EXHIBIT 4.4
PREPARED BY
AND WHEN RECORDED
RETURN TO:
Sidley Xxxxxx Xxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (as the same may be amended, restated, extended, supplemented or
otherwise modified from time to time, this "Mortgage"), is made as of the 12th
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day of December, 2001, by VENTAS FINANCE I, LLC, a Delaware limited liability
company, having an address c/o Ventas, Inc., 0000 Xxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000-0000 ("Mortgagor"), to and for the benefit of XXXXXXX
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XXXXX MORTGAGE LENDING, INC., a Delaware corporation, having an address at c/o
Merrill Xxxxx & Co., Four World Financial Center, 000 Xxxxx Xxxxxx, Xxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and assigns, the
"Mortgagee"). Capitalized terms used herein but not otherwise defined shall have
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the respective meanings assigned to such terms in the Loan Agreement
(hereinafter defined).
W I T N E S S E T H:
To secure the payment of a loan (the "Loan") in the original principal
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sum of TWO HUNDRED TWENTY-FIVE MILLION AND 00/100 DOLLARS ($225,000,000), lawful
money of the United States of America, being made from Mortgagee to Mortgagor on
the date hereof pursuant to the terms and conditions of a certain Loan and
Security Agreement, dated as of the date hereof (as amended, modified or
restated, the "Loan Agreement"), between Mortgagor and Mortgagee, which Loan is
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evidenced by and is to be paid with interest according to a certain Promissory
Note, dated as of the date hereof (as amended, modified, renewed or restated and
together with any substitutes or replacements therefor, the "Note"), made by
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Mortgagor to Mortgagee and all other sums due hereunder, or otherwise due under
the Loan Documents (as defined in the Loan Agreement) (the principal amount of
the Loan, together with interest thereon and all sums due hereunder and under
the Loan Agreement, the Note and the other Loan Documents being collectively
called the "Debt"), and all of the agreements, covenants, conditions,
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warranties, representations and other obligations (other than to repay the Debt)
made or undertaken by Mortgagor or any other person or entity to Mortgagee or
others as set forth in the Loan Documents (collectively, the "Obligations"),
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Mortgagor has mortgaged, given, granted, bargained, sold, alienated, enfeoffed,
conveyed, confirmed, pledged, assigned, warranted and hypothecated and by these
presents does hereby mortgage, give, grant, bargain, sell, alien, enfeoff,
convey, confirm, pledge, assign, warrant and hypothecate unto Mortgagee all of
Mortgagor's right, title, interest and estate in and to the real property
described on Exhibit A
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attached hereto (the "Premises") and the buildings, structures, fixtures,
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additions, enlargements, extensions, modifications, repairs, replacements and
improvements now or hereafter located thereon (the "Improvements");
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TOGETHER WITH: all right, title, interest and estate of Mortgagor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements together with the
following property, rights, interests and estates being hereinafter described
are collectively referred to herein as the "Mortgaged Property"):
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(a) all easements, rights-of-way, strips and gores of land,
streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, and all estates, rights,
titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the
Premises, to the center line thereof and all the estates, rights, titles,
interests, dower and rights of dower, courtesy and rights of courtesy, property,
possession, claim and demand whatsoever, both at law and in equity, of Mortgagor
of, in and to the Premises and the Improvements and every part and parcel
thereof, with the appurtenances thereto;
(b) all machinery, equipment, fixtures (including, but not
limited to, all heating, air conditioning, plumbing, lighting, communications
and elevator fixtures) and other property of every kind and nature, whether
tangible or intangible, whatsoever owned by Mortgagor, or in which Mortgagor has
or shall have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, and usable in connection with the present
or future operation and occupancy of the Premises and the Improvements and all
building equipment, materials and supplies of any nature whatsoever owned by
Mortgagor, or in which Mortgagor has or shall have an interest, now or hereafter
located upon the Premises and the Improvements, or appurtenant thereto, and
usable in connection with the present or future operation, enjoyment and
occupancy of the Premises and the Improvements (hereinafter collectively called
the "Equipment"), including the proceeds of any sale or transfer of the
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foregoing, and the right, title and interest of Mortgagor in and to any of the
Equipment which may be subject to any security interests, as defined in the
Uniform Commercial Code, as adopted and enacted by the state or states where any
of the Mortgaged Property is located (the "Uniform Commercial Code") superior in
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lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon,
which may heretofore and hereafter be made with respect to the Mortgaged
Property, whether from the exercise of the right of eminent domain or
condemnation (including, but not limited to, any transfer made in lieu of or in
anticipation of the exercise of said rights), or for a change of grade, or for
any other injury to or decrease in the value of the Mortgaged Property;
(d) that certain Master Lease Agreement dated as of the date
hereof (as amended, modified or restated, the "Master Lease") between Mortgagor
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(successor-in-interest to Ventas Realty, Limited Partnership), as landlord, and
Kindred Healthcare, Inc. and Kindred Healthcare Operating, Inc., collectively,
as tenant ("Lessee"), and any and all right, title and
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interest of Mortgagor in and to all other leases, tenancies, licenses,
subleases, assignments and/or other rental or occupancy agreements (including,
without limitation, any and all guarantees of any of the foregoing) heretofore
or hereafter entered into affecting the use, enjoyment or occupancy of the
Premises and the Improvements, including any extensions, renewals, modifications
or amendments thereof (collectively, the "Leases") and all rents, rent
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equivalents (including room revenues, if applicable), moneys payable as damages
or in lieu of rent or rent equivalents, royalties (including, without
limitation, all oil and gas or other mineral royalties and bonuses), income,
receivables, receipts, revenues, deposits (including, without limitation,
security, utility and other deposits), accounts, cash, issues, profits, charges
for services rendered, and other consideration of whatever form or nature
received by or paid to or for the account of or benefit of Mortgagor or its
agents or employees from any and all sources arising from or attributable to the
Premises and the Improvements (the "Rents"), together with all proceeds from the
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sale or other disposition of the Leases and the right to receive and apply the
Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any
insurance policies covering the Mortgaged Property, including, without
limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Mortgaged
Property or any part thereof;
(f) the right, following an Event of Default, in the name
and on behalf of Mortgagor, to appear in and defend any action or proceeding
brought with respect to the Mortgaged Property and to commence any action or
proceeding to protect the interest of the Mortgagee in the Mortgaged Property or
any part thereof;
(g) all accounts, escrows, reserves, documents, instruments,
chattel paper, claims, deposits and general intangibles, as the foregoing terms
are defined in the Uniform Commercial Code, and all books, records, plans,
specifications, designs, drawings, permits, consents, licenses, franchises,
management agreements, contracts, contract rights (including, without
limitation, any contract with any architect or engineer or with any other
provider of goods or services for or in connection with any construction,
repair, or other work upon the Mortgaged Property), approvals, actions, refunds
of real estate taxes and assessments (and any other governmental impositions
related to the Mortgaged Property), and causes of action that now or hereafter
relate to, are derived from or are used in connection with the Mortgaged
Property, or the use, operation, management, improvement, alteration, repair,
maintenance, occupancy or enjoyment thereof or the conduct of any business or
activities thereon;
(h) any and all proceeds and products of any of the
foregoing and any and all other security and collateral of any nature
whatsoever, now or hereafter given for the repayment of the Debt and the
performance of Mortgagor's obligations under the Loan Documents, including
(without limitation) the Impositions and Insurance Reserve, the Replacement
Reserve, the Debt Service Reserve, the Hazardous Materials Remediation Reserve,
the Deferred Maintenance Reserve, the Loss Proceeds Account, the Central Account
and the Sub-Accounts thereof (each as defined in the Cash Management Agreement,
dated as of the date hereof (as amended or modified the "Cash Management
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Agreement"), by and between Mortgagor,
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Mortgagee, and First Union National Bank), and any other escrows or reserves set
forth in the Loan Documents;
(i) all accounts receivable, contract rights, interests,
estate or other claims, both in law and in equity, which Mortgagor now has or
may hereafter acquire in the Mortgaged Property or any part thereof; and
(j) all rights which Mortgagor now has or may hereafter
acquire, to be indemnified and/or held harmless from any liability, loss,
damage, cost or expense (including, without limitation, attorneys' fees and
disbursements) relating to the Mortgaged Property or any part thereof.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the use and benefit of Mortgagee, and the successors and assigns of
Mortgagee, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Mortgagor shall well and truly pay to Mortgagee the Debt at the time and in
the manner provided in the Note and this Mortgage and shall well and truly abide
by and comply with each and every covenant and condition set forth herein and in
the Note in a timely manner, these presents and the estate hereby granted shall
cease, terminate and be void;
AND Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
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Agreements. Mortgagor shall pay the Debt at the time and in the manner provided
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in the Note, the Loan Agreement and this Mortgage. Mortgagor will duly and
punctually perform all of the covenants, conditions and agreements of Mortgagor
contained in the Note, the Loan Agreement, this Mortgage and the other Loan
Documents all of which covenants, conditions and agreements are hereby made a
part of this Mortgage to the same extent and with the same force as if fully set
forth herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor has good,
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marketable and insurable title to the Mortgaged Property and has the right to
mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm, pledge,
assign and hypothecate the same and that Mortgagor possesses a fee estate in the
Premises and the Improvements and that it owns the Mortgaged Property free and
clear of all liens, encumbrances and charges whatsoever except for the Permitted
Encumbrances. Mortgagor represents and warrants that none of the Permitted
Encumbrances will materially and adversely affect (i) Mortgagor's ability to pay
in full in a timely manner its obligations, including, without limitation, the
Debt, (ii) the use of the Mortgaged Property for the use currently being made
thereof, (iii) the operation of the Mortgaged Property, or (iv) the value of the
Mortgaged Property. Mortgagor shall forever warrant, defend and preserve such
title and the validity and priority of the lien of this Mortgage, subject to the
Permitted Encumbrances, and shall forever warrant and defend the same to
Mortgagee against the claims of all persons whomsoever.
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3. Insurance. (a) Mortgagor, at its sole cost and expense, shall
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maintain or cause to be maintained insurance with respect to the Mortgaged
Property for the mutual benefit of Mortgagor and Mortgagee as required by
Section 5.4 of the Loan Agreement.
(b) If the Mortgaged Property shall be damaged or destroyed, in
whole or in part, by fire or other casualty (an "Insured Casualty"), Mortgagor
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shall give notice thereof to Mortgagee and to the insurance carrier as and to
the extent required by Section 5.5 of the Loan Agreement. Subject to the terms
of the Loan Agreement, Mortgagor shall promptly repair, replace or rebuild, or
cause Lessee to promptly repair, replace or rebuild, the Mortgaged Property in
accordance with, and all amounts paid with respect to such Insured Casualty
under all insurance policies maintained by Mortgagor shall be governed by, the
terms and conditions of Section 5.5 of the Loan Agreement. The expenses incurred
by Mortgagee in the adjustment and collection of insurance proceeds shall become
part of the Debt and shall be secured hereby and shall be reimbursed by
Mortgagor to Mortgagee upon demand.
4. Payment of Impositions and Other Charges. Subject to Mortgagor's
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right to contest set forth in Section 5.3(B) of the Loan Agreement and the
provisions of Section 5 below, and pursuant to the provisions of the Cash
Management Agreement, Mortgagor shall cause to be paid all Impositions now or
hereafter levied or assessed or imposed against the Mortgaged Property or any
part thereof as the same become due and payable. Subject to Mortgagor's contest
rights set forth in Section 5.3(B) of the Loan Agreement, Mortgagor shall
promptly pay, or cause to be promptly paid, all utility services provided to the
Mortgaged Property. Subject to Mortgagor's contest rights set forth in Section
5.3(B) of the Loan Agreement, Mortgagor shall furnish to Mortgagee or its
designee receipts for the payment of the Impositions or other evidence of the
payment of the Impositions prior to the date the same shall become delinquent
(provided, however, that Mortgagor shall not be required to furnish such
receipts or such other evidence for payment of Impositions in the event that
such Impositions have been paid by Mortgagee pursuant to Section 5 hereof).
5. Impositions and Insurance Reserve. Mortgagor shall make monthly
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deposits into the Impositions and Insurance Reserve of amounts sufficient to pay
Impositions and Insurance Premiums in accordance with the terms of Section 6.3
of the Loan Agreement and the Cash Management Agreement.
6. Condemnation. (a) Mortgagor shall promptly after obtaining
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knowledge (as defined in the Loan Agreement) thereof give Mortgagee written
notice of the actual or threatened commencement of any condemnation or eminent
domain proceeding affecting the Mortgaged Property or any portion thereof and
shall deliver to Mortgagee copies of any and all papers served in connection
with such proceedings. Subject to the terms of Section 6(b) below, Mortgagee is
hereby irrevocably appointed as Mortgagor's attorney-in-fact, coupled with an
interest, with exclusive power to collect, receive and retain any award or
payment for said condemnation or eminent domain and to make any compromise or
settlement in connection with such proceeding, subject to the provisions of this
Mortgage. Notwithstanding any taking by any public or quasi public authority
through eminent domain or otherwise (including but not limited to any transfer
made in lieu of or in anticipation of the exercise of such taking), Mortgagor
shall continue to pay the Debt at the time and in the manner provided for its
payment in the Note, in this Mortgage and
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the other Loan Documents and the Debt shall not be reduced until any award or
payment therefor shall have been actually received after expenses of collection
and applied by Mortgagee to the discharge of the Debt in accordance with the
terms hereof. In accordance with the terms hereof, Mortgagor shall cause the
award or payment made in any condemnation or eminent domain proceeding, which is
payable to Mortgagor, to be paid directly to Mortgagee. Mortgagee may apply any
such award or payment to the reduction or discharge of the Debt whether or not
then due and payable; such application to be made without any Prepayment
Consideration, provided that such payment is made within one hundred twenty
(120) days following the date of receipt of such condemnation award except that
if an Event of Default has occurred and is continuing, then such application
shall be subject to the Prepayment Consideration, if any, computed in accordance
with the Note. If the Mortgaged Property is sold following an Event of Default,
through foreclosure or otherwise, prior to the receipt by Mortgagee of such
award or payment, Mortgagee shall have the right, whether or not a deficiency
judgment on the Note shall have been sought, recovered or denied, to receive
said award or payment, or a portion thereof sufficient to pay the Debt.
(b) Notwithstanding the foregoing, Mortgagee shall not exercise
the foregoing rights to apply any such award or payment in any condemnation or
eminent domain proceeding to payment of the Debt and Mortgagor may prosecute any
condemnation proceeding and settle or compromise and collect any claim involving
an award and/or claim for damages of not more than the Restoration Threshold
provided that: (i) in Mortgagee's reasonable judgment, such condemnation or
taking does not and will not materially restrict access to the Mortgaged
Property or otherwise have a Material Adverse Effect, and the Mortgaged Property
remaining after such condemnation or taking is capable of being restored to an
economically viable whole of the same type which existed prior to the
condemnation or taking and in compliance with all applicable laws, (ii)
Mortgagor applies, or causes to be applied, the proceeds of such award to any
reconstruction or repair of the Mortgaged Property necessary as a result of such
condemnation or taking, (iii) Mortgagor promptly commences and diligently
prosecutes, or causes to be promptly commenced and diligently prosecuted, such
reconstruction or repair to completion in accordance with all applicable laws,
(iv) at Mortgagee's request, such reconstruction or repair shall be performed
under the supervision of an architect or engineer reasonably acceptable to
Mortgagee and the plans and specifications for such work shall be subject to
Mortgagee's reasonable approval and (v) each of the other conditions (as
applicable) to release of insurance proceeds for restoration or repair of the
Mortgaged Property under Section 5.5(B)-(F) of the Loan Agreement have been
satisfied. Mortgagor authorizes Mortgagee to apply such awards, payments,
proceeds or damages, after the deduction of Mortgagee's reasonable expenses
incurred in the collection of such amounts, at Mortgagee's option, to
restoration or repair of the Mortgaged Property or to payment of the sums
secured by this Mortgage, whether or not then due, in the order determined by
Mortgagee, with the balance, if any, to Mortgagor. In the event that Mortgagee
shall apply any such awards, payments, proceeds or damages to the indebtedness
secured hereby pursuant to the foregoing sentence, no Prepayment Consideration
or other prepayment premium or penalty shall be due and payable under the Note
in connection therewith. Subject to satisfaction of the conditions set forth in
clauses (i) through (v) of this Section 6(b), Mortgagee shall not exercise
Mortgagee's option to apply such awards or damages to payment of the sums
secured by this Mortgage and Mortgagee shall make such awards or damages
available to Mortgagor for
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restoration or repair of the Mortgaged Property upon the terms and subject to
the conditions for release of insurance proceeds for restoration or repair of
the Mortgaged Property under Sections 5.5(B)-(F) of the Loan Agreement. Any
application of proceeds to principal shall not extend or postpone the due date
of the monthly installments due hereunder, under the Note or under any of the
Loan Documents or change the amount of such installments. Mortgagor agrees to
execute such further evidence of assignment of any awards, proceeds, damages or
claims arising in connection with such condemnation or taking as Mortgagee may
reasonably require.
7. Maintenance of Mortgaged Property. Mortgagor shall cause the
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Mortgaged Property to be operated and maintained in all material respects in a
good and safe condition and repair and in keeping with the condition and repair
of properties of a similar use, value, age, nature and construction. The
Improvements and the Equipment shall not be removed or demolished in any
material respect by Mortgagor and no Material Alterations shall be made thereto
(except for normal replacement or disposal of the Equipment and except as
otherwise expressly permitted in the Loan Agreement) without the consent of
Mortgagee, which consent shall not be unreasonably withheld, delayed or
conditioned. Mortgagor shall comply in all material respects with all laws,
orders and ordinances affecting the Mortgaged Property, or the use thereof, in
each case, as and to the extent required by the Loan Agreement.
8. Use of Mortgaged Property. Mortgagor shall not initiate, join in,
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acquiesce in, or consent to any change in any private restrictive covenant,
zoning law or other public or private restriction, limiting or defining the uses
which may be made of the Mortgaged Property or any part thereof, nor shall
Mortgagor initiate, join in, acquiesce in, or consent to any zoning change or
zoning matter affecting the Mortgaged Property, which in any of the foregoing
cases could reasonably be expected to result in a Material Adverse Effect. If
under applicable zoning provisions the use of all or any material portion of the
Mortgaged Property is or shall become a nonconforming use, Mortgagor will not
cause such nonconforming use to be discontinued or abandoned, and will use
reasonable efforts to enforce any rights Mortgagor has under the Master Lease
not to permit Lessee to discontinue or abandon any such nonconforming use, in
each case, except with the express written consent of Mortgagee, which consent
shall not be unreasonably withheld, delayed or conditioned. Mortgagor shall not
cause any waste on or to the Mortgaged Property or to any portion thereof and
will use reasonable efforts to prevent Lessee from causing or suffering to occur
any such waste. Mortgagor shall not take any steps whatsoever to convert the
Mortgaged Property, or any portion thereof, to a condominium or cooperative form
of management. Mortgagor will not install on the Premises any underground
storage tank or above-ground storage tank in violation of the Environmental Laws
and will use reasonable efforts to enforce any rights Mortgagor has under the
Master Lease to prevent Lessee from installing or permitting to be installed on
the Premises any underground storage tank or any above-ground storage tank in
violation of the Environmental Laws.
9. Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor
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acknowledges that Mortgagee has examined and relied on the creditworthiness and
experience of Mortgagor in owning and operating properties such as the Mortgaged
Property in agreeing to make the Loan, and that Mortgagee will continue to rely
on Mortgagor's ownership of the Mortgaged Property as a means of maintaining the
value of the Mortgaged Property as security for repayment of the Debt. Except as
expressly permitted under this Mortgage, the Loan
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Agreement or under the other Loan Documents, Mortgagor shall not cause or suffer
to occur or exist, directly or indirectly, voluntarily or involuntarily, by
operation of law or otherwise, any sale, transfer, mortgage, pledge, lien or
encumbrance (other than Permitted Encumbrances) (collectively, "Transfers") of
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(i) all or any part of the Mortgaged Property or any interest of Mortgagor
therein, or (ii) any direct or indirect beneficial ownership interest (in whole
or in part) in Mortgagor, irrespective of the number of tiers of ownership,
without the prior written consent of Mortgagee.
(b) Notwithstanding the foregoing, Mortgagor may, without the
consent of Mortgagee, (i) make immaterial transfers of portions of the Mortgaged
Property to any federal, state or local government or any political subdivision
thereof (collectively, "Governmental Authorities") for dedication or public use
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(subject to the provisions of Section 6 hereof) and (ii) grant easements,
restrictions, covenants, reservations and rights of way in the ordinary course
of business for access, water and sewer lines, telephone, cellular, cable,
internet and telegraph lines, electric lines or other utilities or for other
similar purposes, provided that no such transfer or conveyance set forth in the
foregoing clauses (i) and (ii) shall have a Property Adverse Effect; provided,
however, that Mortgagor shall give Mortgagee at least ten (10) days' prior
written notice of any such transfer or conveyance describing same in reasonable
detail and certifying that such transfer or conveyance satisfies the foregoing
conditions. Upon the request of Mortgagor, and at Mortgagor's sole cost and
expense, Mortgagee shall release its lien with respect to any portion of the
Mortgaged Property that is transferred as provided in clause (i) above and
subordinate this Mortgage to any transfer or conveyance permitted pursuant to
clause (ii) above.
(c) The occurrence of any Transfer in violation of Section 9(a)
above shall constitute an Event of Default hereunder, whereupon Mortgagee at its
option, without being required to demonstrate any actual impairment of its
security or any increased risk of default hereunder, may declare the Debt
immediately due and payable.
(d) Mortgagee's consent to any Transfer of the Mortgaged
Property or any interest in Mortgagor shall not be deemed to be a waiver of
Mortgagee's right to require such consent to any future occurrence of same. Any
attempted or purported Transfer of the Mortgaged Property or of any direct or
indirect interest in Mortgagor, if made in contravention of this Section 9,
shall be null and void and of no force and effect.
10. Taxes on Security; Documentary Stamps; Intangibles Tax. (a)
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Mortgagor shall pay all taxes, charges, filing, registration and recording fees,
excises and levies payable with respect to the Note, this Mortgage or the liens
created or secured by the Loan Documents, other than income, franchise and doing
business and other similar taxes imposed on Mortgagee. If there shall be enacted
any law (i) deducting the Loan from the value of the Mortgaged Property for the
purpose of taxation, (ii) affecting any lien on the Mortgaged Property, or (iii)
changing existing laws of taxation of mortgages, deeds of trust, security deeds,
or debts secured by real property, or changing the manner of collecting any such
taxes, Mortgagor shall promptly pay to Mortgagee, on demand, all taxes, costs
and charges for which Mortgagee is or may be liable as a result thereof;
however, if such payment would be prohibited by law or would render the Loan
usurious, then instead of collecting such payment, Mortgagee may declare all
amounts owing under the Loan Documents to be immediately due and payable.
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(b) If at any time the United States of America, any State
thereof or any subdivision of any such State shall require revenue or other
stamps to be affixed to the Note or this Mortgage, or impose any other tax or
charge on the same, Mortgagor will pay for the same, with interest and penalties
thereon, if any. Mortgagor hereby agrees that, in the event that it is
determined that additional documentary stamp tax or intangible tax is due hereon
or any mortgage or promissory note executed in connection herewith (including,
without limitation, the Note), Mortgagor shall indemnify and hold harmless
Mortgagee for all such documentary stamp tax and/or intangible tax, including
all penalties and interest assessed or charged in connection therewith.
Mortgagor shall pay same within ten (10) days after demand of payment from
Mortgagee and the payment of such sums shall be secured by this Mortgage and
such sums shall bear interest at the Default Rate (as defined in the Note) from
and after the eleventh (11/th/) day after demand until paid in full.
(c) Mortgagor shall hold harmless and indemnify Mortgagee, its
successors and assigns, against any liability incurred by reason of the
imposition of any tax on the making and recording of this Mortgage.
11. No Credits on Account of the Debt. Mortgagor will not claim or
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demand or be entitled to any credit or credits on account of the Debt for any
part of the Impositions assessed against the Mortgaged Property, or any part
thereof, and no deduction shall otherwise be made or claimed from the assessed
value of the Mortgaged Property, or any part thereof, for real estate tax
purposes by reason of this Mortgage or the Debt. In the event such claim, credit
or deduction shall be required by law, Mortgagee shall have the option, by
written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
12. Performance of Other Agreements. Mortgagor shall duly and
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punctually observe and perform in all material respects each and every material
term, provision, condition, and covenant to be observed or performed by
Mortgagor pursuant to the terms of any agreements or recorded instruments
(including all instruments comprising the Permitted Encumbrances) affecting or
pertaining to the Mortgaged Property, and will not suffer or permit any default
or event of default (after giving effect to any applicable notice requirements
and cure periods) to exist under any of the foregoing, except to the extent that
the failure to so perform or observe any agreements or instruments would not
reasonably be expected to have a Property Adverse Effect. Mortgagor shall
enforce the material terms, covenants and conditions contained in the Master
Lease to be observed and performed by Lessee.
13. Further Acts; Secondary Market Transactions. (a) Mortgagor will,
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at its sole cost and expense, and without expense to Mortgagee, do, execute,
acknowledge and deliver all and every such further acts, deeds, conveyances,
mortgages, assignments, notices of assignment, Uniform Commercial Code financing
statements or continuation statements, transfers and assurances as Mortgagee
shall, from time to time, reasonably require, for the better assuring,
conveying, assigning, transferring, and confirming unto Mortgagee the property
and rights hereby mortgaged, given, granted, bargained, sold, alienated,
enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated or intended
now or hereafter so to be, or which Mortgagor may be or may hereafter become
bound to convey or assign to Mortgagee, or for carrying out the intention or
facilitating the performance of the terms of this Mortgage or for filing,
registering or recording
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this Mortgage. Mortgagor, on demand, will execute and deliver and, upon
Mortgagor's failure to do so within five (5) Business Days after Mortgagee's
request therefor, hereby authorizes Mortgagee to execute in the name of
Mortgagor or without the signature of Mortgagor to the extent Mortgagee may
lawfully do so, one or more financing statements, chattel mortgages or other
instruments, to evidence more effectively the security interest of Mortgagee in
the Mortgaged Property. Upon foreclosure or the appointment of a receiver,
Mortgagor will, at its sole cost and expense, cooperate fully and completely to
effect the assignment or transfer of any license, permit, agreement or any other
right necessary or useful to the operation of the Mortgaged Property. Mortgagor
grants to Mortgagee an irrevocable power of attorney coupled with an interest
for the purpose of exercising and perfecting any and all rights and remedies
available to Mortgagee pursuant to this Section.
(b) Subject to the terms and conditions set forth in the Loan
Agreement, Mortgagee shall have the right to engage in one or more Secondary
Market Transactions and, in connection therewith, Mortgagee may transfer its
obligations under this Mortgage, the Note, the Loan Agreement and the other Loan
Documents (or may transfer the portion thereof corresponding to the transferred
portion of the Obligations), and thereafter Mortgagee shall be relieved of any
obligations hereunder and under the other Loan Documents arising after the date
of said transfer with respect to the transferred interest.
14. Recording of Mortgage, Etc. Upon the execution and delivery of
---------------------------
this Mortgage and thereafter, from time to time, Mortgagor will cause this
Mortgage, and any security instrument creating a lien or security interest or
evidencing the lien hereof upon the Mortgaged Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien or security interest hereof upon, and
the interest of Mortgagee in, the Mortgaged Property. Mortgagor will pay all
filing, registration or recording fees, and all expenses incident to the
preparation, execution and acknowledgment of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, and all federal, state, county
and municipal, taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to the Mortgaged
Property or any instrument of further assurance, except where prohibited by law
so to do.
15. Reporting Requirements. Mortgagor agrees to give prompt notice to
----------------------
Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the death,
insolvency or bankruptcy filing of any Guarantor.
16. Intentionally Deleted.
---------------------
17. Remedies. Upon the occurrence and during the continuance of an
--------
Event of Default, Mortgagee may, at Mortgagee's option, by Mortgagee itself, or
otherwise, do any one or more of the following:
10
(a) Right to Perform Mortgagor's Covenants. If Mortgagor has
--------------------------------------
failed to keep or perform any covenant whatsoever contained in this Mortgage or
the other Loan Documents, Mortgagee may, but shall not be obligated to do so,
perform or attempt to perform said covenant; and any payment made or expense
incurred in the performance or attempted performance of any such covenant,
together with any sum expended by Mortgagee that is chargeable to Mortgagor or
subject to reimbursement by Mortgagor under the Loan Documents, shall be and
become a part of the Debt, and Mortgagor promises, upon demand, to pay to
Mortgagee, at the place where the Note is payable, all sums so incurred, paid or
expended by Mortgagee, with interest from the date when paid, incurred or
expended by Mortgagee at the Default Rate (as defined in the Note).
(b) Right of Entry. Mortgagee may, prior or subsequent to the
--------------
institution of any foreclosure proceedings, enter upon the Mortgaged Property,
or any part thereof, and take exclusive possession of the Mortgaged Property and
of all books, records, and accounts relating thereto and to exercise without
interference from Mortgagor any and all rights which Mortgagor has with respect
to the management, possession, operation, protection, or preservation of the
Mortgaged Property, including, without limitation, the right to rent the same
for the account of Mortgagor and to deduct from such Rents all costs, expenses,
and liabilities of every character incurred by the Mortgagee in collecting such
Rents and in managing, operating, maintaining, protecting, or preserving the
Mortgaged Property and to apply the remainder of such Rents on the Debt in such
manner as Mortgagee may elect. All such costs, expenses, and liabilities
incurred by Mortgagee in collecting such Rents and in managing, operating,
maintaining, protecting, or preserving the Mortgaged Property, if not paid out
of Rents as hereinabove provided, shall constitute a demand obligation owing by
Mortgagor and shall bear interest from the date of expenditure until paid at the
Default Rate as specified in the Note, all of which shall constitute a portion
of the Debt. If Mortgagee elects to enter the Mortgaged Property as provided for
herein, Mortgagee may invoke any and all legal remedies to dispossess Mortgagor,
including specifically one or more actions for forcible entry and detainer,
trespass to try title, and restitution. In connection with any action taken by
the Mortgagee pursuant to this subsection, Mortgagee shall not be liable for any
loss sustained by Mortgagor resulting from any failure to let the Mortgaged
Property, or any part thereof, or from any other act or omission of the
Mortgagee in managing the Mortgaged Property unless such loss is caused by the
willful misconduct or gross negligence of Mortgagee, its agents, employees or
officers, nor shall Mortgagee be obligated to perform or discharge any
obligation, duty, or liability under any Lease or under or by reason hereof or
the exercise of rights or remedies hereunder. Mortgagor shall and does hereby
agree to indemnify, defend and hold harmless the Indemnified Parties (as defined
in Section 23 below) from and against, any and all liability, claim, demand,
loss, damage, cost or expense (including, without limitation, reasonable
attorneys' fees and disbursements) which may or might be suffered or incurred by
any Indemnified Party under any such Lease or under or by reason hereof or the
exercise of rights or remedies hereunder, or by reason of any alleged
obligations or undertakings on its part to perform or discharge any of the
terms, covenants, or agreements contained in any such Lease, in each case, as
and to the extent provided under Section 23 below. Nothing in this subsection
shall impose any duty, obligation, or responsibility upon any Indemnified Party
for the control, care, management, leasing, or repair of the Mortgaged Property,
nor for the carrying out of any of the terms and conditions of any such Lease,
prior to the transfer of title to the Mortgaged Property to any Indemnified
Party by foreclosure, deed-in-lieu thereof, exercise of
11
power of sale or otherwise. Mortgagor hereby assents to, ratifies, and confirms
any and all actions of the Mortgagee with respect to the Mortgaged Property
taken under this subsection.
(c) Right to Accelerate. Mortgagee may, without notice or
--------------------
demand, declare the entire unpaid balance of the Debt immediately due and
payable.
(d) Foreclosure-Power of Sale. Mortgagee may from time to time
--------------------------
institute a proceeding or proceedings, judicial, or nonjudicial, by
advertisement or otherwise, for the complete or partial foreclosure of this
Mortgage or the complete or partial sale of the Mortgaged Property under the
power of sale contained herein or under any applicable provision of law.
Mortgagee may sell the Mortgaged Property, and all estate, right, title,
interest, claim and demand of Mortgagor therein, and all rights of redemption
thereof, at one or more sales, as an entirety or in parcels, with such elements
of real and/or personal property, and at such time and place and upon such terms
as it may deem expedient, or as may be required by applicable law, and in the
event of a sale, by foreclosure or otherwise, of less than all of the Mortgaged
Property, this Mortgage shall continue as a lien and security interest on the
remaining portion of the Mortgaged Property.
(e) Rights Pertaining to Sales. Subject to the requirements of
---------------------------
applicable law and except as otherwise provided herein, the following provisions
shall apply to any sale or sales of all or any portion of the Mortgaged Property
under or by virtue of Subsection (d) above, whether made under the power of sale
herein granted or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale:
(i) Mortgagee may conduct any number of sales from time
to time. The power of sale set forth above shall not be exhausted
by any one or more such sales as to any part of the Mortgaged
Property which shall not have been sold, nor by any sale which is
not completed or is defective in Mortgagee's opinion, until the
Debt shall have been paid in full.
(ii) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or for
such postponed or adjourned sale without further notice.
(iii) After each sale, Mortgagee or an officer of any
court empowered to do so shall execute and deliver to the
purchaser or purchasers at such sale a good and sufficient
instrument or instruments granting, conveying, assigning and
transferring all right, title and interest of Mortgagor in and to
the property and rights sold and shall receive the proceeds of
said sale or sales and apply the same as specified in the Loan
Agreement. Mortgagee is hereby appointed the true and lawful
attorney-in-fact of Mortgagor, which appointment is irrevocable
and shall be deemed to be coupled with an interest, in Mortgagor's
name and stead, to make all necessary conveyances, assignments,
transfers and deliveries of the property and rights so sold,
Mortgagor hereby ratifying and confirming all that said attorney
or such substitute or substitutes shall lawfully do by virtue
thereof. Nevertheless, Mortgagor, if requested by Mortgagee, shall
ratify and confirm any
12
such sale or sales by executing and delivering to Mortgagee or
such purchaser or purchasers all such instruments as may be
advisable, in Mortgagee's judgment, for the purposes as may be
designated in such request.
(iv) Any and all statements of fact or other recitals
made in any of the instruments referred to in Subsection
(e)(iii) above given by Mortgagee shall be taken as conclusive
and binding against all persons as to evidence of the truth of
the facts so stated and recited.
(v) Any such sale or sales shall operate to divest
all of the estate, right, title, interest, claim and demand
whatsoever, whether at law or in equity, of Mortgagor in and to
the properties and rights so sold, and shall be a perpetual bar
both at law and in equity against Mortgagor and any and all
persons claiming or who may claim the same, or any part thereof
or any interest therein, by, through or under Mortgagor to the
fullest extent permitted by applicable law.
(vi) Upon any such sale or sales, Mortgagee may bid
for and acquire the Mortgaged Property and, in lieu of paying
cash therefor, may make a settlement for the purchase price by
crediting against the Debt the amount of the bid made therefor,
after deducting therefrom the expenses of the sale, the cost of
any enforcement proceeding hereunder, and any other sums which
Mortgagee is authorized to deduct under the terms hereof, to the
extent necessary to satisfy such bid.
(vii) Upon any such sale, it shall not be necessary
for Mortgagee or any public officer acting under execution or
order of court to have present or constructively in its
possession any of the Mortgaged Property.
(f) Mortgagee's Judicial Remedies. Mortgagee may proceed by
-----------------------------
suit or suits, at law or in equity, to enforce the payment of the Debt, to
foreclose the liens and security interests of this Mortgage as against all or
any part of the Mortgaged Property, and to have all or any part of the Mortgaged
Property sold under the judgment or decree of a court of competent jurisdiction.
This remedy shall be cumulative of any other nonjudicial remedies available to
the Mortgagee under this Mortgage or the other Loan Documents. Proceeding with a
request or receiving a judgment for legal relief shall not be or be deemed to be
an election of remedies or bar any available nonjudicial remedy of the
Mortgagee.
(g) Mortgagee's Right to Appointment of Receiver. Mortgagee,
--------------------------------------------
as a matter of right and (i) without regard to the sufficiency of the security
for repayment of the Debt and without notice to Mortgagor (other than as
required by law), (ii) without any showing of insolvency, fraud, or
mismanagement on the part of Mortgagor, (iii) without the necessity of filing
any judicial or other proceeding other than the proceeding for appointment of a
receiver, and (iv) without regard to the then value of the Mortgaged Property,
shall be entitled to the appointment of a receiver or receivers for the
protection, possession, control, management and operation of the Mortgaged
Property, including (without limitation), the power to collect the Rents,
enforce this Mortgage and, in case of a sale and deficiency, during the full
statutory period
13
of redemption (if any), whether there be a redemption or not, as well as during
any further times when Mortgagor, except for the intervention of such receiver,
would be entitled to collection of such Rents. Mortgagor hereby irrevocably
consents to the appointment of a receiver or receivers. Any receiver appointed
pursuant to the provisions of this subsection shall have the usual powers and
duties of receivers in such matters.
(h) Mortgagee's Uniform Commercial Code Remedies. Mortgagee
--------------------------------------------
may exercise its rights of enforcement under the Uniform Commercial Code in
effect in the state in which the Mortgaged Property is located and in the state
where Mortgagor is organized.
(i) Other Rights. Mortgagee (i) may surrender the insurance
------------
policies owned by Mortgagor and maintained pursuant to the Loan Agreement or any
part thereof, and upon receipt of the proceeds shall apply the unearned
Insurance Premiums as a credit on the Debt, and, in connection therewith,
Mortgagor hereby appoints Mortgagee as agent and attorney-in-fact (which is
coupled with an interest and is therefore irrevocable) for Mortgagor to collect
such Insurance Premiums; (ii) may apply the Impositions and Insurance Reserve
and/or any other Reserves held pursuant to this Mortgage or the other Loan
Documents, and any other funds held by Mortgagee toward payment of the Debt; and
(iii) shall have and may exercise any and all other rights and remedies which
Mortgagee may have at law or in equity, or by virtue of any of the Loan
Documents, or otherwise.
(j) Discontinuance of Remedies. If Mortgagee shall have
--------------------------
proceeded to invoke any right, remedy, or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon same for any
reason, Mortgagee shall have the unqualified right so to do and, in such event,
Mortgagor and Mortgagee shall be restored to their former positions with respect
to the Debt, the Loan Documents, the Mortgaged Property or otherwise, and the
rights, remedies, recourses and powers of Mortgagee shall continue as if same
had never been invoked.
(k) Remedies Cumulative. All rights, remedies, and recourses
-------------------
of Mortgagee granted in the Note, this Mortgage and the other Loan Documents,
any other pledge of collateral, or otherwise available at law or equity: (i)
shall be cumulative; (ii) may be pursued separately, successively, or
concurrently against Mortgagor, the Mortgaged Property, or any one or more of
them, at such time and in such order as Mortgagee may determine in its sole
discretion; (iii) may be exercised as often as occasion therefor shall arise, it
being agreed by Mortgagor that the exercise or failure to exercise any of same
shall in no event be construed as a waiver or release thereof or of any other
right, remedy, or recourse; (iv) shall be nonexclusive of any other right, power
or remedy which Mortgagee may have against Mortgagor pursuant to this Mortgage,
the Loan Agreement or the other Loan Documents, or otherwise available at law or
in equity; (v) shall not be conditioned upon Mortgagee exercising or pursuing
any remedy in relation to the Mortgaged Property prior to Mortgagee bringing
suit to recover the Debt; and (vi) in the event Mortgagee elects to bring suit
on the Debt and obtains a judgment against Mortgagor prior to exercising any
remedies in relation to the Mortgaged Property, all liens and security
interests, including the lien of this Mortgage, shall remain in full force and
effect and may be exercised thereafter at Mortgagee's option.
14
(l) Election of Remedies. Mortgagee may release, regardless
--------------------
of consideration, any part of the Mortgaged Property without, as to the
remainder, in any way impairing, affecting, subordinating, or releasing the lien
or security interests evidenced by this Mortgage or the other Loan Documents or
affecting the obligations of Mortgagor or any other party to pay the Debt. For
payment of the Debt, Mortgagee may resort to any collateral securing the payment
of the Debt in such order and manner as Mortgagee may elect. No collateral taken
by Mortgagee shall in any manner impair or affect the lien or security interests
given pursuant to the Loan Documents, and all collateral shall be taken,
considered, and held as cumulative.
(m) Bankruptcy Acknowledgment. If the Mortgaged Property or
-------------------------
any portion thereof or any interest therein becomes property of any bankruptcy
estate or subject to any state or federal insolvency proceeding, or in the event
of the filing of any voluntary or involuntary petition under the Bankruptcy Code
by or against Mortgagor then Mortgagee shall immediately become entitled, in
addition to all other relief to which Mortgagee may be entitled under this
Mortgage, to obtain (i) an order from any bankruptcy court or other appropriate
court exercising jurisdiction over the bankruptcy case granting immediate relief
from the automatic stay pursuant to ss. 362 of the Bankruptcy Code so as to
permit Mortgagee to pursue its rights and remedies against Mortgagor as provided
under this Mortgage and all other rights and remedies of Mortgagee at law and in
equity under applicable state law, and (ii) an order from any bankruptcy court
prohibiting Mortgagor's use of all "cash collateral" (as defined under ss. 363
of the Bankruptcy Code). Mortgagor shall not assert or request any other party
to assert, that the automatic stay under ss. 362 of the Bankruptcy Code operate
or be interpreted to stay, interdict, condition, reduce or inhibit the ability
of Mortgagee to enforce any rights it has by virtue of this Mortgage, or any
other rights that Mortgagee has, whether now or hereafter acquired, against any
guarantor of the Debt. Mortgagor shall not seek a supplemental stay or any other
relief, whether injunctive or otherwise, pursuant to ss. 105 of the Bankruptcy
Code or any other provision therein to stay, interdict, condition, reduce or
inhibit the ability of Mortgagee to enforce any rights it has by virtue of this
Mortgage against any guarantor of the Debt.
(n) Application of Proceeds. The proceeds from any sale,
-----------------------
lease, or other disposition made pursuant to this Mortgage, or the proceeds from
the surrender of any insurance policies pursuant hereto, or any Rents collected
by Mortgagee from the Mortgaged Property or the Impositions and Insurance
Reserve or other Reserves under the Cash Management Agreement or sums received
pursuant to Section 6 hereof, or proceeds from insurance which Mortgagee elects
to apply to the Debt pursuant to Section 3 hereof, shall be applied by Mortgagee
to the Debt in such order, priority and proportions as Mortgagee in its sole
discretion shall determine.
(o) Cross-Collateralization. The mortgages and deeds of
-----------------------
trust (other than this Mortgage) listed on Exhibit B attached hereto and made a
---------
part hereof, as any of same may be amended, modified or supplemented from time
to time, are collectively referred to for purposes of this Section 17(o) as the
"Other Mortgages." This Mortgage, as it may be amended, modified or supplemented
---------------
from time to time, together with the Other Mortgages, are collectively referred
to for purposes of this Section 17(o) as the "Mortgages." The Obligations are
---------
secured by, among other things, the Mortgages, which encumber real and personal
property in certain other States, as more particularly described in each of the
Mortgages. The Obligations may be accelerated as
15
provided in the Loan Documents. Upon the occurrence and during the continuance
of an Event of Default, Mortgagee may, at its option, accelerate the Obligations
and foreclose upon any one or more of the Mortgages or resort to any one or more
of its other rights and remedies under any or all of the Mortgages and the other
Loan Documents. Except as otherwise provided herein, all of the real and
personal property conveyed and/or mortgaged by the Mortgages is security for the
Obligations without allocation of any one or more of the parcels or portions
thereof to any portion of the Obligations. Mortgagee may allocate the proceeds
that it receives upon the exercise of its rights and remedies, including
foreclosure, to payment of the Obligations as Mortgagee in its sole discretion
may determine to be advisable pursuant to the terms of the Loan Documents.
Mortgagee may proceed, at the same or different times, to foreclose the
Mortgages or any one or more of them, by any proceedings appropriate in the
state where any of the real property encumbered by one or more of the Mortgages
lies, including private sale if permitted, and no event of enforcement taking
place in any state, including without limiting the generality of the foregoing,
any pending foreclosure, judgment or decree of foreclosure, foreclosure sale,
rents received, possession taken, deficiency judgment or decrees, or judgment
taken on the Obligations, shall in any way stay, preclude or bar enforcement of
the Mortgages or any of them in any other state, and Mortgagee may pursue any or
all of its remedies to the maximum extent permitted by applicable law pursuant
to the terms of the Loan Documents until all of the Obligations and all other
obligations now or hereafter secured by any or all of the Mortgages have been
paid or discharged in full. Additionally, and without limitation of any other
provision of this Mortgage, if this Mortgage is foreclosed and the Mortgaged
Property (or any part thereof) is sold pursuant to foreclosure or other
proceedings, and if the proceeds of such sale (after application of such
proceeds as provided in this Mortgage and the other Loan Documents) are not
sufficient to pay the total sum of the Obligations then outstanding and any
other amounts provided for by applicable law (the "Balance Owed"), then, to the
------------
extent permitted by law, the Obligations shall not be satisfied to the extent of
the Balance Owed, but such Obligations shall continue in existence and continue
to be evidenced and secured by the Loan Documents and the Mortgages. Subject to
the requirements of applicable law, if Mortgagee shall acquire the Mortgaged
Property as a result of any foreclosure or other sale (whether by bidding all or
any portion of the Obligations or otherwise), the proceeds of such sale, to the
extent permitted by law, shall not be deemed to include (and Mortgagor shall not
be entitled to any benefit or credit on account of) proceeds of any subsequent
sale of the Mortgaged Property by Mortgagee. Without limitation of any other
provision hereof, Mortgagor further agrees that if any of the Other Mortgages
are foreclosed and sale is made of any of the property subject to any Other
Mortgages, and if the proceeds of such sale (after application of such proceeds
as provided for herein and after deducting all accrued and general and special
taxes and assessments) are not sufficient to pay the Obligations and any other
amounts provided for by applicable law, then, to the extent permitted by law,
the Obligations then outstanding shall not be satisfied to the extent of the
Balance Owed, but such Obligations shall continue in existence and continue to
be evidenced and secured by the Loan Documents and the Mortgages existing
immediately prior to any such foreclosure, except such Mortgages foreclosed
upon. No release of personal liability of any Person whatsoever and no release
of any portion of the property now or hereafter subject to the lien of any of
the Mortgages shall have any effect whatsoever by way of impairment or
disturbance of the lien or priority of any other of the Mortgages or the
unreleased properties encumbered by any of the Mortgages, to the extent
permitted by law. Any foreclosure or other
16
appropriate remedy brought in any of the states aforesaid may be brought and
prosecuted as to any part of the security, wherever located, without regard to
the fact that foreclosure proceedings or other remedies have or have not been
instituted elsewhere on any other property subject to the lien of the Mortgages.
Neither Mortgagor nor any Person claiming by, through or under Mortgagor shall
have any right to marshal the assets, all such rights being hereby expressly
waived as to Mortgagor and all Persons claiming by, through or under Mortgagor,
including, without limitation, junior lienors. Each of Mortgagor and all
endorsers, guarantors and sureties of the Obligations, hereby waives any and all
rights arising because of payment or performance by Mortgagor of any Obligations
(a) against any Person by way of subrogation of the rights of Mortgagee or (b)
against any Person obligated to pay or perform the Obligations or other
obligations secured by the Other Mortgages by way of contribution, reimbursement
or otherwise.
18. Security Agreement. This Mortgage is both a real property
------------------
mortgage and a "security agreement" within the meaning of the Uniform Commercial
Code. The Mortgaged Property includes both real and personal property and all
other rights and interests, whether tangible or intangible in nature, of
Mortgagor in the Mortgaged Property. Mortgagor by executing and delivering this
Mortgage has granted and hereby grants to Mortgagee, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this Section 18 the "Collateral"). Mortgagor hereby agrees to execute and
----------
deliver to Mortgagee, in form and substance reasonably satisfactory to
Mortgagee, such financing statements and such further assurances as Mortgagee
may from time to time reasonably consider necessary to create, perfect, and
preserve Mortgagee's security interest herein granted. This Mortgage shall also
constitute a "fixture filing" for the purposes of the Uniform Commercial Code as
to all or any part of the Mortgaged Property which now or hereafter constitute
"fixtures" under the Uniform Commercial Code. Information concerning the
security interest herein granted may be obtained from the parties at the
addresses of the parties set forth in the first paragraph of this Mortgage. If
an Event of Default shall occur, Mortgagee, in addition to any other rights and
remedies which it may have, shall have and may exercise immediately and without
demand, any and all rights and remedies granted to a secured party upon default
under the Uniform Commercial Code, including, without limiting the generality of
the foregoing, the right to take possession of the Collateral or any part
thereof, and to take such other measures as Mortgagee may deem necessary for the
care, protection and preservation of the Collateral. Upon request or demand of
Mortgagee, Mortgagor shall at its expense assemble the Collateral and make it
available to Mortgagee at a convenient place reasonably acceptable to Mortgagee.
Mortgagor shall pay to Mortgagee on demand any and all expenses, including
reasonable legal expenses and attorneys' fees, incurred or paid by Mortgagee in
protecting the interest in the Collateral and in enforcing the rights hereunder
with respect to the Collateral. Any notice of sale, disposition or other
intended action by Mortgagee with respect to the Collateral sent to Mortgagor in
accordance with the provisions hereof at least ten (10) days prior to such
action, shall constitute commercially reasonable notice to Mortgagor. The
proceeds of any disposition of the Collateral, or any part thereof, may be
applied by Mortgagee to the payment of the Debt in such priority and proportions
as Mortgagee in its discretion shall deem proper. In the event of any change in
name, identity or structure of any Mortgagor, such Mortgagor shall notify
Mortgagee thereof and promptly after
17
Mortgagee's request shall execute, file and record such Uniform Commercial Code
forms as are necessary to maintain the priority of Mortgagee's lien upon and
security interest in the Collateral, and shall pay all expenses and fees in
connection with the filing and recording thereof. If Mortgagee shall require the
filing or recording of additional Uniform Commercial Code forms or continuation
statements, Mortgagor shall, promptly after request, execute, file and record
such Uniform Commercial Code forms or continuation statements as Mortgagee shall
deem reasonably necessary, and shall pay all expenses and fees in connection
with the filing and recording thereof, it being understood and agreed, however,
that no such additional documents shall increase Mortgagor's obligations under
the Note, this Mortgage and the other Loan Documents. Mortgagor hereby
irrevocably appoints Mortgagee as its attorney-in-fact, coupled with an interest
upon Mortgagor's failure to do so within ten (10) Business Days after request by
Mortgagee, to file with the appropriate public office on its behalf any
financing or other statements signed only by Mortgagee, as Mortgagor's
attorney-in-fact, in connection with the Collateral covered by this Mortgage.
Notwithstanding the foregoing, Mortgagor shall appear and defend Mortgagor's
interests in any action or proceeding which affects or purports to affect the
Mortgaged Property and any interest or right therein, whether such proceeding
affects title or any other rights in the Mortgaged Property (and in conjunction
therewith, Mortgagor shall fully cooperate with Mortgagee in the event Mortgagee
is a party to such action or proceeding).
19. Actions and Proceedings. Upon the occurrence and during the
-----------------------
continuance of an Event of Default, Mortgagee has the right to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to bring any action or proceeding, in the name and on behalf of Mortgagor,
which Mortgagee, in its discretion, decides should be brought to protect its
interest in the Mortgaged Property. Mortgagee shall, at its option, be
subrogated to the lien of any mortgage or other security instrument discharged
in whole or in part by the Debt, and any such subrogation rights shall
constitute additional security for the payment of the Debt.
20. Waiver of Setoff and Counterclaim, Marshalling, Statute of
----------------------------------------------------------
Limitations, Automatic or Supplemental Stay, Etc. (a) All amounts due under this
------------------------------------------------
Mortgage, the Note and the other Loan Documents shall be payable without setoff,
counterclaim or any deduction whatsoever. Mortgagor hereby waives the right to
assert a setoff, counterclaim or deduction in any action or proceeding in which
Mortgagee is a participant, or arising out of or in any way connected with this
Mortgage, the Note, any of the other Loan Documents, or the Debt.
(b) Mortgagor hereby expressly, irrevocably, and
unconditionally waives and releases, to the extent permitted by law (i) the
benefit of all appraisement, valuation, stay, extension, reinstatement and
redemption laws now or hereafter in force and all rights of marshalling, sale in
the inverse order of alienation, or any other right to direct in any manner the
order or sale of any of the Mortgaged Property in the event of any sale
hereunder of the Mortgaged Property or any part thereof or any interest therein;
(ii) any and all rights of redemption from sale under any order or decree of
foreclosure of this Mortgage on behalf of Mortgagor, and on behalf of each and
every person acquiring any interest in or title to the Mortgaged Property
subsequent to the date of this Mortgage and on behalf of all persons to the
extent permitted by applicable law; and (iii) all benefits that might accrue to
Mortgagor by virtue of any present or future law exempting the Mortgaged
Property from attachment, levy or sale on execution or providing for any
appraisement, valuation, stay of execution, exemption from civil
18
process, redemption, or extension of time for payment. Mortgagee shall not be
under any obligation to marshal any assets in favor of any Person or against or
in payment of any or all of the Obligations.
(c) To the extent permitted by applicable law, Mortgagee's rights
hereunder shall continue even to the extent that a suit for collection of the
Debt, or part thereof, is barred by a statute of limitations. Mortgagor hereby
expressly waives and releases to the fullest extent permitted by law, the
pleading of any statute of limitations as a defense to payment of the Debt.
21. Recovery of Sums Required to Be Paid. Mortgagee shall have the right
------------------------------------
from time to time to take action to recover any sum or sums which constitute a
part of the Debt as the same become due, without regard to whether or not the
balance of the Debt shall be due, and without prejudice to the right of
Mortgagee thereafter to bring an action of foreclosure, or any other action, for
a default or defaults by Mortgagor existing at the time such earlier action was
commenced.
22. Handicapped Access. (a) Mortgagor agrees that the Mortgaged Property
------------------
shall at all times comply in all material respects with applicable requirements
of the Americans with Disabilities Act of 1990, the Fair Housing Amendments Act
of 1988, all state and local laws and ordinances related to handicapped access
and all rules, regulations, and orders issued pursuant thereto including,
without limitation, the Americans with Disabilities Act Accessibility Guidelines
for Buildings and Facilities (collectively "Access Laws"), in each case unless
-----------
and until the extent that non-compliance with Access Laws would not reasonably
be expected to have a Property Adverse Effect.
(b) Mortgagor agrees to give prompt notice to Mortgagee of the receipt
by Mortgagor of any complaints related to violation of any Access Laws and of
the commencement of any proceedings or investigations which relate to compliance
with applicable Access Laws but only to the extent that such complaints,
proceedings or investigations, if adversely determined, could have a Material
Adverse Effect.
23. Indemnification. In addition to the payment of expenses as required
---------------
elsewhere herein and in the other Loan Documents, Mortgagor agrees to indemnify,
defend, protect, pay and hold Mortgagee, its successors and assigns (including,
without limitation, the trustee and/or the trust under any trust agreement
executed in connection with any Securitization backed in whole or in part by the
Loan and any other person which may hereafter be the holder of the Note or any
interest therein), and the officers, directors, stockholders, partners, members,
employees, agents, and Affiliates of Mortgagee and such successors and assigns
(collectively, the "Indemnified Parties") harmless from and against any and all
-------------------
liabilities, obligations, claims, damages, penalties, causes of action,
out-of-pocket costs and expenses (including without limitation reasonable
attorneys' fees and expenses) (collectively, the "Indemnified Claims"), imposed
------------------
upon or incurred by or asserted against any Indemnified Party by reason of any
of the following (to the extent that insurance proceeds paid to the applicable
Indemnified Party on account of the following shall be inadequate): (i)
ownership of the Mortgage or a lien upon the Mortgaged Property or any interest
therein or receipt of any rents from the Premises; (ii) any accident, injury to
or death of persons or loss of or damage to property occurring in, on or about
19
the Mortgaged Property or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (iii) any use,
nonuse or condition in, on or about the Mortgaged Property or any part thereof
or on the adjoining sidewalks, curbs, adjacent property or adjacent parking
areas, streets or ways; (iv) performance of any labor or services or the
furnishing of any materials or other property in respect of the Mortgaged
Property or any part thereof; (v) any failure of the Premises or the
Improvements to comply with any applicable law, statute, code, ordinance, rule
or regulation; (vi) any default by Mortgagor under this Mortgage, the Loan
Agreement or any other Loan Documents; (vii) any actions taken by any
Indemnified Party in the enforcement of this Mortgage and the other Loan
Documents in accordance with their respective terms; (viii) any failure to act
on the part of any Indemnified Party hereunder; (ix) any representation or
warranty made in the Note, this Mortgage or any of the other Loan Documents
being false or misleading in any material respect as of the date such
representation or warranty was made; (x) any claim by brokers, finders or
similar persons claiming to be entitled to a commission in connection with any
Lease or other transaction involving the Mortgaged Property or any part thereof
under any legal requirement or any liability asserted against Mortgagee with
respect thereto; and (xi) the claims of any lessee of all or any portion of the
Mortgaged Property or any person acting through or under any lessee or otherwise
arising under or as a consequence of any Lease. Notwithstanding the foregoing,
Mortgagor shall not be liable for any Indemnified Claims arising (A) from the
gross negligence or willful misconduct of any Indemnified Party or (B) under
clauses (i) - (v), clause (viii), clause (x) and/or clause (xi) above to the
extent the facts, events or circumstances giving rise to such Indemnified Claim
arise after the date that any Indemnified Party or third party takes title to
the Mortgaged Property by foreclosure, deed-in-lieu thereof, the exercise of any
power of sale or otherwise. Any amounts payable to an Indemnified Party by
reason of the application of this Section 23 shall be secured by this Mortgage,
shall become due and payable on demand and shall bear interest at the Default
Rate from the date loss or damage is sustained by such Indemnified Party until
paid. The obligations and liabilities of Mortgagor under this paragraph shall
survive the termination, satisfaction, or assignment of this Mortgage and the
exercise by Mortgagee of any of its rights or remedies hereunder, including, but
not limited to, the acquisition of the Mortgaged Property by foreclosure or a
conveyance in lieu of foreclosure.
24. Notices. Any notice, demand, statement, request or consent made
-------
hereunder shall be in writing, addressed to the intended recipient at its
address set forth in the Loan Agreement, and shall be made and deemed given in
accordance with the terms of the Loan Agreement.
25. Authority. (a) Mortgagor (and the undersigned representative of
---------
Mortgagor, if any) has full power, authority and right to execute, deliver and
perform its obligations pursuant to this Mortgage, and to mortgage, give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and
assign the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Mortgage on Mortgagor's part to be performed;
and (b) Mortgagor represents and warrants that Mortgagor is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended and the related Treasury Department regulations.
26. Waiver of Notice. Mortgagor shall not be entitled to any notices of any
----------------
nature whatsoever from Mortgagee except with respect to matters for which this
Mortgage specifically
20
and expressly provides for the giving of notice by Mortgagee to Mortgagor and
except with respect to matters for which Mortgagee is required by applicable law
to give notice, and Mortgagor hereby expressly waives the right to receive any
notice from Mortgagee with respect to any matter for which this Mortgage does
not specifically and expressly provide for the giving of notice by Mortgagee to
Mortgagor.
27. Remedies of Mortgagor. In the event that a claim or adjudication is
---------------------
made that Mortgagee has acted unreasonably or unreasonably delayed acting in any
case where by law or under the Note, this Mortgage or the other Loan Documents,
it has an obligation to act reasonably or promptly, Mortgagee shall not be
liable for any monetary damages, and Mortgagor's remedies shall be limited to
injunctive relief or declaratory judgment.
28. Sole Discretion of Mortgagee. Whenever pursuant to this Mortgage or the
----------------------------
other Loan Documents, Mortgagee exercises any right given to it to consent,
approve or disapprove, or any arrangement or term is to be satisfactory to
Mortgagee, the decision of Mortgagee to consent, approve or disapprove, or to
decide that arrangements or terms are satisfactory or not satisfactory shall be
in the sole discretion of Mortgagee and shall be final and conclusive, except in
the case of all the foregoing provisions, as may be otherwise expressly and
specifically provided herein. Notwithstanding anything to the contrary contained
herein, it shall be understood and agreed that any such consent, approval, or
disapproval may be conditioned, among other things, upon Mortgagee obtaining
confirmation by the Rating Agencies that the action or other matter subject to
Mortgagee's consent, approval, or disapproval shall not adversely affect the
rating of any securities issued or to be issued in connection with any Secondary
Market Transaction, notwithstanding that such condition may not be expressly set
forth in the provision or provisions of the Loan Documents which require that
Mortgagee's consent be obtained.
29. Non-Waiver. The failure of Mortgagee to insist upon strict performance
----------
of any term hereof shall not be deemed to be a waiver of any term of this
Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations hereunder
by reason of (a) the failure of Mortgagee to comply with any request of
Mortgagor or Guarantor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of the Note or other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Debt or any
portion thereof, or (c) any agreement or stipulation by Mortgagee extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Mortgage, or the other Loan Documents. Mortgagee may resort for the payment
of the Debt to any other security held by Mortgagee in such order and manner as
Mortgagee, in its discretion, may elect. Mortgagee may take action to recover
the Debt, or any portion thereof, or to enforce any covenant hereof without
prejudice to the right of Mortgagee thereafter to foreclosure this Mortgage. The
rights and remedies of Mortgagee under this Mortgage shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of the others. No
act of Mortgagee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Mortgagee shall not be
limited exclusively to the rights and remedies herein stated but shall be
entitled to every right and remedy now or hereafter afforded at law or in
equity.
21
30. Liability. If Mortgagor consists of more than one person, the
---------
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Mortgagee's consent to any
transfer of the Mortgaged Property, this Mortgage shall be binding upon and
inure to the benefit of Mortgagor and Mortgagee and their respective successors
and assigns forever.
31. Inapplicable Provisions. If any term, covenant or condition of this
-----------------------
Mortgage is held to be invalid, illegal or unenforceable in any respect, this
Mortgage shall be construed without such provision.
32. Headings, Etc. The headings and captions of various Sections of this
-------------
Mortgage are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
33. Counterparts. This Mortgage may be executed in any number of
------------
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
34. Definitions. Unless the context clearly indicates a contrary intent or
-----------
unless otherwise specifically provided herein, words used in this Mortgage may
be used interchangeably in singular or plural form and the word "Mortgagor"
shall mean "each Mortgagor and any subsequent owner or owners of the Mortgaged
Property or any part thereof or any interest therein," the word "Mortgagee"
shall mean "Mortgagee and any subsequent holder of the Note," the word "Debt"
shall mean "the Note and any other evidence of indebtedness secured by this
Mortgage," the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, and the words "Mortgaged Property" shall
include any portion of the Mortgaged Property and any interest therein and the
words "attorneys' fees" shall include any and all reasonable attorneys' fees,
paralegal and law clerk fees, including, but not limited to, fees at the
pre-trial, trial and appellate levels incurred or paid by Mortgagee in
protecting its interest in the Mortgaged Property and Collateral and enforcing
its rights hereunder. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
35. Homestead. Mortgagor hereby waives and renounces all homestead and
---------
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Premises as against the collection of the Debt,
or any part hereof.
36. Assignments. Mortgagee shall have the right to assign or transfer its
-----------
rights under this Mortgage and the other Loan Documents without limitation,
including, without limitation, the right to assign or transfer its rights to a
servicing agent. Any assignee or transferee shall be entitled to all the
benefits afforded Mortgagee under this Mortgage and the other Loan Documents.
Mortgagee agrees to provide Mortgagor with notice of any such assignment, and in
no event shall Mortgagor's monetary obligations hereunder and under the other
Loan Documents be increased as a result of such assignment (except in accordance
with Section 10.2 of the Loan Agreement); provided, however, that Mortgagor's
consent shall not be required in connection
22
with any such assignment and no delay or failure by Mortgagee to provide such
notice shall limit the effectiveness of such assignment.
37. Survival of Obligations; Survival of Warranties and Representations.
-------------------------------------------------------------------
Each and all of the covenants, obligations, representations and warranties of
Mortgagor shall survive the execution and delivery of the Loan Documents and the
transfer or assignment of this Mortgage (including, without limitation, any
transfer of the Mortgage by Mortgagee of any of its rights, title and interest
in and to the Mortgaged Property to any party, whether or not affiliated with
Mortgagee).
38. Covenants Running with the Land. All covenants, conditions, warranties,
-------------------------------
representations and other obligations contained in this Mortgage and the other
Loan Documents are intended by Mortgagor and Mortgagee to be, and shall be
construed as, covenants running with the Mortgaged Property until the lien of
this Mortgage has been fully released by Mortgagee.
39. Governing Law; Jurisdiction. THIS MORTGAGE WAS NEGOTIATED IN THE STATE
---------------------------
OF NEW YORK AND WAS MADE BY MORTGAGOR AND ACCEPTED BY MORTGAGEE IN THE STATE OF
NEW YORK, AND THE PROCEEDS OF THE NOTE WERE DISBURSED FROM THE STATE OF NEW
YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE
PARTIES AND TO THE UNDERLYING TRANSACTION, AND IN ALL RESPECTS INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE. THIS MORTGAGE AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW YORK AND
ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES
THE PROVISIONS FOR THE CREATION, PERFECTION AND ENFORCEMENT OF THE LIENS AND
SECURITY INTERESTS CREATED PURSUANT TO THIS MORTGAGE SHALL BE GOVERNED BY THE
LAWS OF THE STATE WHERE THE MORTGAGED PROPERTY IS LOCATED.
40. Time of Essence. Time is of the essence as to all of the terms,
---------------
covenants and condition of this Mortgage and the other Loan Documents.
41. No Third-Party Beneficiaries. The provisions of this Mortgage and the
----------------------------
other Loan Documents are for the benefit of Mortgagor and Mortgagee and shall
not inure to the benefit of any third party (other than any successor or
assignee of Mortgagee or permitted assignee of Mortgagor). This Mortgage and the
other Loan Documents shall not be construed as creating any rights, claims or
causes of action against Mortgagee or any of its officers, directors, agents or
employees in favor of any party other than Mortgagor including but not limited
to any claims to any sums held in the Impositions and Insurance Reserve or any
other Reserve.
42. Relationship of Parties. The relationship of Mortgagee and Mortgagor is
-----------------------
solely that of debtor and creditor, and Mortgagee has no fiduciary or other
special relationship with the
23
Mortgagor, and no term or condition of any of the Loan Documents shall be
construed to be other than that of debtor and creditor. Mortgagor represents and
acknowledges that neither the Loan Documents nor any course of dealing between
the parties creates any partnership or joint venture between Mortgagor and
Mortgagee or any other person, nor does it provide for any shared appreciation
rights or other equity participation interest.
43. Successors and Assigns. This Mortgage shall be binding upon and inure
----------------------
to the benefit of the parties hereto and their respective successors and
assigns, except that Mortgagor may not assign its rights or obligations
hereunder except as expressly provided in Section 9 hereof or as permitted under
the Loan Agreement.
44. Investigations. Any and all representations, warranties, covenants and
--------------
agreements made in this Mortgage (and/or in other Loan Documents) shall survive
any investigation or inspection made by or on behalf of Mortgagee.
45. Assignment of Leases and Rents. (a) Mortgagor acknowledges and confirms
------------------------------
that it has executed and delivered to Mortgagee the Assignment of Leases
intending that such instrument create a present, absolute assignment to
Mortgagee of the Leases and Rents. Without limiting the intended benefits or the
remedies provided under the Assignment of Leases, Mortgagor hereby assigns to
Mortgagee, as further security for the Debt and the Obligations, the Leases and
Rents. While any Event of Default exists, Mortgagee shall be entitled to
exercise any or all of the remedies provided in the Assignment of Leases and in
Section 17 hereof, including, without limitation, the right to have a receiver
appointed. If any conflict or inconsistency exists between the Assignment of the
Leases and this Mortgage and the absolute assignment of the Leases and the Rents
in the Assignment of Leases, the terms of the Assignment of Leases shall
control.
(b) So long as any part of the Debt and the Obligations secured hereby
remain unpaid and undischarged, the fee and leasehold estates to the Mortgaged
Property shall not merge, but shall remain separate and distinct,
notwithstanding the union of such estates either in Mortgagor, Mortgagee, any
lessee or any third party by purchase or otherwise.
46. Waiver of Right to Trial by Jury. EACH OF MORTGAGOR AND MORTGAGEE
--------------------------------
HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS MORTGAGE OR THE OTHER
LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY EACH OF MORTGAGOR AND MORTGAGEE, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. MORTGAGEE IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY
MORTGAGOR.
24
47. Expenses and Attorneys' Fees. Mortgagor agrees to promptly pay
----------------------------
all reasonable fees, costs and expenses incurred by Mortgagee in connection with
any matters contemplated by or arising out of this Mortgage and the other Loan
Documents, including, without limitation, reasonable fees, costs and expenses
(including reasonable attorneys' fees and fees of other professionals retained
by Mortgagee) incurred in any action to enforce this Mortgage or the other Loan
Documents or to collect any payments due from Mortgagor under this Mortgage, the
Note or any other Loan Document or incurred in connection with any refinancing
or restructuring of the credit arrangements provided under this Mortgage
incurred in connection with a "workout" or in connection with any insolvency or
bankruptcy proceedings with respect to Mortgagor, and all such fees, costs and
expenses shall be part of the Obligations, payable on demand.
48. Amendments and Waivers. Except as otherwise provided herein, no
----------------------
amendment, modification, termination or waiver of any provision of this
Mortgage, the Note or any other Loan Document, or consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Mortgagee and any other party to be charged. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on Mortgagor in any case shall entitle Mortgagor to any other or further
notice or demand in similar or other circumstances.
49. Servicer. Mortgagee shall have the right at any time throughout
--------
the term of the Loan to designate or appoint one or more Servicers (as defined
in the Loan Agreement) to administer this Mortgage and the other Loan Documents,
and to change or replace any Servicer. All of Mortgagee's rights under this
Mortgage and the other Loan Documents may be exercised by any such Servicer
designated by Mortgagee. Any such Servicer shall be entitled to the benefit of
all obligations of Mortgagor in favor of Mortgagee.
50. Intentionally Deleted.
---------------------
51. Limitation on Recourse. The obligations of Mortgagor hereunder
----------------------
are subject to limitations on recourse as provided in Article XII of the Loan
Agreement.
52. Satisfaction of Mortgage. Upon payment of the Debt in full or
------------------------
upon satisfaction of the conditions to release of the Mortgaged Property from
the lien hereof in accordance with the terms of Section 11.4 of the Loan
Agreement, Mortgagee, at Mortgagor's sole cost and upon Mortgagor's request,
shall execute and deliver to Mortgagor a satisfaction or reconveyance of
Mortgage, duly acknowledged and in recordable form, UCC-3 financing statements
terminating any UCC-1 financing statements filed by Mortgagee relating to the
Mortgaged Property, and such other documents or instruments as may be required
to release the lien of the Loan Documents from the Mortgaged Property.
[SIGNATURE PAGE FOLLOWS]
25
IN WITNESS WHEREOF, Mortgagor has executed this instrument as of the day
and year first above written.
MORTGAGOR:
---------
VENTAS FINANCE I, LLC,
a Delaware limited liability company
By: /s/ T. Xxxxxxx Xxxxx
---------------------------------
Name: T. Xxxxxxx Xxxxx
Title: Executive Vice President
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 11 day of December, 2001, before me, Xxxxx X. Xxxxxx, Notary
Public, personally appeared T. Xxxxxxx Xxxxx, in his capacity as Executive Vice
President of Ventas Finance I, LLC, a Delaware limited liability company,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me all that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxx X. Xxxxxx
-------------------------------------------
Notary Public
Print Name: Xxxxx X. Xxxxxx
--------------------------------
County of Residence: Xxxxxx (NJ)
-----------------------
My commission expires: 2/22/02
---------------------
[Notarial Seal]
Xxxxx X. Xxxxxx
Notary Public, State of New York
No. 01BA6037540
Qualified in New York County
Commission Expires Feb, 22, 2002
