Contract
Record
&
Return To:
Xxxx
X.
Xxxxx, Esq.
Xxxxxx
Xxxxxx
Xxxxxxxx LLP
000
X. Xxxxxx
Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
This
Instrument was Prepared by
Xxxxxxx
X.
Xxxx, Esq.
Xxxxxxx
Xxxxxx, P.A.
Corporate
Center Three at International Plaza
0000
X. Xxx
Xxxxx Xxxxxxxxx
Xxxxx,
Xxxxxxx 00000
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(space
above
reserved for recorder’s use)
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AMENDED
AND RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT
AND
FINANCING STATEMENT
TAMPA
WESTSHORE ASSOCIATES LIMITED PARTNERSHIP
c/o
The
Taubman Company LLC
000
Xxxx Xxxx
Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000
as
MORTGAGOR
IN
FAVOR
OF
EUROHYPO
AG,
NEW YORK BRANCH
1114
Avenue
of the Americas
00xx
Xxxxx
Xxx
Xxxx, Xxx
Xxxx 00000
Agent,
as
MORTGAGEE
DATED: AS
OF JANUARY 8, 2008
|
MORTGAGOR
EXECUTED
IN FAVOR OF DRESDNER BANK AG, NEW YORK BRANCH, THAT CERTAIN LEASEHOLD MORTGAGE,
SECURITY AGREEMENT AND FINANCING STATEMENT DATED AS OF NOVEMBER 10, 1999 AND
RECORDED ON NOVEMBER 16, 1999 IN OFFICIAL RECORDS BOOK 09922, PAGE 1704 IN
THE
PUBLIC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA (THE “DRESDNER MORTGAGE”),
AS ASSIGNED TO XXXXXX XXXXXXX XXXX XXXXXX MORTGAGE CAPITAL INC. BY THAT CERTAIN
ASSIGNMENT OF LEASEHOLD MORTGAGE DATED AS OF DECEMBER 23, 2002 AND RECORDED
ON
DECEMBER 30, 2002 IN OFFICIAL RECORDS BOOK 12228, PAGE 0512 IN THE PUBLIC
RECORDS OF HILLSBOROUGH COUNTY, FLORIDA, AS RENEWED AND RESTATED BY THAT CERTAIN
RENEWED AND RESTATED LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND
SECURITY AGREEMENT DATED AS OF DECEMBER 23, 2002 AND RECORDED ON DECEMBER 30,
2002 IN OFFICIAL RECORDS BOOK 12228, PAGE 0518 IN THE PUBLIC RECORDS OF
HILLSBOROUGH COUNTY, FLORIDA, WHICH MORTGAGE WAS ASSIGNED TO XXXXX
FARGO BANK MINNESOTA, N.A., AS TRUSTEE FOR XXXXXX XXXXXXX I INC. COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2003-XLF DATED JULY 8, 2003 AND
RECORDED OCTOBER 14, 2003 IN OFFICIAL RECORDS BOOK 13209, PAGE 1551, AS ASSIGNED
TO XXXXXX XXXXXXX MORTGAGE CAPITAL INC. BY THAT CERTAIN ASSIGNMENT OF LEASEHOLD
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT DATED AS OF
OCTOBER 16, 2006 AND RECORDED ON JANUARY 12, 2007 IN OFFICIAL RECORDS BOOK
17332, PAGE 1920 IN THE PUBLIC RECORDS OF HILLSBOROUGH COUNTY, FLORIDA, AS
ASSIGNED TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR XXXXXX XXXXXXX
CAPITAL I INC. COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-XLF
BY
THAT CERTAIN ASSIGNMENT OF MORTGAGE AND ASSIGNMENT OF ASSIGNMENT OF LEASES
AND
RENTS DATED AS OF FEBRUARY 15, 2007 AND RECORDED ON MAY 31, 2007 IN OFFICIAL
RECORDS BOOK 17803, PAGE 0700 IN THE PUBLIC RECORDS OF HILLSBOROUGH COUNTY,
FLORIDA (THE “EXISTING MORTGAGE”). THIS AMENDED AND
RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT AMENDS
AND RESTATES THE EXISTING MORTGAGE. BASED UPON AN AGGREGATE PRINCIPAL
AMOUNT OF $193,500,000.00 SECURED BY THE DRESDNER MORTGAGE, FLORIDA DOCUMENTARY
STAMP TAXES IN THE AMOUNT OF $677,250.00 AND INTANGIBLE PERSONAL PROPERTY TAXES
IN THE AMOUNT OF $341,000.00 WERE PAID UPON THE RECORDING OF THE DRESDNER
MORTGAGE. THE CURRENT OUTSTANDING PRINCIPAL SECURED BY THE EXISTING
MORTGAGE IS $175,150,369.64 AND THE PRINCIPAL AMOUNT SECURED HEREBY IS
$325,000,000.00, WHICH INCLUDES A FUTURE ADVANCE OF
$149,849,630.36, AND THEREFORE, FLORIDA DOCUMENTARY STAMP
TAXES IN THE AMOUNT OF $524,473.95 AND INTANGIBLE PERSONAL PROPERTY TAXES IN
THE
AMOUNT OF $299,699.26 ARE DUE ON THE INCREASE IN THE PRINCIPAL AMOUNT TO BE
SECURED HEREBY AND SHALL BE PAID IN CONNECTION WITH THE RECORDATION OF THIS
MORTGAGE.
THIS
AMENDED AND
RESTATED LEASEHOLD MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT (this
“Mortgage”) is made as of the 8th day of January, 2008, by
TAMPA WESTSHORE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership
(“Mortgagor”), whose address is c/o The Taubman Company LLC,
000 Xxxx Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000, in favor
of EUROHYPO AG, NEW YORK BRANCH (“Mortgagee”), whose address is
1114 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000, individually and as “Agent” for the other
lenders who are from time-to-time party to the Loan Agreement (as such term
is
defined below) (collectively, the “Lender”).
W
I T N E S S E
T H:
WHEREAS,
Mortgagor and Dresdner Bank AG, New York Branch, as agent,
(“Dresdner”) entered into that certain Loan Agreement dated as
of November 1, 1999 (the “Dresdner Loan Agreement”), pursuant
to which Dresdner agreed to make a loan to Mortgagor in the original principal
amount of One Hundred Ninety-Three Million Five Hundred Thousand and No/100
Dollars ($193,500,000.00) (the “Dresdner Loan”);
WHEREAS,
Mortgagor executed that certain Leasehold Mortgage, Security Agreement, and
Financing Statement for the benefit of Dresdner, dated as of November 10, 1999
and recorded November 16, 1999, in the Official Records of Hillsborough County,
Florida (the “Recorder’s Office”) at Book 09922, Page 1704 (the
“Dresdner Mortgage”);
WHEREAS,
Dresdner assigned the Dresdner Mortgage to Xxxxxx Xxxxxxx Mortgage Capital
Inc.,
a New York corporation (successor in interest to Xxxxxx Xxxxxxx Xxxx Xxxxxx
Mortgage Capital, Inc., a New York corporation) (“Xxxxxx
Xxxxxxx”), pursuant to that certain Assignment of Leasehold Mortgage,
dated as of December 23, 2002 and recorded December 30, 2002 in the Recorder’s
Office at Book 12228, Page 0512;
WHEREAS,
Mortgagor executed that certain Renewed and Restated Leasehold Mortgage,
Assignment of Leases and Rents and Security Agreement for the benefit of Xxxxxx
Xxxxxxx, dated as of December 23, 2002 and recorded December 30, 2002 in the
Recorder’s Office, at Book 12228, Page 0518 (the “Xxxxxx Xxxxxxx
Mortgage”);
WHEREAS,
Mortgagor and Xxxxxx Xxxxxxx, entered into that certain Loan Agreement dated
as
of December 23, 2002 (the “Existing Loan Agreement”), pursuant
to which Xxxxxx Xxxxxxx agreed to make a loan to Mortgagor in the original
principal of One Hundred Ninety-Two Million and No/100 Dollars ($192,000,000.00)
(the “Existing Loan”);
WHEREAS,
the Existing Loan is evidenced by (i) that certain Second Renewed and Restated
Promissory Note A-1 (Split Note A-1) dated July 1, 2003, in the original
principal sum of up to ONE HUNDRED FIFTEEN MILLION SEVEN HUNDRED NINETY-SIX
THOUSAND THREE HUNDRED SEVENTY-ONE AND 72/100 Dollars ($115,796,371.72)
(“Split Note A-1”); (ii) that certain Second Renewed and
Restated Promissory Note A-2 (Split Note A-2) dated July 1, 2003, in the
original principal sum of up to THIRTY-EIGHT MILLION ONE HUNDRED ONE THOUSAND
EIGHT HUNDRED FOURTEEN AND 14/100 Dollars ($38,101,814.14) (“Split Note
A-2”); and (iii) that certain Renewed and Restated Promissory Note A-3
(Split Note A-3) dated July 1, 2003, in the original principal sum of up to
THIRTY-EIGHT MILLION ONE HUNDRED ONE THOUSAND EIGHT HUNDRED FOURTEEN AND 14/100
Dollars ($38,101,814.14) (the “Split Note A-3”), each made by
Mortgagor in favor of Xxxxxx Xxxxxxx (collectively, the “Existing
Notes”);
WHEREAS,
Xxxxxx Xxxxxxx assigned the Existing Loan to Xxxxx Fargo Bank N.A. as trustee
for Xxxxxx Xxxxxxx Capital I Inc. Commercial Mortgage Pass-Through Certificates,
Series 2003-XLF (“Xxxxx Fargo”) pursuant to that certain
Assignment of Renewed and Restated Leasehold Mortgage, Assignment of Leases
and
Rents and Security Agreement dated as of July 8, 2003 and recorded October
14,
2003 in the Recorder’s Office at Book 13209, Page 1544 (the “Xxxxxx
Mortgage Assignment 1”)
WHEREAS,
Xxxxx Fargo assigned the Xxxxxx Xxxxxxx Mortgage to Xxxxxx Xxxxxxx pursuant
to
that certain Assignment of Leasehold Mortgage, Assignment of Leases and Rents
and Security Agreement dated as of October 16, 2006 and recorded on January
12,
2007 in the Recorder’s Office at Book 17332, Page 1920 (the “Xxxxxx
Mortgage Assignment 2);
WHEREAS,
Xxxxxx Xxxxxxx assigned the Xxxxxx Xxxxxxx Mortgage to LaSalle Bank National
Association, as trustee for the Xxxxxx Xxxxxxx Capital I Inc. Commercial
Mortgage Pass-Through Certificates, Series 2007-XLF (“LaSalle”)
pursuant to that certain Assignment of Mortgage and Assignment of Assignment
of
Leases and Rents dated as of February 15, 2007 and recorded May 31, 2007 in
the
Recorder’s Office at Book 17803, Page 0700 (the “Xxxxxx Mortgage
Assignment 3; collectively with the Xxxxxx Xxxxxxx Mortgage, the Xxxxxx
Mortgage Assignment 1 and the Xxxxxx Mortgage Assignment 2, the
“Existing Mortgage”);
WHEREAS,
simultaneously herewith, Mortgagee purchased the Existing Loan from LaSalle,
and
in connection therewith, LaSalle assigned the Existing Mortgage and the Existing
Notes to Mortgagee pursuant to that certain Assignment of Loan Documents dated
as of January 8, 2008, and recorded in the Recorder’s Office at Book _____, Page
_____;
WHEREAS,
Mortgagee and Lender agreed to make a loan to Mortgagor in the aggregate
principal amount of up to THREE HUNDRED TWENTY-FIVE MILLION and No/100 DOLLARS
($325,000,000.00) (the “Loan”), from time to time under the
terms of the new promissory notes given in substitution of the Existing Notes
(collectively, the “Notes”) each dated as of January 8, 2008,
pursuant to and in accordance with the terms and provisions of that certain
Loan
Agreement dated as of January 8, 2008, by and among Agent, Lender and Mortgagor
(the “Loan Agreement”). All terms not otherwise
defined herein shall have the meanings ascribed to such terms in the Loan
Agreement;
WHEREAS,
in connection with the Loan, Mortgagor and Mortgagee shall, at even date
herewith, execute and deliver all of the other Loan Documents (as such term
is
defined in the Loan Agreement) from Mortgagor to Mortgagee and/or between
Mortgagor and Mortgagee (inclusive of this Mortgage); and
WHEREAS,
Mortgagor desires to secure the payment and performance of the
Obligations.
NOW,
THEREFORE, FOR
AND IN CONSIDERATION OF THE SUM OF TEN AND NO/100 DOLLARS ($10.00), AND OTHER
VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED THE EXISTING MORTGAGE IS HEREBY AMENDED AND RESTATED AND RENEWED
TO
READ AS FOLLOWS:
MORTGAGOR
HEREBY
IRREVOCABLY MORTGAGES, GRANTS, BARGAINS, SELLS, CONVEYS, TRANSFERS, PLEDGES,
SETS OVER AND ASSIGNS, AND GRANTS A SECURITY INTEREST, TO MORTGAGEE, ITS
SUCCESSORS AND ASSIGNS, in all of Mortgagor’s estate, right, title and interest
in, to and under any and all of the following described property, whether now
owned or hereafter acquired (collectively, the
“Property”):
A. All
of Mortgagor’s right, title, and interest in that certain real property situated
in the City of Tampa, County of Hillsborough, State of Florida, more
particularly described on Exhibit A attached hereto and incorporated
herein by this reference (the “Real Estate”), together with all
of the easements, rights, privileges, franchises, tenements, hereditaments
and
appurtenances now or hereafter thereunto belonging or in any way appertaining
and all of the estate, right, title, interest, claim and demand whatsoever
of
Mortgagor therein or thereto, either at law or in equity, in possession or
in
expectancy, now or hereafter acquired, including but not limited to all of
the
estate, right, title, interest, claim and demand whatsoever of Mortgagor under
that certain Shopping Center Lease, dated September 10, 1998, between
Hillsborough County Aviation Authority, as lessor (“Lessor”)
and Mortgagor, as lessee, which was recorded on September 17, 1998 in Book
9242
at Page 1058 and on March 19, 1999 in Book 9535 at Page 1 in Public Records
of
Hillsborough County, Florida, as amended by that certain First Amendment to
Shopping Center Lease, dated June 1, 2001 between Lessor and Mortgagor, which
was recorded on July 25, 2001 in Book 10958 at Page 1851 in the Public Records
of Hillsborough County, Florida and that certain Lease dated June 14, 2001
between Lessor, as lessor, and Concorde Companies, as lessee, which was recorded
on July 16, 2001 in Book 10942 at Page 686 in the Public Records of Hillsborough
County, Florida, as amended by that certain First Amendment to Lease, dated
April 5, 2007 between Lessor and Concorde Companies, which was recorded on
April
20, 2007 in Book 17689 at Page 1891 in the Public Records of Hillsborough
County, Florida, as thereafter assigned by Concorde Companies to IP Land
Associates LLC, a Delaware limited liability company, by that certain Ground
Lease Assignment, dated as of April 20, 2007, the assignment was recorded on
April 20, 2007 in Book 17689 at Page 1931 in the Public Records of Hillsborough
County, Florida, the lessee’s interest under which has been further assigned to
Mortgagor by that certain Ground Lease Assignment dated as of January 8, 2008,
the assignment was recorded on ________, 2008 in Book _____ at Page ____ in
the
Public Records of Hillsborough County, Florida, individually or collectively,
as
the context shall require;
B. All
structures, buildings and improvements of every kind and description now or
at
any time hereafter located or placed on the Real Estate (the
“Improvements”);
C. All
furniture, furnishings, fixtures, goods, equipment, inventory or personal
property owned by Mortgagor and now or hereafter located on, attached to or
used
in and about the Improvements, including, but not limited to, all machines,
engines, boilers, dynamos, elevators, stokers, tanks, cabinets, awnings,
screens, shades, blinds, carpets, draperies, lawn mowers, and all appliances,
plumbing, heating, air conditioning, lighting, ventilating, refrigerating,
disposal and incinerating equipment, and all fixtures and appurtenances thereto,
and such other goods and chattels and personal property owned by Mortgagor
as
are now or hereafter used or furnished in operating the Improvements, or the
activities conducted therein, and all building materials and equipment hereafter
situated on or about the Real Estate or Improvements, and all warranties and
guaranties relating thereto, and all additions thereto and substitutions and
replacements therefor (exclusive of any of the foregoing owned or leased by
tenants of space in the Improvements);
D. All
reciprocal easement agreements, and operating agreements, and agreements between
Mortgagor and Anchor Tenants, easements, rights-of-way, strips and gores of
land, vaults, streets, ways, alleys, passages, sewer rights, air rights and
other development rights now or hereafter located on the Real Estate or under
or
above the same or any part or parcel thereof, and all estates. rights, titles,
interests, tenements, hereditaments and appurtenances, reversions and remainders
whatsoever, in any way belonging, relating or appertaining to the Real Estate
and/or Improvements or any part thereof, or which hereafter shall in any way
belong, relate or be appurtenant thereto, whether now owned or hereafter
acquired by Mortgagor;
E. All
water, ditches, xxxxx, reservoirs and drains and all water, ditch, well,
reservoir and drainage rights which are appurtenant to, located on, under or
above or used in connection with the Real Estate or the Improvements, or any
part thereof, whether now existing or hereafter created or
acquired;
F. All
minerals, crops, timber, trees, shrubs, flowers and landscaping features now
or
hereafter located on, under or above the Real Estate;
G. All
Interest Rate Protection Products, cash funds, deposit accounts and other rights
and evidence of rights to cash, now or hereafter created or held by Mortgagee
or
Lender pursuant to this Mortgage, the Loan Agreement, or any other of the Loan
Documents;
H. All
leases (including, without limitation, oil, gas and mineral leases), subleases,
licenses, concessions and occupancy agreements of all or any part of the Real
Estate or the Improvements now or hereafter entered into (each, a
“Lease” and collectively, the “Leases”) and
all rents, royalties, issues, profits, revenue, income and other benefits
(collectively, the “Rents and Profits”) of the Real Estate or
the Improvements, now or hereafter arising from the use or enjoyment of all
or
any portion thereof or from any present or future Lease or other agreement
pertaining thereto or arising from any of the Contracts (as hereinafter defined)
or any of the General Intangibles (as hereinafter defined) and all cash or
securities deposited to secure performance by the tenants, subtenants, lessees
or licensees, as applicable (each, a “Tenant” and collectively,
the “Tenants”), of their obligations under any such Leases,
whether said cash or securities are to be held until the expiration of the
terms
of said Leases or applied to one or more of the installments of rent coming
due
prior to the expiration of said terms, subject to, however, the provisions
contained in Section 1.7 hereinbelow;
I. All
contracts and agreements now or hereafter entered into relating to any part
of
the Real Estate or the Improvements (collectively, the
“Contracts”) and all revenue, income and other benefits
thereof, including, without limitation, management agreements, development
agreements, service contracts, maintenance contracts, equipment leases, personal
property leases and any contracts or documents relating to construction on
any
part of the Real Estate or the Improvements (including plans, drawings, surveys,
tests, reports, bonds and governmental approvals) or to the management,
operation, leasing, sale, maintenance or repair of any part of the Real Estate
or the Improvements, subject to Mortgagor’s license to collect the Rents and
Profits as set forth in Section 1.6 below;
J. All
present and future monetary deposits given to any public or private utility
with
respect to utility services furnished to any part of the Real Estate or the
Improvements;
K. All
present and future funds, accounts, instruments, accounts receivable, documents,
causes of action, claims, general intangibles (including without limitation,
trademarks, trade names, servicemarks and symbols now or hereafter used in
connection with any part of the Real Estate or the Improvements, all names
by
which the Real Estate or the Improvements may be operated or known, all rights
to carry on business under such names, and all rights, interest and privileges
which Mortgagor has or may have as developer or declarant under any covenants,
restrictions or declarations now or hereafter relating to the Real Estate or
the
Improvements) and all notes or chattel paper now or hereafter arising from
or by
virtue of any transactions related to the Real Estate or the Improvements
(collectively, the “General Intangibles”);
L. All
water taps, sewer taps, certificates of use and occupancy (or their equivalent),
permits, licenses, franchises, certificates, consents, approvals and other
rights and privileges now or hereafter obtained in connection with the Real
Estate or the Improvements and all present and future warranties and guaranties
relating to the Improvements or to any equipment, fixtures, furniture,
furnishings, personal property or components of any of the foregoing now or
hereafter owned by Mortgagor and located or installed on the Real Estate or
the
Improvements;
M. All
building materials, supplies and equipment now or hereafter placed on the Real
Estate or in the Improvements and all architectural renderings, models,
drawings, plans, specifications, studies and data now or hereafter relating
to
the Real Estate or the Improvements;
N. All
right, title and interest of Mortgagor in any insurance policies or binders
now
or hereafter relating to the Property including any unearned premiums
thereon;
O. All
proceeds, products, substitutions and accessions (including claims and demands
therefor) of the conversion, voluntary or involuntary, of any of the foregoing
into cash or liquidated claims, including, without limitation, proceeds of
insurance and condemnation awards and proceeds of refunds of any taxes or
assessments levied against the Property with respect to any period in which
this
Mortgage encumbers the Property;
P. All
other or greater rights and interests of every nature in the Real Estate or
the
Improvements and in the possession or use thereof and income therefrom, whether
now owned or hereafter acquired by Mortgagor.
FOR
THE PURPOSES OF
SECURING:
(1) The
debt evidenced by the Notes in the aggregate principal amount of Three Hundred
Twenty-Five Million and 00/100 Dollars ($325,000,000.00), together with interest
as therein provided;
(2) All
indebtedness and obligations of Mortgagor pursuant to the Loan
Agreement;
(3) The
full and prompt payment and performance of all of the provisions, agreements,
covenants and obligations herein contained and contained in any other
agreements, documents or instruments now or hereafter evidencing, guarantying,
securing or otherwise relating to the indebtedness evidenced by the Note,
including, but not limited to the Loan Documents and the payment of all other
sums therein covenanted to be paid;
(4) Any
and all additional advances made by Lender to protect or preserve the Property
or the lien or security interest created hereby on the Property, or for taxes,
assessments or insurance premiums as hereinafter provided or for performance
of
any of Mortgagor’s obligations hereunder or under the other Loan Documents or
for any other purpose provided herein or in the other Loan Documents (whether
or
not the original Mortgagor remains the owner of the Property at the time of
such
advances); and
(5) Any
and all other indebtedness now owing or which may hereafter be owing by
Mortgagor to Mortgagee under the Loan Documents (as the same may be
supplemented, amended or modified from time to time), including, without
limitation, all prepayment fees, however and whenever incurred or evidenced,
whether express or implied, direct or indirect, absolute or contingent, or
due
or to become due, all indebtedness to Mortgagee or Lender under Interest Rate
Agreement, and all renewals, modifications, consolidations, replacements and
extensions thereof;
(All
of the sums
referred to in Paragraphs (1) through (5) above are herein sometimes referred
to
as the “secured indebtedness” or the “indebtedness secured
hereby”).
TO
HAVE AND TO HOLD
the Property unto Mortgagee, its successors and assigns forever, for the
purposes and uses herein set forth.
PROVIDED,
HOWEVER,
that if the principal and interest and all other sums due or to become due
under
the Note and the other Loan Documents, including, without limitation, any
prepayment fees required pursuant to the terms of the Note, shall have been
paid
at the time and in the manner stipulated therein and all other sums payable
hereunder and all other indebtedness secured hereby shall have been paid and
all
other covenants contained in the Loan Documents shall have been performed,
then,
in such case, this Mortgage shall be satisfied and the estate, right, title
and
interest of Mortgagee in the Property shall cease, and upon payment to Mortgagee
of all costs and expenses incurred for the preparation of the release
hereinafter referenced and all recording costs if allowed by law, Mortgagee
shall release this Mortgage and the lien hereof by proper
instrument.
ARTICLE
I
COVENANTS
OF MORTGAGOR
For
the purpose of
further securing the indebtedness secured hereby and for the protection of
the
security of this Mortgage, for so long as the indebtedness secured hereby or
any
part thereof remains unpaid, Mortgagor covenants and agrees as
follows:
1.1 Defense
of
Title. If, while this Mortgage is in force, title to the Property
or the interest of Mortgagee therein shall be the subject, directly or
indirectly, of any action at law or in equity, or be attached directly or
indirectly, or endangered, clouded or adversely affected in any manner.
Mortgagor, at Mortgagor’s expense, shall take all necessary and proper steps for
the defense of said title or interest, including the employment of counsel
approved by Mortgagee, the prosecution or defense of litigation, and the
compromise or discharge of claims made against said title or interest.
Notwithstanding the foregoing, in the event that Mortgagee determines that
Mortgagor is not adequately performing its obligations under this Section,
Mortgagee may, without limiting or waiving any other rights or remedies of
Mortgagee hereunder, take such steps with respect thereto as Mortgagee shall
deem necessary or proper; any and all costs and expenses incurred by Mortgagee
in connection therewith, together with interest thereon at the Default Rate
from
the date incurred by Mortgagee until actually paid by Mortgagor, shall be
immediately paid by Mortgagor on demand and shall be secured by this Mortgage
and by all of the other Loan Documents securing all or any part of the
indebtedness evidenced by the Note.
1.2 Performance
of
Obligations. Mortgagor shall pay when due the principal of and
the interest on the indebtedness evidenced by the Note. Mortgagor shall also
pay
all charges, fees and other sums required to be paid by Mortgagor as provided
in
the Loan Documents, and shall observe, perform and discharge all obligations,
covenants and agreements to be observed, performed or discharged by Mortgagor
set forth in the Loan Documents in accordance with their terms. Further,
Mortgagor shall promptly perform and comply in all material respects with all
covenants, conditions, obligations and prohibitions required of Mortgagor in
connection with any other document or instrument affecting title to the
Property, or any part thereof, regardless of whether such document or instrument
is superior or subordinate to this Mortgage.
1.3 Insurance. Mortgagor
shall, at Mortgagor’s expense, maintain in force and effect on the Property at
all times while this Mortgage continues in effect the insurance required by
Section 8.1(c) of the Loan Agreement and shall renew all such insurance as
required by Section 16.1(a) of the Loan Agreement, the provisions of which
are
hereby incorporated herein by reference.
1.4 Payment
of
Taxes. Mortgagor shall pay or cause to be paid, all taxes and
assessments which are or may become a lien on the Property or which are assessed
or imposed against the property in accordance with and subject to the provisions
of Section 15.2(c) of the Loan Agreement, the terms of which are incorporated
herein by reference.
1.5 Casualty
and
Condemnation. In the event of the occurrence of any casualty
affecting, or for the institution of any proceedings for eminent domain or
for
the condemnation of, the Property of any portion thereof, Mortgagor does hereby
assign to Mortgagee all proceeds of insurance or condemnation in accordance
with
but subject to Section 16 of the Loan Agreement, the terms of which are
incorporated herein by reference, and agrees to proceed in accordance with
the
terms and provisions of Section 16 of the Loan Agreement.
1.6 Rents
and
Profits. As additional and collateral security for the payment of
the indebtedness secured hereby and cumulative of any and all rights and
remedies herein provided for, Mortgagor hereby absolutely and presently assigns
to Mortgagee all existing and future Leases, and all existing and future Rents
and Profits. Mortgagor hereby grants to Mortgagee the sole, exclusive and
immediate right, without taking possession of the Property, to demand, collect
(by suit or otherwise), receive and give valid and sufficient receipts for
any
and all of said Rents and Profits, for which purpose Mortgagor does hereby
irrevocably make, constitute and appoint Mortgagee its attorney-in-fact with
full power to appoint substitutes or a trustee to accomplish such purpose (which
power of attorney shall be irrevocable so long as any indebtedness secured
hereby is outstanding, shall be deemed to be coupled with an interest, shall
survive the voluntary or involuntary dissolution of Mortgagor and shall not
be
affected by any disability or incapacity suffered by Mortgagor subsequent to
the
date hereof). Mortgagee shall be without liability for any loss which may arise
from a failure or inability to collect Rents and Profits, proceeds or other
payments. However, until the occurrence of an Event of Default under this
Mortgage, Mortgagor shall have a license to collect and receive the Rents and
Profits when due and prepayments thereof for not more than one month prior
to
due date thereof. Upon the occurrence of an Event of Default, Mortgagor’s
license shall automatically terminate without notice to Mortgagor and Mortgagee
may thereafter, without taking possession of the Property, collect the Rents
and
Profits itself or by an agent or receiver. From and after the termination of
such license, Mortgagor shall be the agent of Mortgagee in collection of the
Rents and Profits and all of the Rents and Profits so collected by Mortgagor
shall be held in trust by Mortgagor for the sole and exclusive benefit of
Mortgagee and Mortgagor shall, within three (3) business days after receipt
of
any Rents and Profits, pay the same to Mortgagee to be applied by Mortgagee
as
hereinafter set forth. Neither the demand for or collection of Rents and Profits
by Mortgagee, nor the exercise of Mortgagee’s rights as assignee of the Leases,
shall constitute any assumption by Mortgagee of any obligations under any Lease
or other agreement relating thereto. Mortgagee is obligated to account only
for
such Rents and Profits as are actually collected or received by Mortgagee.
Mortgagor irrevocably agrees and consents that the respective payors of the
Rents and Profits shall, upon demand and notice from Mortgagee of an Event
of
Default hereunder, pay said Rents and Profits to Mortgagee without liability
to
determine the actual existence of any Event of Default claimed by Mortgagee.
Mortgagor hereby waives any right, claim or demand which Mortgagor may now
or
hereafter have against any such payor by reason of such payment of Rents and
Profits to Mortgagee, and any such payment shall discharge such payor’s
obligation to make such payment to Mortgagor. All Rents and Profits collected
or
received by Mortgagee shall be applied against all expenses of collection,
including, without limitation, reasonable attorneys’ fees, against costs of
operation and management of the Property and against the indebtedness secured
hereby, in whatever order or priority as to any of the items so mentioned in
accordance with the Loan Agreement. Neither the exercise by Mortgagee of any
rights under this Section nor the application of any Rents and Profits to the
secured indebtedness shall cure or be deemed a waiver of any Default or Event
of
Default hereunder. The assignment of Leases and of Rents and Profits hereinabove
granted shall continue in full force and effect during any period of foreclosure
or redemption with respect to the Property. As additional security for the
indebtedness secured hereby, Mortgagor has executed an Assignment of Leases
and
Rents dated of even date herewith (as hereafter amended, consolidated or
modified from time to time, the “Assignment”) in favor of
Mortgagee covering all of the right, title and interest of Mortgagor, as
landlord, lessor or licensor, in and to any Leases. All rights and remedies
granted to Mortgagee under the Assignment shall be in addition to and cumulative
of all rights and remedies granted to Mortgagee hereunder.
1.7 Leases.
(a) Lease
Requirements and Administration. Execution and administration of
all Leases shall be subject to the terms and provisions of Section 14.20 and
Section 15.15 of the Loan Agreement, the terms of which are incorporated herein
by reference.
(b) Security
Deposits. All security deposits of tenants, whether held in cash
or in any other form, shall be held in compliance with applicable
law. Any bond or other instrument which Mortgagor is permitted to
hold in lieu of cash security deposits under any applicable legal requirements
shall be maintained in full force and effect in the full amount of such deposits
unless replaced by cash deposits as hereinabove described; shall be issued
by an
institution reasonably satisfactory to Mortgagee; shall, if permitted pursuant
to any applicable legal requirements, name Mortgagee as payee or mortgagee
thereunder or, at Mortgagee’s option, be assigned or fully assignable to
Mortgagee; and shall, in all respects, comply with any applicable legal
requirements and otherwise be reasonably satisfactory to Mortgagee. Mortgagor
shall, upon request, provide Mortgagee with evidence reasonably satisfactory
to
Mortgagee of Mortgagor’s compliance with the foregoing. Upon an Event of Default
under this Mortgage, Mortgagor shall, immediately upon Mortgagee’s request (if
permitted by applicable law), deliver to Mortgagee the security deposits (and
any interest previously earned thereon and not disbursed to the person(s)
lawfully entitled to receive same) with respect to all or any portion of the
Property, to be held by Mortgagee subject to the terms of the
Leases.
(c) Rights
of
Mortgagee Upon Default. Upon an Event of Default and during the
continuance thereof, whether before or after the whole principal sum secured
hereby is declared to be immediately due or whether before or after the
institution of legal proceedings to foreclose this Mortgage, forthwith, upon
demand of Mortgagee, Mortgagor shall surrender to Mortgagee and Mortgagee shall
be entitled to take actual possession of the Property or any part thereof
personally, or by its agent or attorneys in compliance with all applicable
laws.
In such event, Mortgagee shall have, and Mortgagor hereby gives and grants
to
Mortgagee, the right, power and authority to make and enter into Leases for
such
rents and for such periods of occupancy and upon conditions and provisions
as
Mortgagee may deem desirable in its sole discretion, and Mortgagor expressly
acknowledges and agrees that the term of such Lease may extend beyond the date
of any foreclosure sale at the Property; it being the intention of Mortgagor
that in such event Mortgagee shall be deemed to be and shall be the
attorney-in-fact of Mortgagor for the purpose of making and entering into Leases
for the rents and upon the terms, conditions and provisions deemed desirable
to
Mortgagee in its sole discretion and with like effect as if such Leases had
been
made by Mortgagor as the leasehold owner of the Property free and clear of
any
conditions or limitations established by this Mortgage. The power and authority
hereby given and granted by Mortgagor to Mortgagee shall be deemed to be coupled
with an interest, shall not be revocable by Mortgagor so long as any
indebtedness secured hereby is outstanding, shall survive the voluntary or
involuntary dissolution of Mortgagor and shall not be affected by any disability
or incapacity suffered by Mortgagor subsequent to the date hereof. In connection
with any action taken by Mortgagee pursuant to this Section, Mortgagee shall
not
be liable for any loss sustained by Mortgagor resulting from any failure to
let
the Property, or any part thereof, or from any other act or omission of
Mortgagee in managing the Property (unless such loss is caused solely by the
gross negligence or willful misconduct of Mortgagee in the exercise of its
rights granted hereunder) nor shall Mortgagee be obligated to perform or
discharge any obligation, duty or liability under any Lease or under or by
reason of this instrument or the exercise of rights or remedies hereunder
Mortgagor shall, and does hereby, indemnify Mortgagee and Lender for, and hold
Mortgagee and Lender harmless from, any and all claims, actions, demands,
liabilities, loss or damage which are incurred by Mortgagee or Lender under
any
such Lease or under this Mortgage or by the exercise of rights or remedies
hereunder and from any and all claims and demands whatsoever which may be
asserted against Mortgagee 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 other than those finally determined to have resulted
solely from the gross negligence or willful misconduct of Mortgagee. Should
Mortgagee incur any such liability, the amount thereof, including, without
limitation, costs, expenses and reasonable attorneys’ fees, together with
interest thereon at the Default Rate from the date incurred by Mortgagee until
actually paid by Mortgagor, shall be immediately due and payable to Mortgagee
by
Mortgagor on demand and shall be secured hereby and by all of the other Loan
Documents securing all or any part of the indebtedness evidenced by the Note.
Nothing in this Section shall impose on Mortgagee any duty, obligation or
responsibility for the control, care, management or repair of the Property,
or
for the carrying out of any of the terms and conditions of any such Lease,
nor
shall it operate to make Mortgagee responsible or liable for any waste committed
on the Property by the tenants or by any other parties or for any dangerous
or
defective condition of the Property, or for any negligence in the management,
upkeep, repair or control of the Property except to the extent hereinabove
set
forth. Mortgagor hereby assents to, ratifies and confirms any and all actions
of
Mortgagee with respect to the Property taken under this Section. The foregoing
rights are in addition to all other rights and remedies granted to Mortgagee
pursuant to this Mortgage.
1.8 Alienation
and
Further Encumbrances. Mortgagor acknowledges that Mortgagee has
relied upon the principals of Mortgagor and their experience in owning and
operating properties similar to the Property in connection with the closing
of
the loan evidenced by the Note. Accordingly, except as specifically allowed
in
Section 15.13 and Section 18.2 of the Loan Agreement, the terms of which are
hereby incorporated herein by reference, and notwithstanding anything to the
contrary contained in Section 4.6 hereof, in the event that the Property or
any
part thereof or interest therein or any interest in Mortgagor shall be sold,
conveyed, disposed of, alienated, hypothecated, leased (except to Tenants under
Leases), assigned, pledged, mortgaged, further encumbered or otherwise
transferred in derogation of this Mortgage or of Section 15.13 of the Loan
Agreement, or Mortgagor shall be divested of its title to the Property or any
interest therein, in any manner or way, whether voluntarily or involuntarily,
without the prior written consent of Mortgagee being first obtained, which
consent may be withheld in Mortgagee’s sole discretion, then, the same shall
constitute an Event of Default hereunder and Mortgagee shall have the right,
at
its option, to declare any or all of the indebtedness secured hereby,
irrespective of the maturity date specified in the Note, immediately due and
payable and to otherwise exercise any of its other rights and remedies contained
in Article III hereof. If such acceleration is during any period when a
prepayment fee is payable pursuant to the provisions set forth in the Note,
then, in addition to all of the foregoing. such prepayment fee shall also then
be immediately due and payable to the same end as though Mortgagor were
prepaying the entire indebtedness secured hereby on the date of such
acceleration.
1.9 Payment
of
Utilities, Assessments, Charges, Etc. Mortgagor shall pay prior
to delinquency, late charge, or penalty all utility charges which are incurred
by Mortgagor or which may become a charge or lien against any portion of the
Property for gas, electricity, water and sewer services furnished to the Real
Estate and/or the Improvements and all other assessments or charges of a similar
nature, or assessments payable pursuant to any restrictive covenants, whether
public or private, affecting the Real Estate and/or the Improvements or any
portion thereof, whether or not such assessments or charges are or may become
liens thereon.
1.10 Access
Privileges and Inspections. Mortgagee and its respective agents,
representatives and employees, subject to the rights of tenants, shall have
full
and free access to the Real Estate and the Improvements and any other location
where books and records concerning the Property are kept at all reasonable
times
upon reasonable prior notice for the purposes of inspecting the Property and
of
examining, copying and making extracts from the books and records of Mortgagor
relating to the Property. Mortgagor shall lend assistance to all such agents,
representatives and employees. All information obtained pursuant to such access
and inspections shall be subject to the confidentiality provisions of Section
22.17 of the Loan Agreement.
1.11 Waste;
Alteration of Improvements. Mortgagor shall not commit, suffer or
permit any material waste on the Property nor take any actions that might
invalidate any insurance carried on the Property. Mortgagor shall maintain
the
Property in good condition and repair. No part of the Improvements may be
removed, demolished or materially altered, without the prior written consent
of
Mortgagee, other than replacement of personal property in the ordinary course
of
business. Without the prior written consent of Mortgagee, Mortgagor shall not
commence construction of any improvements on the Real Estate other than
improvements required for the maintenance or repair of the
Property.
1.12 Zoning. Without
the prior written consent of Mortgagee, Mortgagor shall not seek, make, suffer,
consent to or acquiesce in any change in the zoning or conditions of use of
the
Real Estate or the Improvements. Mortgagor shall comply with and make all
payments required under the provisions of any covenants, conditions or
restrictions affecting the Real Estate or the Improvements, subject to any
rights to contest same granted to Mortgagor pursuant to the Loan Agreement.
Mortgagor shall comply with all existing and future requirements of all
governmental authorities having jurisdiction over the Property. Mortgagor shall
keep all licenses, permits, franchises and other approvals required for the
operation of the Property in full force and effect. Mortgagor shall operate
the
Property as a regional shopping mall, for so long as the indebtedness secured
hereby is outstanding. If, under applicable zoning provisions, the use of all
or
any part of the Real Estate or the Improvements is or becomes a nonconforming
use, Mortgagor shall not cause or permit such use to be discontinued or
abandoned without the prior written consent of Mortgagee. Without limiting
the
foregoing, in no event shall Mortgagor take any action that would reduce or
impair either (a) the number of parking spaces at the Property below the number
required by the REA and applicable Law, or (b) the access to the Property from
adjacent public roads. Further, without Mortgagee’s prior written consent,
Mortgagor shall not file or subject any part of the Real Estate or the
Improvements to any declaration of condominium or co-operative or convert any
part of the Real Estate or the Improvements to a condominium, co-operative
or
other form of multiple ownership and governance.
1.13 Financial
Statements and Books and Records. Mortgagor shall keep accurate
books and records of account of the Property and its own financial affairs
in
accordance with Section 14.11 of the Loan Agreement, the terms of which are
incorporated herein by reference.
(a) Further
Documentation. Mortgagor shall, upon the reasonable request of
Mortgagee and at the expense of Mortgagor: (1) promptly correct any defect,
error or omission which may be discovered in the contents of this Mortgage
or in
the contents of any of the other Loan Documents; (2) promptly execute,
acknowledge, deliver and record or file such further instruments (including,
without limitation, further mortgages, deeds of trust, security deeds, security
agreements, financing statements, continuation statements and assignments of
rents or leases) and promptly do such further acts as may be necessary,
desirable or proper to carry out more effectively, the purposes of this Mortgage
and the other Loan Documents and to subject to the liens and security interests
hereof and thereof any property intended by the terms hereof and thereof to
be
covered hereby and thereby, including specifically, but without limitation,
any
renewals, additions, substitutions, replacements or appurtenances to the
Property; (3) promptly execute, acknowledge, deliver, procure and record or
file
any document or instrument (including specifically any financing statement)
deemed advisable by Mortgagee to protect, continue or perfect the liens or
the
security interests hereunder against the rights or interests of third persons;
and (4) promptly furnish to Mortgagee, upon Mortgagee’s request, a duly
acknowledged written statement and estoppel certificate addressed to such party
or parties as directed by Mortgagee and in form and substance supplied by
Mortgagee, setting forth all amounts due under the Note, stating whether any
Event of Default hereunder has occurred or, to the best knowledge of Mortgagor,
whether any event has occurred which would with the passage of time, constitute
an Event of Default hereunder, stating whether any offsets or defenses exist
against the indebtedness secured hereby and containing such other matters as
Mortgagee may reasonably require.
1.14 Payment
of
Costs; Reimbursement to Mortgagee. In accordance with applicable
laws, Mortgagor shall pay all costs and expenses of every character incurred
in
connection with the closing of the loan evidenced by the Note and secured hereby
or otherwise attributable or chargeable to Mortgagor as the owner of the
Property, including, without limitation, appraisal fees, recording fees,
documentary, stamp, mortgage or intangible taxes, brokerage fees and
commissions, title policy premiums and title search fees, uniform commercial
code/tax lien/litigation search fees, escrow fees and attorneys’ fees. If
Mortgagor defaults in any such payment, which default is not cured within any
applicable grace or cure period, Mortgagee may pay the same and Mortgagor shall
reimburse Mortgagee on demand for all such costs and expenses incurred or paid
by Mortgagee, together with such interest thereon at the Default Rate from
and
after the date of Mortgagee’s making such payment until reimbursement thereof by
Mortgagor. Any such sums disbursed by Mortgagee, together with such interest
thereon, shall be additional indebtedness of Mortgagor secured by this Mortgage
and by all of the other Loan Documents securing all or any part of the
indebtedness evidenced by the Note. Further, Mortgagor shall promptly notify
Mortgagee in writing of any litigation or threatened litigation affecting the
Property (other than landlord-tenant litigation in the ordinary course of
business or any other litigation which does not require notification to
Mortgagee under the terms of the Loan Agreement), or any other demand or claim
which, if enforced, could impair or threaten to impair Mortgagee’s security
hereunder. Without limiting or waiving any other rights and remedies of
Mortgagee hereunder, if an Event of Default occurs under this Mortgage or any
of
the other Loan Documents, or if any action or proceeding of any kind (including,
but not limited to, any bankruptcy, insolvency, arrangement, reorganization
or
other debtor relief proceeding) is commenced which is likely to affect
Mortgagee’s interest in the Property or Mortgagee’s right to enforce its
security, then Mortgagee may, at its option, with or without notice to
Mortgagor, make any appearances, disburse any sums and take any actions as
may
be necessary or desirable to protect or enforce the security of this Mortgage
or
to remedy the failure of Mortgagor to perform its covenants and agreements
(without, however, waiving any default of Mortgagor). Mortgagor agrees to pay
on
demand all expenses of Mortgagee incurred with respect to the foregoing
(including, but not limited to, reasonable fees and disbursements of counsel),
together with interest thereon at the Default Rate from and after the date
on
which Mortgagee incurs such expenses until reimbursement thereof by Mortgagor.
Any such expenses so incurred by Mortgagee, together with interest thereon
as
provided above, shall be additional indebtedness of Mortgagor secured by this
Mortgage and by all of the other Loan Documents securing all or any part of
the
indebtedness evidenced by the Note. The necessity for any such actions and
of
the amounts to be paid shall be determined by Mortgagee in its discretion.
Mortgagee is hereby empowered to enter and to authorize others to enter upon
the
Property or any part thereof (subject to the applicable provisions of the REA
and the Leases) for the purpose of performing or observing any such defaulted
term, covenant or condition without thereby becoming liable to Mortgagor or
any
person in possession holding under Mortgagor. Mortgagor hereby acknowledges
and
agrees that the remedies set forth in this Section 1.14 shall be exercisable
by
Mortgagee, and any and all payments made or costs or expenses incurred by
Mortgagee in connection therewith shall be secured hereby and shall be, without
demand, immediately repaid by Mortgagor with interest thereon at the Default
Rate, notwithstanding the fact that such remedies were exercised and such
payments made and costs incurred by Mortgagee after the filing by Mortgagor
of a
voluntary case or the filing against Mortgagor of an involuntary case pursuant
to or within the meaning of the Bankruptcy Reform Act of 1978, as amended,
Title
11 U.S.C., or after any similar action pursuant to any other debtor relief
law
(whether statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter, in effect, which may be or become applicable
to
Mortgagor, Mortgagee, any guarantor or indemnitor, the secured indebtedness
or
any of the Loan Documents. Mortgagor hereby indemnifies and holds Mortgagee
and
Lender harmless from and against all loss, cost and expenses with respect to
any
Event of Default hereunder, any liens (i.e., judgments, mechanics’ and
materialmen’s liens, or otherwise), charges and encumbrances filed against the
Property, and from any claims and demands for damages or injury, including
claims for property damage, personal injury or wrongful death, arising out
of or
in connection with any accident or fire or other casualty on the Real Estate
or
the Improvements or any nuisance made or suffered thereon, including, in any
case, reasonable attorneys’ and paralegals’ fees, costs and expenses as
aforesaid, whether at pretrial, trial, post judgment bankruptcy or appellate
level, and such indemnity shall survive payment in full of the indebtedness
secured hereby. This Section shall not be construed to require Mortgagee to
incur any expenses, make any appearances or take any actions.
1.15 Security
Interest. This Mortgage is also intended to encumber and create a
security interest in, and Mortgagor hereby grants to Mortgagee a security
interest in all sums on deposit with Mortgagee pursuant to the provisions hereof
and all fixtures, chattels, accounts, equipment, inventory, contract rights,
general intangibles and other personal property included within the Property,
all renewals, replacements of any of the aforementioned items, or articles
in
substitution therefor or in addition thereto or the proceeds thereof (said
property is hereinafter referred to collectively as the
“Collateral”), whether or not the same shall be attached to the
Real Estate or the Improvements in any manner. It is hereby agreed that to
the
extent permitted by law, all of the foregoing property is to be deemed and
held
to be a part of and affixed to the Real Estate and the Improvements. The
foregoing security interest shall also cover Mortgagor’s leasehold interest in
any of the foregoing property which is leased by Mortgagor. Notwithstanding
the
foregoing, all of the foregoing property shall be owned by Mortgagor and no
leasing or installment sales or other financing or title retention agreement
in
connection therewith shall be permitted without the prior written approval
of
Mortgagee or as expressly permitted by Section 15.9 of the Loan Agreement.
Mortgagor shall, from time to time upon the request of Mortgagee, supply
Mortgagee with a current inventory of all of the property in which Mortgagee
is
granted a security interest hereunder, in such detail as Mortgagee may require.
Mortgagor shall promptly replace all of the Collateral subject to the lien
or
security interest of this Mortgage when worn or obsolete with Collateral
comparable to the worn out or obsolete Collateral when new and will not, without
the prior written consent of Mortgagee, remove from the Real Estate or the
Improvements any of the Collateral subject to the lien or security interest
of
this Mortgage except such as is replaced by an article of equal suitability
and
value as above provided, owned by Mortgagor free and clear of any lien or
security interest except that created by this Mortgage and the other Loan
Documents and except as otherwise expressly permitted by the terms of this
Mortgage. All of the Collateral shall be kept at the location of the Real Estate
except as otherwise required by the terms of the Loan Documents. Mortgagor
shall
not use any of the Collateral in violation of any applicable Law, statute,
ordinance or insurance policy.
1.16 Security
Agreement. This Mortgage constitutes a security agreement between
Mortgagor and Mortgagee with respect to the Collateral in which Mortgagee is
granted a security interest hereunder, and, cumulative of all other rights
and
remedies of Mortgagee hereunder, Mortgagee shall have all of the rights and
remedies of a secured party under any applicable Uniform Commercial Code.
Mortgagor hereby agrees to execute and deliver on demand and hereby authorizes
and irrevocably constitutes and appoints Mortgagee the attorney-in-fact of
Mortgagor to execute and deliver and, if appropriate, to file with the
appropriate filing officer or office such security agreements, financing
statements, continuation statements or other instruments as Mortgagee may
request or require in order to impose, perfect or continue the perfection of
the
lien or security interest created hereby. Except with respect to Rents and
Profits to the extent specifically provided herein to the contrary, from and
after the occurrence of an Event of Default Mortgagee shall have the right
of
possession of all cash, securities, instruments, negotiable instruments,
documents, certificates and any other evidences of cash or other property or
evidences of rights to cash rather than property, which are now or hereafter
a
part of the Property and Mortgagor shall promptly deliver the same to Mortgagee,
endorsed to Mortgagee, without further notice from Mortgagee. Mortgagor agrees
to furnish Mortgagee with notice of any change in the name, identity,
organizational structure, residence, or principal place of business or mailing
address of Mortgagor within ten (10) days of the effective date of any such
change. Upon an Event of Default, Mortgagee shall have the rights and remedies
as prescribed in this Mortgage, or as prescribed by general law, or as
prescribed by any applicable Uniform Commercial Code, all at Mortgagee’s
election. Any disposition of the Collateral may be conducted by an employee
or
agent of Mortgagee. Any person, including both Mortgagor and Mortgagee, shall
be
eligible to purchase any part or all of the Collateral at any such disposition.
Expenses of retaking, holding, preparing for sale, selling or the like
(including, without limitation, Mortgagee’s reasonable attorneys’ fees and legal
expenses), together with interest thereon at the Default Rate from the date
incurred by Mortgagee until actually paid by Mortgagor, shall be paid by
Mortgagor on demand and shall be secured by this Mortgage and by all of the
other Loan Documents securing all or any part of the indebtedness evidenced
by
the Note. Mortgagee shall have the right to enter upon the Real Estate and
the
Improvements or any real property where any of the property which is the subject
of the security interest granted herein is located to take possession of,
assemble and collect the same or to render it unusable, or Mortgagor, upon
demand of Mortgagee, shall assemble such property and make it available to
Mortgagee at the Real Estate, a place which is hereby deemed to be reasonably
convenient to Mortgagee and Mortgagor. If notice is required by law, Mortgagee
shall give Mortgagor at least ten (10) days’ prior written notice of the time
and place of any public sale of such property or of the time of or after which
any private sale or any other intended disposition thereof is to be made, and
if
such notice is sent to Mortgagor, as the same is provided for the mailing of
notices herein, it is hereby deemed that such notice shall be and is reasonable
notice to Mortgagor. No such notice is necessary for any such property which
is
perishable, threatens to decline speedily in value or is of a type customarily
sold on a recognized market. Any sale made pursuant to the provisions of this
Section shall be deemed to have been a public sale conducted in a commercially
reasonable manner if held contemporaneously with the foreclosure sale as
provided in Section 3.1(e) hereof upon giving the same notice with respect
to
the sale of the Property hereunder as is required under said Section 3.1(e).
Furthermore, to the extent permitted by law, in conjunction with, in addition
to
or in substitution for the rights and remedies available to Mortgagee pursuant
to any applicable Uniform Commercial Code:
(a) In
the event of a
foreclosure sale and in accordance with applicable laws, the Property may,
at
the option of Mortgagee, be sold as a whole or in parts, as determined by
Mortgagee in its sole discretion; and
(b) It
shall not be
necessary that Mortgagee take possession of the aforementioned Collateral,
or
any part thereof, prior to the time that any sale pursuant to the provisions
of
this Section is conducted and it shall not be necessary that said Collateral,
or
any part thereof, be present at the location of such sale; and
(c) Mortgagee
may
appoint or delegate any one or more persons as agent to perform any act or
acts
necessary or incident to any sale held by Mortgagee, including the sending
of
notices and the conduct of the sale, but in the name and on behalf of
Mortgagee.
The
name and
address of Mortgagor (as Debtor under any applicable Uniform Commercial Code)
are:
TAMPA
WESTSHORE
ASSOCIATES LIMITED
PARTNERSHIP
c/o
The Taubman
Company LLC
000
Xxxx Xxxx Xxxx
Xxxx, Xxxxx 000
Xxxxxxxxxx
Xxxxx,
Xxxxxxxx 00000
Attention: Xx.
Xxxxxx X. Xxxx
The
name and
address of Mortgagee (as Secured Party under any applicable Uniform Commercial
Code) are:
EUROHYPO
AG, NEW
YORK BRANCH
1114
Avenue of the
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx
00000
1.17 Easements
and
Rights-of-Way. Other than as may be permitted by Section 18.2 of
the Loan Agreement, Mortgagor shall not grant any easement or right-of-way
with
respect to all or any portion of the Real Estate or the Improvements without
the
prior written consent of Mortgagee, such consent not to be unreasonably
withheld, delayed or conditioned. The purchaser at any foreclosure sale
hereunder may, at its discretion, disaffirm any easement or right-of-way granted
in violation of any of the provisions of this Mortgage and may take immediate
possession of the Property free from, and despite the terms of, such grant
of
easement or right-of-way. If Mortgagee consents to the grant of an easement
or
right-of-way, or if its consent is not needed under the Loan Agreement,
Mortgagee agrees to subordinate the lien of the Mortgage to such easement or
right-of-way, provided that Mortgagee is paid a reasonable review fee together
with all other expenses, including, without limitation, reasonable attorneys’
fees, incurred by Mortgagee in the review of Mortgagor’s request and in the
preparation of documents effecting the subordination.
1.18 Compliance
with
Laws. Mortgagor shall at all times comply with all Laws,
statutes, ordinances, orders, regulations and other governmental or
quasi-governmental requirements and private covenants now or hereafter relating
to the ownership, construction, use, possession, or operation of the Property,
including, but not limited to, those concerning employment and compensation
of
persons engaged in operation and maintenance of the Property and any
environmental or ecological requirements, even if such compliance shall require
structural changes to the Property; provided, however,
that, Mortgagor may, upon providing Mortgagee with security
reasonably
satisfactory to Mortgagee, proceed diligently and in good faith to contest
the
validity or applicability of any such statute, ordinance, regulation or
requirement so long as during such contest the Property shall not be subject
to
any lien, charge, fine or other liability and shall not be in danger of being
forfeited, lost or closed. Mortgagor shall not use or occupy, and shall use
its
best efforts to cause all occupants of the Property not to use or occupy the
Property in any manner which violates any Lease of or any other agreement
applicable to the Property or any applicable Law, rule, regulation or order
or
which constitutes a public or private nuisance or which makes void, voidable
or
cancelable, or increases the premium of, any insurance then in force with
respect thereto. Mortgagor shall immediately forward to Mortgagee copies of
any
written notices or correspondence received from any governmental authority
relating to Mortgagor’s violation of its obligations under applicable Laws or
other agreements executed in connection therewith.
1.19 Additional
Taxes. In the event of the enactment after this date of any law
of the state where the Property is located or of any other governmental entity
deducting from the value of the Property for the purpose of taxation any lien
or
security interest thereon, or imposing upon Mortgagee or Lender the payment
of
the whole or any part of the taxes or assessments or charges of liens herein
required to be paid by Mortgagor, or changing in any way the laws relating
to
the taxation of mortgages or security agreements or debts secured by mortgages
or security agreements or the interest of the Mortgagee or secured party in
the
property covered thereby, or the manner of collection of such taxes, so as
to
adversely affect this Mortgage or the indebtedness secured hereby or Mortgagee,
then, and in any such event, Mortgagor, upon demand by Mortgagee, shall pay
such
taxes, assessments, charges or liens, or reimburse Mortgagee therefor;
provided, however, that if in the opinion of counsel for
Mortgagee (a) it might be unlawful to require Mortgagor to make such payment,
or
(b) the making of such payment might result in the imposition of interest beyond
the maximum amount permitted by law, then and in either such event, Mortgagee
may elect, by notice in writing given to Mortgagor, to declare all of the
indebtedness secured hereby to be and become due and payable in full thirty
(30)
days from the giving of such notice.
1.20 Secured
Indebtedness. It is the intent hereof to secure payment of the
Note and any other obligations of Mortgagor to Mortgagee and Lender hereunder
and, if Mortgagor is more than one person or entity, to secure payment of any
other obligations of any one or more of such persons or entities to Mortgagee
whether the entire amount shall have been advanced to Mortgagor, or to either
or
any of them, at the date hereof or at a later date, and to secure any other
amount or amounts that may be added to the indebtedness secured hereby under
the
terms of this Mortgage. The total amount of indebtedness secured hereby may
decrease or increase from time to time, but the total unpaid balance so secured
at any one time shall not exceed a principal sum equal to 200% of the original
principal amount of the Note, plus interest thereon and any disbursements made
for the payment of taxes, levies or insurance on the Property with interest
thereon; and this Mortgage shall secure any and all additional or further monies
which may be advanced by Mortgagee to Mortgagor after the date hereof as if
such
additional or further advances were made on the date hereof, whether or not
such
future advances of money are evidenced by a note or notes executed by Mortgagor,
or by either or any of them, to Mortgagee and if so evidenced, with such
maturities as shall be determined from time to time, but any and all such future
advances secured by this Mortgage shall be made not more than twenty (20) years
after the date hereof. Mortgagor shall not file a notice pursuant to Section
697.04, Florida Statutes (or any successor thereto), limiting the right of
Mortgagee to make such additional or further advances with priority as specified
herein. Nothing herein contained shall be deemed an obligation on the part
of
the Mortgagee to make any future advances.
1.21 Mortgagor’s
Waivers. To the full extent permitted by law, Mortgagor agrees
that Mortgagor shall not at any time insist upon, plead, claim or take the
benefit or advantage of any law now or hereafter in force providing for any
appraisement, valuation, stay, moratorium or extension, or any law now or
hereafter in force providing for the reinstatement of the indebtedness secured
hereby prior to any sale of the Property to be made pursuant to any provisions
contained herein or prior to the entering of any decree, judgment or order
of
any court of competent jurisdiction, or any right under any statute to redeem
all or any part of the Property so sold. Mortgagor, for Mortgagor and
Mortgagor’s successors and assigns, and for any and all persons ever claiming
any interest in the Property, to the full extent permitted by law, hereby
knowingly, intentionally and voluntarily with and upon the advice of competent
counsel: (a) waives, releases, relinquishes and forever forgoes all rights
of
valuation, appraisement, stay of execution, reinstatement and notice of election
or intention to mature or declare due the secured indebtedness (except such
notices as are specifically provided for at law or herein); (b) waives,
releases, relinquishes and forever forgoes all right to a marshalling of the
assets of Mortgagor, including the Property, to a sale in the inverse order
of
alienation, or to direct the order in which any of the Property shall be sold
in
the event of foreclosure of the liens and security interests hereby created
and
agrees that any court having jurisdiction to foreclose such liens and security
interests may order the Property sold as an entirety; and (c) waives, releases,
relinquishes and forever forgoes all rights and periods of redemption provided
under applicable law. To the full extent permitted by law, Mortgagor shall
not
have or assert any right under any statute or rule of law pertaining to the
exemption of homestead or other exemption under any federal, state or local
law
now or hereafter in effect, the administration of estates of decedents or other
matters whatever to defeat, reduce or affect the right of Mortgagee under the
terms of this Mortgage to a sale of the Property, for the collection of the
secured indebtedness without any prior or different resort for collection,
or
the right of Mortgagee under the terms of this Mortgage to the payment of the
indebtedness secured hereby out of the proceeds of sale of the Property in
preference to every other claimant whatever. Further, Mortgagor hereby
knowingly, intentionally and voluntarily, with and upon the advice of competent
counsel, waives, releases, relinquishes and forever forgoes all present and
future statutes of limitations as a defense to any action to enforce the
provisions of this Mortgage or to collect any of the indebtedness secured hereby
the fullest extent permitted by law. Mortgagor covenants and agrees that upon
the commencement of a voluntary or involuntary bankruptcy proceeding by or
against Mortgagor, Mortgagor shall not seek a supplemental stay or otherwise
shall not seek pursuant to 11 U.S.C. §105 or any other provision of the
Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law
(whether statutory, common law, case law, or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, which may be or become applicable,
to
stay, interdict, condition, reduce or inhibit the ability of Mortgagee to
enforce any rights of Mortgagee against any guarantor or indemnitor of the
secured obligations or any other party liable with respect thereto by virtue
of
any indemnity, guaranty or otherwise.
1.22 SUBMISSION
TO
JURISDICTION; WAIVER OF JURY TRIAL. MORTGAGOR, TO THE FULL EXTENT PERMITTED
BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE
ADVICE OF COMPETENT COUNSEL, (i) SUBMITS TO PERSONAL JURISDICTION IN THE STATE
IN WHICH THE REAL ESTATE IS LOCATED OVER ANY SUIT, ACTION OR PROCEEDING BY
ANY
PERSON ARISING FROM OR RELATING TO THE NOTE, THIS MORTGAGE OR ANY OTHER OF
THE
LOAN DOCUMENTS, (ii) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION OVER THE COUNTY
IN WHICH THE REAL ESTATE IS LOCATED, (iii) SUBMITS TO THE JURISDICTION OF SUCH
COURTS, AND, (iv) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT WILL
NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN
SHALL AFFECT THE RIGHT OF MORTGAGEE TO BRING ANY ACTION, SUIT OR PROCEEDING
IN
ANY OTHER FORUM). MORTGAGOR FURTHER CONSENTS AND AGREES TO SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING
BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE MORTGAGOR AT
THE
ADDRESS FOR NOTICES DESCRIBED IN ARTICLE 23 OF THE LOAN AGREEMENT, AND CONSENTS
AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND
EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS
OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).
MORTGAGEE
AND
MORTGAGOR, TO THE FULL EXTENT. PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY
AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, WAIVE,
RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO THE
INDEBTEDNESS SECURED HEREBY OR ANY CONDUCT, ACT OR OMISSION OF MORTGAGEE OR
MORTGAGOR, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS, MEMBERS, EMPLOYEES,
AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH MORTGAGEE OR
MORTGAGOR, IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT
OR
OTHERWISE.
1.23 Intentionally
Omitted.
1.24 Management. The
management of the Property shall be by either: (a) The Taubman
Company LLC, Mortgagor or an entity affiliated with Mortgagor approved by
Mortgagee (which approval shall not be unreasonably withheld, conditioned or
delayed) for so long as Mortgagor or said affiliated entity is managing the
Property in a first class manner; or (b) a professional property management
company approved by Mortgagee. Such management by an affiliated entity or a
professional property management company shall be pursuant to a written
agreement approved by Mortgagee. In no event shall any manager be removed or
replaced or the terms of any management agreement materially modified or amended
without the prior written consent of Mortgagee. After an Event of Default
hereunder or a default under any management contract then in effect, which
default is not cured within any applicable grace or cure period, Mortgagee
shall
have the right to terminate, or to direct Mortgagor to terminate, such
management contract upon thirty (30) days’ notice and to retain, or to direct
Mortgagor to retain, a new management agent approved by Mortgagee. All Rents
and
Profits generated by or derived from the Property shall first be utilized solely
for current expenses directly attributable to the ownership and operation of
the
Property, including, without limitation, current expenses relating to
Mortgagor’s liabilities and obligations with respect to this Mortgage and the
other Loan Documents, and none of the Rents and Profits generated by or derived
from the Property shall be diverted by Mortgagor and utilized for any other
purposes unless all such current expenses attributable to the ownership and
operation of the Property have been fully paid and satisfied. It shall be a
condition of Mortgagee’s consent to any management agreement, whether with an
affiliate of Mortgagor or a professional property management company, that
such
manager enter into an agreement with Mortgagee whereby the manager acknowledges
and agrees to the aforesaid rights of Mortgagee, and as to such other matters
as
Mortgagee may require.
ARTICLE
II
EVENTS
OF
DEFAULT
2.1 Events
of
Default. The occurrence of any of the following shall be an
“Event of Default hereunder:
(a) Failure
of
Mortgagor (i) (x) to pay principal when due, (y) to pay any interest within
five
(5) days after the date when due or (z) to observe or perform any of the other
covenants or conditions by Mortgagor to be performed under the terms of this
Mortgage or any other Loan Document concerning the payment of money, for a
period of five (5) business days after written notice from Mortgagee that the
same is due and payable; or (ii) for a period of thirty (30) days after written
notice from Mortgagee, to observe or perform any non-monetary covenant or
condition contained in this Mortgage or any other Loan Documents; provided
that
if any such failure concerning a non-monetary covenant or condition is
susceptible to cure and cannot reasonably be cured within said thirty (30)
day
period, then Mortgagor shall have an additional ninety (90) day period to cure
such failure and no Event of Default shall be deemed to exist hereunder so
long
as Mortgagor commences such cure within the initial thirty (30) day period
and
diligently and in good faith pursues such cure to completion within such
resulting one hundred twenty (120) day period from the date of Lender’s notice,
and provided further that if a different notice or grace period is specified
under any other subsection of Section 19.1 of the Loan Agreement with respect
to
a particular breach, the specific provision shall control.
(b) A
default occurs
under the Loan Agreement or any of the other Loan Documents which has not been
cured within any applicable grace or cure period therein provided.
ARTICLE
III
REMEDIES
3.1 Remedies
Available. If there shall occur an Event of Default under this
Mortgage, then this Mortgage is subject to foreclosure as provided by law and
Mortgagee may, and upon the request of the Required Banks shall, at its option
and by or through a trustee, nominee, assignee or otherwise, to the fullest
extent permitted by law, exercise any or all of the following rights, remedies
and recourses, either successively or concurrently:
(a) Acceleration. Accelerate
the maturity date of the Note and declare any or all of the indebtedness secured
hereby to be immediately due and payable without any presentment, demand,
protest, notice, or action of any kind whatever (each of which is hereby
expressly waived by Mortgagor to the extent permitted by applicable law),
whereupon the same shall become immediately due and payable. Upon any such
acceleration, payment of such accelerated amount shall constitute a prepayment
of the principal balance of the Note and any applicable prepayment fee provided
for in the Note shall then be immediately due and payable.
(b) Entry
on the
Property. Either in person or by agent, with or without bringing
any action or proceeding, or by a receiver appointed by a court and without
regard to the adequacy of its security, enter upon and take possession of the
Property, or any part thereof, without force or with such force as is permitted
by law and without notice or process or with such notice or process as is
required by law unless such notice and process is waivable, in which case
Mortgagor hereby waives such notice and process, and do any and all acts and
perform any and all work which may be desirable or necessary in Mortgagee’s
judgment to complete any unfinished construction on the Real Estate, to preserve
the value, marketability or rentability of the Property, to increase the income
therefrom, to manage and operate the Property or to protect the security hereof
and all sums expended by Mortgagee therefor, together with interest thereon
at
the Default Rate, shall be immediately due and payable to Mortgagee by Mortgagor
on demand and shall be secured hereby and by all of the other Loan Documents
securing all or any part of the indebtedness evidenced by the Note.
(c) Collect
Rents
and Profits. With or without taking possession of the Property,
xxx or otherwise collect the Rents and Profits, including those past due and
unpaid.
(d) Appointment
of
Receiver. Upon, or at any time prior to or after, initiating the
exercise of any power of sale, instituting any judicial foreclosure or
instituting any other foreclosure of the liens and security interests provided
for herein or any other legal proceedings hereunder, make application to a
court
of competent jurisdiction for appointment of a receiver for all or any part
of
the Property, as a matter of strict right and without notice to Mortgagor and
without regard to the adequacy of the Property for the repayment of the
indebtedness secured hereby or the solvency of Mortgagor or any person or
persons liable for the payment of the indebtedness secured hereby, and Mortgagor
does hereby irrevocably consent to such appointment, waives any and all notices
of and defenses to such appointment and agrees not to oppose any application
therefor by Mortgagee, but nothing herein is to be construed to deprive
Mortgagee or Lender of any other right, remedy or privilege Mortgagee or Lender
may now have under the law to have a receiver appointed, provided,
however, that, the appointment of such receiver, trustee or other
appointee by virtue of any court order, statute or regulation shall not impair
or in any manner prejudice the rights of Mortgagee to receive payment of the
Rents and Profits pursuant to other terms and provisions hereof. Any such
receiver shall have all of the usual powers and duties of receivers in similar
cases, including, without limitation, the full power to hold, develop, rent,
lease, manage, maintain, operate and otherwise use or permit the use of the
Property upon such terms and conditions as said receiver may deem to be prudent
and reasonable under the circumstances as more fully set forth in Section 3.3
below. Such receivership shall, at the option of Mortgagee, continue until
full
payment of all of the indebtedness secured hereby or until title to the Property
shall have passed by foreclosure sale under this Mortgage or deed in lieu of
foreclosure.
(e) Foreclosure. Immediately
commence an action to foreclose this Mortgage or to specifically enforce its
provisions or any of the indebtedness secured hereby pursuant to the statutes
in
such case made and provided and sell the Property or cause the Property to
be
sold in accordance with the requirements and procedures provided by said
statutes in a single parcel or in several parcels at the option of
Mortgagee.
(1) In
the event
foreclosure proceedings are filed by Mortgagee, all expenses incident to such
proceeding, including, but not limited to, attorneys’ fees and costs, shall be
paid by Mortgagor and secured by this Mortgage and by all of the other Loan
Documents securing all or any part of the indebtedness evidenced by the Note.
The secured indebtedness and all other obligations secured by this Mortgage,
including, without limitation, interest at the Default Rate (as defined in
the
Note), any prepayment charge, fee or premium required to be paid under the
Note
in order to prepay principal (to the extent permitted by applicable law),
attorneys’ fees and any other amounts due and unpaid to Mortgagee under the Loan
Documents, may be bid by Mortgagee in the event of a foreclosure sale hereunder.
In the event of a judicial sale pursuant to a foreclosure decree, it is
understood and agreed that Mortgagee or its assigns may become the purchaser
of
the Property or any part thereof.
(2) Mortgagee
may, by
following the procedures and satisfying the requirements prescribed by
applicable law, foreclose on only a portion of the Property and, in such event,
said foreclosure shall not affect the lien of this Mortgage on the remaining
portion of the Property foreclosed.
(f) Other. Exercise
any other right or remedy available hereunder, under any of the other Loan
Documents or at law or in equity.
3.2 Application
of
Proceeds. To the fullest extent permitted by law, the proceeds of
any sale under this Mortgage shall be applied to the extent funds are so
available to the following items in such order as Mortgagee in its discretion
may determine:
(a) To
payment of the
costs, expenses and fees of taking possession of the Property, and of holding,
operating, maintaining, using, leasing, repairing, improving, marketing and
selling the same and of otherwise enforcing Mortgagee’s right and remedies
hereunder and under the other Loan Documents, including, but not limited to,
receivers’ fees, court costs, attorneys’, accountants’, appraisers’, managers’
and other professional fees, title charges and transfer taxes.
(b) To
payment of all
sums expended by Mortgagee under the terms of any of the Loan Documents and
not
yet repaid, together with interest on such sums at the Default
Rate.
(c) To
payment of the
secured indebtedness and all other obligations secured by this Mortgage,
including, without limitation, interest at the Default Rate and, to the extent
permitted by applicable law, any prepayment fee, charge or premium required
to
be paid under the Note in order to prepay principal, in any order that Mortgagee
chooses in its sole discretion.
The
remainder, if
any, of such funds shall be disbursed to Mortgagor or to the person or persons
legally entitled thereto.
3.3 Right
and
Authority of Receiver or Mortgagee in the Event of Default; Power of
Attorney. Upon the occurrence of an Event of Default hereunder,
and entry upon the Property pursuant to Section 3.1(b) hereof or appointment
of
a receiver pursuant to Section 3.1(d) hereof, and under such terms and
conditions as may be prudent and reasonable under the circumstances in
Mortgagee’s or the receiver’s sole discretion, all at Mortgagor’s expense,
Mortgagee or said receiver, or such other persons or entities as they shall
hire, direct or engage, as the case may be, may do or permit one or more of
the
following, successively or concurrently (to the extent permitted by applicable
law): (a) enter upon and take possession and control of any and all of the
Property; (b) take and maintain possession of all documents, books, records,
papers and accounts relating to the Property; (c) exclude Mortgagor and its
agents, servants and employees wholly from the Property; (d) manage and operate
the Property; (e) preserve and maintain the Property; (f) make repairs and
alterations to the Property; (g) complete any construction or repair of the
Improvements, with such changes, additions or modifications of the plans and
specifications or intended disposition and use of the Improvements as Mortgagee
may in its sole discretion deem appropriate or desirable to place the Property
in such condition as will, in Mortgagee’s sole discretion, make it or any part
thereof readily marketable or rentable; (h) conduct a marketing or leasing
program with respect to the Property, or employ a marketing or leasing agent
or
agents to do so, directed to the leasing or sale of the Property under such
terms and conditions as Mortgagee may in its sole discretion deem appropriate
or
desirable; (i) employ such contractors, subcontractors, materialmen, architects,
engineers, consultants, managers, brokers, marketing agents, or other employees,
agents, independent contractors or professionals, as Mortgagee may in its sole
discretion deem appropriate or desirable to implement and effectuate the rights
and powers herein granted; (j) execute and deliver, in the name of Mortgagee
as
attorney-in-fact and agent of Mortgagor or in its own name as Mortgagee, such
documents and instruments as are necessary or appropriate to consummate
authorized transactions; (k) enter into such Leases, whether of real or personal
property, under such terms and conditions as Mortgagee may in its sole
discretion deem appropriate or desirable; (1) collect and receive the Rents
and
Profits from the Property; (m) eject Tenants or repossess personal property,
as
provided by law, for breaches of the conditions of their Leases; (n) xxx for
unpaid Rents and Profits, payments, income or proceeds in the name of Mortgagor
or Mortgagee; (o) maintain actions in forcible entry and detainer, ejectment
for
possession and actions in distress for rent; (p) compromise or give acquittance
for Rents and Profits, payments, income or proceeds that may become due; (q)
delegate or assign any and all rights and powers given to Mortgagee by this
Mortgage; and (r) do any acts which Mortgagee in its sole discretion deems
appropriate or desirable to protect the security hereof and use such measures,
legal or equitable, as Mortgagee may in its sole discretion deem appropriate
or
desirable to implement and effectuate the provisions of this Mortgage. This
Mortgage shall constitute a direction to and full authority to any Tenant,
lessee, or other third party who has heretofore dealt or contracted or may
hereafter deal or contract with Mortgagor or Mortgagee, at the request of
Mortgagee, to pay all amounts owing under any Lease, contract or other agreement
to Mortgagee without proof of the Event of Default relied upon. Any such Tenant,
lessee or third party is hereby irrevocably authorized to rely upon and comply
with (and shall be fully protected by Mortgagor in so doing) any request, notice
or demand by Mortgagee for the payment to Mortgagee of any Rents and Profits
or
other sums which may be or thereafter become due under its Lease, contract
or
other agreement, or for the performance of any undertakings under any such
Lease, contract or other agreement, and shall have no right or duty to inquire
whether any Event of Default under this Mortgage, or any default under any
of
the other Loan Documents, has actually occurred or is then existing. Mortgagor
hereby constitutes and appoints Mortgagee, its assignees, successors,
transferees and nominees, as Mortgagor’s true and lawful attorney-in-fact and
agent, with full power of substitution in the Property, in Mortgagor’s name,
place and stead, to do or permit any one or more of the foregoing described
rights, remedies, powers and authorities, successively or concurrently, and
said
power of attorney shall be deemed a power coupled with an interest and
irrevocable so long as any indebtedness secured hereby is outstanding. Any
money
advanced by Mortgagee or Lender in connection with any action taken under this
Section 3.3, together with interest thereon at the Default Rate from the date
of
making such advancement by Mortgagee or Lender until actually paid by Mortgagor,
shall be a demand obligation owing by Mortgagor to Mortgagee and shall be
secured by this Mortgage and by every other instrument securing the secured
indebtedness.
3.4 Occupancy
After
Foreclosure. In the event there is a foreclosure sale hereunder
and at the time of such sale, Mortgagor or Mortgagor’s representatives,
successors or assigns, or any other persons claiming any interest in the
Property by, through or under Mortgagor (except tenants of space in the
Improvements subject to Leases entered into prior to the date hereof), are
occupying or using the Property, or any part thereof, then, to the extent not
prohibited by applicable law, each and all shall, at the option of Mortgagee
or
the purchaser at such sale, as the case may be, immediately become the tenant
of
the purchaser at such sale, which tenancy shall be a tenancy from day-to-day,
terminable at the will of either landlord or tenant, at a reasonable rental
per
day based upon the value of space at the Property occupied or used, such rental
to be due daily to the purchaser. Further, to the extent permitted by applicable
law, in the event the tenant fails to surrender possession of the Property
upon
the termination of such tenancy, the purchaser shall be entitled to institute
and maintain an action for unlawful detainer of the Property in the appropriate
court of the county in which the Real Estate is located.
3.5 Notice
to
Account Debtors. Mortgagee may, at any time after an Event of
Default hereunder, notify the account debtors and obligors of any accounts,
chattel paper, negotiable instruments or other evidences of indebtedness, to
Mortgagor included in the Property to pay Mortgagee directly. Mortgagor shall
at
any time or from time to time upon the request of Mortgagee provide to Mortgagee
a current list of all such account debtors and obligors and their
addresses.
3.6 Cumulative
Remedies. All remedies contained in this Mortgage are cumulative
and Mortgagee shall also have all other remedies provided at law and in equity
or in any other Loan Documents. Such remedies may be pursued separately,
successively or concurrently at the sole subjective direction of Mortgagee
and
may be exercised in any order and as often as occasion therefor shall arise.
No
act of Mortgagee shall be construed as an election to proceed under any
particular provisions of this Mortgage to the exclusion of any other provision
of this Mortgage or as an election of remedies to the exclusion of any other
remedy which may then or thereafter be available to Mortgagee. No delay or
failure by Mortgagee to exercise any right or remedy under this Mortgage shall
be construed to be a waiver of that right or remedy or of any Event of Default
hereunder. Mortgagee may exercise any one or more of its rights and remedies
at
its option without regard to the adequacy of its security.
3.7 Payment
of
Expenses. Mortgagor shall pay on demand all of Mortgagee’s
expenses incurred in any efforts to enforce any terms of this Mortgage, whether
or not any lawsuit is filed and whether or not foreclosure is commenced but
not
completed, including, but not limited to, legal fees and disbursements,
foreclosure costs and title charges, together with interest thereon from and
after the date incurred by Mortgagee until actually paid by Mortgagor at the
Default Rate, and the same shall be secured by this Mortgage and by all of
the
other Loan Documents securing all or any part of the indebtedness evidenced
by
the Note.
ARTICLE
IV
MISCELLANEOUS
TERMS AND CONDITIONS
4.1 Time
of
Essence. Time is of the essence with respect to all provisions of
this Mortgage.
4.2 Release
of
Mortgage. If all of the secured indebtedness be paid, then and in
that event only, and all rights under this Mortgage shall terminate except
for
those provisions hereof which by their terms survive, and the Property shall
become wholly clear of the liens, security Interests, conveyances and
assignments evidenced hereby, which shall be released by Mortgagee in proper
form at Mortgagor’s cost. No release of this Mortgage or the lien hereof shall
be valid unless executed by Mortgagee. Mortgagee is hereby conferred with the
power and authority to protect, conserve, sell, lease, encumber, assign,
release, modify and otherwise manage and dispose of this Mortgage and the
Property as contemplated by the terms of this Mortgage, and to execute and
deliver satisfactions, releases, modifications and other amendments with respect
to this Mortgage and to otherwise in any way deal with this Mortgage, or the
Property as contemplated or permitted by this Mortgage. It is the intent of
these grants of powers and authority to entitle any grantee, mortgagee, lessee,
transferee, assignee or any other person in any way dealing with Mortgagee
with
respect to this Mortgage or the Property to deal with Mortgagee without having
to inquire into the power or authority of Mortgagee to act on behalf of the
Lender. Notwithstanding the foregoing to the contrary, at Mortgagor’s
request, upon repayment in full of the obligations secured hereunder, in lieu
of
terminating this Mortgage, Mortgagee shall assign this Mortgage and Mortgagee’s
rights, title and interest in this Mortgage (without recourse) to a person
designated by Mortgagor. In the event this Mortgage is assigned,
Mortgagor shall pay all of Mortgagee’s costs and expenses (including reasonable
attorney’s fees) incurred by Mortgagee in connection with such
assignment.
4.3 Certain
Rights
of Mortgagee. Without affecting Mortgagor’s liability for the
payment of any of the indebtedness secured hereby, Mortgagee may from time
to
time and without notice to Mortgagor: (a) release any person liable for the
payment of the indebtedness secured hereby; (b) extend or modify the terms
of
payment of the indebtedness secured hereby; (c) accept additional real or
personal property of any kind as security or alter, substitute or release any
property securing the indebtedness secured hereby; (d) recover any part of
the
Property; (e) consent in writing to the making of any subdivision map or plat
thereof; (f) join in granting any easement therein; or (g) join in any extension
agreement of the Mortgage or any agreement subordinating the lien
hereof.
4.4 Waiver
of
Certain Defenses. No action for the enforcement of the lien
hereof or of any provision hereof shall be subject to any defense which would
not be good and available to the party interposing the same in an action at
law
upon the Note or any of the other Loan Documents.
4.5 Notices. All
notices, demands, requests or other communications to be sent by one party
to
the other hereunder or required by law shall be given at the addresses and
in
the manner set forth in Article 23 of the Loan Agreement, the terms of which
are
hereby incorporated herein by reference.
4.6 Successors
and
Assigns. The terms, provisions, indemnities, covenants and
conditions hereof shall be binding upon Mortgagor and the successors and assigns
of Mortgagor, including all successors in interest of Mortgagor in and to all
or
any part of the Property, and shall inure to the benefit of Mortgagee, Lender,
and their respective directors, officers, shareholders, employees and agents
and
their respective successors and assigns and shall constitute covenants running
with the land. All references in this Mortgage to Mortgagor or Mortgagee shall
be deemed to include all such parties’ successors and assigns, and the term
“Mortgagee” as used herein shall also mean and refer to any lawful holder or
owner, including pledges and participants, of any of the indebtedness secured
hereby. If Mortgagor consists of more than one person or entity, each will
be
jointly and severally liable to perform the obligations of
Mortgagor.
4.7 Severability. A
determination that any provision of this Mortgage is unenforceable or invalid
shall not affect the enforceability or validity of any other provision, and
any
determination that the application of any provision of this Mortgage to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to any other
persons or circumstances.
4.8 Gender. Within
this Mortgage, words of any gender shall be held and construed to include any
other gender, and words in the singular shall be held and construed to include
the plural, and vice versa, unless the context otherwise requires.
4.9 Waiver;
Discontinuance of Proceedings. Mortgagee may waive any single
Event of Default by Mortgagor hereunder without waiving any other prior or
subsequent Event of Default. Mortgagee may remedy any Event of Default by
Mortgagor hereunder without waiving the Event of Default remedied. Neither
the
failure by Mortgagee to exercise, nor the delay by Mortgagee in exercising,
any
right, power or remedy upon any Event of Default by Mortgagor hereunder shall
be
construed as a waiver of such Event of Default or as a waiver of the right
to
exercise any such right, power or remedy at a later date. No single or partial
exercise by Mortgagee of any right, power or remedy hereunder shall exhaust
the
same or shall preclude any other or further exercise thereof, and every such
right, power or remedy hereunder may be exercised at any time and from time
to
time. No modification or waiver of any provision hereof nor consent to any
departure by Mortgagor therefrom shall in any event be effective unless the
same
shall be in writing and signed by Mortgagee, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
given. No notice to nor demand on Mortgagor in any case shall of itself entitle
Mortgagor to any other or further notice or demand in similar or other
circumstances. Acceptance by Mortgagee of any payment in an amount less than
the
amount then due on any of the secured indebtedness shall be deemed an acceptance
on account only and shall not in any way affect the existence of a Default
or an
Event of Default hereunder. In case Mortgagee shall have proceeded to invoke
any
right, remedy or recourse permitted hereunder or under the other Loan Documents
and shall thereafter elect to discontinue or abandon the same for any reason,
Mortgagee shall have the unqualified right to do so and, in such an event,
Mortgagor and Mortgagee shall be restored to their former positions with respect
to the indebtedness secured hereby, the Loan Documents, the Property and
otherwise, and the rights, remedies, recourses and powers of Mortgagee shall
continue as if the same had never been invoked.
4.10 Headings. The
headings of the sections and paragraphs of this Mortgage are for convenience
of
reference only, are not to be considered a part hereof and shall not limit
or
otherwise affect any of the terms hereof.
4.11 Governing
Law. This Mortgage shall be governed by, and shall be construed
in accordance with, the laws of the State of Florida.
4.12 Counting
of
Days. The term “days” when used herein shall mean calendar days.
If any time period ends on a Saturday, Sunday or holiday officially recognized
by the state within which the Real Estate is located, the period shall be deemed
to end on the next succeeding business day. The term “business day” when used
herein shall mean a weekday, Monday through Friday, except a legal holiday
or a
day on which banking institutions in the State in which the Real Estate is
located are authorized by law to be closed.
4.13 Relationship
of
the Parties. The relationship between Mortgagor and Mortgagee and
Lender is that of a borrower, on the one hand, and a lender, on the other hand,
only and none of those parties is, nor shall it hold itself out to be, the
agent, employee, joint venturer or partner of the other party.
4.14 Application
of
the Proceeds of the Note. To the extent that proceeds of the Note
are used to pay indebtedness secured by any outstanding lien, security interest,
charge or prior encumbrance against the Property, such proceeds have been
advanced by Mortgagee at Mortgagor’s request and Mortgagee shall be subrogated
to any and all rights, security interests and liens owned by any owner or holder
of such outstanding liens, security interests, charges or encumbrances,
irrespective of whether said liens, security interests, charges or encumbrances
are released.
4.15 Unsecured
Portion of Indebtedness. If any part of the secured indebtedness
cannot be lawfully secured by this Mortgage or if any part of the Property
cannot be lawfully subject to the lien and security interest hereof to the
full
extent of such indebtedness, then all payments made shall be applied on said
indebtedness, to the extent legally permissible, first in discharge of that
portion thereof which is unsecured by this Mortgage.
4.16 Interest
After
Sale. In the event the Property or any part thereof shall be sold
upon foreclosure as provided hereunder, to the extent permitted by law, the
sum
for which the same shall have been sold shall, for purposes of redemption
(pursuant to the laws of the state in which the Property is located), bear
interest at the Default Rate.
4.17 Inconsistency
with Other Loan Documents. In the event of any inconsistency
between the provisions hereof and the provisions in any of the other Loan
Documents, it is intended that the Loan Agreement shall be
controlling.
4.18 Construction
of
this Document. This document may be construed as a mortgage,
security deed, deed of trust, chattel mortgage, conveyance, assignment, security
agreement, pledge, financing statement, hypothecation or contract, or any one
or
more of the foregoing, in order to fully effectuate the liens and security
interests created hereby and the purposes and agreements herein set
forth.
4.19 No
Merger. It is the desire and intention of the parties hereto that
this Mortgage and the lien hereof do not merge in title to the Property. It
is
hereby understood and agreed that should Mortgagee acquire any additional or
other interests in or to the Property or the ownership thereof, then, unless
a
contrary intent is manifested by Mortgagee as evidenced by an appropriate
document duly recorded, this Mortgage and the lien hereof shall not merge in
such other or additional interests in or to the Property, toward the end that
this Mortgage may be foreclosed as if owned by a stranger to said other or
additional interests.
4.20 Rights
With
Respect to Junior Encumbrances. Any person or entity purporting
to have or to take a junior mortgage or other lien upon the Property or any
interest therein shall be subject to the rights of Mortgagee to amend, modify,
increase, vary, alter or supplement this Mortgage, the Note or any of the other
Loan Documents and to extend the maturity date of the indebtedness secured
hereby and to increase the amount of the indebtedness secured hereby to the
extent provided herein and to waive or forebear the exercise of any of its
rights and remedies hereunder or under any of the other Loan Documents and
to
release any collateral or security for the indebtedness secured hereby, in
each
and every case without obtaining the consent of the holder of such junior lien
and without the lien or security interest of this Mortgage losing its priority
over the rights of any such junior lien.
4.21 Mortgagee
May
File Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition
or
other proceedings affecting Mortgagor, or their respective creditors or
property, Mortgagee, to the extent permitted by law, shall be entitled to file
such proofs of claim and other documents as may be necessary or advisable in
order to have the claims of Mortgagee allowed in such proceedings for the entire
secured indebtedness at the date of the institution of such proceedings and
for
any additional amount which may become due and payable by Mortgagor hereunder
after such date.
4.22 Fixture
Filing. This Mortgage shall be effective from the date of its
recording as a financing statement filed as a fixture filing with respect to
all
goods constituting part of the Property which are or are to become
fixtures. The record owner of the Real Estate is Hillsborough County
Aviation Authority, a public body corporate existing under the laws of the
State
of Florida, with a mailing address of Offices of the Hillsborough County
Aviation Authority, Tampa International Airport, Xxxxx, Xxxxxxx 00000,
Attention: Executive Director of Aviation.
4.23 After-Acquired
Property. All property acquired by Mortgagor after the date of
this Mortgage which by the terms of this Mortgage shall be subject to the lien
and the security interest created hereby, shall immediately upon the acquisition
thereof by Mortgagor and without further mortgage, conveyance or assignment
become subject to the lien and security interest created by this Mortgage.
Nevertheless, Mortgagor shall execute, acknowledge, deliver and record or file,
as appropriate, all and every such further mortgages, security agreements,
financing statements, assignments and assurances, as Mortgagee shall require
for
accomplishing the purposes of this Mortgage.
4.24 No
Representation. By accepting delivery of any item required to be
observed, performed or fulfilled or to be given to Mortgagee or Lender pursuant
to the Loan Documents, including. but not limited to, any officer’s
certificates, balance sheet, statement of profit and loss or other financial
statement, survey, appraisal or insurance policy, neither Mortgagee nor Lender
shall be deemed to have warranted, consented to, or affirmed the sufficiency,
legality, effectiveness or legal effect of the same, or of any term, provision
or condition thereof, and such acceptance of delivery thereof shall not be
or
constitute any warranty, consent or affirmation with respect thereto by
Mortgagee or Lender.
4.25 Counterparts. This
Mortgage may be executed in any number of counterparts, each of which shall
be
effective only upon delivery and thereafter shall be deemed an original, and
all
of which shall be taken to be one and the same instrument, for the same effect
as if all parties hereto had signed the same signature page. Any signature
page
of this Mortgage may be detached from any counterpart of this Mortgage without
impairing the legal effect of any signatures thereon and may be attached to
another counterpart of this Mortgage identical in form hereto but having
attached to it one or more additional signature pages.
4.26 Recording
and
Filing. Mortgagor will cause the Loan Documents and all
amendments and supplements thereto and substitutions therefor to be recorded,
filed, re-recorded and re-filed in such manner and in such places as Mortgagee
shall reasonably request, and will pay on demand all such recording, filing,
re-recording and re-filing taxes, fees and other charges. Mortgagor shall
reimburse Mortgagee, or its servicing agent, for the costs incurred in obtaining
a tax service company to verify the status of payment of taxes and assessments
on the Property.
4.27 Entire
Agreement
and Modification. This Mortgage and the other Loan Documents
contain the entire agreements between the parties relating to the subject matter
hereof and thereof and all prior agreements relative hereto and thereto which
are not contained herein or therein are terminated. This Mortgage and the other
Loan Documents may not be amended, revised, waived, discharged, released or
terminated orally but only by a written instrument or instruments executed
by
the party against which enforcement of the amendment, revision, waiver,
discharge, release or termination is asserted except as otherwise provided
in
Section 21.6 of the Loan Agreement. Any alleged amendment, revision, waiver,
discharge, release or termination which is not so documented shall not be
effective as to any party.
4.28 Maximum
Interest. The provisions of this Mortgage and of all agreements
between Mortgagor and Mortgagee, whether now existing or hereafter arising
and
whether written or oral, are hereby expressly limited so that in no contingency
or event whatsoever, whether by reason of demand or acceleration of the maturity
of the Note or otherwise, shall the amount paid, or agreed to be paid
(“Interest”), to Mortgagee for the use, forbearance or
retention of the money loaned under the Note exceed the maximum amount
permissible under applicable law. If, from any circumstance whatsoever,
performance or fulfillment of any provision hereof or of any agreement between
Mortgagor and Mortgagee shall, at the time performance or fulfillment of such
provision shall be due, exceed the limit for Interest prescribed by law or
otherwise transcend the limit of validity prescribed by applicable law, then
ipsofacto the obligation to be performed or fulfilled shall be
reduced to such limit and if, from any circumstance whatsoever, Mortgagee shall
ever receive anything of value deemed Interest by applicable law in excess
of
the maximum lawful amount, an amount equal to any excessive Interest shall
be
applied to the reduction of the principal balance owing under the Note in the
inverse order of its maturity (whether or not then due) or at the option of
Mortgagee be paid over to Mortgagor, and not to the payment of Interest. All
Interest (including any amounts or payments deemed to be Interest) paid or
agreed to be paid to Mortgagee shall, to the extent permitted by applicable
law,
be amortized, prorated, allocated and spread throughout the full period until
payment in full of the principal balance of the Note so that the Interest
thereon for such full period will not exceed the maximum amount permitted by
applicable law. This paragraph will control all agreements between Mortgagor,
Mortgagee and Lender.
4.29 Ground
Lease
Provisions. The terms and conditions contained in Exhibit
B attached hereto are hereby made a part hereof.
4.30 Limited
Recourse. The provisions of Section 25.1 of the Loan Agreement
are hereby incorporated herein by reference to the same extent and effect as
if
fully set forth herein
4.31 Subordination
of
Mortgage. This Mortgage, as the same is hereafter renewed,
replaced or extended, and any and all advances hereunder are subordinate to
the
following leases (as amended from time to time): (a) that certain Land Sublease
between Highbee Development Co., Inc., successor-in-interest to Mersco Realty
Co., Inc. and Mortgagor, dated Xxxxx 00, 0000, (x) that certain Land Sublease
between Nordstrom, Inc. and Mortgagor, dated November 1, 1999, and (c) that
certain Lease between the Neiman Marcus Group, Inc. and Mortgagor, dated
November 1, 1999.
[No
further
text on this page]
IN
WITNESS WHEREOF,
Mortgagor has executed this Mortgage as of the day and year first above
written.
WITNESSES:
/s/
Xxxxxxxx
X.
Xxxxxxxxx
Print
Name
Xxxxxxxx X. Xxxxxxxxx
/s/
Xxxxxxx
X.
Xxxxxxx
Print
Name
Xxxxxxx X. Xxxxxxx
|
TAMPA
WESTSHORE ASSOCIATES LIMITED PARTNERSHIP,
a
Delaware
limited partnership
By: T-I
REIT, Inc., a Delaware
corporation,
its general partner
By: /s/
Xxxxxx Xxxx
Name: Xxxxxx
Xxxx
Title: Treasurer
|
STATE
OF
Illinois
|
)
|
)
SS:
|
|
COUNTY
OF
Xxxx
|
)
|
The
foregoing
instrument was acknowledged before me this 3rd day of
January,
2008, by Xxxxxx Xxxx, the Treasurer of T-I REIT, Inc., a Delaware corporation,
the general partner of TAMPA WESTSHORE ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership. He is personally known to me or
has produced a State of _________________ driver’s license as
identification.
Sign
Name:
/s/ Xxxx
Xxxxxxx
Notary
Public:
Print
Name:
Xxxx
Xxxxxxx
Serial
No.
(if
any):
|
[NOTARIAL
SEAL]
My
Commission
Expires: 7/18/10
|
EXHIBIT
A
PROPERTY
DESCRIPTION
Parcel
1
A
portion of the
Northwest one-quarter (NW1/4) of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 18 East,
and the Northeast one-quarter (NE1/4 ) of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx
18 East, Hillsborough County Florida, lying within and without the Plats of
West
Shore Estates as described in Plat Book 17, Page 43, and West Shore Estates
Replat as described in Plat Book 31, Page 44 of the Public Records of
Hillsborough County, Florida, being more particularly described as
follows:
Commence
at the
Northwest corner of said Section 16; thence along the Westerly boundary of
said
Section 16, South 00 degrees 20 minutes 48 seconds West, for 50.00 feet to
a
point of intersection with the former South right-of-way line of vacated
Columbus Drive and the point of beginning; thence along the former South
right-of-way line of vacated Xxxxxxxx Xxxxx Xxxxx 00 degrees 28 minutes 10
seconds East, for 468.92 feet to a point of curvature, of a tangent curve
concave to the Southeast; thence Southwesterly along the arc of said curve,
to
the left having a central angle of 45 degrees 57 minutes 10 seconds and a radius
of 360.00 feet for an arc distance of 288.73 feet to a point of tangency; thence
South 44 degrees 34 minutes 40 seconds West, a distance of 53.48 feet to a
point
of curvature of tangent curve concave to the East; thence Southerly along the
arc of said curve to the left having a central angle of 80 degrees 37 minutes
52
seconds and a radius of 30.00 feet for an arc distance of 42.22 feet to a point
of reverse curvature of a tangent curve concave to the Southwest; thence
Southeasterly along the arc of said curve to the right having a central angle
of
36 degrees 24 minutes 56 seconds and a radius of 400.00 feet for an arc distance
of 254.23 feet to a point of tangency; thence South 00 degrees 21 minutes 44
seconds West, a distance of 299.85 feet to a point of curvature of a tangent
curve concave to the Northeast; thence Southeasterly along the arc of said
curve
to the left, having a central angle of 90 degrees 00 minutes 00 seconds and
a
radius of 30.00 feet for an arc distance of 47.12 feet to a point of tangency;
thence South 89 degrees 38 minutes 16 seconds East, a distance of 5.47 feet
to a
point of curvature of a tangent curve concave to the Southwest; thence
Southeasterly along the arc of said curve to the right, having a central angle
of 39 degrees 09 minutes 41 seconds and a radius of 554.00 feet for an arc
distance of 378.66 feet to a point of tangency; thence South 50 degrees 28
minutes 34 seconds East, a distance of 165.11 feet; thence South 39 degrees
31
minutes 26 seconds West, a distance of 108.00 feet; thence North 50 degrees
28
minutes 34 seconds West, a distance of 165.11 feet to a point of curvature
of a
tangent curve concave to the Southwest; thence Northwesterly along the arc
of
said curve to the left, having a central angle of 39 degrees 09 minutes 41
seconds and a radius of 446.00 feet for an arc distance of 304.84 feet to a
point of tangency; thence North 89 degrees 38 minutes 16 seconds West, a
distance of 5.47 feet to a point of curvature of a tangent curve concave to
the
Southeast; thence Southwesterly along the arc of said curve to the left, having
a central angle of 90 degrees 00 minutes 00 seconds and a radius of 30.00 feet
for an arc distance of 47.12 feet to a point of tangency; thence South 00
degrees 21 minutes 44 seconds West, a distance of 60.95 feet to a point of
curvature of a tangent curve to the Northwest; thence Southwesterly along the
arc of said curve to the right, having a central angle of 39 degrees 09 minutes
42 seconds and a radius of 411.00 feet for an arc distance of 280.92 feet to
a
point of tangency; thence South 39 degrees 31 minutes 26 seconds West, a
distance of 227.59 feet; thence South 48 degrees 58 minutes 48 seconds East,
a
distance of 324.62 feet; thence South 39 degrees 31 minutes 26 seconds West
for
203.34 feet to the point of curvature of a curve concave to the Northwest;
thence continue Southwesterly along the arc of said curve to the right, having
a
central angle of 51 degrees 42 minutes 45 seconds and a radius of 1809.86 feet
for an arc distance of 1633.50 feet to a point of tangency; thence North 88
degrees 45 minutes 50 seconds West, a distance of 287.74 feet; thence North
01
degrees 46 minutes 20 seconds East, a distance of 489.36 feet to a point on
the
arc of a
non-tangent
curve
concave to the Northeast, a radial line of said curve through said
point having a bearing of South 07 degrees 02 minutes 22 seconds West; thence
Northwesterly along the arc of said curve to the right, having a central angle
of 28 degrees 19 minutes 41 seconds and a radius of 630.00 feet for an arc
distance of 311.48 feet to a point on the arc of a non-tangent curve concave
to
the Southeast, a radial line of said curve through said point having a bearing
of North 59 degrees 24 minutes 25 seconds West; thence Southwesterly along
the
arc of said curve to the left, having a central angle of 28 degrees 49 minutes
15 seconds and a radius of 446.00 feet for an arc distance of 224.35 feet to
point on a non-tangent line; thence North 88 degrees 13 minutes 40 seconds
West
along the radial extension of the last described curve a distance of 14.00
feet
to a point on the former East right-of-way line of vacated Westshore Boulevard;
thence along the former right-of-way line the following 7 courses; North 01
degrees 46 minutes 20 seconds East, for 171.56 feet to the point of curvature
of
a curve concave to the West; thence Northwesterly along the arc of said curve
to
the left having a central angle of 01 degrees 18 minutes 00 seconds and a radius
of 22,958.32 feet for an arc distance of 520.91 feet to a point of tangency;
thence North 00 degrees 28 minutes 20 seconds East, for 83.85 feet; thence
South
89 degrees 31 minutes 40 seconds East, for 24.68 feet; thence North 00 degrees
26 minutes 16 seconds East 116.50 feet; thence North 89 degrees 31 minutes
40
seconds West, for 24.61 feet; thence North 00 degrees 28 minutes 20 seconds
East
for 1,170.64 feet to a point of intersection with the former South right-of-way
line of said vacated Columbus Drive; thence along the former right-of-way line
of vacated Columbus Drive South 88 degrees 48 minutes 30 seconds East, for
1925.86 feet to a point of intersection with the Easterly boundary of said
Section 17, said point being the point of beginning.
PARCEL
E
A
portion of the
Northeast 1/4 of SECTION 17, TOWNSHIP 29 SOUTH, RANGE 18 EAST, Hillsborough
County, Florida, lying within the Plat of WEST SHORE ESTATES as described and
recorded in Plat Book 17, Page 43 of the Public Records of Hillsborough County,
Florida, being more particularly described as follows:
Commence
at the
Northwest corner of Section 16, Township 29 South, Range 18 East; thence along
the Westerly boundary of said Section 00, Xxxxx 00x00'00" Xxxx, for 50.00 feet
to a point of intersection with the former South right-of-way line of vacated
Columbus Drive; thence along the former South right-of-way line of vacated
Xxxxxxxx Xxxxx Xxxxx 00x00'00" Xxxx 1582.37 feet; thence along the South
right-of-way line of Columbus Drive the following 2 courses: thence South
00°31'50" West, for 6.06 feet to a point on a curve concave to the Southwest;
thence Easterly along the arc of said curve, having a radius of 536.59 feet,
a
central angle of 21°27'53", an arc length of 201.02 feet and a chord bearing
South 78°44'13" East for 199.85 feet to a point of intersection with the
Northwesterly right-of-way line of Boy Scout Boulevard, said point being on
a
curve concave to the Southeast; thence along said right-of-way line the
following 5 courses; thence Southwesterly along the arc of said curve having
a
radius of 2009.86 feet, central angle of 25°40'03", an arc length of
900.38 feet, and a chord bearing South 52°21'27" West, for 892.87 feet; thence
South 39°31'26" West, for 1496.78 feet to the point of curvature of a curve
concave to the Northwest; thence Southwesterly along the arc of said curve,
having a radius of 1809.86 feet, a central angle of 51°42'45", an arc length of
1633.50 feet and a chord bearing South 65°22'49" West, for 1578.61 feet; thence
North 88°45'49" West, a distance of 287.74 feet to the Point of Beginning;
thence continue North 88°45'49" West, for 329.94 feet to a point on the East
right-of-way line of Westshore Boulevard; thence along said right-of-way line
of
the following two courses; thence North 01°14'31" East for 50.00 feet; thence
North 88°45'49" West, for 29.34 feet to a point on a curve concave to the East;
thence along the former East right-of-way line of vacated Westshore Boulevard
the following 2 courses: thence Northerly along the arc of said curve having
a
radius of 22,878.32 feet, a central angle of 00°16'41", an arc length of 111.03
feet and a chord bearing North 01°38'00" East, for 111.03 feet; thence North
01°46'20" East, for 219.26 feet; thence South 88°13'40" East, a distance of
14.00 feet to a point on the arc of a non-tangent curve concave to the Southeast
a radial line of said curve through said point having a bearing xx Xxxxx
00x00'00" Xxxx; thence Northeasterly along the arc of said curve to the right
,
having a central angle of 28°49'15" and a radius of 446.00 feet for an arc
distance of 224.35 feet to a point on the arc of non-tangent curve concave
to
the Northeast, a radial of 630.00 feet for an arc distance of 311.48 feet to
a
point on a non-tangent line; thence South 01°46'20" West, a distance of 489.36
feet to the Point of Beginning.
Parcel
2
Non-exclusive
easements for the benefit of the above Parcels, as recited in Article VI of
that
certain Amended and Restated Development, Use and Reciprocal Easement Agreement
recorded in Official Records Book 9227, page 556, of the Public Records of
Hillsborough County, Florida and modified by First Amendment recorded in
Official Records Book 10372, page 1 and Second Amendment recorded in Official
Records Book 10372, page 7 and further modified by Release of Liens recorded
in
Official Records Book 10372, page 26 and modified by Release of Easement Rights
recorded in Official Records Book 16455, page 336 and Release of Easement Rights
recorded in Official Records Book 17689, Page 1895, of the Public Records of
Hillsborough County, Florida.
Parcel
3
Non-exclusive
access easements for the benefit of Parcel 1, as recited in Paragraph 6 of
that
certain Shopping Center Lease dated September 10, 1998, recorded in Official
Records Book 9242, page 1058, and as recorded in Official Records Book 9535,
page 1 of the Public Records of Hillsborough County, Florida including, but
not
limited to, the following:
i) Non-exclusive
use of the access road located on the property now owned
by Hillsborough County Aviation Authority and which runs within two
hundred (200) feet of the western boundary line of the Restated Lease Premises
and runs to the terminal complex;
ii) Non-exclusive
easements over and across those portions of Westshore Boulevard and Columbus
Drive which are adjacent to the Restated Leased Premises and which are now
owned
by the Hillsborough County Aviation Authority.
Parcel
4
Non-exclusive
easements for the benefit of Parcel 1, created in that certain Construction,
Operation and Reciprocal Easement Agreement by and between Tampa Westshore
Associates Limited Partnership, The Neiman Marcus Group, Inc., The May
Department Stores Company, Mercantile Properties, Inc., The Xxxxxx Dry Goods
Company, and Nordstrom, Inc. dated as of November 1, 1999, recorded November
16,
1999 in Official Records Book 9922, page 1459, of the Public Records of
Hillsborough County, Florida and amended by First Amendment to Construction,
Operation and Reciprocal Easement Agreement recorded in Official Records Book
10753, Page 500.
EXHIBIT
B
Leasehold
Mortgage Addendum
The
following terms
and conditions are included as additional provisions to the Mortgage to which
it
is attached:
1. Mortgagor
shall pay or cause to be paid all rent and other charges required under that
certain Shopping Center Lease between Hillsborough County Aviation Authority,
a
public body corporate existing under the laws of the State of Florida
(“Hillsborough County”) as the lessor, and Mortgagor, as
lessee, dated as of September 10, 1998, as amended by that certain First
Amendment to Lease, dated as of June 14, 2001, and that certain Lease between
Hillsborough County, as the lessor, and Concorde Companies, as the lessee,
dated
as of June 14, 2001, as amended by that certain First Amendment to Lease, dated
April 5, 2007, as assigned by the Concorde Companies to IP Land Associates,
LLC
(“IP Land LLC”) pursuant to that certain Ground Lease
Assignment, dated April 20, 2007, as assigned further by IP Land LLC to
Mortgagor pursuant to that certain Ground Lease Assignment, dated as of January
8, 2008 (the foregoing agreements are referred to together as the
“Ground Lease”), as and when the same are due and Mortgagor
shall keep, observe and perform, or cause to be kept, observed and performed,
all of the other terms, covenants, provisions and agreements of the Ground
Lease
on the part of the lessee thereunder to be kept, observed and performed, and
shall not in any manner, cancel, terminate or surrender, or permit any
cancellation, termination or surrender of the Ground Lease, in whole or in
part,
or, without the written consent of Mortgagee, either orally or in writing,
modify, amend or permit any modification or amendment of any of the material
terms thereof in any respect, and any attempt on the part of Mortgagor to
exercise any such right without such written consent of Mortgagee shall be
null
and void and of no effect.
2. Mortgagor
shall do, or cause to be done, all things necessary to preserve and keep
unimpaired the rights of Mortgagor as lessee under the Ground Lease, and to
prevent any default by it under the Ground Lease, or any termination, surrender,
cancellation, forfeiture or impairment thereof, and in the event of the failure
of Mortgagor to make any payment required to be made by Mortgagor pursuant
to
the provisions of the Ground Lease or to keep, observe or perform, or cause
to
be kept, observed or performed, any of the material terms, covenants, provisions
or agreements of the Ground Lease, Mortgagor agrees that Mortgagee may (but
shall not be obligated to), after ten (10) Business Days’ notice to Mortgagor
(provided, however, that no such notice shall be required to be given after
the
occurrence of an Event of Default hereunder) take any action on behalf of
Mortgagor, to make or cause to be kept, observed or performed any such terms,
covenants, provisions or agreements and to enter upon the Real Estate and the
Improvements and subject to the terms of the Ground Lease and the Leases take
all such action thereof as may be necessary therefor, to the end that the rights
of Mortgagor in and to the leasehold estate created by the Ground Lease shall
be
kept unimpaired and free from default, and all money so expended by Mortgagee,
with interest thereon at the Default Rate provided for in the Note from the
date
of each such expenditure, shall be paid by Mortgagor to Mortgagee promptly
upon
demand by Mortgagee and shall be added to the indebtedness and secured by this
Mortgage and Mortgagee and Lender shall have, in addition to any other remedy
of
Mortgagee and Lender, the same rights and remedies in the event of non-payment
of any such sum by Mortgagor as in the case of a default by Mortgagor in the
payment of any sums due under the Note.
3. Mortgagor
shall enforce the material obligations of the lessor under the Ground Lease
to
the end that Mortgagor may enjoy all of the rights granted to it under the
Ground Lease, and shall promptly notify Mortgagee in writing upon becoming
aware
of any default by the lessor or by Mortgagor in the performance or observance
of
any of the terms, covenants and conditions on the part of the lessor or
Mortgagor, as the case may be, to be performed or observed under the Ground
Lease and Mortgagor shall promptly advise Mortgagee in writing of the
occurrences of any of the events of default enumerated in the Ground Lease
and
of the giving of any notice by the lessor to Mortgagor of any default by
Mortgagor in performance or observance of any of the terms, covenants or
conditions of the Ground Lease on the part of the Mortgagor to be performed
or
observed and shall deliver to Mortgagee a true copy of each such notice. If,
pursuant to the Ground Lease, the lessor shall deliver to Mortgagee a copy
of
any notice of default given to Mortgagor, such notice shall constitute full
authority and protection to Mortgagee for any action omitted to be taken or
reasonably taken by Mortgagee in good faith in reliance thereon to cure such
default.
4. If
any action or proceeding shall be instituted to evict Mortgagor or to recover
possession of the Real Estate or the Improvements or for any other purpose
affecting the Ground Lease or this Mortgage, Mortgagor shall, immediately upon
service thereof on or to Mortgagor, deliver to Mortgagee a true copy of each
petition, summons, complaint, notice of motion, order to show cause and of
all
other provisions, pleadings, and papers, however designated, served in any
such
action or proceeding.
5. Mortgagor
covenants and agrees that unless Mortgagee shall otherwise expressly consent
in
writing, the fee title to the property demised by the Ground Lease and the
leasehold estate shall not merge but shall always remain separate and distinct,
notwithstanding the union of said estates either in the lessor, Mortgagor,
or a
third party by purchase or otherwise; and in case Mortgagor acquires the fee
title or any other estate, title or interest in the Real Estate, this Mortgage
shall attach to and cover and be a lien upon the fee title or such other estate
so acquired, and such fee title or other estate shall, without further
assignment, Mortgage or conveyance, become and be subject to the lien of and
covered by this Mortgage.
6. No
release or forbearance of any of Mortgagor’s obligations under the Ground Lease,
pursuant to the Ground Lease, or otherwise, shall release Mortgagor from any
of
its obligations under this Mortgage, including its obligation with respect
to
the payment of rent as provided for in the Ground Lease and the performance
of
all of the terms, provisions, covenants, conditions and agreements contained
in
the Ground Lease, to be kept, performed and complied with by the tenant
therein.
7. Upon
the occurrence and during the continuance of an Event of Default, Mortgagor
shall not make any election or give any consent or approval (other than the
exercise of a renewal right or extension right pursuant to Paragraph 9 below)
for which a right to do so is conferred upon Mortgagor as lessee under the
Ground Lease without Mortgagee’s prior written consent. In case of any Event of
Default and during the continuance of any Event of Default under this Mortgage,
all such rights, together with the right of termination, cancellation,
modification, change, supplement, alteration or amendment of the Ground Lease,
all of which have been assigned for collateral purpose to Mortgagee, shall
vest
in and be exercisable solely by Mortgagee.
8. Mortgagor
shall give Mortgagee prompt written notice of the commencement of any
arbitration or appraisal proceeding under and pursuant to the provisions of
the
Ground Lease. Mortgagee shall have the right to intervene and participate in
any
such proceeding and Mortgagor shall confer with Mortgagee to the extent which
Mortgagee deems necessary for the protection of Mortgagee. Upon the written
request of Mortgagee, if an Event of Default exists, Mortgagor shall exercise
all rights of arbitration conferred upon it by the Ground Lease. Mortgagor
shall
select an arbitrator who is approved in writing by Mortgagee, provided, however,
that if at the time any such proceeding shall be commenced, Mortgagor shall
be
in default in the performance or observance of any covenant, condition or other
requirement of the Ground Lease, or of this Mortgage, on the part of Mortgagor
to be performed or observed, Mortgagee shall have, and is hereby granted, the
sole and exclusive right to designate and appoint on behalf of Mortgagor the
arbitrator or arbitrators, or appraiser, in such proceeding.
9. Mortgagor
may exercise any option or right to renew or extend the term of the Ground
Lease
or exercise the fee option contained therein without the prior written consent
of Mortgagee. Mortgagor shall give Mortgagee simultaneous written notice of
the
exercise of such option or right to renew or extend, together with a copy of
the
instrument given to the lessor under the Ground Lease exercising such option
or
right, and, thereafter, shall promptly deliver to Mortgagee a copy of any
acknowledgment by the lessor under such Ground Lease with respect to the
exercise of such option or right. If such option or right has not been exercised
as aforesaid, then not more than three hundred sixty (360) and not less than
two
hundred seventy (270) days before the right of Mortgagor to exercise any option
or right to renew or extend the term of the Ground Lease shall expire, Mortgagor
shall give Mortgagee written notice specifying the date, term and manner for
which such option or renewal is to be exercised. Within fifteen (15) business
days of written demand by Mortgagee, Mortgagor shall exercise any such option
or
renewal which is necessary to extend the term of the Ground Lease beyond the
term of this Mortgage or to comply with any law affecting Mortgagor or Mortgagee
or which is necessary, in Mortgagee’s reasonable judgment, to preserve the value
of the security intended to be afforded by this Mortgage. Mortgagor shall
promptly provide evidence of such exercise of such option or right to
Mortgagee’s reasonable satisfaction. In the event that Mortgagor fails to so
exercise any such option or right or if an Event of Default shall exist under
this Mortgage which is continuing beyond the applicable cure periods, Mortgagor
hereby agrees and grants to Mortgagee all right and authority to exercise such
option in the name of Mortgagor or in its own name. Nothing contained herein
shall affect or limit any rights of Mortgagee granted under the Ground
Lease.
10. The
lien of this Mortgage shall attach to all of Mortgagor’s rights and remedies at
any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code,
11 U.S.C. § 365(h), including, without limitation, all of Mortgagor’s
rights to remain in possession of the Premises.
Mortgagor
shall
not, without Mortgagee’s prior written consent, elect to treat the Ground Lease
as terminated under Subsection 365(h)(l) of the Bankruptcy Code, 11 U.S.C.
§ 365(h)(1). Any such election made without Mortgagee’s consent shall be
void.
Mortgagor
hereby
unconditionally assigns, transfers and sets over to Mortgagee all of Mortgagor’s
claims and rights to the payment of damages arising from any rejection of the
Ground Lease by lessor or any other fee owner of the Real Estate under the
Bankruptcy Code. Mortgagee shall have the right to proceed in its own name
or in
the name of Mortgagor in respect of any claim, suit, action or proceeding
relating to the rejection of the Ground Lease, including, without limitation,
the right to file and prosecute, either in its own name or in the name of
Mortgagor, any proofs of claim, complaints, motions, applications, notices
and
other documents, in any case in respect to the lessor or any fee owner under
the
Bankruptcy Code. This assignment constitutes a present, irrevocable and
unconditional assignment of the foregoing claims, rights and remedies, and
shall
continue in effect until all of the obligations secured by this Mortgage shall
have been satisfied and discharged in full. Any amounts received by Mortgagee
as
damages arising out of the rejection of the Ground Lease as aforesaid shall
be
applied first to all costs and expenses of Mortgagee (including, without
limitation, attorneys’ fees) incurred in connection with the exercise of any of
its rights or remedies under this section and then in accordance with the
provisions of this Mortgage. Mortgagor shall promptly make, execute, acknowledge
and deliver, in form and substance satisfactory to Mortgagee, a UCC Financing
Statement (Form UCC-1) and all such additional instruments, agreements and
other
documents, as may at any time hereafter be required by Mortgagee to effectuate
and carry out the assignment made pursuant to this section.
If
pursuant to
Subsection 365(h)(2) of the Bankruptcy Code, 11 U.S.C. § 365(h)(2).
Mortgagor shall seek to offset against the rent reserved in the Ground Lease
the
amount of any damages caused by the nonperformance by the lessor or any fee
owner of any of their obligations under the Ground Lease after the rejection
by
the lessor or any fee owner of the Ground Lease under the Bankruptcy Code,
Mortgagor shall, prior to effecting such offset, notify Mortgagee of its intent
to do so, setting forth the amounts proposed to be so offset and the basis
therefor. Mortgagee shall have the right to object, within ten (10) Business
Days of receipt of notice, to all or any part of such offset that, in the
reasonable judgment of Mortgagee, would constitute a breach of the Ground Lease,
and in the event of such objection, Mortgagor shall not effect any offset of
the
amounts so objected to by Mortgagee. Neither Mortgagee’s failure to object as
aforesaid for any objection relating to such offset shall constitute an approval
of any such offset by Mortgagee.
If
any action,
proceeding, motion or notice shall be commenced or filed in respect of the
lessor or any fee owner, the Real Estate or the Ground Lease in connection
with
any case under the Bankruptcy Code, and provided no Event of Default exists,
Mortgagor shall have the right to conduct and control any such litigation with
the reasonable approval by the Mortgagee. If any such litigation shall be
commenced or filed and an Event of Default exists, Mortgagee shall have the
option, exercisable upon notice from Mortgagee to Mortgagor, to conduct and
control any such litigation with counsel of Mortgagee’s choice after
consultation with Mortgagor. Mortgagee may proceed in its own name or in the
name of Mortgagor in connection with any such litigation, and Mortgagor agrees
to execute any and all powers, authorizations, consents or other documents
reasonably required by Mortgagee in connection therewith. Mortgagor shall,
upon
demand, pay to Mortgagee all reasonable costs and expenses (including attorneys’
fees) paid or incurred by Mortgagee in connection with the prosecution or
conduct of any such proceedings. Any such costs or expenses not paid by
Mortgagor as aforesaid shall be secured by the lien of this Mortgage and shall
be added to the principal amount of the indebtedness secured hereby. Mortgagor
shall not commence any action, suit, proceeding or case, or file any application
or make any motion (unless such motion is for the purpose of protecting the
Ground Lease and its value as security for the obligations secured by this
Mortgage), in respect of the Ground Lease in any such case under the Bankruptcy
Code without the prior written consent of Mortgagee, which consent shall not
be
unreasonably withheld or delayed.
Mortgagor
shall,
after obtaining knowledge thereof, promptly notify Mortgagee of any filing
by or
against the lessor or other fee owner of a petition under the Bankruptcy Code.
Mortgagor shall promptly deliver to Mortgagee, following receipt, copies of
any
and all notices, summonses, pleadings, applications and other documents received
by Mortgagor in connection with any such petition and any proceedings relating
thereto.
If
there shall be
filed by or against Mortgagor a petition under the Bankruptcy Code and
Mortgagor, as lessee under the Lease, shall determine to reject the Ground
Lease
pursuant to Section 365(a) of the Bankruptcy Code, Mortgagor shall give
Mortgagee not less than thirty (30) days’ prior notice of the date on which
Mortgagor shall apply to the Bankruptcy Court for authority to reject the Ground
Lease. Mortgagee shall have the right, but not the obligation, to serve upon
Mortgagor within such thirty (30) day period a notice stating that Mortgagee
demands that Mortgagor assume and assign the Ground Lease to Mortgagee pursuant
to Section 365 of the Bankruptcy Code. If Mortgagee shall serve upon Mortgagor
the notice described in the preceding sentence, Mortgagor shall not seek to
reject the Ground Lease and shall comply with the demand provided for in the
preceding sentence.
11. Notwithstanding
anything to the contrary contained herein, this Mortgage shall not constitute
an
assignment of the Ground Lease and Mortgagee shall have no liability or
obligation thereunder by reason of its acceptance of this Mortgage, except
to
the extent that Mortgagee becomes the tenant under the Ground Lease; provided,
however, that in such instance, Mortgagor shall reimburse and indemnify, defend
and hold harmless Mortgagee from and against any loss, costs, damages, or
liabilities (i) arising from or accruing during the period of time during which
Mortgagor was the tenant under the Ground Lease and (ii) relating to the Ground
Lease.