate
investment trust, General Partner
_____________________________
STATE OF MICHIGAN }ss
COUNTY OF OAKLAND
The foregoing instrument was acknowledged before me this March __, 2001, by
Xxxxxx Xxxxxxxxxx, President of and on behalf of Ramco-Xxxxxxxxxx Properties
Trust, a Maryland real estate investment trust, the general partner of
Ramco-Xxxxxxxxxx Properties, L.P., a Delaware limited partnership, the sole
Member of Ramco Madison Center LLC, a Michigan limited liability company.
_____________________________________________
Notary Public, Oakland County, Michigan
My Commission Expires: __________________
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EXHIBIT A
LEGAL DESCRIPTION
PARCEL 1A:
A parcel of land in the Southeast 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 00
Xxxx, Xxxx of Madison Heights, Oakland County, Michigan, being more particularly
described as: Beginning at a point on the South line of Section 11, and the
centerline of Twelve Mile Road (120 feet wide) xxx Xxxx 253.00 feet from the
Southeast corner of Section 11, Town 1 North, Range 11 East, thence continuing
along said South line, xxx Xxxx 90.00 feet; thence North 00(Degree) 17' 36"
East, 241.00 feet; thence xxx Xxxx 275.00 feet; thence South 00(Degree) 17' 36"
West, 241.00 feet to the South line of Section 11; thence along said South line
xxx Xxxx 24.66 feet; thence North 00(Degree) 27' 12" East, 1720.04 feet; thence
North 85(Degree) 41' 15" East, 639.90 feet to the East line of Section 11 and
the centerline of Xxxx R Road (106 feet wide); thence along said line South
00(Degree) 17' 36" West, 863.29 feet; thence xxx Xxxx 310.00 feet; thence South
00(Degree) 17' 36" West, 90.00 feet; thence due East, 310.00 feet to said East
line; thence South 00(Degree) 17' 36" West, 474.82 feet; thence xxx Xxxx 253.00
feet; thence South 00(Degree) 17' 36" West, 340.00 feet to the Point of
Beginning, EXCEPT the Northerly portion thereof deeded to the County of Oakland
and described as follows: Commencing at the Southeast corner of Section 11, Town
1 North, Range 11 East; thence xxx Xxxx along the South line of Section 11, a
distance of 642.66 feet; thence North 00(Degree) 27' 12" East, 1477.81 feet to
the Point of Beginning of this exception; thence North 00(Degree) 27' 12" East,
242.23 feet; thence North 85(Degree) 41' 15" East, 639.90 feet to the East line
of Section 11 and the center line of Xxxx R Road (106 feet wide); thence along
said line South 00(Degree) 17' 36" West, 247.34 feet; thence South 86(Degree)
08' 54" West, 640.19 feet to the Point of Beginning of this exception.
PARCEL 1B:
A parcel of land in the Southeast 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 00
Xxxx, Xxxx of Madison Heights, Oakland County, Michigan, being more particularly
described as: Beginning at the Southeast corner of Section 11, Town 1 North,
Range 11 East; thence xxx Xxxx along the South line of Section 11, and the
centerline of Twelve Mile Road (120 feet wide), 253.00 feet; thence North
00(Degree) 17' 36" East, 340.00 feet; thence due East 253.00 feet to the East
line of Section 11; thence South 00(Degree) 17' 36" West, along the said East
line and the centerline of Xxxx R Road (120 feet wide), 340.00 feet to the Point
of Beginning.
THE ABOVE PARCELS 1A AND 1B ARE ALSO DESCRIBED AS FOLLOWS:
Part of the Southeast 1/4 of Section 11, Town 1 North, Range 11 East, beginning
at the Southeast Section corner; thence West 642.66 feet; thence North
00(Degree) 27' 12" East, 1477.81 feet; thence North 83(Degree) 57' 31" East,
640.01 feet; thence South 00(Degree) 17' 36" West, 615.95 feet; thence xxx Xxxx
310 feet; thence South 00(Degree) 17' 36" West, 90 feet; thence East 310 feet;
thence South 00(Degree) 17' 36" West, 814.82 feet to beginning. EXCEPT beginning
at a point distant West 343 feet from the Southeast corner; thence West 275
feet; thence North 00(Degree) 17' 36" East, 241 feet; thence East 275 feet;
thence South 00(Degree) 17' 36" West, 241 to beginning.
PARCEL 2:
Part of the Southeast 1/4 of the Southeast 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx,
Xxxxx 00 Xxxx, Xxxx of Madison Heights, Oakland County, Michigan, more
particularly described as follows: Beginning at a point distant North 00(Degree)
35' 59" East, 814.82 feet from the Southeast corner; thence West 310.00 feet;
thence North 00(Degree) 35' 59" East, 90.00 feet; thence East 310.00 feet;
thence South 00(Degree) 35' 59" West, 90.00 feet to beginning.
TOGETHER WITH an appurtenant easement for parking purposes as set forth in that
Cross Easement and Reciprocal Parking Agreement recorded in the Oakland County
Register of Deeds on August 14, 1987 at Liber 10063 Page 857.
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EXHIBIT B
THE PERSONAL PROPERTY
As used herein, the following items, to the extent owned by the
Borrower, are referred to as the "PERSONAL PROPERTY":
(a) All apparatus, machinery, devices, fixtures, communication devices,
systems and equipment, fittings, appurtenances, equipment, appliances,
furniture, furnishings, appointments, accessories, landscaping, plants and all
other items of personal property located at the Land Improvements (as defined in
the Mortgage to which this Exhibit B is attached) (collectively the "PROPERTY")
or used in the operation or maintenance of the Property or any business or
operation conducted thereon. All fixtures and equipment now or hereafter
installed for use in the operation of the buildings, structures and improvements
now or hereafter on the Property, including but not limited to, all lighting,
heating, cooling, ventilating, air-conditioning, plumbing, sprinkling,
incinerating, refrigerating, air-cooling, lifting, fire extinguishing, cleaning,
entertaining, security, communicating and electrical and power systems, and the
machinery, appliances, fixtures and equipment pertaining thereto, all awnings,
ovens, stoves, refrigerators, dishwashers, disposals, carpeting, switchboards,
engines, motors, tanks, pumps, screens, storm doors and windows, shades, floor
coverings, ranges, washers, dryers, cabinets, furniture, partitions, conduits,
ducts and compressors, and all elevators and escalators and the machinery and
appliances, fixtures and equipment pertaining thereto, other than any such items
that are owned by tenants of all or any portion of the Property;
(b) Any and all revenues, receivables and income now owned or hereafter
acquired and arising from or out of the Property and/or the businesses and
operations conducted thereon;
(c) Any and all other personal property of any kind, nature or
description, whether tangible or intangible, (including without limitation, any
and all goods, accounts, contract rights, franchises, licenses, permits, chattel
paper, money, documents, instruments and general intangibles) of Borrower
arising from, relating to or used in connection with the operation or
maintenance of the Property, whether now owned or hereafter acquired, or in
which Borrower now has or shall hereafter acquire any right, title or interest
whatsoever (whether by xxxx of sale, lease, conditional sales contract, or other
title retention document or otherwise);
(d) All awards or payments, including interest thereon, that may
heretofore and hereafter be made with respect to the Property, whether from the
exercise of the right of eminent domain or condemnation (including, without
limitation, any transfer made in lieu of or in anticipation of the exercise of
said rights), or for a change of grade, or for any other injury to or decrease
in the value of the Property;
(e) All refunds, rebates or credits in connection with a reduction in
real estate taxes and assessments charged against the Property as a result of
tax certiorari or any application or proceedings for reduction;
(f) All proceeds of and any unearned premiums on any insurance policies
covering the Property, including, without limitation, the right to receive and
apply the proceeds of any insurance, judgments, or settlements made in lieu
thereof, for damage to the Property;
(g) All accounts, escrows, impounds, reserves, documents, instruments,
chattel paper, claims, deposits and general intangibles, as the foregoing terms
are defined in the Uniform Commercial Code, and all franchises, trade names,
trademarks, symbols, service marks, books, records, plans, specifications,
designs, drawings, permits, consents, licenses (including liquor licenses, to
the extent assignable), license agreements, operating contracts, contract rights
(including, without limitation, any contract with any architect or engineer or
with any other provider of goods or services for or in connection with any
construction, repair, or other work upon the Property) and all management,
franchise, service, supply and maintenance contracts and agreements, and any
other agreements, permits or contracts of any nature whatsoever now or hereafter
obtained or entered into by the Borrower with respect to the
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operation or ownership of the Property; and all approvals, actions, refunds of
real estate taxes and assessments (and any other governmental impositions
related to the Land); and all causes of action that now or hereafter relate to,
are derived from or are used in connection with the Property, or the use,
operation, maintenance, occupancy or enjoyment thereof or the conduct of any
business or activities thereon; and
(h) All additions and accessories to any of the foregoing, all
proceeds, products, offspring, rents and profits from any of the foregoing,
including, without limitation, those from sale, exchange, transfer, collection,
loss, damage, renewal, disposition, substitution or replacement of any of the
foregoing, and all of the books and records pertaining to any of the foregoing.
Secured Party: LASALLE BANK NATIONAL ASSOCIATION
Secured Party's Address: 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000
Attention: Managing Director, Real Estate Capital Markets 48009
Borrower: RAMCO MADISON CENTER LLC
Borrower's Address: 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000
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EXHIBIT C
PENDING AND THREATENED LITIGATION
-------------------------------------------------------------------------------------------------------------------
1. Oakland County Litigation - Xxxxxx X. Xxxxxxxxxx Case No. 98-005149 NO. Date filed 4-6-98 Consent
vs. Ramco Xxxxxxxxxx Properties Judgment granted 8-20-99 Dismissed with prejudice
9-24-99
-------------------------------------------------------------------------------------------------------------------
2. Oakland County Litigation - Ramco Xxxxxxxxxx Case No: 97-000219 CK. Date filed 10-8-97. Final
Properties vs. X X Xxxx Allis WI II Inc. Disposition 1-12-98. Case reassigned to Judge
Schnelz 12-20-99
-------------------------------------------------------------------------------------------------------------------
3. Oakland County Litigation - Ramco-Xxxxxxxxxx Case No: 97-540761 CK. Date filed 3-21-97. Show
Properties vs. Hit or Miss Inc. Cause: Failure to Serve 6-25-97. Dismissal
granted 6-27-97.
-------------------------------------------------------------------------------------------------------------------
4. Oakland County Litigation - Ramco Xxxxxxxxxx Case No: 97-552579 CK. Date filed 9-29-97.
Properties vs. House Blinds & More Inc. Dismissal granted: 11-21-97
-------------------------------------------------------------------------------------------------------------------
5. Oakland County Litigation - Ramco Xxxxxxxxxx Case No: 97-552580 CK. Date filed 9-29-97.
Properties vs. Picture Perfect Novi Inc. Notice of Default Judgment filed and sent 4-27-98.
-------------------------------------------------------------------------------------------------------------------
6. Oakland County Litigation - Ramco Xxxxxxxxxx Case No: 98-004192 CH. Date filed: 2-26-98.
Properties vs. Great Lakes Concession I Change to 00xx Xxxxxxxx Xxxxx 2-3-99
-------------------------------------------------------------------------------------------------------------------
7. Oakland County Litigation - Xxxxxxxxx Xxxxx vs. Case No: 98-004212 CK. Date filed 2-27-98.
Ramco Kentwood Associates, et al Dismissal granted 7-15-98. File transferred to
Court of Appeals 4-27-99.
-------------------------------------------------------------------------------------------------------------------
8. Oakland County Litigation - Ramco Xxxxxxxxxx Case No: 99-015485 CK. Date filed 6-16-99.
Properties vs. Gap Inc. Dismissal granted 9-23-99
-------------------------------------------------------------------------------------------------------------------
9. Oakland County Litigation - Ramco Xxxxxxxxxx Case No: 96-511201 CK. Date filed 1-8-96. Default
Properties vs. Mazel Associates Judgment granted by Clerk 2-5-96.
-------------------------------------------------------------------------------------------------------------------
10. Oakland County Litigation - Ramco Xxxxxxxxxx Case No: 00-025502 CK. Date filed 8-22-00.
Properties vs. Somerville SC Associates Scheduling Order issued 11-5-00
-------------------------------------------------------------------------------------------------------------------
11. Oakland County Litigation - Ramco Xxxxxxxxxx Case No: 00-025646 CK. Date filed 8-28-00. Proof
Properties vs. TK Holdings Inc., et al. of Service on Summons filed 12-4-00. Default
Judgment filed and Affidavit and Default filed
01-02-01.
-------------------------------------------------------------------------------------------------------------------
12. Oakland County Litigation - Ramco Xxxxxxxxxx Case No: 00-025647 CK. Date filed 8-28-00.
Properties vs. Twist & Shout Default Judgment entered by Clerk to Twist & Shout
10-20-00
-------------------------------------------------------------------------------------------------------------------
13. Oakland County Litigation - Circuit City Stores, Case No. 01-029726-CK. Date filed 02-21-01.
Inc. vs. Ramco-Xxxxxxxxxx Properties LP and Tel-Twelve
Mall
-------------------------------------------------------------------------------------------------------------------
14. Oakland County Litigation -- Circuit City Stores, Case No. 01-029725-CK. Date filed 02-21-01.
Inc. vs. Ramco-Xxxxxxxxxx Properties LP, West Oaks
Development Company and West Oaks I Shopping Center
-------------------------------------------------------------------------------------------------------------------
15. Oakland County Litigation - Xxxxxx Xxxxxx vs. Kmart Case No. 00-026515-NO. Date filed 10-04-00. Order
Corporation and Xxxx Xxx filed to Compel Answers to Interrogatories filed
03-06-01.
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16. On going Internal Revenue Service tax liability
inquiry with respect to Principal's general partner
as disclosed in its Annual Statement form 10-K filing
with the United States Securities and Exchange
Commission.
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