Exhibit 10.6
RECORD AND AFTER
RECORDING RETURN TO:
Cadwalader Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES, RENTS AND REVENUES
AND FIXTURE FILING
Dated as of April 30, 2002
by SHELBOURNE PROPERTIES I L.P.
as the Borrower
to
BAYERICHE HYPO- UND
VEREINSBANK AG, NEW YORK BRANCH,
as Agent for the Lenders
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES, RENTS AND REVENUES
AND FIXTURE FILING (this "Mortgage") is dated as of April 30, 2002 and is made
by SHELBOURNE PROPERTIES I L.P., a Delaware general partnership having an
address c/o First Winthrop, 0 Xxxxxxxxx Xxxxx, Xxxxx 000, X.X. Xxx 0000, Xxxxxx,
Xxxxxxxxxxxxx 00000 (the "Borrower"), in consideration of the premises and
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, in favor of the
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, a New York banking
corporation ("Agent"), as agent for itself and the Lenders (as defined below),
having an address at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
W I T N E S S E T H :
WHEREAS, pursuant to that certain Revolving Credit Agreement, dated as of
the date hereof, by and among the Borrower and the other borrowers party thereto
(collectively, the "Borrowers"), the lenders from time to time party thereto
(the "Lenders") and Agent, as agent for itself and the other Lenders (as
amended, restated, extended, consolidated, supplemented, replaced or otherwise
modified from time to time, the "Credit Agreement"), the Lenders have made a
loan to the Borrowers, subject to the terms and conditions therein set forth, in
the maximum principal amount of $75,000,000 (the "Loan");
WHEREAS, the Borrower is the owner of the Mortgaged Property (as defined
below); and
WHEREAS, the Borrower has entered into this Mortgage in connection with a
Mortgage Conversion by the Borrower in accordance with the Credit Agreement;
NOW, THEREFORE, in order to secure: (a) payment by the Borrowers of the
Debt; (b) the performance by the Borrowers of all the covenants and agreements
contained in the Note, this Mortgage and the other Loan Documents, as the same
may be amended, modified, supplemented or restated, to be performed or observed
by or on the part of the Borrowers (items (a) and (b) being referred to
collectively herein as, the "Secured Obligations"), the Borrower by these
presents hereby agrees as follows:
THE BORROWER HEREBY IRREVOCABLY GRANTS, BARGAINS, SELLS, PLEDGES, CONVEYS,
TRANSFERS, MORTGAGES AND ASSIGNS unto Agent (for the ratable benefit of the
Lenders), its successors and assigns forever, and grants a security interest to
Agent (for the ratable benefit of the Lenders) in, all right, title and interest
of the Borrower, now or hereafter owned, in and to all of the following property
(such property being referred to collectively herein as the "Mortgaged
Property"):
(i) those certain tracts or parcels of land as described in Exhibit A
hereto, together with all rights of way or use, sidewalks, alleys, strips,
gores, rights (including rights in streets (including those vacated or to
be vacated)), privileges, air rights and development rights, sewer rights,
waters, water courses, water rights, reservoir and drainage rights, and
powers, servitudes, estates, licenses, easements, tenements, hereditaments
and appurtenances incident, belonging or pertaining to such land, including
any mineral, mining, oil and gas rights and rights to produce or share in
the production of anything related thereto and similar or comparable rights
of any nature whatsoever now or hereafter appurtenant) (collectively, the
"Land"), and in the buildings, structures, fixtures and improvements, now
or hereafter located or placed thereon (which buildings and improvements
together with any additions thereto or alterations or replacements thereof,
being referred to herein as the "Improvements"); and
(ii) all machinery, apparatus, equipment, materials, fittings,
fixtures, chattels, articles of personal property and all other property
(real, personal or mixed), and all appurtenances and additions thereto and
betterments, renewals, substitutions and replacements thereof, now or
hereafter owned by the Borrower or in which the Borrower has or shall
acquire an interest (to the extent of such interest), and now or hereafter
located on, attached to or contained in or used in connection with the Land
or the Improvements, or placed on any part thereof though not attached
thereto, including, without limitation, all indoor and outdoor furniture,
landscaping, indoor plants, tools, screens, awnings, shades, blinds,
curtains, draperies, partitions, carpets, rugs, furniture and furnishings,
heating, lighting, plumbing, water heating, cooking, monitoring,
ventilating, air conditioning, refrigerating, sanitation, waste removal,
incinerating or compacting plants, systems, fixtures and equipment,
elevators, escalators, stoves, ranges, vacuum systems, window washing and
other cleaning systems, call systems, sprinkler systems and other fire
prevention and extinguishing apparatus and materials, alarms, computers,
televisions, telecommunications, entertainment, recreational or security
systems and equipment, motors, machinery, pipes, ducts, conduits, dynamos,
engines, compressors, generators, boilers, stokers, furnaces, pumps, tanks,
appliances, and other fixed assets (including, without limitation, any and
all fixtures, furnishings, equipment, furniture, and other items of
corporeal (tangible) movable (personal) property now or hereafter located
on or used in connection with the Land or the Improvements or used in
connection with the use, occupancy, operation and maintenance of all or any
part of the Land or the Improvements, other than stocks of food and other
supplies held for consumption in normal operation, but including, without
limitation, appliances, machinery, equipment, signs, artwork (including
paintings, prints, sculpture and other fine art), office furnishings and
equipment, all partitions, screens, awnings, shades, blinds, floor
coverings, hall and lobby equipment, heating, lighting, plumbing,
ventilating, refrigerating, incinerating, elevators, escalators, air
conditioning and communication plants or systems with appurtenant fixtures,
vacuum cleaning systems, call or beeper systems, security systems,
sprinkler systems and other fire prevention and extinguishing apparatus and
materials, all equipment, manual, mechanical or motorized, for the
construction, maintenance, repair and cleaning of parking areas, walks,
underground ways, truck ways, driveways, common areas, roadways, highways
and streets) (collectively, "Equipment"; the Land, Improvements and
Equipment are collectively referred to herein as the "Premises"); and
(iii) all personal property now or hereafter located at or used in
connection with the Premises and owned by the Borrower, including, without
limitation, all building materials, supplies and equipment now or hereafter
placed on the Land or in the Improvements and all architectural renderings,
models, drawings, plans, specifications, studies and data now or hereafter
relating to the Land or the Improvements; and
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(iv) all real estate tax refunds and credits and all awards or
payments, including, without limitation, interest on any of them, and any
right to receive the same which the Borrower may have, which may be made
with respect to any of the Premises whether from a Condemnation thereof or
for any other injury to, decrease in the value of, or other occurrence
affecting any of the Premises, subject, in each case, to the rights of
Tenants under Leases or parties under Operating Agreements to the extent
such Leases or Operating Agreements are not subordinate to the terms of
this Mortgage; and
(v) all Leases, Operating Agreements and Property Management
Agreements and guarantees thereof, and all other agreements for, affecting
or related to the use and occupancy of the Premises, now or hereafter
entered into (including any use or occupancy arrangements created pursuant
to Section 365(d) of Title 11 of the Bankruptcy Code or otherwise in
connection with the commencement or continuance of any bankruptcy,
reorganization, arrangement, insolvency, dissolution, receivership or
similar proceedings, or any assignment for the benefit of creditors, in
respect of any Tenant or occupant of any portion of the Mortgaged Property
and all extensions, amendments and modifications thereto heretofore or
hereafter entered into), and all Rents, incomes, issues, royalties,
revenues and profits derived by the Borrower from the Premises and the
right to apply such Rents, incomes, issues, royalties, revenues and profits
to the payment of the Notes and the other obligations secured by this
Mortgage, together with the security deposits or other payments or
instruments delivered as security under such Leases, Operating Agreements
and agreements (the grant of such security deposits and other security
being subject to application in accordance with the express requirements of
such Leases, Operating Agreements and any other agreements applicable
thereto); all of the Borrower's claims and rights to damages and any other
remedies in connection with or arising from the rejection of the Leases by
the Tenant or any trustee, custodian or receiver pursuant to the Bankruptcy
Code in the event that there shall be filed by or against the Tenant any
petition, action or proceeding under the Bankruptcy Code or under any other
similar federal or state law now or hereafter in effect; and
(vi) all monies, accounts, instruments and other property constituting
a part of the security for the Loan or the performance by the Borrower of
its obligations under this Mortgage or the other Loan Documents as of any
particular time, including all collateral subject to the Lien evidenced by
any of the Loan Documents or assigned to the Borrower after the date
hereof, and any proceeds of the foregoing; and
(vii) all proceeds of, and any unearned premiums or refunds of
premiums on, any insurance policies covering all or any part of the
Premises or other portion of the Mortgaged Property, including the right to
receive and apply the proceeds of any insurance, judgments or settlements
made in lieu thereof for damage to or the diminution of the Premises, but
subject, in each case, to the rights of Tenants under Leases or parties
under Operating Agreements to the extent such Leases and Operating
Agreements are not subordinate to the terms of this Mortgage; and
(viii) all general intangibles relating to design, development,
operation, management and use of the Premises, all certificates of
occupancy, zoning variances, building, use or other permits, approvals,
authorizations, licenses and consents obtained
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from any Governmental Authority in connection with the development, use,
operation or management of the Premises, all construction, service,
engineering, consulting, management, leasing, architectural and other
similar contracts concerning the design, construction, management,
operation, occupancy and/or use of the Premises, all architectural
drawings, plans, specifications, soil tests, appraisals, engineering
reports and similar materials relating to all or any portion of the
Premises and all payment and performance bonds or warranties or guarantees
relating to the Premises, all to the extent assignable; and
(ix) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
logos, other source and business identifiers, trademark registrations and
applications for registration used exclusively at or relating exclusively
to the Premises or any portion thereof; all renewals, extensions and
continuation-in-part of the items referred to above; any written agreement
granting to the Borrower any right to use any trademark or trademark
registration at or in connection with any of the Premises; and the right of
the Borrower to xxx for past, present and future infringements of the
foregoing; and
(x) all rights, dividends and/or claims of any kind whatsoever
relating to the Premises (including damage, secured, unsecured, lien,
priority and administration claims); together with the right to take any
action or file any papers or process in any court of competent
jurisdiction, which may in the opinion of Agent be necessary to preserve,
protect, or enforce such rights or claims, including the filing of any
proof of claim in any insolvency proceeding under any state, federal or
other laws and any rights, claims or awards accruing to or to be paid to
the Borrower in its capacity as landlord under the Leases, Operating
Agreements or Property Management Agreements; and the right in the name and
on behalf of the Borrower to appear in and defend any action or proceeding
brought with respect to any of the Premises or any other component of the
Mortgaged Property, and to commence any action or proceeding to protect the
interest of Agent therein;
(xi) all rights which the Borrower now has or may hereafter acquire,
to be indemnified and/or held harmless from any liability, loss, damage,
costs or expense (including, without limitation, attorneys' fees and
disbursements) relating to the Mortgaged Property or any part thereof; and
(xii) all appurtenances in respect of or otherwise relating to the
Leases, including, without limitation, all the estate and rights of the
Borrower of, in and to (i) all modifications, extensions and renewals of
the Leases and all rights to renew or extend the term thereof, (ii) all of
any of the Borrower's rights, if any, pertaining to deposits of the Tenants
under the Leases (including Tenant security deposits, if any) (iii) all the
rights and/or privilege of the Borrower to terminate, cancel, abridge,
surrender, merge, modify or amend the Leases and (iv) any and all
possessory rights of the Borrower and other rights and/or privileges of
possession, including, without limitation, of any of the Borrower's right
to elect to take possession of the Mortgaged Property; and
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(xiii) all present and future monetary deposits given by any of the
Borrowers to any public or private utility with respect to utility services
furnished to any part of the Premises or the Improvements; and
(xiv) all refunds and rebates of taxes and assessments relating to the
Premises (except to the extent such refunds and rebates relate to taxes or
assessments paid by the Tenants under the Leases); and
(xv) any of the foregoing to the extent acquired from and after the
date hereof; and
(xvi) all of any of the Borrower's interest in and to all proceeds,
products, substitutions and accessions (including, without limitation,
claims and demands therefor) including interest receivable thereon, of the
voluntary or involuntary conversion of any of the foregoing, including
proceeds of insurance and condemnation awards, into cash or liquidated
claims; and
(xvii) all other or greater rights and interests of every nature in
the Premises and in the possession or use thereof and income therefrom,
whether now owned or hereafter acquired by the Borrower.
TOGETHER with all right, title and interest of the Borrower in and to all
extensions, improvements, betterments, renewals, substitutes and replacements
of, and all additions and appurtenances to, any of the foregoing hereafter
acquired by, or released to, the Borrower or constructed, assembled or placed by
the Borrower on the Premises and all conversions of the security constituted
thereby, immediately upon such acquisition, release, construction, assemblage,
placement or conversion, as the case may be, and in each such case, without any
further mortgage, conveyance, assignment or other act by any of the Borrower,
shall become subject to the Lien of this Mortgage as fully and completely, and
with the same effect, as though now owned by the Borrower and specifically
described herein.
TO HAVE AND TO HOLD the above granted and described property unto and to
the proper use and benefit of Agent, its successors and assigns, forever, upon
the terms and conditions set forth herein.
To protect the security of this Mortgage, the Borrower covenants and agrees
with and represents and warrants to Agent, as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used herein without definition shall have the respective
meanings ascribed to such terms in the Credit Agreement. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and section,
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subsection, schedule and exhibit references are to this Agreement unless
otherwise specified. The word "including" when used in this Agreement shall be
deemed to be followed by the words "without limitation". As used in this
Agreement, the following terms shall have the meanings set forth below:
"Agent" has the meaning given to such term in the recitals to this
Mortgage.
"Assignment of Agreements" means the Assignment of Agreements, Licenses,
Permits and Contracts, dated as of the date hereof, by the Borrower in favor of
Agent for the ratable benefit of the Lenders, as the same may be amended,
restated, replaced, supplemented or otherwise modified from time to time.
"Assignment of Leases" means the Assignment of Leases, Rents and Revenues,
dated as of the date hereof, by the Borrower in favor of Agent for the ratable
benefit of the Lenders, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.
"Borrower" has the meaning given to such term in the preamble to this
Mortgage.
"Borrower's Contest Right" means the Borrowers' right to contest certain
matters pursuant to Section 5.1(b)(ii) of the Credit Agreement, subject to all
of the terms and conditions set forth in said Section.
"Credit Agreement" has the meaning given to such term in the recitals to
this Mortgage.
"Equipment" has the meaning given to such term in the recitals to this
Mortgage.
"Improvements" has the meaning given to such term in the recitals to this
Mortgage.
"Indemnified Party" has the meaning given to such term in Article X.
"Land" has the meaning given to such term in the recitals to this Mortgage.
"Leases" means any lease, sublease, sub-sublease, license, letting,
concession, occupancy agreement or other agreement (whether written or oral and
whether now or hereafter in effect), existing as of the date hereof or hereafter
entered into by Borrower (as the lessor thereunder), pursuant to which any
Person is granted a possessory interest in, or right to use or occupy all or any
portion of any space in the Mortgaged Property, and every modification,
amendment or other agreement relating to such lease, sublease, or other
agreement entered into in accordance with the terms of the Loan Documents, and
every guarantee of the performance and observance of the covenants, conditions
and agreements to be performed and observed by the other party thereto.
"Lender" has the meaning given to such term in the recitals to this
Mortgage.
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"Loan" has the meaning given to such term in the recitals to this Mortgage.
"Mortgage" means this Mortgage, Security Agreement, Assignment of Leases,
Rents and Revenues and Fixture Filing, as the same may be amended, restated,
extended, consolidated, supplemented, replaced or otherwise modified from time
to time.
"Mortgaged Property" has the meaning given to such term in the recitals to
this Mortgage.
"Personal Property" has the meaning stated in Section 25.1.
"Premises" has the meaning given to such term in the recitals to this
Mortgage.
"Protective Advances" has the meaning given to such term in Section 14.3.
"Secured Amount" shall mean $10,100,000.
"Secured Obligations" has the meaning given to such term in the recitals to
this Mortgage.
"Tenant Guaranty" has the meaning given to such term in Section 30.1.
ARTICLE II
PAYMENT OF THE NOTE, ALL OTHER DEBT AMOUNTS
The Borrower will duly pay the amounts owed under the Notes and the other
portions of the Debt, including, without limitation, all amounts due under this
Mortgage and any other Loan Document, at the places, at the respective times and
in the manner provided therein and herein (as applicable).
ARTICLE III
PERFORMANCE AND OBSERVANCE OF CREDIT AGREEMENT
COVENANTS; REPRESENTATIONS AND WARRANTIES
3.1 Covenants. The Borrower will duly perform, observe and comply with all
of the affirmative and negative covenants, agreements and obligations to be
performed, observed and complied with by the Borrower, and all of the other
terms and conditions applicable to the Borrower, under the terms of the Credit
Agreement and any other Loan Document, as if each such covenant, agreement,
obligation, term and condition were expressly set forth herein in full. Without
limiting the generality of the foregoing, the Borrower will maintain the
Premises, pay Taxes and Other Charges, obtain and maintain insurance, keep the
Mortgaged Property free of Liens (other than Permitted Encumbrances), pay the
utility charges for the Premises, perform alterations and repairs in respect of
the Premises, cause the Premises to comply with all
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applicable Legal Requirements, Transfer the Premises, restore the Premises upon
any Casualty or Condemnation, and lease the Premises, all in accordance with and
subject to all of the applicable terms and conditions of the Credit Agreement
and the other Loan Documents
3.2 Representations and Warranties. The Borrower hereby represents and
warrants with respect to itself and/or the Mortgaged Property that (i) as of the
date hereof, each of the representations and warranties contained in Article IV
of the Credit Agreement is true and correct and any schedules or exhibits
referred to in said representations and warranties that are attached thereto and
incorporated therein by reference are true and correct. Such representations and
warranties are hereby incorporated by reference as though set forth in this
Mortgage in their entirety.
ARTICLE IV
INSURANCE
The Borrower shall, at its sole cost and expense, continuously keep and
maintain insurance in respect to the Mortgaged Property and the Borrower's
operations thereat, of the type and in the form and with insurers, all as
provided in the Credit Agreement. All proceeds to which the Borrower may be
entitled resulting from damage to or destruction of the Mortgaged Property or
any part thereof by a Casualty shall be distributed and applied in accordance
with the provisions of Section 8.1.2 of the Credit Agreement.
ARTICLE V
CONDEMNATION/EMINENT DOMAIN
All proceeds to which the Borrower may be entitled resulting from the
Condemnation of the Mortgaged Property or any part thereof or interest therein
or injury to the Mortgaged Property or any part thereof in connection with any
such Condemnation shall be distributed and applied towards restoration of the
Mortgaged Property or repayment of the Secured Obligations in accordance with
the provisions of Section 8.1.3 of the Credit Agreement.
ARTICLE VI
MAINTENANCE OF VALIDITY AND RECORDING
6.1 Maintenance of Validity of Mortgage by the Borrower. Borrower covenants
that it will forthwith after the execution and delivery of this Mortgage and
thereafter as necessary from time to time cause this Mortgage and the other Loan
Documents and any continuation statement or similar instrument relating to any
property subject thereto or to any property intended to be granted, conveyed,
transferred and assigned by this Mortgage to be filed, registered and recorded
in such manner and in such places as may be required by applicable
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Legal Requirements in order to publish notice of and fully to protect the
validity thereof or the grant thereby of the property subject thereto and the
interest and rights of Agent therein. Borrower covenants that it has paid or
will pay or cause to be paid all taxes and fees incident to such filing,
registration and recording, and all expense incident to the preparation,
execution and acknowledgment thereof, and of any instrument of further
assurance, and all federal or state stamp taxes or other charges arising out of
or in connection with the execution and delivery of such instruments.
6.2 Maintenance of Validity of Mortgage by Third Parities. Borrower
covenants that at all times it will itself, or will use its best efforts to
cause parties to, preserve, warrant and defend Agent's title and right in and to
the Mortgaged Property, subject to the Permitted Encumbrances and items then
being contested in accordance with the Borrower's Contest Right, against the
claims of all Persons and will maintain and preserve such title and right so
long as the Debt is outstanding.
6.3 Maintenance of Validity of Mortgage and Other Loan Documents. Borrower
shall maintain the validity, perfection, priority and effectiveness of this
Mortgage and the other Loan Documents. Unless otherwise permitted in this
Mortgage and the other Loan Documents, Borrower will not take any action, will
use all commercially reasonable efforts not to permit any action to be taken by
others and will not omit to take any action, nor will the Borrowers give any
notice, approval or consent or exercise, waive or modify any rights under or in
respect of the Permitted Encumbrances, which action, omission, notice, approval,
consent or exercise, waiver or modification of rights would release the Borrower
from, or reduce any of the Borrowers' obligations or liabilities under, or would
result in the termination, surrender or assignment of, or the amendment or
modification of, any of the Loan Documents, or would impair the validity of this
Mortgage or any of the other Loan Documents, or would affect the Mortgaged
Property in any material adverse respect, without Agent's consent, and any
attempt to do any of the foregoing without such consent shall be of no force and
effect.
6.4 Further Assurances. Upon demand by Agent, the Borrower will, at the
cost of the Borrower and without expense to Agent, do, execute, acknowledge and
deliver all such further acts, deeds, conveyances, mortgages, assignments,
notices of assignment, transfers and assurances as Agent shall from time to time
require for better assuring, conveying, assigning, transferring and confirming
unto Agent the property and rights hereby conveyed or assigned or intended now
or hereafter so to be, or which the Borrower may be or may hereafter become
bound to convey or assign to Agent, or for carrying out the intention or
facilitating the performance of the terms of this Mortgage, or for filing,
registering or recording this Mortgage, and on demand, Borrower will also
execute and deliver and hereby appoints Agent as its true and lawful
attorney-in-fact and agent, for Borrower and in its name, place and stead, in
any and all capacities, to execute and file to the extent it may lawfully do so,
one or more financing statements, chattel mortgages or comparable security
instruments reasonably requested by Agent to evidence more effectively the Lien
hereof upon the Personal Property and to perform each and every act and thing
requisite and necessary to be done to accomplish the same.
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ARTICLE VII
ADDITIONS TO MORTGAGED PROPERTY
All right, title and interest of the Borrower in and to all extensions,
improvements, betterments, renewals, substitutes and replacements of, and all
additions and appurtenances to, the Mortgaged Property hereafter acquired by or
released to the Borrower or constructed, assembled or placed by the Borrower
upon the Premises or the Improvements, and all conversions of the security
constituted thereby, immediately upon such acquisition, release, construction,
assembling, placement or conversion, as the case may be, and in each such case
without any further mortgage, conveyance, assignment or other act by the
Borrower, shall become subject to the Lien and security interest of this
Mortgage as fully and completely and with the same effect as though now owned by
the Borrower and specifically described in the grant of the Mortgaged Property
above, but at any and all times the Borrower will execute and deliver to Agent
any and all such further assurances, mortgages, conveyances or assignments
thereof as Agent may reasonably require for the purpose of expressly and
specifically subjecting the same to the Lien and security interest of this
Mortgage.
ARTICLE VIII
CROSS-COLLATERALIZATION; ENFORCEMENT
The Borrower acknowledges that the Debt is secured by the Pledge Agreement,
this Mortgage, the Assignment of Leases, the Assignment of Agreements and
various other documents or instruments securing or evidencing the Loan. Upon the
occurrence of an Event of Default, Agent shall have the right to institute a
proceeding or proceedings for the foreclosure of this Mortgage and any or all of
the other Loan Documents securing repayment of the Debt, whether by court
action, power of sale or otherwise, under any applicable provisions of law, for
all or any portion of the Debt, and the Liens and the security interests by the
Loan Documents shall continue in full force and effect as to the Mortgaged
Property (or portions thereof) not foreclosed, without loss of priority securing
that portion of the Debt then due and payable and still outstanding. Neither the
acceptance of this Mortgage or any other Loan Document nor the enforcement
thereof in any one state, whether by court action, foreclosure, power of sale or
otherwise, shall prejudice or in any way limit or preclude enforcement by court
action, foreclosure, power of sale or otherwise, of the Note, this Mortgage or
any other Loan Document through one or more additional proceedings in that state
or in any other state. After the occurrence and during the continuance of an
Event of Default, any and all sums received by Agent under the Note, this
Mortgage, the Credit Agreement or any other Loan Document shall be applied
toward the repayment of the Debt in such order and priority as Agent shall
determine, consistent with any applicable requirements of the Loan Documents,
but otherwise without regard to the Allocated Loan Amount applicable to the
Mortgaged Property or the appraised value of the Mortgaged Property.
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ARTICLE IX
NO CLAIMS AGAINST AGENT OR LENDERS
Nothing contained in this Mortgage or in any other Loan Document shall
constitute any consent or request by Agent or any Lender, express or implied,
for the performance of any labor or services or the furnishing of any materials
or other property in respect of the Premises or any part thereof, nor as giving
the Borrower any right, power or authority to contract for or permit the
performance of any labor or services or the furnishing of any materials or other
property in such fashion as would permit the making of any claim against Agent
or any Lender in respect thereof or any claim that any Lien based on the
performance of such labor or services or the furnishing of any such materials or
other property is prior to the interest of Agent under this Mortgage.
ARTICLE X
INDEMNIFICATION
The Borrower will protect, indemnify and save harmless Agent, the Lenders
and each of their respective Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including all reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Agent or any Lender by
reason of the occurrence or existence of any of the following prior to the
payment in full of the Debt and the satisfaction of all conditions for the
satisfaction and release of this Mortgage, except to the extent such
liabilities, obligations, claims, damages, penalties, causes of action, costs or
expenses arise by reason of the gross negligence or willful misconduct of any
Indemnified Party:
(a) ownership or possession of the Borrower's interest in the
Mortgaged Property, or any interest therein, or receipt of any Rent or
other sum therefrom;
(b) any accident, injury to or death of any Persons or loss of or
damage to property occurring on or about the Premises or any part thereof
or the adjoining parking areas, sidewalks, curbs, vaults and vault space,
if any, streets or ways;
(c) any use, non-use or condition of the Premises or any part thereof
or the adjoining parking areas, sidewalks, curbs, streets or ways,
including claims or penalties arising from violation of any Legal
Requirement or Insurance Requirement, as well as any claim based on any
patent or latent defect, whether or not discoverable by Agent, any claim
the insurance as to which is inadequate, and any claim in respect of any
adverse environmental impact or effect;
(d) any failure on the part of the Borrower to perform or comply with
any of the terms of this Mortgage, any Lease, Property Management
Agreement, Operating Agreement or any other Loan Document to which it is a
party and any breach
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in any material respect of any representation made by the Borrower herein
or in any other Loan Document;
(e) any performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any
part thereof;
(f) any bad faith, negligence or tortious act or omission on the part
of the Borrower or any of its agents, contractors, servants, employees,
sublessees, licensees or invitees;
(g) any contest undertaken by the Borrower (even if the same is
permitted by the terms of the Loan Documents); or
(h) the presence at, on, or under the Premises or the migration from
or release at, on or from the Premises of any pollutant or Hazardous
Substance, in violation of any Legal Requirement. Subject to the provisions
of the Environmental Indemnity, the Indemnification provided for in this
sub-paragraph (h) shall survive the term of the Loan and shall remain in
full force and effect subsequent to the payment in full of the Debt and the
satisfaction and release of any mortgage or all mortgages executed by
Borrower in connection with the Loan.
Agent shall give prompt notice to the Borrower of any claims, liabilities,
obligations, damages, penalties, costs or causes of action for which Agent
believes it is entitled to indemnification hereunder promptly upon its discovery
of the action or event giving rise to such claim, but the failure of Agent to
provide such notice shall neither cause the forfeiture of the right to receive
indemnity hereunder nor limit such right except to the extent, if any, that the
Borrower is prejudiced by the failure of the Indemnified Party promptly to give
such notice. Any amounts payable under this Article X to Agent that are not paid
within ten (10) Business Days after written demand therefor by Agent, setting
forth in reasonable detail the amount of such demand and the basis therefor,
shall bear interest from the date of demand until paid at the Default Rate and
shall be secured by this Mortgage. In case any action, suit or proceeding is
brought against Agent by reason of any such occurrence, the Borrower, upon the
request of Agent, will (or, at the option of Agent, Agent may) at the Borrower's
expense resist and defend such action, suit or proceeding or cause the same to
be resisted and defended by counsel for the insurer of the liability or by
counsel selected by the Borrower (unless reasonably disapproved by Agent);
provided that the Borrower shall be entitled to recover from Agent any costs or
expenses incurred by the Borrower on behalf of Agent in satisfaction of its
obligation under this sentence (or otherwise under this Article X) if it is
determined by final judgment that the action, suit or proceeding in question was
not properly the subject of a claim for indemnification under this Article X. So
long as the Borrower is resisting and defending such action, suit or proceeding
as provided above in a prudent and commercially reasonable manner, Agent shall
not be entitled to settle such action, suit or proceeding or claim the benefit
of this Article X with respect to such action, suit or proceeding (including the
right to reimbursement of Agent's counsel fees and expenses), and Agent agrees
that it will not settle any such action, suit or proceeding without the written
consent of the Borrower which consent shall not be unreasonably withheld or
delayed; provided that if the Borrower is not diligently defending such action,
-12-
suit or proceeding in a prudent and commercially reasonable manner as provided
above, Agent may settle such action, suit or proceeding subject only to the
written consent of the Borrowers, which consent shall not be unreasonably
withheld or delayed, and claim the benefit of this Article X with respect to
settlement of such action, suit or proceeding.
ARTICLE XI
NO ENDORSEMENT
Agent shall not become or be considered to be an endorser, co-maker or
co-obligor on the Notes or on any obligation of the Borrower secured by
this Mortgage.
ARTICLE XII
XXXXXXXX; NO CREDIT FOR PAYMENT OF TAXES OR OTHER CHARGES
12.1 Payment of Taxes. The Borrower shall pay any Taxes and Other Charges
with respect to the Mortgaged Property, including any Taxes adopted after the
date hereof, changing in any way the laws for the taxation of mortgages or debts
secured thereby for federal, state or local purposes, or the manner of
collection of any such Taxes.
12.2 No Credit. The Borrower shall not be entitled to any credit against
the principal, interest or other amounts, if any, payable on the Notes or under
any other Loan Document, and the Borrower shall not be entitled to any credit
against any other amounts which may become payable under the terms thereof or
hereof, by reason of the payment of any Taxes or Other Charges on the Mortgaged
Property or any part thereof or by reason of payment of any other amount
required to be paid hereunder. No deduction shall be made or claimed from the
taxable value of the Mortgaged Property or any part thereof by reason of this
Mortgage.
ARTICLE XIII
COMPROMISE OF ACTIONS BY AGENT
Any action, suit or proceeding brought by Agent pursuant to this Mortgage
or otherwise and any claim made by Agent under this Mortgage or otherwise may be
compromised, withdrawn or otherwise dealt with by Agent without notice to or the
approval of the Borrower.
ARTICLE XIV
FORECLOSURE
14.1 Foreclosure.
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(a) If any Event of Default shall have occurred and be continuing,
Agent may at any time proceed to protect and enforce the payment of the
Notes in accordance with the terms thereof or the rights of Agent hereunder
(i) by any action at law, suit in equity or other appropriate proceedings,
whether for the specific performance of any agreement contained herein, or
for an injunction against the violation of any of the terms hereof, or in
aid of the exercise of any power granted hereby or by law, or (ii) by the
foreclosure of this Mortgage. In any suit to foreclose the Lien hereof,
there shall be allowed and included as additional indebtedness hereby
secured in the decree of sale, all reasonable expenditures and expenses
which may be paid or incurred by or on behalf of Agent for attorneys' fees,
appraisers' fees, outlays for documentary and expert evidence,
stenographers' charges, publication costs, and costs (which may be
estimated as to items to be expended after the entry of the decree) of
procuring all such abstracts of title, title searches and examinations,
title insurance policies, and similar data and assurance with respect to
title as Agent may deem reasonably necessary either to prosecute such suit
or to evidence to bidders at sales which may be had pursuant to such decree
the true conditions of the title to or the value of the Mortgaged Property
and Rents and income therefrom and the maintenance of the Lien of this
Mortgage, including the fees of any attorney employed by any of Agent in
any litigation or proceedings affecting this Mortgage, the Note or the
Mortgaged Property, including bankruptcy proceedings, or in preparation of
the commencement or defense of any proceedings or threatened suit or
proceeding, or otherwise in dealing specifically therewith, shall be so
much additional indebtedness hereby secured and shall be immediately due
and payable by the Borrower, with interest thereon at the Default Rate
until paid.
(b) Nothing herein contained shall be construed as constituting Agent
a mortgagee in possession in the absence of the actual taking of possession
of the Mortgaged Property.
(c) Before taking title to or possession of all or any portion of the
Mortgaged Property, Agent may order the performance of environmental
assessments of the Mortgaged Property by qualified professionals, the
reasonable cost of which shall be borne by the Borrower and secured hereby.
14.2 The Borrower's Waivers.
(a) To the extent permitted by applicable law, Borrower shall not and
will not apply for or avail itself of any appraisement, valuation, stay,
extension or exemption laws, or any so-called "Moratorium Laws," now
existing or hereafter enacted in order to prevent or hinder the enforcement
or foreclosure of this Mortgage, but hereby waives the benefit of such
laws. Borrower for itself and all who may claim through or under it waives
any and all right to have the property and estates comprising any part of
the Mortgaged Property marshaled upon any foreclosure of the Lien hereof
and agrees that any court having jurisdiction to foreclose such Lien may
order any part of the Mortgaged Property sold as an entirety. In the event
of any sale made under or by virtue of this instrument, the whole of the
Mortgaged Property may be sold in one parcel as an entirety or in separate
lots or parcels at the same or different times, all as Agent may determine.
It shall not be necessary for Agent to have actual or constructive
possession
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of any part of the Mortgaged Property in order to pass the title to and the
right of possession of any portion of the Mortgaged Property, and the title
to and the right of possession of the Mortgaged Property shall pass to the
purchaser or purchasers thereof at any sale hereunder as fully as if the
same actually had been present and delivered. To the fullest extent allowed
by applicable law, upon foreclosure of this Mortgage, whether by power of
sale or any other nonjudicial or judicial foreclosure process, the Borrower
or any Person claiming any part of any portion of the Mortgaged Property
by, through or under the Borrower shall not be entitled to direct the order
of sale, a marshaling of assets or a sale in inverse order of alienation.
Agent shall have the right to become the purchaser at any sale made under
or by virtue of this instrument and Agent so purchasing at any such sale
shall have the right to be credited upon the amount of the bid made
therefor by Agent with the amount payable to Agent out of the net proceeds
of such sale. In the event of any such sale, the Notes and the other
indebtedness hereby secured, if not previously due, shall be and become
immediately due and payable without demand or notice of any kind. To the
fullest extent permitted by law, the Borrower, hereby voluntarily and
knowingly waives any and all rights of redemption on behalf of the
Borrower, and each and every Person acquiring any interest in, or title to
any portion of the Mortgaged Property described herein subsequent to the
date of this Mortgage, and on behalf of all other Persons to the extent
permitted by applicable law, and (b) voluntarily and knowingly waives any
and all rights of reinstatement. The recitals and statements of fact
contained in any notice or in any conveyance to the purchaser or purchasers
at any sale hereunder shall be prima facie evidence of the truth of such
facts, and all prerequisites and requirements necessary to the validity of
any such sale shall be presumed to have been performed.
(b) In the event of a foreclosure sale, to the extent that Borrower is
in possession of any portion of the Premises, Borrower shall be deemed a
tenant at will of the purchaser at such judicial foreclosure sale and shall
be liable for a reasonable rental for the use of the Premises; and if
Borrower refuses to surrender possession of the Premises upon demand, the
purchaser shall be entitled to institute and maintain the statutory action
of forcible entry and detainer and procure a writ of possession thereunder,
and Borrower expressly waives all damages sustained by reason thereof and
such Borrower agrees to pay to the purchaser the reasonable costs and
expenses (including all reasonable attorneys' fees and expenses) of such
action and writ.
14.3 Recovery of Advances. All reasonable advances, disbursements and
expenditures made by Agent before and during a foreclosure, and before and after
judgment of foreclosure, and at any time prior to sale, and, where applicable,
after sale, and during the pendency of any related proceedings, for the
following purposes, in addition to those otherwise authorized by this Mortgage
(collectively "Protective Advances"):
(a) all advances by Agent in accordance with the terms of this
Mortgage to:
(i) preserve or maintain, repair, restore or rebuild the
improvements upon the Mortgaged Property; and
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(ii) preserve the Lien of this Mortgage or the priority thereof;
and
(iii) enforce this Mortgage; and
(b) payments by Agent of:
(i) when due installments of principal, interest or other
obligations in accordance with the terms of any prior Lien or
Encumbrance, if any; and
(ii) when due installments of Taxes and Other Charges which are
assessed or imposed upon the Mortgaged Property or any part thereof;
and
(iii) other obligations authorized by this Mortgage; and
(c) advances by Agent in settlement or compromise of any claims
asserted by claimants under senior mortgages or any other prior Liens; and
(d) attorneys' fees and other costs incurred:
(i) in connection with the foreclosure of this Mortgage; and
(ii) in connection with any action, suit or proceeding brought by
or against Agent for the enforcement of this Mortgage or arising from
the interest of Agent hereunder; and
(iii) in the preparation for the commencement or defense of any
such foreclosure or other action; and
(e) advances of any amount required to make up a deficiency in
deposits for installments of taxes and assessments and insurance premiums
as may be authorized by this Mortgage; and
(f) expenses incurred and expenditures made by Agent for any one or
more of the following:
(i) premiums for casualty and liability insurance paid by Agent
whether or not Agent or a receiver is in possession and all renewals
thereof; and
(ii) repair or restoration of any Casualty or Condemnation in
excess of the Net Proceeds therefor; and
(iii) any portion of payments required or deemed by Agent to be
for the benefit of the Mortgaged Property under any grant or
declaration of easement, easement agreement, agreement with any
adjoining land owners or instruments creating covenants or
restrictions for the benefit of or affecting the Mortgaged Property;
and
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(iv) shared or common expense assessments payable to any
association or corporation in which the owner of the Mortgaged
Property is a member in any way affecting the Mortgaged Property; and
(v) pursuant to any Lease for occupancy of the Mortgaged Property
or any portion thereof.
All Protective Advances shall be so much additional indebtedness secured by
this Mortgage, and shall become immediately due and payable without notice and
with interest thereon from the date of the advance until paid at the Default
Rate.
14.4 Sale. Upon the completion of any sale or sales of all or any portion
of the Mortgaged Property by virtue of this Article XIV, Agent or any officer of
any court empowered to do so, shall execute and deliver to the accepted
purchaser or purchasers, good and sufficient instrument or instruments
conveying, assigning and transferring all estate, right, title and interest in
and to the property and rights sold. In such event, Agent is hereby irrevocably
appointed the true and lawful attorney-in-fact (which appointment is coupled
with an interest) of the Borrower, in its name and stead, to make all the
necessary conveyances, assignments, transfers and deliveries of any part of the
Mortgaged Property and rights so sold, and for that purpose Agent may execute
all necessary instruments of conveyance, assignment and transfer and may
substitute one or more Persons with like power, the Borrower hereby ratifying
and confirming all that such Borrower's said attorney or such substitute or
substitutes shall lawfully do by virtue hereof. Nevertheless, each Borrower
shall, if so requested by Agent, ratify and confirm any such sale or sales by
executing and delivering to Agent or to such purchaser or purchasers all such
instruments (which in each case shall be without recourse to or representation
or warranty by the applicable Borrower) as may be advisable, in the judgment of
Agent, for the purpose and as may be designated in such request. To the extent
permitted by law, any such sale or sales shall operate to divest all the estate,
right, title, interest, claim and demand whatsoever, whether at law or in
equity, of the Borrower in and to the properties, interests and rights so sold,
and shall be a perpetual bar both at law and in equity against the Borrower and
against all Persons claiming or who may claim the same, or any part thereof
from, through or under the Borrower.
14.5 Several Parcels. To the extent permitted by law, if any Event of
Default shall have occurred and be continuing and the Notes shall have been
declared due and payable, Agent shall have the right to sell all or any portion
of the Mortgaged Property in such order as it may determine, and the right of
sale hereunder shall not be exhausted by one or more sales, but to the extent
permitted by law successive sales may be had until all of the Mortgaged Property
shall have been legally sold. To the extent permitted by law, in the event any
sale hereunder is not completed or is defective in the opinion of Agent, such
sale shall not exhaust the power of sale hereunder, and Agent shall have the
right to cause a subsequent sale or sales.
14.6 Agent Authorized to Execute Instruments. Borrower irrevocably appoints
(which appointment is coupled with an interest) Agent the true and lawful
attorney-in-fact of Borrower, in its name and stead and on its behalf, for the
purpose of effectuating any sale, assignment, transfer or delivery for the
enforcement of this Mortgage after the occurrence and during the continuance of
an Event of Default, to execute and deliver all such deeds, assignments, bills
of sale and other instruments (without recourse, warranty or representation of
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any kind) as Agent may consider necessary or appropriate, with full power of
substitution, the Borrower hereby ratifying and confirming all that such
attorney or any substitutes thereof shall lawfully do by virtue hereof.
Nevertheless, if so requested by Agent or any purchaser, the Borrower shall
ratify and confirm any such sale, assignment, transfer or delivery by executing
and delivering to Agent or such purchaser all deeds, assignments, bills of sale,
releases and other proper instruments (which in each case shall be without
recourse to or representation or warranty by the Borrowers) to effect such
ratification and confirmation as may be designated in any such request.
14.7 Purchase of Mortgaged Property by Agent. Agent or any nominee of Agent
may be a purchaser of the Mortgaged Property or of any interest therein at any
sale thereof, and may apply to the purchase price all or any part of the Debt
secured hereby in lieu of payment in cash of the amount of such Debt applied.
Any such purchaser shall, upon any such purchase, acquire good title to the
property so purchased, free of the Lien of this Mortgage and free of all rights
of redemption in the Borrower.
14.8 Receipt a Sufficient Discharge to Purchaser. Upon any sale of any
portion of the Mortgaged Property after the Notes become due and payable,
whether at maturity, by declaration of acceleration or by automatic acceleration
after the occurrence and continuation of an Event of Default or otherwise, the
receipt of Agent or the receipt of the officer making the sale under judicial
proceedings shall, to the full extent legally permitted, be sufficient discharge
to the purchaser for the purchase money, and such purchaser shall not be
obligated to see to the application thereof.
14.9 Waiver of Marshaling, Appraisement, Valuation. Borrower hereby waives
all rights, legal and equitable, it may now or hereafter have to require
marshaling of assets or to require upon foreclosure sales of assets in a
particular order. Each successor and assign of the Borrower, including a holder
of a Lien subordinate to the Lien created hereby (without implying that the
Borrower has, except as expressly provided herein, a right to grant an interest
in, or a subordinate Lien on, the Mortgaged Property or any part thereof), by
acceptance of its interest or Lien agrees that it shall be bound by the above
waiver, as if it gave the waiver itself. The Borrower also hereby waives, to the
full extent it may lawfully do so, the benefit of all laws providing for rights
of appraisement, valuation, stay or extension or of redemption after foreclosure
now or hereafter in force.
14.10 Sale Shall Be a Bar Against the Borrower. The sale of all or any
portion of the Mortgaged Property in connection with the exercise of remedies
under this Mortgage after the Notes become due and payable, whether at maturity,
by declaration of acceleration or by automatic acceleration after the occurrence
and continuation of an Event of Default or otherwise, shall, to the full extent
legally permitted, forever be a perpetual bar against the Borrower's asserting
any claim to title to such portion of the Mortgaged Property so sold.
14.11 Application of Sale Proceeds. After deducting all reasonable costs,
fees and expenses of Agent and of this Mortgage, including costs of evidence of
title in connection with a sale, the remaining proceeds of any sale made under
or by virtue of this Article XIV, together with any other sums which then may be
held by Agent under this Mortgage, whether under the provisions of this Section
or otherwise, shall be applied by Agent in the following
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priority, to payment of: (a) first, all sums expended by Agent under the terms
hereof, not then repaid, with accrued interest at the Default Rate as specified
in the Loan Documents, (b) second, all other sums then secured hereby and (c)
the remainder, if any, to the Person or Persons legally entitled thereto.
ARTICLE XV
APPOINTMENT OF RECEIVER
If an Event of Default shall have occurred and be continuing, Agent shall,
to the fullest extent permitted by law, as a matter of right, be entitled to the
appointment of a receiver for all or any part of the Mortgaged Property, to take
possession of and to operate the Mortgaged Property whether such receivership is
incidental to a proposed sale of the Mortgaged Property or otherwise, and the
Borrower hereby consents to the appointment of such a receiver and will not
oppose any such appointment. Such receiver shall have all of the rights and
powers permitted under the rules of the State wherein the Mortgaged Property is
located. The Borrower shall pay to Agent upon demand all reasonable expenses,
including receivers' fees, reasonable attorneys' fees and disbursement costs and
agents' compensation incurred pursuant to the provisions of this Article XV; and
all such expenses shall be secured by this Mortgage and shall be, without
limitation, immediately repaid by the Borrower to Agent with interest thereon at
the Default Rate.
ARTICLE XVI
POSSESSION, MANAGEMENT AND INCOME UPON DEFAULT
16.1 Possession; Self Help. If an Event of Default shall have occurred and
be continuing, Agent, with such notice, if any, to the Borrower as required by
law or as Agent considers reasonable and appropriate in the circumstances, and
subject to the rights of Tenants and the other parties to any Operating
Agreements and the provisions of applicable law, may immediately enter upon and
take possession of the Premises by self-help, summary proceedings, ejectment or
otherwise, and may remove the Borrower and all other Persons and any and all
property therefrom, and may hold, operate and manage the same and receive all
earnings, income, Rents, issues and proceeds accruing with respect thereto.
Agent shall be under no liability for or by reason of any such taking of
possession, entry, removal or holding, operation or management, except (a) for
its gross negligence or willful misconduct or (b) to the extent required by
applicable law, and except that any amounts so received by Agent shall be
applied as set forth in the Notes and the Credit Agreement.
16.2 Possession; Cooperation of the Borrower. At the request of Agent, the
Borrower shall promptly execute and deliver to Agent such deeds, instruments of
assignment and other documents as Agent may deem necessary or advisable to
enable Agent or any agent or representative designated by Agent, at such time or
times and place or places as Agent may reasonably specify, to obtain possession
of all or any portion or portions of the Mortgaged Property to which Agent shall
at the time be entitled hereunder, subject to the rights of Tenants
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and the other parties to any Operating Agreements. If the Borrower shall fail
for any reason to execute and deliver such instrument or document after such
request by Agent, Agent, to the fullest extent permitted by law, may (a) obtain
a judgment conferring on Agent the right to immediate possession and requiring
the Borrower to execute and deliver such instruments and documents to Agent,
which entry of judgment the Borrower, to the extent it may lawfully do so,
hereby specifically consents and (b) pursue any portion of the Mortgaged
Property wherever it may be found and to the extent lawfully permitted, take
possession of and remove the same, subject to the rights of Tenants and other
parties to the Operating Agreements.
16.3 Management. Upon every taking of possession pursuant to this Section
16, Agent may (but shall have no obligation to), from time to time, at the
expense of the Borrower and such expenses to constitute additional indebtedness
secured by the Mortgaged Property, make all such expenditures for maintenance,
insurance, repairs, replacements, alterations, additions and improvements to and
of the Premises, as it may deem proper. In such case, Agent, to the fullest
extent permitted by law, shall have the right to manage, control, use, operate,
store, lease or otherwise deal with the Mortgaged Property and to carry on the
business and exercise all the rights and powers of the Borrower relating
thereto, as Agent shall deem best, including the right to enter into any and all
such instruments with respect to the management, cleaning, control, use,
operation, storage, leasing of or otherwise dealing with the Mortgaged Property,
or any part thereof, as Agent may determine; and, to the fullest extent
permitted by law, Agent shall be entitled to collect and receive all tolls,
Rents, revenues, issues, income, products and profits of the Mortgaged Property
and every part thereof. Such tolls, Rents, revenues, issues, income, products
and profits may be applied to pay the expenses of the management, control, use,
operation, storage, leasing of or otherwise dealing with the Premises and of
conducting the business thereof, and of all maintenance, repairs, replacements,
alterations, additions and improvements, and to make all payments which Agent
may be required or may elect to make, if any, for Taxes, Other Charges,
assessments, insurance or other proper charges upon the Mortgaged Property or
any part thereof (including the employment of engineers and accountants to
examine, inspect and make reports), and all other payments which Agent may be
required or authorized to make under any provision of this Mortgage.
ARTICLE XVII
RIGHT OF AGENT TO PERFORM THE BORROWER'S COVENANTS
If the Borrower shall fail to make any payment or perform any act required
to be made or performed hereunder or under any other Loan Document, Agent, upon
notice to the Borrower and upon the expiration of any applicable grace or cure
period, if any (except in cases of emergency that threatens bodily injury or
material damage to property, in which case Agent will allow such notice and
grace or cure period, if any, as is reasonable under the circumstances), but
without waiving or releasing any obligation, Default or Event of Default, may
(but shall be under no obligation to) at any time thereafter make such payment
or perform such act for the account and at the expense of the Borrower, and, to
the extent permitted by applicable law, may enter upon the Premises for such
purpose and take all such action thereon as, in the judgment of Agent, may be
reasonably necessary or appropriate therefor, subject to the rights of Tenants
and other parties under Operating Agreements. All sums so paid by Agent and all
reasonable costs
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and expenses (including all attorneys' fees and expenses) so incurred, together
with interest thereon at the Default Rate from the date of payment by Agent
until paid, shall constitute additional indebtedness secured by this Mortgage
and shall be paid by the Borrower to Agent upon demand therefor.
ARTICLE XVIII
REMEDIES CUMULATIVE
To the extent permitted under applicable law, each right, power and remedy
of Agent provided for in this Mortgage or any other Loan Document now or
hereafter existing at law or in equity or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power
or remedy provided for in this Mortgage or any other Loan Document now or
hereafter existing at law or in equity or by statute (including the Uniform
Commercial Code as enacted in the State where the Mortgaged Property is located)
or otherwise, and the exercise or beginning of the exercise by Agent of any one
or more of the rights, powers or remedies provided for in this Mortgage or any
other Loan Document or now or hereafter existing at law or in equity or by
statute or otherwise shall not preclude the simultaneous or later exercise by
Agent, to the extent permitted by law, of any or all of such other rights,
powers or remedies.
ARTICLE XIX
ALTERATIONS AND WASTE; PLANS
19.1 Alteration and Waste. Except as may be permitted by the Credit
Agreement, no Improvements will be materially altered or demolished or removed
in whole or in part by the Borrower. The Borrower will not commit any material
waste on any portion of the Mortgaged Property or make any alteration to, or
change in the use of, the Mortgaged Property that will materially diminish the
utility thereof, except as may be permitted under the Credit Agreement, or
materially increase any ordinary fire or other hazard insurance relating to the
operation thereof (but in no event shall any such alteration or change be
contrary to the terms of any insurance policy required to be kept pursuant to
Article IV). The Borrower will maintain and operate the Improvements and
Personal Property in good repair, working order and condition, reasonable wear
and tear excepted.
19.2 Plans and Specifications. To the extent the same exist on the date
hereof or are obtained in connection with future permitted alterations, the
Borrower shall maintain a complete set of final plans, specifications,
blueprints and drawings for the Mortgaged Property either at the Mortgaged
Property or in a particular office at the headquarters of the Borrower to which
Agent shall have access upon reasonable advance notice and at reasonable times.
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ARTICLE XX
GOVERNING LAW
20.1 Governing Law. THIS MORTGAGE WAS NEGOTIATED IN THE STATE OF NEW YORK,
THE LOAN WAS MADE BY AGENT AND ACCEPTED BY THE BORROWER IN THE STATE OF NEW
YORK, AND THE PROCEEDS OF THE NOTES DELIVERED PURSUANT HERETO WERE DISBURSED
FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL
RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY,
AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS MORTGAGE AND
THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS
OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAWS) AND ANY
APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST EXTENT PERMITTED
BY LAW, THE BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO
ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS MORTGAGE AND THE
NOTES, AND THIS MORTGAGE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW.
20.2 Agent for Service of Process. ANY LEGAL SUIT, ACTION OR PROCEEDING
AGAINST AGENT OR THE BORROWER ARISING OUT OF OR RELATING TO THIS MORTGAGE MAY AT
AGENT'S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX
XXXX, XXXXXX XX XXX XXXX, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND THE BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR
HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. THE BORROWER
DOES HEREBY DESIGNATE AND APPOINT:
Corporation Service Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF
ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING
IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO THE BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE
DEEMED IN
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EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON THE BORROWER IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. THE BORROWER (I) SHALL GIVE
PROMPT NOTICE TO AGENT OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER,
(II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED
AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE
SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III)
SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO
HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A
SUCCESSOR.
ARTICLE XXI
NO WAIVER
No failure by Agent to insist upon the strict performance of any term
hereof or to exercise any right, power or remedy consequent upon a breach
thereof shall constitute a waiver of any such term or of any such breach. No
waiver of any breach shall affect or alter this Mortgage, which shall continue
in full force and effect, or shall affect or alter the rights of Agent with
respect to any other then-existing or subsequent breach. Neither the Borrower
nor any other Person now or hereafter obligated to pay all or any part of the
sums now of hereafter secured by this Mortgage shall be relieved of such
obligation by reason of the failure of Agent to comply with any request of the
Borrower, or of any other Person so obligated, to take action to foreclose on
this Mortgage or otherwise to enforce any provisions of this Mortgage or the
Notes or by reason of the release, regardless of consideration, of all or any
part of the security held for the Debt secured by this Mortgage, or by reason of
any agreement or stipulation between any subsequent owner of the Mortgaged
Property and Agent extending the time of payment or modifying the terms of this
Mortgage or the Notes, without first having obtained the consent of the Borrower
or such other Persons; and in the latter event the Borrower and all such other
Persons shall continue to be liable to make payments according to the terms of
any such extension or modification agreement, unless expressly released and
discharged in writing by Agent.
ARTICLE XXII
SUCCESSORS AND ASSIGNS
All of the grants, covenants, terms, provisions and conditions herein shall
run with the Premises and the Improvements and shall apply to, bind and invest
to, the benefit of the permitted successors and assigns of the Borrower and the
successor and assigns of Agent.
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ARTICLE XXIII
ADDITIONAL SECURITY
Without notice to or consent of the Borrower and without impairment of the
Lien and rights created by this Mortgage, Agent may accept (but the Borrower
shall not be obligated to furnish unless otherwise required under the Loan
Documents) from the Borrower or from any other Person, additional security for
the Notes.
ARTICLE XXIV
RELEASE
The provisions of Section 12.27 of the Credit Agreement shall apply with
respect to the discharge and satisfaction of this Mortgage.
ARTICLE XXV
SECURITY AGREEMENT, ETC.
25.1 Grant of Security. This Mortgage is a security agreement within the
meaning of the Uniform Commercial Code of the state where the Premises is
located with respect to all personal property now or hereafter located at the
Premises and owned by the Borrower as to which the creation and perfection of a
security interest are subject to such Uniform Commercial Code (the "Personal
Property"), and is also a mortgage as to those portions of the Mortgaged
Property that are classified as real property. The Borrower hereby grants to
Agent a security interest in and to the Personal Property to secure the payment
of the Notes. Any completely executed counterpart of this instrument may be
filed as a mortgage on real property or fixtures, as a security agreement or
financing statement on personal property or as both. The address of the
Borrower, as a debtor, and the address of Agent, as secured party, are shown in
Article XXXII.
25.2 Financing Statements. The Borrower shall cause all financing and
continuation statements and other instruments with respect to the Personal
Property at all times to be kept recorded, filed or registered in such manner
and in such places as may be required by law fully to evidence, perfect and
secure the interests of Agent in the Personal Property, and shall pay all filing
fees in connection therewith. The Borrower hereby appoints Agent as its
attorney-in-fact to perform the obligations of the Borrower under this Section,
at the expense of the Borrower, in the event the Borrower fails to do so within
ten (10) days after notice at any time prior to the occurrence and during the
continuance of an Event of Default.
25.3 Multiple Remedies. If an Event of Default shall have occurred and be
continuing, Agent shall have the option of proceeding, to the extent permitted
under applicable law, as to both real and personal property in accordance with
its rights and remedies in respect of the real property as an alternative to
proceeding in accordance with the provisions of the
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Uniform Commercial Code; and Agent may exercise any and all of the other rights
of a secured party under such Uniform Commercial Code.
25.4 Waiver of Rights. To the extent permitted under applicable law, the
Borrower waives all rights of redemption after foreclosure and all other rights
and remedies of a debtor thereunder and all formalities prescribed by law
relative to the sale or disposition of the Personal Property after the
occurrence and during the continuance of an Event of Default hereunder and all
other rights and remedies of the Borrower with respect thereto. In exercising
its right to take possession of the Personal Property upon the occurrence and
during the continuance of an Event of Default hereunder, Agent, personally or by
its agents or attorneys, and subject to the rights of any Tenant or other party
to an Operating Agreement, may, to the extent permitted by law, enter upon any
part of the Premises without being guilty of trespass or any wrongdoing, and
without liability for damages thereby occasioned, except damages arising from
Agent's gross negligence or willful misconduct. To the extent any notice of sale
or other disposition of the Personal Property is required and cannot be waived,
in the event Agent elects to proceed with respect to the Personal Property
separately from the real property, Agent shall give at least ten (10) Business
Days' notice of the sale of the Personal Property, which shall for all purposes
be deemed to be commercially reasonable. All recitals in any instrument of
assignment or any other instrument executed by Agent incident to any sale,
transfer, assignment, lease or other disposition or utilization of the Personal
Property or any part thereof after the occurrence and continuation of an Event
of Default shall be full proof of the matter stated therein and no other proof
shall be required to establish full legal propriety of the sale or other action
taken by Agent or of any fact or condition incident thereto, all of which shall
be deemed conclusively to have been performed or to have occurred.
25.5 Expenses of Disposition of Personal Property. The Borrower shall
reimburse Agent, within ten (10) days after demand, for all reasonable expenses
of retaking, holding, preparing for sale, lease or other use or disposition,
selling, leasing or otherwise using or disposing of the Personal Property that
are incurred by Agent in connection with its exercise of available remedies
under this Article XXV, including all reasonable attorneys' fees and expenses,
and all such expenses shall be added to the Borrower's obligations to Agent and
shall be secured hereby.
25.6 Suretyship Waivers. Borrower hereby waives and agrees not to assert or
take advantage of any defense based upon:
(a) promptness, diligence, presentment, demand for payment, protest,
notice of discharge, notice of acceptance of this Mortgage and any other
notice with respect to this Mortgage or any of the Secured Obligations;
(b) any requirement that Agent (i) protect, secure, perfect or insure
any security interest or Lien or any property subject thereto, (ii)
xxxxxxxx any assets in favor of the other Borrowers or in payment of any or
all of the Secured Obligations, or (iii) exhaust any right or take any
action against or exhaust any recourse against the other Borrowers or any
other Person or any collateral held by Agent at any time, or pursue any
remedy in its power, before being entitled to payment or performance by the
Borrower
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hereunder of the Secured Obligations or before proceeding against such the
Borrower hereunder;
(c) any defense arising by reason of any claim or defense based upon
an election of remedies by Agent (including, without limitation, an
election to nonjudicially foreclose on any real or personal property
collateral) which in any manner impairs, reduces, releases or otherwise
adversely affects the Borrower's subrogation, reimbursement or contribution
rights or other rights to proceed against any other Borrower or any other
Person or any collateral;
(d) the benefit of any statute of limitations affecting the liability
of the Borrower or any other Person or the enforcement hereof;
(e) (i) the incapacity, lack of authority or disability of the
Borrower or any other Person, (ii) the revocation or repudiation of this
Mortgage by the Borrower or any other Person (other than Agent), (iii) the
failure of Agent to file or enforce a claim against the estate (either in
administration, bankruptcy or any other proceeding) of the Borrower or any
other Person, (iv) the lack of validity or unenforceability in whole or in
part hereof or any other instrument, document or agreement referred to
therein or herein, (v) Agent's election, in any proceeding instituted under
the Bankruptcy Code, of the application of Section 111(b)(2) of the
Bankruptcy Code, or (vi) any defense based upon any borrowing or any grant
of a security interest under Section 364 of the Bankruptcy Code;
(f) any statute or rule of law which provides that the obligation of a
surety must be neither larger in amount nor in any other respect more
burdensome than that of a principal;
(g) any taking, modification or release of any collateral or
guarantees for any Secured Obligation, or any failure to perfect any
security interest in, or the taking of or failure to take any other action
with respect to any collateral securing payment of the Secured Obligations;
or
(h) an offset by the Borrower against any obligation now or hereafter
owed to the Borrower by any other Borrower or any other Person;
it being the intention hereof that the Borrower shall remain liable for the
Secured Obligations as primary obligor until the full and timely payment and
performance of the Secured Obligations notwithstanding any act, omission or
thing which might otherwise operate as a legal or equitable discharge of a joint
and several obligor.
ARTICLE XXVI
FINANCING STATEMENT
This Mortgage shall be deemed to be and may be enforced from time to time
as a mortgage, chattel mortgage, assignment, contract, security agreement,
financing statement, or
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Lien on machinery or other Equipment situated on the Premises, and from time to
time as any one or more thereof, and shall constitute a "fixture filing" for the
purposes of Article 9 of the Uniform Commercial Code as enacted in the State
where the Premises is located.
ARTICLE XXVII
EXPENSES OF AGENT
27.1 Expenses of Defending the Mortgage. If any action, suit or other
proceeding affecting the Mortgaged Property or any part thereof shall be
commenced in which action, suit or proceeding Agent is made a party or
participates or in which the right to use any portion of the Mortgaged Property
or any part thereof is threatened, or in which it becomes necessary in the
reasonable judgment of Agent to defend or uphold the interest of Agent under
this Mortgage (including any action, suit or proceeding to establish or uphold
the compliance of the Improvements with any Legal Requirement), then all
out-of-pocket amounts reasonably paid or incurred by Agent for the expense of
any such action, suit or other proceeding or to protect its rights therein
(whether or not Agent is made or becomes a party thereto) or otherwise to
enforce or defend the rights and Lien created by this Mortgage (including all
reasonable attorneys' fees and expenses), shall be paid by the Borrower, upon
demand and, if not paid within ten (10) days of the giving of such demand, shall
bear interest at the Default Rate from the date of the payment thereof, and any
such amount and the interest thereon shall be a Lien on the Mortgaged Property,
prior to any right, or right to, interest in, or claim upon the Mortgaged
Property attaching or accruing subsequent to or otherwise subordinate to the
Lien of this Mortgage, and the same shall be deemed to be indebtedness secured
hereby.
27.2 Expenses of Collection. In the event this Mortgage or the Notes are
placed in the hands of counsel for collection of any amount payable hereunder or
thereunder or for the enforcement of any of the provisions hereof or thereof and
if an Event of Default shall have occurred and shall then be continuing, the
Borrower agrees to pay all reasonable costs associated therewith incurred by
Agent, either with or without the institution of an action, suit or other
proceeding, in addition to all reasonable costs, disbursements and allowances
provided by law, all such costs to be paid upon demand, together with interest
thereon at the Default Rate from the date of notice or incurring thereof, and
the same shall be deemed to be part of the indebtedness secured hereby.
ARTICLE XXVIII
MISCELLANEOUS
This Mortgage may be discharged or terminated only by an instrument in
writing signed by the party against which enforcement of such discharge or
termination is sought.
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ARTICLE XXIX
NON-MERGER
It is the intention and agreement of the Borrower and Agent there shall be
no merger of this Mortgage and any estate in the Premises, by reason of the fact
that the same Person may own or hold the Premises and/or this Mortgage.
ARTICLE XXX
ASSIGNMENT OF RENTS AND THE BORROWER'S INTEREST IN LEASES
30.1 Assignment of Leases, Operating Agreements and Tenant Guaranties.
During the term hereof, the Borrower hereby pledges, grants, sells, assigns,
conveys, delivers, transfers, hypothecates and sets over to Agent, to the extent
permitted by applicable Legal Requirements or the terms hereof and subject to
the terms and conditions hereof, all of the Borrower's right, title and
interest, now or hereafter acquired, in and to any and all existing Leases and
Operating Agreements and any Leases and Operating Agreements that may hereafter
be entered into by the Borrower or any Property Manager (acting on behalf of the
Borrowers) with respect to the Mortgaged Property, and any modifications,
renewals, extensions or replacements thereof, and any guaranties of the Tenant's
obligations under any Lease (each such guaranty, a "Tenant Guaranty" and,
collectively, the "Tenant Guaranties") and all right, title and interest of the
Borrower thereunder, including all claim, right and demand to receive, collect
and retain all Rents and all other amounts due thereunder and under any
modifications, renewals or extensions thereof, including:
(a) the immediate and continuing right to receive and collect all
amounts payable by all Tenants, subtenants or other parties pursuant to the
Leases and Operating Agreements, including:
(i) all Rents (including all amounts payable to the Borrower on
account of maintenance, repairs, taxes, insurance and common area
charges or similar charges), income, revenues, issues, profits,
insurance proceeds, condemnation awards and other payments, tenders
and security payable to or receivable by the Borrower under the Leases
or the Operating Agreements;
(ii) all damages or other amounts payable in the event of any
disposition, expiration or termination of any Lease, Operating
Agreement or Tenant Guaranty pursuant to the terms thereof, by
operation of law or otherwise;
(iii) any indemnification against, or reimbursement for, sums
paid and costs and expenses incurred by the Borrower under any Lease,
Operating Agreement, Tenant Guaranty or otherwise;
(iv) any award in the event of the bankruptcy of any Tenant or
any other party to any Operating Agreement or Tenant Guaranty; and
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(v) any security deposits, other security instruments, other
deposits or prepayments with respect to any such Lease, Operating
Agreement or Tenant Guaranty;
(b) after an Event of Default shall have occurred and be continuing,
all claims, rights, powers, privileges and remedies of Mortgagor, whether
provided for in any Lease, Operating Agreement or Tenant Guaranty or
arising by statute or at law or in equity or otherwise, consequent to any
failure on the part of any Tenant to perform or comply with any term of any
Lease or any other party to comply with any Operating Agreement or Tenant
Guaranty;
(c) after an Event of Default shall have occurred and be continuing,
all right to take all action upon the occurrence of a default under any
Lease, Operating Agreement or Tenant Guaranty as shall be permitted by any
such Lease, Operating Agreement or Tenant Guaranty, or by law, including
the commencement, conduct and consummation of proceedings at law or in
equity;
(d) after an Event of Default shall have occurred and be continuing,
the full power and authority, in the name of Mortgagor or otherwise, to
enforce, collect, receive and make receipt for any and all of the foregoing
and to do any and all other acts and things whatsoever that Mortgagor is or
may be entitled to do under any Lease, Operating Agreement or Tenant
Guaranty;
(e) all claims, rights, powers, privileges and remedies of the
applicable Borrower, whether provided for in any Lease or Operating
Agreement or arising by statute or at law or in equity or otherwise,
consequent to any failure on the part of any Tenant to perform or comply
with any term of any Lease or any other party to comply with any Operating
Agreement;
(f) all right to take all action upon the happening of a default under
any Lease, Operating Agreement as shall be permitted by any such Lease or
Operating Agreement or by law, including the commencement, conduct and
consummation of proceedings at law or in equity or otherwise; and
(g) the full power and authority, in the name of the applicable
Borrower or otherwise, to enforce, collect, receive and make receipt for
any and all of the foregoing and to do any and all other acts and things
whatsoever that the Borrower is or may be entitled to do under any Lease or
Operating Agreement.
30.2 Application of Proceeds. Except as otherwise required by applicable
Legal Requirements or as provided for in the Loan Documents, any funds received
by Agent under this Article subsequent to the occurrence and during the
continuance of an Event of Default may be applied by Agent to the Debt in such
order as Agent may in its sole discretion determine to be appropriate, including
the payment of reasonable costs and expenses in connection with the maintenance,
operation, improvement, insurance, taxes and upkeep of the Mortgaged Property
and payment of amounts then due and payable under the Credit Agreement or the
other Loan Documents. Agent shall be accountable to the Borrower only for monies
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actually received by Agent or its agents pursuant hereto. Neither the collection
of said funds and the application thereof as aforesaid nor any act done or
omitted pursuant to the power and rights granted to Agent hereunder, shall cure
or waive any Default or Event of Default or waive, modify or affect any notice
of Default or Event of Default or invalidate any act done pursuant to such
notice, nor shall the same be a waiver of any of Agent's rights and remedies
under the Note, this Mortgage, the Credit Agreement or the other Loan Documents.
30.3 Present Assignment; License of the Borrower.
(a) This Article constitutes a present, absolute, effective,
irrevocable and completed assignment by the Borrower to Agent of the Leases
and the right, subject to applicable law, to collect all sums payable to
the Borrower thereunder and apply the same in accordance with Section 30.2,
which is not conditioned upon Agent being in possession of the Premises.
However, so long as no Event of Default shall have occurred and be
continuing, the applicable Borrower shall have a license to enforce the
obligations of Tenants under the Leases and of parties under the Operating
Agreements, and to exercise all the rights and remedies of the landlord
under the Leases and the Operating Agreements (including, without
limitation, the right to receive all Rents and other amounts described
above), subject, however, to compliance with the provisions of this
Mortgage and the other Loan Documents.
(b) If any Event of Default shall have occurred and be continuing, the
license granted in Section 30.3(a) above shall, to the extent permitted by
law, immediately cease and terminate, without waiver of such Event of
Default, with or without notice, and without any action or proceeding or
the intervention of a receiver appointed by a court, and Agent or an agent
or receiver appointed by Agent may, to the extent permitted by law, without
regard for the adequacy of the security for the Secured Obligations, the
commission of waste or the solvency of the Borrower, without limiting any
of Agent's rights and remedies under any of the Loan Documents or otherwise
available at law or in equity or otherwise and subject to applicable
statutory requirements, if any, do any or all of the following (but is
under no obligation to do any of the following):
(i) exercise any of the Borrower's rights under the Leases and
Operating Agreements;
(ii) enforce the terms, conditions and obligations of the Leases
and Operating Agreements;
(iii) demand, collect, xxx for, attach, levy, recover, receive,
compromise and adjust, and make, execute and deliver receipts and
releases for all Rents or other payments that may then be or may
thereafter become due, owing or payable with respect to the Leases and
Operating Agreements;
(iv) demand that any sums held by the Borrower with respect to
any Lease and Operating Agreement (including any security deposits,
other deposits or prepayments) be immediately remitted to Agent;
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(v) generally do, execute and perform any other act, deed, matter
or thing whatsoever that ought to be done, executed and performed in
and about or with respect to the Leases and Operating Agreements; and
(vi) enter into possession of any portion of the Mortgaged
Property in accordance with the terms of the Mortgage and the other
Loan Documents for the purposes of exercising its rights under
subsections (i) through (v) above.
30.4 Payment by Tenants.
(a) If an Event of Default shall have occurred and be continuing,
then:
(i) the Borrower hereby irrevocably authorizes Agent to notify
each Tenant under a Lease, to the extent permitted by applicable Legal
Requirements, and each other party under an Operating Agreement to pay
by direct deposit to the Deposit Account (as such term is defined in
the Cash Management Agreement), or to such other account as Agent may
from time to time designate, all Rents, issues and profits accruing or
due under such Tenant's Lease or such other party's Operating
Agreement or Tenant Guaranty;
(ii) the Borrower hereby irrevocably authorizes and directs each
Tenant under a Lease, to the extent permitted by applicable Legal
Requirements, and each other party under an Operating Agreement or
Tenant Guaranty, at the request of Agent, to pay by direct deposit to
the Deposit Account (as Agent may from time to time designate) all
Rents, issues and profits accruing or due under such Tenant's Lease or
such other party's Operating Agreement or Tenant Guaranty (and each
Tenant is an intended third-party beneficiary to this clause (ii));
and
(iii) the applicable Borrower shall provide any confirming or
separate notice to each such Tenant and other party as Agent may
request for the same purposes.
(b) Prior to receiving any notice of Agent's exercise of its rights
under clause (a)(i) above, the Borrower shall have the right to receive, or
have Property Manager receive, payments from Tenants and any other party to
any Operating Agreement or Tenant Guaranty.
30.5 No Release. The Borrower, at its sole cost and expense, will prudently
enforce in all material respects each of the Leases and Operating Agreements in
accordance with their terms. Neither the execution and delivery of this Mortgage
or any other Loan Document nor any action or inaction on the part of Agent shall
release (a) any Tenant from its Lease, (b) any party from its Operating
Agreement, (c) any guarantor from any Tenant Guaranty or (d) the Borrower from
any of their respective obligations under the Leases or the Operating
Agreements, or constitute an assumption of any such obligation on the part of
Agent. No action or failure to act on the part of the Borrower shall adversely
affect or limit the rights of Agent under this
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Mortgage or the Assignment of Leases or, through this Mortgage or the Assignment
of Leases, under the Leases, the Operating Agreements or the Tenant Guaranties.
30.6 Rights, Powers and Privileges of Agent Irrevocable. During the term
hereof, all rights, powers and privileges of Agent herein set forth are coupled
with an interest and are irrevocable, subject to the terms and conditions
hereof, and the Borrower will not take any action under the Leases, the
Operating Agreements, the Tenant Guaranties or otherwise that is inconsistent
with the terms hereof or of any Assignment of Leases or of any other Loan
Document, and any such action inconsistent herewith or therewith, as well as any
further assignment of any Rents, issue or profits from the Premises, shall be
void. To the extent permitted by law, the Borrower hereby waive any requirement
that Agent commence any foreclosure proceeding with respect to any or all of the
Mortgaged Property or to any or all of the other properties and collateral
securing payment of the Secured Obligations prior to enforcement of any remedies
pursuant to this Article XXX, including the right to commence and prosecute an
action to appoint a receiver for Rents and all other amounts due under any
Leases and Operating Agreements. The Borrower will, from time to time, upon
request of Agent, at the Borrower's sole cost and expense, execute all
instruments and further assurances and all supplemental instruments and take all
such action as Agent from time to time may reasonably request in order to
perfect, preserve and protect the interests intended to be assigned to Agent
hereby or to enable Agent to exercise or enforce its rights hereunder.
30.7 No Subordination or Amendment. The Borrower hereby agrees that, except
as permitted in the Credit Agreement, it will not, unilaterally or by agreement,
subordinate, amend, modify, extend, discharge, terminate, surrender, waive or
otherwise change any term of any of the Leases, Operating Agreements or Tenant
Guaranties in any manner that would violate this Mortgage or any other Loan
Document. If any of the Leases, Operating Agreements or Tenant Guaranties shall
be amended as permitted hereby or thereby, they shall continue to be subject to
the provisions hereof without the necessity of any further act by any of the
parties hereto.
30.8 Agent Not Obligated Under Lease, Operating Agreement or Tenant
Guaranty. This Article XXX shall not be construed to bind Agent to the
performance of any of the covenants, conditions or provisions contained in any
Lease, Operating Agreement or Tenant Guaranty or otherwise impose any obligation
upon Agent. Agent shall not be liable for any loss sustained by the Borrower
resulting from Agent's failure to let the Premises or from any other act or
omission of Agent in managing the Premises after an Event of Default, unless
such loss is caused by the negligence, willful misconduct or bad faith of Agent.
This Article XXX shall neither operate to place any obligation or liability for
the control, care, management or repair of the Premises upon Agent nor for the
carrying out of any of the terms and conditions of the Leases or any Tenant
Guaranty; nor shall it operate to make Agent responsible or liable for any waste
committed on the Premises, including the presence of any Hazardous Substances,
except as otherwise set forth in the Environmental Indemnity or in any other
Loan Document, or for any negligence by any Person other than Agent in the
management, upkeep, repair or control of the Premises resulting in loss or
injury or death to any tenant, licensee, employee or stranger. Nothing in this
Article XXX shall be construed as constituting Agent a "mortgagee in possession"
in the absence of the taking of actual possession of the Premises by Agent.
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30.9 Subrogation. If an Event of Default shall have occurred and be
continuing, Agent shall, to the extent permitted by law, have the right to
proceed in its own name or in the name of the Borrower in respect of any claim,
suit, action or proceeding relating to the rejection of any Lease, Operating
Agreement or Tenant Guaranty by or on behalf of any Tenant or other party
thereunder, including the right to file and prosecute, to the exclusion of the
Borrower, any proofs of claim, complaints, motions, applications, notices and
other documents, in any case in respect of the Tenant under such Lease or any
other party under any Operating Agreement or Tenant Guaranty under the
Bankruptcy Code.
30.10 Bankruptcy. If there shall be filed by or against the Borrower a
petition under the Bankruptcy Code, and the Borrower, as lessor under any Lease
or Operating Agreement, shall determine to reject such Lease or Operating
Agreement pursuant to Section 365(a) of the Bankruptcy Code, then the Borrower
shall give Agent not less than ten (10) days' prior notice of the date on which
the Borrower shall apply to the bankruptcy court for authority to reject such
Lease or Operating Agreement. Agent shall have the right, but not the
obligation, to serve upon the Borrower, within such ten-day period, a notice
stating that
(a) Agent demands that the Borrower assume and assign such Lease or
Operating Agreement to Agent pursuant to Section 365 of the Bankruptcy
Code, and
(b) Agent covenants to cure or provide adequate assurance of future
performance under such Lease or Operating Agreement.
If Agent serves upon the Borrower the notice described in the preceding
sentence, such Borrower shall not seek to reject such Lease or Operating
Agreement and shall comply with the demand provided for in clause (a) of the
preceding sentence within thirty (30) days after the notice shall have been
given, subject to the performance by Agent of the covenant provided for in
clause (b) of the preceding sentence.
ARTICLE XXXI
STATE SPECIFIC PROVISIONS
31.1 Future Advances. In addition to all the obligations secured by the
lien of this Mortgage, this Mortgage shall also secure, and constitute a lien
upon the Mortgaged Property for, all future advances or additional sums advanced
by the then holder of the Notes to or for the benefit of Borrower, whether such
advances are obligatory or are made at the option of Agent or otherwise, at any
time within twenty (20) years from the date of this Mortgage, with interest
thereon at the rate agreed upon at the time of each additional loan or advance.
Such sums, if any, shall be equally secured with and, pursuant to Section 697.04
of the Florida Statutes, shall have the same priority as the original
obligations secured hereby, and shall be subject to all of the terms and
provisions of this Mortgage, whether or not such additional loan or advance is
evidenced by a promissory Note, and whether or not identified by a recital that
it is secured by this Mortgage. The total amount of the obligations that may be
secured by this Mortgage may increase or decrease from time to time, but the
total unpaid balance of such indebtedness secured at any one time by this
Mortgage shall not exceed two hundred percent (200%) of the original principal
amount of the Notes, plus interest thereon, and any
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disbursements made for the payment of taxes, levies or insurance on the
Mortgaged Property, with interest on such disbursements, and provided further
that it is understood and agreed that this future advance provision shall not be
construed to obligate Agent to make any additional loans or advances. Any such
additional Note or Notes executed and delivered pursuant to this future advance
provision shall be included in the term "Notes" wherever it appears in this
Mortgage. As used in this Section "Borrower" shall mean the record owner of the
Mortgaged Property at the time of the future advance.
31.2 Maximum Interest Rate Calculation. In connection with all calculations
to determine the maximum interest rate, the parties hereto intend: First that
all charges be excluded to the extent that they are properly excludable under
the usury laws of the State of Florida or the United States of America, as they
from time to time are determined to apply to this obligation; and second, that
all charges that may be "spread" in the manner provided by Section 687.03(3),
Florida Statutes, or any similar successive law, be spread in the manner
provided by such statute."
31.3 Assignment of Leases and Rents. The Assignment of Leases and Rents
contained herein is also intended to and does constitute an assignment of rents
as contemplated in Florida Statutes Section 697.07. Upon the occurrence of an
Event of Default, Agent shall be entitled to the remedies provided in said
Section 697.07, and any other applicable statutes, whether procedural or
substantive, in effect at the time of execution or enforcement of this Mortgage.
31.4 Power of Agent. Every instrument relating to this Mortgage, including
but not limited to amendments, satisfactions, discharges, partial releases,
modifications or waivers executed by Agent (or any successor in interest
according to the records in the Public Records of Broward County, Florida) or
any acts related to the enforcement of this Mortgage (including commencement of
foreclosure proceedings) taken by Agent (or any successor interest) shall be
conclusive evidence in favor of any person relying on such instrument or
claiming thereunder that at the time of the execution and delivery of such
instrument the Credit Agreement was in full force and effect and that Agent was
duly authorized and empowered to execute, acknowledge and deliver such
instrument. Any person dealing with the Agent or any such successor in interest
may always rely upon such instrument, as if same had been duly executed by the
Agent referred to in the Credit Agreement.
31.5 Limitation on Recovery. Notwithstanding anything to the contrary
contained herein, recovery under this Mortgage is limited in all cases to the
Secured Amount.
ARTICLE XXXII
NOTICES
All notices and other written communications hereunder shall be delivered
in accordance with Section 12.5 of the Credit Agreement. Any notice or other
communications to the Borrower or Agent shall be addressed as follows (or to
such other address and person as shall be designated by the Borrower or Agent
from time to time in accordance herewith):
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If to Agent:
Bayerische Hypo- Und Vereinsbank AG
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Bayerische Hypo- Und Vereinsbank AG
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
Facsimile No.: (000) 000-0000
and to:
Cadwalader, Xxxxxxxxxx & Xxxx
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to the Borrower:
Shelbourne Properties I L.P.
c/o First Winthrop
0 Xxxxxxxx Xxxxx
Xxxxx 000
P.O. Box 9507
Xxxxxx, XX 00000
Attention:
Facsimile No.:
with a copy to:
Xxxxxxxx Xxxxxxxxx Xxxxxx
Aronsohn & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
and to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
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Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
ARTICLE XXXIII
WAIVER OF TRIAL BY JURY; WAIVER OF CLAIMS
33.1 Trial by Jury. EACH OF BORROWER AND AGENT HEREBY AGREE NOT TO ELECT A
TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS MORTGAGE, 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 THE BORROWER AND AGENT, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. THE BORROWER AND AGENT ARE HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER.
33.2 Claims. The Borrower hereby waives any and all right to assert any
setoff or counterclaim of any nature whatsoever with respect to the Secured
Obligations in any action or proceeding by Agent to collect the same, or any
portion thereof, or to enforce and realize upon the Lien and security interest
created by this Mortgage or any other Loan Documents, provided, however, that
the Borrower expressly reserves the right to assert any such claim in a separate
proceeding; and provided further that the Borrower expressly reserves the right
to assert any claim in the same action commenced by Agent if such claim is of a
mandatory or compulsory nature or would be barred or materially impaired if not
asserted in the action commenced by Agent.
ARTICLE XXXIV
SEVERABILITY
Wherever possible, each provision of this Mortgage shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Mortgage shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Mortgage.
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ARTICLE XXXV
EXCULPATION
The provisions of Section 11.1 of the Credit Agreement are incorporated
herein by reference.
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ARTICLE XXXVI
VARIABLE RATE MORTGAGE
This Mortgage is a variable rate mortgage, with changes in the rate of
interest, said changes calculated pursuant to the formula in the Credit
Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Mortgage to be duly
executed and delivered as of the date first above written.
SHELBOURNE PROPERTIES I L.P.
By: Shelbourne Properties I GP, LLC, its
General Partner
By: Shelbourne Properties I, Inc., its Sole Member
By: /s/ Xxxxxx Xxxxx
---------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
Witness: /s/
---------------------
Print Name:
Witness: /s/
---------------------
Print Name:
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XXXXX XX XXX XXXX )
) ss.
COUNTY OF NEW YORK )
On the 30th day of April, in the year 2002 before me, the undersigned,
personally appeared _____________________ personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and he acknowledged to me that he executed
the same in his capacity, and that by his signature on the instrument, the
individual or the person upon behalf of which the individual acted, executed the
instrument.
--------------------------------------
Notary Public
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EXHIBIT A
[Description of the Property]
A-1
