EXHIBIT 10.12
This instrument is intended
to be recorded in Philadelphia
County, Pennsylvania
RETURN TO:
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
OPEN-END LEASEHOLD MORTGAGE,
ASSIGNMENT OF LEASES
AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
THIS OPEN-END LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING (as the same may be amended, restated,
extended, supplemented or otherwise modified from time to time, this
"Mortgage"), is made as of the 15th day of December, 2000, by FRANKLIN PLAZA
PROPERTY TRUST, a Maryland real estate investment trust, having its principal
place of business c/o HRPT Properties Trust, 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000 ("Mortgagor"), to and for the benefit of XXXXXXX XXXXX
MORTGAGE LENDING, INC., a Delaware corporation, having its place of business at
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its
successors and assigns, the "Mortgagee"). Capitalized terms used herein but not
otherwise defined shall have the respective meanings assigned to such terms in
the Loan Agreement (hereinafter defined).
This Mortgage is an open-end mortgage as set forth in 42 Pa.
C.S.A.ss.8143 and secures future advances.
W I T N E S S E T H:
To secure the payment of a loan (the "Loan") in the original principal
sum of FORTY-FOUR MILLION AND NO/100 DOLLARS ($44,000,000), lawful money of the
United States of America, being made from Mortgagee to Mortgagor on the date
hereof pursuant to the terms and conditions of a certain Loan and Security
Agreement, dated as of the date hereof (as amended or modified, the "Loan
Agreement"), between Mortgagor and Mortgagee, which Loan is evidenced by and is
to be paid with interest according to a certain Promissory Note, dated as of the
date hereof (as amended, modified, renewed or restated and together with any
substitutes or replacements therefor, the "Note"), made by Mortgagor to
Mortgagee and all other sums due hereunder, or otherwise due under the Loan
Documents (as defined in the Loan Agreement) (the principal amount of the Loan,
together with interest thereon and all sums due hereunder and
under the Loan Agreement, the Note and the other Loan Documents being
collectively called the "Debt"), and all of the agreements, covenants,
conditions, warranties, representations and other obligations (other than to
repay the Debt) made or undertaken by Mortgagor or any other person or entity to
Mortgagee or others as set forth in the Loan Documents (collectively, the
"Obligations"), Mortgagor has mortgaged, given, granted, bargained, sold,
alienated, enfeoffed, conveyed, confirmed, pledged, assigned, and hypothecated
and by these presents does hereby mortgage, give, grant, bargain, sell, alien,
enfeoff, convey, confirm, pledge, assign and hypothecate unto Mortgagee all of
Mortgagor's leasehold interest in, to and under the Ground Lease (as hereinafter
defined) covering the real property described on Exhibit A attached hereto (the
"Premises") and the buildings, structures, fixtures, additions, enlargements,
extensions, modifications, repairs, replacements and improvements now or
hereafter located thereon (the "Improvements");
TOGETHER WITH: all right, title, interest and estate of Mortgagor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Ground Lease, the Premises, the Improvements together
with the following property, rights, interests and estates being hereinafter
described are collectively referred to herein as the "Mortgaged Property"):
(a) all easements, rights-of-way, strips and gores of land,
streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, and all estates, rights,
titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the
Premises, to the center line thereof and all the estates, rights, titles,
interests, dower and rights of dower, courtesy and rights of courtesy, property,
possession, claim and demand whatsoever, both at law and in equity, of Mortgagor
of, in and to the Premises and the Improvements and every part and parcel
thereof, with the appurtenances thereto;
(b) all machinery, equipment, fixtures (including, but not
limited to, all heating, air conditioning, plumbing, lighting, communications
and elevator fixtures) and other property of every kind and nature, whether
tangible or intangible, whatsoever owned by Mortgagor, or in which Mortgagor has
or shall have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, and usable in connection with the present
or future operation and occupancy of the Premises and the Improvements and all
building equipment, materials and supplies of any nature whatsoever owned by
Mortgagor, or in which Mortgagor has or shall have an interest, now or hereafter
located upon the Premises and the Improvements, or appurtenant thereto, and
usable in connection with the present or future operation, enjoyment and
occupancy of the Premises and the Improvements (hereinafter collectively called
the "Equipment"), including the proceeds of any sale or transfer of the
foregoing, and the right, title and interest of Mortgagor in and to any of the
Equipment which may be subject to any security interests, as defined in the
Uniform Commercial Code, as adopted and enacted by the state or states where any
of the Mortgaged Property is located (the "Uniform Commercial Code") superior in
lien to the lien of this Mortgage;
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(c) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Mortgaged Property, whether
from the exercise of the right of eminent domain or condemnation (including, but
not limited to, any transfer made in lieu of or in anticipation of the exercise
of said rights), or for a change of grade, or for any other injury to or
decrease in the value of the Mortgaged Property;
(d) all leases, tenancies, licenses, subleases, assignments
and/or other rental or occupancy agreements (including, without limitation, any
and all guarantees of any of the foregoing) heretofore or hereafter entered into
affecting the use, enjoyment or occupancy of the Premises and the Improvements,
including any extensions, renewals, modifications or amendments thereof
(collectively, the "Leases") and all rents, rent equivalents (including room
revenues, if applicable), moneys payable as damages or in lieu of rent or rent
equivalents, royalties (including, without limitation, all oil and gas or other
mineral royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, security, utility and other deposits),
accounts, cash, issues, profits, charges for services rendered, and other
consideration of whatever form or nature received by or paid to or for the
account of or benefit of Mortgagor or its agents or employees from any and all
sources arising from or attributable to the Premises and the Improvements (the
"Rents"), together with all proceeds from the sale or other disposition of the
Leases and the right to receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without limitation, the
right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Mortgaged Property or any
part thereof;
(f) the right, following an Event of Default, in the name and on
behalf of Mortgagor, to appear in and defend any action or proceeding brought
with respect to the Mortgaged Property and to commence any action or proceeding
to protect the interest of the Mortgagee in the Mortgaged Property or any part
thereof;
(g) all accounts, escrows, reserves, documents, instruments,
chattel paper, claims, deposits and general intangibles, as the foregoing terms
are defined in the Uniform Commercial Code, and all books, records, plans,
specifications, designs, drawings, permits, consents, licenses, franchises,
management agreements, contracts, contract rights (including, without
limitation, any contract with any architect or engineer or with any other
provider of goods or services for or in connection with any construction,
repair, or other work upon the Mortgaged Property), approvals, actions, refunds
or real estate taxes and assessments (and any other governmental impositions
related to the Mortgaged Property), and causes of action that now or hereafter
relate to, are derived from or are used in connection with the Mortgaged
Property, or the use, operation, management, improvement, alteration, repair,
maintenance, occupancy or enjoyment thereof or the conduct of any business or
activities thereon;
(h) any and all proceeds and products of any of the foregoing and
any and all other security and collateral of any nature whatsoever, now or
hereafter given for the repayment of the Debt and the performance of Mortgagor's
obligations under the Loan Documents,
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including (without limitation) the Impositions and Insurance Reserve, the
Replacement Reserve, the Hazardous Materials Remediation Reserve, the Loss
Proceeds Account, the Central Account and the Sub-Accounts thereof (each as
defined in the Cash Management Agreement, dated as of the date hereof (as
amended or modified the "Cash Management Agreement"), by and between Mortgagor,
Mortgagee, First Union National Bank, and REIT Management & Research, Inc.
("Manager")), and any other escrows or reserves set forth in the Loan Documents;
(i) all accounts receivable, contract rights, interests, estate
or other claims, both in law and in equity, which Mortgagor now has or may
hereafter acquire in the Mortgaged Property or any part thereof; and
(j) all rights which Mortgagor now has or may hereafter acquire,
to be indemnified and/or held harmless from any liability, loss, damage, cost or
expense (including, without limitation, attorneys' fees and disbursements)
relating to the Mortgaged Property or any part thereof.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the use and benefit of Mortgagee, and the successors and assigns of
Mortgagee, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Mortgagor shall well and truly pay to Mortgagee the Debt at the time and in
the manner provided in the Note and this Mortgage and shall well and truly abide
by and comply with each and every covenant and condition set forth herein and in
the Note in a timely manner, these presents and the estate hereby granted shall
cease, terminate and be void;
AND Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Mortgagor shall pay the Debt at the time and in the manner provided
in the Note, the Loan Agreement and in this Mortgage. Mortgagor will duly and
punctually perform all of the covenants, conditions and agreements contained in
the Note, the Loan Agreement, this Mortgage and the other Loan Documents all of
which covenants, conditions and agreements are hereby made a part of this
Mortgage to the same extent and with the same force as if fully set forth
herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor has a good,
marketable and insurable leasehold interest in the Mortgaged Property and has
the right to mortgage, give, grant, bargain, sell, alien, enfeoff, convey,
confirm, pledge, assign and hypothecate the same and that Mortgagor possesses a
leasehold estate in the Premises and the Improvements and that it owns the
Mortgaged Property free and clear of all liens, encumbrances and charges
whatsoever except for the Permitted Encumbrances. Mortgagor represents and
warrants that none of the Permitted Encumbrances will materially and adversely
affect (i) Mortgagor's ability to pay in full in a timely manner its
obligations, including, without limitation, the Debt, (ii) the use of the
Mortgaged Property for the use currently being made thereof, (iii) the operation
of the Mortgaged Property, or (iv) the value of the Mortgaged Property.
Mortgagor shall forever warrant, defend
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and preserve such title and the validity and priority of the lien of this
Mortgage and shall forever warrant and defend the same to Mortgagee against the
claims of all persons whomsoever.
3. Insurance. (a) Mortgagor, at its sole cost and expense, shall
maintain or cause to be maintained insurance with respect to the Mortgaged
Property for the mutual benefit of Mortgagor and Mortgagee as required by
Section 5.4 of the Loan Agreement.
(b) If the Mortgaged Property shall be damaged or destroyed, in
whole or in part, by fire or other casualty (an "Insured Casualty"), Mortgagor
shall give immediate notice thereof to Mortgagee and to the insurance carrier.
Subject to the terms of the Loan Agreement, Mortgagor shall promptly repair,
replace or rebuild the Mortgaged Property in accordance with, and all amounts
paid with respect to such Insured Casualty under all insurance policies
maintained by Mortgagor shall be governed by, the terms and conditions of
Section 5.5 of the Loan Agreement. The expenses incurred by Mortgagee in the
adjustment and collection of insurance proceeds shall become part of the Debt
and shall be secured hereby and shall be reimbursed by Mortgagor to Mortgagee
upon demand.
4. Payment of Impositions and Other Charges. Subject to Mortgagor's
right to contest set forth in Section 5.3(B) of the Loan Agreement and the
provisions of Section 5 below, and pursuant to the provisions of the Cash
Management Agreement, Mortgagor shall cause to be paid all Impositions now or
hereafter levied or assessed or imposed against the Mortgaged Property or any
part thereof as the same become due and payable. Mortgagor shall promptly pay
for all utility services provided to the Mortgaged Property. Mortgagor shall
furnish to Mortgagee or its designee receipts for the payment of the Impositions
prior to the date the same shall become delinquent (provided, however, that
Mortgagor shall not be required to furnish such receipts for payment of
Impositions in the event that such Impositions have been paid by Mortgagee
pursuant to Section 5 hereof).
5. Impositions and Insurance Reserve. Mortgagor shall make monthly
deposits into the Impositions and Insurance Reserve of amounts sufficient to pay
Impositions and Insurance Premiums (if and to the extent Insurance Premiums are
required to be escrowed under the Loan Agreement) in accordance with the terms
of Section 6.3 of the Loan Agreement and the Cash Management Agreement.
6. Condemnation. (a) Mortgagor shall promptly give Mortgagee written
notice of the actual or threatened commencement of any condemnation or eminent
domain proceeding affecting the Mortgaged Property or any portion thereof and
shall deliver to Mortgagee copies of any and all papers served in connection
with such proceedings. Subject to the terms of Section 6(b) below, Mortgagee is
hereby irrevocably appointed as Mortgagor's attorney-in-fact, coupled with an
interest, with exclusive power to collect, receive and retain any award or
payment for said condemnation or eminent domain and to make any compromise or
settlement in connection with such proceeding, subject to the provisions of this
Mortgage. Notwithstanding any taking by any public or quasi public authority
through eminent domain or otherwise (including but not limited to any transfer
made in lieu of or in anticipation of the exercise of such taking), Mortgagor
shall continue to pay the Debt at the time and in the manner provided for its
payment
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in the Note, in this Mortgage and the other Loan Documents and the Debt shall
not be reduced until any award or payment therefor shall have been actually
received after expenses of collection and applied by Mortgagee to the discharge
of the Debt in accordance with the terms hereof. In accordance with the terms
hereof, Mortgagor shall cause the award or payment made in any condemnation or
eminent domain proceeding, which is payable to Mortgagor, to be paid directly to
Mortgagee. Mortgagee may apply any such award or payment to the reduction or
discharge of the Debt whether or not then due and payable; such application to
be without any Prepayment Consideration (as defined in the Note), provided that
such payment is made within one hundred twenty (120) days following the date of
receipt of such condemnation award except that if an Event of Default has
occurred and is continuing, then such application shall be subject to the
Prepayment Consideration computed in accordance with the Note. If the Mortgaged
Property is sold following an Event of Default, through foreclosure or
otherwise, prior to the receipt by Mortgagee of such award or payment, Mortgagee
shall have the right, whether or not a deficiency judgment on the Note shall
have been sought, recovered or denied, to receive said award or payment, or a
portion thereof sufficient to pay the Debt.
(b) Notwithstanding the foregoing, Mortgagee shall not
exercise the foregoing rights and Mortgagor may prosecute any condemnation
proceeding and settle or compromise and collect any claim involving an award
and/or claim for damages of not more than the Restoration Threshold provided
that: (i) no Event of Default shall have occurred and be continuing, (ii) in
Mortgagee's sole good faith judgment, such condemnation or taking does not and
will not materially restrict access to the Mortgaged Property or otherwise have
a Material Adverse Effect, and the Mortgaged Property remaining after such
condemnation or taking is capable of being restored to an economically viable
whole of the same type which existed prior to the condemnation or taking and in
compliance with all applicable laws, (iii) Mortgagor applies the proceeds of
such award to any reconstruction or repair of the Mortgaged Property necessary
as a result of such condemnation or taking, (iv) Mortgagor promptly commences
and diligently prosecutes such reconstruction or repair to completion in
accordance with all applicable laws and (v) at Mortgagee's request, such
reconstruction or repair shall be performed under the supervision of an
architect or engineer reasonably acceptable to Mortgagee and the plans and
specifications for such work shall be subject to Mortgagee's reasonable
approval. Mortgagor authorizes Mortgagee to apply such awards, payments,
proceeds or damages, after the deduction of Mortgagee's reasonable expenses
incurred in the collection of such amounts, at Mortgagee's option, to
restoration or repair of the Mortgaged Property or to payment of the sums
secured by this Mortgage, whether or not then due, in the order determined by
Mortgagee, with the balance, if any, to Mortgagor. In the event that Mortgagee
shall apply any such awards, payments, proceeds or damages to the indebtedness
secured hereby pursuant to the foregoing sentence, no Prepayment Consideration
or other prepayment premium or penalty shall be due and payable under the Note
in connection therewith. Subject to the provisions of clauses (i) through (v) of
this Section 6(b), Mortgagee shall not exercise Mortgagee's option to apply such
awards or damages to payment of the sums secured by this Mortgage provided that
each of the conditions (as applicable) to the release of insurance proceeds for
restoration or repair of the Mortgaged Property under Section 5.5 of the Loan
Agreement have been satisfied with respect to such condemnation awards or
damages. Any application of proceeds to principal shall not extend or postpone
the due date of the monthly installments due hereunder, under the Note or under
any of
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the Loan Documents or change the amount of such installments. Mortgagor agrees
to execute such further evidence of assignment of any awards, proceeds, damages
or claims arising in connection with such condemnation or taking as Mortgagee
may reasonably require.
7. Maintenance of Mortgaged Property. Mortgagor shall cause the
Mortgaged Property to be operated and maintained in a good and safe condition
and repair and in keeping with the condition and repair of properties of a
similar use, value, age, nature and construction. Mortgagor shall not use,
maintain or operate the Mortgaged Property in any manner which constitutes a
public or private nuisance or which makes void, voidable, or cancelable, or
increases the premium of, any insurance then in force with respect thereto. The
Improvements and the Equipment shall not be removed or demolished and no
Material Alterations shall be made thereto (except for normal replacement or
disposal of the Equipment and except as otherwise expressly permitted in the
Loan Agreement) without the consent of Mortgagee, which consent shall not be
unreasonably withheld, delayed or conditioned. Mortgagor shall promptly comply
in all material respects with all laws, orders and ordinances affecting the
Mortgaged Property, or the use thereof.
8. Use of Mortgaged Property. Mortgagor shall not initiate, join in,
acquiesce in, or consent to any change in any private restrictive covenant,
zoning law or other public or private restriction, limiting or defining the uses
which may be made of the Mortgaged Property or any part thereof, nor shall
Mortgagor initiate, join in, acquiesce in, or consent to any zoning change or
zoning matter affecting the Mortgaged Property, which in any of the foregoing
cases could reasonably be expected to result in a Material Adverse Effect. If
under applicable zoning provisions the use of all or any portion of the
Mortgaged Property is or shall become a nonconforming use, Mortgagor will not
cause or permit such nonconforming use to be discontinued or abandoned without
the express written consent of Mortgagee, which consent shall not be
unreasonably withheld. Mortgagor shall not permit or suffer to occur any waste
on or to the Mortgaged Property or to any portion thereof and shall not take any
steps whatsoever to convert the Mortgaged Property, or any portion thereof, to a
condominium or cooperative form of management. Mortgagor will not install or
permit to be installed on the Premises any underground storage tank or
above-ground storage tank in violation of the Environmental Laws.
9. Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor
acknowledges that Mortgagee has examined and relied on the creditworthiness and
experience of Mortgagor in owning and operating properties such as the Mortgaged
Property in agreeing to make the Loan, and that Mortgagee will continue to rely
on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the
value of the Mortgaged Property as security for repayment of the Debt. Except as
expressly permitted under this Mortgage, the Loan Agreement or under the other
Loan Documents, Mortgagor shall not cause or suffer to occur or exist, directly
or indirectly, voluntarily or involuntarily, by operation of law or otherwise,
any sale, transfer, mortgage, pledge, lien or encumbrance (other than Permitted
Encumbrances) (collectively, "Transfers") of (i) all or any part of the
Mortgaged Property or any interest therein, or (ii) any direct or indirect
beneficial ownership interest (in whole or in part) in Mortgagor, irrespective
of the number of tiers of ownership, without the prior written consent of
Mortgagee.
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(b) Notwithstanding the foregoing, Mortgagor may, without the
consent of Mortgagee, (i) make immaterial transfers of portions of the Mortgaged
Property to any federal, state or local government or any political subdivision
thereof (collectively, "Governmental Authorities") for dedication or public use
(subject to the provisions of Section 6 hereof) and (ii) grant easements,
restrictions, covenants, reservations and rights of way in the ordinary course
of business for access, water and sewer lines, telephone, cellular, cable,
internet and telegraph lines, electric lines or other utilities or for other
similar purposes, provided that no such transfer or conveyance set forth in the
foregoing clauses (i) and (ii) shall have a Material Adverse Effect; provided,
however, that Mortgagor shall give Mortgagee at least ten (10) days' prior
written notice of any such transfer or conveyance describing same in reasonable
detail and certifying that such transfer or conveyance satisfies the foregoing
conditions.
(c) The occurrence of any Transfer in violation of this Section 9
shall constitute an Event of Default hereunder, whereupon Mortgagee at its
option, without being required to demonstrate any actual impairment of its
security or any increased risk of default hereunder, may declare the Debt
immediately due and payable.
(d) Mortgagee's consent to any Transfer of the Mortgaged Property
or any interest in Mortgagor shall not be deemed to be a waiver of Mortgagee's
right to require such consent to any future occurrence of same. Any attempted or
purported Transfer of the Mortgaged Property or of any direct or indirect
interest in Mortgagor, if made in contravention of this Section 9, shall be null
and void and of no force and effect.
(e) Notwithstanding the foregoing provisions of Section 9(a)
above, Mortgagor shall have the right to sell or transfer all of the Mortgaged
Property with Mortgagee's consent pursuant to a Transfer and Assumption (as
defined in the Loan Agreement) in accordance with the terms and conditions of
Section 11.3 of the Loan Agreement.
10. Taxes on Security; Documentary Stamps; Intangibles Tax. (a)
Mortgagor shall pay all taxes, charges, filing, registration and recording fees,
excises and levies payable with respect to the Note, this Mortgage or the liens
created or secured by the Loan Documents, other than income, franchise and doing
business taxes imposed on Mortgagee. If there shall be enacted any law (i)
deducting the Loan from the value of the Mortgaged Property for the purpose of
taxation, (ii) affecting any lien on the Mortgaged Property, or (iii) changing
existing laws of taxation of mortgages, deeds of trust, security deeds, or debts
secured by real property, or changing the manner of collecting any such taxes,
Mortgagor shall promptly pay to Mortgagee, on demand, all taxes, costs and
charges for which Mortgagee is or may be liable as a result thereof; however, if
such payment would be prohibited by law or would render the Loan usurious, then
instead of collecting such payment, Mortgagee may declare all amounts owing
under the Loan Documents to be immediately due and payable. No Prepayment
Consideration shall be imposed on any such payment.
(b) If at any time the United States of America, any State
thereof or any subdivision of any such State shall require revenue or other
stamps to be affixed to the Note or this Mortgage, or impose any other tax or
charge on the same, Mortgagor will pay for the same,
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with interest and penalties thereon, if any. Mortgagor hereby agrees that, in
the event that it is determined that additional documentary stamp tax or
intangible tax is due hereon or any mortgage or promissory note executed in
connection herewith (including, without limitation, the Note), Mortgagor shall
indemnify and hold harmless Mortgagee for all such documentary stamp tax and/or
intangible tax, including all penalties and interest assessed or charged in
connection therewith. Mortgagor shall pay same within ten (10) days after demand
of payment from Mortgagee and the payment of such sums shall be secured by this
Mortgage and such sums shall bear interest at the Default Rate (as defined in
the Note) from and after the eleventh (11th) day after demand until paid in
full.
(c) Mortgagor shall hold harmless and indemnify Mortgagee, its
successors and assigns, against any liability incurred by reason of the
imposition of any tax on the making and recording of this Mortgage.
11. No Credits on Account of the Debt. Mortgagor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Impositions assessed against the Mortgaged Property, or any part
thereof, and no deduction shall otherwise be made or claimed from the assessed
value of the Mortgaged Property, or any part thereof, for real estate tax
purposes by reason of this Mortgage or the Debt. In the event such claim, credit
or deduction shall be required by law, Mortgagee shall have the option, by
written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable. No Prepayment Consideration shall be imposed on any
such payment.
12. Performance of Other Agreements. Mortgagor shall duly and
punctually observe and perform each and every material term, provision,
condition, and covenant to be observed or performed by Mortgagor pursuant to the
terms of any agreement or recorded instrument (including all instruments
comprising the Permitted Encumbrances) affecting or pertaining to the Mortgaged
Property, and will not suffer or permit any default or event of default (after
giving effect to any applicable notice requirements and cure periods) to exist
under any of the foregoing.
13. Further Acts; Secondary Market Transactions. (a) Mortgagor will, at
its sole cost and expense, and without expense to Mortgagee, do, execute,
acknowledge and deliver all and every such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, Uniform Commercial Code financing
statements or continuation statements, transfers and assurances as Mortgagee
shall, from time to time, reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Mortgagee the property
and rights hereby mortgaged, given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated or intended
now or hereafter so to be, or which Mortgagor may be or may hereafter become
bound to convey or assign to Mortgagee, or for carrying out the intention or
facilitating the performance of the terms of this Mortgage or for filing,
registering or recording this Mortgage. Mortgagor, on demand, will execute and
deliver and, upon Mortgagor's failure to do so within five (5) Business Days
after Mortgagee's request therefor, hereby authorizes Mortgagee to execute in
the name of Mortgagor or without the signature of Mortgagor to the extent
Mortgagee may lawfully do so, one or more financing statements, chattel
mortgages or other instruments, to evidence more effectively the security
interest of Mortgagee
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in the Mortgaged Property. Upon foreclosure or the appointment of a receiver,
Mortgagor will, at its sole cost and expense, cooperate fully and completely to
effect the assignment or transfer of any license, permit, agreement or any other
right necessary or useful to the operation of the Mortgaged Property. Mortgagor
grants to Mortgagee an irrevocable power of attorney coupled with an interest
for the purpose of exercising and perfecting any and all rights and remedies
available to Mortgagee at law and in equity, including, without limitation, such
rights and remedies available to Mortgagee pursuant to this Section.
(b) Subject to the terms and conditions set forth in the Loan
Agreement, Mortgagee shall have the right to engage in one or more Secondary
Market Transactions and, in connection therewith, Mortgagee may transfer its
obligations under this Mortgage, the Note, the Loan Agreement and under the
other Loan Documents (or may transfer the portion thereof corresponding to the
transferred portion of the Obligations), and thereafter Mortgagee shall be
relieved of any obligations hereunder and under the other Loan Documents arising
after the date of said transfer with respect to the transferred interest.
14. Recording of Mortgage, Etc. Upon the execution and delivery of this
Mortgage and thereafter, from time to time, Mortgagor will cause this Mortgage,
and any security instrument creating a lien or security interest or evidencing
the lien hereof upon the Mortgaged Property and each instrument of further
assurance to be filed, registered or recorded in such manner and in such places
as may be required by any present or future law in order to publish notice of
and fully to protect the lien or security interest hereof upon, and the interest
of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
registration or recording fees, and all expenses incident to the preparation,
execution and acknowledgment of this Mortgage, any mortgage supplemental hereto,
any security instrument with respect to the Mortgaged Property and any
instrument of further assurance, and all federal, state, county and municipal,
taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged Property or any
instrument of further assurance, except where prohibited by law so to do.
15. Reporting Requirements. Mortgagor agrees to give prompt notice to
Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the death,
insolvency or bankruptcy filing of any Guarantor.
16. Intentionally Deleted.
17. Remedies. Upon the occurrence and during the continuance of an
Event of Default, Mortgagee may, at Mortgagee's option, by Mortgagee itself, or
otherwise, do any one or more of the following:
(a) Right to Perform Mortgagor's Covenants. If Mortgagor has
failed to keep or perform any covenant whatsoever contained in this Mortgage or
the other Loan Documents, Mortgagee may, but shall not be obligated to do so,
perform or attempt to perform said covenant; and any payment made or expense
incurred in the performance or attempted performance of any such covenant,
together with any sum expended by Mortgagee that is chargeable to Mortgagor or
10
subject to reimbursement by Mortgagor under the Loan Documents, shall be and
become a part of the Debt, and Mortgagor promises, upon demand, to pay to
Mortgagee, at the place where the Note is payable, all sums so incurred, paid or
expended by Mortgagee, with interest from the date when paid, incurred or
expended by Mortgagee at the Default Rate (as defined in the Note).
(b) Right of Entry. Mortgagee may, prior or subsequent to the
institution of any foreclosure proceedings, enter upon the Mortgaged Property,
or any part thereof, and take exclusive possession of the Mortgaged Property and
of all books, records, and accounts relating thereto and to exercise without
interference from Mortgagor any and all rights which Mortgagor has with respect
to the management, possession, operation, protection, or preservation of the
Mortgaged Property, including, without limitation, the right to rent the same
for the account of Mortgagor and to deduct from such Rents all costs, expenses,
and liabilities of every character incurred by the Mortgagee in collecting such
Rents and in managing, operating, maintaining, protecting, or preserving the
Mortgaged Property and to apply the remainder of such Rents on the Debt in such
manner as Mortgagee may elect. All such costs, expenses, and liabilities
incurred by Mortgagee in collecting such Rents and in managing, operating,
maintaining, protecting, or preserving the Mortgaged Property, if not paid out
of Rents as hereinabove provided, shall constitute a demand obligation owing by
Mortgagor and shall bear interest from the date of expenditure until paid at the
Default Rate as specified in the Note, all of which shall constitute a portion
of the Debt. If Mortgagee elects to enter the Mortgaged Property as provided for
herein, Mortgagee may invoke any and all legal remedies to dispossess Mortgagor,
including specifically one or more actions for forcible entry and detainer,
trespass to try title, and restitution. In connection with any action taken by
the Mortgagee pursuant to this subsection, Mortgagee shall not be liable for any
loss sustained by Mortgagor resulting from any failure to let the Mortgaged
Property, or any part thereof, or from any other act or omission of the
Mortgagee in managing the Mortgaged Property unless such loss is caused by the
willful misconduct or gross negligence of Mortgagee, its agents, employees or
officers, nor shall Mortgagee be obligated to perform or discharge any
obligation, duty, or liability under any Lease or under or by reason hereof or
the exercise of rights or remedies hereunder. Mortgagor shall and does hereby
agree to indemnify, defend and hold harmless the Indemnified Parties (as defined
in Section 23 below) from and against, any and all liability, claim, demand,
loss, damage, cost or expense (including, without limitation, reasonable
attorneys' fees and disbursements) which may or might be suffered or incurred by
any Indemnified Party under any such Lease or under or by reason hereof or the
exercise of rights or remedies hereunder, or by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants, or agreements contained in any such Lease as and to the extent
provided under Section 23 below. Nothing in this subsection shall impose any
duty, obligation, or responsibility upon any Indemnified Party for the control,
care, management, leasing, or repair of the Mortgaged Property, nor for the
carrying out of any of the terms and conditions of any such Lease prior to the
transfer of title to the Mortgaged Property to any Indemnified Party by
foreclosure, deed-in-lieu thereof, exercise of power of sale or otherwise.
Mortgagor hereby assents to, ratifies, and confirms any and all actions of the
Mortgagee with respect to the Mortgaged Property taken under this subsection.
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(c) Right to Accelerate. Mortgagee may, without notice or demand,
declare the entire unpaid balance of the Debt immediately due and payable.
(d) Foreclosure-Power of Sale. Mortgagee may from time to time
institute a proceeding or proceedings, judicial, or nonjudicial, by
advertisement or otherwise, for the complete or partial foreclosure of this
Mortgage or the complete or partial sale of the Mortgaged Property under the
power of sale contained herein or under any applicable provision of law.
Mortgagee may sell the Mortgaged Property, and all estate, right, title,
interest, claim and demand of Mortgagor therein, and all rights of redemption
thereof, at one or more sales, as an entirety or in parcels, with such elements
of real and/or personal property, and at such time and place and upon such terms
as it may deem expedient, or as may be required by applicable law, and in the
event of a sale, by foreclosure or otherwise, of less than all of the Mortgaged
Property, this Mortgage shall continue as a lien and security interest on the
remaining portion of the Mortgaged Property.
(e) Rights Pertaining to Sales. Subject to the requirements of
applicable law and except as otherwise provided herein, the following provisions
shall apply to any sale or sales of all or any portion of the Mortgaged Property
under or by virtue of Subsection (d) above, whether made under the power of sale
herein granted or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale:
(i) Mortgagee may conduct any number of sales from time to
time. The power of sale set forth above shall not be exhausted by any
one or more such sales as to any part of the Mortgaged Property which
shall not have been sold, nor by any sale which is not completed or is
defective in Mortgagee's opinion, until the Debt shall have been paid
in full.
(ii) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or for such
postponed or adjourned sale without further notice.
(iii) After each sale, Mortgagee or an officer of any court
empowered to do so shall execute and deliver to the purchaser or
purchasers at such sale a good and sufficient instrument or instruments
granting, conveying, assigning and transferring all right, title and
interest of Mortgagor in and to the property and rights sold and shall
receive the proceeds of said sale or sales and apply the same as
specified in the Loan Agreement. Mortgagee is hereby appointed the true
and lawful attorney-in-fact of Mortgagor, which appointment is
irrevocable and shall be deemed to be coupled with an interest, in
Mortgagor's name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the property and rights so
sold, Mortgagor hereby ratifying and confirming all that said attorney
or such substitute or substitutes shall lawfully do by virtue thereof.
Nevertheless, Mortgagor, if requested by Mortgagee, shall ratify and
confirm any such sale or sales by executing and delivering to Mortgagee
or such purchaser or
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purchasers all such instruments as may be advisable, in Mortgagee's
judgment, for the purposes as may be designated in such request.
(iv) Any and all statements of fact or other recitals made in
any of the instruments referred to in Subsection (e)(iii) above given
by Mortgagee shall be taken as conclusive and binding against all
persons as to evidence of the truth of the facts so stated and recited.
(v) Any such sale or sales shall operate to divest all of the
estate, right, title, interest, claim and demand whatsoever, whether at
law or in equity, of Mortgagor in and to the properties and rights so
sold, and shall be a perpetual bar both at law and in equity against
Mortgagor and any and all persons claiming or who may claim the same,
or any part thereof or any interest therein, by, through or under
Mortgagor to the fullest extent permitted by applicable law.
(vi) Upon any such sale or sales, Mortgagee may bid for and
acquire the Mortgaged Property and, in lieu of paying cash therefor,
may make a settlement for the purchase price by crediting against the
Debt the amount of the bid made therefor, after deducting therefrom the
expenses of the sale, the cost of any enforcement proceeding hereunder,
and any other sums which Mortgagee is authorized to deduct under the
terms hereof, to the extent necessary to satisfy such bid.
(vii) Upon any such sale, it shall not be necessary for
Mortgagee or any public officer acting under execution or order of
court to have present or constructively in its possession any of the
Mortgaged Property.
(f) Mortgagee's Judicial Remedies. Mortgagee may proceed by suit
or suits, at law or in equity, to enforce the payment of the Debt to foreclose
the liens and security interests of this Mortgage as against all or any part of
the Mortgaged Property, and to have all or any part of the Mortgaged Property
sold under the judgment or decree of a court of competent jurisdiction. This
remedy shall be cumulative of any other nonjudicial remedies available to the
Mortgagee under this Mortgage or the other Loan Documents. Proceeding with a
request or receiving a judgment for legal relief shall not be or be deemed to be
an election of remedies or bar any available nonjudicial remedy of the
Mortgagee.
(g) Mortgagee's Right to Appointment of Receiver. Mortgagee, as a
matter of right and (i) without regard to the sufficiency of the security for
repayment of the Debt and without notice to Mortgagor, (ii) without any showing
of insolvency, fraud, or mismanagement on the part of Mortgagor, (iii) without
the necessity of filing any judicial or other proceeding other than the
proceeding for appointment of a receiver, and (iv) without regard to the then
value of the Mortgaged Property, shall be entitled to the appointment of a
receiver or receivers for the protection, possession, control, management and
operation of the Mortgaged Property, including (without limitation), the power
to collect the Rents, enforce this Mortgage and, in case of a sale and
deficiency, during the full statutory period of redemption (if any), whether
there be a redemption or not, as well as during any further times when
Mortgagor, except for the
13
intervention of such receiver, would be entitled to collection of such Rents.
Mortgagor hereby irrevocably consents to the appointment of a receiver or
receivers. Any receiver appointed pursuant to the provisions of this subsection
shall have the usual powers and duties of receivers in such matters.
(h) Mortgagee's Uniform Commercial Code Remedies. Mortgagee may
exercise its rights of enforcement under the Uniform Commercial Code in effect
in the state in which the Mortgaged Property is located.
(i) Other Rights. Mortgagee (i) may surrender the insurance
policies maintained pursuant to the Loan Agreement or any part thereof, and upon
receipt of the proceeds shall apply the unearned Insurance Premiums as a credit
on the Debt, and, in connection therewith, Mortgagor hereby appoints Mortgagee
as agent and attorney-in-fact (which is coupled with an interest and is
therefore irrevocable) for Mortgagor to collect such Insurance Premiums; (ii)
may apply the Impositions and Insurance Reserve and/or any other Reserves held
pursuant to this Mortgage or the other Loan Documents, and any other funds held
by Mortgagee toward payment of the Debt; and (iii) shall have and may exercise
any and all other rights and remedies which Mortgagee may have at law or in
equity, or by virtue of any of the Loan Documents, or otherwise.
(j) Discontinuance of Remedies. If Mortgagee shall have proceeded
to invoke any right, remedy, or recourse permitted under the Loan Documents and
shall thereafter elect to discontinue or abandon same for any reason, Mortgagee
shall have the unqualified right so to do and, in such event, Mortgagor and
Mortgagee shall be restored to their former positions with respect to the Debt,
the Loan Documents, the Mortgaged Property or otherwise, and the rights,
remedies, recourses and powers of Mortgagee shall continue as if same had never
been invoked.
(k) Remedies Cumulative. All rights, remedies, and recourses of
Mortgagee granted in the Note, this Mortgage and the other Loan Documents, any
other pledge of collateral, or otherwise available at law or equity: (i) shall
be cumulative; (ii) may be pursued separately, successively, or concurrently
against Mortgagor, the Mortgaged Property, or any one or more of them, at such
time and in such order as Mortgagee may determine in its sole discretion; (iii)
may be exercised as often as occasion therefor shall arise, it being agreed by
Mortgagor that the exercise or failure to exercise any of same shall in no event
be construed as a waiver or release thereof or of any other right, remedy, or
recourse; (iv) shall be nonexclusive of any other right, power or remedy which
Mortgagee may have against Mortgagor pursuant to this Mortgage, the Loan
Agreement or the other Loan Documents, or otherwise available at law or in
equity; (v) shall not be conditioned upon Mortgagee exercising or pursuing any
remedy in relation to the Mortgaged Property prior to Mortgagee bringing suit to
recover the Debt; and (vi) in the event Mortgagee elects to bring suit on the
Debt and obtains a judgment against Mortgagor prior to exercising any remedies
in relation to the Mortgaged Property, all liens and security interests,
including the lien of this Mortgage, shall remain in full force and effect and
may be exercised thereafter at Mortgagee's option.
14
(l) Election of Remedies. Mortgagee may release, regardless of
consideration, any part of the Mortgaged Property without, as to the remainder,
in any way impairing, affecting, subordinating, or releasing the lien or
security interests evidenced by this Mortgage or the other Loan Documents or
affecting the obligations of Mortgagor or any other party to pay the Debt. For
payment of the Debt, Mortgagee may resort to any collateral securing the payment
of the Debt in such order and manner as Mortgagee may elect. No collateral taken
by Mortgagee shall in any manner impair or affect the lien or security interests
given pursuant to the Loan Documents, and all collateral shall be taken,
considered, and held as cumulative.
(m) Bankruptcy Acknowledgment. If the Mortgaged Property or any
portion thereof or any interest therein becomes property of any bankruptcy
estate or subject to any state or federal insolvency proceeding, or in the event
of the filing of any voluntary or involuntary petition under the Bankruptcy Code
by or against Mortgagor then Mortgagee shall immediately become entitled, in
addition to all other relief to which Mortgagee may be entitled under this
Mortgage, to obtain (i) an order from any bankruptcy court or other appropriate
court granting immediate relief from the automatic stay pursuant to ss. 362 of
the Bankruptcy Code so as to permit Mortgagee to pursue its rights and remedies
against Mortgagor as provided under this Mortgage and all other rights and
remedies of Mortgagee at law and in equity under applicable state law, and (ii)
an order from the Bankruptcy Court prohibiting Mortgagor's use of all "cash
collateral" as defined under ss. 363 of the Bankruptcy Code. Mortgagor shall not
assert or request any other party to assert, that the automatic stay under ss.
362 of the Bankruptcy Code operate or be interpreted to stay, interdict,
condition, reduce or inhibit the ability of Mortgagee to enforce any rights it
has by virtue of this Mortgage, or any other rights that Mortgagee has, whether
now or hereafter acquired, against any guarantor of the Debt. Mortgagor shall
not seek a supplemental stay or any other relief, whether injunctive or
otherwise, pursuant to ss. 105 of the Bankruptcy Code or any other provision
therein to stay, interdict, condition, reduce or inhibit the ability of
Mortgagee to enforce any rights it has by virtue of this Mortgage against any
guarantor of the Debt. Any bankruptcy petition or other action taken by the
Mortgagor to stay, condition, or inhibit Mortgagee from exercising its remedies
are hereby admitted by Mortgagor to be in bad faith and Mortgagor further admits
that Mortgagee would have just cause for relief from the automatic stay in order
to take such actions authorized under state law.
(n) Application of Proceeds. The proceeds from any sale, lease,
or other disposition made pursuant to this Mortgage, or the proceeds from the
surrender of any insurance policies pursuant hereto, or any Rents collected by
Mortgagee from the Mortgaged Property or the Impositions and Insurance Reserve
or other Reserves under the Cash Management Agreement or sums received pursuant
to Section 6 hereof, or proceeds from insurance which Mortgagee elects to apply
to the Debt pursuant to Section 3 hereof, shall be applied by Mortgagee to the
Debt in such order, priority and proportions as Mortgagee in its sole discretion
shall determine.
(o) Confession of Judgment.
(i) MORTGAGEE MAY HAVE JUDGMENT ENTERED BY CONFESSION PURSUANT
TO ANY POWER TO CONFESS JUDGMENT
15
CONTAINED IN THIS MORTGAGE OR IN ANY OF THE LOAN DOCUMENTS.
(ii) MORTGAGOR HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR
ATTORNEYS OF ANY COURT OF THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR
FOR MORTGAGOR AND, AS ATTORNEY FOR MORTGAGOR, TO CONFESS JUDGMENT IN
EJECTMENT AGAINST MORTGAGOR (AND, AT THE ELECTION OF SAID ATTORNEY OR
ATTORNEYS, AGAINST ANY PERSON CLAIMING UNDER, BY OR THROUGH MORTGAGOR,
SUBJECT TO THE RIGHTS OF TENANTS UNDER LEASES EXISTING ON THE DATE
HEREOF (PROVIDED THAT SUCH LEASES ARE EXPRESSLY IDENTIFIED AS PERMITTED
ENCUMBRANCES) OR SUBSEQUENTLY ENTERED INTO WITH MORTGAGEE'S PRIOR
WRITTEN CONSENT, AND FURTHER SUBJECT TO NON-DISTURBANCE AGREEMENTS
ENTERED INTO BETWEEN MORTGAGEE AND ANY SUCH TENANT) IN FAVOR OF
MORTGAGEE FOR THE POSSESSION OF THE MORTGAGED PROPERTY OF MORTGAGOR OR,
AT THE ELECTION OF SAID ATTORNEY OR ATTORNEYS, ANY PORTION OR PORTIONS
OF SUCH MORTGAGED PROPERTY. THE FOREGOING AUTHORITY TO CONFESS JUDGMENT
IS GRANTED INDEPENDENTLY BY MORTGAGOR, AND SHALL BE EXERCISABLE AGAINST
MORTGAGOR, AND THE EXERCISE AGAINST MORTGAGOR SHALL NOT EXHAUST THE
EXERCISE THEREOF AGAINST MORTGAGOR, BUT SHALL CONTINUE UNTIL MORTGAGEE
IS FULLY AND FINALLY VESTED WITH POSSESSION OF THE MORTGAGED PROPERTY.
MORTGAGOR EXPRESSLY AGREES THAT ANY JUDGMENT ENTERED AGAINST IT
PURSUANT TO THE FOREGOING AUTHORITY SHALL BE FINAL WITH RESPECT TO
MORTGAGOR AND RELEASES TO MORTGAGEE, AND TO ANY ATTORNEY APPEARING FOR
MORTGAGEE, ALL ERRORS IN SAID PROCEEDINGS AND ALL LIABILITY THEREFOR.
UPON CONFESSION OF JUDGMENT IN EJECTMENT PURSUANT TO THE FOREGOING
AUTHORITY, A WRIT OF POSSESSION (OR LIKE WRIT APPROPRIATE UNDER THEN
APPLICABLE LAW) MAY ISSUE FORTHWITH WITHOUT ANY PRIOR PROCEEDINGS AND
MAY INCLUDE THE COSTS OF MORTGAGEE. JUDGMENT MAY BE ENTERED PURSUANT TO
THE FOREGOING AUTHORITY ON THE BASIS OF ANY AFFIDAVIT MADE ON
MORTGAGEE'S BEHALF AND SETTING FORTH THE RELEVANT FACTS, AND IF A TRUE
COPY OF THIS MORTGAGE IS FILED IN ANY ACTION FOR SUCH JUDGMENT, IT
SHALL NOT BE NECESSARY TO FILE THE ORIGINAL OF THIS MORTGAGE. MORTGAGEE
MAY CONFESS JUDGMENT IN EJECTMENT BEFORE OR AFTER: (A) THE INSTITUTION
OF FORECLOSURE PROCEEDINGS UNDER THIS MORTGAGE, (B) THE ENTRY OF
JUDGMENT HEREUNDER OR UNDER
16
ANY NOTE OR OTHER LOAN DOCUMENT, OR (C) A SHERIFF'S SALE OF THE
MORTGAGED PROPERTY.
18. Security Agreement. This Mortgage is both a real property mortgage
and a "security agreement" within the meaning of the Uniform Commercial Code.
The Mortgaged Property includes both real and personal property and all other
rights and interests, whether tangible or intangible in nature, of Mortgagor in
the Mortgaged Property. Mortgagor by executing and delivering this Mortgage has
granted and hereby grants to Mortgagee, as security for the Debt, a security
interest in the Mortgaged Property to the full extent that the Mortgaged
Property may be subject to the Uniform Commercial Code (said portion of the
Mortgaged Property so subject to the Uniform Commercial Code being called in
this Section 18 the "Collateral"). Mortgagor hereby agrees to execute and
deliver to Mortgagee, in form and substance reasonably satisfactory to
Mortgagee, such financing statements and such further assurances as Mortgagee
may from time to time reasonably consider necessary to create, perfect, and
preserve Mortgagee's security interest herein granted. This Mortgage shall also
constitute a "fixture filing" for the purposes of the Uniform Commercial Code as
to all or any part of the Mortgaged Property which now or hereafter constitute
"fixtures" under the Uniform Commercial Code. Information concerning the
security interest herein granted may be obtained from the parties at the
addresses of the parties set forth in the first paragraph of this Mortgage. If
an Event of Default shall occur, Mortgagee, in addition to any other rights and
remedies which it may have, shall have and may exercise immediately and without
demand, any and all rights and remedies granted to a secured party upon default
under the Uniform Commercial Code, including, without limiting the generality of
the foregoing, the right to take possession of the Collateral or any part
thereof, and to take such other measures as Mortgagee may deem necessary for the
care, protection and preservation of the Collateral. Upon request or demand of
Mortgagee, Mortgagor shall at its expense assemble the Collateral and make it
available to Mortgagee at a convenient place acceptable to Mortgagee. Mortgagor
shall pay to Mortgagee on demand any and all expenses, including legal expenses
and attorneys' fees, incurred or paid by Mortgagee in protecting the interest in
the Collateral and in enforcing the rights hereunder with respect to the
Collateral. Any notice of sale, disposition or other intended action by
Mortgagee with respect to the Collateral sent to Mortgagor in accordance with
the provisions hereof at least five (5) days prior to such action, shall
constitute commercially reasonable notice to Mortgagor. The proceeds of any
disposition of the Collateral, or any part thereof, may be applied by Mortgagee
to the payment of the Debt in such priority and proportions as Mortgagee in its
discretion shall deem proper. In the event of any change in name, identity or
structure of any Mortgagor, such Mortgagor shall notify Mortgagee thereof and
promptly after Mortgagee's request shall execute, file and record such Uniform
Commercial Code forms as are necessary to maintain the priority of Mortgagee's
lien upon and security interest in the Collateral, and shall pay all expenses
and fees in connection with the filing and recording thereof. If Mortgagee shall
require the filing or recording of additional Uniform Commercial Code forms or
continuation statements, Mortgagor shall, promptly after request, execute, file
and record such Uniform Commercial Code forms or continuation statements as
Mortgagee shall deem necessary, and shall pay all expenses and fees in
connection with the filing and recording thereof, it being understood and
agreed, however, that no such additional documents shall increase Mortgagor's
obligations under the Note, this Mortgage and the other Loan Documents.
Mortgagor hereby
17
irrevocably appoints Mortgagee as its attorney-in-fact, coupled with an interest
upon Mortgagor's failure to do so within five (5) Business Days after request by
Mortgagee, to file with the appropriate public office on its behalf any
financing or other statements signed only by Mortgagee, as Mortgagor's
attorney-in-fact, in connection with the Collateral covered by this Mortgage.
Notwithstanding the foregoing, Mortgagor shall appear and defend in any action
or proceeding which affects or purports to affect the Mortgaged Property and any
interest or right therein, whether such proceeding affects title or any other
rights in the Mortgaged Property (and in conjunction therewith, Mortgagor shall
fully cooperate with Mortgagee in the event Mortgagee is a party to such action
or proceeding).
19. Actions and Proceedings. Upon the occurrence and during the
continuance of an Event of Default, Mortgagee has the right to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to bring any action or proceeding, in the name and on behalf of Mortgagor,
which Mortgagee, in its discretion, decides should be brought to protect its
interest in the Mortgaged Property. Mortgagee shall, at its option, be
subrogated to the lien of any mortgage or other security instrument discharged
in whole or in part by the Debt, and any such subrogation rights shall
constitute additional security for the payment of the Debt.
20. Waiver of Setoff and Counterclaim, Marshalling, Statute of
Limitations, Automatic or Supplemental Stay, Etc. (a) All amounts due under this
Mortgage, the Note and the other Loan Documents shall be payable without setoff,
counterclaim or any deduction whatsoever. Mortgagor hereby waives the right to
assert a setoff, counterclaim or deduction in any action or proceeding in which
Mortgagee is a participant, or arising out of or in any way connected with this
Mortgage, the Note, any of the other Loan Documents, or the Debt.
(b) Mortgagor hereby expressly, irrevocably, and unconditionally
waives and releases, to the extent permitted by law (i) the benefit of all
appraisement, valuation, stay, extension, reinstatement and redemption laws now
or hereafter in force and all rights of marshalling, sale in the inverse order
of alienation, or any other right to direct in any manner the order or sale of
any of the Mortgaged Property in the event of any sale hereunder of the
Mortgaged Property or any part thereof or any interest therein; (ii) any and all
rights of redemption from sale under any order or decree of foreclosure of this
Mortgage on behalf of Mortgagor, and on behalf of each and every person
acquiring any interest in or title to the Mortgaged Property subsequent to the
date of this Mortgage and on behalf of all persons to the extent permitted by
applicable law; and (iii) all benefits that might accrue to Mortgagor by virtue
of any present or future law exempting the Mortgaged Property from attachment,
levy or sale on execution or providing for any appraisement, valuation, stay of
execution, exemption from civil process, redemption, or extension of time for
payment. Mortgagee shall not be under any obligation to marshal any assets in
favor of any Person or against or in payment of any or all of the Obligations.
(c) To the extent permitted by applicable law, Mortgagee's rights
hereunder shall continue even to the extent that a suit for collection of the
Debt, or part thereof, is barred by a statute of limitations. Mortgagor hereby
expressly waives and releases to the fullest extent permitted by law, the
pleading of any statute of limitations as a defense to payment of the Debt.
18
21. Recovery of Sums Required to Be Paid. Mortgagee shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Mortgagee thereafter to bring an action of foreclosure, or any other action,
for a default or defaults by Mortgagor existing at the time such earlier action
was commenced.
22. Handicapped Access. (a) Mortgagor agrees that the Mortgaged
Property shall at all times comply in all material respects with applicable
requirements of the Americans with Disabilities Act of 1990, the Fair Housing
Amendments Act of 1988, all state and local laws and ordinances related to
handicapped access and all rules, regulations, and orders issued pursuant
thereto including, without limitation, the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (collectively "Access
Laws").
(b) Mortgagor agrees to give prompt notice to Mortgagee of the
receipt by Mortgagor of any complaints related to violation of any Access Laws
and of the commencement of any proceedings or investigations which relate to
compliance with applicable Access Laws but only to the extent that such
complaints, proceedings or investigations, if adversely determined, could have a
Material Adverse Effect.
23. Indemnification; Limitation of Liability. In addition to the
payment of expenses as required elsewhere herein and in the other Loan
Documents, Mortgagor agrees to indemnify, defend, protect, pay and hold
Mortgagee, its successors and assigns (including, without limitation, the
trustee and/or the trust under any trust agreement executed in connection with
any Securitization backed in whole or in part by the Loan and any other person
which may hereafter be the holder of the Note or any interest therein), and the
officers, directors, stockholders, partners, members, employees, agents, and
Affiliates of Mortgagee and such successors and assigns (collectively, the
"Indemnified Parties") harmless from and against any and all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including without limitation reasonable attorneys' fees and expenses)
(collectively, the "Indemnified Claims"), imposed upon or incurred by or
asserted against any Indemnified Party by reason of any of the following (to the
extent that insurance proceeds paid to the applicable Indemnified Party on
account of the following shall be inadequate): (i) ownership of the Mortgage,
the Mortgaged Property or any interest therein or receipt of any rents; (ii) any
accident, injury to or death of persons or loss of or damage to property
occurring in, on or about the Mortgaged Property or any part thereof or on the
adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets
or ways; (iii) any use, nonuse or condition in, on or about the Mortgaged
Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (iv) 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; (v) any failure of the
Premises or the Improvements to comply with any applicable law, statute, code,
ordinance, rule or regulation; (vi) any default by Mortgagor under this
Mortgage, the Loan Agreement or any other Loan Documents; (vii) any actions
taken by any Indemnified Party in the enforcement of this Mortgage and the other
Loan Documents in accordance with their respective terms; (viii) any failure to
act on the part of any Indemnified Party hereunder; (ix) the payment or
nonpayment of
19
any brokerage commissions to any party in connection with the transaction
contemplated hereby; and (x) the failure of Mortgagor to file timely with the
Internal Revenue Service an accurate Form 0000-X, Xxxxxxxxx for Recipients of
Proceeds from Real Estate, Broker and Barter Exchange Transactions, which may be
required in connection with this Agreement, or to supply a copy thereof in a
timely fashion to the recipient of the proceeds of the transaction in connection
with which this Agreement is made. Notwithstanding the foregoing, Mortgagor
shall not be liable for any Indemnified Claims arising (A) from the gross
negligence or willful misconduct of any Indemnified Party or (B) under clauses
(i) - (v) above to the extent the facts, events or circumstances giving rise to
such Indemnified Claim arise after the date that any Indemnified Party takes
title to the Mortgaged Property by foreclosure, deed-in-lieu thereof, the
exercise of any power of sale or otherwise. Any amounts payable to an
Indemnified Party by reason of the application of this Section shall become
immediately due and payable and shall bear interest at the Default Rate from the
date loss or damage is sustained by such Indemnified Party until paid.
24. Notices. Any notice, demand, statement, request or consent made
hereunder shall be in writing, addressed to the intended recipient at its
address set forth in the Loan Agreement, and shall be made and deemed given in
accordance with the terms of the Loan Agreement. All notices to Mortgagee
pursuant to 42 Pa. X.X.X.xx. 8143 shall be given as follows:
c/o Merrill Xxxxx & Co.
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Balkan
With a copy to:
Sidley & Austin
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
25. Authority. (a) Mortgagor (and the undersigned representative of
Mortgagor, if any) has full power, authority and right to execute, deliver and
perform its obligations pursuant to this Mortgage, and to mortgage, give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and
assign the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Mortgage on Mortgagor's part to be performed;
and (b) Mortgagor represents and warrants that Mortgagor is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended and the related Treasury Department regulations.
26. Waiver of Notice. Mortgagor shall not be entitled to any notices of
any nature whatsoever from Mortgagee except with respect to matters for which
this Mortgage specifically and expressly provides for the giving of notice by
Mortgagee to Mortgagor and except with respect to matters for which Mortgagee is
required by applicable law to give notice, and
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Mortgagor hereby expressly waives the right to receive any notice from Mortgagee
with respect to any matter for which this Mortgage does not specifically and
expressly provide for the giving of notice by Mortgagee to Mortgagor.
27. Remedies of Mortgagor. In the event that a claim or adjudication is
made that Mortgagee has acted unreasonably or unreasonably delayed acting in any
case where by law or under the Note, this Mortgage or the other Loan Documents,
it has an obligation to act reasonably or promptly, Mortgagee shall not be
liable for any monetary damages, and Mortgagor's remedies shall be limited to
injunctive relief or declaratory judgment.
28. Sole Discretion of Mortgagee. Whenever pursuant to this Mortgage or
the other Loan Documents, Mortgagee exercises any right given to it to consent,
approve or disapprove, or any arrangement or term is to be satisfactory to
Mortgagee, the decision of Mortgagee to consent, approve or disapprove, or to
decide that arrangements or terms are satisfactory or not satisfactory shall be
in the sole discretion of Mortgagee and shall be final and conclusive, except as
may be otherwise expressly and specifically provided herein. Notwithstanding
anything to the contrary contained herein, it shall be understood and agreed
that any such consent, approval, or disapproval may be conditioned, among other
things, upon Mortgagee obtaining confirmation by the Rating Agencies that the
action or other matter subject to Mortgagee's consent, approval, or disapproval
shall not adversely affect the rating of any securities issued or to be issued
in connection with any Secondary Market Transaction, notwithstanding that such
condition may not be expressly set forth in the provision or provisions of the
Loan Documents which require that Mortgagee's consent be obtained.
29. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations
hereunder by reason of (a) the failure of Mortgagee to comply with any request
of Mortgagor or Guarantor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of the Note or other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Debt or any
portion thereof, or (c) any agreement or stipulation by Mortgagee extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Mortgage, or the other Loan Documents. Mortgagee may resort for the payment
of the Debt to any other security held by Mortgagee in such order and manner as
Mortgagee, in its discretion, may elect. Mortgagee may take action to recover
the Debt, or any portion thereof, or to enforce any covenant hereof without
prejudice to the right of Mortgagee thereafter to foreclosure this Mortgage. The
rights and remedies of Mortgagee under this Mortgage shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of the others. No
act of Mortgagee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Mortgagee shall not be
limited exclusively to the rights and remedies herein stated but shall be
entitled to every right and remedy now or hereafter afforded at law or in
equity.
30. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions
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hereof requiring Mortgagee's consent to any transfer of the Mortgaged Property,
this Mortgage shall be binding upon and inure to the benefit of Mortgagor and
Mortgagee and their respective successors and assigns forever.
31. Inapplicable Provisions. If any term, covenant or condition of this
Mortgage is held to be invalid, illegal or unenforceable in any respect, this
Mortgage shall be construed without such provision.
32. Headings, Etc. The headings and captions of various Sections of
this Mortgage are for convenience of reference only and are not to be construed
as defining or limiting, in any way, the scope or intent of the provisions
hereof.
33. Counterparts. This Mortgage may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
34. Definitions. Unless the context clearly indicates a contrary intent
or unless otherwise specifically provided herein, words used in this Mortgage
may be used interchangeably in singular or plural form and the word "Mortgagor"
shall mean "each Mortgagor and any subsequent owner or owners of the Mortgaged
Property or any part thereof or any interest therein," the word "Mortgagee"
shall mean "Mortgagee and any subsequent holder of the Note," the word "Debt"
shall mean "the Note and any other evidence of indebtedness secured by this
Mortgage," the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, and the words "Mortgaged Property" shall
include any portion of the Mortgaged Property and any interest therein and the
words "attorneys' fees" shall include any and all reasonable attorneys' fees,
paralegal and law clerk fees, including, but not limited to, fees at the
pre-trial, trial and appellate levels incurred or paid by Mortgagee in
protecting its interest in the Mortgaged Property and Collateral and enforcing
its rights hereunder. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
35. Homestead. Mortgagor hereby waives and renounces all homestead and
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Premises as against the collection of the Debt,
or any part hereof.
36. Assignments. Mortgagee shall have the right to assign or transfer
its rights under this Mortgage and the other Loan Documents without limitation,
including, without limitation, the right to assign or transfer its rights to a
servicing agent. Any assignee or transferee shall be entitled to all the
benefits afforded Mortgagee under this Mortgage and the other Loan Documents.
Mortgagee agrees to provide Mortgagor with notice of any such assignment, and in
no event shall Mortgagor's monetary obligations hereunder and under the other
Loan Documents be increased as a result of such assignment (except in accordance
with Section 10.2 of the Loan Agreement); provided, however, that Mortgagor's
consent shall not be required in connection
22
with any such assignment and no delay or failure by Mortgagee to provide such
notice shall limit the effectiveness of such assignment.
37. Survival of Obligations; Survival of Warranties and
Representations. Each and all of the covenants, obligations, representations and
warranties of Mortgagor shall survive the execution and delivery of the Loan
Documents and the transfer or assignment of this Mortgage (including, without
limitation, any transfer of the Mortgage by Mortgagee of any of its rights,
title and interest in and to the Mortgaged Property to any party, whether or not
affiliated with Mortgagee).
38. Covenants Running with the Land. All covenants, conditions,
warranties, representations and other obligations contained in this Mortgage and
the other Loan Documents are intended by Mortgagor and Mortgagee to be, and
shall be construed as, covenants running with the Mortgaged Property until the
lien of this Mortgage has been fully released by Mortgagee.
39. Governing Law; Jurisdiction. THIS MORTGAGE WAS NEGOTIATED IN THE
STATE OF NEW YORK AND WAS MADE BY MORTGAGOR AND ACCEPTED BY MORTGAGEE IN THE
STATE OF NEW YORK, AND THE PROCEEDS OF THE NOTE 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, 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 THE STATE OF NEW YORK AND
ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES
THE PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS AND
SECURITY INTERESTS CREATED PURSUANT TO THIS MORTGAGE SHALL BE GOVERNED BY THE
LAWS OF THE STATE WHERE THE MORTGAGED PROPERTY IS LOCATED.
40. Time of Essence. Time is of the essence as to all of the terms,
covenants and condition of this Mortgage and the other Loan Documents.
41. No Third-Party Beneficiaries. The provisions of this Mortgage and
the other Loan Documents are for the benefit of Mortgagor and Mortgagee and
shall not inure to the benefit of any third party (other than any successor or
assignee of Mortgagee or permitted assignee of Mortgagor). This Mortgage and the
other Loan Documents shall not be construed as creating any rights, claims or
causes of action against Mortgagee or any of its officers, directors, agents or
employees in favor of any party other than Mortgagor including but not limited
to any claims to any sums held in the Impositions and Insurance Reserve or any
other Reserve.
42. Relationship of Parties. The relationship of Mortgagee and
Mortgagor is solely that of debtor and creditor, and Mortgagee has no fiduciary
or other special relationship with the
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Mortgagor, and no term or condition of any of the Loan Documents shall be
construed to be other than that of debtor and creditor. Mortgagor represents and
acknowledges that neither the Loan Documents nor any course of dealing between
the parties creates any partnership or joint venture between Mortgagor and
Mortgagee or any other person, nor does it provide for any shared appreciation
rights or other equity participation interest.
43. Successors and Assigns. This Mortgage shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that Mortgagor may not assign its rights or obligations
hereunder except as expressly provided in Section 9 hereof or as permitted under
the Loan Agreement.
44. Investigations. Any and all representations, warranties, covenants
and agreements made in this Mortgage (and/or in other Loan Documents) shall
survive any investigation or inspection made by or on behalf of Mortgagee.
45. Assignment of Leases and Rents. (a) Mortgagor acknowledges and
confirms that it has executed and delivered to Mortgagee the Assignment of
Leases intending that such instrument create a present, absolute assignment to
Mortgagee of the Leases and Rents. Without limiting the intended benefits or the
remedies provided under the Assignment of Leases, Mortgagor hereby assigns to
Mortgagee, as further security for the Debt and the Obligations, the Leases and
Rents. While any Event of Default exists, Mortgagee shall be entitled to
exercise any or all of the remedies provided in the Assignment of Leases and in
Section 17 hereof, including, without limitation, the right to have a receiver
appointed. If any conflict or inconsistency exists between the Assignment of the
Leases and this Mortgage and the absolute assignment of the Leases and the Rents
in the Assignment of Leases, the terms of the Assignment of Leases shall
control.
(b) So long as any part of the Debt and the Obligations
secured hereby remain unpaid and undischarged, the fee and leasehold estates to
the Mortgaged Property shall not merge, but shall remain separate and distinct,
notwithstanding the union of such estates either in Mortgagor, Mortgagee, any
lessee or any third party by purchase or otherwise.
46. Waiver of Right to Trial by Jury. EACH OF MORTGAGOR AND MORTGAGEE
HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS MORTGAGE OR THE OTHER
LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY EACH OF MORTGAGOR AND MORTGAGEE, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. MORTGAGEE IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
MORTGAGOR.
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47. Expenses and Attorneys' Fees. Mortgagor agrees to promptly pay all
reasonable fees, costs and expenses incurred by Mortgagee in connection with any
matters contemplated by or arising out of this Mortgage and the other Loan
Documents, including, without limitation, reasonable fees, costs and expenses
(including reasonable attorneys' fees and fees of other professionals retained
by Mortgagee) incurred in any action to enforce this Mortgage or the other Loan
Documents or to collect any payments due from Mortgagor under this Mortgage, the
Note or any other Loan Document or incurred in connection with any refinancing
or restructuring of the credit arrangements provided under this Mortgage
incurred in connection with a "workout" or in connection with any insolvency or
bankruptcy proceedings with respect to Mortgagor, and all such fees, costs and
expenses shall be part of the Obligations, payable on demand.
48. Amendments and Waivers. Except as otherwise provided herein, no
amendment, modification, termination or waiver of any provision of this
Mortgage, the Note or any other Loan Document, or consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Mortgagee and any other party to be charged. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on Mortgagor in any case shall entitle Mortgagor to any other or further
notice or demand in similar or other circumstances.
49. Servicer. Mortgagee shall have the right at any time throughout the
term of the Loan to designate or appoint one or more Servicers (as defined in
the Loan Agreement) to administer this Mortgage and the other Loan Documents,
and to change or replace any Servicer. All of Mortgagee's rights under this
Mortgage and the other Loan Documents may be exercised by any such Servicer
designated by Mortgagee. Any such Servicer shall be entitled to the benefit of
all obligations of Mortgagor in favor of Mortgagee.
50. Special State Provisions. This Mortgage is an "OPEN-END MORTGAGE"
as set forth in 42 Pa. C.S.A. ss. 8143, and this Mortgage is given to secure
Mortgagor's obligations under, or in respect of, the Loan Documents, up to
$44,000,000, and shall secure not only obligations with respect to presently
existing indebtedness under the foregoing documents and agreements, but also any
and all other indebtedness now owing or which may hereafter be owing by
Mortgagor to Mortgagee, however incurred, whether interest, discount or
otherwise, and whether the same shall be deferred, accrued or capitalized,
including future advances and re-advances, pursuant to this Mortgage and the
other Loan Documents, advances for the payment of taxes and assessments and
municipal claims, maintenance charges, insurance premiums, costs incurred for
the protection of the Mortgaged Property or the lien of this Mortgage, expenses
incurred by Mortgagee by reason of default by Mortgagor under this Mortgage, or
for any other permissible purpose, whether such advances are obligatory or to be
made at the option of Mortgagee, or otherwise, to the same extent as if such
future advances were made on the date of the execution of this Mortgage. The
lien of this Mortgage shall be valid as to all indebtedness secured hereby,
including future advances, from the time of its filing for record in the
recorder's office of the county in which the Mortgaged Property is located; and
the lien of all present and future advances shall relate back to the date of
this Mortgage. This Mortgage is intended to and shall be valid and have priority
over all subsequent liens and encumbrances, including statutory
25
liens, excepting solely taxes and assessments levied on the real estate, to the
extent of the maximum amount secured hereby, and Permitted Encumbrances existing
on the date hereof.
All notices to be given to Mortgagee pursuant to 42 Pa. C.S.A.ss.8143
shall be given as set forth in Section 24 of this Mortgage.
51. Limitation on Recourse. The obligations of Mortgagor hereunder are
subject to limitations on recourse as provided in Article XII of the Loan
Agreement.
52. Satisfaction of Mortgage. Upon payment of the Debt in full,
Mortgagee, at Mortgagor's sole cost and upon Mortgagor's request, shall execute
and deliver to Mortgagor a satisfaction or reconveyance of Mortgage, duly
acknowledged and in recordable form, UCC-3 financing statements terminating any
UCC-1 financing statements filed by Mortgagee relating to the Mortgaged
Property, and such other documents or instruments as may be required to release
the Lien of the Loan Documents from the Mortgaged Property.
53. Ground Lease.
(a) As used herein, the term "Ground Lease" shall mean that
certain Ground Lease dated as of December __, 2000 between HUB Properties Trust,
a Maryland real estate investment trust, as ground lessor (the "Ground Lessor"),
and Mortgagor, as the ground lessee, which relates to the Premises and the
Improvements and any modifications, amendments, extensions, renewals and
restatements thereof that hereafter may be executed and approved in writing in
advance by Mortgagee.
(b) Representations and Warranties Regarding Ground Lease.
Mortgagor represents and warrants in favor of Mortgagee as follows:
(i) The Ground Lease contains the entire agreement of Ground
Lessor and Mortgagor pertaining to the Mortgaged Property. Mortgagor has no
estate, right, or interest in or to the Mortgaged Property except under and
pursuant to the Ground Lease. No modifications or amendments have occurred to
the Ground Lease, and no such modifications or amendments are contemplated.
Ground Lessor and Mortgagor have no agreements pertaining to any real property
or improvements other than the agreements set forth in the Ground Lease.
(ii) To the knowledge of Mortgagor, Ground Lessor is the
exclusive fee simple owner of the Mortgaged Property, subject only to the Ground
Lease and the Permitted Encumbrances, and Ground Lessor is the sole owner of the
lessor's interest in the Ground Lease.
(iii) The Ground Lease is in full force and effect. All
conditions and contingencies to the effectiveness of the Ground Lease and the
commencement of the regular term thereof (the "Ground Lease Term") have been
satisfied. The Ground Lease Term has commenced, is in effect, and is scheduled
to expire on October 31, 2030. There are no options to extend the Ground Lease
Term except for two (2) options to extend the Term each for a period of 29
years, 11 months. There are no rights to terminate the Ground Lease other than
Ground Lessor's right to terminate by reason of default or condemnation, in each
case as expressly set
26
forth in the Ground Lease. Mortgagor has no right to purchase any interest in
the Mortgaged Property.
(iv) No breach or default or event that with the giving of
notice or passage of time would constitute a breach or default of or under the
Ground Lease (a "Ground Lease Default") exists or has occurred (A) as to
Mortgagor's obligations under the Ground Lease, nor (B) to Mortgagor's
knowledge, as to Ground Lessor's obligations under the Ground Lease. Mortgagor
has not received any notice, communication, or information that a Ground Lease
Default has occurred or exists, or that Ground Lessor or any third party alleges
the same to have occurred or exist.
(v) Mortgagor is the exclusive owner of the lessee's interest
under and pursuant to the Ground Lease. Mortgagor has not assigned, transferred,
or encumbered its interest in, to, or under the Ground Lease, except in favor of
Mortgagee pursuant to this Mortgage and the other Loan Documents, and also
except for subleases as to which Mortgagor is the sublessor.
(c) Grant of After-Acquired Interest. As security for all
obligations secured by this Mortgage, Mortgagor hereby irrevocably grants,
conveys, transfers and assigns to Mortgagee, with power of sale and right of
entry and possession, all right, title, and interest in and to the Mortgaged
Property that may hereafter be acquired by Mortgagor. Without limitation of the
foregoing, if Mortgagor should acquire the fee estate in the Mortgaged Property
or in any land or improvements comprising the same, or should acquire any
interest or estate in the Mortgaged Property or any component thereof that
Mortgagor does not presently hold, then this Mortgage shall encumber and
constitute a lien upon any and all of such interest or estate, without further
act or instrument by Mortgagor or any third party. Mortgagor immediately shall
notify Mortgagee of any such acquisition. Upon request of Mortgagee and without
cost or expense to Mortgagee, Mortgagor will execute, acknowledge and deliver
all such further instruments and assurances as Mortgagee shall reasonably
require to ratify, confirm, or perfect Mortgagee's lien on any right, title,
interest or estate in or to the Mortgaged Property acquired at any time
hereafter.
(d) Non-Merger. No merger shall occur by reason of any
acquisition by Mortgagor of any additional right, title, interest or estate in
or to the Mortgaged Property or any component thereof. Without limitation of the
foregoing, unless Mortgagee shall otherwise expressly consent in writing, which
consent may be withheld by Mortgagee in its sole and absolute discretion, the
leasehold estate under the Ground Lease and any other interest or estate in the
Mortgaged Property shall not merge but shall always remain separate and
distinct, notwithstanding any common ownership of the leasehold estate and any
other interest or estate.
(e) No Modification. Mortgagor shall not cause, join in, or
suffer to occur any actual or purported modification, amendment, surrender, or
termination of the Ground Lease, and Mortgagor shall have no right or power to
modify, amend, terminate, or surrender the Ground Lease, in each case without
the prior written consent of Mortgagee, which consent may be withheld by
Mortgagee in its sole and absolute discretion. Any attempted or purported
27
modification, amendment, surrender or termination of the Ground Lease without
Mortgagee's prior written consent shall be null and void and of no force or
effect.
(f) Performance of Ground Lease. Mortgagor shall fully perform as
and when due each and all of its obligations under the Ground Lease in
accordance with the terms of the Ground Lease, and shall not cause or suffer to
occur any breach or default in any of such obligations. Mortgagor shall keep and
maintain the Ground Lease in full force and effect. If Mortgagor shall receive
forbearance from Ground Lessor or otherwise shall be excused from full and
timely performance of any of its obligations under the Ground Lease, the same
shall not postpone, excuse, diminish, or otherwise affect the obligations of
Mortgagor under this Section 53. Mortgagor shall exercise any option to renew or
extend the Ground Lease and give written confirmation thereof to Lender within
thirty (30) days after such option becomes exercisable.
Notwithstanding that certain of Mortgagor's obligations under
this Mortgage may be similar or identical to certain of Mortgagor's obligations
under the Ground Lease, all of Mortgagor's obligations under this Mortgage are
and shall be separate from and in addition to its obligations under the Ground
Lease.
If Mortgagor shall have or receive notice or information that
compliance with any of Mortgagor's obligations under either this Mortgage or the
Ground Lease may constitute or give rise to a breach or default under the other
of them, then Mortgagor immediately shall notify Mortgagee in writing of the
same. If Mortgagee shall have or receive any such notice or information, then
Mortgagee may (but shall not be obligated to) give written instructions to
Mortgagor, in which case Mortgagor shall comply with such instructions.
(g) Notice of Default. If Mortgagor shall have or receive any
notice or information that any Ground Lease Default has occurred, then Mortgagor
immediately shall notify Mortgagee in writing of the same and immediately shall
deliver to Mortgagee a true and complete copy of each such notice. Further,
Mortgagor immediately shall provide such documents and information as Mortgagee
shall request concerning the Ground Lease Default.
(h) Mortgagee's Right to Cure. If any Ground Lease Default shall
occur, or if Mortgagee reasonably believes that a Ground Lease Default has
occurred, or if Ground Lessor asserts that a Ground Lease Default has occurred
(whether or not Mortgagor questions or denies such assertion), then Mortgagee
may (but shall not be obligated to) take any action that Mortgagee deems
necessary or desirable, including, without limitation, (i) performance or
attempted performance of any of Mortgagor's obligations under the Ground Lease,
(ii) curing or attempting to cure any actual or purported Ground Lease Default,
(iii) mitigating or attempting to mitigate any damages or consequences of the
same, and (iv) entry upon the Mortgaged Property for any or all of such
purposes. Upon Mortgagee's request, Mortgagor shall submit satisfactory evidence
of payment or performance of any of its obligations under the Ground Lease.
Mortgagee may pay and expend such sums of money as Mortgagee in its sole
discretion deems necessary or desirable for any such purpose, and Mortgagor
shall pay to Mortgagee immediately upon demand all such sums so paid or expended
by Mortgagee, together with interest thereon from the date of expenditure at the
Default Rate (as defined in the Note).
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(i) Intentionally Omitted.
(j) Acquisition of New Interests. If the Ground Lease shall be
rejected, canceled, or terminated, and if Mortgagee or its nominee thereafter or
in connection therewith shall acquire any right, title, interest or estate in or
to the Mortgaged Property (which may include without limitation any new lease of
the Mortgaged Property) then Mortgagor shall have no right, title, interest or
estate in or to such new lease, or the leasehold estate created by such new
lease, or any other interest of Mortgagee or its nominee in the Mortgaged
Property.
(k) Legal Action. Mortgagor shall not commence any action or
proceeding against Ground Lessor or affecting or potentially affecting the
Ground Lease or Mortgagor's or Mortgagee's interest therein without the prior
written consent of Mortgagee, which Mortgagee may withhold in its sole and
absolute discretion. Mortgagor shall notify Mortgagee immediately if any action
or proceeding shall be commenced between Ground Lessor and Mortgagor, or
affecting or potentially affecting the Ground Lease or Mortgagor's or
Mortgagee's interest therein (including, without limitation, any case commenced
by or against Ground Lessor under the Bankruptcy Code). Mortgagee shall have the
option, exercisable upon notice from Mortgagee to Mortgagor, to conduct and
control any such action or proceeding with counsel of Mortgagee's choice.
Mortgagee may proceed in its own name or in the name of Mortgagor in such action
or proceeding, and Mortgagor shall cooperate with Mortgagee, comply with the
instructions of Mortgagee (which may include withdrawal or exclusion of
Mortgagor from such action or proceeding), and execute any and all powers,
authorizations, consents or other documents reasonably required by Mortgagee in
connection therewith.
(l) Estoppel Certificate. Mortgagor shall obtain and deliver to
Mortgagee within twenty (20) days after written request by Mortgagee, an
estoppel certificate from Ground Lessor setting forth (i) the identities of the
original lessor and lessee under the Ground Lease and each of their respective
successors, (ii) that the Ground Lease has not been modified or, if it has been
modified, the date of each modification (together with copies of each such
modification), (iii) the rent payable under the Ground Lease, (iv) the dates to
which all rent and other charges have been paid, (v) whether there are any
alleged Ground Lease Defaults and, if so, setting forth the nature thereof in
reasonable detail, and (vi) such other matters as Mortgagee may reasonably
request.
(m) No Assignment. Notwithstanding anything to the contrary
contained herein, this Mortgage shall not constitute an assignment of the Ground
Lease, and Mortgagee shall have no liability or obligation thereunder by reason
of its acceptance of this Mortgage.
(n) Bankruptcy.
(i) If Ground Lessor shall reject the Ground Lease
under or pursuant to Section 365 of Title 11 of the Bankruptcy
Code, Mortgagor shall not elect to treat the Ground Lease as
terminated but shall elect to remain in possession of the
Mortgaged Property and the leasehold estate under the Ground
Lease. The lien of this Mortgage does and shall encumber and
attach to all of Mortgagor's rights and remedies at any time
arising under or pursuant to Section 365 of the Bankruptcy
29
Code, including without limitation, all of Mortgagor's rights
to remain in possession of the Mortgaged Property and the
leasehold estate.
(ii) Mortgagor acknowledges and agrees that in any
case commenced by or against Mortgagor under the Bankruptcy
Code, Mortgagee by reason of the liens and rights granted
under this Mortgage and the Loan Documents shall have a
substantial and material interest in the treatment and
preservation of Mortgagor's rights and obligations under the
Ground Lease, and that Mortgagor shall, in any such bankruptcy
case, provide to Mortgagee immediate and continuous adequate
protection of such interests. Mortgagor and Mortgagee agree
that such adequate protection shall include but shall not
necessarily be limited to the following:
A. Mortgagee shall be deemed a party to the
Ground Lease (but shall not have any obligations thereunder)
for purposes of Section 365 of the Bankruptcy Code, and shall
have standing to appear and act as a party in interest in
relation to any matter arising out of or related to the Ground
Lease or the Mortgaged Property.
B. Mortgagor shall serve Mortgagee with
copies of all notices, pleadings and other documents relating
to or affecting the Ground Lease or the Mortgaged Property.
Any notice, pleading or document served by Mortgagor on any
other party in the bankruptcy case shall be contemporaneously
served by Mortgagor on Mortgagee, and any notice, pleading or
document served upon or received by Mortgagor from any other
party in the bankruptcy case shall be served by Mortgagor on
Mortgagee immediately upon receipt by Mortgagor.
C. Upon written request of Mortgagee,
Mortgagor shall assume the Ground Lease, and shall take such
steps as are necessary to preserve Mortgagor's right to assume
the Ground Lease, including without limitation obtaining
extensions of time to assume or reject the Ground Lease under
Subsection 365(d) of the Bankruptcy Code to the extent it is
applicable.
D. If Mortgagor or Ground Lessor seeks to
reject the Ground Lease or have the Ground Lease deemed
rejected, then prior to the hearing on such rejection
Mortgagee shall be given no less than twenty (20) days' notice
and opportunity to elect in lieu of rejection to have the
Ground Lease assumed and assigned to a nominee of Mortgagee.
If Mortgagee shall so elect to assume and assign the Ground
Lease, then Mortgagor shall continue any request to reject the
Ground Lease until after the motion to assume and assign has
been heard. If Mortgagee shall not elect to assume and assign
the Ground Lease, then Mortgagee may obtain in connection with
the rejection of the Ground Lease a determination that Ground
Lessor, at Mortgagee's option, shall (1) agree to terminate
the Ground Lease and enter into a new lease with Mortgagee on
the same terms and conditions as the Ground Lease, for the
remaining term of the Ground Lease, or (2) treat the Ground
Lease as breached and provide Mortgagee with the rights to
30
cure defaults under the Ground Lease and to assume the rights
and benefits of the Ground Lease.
Mortgagor shall join with and support any request by Mortgagee
to grant and approve the foregoing as necessary for adequate protection of
Mortgagee's interests. Notwithstanding the foregoing, Mortgagee may seek
additional terms and conditions, including such economic and monetary
protections as it deems appropriate to adequately protect its interests, and any
request for such additional terms or conditions shall not delay or limit
Mortgagee's right to receive the specific elements of adequate protection set
forth herein.
Mortgagor hereby appoints Mortgagee as its attorney in fact to
act on behalf of Mortgagor in connection with all matters relating to or arising
out of the assumption or rejection of the Ground Lease, in which the other party
to the lease is a debtor in a case under the Bankruptcy Code. This grant of
power of attorney is present, unconditional, irrevocable, durable and coupled
with an interest.
Where reference is made to any code section or other law, the same
shall include any successor statute or provisions of law to the same or
substantially the same effect.
(o) Predecessors, Successors. Where reference herein is made to
the rights or obligations of Mortgagor or Ground Lessor under the Ground Lease,
the same shall include the rights and obligations of their successors and
assigns.
54. Non-liability of Trustees. The Declaration of Trust of Mortgagor, a
copy of which is duly filed with the Department of Assessments and Taxation of
the State of Maryland, provides that the name of Mortgagor refers to the
trustees under such Declaration of Trust collectively as trustees, but not
individually or personally, and that no trustee, officer, shareholder, employee
or agent of Mortgagor shall be held to any personal liability, jointly or
severally, for any obligation of, or claim against, Mortgagor. Except as
otherwise expressly provided in the Loan Agreement, all persons dealing with
Mortgagor in any way shall look only to the assets of Mortgagor for the payment
of any sum or the performance of any obligation hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, and intending to be legally bound, Mortgagor has
executed this instrument as of the day and year first above written.
WITNESS: MORTGAGOR:
---------
FRANKLIN PLAZA PROPERTY TRUST
a Maryland real estate investment trust
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
CERTIFICATION OF MORTGAGEE'S ADDRESS:
The undersigned certifies that a current business address of Mortgagee as of the
date of this Mortgage is:
c/o Merrill Xxxxx & Co.
000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXX XXXXX MORTGAGE LENDING, INC.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
STATE OF NEW YORK )
SS
COUNTY OF NEW YORK )
On this, the 14th day of December, 2000, before me, a notary public the
undersigned officer, personally appeared Xxxx X. Xxxxxx who acknowledged
himself/herself to be the President of Franklin Plaza Property Trust, a Maryland
real estate investment trust, and that he/she as such officer being authorized
to do so, executed the foregoing instrument for the purposes therein contained
by signing the name of such real estate investment trust by himself/herself in
such capacity.
In Witness Whereof, I hereunto set my hand and official seal.
/s/ Xxxx Xxxxxxxx
Notary Public
My Commission Expires: June 5, 2001
Omitted Exhibits
The following exhibit to the Open-End Leasehold Mortgage, Assignemnt of
Leases and Rents, Security Agreement and Fixture Filing has been omitted:
Exhibit Letter Exhibit Title
A Premises
The Registrant agrees to furnish supplementally a copy of the foregoing
omitted exhibit to the Securities and Exchange Commission upon request.
