EXHIBIT 10.2.5
THIS INSTRUMENT PREPARED BY,
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
Xxxxx X. Xxxxx, Esquire
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
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Space Above This Line For Recorder's Use
OPEN-END FEE AND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
by
THI OF OHIO REAL ESTATE HOLDING COMPANY, LLC
and
THI OF OHIO AT COLUMBUS, LLC,
each a Delaware limited liability company,
and each having an address at
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxxxx 00000
(collectively, as mortgagor)
to
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership,
having an address at
0000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
(as mortgagee)
(THE MAXIMUM PRINCIPAL AMOUNT NOT TO EXCEED $60,000,000)
Property: Columbus Quality Care
0000 Xxxxx Xxxx
Xxxxxxxx, XX
OPEN-END FEE AND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
THIS OPEN-END FEE AND LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (as
amended, restated, replaced, supplemented or otherwise modified from time to
time, this "Security Instrument") is made as of November 1, 2002, by THI OF OHIO
REAL ESTATE HOLDING COMPANY, LLC (the "Fee Owner") and THI OF OHIO AT COLUMBUS,
LLC (the "Operator"), each a Delaware limited liability company, and each having
its principal place of business at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx,
Xxxxxxxxxxxx 00000, collectively as mortgagor (Fee Owner and Operator are
referred to herein individually as, a "Borrower" and collectively as, the
"Borrowers") for the benefit of VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware
limited partnership, having an address at 0000 Xxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000, as mortgagee (together with its successors and
assigns, "Lender").
W I T N E S S E T H
WHEREAS, this Security Instrument is given to secure a loan (the
"Loan") in the maximum principal sum of FIFTY FIVE MILLION AND NO/100 DOLLARS
($55,000,000.00) or so much thereof as may be advanced pursuant to that certain
Loan Agreement dated as of the date hereof among the Borrowers, certain
Affiliates of the Borrowers named therein (collectively, the "Other Borrowers")
and Lender (as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time, the "Loan Agreement") and evidenced by
that certain Promissory Note dated the date hereof made by the Borrowers and the
Other Borrowers to Lender (such Note, together with all extensions, renewals,
replacements, components, restatements or modifications thereof being
hereinafter referred to as the "Note");
WHEREAS, each Borrower desires to secure the payment of the Debt (as
defined in the Loan Agreement) and the performance of all of its obligations
under the Note, the Loan Agreement and the other Loan Documents (as defined
below); and
WHEREAS, this Security Instrument is given pursuant to the Loan
Agreement, and payment, fulfillment, and performance by each Borrower of its
obligations thereunder and under the other Loan Documents are secured hereby,
and each and every term and provision of the Loan Agreement and the Note,
including the rights, remedies, obligations, covenants, conditions, agreements,
indemnities, representations and warranties of the parties therein, are hereby
incorporated by reference herein as though set forth in full and shall be
considered a part of this Security Instrument (the Loan Agreement, the Note,
this Security Instrument, that certain Assignment of Leases, Rents and Contracts
of even date herewith made by the Borrowers in favor of Lender (the "Assignment
of Leases") and all other documents evidencing or securing the Debt or delivered
in connection with the making of the Loan are hereinafter referred to
collectively as the "Loan Documents").
NOW THEREFORE, in consideration of the making of the Loan by Lender and
the covenants, agreements, representations and warranties set forth in this
Security Instrument:
ARTICLE 1 - GRANTS OF SECURITY
Section 1.1 Property Mortgaged. Each Borrower does hereby irrevocably
mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey to
Lender and its successors and assigns, with Power of Sale, all of its right,
title and interest in the following property, rights, interests and estates now
owned, or hereafter acquired by such Borrower (collectively, the "Property").
(a) Land. (i) The real property described in Exhibit A attached
hereto and made a part hereof (the "Land") including, without limitation,
all As Extracted Collateral (as defined in Article 9 of the Uniform
Commercial Code in the jurisdiction where the Land is located (as the same
may be amended, modified or revised from time to time, the "Uniform
Commercial Code")), all minerals, oil, gas and other hydrocarbon substances
on, in or under the Land and (ii) Operator's leasehold interest created by
that certain Lease of even date herewith by and between Fee Owner and
Operator (as amended, restated, replaced, supplemented or otherwise
modified from time to time, the "Operating Lease"), together with all
right, title and interest in and to any right pursuant to Section 365(h) of
the Bankruptcy Code (as defined below) or any successor to such Section (x)
to possession of any statutory term of years derived from or incident to
the Operating Lease or (y) to treat the Operating Lease as terminated;
(b) Additional Land. All xxxxxxxxxx xxxxx, xxxxxxx and
development rights hereafter acquired by such Borrower for use in
connection with the Land and the development of the Land and all additional
lands and estates therein which may, from time to time, by supplemental
mortgage or otherwise be expressly made subject to the lien of this
Security Instrument;
(c) Improvements. The buildings, structures, fixtures,
additions, enlargements, extensions, modifications, repairs, replacements
and improvements now or hereafter erected or located on the Land
(collectively, the "Improvements");
(d) Easements. All easements, rights-of-way or use, rights,
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,
servitudes, tenements, hereditaments and appurtenances of any nature
whatsoever, in any way now or hereafter belonging, relating or pertaining
to the Land and the Improvements and the reversion and reversions,
remainder and remainders, and all land lying in the bed of any street, road
or avenue, opened or proposed, in front of or adjoining the Land, to the
center line thereof and all the estates, rights, titles, interests, dower
and rights of dower, curtesy and rights of curtesy, property, possession,
claim and demand whatsoever, both at law and in equity, of such Borrower
of, in and to the Land and the Improvements and every part and parcel
thereof, with the appurtenances thereto;
(e) Equipment. All "equipment," as such term is defined in the
Uniform Commercial Code, now owned or hereafter acquired by such Borrower,
which is used at or in connection with the Improvements or the Land or is
located thereon or therein (including, but not limited to, all Software (as
defined in the Uniform Commercial Code),
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appliances, machinery, equipment, furniture, furnishings, and electronic
data-processing and other office equipment now owned or hereafter acquired
by such Borrower (including, without limitation, all beds, linens, radios,
televisions, carpeting, telephones, cash registers, computers, lamps,
glassware, restaurant and kitchen equipment, all medical, dental,
rehabilitation, therapeutic and paramedic equipment and supplies), and any
and all additions, substitutions and replacements of any of the foregoing),
together with all attachments, components, parts, equipment, accessions and
accessories installed thereon or affixed thereto (collectively, the
"Equipment"). Notwithstanding the foregoing, Equipment shall not include
any property belonging to tenants under leases except to the extent that
any Borrower shall have any right or interest therein;
(f) Fixtures. All Equipment and Goods (as defined in the Uniform
Commercial Code) now owned, or the ownership of which is hereafter
acquired, by such Borrower which is so related to the Land and Improvements
forming part of the Property that it is deemed fixtures or real property
under the law of the particular state in which the Land is located,
including, without limitation, all building or construction materials
intended for construction, reconstruction, alteration or repair of or
installation on the Land and Improvements, construction equipment,
appliances, machinery, plant equipment, fittings, apparatuses, fixtures and
other items now or hereafter attached to, installed in or used in
connection with (temporarily or permanently) any of the Improvements or the
Land, including, but not limited to, engines, devices for the operation of
pumps, pipes, plumbing, cleaning, call and sprinkler systems, fire
extinguishing apparatuses and equipment, heating, ventilating, plumbing,
laundry, incinerating, electrical, air conditioning and air cooling
equipment and systems, gas and electric machinery, appurtenances and
equipment, pollution control equipment, security systems, disposals,
dishwashers, refrigerators and ranges, recreational equipment and
facilities of all kinds, and water, gas, electrical, storm and sanitary
sewer facilities, utility lines and equipment (whether owned individually
or jointly with others, and, if owned jointly, to the extent of such
Borrower's interest therein) and all other utilities whether or not
situated in easements, all water tanks, water supply, water power sites,
fuel stations, fuel tanks, fuel supply, and all other structures, together
with all accessions, appurtenances, additions, replacements, betterments
and substitutions for any of the foregoing and the proceeds thereof
(collectively, the "Fixtures"). Notwithstanding the foregoing, "Fixtures"
shall not include any property which tenants are entitled to remove
pursuant to leases except to the extent that any Borrower shall have any
right or interest therein;
(g) Personal Property. All "accounts" (as defined in the Uniform
Commercial Code), Chattel Paper (including Electronic Chattel Paper and
Tangible Chattel Paper), Commercial Tort Claims, Commingled Goods, Deposit
Accounts, Documents, General Intangibles, Goods, Instruments, Inventory,
Investment Property, Letter of Credit Rights, Payment Intangibles,
Supporting Obligations (as such terms are defined in the Uniform Commercial
Code) , furniture, furnishings, objects of art, machinery, goods, tools,
supplies, appliances, contract rights, accounts receivable, franchises,
licenses, certificates and permits (including any Regulatory Permits), and
all other personal property of any kind or character whatsoever other than
Fixtures, which are now or hereafter owned by such Borrower and which are
located within or about or otherwise relate or pertain to the
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Land and the Improvements, together with all accessories, accessions,
replacements and substitutions thereto or therefor and the proceeds thereof
(collectively, together with the Equipment and the Proceeds, the "Personal
Property"), and the right, title and interest of such Borrower in and to
any of the Personal Property which may be subject to any security interests
superior in lien to the lien of this Security Instrument and all proceeds
and products of the above;
(h) Leases and Rents. All leases and other agreements affecting
the use, enjoyment or occupancy of the Land and the Improvements heretofore
or hereafter entered into (including, without limitation, the Operating
Lease, all patient admissions and resident care agreements, all lettings,
subleases, licenses, concessions, tenancies and other occupancy agreements
covering or encumbering all or any portion of the Property), whether before
or after the filing by or against such Borrower of any petition for relief
under 11 U.S.C. (S)101 et seq., as the same may be amended from time to
time (the "Bankruptcy Code") (collectively, the "Leases") and all right,
title and interest of such Borrower, its successors and assigns therein and
thereunder, including, without limitation, cash or securities deposited
thereunder to secure the performance by the lessees of their obligations
thereunder and all rents, additional rents, revenues (including, without
limitation, (i) rights to payment earned under the Leases for space in the
Improvements for the operation of ongoing businesses, such as restaurants,
news stands, xxxxxx shops, beauty shops and pharmacies and (ii) all other
income, consideration, profits and benefits of any nature arising from the
ownership, possession, use or operation of the Property, including, without
limitation Patient Revenues and Self-Pay Receivables), issues and profits
(including all oil and gas or other mineral royalties and bonuses) from the
Land and the Improvements whether paid or accruing before or after the
filing by or against such Borrower of any petition for relief under the
Bankruptcy Code (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 Debt;
(i) Condemnation Awards. All awards or payments, including
interest thereon, which may heretofore and hereafter be made with respect
to the Property, 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 the right), or for a change of grade, or
for any other injury to or decrease in the value of the Property;
(j) Insurance Proceeds. All proceeds in respect of the Property
under any insurance policies covering the Property, including, without
limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Property;
(k) Tax Certiorari. All refunds, rebates or credits in
connection with reduction in real estate taxes and assessments charged
against the Property as a result of tax certiorari or any applications or
proceedings for reduction;
(l) Rights. The right, in the name and on behalf of such
Borrower, to appear in and defend any action or proceeding brought with
respect to the Property and to commence any action or proceeding to protect
the interest of Lender in the Property;
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(m) Agreements. All agreements, contracts, certificates,
instruments, franchises, permits, licenses, plans, specifications and other
documents, now or hereafter entered into, and all rights therein and
thereto, respecting or pertaining to the use, occupation, construction,
management or operation of the Land and any part thereof and any
Improvements or respecting any business or activity conducted on the Land
and any part thereof and all right, title and interest of either Borrower
therein and thereunder, including, without limitation, the right, upon the
happening of any default hereunder, to receive and collect any sums payable
to either Borrower thereunder;
(n) Trademarks. All tradenames, trademarks, servicemarks, logos,
copyrights, goodwill, books and records and all other general intangibles
relating to or used in connection with the operation of the Property;
(o) Proceeds. All proceeds (including, without limitation, all
"proceeds" as defined in the Uniform Commercial Code) of any of the
foregoing, including, without limitation, proceeds of insurance and
condemnation awards, whether cash, liquidation or other claims or otherwise
(collectively, the "Proceeds"); and
(p) Other Rights. Any and all other rights of such Borrower in
and to the items set forth in Subsections (a) through (o) above.
AND without limiting any of the other provisions of this Security
Instrument, to the extent permitted by applicable law, each Borrower expressly
grants to Lender, as secured party, a security interest in the portion of the
Property which is or may be subject to the provisions of the Uniform Commercial
Code which are applicable to secured transactions; it being understood and
agreed that the Improvements and Fixtures are part and parcel of the Land (the
Land, the Improvements and the Fixtures collectively referred to as the "Real
Property") appropriated to the use thereof and, whether affixed or annexed to
the Real Property or not, shall for the purposes of this Security Instrument be
deemed conclusively to be real estate and mortgaged hereby.
Section 1.2 Assignment of Rents. Each Borrower hereby absolutely and
unconditionally assigns to Lender all of its right, title and interest in and to
all current and future Leases and Rents; it being intended by each Borrower that
this assignment constitutes a present, absolute assignment and not an assignment
for additional security only. Nevertheless, subject to the terms of the Loan
Agreement, Collection Account Agreement, Cash Management Agreement, the
Assignment of Leases and Section 7.1(h) of this Security Instrument, Lender
grants to the Borrowers a revocable license to collect, receive, use and enjoy
the Rents. The Borrowers shall hold the Rents, or a portion thereof sufficient
to discharge all current sums due on the Debt, for use in the payment of such
sums.
Section 1.3 Security Agreement. This Security Instrument is both a real
property mortgage and a "security agreement" within the meaning of the Uniform
Commercial Code. The Property includes both real and personal property and all
other rights and interests, whether tangible or intangible in nature, of each
Borrower in the Property. By executing and delivering this Security Instrument,
each Borrower hereby grants to Lender, as security for the Obligations
(hereinafter defined), a security interest in the Fixtures, the Equipment, the
Personal Property and
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other property constituting the Property to the fullest extent that security
interests in such property may be granted under and subject to the Uniform
Commercial Code (said portion of the Property so subject to the Uniform
Commercial Code being called the "UCC Collateral"). If an Event of Default shall
occur and be continuing, Lender, in addition to any other rights and remedies
which it may have, shall have and may exercise immediately and without demand,
any and all rights and remedies granted to a secured party upon default under
the Uniform Commercial Code, including, without limiting the generality of the
foregoing, the right to take possession of the UCC Collateral or any part
thereof, and to take such other measures as Lender may deem necessary for the
care, protection and preservation of the UCC Collateral. Upon request or demand
of Lender after the occurrence and during the continuance of an Event of
Default, each Borrower shall, at its expense, assemble the UCC Collateral and
make it available to Lender at a convenient place (at the Land if tangible
property) reasonably acceptable to Lender. Each Borrower shall pay to Lender on
demand any and all expenses, including reasonable legal expenses and attorneys'
fees, incurred or paid by Lender in protecting its interest in the UCC
Collateral and in enforcing its rights hereunder with respect to the UCC
Collateral after the occurrence and during the continuance of an Event of
Default. Any notice of sale, disposition or other intended action by Lender with
respect to the UCC Collateral sent to either Borrower in accordance with the
provisions hereof at least ten (10) business days prior to such action, shall,
except as otherwise provided by applicable law, constitute reasonable notice to
such Borrower. The proceeds of any disposition of the UCC Collateral, or any
part thereof, may, except as otherwise required by applicable law, be applied by
Lender to the payment of the Debt in such priority and proportions as Lender in
its discretion shall deem proper. The principal place of business of each
Borrower (Debtor) is as set forth on page one hereof and the address of Lender
(Secured Party) is as set forth on page one hereof. Each Borrower's location,
for purposes of Section 9-307 of the Uniform Commercial Code, such Borrower's
state of formation/incorporation/organization as set forth on page one hereof
("Borrower's Jurisdiction").
Section 1.4 Fixture Filing. Certain of the Property is or will become
"fixtures" (as that term is defined in the Uniform Commercial Code) on the Land,
described or referred to in this Security Instrument, and this Security
Instrument, upon being filed for record in the real estate records of the county
wherein such Land is situated, shall operate also as a financing statement filed
as a fixture filing in accordance with the applicable provisions of said Uniform
Commercial Code upon such of the Property that is or may become fixtures.
Alternatively, and/or in addition to the foregoing, Lender may file a separate
financing statement as a fixture filing to evidence the lien granted hereby. The
name of the record owner of the real property described in Exhibit A is THI OF
OHIO REAL ESTATE HOLDING COMPANY, LLC.
Section 1.5 Pledges of Monies Held. Each Borrower hereby pledges to Lender
any and all monies now or hereafter held by Lender or on behalf of Lender in
connection with the Loan, including, without limitation, any sums deposited in
the Accounts (as defined in the Cash Management Agreement) and Net Proceeds, as
additional security for the Obligations until expended or applied as provided in
this Security Instrument.
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CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property,
including, but not limited to, Operator's leasehold interest in the Property
unto and to the use and benefit of Lender and its successors and assigns,
forever;
WITH POWER OF SALE, to secure payment to Lender of the Obligations at
the time and in the manner provided for its payment in the Note and in this
Security Instrument;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if the Borrowers and the Other Borrowers shall well and truly pay to Lender the
Debt at the time and in the manner provided in the Note, the Loan Agreement and
this Security Instrument, shall well and truly perform the Other Obligations as
set forth in this Security Instrument and shall well and truly abide by and
comply with each and every covenant and condition set forth herein and in the
Note, the Loan Agreement and the other Loan Documents, these presents and the
estate hereby granted shall cease, terminate and be void; provided, however,
that each Borrower's obligation to indemnify and hold harmless Lender pursuant
to the provisions hereof shall survive any such payment or release.
ARTICLE 2 - DEBT AND OBLIGATIONS SECURED
Section 2.1 Debt. This Security Instrument and the grants, assignments and
transfers made in Article 1 are given for the purpose of securing the Debt which
by its definition (as set forth in the Loan Agreement) includes, but is not
limited to, the obligations of Borrower and the Other Borrowers to pay to Lender
the principal and interest owing pursuant to the terms and conditions of the
Note.
Section 2.2 Other Obligations. This Security Instrument and the grants,
assignments and transfers made in Article 1 are also given for the purpose of
securing the following (the "Other Obligations"):
(a) the performance of all other obligations of each Borrower
contained herein;
(b) the performance of each obligation of each Borrower and the Other
Borrowers contained in the Loan Agreement and any other Loan Document; and
(c) the performance of each obligation of each Borrower and the Other
Borrowers contained in any renewal, extension, amendment, modification,
consolidation, change of, or substitution or replacement for, all or any
part of the Note, the Loan Agreement or any other Loan Document.
Section 2.3 Debt and Other Obligations. Each Borrower's obligations for
the payment of the Debt and the performance of the Other Obligations shall be
referred to collectively herein as the "Obligations."
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ARTICLE 3 - BORROWER COVENANTS
Each Borrower covenants and agrees that:
Section 3.1 Payment of Debt. Borrower will pay the Debt at the time and in
the manner provided in the Loan Agreement, the Note and the Loan Documents.
Section 3.2 Incorporation by Reference. All the covenants, conditions and
agreements contained in (a) the Loan Agreement, (b) the Note and (c) all and
any of the other Loan Documents, are hereby made a part of this Security
Instrument to the same extent and with the same force as if fully set forth
herein.
Section 3.3 Insurance. Borrower shall obtain and maintain, or cause to be
maintained, in full force and effect at all times insurance with respect to
Borrower and the Property as required pursuant to the Loan Agreement.
Section 3.4 Maintenance of Property. Borrower shall cause the Property to
be maintained in a good and safe condition and repair. The Improvements, the
Fixtures, the Equipment and the Personal Property shall not be removed,
demolished or materially altered (except for normal replacement of the Fixtures,
the Equipment or the Personal Property, tenant finish and refurbishment of the
Improvements) without the reasonable consent of Lender, which consent shall not
be unreasonably withheld. Borrower shall promptly repair, replace or rebuild any
part of the Property which may be destroyed by any Casualty or become damaged,
worn or dilapidated or which may be affected by any Condemnation, and shall
complete and pay for any structure at any time in the process of construction or
repair on the Land.
Section 3.5 Waste. Borrower shall not commit or suffer any material waste
of the Property or make any change in the use of the Property which will in any
way materially increase the risk of fire or other hazard arising out of the
operation of the Property, or take any action that might invalidate or allow the
cancellation of any Policy, or do or permit to be done thereon anything that may
in any way materially impair the value of the Property or the security of this
Security Instrument. Borrower will not, without the prior written consent of
Lender, permit any drilling or exploration for or extraction, removal, or
production of any minerals from the surface or the subsurface of the Land,
regardless of the depth thereof or the method of mining or extraction thereof.
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Section 3.6 Payment for Labor and Materials.
(a) Borrower will promptly pay when due all bills and costs for
labor, materials, and specifically fabricated materials ("Labor and
Material Costs") incurred in connection with the Property and never permit
to exist beyond the due date thereof in respect of the Property or any part
thereof any lien or security interest, even though inferior to the liens
and the security interests hereof, and in any event never permit to be
created or exist in respect of the Property or any part thereof any other
or additional lien or security interest other than the liens or security
interests hereof except for the Permitted Encumbrances.
(b) After prior written notice to Lender, Borrower, at its own
expense, may contest by appropriate legal proceeding, promptly initiated
and conducted in good faith and with due diligence, the amount or validity
or application in whole or in part of any of the Labor and Material Costs,
provided that (i) no Event of Default has occurred and is continuing under
the Loan Agreement, the Note, this Security Instrument or any of the other
Loan Documents, (ii) Borrower is permitted to do so under the provisions of
any other mortgage, deed of trust or deed to secure debt affecting the
Property, (iii) such proceeding shall suspend the collection of the Labor
and Material Costs from Borrower and from the Property or Borrower shall
have paid all of the Labor and Material Costs under protest, (iv) such
proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Borrower is subject and shall
not constitute a default thereunder, (v) neither the Property nor any part
thereof or interest therein will be in danger of being sold, forfeited,
terminated, canceled or lost, and (vi) Borrower shall have furnished the
security as may be required in the proceeding, or as may be reasonably
requested by Lender to insure the payment of any contested Labor and
Material Costs, together with all interest and penalties thereon.
Section 3.7 Performance of Other Agreements. Borrower shall observe and
perform each and every term, covenant and provision to be observed or performed
by Borrower pursuant to the Loan Agreement, any other Loan Document and any
other agreement or recorded instrument affecting or pertaining to the Property
and any amendments, modifications or changes thereto.
Section 3.8 Change of Name, Identity, Structure or Address. Borrower shall
not change Borrower's name, identity (including its trade name or names),
principal place of business, organization (from that on page one hereof),
Borrower's Jurisdiction, or, if not an individual, Borrower's corporate,
partnership or other structure without notifying Lender of such change in
writing at least thirty (30) days prior to the effective date of such change
and, in the case of a change in Borrower's structure or Borrower's Jurisdiction,
without first obtaining the prior written consent of Lender. Borrower shall
execute and deliver to Lender, prior to or contemporaneously with the effective
date of any such change, any financing statement or financing statement change
required by Lender to establish or maintain the validity, perfection and
priority of the security interest granted herein. At the request of Lender,
Borrower shall execute a certificate in form satisfactory to Lender listing the
trade names under which Borrower intends to operate the Property, and
representing and warranting that Borrower does business under no other trade
name with respect to the Property.
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ARTICLE 4 - OBLIGATIONS AND RELIANCES
Section 4.1 Relationship of Borrower and Lender. The relationship between
any Borrower and Lender is solely that of debtor and creditor, and Lender has no
fiduciary or other special relationship with any Borrower, and no term or
condition of any of the Loan Agreement, the Note, this Security Instrument and
the other Loan Documents shall be construed so as to deem the relationship
between any Borrower and Lender to be other than that of debtor and creditor.
Section 4.2 No Reliance On Lender. The general partners, members,
principals and (if any Borrower is a trust) beneficial owners of each Borrower
are experienced in the ownership and operation of properties similar to the
Property, and each Borrower and Lender are relying solely upon such expertise
and business plan in connection with the ownership and operation of the
Property. No Borrower is relying on Lender's expertise, business acumen or
advice in connection with the Property.
Section 4.3 No Lender Obligations.
(a) Notwithstanding the provisions of Subsections 1.1(h) and (m) or
Section 1.2 hereof, Lender is not undertaking the performance of (i) any
obligations under the Leases; or (ii) any obligations with respect to such
agreements, contracts, certificates, instruments, franchises, permits,
trademarks, licenses and other documents.
(b) By accepting or approving anything required to be observed,
performed or fulfilled or to be given to Lender pursuant to this Security
Instrument, the Loan Agreement, the Note or the other Loan Documents,
including, without limitation, any officer's certificate, balance sheet,
statement of profit and loss or other financial statement, survey,
appraisal, or insurance policy, Lender shall not be deemed to have
warranted, consented to, or affirmed the sufficiency, the legality or
effectiveness of same, and such acceptance or approval thereof shall not
constitute any warranty or affirmation with respect thereto by Lender.
Section 4.4 Reliance. Each Borrower recognizes and acknowledges that in
accepting the Loan Agreement, the Note, this Security Instrument and the other
Loan Documents, Lender is expressly and primarily relying on the truth and
accuracy of the warranties and representations set forth in Article III of the
Loan Agreement without any obligation to investigate the Property and
notwithstanding any investigation of the Property by Lender; that such reliance
existed on the part of Lender prior to the date hereof, that the warranties and
representations are a material inducement to Lender in making the Loan; and that
Lender would not be willing to make the Loan and accept this Security Instrument
in the absence of the warranties and representations as set forth in Article III
of the Loan Agreement.
ARTICLE 5 - FURTHER ASSURANCES
Section 5.1 Recording of Security Instrument, Etc. Each Borrower forthwith
upon the execution and delivery of this Security Instrument and thereafter, from
time to time, will cause this Security Instrument and any of the other Loan
Documents creating a lien or
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security interest or evidencing the lien hereof upon the 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 Lender for any present or future
law in order to publish notice of and fully to protect and perfect the lien or
security interest hereof upon, and the interest of Lender in, the Property. Each
Borrower will pay all taxes, filing, registration or recording fees, and all
expenses incident to the preparation, execution, acknowledgment and/or recording
of the Note, this Security Instrument, the other Loan Documents, any financing
statements evidencing Lender's lien in the Property, any note, deed of trust or
mortgage supplemental hereto, any security instrument with respect to the
Property and any instrument of further assurance, and any modification,
continuation, or amendment of the foregoing documents, 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 Security Instrument,
any deed of trust or mortgage supplemental hereto, any security instrument with
respect to the Property or any instrument of further assurance, and any
modification or amendment of the foregoing documents, except where prohibited by
law so to do.
Section 5.2 Further Acts, Etc. Each Borrower will, at its cost,
and without expense to Lender, do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, deeds of trust, mortgages,
assignments, notices of assignments, transfers and assurances as Lender shall,
from time to time, reasonably require, for the better assuring, conveying,
assigning, transferring, and confirming unto Lender the property and rights
hereby mortgaged, deeded, granted, bargained, sold, conveyed, confirmed,
pledged, assigned, warranted and transferred or intended now or hereafter so to
be, or which any Borrower may be or may hereafter become bound to convey or
assign to Lender, or for carrying out the intention or facilitating the
performance of the terms of this Security Instrument or for filing, registering
or recording this Security Instrument (or evidencing the lien created hereby),
or for complying with all Legal Requirements. Pursuant to its signature
hereunder, and in connection with Lender's filing initial financing statements
(and/or fixture filings), amendments, continuations and terminations in all such
jurisdictions and with all such governmental authorities as Lender deems
desirable (to evidence the lien granted Lender hereunder), each Borrower hereby
confirms that the Lender is a person entitled to file a record, and each
Borrower has authorized all such filings, within the meaning of Section 9-509 of
the Uniform Commercial Code. Each Borrower grants to Lender an irrevocable power
of attorney coupled with an interest for the purpose of exercising and
perfecting any and all rights and remedies available to Lender at law and in
equity, including without limitation such rights and remedies available to
Lender pursuant to this Section 5.2.
Section 5.3 Changes in Tax, Debt, Credit and Documentary Stamp Laws.
(a) If any law is enacted or adopted or amended after the date of
this Security Instrument which deducts the Debt from the value of the
Property for the purpose of taxation or which imposes a tax, either
directly or indirectly, on the Debt or Lender's interest in the Property,
each Borrower will pay the tax, with interest and penalties thereon, if
any. If Lender is advised by counsel chosen by it that the payment of tax
by such Borrower would be unlawful or taxable to Lender or unenforceable or
provide the basis for a defense of usury then Lender shall have the option
by written notice of not less than one hundred twenty (120) days to declare
the Debt immediately due and payable.
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(b) Neither Borrower will claim or demand or be entitled to any
credit or credits on account of the Debt for any part of the Taxes or Other
Charges assessed against the Property, or any part thereof, and no
deduction shall otherwise be made or claimed from the assessed value of the
Property, or any part thereof, for real estate tax purposes by reason of
this Security Instrument or the Debt. If such claim, credit or deduction
shall be required by law, Lender shall have the option, by written notice
of not less than one hundred twenty (120) days, to declare the Debt
immediately due and payable.
(c) 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, this Security Instrument, or any of the other
Loan Documents or impose any other tax or charge on the same, each Borrower
will pay for the same, with interest and penalties thereon, if any.
Section 5.4 Splitting of Mortgage. This Security Instrument and the Note
shall, at any time until the same shall be fully paid and satisfied, at the sole
election of Lender, be split or divided into two or more notes and two or more
security instruments, each of which shall cover all or a portion of the Property
to be more particularly described therein. To that end, each Borrower, upon
written request of Lender, shall execute, acknowledge and deliver, or cause to
be executed, acknowledged and delivered by the then owner of the Property, to
Lender and/or its designee or designees substitute notes and security
instruments in such principal amounts, aggregating not more than the then unpaid
principal amount of the Note, and containing terms, provisions and clauses
similar to those contained herein and in the Note, and such other documents and
instruments as may be reasonably required by Lender.
Section 5.5 Replacement Documents. Upon receipt of an affidavit of an
officer of Lender as to the loss, theft, destruction or mutilation of the Note
or any other Loan Document which is not of public record, and, in the case of
any such mutilation, upon surrender and cancellation of such Note or other Loan
Document, each Borrower will issue, in lieu thereof, a replacement Note or other
Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note
or other Loan Document in the same principal amount thereof and otherwise of
like tenor.
ARTICLE 6 - DUE ON SALE/ENCUMBRANCE
Section 6.1 Lender Reliance. Each Borrower acknowledges that Lender has
examined and relied on the experience of each Borrower and its general partners,
members, principals and (if such Borrower is a trust) beneficial owners in
owning and operating properties such as the Property in agreeing to make the
Loan, and will continue to rely on Borrower's ownership of the Property as a
means of maintaining the value of the Property as security for repayment of the
Debt and the performance of the Other Obligations. Each Borrower acknowledges
that Lender has a valid interest in maintaining the value of the Property so as
to ensure that, should Borrower default in the repayment of the Debt or the
performance of the Other Obligations, Lender can recover the Debt by a sale of
the Property.
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Section 6.2 No Transfer. Neither Borrower shall not permit or suffer any
Transfer to occur, unless permitted by the Loan Agreement or unless Lender shall
consent thereto in writing.
Section 6.3 Transfer Defined. As used in this Article 6 "Transfer" shall
mean any voluntary or involuntary sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer of: (a) all or any part of the
Property or any estate or interest therein including, but not be limited to, (i)
an installment sales agreement wherein any Borrower agrees to sell the Property
or any part thereof for a price to be paid in installments, (ii) an agreement by
any Borrower leasing all or a substantial part of the Property for other than
actual occupancy by a space tenant thereunder and its affiliates or (iii) a
sale, assignment or other transfer of, or the grant of a security interest in,
any Borrower's right, title and interest in and to any Leases or any Rents; or
(b) any ownership interest in (i) any Borrower, (ii) SPE Equity Owner or (iii)
any indemnitor or guarantor of any Obligations or (iv) any corporation,
partnership, limited liability company, trust or other entity owning, directly
or indirectly, any interest in any Borrower or any indemnitor or guarantor of
any Obligations.
Section 6.4 Lender's Rights. Without obligating Lender to grant any
consent under Section 6.2 hereof which Lender may grant or withhold in its sole
discretion, Lender reserves the right to condition the consent required
hereunder upon (a) a modification of the terms hereof and of the Loan Agreement,
the Note or the other Loan Documents; (b) an assumption of the Loan Agreement,
the Note, this Security Instrument and the other Loan Documents; (c) payment of
all of Lender's expenses incurred in connection with such transfer; (d) receipt
of Rating Agency Confirmation; (e) the delivery of a nonconsolidation opinion
reflecting the proposed transfer satisfactory in form and substance to Lender;
(f) the proposed transferee's continued compliance with the representations and
covenants set forth in the Loan Agreement; (g) the delivery of evidence
satisfactory to Lender that the single purpose nature and bankruptcy remoteness
of each Borrower, its shareholders, partners or members, as the case may be,
following such transfers are in accordance with the standards of the Rating
Agencies; (h) the proposed transferee's ability to satisfy Lender's then-current
underwriting standards; or (i) such other conditions as Lender shall determine
in its reasonable discretion to be in the interest of Lender, including, without
limitation, the creditworthiness, reputation and qualifications of the
transferee with respect to the Loan and the Property. Lender shall not be
required to demonstrate any actual impairment of its security or any increased
risk of default hereunder in order to declare the Debt immediately due and
payable upon a Transfer without Lender's consent. This provision shall apply to
every Transfer, other than any Transfer permitted pursuant to the Loan
Agreement, regardless of whether voluntary or not, or whether or not Lender has
consented to any previous Transfer.
ARTICLE 7 - RIGHTS AND REMEDIES UPON DEFAULT
Section 7.1 Remedies. Upon the occurrence and during the continuance of
any Event of Default, each Borrower agrees that Lender may take such action,
without notice or demand, as it deems advisable to protect and enforce its
rights against such Borrower and in and to the Property, 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 Lender may determine, in its sole
discretion, without impairing or otherwise affecting the other rights and
remedies of Lender:
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(a) declare the entire unpaid Debt to be immediately due and payable;
(b) institute proceedings, judicial or otherwise, for the complete
foreclosure of this Security Instrument under any applicable provision of
law, in which case the 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;
(c) with or without entry, to the extent permitted and pursuant to
the procedures provided by applicable law, institute proceedings for the
partial foreclosure of this Security Instrument for the portion of the Debt
then due and payable, subject to the continuing lien and security interest
of this Security Instrument for the balance of the Debt not then due,
unimpaired and without loss of priority;
(d) sell for cash or upon credit the Property or any part thereof
and all estate, claim, demand, right, title and interest of any Borrower
therein and rights of redemption thereof, pursuant to power of sale or
otherwise, at one or more sales, as an entirety or in parcels, at such time
and place, upon such terms and after such notice thereof as may be required
or permitted by law, and, without limiting the foregoing:
(i) In connection with any sale or sales hereunder, Lender
shall be entitled to elect to treat any of the Property which consists of a
right in action or which is property that can be severed from the Real
Property covered hereby or any improvements without causing structural
damage thereto as if the same were personal property, and dispose of the
same in accordance with applicable law, separate and apart from the sale of
Real Property. Where the Property consists of Real Property, Personal
Property, Equipment or Fixtures, whether or not such Personal Property or
Equipment is located on or within the Real Property, Lender shall be
entitled to elect to exercise its rights and remedies against any or all of
the Real Property, Personal Property, Equipment and Fixtures and the fee
and/or leasehold interest therein in such order and manner as is now or
hereafter permitted by applicable law;
(ii) Lender shall be entitled to elect to proceed against any
or all of the Real Property, Personal Property, Equipment and Fixtures and
the fee and/or leasehold interest therein in any manner permitted under
applicable law; and if Lender so elects pursuant to applicable law, the
power of sale herein granted shall be exercisable with respect to all or
any of the Real Property, Personal Property, Equipment and Fixtures and the
fee and/or leasehold interest therein covered hereby, as designated by
Lender and Lender is hereby authorized and empowered to conduct any such
sale of any Real Property, Personal Property, Equipment and Fixtures and
the fee and/or leasehold interest therein in accordance with the procedures
applicable to Real Property;
(iii) Should Lender elect to sell any portion of the Property
which is Real Property or which is Personal Property, Equipment or Fixtures
that the Lender has elected under applicable law to sell together with Real
Property in accordance with the laws governing a sale of Real Property,
Lender shall give such notice of Event of Default, if any, and election to
sell as may then be required by law. Thereafter, upon the expiration of
such time and the giving of such notice of sale as may then be required by
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law, and without the necessity of any demand on any Borrower, Lender at the
time and place specified in the notice of sale, shall sell such Real
Property or part thereof at public auction to the highest bidder for cash
in lawful money of the United States. Lender may from time to time postpone
any sale hereunder by public announcement thereof at the time and place
noticed therefor;
(iv) If the Property consists of several lots, parcels or
items of property, Lender shall, subject to applicable law, (A) designate
the order in which such lots, parcels or items shall be offered for sale or
sold, or (B) elect to sell such lots, parcels or items through a single
sale, or through two or more successive sales, or in any other manner
Lender designates. Any Person, including any Borrower or Lender, may
purchase at any sale hereunder. Should Lender desire that more than one
sale or other disposition of the Property be conducted, Lender shall,
subject to applicable law, cause such sales or dispositions to be conducted
simultaneously, or successively, on the same day, or at such different days
or times and in such order as Lender may designate, and no such sale shall
terminate or otherwise affect the lien of this Security Instrument on any
part of the Property not sold until all the Debt has been paid in full. In
the event Lender elects to dispose of the Property through more than one
sale, except as otherwise provided by applicable law, each Borrower agrees
to pay the costs and expenses of each such sale and of any judicial
proceedings wherein such sale may be made;
(e) institute an action, suit or proceeding in equity for the
specific performance of any covenant, condition or agreement contained
herein, in the Note, the Loan Agreement or in the other Loan Documents;
(f) recover judgment on the Note either before, during or after
any proceedings for the enforcement of this Security Instrument or the
other Loan Documents;
(g) apply for the appointment of a receiver, trustee, liquidator
or conservator of the Property, without notice and without regard for the
adequacy of the security for the Debt and without regard for the solvency
of any Borrower, any guarantor, indemnitor with respect to the Loan or of
any Person liable for the payment of the Debt;
(h) the license granted to the Borrowers under Section 1.2
hereof shall automatically be revoked and Lender may enter into or upon the
Property, either personally or by its agents, nominees or attorneys and
dispossess each Borrower and its agents and servants therefrom, without
liability for trespass, damages or otherwise and exclude each Borrower and
its agents or servants wholly therefrom, and take possession of all books,
records and accounts relating thereto and each Borrower agrees to surrender
possession of the Property and of such books, records and accounts to
Lender upon demand, and thereupon Lender may (i) use, operate, manage,
control, insure, maintain, repair, restore and otherwise deal with all and
every part of the Property and conduct the business thereat; (ii) complete
any construction on the Property in such manner and form as Lender deems
advisable; (iii) make alterations, additions, renewals, replacements and
improvements to or on the Property; (iv) exercise all rights and powers of
any Borrower with respect to the Property, whether in the name of such
Borrower or otherwise,
15
including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, xxx for, collect
and receive all Rents of the Property and every part thereof; (v)
require each Borrower to pay monthly in advance to Lender, or any
receiver appointed to collect the Rents, the fair and reasonable rental
value for the use and occupation of such part of the Property as may be
occupied by such Borrower; (vi) require each Borrower to vacate and
surrender possession of the Property to Lender or to such receiver and,
in default thereof, such Borrower may be evicted by summary proceedings
or otherwise; and (vii) apply the receipts from the Property to the
payment of the Debt, in such order, priority and proportions as Lender
shall deem appropriate in its sole discretion after deducting therefrom
all expenses (including reasonable attorneys' fees) incurred in
connection with the aforesaid operations and all amounts necessary to
pay the Taxes, Other Charges, insurance and other expenses in
connection with the Property, as well as just and reasonable
compensation for the services of Lender, its counsel, agents and
employees;
(i) exercise any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code,
including, without limiting the generality of the foregoing: (i) the
right to take possession of the Fixtures, the Equipment and the
Personal Property, or any part thereof, and to take such other
measures as Lender may deem necessary for the care, protection and
preservation of the Fixtures, the Equipment and the Personal Property,
and (ii) request each Borrower at its expense to assemble the
Fixtures, the Equipment and the Personal Property and make it
available to Lender at a convenient place acceptable to Lender. Any
notice of sale, disposition or other intended action by Lender with
respect to the Fixtures, the Equipment and/or the Personal Property
sent to any Borrower in accordance with the provisions hereof at least
five (5) days prior to such action, shall constitute commercially
reasonable notice to such Borrower;
(j) apply any sums then deposited or held in escrow or
otherwise by or on behalf of Lender in accordance with the terms of
the Loan Agreement, this Security Instrument or any other Loan
Document to the payment of the following items in any order in its
uncontrolled discretion:
(i) Taxes and Other Charges;
(ii) Insurance Premiums;
(iii) Interest on the unpaid principal balance of the
Note;
(iv) Amortization of the unpaid principal balance of the
Note;
(v) All other sums payable pursuant to the Note, the
Loan Agreement, this Security Instrument and the other Loan Documents,
including without limitation advances made by Lender pursuant to the
terms of this Security Instrument;
(k) pursue such other remedies as Lender may have under
applicable law;
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(l) apply the undisbursed balance of any Net Proceeds Deficiency
deposit, together with interest thereon, to the payment of the Debt in such
order, priority and proportions as Lender shall deem to be appropriate in
its discretion; or
(m) institute proceedings, judicial or otherwise, for the
complete foreclosure of this Security Instrument as it relates to Fee
Owner's fee interest in the Property without foreclosing on that portion of
the Property which constitutes Operator's leasehold interest therein.
Notwithstanding the foregoing, Operator agrees that Lender may, in its sole
discretion, terminate any and all operating leases to which either Fee
Owner or Operator is now or hereafter may be a party.
In the event of a sale, by foreclosure, power of sale or otherwise, of less than
all of Property, this Security Instrument shall continue as a lien and security
interest on the remaining portion of the Property unimpaired and without loss of
priority.
Section 7.2 Application of Proceeds. The purchase money, proceeds and
avails of any disposition of the Property, and or any part thereof, or any other
sums collected by Lender pursuant to the Note, this Security Instrument or the
other Loan Documents, may be applied by Lender to the payment of the Debt in
such priority and proportions as Lender in its discretion shall deem proper, to
the extent consistent with law.
Section 7.3 Right to Cure Defaults. Upon the occurrence and during the
continuance of any Event of Default or if any Borrower fails to make any payment
or to do any act as herein provided, Lender may, but without any obligation to
do so and without notice to or demand on any Borrower and without releasing any
Borrower from any obligation hereunder, make or do the same in such manner and
to such extent as Lender may deem necessary to protect the security hereof.
Lender is authorized to enter upon the Property for such purposes, or appear in,
defend, or bring any action or proceeding to protect its interest in the
Property or to foreclose this Security Instrument or collect the Debt, and the
cost and expense thereof (including reasonable attorneys' fees to the extent
permitted by law), with interest as provided in this Section 7.3, shall
constitute a portion of the Debt and shall be due and payable to Lender upon
demand. All such costs and expenses incurred by Lender in remedying such Event
of Default or such failed payment or act or in appearing in, defending, or
bringing any such action or proceeding shall bear interest at the Default Rate,
for the period after notice from Lender that such cost or expense was incurred
to the date of payment to Lender. All such costs and expenses incurred by Lender
together with interest thereon calculated at the Default Rate shall be deemed to
constitute a portion of the Debt and be secured by this Security Instrument and
the other Loan Documents and shall be immediately due and payable upon demand by
Lender therefor.
Section 7.4 Actions and Proceedings. Lender has the right to appear in and
defend any action or proceeding brought with respect to the Property and to
bring any action or proceeding, in the name and on behalf of any Borrower, which
Lender, in its discretion, decides should be brought to protect its interest in
the Property.
Section 7.5 Recovery of Sums Required to be Paid. Lender shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due,
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and without prejudice to the right of Lender thereafter to bring an action of
foreclosure, or any other action, for a default or defaults by any Borrower
existing at the time such earlier action was commenced.
Section 7.6 Examination of Books and Records. At reasonable times and upon
reasonable notice, Lender, its agents, accountants and attorneys shall have the
right to examine the records, books, management and other papers of any Borrower
which reflect upon its financial condition, at the Property or at any office
regularly maintained by such Borrower where the books and records are located.
Lender and its agents shall have the right to make copies and extracts from the
foregoing records and other papers. In addition, at reasonable times and upon
reasonable notice, Lender, its agents, accountants and attorneys shall have the
right to examine and audit the books and records of any Borrower pertaining to
the income, expenses and operation of the Property during reasonable business
hours at any office of such Borrower where the books and records are located.
This Section 7.6 shall apply throughout the term of the Note and without regard
to whether an Event of Default has occurred and is continuing.
Section 7.7 Other Rights, Etc.
(a) The failure of Lender to insist upon strict performance of
any term hereof shall not be deemed to be a waiver of any term of this
Security Instrument. Neither Borrower shall be relieved of its obligations
hereunder by reason of (i) the failure of Lender to comply with any request
of any Borrower or any guarantor or indemnitor with respect to the Loan to
take any action to foreclose this Security Instrument or otherwise enforce
any of the provisions hereof or of the Note or the other Loan Documents,
(ii) the release, regardless of consideration, of the whole or any part of
the Property, or of any person liable for the Debt or any portion thereof,
or (iii) any agreement or stipulation by Lender extending the time of
payment or otherwise modifying or supplementing the terms of the Note, this
Security Instrument or the other Loan Documents.
(b) It is agreed that the risk of loss or damage to the Property
is on each Borrower, and Lender shall have no liability whatsoever for
decline in value of the Property, for failure to maintain the Policies, or
for failure to determine whether insurance in force is adequate as to the
amount of risks insured. Possession by Lender shall not be deemed an
election of judicial relief, if any such possession is requested or
obtained, with respect to any Property or collateral not in Lender's
possession.
(c) Lender may resort for the payment of the Debt to any other
security held by Lender in such order and manner as Lender, in its
discretion, may elect. Lender may take action to recover the Debt, or any
portion thereof, or to enforce any covenant hereof without prejudice to the
right of Lender thereafter to foreclose this Security Instrument. The
rights of Lender under this Security Instrument shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of the
others. No act of Lender shall be construed as an election to proceed under
any one provision herein to the exclusion of any other provision. Lender
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.
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Section 7.8 Right to Release Any Portion of the Property. Lender may
release any portion of the Property for such consideration as Lender may require
without, as to the remainder of the Property, in any way impairing or affecting
the lien or priority of this Security Instrument, or improving the position of
any subordinate lienholder with respect thereto, except to the extent that the
obligations hereunder shall have been reduced by the actual monetary
consideration, if any, received by Lender for such release, and may accept by
assignment, pledge or otherwise any other property in place thereof as Lender
may require without being accountable for so doing to any other lienholder. This
Security Instrument shall continue as a lien and security interest in the
remaining portion of the Property. Notwithstanding the forgoing, upon full
payment of all Debt, at the time and manner provided in the Loan Documents, this
conveyance or lien shall be null and void and upon demand therefor following
such payment, a release of this Security Instrument shall be promptly provided
by Lender to the Borrowers, at the sole cost and expense of the Borrowers.
Section 7.9 Violation of Laws. If the Property is not in material
compliance with Legal Requirements, Lender may impose additional requirements
upon each Borrower in connection herewith including, without limitation,
monetary reserves or financial equivalents.
Section 7.10 Recourse and Choice of Remedies. Notwithstanding any other
provision of this Security Instrument or the Loan Agreement, including, without
limitation, Section 11.22 of the Loan Agreement, Lender and other Indemnified
Parties (as hereinafter defined) are entitled to enforce the obligations of any
Borrower and any guarantor and indemnitor contained in Sections 9.2 and 9.3
herein and Section 9.2 of the Loan Agreement without first resorting to or
exhausting any security or collateral and without first having recourse to the
Note or any of the Property, through foreclosure, exercise of a power of sale or
acceptance of a deed in lieu of foreclosure or otherwise, and in the event
Lender commences a foreclosure action against the Property, or otherwise
exercises the power of sale pursuant to this Security Instrument, Lender is
entitled to pursue a deficiency judgment with respect to such obligations
against any Borrower and any guarantor or indemnitor with respect to the Loan.
The provisions of Sections 9.2 and 9.3 herein and Section 9.2 of the Loan
Agreement are exceptions to any non-recourse or exculpation provisions in the
Loan Agreement, the Note, this Security Instrument or the other Loan Documents,
and any Borrower and any guarantor or indemnitor with respect to the Loan are
fully and personally liable for the obligations pursuant to Sections 9.2 and 9.3
herein and Section 9.2 of the Loan Agreement. The liability of any Borrower and
any guarantor or indemnitor with respect to the Loan pursuant to Sections 9.2
and 9.3 herein and Section 9.2 of the Loan Agreement is not limited to the
original principal amount of the Note. Notwithstanding the foregoing, nothing
herein shall inhibit or prevent Lender from foreclosing or exercising a power of
sale pursuant to this Security Instrument or exercising any other rights and
remedies pursuant to the Loan Agreement, the Note, this Security Instrument and
the other Loan Documents, whether simultaneously with foreclosure proceedings or
in any other sequence. A separate action or actions may be brought and
prosecuted against any Borrower pursuant to Sections 9.2 and 9.3 herein and
Section 9.2 of the Loan Agreement, whether or not action is brought against any
other Person or whether or not any other Person is joined in the action or
actions. In addition, Lender shall have the right but not the obligation to join
and participate in, as a party if it so elects, any administrative or judicial
proceedings or actions initiated in connection with any matter addressed in the
Environmental Indemnity.
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Section 7.11 Right of Entry. Upon reasonable notice to the Borrowers,
Lender and its agents shall have the right to enter and inspect the Property at
all reasonable times.
ARTICLE 8 - LEASEHOLD PROVISIONS
Section 8.1 Operator shall pay or cause to be paid all rents, additional
rents and other sums required to be paid by Operator as tenant under and
pursuant to the provisions of the Operating Lease on or before the date on which
such rent or other charge is payable. Fee Owner and Operator shall (i)
diligently perform and observe all of the terms, covenants and conditions of the
Operating Lease, as landlord and tenant, respectively, thereunder, to be
performed and observed prior to the expiration of any applicable grace period
therein provided, (ii) promptly notify the Lender of the giving of any notice to
the Fee Owner or Operator, as applicable, of any default by such party as
landlord or tenant thereunder, and promptly deliver to the Lender a true copy of
each such notice except, in the case of clauses (i) through (ii) above, for any
such defaults or breaches as would not be reasonably expected to have a material
adverse effect.
Section 8.2 Neither Borrower shall (i) surrender the leasehold estate
created by the Operating Lease or terminate or cancel the Operating Lease, (ii)
modify, change, supplement, alter or amend the Operating Lease, in any respect,
either orally or in writing, in any manner that materially impairs the
collateral value of the leasehold created by the Operating Lease or in any
manner that would be materially adverse to the Lender. Each Borrower hereby
assigns to the Lender, as further security for the payment and performance of
the Obligations and observance of the terms, covenants and conditions of this
Security Instrument, all of the rights, privileges and prerogatives of such
Borrower, as landlord and tenant under the Operating Lease following the
occurrence and during the continuance of an Event of Default, to surrender the
leasehold estate created by the Operating Lease or to terminate, cancel, modify,
change, supplement, alter or amend the Operating Lease, and any such surrender
of the leasehold estate created by the Operating Lease or termination,
cancellation, modification, change, supplement, alteration or amendment of the
Operating Lease not permitted pursuant to the foregoing terms of this Section
6.21(b) shall be void and of no force or effect.
Section 8.3 If at any time after the occurrence and during the
continuance of an Event of Default, any Borrower shall default in the
performance or observance of any term, covenant or condition of the Operating
Lease to be performed or observed by it, then, without limiting the generality
of the other provisions of this Security Instrument, and without waiving or
releasing such Borrower from any of its Obligations, the Lender shall have the
right, but shall be under no obligation, to pay any sums and to perform any act
or take any action as may be appropriate to cause all of the terms, covenants
and conditions of the Operating Lease on the part of such Borrower to be
performed or observed or to be promptly performed or observed on behalf of such
Borrower, to the end that the rights of such Borrower in, to and under the
Operating Lease shall be kept unimpaired and free from default. If the Lender
shall make any payment or perform any act or take action in accordance with the
preceding sentence, the Lender will notify the Borrowers thereof. In any such
event, upon the occurrence and during the continuance of an Event of Default and
subject to the rights of tenants, subtenants and other occupants under the
Leases, the Lender and any person designated by the Lender shall have, and are
hereby granted, the right to enter upon the Land at any time and from time to
time for the purpose of taking any such action. If Fee Owner shall deliver to
the Lender a copy of any notice of default sent to
20
Operator, such notice shall constitute full protection to the Lender for any
action taken or omitted to be taken by the Lender, in good faith, in reliance
thereon.
Section 8.4 In the event of the bankruptcy, reorganization or
insolvency of any Borrower, any attempt by such Borrower to surrender its
estate, or any portion thereof, under the Operating Lease, or any attempt under
such circumstances by such Borrower to terminate, cancel or acquiesce in the
rejection of the Operating Lease without the consent of the Lender shall be null
and void. Each Borrower hereby expressly releases, assigns, relinquishes and
surrenders unto the Lender all of its right, power and authority to terminate,
cancel, acquiesce in the rejection of, modify, change, supplement, alter or
amend the Operating Lease in any respect, either orally or in writing, in the
event of the bankruptcy, reorganization or insolvency of such Borrower, and any
attempt on the part of such Borrower to exercise any such right without the
consent of the Lender shall be null and void. Each Borrower hereby irrevocably
appoints the Lender as its true and lawful attorney-in-fact which power of
attorney shall be coupled with an interest, for the purpose of exercising its
rights pursuant to Section 365(h) of the Bankruptcy Code or any successor to
such Section (i) to obtain for the benefit of such Borrower or the Lender a
right to possession or statutory term of years derived from or incident to the
Operating Lease, or (ii) to treat the Operating Lease as terminated.
Section 8.5 Notwithstanding the rejection of the Operating Lease by the Fee
Owner, as debtor in possession, or by a trustee for the Fee Owner, pursuant to
Section 365 of the Bankruptcy Code, neither the lien of this Security Instrument
nor the Lender's rights with respect to the Operating Lease shall be affected or
impaired by reason thereof. In the event that Operator shall remain in
possession of the Property following a rejection of the Operating Lease by the
Fee Owner, as debtor in possession, or by a trustee for the Fee Owner, Operator
agrees that it shall not exercise any right of offset against the rent payable
under the Operating Lease, pursuant to Section 365(h)(2) of the Bankruptcy Code,
or otherwise, without the prior consent of the Lender thereto.
ARTICLE 9 - INDEMNIFICATION
Section 9.1 General Indemnification. Each Borrower shall, at its sole cost
and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all claims, suits, liabilities
(including, without limitation, strict liabilities), actions, proceedings,
obligations, debts, damages, losses, costs, expenses, diminutions in value,
fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement, punitive damages, foreseeable and unforeseeable consequential
damages, of whatever kind or nature (including but not limited to reasonable
attorneys' fees and other costs of defense) (collectively, the "Losses") imposed
upon or incurred by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any one or more of the
following: (a) ownership of this Security Instrument, the Property or any
interest therein or receipt of any Rents; (b) any amendment to, or restructuring
of, the Debt, and the Note, the Loan Agreement, this Security Instrument, or any
other Loan Documents; (c) any and all lawful action that may be taken by Lender
in connection with the enforcement of the provisions of this Security Instrument
or the Loan Agreement or the Note or any of the other Loan Documents, whether or
not suit is filed in connection with same, or in connection with any Borrower,
any guarantor or indemnitor and/or any partner, joint venturer or shareholder
thereof becoming a party to a voluntary or
21
involuntary federal or state bankruptcy, insolvency or similar proceeding; (d)
any accident, injury to or death of persons or loss of or damage to property
occurring in, on or about the Property or any part thereof or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(e) any use, nonuse or condition in, on or about the Property or any part
thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (f) any failure on the part of any Borrower to
perform or be in compliance with any of the terms of this Security Instrument;
(g) performance of any labor or services or the furnishing of any materials or
other property in respect of the Property or any part thereof; (h) the failure
of any person to file timely with the Internal Revenue Service an accurate Form
0000-X, Xxxxxxxxx for Recipients of Proceeds from Real Estate, Broker and Barter
Exchange Transactions, which may be required in connection with this Security
Instrument, or to supply a copy thereof in a timely fashion to the recipient of
the proceeds of the transaction in connection with which this Security
Instrument is made; (i) any failure of the Property to be in compliance with any
Legal Requirements; (j) the enforcement by any Indemnified Party of the
provisions of this Article 9; (k) any and all claims and demands whatsoever
which may be asserted against Lender by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms, covenants, or
agreements contained in any Lease; (1) the payment of any commission, charge or
brokerage fee to anyone claiming through any Borrower which may be payable in
connection with the funding of the Loan; or (m) any misrepresentation made by
any Borrower in this Security Instrument or any other Loan Document. Any amounts
payable to Lender by reason of the application of this Section 9.1 shall become
immediately due and payable and shall bear interest at the Default Rate from the
date loss or damage is sustained by Lender until paid. For purposes of this
Article 9, the term "Indemnified Parties" means Lender and any Person who is or
will have been involved in the origination of the Loan, any Person who is or
will have been involved in the servicing of the Loan secured hereby, any Person
in whose name the encumbrance created by this Security Instrument is or will
have been recorded, persons and entities who may hold or acquire or will have
held a full or partial interest in the Loan secured hereby (including, but not
limited to, investors or prospective investors in the Securities, as well as
custodians, trustees and other fiduciaries who hold or have held a full or
partial interest in the Loan secured hereby for the benefit of third parties) as
well as the respective directors, officers, shareholders, partners, employees,
agents, servants, representatives, contractors, subcontractors, affiliates,
subsidiaries, participants, successors and assigns of any and all of the
foregoing (including but not limited to any other Person who holds or acquires
or will have held a participation or other full or partial interest in the Loan,
whether during the term of the Loan or as a part of or following a foreclosure
of the Loan and including, but not limited to, any successors by merger,
consolidation or acquisition of all or a substantial portion of Lender's assets
and business).
Section 9.2 Mortgage And/or Intangible Tax. Each Borrower shall, at its
sole cost and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all Losses imposed upon or incurred
by or asserted against any Indemnified Parties and directly or indirectly
arising out of or in any way relating to any tax on the making and/or recording
of this Security Instrument, the Note or any of the other Loan Documents, but
excluding any income, franchise or other similar taxes.
Section 9.3 Erisa Indemnification. Each Borrower shall, at its sole cost
and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and
22
against any and all Losses (including, without limitation, reasonable attorneys'
fees and costs incurred in the investigation, defense, and settlement of Losses
incurred in correcting any prohibited transaction or in the sale of a prohibited
loan, and in obtaining any individual prohibited transaction exemption under
ERISA that may be required, in Lender's sole discretion) that Lender may incur,
directly or indirectly, as a result of a default under Sections 3.1.8 or 4.2.11
of the Loan Agreement.
Section 9.4 Intentionally Omitted.
Section 9.5 Duty to Defend; Attorneys' Fees and Other Fees and Expenses.
Upon written request by any Indemnified Party, each Borrower shall defend such
Indemnified Party (if requested by any Indemnified Party, in the name of the
Indemnified Party) by attorneys and other professionals approved by the
Indemnified Parties. Notwithstanding the foregoing, if the defendants in any
such claim or proceeding include any Borrower and any Indemnified Party and such
Borrower and such Indemnified Party shall have reasonably concluded that there
are any legal defenses available to it and/or other Indemnified Parties that are
different from or additional to those available to such Borrower, such
Indemnified Party shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Party, provided that no compromise or settlement
shall be entered without such Borrower's consent, which consent shall not be
unreasonably withheld. Upon demand, such Borrower shall pay or, in the sole and
absolute discretion of the Indemnified Parties, reimburse, the Indemnified
Parties for the payment of reasonable fees and disbursements of attorneys,
engineers, environmental consultants, laboratories and other professionals in
connection therewith.
ARTICLE 10 - WAIVERS
Section 10.1 Waiver of Counterclaim. To the extent permitted by applicable
law, each Borrower hereby waives the right to assert a counterclaim, other than
a mandatory or compulsory counterclaim, in any action or proceeding brought
against it by Lender arising out of or in any way connected with this Security
Instrument, the Loan Agreement, the Note, any of the other Loan Documents, or
the Obligations.
Section 10.2 Marshalling and Other Matters. To the fullest extent permitted
by applicable law, each Borrower, for itself and its successors and assigns,
hereby waives 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 Property or any part
thereof or any interest therein. Further, each Borrower hereby expressly waives
any and all rights of redemption from sale under any order or decree of
foreclosure of this Security Instrument on behalf of such Borrower, and on
behalf of each and every person acquiring any interest in or title to the
Property subsequent to the date of this Security Instrument and on behalf of all
persons to the extent permitted by applicable law.
Section 10.3 Waiver of Notice. To the extent permitted by applicable law,
neither Borrower shall be entitled to any notices of any nature whatsoever from
Lender except with respect to matters for which this Security Instrument
specifically and expressly provides for the giving of notice by Lender to such
Borrower and except with respect to matters for which Lender
23
is required by applicable law to give notice, and each Borrower hereby expressly
waives the right to receive any notice from Lender with respect to any matter
for which this Security Instrument does not specifically and expressly provide
for the giving of notice by Lender to such Borrower.
Section 10.4 Waiver of Statute of Limitations. To the extent permitted by
applicable law, each Borrower hereby expressly waives and releases to the
fullest extent permitted by law, the pleading of any statute of limitations as a
defense to payment of the Debt or performance of its Other Obligations.
Section 10.5 Survival. The indemnifications made pursuant to Sections 9.1,
9.2 and 9.3 herein and the representations and warranties, covenants, and other
obligations arising under the Environmental Indemnity, shall continue
indefinitely in full force and effect and shall survive and shall in no way be
impaired by: any satisfaction, release or other termination of this Security
Instrument, any assignment or other transfer of all or any portion of this
Security Instrument or Lender's interest in the Property (but, in such case,
shall benefit both Indemnified Parties and any assignee or transferee), any
exercise of Lender's rights and remedies pursuant hereto including but not
limited to foreclosure or acceptance of a deed in lieu of foreclosure, any
exercise of any rights and remedies pursuant to the Loan Agreement, the Note or
any of the other Loan Documents, any transfer of all or any portion of the
Property (whether by any Borrower or by Lender following foreclosure or
acceptance of a deed in lieu of foreclosure or at any other time), any amendment
to this Security Instrument, the Loan Agreement, the Note or the other Loan
Documents, and any act or omission that might otherwise be construed as a
release or discharge of any Borrower from the obligations pursuant hereto.
ARTICLE 11 - EXCULPATION
The provisions of Section 11.22 of the Loan Agreement are hereby
incorporated by reference into this Security Instrument to the same extent and
with the same force as if fully set forth herein.
ARTICLE 12 - NOTICES
All notices or other written communications hereunder shall be delivered in
accordance with Section 11.6 of the Loan Agreement.
ARTICLE 13 - APPLICABLE LAW
Section 13.1 Governing Law. This Security Instrument shall be governed and
construed in accordance with the laws of the State in which the Land is located.
Section 13.2 Usury Laws. Notwithstanding anything to the contrary, (a) all
agreements and communications between any Borrower and Lender are hereby and
shall automatically be limited so that, after taking into account all amounts
deemed interest, the interest contracted for, charged or received by Lender
shall never exceed the maximum lawful rate or amount, (b) in calculating whether
any interest exceeds the lawful maximum, all such
24
interest shall be amortized, prorated, allocated and spread over the full amount
and term of all principal indebtedness of the Borrowers to Lender, and (c) if
through any contingency or event, Lender receives or is deemed to receive
interest in excess of the lawful maximum, any such excess shall be deemed to
have been applied toward payment of the principal of any and all then
outstanding indebtedness of the Borrowers to Lender, or if there is no such
indebtedness, shall immediately be returned to the Borrowers.
Section 13.3 Provisions Subject to Applicable Law. All rights, powers and
remedies provided in this Security Instrument may be exercised only to the
extent that the exercise thereof does not violate any applicable provisions of
law and are intended to be limited to the extent necessary so that they will not
render this Security Instrument invalid, unenforceable or not entitled to be
recorded, registered or filed under the provisions of any applicable law.
ARTICLE 14 - DEFINITIONS
All capitalized terms not defined herein shall have the respective meanings
set forth in the Loan Agreement. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Security Instrument may be used interchangeably in singular or plural form and
the word "Borrower" shall mean "each Borrower and any subsequent owner or owners
of the Property or any part thereof or any interest therein," the word "Lender"
shall mean "Lender and any subsequent holder of the Note," the word "Note" shall
mean "the Note and any other evidence of indebtedness secured by this Security
Instrument," the word "Property" shall include any portion of the Property and
any interest therein, and the phrases "attorneys' fees", "legal fees" and
"counsel fees" shall include any and all attorneys', paralegal and law clerk
fees and disbursements, including, but not limited to, fees and disbursements at
the pre-trial, trial and appellate levels incurred or paid by Lender in
protecting its interest in the Property, the Leases and the Rents and enforcing
its rights hereunder.
ARTICLE 15 - MISCELLANEOUS PROVISIONS
Section 15.1 No Oral Change. This Security Instrument, 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 any Borrower or
Lender, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change, discharge
or termination is sought.
Section 15.2 Successors and Assigns. This Security Instrument shall be
binding upon and inure to the benefit of each Borrower and Lender and their
respective successors and assigns forever.
Section 15.3 Inapplicable Provisions. If any term, covenant or condition of
the Loan Agreement, the Note or this Security Instrument is held to be invalid,
illegal or unenforceable in any respect, the Loan Agreement, the Note and this
Security Instrument shall be construed without such provision.
25
Section 15.4 Headings, Etc. The headings and captions of various Sections
of this Security Instrument 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.
Section 15.5 Intentionally Omitted.
Section 15.6 Subrogation. If any or all of the proceeds of the Note have
been used to extinguish, extend or renew any indebtedness heretofore existing
against the Property, then, to the extent of the funds so used, Lender shall be
subrogated to all of the rights, claims, liens, titles, and interests existing
against the Property heretofore held by, or in favor of, the holder of such
indebtedness and such former rights, claims, liens, titles, and interests, if
any, are not waived but rather are continued in full force and effect in favor
of Lender and are merged with the lien and security interest created herein as
cumulative security for the repayment of the Debt, the performance and discharge
of any Borrower's obligations hereunder, under the Loan Agreement, the Note and
the other Loan Documents and the performance and discharge of the Other
Obligations.
Section 15.7 Entire Agreement. The Note, the Loan Agreement, this Security
Instrument and the other Loan Documents constitute the entire understanding and
agreement between the Borrowers and Lender with respect to the transactions
arising in connection with the Debt and supersede all prior written or oral
understandings and agreements between the Borrowers and Lender with respect
thereto. Each Borrower hereby acknowledges that, except as incorporated in
writing in the Note, the Loan Agreement, this Security Instrument and the other
Loan Documents, there are not, and were not, and no persons are or were
authorized by Lender to make, any representations, understandings, stipulations,
agreements or promises, oral or written, with respect to the transaction which
is the subject of the Note, the Loan Agreement, this Security Instrument and the
other Loan Documents.
Section 15.8 Limitation On Lender's Responsibility. No provision of this
Security Instrument shall operate to place any obligation or liability for the
control, care, management or repair of the Property upon Lender, nor shall it
operate to make Lender responsible or liable for any waste committed on the
Property by the tenants or any other Person, or for any dangerous or defective
condition of the Property, or for any negligence in the management, upkeep,
repair or control of the Property resulting in loss or injury or death to any
tenant, licensee, employee or stranger. Nothing herein contained shall be
construed as constituting Lender a "mortgagee in possession."
Section 15.9 Waiver of Right to Trial by Jury.
EACH BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE
EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS
SECURITY INSTRUMENT 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 EACH BORROWER, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS
26
TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS EACH
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER.
Section 15.10 Secondary Market. Lender may sell, transfer and deliver the
Note and assign this Security Instrument and the other Loan Documents to one or
more investors in the secondary mortgage market ("Investors"). In connection
with such sale, Lender may retain or assign responsibility for servicing the
Loan, including the Note, this Security Instrument or the other Loan Documents,
or may delegate some or all of such responsibility and/or obligations to a
servicer including, but not limited to, any subservicer or master servicer, on
behalf of the Investors. All references to Lender herein shall refer to and
include any such servicer to the extent applicable.
Section 15.11 Cross-collateralization. Without limitation to any other
right or remedy provided to Lender in this Security Instrument or any of the
other Loan Documents, each Borrower acknowledges and agrees that (i) upon the
occurrence of an Event of Default, to the fullest extent permitted by law,
Lender shall have the right to pursue all of its rights and remedies in one
proceeding, or separately and independently in separate proceedings which
Lender, in its sole and absolute discretion, shall determine from time to time,
(ii) Lender is not required to either xxxxxxxx assets, sell any collateral for
the Loan in any inverse order of alienation, or be subjected to any "one action"
or "election of remedies" law or rule, (iii) the exercise by Lender of any
remedies against any of the collateral for the Loan will not impede Lender from
subsequently or simultaneously exercising remedies against other collateral for
the Loan; (iv) all Liens and other rights, remedies and privileges provided to
Lender in the Loan Documents or otherwise shall remain in full force and effect
until Lender has exhausted all of its remedies against the collateral for the
Loan and all of the collateral for the Loan has been foreclosed, sold and/or
otherwise realized upon in satisfaction of the Loan; and (v) all of the
Properties shall remain security for the performance of all of the obligations
of each Borrower hereunder, under the Note and under any of the other Loan
Documents.
Section 15.12 Joint and Several Liability. If more than one Person has
executed this Security Instrument as "Borrower," the representations, covenants,
warranties and obligations of all such Persons hereunder shall be joint and
several. Each Borrower further acknowledges and agrees that it shall be jointly
and severally liable for the obligations of all the Other Borrowers under the
Loan Documents.
ARTICLE 16 - STATE-SPECIFIC PROVISIONS
Section 16.1 Principles of Construction. In the event of any
inconsistencies between the terms and conditions of this Article 16 and the
other terms and conditions of this Security Instrument, the terms and conditions
of this Article 16 shall control and be binding.
Section 16.2 Mortgagee-in-possession. No action taken by Lender pursuant
to this Security Instrument shall be construed so as to constitute Lender a
"mortgagee in possession" in the absence of the taking of actual possession of
the Property by Lender. In the exercise of the powers herein granted to Lender,
no liability shall be asserted or enforced against Lender, all such liability
being expressly waived and released by each Borrower.
27
Section 16.3 Property Not a "Reporting Facility." Each Borrower represents
and warrants to Lender that neither the Property nor any part thereof has ever
been or is now classified as a "reporting facility" within the meaning of Ohio
Revised Code Section 3752.01. Neither Borrower shall cause or permit the
Property or any part thereof to become so classified.
Section 16.4 Mechanics' Lien Law. Lender shall be and is hereby authorized
and empowered to do as mortgagee all things provided in the mechanic's lien laws
of Ohio, including, without limitation, Section 1311.14 of the Ohio Revised
Code, and all amendments and supplements thereto.
Section 16.5 Appointment of Receiver. Lender shall be entitled to the
appointment of a receiver of Lender's choice for the Property as a matter of
right and without notice, which is hereby expressly waived, with power to
collect the rents due and to become due, without regard to the value of the
Property and regardless of whether Lender may have an adequate remedy at law or
in equity. Each Borrower, for itself and its successors and assigns, hereby
waives any and all defenses to the application for a receiver as set forth
above, and hereby specifically consents to such appointment of a receiver of
Lender's choice in any event in ex parte proceedings and without notice. Nothing
herein contained is to be construed to deprive Lender of any other right, remedy
or privilege it may now have, or may hereafter obtain, to have a receiver
appointed. From such rents collected by the receiver or by Lender prior to a
foreclosure sale, there shall be deducted the cost of collection thereof,
including, without limitation, real estate commissions, if any, for new or
extended or renewed leases, if any, receiver's fees, attorneys' fees and
expenses to the fullest extent not prohibited by applicable law, and any court
costs and other expenses; the remainder shall be disbursed by the receiver or
otherwise applied at Lender's discretion against the Debt.
Section 16.6 Advances Secured. Each Borrower and Lender intend that this
Security Instrument shall secure the unpaid balance of loan advances made by the
holder hereof after this Security Instrument is delivered to the County Recorder
in the county listed on the cover page of this Security Instrument for record to
the fullest extent and with the highest priority contemplated by Section
5301.232 of the Ohio Revised Code. The maximum amount of all loan advances, in
the aggregate and exclusive of interest accrued thereon and protective advances
made as contemplated by this Section 16.6 and by any other provision of this
Security Instrument, which may be outstanding at any time, is $1.00. If and to
the extent applicable, each Borrower hereby waives any right it may have under
Section 5301.232(c) of the Ohio Revised Code. In addition to the loan advances
referred to hereinabove in this Section 16.6, Lender shall have the right, but
not the obligation, to make protective advances with respect to the Property for
the payment of taxes, assessments, insurance premiums, repairs, maintenance
costs, costs and expenses, if any, incurred by reason of all or any part of the
Property being classified as a "reporting facility" within the meaning of Ohio
Revised Code Section 3752.01, and other costs incurred in the protection of the
Property as contemplated by Section 5301.233 of the Ohio Revised Code, and such
protective advances, together with interest thereon at the Default Rate (as
defined in the Loan Agreement) from the date of each such advance until it is
repaid in full, shall be secured by this Security Instrument to the fullest
extent and with the highest priority contemplated by said Section 5301.233.
28
Section 16.7 Tax Payor I.D. Lender's federal taxpayer identification number
is 00-0000000.
Section 16.8 Attorney Fees. As provided in Ohio Revised Code 1301.21, this
is a Contract of Indebtedness and each Borrower has committed to pay attorneys'
fees.
[NO FURTHER TEXT ON THIS PAGE]
29
IN WITNESS WHEREOF, THIS SECURITY INSTRUMENT has been executed by each
Borrower as of the day and year first above written.
THI OF OHIO REAL ESTATE HOLDING
COMPANY, LLC, a Delaware limited liability
company
By: /s/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice-President
THI OF OHIO AT COLUMBUS, LLC, a
Delaware limited liability company
By: /s/ XXXX X. XXXXX
-------------------------------
Name: Xxxx X. Xxxxx
Title: Vice-President
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On October 30, 2002, before me, a Notary Public in and for said state,
personally appeared Xxxx X. Xxxxx, personally known to me or proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity, and that by his/her/their signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
/s/ XXXXXX XXXX
----------------------------
Notary Public:
My commission expires: 6-30-03
[Notary Seal]
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On October 30, 2002, before me, a Notary Public in and for said state,
personally appeared Xxxx X. Xxxxx, personally known to me or proved to me on the
basis of satisfactory evidence to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity, and that by his/her/their signature on the instrument,
the person, or the entity upon behalf of which the person acted, executed the
instrument.
/s/ XXXXXX XXXX
----------------------------
Notary Public:
My commission expires: 6-30-03
THIS INSTRUMENT PREPARED BY,
RECORDING REQUESTED BY AND [Notary Seal]
WHEN RECORDED RETURN TO:
Xxxxx X. Xxxxx, Esquire
Dechert
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
