Loan No. 400030964
SECOND MORTGAGE AND SECURITY AGREEMENT
THIS SECOND MORTGAGE AND SECURITY AGREEMENT, (as the same may from time to
time be extended, renewed or modified, the "Mortgage"), is granted as of the 14
day of August 1998, by JAGI XXXXXXXXX - XXXXXX, LLC, a Delaware limited
liability company ("Mortgagor"), having its principal place of business at 0000
Xxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000, to AMRESCO CAPITAL, L.P., a Delaware
limited partnership ("Mortgagee"), having its principal place of business at 000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, XX 000, Xxxxxx, Xxxxx 00000-0000, Attention:
Loan Servicing, the mortgagee hereunder.
RECITALS
A. Mortgagor is justly indebted unto the Mortgagee under that certain Note,
dated of even date herewith, made by Mortgagor and payable to the order of
Mortgagee in the principal amount of $13,300,000 (as now or hereafter amended,
restated, modified, substituted, or replaced, the "First Note").
B. The First Note is secured, inter alia, by a Mortgage and Security
Agreement, of even date herewith, executed by Mortgagor in favor of Mortgagee,
and filed for record in Summit County, Ohio, prior to this Mortgage (as now or
hereafter amended, restated, modified, substituted, or replaced, the "First
Mortgage").
C. Mortgagee, Mortgagor, JAGI Cleveland - Independence, LLC, an Ohio
limited liability company ("JAGI Independence"), JAGI Montrose West, LLC, an
Ohio limited liability company ("JAGI Montrose"), and JAGI North Canton, LLC, an
Ohio limited liability company ("JAGI Canton"), have entered into a Loan
Agreement, also dated of even date herewith (the "Loan Agreement"), whereby
Mortgagee agreed to lend an aggregate $44,000,000 to Mortgagor, JAGI
Independence, JAGI Montrose, and JAGI Canton, evidenced by the First Note and by
three other notes (the "Other Notes"), all of even date herewith, payable to the
order of Mortgagee in the aggregate principal amount of $30,700,000, one being
made by JAGI Independence in the principal amount of $21,800,000, one being made
by JAGI Montrose in the principal amount of $3,500,000, and one being made by
JAGI Canton in the principal amount of $5,400,000.
D. Mortgagee has required Mortgagor to grant this Mortgage as a condition
to making the $44,000,000 loan pursuant to the Loan Agreement.
NOW, THEREFORE, to secure (i) the payment of an indebtedness in the
original principal sum of Thirty Million Seven Hundred Thousand and No/100
Dollars ($30,700,000), lawful money of the United States of America, to be paid
with interest according to the Other Notes, and all other sums, liabilities and
obligations constituting the Debt (as defined in the Other Notes), (ii) the
payment of all sums advanced or incurred by Mortgagee contemplated hereby, and
(iii) the performance of the obligations and covenants herein contained,
Mortgagor has mortgaged, given, granted, bargained, sold, alienated, enfeoffed,
conveyed, confirmed, warranted, pledged, assigned, and hypothecated and by these
presents does hereby mortgage, give, grant, bargain, sell, alien, enfeoff,
convey, confirm, warrant, pledge, assign and hypothecate unto Mortgagee the real
property described in Exhibit A attached hereto (the "Premises") and the
buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter located
thereon (the "Improvements");
TOGETHER WITH: all right, title, interest and estate of Mortgagor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements together with the
following property, rights, interests and estates being hereinafter described
are collectively referred to herein as the "Mortgaged Property"):
(a) all easements, rights-of-way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights
and powers, air rights and development rights, and all estates, rights,
titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the
Premises, to the center line thereof and all the estates, rights, titles,
interests, dower and rights of dower, curtesy and rights of curtesy,
property, possession, claim and demand whatsoever, both at law and in
equity, of Mortgagor of, in and to the Premises and the Improvements and
every part and parcel thereof, with the appurtenances thereto;
(b) all machinery, furnishings, equipment, fixtures (including but not
limited to all heating, air conditioning, plumbing, lighting,
communications and elevator fixtures) and other personal property of every
kind and nature (hereinafter collectively called the "Equipment"), whether
tangible or intangible, whatsoever owned by Mortgagor, or in which
Mortgagor has or shall have an interest, now or hereafter located upon the
Premises and the Improvements, or appurtenant thereto, and usable in
connection with the present or future operation and occupancy of the
Premises and the Improvements, including without limitation, beds, bureaus,
chiffonniers, chests, chairs, desks, lamps, mirrors, bookcases, tables,
rugs, carpeting, drapes, draperies, curtains, shades, venetian blinds,
screens, paintings, hangings, pictures, divans, couches, luggage carts,
luggage racks, stools, sofas, chinaware, linens, pillows, blankets,
glassware, foodcarts, cookware, dry cleaning facilities, dining room
wagons, keys or other entry systems, bars, bar fixtures, liquor and other
drink dispensers, icemakers, radios, television sets, cable t.v. equipment,
intercom and paging equipment, electric and electronic equipment, dictating
equipment, private telephone systems, medical equipment, potted plants,
heating, lighting and plumbing fixtures, fire prevention and extinguishing
apparatus, fittings, plants, apparatus, stoves, ranges, refrigerators,
cutlery and dishes, laundry machines, tools, machinery, engineers, dynamos,
motors, boilers, incinerators, washers and dryers, other customary hotel
equipment, and all building equipment, materials and supplies of any nature
whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an
interest, now or hereafter located upon the Premises and the Improvements,
or appurtenant thereto, or usable in connection with the present or future
operation, enjoyment and occupancy of the Premises and the Improvements,
including the proceeds of any sale or transfer of the foregoing, and the
right, title and interest of Mortgagor in and to any of the Equipment which
may be subject to any security interests, as defined in the Uniform
Commercial Code, as adopted and enacted by the State or States where any of
the Mortgaged Property is located (the "Uniform Commercial Code") superior
in lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Premises 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 Premises and
Improvements;
(d) all leases, subleases and other agreements affecting the use,
enjoyment or occupancy of the Premises and the Improvements heretofore or
hereafter entered into (including, without limitation, any and all security
interests, contractual liens and security deposits) (the "Leases") and all
income, rents, issues, profits and revenues (including all oil and gas or
other mineral royalties and bonuses) from the Premises and the
Improvements, including, without limitation, all revenues and credit card
receipts collected from guest rooms, restaurants, bars, meeting rooms,
banquet rooms and recreational facilities, all receivables, customer
obligations, installment payment obligations and other obligations now
existing or hereafter arising or created out of the sale, lease, sublease,
license, concession or other grant of the right of the use and occupancy of
property or rendering of services by Mortgagor or any operator or manager
of the hotel or the commercial space located in the Improvements or
acquired from others (including, without limitation, from the rental of any
office space, retail space, guest rooms or other space, halls, stores, and
offices, and deposits securing reservations of such space), license, lease,
sublease and concession fees and rentals, health club membership fees, food
and beverage wholesale and retail sales, service charges, vending machine
sales and proceeds, if any, from business interruption or other loss of
income insurance (the "Rents") and all proceeds from the sale or other
disposition of the Leases and the right to receive and apply the Rents to
the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without limitation,
the right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Mortgaged Property;
(f) the right, in the name and on behalf of Mortgagor, to appear in
and defend any action or proceeding brought with respect to the Mortgaged
Property and to commence any action or proceeding to protect the interest
of Mortgagee in the Mortgaged Property;
(g) all accounts, escrows, documents, instruments, chattel paper,
claims, deposits and general intangibles, as the foregoing terms are
defined in the Uniform Commercial Code, and all contract rights,
franchises, books, contracts, certificates, records, plans, specifications,
permits, licenses (to the extent assignable), approvals, actions, and
causes of action which now or hereafter relate to, are derived from or are
used in connection with the Premises, or the use, operation, construction,
management, maintenance, occupancy or enjoyment thereof or the conduct of
any business or activities thereon (hereinafter collectively called the
"Intangibles"); and
(h) all refunds, rebates or credits in connection with a reduction in
real estate taxes and assessments charged against the Mortgaged Property as
a result of tax certiorari or any application or proceedings for reduction;
(i) 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
(j) any and all proceeds and products of any of the foregoing and any
and all other security and collateral of any nature whatsoever, now or
hereafter given for the repayment of the Debt and the performance of
Mortgagor's obligations under the Loan Documents (as defined in the Note),
including (without limitation) the Tax and Insurance Escrow Fund (hereafter
defined) and the Replacement Escrow Fund (hereafter defined), and all other
escrows established with Mortgagee by Mortgagor.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property unto
and to the use and benefit of Mortgagee and its successors and assigns, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that, if
Mortgagor shall well and truly pay to Mortgagee the Debt at the time and in the
manner provided in the Note and this Mortgage and shall well and truly abide by
and comply with each and every covenant and condition set forth herein, in the
Note and in the other Loan Documents in a timely manner, these presents and the
estate hereby granted shall cease, terminate and be void;
AND Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Mortgagor will duly and punctually perform all of the covenants,
conditions and agreements contained in this Mortgage and the other Loan
Documents all of which covenants, conditions and agreements are hereby made a
part of this Mortgage to the same extent and with the same force as if fully set
forth herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor is the sole owner
of and has good, legal, marketable and insurable fee simple title to the
Mortgaged Property and has the full power, authority and right to execute,
deliver and perform its obligations under this Mortgage and to encumber,
mortgage, give, grant, bargain, sell, alienate, enfeoff, convey, confirm,
pledge, assign and hypothecate the same and that Mortgagor possesses an
unencumbered fee estate in the Premises and the Improvements and that it owns
the Mortgaged Property free and clear of all liens, encumbrances and charges
whatsoever except for the First Mortgage and those exceptions shown in the title
insurance policy insuring the lien of the First Mortgage. This Mortgage is and
will remain a valid and enforceable second lien on and security interest in the
Mortgaged Property, subject only to said exceptions. Mortgagor shall forever
warrant, defend and preserve such title and the validity and priority of the
lien of this Mortgage and shall forever warrant and defend the same to Mortgagee
against the claims of all persons whomsoever except as aforesaid.
3. Insurance. Mortgagor, at its sole cost and expense, will keep the
Mortgaged Property insured during the entire term of this Mortgage as required
by the terms of the First Mortgage.
(a) All policies of insurance (the "Policies") maintained by the terms of
the First Mortgage (i) shall contain a standard noncontributory mortgagee
(subject the rights of the holder of the First Mortgage) clause naming Mortgagee
as the person to which all payments made by such insurance company shall be
paid, (ii) shall be maintained throughout the term of this Mortgage without cost
to Mortgagee, shall contain such provisions as Mortgagee deems reasonably
necessary or desirable to protect its interest including, without limitation,
endorsements providing that neither Mortgagor, Mortgagee nor any other party
shall be a co-insurer under said Policies and that Mortgagee shall receive at
least thirty (30) days prior written notice or, of any modification, reduction
or cancellation, (v) shall be for a term of not less than one year, (vi) shall
be issued by an insurer licensed in the state in which the Mortgaged Property is
located, (vii) shall provide that Mortgagee may, but shall not be obligated to,
make premium payments to prevent any cancellation, endorsement, alteration or
reissuance, and such payments shall be accepted by the insurer to prevent same,
(viii) shall be satisfactory in form and substance to Mortgagee and shall be
approved by Mortgagee as to amounts, form, risk coverage, deductibles, loss
payees and insureds, and (ix) shall provide that all claims shall be allowable
on events as they occur. Upon demand therefor, Mortgagor shall reimburse
Mortgagee for all of Mortgagee's (or its servicer's) reasonable costs and
expenses incurred in obtaining any or all of the Policies or otherwise causing
the compliance with the terms and provisions of this Section 3. Mortgagor shall
pay the premiums for such Policies (the "Insurance Premiums") as the same become
due and payable (unless such Insurance Premiums have been paid by Mortgagee
pursuant to Section 5 hereof). Not later than thirty (30) days prior to the
expiration date of each of the Policies, Mortgagor will deliver to Mortgagee
satisfactory evidence of the renewal of each Policy. If Mortgagor receives from
any insurer any written notification or threat of any actions or proceedings
regarding the non-compliance or non-conformity of the Mortgaged Property with
any insurance requirements, Mortgagor shall give prompt notice thereof to
Mortgagee.
(b) If the Mortgaged Property shall be damaged or destroyed, in whole or in
part, by fire or other casualty, Mortgagor shall give prompt notice thereof to
Mortgagee.
4. Payment of Other Charges. Mortgagor shall pay all assessments, water
rates and sewer rents, ground rents, maintenance charges, other governmental
impositions, and other charges, including without limitation vault charges and
license fees for the use of vaults, chutes and similar areas adjoining the
Premises, now or hereafter levied or assessed or imposed against the Mortgaged
Property or any part thereof (the "Other Charges") as the same become due and
payable. Mortgagor will deliver to Mortgagee evidence satisfactory to Mortgagee
that the Taxes and Other Charges have been so paid or are not then delinquent no
later than thirty (30) days following the date on which the Taxes and/or Other
Charges would otherwise be delinquent if not paid. Mortgagor shall not suffer
and shall promptly cause to be paid and discharged any lien or charge whatsoever
which may be or become a lien or charge against the Mortgaged Property, and
shall promptly pay for all utility services provided to the Mortgaged Property.
5. Condemnation. Mortgagor shall promptly give Mortgagee written notice of
the actual or threatened commencement of any condemnation or eminent domain
proceeding and shall deliver to Mortgagee copies of any and all papers served in
connection with such proceedings. Subject to the rights of the holder of the
First Mortgage, Mortgagee is hereby irrevocably appointed as Mortgagor's
attorney-in-fact, coupled with an interest, with exclusive power to collect,
receive and retain any award or payment for said condemnation or eminent domain
and to make any compromise or settlement in connection with such proceeding,
subject to the provisions of this Mortgage. Unless Mortgagor is obligated to pay
the same to the holder of the First Mortgage, Mortgagor shall cause the award or
payment made in any condemnation or eminent domain proceeding, which is payable
to Mortgagor, to be paid directly to Mortgagee. Mortgagee may apply any such
award or payment to the reduction or discharge of the Debt whether or not then
due and payable (such application to be without the prepayment consideration
provided in the Other Notes, except that if an Event of Default, or an event
which with notice and/or the passage of time, or both, would constitute an Event
of Default, has occurred, then such application shall be subject to the full
prepayment consideration computed in accordance with the Other Notes). If the
Mortgaged Property is sold, through foreclosure or otherwise, prior to the
receipt by Mortgagee of such award or payment, Mortgagee shall have the right,
whether or not a deficiency judgment on the Other Notes shall have been sought,
recovered or denied, to receive said award or payment, or a portion thereof
sufficient to pay the Debt.
6. Representations. Mortgagor represents, warrants and covenants as
follows:
(a) There is no action, suit or proceeding, judicial administrative or
otherwise pending or, to the best of Mortgagor's knowledge threatened or
contemplated against Mortgagor, or Guarantor or against or affecting the
Mortgaged Property that (i) has not been disclosed to Mortgagee and has a
material, adverse effect on the Mortgaged Property or Mortgagor's and
Guarantor's ability to perform their obligations under any Loan Document or
(ii) is not adequately covered by insurance, each as determined by
Mortgagee in its sole and absolute discretion.
(b) All certifications, permits and approvals, including, without
limitation, certificates of completion and occupancy permits required for
the legal use and occupancy of the Mortgaged Property as a hotel,
including, without limitation, any applicable liquor license (collectively,
the "Licenses") have been obtained and are in full force and effect. The
Mortgaged Property is in good repair, good order and good condition and
free and clear of any damage that would affect materially and adversely the
value of the Mortgaged Property as security for the Debt and the Mortgaged
Property has not been materially damaged by fire, wind or other casualty or
physical condition (including, without limitation, any soil or geological
condition), which damage has not been fully repaired. There are no
proceedings pending or threatened for the partial or total condemnation of
the Mortgaged Property.
(c) The Mortgaged Property is located on a dedicated, all-weather
road, or has access to an irrevocable easement permitting ingress and
egress which are adequate in relation to the premises and location on which
the Mortgaged Property is located.
(d) The Mortgaged 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 Mortgaged Property is located.
(e) The Mortgaged Property is serviced by public water and sewer
systems which are adequate in relation to the premises and location on
which the Mortgaged Property is located.
(f) The Mortgaged 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 Mortgaged
Property is located.
(g) The Mortgaged Property is a contiguous parcel and a separate tax
parcel, and there are no delinquent Taxes or other outstanding charges
adversely affecting the Mortgaged Property.
(h) The Mortgaged Property is not relied upon by, and does not rely
upon, any building or improvement not part of the Mortgaged Property to
fulfill any zoning, building code or other governmental or municipal
requirement for structural support or the furnishing of any essential
building systems or utilities, except to the extent of any valid and
existing reciprocal easement agreements shown in the title insurance policy
insuring the lien of this Mortgage.
(i) 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
Mortgaged Property.
7. Maintenance of Mortgaged Property. Mortgagor shall cause the Mortgaged
Property to be operated and maintained in a good and safe condition and repair
and in keeping with the condition and repair of properties of a similar use,
value, age, nature and construction. Mortgagor shall not use, maintain or
operate the Mortgaged Property in any manner which constitutes a public or
private nuisance or which makes void, voidable, or cancelable, or increases the
premium of, any insurance then in force with respect thereto. The Improvements
and the Equipment shall not be removed, demolished or materially altered (except
for normal replacement of the Equipment) without the consent of Mortgagee.
Mortgagor shall promptly comply with all laws, orders and ordinances affecting
the Mortgaged Property, or the use thereof. Mortgagor shall promptly repair,
replace or rebuild any part of the Mortgaged Property which may be destroyed by
any casualty, or become damaged, worn or
dilapidated or which may be affected by any proceeding of the character referred
to in Section 5 hereof and shall complete and pay for any structure at any time
in the process of construction or repair on the Premises.
8. Use of Mortgaged Property. Mortgagor shall not initiate, join in,
acquiesce in, or consent to any change in any private restrictive covenant,
zoning law or other public or private restriction, limiting or defining the uses
which may be made of the Mortgaged Property or any part thereof, nor shall
Mortgagor initiate, join in, acquiesce in, or consent to any zoning change or
zoning matter affecting the Mortgaged Property. If under applicable zoning
provisions the use of all or any portion of the Mortgaged Property is or shall
become a nonconforming use, Mortgagor will not cause or permit such
nonconforming use to be discontinued or abandoned without the express written
consent of Mortgagee. Mortgagor shall not permit or suffer to occur any waste on
or to the Mortgaged Property or to any portion thereof and shall not take any
steps whatsoever to convert the Mortgaged Property, or any portion thereof, to a
condominium or cooperative form of management. Mortgagor will not install or
permit to be installed on the Premises any underground storage tank or
above-ground storage tank without the written consent of Mortgagee.
9. Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor
acknowledges that Mortgagee has examined and relied on the creditworthiness and
experience of Mortgagor in owning and operating properties such as the Mortgaged
Property in agreeing to make the loan secured hereby, and that Mortgagee will
continue to rely on Mortgagor's ownership of the Mortgaged Property as a means
of maintaining the value of the Mortgaged Property as security for repayment of
the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in
maintaining the value of the Mortgaged Property so as to ensure that, should
Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt
by a sale of the Mortgaged Property. Except for liens and security interests
granted by Mortgagor to Mortgagee in connection with the First Note and the
Debt, Mortgagor shall not, without the prior written consent of Mortgagee, sell,
convey, alienate, mortgage, encumber, pledge or otherwise transfer the Mortgaged
Property or any part thereof, or permit the Mortgaged Property or any part
thereof to be sold, conveyed, alienated, mortgaged, encumbered, pledged or
otherwise transferred; provided, however, Mortgagee may, in its sole discretion,
give such written consent (but shall have no obligation to do so) to any such
sale, conveyance, alienation, mortgage, encumbrance, pledge or other transfer,
and any such consent may be conditioned upon the satisfaction of such conditions
precedent as Mortgagee may require (including, without limitation, the
conditions precedent set forth in subsection 12[c] below). Notwithstanding any
other provision of this Section 12, Mortgagee will consent, subject to the
conditions of subsection 12(c) and provided that no Event of Default has
occurred and is continuing, to one sale, conveyance, alienation, mortgage,
encumbrance, pledge or other transfer of the Mortgaged Property by the original
Mortgagor as set forth in this Mortgage.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer within the meaning of this Section 12 shall not include (x) transfers
made by devise or descent or by operation of law upon the death of a joint
tenant, partner or shareholder, subject, however, to all the following
requirements: (1) written notice of any transfer under this subsection 12(b)(x),
whether by will, trust or other written instrument, operation of law or
otherwise, is provided to Mortgagee or its servicer, together with copies of
such documents relating to the transfer as Mortgagee or its servicer may
reasonably request, (2) control over the management and operation of the
Mortgaged Property is retained by Janus American Group, Inc., a Delaware
corporation (the AOriginal Principals@, whether one or more) at all times prior
to the death or legal incapacity of all the Original Principals and is
thereafter assumed by persons who are acceptable in all respects to Mortgagee in
its sole and absolute discretion, (3) no such transfer by any of the Original
Principals will release the respective estate from any liability as a Guarantor,
as more particularly provided in subsection 12(c) below, and (4) no such
transfer, death or other event has any adverse effect either on the
bankruptcy-remote status of Mortgagor under the requirements of any national
rating agency for the Certificates (hereinafter defined) or on the status of
Mortgagor as a continuing legal entity liable for the payment of the Debt and
the performance of all other obligations secured hereby, or (y) transfers
otherwise by operation of law in the event of a bankruptcy, nor shall the
meaning include a Lease, but shall be deemed to include (i) an installment sales
agreement wherein Mortgagor agrees to sell the Mortgaged Property or any part
thereof for a price to be paid in installments; (ii) an agreement by Mortgagor
leasing all or a substantial part of the Mortgaged Property for other than
actual occupancy by a space tenant thereunder or a sale, assignment or other
transfer of, or the grant of a security interest in, Mortgagor's right, title
and interest in and to any Leases or any Rents; (iii) if Mortgagor, Guarantor,
or any general partner of Mortgagor or Guarantor is a corporation, any merger,
consolidation or the voluntary or involuntary sale, conveyance or transfer of
such corporation's stock (or the stock of any corporation directly or indirectly
controlling such corporation by operation of law or otherwise) or the creation
or issuance of
new stock in one or a series of transactions by which an aggregate of more than
10% of such corporation's stock shall be vested in a party or parties who are
not now stockholders (provided, however, in no event shall this subpart [iii]
apply to any Guarantor whose stock, shares or partnership interests are traded
on a nationally recognized stock exchange); (iv) if Mortgagor, Guarantor, or any
general partner of Mortgagor or Guarantor is a limited liability company or
limited partnership, the voluntary or involuntary sale, conveyance or transfer
by which an aggregate of more than fifty percent (50%) of the ownership interest
in such limited liability company or more than fifty percent (50%) of the
limited partnership interests in such limited partnership shall be vested in
parties not having an ownership interest as of the date of this Mortgage; and
(v) if Mortgagor, any Guarantor or any general partner of Mortgagor or any
Guarantor is a limited or general partnership or joint venture, the change,
removal or resignation of a general partner, managing partner or joint venturer
or the transfer of all or any portion of the partnership interest of any general
partner, managing partner or joint venturer.
(c) Notwithstanding the provisions of subsections 9(a) and (b) above,
Mortgagee will give its consent to any transfer consented to by the holder of
the First Mortgage.
(d) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on demand
for all reasonable expenses (including, without limitation, all recording costs,
taxes, reasonable attorney's fees and disbursements and title search costs)
incurred by Mortgagee in connection with the review, approval and documentation
of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer.
10. Changes in the Laws Regarding Taxation. If any law is amended, enacted
or adopted after the date of this Mortgage which deducts the Debt from the value
of the Mortgaged Property for the purpose of taxation or which imposes a tax,
either directly or indirectly, on the Debt or Mortgagee's interest in the
Mortgaged Property, Mortgagor will pay such tax, with interest and penalties
thereon, if any. In the event Mortgagee is advised by counsel chosen by it that
the payment of such tax or interest and penalties by Mortgagor would be unlawful
or taxable to Mortgagee or unenforceable or provide the basis for a defense of
usury, then in any such event, Mortgagee shall have the option, by written
notice of not less than forty-five (45) days, to declare the Debt immediately
due and payable.
11. No Credits on Account of the Debt. Mortgagor will not claim or demand
or be entitled to any credit or credits on account of the Debt for any part of
the Taxes or Other Charges assessed against the Mortgaged Property, or any part
thereof, and no deduction shall otherwise be made or claimed from the assessed
value of the Mortgaged Property, or any part thereof, for real estate tax
purposes by reason of this Mortgage or the Debt. In the event such claim, credit
or deduction shall be required by law, Mortgagee shall have the option, by
written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
12. Documentary Stamps. If at any time the United States of America, any
State thereof or any subdivision of any such State shall require revenue or
other stamps to be affixed to the Note or this Mortgage, or impose any other tax
or charge on the same, Mortgagor will pay for the same, with interest and
penalties thereon, if any.
13. Performance of Other Agreements. Mortgagor shall observe and perform
each and every term to be observed or performed by Mortgagor pursuant to the
terms of any agreement or recorded instrument affecting or pertaining to the
Mortgaged Property.
14. Further Acts, etc. Mortgagor will, at the cost of Mortgagor, and
without expense to Mortgagee, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, Uniform Commercial Code financing statements or continuation
statements, transfers and assurances as Mortgagee shall, from time to time,
require, for the better assuring, conveying, assigning, transferring, and
confirming unto Mortgagee the property and rights hereby mortgaged, given,
granted, bargained, sold, alienated, enfeoffed, conveyed, confirmed, pledged,
assigned and hypothecated or intended now or hereafter so to be, or which
Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee,
or for carrying out the intention or facilitating the performance of the terms
of this Mortgage or for filing, registering or recording this Mortgage.
Mortgagor, on demand, will execute and deliver and hereby authorizes Mortgagee
to execute in the name of Mortgagor or without the signature of Mortgagor to the
extent Mortgagee may lawfully do so, one or more financing statements, chattel
mortgages or other instruments, to evidence more effectively the security
interest of
Mortgagee in the Mortgaged Property. Mortgagor grants to Mortgagee an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Mortgagee
at law and in equity, including without limitation such rights and remedies
available to Mortgagee pursuant to this paragraph.
15. Recording of Mortgage, etc. Upon the execution and delivery of this
Mortgage and thereafter, from time to time, Mortgagor will cause this Mortgage,
and any security instrument creating a lien or security interest or evidencing
the lien hereof upon the Mortgaged Property and each instrument of further
assurance to be filed, registered or recorded in such manner and in such places
as may be required by any present or future law in order to publish notice of
and fully to protect the lien or security interest hereof upon, and the interest
of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
registration or recording fees, and all expenses incident to the preparation,
execution and acknowledgment of this Mortgage, any mortgage supplemental hereto,
any security instrument with respect to the Mortgaged Property and any
instrument of further assurance, and all federal, state, county and municipal,
taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged Property or any
instrument of further assurance, except where prohibited by law so to do.
Mortgagor shall hold harmless and indemnify Mortgagee, its successors and
assigns, against any liability incurred by reason of the imposition of any tax
on the making and recording of this Mortgage.
16. Reporting Requirements. Mortgagor agrees to give prompt notice to
Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the death,
insolvency or bankruptcy filing of any Guarantor.
17. Events of Default. The term "Event of Default" as used herein shall
mean the occurrence or happening, at any time and from time to time, of any one
or more of the following:
(a) if any portion of the Debt is not paid within five (5) days from
the date when the same is due;
(b) there occurs an Event of Default under any one or both of the
First Note and the First Mortgage;
(c) if there occurs Default under the Loan Agreement, as defined
therein;
(d) if Mortgagor sells, conveys, alienates, mortgages, encumbers,
pledges or otherwise transfers any portion of the Mortgaged Property or
permits the Mortgaged Property or any part thereof to be sold, conveyed,
alienated, mortgaged, encumbered, levied, pledged or otherwise transferred
without Mortgagee's prior written consent;
(e) if any representation or warranty of Mortgagor, or of any
Guarantor, made herein, in any Loan Document, any guaranty, or in any
certificate, report, financial statement or other instrument or document
furnished to Mortgagee shall have been false or misleading in any material
respect when made;
(f) if Mortgagor or any Guarantor shall make an assignment for the
benefit of creditors or if Mortgagor or any Guarantor shall admit in
writing its inability to pay, or Mortgagor's or any Guarantor's failure to
pay, debts generally as the debts become due;
(g) if a receiver, liquidator or trustee of Mortgagor or of any
Guarantor shall be appointed or if Mortgagor or any Guarantor shall be
adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any
similar federal or state law, shall be filed by or against, consented to,
or acquiesced in by, Mortgagor or any Guarantor or if Mortgagor or any
Guarantor shall admit in writing its insolvency or bankruptcy or if any
proceeding for the dissolution or liquidation of Mortgagor or of any
Guarantor shall be instituted; however, if such appointment, adjudication,
petition or proceeding was involuntary and not consented to by Mortgagor or
such Guarantor, upon the same not being discharged, stayed or dismissed
within sixty (60) days;
(h) subject to Mortgagor's right to contest as provided herein, if the
Mortgaged Property becomes subject to any mechanic's, materialman's,
mortgage or other lien except a lien for local real estate taxes and
assessments not then due and payable;
(i) if Mortgagor fails to cure properly any violations of laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property;
(j) except as permitted in this Mortgage, the actual or threatened
alteration, improvement, demolition or removal of any of the Improvements
without the prior consent of Mortgagee;
(k) damage to the Mortgaged Property in any manner which is not
covered by insurance solely as a result of Mortgagor's failure to maintain
insurance required in accordance with this Mortgage;
(l) if Mortgagor shall default under any term, covenant, or condition
of this Mortgage or any of the other Loan Documents, including the Loan
Agreement other than as specified in any of the above subparagraphs;
(m) if all or a substantial part of Mortgagor's assets (other than the
Mortgaged Property) are attached, seized, subjected to a writ or distress
warrant or are levied upon (unless such attachment, seizure, writ, distress
warrant or levy is vacated within sixty [60] days following the date of the
same);
(n) entry of a judgment in excess of $100,000.00 and the expiration of
any appeal rights or the dismissal or final adjudication of appeals against
Mortgagor (unless such judgment is vacated within sixty [60] days following
the date of the same);
(o) the Mortgage shall cease to constitute a second-priority lien on
the Mortgaged Property (other than in accordance with its terms); and
(p) seizure or forfeiture of the Mortgaged Property, or any portion
thereof, or Mortgagor's interest therein, resulting from criminal
wrongdoing or other unlawful action of Mortgagor, its affiliates, or any
tenant in the Mortgaged Property under any federal, state or local law.
18. Notice and Cure. Notwithstanding the foregoing, Mortgagee agrees to
give to Mortgagor written notice as described below of (a) Mortgagor's failure
to pay any part of the Debt when due (a "Monetary Default"), (b) a default
referred to in subsection 17(o) above (a "Lien Default") and (c) a default
referred to in subsections 17(c),(i) or (1) above (a "Nonmonetary Default").
Mortgagor shall have a period of five (5) days from its receipt of notice in
which to cure a Monetary Default (which written notice period may run
concurrently with the five [5] day period referred to in subsection 17[a]),
shall have a period of twenty (20) days from its receipt of notice to cure a
First Lien Default and shall have a period of twenty (20) days from its receipt
of notice in which to cure a Nonmonetary Default unless such Nonmonetary Default
is not susceptible to cure within such twenty (20) day period, in which case
Mortgagor shall commence to cure such Nonmonetary Default within twenty (20)
days following notice and diligently prosecute such cure to completion,
provided, however, that Mortgagor will provide Mortgagee with such information
as Mortgagee may reasonably request concerning the status of any attempted cure
of any such Nonmonetary Default and the cure of any such Nonmonetary Default
must be completed to the satisfaction of Mortgagee within sixty (60) days of
notice in any case. Notwithstanding the foregoing, Mortgagee may, but shall not
be required, to give notice of a Monetary Default or a recurrence of the same
Nonmonetary Default more frequently than two times in any calendar year. A
Monetary Default and/or First Lien Default and/or Nonmonetary Default shall
nevertheless be an Event of Default for all purposes under the Loan Documents
except that the acceleration of the Debt or other exercise of remedies shall not
be prior to the expiration of the applicable cure and/or grace periods provided
in Section 17 or in this section.
19. Remedies. Upon the occurrence of an Event of Default and subject to any
applicable cure period, Mortgagee may, at Mortgagee's option, do any one or more
of the following:
(a) Right to Perform Mortgagor's Covenants. If Mortgagor has failed to
keep or perform any covenant whatsoever contained in this Mortgage or the
other Loan Documents, Mortgagee may, but shall not be obligated to any
person to do so, perform or attempt to perform said covenant; and any
payment made or expense incurred in the performance or attempted
performance of any such covenant, together with any sum expended by
Mortgagee that is chargeable to Mortgagor or subject to reimbursement by
Mortgagor under the Loan Documents, shall be and become a part of the
"Debt," and Mortgagor promises, upon demand, to pay to Mortgagee, at the
place
where the Note is payable, all sums so incurred, paid or expended by
Mortgagee, with interest from the date when paid, incurred or expended by
Mortgagee at the Default Rate as specified in the Other Notes.
(b) Right of Entry. Subject to the rights of the holder of the First
Mortgage, Mortgagee may, prior or subsequent to the institution of any
foreclosure proceedings, enter upon the Mortgaged Property, or any part
thereof, and take exclusive possession of the Mortgaged Property and of all
books, records, and accounts relating thereto and to exercise without
interference from Mortgagor any and all rights which Mortgagor has with
respect to the management, possession, operation, protection, or
preservation of the Mortgaged Property, including without limitation the
right to rent the same for the account of Mortgagor and to deduct from such
Rents all costs, expenses, and liabilities of every character incurred by
the Mortgagee in collecting such Rents and in managing, operating,
maintaining, protecting, or preserving the Mortgaged Property and to apply
the remainder of such Rents on the Debt in such manner as Mortgagee may
elect. All such costs, expenses, and liabilities incurred by the Mortgagee
in collecting such Rents and in managing, operating, maintaining,
protecting, or preserving the Mortgaged Property, if not paid out of Rents
as hereinabove provided, shall constitute a demand obligation owing by
Mortgagor and shall bear interest from the date of expenditure until paid
at the Default Rate as specified in the Other Notes, all of which shall
constitute a portion of the Debt. If necessary to obtain the possession
provided for above, the Mortgagee may invoke any and all legal remedies to
dispossess Mortgagor, including specifically one or more actions for
forcible entry and detainer, trespass to try title, and restitution. In
connection with any action taken by the Mortgagee pursuant to this
subparagraph, the Mortgagee shall not be liable for any loss sustained by
Mortgagor resulting from any failure to let the Mortgaged Property, or any
part thereof, or from any other act or omission of the Mortgagee in
managing the Mortgaged Property unless such loss is caused by the willful
misconduct of the Mortgagee, nor shall the Mortgagee be obligated to
perform or discharge any obligation, duty, or liability under any Lease or
under or by reason hereof or the exercise of rights or remedies hereunder.
Mortgagor shall and does hereby agree to indemnify the Mortgagee for, and
to hold the Mortgagee harmless from, any and all liability, loss, or
damage, which may or might be incurred by the Mortgagee under any such
Lease or under or by reason hereof or the exercise of rights or remedies
hereunder, and from any and all claims and demands whatsoever which may be
asserted against the Mortgagee by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms,
covenants, or agreements contained in any such Lease. Should the Mortgagee
incur any such liability, the amount thereof, including without limitation
costs, expenses, and reasonable attorneys' fees, together with interest
thereon from the date of expenditure until paid at the Default Rate as
specified in the Other Notes, shall be secured hereby, and Mortgagor shall
reimburse the Mortgagee therefor immediately upon demand. Nothing in this
subsection shall impose any duty, obligation, or responsibility upon the
Mortgagee for the control, care, management, leasing, or repair of the
Mortgaged Property, nor for the carrying out of any of the terms and
conditions of any such Lease; nor shall it operate to make the Mortgagee
responsible or liable for any waste committed on the Mortgaged Property by
the tenants or by any other parties, or for any hazardous substances or
environmental conditions on or under the Mortgaged Property, or for any
dangerous or defective condition of the Mortgaged Property or for any
negligence in the management, leasing, upkeep, repair, or control of the
Mortgaged Property resulting in loss or injury or death to any tenant,
licensee, employee, or stranger. Mortgagor hereby assents to, ratifies, and
confirms any and all actions of the Mortgagee with respect to the Mortgaged
Property taken under this subparagraph.
(c) Right to Accelerate. Mortgagee may, without notice except as
provided in Section 18 above, demand, presentment, notice of nonpayment or
nonperformance, protest, notice of protest, notice of intent to accelerate,
notice of acceleration, or any other notice or any other action, all of
which are hereby waived by Mortgagor and all other parties obligated in any
manner whatsoever on the Debt, declare the entire unpaid balance of the
Debt immediately due and payable, and upon such declaration, the entire
unpaid balance of the Debt shall be immediately due and payable.
(d) Foreclosure-Power of Sale. Mortgagee may institute a proceeding or
proceedings, judicial, or nonjudicial, by advertisement or otherwise, for
the complete or partial foreclosure of this Mortgage or the complete or
partial sale of the Mortgaged Property under the power of sale contained
herein or under any applicable provision of law. Mortgagee may sell the
Mortgaged Property, and all estate, right, title, interest, claim and
demand of Mortgagor therein, and all rights of redemption thereof, at one
or more sales, as an entirety or in parcels, with such elements of real
and/or personal property, and at such time and place and upon such terms as
it may deem expedient, or as may be required by applicable law, and in the
event of a sale, by foreclosure or otherwise, of less than all of the
Mortgaged Property, this Mortgage shall continue as a lien and security
interest on the remaining portion of the Mortgaged Property.
(e) Rights Pertaining to Sales. Subject to the requirements of
applicable law and except as otherwise provided herein, the following
provisions shall apply to any sale or sales of all or any portion of the
Mortgaged Property under or by virtue of subsection (d) above, whether made
under the power of sale herein granted or by virtue of judicial proceedings
or of a judgment or decree of foreclosure and sale:
i) Mortgagee may conduct any number of sales from time to time.
The power of sale set forth above shall not be exhausted by any one or
more such sales as to any part of the Mortgaged Property which shall
not have been sold, nor by any sale which is not completed or is
defective in Mortgagee's opinion, until the Debt shall have been paid
in full.
ii) Any sale may be postponed or adjourned by public announcement
at the time and place appointed for such sale or for such postponed or
adjourned sale without further notice.
iii) After each sale, Mortgagee or an officer of any court
empowered to do so shall execute and deliver to the purchaser or
purchasers at such sale a good and sufficient instrument or
instruments granting, conveying, assigning and transferring all right,
title and interest of Mortgagor in and to the property and rights sold
and shall receive the proceeds of said sale or sales and apply the
same as specified in the Other Notes. Mortgagee is hereby appointed
the true and lawful attorney-in-fact of Mortgagor, which appointment
is irrevocable and shall be deemed to be coupled with an interest, in
Mortgagor's name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the property and rights so
sold, Mortgagor hereby ratifying and confirming all that said attorney
or such substitute or substitutes shall lawfully do by virtue thereof.
Nevertheless, Mortgagor, if requested by Mortgagee, shall ratify and
confirm any such sale or sales by executing and delivering to
Mortgagee or such purchaser or purchasers all such instruments as may
be advisable, in Mortgagee's judgment, for the purposes as may be
designated in such request.
iv) Any and all statements of fact or other recitals made in any
of the instruments referred to in subparagraph (iii) of this
subsection (e) given by Mortgagee shall be taken as conclusive and
binding against all persons as to evidence of the truth of the facts
so stated and recited.
v) Any such sale or sales shall operate to divest all of the
estate, right, title, interest, claim and demand whatsoever, whether
at law or in equity, of Mortgagor in and to the properties and rights
so sold, and shall be a perpetual bar both at law and in equity
against Mortgagor and any and all persons claiming or who may claim
the same, or any part thereof or any interest therein, by, through or
under Mortgagor to the fullest extent permitted by applicable law.
vi) Upon any such sale or sales, Mortgagee may bid for and
acquire the Mortgaged Property and, in lieu of paying cash therefor,
may make settlement for the purchase price by crediting against the
Debt the amount of the bid made therefor, after deducting therefrom
the expenses of the sale, the cost of any enforcement proceeding
hereunder, and any other sums which Mortgagee is authorized to deduct
under the terms hereof, to the extent necessary to satisfy such bid.
vii) Upon any such sale, it shall not be necessary for Mortgagee
or any public officer acting under execution or order of court to have
present or constructively in its possession any of the Mortgaged
Property.
(f) Mortgagee's Judicial Remedies. Mortgagee may proceed by suit or suits,
at law or in equity, to enforce the payment of the Debt to foreclose the liens
and security interests of this Mortgage as against all or any part of the
Mortgaged Property, and to have all or any part of the Mortgaged Property sold
under the judgment or decree of a court of competent jurisdiction. This remedy
shall be cumulative of any other nonjudicial remedies available to the Mortgagee
under this Mortgage or the other Loan Documents. Proceeding with a request or
receiving a judgment for legal relief shall not be or be deemed to be an
election of remedies or bar any available nonjudicial remedy of the Mortgagee.
(g) Mortgagee's Right to Appointment of Receiver . Mortgagee, as a matter
of right and (i) without regard to the sufficiency of the security for repayment
of the Debt, (ii) without notice to Mortgagor, (iii) without any showing of
insolvency, fraud, or mismanagement on the part of Mortgagor, (iv) without the
necessity of filing any judicial or other proceeding other than the proceeding
for appointment of a receiver, and (v) without regard to the then value of the
Mortgaged Property, shall be entitled to the appointment of a receiver or
receivers for the protection, possession, control, management and operation of
the Mortgaged Property, including (without limitation), the power to collect the
Rents, enforce this Mortgage and, in case of a sale and deficiency, during the
full statutory period of redemption (if any), whether there be a redemption or
not, as well as during any further times when Mortgagor, except for the
intervention of such receiver, would be entitled to collection of such Rents.
Mortgagor hereby irrevocably consents to the appointment of a receiver or
receivers. Any receiver appointed pursuant to the provisions of this subsection
shall have the usual powers and duties of receivers in such matters.
(h) Mortgagee's Uniform Commercial Code Remedies. The Mortgagee may
exercise its rights of enforcement under the Uniform Commercial Code in effect
in the state in which the Mortgaged Property is located.
(i) Discontinuance of Remedies. In case Mortgagee shall have proceeded to
invoke any right, remedy, or recourse permitted under the Loan Documents and
shall thereafter elect to discontinue or abandon same for any reason, Mortgagee
shall have the unqualified right so to do and, in such event, Mortgagor and
Mortgagee shall be restored to their former positions with respect to the Debt,
the Loan Documents, the Mortgaged Property or otherwise, and the rights,
remedies, recourses and powers of Mortgagee shall continue as if same had never
been invoked.
(j) Remedies Cumulative. All rights, remedies, and recourses of Mortgagee
granted in the Note, this Mortgage and the other Loan Documents, any other
pledge of collateral, or otherwise available at law or equity: (i) shall be
cumulative and concurrent; (ii) may be pursued separately, successively, or
concurrently against Mortgagor, the Mortgaged Property, or any one or more of
them, at the sole discretion of Mortgagee; (iii) may be exercised as often as
occasion therefor shall arise, it being agreed by Mortgagor that the exercise or
failure to exercise any of same shall in no event be construed as a waiver or
release thereof or of any other right, remedy, or recourse; (iv) shall be
nonexclusive; (v) shall not be conditioned upon Mortgagee exercising or pursuing
any remedy in relation to the Mortgaged Property prior to Mortgagee bringing
suit to recover the Debt; and (vi) in the event Mortgagee elects to bring suit
on the Debt and obtains a judgment against Mortgagor prior to exercising any
remedies in relation to the Mortgaged Property, all liens and security
interests, including the lien of this Mortgage, shall remain in full force and
effect and may be exercised thereafter at Mortgagee's option.
(k) Subordinate Priority.
i) Notwithstanding any provision of this Mortgage to the contrary,
this Mortgage is subject and subordinate to the First Mortgage.
ii) The First Mortgage and all other documents encumbering all or any
part of the Mortgaged Property as security for the First Note are sometimes
referred to herein as the "First Security Documents."
iii) For so long as the First Security Documents remain undischarged
of record, notwithstanding any term, provision, or condition of this
Mortgage:
A. The lien and security interest upon and in the Mortgaged
Property created by this Mortgage are and shall be subordinate to the
lien and security interest upon and in the Mortgaged Property created
by the First Security Documents; and
B. To the extent that the provisions of the First Security
Documents are inconsistent with the provisions of this Mortgage, the
provisions of the First Security Documents shall control and govern.
(l) Election of Remedies. Mortgagee may release, regardless of
consideration, any part of the Mortgaged Property without, as to the remainder,
in any way impairing, affecting, subordinating, or releasing the
lien or security interests evidenced by this Mortgage or the other Loan
Documents or affecting the obligations of Mortgagor or any other party to pay
the Debt. For payment of the Debt, Mortgagee may resort to any collateral
securing the payment of the Debt in such order and manner as Mortgagee may
elect. No collateral taken by Mortgagee shall in any manner impair or affect the
lien or security interests given pursuant to the Loan Documents, and all
collateral shall be taken, considered, and held as cumulative.
(m) Waivers. Mortgagor hereby irrevocably and unconditionally waives and
releases: (i) all benefits that might accrue to Mortgagor by virtue of any
present or future law exempting the Mortgaged Property from attachment, levy or
sale on execution or providing for any appraisement, valuation, stay of
execution, exemption from civil process, redemption, or extension of time for
payment; (ii) all notices of any Event of Default except as expressly provided
herein; or of Mortgagee's exercise of any right, remedy, or recourse provided
for under the Loan Documents; and (iii) any right to a marshalling of assets, a
sale in inverse order of alienation or any other right to direct in any manner,
the order of sale of any of the Mortgaged Property.
(n) Statute of Limitations. To the extent permitted by applicable law,
Mortgagee's rights hereunder shall continue even to the extent that a suit for
collection of the Debt, or part thereof, is barred by a statute of limitations.
Mortgagor hereby expressly waives and releases to the fullest extent permitted
by law, the pleading of any statute of limitations as a defense to payment of
the Debt.
(o) Waiver of Automatic or Supplemental Stay. In the event of the filing of
any voluntary or involuntary petition under the Bankruptcy Code by or against
Mortgagor (other than an involuntary petition filed by or joined in by
Mortgagee), the Mortgagor shall not assert, or request any other party to
assert, that the automatic stay under ss. 362 of the Bankruptcy Code shall
operate or be interpreted to stay, interdict condition, reduce or inhibit the
ability of Mortgagee to enforce any rights it has by virtue of this Mortgage, or
any other rights that Mortgagee has, whether now or hereafter acquired, against
any guarantor of the Debt. Further, Mortgagor shall not seek a supplemental stay
or any other relief, whether injunctive or otherwise, pursuant to ' 105 of the
Bankruptcy Code or any other provision therein to stay, interdict, condition,
reduce or inhibit the ability of Mortgagee to enforce any rights it has by
virtue of this Mortgage against any guarantor of the Debt. The waivers contained
in this paragraph are a material inducement to Mortgagee's willingness to enter
into this Mortgage and Mortgagor acknowledges and agrees that no grounds exist
for equitable relief which would bar, delay or impede the exercise by Mortgagee
of Mortgagee's rights and remedies against Mortgagor or any guarantor of the
Debt.
(p) Bankruptcy Acknowledgment. In the event the Mortgaged Property or any
portion thereof or any interest therein becomes property of any bankruptcy
estate or subject to any state or federal insolvency proceeding, then Mortgagee
shall immediately become entitled, in addition to all other relief to which
Mortgagee may be entitled under this Mortgage, to obtain (i) an order from the
Bankruptcy Court or other appropriate court granting immediate relief from the
automatic stay pursuant to ss. 362 of the Bankruptcy Code so to permit Mortgagee
to pursue its rights and remedies against Mortgagor as provided under this
Mortgage and all other rights and remedies of Mortgagee at law and in equity
under applicable state law, and (ii) an order from the Bankruptcy Court
prohibiting Mortgagor's use of all "cash collateral" as defined under ss. 363 of
the Bankruptcy Code. In connection with such Bankruptcy Court orders, Mortgagor
shall not contend or allege in any pleading or petition filed in any court
proceeding that Mortgagee does not have sufficient grounds for relief from the
automatic stay. Any bankruptcy petition or other action taken by the Mortgagor
to stay, condition, or inhibit Mortgagee from exercising its remedies are hereby
admitted by Mortgagor to be in bad faith and Mortgagor further admits that
Mortgagee would have just cause for relief from the automatic stay in order to
take such actions authorized under state law.
20. Right of Inspection. Mortgagee and its agents shall have the right to
enter and inspect the Mortgaged Property during normal business hours upon
reasonable notice.
21. Security Agreement. This Mortgage is both a real property mortgage or
deed of trust and a "security agreement" within the meaning of the Uniform
Commercial Code. The Mortgaged Property includes both real and personal property
and all other rights and interests, whether tangible or intangible in nature, of
Mortgagor in the Mortgaged Property. Mortgagor by executing and delivering this
Mortgage has granted and hereby grants to Mortgagee, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this paragraph the "Collateral"). Mortgagor hereby agrees
with Mortgagee to execute and deliver to Mortgagee, in form and substance
satisfactory to Mortgagee, such financing statements and such further assurances
as Mortgagee may from time to time, reasonably consider necessary to create,
perfect, and preserve Mortgagee's security interest herein granted. This
Mortgage shall also constitute a "fixture filing" for the purposes of the
Uniform Commercial Code. All or part of the Mortgaged Property are or are to
become fixtures. Information concerning the security interest herein granted may
be obtained from the parties at the addresses of the parties set forth in the
first paragraph of this Mortgage. If an Event of Default shall occur, Mortgagee,
in addition to any other rights and remedies which they may have, shall have and
may exercise immediately and without demand, any and all rights and remedies
granted to a secured party upon default under the Uniform Commercial Code,
including, without limiting the generality of the foregoing, the right to take
possession of the Collateral or any part thereof, and to take such other
measures as Mortgagee may deem necessary for the care, protection and
preservation of the Collateral. Upon request or demand of Mortgagee, Mortgagor
shall at its expense assemble the Collateral and make it available to Mortgagee
at a convenient place acceptable to Mortgagee. Mortgagor shall pay to Mortgagee
on demand any and all expenses, including legal expenses and attorneys' fees,
incurred or paid by Mortgagee in protecting the interest in the Collateral and
in enforcing the rights hereunder with respect to the Collateral. Any notice of
sale, disposition or other intended action by Mortgagee with respect to the
Collateral sent to Mortgagor in accordance with the provisions hereof at least
five (5) days prior to such action, shall constitute commercially reasonable
notice to Mortgagor. The proceeds of any disposition of the Collateral, or any
part thereof, may be applied by Mortgagee to the payment of the Debt in such
priority and proportions as Mortgagee in its discretion shall deem proper. In
the event of any change in name, identity or structure of any Mortgagor, such
Mortgagor shall notify Mortgagee thereof and promptly after request shall
execute, file and record such Uniform Commercial Code forms as are necessary to
maintain the priority of Mortgagee's lien upon and security interest in the
Collateral, and shall pay all expenses and fees in connection with the filing
and recording thereof. If Mortgagee shall require the filing or recording of
additional Uniform Commercial Code forms or continuation statements, Mortgagor
shall, promptly after request, execute, file and record such Uniform Commercial
Code forms or continuation statements as Mortgagee shall deem necessary, and
shall pay all expenses and fees in connection with the filing and recording
thereof, it being understood and agreed, however, that no such additional
documents shall increase Mortgagor's obligations under the Note, this Mortgage
and the other Loan Documents. Mortgagor hereby irrevocably appoints Mortgagee as
its attorney-in-fact, coupled with an interest, to file with the appropriate
public office on its behalf any financing or other statements signed only by
Mortgagee, as Mortgagor's attorney-in-fact, in connection with the Collateral
covered by this Mortgage. Notwithstanding the foregoing, Mortgagor shall appear
and defend in any action or proceeding which affects or purports to affect the
Mortgaged Property and any interest or right therein, whether such proceeding
effects title or any other rights in the Mortgaged Property (and in conjunction
therewith, Mortgagor shall fully cooperate with Mortgagee in the event Mortgagee
is a party to such action or proceeding).
22. Actions and Proceedings. Mortgagee has the right to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to bring any action or proceeding, in the name and on behalf of Mortgagor,
which Mortgagee, in its discretion, decides should be brought to protect their
interest in the Mortgaged Property. Mortgagee shall, at its option, be
subrogated to the lien of any mortgage or other security instrument discharged
in whole or in part by the Debt, and any such subrogation rights shall
constitute additional security for the payment of the Debt.
23. Waiver of Setoff and Counterclaim. All amounts due under this Mortgage,
the Note and the other Loan Documents shall be payable without setoff,
counterclaim or any deduction whatsoever. Mortgagor hereby waives the right to
assert a setoff, counterclaim or deduction in any action or proceeding in which
Mortgagee is a participant, or arising out of or in any way connected with this
Mortgage, the Note, any of the other Loan Documents, or the Debt.
24. Contest of Certain Claims. Notwithstanding the provisions of Sections 4
and 23(h) hereof, Mortgagor shall not be in default for failure to pay or
discharge Taxes, Other Charges or mechanic's or materialman's lien asserted
against the Mortgaged Property if, and so long as, (a) Mortgagor shall have
notified Mortgagee of same within five (5) days of obtaining knowledge thereof;
(b) Mortgagor shall diligently and in good faith contest the same by appropriate
legal proceedings which shall operate to prevent the enforcement or collection
of the same and the sale of the Mortgaged Property or any part thereof, to
satisfy the same; (c) Mortgagor shall have furnished to Mortgagee a cash
deposit, or an indemnity bond satisfactory to Mortgagee with a surety
satisfactory to Mortgagee, in the amount of the Taxes, Other Charges or
mechanic's or materialman's lien claim, plus a reasonable
additional sum to pay all costs, interest and penalties that may be imposed or
incurred in connection therewith, to assure payment of the matters under contest
and to prevent any sale or forfeiture of the Mortgaged Property or any part
thereof; (d) Mortgagor shall promptly upon final determination thereof pay the
amount of any such Taxes, Other Charges or claim so determined, together with
all costs, interest and penalties which may be payable in connection therewith;
(e) the failure to pay the Taxes, Other Charges or mechanic's or materialman's
lien claim does not constitute a default under any other deed of trust, mortgage
or security interest covering or affecting any part of the Mortgaged Property;
and (f) notwithstanding the foregoing, Mortgagor shall immediately upon request
of Mortgagee pay (and if Mortgagor shall fail so to do, Mortgagee may, but shall
not be required to, pay or cause to be discharged or bonded against) any such
Taxes, Other Charges or claim notwithstanding such contest, if in the opinion of
Mortgagee, the Mortgaged Property or any part thereof or interest therein may be
in danger of being sold, forfeited, foreclosed, terminated, canceled or lost.
Mortgagee may pay over any such cash deposit or part thereof to the claimant
entitled thereto at any time when, in the judgment of Mortgagee, the entitlement
of such claimant is established.
25. Recovery of Sums Required to Be Paid. Mortgagee shall have the right
from time to time to take action to recover any sum or sums which constitute a
part of the Debt as the same become due, without regard to whether or not the
balance of the Debt shall be due, and without prejudice to the right of
Mortgagee thereafter to bring an action of foreclosure, or any other action, for
a default or defaults by Mortgagor existing at the time such earlier action was
commenced.
26. ERISA. (a) Mortgagor shall not engage in any transaction which would
cause any obligation, or action taken or to be taken, hereunder (or the exercise
by Mortgagee of any of its rights under the Note, this Mortgage and the other
Loan Documents) to be a non-exempt (under a statutory or administrative class
exemption) prohibited transaction under the Employee Retirement Income Security
Act of 1974, as amended ("ERISA").
(b) As of the date hereof and throughout the term of this Mortgage, (i)
Mortgagor is not and will not be an "employee benefit plan" as defined in
Section 3(3) of ERISA, which is subject to Title I of ERISA, and (ii) the assets
of Mortgagor do not and will not constitute "plan assets" of one or more such
plans for purposes of Title I of ERISA.
(c) As of the date hereof and throughout the term of this Mortgage, (i)
Mortgagor is not and will not be a "governmental plan" within the meaning of
Section 3(3) of ERISA, and (ii) transactions by or with Mortgagor are not and
will not be subject to state statutes applicable to Mortgagor regulating
investments of and fiduciary obligations with respect to governmental plans.
(d) Mortgagor further covenants and agrees to deliver to Mortgagee such
certifications or other evidence from time to time throughout the term of the
Mortgage, as requested by Mortgagee in its sole discretion, that (i) Mortgagor
is not an "employee benefit plan" as defined in Section 3(3) of ERISA, which is
subject to Title I of ERISA, or a "governmental plan" within the meaning of
Section 3(3) of ERISA; (ii) Mortgagor is not subject to state statutes
regulating investments and fiduciary obligations with respect to governmental
plans; and (iii) one or more of the following circumstances is true: (A) equity
interests in Mortgagor are publicly offered securities, within the meaning of 29
C.F.R. ss. 2510.3-101(b)(2); (B) less than 25 percent of each outstanding class
of equity interests in Mortgagor are held by "benefit plan investors" within the
meaning of 29 C.F.R. ss. 2510.3-101(f)(2); or (C) Mortgagor qualifies as an
"operating company" or a "real estate operating company" within the meaning of
29 C.F.R. ss. 2510.3-101(c) or (e) or an investment company registered under The
Investment Company Act of 1940.
27. Indemnification. In addition to any other indemnifications provided in
any of the Loan Documents, Mortgagor shall, at its sole cost and expense,
protect, defend, indemnify, release and save harmless Mortgagee or any person or
entity who is or will have been involved in the servicing of this Loan, any
person or entity whose name the encumbrance created by this Mortgage is or will
have been recorded, persons and entities who may hold or acquire or will have
held a full or partial interest in this Loan (including but not limited to
investors or prospective investors, as well as custodians, trustees and other
fiduciaries who hold or have held a full or partial interest in the Loan for the
benefit of third parties) 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 (including but not limited to any other person or entity who holds or
acquires or will have held a
participation or other full or partial interest in this Loan or the Mortgaged
Property, whether during the term of this Loan or as a part of or following a
foreclosure of this Loan and including, but not limited to any successors by
merger, consolidation or acquisition of all or a substantial portion of
Mortgagee's assets and business) (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 Mortgaged Property or any
interest therein or receipt of any Rents; (b) any amendment to, or restructuring
of, the Debt, and the Note, this Mortgage or any other Loan Documents; (c) any
and all lawful action that may be taken by Mortgagee in connection with the
enforcement of the provisions of this Mortgage or the Note or any other Loan
Documents; (d) any and all lawful action that may be taken by Mortgagee 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 Mortgagor, any Guarantor and/or any member, partner,
joint venturer or shareholder thereof becoming a party to a voluntary or
involuntary federal or state bankruptcy, insolvency or similar proceeding; (e)
any accident, injury to or death of persons or loss of or damage to property
occurring in, on or about the Mortgaged Property or any part thereof or on the
adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets
or ways; (f) any use, nonuse or condition in, on or about the Mortgaged Property
or any part thereof or on adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, streets or ways; (g) any failure on the part of
Mortgagor to perform or comply with any of the terms of Sections 2 through 54 of
this Mortgage; (h) performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof; (i) any failure of the Mortgaged Property to comply with any laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property, including, without limitation, the Access Laws; (j) 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; (k) any claim by brokers, finders or similar persons claiming
to be entitled to a commission in connection with any Lease or other transaction
involving the Mortgaged Property or any part thereof under any legal requirement
or any liability asserted against Mortgagee with respect thereto; (l) the claims
of any lessee to any portion of the Mortgaged Property or any person acting
through or under any lessee or otherwise arising under or as a consequence of
any Lease; (m) performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof; (n) the enforcement by any Indemnified Party of the provisions of this
Section 34; (o) any and all claims and demands whatsoever which may be asserted
against Mortgagee by reason of any alleged obligations or undertakings on its
part to perform or discharge any of the terms, covenants, or agreements
contained in any Lease; or (p) any investigation, defense, and settlement
incurred in correcting any prohibited transaction or in the sale of a prohibited
loan, and in obtaining any individual prohibited transaction exemption under
ERISA that may be required, in Mortgagee's sole discretion as a result of a
default under Section 33. The obligations and liabilities of Mortgagor under
this Section 34 (A) shall survive for a period of one (1) year following any
release of this Mortgage executed by Mortgagee and satisfaction of the Loan
evidenced by the Loan Documents, and (B) shall survive the transfer or
assignment of this Mortgage, the entry of a judgment of foreclosure, sale of the
Mortgaged Property by nonjudicial foreclosure sale, or delivery of a deed in
lieu of foreclosure (including, without limitation, any transfer by Mortgagor of
any of its rights, title and interest in and to the Mortgaged Property to any
party, whether or not affiliated with Mortgagor).
28. Duty to Defend. Upon written request by an Indemnified Party, Mortgagor
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 claim or
proceeding. Upon demand, Mortgagor 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 Section 34 or this Section
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.
29. Notices. Unless oral notice is expressly permitted hereunder any
notice, demand, statement, request or consent made hereunder shall be in writing
and shall be deemed to be received by the addressee on the
first (1st) business day after such notice is tendered to a
nationally-recognized overnight delivery service or on the third (3rd) day
following the day such notice is deposited with the United States postal service
first class certified mail, return receipt requested, in either instance,
addressed to the address, as set forth above, of the party to whom such notice
is to be given, or to such other address as Mortgagor or Mortgagee, as the case
may be, shall in like manner designate in writing.
30. Authority. (a) Mortgagor (and the undersigned representative of
Mortgagor, if any) has full power, authority and right to execute, deliver and
perform its obligations pursuant to this Mortgage, and to mortgage, give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and
assign the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Mortgage on Mortgagor's part to be performed;
(b) Mortgagor is duly organized, validly existing and in good standing under the
laws of its state of organization or incorporation; (c) Mortgagor is duly
qualified to transact business and is in good standing in the state where the
Mortgaged Property is located and has all necessary approvals, governmental and
otherwise, and full power and authority to own the Mortgaged Property and carry
out its business as now conducted and proposed to be conducted; and (d)
Mortgagor represents and warrants that Mortgagor is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986,
as amended and the related Treasury Department regulations.
31. Waiver of Notice. Mortgagor shall not be entitled to any notices of any
nature whatsoever from Mortgagee except with respect to matters for which this
Mortgage specifically and expressly provides for the giving of notice by
Mortgagee to Mortgagor and except with respect to matters for which Mortgagee is
required by applicable law to give notice, and Mortgagor hereby expressly waives
the right to receive any notice from Mortgagee with respect to any matter for
which this Mortgage does not specifically and expressly provide for the giving
of notice by Mortgagee to Mortgagor.
32. Remedies of Mortgagor. In the event that a claim or adjudication is
made that Mortgagee has acted unreasonably or unreasonably delayed acting in any
case where by law or under the Note, this Mortgage or the other Loan Documents,
it has an obligation to act reasonably or promptly, Mortgagee shall not be
liable for any monetary damages, and Mortgagor's remedies shall be limited to
injunctive relief or declaratory judgment.
33. Sole Discretion of Mortgagee. Wherever pursuant to this Mortgage,
Mortgagee exercises any right given to it to approve or disapprove, or any
arrangement or term is to be satisfactory to Mortgagee, the decision of
Mortgagee to approve or disapprove or to decide that arrangements or terms are
satisfactory or not satisfactory shall be in the sole discretion of Mortgagee
and shall be final and conclusive, except as may be otherwise expressly and
specifically provided herein.
34. Non-Waiver. The failure of Mortgagee to insist upon strict performance
of any term hereof shall not be deemed to be a waiver of any term of this
Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations hereunder
by reason of (a) the failure of Mortgagee to comply with any request of
Mortgagor or Guarantor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of the Note or other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Debt or any
portion thereof, or (c) any agreement or stipulation by Mortgagee extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Mortgage, or the other Loan Documents. Mortgagee may resort for the payment
of the Debt to any other security held by Mortgagee in such order and manner as
Mortgagee, in its discretion, may elect. Mortgagee may take action to recover
the Debt, or any portion thereof, or to enforce any covenant hereof without
prejudice to the right of Mortgagee thereafter to foreclosure this Mortgage. The
rights and remedies of Mortgagee under this Mortgage shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of the others. No
act of Mortgagee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Mortgagee shall not be
limited exclusively to the rights and remedies herein stated but shall be
entitled to every right and remedy now or hereafter afforded at law or in
equity. It is agreed that the risk of loss or damage to the Mortgaged Property
is on the Mortgagor and Mortgagee shall have no liability whatsoever for decline
in the value of the Mortgaged Property, for failure to maintain the Policies, or
for failure to determine whether insurance in force is adequate as to the amount
of risks insured.
35. 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 Mortgagor or Mortgagee, 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.
36. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Mortgagee's consent to any
transfer of the Mortgaged Property, this Mortgage shall be binding upon and
inure to the benefit of Mortgagor and Mortgagee and their respective successors
and assigns forever.
37. Inapplicable Provisions. If any term, covenant or condition of this
Mortgage is held to be invalid, illegal or unenforceable in any respect, this
Mortgage shall be construed without such provision.
38. Headings, etc. The headings and captions of various paragraphs of this
Mortgage are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
39. 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.
40. Definitions. Unless the context clearly indicates a contrary intent or
unless otherwise specifically provided herein, words used in this Mortgage may
be used interchangeably in singular or plural form and the word "Mortgagor"
shall mean "each Mortgagor and any subsequent owner or owners of the Mortgaged
Property or any part thereof or any interest therein," the word "Mortgagee"
shall mean "Mortgagee and any subsequent holder of the Note," the word "Debt"
shall mean "the Note and any other evidence of indebtedness secured by this
Mortgage," the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, and the words "Mortgaged Property" shall
include any portion of the Mortgaged Property and any interest therein and the
words "attorneys' fees" shall include any and all attorneys' fees, paralegal and
law clerk fees, including, but not limited to, fees at the pre-trial, trial and
appellate levels incurred or paid by Mortgagee in protecting its interest in the
Mortgaged Property and Collateral and enforcing its rights hereunder. Whenever
the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa.
41. Homestead. Mortgagor hereby waives and renounces all homestead and
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Premises as against the collection of the Debt,
or any part hereof.
42. Assignments. Mortgagee shall have the right to assign or transfer its
rights under this Mortgage and the other Loan Documents without limitation,
including, without limitation, the right to assign or transfer its rights to a
servicing agent. Any assignee or transferee shall be entitled to all the
benefits afforded Mortgagee under this Mortgage and the other Loan Documents.
43. Survival of Obligations; Survival of Warrants and Representations. Each
and all of the covenants and obligations of Mortgagor (other than warranties and
representations contained herein) shall survive the execution and delivery of
the Loan Documents and shall continue in full force and effect until the Debt
shall have been paid in full; provided, however, that nothing contained in this
paragraph shall limit the obligations of Mortgagor except as otherwise set forth
herein. In addition, any and all warranties and representations of Mortgagor
contained herein shall survive the execution and delivery of the Loan Documents
and (i) shall continue for a period of one (1) year following any release of
this Mortgage executed by Mortgagee and satisfaction of the loan evidenced by
the Loan Documents, and (ii) shall survive the transfer or assignment of this
Mortgage, the entry of a judgment of foreclosure, sale of the Mortgaged Property
by non-judicial foreclosure or deed in lieu of foreclosure (including, without
limitation, any transfer of the Mortgage by Mortgagee of any of its rights,
title and interest in and to the Mortgaged Property to any party, whether or not
affiliated with Mortgagee).
44. Mortgagor's Expense. Mortgagor acknowledges and confirms that Mortgagee
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 Mortgaged Property, or (d) the review of any Lease or proposed Lease or the
preparation or review of any subordination, non-disturbance. Mortgagor further
acknowledges and confirms that it shall be responsible for the payment of all
costs of reappraisal of the Mortgaged Property or any part thereof, whether
required by law, regulation, Mortgagee or any governmental or quasi-governmental
authority. Mortgagor hereby acknowledges and agrees to pay, immediately, with or
without demand, all such fees (as the same may be increased or decreased from
time to time), and any additional fees of a similar type or nature which may be
imposed by Mortgagee from time to time, upon the occurrence of an event set
forth in this Section or otherwise. Wherever it is provided for herein that
Mortgagor pay any costs and expenses, such costs and expenses shall include, but
not be limited to, all legal fees and disbursements of Mortgagee, whether of
retained firms, the reimbursement for the expenses of in-house staff or
otherwise.
45. Attorneys' Fees. (a) Mortgagor shall pay all legal fees incurred by
Mortgagee in connection with (i) the preparation of the Note, this Mortgage and
the other Loan Documents; and (ii) the items set forth in Section 52 above, and
(b) Mortgagor shall pay to Mortgagee on demand any and all expenses, including
legal expenses and attorneys' fees, incurred or paid by Mortgagee in protecting
its interest in the Mortgaged Property or in collecting any amount payable under
the Note, Mortgage or other Loan Documents or enforcing its rights hereunder
with respect to the Mortgaged Property, whether or not any legal proceeding is
commenced hereunder or thereunder and whether or not any default or Event of
Default shall have occurred and is continuing, together with interest thereon at
the Default Rate from the date paid or incurred by Mortgagee until such expenses
are paid by Mortgagor.
46. Covenants Running with the Land. All covenants, conditions, warranties,
representations and other obligations contained in this Mortgage and the other
Loan Documents are intended by Mortgagor and Mortgagee to be, and shall be
construed as, covenants running with the Mortgaged Property until the lien of
this Mortgage has been fully released by Mortgagee.
47. Governing Law; Jurisdiction. THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS
SHALL BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED (WITHOUT REGARD TO ANY
CONFLICT OF LAWS PRINCIPLES) AND THE APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA. MORTGAGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT
OF COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE MORTGAGED PROPERTY
IS LOCATED IN CONNECTION WITH ANY PROCEEDING OUT OF OR RELATING TO THIS
MORTGAGE.
48. Time. Time is of the essence in this Mortgage and the other Loan
Documents.
49. No Third Party Beneficiaries. The provisions of this Mortgage and the
other Loan Documents are for the benefit of Mortgagor and Mortgagee and shall
not inure to the benefit of any third party (other than any successor or
assignee of Mortgagee). This Mortgage and the other Loan Documents shall not be
construed as creating any rights, claims or causes of action against Mortgagee
or any of its officers, directors, agents or employees in favor of any party
other than Mortgagor including but not limited to any claims to any sums held in
the Tax and Insurance Escrow Fund or the Replacement Escrow Fund.
50. Relationship of Parties. The relationship of Mortgagee and Mortgagor is
solely that of debtor and creditor, and Mortgagee has no fiduciary or other
special relationship with the Mortgagor, and no term or condition of any of the
Loan Documents shall be construed to be other than that of debtor and creditor.
Mortgagor represents and acknowledges that the Loan Documents do not provide for
any shared appreciation rights or other equity participation interest.
51. Investigations. Any and all representations, warranties, covenants and
agreements made in this Mortgage (and/or in other Loan Documents) shall survive
any investigation or inspection made by or on behalf of Mortgagee.
52. Mechanics' Lien Laws. Mortgagee shall be and hereby is authorized and
empowered to do, as mortgagee, all things provided to be done in the mechanic's
lien laws of the State of Ohio (including Section 1311.14 of the Ohio Revised
Code), and all acts amendatory or supplementary thereto.
53. Protective Advances. The Debt secured by this Mortgage shall include
unpaid balances of advances made by Mortgagee with respect to the Mortgaged
Property for the payment of taxes, assessments, and insurance premiums and for
costs incurred for the protection of the Mortgaged Property as provided for in
Section 5301.233 of the Ohio Revised Code, and all acts amendatory or
supplementary thereto.
Mortgagor has executed this instrument the day and year first above
written.
MORTGAGOR:
In the presence of: JAGI XXXXXXXXX - XXXXXX, LLC, a
Delaware limited liability company
By Janus American Group, Inc.,
a Delaware corporation
/s/ XXXXXXX X. XXXXXXX By /s/ XXXXX X. XXXXXX
------------------------------- -------------------------------------
Print Name: Xxxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxx
Title: President
/s/ XXXXX X. XXXXXXXX
-------------------------------
Print Name: Xxxxx X. Xxxxxxxx
STATE OF TEXAS )
) SS.
COUNTY OF DALLAS )
Before me, a Notary Public in and for said county and state, personally
appeared the above-named JAGI XXXXXXXXX - XXXXXX, LLC, a Delaware limited
liability company, by Janus American Group, Inc., a Delaware corporation, its
Manager, by Xxxxx X. Xxxxxx, its President, who acknowledged that he did sign
the foregoing instrument on behalf of said corporation and said limited
liability company, that the same is the free act and deed of said limited
liability company, the free act and deed of said corporation individually and as
such manager, and his free act and deed individually and as such officer.
In testimony whereof, I have hereunto set my hand and official seal at
Dallas, TX, this 12th day of August 1998.
/s/ XXXXXX XXXXXX
-----------------------------------
Notary Public
This instrument prepared by:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx, Day, Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
EXHIBIT A
Legal Description
EXHIBIT "A"
Situated in the Township of Copley, County of Summit, State of Ohio and known as
being part of original Copley Township Lot Number 2, also known as being the
south 122 feet of Lot Number 14, all of Lot Number 15 and the north 75 feet of
Lot Number 16 of the Montrose West Allotment Phase I-Part 2 and Rerecord of
Phase I as recorded in Plat Cabinet "B" Slides 747 to 753 of said County Records
and being further described as follows:
Parcel Number 1-South 122 feet of Lot Number 14.
-----------------------------------------------
Beginning at the northwest corner of said Montrose West Allotment, said
northwest corner also being the northwest corner of Lot Number 1 of said
Montrose West Allotment, thence S 00 deg. 13' 30" W for a distance of 1298.76
feet to a point, said point being the northwest corner of said Lot Number 14,
thence continuing S 00 deg. 13' 30" W for a distance of 96.00 feet to the true
place of beginning of the parcel of land hereinafter described;
Thence clockwise along the following five (5) courses and distances;
1) Thence S 89 deg. 46' 30" E for a distance of 400.60 feet to a point, said
point being on the western right of way line of Montrose West Avenue (70
feet);
2) Thence S 02 deg. 47' 57" W along said western right of way line for a
distance of 19.29 feet to a point, said point being a point of curvature;
3) Thence continuing along said western right of way line along the arc of a
curve to the right having the following properties;
Delta = 01 deg. 33' 28"
Radius = 3784.72 feet
Tangent = 51.45 feet
Chord = 102.90 feet
Chord Bearing = S 03 deg. 34' 41" deg. W for a distance of 102.90
feet to a point, said point being the
southeast corner of said Lot Number 14;
4) Thence N 89 deg. 46' 30" W along the southern line of said Lot Number 14
for a distance of 393.72 feet to a point, said point being the southwest
corner of said Lot Number 14;
5) Thence N 00 deg. 13' 30" E along the western line of said Lot Number 14 and
western line of said Montrose West Allotment for a distance of 122.00 feet
to a point; said point being the true place of beginning, and containing
1.1132 acres of land, more or less, and subject to all easements,
restrictions, and convenants of record.
Parcel Number 2--All of Lot Number 15
-------------------------------------
Situated in the Township of Copley, County of Summit, State of Ohio and known as
being part of original Copley Township Lot Number 2, also known as being all of
Lot Number 15 of the Montrose West Allotment Phase I-Part 2 and Rerecord of
Phase I as recorded in Plat Cabinet "B" Slides 747 to 753 of said County Records
and being further described as follows:
Beginning at the northwest corner of said Montrose West Allotment, said
northwest corner also being the northwest corner of Lot Number 1 of said
Montrose West Allotment, thence S 00 deg. 13' 30" W along the western line of
said Montrose West Allotment for a distance of 1516.76 feet to a point, said
point being the northwest corner and true place of beginning of the parcel of
land hereinafter described;
Thence clockwise along the following four (4) courses and distances;
1) Thence S 89 deg. 46' 30" E along the north line of said Lot Number 15, said
north line also being the south line of Parcel Number 1 as above described,
for a distance of 393.72 feet to a point, said point being on the western
right of way line of Montrose West Avenue (70 feet);
2) Thence along the said western right of way line, along the arc of a curve
to the right having the following properties;
Delta = 04 deg. 52' 40"
Radius = 3784.72 feet
Tangent = 161.20 feet
Chord = 322.12 feet
Chord Bearing = S 06 deg. 47' 45" W for a distance of 322.21
feet to a point, said point being the
southeast corner of said Lot Number 15;
3) Thence N 89 deg. 46' 30" W along the south line of said Lot Number 15 for a
distance of 356.86 feet to a point; said point being the southwest corner
of said Lot Number 15;
4) Thence N 00 deg. 13' 30" E along the western line of said Lot Number 15 for
a distance of 320.00 feet to a point, said point being the true place of
beginning, and containing 2.7738 acres of land, more or less, and subject
to all easements, restrictions, and covenants of record.
Parcel Number 3--North 75 feet of Lot Number 16
----------------------------------------------
Situated in the Township of Copley, County of Summit, State of Ohio and known as
being part of original Copley Township Lot Number 2, also known as being the
north 75 feet of Lot Number 16 of the Montrose West Allotment Phase I-Part 2 and
Rerecord of Phase I as recorded in Plat Cabinet "B" Slides 747 to 753 of said
County Records and being further described as follows:
Beginning at the northwest corner of said Montrose West Allotment, said
northwest corner also being the northwest corner of Lot Number 1 of said
Montrose West Allotment, thence S 00 deg. 13' 30" W along the western line of
said Montrose West Allotment for a distance of 1836.76 feet to a point, said
point being the northwest corner of said Lot Number 16 and true place of
beginning of the parcel of land hereinafter described;
Thence clockwise along the following four (4) courses and distances;
1) Thence S 89 deg. 46' 30" E along the north line of said Lot Number 16, said
north line also being the south line of Parcel Number 2 as above described,
for a distance of 356.86 feet to a point, said point being on the western
right of way line of Montrose West Avenue (70 feet);
2) Thence along the said western right of way line, long the arc of a curve to
the right having the following properties;
Delta = 01 deg. 09' 05"
Radius = 3784.72'
Tangent = 38.03'
Chord = 76.06'
Chord Bearing = S 09 deg. 48' 37.5" W for a distance of 76.06
feet to a point;
3) Thence N 89 deg. 46' 30" W for a distance of 344.19 feet to a point, said
point being on the western line of said Lot Number 16;
4) Thence W 00 deg. 13' 30" E along said western line for a distance of 75.00
feet to a point, said point being the true place of beginning, and
containing 0.6037 acres of land, more or less, and subject to all
easements, restrictions, and covenants of record.
The total acreage of all three parcels in 4.4907 acres.
Excepting therefrom the following described premises:
Situated in the Township of Copley, County of Summit, State of Ohio, and known
as being part of original Copley Township Lot Number 2, also known as being the
south 42.42 feet of Original Lot Number 15 and north 75.00 feet of Original Lot
Number 16 of the Montrose West Allotment Phase I-Part 2 and Re-record of Phase I
as recorded in Plat Cabinet "B" Slides 747 to 753 of said County Records and
being further described as follows:
Beginning at the northwest corner of said Montrose West Allotment, said
northwest corner also being the northwest corner of Lot Number 1 of said
Montrose West Allotment, thence S 00 deg. 13' 30" W. along the western line of
said Montrose West Allotment for a distance of 1836.76 feet to a point, said
point being the northwest corner of Lot Number 16 of said Montrose West
Allotment, said point also being the True Place of Beginning of the parcel of
land hereinafter described, thence clockwise along the following five (5)
courses and distances:
1. Thence N 00 deg. 13' 30" E. along the westerly line of said Lot Number 15
for a distance of 42.42 feet to a point;
2. Thence S 89 deg. 46' 30" E. for a distance of 363.33 feet to a point, said
point being on the westerly right of way line of Xxxxxxxx West Avenue (75
feet wide);
3. Thence along said westerly right of way line along the arc of a curve to
the right having the following properties:
Delta = 01 deg. 48' 04"
Radius = 3784.72
Tangent = 59.49
Chord = 118.97
Chord Bearing = S 09 deg. 29' 10" W. for a distance of 118.98
feet to a point;
4. Thence N 89 deg. 46' 30" W. for a distance of 344.18 feet to a point,
said point being on the westerly line of said Lot Number 16;
5. Thence N 00 deg. 13' 30" E. along the westerly line of said Lot Number 16
for a distance of 75.00 feet to the True Place of Beginning and containing
0.9544 of an acre of land of which 0.6037 of an acre is in Lot Number 16
and 0.3507 of an acre is in Lot Number 15, more or less, and subject to all
easements, restrictions and covenants of record as surveyed under the
supervision of L. Xxxxx Xxxxxx, P.S., Number 5917, for GPD Associates, in
September of 1992.
EXHIBIT A
PARCEL 1
Situated in the Township of Xxxxxxx, County of Xxxxx and State of Ohio: and
known as being part of the Northwest Quarter of Section Xx. 00, Xxxxxxxx 00,
Xxxxx 0, Xxxxxxx Xxxxxxxx, and being further described as follows:
Beginning at an iron pin at the Southeasterly corner of said Northwest Quarter
of Section No. 24; thence from said place of beginning North 2 deg. 14' 12"
East, measured along the Easterly line of said Northwest Quarter of Section No.
24 and along the center line of Xxxxxxxx Road, Proposed, 80 feet wide, 1065.06
feet to a point therein; Thence North 87 deg. 45' 48" West, 40.00 feet to a
point in the Westerly line of said Xxxxxxxx Road, proposed, which is the
principal place of beginning for premises herein described; Thence from said
principal place of beginning North 56 deg. 05' 21" West, 83.99 feet to a point
in the Southeasterly curved line of Everhard Road, 80 feet wide; Thence
Northeasterly, along said Southeasterly curved line of Everhard Road, 25.00 feet
along the arc of a circle, deflecting to the right, said arc having a radius of
1870.73 feet and a chord which bears North 65 deg. 19' 32" East, 25.00 feet to a
point of compound curvature at the Southwesterly end of a curved turnout,
between said Southeasterly curved line of Everhard Road and said Westerly line
of Xxxxxxxx Road, Proposed; Thence Northeasterly and Southeasterly along said
curved turnout, 69.16 feet along the arc of a circle, deflecting to the right,
said arc having a radius of 34.00 feet and a chord which bears South 56 deg. 01'
39" East, 57.83 feet to a point of tangency in said Westerly line of Xxxxxxxx
Road Proposed; Thence South 2 deg. 14' 12" West, measured along said Westerly
line of Xxxxxxxx Road, Proposed, 25.00 feet to the principal place of beginning.
PARCEL 2
Situated in the Township of Xxxxxxx, County of Xxxxx and State of Ohio: and
known as being part of the Northwest Quarter of Section Xx. 00, Xxxxxxxx 00,
Xxxxx 0, Xxxxxxx Xxxxxxxx, and being further described as follows:
Beginning at an iron pin at the Southeasterly corner of said Northwest Quarter
of Section No. 24; Thence from said place of beginning North 2 deg. 14' 12"
East, measured along the Easterly line of said Northwest Quarter of Section No.
24 and along the center line of Xxxxxxxx Road, Proposed, 80 feet wide, 588.34
feet to a point therein; Thence North 87 deg. 53' 14" West, 40.00 feet to a
point in the Westerly line of said Xxxxxxxx Road, Proposed, which is the
principal place of beginning for premises
herein described; Thence from said principal place of beginning, continuing
North 87 deg. 53' 14" West, 696.8 feet to a point in the Southeasterly curved
line of Everhard Road, 80 feet wide; Thence Northeasterly along said
Southeasterly curved line of Everhard Road, 696.47 along the arc of a circle,
deflecting to the right, said arc having a radius of 1870.73 feet and a chord
which bears North 50 deg. 26' 55" East, 692.45 feet to a point therein; Thence
South 56 deg. 51' 03" East, 210.46 feet to a point in said Westerly line of
Xxxxxxxx Road, Proposed. Thence South 2 deg. 14' 12" West, measured along said
Westerly line of Xxxxxxxx Road Proposed, 351.81 feet to the principal place of
beginning.
EXHIBIT A
PARCEL NO. 1:
Situated in the City of Independence, County of Cuyahoga and State of Ohio and
known as being part of Original Independence Township Xxx Xx. 00, Xxxxx Xx. 0,
Xxxx xx Xxxxx and is bounded and described as follows:
Beginning at a 1" iron pin monument found in the centerline of Rockside Road, 80
feet in width, at its intersection with the Westerly line of said Lot No. 21;
Thence South 73 deg. 38' 43" East, 1074.21 feet along the centerline of Rockside
Road, passing through a 1" iron pin monument at 928.43 feet;
Thence North 06 deg. 00' 22" East 190.66 feet along the Easterly line of land
conveyed to Xxxxxxx X. Bay by the deed recorded in Volume 9487, Page 564 of
Cuyahoga County Deed Records and the most Easterly line of land conveyed to
Xxxxxx Xxxxx and Xxxxxx Xxxxx by the deed recorded in Volume 4871, Page 402 of
Cuyahoga County Deed Records, to the principal place of beginning, of the
premises herein to be described;
Thence North 83 deg. 59' 38" West, 143.30 feet to a point;
Thence South 06 deg. 00' 22" West, 14.00 feet to a point of compound curvature
in the Northeasterly line of Frontage Road, 60 feet in width, also being on the
Northeasterly line of Parcel No. 410AWD as shown by the deed to the State of
Ohio recorded in Volume 12396, Page 621 of Cuyahoga County Deed Records;
Thence Northwesterly along the arc of a circle deflecting to the left 45.24
feet, said arc having a radius of 142.47 feet and a chord which bears North 64
deg. 33' 46" West, 45.05 feet along the Northeasterly line of Frontage Road to a
point of tangency therein,
Thence North 73 deg. 39' 37" West, 275.63 feet along said Northeasterly line to
a point of curvature in the Northeasterly line of Parcel No. 410WD as shown by
the deed to the State of Ohio recorded in Volume 12389, Page 491 of Cuyahoga
County Deed Records.
Thence Northwesterly along the arc of a curve deflecting to the right, 45.85
feet, said arc having a radius of 32.00 feet and a chord which bears North 32
deg. 36' 32" West 42.03 feet to a point of tangency in the Easterly line of
Frontage Road;
Thence North 08 deg. 26' 33" East 548.15 feet along said Easterly line to the
Southerly line of land conveyed to Xxxxx Trem and Xxxx Trem by the deed recorded
in Volume 12379, Page 357 of Cuyahoga County Deed Records;
Thence South 81 deg. 34' 00" East 146.47 feet along said Southerly line to an
angle point therein;
Thence North 87 deg. 54' 35" East, 316.70 feet along said Southerly line and the
Northerly line of land so conveyed to Xxxxxx Xxxxx and Xxxxxx Xxxxx as
aforementioned;
Thence South 06 degrees 00' 22" West, 669.32 feet along the Easterly line of
land so conveyed to Xxxxxx Xxxxx and Xxxxxx Xxxxx to the principal place of
beginning, according to a survey by Xxxxxxx & Xxxx Inc., dated October 18, 1994.
PARCEL NO. 2
Situated in the City of Independence, County of Cuyahoga and State of Ohio and
known as being part of original Independence Township Xxx Xx. 00, Xxxxx Xx. 0,
Xxxx xx Xxxxx and bounded and described as follows:
Beginning at a 1" iron pin monument found in the centerline of Rockside Road, 80
feet in width, at its intersection with the Westerly line of said Original Lot
No. 21;
Thence South 73 deg. 38' 43" East, 551.77 feet along the centerline of Rockside
Road to its intersection with the Easterly line of land conveyed to S-I-D
Management Co., by deed dated August 4, 1967 and is recorded in Volume 12149,
Page 333 of Cuyahoga County Deed Records;
Thence North 08 deg. 23' 17" East, 96.00 feet along the Easterly line of land so
conveyed to the most Southerly corner of Parcel No. 409WD conveyed to the State
of Ohio by the deed recorded in Volume 12357, Page 639 of Cuyahoga County Deed
Records;
Thence North 23 deg. 36' 20" West, 69.41 feet along the Southwesterly line of
said Parcel No. 409WD and a Southwesterly line of Frontage Road, 60 feet in
width, to an angle point therein,
Thence North 08 deg. 26' 33" East, 413.00 feet along the Westerly line of said
Parcel No. 409WD and Frontage Road to its intersection with the Northerly line
of land conveyed to C-C Restaurant LTD-9 dated December 12, 1985 and recorded in
Volume 85-6917, Page 63 of Cuyahoga County Deed Records and the principal place
of beginning of the premises herein to be described;
Thence North 81 deg. 33' 27" West, 166.00 feet along the Northerly line of land
so conveyed to an angle point therein;
Thence South 77 deg. 59' 26" West, 162.50 feet along said Northerly line,
parallel to a line drawn between the center of the existing transmission towers,
to the Easterly line of Parcel No. 409WL as conveyed to the State of Ohio by the
deed recorded in Volume 12357, Page 639, said Easterly line also being the
Easterly line of Interstate Route 77,
Thence North 16 deg. 49' 33" East, 415.27 feet along said Easterly line to an
angle point therein;
Thence North 54 deg. 52' 41" East, 75.61 feet along said Easterly line to an
angle point therein;
Thence North 21 deg. 37' 43" East, 209.82 feet along said Easterly line to the
Northeasterly corner of Parcel No. 409WL as aforementioned and the Northerly
line of Original Lot No. 21;
Thence North 88 deg. 11' 40" East, 193.93 feet along said Northerly line of
Original Xxx Xx. 00 to the Northeasterly corner of land so conveyed to S-I-D
Management Co., as aforesaid;
Thence South 08 deg. 23' 17" West, 217.39 feet along the Easterly line of land
so conveyed to the most Northerly corner of Parcel No. 409WD as aforementioned
and the Westerly line of Frontage Road;
Thence Southwesterly along the arc of a curve deflecting to the left, 233.15
feet, said arc having a radius of 749.38 feet and a chord which bears South 17
deg. 21' 20" West, 232.21 feet along said Westerly line to a point of tangency
therein;
Thence continuing South 08 deg. 26' 33" West, 198.16 feet along said Westerly
line to the principal place of beginning, according to a survey by Xxxxxxx &
Xxxx, Inc., dated October, 18, 1994.
SCHEDULE TO EXHIBIT 10.29
OTHER SECOND MORTGAGE AND SECURITY AGREEMENTS
I.
------------------------------------------------------------ ---------------------------------------------------------
Name of Mortgagor JAGI Cleveland - Independence, LLC, a Delaware limited
liability company
------------------------------------------------------------ ---------------------------------------------------------
Amount of First Note $21,800,000
------------------------------------------------------------ ---------------------------------------------------------
Exhibit A Legal Description of Real Estate
------------------------------------------------------------ ---------------------------------------------------------
II.
------------------------------------------------------------ ---------------------------------------------------------
Name of Mortgagor JAGI Montrose West, LLC, a Delaware limited liability
company
------------------------------------------------------------ ---------------------------------------------------------
Amount of First Note $3,500,000
------------------------------------------------------------ ---------------------------------------------------------
Exhibit A Legal Description of Real Estate
------------------------------------------------------------ ---------------------------------------------------------
III.
------------------------------------------------------------ ---------------------------------------------------------
Name of Mortgagor JAGI North Canton, LLC, a Delaware limited liability
company
------------------------------------------------------------ ---------------------------------------------------------
Amount of First Note $5,400,000
------------------------------------------------------------ ---------------------------------------------------------
Exhibit A Legal Description of Real Estate
------------------------------------------------------------ ---------------------------------------------------------
