EXHIBIT 10.45
MORTGAGE, ASSIGNMENT AND SECURITY AGREEMENT
FOR THE BANK OF AMERICA LOAN
This Instrument Prepared by and
After Recording Please Return to:
A. Xxxxxxxx Xxxxxx, Esquire
Xxxxxxxx Xxxxxxx LLP
Bank of America Plaza, Suite 5200
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
PIN No. 0304101012
MORTGAGE, ASSIGNMENT
AND SECURITY AGREEMENT
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THIS MORTGAGE, ASSIGNMENT AND SECURITY AGREEMENT (this "Mortgage") dated as
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of February 24, 2000, is executed and delivered by Mortgagor for good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged by Mortgagee.
ARTICLE 1 - Certain Definitions; Granting Clauses; Secured Indebtedness
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Section 1.1. Principal Secured. This Mortgage secures the aggregate
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principal amount of TWENTY SIX MILLION SEVEN HUNDRED TWENTY FIVE THOUSAND AND
NO/100 DOLLARS ($26,725,000.00). The maximum aggregate principal amount which
may be outstanding at any time under the Amended and Restated Revolving Credit
Note and the Promissory Note is $26,725,000.00.
Section 1.2. Certain Definitions and Reference Terms. In addition to
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other terms defined herein, each of the following terms shall have the meaning
assigned to it:
"Amended and Restated Revolving Credit Note": Amended and Restated
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Revolving Credit Note dated of even date herewith, made by Mortgagor payable to
the order of Mortgagee in the principal face amount of TWENTY SIX MILLION SEVEN
HUNDRED TWENTY FIVE THOUSAND AND NO/100 DOLLARS ($26,725,000.00), bearing
interest as therein provided,
PAGE 1
containing a provision for, among other things, the payment of attorneys' fees,
and with the full debt, if not paid earlier, due and payable on November 23,
2000.
"Major Lease": That certain Amended and Restated Lease Agreement dated May
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31, 1991, by Chicago Industrial 1990 II Limited Partnership, as landlord
("Original Landlord"), and A.B. Dick Company, as tenant ("Original Tenant"), as
amended by (i) that certain undated Lease Clarification Agreement by and between
Original Landlord and Original Tenant, (ii) letter dated August 9, 1991 from Sun
Life Insurance Company of America, for Original Landlord, as accepted by letter
dated August 21, 1991 from Original Tenant to Sun Life Insurance Company of
America, and (iii) Second Amendment to Lease dated as of June 30, 1994 by and
between Sun-Pla, a California limited partnership, as successor to Original
Landlord and Original Tenant, Original Tenant's interest having been assigned to
Videojet Systems International, Inc. ("Videojet") by Assignment and Assumption
Agreement dated as of October 31, 1997 by and among Sun-Pla, a California
limited partnership ("Landlord"), Original Tenant and Videojet.
"Mortgagee": Bank of America, N.A., a national banking association, whose
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place of business is 000 Xxxxxxxxx Xxxxxx, X.X., 0xx Xxxxx, Xxxxxxx, Xxxxxxx,
00000, its successors and assigns.
"Mortgagor": Xxxxx Operating Partnership, L.P., a Delaware limited
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partnership, whose address is 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxx 00000, and its permitted successors and assigns.
"Promissory Note": Promissory Note dated as of February 4, 1999, in the
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face amount of SIX MILLION FOUR HUNDRED TWENTY-FIVE THOUSAND AND NO/100 DOLLARS
($6,425,000.00) with interest thereon.
Section 1.3. Property. Mortgagor does hereby MORTGAGE, GRANT, and CONVEY,
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to Mortgagee the following: (a) the real estate (herein called the "Land")
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described in Exhibit A which is attached hereto and incorporated herein by
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reference and which Land has the address of 0000 Xxxxxx Xxxxxxxxx in the
Chancellery Business Park, Wood Dale, Illinois, and (i) all improvements now or
hereafter situated or to be situated on the Land (herein together called the
"Improvements"); and (ii) all right, title and interest of Mortgagor, now owned
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or hereafter acquired, in and to (1) all streets, roads, alleys, easements,
rights-of-way, licenses, rights of ingress and egress, vehicle parking rights
and public places, existing or proposed, abutting, adjacent, used in connection
with or pertaining to the Land or the Improvements; (2) any strips or gores
between the Land and abutting or adjacent properties; (3) all options to
purchase or lease the Land or the Improvements or any portion thereof or
interest therein, and any greater estate in the Land or the Improvements; (4)
all claims, actions and causes of action, both in law and in equity, with
respect to the Property or the Improvements; and (5) all water and water rights,
timber, crops and mineral interests on or pertaining to the Land (the Land,
Improvements and other rights, titles and interests referred to in this clause
(a) being herein sometimes collectively called the "Premises"); (b) all
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fixtures, equipment, systems, machinery, furniture, furnishings, appliances,
inventory, goods, building and construction materials, supplies, and articles of
personal property, of every kind and character, now owned or hereafter acquired
by Mortgagor, which are now or hereafter attached to or situated in, on or about
the Land or the Improvements, or used in or necessary to the complete and proper
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planning, development, use, occupancy or operation thereof, or acquired (whether
delivered to the Land or stored elsewhere) for use or installation in or on the
Land or the Improvements, and all renewals and replacements of, substitutions
for and additions to the foregoing (the properties referred to in this clause
(b) being herein sometimes collectively called the "Accessories," all of which
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are hereby declared to be permanent accessions to the Land); (c) all (i) plans
and specifications for the Improvements; (ii) Mortgagor's rights, but not
liability for any breach by Mortgagor, under all commitments (including any
commitment for financing to pay any of the secured indebtedness, as defined
below), insurance policies, contracts and agreements for the design,
construction, operation or inspection of the Improvements and other contracts
and general intangibles (including but not limited to trademarks, trade names,
goodwill and symbols) related to the Premises or the Accessories or the
operation thereof; (iii) deposits (including but not limited to Mortgagor's
rights in tenants' security deposits, deposits with respect to utility services
to the Premises, and any deposits or reserves hereunder or under any other Loan
Document for taxes, insurance or otherwise), rebates or refunds of impact fees
or other taxes, assessments or charges, money, accounts, instruments, documents,
notes and chattel paper arising from or by virtue of any transactions related to
the Premises or the Accessories; (iv) permits, licenses, franchises,
certificates, development rights, commitments and rights for utilities, and
other rights and privileges obtained in connection with the Premises or the
Accessories; (v) leases, rents, royalties, bonuses, issues, profits, revenues
and other benefits of the Premises and the Accessories (without derogation of
Article 3 hereof); (vi) oil, gas and other hydrocarbons and other minerals
produced from or allocated to the Land and all products processed or obtained
therefrom, and the proceeds thereof; and (vii) engineering, accounting, title,
legal, and other technical or business data concerning the Premises which are in
the possession of Mortgagor or in which Mortgagor can otherwise grant a security
interest; and (d) all (i) proceeds (cash or non-cash) of or arising from the
properties, rights, titles and interests referred to above in this Section 1.3,
including but not limited to proceeds of any sale, lease or other disposition
thereof, proceeds of each policy of insurance relating thereto (including
premium refunds), proceeds of the taking thereof or of any rights appurtenant
thereto, including change of grade of streets, curb cuts or other rights of
access, by condemnation, eminent domain or transfer in lieu thereof for public
or quasi-public use under any law, and proceeds arising out of any damage
thereto; and (ii) other interests of every kind and character which Mortgagor
now has or hereafter acquires in, to or for the benefit of the properties,
rights, titles and interests referred to above in this Section 1.3 and all
property used or useful in connection therewith, including but not limited to
rights of ingress and egress and remainders, reversions and reversionary rights
or interests; and if the estate of Mortgagor in any of the property referred to
above in this Section 1.3 is a leasehold estate, this conveyance shall include,
and the lien and interest created hereby shall encumber and extend to, all other
or additional title, estates, interests or rights which are now owned or may
hereafter be acquired by Mortgagor in or to the property demised under the lease
creating the leasehold estate; TO HAVE AND TO HOLD the foregoing rights,
interests and properties, and all rights, estates, powers and privileges
appurtenant thereto (herein collectively called the "Property"), unto Mortgagee,
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and its successors and assigns, forever, subject to the Permitted Encumbrances
(as hereafter defined), however, upon the terms, provisions and conditions
herein set forth, to secure the Promissory Note and Loan Documents (as
hereinafter defined) and all other indebtedness and matters defined as "secured
indebtedness" in Section 1.5 of this Mortgage.
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Section 1.4. Security Interest. Mortgagor hereby grants to Mortgagee a
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security interest in all of the Property which constitutes personal property or
fixtures (herein sometimes collectively called the "Collateral"). In addition
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to its rights hereunder or otherwise, Mortgagee shall have all of the rights of
a secured party under the Uniform Commercial Code as adopted in the State of
Illinois, or under the Uniform Commercial Code in force in any other state to
the extent the same is applicable law.
Section 1.5. Note, Loan Documents, Other Obligations. This Mortgage is
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made to secure and enforce the payment and performance of the following
promissory notes, obligations, indebtedness and liabilities and all renewals,
extensions, supplements, increases, and modifications thereof in whole or in
part from time to time: (a) the Promissory Note, the Amended and Restated
Revolving Credit Note, and all other notes given in substitution therefor or in
modification, supplement, increase, renewal or extension thereof, in whole or in
part (such note or notes, whether one or more, as from time to time renewed,
extended, supplemented, increased or modified and all other notes given in
substitution therefor, or in modification, renewal or extension thereof, in
whole or in part, being hereinafter called the "Note"); (b) all indebtedness and
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other obligations owed by Mortgagor to Mortgagee now or hereafter incurred or
arising pursuant to or permitted by the provisions of the Note, this Mortgage,
or any other document now or hereafter evidencing, governing, guaranteeing,
securing or otherwise executed in connection with the loan evidenced by the
Note, including but not limited to any tri-party financing agreement or other
agreement between Mortgagor and Mortgagee, or among Mortgagor, Mortgagee and any
other party or parties, pertaining to the repayment or use of the proceeds of
the loan evidenced by the Note (the Note, this Mortgage and such other
documents, as they or any of them may have been or may be from time to time
renewed, extended, supplemented, increased or modified, being herein sometimes
collectively called the "Loan Documents"); and (c) all other loans and future
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advances made by Mortgagee to Mortgagor and all other debts, obligations and
liabilities of Mortgagor of every kind and character now or hereafter existing
in favor of Mortgagee, however and whenever incurred, whether direct or
indirect, primary or secondary, joint or several, fixed or contingent, secured
or unsecured, and whether originally payable to Mortgagee or to a third party
and subsequently acquired by Mortgagee, it being contemplated that Mortgagor may
hereafter become indebted to Mortgagee for such further debts, obligations and
liabilities; provided, however, and notwithstanding the foregoing provisions of
this clause (c), this Mortgage shall not secure any such other loan, advance,
debt, obligation or liability with respect to which Mortgagee is by applicable
law prohibited from obtaining a lien or security title on real estate nor shall
this clause (c) operate or be effective to constitute or require any assumption
or payment by any person, in any way, of any debt of any other person to the
extent that the same would violate or exceed the limit provided in any
applicable usury or other law. The indebtedness referred to in this Section 1.5
is hereinafter sometimes referred to as the "secured indebtedness" or the
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"indebtedness secured hereby." The maximum aggregate amount of the indebtedness
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secured hereby shall not exceed Twenty Six Million Seven Hundred Twenty Five
Thousand Dollars ($26,725,000.00).
ARTICLE 2 - Representations, Warranties and Covenants
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Section 2.1. Mortgagor represents, warrants, and covenants as follows:
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(a) Payment and Performance. Mortgagor will make due and punctual payment
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of the secured indebtedness. Mortgagor will timely and properly perform and
comply with all of the covenants, agreements, and conditions imposed upon it by
this Mortgage and the other Loan Documents and will not permit a default to
occur hereunder or thereunder. Time shall be of the essence in this Mortgage.
(b) Title and Permitted Encumbrances. Mortgagor has, in Mortgagor's own
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right, and Mortgagor covenants to maintain, lawful, good and marketable title to
the Property, is lawfully seized and possessed of the Property and every part
thereof, and has the right to convey the same, free and clear of all liens,
charges, claims, interests, and encumbrances except for (i) the matters, if any,
set forth under the heading "Permitted Exceptions" in Exhibit B hereto, which
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are Permitted Exceptions only to the extent the same are valid and subsisting
and affect the Property, (ii) the liens and security interests evidenced by this
Mortgage, and (iii) other liens and security interests (if any) in favor of
Mortgagee (the matters described in the foregoing clauses (i), (ii) and (iii)
being herein called the "Permitted Encumbrances"). Mortgagor, and Mortgagor's
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successors and assigns, will warrant generally and forever defend title to the
Property, subject as aforesaid, to Mortgagee and its successors and assigns,
against the claims and demands of all persons claiming or to claim the same or
any part thereof. Mortgagor will punctually pay, perform, observe and keep all
covenants, obligations and conditions in or pursuant to any Permitted
Encumbrance and will not modify or permit modification of any Permitted
Encumbrance without the prior written consent of Mortgagee. Inclusion of any
matter as a Permitted Encumbrance does not constitute approval or waiver by
Mortgagee of any existing or future violation or other breach thereof by
Mortgagor, by the Property or otherwise. If any right or interest of Mortgagee
in the Property or any part thereof shall be endangered or questioned or shall
be attacked directly or indirectly, Mortgagee (whether or not named as a party
to legal proceedings with respect thereto) is hereby authorized and empowered to
take such steps as in its discretion may be proper for the defense of any such
legal proceedings or the protection of such right or interest of Mortgagee,
including but not limited to the employment of independent counsel, the
prosecution or defense of litigation, and the compromise or discharge of adverse
claims. All expenditures so made of every kind and character shall be a demand
obligation (which obligation Mortgagor hereby promises to pay) owing by
Mortgagor to Mortgagee, and Mortgagee shall be subrogated to all rights of the
person receiving such payment.
(c) Taxes and Other Impositions. To the extent that Mortgagor has not
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deposited sufficient amounts with Mortgagee pursuant to Subsection 2.1(e) of
this Mortgage, Mortgagor will pay, or cause to be paid, all taxes, assessments
and other charges or levies imposed upon or against or with respect to the
Property or the ownership, use, occupancy or enjoyment of any portion thereof,
or any utility service thereto, as the same become due and payable, including
but not limited to all ad valorem taxes assessed against the Property or any
part thereof, and shall deliver promptly to Mortgagee such evidence of the
payment thereof as Mortgagee may require.
(d) Insurance. Mortgagor shall obtain and maintain or cause to be
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obtained and maintained at Mortgagor's sole expense: (1) mortgagee title
insurance issued to Mortgagee covering the Premises as required by Mortgagee,
without exception for mechanics' liens; (2) all-risk insurance with respect to
all insurable Property, against loss or damage by fire, lightning, windstorm,
explosion, hail, tornado and such hazards as are presently included in so-called
"all-risk" coverage and against such other insurable hazards as Mortgagee may
require, in an amount not less than
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100% of the full replacement cost, including the cost of debris removal, without
deduction for depreciation and sufficient to prevent Mortgagor and Mortgagee
from becoming a coinsurer, such insurance to be in builder's risk (non-
reporting) form during and with respect to any construction on the Premises; (3)
if and to the extent any portion of the Improvements is in a special flood
hazard area, a flood insurance policy in an amount equal to the lesser of the
principal face amount of the Note or the maximum amount available; (4)
comprehensive general public liability insurance, on an "occurrence" basis, for
the benefit of Mortgagor and Mortgagee as named insureds; (5) statutory workers'
compensation insurance with respect to any work on or about the Premises; and
(6) such other insurance on the Property as may from time to time be required by
Mortgagee (including but not limited to rental loss or business interruption
insurance, boiler and machinery insurance and earthquake insurance) and against
other insurable hazards or casualties which at the time are commonly insured
against in the case of premises similarly situated, due regard being given to
the height, type, construction, location, use and occupancy of buildings and
improvements. All insurance policies shall be issued and maintained by insurers,
in amounts, with deductibles, and in form satisfactory to Mortgagee, and shall
require not less than thirty (30) days' prior written notice to Mortgagee of any
cancellation or change of coverage. All insurance policies maintained, or caused
to be maintained, by Mortgagor with respect to the Property, except for public
liability insurance, shall provide that each such policy shall be primary
without right of contribution from any other insurance that may be carried by
Mortgagor or Mortgagee and that all of the provisions thereof, except the limits
of liability, shall operate in the same manner as if there were a separate
policy covering each insured. If any insurer which has issued a policy of title,
hazard, liability or other insurance required pursuant to this Mortgage or any
other Loan Document becomes insolvent or the subject of any bankruptcy,
receivership or similar proceeding or if in Mortgagee's reasonable opinion the
financial responsibility of such insurer is or becomes inadequate, Mortgagor
shall, in each instance promptly upon the request of Mortgagee and at
Mortgagor's expense, obtain and deliver to Mortgagee a like policy (or, if and
to the extent permitted by Mortgagee, a certificate of insurance) issued by
another insurer, which insurer and policy meet the requirements of this Mortgage
or such other Loan Document, as the case may be. Without limiting the discretion
of Mortgagee with respect to required endorsements to insurance policies, all
such policies for loss of or damage to the Property shall contain a standard
mortgagee clause (without contribution) naming Mortgagee as mortgagee with loss
proceeds payable to Mortgagee notwithstanding (i) any act, failure to act or
negligence of or violation of any warranty, declaration or condition contained
in any such policy by any named insured; (ii) the occupation or use of the
Property for purposes more hazardous than permitted by the terms of any such
policy; (iii) any foreclosure or other action by Mortgagee under the Loan
Documents; or (iv) any change in title to or ownership of the Property or any
portion thereof, such proceeds to be held for application as provided in the
Loan Documents. The originals of each initial insurance policy (or to the extent
permitted by Mortgagee, a copy of the original policy and a satisfactory
certificate of insurance) shall be delivered to Mortgagee at the time of
execution of this Mortgage, with premiums fully paid, and each renewal or
substitute policy (or certificate) shall be delivered to Mortgagee, with
premiums fully paid as due, at least ten (10) days before the termination of the
policy it renews or replaces. Notwithstanding the foregoing, the failure to
comply with any of the foregoing requirements with respect to workers'
compensation insurance shall not be a default or Event of Default hereunder so
long as Mortgagor maintains such workers' compensation insurance as shall be
required by law. Mortgagor shall pay all premiums on policies required hereunder
as they become due and payable and promptly deliver to Mortgagee evidence
satisfactory to Mortgagee of the timely payment thereof. If any loss occurs at
any time
PAGE 6
when Mortgagor has failed to perform Mortgagor's covenants and agreements in
this paragraph, Mortgagee shall nevertheless be entitled to the benefit of all
insurance covering the loss and held by or for Mortgagor, to the same extent as
if it had been made payable to Mortgagee. Upon any foreclosure hereof or
transfer of title to the Property in extinguishment of the whole or any part of
the secured indebtedness, all of Mortgagor's right, title and interest in and to
the insurance policies referred to in this Section (including unearned premiums)
and all proceeds payable thereunder shall thereupon vest in the purchaser at
foreclosure or other such transferee, to the extent permissible under such
policies. Mortgagee shall have the right (but not the obligation) to make proof
of loss for, settle and adjust any claim under, and receive the proceeds of, all
insurance for loss of or damage to the Property, and the expenses incurred by
Mortgagee in the adjustment and collection of insurance proceeds shall be a part
of the secured indebtedness and shall be due and payable to Mortgagee on demand.
Mortgagee shall not be, under any circumstances, liable or responsible for
failure to collect or exercise diligence in the collection of any of such
proceeds or for the obtaining, maintaining or adequacy of any insurance or for
failure to see to the proper application of any amount paid over to Mortgagor.
Any such proceeds received by Mortgagee shall, after deduction therefrom of all
reasonable expenses actually incurred by Mortgagee, including attorneys' fees,
at Mortgagee's option, subject to the terms of Subsection 2.1(g), below, be (1)
released to Mortgagor, or (2) applied (upon compliance with such terms and
conditions as may be required by Mortgagee) to repair or restoration, either
partly or entirely, of the Property so damaged, or (3) applied to the payment of
the secured indebtedness in such order and manner as Mortgagee, in its sole
discretion, may elect, whether or not due. In any event, the unpaid portion of
the secured indebtedness shall remain in full force and effect and the payment
thereof shall not be excused. Mortgagor shall at all times comply with the
requirements of the insurance policies required hereunder and of the issuers of
such policies and of any board of fire underwriters or similar body as
applicable to or affecting the Property.
(e) Reserve for Insurance, Taxes and Assessments. Upon request of
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Mortgagee, to secure certain of Mortgagor's obligations in paragraphs (c) and
(d) above, but not in lieu of such obligations, Mortgagor will deposit with
Mortgagee a sum equal to ad valorem taxes, assessments and charges (which
charges for the purpose of this paragraph shall include without limitation any
recurring charge which could result in a lien against the Property) against the
Property for the current year and the premiums for such policies of insurance
for the current year, all as estimated by Mortgagee and prorated to the end of
the calendar month following the month during which Mortgagee's request is made,
and thereafter will deposit with Mortgagee, on each date when an installment of
principal and/or interest is due on the Note, sufficient funds (as estimated
from time to time by Mortgagee) to permit Mortgagee to pay at least fifteen (15)
days prior to the due date thereof, the next maturing ad valorem taxes,
assessments and charges and premiums for such policies of insurance. Mortgagee
shall have the right to rely upon tax information furnished by applicable taxing
authorities in the payment of such taxes or assessments and shall have no
obligation to make any protest of any such taxes or assessments. Any excess
over the amounts required for such purposes shall be held by Mortgagee for
future use, applied to any secured indebtedness or refunded to Mortgagor, at
Mortgagee's option, and any deficiency in such funds so deposited shall be made
up by Mortgagor upon demand of Mortgagee. All such funds so deposited shall
bear no interest, may be mingled with the general funds of Mortgagee and shall
be applied by Mortgagee toward the payment of such taxes, assessments, charges
and premiums when statements therefor are presented to Mortgagee by Mortgagor
(which statements shall be presented by
PAGE 7
Mortgagor to Mortgagee a reasonable time before the applicable amount is
delinquent); provided, however, that, if an Event of Default (hereinafter
defined) shall have occurred hereunder, such funds may at Mortgagee's option be
applied to the payment of the secured indebtedness in the order determined by
Mortgagee in its sole discretion, and that Mortgagee may (but shall have no
obligation) at any time, in its discretion, apply all or any part of such funds
toward the payment of any such taxes, assessments, charges or premiums which are
past due, together with any penalties or late charges with respect thereto. The
conveyance or transfer of Mortgagor's interest in the Property for any reason
(including without limitation the foreclosure of a subordinate lien or security
interest or a transfer by operation of law) shall constitute an assignment or
transfer of Mortgagor's interest in and rights to such funds held by Mortgagee
under this paragraph but subject to the rights of Mortgagee hereunder.
(f) Condemnation. Mortgagor shall notify Mortgagee immediately of any
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threatened or pending proceeding for condemnation affecting the Property or
arising out of damage to the Property, and Mortgagor shall, at Mortgagor's
expense, diligently prosecute any such proceedings. Mortgagee shall have the
right (but not the obligation) to participate in any such proceeding and to be
represented by counsel of its own choice. Mortgagee shall be entitled to
receive all sums which may be awarded or become payable to Mortgagor for the
condemnation of the Property, or any part thereof, for public or quasi-public
use, or by virtue of private sale in lieu thereof, and any sums which may be
awarded or become payable to Mortgagor for injury or damage to the Property.
Mortgagor shall, promptly upon request of Mortgagee, execute such additional
assignments and other documents as may be necessary from time to time to permit
such participation and to enable Mortgagee to collect and receipt for any such
sums. All such sums are hereby assigned to Mortgagee, and shall, after
deduction therefrom of all reasonable expenses actually incurred by Mortgagee,
including attorneys' fees, at Mortgagee's option, subject to the terms of
Subsection 2.1(g), below, be (1) released to Mortgagor, or (2) applied (upon
compliance with such terms and conditions as may be required by Mortgagee) to
repair or restoration of the Property so affected, or (3) applied to the payment
of the secured indebtedness in such order and manner as Mortgagee, in its sole
discretion, may elect, whether or not due. In any event the unpaid portion of
the secured indebtedness shall remain in full force and effect and the payment
thereof shall not be excused. Mortgagee shall not be, under any circumstances,
liable or responsible for failure to collect or to exercise diligence in the
collection of any such sum or for failure to see to the proper application of
any amount paid over to Mortgagor. Mortgagee is hereby authorized, in the name
of Mortgagor, to execute and deliver valid acquittances for, and to appeal from,
any such award, judgment or decree. All costs and expenses (including but not
limited to attorneys' fees) incurred by Mortgagee in connection with any
condemnation shall be a demand obligation owing by Mortgagor (which Mortgagor
hereby promises to pay) to Mortgagee pursuant to this Mortgage.
(g) Restoration Advances.
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(i) Mortgagee agrees that, in the event that all or a portion of
the Improvements are destroyed or damaged by fire, explosion, windstorm, hail or
any other casualty against which insurance is required under this Mortgage, or
in the event that not more than ten percent (10%) of the Land and Improvements
are condemned or taken under power of eminent domain (or transferred in lieu
thereof), Mortgagee will elect (under Subsection 2.1(d) or 2.1(f), as
applicable) to apply the insurance proceeds or condemnation proceeds (or the
proceeds of transfer in lieu thereof)
PAGE 8
which remain after payment of the expenses of collection thereof as provided in
Subsections 2.1(d) and 2.1(f) (called the "Proceeds" below in this Subsection),
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or so much thereof as is required, to restoration of the portion of the Property
damaged or taken as nearly as practicable to its value, character and condition
immediately prior to such casualty or taking (the "Restoration"), provided that
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either (i) no Event of Default shall have occurred and the amount of the
Proceeds is less than One Hundred Thousand Dollars ($100,000), or (ii) all of
the following conditions precedent are satisfied in full not later than ninety
(90) days after the date on which the casualty loss occurs or title to the
portion of the Property taken (or transferred in lieu thereof) vests in the
condemning authority, as the case may be:
(A) no Event of Default shall have occurred;
(B) the lessee under the Major Lease or, if such lease is no
longer in effect, all tenants having present or future possessory rights under
Leases (hereinafter defined) covering, in the aggregate, not less than eighty-
five percent (85%) of the net rentable area of the Improvements have agreed in a
manner satisfactory to Mortgagee that their Leases will continue in full force
and effect and, if necessary, the time for taking or regaining possession of the
demised premises under such Leases will be extended by the time necessary to
complete the Restoration;
(C) all parties having operating, management or franchise
interests in, and arrangements concerning, the Property have agreed that they
will continue their interests and arrangements for the contract terms then in
effect following the Restoration;
(D) all parties having commitments to provide financing with
respect to the Property, to purchase Mortgagor's interest in full or in part in
the Property or to purchase or pay the loan evidenced by the Note (collectively,
"Commitment Providers") have agreed in a manner satisfactory to Mortgagee that
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their commitments will continue in full force and effect and, if necessary, the
expiration of such commitments will be extended by the time necessary to
complete the Restoration;
(E) in the case of a condemnation, Mortgagor has presented
evidence satisfactory to Mortgagee, and Mortgagee has reasonably determined,
that the remaining portions of the Improvements can feasibly be redesigned and
reconstructed to such a condition that they can be operated for their intended
purposes;
(F) Mortgagor has presented evidence satisfactory to Mortgagee,
and Mortgagee has reasonably determined, that the Restoration can be
accomplished within a reasonable period of time and in any event prior to the
Maturity Date (as defined in the Note);
(G) Mortgagor has delivered or caused to be delivered to
Mortgagee, and Mortgagee has approved, complete final plans and specifications
(the "Restoration Plans") for the work to be performed in connection with the
-----------------
Restoration (hereinafter called the "Restoration Work") prepared and sealed by
----------------
an architect (the "Architect") acceptable to Mortgagee, with evidence
---------
satisfactory to Mortgagee of the approval of the Restoration Plans by all
Commitment Providers and all governmental authorities and all tenants under
Leases whose approval is required;
PAGE 9
(H) Mortgagor has delivered or caused to be delivered to
Mortgagee a signed estimate approved in writing by the Architect, stating the
entire cost of completing the Restoration Work;
(I) Mortgagor has entered into, and has furnished to Mortgagee a
copy of, a fixed price construction contract satisfactory to Mortgagee, with a
contractor reasonably acceptable to Mortgagee, bonded to the extent required by
Mortgagee, for the Restoration Work;
(J) if Mortgagee has determined that (i) the projected cost of
the Restoration Work substantially in accordance with the Restoration Plans
exceeds (ii) the available Proceeds held by Mortgagee, then Mortgagor has
deposited with Mortgagee funds sufficient to cover the excess cost;
(K) Mortgagor has furnished all insurance coverage required by
Mortgagee pursuant to Subsection 2.1 (d), above;
(L) Mortgagee has determined that it will not incur any liability
to any person as a result of such use of the Proceeds; and
(M) Mortgagor has demonstrated to Mortgagee, to Mortgagee's
reasonable satisfaction, that the combination of operating income from the
Leases remaining in force plus the proceeds of business interruption insurance
which will be available during the period of the Restoration will be sufficient
to cover the operating expenses of the Premises and debt service on the secured
indebtedness during such period.
If all of the foregoing conditions have not been satisfied within the time limit
specified above, then Mortgagee may, at its option, apply such Proceeds to the
indebtedness secured hereby, whether or not due, in such order and manner as
Mortgagee elects.
(ii) To the extent that Mortgagee elects to apply the Proceeds to the
restoration or reconstruction of the Improvements, then disbursement of the
Proceeds for Restoration or Restoration Work shall be subject to and shall be
made in accordance with the customary practices of Mortgagee governing the
disbursement of construction loans. If Mortgagee determines from time to time
that (i) the estimated cost of the Restoration substantially in accordance with
the Restoration Plans exceeds (ii) the available Proceeds held by Mortgagee plus
all other available funds deposited by Mortgagor with Mortgagee for the purpose
of the Restoration, then Mortgagor shall deposit additional funds with Mortgagee
to cover the excess cost before Mortgagee shall be required to disburse any such
Proceeds or other available funds for Restoration costs. Any such funds
provided by Mortgagor to cover excess costs shall be used for the costs of
Restoration prior to disbursement of any of the Proceeds for such costs.
(iii) Any such Proceeds and additional funds provided by Mortgagor
which are held by Mortgagee under this Subsection shall be held by Mortgagee in
an interest-bearing account of Mortgagee's selection until disbursed for
Restoration or otherwise applied as herein provided. Mortgagee's receipt and
custody of such Proceeds or additional funds shall not constitute a repayment of
any of the indebtedness secured hereby, unless and until such Proceeds or
additional
PAGE 10
funds are actually applied against the indebtedness secured hereby in accordance
with this Mortgage. No disbursement of such Proceeds for Restoration costs shall
constitute an advance of the loan evidenced by the Note or increase the
principal amount of such loan. If surplus Proceeds remain after completion of
the Restoration and payment of all costs therefor, then such surplus Proceeds
shall be applied against the indebtedness secured hereby in such manner and
order as Mortgagee elects. If surplus funds then remain from additional funds
provided by Mortgagor to cover excess costs of Restoration, then such surplus
funds shall be returned to Mortgagor, provided that no uncured default or Event
of Default shall exist hereunder.
(iv) In any event, upon the occurrence of an Event of Default at any
time, Mortgagee may (but has no obligation to) apply all or any portion of such
Proceeds or additional funds provided by Mortgagor in Mortgagee's possession to
the payment of the indebtedness secured hereby, whether or not due, in such
order and manner as Mortgagee elects, and/or to the cure of any Event of Default
without waiving the same.
(h) Compliance with Legal Requirements. The Property and the use,
----------------------------------
operation and maintenance thereof and all activities thereon do and shall at all
times comply with all applicable Legal Requirements (defined below). The
Property is not, and shall not be, dependent on any other property or premises
or any interest therein other than the Property to fulfill any requirement of
any Legal Requirement. Mortgagor shall not, by act or omission, permit any
building or other improvement not subject to the lien and interest of this
Mortgage to rely on the Property or any interest therein to fulfill any
requirement of any Legal Requirement. No part of the Property constitutes a
nonconforming use under any zoning law or similar law or ordinance. Mortgagor
has obtained and shall preserve in force all requisite zoning, utility,
building, health, environmental and operating permits from the governmental
authorities having jurisdiction over the Property.
If Mortgagor receives a notice or claim from any person that the Property,
or any use, activity, operation or maintenance thereof or thereon, is not in
compliance with any Legal Requirement, Mortgagor will promptly furnish a copy of
such notice or claim to Mortgagee. Mortgagor has received no notice and has no
knowledge of any such noncompliance. As used in this Mortgage: (i) the term
"Legal Requirement" means any Law (defined below), agreement, covenant,
-----------------
restriction, easement or condition (including, without limitation of the
foregoing, any condition or requirement imposed by any insurance or surety
company applicable to Mortgagor or the Property), as any of the same now exists
or may be changed or amended or come into effect in the future; and (ii) the
term "Law" means any federal, state or local law, statute, ordinance, code,
---
rule, regulation, license, permit, authorization, decision, order, injunction or
decree, domestic or foreign applicable to Mortgagor or the Property.
(i) Maintenance, Repair and Restoration. Mortgagor will keep the Property
-----------------------------------
in first class order, repair, operating condition and appearance, causing all
necessary repairs, renewals, replacements, additions and improvements to be
promptly made, and will not allow any of the Property to be misused, abused or
wasted or to deteriorate. Notwithstanding the foregoing, Mortgagor will not,
without the prior written consent of Mortgagee, (i) remove from the Property any
fixtures or personal property conveyed or encumbered by this Mortgage except
such as is replaced by Mortgagor by an article of equal suitability and value,
owned by Mortgagor, free and clear of any lien or security interest (except that
created by this Mortgage), or (ii) make any
PAGE 11
structural alteration to the Property or any other alteration thereto which
impairs the value thereof. If any act or occurrence of any kind or nature
(including any condemnation or any casualty for which insurance was not obtained
or obtainable) shall result in damage to or loss or destruction of the Property,
Mortgagor shall give prompt notice thereof to Mortgagee and Mortgagor shall
promptly, at Mortgagor's sole cost and expense and regardless of whether
insurance or condemnation proceeds (if any) shall be available or sufficient for
the purpose (provided that Mortgagee makes available to Grantor for such purpose
any Proceeds actually received by Mortgagee), commence and continue diligently
to completion to restore, repair, replace and rebuild the Property as nearly as
possible to its value, condition and character immediately prior to the damage,
loss or destruction.
(j) No Other Liens. Mortgagor will not, without the prior written
--------------
consent of Mortgagee, create, place or permit to be created or placed, or
through any act or failure to act, acquiesce in the placing of, or allow to
remain, any deed of trust, mortgage, voluntary or involuntary lien, whether
statutory, constitutional or contractual, security title, interest, encumbrance
or charge, or conditional sale or other title retention document, against or
covering the Property, or any part thereof, other than the Permitted
Encumbrances, regardless of whether the same are expressly or otherwise
subordinate to the lien or security interest created in this Mortgage, and
should any of the foregoing become attached hereafter in any manner to any part
of the Property without the prior written consent of Mortgagee, Mortgagor will
cause the same to be discharged and released or bonded over within ten (10)
days. Mortgagor will own all parts of the Property and will not acquire any
fixtures, equipment or other property forming a material part of the Property
pursuant to a lease, license, security agreement or similar agreement, whereby
any party has or may obtain the right to repossess or remove same, without the
prior written consent of Mortgagee. If Mortgagee consents to the voluntary
grant by Mortgagor of any mortgage, lien, security interest, or other
encumbrance (hereinafter called "Subordinate Lien") conveying or encumbering any
----------------
of the Property or if the foregoing prohibition is determined by a court of
competent jurisdiction to be unenforceable as to a Subordinate Lien, any such
Subordinate Lien shall contain express covenants to the effect that: (1) the
Subordinate Lien is unconditionally subordinate to this Mortgage and all Leases
(hereinafter defined); (2) if any action (whether judicial or pursuant to a
power of sale) shall be instituted to foreclose or otherwise enforce the
Subordinate Lien, no tenant of any of the Leases (hereinafter defined) shall be
named as a party defendant, and no action shall be taken that would terminate
any occupancy or tenancy without the prior written consent of Mortgagee; (3)
Rents (hereinafter defined), if collected by or for the holder of the
Subordinate Lien, shall be applied first to the payment of the secured
indebtedness then due and expenses incurred in the ownership, operation and
maintenance of the Property in such order as Mortgagee may determine, prior to
being applied to any indebtedness secured by the Subordinate Lien; (4) written
notice of default under the Subordinate Lien and written notice of the
commencement of any action (whether judicial or pursuant to a power of sale) to
foreclose or otherwise enforce the Subordinate Lien or to seek the appointment
of a receiver for all or any part of the Property shall be given to Mortgagee
with or immediately after the occurrence of any such default or commencement;
and (5) neither the holder of the Subordinate Lien, nor any purchaser at
foreclosure thereunder, nor anyone claiming by, through or under any of them
shall succeed to any of Mortgagor's rights hereunder without the prior written
consent of Mortgagee.
PAGE 12
(k) Operation of Property. Mortgagor will operate the Property in a good
---------------------
and workmanlike manner and in accordance with all Legal Requirements and will
pay all fees or charges of any kind in connection therewith. Mortgagor shall
cause the Property to be managed by Mortgagor or another property manager
acceptable to Mortgagee, under a management agreement satisfactory in all
respects to Mortgagee. Mortgagee approves Xxxxx Management Company, Inc. as
property manager. Mortgagor will keep the Property occupied so as not to impair
the insurance carried thereon. Mortgagor will not use or occupy or conduct any
activity on, or allow the use or occupancy of or the conduct of any activity on,
the Property in any manner which violates any Legal Requirement or 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. Mortgagor will not initiate or permit any zoning
reclassification of the Property or seek any variance under existing zoning
ordinances applicable to the Property or use or permit the use of the Property
in such a manner which would result in such use becoming a nonconforming use
under applicable zoning ordinances or other Legal Requirement. Mortgagor will
not impose any easement, restrictive covenant or encumbrance upon the Property,
execute or file any subdivision plat or condominium declaration affecting the
Property or consent to the annexation of the Property to any municipality,
without the prior written consent of Mortgagee. Mortgagor will not do or suffer
to be done any act whereby the value of any part of the Property may be
lessened. Mortgagor will preserve, protect, renew, extend and retain all
material rights and privileges granted for or applicable to the Property.
Without the prior written consent of Mortgagee, there shall be no drilling or
exploration for or extraction, removal or production of any mineral,
hydrocarbon, gas, natural element, compound or substance (including sand and
gravel) from the surface or subsurface of the Land regardless of the depth
thereof or the method of mining or extraction thereof. Mortgagor will cause all
debts and liabilities of any character (including without limitation all debts
and liabilities for labor, material and equipment and all debts and charges for
utilities servicing the Property) incurred in the construction, maintenance,
operation and development of the Property to be promptly paid.
(l) Financial Matters. Mortgagor is solvent after giving effect to all
-----------------
borrowings contemplated by the Loan Documents and no proceeding under any Debtor
Relief Law (hereinafter defined) is pending (or, to Mortgagor's knowledge,
threatened) by or against Mortgagor, or any member of Mortgagor or any guarantor
of the secured indebtedness or any partner of any such guarantor, as a debtor.
All reports, statements, plans, budgets, applications, agreements and other data
and information heretofore furnished or hereafter to be furnished by or on
behalf of Mortgagor to Mortgagee in connection with the loan or loans evidenced
by the Loan Documents (including, without limitation, all financial statements
and financial information) are and will be true, correct and complete in all
material respects as of their respective dates and do not and will not omit to
state any fact or circumstance necessary to make the statements contained
therein not misleading. No material adverse change has occurred since the dates
of such reports, statements and other data in the financial condition of
Mortgagor or, to Mortgagor's knowledge, of any tenant under any lease described
therein. For the purposes of this paragraph, "Mortgagor" shall also include any
---------
person liable for the secured indebtedness or any part thereof.
(m) Status of Mortgagor; Suits and Claims; Loan Documents. Mortgagor (i)
-----------------------------------------------------
is and will continue to be duly organized, validly existing and in good standing
under the laws of its state of organization, (ii) is or will be within fourteen
(14) days from the date of this Mortgage authorized
PAGE 13
to do business in, and in good standing in, the state in which the Property is
located, and (iii) is and will continue to be possessed of all requisite power
and authority to carry on its business and to own and operate the Property. Each
Loan Document executed by Mortgagor has been duly authorized, executed and
delivered by Mortgagor, and the obligations thereunder and the performance
thereof by Mortgagor in accordance with their terms are and will continue to be
within Mortgagor's power and authority (without the necessity of joinder or
consent of any other person), are not and will not be in contravention of any
Legal Requirement to which Mortgagor or the Property is subject, and do not and
will not result in the creation of any encumbrance against any assets or
properties of Mortgagor, or any other person liable for any of the secured
indebtedness, except as expressly contemplated by the Loan Documents. Except as
expressly disclosed to Mortgagee in writing, there is no suit, action, claim,
investigation, inquiry, proceeding or demand pending (or, to Mortgagor's
knowledge, threatened) which affects the Property (including, without
limitation, any which challenges or otherwise pertains to Mortgagor's title to
the Property) or the validity, enforceability or priority of any of the Loan
Documents. There is no judicial or administrative action, suit or proceeding
pending (or, to Mortgagor's knowledge, threatened) against Mortgagor, or against
any other person liable for the secured indebtedness, except as has been
disclosed in writing to Mortgagee in connection with the loan evidenced by the
Note. Neither Mortgagor nor any other person liable for the secured indebtedness
nor any partner of any guarantor of the secured indebtedness or any such other
person is involved in any litigation, threatened or existing, against Mortgagee
or any affiliate of Mortgagee. The Loan Documents constitute legal, valid and
binding obligations of Mortgagor (and of each guarantor, if any) enforceable in
accordance with their terms, except as the enforceability thereof may be limited
by Debtor Relief Laws (hereinafter defined) and except as the availability of
certain remedies may be limited by general principles of equity. Mortgagor is
not a "foreign person" within the meaning of the Internal Revenue Code of 1986,
--------------
as amended, Sections 1445 and 7701 (i.e. Mortgagor is not a non-resident alien,
foreign corporation, foreign partnership, foreign trust or foreign estate as
those terms are defined therein and in any regulations promulgated thereunder).
The loan evidenced by the Note is solely for business purposes, and is not for
personal, family, household or agricultural purposes. Mortgagor will not cause
or permit any change to be made in its name, identity, or corporate or
partnership structure, unless Mortgagor shall have notified Mortgagee of such
change prior to the effective date of such change, and shall have first taken
all action required by Mortgagee for the purpose of further perfecting or
protecting the lien and security interest of Mortgagee in the Property.
Mortgagor's principal place of business and chief executive office, and the
place where Mortgagor keeps its books and records concerning the Property, has
been, since the date of Mortgagor's formation and will continue to be (unless
Mortgagor notifies Mortgagee of any change in writing prior to the date of such
change) the address of Mortgagor set forth at the end of this Mortgage.
(n) Certain Environmental Matters.
-----------------------------
(i) Definitions. As used in this Mortgage: (1) "Environmental Claim"
----------- -------------------
means any investigative, enforcement, cleanup, removal, containment, remedial or
other governmental or regulatory action at any time threatened, instituted or
completed pursuant to any applicable Environmental Requirement against Mortgagor
or against or with respect to the Property or any use or activity on the
Property, and any claim at any time threatened or made by any person against
Mortgagor or against or with respect to the Property or any use or activity on
the Property, relating
PAGE 14
to damage, contribution, cost recovery, compensation, loss or injury resulting
from any Hazardous Substance; (2) "Environmental Requirement" means any Legal
-------------------------
Requirement which pertains to ground or air or water or noise pollution or
contamination, underground or aboveground tanks, health or the environment,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), the Resource
------
Conservation and Recovery Act of 1976, as amended ("RCRA"), and including,
----
without limitation, each and every environmental law, ordinance, rule and
regulation of the State of Illinois and every instrumentality thereof having
jurisdiction over the Property; and (3) "Hazardous Substance" means any
-------------------
substance, whether solid, liquid or gaseous: (a) which is listed, defined or
regulated as a "hazardous substance", "hazardous waste" or "solid waste", or
otherwise classified as hazardous or toxic, in or pursuant to any Environmental
Requirement; or (b) which is or contains asbestos, radon, any polychlorinated
biphenyl, urea formaldehyde foam insulation, or explosive or radioactive
material; or (c) which causes or poses a threat to cause a contamination or
nuisance on the Property or on any adjacent property or a hazard to the
environment or to the health or safety of persons on the Property. As used in
this paragraph (n), the word "on" when used with respect to the Property or
adjacent property means "on, in, under, above or about".
(ii) Representations and Warranties. Mortgagor represents and
------------------------------
warrants to Mortgagee, without regard to whether Mortgagee has or hereafter
obtains any knowledge or report of the environmental condition of the Property,
as follows: (1) during the period of Mortgagor's ownership of the Property, the
Property will not be used for landfill, dumping or other waste disposal activity
or operation, for generation, storage, use, sale, treatment, processing,
recycling or disposal of any Hazardous Substance, or for any other use that
would give rise to the release of any Hazardous Substance on the Property except
as disclosed in that certain Phase I Environmental Site Assessment, dated August
25, 1999, prepared by Xxxxxxx Consultants Inc. for Xxxxx Real Estate Funds
regarding the Property (the "Report"); (2) to the best of Mortgagor's knowledge
------
after inquiry in accordance with good commercial or customary practices, no use
of the Property described in clause (1) preceding occurred at any time prior to
the period of Mortgagor's ownership of the Property nor did any such use on any
adjacent property occur during or at any time prior to the period of Mortgagor's
ownership of the Property, and there is no Hazardous Substance, storage tank (or
similar vessel), sump or well on the Property; (3) Mortgagor has received no
notice and has no knowledge of any Environmental Claim or any completed,
pending, proposed or threatened investigation or inquiry concerning the presence
or release of any Hazardous Substance on the Property or on any adjacent
property or concerning whether any condition, use or activity on the Property or
on any adjacent property is in violation of any Environmental Requirement; (4)
to the best of Mortgagor's knowledge, the present conditions, uses and
activities on the Property do not violate any Environmental Requirement and the
use of the Property which Mortgagor (and each tenant and subtenant, if any)
makes and intends to make of the Property complies and will comply with all
applicable Environmental Requirements; (5) to the best of Mortgagor's knowledge,
the Property is not currently on, and to the best of Mortgagor's knowledge after
inquiry in accordance with good commercial or customary practices, has never
been on, any federal or state "superfund" or "superlien" list; and (6) neither
Mortgagor, nor to Mortgagor's knowledge any tenant or subtenant, has obtained or
is required to obtain any permit or other authorization to construct, occupy,
operate, use or conduct any activity on any of the Property by reason of any
Environmental Requirement except for the following: Waste Generator Permit No.
ILD984843235; Industrial
PAGE 15
Pretreatment Water Discharge Permit No. WD01921029; and Air Emissions Permit No.
043800AAL.
(iii) Violations. Mortgagor will not cause, commit, permit or allow
----------
to continue any violation of any Environmental Requirement by Mortgagor or by or
with respect to the Property or any use or activity on the Property, or the
attachment of any environmental lien to the Property. Mortgagor will not place,
install, dispose of or release, or cause, permit or allow the placing,
installation, disposal or release of, any Hazardous Substance or storage tank
(or similar vessel) on the Property and will keep the Property free of any
Hazardous Substance. Notwithstanding the foregoing provisions of this
Subsection 2(n)(iii), Mortgagor shall not be in default under this Subsection
2(n)(iii) should Mortgagor store minimal quantities of substances on the
Property which technically could be considered Hazardous Substance, provided
--------
that: such substances are of a type and are held only in a quantity normally
----
used in connection with the construction, occupancy or operation of comparable
buildings (such as cleaning fluids, and supplies normally used in the day to day
operation of business offices or as specifically described in the Report), such
substances are being held, stored and used in complete and strict compliance
with all applicable Environmental Requirements, and the indemnity in Section 7
of the Environmental Indemnity Agreement of even date herewith between Mortgagor
and Mortgagee (the "Environmental Indemnity Agreement") and Subsection 2(q)
---------------------------------
hereof shall always apply to such substances, and it shall be and continue to be
the responsibility of Mortgagor to take all remedial actions required under and
in accordance with Section 6 of the Environmental Indemnity Agreement in the
event of any unlawful release of any such substance.
(iv) Notice to Mortgagee. Mortgagor will promptly advise Mortgagee
-------------------
in writing of any Environmental Claim or of the discovery of any Hazardous
Substance on the Property, as soon as Mortgagor first obtains knowledge thereof,
including a full description of the nature and extent of the Environmental Claim
and/or Hazardous Substance and all relevant circumstances.
(v) Site Assessments and Information. If Mortgagee shall ever have
--------------------------------
reason to believe that any Hazardous Substance affects the Property, or if any
Environmental Claim is made or threatened, or if an Event of Default shall have
occurred, Mortgagor will at its expense provide to Mortgagee from time to time,
in each case within thirty (30) days of Mortgagee's written request, a report
(including all drafts thereof if requested by Mortgagee) of an environmental
assessment of the Property made after the date of Mortgagee's request and of
such scope (including but not limited to the taking of soil borings, air and
groundwater samples and other above and below ground testing) as Mortgagee may
request and by a consulting firm acceptable to Mortgagee. Mortgagor will
cooperate with each consulting firm making any such assessment and will supply
to the consulting firm, from time to time and promptly on request, all
information available to Mortgagor to facilitate the completion of the
assessment and report.
(vi) Remedial Actions. Without limitation of Mortgagee's rights to
----------------
declare an Event of Default and to exercise all remedies available by reason
thereof, if any Hazardous Substance is discovered on the Property at any time
and regardless of the cause, Mortgagor shall: (1) promptly at Mortgagor's sole
risk and expense remove, treat and dispose of the Hazardous Substance (to the
extent required by applicable Environmental Requirements), in compliance with
all applicable Environmental Requirements and solely under Mortgagor's name
Page 16
(or if removal is prohibited by any Environmental Requirement, take whatever
action is required by applicable Environmental Requirements), in addition to
taking such other action as is necessary to have the full use and benefit of the
Property as contemplated by the Loan Documents, and provide Mortgagee with
satisfactory evidence thereof; and (2) if requested by Mortgagee, provide to
Mortgagee within thirty (30) days of Mortgagee's request a bond, letter of
credit or other financial assurance evidencing to Mortgagee's satisfaction that
all necessary funds are readily available to pay the costs and expenses of the
actions required by clause (1) preceding and to discharge any assessments or
liens established against the Property as a result of the presence of the
Hazardous Substance on the Property.
(o) Further Assurances. Mortgagor will, promptly on the reasonable request
------------------
of Mortgagee, (i) correct any defect, error or omission which may be discovered
in the contents, execution or acknowledgment of this Mortgage or any other Loan
Document; (ii) execute, acknowledge, deliver, procure and record and/or file
such further reasonable documents (including, without limitation, further
mortgages, security agreements, financing statements, continuation statements,
and assignments of rents or leases) and do such further acts as may be
necessary, desirable or proper to carry out more effectively the purposes of
this Mortgage and the other Loan Documents, to more fully identify and subject
to the liens and interests hereof any property intended to be covered hereby
(including specifically, but without limitation, any renewals, additions,
substitutions, replacements, or appurtenances to the Property) or as deemed
advisable by Mortgagee to protect the lien or the interest hereunder against the
rights or interests of third persons; and (iii) provide such reasonable
certificates, documents, reports, information, affidavits and other instruments
and do such further acts as may be necessary, desirable or proper in the
reasonable determination of Mortgagee to enable Mortgagee to comply with the
requirements or requests of any agency having jurisdiction over Mortgagee or any
examiners of such agencies with respect to the indebtedness secured hereby,
Mortgagor or the Property. Mortgagor shall pay all reasonable and actual costs
connected with any of the foregoing, which shall be a demand obligation owing by
Mortgagor (which Mortgagor hereby promises to pay) to Mortgagee pursuant to this
Mortgage.
(p) Fees and Expenses. Without limitation of any other provision of this
-----------------
Mortgage or of any other Loan Document and to the extent not prohibited by
applicable law, Mortgagor will pay, and will reimburse to Mortgagee on demand to
the extent paid by Mortgagee: (i) all appraisal fees, recordation, transfer and
other filing, registration and recording fees, taxes, brokerage fees and
commissions, abstract fees, title search or examination fees, title policy and
endorsement premiums and fees, uniform commercial code search fees (for searches
conducted both prior to and subsequent to the closing of the loan evidenced by
the Loan Documents), escrow fees, reasonable and actual attorneys' fees,
architect fees, construction consultant fees, environmental inspection fees,
survey fees, and all other out-of-pocket costs and expenses of every character
incurred by Mortgagor or Mortgagee in connection with the preparation of the
Loan Documents, the evaluation, closing and funding of the loan evidenced by the
Loan Documents, and any and all amendments and supplements to this Mortgage, the
Note or any other Loan Documents or any approval, consent, waiver, release or
other matter requested or required hereunder or thereunder, or otherwise
attributable or chargeable to Mortgagor as owner of the Property; and (ii) all
costs and expenses, including reasonable attorneys' fees and expenses, incurred
or expended in connection with the
PAGE 17
exercise of any right or remedy or the enforcement of any obligation of
Mortgagor, hereunder or under any other Loan Document.
(q) Indemnification.
---------------
(i) Mortgagor will indemnify and hold harmless Mortgagee from and
against, and reimburse Mortgagee on demand for, any and all Indemnified Matters
(defined below). For purposes of this paragraph (q), the term "Mortgagee"
---------
shall include the directors, officers, partners, employees and agents of
Mortgagee and any persons owned or controlled by, owning or controlling, or
under common control or affiliated with Mortgagee. Without limitation, the
foregoing indemnities shall apply to each indemnified person with respect to
matters which in whole or in part are caused by or arise out of the negligence
of such (and/or any other) indemnified person. However, such indemnities shall
not apply to a particular indemnified person to the extent that the subject of
the indemnification is caused by or arises out of the gross negligence or
willful misconduct of that indemnified person. Any amount to be paid under this
paragraph (q) by Mortgagor to Mortgagee shall be a demand obligation owing by
Mortgagor (which Mortgagor hereby promises to pay) to Mortgagee pursuant to this
Mortgage. Nothing in this paragraph, elsewhere in this Mortgage or in any other
Loan Document shall limit or impair any rights or remedies of Mortgagee
(including without limitation any rights of contribution or indemnification)
against Mortgagor or any other person under any other provision of this
Mortgage, any other Loan Document, any other agreement or any applicable Legal
Requirement.
(ii) As used herein, the term "Indemnified Matters" means any and all
-------------------
claims, demands, liabilities (including strict liability), losses, damages
(including consequential damages), causes of action, judgments, penalties, costs
and expenses (including without limitation, reasonable and actual fees and
expenses of attorneys and other professional consultants and experts, and of the
investigation and defense of any claim, whether or not such claim is ultimately
defeated, and the settlement of any claim or judgment including all value paid
or given in settlement) of every kind, known or unknown, foreseeable or
unforeseeable, which may be imposed upon, asserted against or incurred or paid
by Mortgagee at any time and from time to time, whenever imposed, asserted or
incurred, because of, resulting from, in connection with, or arising out of any
transaction, act, omission, event or circumstance in any way connected with the
Property or with this Mortgage or any other Loan Document, including but not
limited to any bodily injury or death or property damage occurring in or upon or
in the vicinity of the Property, any act performed or omitted to be performed
hereunder or under any other Loan Document, any breach by Mortgagor of any
representation, warranty, covenant, agreement or condition contained in this
Mortgage or in any other Loan Document, any default as defined herein or any
claim under or with respect to any Lease (hereinafter defined) or any
Environmental Matter (hereinafter defined), through any cause whatsoever at any
time on or before the Release Date. As used herein, the term "Environmental
-------------
Matter" means: (a) the presence of any Hazardous Substance on, in, under, above
------
or about the Property, or the migration or release or threatened migration or
release of any Hazardous Substance on, to, from or through the Property, on or
at any time before the Release Date; or (b) any act, omission, event or
circumstance existing or occurring in connection with the handling, treatment,
containment, removal, storage, decontamination, clean-up, transport or disposal
of any Hazardous Substance which is at any time on or before the Release Date
present on, in, under, above or about the Property; or (c) any violation on or
before the Release Date, of any Environmental Requirement
PAGE 18
in effect on or before the Release Date, regardless of whether any act,
omission, event or circumstance giving rise to the violation constituted a
violation at the time of the occurrence or inception of such act, omission,
event or circumstance; or (d) any Environmental Claim, or the filing or
imposition of any environmental lien against the Property, because of, resulting
from, in connection with, or arising out of any of the matters referred to in
clauses (a) through (c) preceding; and regardless of whether any of the matters
referred to in the foregoing clauses (a) through (d) was caused by Mortgagor or
Mortgagor's tenant or any subtenant, or a prior owner of the Property or its
tenant or any subtenant, or any third party. Without limitation of the
definition of Indemnified Matters herein, Mortgagor's indemnification
obligations regarding any Environmental Matter shall include injury or damage to
any person, property or natural resource occurring upon or off of the Property
(including but not limited to the cost of demolition and rebuilding of any
improvements on real property), the preparation of any feasibility studies or
reports and the performance of any cleanup, remediation, removal, response,
abatement, containment, closure, restoration, monitoring or similar work
required by any Environmental Requirement or necessary to have the full use and
benefit of the Property as contemplated by the Loan Documents (including,
without limitation, any of the same in connection with any foreclosure or
transfer in lieu thereof), and all liability to pay or indemnify any person for
costs in connection with any of the foregoing. The term "Release Date" as used
------------
herein means the earlier of the following two dates: (i) the date on which the
indebtedness and obligations secured hereby have been paid and performed in full
and this Mortgage has been cancelled and satisfied of record, or (ii) the date
on which the lien of this Mortgage is fully and finally foreclosed or a
conveyance by deed in lieu of such foreclosure is fully and finally effective,
and possession of the Property has been given to the purchaser or grantee free
of occupancy and claims to occupancy by Mortgagor and Mortgagor's heirs,
devisees, representatives, successors and assigns; provided, that if such
payment, performance, release, foreclosure or conveyance is challenged, in
bankruptcy proceedings or otherwise, the Release Date shall be deemed not to
have occurred until such challenge is rejected, dismissed or withdrawn with
prejudice. The indemnities in this paragraph (q) shall not terminate upon the
Release Date or upon the cancellation, satisfaction, foreclosure or other
termination of this Mortgage but will survive the Release Date, foreclosure of
this Mortgage or conveyance in lieu of foreclosure, the repayment of the secured
indebtedness, the discharge, cancellation and satisfaction of this Mortgage and
the other Loan Documents, any bankruptcy or other debtor relief proceeding, and
any other event whatsoever.
(r) Records and Financial Reports. Mortgagor will keep accurate books and
-----------------------------
records in accordance with sound accounting principles in which full, true and
correct entries shall be promptly made with respect to the Property and the
operation thereof, and will permit all such books and records to be inspected
and copied, and the Property to be inspected and photographed, by Mortgagee and
its representatives during normal business hours and at any other reasonable
times. Mortgagor will furnish to Mortgagee at Mortgagor's expense all evidence
which Mortgagee may from time to time reasonably request as to compliance with
all provisions of the Loan Documents. Any inspection or audit of the Property
or the books and records of Mortgagor, or the procuring of documents and
financial and other information, by or on behalf of Mortgagee shall be for
Mortgagee's protection only, and shall not constitute any assumption of
responsibility to Mortgagor or anyone else with regard to the condition,
construction, maintenance or operation of the Property nor Mortgagee's approval
of any certification given to Mortgagee nor relieve Mortgagor of any of
Mortgagor's obligations. Upon the prior written approval of Mortgagor, which
approval shall not be unreasonably withheld or delayed and which approval shall
not be required
PAGE 19
with respect to an assignment or grant of a participation to an affiliate of
Mortgagee, Mortgagee may, from time to time, sell or offer to sell the Loan, or
interests therein, to one or more assignees or participants and is hereby
authorized to disseminate any information it now has or hereafter obtains
pertaining to the secured indebtedness, including, without limitation, any
security for the secured indebtedness and credit or other information on the
Premises, Mortgagor, any of its principals and any guarantor, to any assignee or
participant or prospective assignee or prospective participant, to Mortgagee's
affiliates, including without limitation Banc of America Securities LLC, to any
regulatory body having jurisdiction over Mortgagee and to any other parties as
necessary or appropriate in Mortgagee's reasonable judgment. Mortgagor shall
execute, acknowledge and deliver any and all instruments reasonably requested by
Mortgagee in connection therewith and to the extent, if any, specified in any
such assignment or participation, such companies, assignees or participants
shall have the rights and benefits with respect to the secured indebtedness as
such persons would have if such persons were Mortgagee hereunder.
(s) Financial Statements. Mortgagor shall provide or cause to be provided
--------------------
to Mortgagee the following:
(i) Financial Statements (hereinafter defined) of Mortgagor for each
fiscal year of Mortgagor, as soon as reasonably practicable and in any event
within one hundred twenty (120) days after the close of each fiscal year.
(ii) Financial Statements of each guarantor of the secured
indebtedness for each fiscal year of such guarantor, as soon as reasonably
practicable and in any event within one hundred twenty (120) days after the
close of each fiscal year, and Financial Statements for each calendar quarter of
each such guarantor, as soon as reasonably practicable and in any event within
forty-five (45) days after the close of each such calendar quarter.
(iii) With respect to the operation of the Property:
(A) Prior to the beginning of each fiscal year of Mortgagor, a
capital and operating budget for the Property, and
(B) For each quarter (and for the fiscal year through the end
of that quarter) (1) a statement of all income and expenses in connection with
the Property, and (2) a current leasing status report in form satisfactory to
Mortgagee, including in each case a comparison to the budget, as soon as
reasonably practicable but in any event within forty-five (45) days after the
end of each such quarter, certified in writing as true and correct by a
representative of Mortgagor satisfactory to Mortgagee. Items provided under this
paragraph (iii) shall in form and detail satisfactory to Mortgagee.
(iv) From time to time promptly after Mortgagee's request, such
additional information, reports, and statements respecting the business
operations and financial condition of each Reporting Party (hereinafter defined)
as Mortgagee may reasonably request.
For the purposes of this Mortgage, the term "Financial Statements" means a
--------- ----------
balance sheet, income statement, statements of cash flow and amount and sources
of contingent liabilities, and a
PAGE 20
reconciliation of changes in equity, and, unless Mortgagee otherwise consents,
consolidated and consolidating statements if the Reporting Party is a holding
company or a parent of a subsidiary entity. Each party for whom Financial
Statements are required is a "Reporting Party." All Financial Statements shall
---------------
be in form and detail reasonably satisfactory to Mortgagee and shall contain or
be attached to the signed and dated written certification of the Reporting Party
in form specified by Mortgagee to certify that the Financial Statements are
furnished to Mortgagee in connection with the extension of credit by Mortgagee
and constitute a true and correct statement of the Reporting Party's financial
condition. All certifications and signatures shall be by a representative of the
Reporting Party satisfactory to Mortgagee. All fiscal year-end Financial
Statements of any guarantor (other than consolidating statements) shall be
audited and certified, without any qualification or exception not acceptable to
Mortgagee, by independent certified accountants acceptable to Mortgagee, and
shall contain all reports and disclosures required by generally accepted
accounting principles for a fair presentation.
(t) Taxes on Note or Mortgage. Mortgagor will promptly pay all income,
-------------------------
franchise and other taxes owing by Mortgagor and any stamp, documentary,
recordation and transfer taxes or other taxes (unless such payment by Mortgagor
is prohibited by law) which may be required to be paid with respect to the Note,
this Mortgage or any other instrument evidencing or securing any of the secured
indebtedness. In the event of the enactment after this date of any law of any
governmental entity applicable to Mortgagee, the Note, the Property or this
Mortgage deducting from the value of property for the purpose of taxation any
lien or interest thereon, or imposing upon Mortgagee the payment of the whole or
any part of the taxes or assessments or charges or liens herein required to be
paid by Mortgagor, or changing in any way the laws relating to the taxation of
mortgages or security agreements or debts secured by mortgages or security
agreements or the interest of the mortgagee or secured party in the property
covered thereby, or the manner of collection of such taxes, so as to affect this
Mortgage or the indebtedness secured hereby or Mortgagee, then, and in any such
event, Mortgagor, upon demand by Mortgagee, shall pay such taxes, assessments,
charges or liens, or reimburse Mortgagee therefor; provided, however, that if in
the opinion of counsel for Mortgagee (i) it might be unlawful to require
Mortgagor to make such payment or (ii) the making of such payment might result
in the imposition of interest beyond the maximum amount permitted by law, then
and in such event, Mortgagee may elect, by notice in writing given to Mortgagor,
to declare all of the indebtedness secured hereby to be and become due and
payable one hundred eighty (180) days from the giving of such notice.
(u) Statement Concerning Note or Mortgage. Mortgagor shall at any time and
-------------------------------------
from time to time furnish within seven (7) days of request by Mortgagee a
written statement in such form as may be required by Mortgagee stating that (i)
the Note, this Mortgage and the other Loan Documents are valid and binding
obligations of Mortgagor, enforceable against Mortgagor in accordance with their
terms; (ii) the unpaid principal balance of the Note; (iii) the date to which
interest on the Note is paid; (iv) the Note, this Mortgage and the other Loan
Documents have not been released, subordinated or modified; and (v) there are no
offsets or defenses against the enforcement of the Note, this Mortgage or any
other Loan Document. If any of the foregoing statements are untrue, Mortgagor
shall, alternatively, specify the reasons therefor.
(v) Annual Appraisal. Mortgagee may at its option obtain at Mortgagor's
----------------
expense, once in each year (or as otherwise requested by Mortgagee) an appraisal
of the Property or any part
PAGE 21
thereof prepared in accordance with written instructions from Mortgagee by a
third-party appraiser engaged directly by Mortgagee. Each such appraiser and
appraisal shall be satisfactory to Mortgagee. The costs of each such appraisal
shall be a part of the secured indebtedness and shall be payable by Mortgagor to
Mortgagee on demand (which obligation Mortgagor hereby promises to pay).
(w) Real Estate Operating Company. In the event that any interest in any
-----------------------------
entity liable for the secured indebtedness shall be owned by, conveyed to or
otherwise acquired by a pension fund (which conveyance or acquisition shall be
subject to the prior written consent of Mortgagee), Mortgagor shall cause such
entity to qualify, and at all times during the term of the loan evidenced by the
Note remain qualified, as a Real Estate Operating Company within the meaning of
Section 2510.3 - 101(e) of Title 29 of the Code of Federal Regulations.
Section 2.2. Performance by Mortgagee on Mortgagor's Behalf. Mortgagor
----------------------------------------------
agrees that, if Mortgagor fails to perform any act or to take any action which
under any Loan Document Mortgagor is required to perform or take, or to pay any
money which under any Loan Document Mortgagor is required to pay, and whether or
not the failure then constitutes an Event of Default hereunder or thereunder,
and whether or not there has occurred any Event of Default hereunder or the
secured indebtedness has been accelerated, Mortgagee, in Mortgagor's name or its
own name, may, but shall not be obligated to, perform or cause to be performed
such act or take such action or pay such money, and any expenses so incurred by
Mortgagee and any money so paid by Mortgagee shall be a demand obligation owing
by Mortgagor to Mortgagee (which obligation Mortgagor hereby promises to pay),
shall be a part of the indebtedness secured hereby, and Mortgagee, upon making
such payment, shall be subrogated to all of the rights of the person, entity or
body politic receiving such payment. Mortgagee and its designees shall have the
right to enter upon the Property at any time and from time to time for any such
purposes. No such payment or performance by Mortgagee shall waive or cure any
Event of Default or waive any right, remedy or recourse of Mortgagee. Any such
payment may be made by Mortgagee in reliance on any statement, invoice or claim
without inquiry into the validity or accuracy thereof. Each amount due and
owing by Mortgagor to Mortgagee pursuant to this Mortgage shall bear interest,
from the date such amount becomes due until paid, at the rate per annum provided
in the Note for interest on past due principal owed on the Note but never in
excess of the maximum nonusurious amount permitted by applicable law, which
interest shall be payable to Mortgagee on demand; and all such amounts, together
with such interest thereon, shall automatically and without notice be a part of
the indebtedness secured hereby. The amount and nature of any expense by
Mortgagee hereunder and the time when paid shall be fully established by the
certificate of Mortgagee or any of Mortgagee's officers or agents.
Section 2.3. Absence of Obligations of Mortgagee with Respect to Property.
------------------------------------------------------------
Notwithstanding anything in this Mortgage to the contrary, including, without
limitation, the definition of "Property" and/or the provisions of Article 3
hereof, (i) to the extent permitted by applicable law, the Property is composed
of Mortgagor's rights, title and interests therein but not Mortgagor's
obligations, duties or liabilities pertaining thereto, (ii) Mortgagee neither
assumes nor shall have any obligations, duties or liabilities in connection with
any portion of the items described in the definition of "Property" herein,
either prior to or after obtaining title to such Property, whether by
foreclosure sale, the granting of a deed in lieu of foreclosure or otherwise,
and (iii)
PAGE 22
Mortgagee may, at any time prior to or after the acquisition of title to any
portion of the Property as above described, advise any party in writing as to
the extent of Mortgagee's interest therein and/or expressly disaffirm in writing
any rights, interests, obligations, duties and/or liabilities with respect to
such Property or matters related thereto. Without limiting the generality of the
foregoing, it is understood and agreed that Mortgagee shall have no obligations,
duties or liabilities prior to or after acquisition of title to any portion of
the Property, as lessee under any lease or purchaser or seller under any
contract or option unless Mortgagee elects otherwise by written notification.
ARTICLE 3 - Assignment of Rents and Leases
------------------------------
Section 3.1. Assignment. Mortgagor hereby assigns to Mortgagee all Rents
----------
(hereinafter defined) and all of Mortgagor's rights in and under all Leases
(hereinafter defined). So long as no Event of Default (hereinafter defined) has
occurred, Mortgagor shall have a license (which license shall terminate
automatically and without further notice upon the occurrence of an Event of
Default) to collect, but not prior to accrual, the Rents under the Leases and,
where applicable, subleases, such Rents to be held in trust for Mortgagee, and
to otherwise deal with all Leases as permitted by this Mortgage. Each month,
provided no Event of Default has occurred, such Rents shall be released from the
trust and Mortgagor may retain such Rents as were collected that month and may
use and enjoy the same and may distribute the same to its members. Upon the
revocation of such license, all Rents then held in trust or thereafter collected
shall be paid directly to Mortgagee and not through the Mortgagor, all without
the necessity of any further action by Mortgagee, including, without limitation,
any action to obtain possession of the Land, Improvements or any other portion
of the Property or any action for the appointment of a receiver. Mortgagor
hereby authorizes and directs the tenants under the Leases to pay Rents to
Mortgagee upon written demand by Mortgagee, without further consent of
Mortgagor, without any obligation of such tenants to determine whether an Event
of Default has in fact occurred and regardless of whether Mortgagee has taken
possession of any portion of the Property, and the tenants may rely upon any
written statement delivered by Mortgagee to the tenants. Any such payments to
Mortgagee shall constitute payments to Mortgagor under the Leases, and Mortgagor
hereby irrevocably appoints Mortgagee as its attorney-in-fact to do all things
which Mortgagor might otherwise do with respect to the Property and the Leases
thereon, including, without limitation, (i) collecting Rents with or without
suit and applying the same, less expenses of collection, to any of the
obligations secured hereunder or to expenses of operating and maintaining the
Property (including reasonable reserves for anticipated expenses), at the option
of the Mortgagee, all in such manner as may be determined by Mortgagee, or, at
the option of Mortgagee, holding the same as security for the payment of all
obligations secured hereunder, (ii) leasing, in the name of Mortgagor, the whole
or any part of the Property which may become vacant, and (iii) employing agents
therefor and paying such agents reasonable compensation for their services;
provided, however, that Mortgagee shall not exercise such rights as attorney-in-
fact until there occurs an Event of Default under the terms of the Note or this
Mortgage. The curing of such Event of Default, unless other Events of Default
also then exist, shall entitle Mortgagor to recover its aforesaid license to do
any such things which Mortgagor might otherwise do with respect to the Property
and the Leases thereon and to again collect such Rents. The powers and rights
granted in this paragraph shall be in addition to the other remedies herein
provided for upon the occurrence of an Event of Default and may be exercised
independently of or concurrently with any of said remedies. Nothing in the
foregoing shall be construed to impose any obligation upon Mortgagee to
PAGE 23
exercise any power or right granted in this paragraph or to assume any liability
under any Lease of any part of the Property and no liability shall attach to
Mortgagee for failure or inability to collect any Rents under any such Lease.
The assignment contained in this Section shall become null and void upon the
release of this Mortgage. As used herein: (i) "Lease" means the Major Lease and
-----
each existing or future lease, sublease (to the extent of Mortgagor's rights
thereunder) or other agreement under the terms of which any person has or
acquires any right to occupy or use the Property, or any part thereof, or
interest therein, and each existing or future guaranty of payment or performance
thereunder, and all extensions, renewals, modifications and replacements of each
such lease, sublease, agreement or guaranty; and (ii) "Rents" means all of the
-----
rents, revenue, income, profits and proceeds derived and to be derived from the
Property or arising from the use or enjoyment of any portion thereof or from any
Lease, including but not limited to liquidated damages following default under
any such Lease, all proceeds payable under any policy of insurance covering loss
of rents resulting from untenantability caused by damage to any part of the
Property, all of Mortgagor's rights to recover monetary amounts from any tenant
in bankruptcy including, without limitation, rights of recovery for use and
occupancy and damage claims arising out of Lease defaults, including rejections,
under any applicable Debtor Relief Law (hereinafter defined), together with any
sums of money that may now or at any time hereafter be or become due and payable
to Mortgagor by virtue of any and all royalties, overriding royalties, bonuses,
delay rentals and any other amount of any kind or character arising under any
and all present and all future oil, gas, mineral and mining leases covering the
Property or any part thereof, and all proceeds and other amounts paid or owing
to Mortgagor under or pursuant to any and all contracts and bonds relating to
the construction or renovation of the Property.
Section 3.2. Covenants, Representations and Warranties Concerning Leases
-----------------------------------------------------------
and Rents. Mortgagor covenants, represents and warrants that: (a) Mortgagor
---------
has good title to, and is the owner of the entire landlord's interest in, the
Leases and Rents hereby assigned and has authority to assign them; (b) to the
best of Mortgagor's knowledge after due inquiry, all Leases are valid and
enforceable, and in full force and effect, and are unmodified except as stated
therein; (c) except as expressly disclosed to Mortgagee in writing, neither
Mortgagor nor, to the best of Mortgagor's knowledge after due inquiry, any
tenant in the Property is in default under its Lease (and to the best of
Mortgagor's knowledge no event has occurred which with the passage of time or
notice or both would result in a default under its Lease) or is the subject of
any bankruptcy, insolvency or similar proceeding; (d) unless otherwise stated in
a Permitted Encumbrance, no Rents or Leases have been or will be assigned,
mortgaged, pledged or otherwise encumbered and no other person has or will
acquire any right, title or interest in such Rents or Leases; (e) to the best of
Mortgagor's knowledge after due inquiry, no Rents have been waived, released,
discounted, set off or compromised; (f) except as stated in the Leases,
Mortgagor has not received any funds or deposits from any tenant for which
credit has not already been made on account of accrued Rents; (g) Mortgagor
shall perform all of its obligations under the Leases and enforce the tenants'
obligations under the Leases to the extent enforcement is prudent under the
circumstances; (h) Mortgagor will not without the prior written consent of
Mortgagee, enter into any Lease after the date hereof, or waive, release,
discount, set off, compromise, reduce or defer any Rent, receive or collect
Rents more than one (1) month in advance, grant any rent-free period to any
tenant, reduce any Lease term or waive, release or otherwise modify any other
material obligation under any Lease, renew or extend any Lease except in
accordance with a right of the tenant thereto in such Lease, approve or consent
to an assignment of a Lease or a subletting of any part of the premises covered
by a Lease, or settle or compromise
PAGE 24
any claim against a tenant under a Lease in bankruptcy or otherwise; (i)
Mortgagor will not, except in good faith where the tenant is in material default
thereunder, terminate or consent to the cancellation or surrender of any Lease
having an unexpired term of more than one year unless promptly after the
cancellation or surrender a new Lease of such premises is made with a new tenant
having a credit standing, in Mortgagee's judgment, at least equivalent to that
of the tenant whose Lease was cancelled, on substantially the same terms as the
terminated or cancelled Lease; (j) Mortgagor will not execute any Lease except
in accordance with the Loan Documents and for actual occupancy by the tenant
thereunder; (k) Mortgagor shall give prompt notice to Mortgagee, as soon as
Mortgagor first obtains notice, of any claim, or the commencement of any action,
by any tenant or subtenant under or with respect to a Lease regarding any
claimed damage, default, diminution of or offset against Rent, cancellation of
the Lease, or constructive eviction, excluding, however, notices of default
under residential Leases, and Mortgagor shall defend, at Mortgagor's expense,
any proceeding pertaining to any Lease, including, if Mortgagee so requests, any
such proceeding to which Mortgagee is a party; (l) Mortgagor shall as often as
requested by Mortgagee, within ten (10) days of each request, deliver to
Mortgagee a complete rent roll of the Property in such detail as Mortgagee may
require and financial statements of the tenants, subtenants and guarantors under
the Leases to the extent available to Mortgagor, and deliver to such of the
tenants and others obligated under the Leases specified by Mortgagee written
notice of the assignment in Section 3.1 hereof in form and content satisfactory
to Mortgagee; (m) promptly upon request by Mortgagee, Mortgagor shall deliver to
Mortgagee executed originals of all Leases and copies of all records relating
thereto; (n) there shall be no merger of the leasehold estates, created by the
Leases, with the fee estate of the Land without the prior written consent of
Mortgagee; and (o) Mortgagee may at any time and from time to time by specific
written instrument intended for the purpose, unilaterally subordinate the lien
of this Mortgage to any Lease, without joinder or consent of, or notice to,
Mortgagor, any tenant or any other person, and notice is hereby given to each
tenant under a Lease of such right to subordinate. No such subordination shall
constitute a subordination to any lien or other encumbrance, whenever arising,
or improve the right of any junior lienholder; and nothing herein shall be
construed as subordinating this Mortgage to any Lease.
Section 3.3. Estoppel Certificates; Subordination, Non-Disturbance and
---------------------------------------------------------
Attornment Agreements. All new Leases shall require the tenant to execute and
---------------------
deliver to Mortgagee an estoppel certificate and a subordination, non-
disturbance and attornment agreement in form and substance acceptable to
Mortgagee within ten (10) days after notice from the Mortgagee.
Section 3.4. No Liability of Mortgagee. Mortgagee's acceptance of this
-------------------------
assignment shall not be deemed to constitute Mortgagee a "mortgagee in
possession," nor obligate Mortgagee to appear in or defend any proceeding
relating to any Lease or to the Property, or to take any action hereunder,
expend any money, incur any expenses, or perform any obligation or liability
under any Lease, or assume any obligation for any deposit delivered to Mortgagor
by any tenant and not as such delivered to and accepted by Mortgagee. Mortgagee
shall not be liable for any injury or damage to person or property in or about
the Property, unless caused solely by Mortgagee's gross negligence or wilful
misconduct, or for Mortgagee's failure to collect or to exercise diligence in
collecting Rents, but shall be accountable only for Rents that it shall actually
receive. Neither the assignment of Leases and Rents nor enforcement of
Mortgagee's rights regarding Leases and Rents (including collection of Rents)
nor possession of the Property by Mortgagee nor Mortgagee's consent to or
approval of any Lease (nor all of the same), shall render Mortgagee liable on
any
PAGE 25
obligation under or with respect to any Lease or constitute affirmation of,
or any subordination to, any Lease, occupancy, use or option.
If Mortgagee seeks or obtains any judicial relief regarding Rents or Leases, the
same shall in no way prevent the concurrent or subsequent employment of any
other appropriate rights or remedies nor shall same constitute an election of
judicial relief for any foreclosure or any other purpose. Mortgagee neither has
nor assumes any obligations as lessor or landlord with respect to any Lease.
The rights of Mortgagee under this Article 3 shall be cumulative of all other
rights of Mortgagee under the Loan Documents or otherwise.
ARTICLE 4 - Default
-------
Section 4.1. Events of Default. The occurrence of any one of the
-----------------
following shall be a default under this Mortgage ("default"):
-------
(a) Failure to Pay Indebtedness. Any of the secured indebtedness is not
---------------------------
paid when due, regardless of how such amount may have become due.
(b) Nonperformance of Covenants. Any covenant, agreement or condition
---------------------------
herein or in any other Loan Document (other than covenants otherwise addressed
in another paragraph of this Section, such as covenants to pay the secured
indebtedness) is not fully and timely performed, observed or kept, and such
failure is not cured within the applicable grace or cure period provided for in
Section 4.2 hereof.
(c) Representations. Any statement, representation or warranty in any of
---------------
the Loan Documents, or in any financial statement or any other writing
heretofore or hereafter delivered to Mortgagee in connection with the secured
indebtedness is false, misleading or erroneous in any material respect on the
date hereof or on the date as of which such statement, representation or
warranty is made.
(d) Bankruptcy or Insolvency. The owner of the Property or any person
------------------------
liable for any of the secured indebtedness (or any general partner of such owner
or other person):
(i) (A) Executes an assignment for the benefit of creditors, or takes
any action in furtherance thereof; or (B) admits in writing its inability to
pay, or fails to pay, its debts generally as they become due; or (C) as a
debtor, files a petition, case, proceeding or other action pursuant to, or
voluntarily seeks the benefit or benefits of, Title 11 of the United States Code
as now or hereafter in effect or any other law, domestic or foreign, as now or
hereafter in effect relating to bankruptcy, insolvency, liquidation,
receivership, reorganization, arrangement, composition, extension or adjustment
of debts, or similar laws affecting the rights of creditors (Title 11 of the
United States Code and such other laws being herein called "Debtor Relief
-------------
Laws"), or takes any action in furtherance thereof; or (D) seeks the appointment
----
of a receiver, trustee, custodian or liquidator of the Property or any part
thereof or of any significant portion of its other property; or
(ii) Suffers the filing of a petition, case, proceeding or other
action against it as a debtor under any Debtor Relief Law or seeking appointment
of a receiver, trustee, custodian or
PAGE 26
liquidator of the Property or any part thereof or of any significant portion of
its other property, and (A) admits, acquiesces in or fails to contest diligently
the material allegations thereof, or (B) the petition, case, proceeding or other
action results in entry of any order for relief or order granting relief sought
against it, or (C) in a proceeding under the Federal Bankruptcy Code, the case
is converted from one chapter to another, or (D) fails to have the petition,
case, proceeding or other action permanently dismissed or discharged on or
before the earlier of trial thereon or sixty (60) days next following the date
of its filing; or
(iii) Conceals, removes, or permits to be concealed or removed, any
part of its property, with intent to hinder, delay or defraud its creditors or
any of them, or makes or suffers a transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or similar law; or makes
any transfer of its property to or for the benefit of a creditor at a time when
other creditors similarly situated have not been paid; or suffers or permits,
while insolvent, any creditor to obtain a lien (other than as described in
subparagraph (iv) below) upon any of its property through legal proceedings
which are not vacated and such lien discharged prior to enforcement thereof and
in any event within sixty (60) days from the date thereof; or
(iv) Fails to have discharged within a period of thirty (30) days
any attachment, sequestration, or similar writ levied upon any of its property;
or
(v) Fails to pay immediately, or immediately post a satisfactory
bond against, any final money judgment against it.
(e) Transfer of the Property. There occurs any sale, lease, conveyance,
------------------------
assignment, pledge, encumbrance, or transfer of all or any part of the Property
or any interest therein, voluntarily or involuntarily, whether by operation of
law or otherwise, except: (i) sales or transfers of items of the Accessories
which have become obsolete or worn beyond practical use and which have been
replaced by adequate substitutes, owned by Mortgagor, having a value equal to or
greater than the replaced items when new; and (ii) the grant, in the ordinary
course of business, of a leasehold interest in a part of the Improvements to a
tenant for occupancy, not containing a right or option to purchase and not in
contravention of any provision of this Mortgage or of any other Loan Document.
Mortgagee may, in its sole discretion, waive a default under this paragraph, but
it shall have no obligation to do so, and any waiver may be conditioned upon
such one or more of the following (if any) which Mortgagee may require: the
grantee's integrity, reputation, character, creditworthiness and management
ability being satisfactory to Mortgagee in its sole judgment and such grantee's
executing, prior to such sale or transfer, a written assumption agreement
containing such terms as Mortgagee may require, a principal paydown on the Note,
an increase in the rate of interest payable under the Note, a transfer fee, a
modification of the term of the Note, and any other modification of the Loan
Documents which Mortgagee may require.
(f) Transfer of Ownership of Mortgagor. There occurs any sale, pledge,
----------------------------------
encumbrance, assignment or transfer, voluntarily or involuntarily, whether by
operation of law or otherwise, of any interest in Mortgagor or any other entity
liable for any of the secured indebtedness, without the prior written consent of
Mortgagee (including, without limitation, the withdrawal from or admission into
Mortgagor or any such other entity of any member).
PAGE 27
(g) Grant of Easement, Etc. Without the prior written consent of
-----------------------
Mortgagee, Mortgagor grants any easement or dedication, files any plat,
condominium declaration, or restriction, or otherwise encumbers the Property, or
seeks or permits any zoning reclassification or variance, unless such action is
expressly permitted by the Loan Documents or does not affect the Property.
(h) Abandonment. The owner of the Property abandons any of the Property.
-----------
(i) Default Under Other Lien. A default or event of default occurs under
------------------------
any lien, security interest or assignment covering the Property or any part
thereof (whether or not Mortgagee has consented, and without hereby implying
Mortgagee's consent, to any such lien, security interest or assignment not
created hereunder) and such default or event of default is not cured within the
time (if any) permitted in such lien, security interest or assignment, or the
holder of any such lien, security interest or assignment declares a default or
institutes foreclosure or other proceedings for the enforcement of its remedies
thereunder.
(j) Destruction. Subject to Subparagraph (g) of Section 2.1, the Property
-----------
is so demolished, destroyed or damaged that, in the reasonable opinion of
Mortgagee, it cannot be restored or rebuilt with available funds to a profitable
condition within a reasonable period of time and in any event prior to the final
maturity date of the Note.
(k) Condemnation. Subject to Subparagraph (g) of Section 2.1, (i) any
------------
governmental authority shall require, or commence any proceeding for, the
demolition of any building or structure comprising a material portion of the
Premises (which for these purposes, shall mean more than ten percent (10%) of
the Land and Improvements), or (ii) there is commenced any proceeding to condemn
or otherwise take pursuant to the power of eminent domain, or a contract for
sale or a conveyance in lieu of such a taking is executed which provides for the
transfer of, a material portion of the Premises, including but not limited to
the taking (or transfer in lieu thereof) of any portion which would result in
the blockage or substantial impairment of access or utility service to the
Improvements or which would cause the Premises to fail to comply with any Legal
Requirement.
(l) Liquidation, Etc. There occurs a liquidation, termination,
-----------------
dissolution, merger, consolidation or failure, for a period of thirty (30) days
after written notice thereof to Mortgagor, to maintain good standing in the
State of Illinois and/or the state of incorporation or organization, if
different of Mortgagor, any owner of the Property or any person obligated to pay
any part of the secured indebtedness.
(m) Material, Adverse Change. In Mortgagee's reasonable opinion, the
------------------------
prospect of payment of all or any part of the secured indebtedness has been
impaired because of a material, adverse change in the financial condition,
results of operations, business or properties of any owner of the Property or
any person liable for any of the secured indebtedness, or of any general partner
thereof (if such owner or other person is a partnership).
(n) Enforceability; Priority. Any Loan Document shall for any reason
------------------------
without Mortgagee's specific written consent cease to be in full force and
effect, or shall be declared null and void or unenforceable in whole or in part,
or the validity or enforceability thereof, in whole or in part, shall be
challenged or denied by any party thereto other than Mortgagee; or the liens,
PAGE 28
interests, mortgages or security interests of Mortgagee in any of the Property
become unenforceable in whole or in part, or cease to be of the priority herein
required, or the validity or enforceability thereof, in whole or in part, shall
be challenged or denied by Mortgagor or any person obligated to pay any part of
the secured indebtedness.
(o) Other Loan Documents. A default or Event of Default occurs under any
--------------------
Loan Document, other than an Event of Default under this Mortgage.
(p) Major Lease. A default or Event of Default occurs under the Major
-----------
Lease and remains uncured beyond any grace or cure period provided therein.
Section 4.2 Notice and Cure. Mortgagee agrees, by its acceptance of this
---------------
Mortgage, that notwithstanding anything to the contrary contained herein or in
any of the other Loan Documents, upon the occurrence of any default of the type
described in Subparagraphs (a), (b), (m), (n) or (o) of Section 4.1 of this
Mortgage, Mortgagee will not accelerate the maturity of the Note or the secured
indebtedness and will not exercise any of its other rights and remedies
hereunder or under the other Loan Documents until and unless Mortgagee has first
given notice of such default to Mortgagor, in the manner prescribed in Section
6.13 of this Mortgage, and Mortgagor has failed to cure such default within the
following periods of time:
(a) If such default is a default of the type described in Subparagraph
(a), (m), (n) or (o) of Section 4.1 of this Mortgage, Mortgagor shall have a
period of ten (10) days from and after the effective date of such notice within
which to cure such default; or
(b) If such default is a default of the type described in Subparagraph (b)
of Section 4.1 of this Mortgage, Mortgagor shall have a period of thirty (30)
days from and after the effective date of such notice within which to cure such
default.
The occurrence of a default, and the failure to cure the same within any
applicable cure period if the opportunity to cure such default is afforded to
Mortgagor hereunder, shall constitute an "Event of Default" under this Mortgage.
----------------
After the occurrence of three (3) such defaults in any consecutive twelve
(12) month period, and the giving of notice thereof by Mortgagee, Mortgagee
shall not be obligated to give to Mortgagor any further notice of default or
opportunity to cure the same. The agreements set forth in this Section 4.2 do
not and shall not be deemed to prevent or prohibit Mortgagee from withholding
any advances of the secured indebtedness, following the occurrence of a default,
until and unless such default shall have been cured.
If Mortgagee shall fail to give such notice and right to cure to Mortgagor
as provided herein, the sole and exclusive remedy of Mortgagor for such failure
shall be to seek appropriate equitable relief to enforce the agreement to give
such notice and right to cure and to have any acceleration of the maturity of
the Note and the secured indebtedness postponed or revoked and foreclosure or
other proceedings in connection therewith delayed or terminated pending or upon
the curing of such default in the manner and during the period of time permitted
by such agreement, and Mortgagor shall have no right to damages or any other
type of relief not herein specifically set
PAGE 29
out against Mortgagee, all of which damages or other relief are hereby waived by
Mortgagor. Nothing herein or in any of the other Loan Documents shall operate or
be construed to add on or make cumulative any cure or grace periods specified in
any of the Loan Documents.
ARTICLE 5 - Remedies
--------
Section 5.1. Certain Remedies. If an Event of Default shall occur,
----------------
Mortgagee may (but shall have no obligation to) exercise any one or more of the
following remedies, without notice (unless notice is required by applicable
statute):
(a) Acceleration. Mortgagee may at any time and from time to time declare
------------
any or all of the secured indebtedness immediately due and payable and such
secured indebtedness shall thereupon be immediately due and payable, without
presentment, demand, protest, notice of protest, notice of acceleration or of
intention to accelerate or any other notice or declaration of any kind, all of
which are hereby expressly waived by Mortgagor. Without limitation of the
foregoing, upon the occurrence of a default described in clauses (A), (C) or (D)
of subparagraph (i) of paragraph (d) of Section 4.1, hereof, all of the secured
indebtedness shall thereupon be immediately due and payable, without
presentment, demand, protest, notice of protest, declaration or notice of
acceleration or intention to accelerate, or any other notice, declaration or act
of any kind, all of which are hereby expressly waived by Mortgagor.
(b) Enforcement of Assignment of Rents. In addition to the rights of
----------------------------------
Mortgagee under Article 3 hereof, prior or subsequent to taking possession of
any portion of the Property or taking any action with respect to such
possession, Mortgagee may: (1) collect and/or xxx for the Rents in Mortgagee's
own name, give receipts and releases therefor, and after deducting all expenses
of collection, including attorneys' fees and expenses, apply the net proceeds
thereof to the secured indebtedness in such manner and order as Mortgagee may
elect and/or to the operation and management of the Property, including the
payment of management, brokerage and attorney's fees and expenses; and (2)
require Mortgagor to transfer all security deposits and records thereof to
Mortgagee together with original counterparts of the Leases.
(c) Foreclosure. Mortgagor may foreclose the lien of this Mortgage and
-----------
obtain possession of the Collateral, by any lawful procedures.
(d) Uniform Commercial Code. Without limitation of Mortgagee's rights of
-----------------------
enforcement with respect to the Collateral or any part thereof in accordance
with the procedures for foreclosure of real estate, Mortgagee may exercise its
rights of enforcement with respect to the Collateral or any part thereof under
the Uniform Commercial Code as adopted in the State of Illinois, as amended (or
under the Uniform Commercial Code in force in any other state to the extent the
same is applicable law) and in conjunction with, in addition to or in
substitution for those rights and remedies: (1) Mortgagee may enter upon
Mortgagor's premises to take possession of, assemble and collect the Collateral
or, to the extent and for those items of the Collateral permitted under
applicable law, to render it unusable; (2) Mortgagee may require Mortgagor to
assemble the Collateral and make it available at a place Mortgagee designates
which is mutually convenient to allow Mortgagee to take possession or dispose of
the Collateral; (3) written notice mailed to Mortgagor as provided herein at
least five (5) days prior to the date of public sale of the Collateral
PAGE 30
or prior to the date after which private sale of the Collateral will be made
shall constitute reasonable notice; (4) any sale made pursuant to the provisions
of this paragraph shall be deemed to have been a public sale conducted in a
commercially reasonable manner if held contemporaneously with and upon the same
notice as required for the sale of the Property under applicable law; (5) in the
event of a foreclosure sale, the Collateral and the other Property may, at the
option of Mortgagee, be sold as a whole; (6) it shall not be necessary that
Mortgagee take possession of the Collateral or any part thereof prior to the
time that any sale pursuant to the provisions of this Section is conducted and
it shall not be necessary that the Collateral or any part thereof be present at
the location of such sale; (7) with respect to application of proceeds of
disposition of the Collateral under Section 5.2 hereof, the costs and expenses
incident to disposition shall include the reasonable expenses of retaking,
holding, preparing for sale or lease, selling, leasing and the like and the
reasonable attorneys' fees and legal expenses incurred by Mortgagee; (8) any and
all statements of fact or other recitals made in any xxxx of sale or assignment
or other instrument evidencing any foreclosure sale hereunder as to nonpayment
of the secured indebtedness or as to the occurrence of any Event of Default, or
as to Mortgagee having declared all of such indebtedness to be due and payable,
or as to notice of time, place and terms of sale and of the properties to be
sold having been duly given, or as to any other act or thing having been duly
done by Mortgagee, shall be taken as prima facie evidence of the truth of the
facts so stated and recited; and (9) Mortgagee may appoint or delegate any one
or more persons as agent to perform any act or acts necessary or incident to any
sale held by Mortgagee, including the sending of notices and the conduct of the
sale, but in the name and on behalf of Mortgagee.
(e) Lawsuits. Subject to the terms of Section 10 of the Note, Mortgagee
--------
may proceed by a suit or suits in equity or at law, whether for collection of
the indebtedness secured hereby, the specific performance of any covenant or
agreement herein contained or for foreclosure hereunder or for the sale of the
Property under the judgment or decree of any court or courts of competent
jurisdiction.
(f) Entry on Property. Mortgagee is authorized, prior or subsequent to the
-----------------
institution of any foreclosure proceedings, to the fullest extent permitted by
applicable law, to enter upon the Property, or any part thereof, and to take
possession of the Property and all books and records 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 Property. Mortgagee shall not be deemed to have taken
possession of the Property or any part thereof except upon the exercise of its
right to do so, and then only to the extent evidenced by its demand and overt
act specifically for such purpose. All costs, expenses and liabilities of every
character incurred by Mortgagee in managing, operating, maintaining, protecting
or preserving the Property shall constitute a demand obligation of Mortgagor
(which obligation Mortgagor hereby promises to pay) to Mortgagee pursuant to
this Mortgage. If necessary to obtain the possession provided for above,
Mortgagee may invoke any and all legal remedies to dispossess Mortgagor. In
connection with any action taken by Mortgagee pursuant to this Section,
Mortgagee shall not be liable for any loss sustained by Mortgagor resulting from
any failure to let the Property or any part thereof, or from any act or omission
of Mortgagee in managing the Property unless such loss is caused by the willful
misconduct and bad faith of Mortgagee, nor shall Mortgagee be obligated to
perform or discharge any obligation, duty or liability of Mortgagor arising
under any lease or other agreement relating to the Property or arising under any
Permitted Encumbrance or otherwise
PAGE 31
arising. Mortgagor hereby assents to, ratifies and confirms any and all actions
of Mortgagee with respect to the Property taken under this Section.
(g) Receiver. Mortgagee shall as a matter of right be entitled to the
--------
appointment of a receiver or receivers for all or any part of the Property,
whether such receivership be incident to a proposed sale (or sales) of such
property or otherwise, and without regard to the value of the Property or the
solvency of any person or persons liable for the payment of the indebtedness
secured hereby, and Mortgagor does hereby irrevocably consent to the appointment
of such receiver or receivers, waives notice of such appointment, of any request
therefor or hearing in connection therewith, and any and all defenses to such
appointment, agrees not to oppose any application therefor by Mortgagee, and
agrees that such appointment shall in no manner impair, prejudice or otherwise
affect the rights of Mortgagee to application of Rents as provided in this
Mortgage. Nothing herein is to be construed to deprive Mortgagee of any other
right, remedy or privilege it may have under the law to have a receiver
appointed. Any money advanced by Mortgagee in connection with any such
receivership shall be a demand obligation (which obligation Mortgagor hereby
promises to pay) owing by Mortgagor to Mortgagee pursuant to this Mortgage.
(h) Termination of Commitment to Lend. Mortgagee may terminate any
---------------------------------
commitment or obligation to lend or disburse funds under any Loan Document.
(i) Other Rights and Remedies. Mortgagee may exercise any and all other
-------------------------
rights and remedies which Mortgagee may have under the Loan Documents, or at law
or in equity or otherwise.
Section 5.2. Proceeds of Foreclosure. The proceeds of any sale held in
-----------------------
foreclosure of the liens and interests evidenced hereby shall be applied:
FIRST, to the payment of all necessary costs and expenses incident to such
-----
foreclosure sale, including but not limited to all reasonable and actual
attorneys' fees and legal expenses, advertising costs, auctioneer's fees, costs
of title rundowns and lien searches, inspection fees, appraisal costs, fees for
professional services, environmental assessment and remediation fees, all court
costs and charges of every character, and to the payment of the other secured
indebtedness, including specifically without limitation the principal, accrued
interest and attorneys' fees due and unpaid on the Note and the amounts due and
unpaid and owed to Mortgagee under this Mortgage, the order and manner of
application to the items in this clause FIRST to be in Mortgagee's sole
-----
discretion; and SECOND, the remainder, if any there shall be, shall be paid to
------
Mortgagor, or to Mortgagor's heirs, devisees, representatives, successors or
assigns, or such other persons (including the holder or beneficiary of any
inferior lien) as may be entitled thereto by law; provided, however, that if
Mortgagee is uncertain which person or persons are so entitled, Mortgagee may
interplead such remainder in any court of competent jurisdiction, and the amount
of any attorneys' fees, court costs and expenses incurred in such action shall
be a part of the secured indebtedness and shall be reimbursable (without
limitation) from such remainder.
Section 5.3. Mortgagee as Purchaser. Mortgagee shall have the right to
----------------------
become the purchaser at any public sale, and Mortgagee shall have the right to
credit upon the amount of Mortgagee's successful bid, to the extent necessary to
satisfy such bid, all or any part of the secured indebtedness in such manner and
order as Mortgagee may elect.
PAGE 32
Section 5.4. Remedies Cumulative. All rights and remedies provided for
-------------------
herein and in any other Loan Document are cumulative of each other and of any
and all other rights and remedies existing at law or in equity, and Mortgagee
shall, in addition to the rights and remedies provided herein or in any other
Loan Document, be entitled to avail itself of all such other rights and remedies
as may now or hereafter exist at law or in equity for the collection of the
secured indebtedness and the enforcement of the covenants herein and the
foreclosure of the liens and interests evidenced hereby, and the resort to any
right or remedy provided for hereunder or under any such other Loan Document or
provided for by law or in equity shall not prevent the concurrent or subsequent
employment of any other appropriate right or rights or remedy or remedies.
Section 5.5. Mortgagee's Discretion as to Security. Mortgagee may resort
-------------------------------------
to any security given by this Mortgage or to any other security now existing or
hereafter given to secure the payment of the secured indebtedness, in whole or
in part, and in such portions and in such order as may seem best to Mortgagee in
its sole and uncontrolled discretion, and any such action shall not in any way
be considered as a waiver of any of the rights, benefits, liens or interests
evidenced by this Mortgage.
Section 5.6. Mortgagor's Waiver of Certain Rights. To the full extent
------------------------------------
Mortgagor may do so, Mortgagor agrees that Mortgagor will not at any time insist
upon, plead, claim or take the benefit or advantage of any law now or hereafter
in force providing for any appraisement, valuation, stay, extension or statutory
right of redemption, and Mortgagor, for Mortgagor, Mortgagor's heirs, devisees,
representatives, successors and assigns, and for any and all persons ever
claiming any interest in the Property, to the extent permitted by applicable
law, hereby waives and releases all rights of valuation, appraisement, stay of
execution, notice of intention to mature or declare due the whole of the secured
indebtedness, notice of election to mature or declare due the whole of the
secured indebtedness and all rights to a marshaling of assets of Mortgagor,
including the Property, or to a sale in inverse order of alienation in the event
of foreclosure of the liens and/or security interests hereby created, or
statutory right of redemption. Mortgagor shall not have or assert any right
under any statute or rule of law pertaining to the marshaling of assets, sale in
inverse order of alienation, the exemption of homestead, the administration of
estates of decedents, or other matters whatever to defeat, reduce or affect the
right of Mortgagee under the terms of this Mortgage to a sale of the Property
for the collection of the secured indebtedness without any prior or different
resort for collection, or the right of Mortgagee under the terms of this
Mortgage to the payment of the secured indebtedness out of the proceeds of sale
of the Property in preference to every other claimant whatever. Mortgagor waives
any right or remedy which Mortgagor may have or be able to assert pursuant to
any provision of Illinois law, pertaining to the rights and remedies of
sureties. If any law referred to in this Section and now in force, of which
Mortgagor or Mortgagor's heirs, devisees, representatives, successors or assigns
or any other persons claiming any interest in the Property might take advantage
despite this Section, shall hereafter be repealed or cease to be in force, such
law shall not thereafter be deemed to preclude the application of this Section.
Section 5.7. Delivery of Possession After Foreclosure. In the event there
----------------------------------------
is a foreclosure sale hereunder and at the time of such sale, Mortgagor or
Mortgagor's heirs, devisees, representatives or successors as owners of the
Property are occupying or using the Property, or any part thereof, each and all
shall immediately become the tenant of the purchaser at such sale, which tenancy
shall be a tenancy from day to day, terminable at the will of landlord, at a
reasonable rental
PAGE 33
per day based upon the value of the property occupied, such rental to be due
daily to the purchaser; and to the extent permitted by applicable law, the
purchaser at such sale shall, notwithstanding any language herein apparently to
the contrary, have the sole option to demand immediate possession following the
sale or to permit the occupants to remain as tenants at will. After such
foreclosure, any Leases to tenants or subtenants that are subject to this
Mortgage (either by their date, their express terms, or by agreement of the
tenant or subtenant) shall, at the sole option of Mortgagee or any purchaser at
such sale, either (i) continue in full force and effect, and the tenant(s) or
subtenant(s) thereunder will, upon request, attorn to and acknowledge in writing
to the purchaser or purchasers at such sale or sales as landlord thereunder, or
(ii) upon notice to such effect from Mortgagee or any purchaser or purchasers,
terminate within thirty (30) days from the date of sale. In the event the tenant
fails to surrender possession of the Property upon demand, the purchaser shall
be entitled to institute and maintain a summary action for possession of the
Property (such as an action for unlawful detainer) in any court having
jurisdiction.
ARTICLE 6 - Miscellaneous
-------------
Section 6.1. Scope of Mortgage. This Mortgage is a mortgage of real
-----------------
property, a security agreement, an assignment of rents and leases, a financing
statement and a collateral assignment of personal property, and also covers
proceeds and fixtures.
Section 6.2. Effective as a Financing Statement. This Mortgage shall be
----------------------------------
effective as a financing statement filed as a fixture filing with respect to all
fixtures included within the Property and is to be filed for record in the real
estate records of each county where any part of the Property (including said
fixtures) is situated. This Mortgage shall also be effective as a financing
statement covering minerals or the like (including oil and gas) and accounts,
subject to Subsection (5) of Section 9-103 of the Uniform Commercial Code as
adopted in the State of Illinois, as amended, and similar provisions (if any) of
the Uniform Commercial Code as enacted in any other state where the Property is
situated, resulting from the sale thereof at the wellhead or minehead of the
xxxxx or mines located on the Property and is to be filed for record in the real
estate records of each county where any part of the Property is situated. This
Mortgage shall also be effective as a financing statement covering any other
Property and may be filed in any other appropriate filing or recording office.
The mailing address of Mortgagor and the Mortgagee are set forth in the preamble
of this Mortgage and the address of Mortgagee from which information concerning
the security interests hereunder may be obtained is the address of Mortgagee set
forth at the end of this Mortgage. A carbon, photographic or other reproduction
of this Mortgage or of any financing statement relating to this Mortgage shall
be sufficient as a financing statement for any of the purposes referred to in
this Section.
Section 6.3. Notice to Account Debtors. In addition to the rights granted
-------------------------
elsewhere in this Mortgage, Mortgagee may at any time notify the account debtors
or obligors of any accounts, chattel paper, negotiable instruments or other
evidences of indebtedness included in the Collateral to pay Mortgagee directly.
Section 6.4. Waiver by Mortgagee. Mortgagee may at any time and from time
-------------------
to time by a specific writing intended for the purpose: (a) waive compliance by
Mortgagor with any covenant herein made by Mortgagor to the extent and in the
manner specified in such writing; (b) consent to
PAGE 34
Mortgagor's doing any act which hereunder Mortgagor is prohibited from doing, or
to Mortgagor's failing to do any act which hereunder Mortgagor is required to
do, to the extent and in the manner specified in such writing; (c) release any
part of the Property or any interest therein from the lien and security interest
of this Mortgage, or (d) release any party liable, either directly or
indirectly, for the secured indebtedness or for any covenant herein or in any
other Loan Document, without impairing or releasing the liability of any other
party. No such act shall in any way affect the rights or powers of Mortgagee
hereunder except to the extent specifically agreed to by Mortgagee in such
writing.
Section 6.5. No Impairment of Security. The lien, interest and other
-------------------------
security rights of Mortgagee hereunder or under any other Loan Document shall
not be impaired by any indulgence, moratorium or release granted by Mortgagee
including, but not limited to, any renewal, extension or modification which
Mortgagee may grant with respect to any secured indebtedness, or any surrender,
compromise, release, renewal, extension, exchange or substitution which
Mortgagee may grant in respect of the Property, or any part thereof or any
interest therein, or any release or indulgence granted to any endorser,
guarantor or surety of any secured indebtedness. The taking of additional
security by Mortgagee shall not release or impair the lien, interest or other
security rights of Mortgagee hereunder or affect the liability of Mortgagor or
of any endorser, guarantor or surety, or improve the right of any junior
lienholder in the Property (without implying hereby Mortgagee's consent to any
junior lien).
Section 6.6. Acts Not Constituting Waiver by Mortgagee. Mortgagee may
-----------------------------------------
waive any default or Event of Default without waiving any other prior or
subsequent default. Mortgagee may remedy any default without waiving the default
remedied. Neither failure by Mortgagee to exercise, nor delay by Mortgagee in
exercising, nor discontinuance of the exercise of any right, power or remedy
(including but not limited to the right to accelerate the maturity of the
secured indebtedness or any part thereof) upon or after any default or Event of
Default shall be construed as a waiver of such default or Event of Default or as
a waiver of the right to exercise any such right, power or remedy at a later
date. No single or partial exercise by Mortgagee of any right, power or remedy
hereunder shall exhaust the same or shall preclude any other or further exercise
thereof, and every such right, power or remedy hereunder may be exercised at any
time and from time to time. No modification or waiver of any provision hereof
nor consent to any departure by Mortgagor therefrom shall in any event be
effective unless the same shall be in writing and signed by Mortgagee and then
such waiver or consent shall be effective only in the specific instance, for the
purpose for which given and to the extent therein specified. No notice to nor
demand on Mortgagor in any case shall of itself entitle Mortgagor to any other
or further notice or demand in similar or other circumstances. Remittances in
payment of any part of the secured indebtedness other than in the required
amount in immediately available U.S. funds shall not, regardless of any receipt
or credit issued therefor, constitute payment until the required amount is
actually received by Mortgagee in immediately available U. S. funds and shall be
made and accepted subject to the condition that any check or draft may be
handled for collection in accordance with the practice of the collecting bank or
banks. Acceptance by Mortgagee of any payment in an amount less than the amount
then due on any secured indebtedness shall be deemed an acceptance on account
only and shall not in any way excuse the existence of a default hereunder.
PAGE 35
Section 6.7. Mortgagor's Successors. If the ownership of the Property or
----------------------
any part thereof becomes vested in a person other than Mortgagor, Mortgagee may,
without notice to Mortgagor, deal with such successor or successors in interest
with reference to this Mortgage and to the indebtedness secured hereby in the
same manner as with Mortgagor, without in any way vitiating or discharging
Mortgagor's liability hereunder or for the payment of the indebtedness or
performance of the obligations secured hereby. No transfer of the Property, no
forbearance on the part of Mortgagee, and no extension of the time for the
payment of the indebtedness secured hereby given by Mortgagee shall operate to
release, discharge, modify, change or affect, in whole or in part, the liability
of Mortgagor hereunder for the payment of the indebtedness or performance of the
obligations secured hereby or the liability of any other person hereunder for
the payment of the indebtedness secured hereby. Each Mortgagor agrees that it
shall be bound by any modification of this Mortgage or any of the other Loan
Documents made by Mortgagee and any subsequent owner of the Property, with or
without notice to such Mortgagor, and no such modifications shall impair the
obligations of such Mortgagor under this Mortgage or any other Loan Document.
Nothing in this Section or elsewhere in this Mortgage shall be construed to
imply Mortgagee's consent to any transfer of the Property.
Section 6.8. Place of Payment; Forum. All secured indebtedness which may
-----------------------
be owing hereunder at any time by Mortgagor shall be payable at the place
designated in the Note (or if no such designation is made, at the address of
Mortgagee indicated at the end of this Mortgage). Mortgagor hereby irrevocably
submits generally and unconditionally for itself and in respect of its property
to the non-exclusive jurisdiction of any Illinois state court, or any United
States federal court, sitting in the city or county in which the secured
indebtedness is payable, and to the non-exclusive jurisdiction of any state or
United States federal court sitting in the state in which any of the Property is
located, over any suit, action or proceeding arising out of or relating to this
Mortgage or the secured indebtedness. Mortgagor hereby agrees and consents that,
in addition to any methods of service of process provided for under applicable
law, all service of process in any such suit, action or proceeding in any
Illinois state court, or any United States federal court, sitting in the city or
county in which the secured indebtedness is payable may be made by certified or
registered mail, return receipt requested, directed to Mortgagor at its address
stated in this Mortgage, or at a subsequent address of Mortgagor of which
Mortgagee received actual notice from Mortgagor in accordance with this
Mortgage, and service so made shall be complete five (5) days after the same
shall have been so mailed.
Section 6.9. Subrogation to Existing Liens; Vendor's Lien. To the extent
--------------------------------------------
that proceeds of the Note are used to pay indebtedness secured by any
outstanding lien, interest, charge or prior encumbrance against the Property,
such proceeds have been advanced by Mortgagee at Mortgagor's request, and
Mortgagee shall be subrogated to any and all rights, interests and liens owned
by any owner or holder of such outstanding liens, interests, charges or
encumbrances, however remote, irrespective of whether said liens, security
interests, charges or encumbrances are released, and all of the same are
recognized as valid and subsisting and are renewed and continued and merged
herein to secure the secured indebtedness, but the terms and provisions of this
Mortgage shall govern and control the manner and terms of enforcement of the
liens, security interests, charges and encumbrances to which Mortgagee is
subrogated hereunder. It is expressly understood that, in consideration of the
payment of such indebtedness by Mortgagee, Mortgagor hereby waives and releases
all demands and causes of action for offsets and payments in connection with the
said
PAGE 36
indebtedness. If all or any portion of the proceeds of the loan evidenced by the
Note or of any other secured indebtedness has been advanced for the purpose of
paying the purchase price for all or a part of the Property, no vendor's lien is
waived; and Mortgagee shall have, and is hereby granted, a vendor's lien on the
Property as cumulative additional security for the secured indebtedness.
Mortgagee may foreclose under this Mortgage or under the vendor's lien without
waiving the other or may foreclose under both.
Section 6.10. Application of Payments to Certain Indebtedness. If any
-----------------------------------------------
part of the secured indebtedness cannot be lawfully secured by this Mortgage or
if any part of the Property cannot be lawfully subject to the lien and interest
hereof to the full extent of such indebtedness, then all payments made shall be
applied on said indebtedness first in discharge of that portion thereof which is
not secured by this Mortgage.
Section 6.11. Nature of Loan: Compliance with Usury Laws. The loan
-------------------------------------------
evidenced by the Note is being made solely for the purpose of carrying on or
acquiring a business or commercial enterprise. It is the intent of Mortgagor and
Mortgagee and all other parties to the Loan Documents to conform to and contract
in strict compliance with applicable usury law from time to time in effect. All
agreements between Mortgagee and Mortgagor (or any other party liable with
respect to any indebtedness under the Loan Documents) are hereby limited by the
provisions of this Section which shall override and control all such agreements,
whether now existing or hereafter arising. In no way, nor in any event or
contingency (including but not limited to prepayment, default, demand for
payment, or acceleration of the maturity of any obligation), shall the interest
taken, reserved, contracted for, charged, chargeable, or received under this
Mortgage, the Note or any other Loan Document or otherwise, exceed the maximum
nonusurious amount permitted by applicable law (the "Maximum Amount"). If, from
--------------
any possible construction of any document, interest would otherwise be payable
in excess of the Maximum Amount, any such construction shall be subject to the
provisions of this Section and such document shall ipso facto be automatically
reformed and the interest payable shall be automatically reduced to the Maximum
Amount, without the necessity of execution of any amendment or new document. If
Mortgagee shall ever receive anything of value which is characterized as
interest under applicable law and which would apart from this provision be in
excess of the Maximum Amount, an amount equal to the amount which would have
been excessive interest shall, without penalty, be applied to the reduction of
the principal amount owing on the secured indebtedness in the inverse order of
its maturity and not to the payment of interest, or refunded to Mortgagor or the
other payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal. The right to accelerate maturity of the
Note or any other secured indebtedness does not include the right to accelerate
any interest which has not otherwise accrued on the date of such acceleration,
and Mortgagee does not intend to charge or receive any unearned interest in the
event of acceleration. All interest paid or agreed to be paid to Mortgagee
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term (including any renewal or
extension) of such indebtedness so that the amount of interest on account of
such indebtedness does not exceed the Maximum Amount. As used in this Section,
the term "applicable law" shall mean the laws of the State of Illinois or the
--------------
federal laws of the United States applicable to this transaction, whichever laws
allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future.
PAGE 37
Section 6.12. Cancellation of Mortgage. If all of the secured
------------------------
indebtedness be paid as the same becomes due and payable and all of the
covenants, warranties, undertakings and agreements made in this Mortgage are
kept and performed, and all obligations, if any, of Mortgagee for further
advances have been terminated, then, and in that event only, all rights under
this Mortgage shall terminate (except to the extent expressly provided herein
with respect to indemnifications, representations and warranties and other
rights which are to continue following the release hereof) and the Property
shall become wholly clear of the liens, security interests, conveyances and
assignments evidenced hereby, and this Mortgage shall be cancelled by Mortgagee
in due form at Mortgagor's cost. Without limitation, all provisions herein for
indemnity of Mortgagee shall survive discharge of the secured indebtedness and
any foreclosure, release or termination of this Mortgage.
Section 6.13. Notices. All notices, requests, consents, demands and other
-------
communications required or which any party desires to give hereunder or under
any other Loan Document shall be in writing and, unless otherwise specifically
provided in such other Loan Document, shall be deemed sufficiently given or
furnished if delivered by personal delivery, by courier, or by registered or
certified United States mail, postage prepaid, addressed to the party to whom
directed at the addresses specified in this Mortgage (unless changed by similar
notice in writing given by the particular party whose address is to be changed)
or by telegram, telex, or facsimile. Any such notice or communication shall be
deemed to have been given either at the time of personal delivery or, in the
case of courier or mail, as of the date of first attempted delivery at the
address and in the manner provided herein, or, in the case of telex, when
transmitted (answerback confirmed), or in the case of facsimile, upon receipt.
Notwithstanding the foregoing, no notice of change of address shall be effective
except upon receipt. This Section shall not be construed in any way to affect or
impair any waiver of notice or demand provided in any Loan Document or to
require giving of notice or demand to or upon any person in any situation or for
any reason.
Section 6.14. Invalidity of Certain Provisions. A determination that any
--------------------------------
provision of this Mortgage is unenforceable or invalid shall not affect the
enforceability or validity of any other provision and the determination that the
application of any provision of this Mortgage to any person or circumstance is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
Section 6.15. Gender; Titles; Construction; Control Over Other Documents.
----------------------------------------------------------
Within this Mortgage, words of any gender shall be held and construed to include
any other gender, and words in the singular number shall be held and construed
to include the plural, unless the context otherwise requires. Titles appearing
at the beginning of any subdivisions hereof are for convenience only, do not
constitute any part of such subdivisions, and shall be disregarded in construing
the language contained in such subdivisions. The use of the words "herein,"
------
"hereof," "hereunder" and other similar compounds of the word "here" shall refer
------- --------- ----
to this entire Mortgage and not to any particular Article, Section, paragraph or
provision. The term "person" and words importing persons as used in this
------
Mortgage shall include firms, associations, partnerships (including limited
partnerships), joint ventures, trusts, corporations, limited liability companies
and other legal entities, including public or governmental bodies, agencies or
instrumentalities, as well as natural persons. In the event of a conflict
between the terms of this Mortgage and the terms of any of the other Loan
Documents, the terms of this Mortgage shall control.
PAGE 38
Section 6.16. Reporting Compliance. Mortgagor agrees to comply with any
--------------------
and all reporting requirements applicable to the transaction evidenced by the
Note and secured by this Mortgage which are set forth in any law, statute,
ordinance, rule, regulation, order or determination of any governmental
authority, including but not limited to The International Investment Survey Act
of 1976, The Agricultural Foreign Investment Disclosure Act of 1978, The Foreign
Investment in Real Property Tax Act of 1980 and the Tax Reform Act of 1984 and
further agrees upon request of Mortgagee to furnish Mortgagee with evidence of
such compliance.
Section 6.17. Mortgagee's Consent. Except where otherwise expressly
-------------------
provided herein, in any instance hereunder where the approval, consent or the
exercise of judgment of Mortgagee is required or requested, (a) the granting or
denial of such approval or consent and the exercise of such judgment shall be
within the sole discretion of Mortgagee, and Mortgagee shall not, for any reason
or to any extent, be required to grant such approval or consent or exercise such
judgment in any particular manner, regardless of the reasonableness of either
the request or Mortgagee's judgment, and (b) no approval or consent of Mortgagee
shall be deemed to have been given except by a specific writing intended for the
purpose and executed by an authorized representative of Mortgagee.
Section 6.18. Mortgagor. Unless the context clearly indicates otherwise,
---------
as used in this Mortgage, "Mortgagor" means the mortgagors named on the first
---------
page hereof or any of them. The obligations of Mortgagor hereunder shall be
joint and several. If any Mortgagor, or any signatory who signs on behalf of any
Mortgagor, is a corporation, partnership or other legal entity, Mortgagor and
any such signatory, and the person or persons signing for it, represent and
warrant to Mortgagee that this instrument is executed, acknowledged and
delivered by Mortgagor's duly authorized representatives. If Mortgagor is an
individual, no power of attorney granted by Mortgagor herein shall terminate on
Mortgagor's disability.
Section 6.19. Execution; Recording. This Mortgage has been executed in
--------------------
several counterparts, all of which are identical, and all of which counterparts
together shall constitute one and the same instrument. The date or dates
reflected in the acknowledgments hereto indicate the date or dates of actual
execution of this Mortgage, but such execution is as of the date shown on the
first page hereof, and for purposes of identification and reference the date of
this Mortgage shall be deemed to be the date reflected on the first page hereof.
Mortgagor will cause this Mortgage and all amendments and supplements thereto
and substitutions therefor and all financing statements and continuation
statements relating thereto to be recorded, filed, re-recorded and refiled in
such manner and in such places as Mortgagee shall reasonably request and will
pay all such recording, filing, re-recording and refiling taxes, fees and other
charges.
Section 6.20. Successors and Assigns. The terms, provisions, covenants
----------------------
and conditions hereof shall be binding upon Mortgagor, and the heirs, devisees,
representatives, successors and assigns of Mortgagor, and shall inure to the
benefit of Mortgagee and shall constitute covenants running with the Land. All
references in this Mortgage to Mortgagor shall be deemed to include all such
heirs, devisees, representatives, successors and assigns of Mortgagor.
PAGE 39
Section 6.21. Modification or Termination. The Loan Documents may only be
---------------------------
modified or terminated by a written instrument or instruments intended for that
purpose and executed by the party against which enforcement of the modification
or termination is asserted. Any alleged modification or termination which is
not so documented shall not be effective as to any party.
Section 6.22. No Partnership, Etc.. The relationship between Mortgagee
--------------------
and Mortgagor is solely that of lender and borrower. Mortgagee has no fiduciary
or other special relationship with Mortgagor. Nothing contained in the Loan
Documents is intended to create any partnership, joint venture, association or
special relationship between Mortgagor and Mortgagee or in any way make
Mortgagee a co-principal with Mortgagor with reference to the Property. All
agreed contractual duties between Mortgagee and Mortgagor are set forth herein
and in the other Loan Documents and any additional implied covenants or duties
are hereby disclaimed. Any inferences to the contrary of any of the foregoing
are hereby expressly negated.
Section 6.23. Applicable Law. THIS MORTGAGE, AND ITS VALIDITY,
--------------
ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY ILLINOIS LAW (WITHOUT
REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL
LAW.
Section 6.24. Execution Under Seal. Mortgagor agrees that this instrument
--------------------
is executed under seal. The designation ("SEAL") on this instrument shall be as
effective as the affixing of the applicable corporate seal physically to this
instrument.
Section 6.25. Entire Agreement. The Loan Documents constitute the entire
----------------
understanding and agreement between Mortgagor and Mortgagee with respect to the
transactions arising in connection with the indebtedness secured hereby and
supersede all prior written or oral understandings and agreements between
Mortgagor and Mortgagee with respect to the matters addressed in the Loan
Documents. Mortgagor hereby acknowledges that, except as incorporated in writing
in the Loan Documents, there are not, and were not, and no persons are or were
authorized by Mortgagee to make, any representations, understandings,
stipulations, agreements or promises, oral or written, with respect to the
matters addressed in the Loan Documents.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
--------------------------------------------------------------------
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
----------------------------------------------------------------------------
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
-----------------------------------------
THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
------------------------------------------------
[SIGNATURES BEGIN ON NEXT PAGE]
PAGE 40
IN WITNESS WHEREOF, Mortgagor has executed this instrument under seal as of
the date first written on page 1 hereof.
MORTGAGOR:
XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Xxxxx Real Estate Investment Trust, Inc.,
a Maryland corporation,
General Partner
By: /s/ Xxx X Xxxxx
--------------------------
Name: Xxx X. Xxxxx, III
------------------------
Title: President
-----------------------
(CORPORATE SEAL)
The address and federal tax
identification number of Mortgagor are:
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Federal Tax No. 00-0000000
STATE OF GEORGIA
COUNTY OF GWINNETT
I, the undersigned, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY Xxx X. Xxxxx, III of XXXXX REAL ESTATE INVESTMENT
TRUST, INC., a Maryland corporation, which is the General Partner of Xxxxx
Operating Partnership, L.P., a Delaware limited partnership ("Mortgagor") and
who is personally known to me to be the same person whose name is subscribed to
the foregoing instrument, appeared before me this day in person, and
acknowledged that (s)he signed, sealed and delivered the said instrument on
behalf of Mortgagor, with full authority to do so, as the free and voluntary act
of Mortgagor, for the uses and purposes therein set forth, including the release
and waiver of the right of homestead.
Given under my hand and official seal, this 18/th/ day of February, 2000.
/s/ Xxxxxx Xxx Xxxxxx
----------------------------------
Notary Public
[SEAL] My commission expires: 4-21-2003
PAGE 41
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
PARCEL 1:
Xxx 0 xx XXXXXXXXXXX XXXXXXXX XXXX XXXXXXXXXXXXX XX. 0, being a resubdivision in
Section 4, Township 40 North, Range 11 East of the Third Principal Meridian,
according to the Plat thereof recorded August 23, 1990 as Document Number R90-
109454, in DuPage County, Illinois.
PARCEL 2:
Non-Exclusive Easement for Ingress and Egress over the northerly 15 feet of Lot
2 in CHANCELLORY BUSINESS PARK RESUBDIVISION NO. 5, being a resubdivision in
Section 4, Township 40 North, Range 11 East of the Third Principal Meridian,
according to the Plat thereof recorded July 21, 1991 as Document Number R91-
091695, in DuPage County, Illinois.
PARCEL 3:
Non-Exclusive Easement for Underground Storm Sewers over portions of Xxx 0 xx
XXXXXXXXXXX XXXXXXXX XXXX XXXXXXXXXXXXX XX. 0, being a resubdivision in Section
4, Township 40 North, Range 11 East of the Third Principal Meridian, according
to the Plat thereof recorded July 21, 1991 as Document Number 91-091695, in
DuPage County, Illinois, created by Easement Agreement dated December 17, 1991
and recorded December 20, 1991 as Document Number R91-171523.
EXHIBIT "B"
-----------
Encumbrances
1. General taxes for the year 1999 and subsequent years, which constitute a
lien, but which are not yet due and payable.
2. Declaration of Easements, Restrictions and Covenants made April 27, 1984 by
LaSalle National Bank, as Trustee under a Trust Agreement dated July 20,
1979 and known as Trust Number 101444, recorded July 30, 1984 as Document
R84-59903, as amended from time to time, and the terms and provisions
thereof.
3. Plat of Chancellory Business Park Resubdivision No. 4, recorded August 23,
1990 as Document Number R90-109454, discloses the following:
(a) Easement for public utilities over the easterly 25 feet of Parcel 1;
(b) Easement for ingress and egress over the south 15 feet and 15 feet
along the most west easterly line of Parcel 1; and
(c) 35 feet building line along the easterly line of the land.
4. Terms, conditions and provisions of the document creating the easements
described in Exhibit "A", together with the rights of the adjoining owners
in and to the concurrent use of said easement.
5. Water main as per plans as delineated on survey by Jacob & Xxxxxx
Associates, P.C., dated August 14, 1998, Order No. B640, and revised June
2, 1999.
6. Illinois Department of Transportation Floodway Limits as shown on the plat
of Chancellory Business Park Resubdivision No. 5, recorded as Document
Number R91-91695 (affects underlying portions of Parcel 3 as delineated on
said plat).
