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Exhibit 4.7
PREPARED BY AND
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx N.A. Boras, Esq.
For recording purposes only
-------------------------------
ECHELON INTERNATIONAL CORPORATION
Xxx Xxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
(Mortgagor)
to
SALOMON BROTHERS REALTY CORP.
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(Mortgagee)
------------------------------------
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
------------------------------------
Dated: November 5, 1996
------------------------------------
DUPLICATE ORIGINALS OF THIS MORTGAGE HAVE BEEN RECORDED IN THE PUBLIC RECORDS
OF HILLSBOROUGH COUNTY, FLORIDA, ALACHUA COUNTY, FLORIDA, XXXX COUNTY, FLORIDA,
AND PINELLAS COUNTY, FLORIDA. FLORIDA DOCUMENTARY STAMP TAXES IN THE AMOUNT OF
$367,500.00 AND FLORIDA INTANGIBLE TAXES IN THE AMOUNT OF $210,000.00 HAVE BEEN
PAID TO THE CLERK OF THE COURT OF HILLSBOROUGH COUNTY, FLORIDA, AND EVIDENCE OF
SUCH PAYMENT HAS BEEN NOTED ON THE MORTGAGE RECORDED IN HILLSBOROUGH COUNTY.
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TABLE OF CONTENTS
Page No.
1. Payment of Obligations and Incorporation of Covenants, Conditions and Agreements. . . . . . . . . . . . . . 6
2. Warranty of Title. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3. Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4. Payment of Taxes, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5. Condemnation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6. Leases and Rents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
7. Maintenance of Mortgaged Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8. Transfer or Encumbrance of the Mortgaged Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9. Changes in the Laws Regarding Taxation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
10. No Credits on Account of the Obligations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
11. Documentary Stamps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
12. Controlling Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
13. Books and Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
14. Performance of Other Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
15. Further Acts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
16. Recording of Mortgage, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17. Reporting Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
19. Late Payment Charge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
20. Right to Cure Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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21. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
22. Right of Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
23. Reasonable Use and Occupancy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
24. Security Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
25. Actions and Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
26. Waiver of Setoff and Counterclaim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
27. Contest of Certain Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
28. Recovery of Sums Required to Be Paid. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
29. Marshalling, Waiver of Redemption and Other Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
30. Hazardous Substances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
31. Handicapped Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
32. Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
33. Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
34. Remedies of Mortgagor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
35. Sole Discretion of Mortgagee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
36. Non-Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
37. No Oral Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
38. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
39. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
40. Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
41. Duplicate Originals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
42. Definitions; Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
43. Homestead. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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44. Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
45. Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
46. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
47. Time of Essence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
48. Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
49. Non-Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
50. Future Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (as the same may from time to time be extended,
renewed or modified, this "Mortgage"), is made and executed this 5th day of
November, 1996, by ECHELON INTERNATIONAL CORPORATION, a Florida corporation
("Mortgagor"), as successor to the entities, and by operation of the
transactions, described on Schedule 1 hereto, as applicable, having its
principal place of business at Xxx Xxxxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx
00000, to SALOMON BROTHERS REALTY CORP., a New York corporation ("Mortgagee"),
having its principal place of business at Xxxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
W I T N E S S E T H:
To secure the payment of an indebtedness in the original
principal sum of One Hundred Five Million Dollars ($105,000,000) lawful money
of the United States of America, to be paid with interest according to a
certain Loan Agreement, dated as of even date herewith, among Mortgagor, as
borrower, Mortgagee, as lender, and LaSalle National Bank, as collateral agent
(as the same may be extended, renewed, supplemented or modified, the "Loan
Agreement"; capitalized terms used herein and not defined having the meanings
ascribed thereto in the Loan Agreement), as evidenced by that certain Note
executed and delivered by Mortgagor pursuant to the Loan Agreement (as the same
may be extended, renewed, supplemented, exchanged, substituted, replaced or
modified, collectively, the "Note"), and as security for the payment and
performance of Mortgagor's obligations hereunder and under the Loan Documents
(collectively, the "Obligations"), Mortgagor GRANTS, BARGAINS, SELLS,
ALIENATES, ENFEOFFS, CONVEYS, CONFIRMS, WARRANTS, PLEDGES, ASSIGNS and
HYPOTHECATES unto Mortgagee the real property described in Exhibit A attached
hereto (the "Land") and Mortgagor's right, title and interest in and to the
buildings, structures and improvements of every nature whatsoever now or
hereafter located thereon (including, but not limited to, all gas and electric
fixtures, radiators, heaters, docks and docking facilities, engines and
machinery, boilers, ranges, elevators and motors, plumbing, heating and air
conditioning fixtures, carpeting and other floor coverings, water heaters,
awnings and storm sashes, and cleaning apparatus which are or shall be attached
to the Land or said buildings, structures or improvements) (the
"Improvements");
TOGETHER WITH: all right, title, interest and estate of Mortgagor now owned, or
hereafter acquired, in and to the following property, rights, interest and
estates (the Land, 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 to or
pertaining to the Land and the Improvements and the reversion and reversions,
remainder and remainders, and all land lying in the bed of any street, road or
avenue, opened or proposed, in front of or adjoining the Land, to the center
line thereof and all the estates, rights, titles, interests, dower and rights
of dower, curtesy and rights of curtesy, property, possession, claim and demand
whatsoever, both at law and in equity, of
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Mortgagor of, in and to the Land and the Improvements and every part and parcel
thereof, with the appurtenances thereto;
(b) all "equipment" 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"), now or hereafter owned by
Mortgagor or in which Mortgagor has or shall acquire an interest, now or
hereafter located on, attached to or contained in or used in connection with
the Mortgaged Property, and shall also mean and include all building materials,
construction materials, personal property constituting furniture, fittings,
appliances, apparatus, leasehold improvements, machinery, devices, interior
improvements, appurtenances, equipment, plant, furnishings, fixtures,
computers, electronic data processing equipment, telecommunications equipment
and other fixed assets now owned or hereafter acquired by Mortgagor which are
used in the operation of the business conducted at the Mortgaged Property; and
all proceeds thereof, as well as all additions to, substitutions for,
replacements of or accessions to any of the items recited as aforesaid and all
attachments, components, parts (including spare parts) and accessories, whether
installed thereon or affixed thereto, and wherever located, now or hereafter
owned by Mortgagor and used or intended to be used in connection with, or with
the operation of, the Land or the Improvements, or in connection with any
construction being conducted or which may be conducted thereon, all regardless
of whether the same are located on the Mortgaged Property or are located
elsewhere (including without limitation, in warehouses or other storage
facilities or in the possession of or on the premises of a bailee, vendor or
manufacturer) for purposes of manufacture, storage, fabrication or
transportation and all extensions, additions, improvements, betterments,
renewals, substitutions and replacements to, and proceeds of, any of the
foregoing (collectively, the "Equipment"); provided, however, that with respect
to any items which are leased and not owned by Mortgagor, the Equipment shall
include the leasehold interest only of Mortgagor, together with any options to
purchase any of said items and any additional or greater rights with respect to
such items which Mortgagor may hereafter acquire; and provided, further, that
"Equipment" shall not include (a) any personal property, desks, chairs, other
office furniture, telecommunications equipment, computers and other equipment
(as defined in the Uniform Commercial Code) now owned or hereafter acquired by
Mortgagor that is used or intended to be used by Mortgagor in connection with
the operation of its business and that is normally located on, attached to,
contained in or used in connection with any portion of the Mortgaged Property
as a result of such portion of the Mortgaged Property being the executive
offices of Mortgagor, (b) any equipment (as defined in the Uniform Commercial
Code) now owned or hereafter acquired by Mortgagor that is used or intended to
be used by Mortgagor in connection with the operation of its business and that
is normally located on, attached to, contained in or used in connection with
any asset or assets of Mortgagor other than the Mortgaged Property, or (c) any
boats, motors or spare parts located at the portion of the Mortgaged Property
designated "Marina" on Schedule 1 to the Loan Agreement (but shall specifically
include the docks, racks, forklift, crane and high and dry located at such
portion of the Mortgaged Property);
(c) all awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Mortgaged
Property or any portion thereof or any rights appurtenant thereto, whether from
the exercise of the right of eminent domain (including, but not limited to, any
transfer made in lieu of or in anticipation of the exercise of said rights), or
for a
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change of grade, or for any other injury to or decrease in the value of the
Land and the Improvements;
(d) all leases, subleases, lettings, occupancy
agreements, tenancies and licenses by Mortgagor as landlord of the Mortgaged
Property or any part thereof now or hereafter entered into, and all amendments,
extensions, renewals and guarantees thereof, and all security therefor
(collectively, the "Leases") and all income, rents, rent equivalents, issues,
profits, revenues (including all oil and gas or other mineral royalties and
bonuses), deposits and other benefits from the Land and the Improvements
(including, without limitation, all receivables, 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 Mortgaged Property or the commercial space located in the Improvements or
acquired from others (including, without limitation, from the rental of any
office space, retail space or other space, halls, stores, and offices, and
deposits securing reservations of such space, exhibit or sales space of every
kind, 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)) (collectively, 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 Obligations;
(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 (as defined in the Uniform Commercial
Code) now owned or hereafter acquired by Mortgagor arising out of or in
connection with, the operation of the Mortgaged Property (including, without
limitation, the Collection Account, the Reserve Account and the Expense
Account, subject to the security interest of the Collateral Agent therein), and
all present and future accounts receivable, inventory accounts, contract
rights, chattel paper, notes, acceptances, insurance policies, Instruments,
Documents, or other rights to payment and all forms of obligations owing at any
time to Mortgagor thereunder, whether now existing or hereafter created or
otherwise acquired by Mortgagor, and all proceeds thereof and all liens,
security interests, guaranties, remedies, privileges and other rights
pertaining thereto, and all rights and remedies of any kind forming the subject
matter of any of the foregoing (including, without limitation, (i) all income,
Rents, issues, profits, revenues, deposits and other benefits from the
Mortgaged Property, (ii) all receivables 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 with respect to the Mortgaged Property by Mortgagor or
any operator or manager of the Mortgaged Property or other commercial space
located at the Mortgaged Property or acquired from others (including, without
limitation the generality of the foregoing, from rental of space, halls,
stores, and
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offices, and deposits securing reservations of such space, exhibit or sales
space of every kind, license, lease, sublease and concession fees and rentals,
health club membership fees, food and beverage wholesale and retail sales of
merchandise, service charges, vending machine sales and proceeds, if any, from
business interruption or other loss of income insurance), (iii) all sums of
money, and all instruments, documents and securities held in any accounts in
connection with the Mortgaged Property, or any demand, time, savings or other
account maintained with any bank or certificate of deposit issued by any bank
with the proceeds of such account and (iv) all of the records and books of
account now or hereafter maintained by or on behalf of Mortgagor in connection
with the operation of the Mortgaged Property) (collectively, the "Accounts");
(h) all proceeds (as defined in the Uniform Commercial
Code) thereof and, in any event, shall include, without limitation, all
proceeds, products, offspring, rents, profits or receipts, in whatever form,
arising from the Mortgaged Property (including, without limitation, (i) cash,
instruments and other property received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Mortgaged Property; (ii) the
collection, sale, lease, sublease, concession, exchange, assignment, licensing
or other disposition of, or realization upon, any item or portion of the
Mortgaged Property (including, without limitation, all claims of Mortgagor
against third parties for loss of, damage to, destruction of, or for proceeds
payable under, or unearned premiums with respect to, policies of insurance in
respect of, any the Mortgaged Property now existing or hereafter arising);
(iii) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to Mortgagor from time to time with respect to any of the Mortgaged
Property; (iv) any and all payments (in any form whatsoever) made or due and
payable to Mortgagor from time to time in connection with the requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Mortgaged Property by any Governmental Authority (or any person acting under
color of Governmental Authority); and (v) any and all other amounts from time
to time paid or payable under or in connection with any of the Mortgaged
Property) (collectively, the "Proceeds");
(i) all agreements to which Mortgagor is a party and
which are executed in connection with the construction, operation and
management of the Equipment and Improvements located on the Mortgaged Property
(including, without limitation, the agreements for the sale, lease or exchange
of goods or other property and/or the performance of services by it, in each
case whether now in existence or hereafter arising or acquired) as any such
agreements have been or may be from time to time amended, supplemented or
otherwise modified (collectively, "Contracts");
(j) all "documents" as defined in the Uniform Commercial
Code or other receipts covering, evidencing or representing goods now owned or
hereafter acquired by Mortgagor with respect to the Mortgaged Property
(collectively, "Documents");
(k) all trademark licenses, trademarks, rights in intellectual
property, trade names, service marks and copyrights relating to the Mortgaged
Property or the license to use intellectual property such as computer software
owned or licensed by Mortgagor or other proprietary business information
relating to Mortgagor's policies, procedures, manuals and trade secrets with
respect to the Mortgaged Property (collectively, "Trademarks");
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(l) all "general intangibles" as defined in the Uniform
Commercial Code, now owned or hereafter acquired by Mortgagor with respect to
the Mortgaged Property (including, without limitation, (i) all obligations or
indebtedness owing to Mortgagor with respect to the Mortgaged Property from
whatever source arising (other than Accounts, Rents, Instruments, Inventory,
Contracts, Documents, Trademarks and Permits), (ii) all unearned premiums
accrued or to accrue under all insurance policies for the Mortgaged Property
obtained by Mortgagor, all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or liquidated claims (including,
without limitation, proceeds of insurance, condemnation awards, and all rights
of Mortgagor to refunds of real estate taxes and assessments), (iii) all
royalties and license fees with respect to the Mortgaged Property, (iv) all
trademark licenses, trademarks, rights in intellectual property, goodwill,
trade names, service marks, trade secrets, copyrights, permits and licenses,
together with the registrations therefor and the goodwill appurtenant thereto
with respect to the Mortgaged Property, and (v) all rights or claims in respect
of refunds for taxes paid with respect to the Mortgaged Property (collectively,
"General Intangibles");
(m) all (i) "instruments" as defined in the Uniform
Commercial Code, "chattel paper" as defined in the Uniform Commercial Code, or
letters of credit, evidencing, representing, arising from or existing in respect
of, relating to, securing or otherwise supporting the payment of, any of the
Mortgaged Property (including, without limitation, promissory notes, drafts,
bills of exchange and trade acceptances) and chattel paper obtained by Mortgagor
in connection with the Mortgaged Property (including, without limitation, all
ledger sheets, computer records and printouts, databases, programs, books of
account and files of Mortgagor relating thereto) and (ii) notes or other
obligations of indebtedness owing to Mortgagor with respect to the Mortgaged
Property from whatever source arising, in each case now owned or hereafter
acquired by Mortgagor (collectively, "Instruments");
(n) all "inventory" as defined in the Uniform Commercial
Code, whether now or hereafter existing or acquired, and which arises out of or
is used in connection with, directly or indirectly, the ownership and operation
of the Mortgaged Property, all Documents representing the same and all Proceeds
and products of same (collectively, "Inventory"). Without limiting the
generality of the foregoing, the term "Inventory" shall include, without
limitation:
(i) all goods, merchandise, raw materials, work in process
and other personal property, wherever located, now or hereafter owned
or held by Mortgagor for manufacture, processing, the providing of
services or sale, use or consumption in the operation of the Mortgaged
Property (including, without limitation, fuel, supplies and similar
items and all substances commingled therewith or added thereto); and
(ii) all rights and claims of Mortgagor against anyone who
may store or acquire the Inventory for the account of Mortgagor, or
from whom Mortgagor may purchase the Inventory.
Notwithstanding the foregoing, "Inventory" shall not include any boats, motors
or spare parts located at the portion of the Mortgaged Property designated as
the "Marina" on Schedule 1 to the Loan Agreement (but shall specifically
include the docks, racks, forklift, crane and high and dry located at such
portion of the Mortgaged Property); and
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(o) all licenses, permits, variances and certificates
used in connection with the ownership, operation, use or occupancy of the
Mortgaged Property (including, without limitation, business licenses, state
health department licenses, food service licenses, liquor licenses, licenses to
conduct business and all such other permits, licenses and rights, obtained from
any Governmental Authority or private Person concerning ownership, operation,
use or occupancy of the Mortgaged Property) (collectively, "Permits");
TO HAVE AND TO HOLD the above granted and described Mortgaged
Property unto and to the use and benefit of Mortgagee, IN TRUST, WITH POWER OF
SALE, and Mortgagor does hereby bind itself, its successors and assigns to
WARRANT AND FOREVER DEFEND the title to the Mortgaged Property unto Mortgagee;
PROVIDED, HOWEVER, these presents are upon the express
condition that, if the Obligations shall be paid to Mortgagee at the time and
in the manner provided in the Loan Agreement and this Mortgage and if Mortgagor
shall abide by and comply with each and every covenant and condition set forth
herein 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 Obligations and Incorporation of Covenants,
Conditions and Agreements. Mortgagor will pay the Obligations pertaining to
Mortgagor at the time and in the manner provided in the Loan Documents and in
this Mortgage. All the covenants, conditions and agreements of Mortgagor
contained in the Loan Documents are hereby made a part of this Mortgage to the
same extent and with the same force as if fully set forth herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor has good,
marketable and insurable fee simple title to the Land and Improvements 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, warrant, pledge, assign and
hypothecate the same and that Mortgagor possesses an unencumbered fee estate in
the Land and the Improvements and that it owns the Mortgaged Property free and
clear of all liens, encumbrances and charges whatsoever except as expressly set
forth in paragraph "(g)" of the granting clauses hereof and except for those
exceptions shown on Schedule B to the Title Insurance Policy insuring the lien
of this Mortgage and that this Mortgage is and will remain a valid and
enforceable first lien on and security interest in the Mortgaged Property
(except as expressly set forth in paragraph "(g)" of the granting clauses),
subject only to the Permitted Encumbrances. 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. All material Permits, including,
without limitation, certificates of completion and occupancy permits required
for the legal use, occupancy and operation of the Mortgaged Property for the
purposes to which it is presently used, have been obtained or are in the
process of being obtained and, to the extent the same have been obtained, are
in full force and effect (including, without limitation, any applicable liquor
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licenses). Mortgagor shall keep and maintain all Permits necessary for the
operation of the Mortgaged Property for the purposes to which it is presently
used.
3. Insurance. (a) Mortgagor, at its sole cost and expense, will
keep the Improvements and Equipment insured during the entire term of this
Mortgage with the coverage and in the amounts required hereunder or under the
Loan Agreement for the mutual benefit of Mortgagor and Mortgagee against loss
or damage by fire and against loss or damage by other risks and hazards covered
by a standard extended coverage insurance policy (including, without
limitation, riot and civil commotion, vandalism, malicious mischief, burglary
and theft on the "Special Form" (formerly an "All Risk" form)). Such insurance
shall be in an amount (i) equal to at least the then full replacement cost of
the Improvements and Equipment (exclusive of the cost of foundations and
footings), without deduction for physical depreciation, and (ii) such that the
insurer would not deem Mortgagor a co-insurer under said policies. The policies
of insurance carried in accordance with this paragraph shall be paid annually
in advance and shall contain the "Replacement Cost Endorsement" with a waiver
of depreciation.
(b) Mortgagor, at its sole cost and expense, for the mutual
benefit of Mortgagor and Mortgagee, shall also obtain and maintain or cause to
be obtained and maintained during the entire term of this Mortgage the
following policies of insurance:
(i) Flood insurance if any part of the Mortgaged Property is
located in an area identified by the Federal Emergency Management
Agency as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance
Act of 1968 (and any amendment or successor act thereto) in an amount
at least equal to the maximum limit of coverage available with respect
to the Improvements and Equipment under said Act.
(ii) Comprehensive public liability insurance, including broad form
property damage, blanket contractual and personal injuries (including
death resulting therefrom) coverages and containing minimum limits per
occurrence of Two Million Dollars ($2,000,000).
(iii) Business interruption insurance (including rental value) in an
annual aggregate amount equal to the estimated gross revenues from the
Leases of the Mortgaged Property, including, without limitation, the
loss of all rents and additional rents payable by all of the lessees
under the Leases (whether or not such Leases are terminable in the
event of a fire or casualty), such insurance to cover losses for a
period of at least one year after the date of the fire or casualty in
question. The amount of such insurance shall be increased from time to
time during the term of this Mortgage (but not more than once in any
12 month period) as and when the gross revenues from the Leases of the
Mortgaged Property increase, including, without limitation, increases
from new Leases and renewal Leases entered into in accordance with the
terms of this Mortgage, to reflect all increased rent and increased
additional rent payable by all of the lessees under such renewal
Leases and all rent and additional rent payable by all of the lessees
under such new Leases.
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(iv) Insurance against loss or damage from (x) leakage of sprinkler
systems and (y) explosion of steam boilers, air conditioning
equipment, high pressure piping, machinery and equipment, pressure
vessels or similar apparatus now or hereafter installed in the
Improvements (without exclusion for explosions), in an amount at least
equal to the Loan Amount.
(v) Worker's compensation insurance coverage in amounts not
less than statutory minimums for all persons employed by Mortgagor on
the Mortgaged Property. Such worker's compensation insurance shall
comply with all requirements of applicable local, state and federal
law. Mortgagor shall also maintain or cause to be maintained
"Employers Liability" insurance in amounts not less than required by
statute, except as may be unrestricted by law; and
(vi) Such other insurance as may from time to time be
reasonably required by Mortgagee in order to protect its interests.
(c) All policies of insurance (the "Policies") required pursuant
to Section 3(b) shall be issued by an insurer which has a claims paying ability
rating of not less than "A" by Standard & Poor's Corporation plus an equivalent
rating as established by one other nationally recognized statistical rating
organization satisfactory to Mortgagee or A:V or better as to claims paying
ability by AM Best, (ii) shall name Mortgagee as an additional insured and
contain a standard noncontributory mortgagee clause naming Mortgagee (and/or
such other party as may be designated by Mortgagee) as the party to which all
payments made by such insurance company shall be paid, (iii) shall be
maintained throughout the term of this Mortgage without cost to Mortgagee, (iv)
shall contain such provisions as Mortgagee deems reasonably necessary or
desirable to protect its interest (including, without limitation, endorsements
providing that neither Mortgagor, Mortgagee nor any other party shall be a
co-insurer under said Policies and that Mortgagee shall receive at least thirty
(30) days prior written notice of any modification, reduction or cancellation),
(v) shall contain a waiver of subrogation against Mortgagee and (vi) shall be
reasonably satisfactory in form and substance to Mortgagee and reasonably
approved by Mortgagee as to amounts, form, risk coverage, deductibles, loss
payees and insureds. Mortgagor shall pay the premiums for such Policies as the
same become due and payable. Copies of said Policies, certified as true and
correct by Mortgagor, or certificates thereof, shall be delivered to Mortgagee.
Not later than fifteen (15) days prior to the expiration date of each of the
Policies, Mortgagor will deliver to Mortgagee satisfactory evidence of the
renewal of each Policy. The insurance coverage required under Section 3(b) may
be effected under a blanket policy or policies covering the Mortgaged Property
and other property and assets not constituting a part of the Mortgaged
Property; provided that any such blanket policy shall specify, except in the
case of general liability insurance, the portion of the total coverage of such
policy that is allocated exclusively to the Mortgaged Property, and any
sublimits in such blanket policy applicable to the Mortgaged Property, which
amounts shall not be less than the amounts required pursuant to Section 3(b)
and which shall in any case comply in all other respects with the requirements
of this Section 3.
(d) 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.
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(i) In case of loss covered by Policies, Mortgagee may either
(A) jointly with Mortgagor settle and adjust any claim (unless at the
time of the settlement of such claim a monetary Event of Default has
occurred and is continuing, in which event Mortgagee may settle and
adjust such claim without the consent of Mortgagor) or (B) allow
Mortgagor to agree with the insurance company or companies on the
amount to be paid upon the loss; provided, that as to any individual
casualty, Mortgagor may adjust losses aggregating not in excess of
$500,000 if such adjustment is carried out in a competent and timely
manner, and provided that in any case Mortgagee shall and is hereby
authorized to collect and receipt for any such insurance proceeds. The
reasonable expenses incurred by Mortgagee in the adjustment and
collection of insurance proceeds shall become part of the Obligations
and be secured hereby and shall be reimbursed by Mortgagor to
Mortgagee upon demand therefor.
(ii) In the event of any insured damage to or destruction of
the Mortgaged Property or any part thereof (herein called an "Insured
Casualty") where the aggregate amount of the loss, as reasonably
determined by an independent insurance adjuster, is less than
twenty-five percent (25%) of the Loan Amount, and if, in the
reasonable judgment of Mortgagee, the Mortgaged Property can be
restored within six (6) months of settlement of the claim to an
economic unit not less valuable (including an assessment of the impact
of the termination of any Leases due to such Insured Casualty) and not
less useful than the same was prior to the Insured Casualty, and after
such restoration will adequately secure the Obligations, or if
Mortgagee otherwise elects to allow Mortgagor to restore the Mortgaged
Property, then, if no Event of Default (as hereinafter defined) shall
have occurred and be then continuing, the proceeds of insurance (after
reimbursement of any reasonable expenses incurred by Mortgagee in
connection with the collection of any applicable insurance proceeds)
shall be made available to reimburse Mortgagor for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property
or part thereof subject to the Insured Casualty, as provided for
below; and Mortgagor hereby covenants and agrees forthwith to commence
and diligently to prosecute such restoring, repairing, replacing or
rebuilding; provided always, that Mortgagor shall pay all costs (and
if required by Mortgagee, Mortgagor shall deposit the total thereof
with Mortgagee in advance) of such restoring, repairing, replacing or
rebuilding in excess of the net proceeds of insurance made available
pursuant to the terms hereof (the "Deficient Amount").
(iii) Except as provided above, the proceeds of insurance collected
upon any Insured Casualty shall be held in an Eligible Account by
Mortgagee and shall, at the option of Mortgagee in its sole
discretion, be applied to the payment of the Obligations as provided
in Section 2.12(e) of the Loan Agreement (provided that any such
prepayment shall be without prepayment penalty) or applied to
reimburse Mortgagor for the cost of restoring, repairing, replacing or
rebuilding the Mortgaged Property or part thereof subject to the
Insured Casualty, in the manner set forth below.
(iv) In the event that proceeds of insurance (after reimbursement of
any reasonable expenses incurred by Mortgagee in connection with the
collection of any applicable insurance proceeds), if any, shall be
made available to Mortgagor for the restoring, repairing, replacing or
rebuilding of the Mortgaged Property, Mortgagor hereby covenants to
restore, repair,
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replace or rebuild the same to be of at least equal value and of
substantially the same character as prior to such damage or
destruction, all to be effected in accordance with applicable law and
plans and specifications approved in advance by Mortgagee, such
approval not to be unreasonably withheld or delayed. Mortgagor shall
pay all costs (and if required by Mortgagee, Mortgagor shall deposit
the total thereof with Mortgagee in advance) of such restoring,
repairing, replacing or rebuilding in excess of the net proceeds of
insurance made available pursuant to the terms hereof.
(v) In the event Mortgagor is entitled to reimbursement out of
insurance proceeds held by Mortgagee, such proceeds shall be disbursed
from time to time upon Mortgagee (or at Mortgagee's election, the
Collateral Agent) being furnished with (A) evidence reasonably
satisfactory to it of the estimated cost of completion of the
restoration, repair, replacement and rebuilding, (B) funds, or, at
Mortgagee's option, assurances reasonably satisfactory to Mortgagee
that such funds are available, sufficient in addition to the proceeds
of insurance to complete the proposed restoration, repair, replacement
and rebuilding, and (C) such architect's certificates, waivers of
lien, contractor's sworn statements, title insurance endorsements,
bonds, plats of survey and such other evidences of cost, payment and
performance as Mortgagee may reasonably require and approve; and
Mortgagee may, in any event, require that all plans and specifications
for such restoration, repair, replacement and rebuilding be submitted
to and approved by Mortgagee prior to commencement of work such
approval not to be unreasonably withheld or delayed. All proceeds of
rental or business interruption insurance shall be deposited into the
Collection Account in accordance with Section 2.12(a) of the Loan
Agreement. Mortgagee may retain a construction consultant to inspect
such work and review Mortgagor's request for payments and Mortgagor
shall, on demand by Mortgagee, reimburse Mortgagee for the reasonable
fees and disbursements of such consultant. No payment made prior to
the final completion of the restoration, repair, replacement and
rebuilding shall exceed ninety percent (90%) of the value of the work
performed from time to time; funds other than proceeds of insurance
shall be disbursed prior to disbursement of such proceeds; and at all
times, the undisbursed balance of such proceeds remaining in the hands
of Mortgagee, together with funds deposited for that purpose or
irrevocably committed, to or with Mortgagee by or on behalf of
Mortgagor for that purpose, shall be at least sufficient in the
reasonable judgment of Mortgagee to pay for the cost of completion of
the restoration, repair, replacement or rebuilding, free and clear of
all liens or claims for lien. Any surplus which may remain out of
insurance proceeds held by Mortgagee after payment of such costs of
restoration, repair, replacement or rebuilding shall be paid to
Mortgagor so long as no Event of Default has occurred and is
continuing.
(e) Mortgagor shall not carry separate insurance, concurrent in kind
or form or contributing in the event of loss, with any insurance required under
this paragraph; provided, however, that notwithstanding the foregoing,
Mortgagor may carry insurance not required under this Mortgage if any such
insurance affecting the Mortgaged Property shall be for the mutual benefit of
Mortgagor and Mortgagee, as their respective interests may appear, and shall be
subject to all other provisions of this paragraph.
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4. Payment of Taxes, etc. Subject to the provisions of Section 27
hereof and the applicable provisions of the Loan Agreement, Mortgagor shall pay
all Impositions (including, without limitation, all taxes, assessments, water
rates and sewer rents) now or hereafter levied or assessed or imposed against
the Mortgaged Property or any part thereof, and all ground rents, maintenance
charges, other governmental impositions and other charges (including, without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Land), 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. Subject to the terms of the Loan
Agreement, Mortgagor will deliver to Mortgagee evidence satisfactory to
Mortgagee that the Impositions and Other Charges have been so paid or are not
then delinquent no later than thirty (30) days following the date on which the
Impositions 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 (other than Permitted Encumbrances) 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.
(a) Mortgagor shall promptly give Mortgagee written notice of the
actual or threatened commencement of any proceeding for a Taking and shall
deliver to Mortgagee copies of any and all papers served in connection with
such proceedings. Mortgagee is hereby irrevocably appointed as Mortgagor's
attorney-in-fact, coupled with an interest, with exclusive power to collect,
receive and retain any Condemnation Proceeds for said Taking. With respect to
any compromise or settlement in connection with such proceeding, Mortgagee will
jointly with Mortgagor compromise and reach settlement (unless at the time of
such Taking a monetary Event of Default has occurred and is continuing, in
which event Mortgagee may compromise and reach settlement without the consent
of Mortgagor). Notwithstanding the foregoing provisions of this Section 5(a),
Mortgagor is authorized to negotiate, compromise and settle, without
participation by the Mortgagee, Condemnation Awards of up to $500,000 in
connection with any Taking. Notwithstanding any Taking, Mortgagor shall
continue to pay the Obligations at the time and in the manner provided for in
the Note, in this Mortgage and the other Loan Documents and the Obligations
shall not be reduced until any Condemnation Proceeds therefor shall have been
actually received after expenses of collection and applied by Mortgagee to the
discharge of the Obligations. Mortgagee shall not be limited to the interest
paid on the Condemnation Proceeds by the condemning authority, but shall be
entitled to receive out of the Condemnation Proceeds interest at the rate or
rates provided in the Loan Documents.
(b) Mortgagor shall cause the Condemnation Proceeds to be paid
directly to Mortgagee as provided in Section 2.12(e) of the Loan Agreement.
Except as otherwise provided in Section 5(c), Mortgagee may, in its sole
discretion, apply any such Condemnation Proceeds to the reduction or discharge
of the Obligations (whether or not then due and payable) provided that any such
prepayment shall be without prepayment penalty. If Condemnation Proceeds in
respect of such Taking are applied to the payment of the Obligations, Mortgagor
shall be relieved of any duty to restore, repair, replace or rebuild the
Mortgaged Property.
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(c) With respect to a Taking in part, which shall mean any Taking
which does not render the Mortgaged Property physically or economically
unsuitable in the reasonable judgment of Mortgagee for the use to which it was
devoted prior to the Taking, Mortgagor shall cause the Condemnation Proceeds to
be paid to Mortgagee to be applied to reimburse Mortgagor for the cost of
repairing, replacing, restoring or rebuilding the Mortgaged Property as
follows:
(i) Provided that Condemnation Proceeds shall be made available to
Mortgagor for the restoring, repairing, replacing or rebuilding of the
Mortgaged Property, Mortgagor hereby covenants to restore, repair,
replace or rebuild the same to be of at least equal value and of
substantially the same character as prior to the Taking, all to be
effected in accordance with applicable law and plans and
specifications approved in advance by Mortgagee, such approval not to
be unreasonably withheld. Mortgagor shall pay all costs (and if
required by Mortgagee, Mortgagor shall deposit the total thereof with
Mortgagee in advance) of such restoring, repairing, replacing or
rebuilding in excess of the Condemnation Proceeds made available
pursuant to the terms hereof.
(ii) The Condemnation Proceeds held by Mortgagee shall be held in
an Eligible Account by Mortgagee and shall be disbursed from time to
time upon Mortgagee (or at Mortgagee's election, the Collateral Agent)
being furnished with (A) evidence satisfactory to it of the estimated
cost of completion of the restoration, repair, replacement and
rebuilding, (B) funds, or, at Mortgagee's option, assurances
satisfactory to Mortgagee that such funds are available, sufficient in
addition to the Condemnation Proceeds to complete the proposed
restoration, repair, replacement and rebuilding, and (C) such
architect's certificates, waivers of lien, contractor's sworn
statements, title insurance endorsements, bonds, plats of survey and
such other evidences of cost, payment and performance as Mortgagee may
reasonably require and approve; and Mortgagee may, in any event,
require that all plans and specifications for such restoration,
repair, replacement and rebuilding be submitted to and approved by
Mortgagee, which approval shall not be unreasonably withheld or
delayed, prior to commencement of work. Mortgagee may retain a
construction consultant to inspect such work and review Mortgagor's
request for payments and Mortgagor shall, on demand by Mortgagee,
reimburse Mortgagee for the reasonable fees and disbursements of such
consultant. No payment made prior to the final completion of the
restoration, repair, replacement and rebuilding shall exceed ninety
percent (90%) of the value of the construction work performed from
time to time; funds other than Condemnation Proceeds shall be
disbursed prior to disbursement of such proceeds; and at all times,
the undisbursed balance of such proceeds remaining in the hands of
Mortgagee, together with funds deposited for that purpose or
irrevocably committed to or with Mortgagee by or on behalf of
Mortgagor for that purpose, shall be at least sufficient in the
reasonable judgment of Mortgagee to pay for the cost of completion of
the restoration, repair, replacement or rebuilding, free and clear of
all liens or claims for lien. Any surplus which may remain out of
Condemnation Proceeds held by Mortgagee after payment of such costs of
restoration, repair, replacement or rebuilding shall be paid to
Mortgagor so long as no Event of Default has occurred and is
continuing.
(d) If the Mortgaged Property is sold, through foreclosure or
otherwise, prior to the receipt by Mortgagee of any such Condemnation Proceeds,
Mortgagee shall have the right, whether
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or not a deficiency judgment on the Note shall have been sought, recovered or
denied, to have reserved in any Foreclosure decree a right to receive said
award or payment, or a portion thereof sufficient to pay the Obligations. In no
case shall any such application reduce or postpone any payments otherwise
required pursuant to the Loan Agreement, other than the final payment on the
Note.
6. Leases and Rents. (a) Mortgagor does hereby absolutely and
unconditionally assign to Mortgagee, Mortgagor's right, title and interest in
all current and future Leases and Rents, it being intended by Mortgagor that
this assignment constitutes a present, absolute assignment and not an
assignment for additional security only. Such assignment to Mortgagee shall not
be construed to bind Mortgagee to the performance of any of the covenants,
conditions or provisions contained in any such Lease or otherwise impose any
obligation upon Mortgagee. Mortgagor agrees to execute and deliver to Mortgagee
such additional instruments, in form and substance satisfactory to Mortgagee,
as may hereafter be requested by Mortgagee to further evidence and confirm such
assignment. Nevertheless, subject to the terms of this paragraph, Mortgagee
grants to Mortgagor a revocable license to operate and manage the Mortgaged
Property and to collect the Rents. Any portion of the Rents held by Mortgagor
shall be held in trust for the benefit of Mortgagee for use in the payment of
the Obligations. Upon an Event of Default, the license granted to Mortgagor
herein shall automatically be revoked, and Mortgagee shall immediately be
entitled to possession of all Rents, whether or not Mortgagee enters upon or
takes control of the Mortgaged Property. Mortgagee is hereby granted and
assigned by Mortgagor the right, at its option, upon revocation of the license
granted herein, to enter upon the Mortgaged Property in person, by agent or by
court-appointed receiver to collect the Rents. Any Rents collected after the
revocation of the license may be applied toward payment of the Obligations in
such priority and proportions as Mortgagee in its discretion shall deem proper.
(b) Mortgagor shall not enter into any Leases (other than
Leases providing for rental rates comparable to then-existing local market
rates and terms and with conditions commercially reasonable and consistent with
then- prevailing market terms and conditions) without the prior written consent
of Mortgagee which consent shall not be unreasonably withheld or delayed,
provided, that Mortgagee's consent shall be deemed to have been given if
Mortgagee fails to reject or consent to a proposed lease within 10 business
days' receipt thereof; and, further, provided, that no such consent shall be
required with respect to Leases for space which constitute less than 5% of the
net rentable square footage of any building or buildings that constitute a
discrete project that comprises a portion of the Mortgaged Property (each such
project, a "Project"). Mortgagor shall furnish Mortgagee with an abstract of
the significant terms of each new Lease (whether or nor consent shall be
required) at least five (5) business days' prior to the execution of such
Lease, and Mortgagor shall furnish Mortgagee with executed copies of all
Leases. Notwithstanding anything to the contrary in the foregoing sentences of
this Section 6(b), during any period in which the Loan to Value Ratio shall
equal or exceed 80%, Mortgagor shall not enter into any Leases without the
prior written consent of Mortgagee. All renewals (except pursuant to the terms
of Leases then in effect) or amendments of Leases shall provide for rental
rates comparable to then-existing local market rates and terms and conditions
commercially reasonable and consistent with then-prevailing market terms and
conditions. All renewals (except pursuant to the terms of Leases then in
effect) or amendments of Leases which do not satisfy the requirements of the
preceding sentence shall be subject to the prior approval of Mortgagee, not to
be unreasonably withheld or delayed, provided, that any such renewal or
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amendment shall be deemed approved if Mortgagee fails to approve or disapprove
any such renewal or amendment within 10 business days' receipt thereof by
Mortgagee. All Leases executed after the date hereof shall provide that they
are subordinate to this Mortgage and that the lessee agrees to attorn to
Mortgagee. Mortgagee agrees, upon the request of any tenant under a Lease for
space in excess of 5% of the net rentable square footage of a Project, to
execute and deliver a non-disturbance agreement in form reasonably satisfactory
to Mortgagee; and Mortgagee shall not unreasonably refuse to execute and
deliver such a nondisturbance agreement, upon Mortgagor's request, with respect
to any tenant under a Lease for 5% or less of the net rentable square footage
of a Project. Mortgagor (i) shall observe and perform all the obligations
imposed upon the lessor under the Leases and shall not do or permit to be done
anything to impair the value of the Leases as security for the Obligations;
(ii) shall promptly send copies to Mortgagee of all notices of default which
Mortgagor shall send or receive thereunder; (iii) shall enforce all of the
material terms, covenants and conditions contained in the Lease upon the part
of the lessee thereunder to be observed or performed, short of termination
thereof; (iv) shall not collect any of the Rents more than one (1) month in
advance; (v) shall not execute any other assignment of lessor's interest in the
Leases or Rents; (vi) shall not alter, modify or change the terms of the Leases
without the prior written consent of Mortgagee (which consent shall not be
unreasonably withheld or delayed, and provided that if Mortgagee fails to grant
or withhold its consent within ten (10) business days of Mortgagee's receipt of
Mortgagor's written request for consent, Mortgagee shall be deemed to have
granted its consent to such alteration, modification or change), or, except if
Tenant is in default thereunder, cancel or terminate the Leases or accept a
surrender thereof; (vii) shall not convey or transfer or suffer or permit a
conveyance or transfer of the Mortgaged Property or of any interest therein so
as to effect a merger of the estates and rights of, or a termination or
diminution of the obligations of, lessees thereunder; (viii) shall not alter,
modify or change the terms of any guaranty of the Leases or cancel or terminate
such guaranty without the prior written consent of Mortgagee; and (ix) shall
not consent to any assignment of or subletting under the Leases not in
accordance with their terms, without the prior written consent of Mortgagee,
which shall not be unreasonably withheld or delayed, and provided that if
Mortgagee fails to grant or withhold its consent within ten (10) business days
of Mortgagee's receipt of Mortgagor's written request for consent, Mortgagee
shall be deemed to have granted its consent to such assignment or subletting.
The provisions of the foregoing clauses (i), (vi), (viii) and (ix) shall not be
applicable to leases for space which constitutes 5% or less of the net rentable
square footage of a Project.
(c) Following the occurrence and during the continuance of any
Event of Default, Mortgagor shall, upon Mortgagee's request, if permitted by
any applicable Legal Requirements, turn over to Mortgagee the security deposits
(and any interest theretofore earned thereon) with respect to all or any
portion of the Mortgaged Property, to be held by Mortgagee subject to the terms
of the Leases.
(d) Mortgagor represents, warrants and where applicable, covenants
that:
(i) Mortgagor has good title to the Leases and Rents
hereby assigned and authority to assign them, and no other person or
entity has any right, title or interest therein;
(ii) Mortgagor has, or within sixty (60) days of the date
hereof will have, delivered to Mortgagee true correct and complete
copies of all leases to which Mortgagor is a
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party or successor-in-interest and otherwise to the extent in
Mortgagor's possession, affecting all or any portion of the Mortgaged
Property, including all amendments and modifications existing as of
the date hereof;
(iii) Mortgagor has not executed or entered into any
material modifications or amendments of any of the Leases other than
written modifications or amendments that have been disclosed to
Mortgagee in writing;
(iv) except as provided herein, no Rents or Leases have
been or will be assigned, mortgaged or pledged by Mortgagor;
(v) no Rents have been or will be anticipated, waived,
released, discounted, set-off or compromised except in the ordinary
course of Mortgagor's business and in accordance with reasonable
commercial practice; and
(vi) Mortgagor has not received or accepted any payments
or installments of Rents under any leases more than one (1) month in
advance except for security deposits.
(e) To the fullest extent permitted by applicable law, Mortgagor
hereby indemnifies and holds Mortgagee harmless from all liability, damage or
expense imposed on or incurred by Mortgagee from any claims under the Leases,
including, without limitation, any claims by Mortgagor with respect to payments
of Rents made directly to Mortgagee during the continuation of an Event of
Default and claims by tenants for security deposits or for rental payments more
than one (1) month in advance and not delivered to Mortgagee, but excluding any
liability, loss or damage which may be incurred by Mortgagee by reason of
Mortgagee's gross negligence or intentional misconduct following an Event of
Default and exercise by Mortgagee of its rights pursuant hereto or pursuant to
the Leases. All amounts indemnified against hereunder, including reasonable
attorneys' fees, if paid by Mortgagee shall bear interest at the Default Rate
and shall be payable by Mortgagor immediately upon demand and shall be secured
hereby.
(f) Upon request by Mortgagee, Mortgagor shall deliver to
Mortgagee a copy of the executed originals of all Leases and after an Event of
Default executed originals thereof.
(g) Mortgagor hereby authorizes and directs the tenants under the
Leases to pay Rents to Mortgagee upon written demand by Mortgagee provided such
demand shall be given only if an Event of Default exists, without further
consent of Mortgagor, and the tenants may rely upon any such written statement
delivered by Mortgagee to the tenants. Any such payment to Mortgagee shall
constitute payment to Mortgagee under the applicable Leases.
7. Maintenance of Mortgaged Property. Mortgagor shall cause the
Mortgaged Property to be maintained in a good and safe condition and repair.
The Improvements and the Equipment shall not be removed, demolished or
materially altered (except for normal replacement in the ordinary course of
business of the Equipment or pursuant to Leases in effect from time to time)
without the consent of Mortgagee which shall not unreasonably be withheld or
delayed. Subject to the provisions of Section 27, Mortgagor shall promptly
comply with all Legal Requirements. Mortgagor shall or
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shall cause its tenants to promptly repair, replace or rebuild any part of the
Mortgaged Property that becomes damaged, worn or dilapidated and Mortgagor
shall or shall cause its tenants to complete and pay for any structure at any
time in the process of construction or repair on the Land. 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 without consent of Mortgagee which shall not be unreasonable
withheld or delayed. 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
(i) change the use of the Land in any material respect, (ii) permit or suffer
to occur any waste on or to the Mortgaged Property or to any portion thereof or
(iii) take any steps whatsoever to convert the Mortgaged Property, or any
portion thereof, to a condominium or cooperative form of management.
8. 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 Obligations. 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
Obligations, Mortgagee can recover the Obligations by a sale of the Mortgaged
Property. 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.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge
or transfer within the meaning of this Section 8 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; and
(iii) a transfer of a direct or indirect ownership interest or voting right in
the Borrower that would cause a Change of Control to occur.
(c) Subject to the provisions of the Loan Agreement, Mortgagee may
predicate its decision to grant or withhold consent hereunder on Mortgagee's
satisfaction, in its sole and absolute discretion, with all relevant factors
(including, without limitation, the creditworthiness of the proposed transferee
and such proposed transferee's management experience), and, in the case of any
transfer of title to the Mortgaged Property, upon the execution of an
assumption agreement in form and substance acceptable to Mortgagee and the
payment of all costs and expenses incurred by Mortgagee in connection with the
assumption (including, without limitation, reasonable attorneys' fees).
Mortgagee shall not be required to demonstrate any actual impairment of its
security or any increased risk of default hereunder in order to declare the
Obligations immediately due and payable upon
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Mortgagor's sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer of the Mortgaged Property without Mortgagee's consent. Except as
provided in the Loan Agreement, this provision shall apply to every sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property regardless of whether voluntary or not, or whether or not
Mortgagee has consented to any previous sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property.
(d) Mortgagee's consent to one sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property shall not
be deemed to be a waiver of Mortgagee's right to require such consent to any
future occurrence of same. Except as provided in the Loan Agreement, any sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property made in contravention of this paragraph shall be null and
void and of no force and effect.
(e) Mortgagor agrees to bear and shall pay or reimburse Mortgagee
on demand for all reasonable expenses (including, without limitation,
reasonable attorney's fees and disbursements, title search costs and title
insurance endorsement premiums) incurred by Mortgagee in connection with the
review, approval and documentation of any such sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer.
(f) Notwithstanding anything in this Section 8 to the contrary,
Mortgagor shall have the right to secure releases of portions of the Mortgaged
Property from the Liens and security interests of this Mortgage and the other
Loan Documents upon payment of the Release Prices specified, and otherwise in
accordance with the terms and conditions set forth, in Section 2.11 of the Loan
Agreement.
9. Changes in the Laws Regarding Taxation. If any law is enacted
or adopted or amended after the date of this Mortgage which deducts the
Obligations from the value of the Mortgaged Property for the purpose of
taxation or which imposes a tax, either directly or indirectly, on the
Obligations 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
ninety (90) days, to declare the Obligations immediately due and payable.
10. No Credits on Account of the Obligations. Mortgagor will not
claim or demand or be entitled to any credit or credits on account of the
Obligations for any part of the Impositions or Other Charges assessed against
the Mortgaged Property, or any part thereof.
11. 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.
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12. Controlling Agreement. It is expressly stipulated and agreed
to be the intent of Mortgagor and, Mortgagee at all times to comply with
applicable state law or applicable United States federal law (to the extent
that it permits Mortgagee to contract for, charge, take, reserve, or receive a
greater amount of interest than under state law) and that this section shall
control every other covenant and agreement in this Mortgage and the other Loan
Documents. If the applicable law (state or federal) is ever judicially
interpreted so as to render usurious any amount called for under the Note or
under any of the other Loan Documents, or contracted for, charged, taken,
reserved, or received with respect to the Obligations, or if Mortgagee's
exercise of the option to accelerate the maturity of the Note, or if any
prepayment by Mortgagor results in Mortgagor having paid any interest in excess
of that permitted by applicable law, then it is Mortgagor's and Mortgagee's
express intent that all excess amounts theretofore collected by Mortgagee shall
be credited on the principal balance of the Note and all other Obligations (or,
if the Note and all other Obligations have been or would thereby be paid in
full, refunded to Mortgagor), and the provisions of the Note and the other Loan
Documents immediately be deemed reformed and the amounts thereafter collectible
hereunder and thereunder reduced, without the necessity of the execution of any
new documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder.
All sums paid or agreed to be paid to Mortgagee for the use, forbearance, or
detention of the Obligations shall, to the extent permitted by applicable law,
be amortized, prorated, allocated, and spread throughout the full stated term
of the Obligations until payment in full so that the rate or amount of interest
on account of the Obligations does not exceed the maximum rate of interest
permitted by law from time to time in effect and applicable to the Obligations
for so long as the Obligations are outstanding.
13. Books and Records. Mortgagor will maintain full and accurate
books of accounts and other records reflecting the results of the operations of
the Mortgaged Property and will furnish, or cause to be furnished, to Mortgagee
such information with respect to the operation of the Mortgaged Property as the
Mortgagee from time to time reasonably may request, all in accordance with the
provisions of the Loan Agreement.
14. Performance of Other Agreements. Mortgagor shall observe and
perform in all material respects the terms to be observed or performed by
Mortgagor under any agreement or recorded instrument affecting or pertaining to
the Mortgaged Property the failure to perform which would have a material
adverse effect. Mortgagor shall defend, at its own cost and expense, and hold
Mortgagee harmless from, any proceeding, liability or claim by any third party
in any way relating to the Mortgaged Property except for any claim, proceeding
or liability caused by the gross negligence or intentional misconduct of
Mortgagee. All reasonable costs and expenses incurred by Mortgagee in
protecting the security and lien interests created hereunder, including all
court costs and reasonable attorneys' fees disbursements and expenses, shall be
borne by Mortgagor (except for costs and expenses incurred as a result of the
gross negligence or intentional misconduct of Mortgagee). The provisions of
this Section 14 shall survive the payment in full of the Obligations and the
release of this Mortgage as to events occurring and causes of action arising
before such payment and release.
15. 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, deeds of trust,
assignments, notices of assignment, Uniform Commercial
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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 and the
property and rights hereby mortgaged, given, granted, bargained, sold,
alienated, enfeoffed, conveyed, confirmed, warranted, 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, Mortgagor 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 the rights provided for in this Section 15. Mortgagor shall defend,
at its own cost and expense, and hold Mortgagee harmless from, any proceeding,
liability or claim by any third party in any way relating to the Mortgaged
Property except for any claim, proceeding or liability caused by the gross
negligence or intentional misconduct of Mortgagee. All reasonable costs and
expenses incurred by Mortgagee in protecting the security and lien interests
created hereunder, including all court costs and reasonable attorneys' fees,
disbursements and expenses, shall be borne by Mortgagor (except for costs and
expenses incurred as a result of the gross negligence or intentional misconduct
of Mortgagee). The provisions of this Section 15 shall survive the payment in
full of the Obligations and the release of this Mortgage as to events occurring
and causes of action arising before such payment and release.
16. Recording of Mortgage, etc. Mortgagor forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time, 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 (other
than income or franchise taxes imposed on Mortgagee), except where prohibited
by law so to do. Mortgagor shall hold harmless and indemnify Mortgagee and its
respective successors and assigns, against any liability incurred by reason of
the imposition of any tax on the making and recording of this Mortgage.
17. Reporting Requirements. Mortgagor agrees to give prompt notice
to Mortgagee of the insolvency or bankruptcy filing of Mortgagor.
18. 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
an Event of Default under the Loan
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Agreement as a result of which Mortgagee may, pursuant to the Loan Agreement,
exercise its rights and remedies against Mortgagor and/or the Mortgaged
Property.
19. Late Payment Charge. If any portion of the Obligations is not
paid within ten (10) days after the date on which it is due, Mortgagor shall
pay to Mortgagee upon demand an amount equal to the lesser of five percent (5%)
of such unpaid portion of the Obligations or the maximum amount permitted by
applicable law, to defray the expense incurred by Mortgagee in handling and
processing such delinquent payment and to compensate Mortgagee for the loss of
the use of such delinquent payment, and such amount shall be secured by this
Mortgage.
20. Right to Cure Defaults. Upon the occurrence of any Event of
Default, Mortgagee may, but without any obligation to do so and without notice
to or demand on Mortgagor and without releasing Mortgagor from any obligation
hereunder, cure the default giving rise to the Event of Default in such manner
and to such extent as Mortgagee may deem necessary to protect the security
hereof. Mortgagee is authorized to enter upon the Mortgaged Property for such
purposes or appear in, defend, or bring any action or proceeding to protect its
interest in the Mortgaged Property or to foreclose this Mortgage or collect the
Obligations, and the cost and expense thereof (including reasonable attorneys'
fees to the extent permitted by law), with interest at the Default Rate for the
period after notice from Mortgagee that such cost or expense was incurred to
the date of payment to Mortgagee, shall constitute a portion of the
Obligations, shall be secured by this Mortgage and shall be due and payable to
Mortgagee upon demand therefor.
21. Remedies. (a) Upon the occurrence of any Event of Default,
Mortgagee may take such action, without notice or demand, as it deems advisable
to protect and enforce its rights against Mortgagor and in and to the Mortgaged
Property, by Mortgagee itself or otherwise, including, but not limited to, the
following actions, each of which may be pursued concurrently or otherwise, at
such time and in such order as Mortgagee may determine, in its sole discretion,
subject to the provisions of Section 49, without impairing or otherwise
affecting the other rights and remedies of Mortgagee:
(i) declare the entire principal amount of the indebtedness
secured hereby with interest accrued thereon to be immediately due and
payable;
(ii) institute a proceeding or proceedings, judicial or
nonjudicial, by advertisement or otherwise, for the complete
foreclosure of this Mortgage in which case the Mortgaged Property or
any interest therein may be sold for cash or upon credit in one or
more parcels or in several interests or portions and in any order or
manner in accordance with the laws of the jurisdiction in which such
Mortgaged Property is located;
(iii) with or without entry, to the extent permitted, and pursuant
to the procedures provided by, applicable law, institute proceedings
for the foreclosure of this Mortgage for the Obligations then due and
payable subject to the continuing lien of this Mortgage, in accordance
with the laws of the jurisdiction in which such Mortgaged Property is
located, for the balance of the Obligations not then due;
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(iv) sell for cash or upon credit the Mortgaged Property or any
part thereof and all estate, claim, demand, right, title and interest
of Mortgagor therein and rights of redemption thereof, pursuant to the
power of sale contained herein or otherwise, at one or more sales, as
an entity or in parcels, at such time and place, upon such terms and
after such notice thereof as may be required or permitted by the laws
of the jurisdiction in which such Mortgaged Property is located;
(v) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained
herein or in the other Loan Documents;
(vi) subject to Section 49 hereof, recover judgment on the Note
either before, during or after any proceedings for the enforcement of
this Mortgage;
(vii) apply for the appointment of a receiver, liquidator or
conservator of the Mortgaged Property, without notice and without
regard for the adequacy of the security for the Obligations and
without regard for the solvency of Mortgagor or of any person, firm or
other entity liable for the payment of the Obligations;
(viii) enforce Mortgagee's interest in the Leases and Rents and enter
into or upon the Mortgaged Property, either personally or by its
agents, nominees or attorneys and dispossess Mortgagor and its agents
and servants therefrom, and thereupon Mortgagee may (A) use, operate,
manage, control, insure, maintain, repair, restore and otherwise deal
with all and every part of the Mortgaged Property and conduct the
business thereat; (B) complete any construction on the Mortgaged
Property in such manner and form as Mortgagee deems advisable; (C)
make alterations, additions, renewals, replacements and improvements
to or on the Mortgaged Property; (D) exercise all rights and powers of
Mortgagor with respect to the Mortgaged Property, whether in the name
of Mortgagor or otherwise (including, without limitation, the right to
make, cancel, enforce or modify Leases, obtain and evict tenants, and
demand, xxx for, collect and receive all earnings, revenues, rents,
issues profits and other income of the Mortgaged Property and every
part thereof); and (E) apply the receipts from the Mortgaged Property
to the payment of the Obligations, after deducting therefrom all
expenses (including, without limitation, reasonable attorneys' fees)
incurred in connection with the aforesaid operations and all amounts
necessary to pay the taxes, assessments, insurance and other charges
in connection with the Mortgaged Property, as well as just and
reasonable compensation for the services of Mortgagee and its
respective counsel, agents and employees;
(ix) require Mortgagor to pay monthly in advance to Mortgagee, or
any receiver appointed to collect the Rents, the fair and reasonable
rental value for the use and occupation of any portion of the
Mortgaged Property occupied by Mortgagor and require Mortgagor to
vacate and surrender possession to Mortgagee of the Mortgaged Property
or to such receiver and, in default thereof, evict Mortgagor by
summary proceedings or otherwise; or
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(x) pursue such other rights and remedies as may be available at
law or in equity or under the Uniform Commercial Code including the
right to establish a lock box for all Rents and other receivables of
Mortgagor relating to the Mortgaged Property.
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 on the remaining
portion of the Mortgaged Property.
(b) The proceeds of any sale made under or by virtue of this
Section 21, together with any other sums which then may be held by Mortgagee
under this Mortgage, whether under the provisions of this section or otherwise,
shall be applied by Mortgagee in accordance with the provisions of the Loan
Agreement.
(c) Upon any sale made under or by virtue of this Section 21,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale, (i) it
shall not be necessary for Mortgagee to be physically present at or to have
constructive possession of the Mortgaged Property (Mortgagor shall deliver to
Mortgagee any portion of the Mortgaged Property not actually or constructively
possessed by Mortgagee immediately upon demand by Mortgagee), and the title to
and right of possession of any such property shall pass to the purchaser
thereof as completely as if Mortgagee had been actually present and delivered
to purchaser at such sale, (ii) Mortgagee is hereby irrevocably appointed the
true and lawful attorney of Mortgagor, in Mortgagor's name and stead, to make
all necessary conveyances, assignments, transfers and deliveries of the
Mortgaged Property and rights so sold and for that purpose Mortgagee may
execute all necessary instruments of conveyance, assignment and transfer, and
may substitute one or more persons with like power, Mortgagor hereby ratifying
and confirming all that its said attorney or such substitute or substitutes
shall lawfully do by virtue hereby, it being agreed that such power of attorney
shall be coupled with an interest, (iii) each instrument of conveyance executed
by Mortgagee shall contain a general warranty of title, binding upon Mortgagor,
(iv) each recital contained in any instrument of conveyance made by Mortgagee
shall conclusively establish the truth and accuracy of the matters recited
therein, including, without limitation, nonpayment of the Obligations,
advertisement and conduct of such sale in the manner provided herein and
otherwise by law, (v) any prerequisites to the validity of such sale shall be
conclusively presumed to have been performed, (vi) the receipt of Mortgagee or
other party making the sale shall be a sufficient discharge to the purchaser or
purchasers for his or their purchase money and no such purchaser or purchasers,
or his or their assigns or personal representatives, shall thereafter be
obligated to see to the application of such purchase money or be in any way
answerable for any loss, misapplication or nonapplication thereof, and (vii) to
the fullest extent permitted by law, Mortgagor shall be completely and
irrevocably divested of all of its right, title, interest, claim, equity,
equity of redemption, and demand whatsoever, either at law or in equity, in and
to the property sold and such sale shall be a perpetual bar both at law and in
equity against Mortgagor, and against all other persons claiming or to claim
the property sold or any part thereof, by, through or under Mortgagor.
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof
and in lieu of paying cash therefor may make settlement for the purchase price
by crediting upon the Obligations the net sales price after deducting therefrom
the expenses of the sale and costs of the action and any other sums which
Mortgagee is authorized to deduct under this Mortgage.
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(d) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect in any manner or to any extent the lien of
this Mortgage upon the Mortgaged Property or any part thereof, or any liens,
rights, powers or remedies of Mortgagee hereunder, but such liens, rights,
powers and remedies of Mortgagee shall continue unimpaired as before.
(e) Mortgagee may terminate or rescind any proceeding or other
action brought in connection with its exercise of the remedies provided in this
Section 21 at any time before the conclusion thereof, as determined in
Mortgagee's sole discretion and without prejudice to Mortgagee.
(f) Mortgagee may resort to any remedies and the security given by
this Mortgage or the other Loan Documents in whole or in part, and in such
portions and in such order as determined by Mortgagee's sole discretion. No
such action shall in any way be considered a waiver of any rights, benefits or
remedies evidenced or provided by this Mortgage or the other Loan Documents.
The failure of Mortgagee to exercise any right, remedy or option provided in
this Mortgage or the other Loan Documents shall not be deemed a waiver of such
right, remedy or option or of any covenant or obligation secured by this
Mortgage or the other Loan Documents. No acceptance by Mortgagee of any payment
after the occurrence of any Event of Default and no payment by Mortgagee of any
obligation for which Mortgagor is liable hereunder shall be deemed to waive or
cure any Event of Default with respect to Mortgagor, or Mortgagor's liability
to pay such obligation. No sale of all or any portion of the Mortgaged
Property, no forbearance on the part of Mortgagee, and no extension of time for
the payment of the whole or any portion of the Obligations or any other
indulgence given by Mortgagee to Mortgagor, shall operate to release or in any
manner affect the interest of Mortgagee in the remaining Mortgaged Property or,
subject to the provisions of Section 49, the liability of Mortgagor to pay the
Obligations. No waiver by Mortgagee shall be effective, unless it is in writing
and then only to the extent specifically stated. No right, power or remedy,
including, without limitation, remedies with respect to any security for the
Note, conferred upon or reserved to Mortgagee by this Mortgage or any other
Loan Document is exclusive of any other right, power or remedy, but each and
every such right, power and remedy shall be cumulative and concurrent and shall
be in addition to any other right, power and remedy given hereunder or under
any other Loan Document, now or hereafter existing at law, in equity or by
statute, and Mortgagee shall be entitled to resort to such rights, powers,
remedies or security as Mortgagee shall in its sole and absolute discretion
deem advisable.
(g) The interests and rights of Mortgagee under this Mortgage or
the other Loan Documents shall not be impaired by any indulgence, including (i)
any renewal, extension or modification which Mortgagee may grant with respect
to any of the Obligations, (ii) any surrender, compromise, release, renewal,
extension, exchange or substitution which Mortgagee may grant with respect to
the Mortgaged Property or any portion thereof; or (iii) any release or
indulgence granted to any maker, endorser, guarantor or surety of any of the
Obligations.
(h) Mortgagor agrees to the full extent permitted by law that if
an Event of Default occurs, neither Mortgagor nor anyone claiming through or
under it shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws now or hereafter in
force, in order to prevent or hinder the enforcement or foreclosure of this
Mortgage or the absolute
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sale of the Mortgaged Property or any portion thereof or the final and absolute
putting into possession thereof, immediately after such sale, of the purchasers
thereof, and Mortgagor for itself and all who may at any time claim through or
under it, hereby waives, to the full extent that it may lawfully do so, (i) the
benefit of all such laws, (ii) all notices of any Event of Default or of
Mortgagee's election to exercise or actual exercise of any right, remedy or
recourse provided for under the Loan Documents, and (iii) any and all right to
have the assets comprising the Mortgaged Property marshaled upon any
foreclosure of the lien hereof, and Mortgagor agrees that Mortgagee or any
court having jurisdiction to foreclose such lien may sell the Mortgaged
Property in part or as an entirety.
22. Right of Access. Mortgagee and its agents shall have the right
to enter and inspect the Mortgaged Property as provided in Section 5.1(K) of
the Loan Agreement.
23. Reasonable Use and Occupancy. In addition to the rights which
Mortgagee may have herein, upon the occurrence of any Event of Default which
shall remain uncured, Mortgagee, at its option, may require Mortgagor to pay
monthly in advance to Mortgagee, or any receiver appointed to collect the
Rents, the fair and reasonable rental value for the use and occupation of such
part of the Mortgaged Property as may be occupied by Mortgagor or may require
Mortgagor to vacate and surrender possession of the Mortgaged Property to
Mortgagee or to such receiver and, in default thereof, Mortgagor may be evicted
by summary proceedings or otherwise.
24. Security Agreement. This Mortgage is both a real property
mortgage/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 Obligations, 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. Mortgagor shall keep all of its Equipment now held or subsequently
acquired by it at the location specified on Exhibit A hereto, unless Mortgagor
shall have given to Mortgagee prior written notice thereof and shall have in
advance of such establishment of a new location executed and caused to be filed
and/or delivered to Mortgagee any additional financing statements or other
documents required by Mortgagee in order to perfect, protect and preserve
Mortgagee's security interest with respect to any Equipment described or
referred to herein, all in form and substance satisfactory to Mortgagee. This
Mortgage shall also constitute a "fixture filing" for the purposes of the
Uniform Commercial Code. All or part of the Mortgaged Property is or is 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 which
shall remain uncured, Mortgagee, in addition to any other rights and remedies
which it may have, shall have and may exercise, immediately and without demand,
any and all rights and remedies granted to a secured party upon default under
the Uniform Commercial Code, (including,
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without limitation, 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 therefor any and all expenses
(including, without limitation, reasonable 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 of the Loan
Agreement at least ten (10) Business Days prior to such action or such notice
as is otherwise required by law or the Loan Agreement, 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 Obligations in such priority and proportions as required by the Loan
Agreement. In the event of any change in name, identity or structure of
Mortgagor, Mortgagor shall notify Mortgagee thereof and, promptly after
request, shall execute, file and record such Uniform Commercial Code forms as
are necessary to maintain the priority of Mortgagee's and 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 this Mortgage or 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
financial or other statements signed only by Mortgagee, as secured party, in
connection with the Collateral covered by this Mortgage.
25. 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 reasonable discretion, decides should be
brought to (a) protect its interest under this Mortgage in the Mortgaged
Property, (b) prevent any impairment of the Mortgaged Property by any acts
which may be unlawful or any violation of this Mortgage or (c) restrain the
enforcement of or compliance with any legislation or other legal requirement
that may be unconstitutional or otherwise invalid, if the enforcement of or
compliance with such enactment, rule or order might impair the security
hereunder or be prejudicial to Mortgagee's interest. 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 Obligations, and any such subrogation
rights shall constitute additional security for the payment of the Obligations.
26. Waiver of Setoff and Counterclaim. Except as may be permitted
under the Loan Agreement, all amounts due under this Mortgage, the Note and the
other Loan Documents shall be payable without setoff, counterclaim or any
deduction whatsoever. Except as may be permitted under the Loan Agreement,
Mortgagor hereby waives the right to assert a counterclaim in any action or
proceeding brought against it by Mortgagee, or arising out of or in any way
connected with this Mortgage and the other Loan Documents, or the Obligations.
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27. Contest of Certain Claims. Notwithstanding the provisions of
Section 4 and Section 7, Mortgagor shall not be in default for failure to pay
or discharge Impositions, Other Charges or mechanic's or materialman's lien
asserted against the Mortgaged Property or for failure to comply with any Legal
Requirement if, and so long as, (a) Mortgagor shall have notified Mortgagee of
same within ten (10) business 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) unless funds are otherwise reserved, Mortgagor shall
furnish to Mortgagee a cash deposit, or an indemnity bond satisfactory to
Mortgagee with a surety reasonably satisfactory to Mortgagee, in the amount of
the Impositions, Other Charges, or mechanic's or materialman's lien claim or
penalties or fines relating to the failure to comply with any Legal
Requirement, 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 timely upon
final determination thereof pay the amount of any such Impositions, Other
Charges, claim, fine or penalty so determined, together with all costs,
interest and penalties which may be payable in connection therewith; (e) the
failure to pay the Impositions, 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 Impositions, Other Charges or claim notwithstanding such
contest, if in the reasonable opinion of Mortgagee, the Mortgaged Property or
any part thereof or interest therein may be in danger of being sold, forfeited,
foreclosed, terminated, cancelled or lost. Mortgagee may pay over any such cash
deposit or part thereof to the claimant entitled thereto at any time when, in
the reasonable judgment of Mortgagee, the entitlement of such claimant is
conclusively established.
28. 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 Obligations as the same become due and owing, without
regard to whether or not the balance of the Obligations 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.
29. Marshalling, Waiver of Redemption and Other Matters. Mortgagor
hereby waives, to the extent permitted by law, the benefit of all appraisement,
valuation, stay, extension, reinstatement and redemption laws now or hereafter
in force and all rights of marshalling in the event of any sale hereunder of
the Mortgaged Property or any part thereof or any interest therein. Further,
Mortgagor hereby expressly waives any and all rights of redemption from sale
under any order or decree of foreclosure of this Mortgage on behalf of
Mortgagor, and on behalf of each and every person acquiring any interest in or
title to the Mortgaged Property subsequent to the date of this Mortgage and on
behalf of all persons to the extent permitted by applicable law.
30. Hazardous Substances. Mortgagor shall comply with all
provisions of the Loan Documents relating to Environmental Laws, Environmental
Claims and Hazardous Substances.
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31. Handicapped Access. (a) Mortgagor agrees that the Mortgaged
Property shall at all times comply to the extent applicable with the
requirements of the Americans with Disabilities Act of 1990, all state and
local laws and ordinances related to handicapped access and all rules,
regulations, and orders issued pursuant thereto (including, without limitation,
the Americans with Disabilities Act Accessibility Guidelines for Buildings and
Facilities) (collectively, the "Access Laws"), except for violations that are
not reasonably like to result in a Material Adverse Effect.
(b) Notwithstanding any provisions set forth herein (including the
provisions of Section 7) or in any other document regarding Mortgagee's
approval of alterations of the Mortgaged Property, Mortgagor shall not alter
the Mortgaged Property in any manner which would materially increase
Mortgagor's responsibilities for compliance with the applicable Access Laws
without the prior written approval of Mortgagee which approval shall not
unreasonably be withheld provided that Mortgagor can demonstrate the
availability of funding sources adequate to comply with such requirements. The
foregoing shall apply to tenant improvements constructed by Mortgagor or by any
of its tenants. Mortgagee may condition any such approval upon receipt from
Mortgagor of a certificate of Access Law compliance from an architect,
engineer, or other person acceptable to Mortgagee or other reasonably
satisfactory evidence of compliance.
(c) Mortgagor agrees to give prompt notice to Mortgagee of the
receipt by Mortgagor of any complaints related to violations of any Access Laws
received from governmental authorities or involving a threat of litigation and
of the commencement of any proceedings or investigations which relate to
compliance with applicable Access Laws.
(d) Mortgagor shall protect, defend, indemnify and save harmless
Mortgagee 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 Mortgagee by reason of any
failure of the Mortgaged Property to comply with any Access Laws.
32. Notice. All notices, demands, statements, requests or consents
(collectively, "notices") made hereunder shall be in writing and given in the
manner specified in the Loan Agreement.
33. 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 or any other Loan Document 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 or any other
Loan Document does not specifically and expressly provide for the giving of
notice by Mortgagee to Mortgagor.
34. Remedies of Mortgagor. In the event that a claim or
adjudication is made that Mortgagee or its agents have unreasonably delayed
acting in any case where by law or under this Mortgage or the other Loan
Documents, Mortgagee or such agent, as the case may be, has an obligation to
act promptly, Mortgagor agrees that none of Mortgagee or its agents shall be
liable for
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any monetary damages, and Mortgagor's sole remedies shall be limited to
commencing an action seeking injunctive relief or declaratory judgment.
35. 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.
36. 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 to take any action to foreclose this Mortgage or otherwise enforce
any of the provisions hereof or of the 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 Obligations 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 this Mortgage or the other
Loan Documents. Mortgagee may resort for the payment of the Obligations 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 Obligations,
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.
37. No Oral Change. This Mortgage, and any provisions hereof, 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.
38. Successors and Assigns. 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.
39. Severability. If any term, covenant or condition of this
Mortgage or the Loan Documents is held to be invalid, illegal or unenforceable
in any respect, this Mortgage and any such other Loan Document shall be
construed without such provision.
40. 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.
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41. Duplicate Originals. This Mortgage may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to be an original.
42. Definitions; Interpretation. 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 "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, without limitation, 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. If, and to the
extent that, any provision of this Mortgage shall conflict or be inconsistent
with a provision contained in the Loan Agreement, then, unless this Mortgage
shall expressly provide that this Mortgage shall control notwithstanding any
other Loan Document to the contrary, the Loan Agreement provision shall
control.
43. 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 Land as against the collection of the
Obligations, or any part hereof.
44. Assignments. Consistent with the applicable provisions of the
Loan Agreement, Mortgagee shall have the right to assign or transfer its rights
under this Mortgage without limitation. Any assignee or transferee shall be
entitled to all the benefits afforded Mortgagee under this Mortgage.
45. Waiver of Jury Trial. MORTGAGOR HEREBY AGREES NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THE NOTE, THIS MORTGAGE, OR THE OTHER LOAN DOCUMENTS, OR
ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS
WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY
MORTGAGOR, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH
ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE.
MORTGAGEE IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY
PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MORTGAGOR.
46. Governing Law. The Loan Agreement and the Note provide that
they are governed by, and construed and enforced in accordance with, the laws
of the State of New York. This Mortgage shall also be construed under and
governed by the laws of the State of New York.
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Notwithstanding the parties' choice of New York law, however, (i) the terms and
provisions of this Mortgage pertaining to the priority, enforcement or
realization by Mortgagee of its respective rights and remedies under this
Mortgage with respect to the Mortgaged Property shall be governed and construed
and enforced in accordance with the internal law of the state in which the Land
is located (the "State") without giving effect to the conflicts-of-law rules
and principles of the State; (ii) Mortgagor agrees that to the extent
deficiency judgments are available under the laws of the State after a
foreclosure (judicial or nonjudicial) of the Mortgaged Property, or any portion
thereof, or any other realization thereon by Mortgagee, Mortgagee shall have
the right to seek such a deficiency judgment against Mortgagor in the State;
and (iii) Mortgagor agrees that if Mortgagee obtains a deficiency judgment in
another state, then Mortgagee shall have the right to enforce such judgment in
the State to the extent permitted under the laws of the State, as well as in
other states. Any reference to "days" in this Mortgage shall mean "calendar
days."
47. Time of Essence. Time is of the essence of this Mortgage and
of every part hereof of which time is an element.
48. Statute of Limitations. To the fullest extent allowed by law,
the right to plead, use or assert any statute of limitations as a plea or
defense or bar of any kind, or for any purpose, to any debt, demand or
obligation secured or to be secured hereby, or to any complaint or other
pleading or proceeding filed, instituted or maintained for the purpose of
enforcing this Mortgage or any rights hereunder, is hereby waived by Mortgagor.
49. Non-Recourse. The provisions of this Mortgage are subject to
the provisions of Section 8.24 of the Loan Agreement which are incorporated
herein in reference as if herein set forth in full.
50. Future Advances. This Mortgage shall also secure any
additional sum or sums advanced by the then holder of the Note to the then
owner of the Mortgaged Property at any time within twenty (20) years from the
date of this Mortgage, with interest thereon at the rate agreed upon at the
time of each additional loan or advance. Any such future advances shall be
added to and constitute a part of the Obligations secured by this Mortgage to
the same extent as if made contemporaneously with the execution of this
Mortgage, and will be subject to all of the terms and provisions of this
Mortgage, whether or not such additional loan or advance is evidenced by a
promissory note of the borrower and whether or not identified by a recital that
is secured by this Mortgage, provided however, that the aggregate amount of
principal indebtedness outstanding at any one time and secured by this Mortgage
shall not exceed the sum of $150,000,000. The provisions of this Section 50
shall apply regardless of whether any such advance is characterized as
obligatory or discretionary, but nothing contained in this Section is intended
or shall be construed to obligate the Mortgagee to make any additional loans or
advances.
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Mortgagor has executed this instrument the day and year first above written.
MORTGAGOR:
WITNESSES: ECHELON INTERNATIONAL CORPORATION,
a Florida corporation
--------------------------------- By:
Name: ---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
Address: Xxx Xxxxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
---------------------------------
Name:
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00
XXXXXXXXXXXXXX
XXXXX XX XXX XXXX )
)
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this ___ day of
November, 1996, by _____________________, as _______________________ of Echelon
International Corporation, a Florida corporation, on behalf of such
corporation. He/She either [please check as applicable] ____ is personally
known to me, or ____ has presented ____________________ as identification.
___________________________________
Notary Public
Print Name:
_______________________
(NOTARIAL SEAL)
My Commission Expires:
Commission No.:
_________
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EXHIBIT A-1
LEGAL DESCRIPTION
[100 CARILLON]
ALL that certain tract, piece or parcel of land, situate, lying and being in
Pinellas County, State of Florida, being more particularly described as
follows:
PARCEL 1:
Lot One (1), Block Eight (8), Replat of Carillon, according to the map or Plat
thereof recorded in Plat Book 96, pages 29 through 36, inclusive, Public
Records of Pinellas County, Florida.
PARCEL 2:
All of the right, title and interest which run with the aforesaid land
described as Parcel I, under that certain Declaration of Protective Covenants,
Building Standards and Easements of Carillon recorded in O.R. Book 6340, page
266, and First Supplement thereto recorded in O.R. Book 6340, page 366 and
further supplemented by the following: O.R. Book 6485, page 762; O.R. 9283,
page 202; O.R. Book 9283, page 206; O.R. Book 9329, page 11; O.R. Book 9334,
page 386; O.R. Book 9336, page 433; O.R. Book 9350, page 1691; O.R. Book 9452,
page 822; and O.R. Book 9457, page 876.
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EXHIBIT A-2
[XXXXXXX TOWER]
ALL that certain tract, piece or parcel of land, situate, lying and being in
Pinellas County, State of Florida, being more particularly described as
follows:
Xxx 0, Xxxxx 0, Xxxxxxxx Xxxxxx Xxxxxx, according to the map or plat thereof
recorded in Plat Book 100, Page 65, Public Records of Pinellas County, Florida.
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EXHIBIT A-3
[HIGHPOINT CENTER]
ALL that certain tract, piece or parcel of land, situate, lying and being in
Xxxx County, State of Florida, being more particularly bounded and described as
follows:
Begin at the Southeast corner of Lot Number 177 in the Original Plan of the
City of Tallahassee, according to the map or Plat thereof recorded in Plat Book
1, page 10, Public Records of Xxxx County, Florida, where it corners with Lot
Number 178, on College Avenue, formerly Clinton Street, and thence run West
along the North side of Xxxxxxx Xxxxxx 00 feet to a point which is the Point of
Beginning, and which is approximately 150 feet East of the corner of Xxxxx
Street and College Avenue, thence run North 153 feet and 4 inches, thence West
52 feet and 2 inches, thence South 36 feet and 8 inches, thence East 6 inches,
thence South 36 feet and 8 inches, thence East 14 inches, thence South 80 feet
to the North side of College Avenue, thence East along the North side of
Xxxxxxx Xxxxxx 00 feet and 6 inches to the Point of Beginning;
AND ALSO
Begin at the Southeast corner of Lot Number 177 in the Original Plan of the
City of Tallahassee, according to the map or Plat thereof recorded in Plat Book
1, Page 10, Public Records of Xxxx County, Florida, thence run North 153 feet
and 4 inches, thence West 10 feet, thence South 153 feet and 4 inches, thence
East 10 feet, to the Point of Beginning.
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EXHIBIT A-4
[XxXXXXX STATION]
ALL that certain tract, piece or parcel of land, situate, lying and being in
Pinellas County, State of Florida, being more particularly described as
follows:
Xxxx 0, 0, 0, 0, 0, 0, 0, 0, 0, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20,
Block 36, Revised Map of the City of St. Petersburg, according to the map or
plat thereof recorded in Plat Book 1, Page 49, of the Public Records of
Hillsborough County, Florida, of which Pinellas County, Florida was formerly a
part.
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EXHIBIT A-5
[PROGRESS CENTER]
ALL that certain tract, piece or parcel of land, situate, lying and being in
Alachua County, State of Florida, being more particularly described as follows:
PARCEL 1:
Parcels A and C of REPLAT OF PROGRESS CENTER, according to the map or plat
thereof recorded in Plat Book P, pages 48 and 49, of the public records of
Alachua County, Florida.
PARCEL 2:
TOGETHER WITH a perpetual, non-exclusive, alienable easement for the flow of
storm water, surface water, groundwater and any other diffused water, including
ingress, egress, access, use and maintenance on, over, across, under and
through the real property described in Exhibit "A" to that certain Drainage
Easement Agreement recorded October 8, 1991 in O.R. Book 1830, Page 345, Public
Records of Alachua County, Florida.
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EXHIBIT A-6
[MARINA]
ALL that certain tract, piece or parcel of land, situate, lying and being in
Pinellas County, State of Florida, being more particularly described as
follows:
PARCEL 1:
Lots 9 through 14 inclusive in Block 4; Lots 7 and 8 in Block 14; The South 40
feet of Lot 8 in Block 15; and Lots 15 and 16, inclusive, in Block 16; Lots 1
and 2 and the North 10 feet of Lot 3 in Block 17; Lots 9 through 13 inclusive
in Block 25 of X. X. XXXXXXX'X REARRANGEMENT of X.X. XXXXXXX'X PLAN OF BAYBORO,
according to the map or plat thereof recorded in Plat Book 1, Page 19, of the
public records of Pinellas County, Florida.
PARCEL 2:
Xxx 0 xx Xxxxx 0 xx XXXXXXX XXXXXX SUBDIVISION, according to the map or plat
thereof recorded in Plat Book 89, Page 93, of the public records of Pinellas
County, Florida.
PARCEL 3:
Lot 3 less the North 10 feet and all of Xxxx 0, 0, xxx 0 xx Xxxxx 17 of X.X.
XXXXXXX'X REARRANGEMENT OF X.X. XXXXXXX'X PLAN OF BAYBORO, according to the map
or plat thereof recorded in Plat Book 1, Page 19, of the public records of
Pinellas County, Florida.
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EXHIBIT A-7
[WAREHOUSE]
ALL that certain tract, piece or parcel of land, situate, lying and being in
Hillsborough County, State of Florida, being more particularly described as
follows:
PARCEL 1:
Beginning at a point fifty feet North (50 ft. N.) of the center of the main
line track of the Atlantic Coast Line Railroad Company and 196.74 feet East of
the West boundary of Lot Eight (8) of Knight's Subdivision of a portion of
Xxxxxxx 00, Xxx. 00 Xxxxx, Xxxxx 19 East, which point of beginning is
twenty-five (25) feet North of the South line of said Knight's Subdivision,
running thence North 436.2 feet to the South boundary of the right-of-way of
Xxxxx Xxxx Xx. 00 (Xxxx Xxxxxxxx), thence in a Southwesterly direction along
the Southerly boundary of Xxxxx Xxxx Xx. 00 for 155.6 feet; thence South 234.6
ft; thence West 75.0 ft; thence South 160.0 ft. to a point 50.0 feet North of
the center of the main line track of the Atlantic Coast Line Railroad Company,
which point is 25.0 ft. North of the South line of said Knight's Subdivision,
thence East 225.0 feet to the point of beginning; being portions of Lots seven
(7) and Eight (8) of Knight's Subdivision, as recorded in Plat Book 1, Page 84
of the public records of Hillsborough County, Florida.
PARCEL 2:
Beginning at the intersection of the East Boundary of Lot 7 of Knight's
Subdivision, as recorded in Plat Book 1, Page 84, of the public records of
Hillsborough County, Florida, with the Southerly boundary of East Broadway (Old
State Road #23), as now exists, and run thence Westerly along said Southerly
boundary of East Broadway a distance of 278.5 feet, thence South, parallel to
the East boundary of said Lot 7, to a point 50.0 feet North of the center line
of the ACL Railroad main line track; thence run East, parallel to and 50.0 feet
North of said center line of ACL main line track a distance of 240.0 feet, more
or less, to a point 28.26 feet West of the East boundary of said Lot 7; thence
North, parallel to said East boundary of Lot 7 a distance of 160.0 feet; thence
East, parallel to the South boundary of said Lot 7 a distance of 75.0 feet to a
point 46.74 feet East of the West boundary of Lot 8 of said Knight's
Subdivision; thence North, parallel to the said West boundary of Lot 8, a
distance of 234.6 feet to the Southerly boundary of East Broadway, as now
exists; thence run Westerly along said Southerly boundary of East Broadway 48.4
to the point of beginning.
PARCEL 3:
That part of Lot 8 of Knight's Subdivision, as per map or plat thereof in Plat
Book 1, on Page 84 of the public records of Hillsborough County, Florida, being
more particularly described as follows: Beginning at a point on the North
boundary of said Xxx 0, 000 xx. Xxxxxxxxxxxxx of the Northeast corner of said
Lot 8, thence run Southwesterly along said North boundary, 80 ft., thence run
South parallel with the East boundary of said Lot 8 to the South boundary of
said Lot 8, thence run East 101.22 ft. to a point 192.8 ft. West of the
Southeast corner of said Lot 8, said point being on the
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West boundary line of County Road deeded to Hillsborough County by deed
recorded in Deed Book 929 on Page 31, thence Northwesterly along said Right of
Way to the point of beginning, LESS that part of said tract lying within 33 ft.
of the center line of Old State Road Number 23.
PARCEL 4:
Beginning at the Southwest corner of Lot 7 of Knight's Subdivision, as per map
or plat thereof recorded in Plat Book 1 on Page 84 of the public records of
Hillsborough County, Florida, run thence East along the South boundary of said
Lot 7, 212.52 feet for a point of beginning, run thence North 0 degrees 10'
West 292.22 feet, more or less, to an intersection with the South boundary of
the present right of way of East Broadway, thence in a Southwesterly direction
along the South boundary of the right of way of the said East Broadway a
distance of 15.95 feet, thence South to an intersection with the South boundary
of the said Lot 7 at a point 18 feet West measured on the said South boundary
from the point of beginning, thence East 18 feet to the point of beginning.
PARCEL 5:
Begin at a point 3 chains and 22 links East of the Southwest corner of Lot 7 of
Knight's Subdivision, of the South half of the NE 1/4 of Section 16, Township
29 South, Range 19 East, running thence East 2 chains and 20 links, thence
North 4 chains and 66 links to a brick road, thence Westerly along said brick
road to a point North of point of beginning, thence South 4.10 chains to point
of beginning, lying and being in Hillsborough County, Florida.
TOGETHER WITH the real property as set forth in Ordinance No. 5827-A adopted on
January 3, 1974 by the City Council of City of Tampa, vacating, closing and
abandoning 00xx Xxxxxx between East Broadway (State Road 574) on the North and
the Seaboard Coast Line Railway right-of-way on the South.
PARCEL 6:
Beginning at the Southeast corner of Lot 8 of Knight's Subdivision according to
map or plat thereof as recorded in Plat Book 1, Page 84, public records of
Hillsborough County, Florida; running thence North along the East boundary line
of said Xxx 0 xx xxx Xxxxxxxxx xxxxxx xx xxxx Xxx 0; running thence in a
Southwesterly direction along the North boundary line of said Lot 8, 200 feet;
running thence South parallel with the East boundary line of said Lot 8 to the
South boundary line of said lot 8 running thence East along the South boundary
line of said Lot 8 to the point of beginning, being a part of the South 1/2,
Northeast 1/4, Section 16, Township 29 South, Range 19 East, and being the East
192.8 feet of said Xxx 0, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx.
All of the foregoing Parcels 1 through 6, inclusive, TRACT "A" being also
described as follows:
A parcel of land lying in and being a part of Lot 7 and Lot 8, KNIGHT'S
SUBDIVISION, as recorded in Plat Book 1, Page 84, of the Public Records of
Hillsborough County, Florida; said parcel being more particularly described as
follows:
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Beginning at the intersection of the Southerly right-of-way line of West
Seventh Street (formerly East Broadway), a 66-foot right-of-way as now
established, with the East line of said Lot 8, also being the West line of X.
X. Xxxxx'x Subdivision, as recorded in Plat Book 2, Page 41, of said Public
Records; thence, on the East line of said Xxx 0, Xxxxx 00 degrees 03 minutes 47
seconds West, 571.35 feet to the North line of the CSX (formerly Atlantic Coast
Line) Railroad, a 100-foot right-of-way as now established; thence, on said
North right-of-way line, North 89 degrees 56 minutes 13 seconds West, 1120.00
feet; thence, parallel with the East line of said Xxx 0, Xxxxx 00 degrees 03
minutes 47 seconds East, 258.27 feet to the Southerly right-of-way line of said
West Seventh Street; thence, on said Southerly right-of-way line, North 74
degrees 26 minutes 44 seconds East, 1162.94 feet to the Point of Beginning.
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Schedule 1
1. As to the property described on Exhibit A-2 (Xxxxxxx Tower), Mortgagor
is the successor by merger to TALQUIN DEVELOPMENT COMPANY, a Florida
corporation ("TDC").
2. Exhibit A-4 (XxXxxxx Station), Mortgagor is the successor by merger to
TDC, formerly known as XXXXXXXXX EQUITIES, INC. ("XXXXXXXXX"), a
Florida corporation.
3. As to the property described on Exhibit A-5 (Progress Center),
Mortgagor is the successor by merger to TDC, formerly known as
XXXXXXXXX, successor by merger to APALACHEE DEVELOPMENT COMPANY, a
Florida corporation.
4. As to the property described on Exhibit A-6 (Marina), Mortgagor is the
successor by merger to TDC, as to Parcels 1 and 2, and to PROGRESS
CREDIT CORPORATION, a Florida corporation, as to Parcel 3.
5. As to the property described on Exhibit A-7 (7th Avenue/Warehouse),
Mortgagor is the successor by merger to TDC, successor by merger CROWN
WINDOW COMPANY, a Florida corporation.
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