EXHIBIT 10.43
Prepared by and return to:
Xxxxxxx X. Xxxxxx, Esquire
Lowndes, Drosdick, Doster,
Xxxxxx & Xxxx, P.A.
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Borrower Name: Ramco-Xxxxxxxxxx Properties, L.P.
Project Name: Sunshine Plaza Shopping Center
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (hereinafter referred to as the
"Mortgage") is made, executed and delivered as of the ____ day of April, 2002 BY
RAMCO-XXXXXXXXXX PROPERTIES, L.P., a Delaware limited partnership whose address
is 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000
(hereinafter referred to as "Borrower"), to and in favor of NATIONWIDE LIFE
INSURANCE COMPANY, an Ohio corporation, its successors and assigns hereof
(hereinafter referred to as "Lender"), having its principal office at Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000-0000, Attention: Real Estate Investment
Department, 34T, or at such other place either within or without the State of
Ohio, as Lender may from time to time designate;
WITNESSETH:
WHEREAS, Borrower is justly indebted to Lender in the original
principal sum of THIRTEEN MILLION AND NO/100 DOLLARS ($13,000,000.00) with
interest thereon, which Loan is evidenced and represented by that certain Note
of even date herewith from Borrower to Lender in the amount of the Loan
(hereinafter referred to as the "Note"), both principal and interest being
payable as therein provided, with the first payment on the Note becoming due and
payable on the date of disbursement, and all amounts remaining unpaid thereon
being finally due and payable on May 1, 2012, and the term "Note" shall include
all other notes given in substitution, modification, increase, renewal or
extension of the original Note described herein, in whole or in part; and
WHEREAS, Lender, as a condition precedent to the extension of credit
and the making of the loan evidenced by the Note, has required that Borrower
provide Lender with security for the repayment of the Loan evidenced by the Note
as well as for the performance, observance and discharge by Borrower of various
terms, covenants, conditions and agreements made by Borrower to, with, in favor
of and for the benefit of Lender with respect to the Loan and such security.
NOW THEREFORE, in consideration of and in order to secure the repayment
of the Loan evidenced and represented by the Note, together with interest on
such Loan, as well as the payment of all other sums of money secured hereby, as
hereinafter provided; to secure the observance, performance and discharge by
Borrower of all terms, covenants, conditions and
agreements set forth in the Note, this Mortgage and in all other documents and
instruments executed and delivered by Borrower to and in favor of Lender for the
purpose of further securing the repayment of the Loan evidenced and represented
by the Note; in order to charge the properties, interests and rights hereinafter
described with such payment, observance, performance and discharge; and in
consideration of the sum of ONE AND NO/100 DOLLAR ($1.00) paid by Lender to
Borrower, and other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged by Borrower, Borrower does hereby
grant, bargain, sell, convey, assign, transfer, pledge, deliver, hypothecate,
warrant and confirm unto Lender forever, all of Borrower's right, title and
interest in and to the following described properties, including all rights,
interests, replacements, substitutions and additions thereto, therein or
therefor, to wit:
(i) All that certain piece, parcel or tract of land
or real property of which Borrower is now seized and in actual
or constructive possession, situate in City of Tamarac, County
of Broward, State of Florida, and being more particularly
described on Exhibit A attached hereto and by this reference
made a part hereof (hereinafter referred to as the "Real
Property"); and
(ii) All buildings, structures and other improvements
of any kind, nature or description now or hereafter erected,
constructed, placed or located upon the Real Property
(hereinafter sometimes together referred to as the
"Improvements"), including, without limitation, any and all
additions to, substitutions for or replacements of such
Improvements; and
(iii) All mineral, royalties, gas rights, water,
water rights, water stock, flowers, shrubs, lawn plants,
crops, trees, timber and other emblements now or hereafter
located on, under or above all or any part of the Real
Property; and
(iv) All and singular, the tenements, hereditaments,
strips and gores, rights-of-way, easements, privileges,
profits and other appurtenances now or hereafter belonging or
in any way appertaining to the Real Property, including,
without limitation, all right, title and interest of the
Borrower in any after-acquired right, title, interest,
remainder or reversion, in and to the beds of any ways,
streets, avenues, roads, alleys, passages and public places,
open or proposed, in front of, running through, adjoining or
adjacent to said Real Property (hereinafter sometimes together
referred to as the "Appurtenances"); and
(v) Any and all leases, licenses, contracts, rents,
license fees, royalties, issues, revenues, profits, proceeds,
deposits, income and other benefits, including accounts
receivable, termination fees, of, accruing to or derived from
the Real Property, Improvements and Appurtenances, and any
business or enterprise presently situated or hereafter
operated thereon and therewith and all of Borrower's right,
title and interest under any and all lease guaranties, letters
of credit, and any other credit support furnished to Borrower
in connection with any of the foregoing (hereinafter sometimes
together referred to as the "Rents"); and
2
(vi) Any and all awards, payments or settlements,
including interest thereon, and the right to receive the same,
as a result of: (a) the exercise of the right to eminent
domain, (b) the alteration of the grade of any way, street,
avenue, road, alley, passage or public place; (c) any other
injury, damage or casualty or claim relating to the taking of
or decrease in the value of, the Real Property, Improvements
or Appurtenances; or (d) proceeds of insurance awards, to the
extent of all amounts which may be secured by this Mortgage at
the date of any such award or payment including but not
limited to the Reasonable Attorneys' Fees (as hereinafter
defined), costs and disbursements incurred by Lender in
connection with the collection of such award or payment; and
(vii) All the right, title and interest of Borrower
in and to all fixtures, goods, inventory, chattels,
construction supplies and materials, fittings, furniture,
furnishings, equipment, machinery, apparatus, appliances, and
other items of personal property, whether tangible or
intangible, of any kind, nature or description, whether now
owned or hereafter acquired by Borrower, including, without
limitation, all signs and displays; all heating, air
conditioning, water, gas, lighting, incinerating and power
equipment; all engines, compressors, pipes, pumps, tanks,
motors, conduits, wiring and switchboards; all plumbing,
lifting, cleaning, fire prevention, fire extinguishing,
sprinkling, refrigerating, ventilating, waste removal and
communications equipment and apparatus; all boilers, furnaces,
oil burners, vacuum cleaning systems, elevators and
escalators; all stoves, ovens, ranges, disposal units,
dishwashers, water heaters, exhaust systems, refrigerators,
cabinets and partitions; all rugs, attached floor coverings,
curtains, rods, draperies and carpets; all building materials,
tools, shades, awnings, blinds, screens, storm doors and
windows; and all other Goods (including Consumer Goods,
Inventory, Equipment and Farm Products), Accounts, Chattel
Paper (including Electronic Chattel Paper and Tangible Chattel
Paper) and Instruments; General Intangibles (including Payment
Intangibles and Software), Letter-of-Credit Rights, Documents
and Deposit Accounts (all as such terms are defined in the
Uniform Commercial Code, as now adopted or amended from time
to time in the State of every kind, including, without
limitation, any and all licenses, permits, franchises,
trademarks, tradenames, service marks or logos; any of which
is, are or shall hereafter be located upon, attached, affixed
to or used or useful, either directly or indirectly, in
connection with the complete and comfortable use, occupancy
and operation of the Real Property, Improvements and
Appurtenances as a shopping center project, or any other
business enterprise or operation as may hereafter be conducted
upon or within said Real Property, Improvements and
Appurtenances, as well as the proceeds thereof or therefrom
regardless of form (hereinafter sometimes referred to as the
"Fixtures and Personal Property", which term expressly
excludes any toxic wastes or substances deemed hazardous under
federal, regional, state or local laws, codes ordinances,
statues, rules, regulations, decisions or orders and also
excludes any personal property not located at the Property but
used by Borrower or its agents in connection with the
management of the Property together with other properties
owned or managed by Borrower).
3
Borrower hereby expressly grants to Lender a present
security interest in and lien and encumbrance upon said
Fixtures and Personal Property.
The Real Property, Improvements, Appurtenances, Rents, Fixtures,
Personal Property and all other property of any kind described herein and in
which Borrower has granted Lender a security interest is collectively
hereinafter referred to as the "Property".
TO HAVE AND TO HOLD the foregoing Property and the rights hereby
granted for the use and benefit of Lender, its successors and assigns in fee
simple forever.
Borrower covenants and warrants with and to Lender that Borrower is
indefeasibly seized of the Property and has good right, full power and lawful
authority to convey and encumber all of the same as aforesaid; that Borrower
hereby fully warrants the title to the Property and will defend the same and the
validity and priority of the lien and encumbrance of this Mortgage against the
lawful claims of all persons whomsoever; and Borrower further warrants that the
Property is free and clear of all liens and encumbrances of any kind, nature or
description, save and except only (with respect to said Real Property,
Improvements and Appurtenances) for real property taxes for years subsequent to
2002 (which are not yet due and payable) and those exceptions accepted by Lender
as set forth in the title insurance commitment or proforma policy issued to
Lender precedent to the issuance of a Lender's Policy of Title Insurance
insuring the first lien priority of this Mortgage (hereinafter referred to as
the "Permitted Exceptions").
If Borrower shall pay to Lender the Loan evidenced by the Note, and if
Borrower shall duly, promptly and fully perform, discharge, execute, effect,
complete and comply with and abide by each and every one of the terms,
covenants, conditions and agreements of the Note, this Mortgage and all other
documents and instruments executed as further evidence of or as security for the
Loan secured hereby, then this Mortgage and the estates and interests hereby
granted and created shall cease, terminate and be null and void, and shall be
discharged of record at the expense of Borrower.
Borrower, for the benefit of Lender does hereby expressly covenant and
agree:
1. Payment of Principal and Interest. To pay the principal of the Loan
evidenced by the Note, together with all interest thereon, in accordance with
the terms, covenants and conditions of the Note, promptly at the times, at the
place and in the manner that said principal and interest shall become due. To
promptly and punctually pay all other sums required to be paid by Borrower
pursuant to the terms, covenants and conditions of the Note, this Mortgage, the
Assignment of Leases, Rents and Profits (hereinafter referred to as the
"Assignment") and all other documents and instruments executed as further
evidence of, as additional security for or executed in connection with the Loan
evidenced by the Note and secured by this Mortgage (which documents are
collectively hereinafter referred to as the "Loan Documents").
2. Performance of Other Obligations. To perform, comply with and abide
by each and every one of the terms, covenants, conditions and agreements
contained and set forth in the Note, this Mortgage and the other Loan Documents.
To comply with all laws, codes, ordinances, statutes, rules, regulations,
decisions and orders of any governmental authorities having
4
jurisdiction over the parties hereto or the Property which now or hereafter
affect the Property or which require or would require any alterations or
improvements to be made to the Property. To perform all of its obligations under
any term, covenant, condition, restriction or agreement affecting the Property,
and to insure that at all times the Property constitutes one or more legal lots
capable of being conveyed without violation of any subdivision or platting laws,
codes, ordinances, statutes, rules or regulations, or other laws relating to the
division or separation of real property.
3. Preservation and Maintenance of Property; Accessibility; Hazardous
Waste.
(a) To keep all Improvements now existing or hereafter erected
on the Real Property in good order and repair and not to do or permit waste (as
used herein, the term "waste" shall mean any intentional act or intentional
neglect of maintenance of the property which causes the value of the property to
be materially diminished, but excepting normal wear and tear) thereon, nor to
alter, remove or demolish any of said Improvements or any Fixtures and Personal
Property attached or appertaining thereto, without the prior written consent of
Lender, nor to initiate, join in or consent to any change in any private
restrictive covenant, zoning ordinance or other public or private restrictions
limiting or defining the uses which may be made of the Property or any part
thereof except for customary restrictions and prohibitions in tenant's leases,
nor to do or permit any other act whereby the Property shall become less
valuable, be used for purposes contrary to applicable law or be used in any
manner which will materially increase the premium for or result in a termination
or cancellation of the insurance policies hereinafter required to be kept and
maintained on the Property. In furtherance of, and not by way of limitation
upon, the foregoing covenant, Borrower shall effect such repairs as Lender may
reasonably require, and from time to time make all needful and proper
replacements so that the Improvements, Appurtenances, Fixtures and Personal
Property will, at all times, be in good condition, fit and proper for the
respective purposes for which they were originally erected or installed. In
connection with the making of such repairs, Borrower shall use contractors who
are properly licensed, who carry workers' compensation insurance and appropriate
liability insurance, who generally have a good reputation for completing their
work in a neat, prompt and workmanlike manner, and use only new or
re-manufactured goods of a quality as good or better than that originally used
on the Property. As provided herein, Borrower shall insure that no liens are
filed against the Property that relate in any way to the repair work provided
for herein.
Notwithstanding anything contained in this Paragraph 3(a), Borrower
shall have the right, without the consent of Lender, to make: (i) any
non-structural changes, additions, improvements and/or alterations to the
Property and (ii) structural changes, additions, improvements and/or
alterations, from time to time, to the Property in the event the cost of such
work in the aggregate and in each instance is less than One Hundred Fifty
Thousand and N0/100 Dollars ($150,000.00), provided that in either case such
changes do not decrease the value of the Property. Borrower shall also have the
right to make such alterations as required by tenant leases approved or deemed
approved by Lender, provided that such proposed alteration is fully described in
the lease or lease amendment approved or deemed approved by Lender.
5
(b) Borrower at all times shall keep the Property and ground
water of the Property free of Hazardous Materials (as hereinafter defined) in
excess of limits set by any Hazardous Waste Law and any liens arising in
connection therewith. Borrower shall not knowingly permit its tenants or any
third party requiring the consent of Borrower to enter the Property, to use,
generate, manufacture, treat, store, release, threaten release, transport on or
over, emit or dispose of Hazardous Materials in, on, over, under or about the
Property including the ground water of the Property in violation of any federal,
regional, state or local law, code, ordinance, statute, rule, regulation,
decision or order currently in existence or hereinafter enacted or rendered
(hereinafter collectively referred to as "Hazardous Waste Laws"). Borrower shall
give Lender prompt Written Notice (as hereinafter defined) of any claim, of
which Borrower is aware, by any person, entity, or governmental agency that a
significant release or disposal of Hazardous Materials has occurred in, on,
over, under or about the Property, including the ground water of the Property,
in excess of those permitted by the Hazardous Waste Laws, whether caused by the
Borrower, tenant or any third party. Borrower, through its professional
engineers and at Borrower's sole cost, shall promptly and thoroughly investigate
any suspected release of Hazardous Materials in, on, over, under or about the
Property, including the ground water of the Property. Borrower shall forthwith
remove, repair, remediate, clean up, and/or detoxify any Hazardous Materials
found in, on, over, under or about the Property or in the ground water of the
Property to the extent such actions are required by any applicable Hazardous
Waste Laws, and to the extent that Borrower was responsible for the existence of
the Hazardous Materials in, on, over, under or about the Property or the ground
water of the Property or Borrower is otherwise compelled to remediate under any
Hazardous Waste Laws. Hazardous Materials shall include, but not be limited to,
substances defined as "hazardous substances", "hazardous materials" or "toxic
substances" in The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by The Superfund Amendments and
Reauthorization Act of 1986, The Hazardous Materials Transportation Act, The
Resource Conservation and Recovery Act of 1976, as amended by The Used Oils
Recycling Act of 0000, Xxx Xxxxx Xxxxx Xxxxxxxx Xxx amendment of 1984, The Toxic
Substances Control Act, The Clean Air Act, The Clean Water Act or in any other
Hazardous Waste Laws. In addition, Borrower shall not incorporate any
underground storage tanks into the Real Property without the prior written
consent of Lender, which Lender may grant or deny within its reasonable
discretion, and shall insure that all tanks currently on the Real Property
comply with current Hazardous Waste Laws and underground storage tank
regulations and are properly registered.
Borrower hereby agrees to indemnify Lender and hold Lender harmless
from and against any and all losses, liabilities, damages, injuries, costs,
expenses, fines, fees and claims of any and every kind whatsoever paid, incurred
or suffered by, or asserted against, Lender for, with respect to, or as a direct
or indirect result of, the presence in, on, over, under or about, or the escape,
seepage, leakage, spillage, discharge, emission or release from, the Property of
any Hazardous Materials (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under any
Hazardous Waste Laws), regardless of the source of origination and whether or
not caused by, or within the control of, Borrower.
Liability under this Paragraph 3(b) and similar provisions in this
Mortgage and the other Loan Documents concerning Hazardous Materials shall
survive repayment of the Note and
6
satisfaction of this Mortgage; provided, however, Borrower shall have no
liability under this Paragraph 3(b) regarding Hazardous Materials if either: (i)
the Property becomes contaminated subsequent to Lender's acquisition of the
Property by foreclosure, acceptance by Lender of a deed in lieu thereof, or
subsequent to any transfer of ownership of the Property which was approved or
authorized by Lender in writing, pursuant to this Mortgage, provided that such
transferee assumes in writing all of the obligations of Borrower with respect to
Hazardous Materials pursuant to the Loan Documents, or (ii) at such time
Borrower provides Lender with an environmental assessment report acceptable to
Lender, in Lender's sole discretion, showing the Property to be free of
Hazardous Materials and not in violation of any Hazardous Waste Laws. The burden
of proof under this Paragraph 3(b) with regard to establishing the date upon
which any Hazardous Materials was released in, on, over, under or about the
Property shall be upon Borrower.
Notwithstanding the above, the Borrower and Responsible Party shall not
be liable under this Paragraph 3 if: (i) the Property becomes contaminated after
Lender has taken possession of the Property, either through itself, an
affiliate, or by appointment of a receiver, regardless of whether or not the
Property has been conveyed or transferred to Lender; or (ii) due to the wrongful
act or omission of Lender, its affiliates or agents. In addition, the Borrower
and Responsible Party shall not be responsible for any additional damages caused
by Lender's neglect or wrongful acts resulting in the exacerbation of an
existing environmental condition from and after the date Lender takes possession
of the Property.
(c) Borrower at all times shall maintain the Property in full
compliance with all federal, state, county, regional or local laws, codes,
ordinances, rules, regulations, decisions and orders currently in existence or
hereafter enacted or rendered, governing accessibility for the disabled,
including but not limited to: The Architectural Barriers Act of 1968; The
Rehabilitation Act of 1973; The Fair Housing Act of 1988; The Americans with
Disabilities Act; and The Florida Elimination of Architectural Barriers Act
(hereinafter collectively referred to as the "Accessibility Laws").
Borrower hereby agrees to indemnify Lender and hold Lender harmless
from and against any and all losses, liabilities, damages, injuries, costs,
expenses and claims of any and every kind whatsoever paid, incurred or suffered
by, or asserted against Lender for, with respect to, or as a direct or indirect
result of, the non-compliance of the Property with the Accessibility Laws
whether or not caused by, or within the control of, Borrower.
Liability under this Paragraph 3(c) and similar provisions in this
Mortgage and the other Loan Documents concerning Accessibility Laws shall
survive repayment of the Note and satisfaction of this Mortgage; provided,
however, Borrower shall not be liable under this Paragraph 3(c) for compliance
with any Accessibility Laws if such Accessibility Laws first become effective,
or such violations result from alterations or improvements to the Property that
are performed subsequent to Lender's acquisition of the Property by foreclosure
or acceptance of a deed in lieu thereof or subsequent to any transfer which was
approved or authorized by Lender pursuant to this Mortgage, provided that such
transferee assumes in writing all obligations pertaining to the Accessibility
Laws pursuant to this Mortgage and the other Loan Documents.
7
Lender, and/or its agents, shall, subject to the rights of tenants
under Leases approved by Lender, have the right and shall be permitted, but
shall not be required, at all reasonable times, to enter upon and inspect the
Property to insure compliance with the foregoing covenants and any and all other
covenants, agreements and conditions set forth in this Mortgage.
4. Payment of Taxes, Assessments and Other Charges. To pay all taxes,
assessments and other charges as already levied or assessed or that may be
hereafter levied or assessed upon or against the Property, when the same shall
become due and payable according to law, before delinquency, and before any
interest or penalty shall attach thereto, and to deliver official receipts
evidencing the payment of the same to Lender not later than thirty (30) days
following the payment of the same. Borrower shall have the right to contest, in
good faith, the proposed assessment of ad valorem taxes or special assessments
by governmental authorities having jurisdiction over the Property; provided,
however, Borrower shall give Written Notice of its intent to bring an action to
Lender and Lender may, in its sole discretion, require Borrower to post a bond
or other collateral satisfactory to Lender (and acceptable to the title company
insuring this Mortgage) as a result of Borrower's act but only if Borrower has
withheld payment of taxes in connection with such contest.
5. Payment of Liens, Charges and Encumbrances. To immediately pay and
discharge from time to time when the same shall become due all lawful claims and
demands of mechanics, materialmen, laborers, realtors, brokers and others which,
if unpaid, might result in or permit the creation of, a lien, charge or
encumbrance upon the Property or any part thereof or on the rents, license fees,
issues, income, revenues, profits and proceeds, including termination fees and
taking proceeds, arising therefrom and, in general, to do or cause to be done
everything necessary so that the lien of this Mortgage shall be fully preserved
at the cost of Borrower, without expense to Lender. Borrower shall have the
right to contest, in good faith, and in accordance with applicable laws and
procedures, mechanics' and materialmen's liens filed against the Property;
provided however, for liens in excess of Ten Thousand and No/100 Dollars
($10,000.00) that Borrower shall give Written Notice to Lender of its intent to
bring such action, and Lender may, in Lender's sole discretion, require Borrower
to post a bond or other collateral satisfactory to Lender (and acceptable to the
title insurance company insuring this Mortgage) as a result of Borrower's act if
such lien is not discharged within sixty (60) days after filing.
6. Payment of Junior Encumbrances. To permit no default or delinquency
under any other lien, imposition, charge or encumbrance against the Property,
even though junior and inferior to the lien of this Mortgage; provided however,
the foregoing shall not be construed to permit any additional lien or
encumbrance against the Property, other than the Permitted Exceptions.
7. Payment of Mortgage Taxes. To pay any and all taxes which may be
levied or assessed directly or indirectly upon the Note and/or this Mortgage
(except for income taxes payable by Lender) or the Loan secured hereby, without
regard to any law which may be hereafter enacted imposing payment of the whole
or any part thereof upon Lender, its successors or assigns. Upon violation of
this agreement to pay such taxes levied or assessed upon the Note and/or this
Mortgage, or upon the rendering by any court of competent jurisdiction of a
decision
8
that such an agreement by Borrower is legally inoperative, or if any court of
competent jurisdiction shall render a decision that the rate of said tax when
added to the rate of interest provided for in the Note exceeds the then maximum
rate of interest allowed by law, then, and in any such event, the debt hereby
secured shall, at the option of Lender, its successors or assigns, become
immediately due and payable, anything contained in this Mortgage or in the Note
secured hereby notwithstanding, without the imposition of a Prepayment Premium
(as defined in the Note). The additional amounts which may become due and
payable hereunder shall become a part of the Loan secured by this Mortgage.
8. Hazard Insurance. To continuously, during the term of this Mortgage,
keep the Improvements and the Fixtures and Personal Property now or hereafter
existing, erected, installed and located in or upon the Real Property insured,
with extended coverage, against loss or damage resulting from fire, windstorm,
flood, sinkhole, earthquake and such other hazards, casualties, contingencies
and perils including, without limitation, other risks insured against by persons
operating like properties in the locality of the Property, or otherwise deemed
necessary or advisable by Lender, on such forms and with such deductibles as may
be required by Lender, covering the Property in the amount of the full
replacement cost thereof, less excavating and foundation costs, and covering all
loss or abatement of rental or other income, without a provision for
co-insurance, in an amount equal to the scheduled rental income of the Property
for at least twelve (12) months, or if applicable, business interruption
insurance in an amount sufficient to pay debt service on the Note, operating
expenses, taxes and insurance on the Property for a period of twelve (12)
months, and covering loss by flood (if the Property lies in a Special Flood
Hazard Area as designated on the Department of Housing and Urban Development
Maps, or other flood prone designation) in an amount equal to the outstanding
principal balance of the Loan secured hereby or such other amount as approved by
Lender and earthquake insurance with a deductible amount of no more than ten
percent (10%) of the policy amount, if the Property is located within one-half
(1/2) mile of an Xxxxxxx-Xxxxxx Special Earthquake Study Zone or if, in the
judgement of Lender's inspecting architect, the Property lies in an area of
anticipated significant seismic activity. All such insurance shall be carried
with a company or companies licensed to do business in the state where the
property is located, which is acceptable to Lender, which company or companies
shall have a rating at the time this Mortgage is executed equivalent to at least
A:X as shown in the most recent Best's Key Rating Guide. The original policy or
policies and renewals thereof (or, at the sole option of Lender, duplicate
originals or certified copies thereof), together with receipts evidencing
payment of the premium therefor, shall be deposited with, held by and are hereby
assigned to Lender as additional security for the Loan secured hereby. Each such
policy of insurance shall contain a non-contributing loss payable clause in
favor of and in form acceptable to Lender and shall provide for not less than
thirty (30) days prior Written Notice to Lender of any intent to modify,
non-renew, cancel or terminate the policy or policies, or the expiration of such
policies of insurance. If the insurance required under this Paragraph 8 or any
portion thereof is maintained pursuant to a blanket policy, Borrower shall
furnish to Lender a certified copy of such policy, together with an original
Evidence of Insurance Certificate (XXXXX Form 27) for hazard insurance
indicating that Lender is an insured under such policy in regard to the Property
and showing the amount of coverage apportioned to the Property which coverage
shall be in an amount sufficient to satisfy the requirements hereof. Not less
than fifteen (15) days prior to the expiration dates of each policy
9
required of Borrower hereunder, Borrower will deliver to Lender a renewal
certificate with policy to follow marked "premium paid" or accompanied by other
evidence of payment and renewal satisfactory to Lender. In the event of
foreclosure of this Mortgage or other transfer of title to the Property in
extinguishment of the Loan secured hereby, all right, title and interest of
Borrower, in and to any insurance policies then in force including any rights to
unearned premiums, and in and to insurance proceeds then payable shall pass to
the purchaser or grantee.
In the event of loss by reason of hazards, casualties, contingencies
and perils for which insurance has been required by Lender hereunder, Borrower
shall give immediate notice thereof to Lender. Lender is hereby irrevocably
appointed as attorney-in-fact coupled with an interest, for Lender to, at its
option, make proof of loss and/or to file a claim thereunder. Each insurance
company concerned is hereby notified, authorized and directed to make payment
for such loss directly to Lender, instead of to Borrower and Lender jointly, and
Borrower hereby authorizes Lender to adjust and compromise any losses for which
insurance proceeds are payable under any of the aforesaid insurance policies
and, after deducting the costs of collection, to apply the proceeds of such
insurance, at its option, either: (a) to the restoration or repair of the
insured Improvements and the Fixtures and Personal Property, provided that, in
the opinion and sole discretion of Lender, such restoration or repair is
reasonably practical and, provided further, that, in the opinion and sole
discretion of Lender, either: (i) the insurance proceeds so collected are
sufficient to cover the cost of such restoration or repair of the damage or
destruction with respect to which such proceeds were paid, or (ii) the insurance
proceeds so collected are not sufficient alone to cover the cost of such
restoration or repair, but are sufficient therefor when taken together with
funds provided and made available by Borrower from other sources; in which event
Lender shall make such insurance proceeds available to Borrower for the purpose
of effecting such restoration or repair; but Lender shall not be obligated to
see to the proper application of such insurance proceeds nor shall the amount of
funds so released or used be deemed to be payment of or on account of the Loan
secured hereby, or (b) to the reduction of the Loan secured hereby,
notwithstanding the fact that the amount owing thereon may not then be due and
payable or that said Loan is otherwise adequately secured, in which event such
proceeds shall be applied at par against the Loan secured hereby and the monthly
payment due on account of such Loan shall be reduced accordingly. None of such
actions taken by Lender shall be deemed to be or result in a waiver or
impairment of any equity, lien or right of Lender under and by virtue of this
Mortgage, nor will the application of such insurance proceeds to the reduction
of the Loan serve to cure any default in the payment thereof. In the event of
foreclosure of this Mortgage or other transfer of title to the Property in
extinguishment of the Loan secured hereby, all right, title and interest of
Borrower in and to any insurance policies then in force including any rights to
unearned premiums and in and to insurance proceeds then payable shall pass to
the purchaser or grantee.
In the case of Borrower's failure to keep the Property properly insured
as required herein, Lender, its successors or assigns may, at its option (but
shall not be required to) acquire such insurance as required herein at
Borrower's sole expense.
Notwithstanding anything set forth in this Paragraph 8 to the contrary,
in the event of loss or damage to the Property by fire or other casualty for
which insurance has been required by
10
Lender and provided by Borrower, then Lender hereby agrees to allow the proceeds
of insurance to be used for the restoration of the Property and to release such
insurance proceeds to Borrower as such restoration progresses, provided:
(a) Borrower is not in default under any of the terms,
covenants and conditions of this Mortgage, the Note or any of the Loan Documents
evidencing or securing the Note;
(b) The Improvements, after such restoration, shall be at
least seventy-five percent (75%) leased pursuant to leases approved in writing
by Lender;
(c) The plans and specifications for the restoration of the
Property are approved in writing by Lender in advance;
(d) At all times during such restoration, Borrower has
deposited with Lender funds which, when added to insurance proceeds received by
Lender, are sufficient to complete the restoration of the Property in accordance
with the approved plans and specifications, and all applicable building codes,
zoning ordinances and regulations, and Accessibility Laws, and further, that the
funds retained by Lender are sufficient to complete the restoration of the
Property as certified to Lender by Lender's inspecting architect/engineer;
(e) Borrower provides builders' all risk insurance, and all
necessary licenses and permits for such restoration in form and amount
acceptable to Lender;
(f) The insurer under such policies of fire or other casualty
insurance does not assert any defense to payment under such policies against
Borrower, any tenant, or third party of Borrower with regard to of the Property;
(g) Lender shall have the option, upon the completion of such
restoration of the Property, to apply any surplus insurance proceeds remaining
after the completion of such restoration, at par, to the reduction of the
outstanding principal balance of the Note and the monthly payment shall be
reduced such that the amortization remains the same; notwithstanding the fact
that the amount owing thereon may not then be due and payable or that said Loan
is otherwise adequately secured;
(h) The funds held by Lender shall be disbursed no more often
than once per month and in not more than ten (10) increments of not less than
FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) each (except the final
disbursement of such proceeds which may be in an amount less than FIFTY THOUSAND
AND NO/100 DOLLARS [$50,000.00]);
(i) Lender's obligation to make any such disbursement shall be
conditioned upon Lender's receipt of written certification from Lender's
inspecting architect/engineer (whose fees shall be reimbursed to Lender by
Borrower) that all construction and work for which such disbursement is
requested has been completed in accordance with the approved plans and
specifications and all applicable building codes, zoning ordinances and all
other local, state or federal laws, codes, ordinances, statutes, rules and
regulations, and, further, that Borrower has
11
deposited with Lender sufficient funds to complete such restoration in
accordance with subparagraph 8(d) above; and
(j) Lender shall be entitled to require and to impose such
other conditions to the release of such funds as would be customarily or
reasonably be required and imposed by local construction lenders for a project
of similar nature and cost.
Notwithstanding the foregoing provisions of this Section 8, should any
of the Major Tenant leases require rebuilding, Lender shall release the
applicable portion of the insurance proceeds to rebuild the Premises and the
other affected portions of the Shopping Center (example: parking lot, parking
lot lights, etc.), provided that the respective lease continues to be in full
force and effect. Any excess insurance proceeds shall be distributed to the
Borrower as long as all of the conditions of this Paragraph 8 are satisfied and
the leases are unchanged and in full force and effect. Should Lender not release
the proceeds for rebuilding, Borrower may prepay the entire loan at par.
Notwithstanding the foregoing, Lender acknowledges that Borrower
insures a majority of its portfolio with a blanket insurance policy, which
blanket insurance policy includes the Premises, and as a result of such blanket,
a Best rating of A:VIII shall be acceptable to Lender, but only so long as
Borrower or any entity controlled by Borrower owns the Premises. Borrower's
current insurer is part of the Affiliated FM Global Group, but such insurer may
change upon renewal so long as such insurer has at least a Best rating of A:VIII
(or A:X if not part of the blanket coverage). Lender hereby: (i) approves of
Borrower's insurer and forms and deductibles used by Borrower as of date of
Closing so long as such insurer maintains at least an A: VIII rating in Best's
Key Rating Guide and is insuring more than fifty percent (50%) of the properties
in Borrower's portfolio; and (ii) agrees to accept insurance from existing and
future tenants in such amounts and with such companies or if otherwise
self-insured as provided in their respective leases. Lender has reviewed and
approved Borrower's currently carried insurance coverage.
9. Liability Insurance. To carry and maintain such commercial general
liability insurance as may from time to time be reasonably required by Lender,
taking into consideration the type of property being insured and the
corresponding liability exposure, on forms, with deductibles, in amounts and
with such company or companies licensed to do business in the state where the
Property is located and as may be acceptable to Lender. All such commercial
general liability insurance shall be carried with a company or companies which
have a rating at the time this Mortgage is executed equivalent to at least A:X
as shown in the most recent Best's Key Rating Guide. The original policy or
policies and all renewals thereof (or, at the sole option of Lender, duplicate
originals or certified copies thereof), together with a Certificate of Insurance
(XXXXX Form 25S) and receipts evidencing payment of the premium therefor, shall
be deposited with, held by and are hereby assigned to, Lender as additional
security for the Loan secured hereby. Such policy or policies of insurance shall
name Lender as an additional insured and shall provide for not less than thirty
(30) days prior Written Notice to Lender of any intent to modify, cancel,
non-renew or terminate the policy or policies or the expiration of such policy
or policies of insurance. Not less than fifteen (15) days prior to the
expiration dates of each policy
12
or policies required of Borrower hereunder, Borrower will deliver to Lender a
renewal policy or policies marked "premium paid" or accompanied by other
evidence of payment and renewal satisfactory to Lender. In the event of
foreclosure of this Mortgage or other transfer of title to the Property in
extinguishment of the Loan secured hereby, all right, title and interest of
Borrower, in and to any insurance policies then in force including any rights to
unearned premiums, and in and to insurance proceeds then payable, shall pass to
the purchaser or grantee.
Notwithstanding the foregoing, Lender acknowledges that Borrower
insures a majority of its portfolio with a blanket insurance policy, which
blanket insurance policy includes the Premises, and as a result of such blanket,
a Best rating of A:VIII shall be acceptable to Lender, but only so long as
Borrower or any entity controlled by Borrower owns the Premises. Borrower's
current insurer is part of the Affiliated FM Global Group, but such insurer may
change upon renewal so long as such insurer has at least a Best rating of A:VIII
(or A:X if not part of the blanket coverage). Lender hereby: (i) approves of
Borrower's insurer and forms and deductibles used by Borrower as of date of
Closing so long as such insurer maintains at least an A: VIII rating in Best's
Key Rating Guide and is insuring more than fifty percent (50%) of the properties
in Borrower's portfolio; and (ii) agrees to accept insurance from existing and
future tenants in such amounts and with such companies or if otherwise
self-insured as provided in their respective leases. Lender has reviewed and
approved Borrower's currently carried insurance coverage.
In case of Borrower's failure to keep the Property properly insured as
required herein, Lender, its successors or assigns, may, at its option (but
shall not be required to) acquire such insurance as required herein at
Borrower's sole expense.
10. Compliance With Laws. To observe, abide by and comply with all
federal, regional, state and local laws, codes, ordinances, statutes, rules,
regulations, decisions, orders, requirements or decrees relating to the Property
enacted, promulgated or issued by any federal, state, county or local
governmental or quasi-governmental authority or any agency or subdivision
thereof having jurisdiction over Borrower or the Property (hereinafter
collectively referred to as "Laws"), and to observe and comply with all
conditions and requirements necessary to preserve and extend any and all rights,
licenses, permits (including, but not limited to, zoning, variances, special
exceptions and nonconforming uses), privileges, franchises and concessions which
are applicable to the Property, or which have been granted to or contracted for
by Borrower in connection with any existing, presently contemplated or future
uses of the Property.
11. Maintenance of Permits. To obtain, keep and constantly maintain in
full force and effect during the entire term of this Mortgage, all certificates,
licenses and permits necessary to keep the Property operating as a shopping
center project and, except as specifically provided for in this Mortgage, not to
assign, transfer or in any manner change such certificates, licenses or permits
without first receiving the written consent of Lender.
12. Obligations of Borrower as Lessor. To perform every material
obligation of Borrower (as the lessor) and to enforce every material obligation
of the lessee in any and every
13
lease, license or other occupancy agreement of or affecting the Property or any
part thereof (hereinafter referred to as the "Occupancy Leases"), and not to
enter into, modify, alter, waive or cancel any such Occupancy Leases or any part
thereof or rights thereunder, without the prior written consent of Lender (but
such consent shall not be required for such action as to Occupancy Leases of:
(a) ten thousand (10,000) square feet or less and the lease term is at least
five (5) years; or (b) three thousand (3,000) square feet or less and the lease
term is at least three (3) years, and in either case (a) or (b) if such action
is in the ordinary course of business of owning and operating the Property in a
prudent and business-like manner and provided that with respect to future
tenants the rental rate is greater than or equal to the market rate and the
lease term is at least five (5) years (or three (3) years if three thousand
(3,000) square feet or less), nor collect for more than thirty (30) days in
advance of the date due any rents that may be collectible under any such
Occupancy Leases and, except as provided for in this Mortgage, not to assign any
such Occupancy Lease(s) or any such rents relating thereto, to any party other
than Lender, without the prior written consent of Lender. In the event of
default under any such Occupancy Lease by reason of failure of the Borrower to
keep or perform one or more of the material covenants, agreements or conditions
thereof, Lender is hereby authorized and empowered, and may, at its sole option,
remedy, remove or cure any such default, and further, Lender may, at its sole
option and in its sole discretion but without obligation to do so, pay any sum
of money deemed necessary by Lender for the performance of said material
covenants, agreements and conditions, or for the curing or removal of any such
default, and incur all expenses and obligations which Lender may consider
necessary or reasonable in connection therewith, and Borrower shall repay on
demand all such sums so paid or advanced by Lender together with interest
thereon until paid at the lesser of either: (i) the highest rate of interest
then allowed by the laws of the State of Florida, or, if controlling, the laws
of the United States, or (ii) the then applicable interest rate of the Note plus
five hundred (500) basis points; all of such sums, if unpaid, shall be added to
and become part of the Loan secured hereby. Neither the right nor the exercise
of the right herein granted unto Lender to keep or perform any such material
covenants, agreements or conditions as aforesaid shall preclude Lender from
exercising its option to cause the whole Loan secured hereby to become
immediately due and payable by reason of Borrower's default in keeping or
performing any such covenants, agreements or conditions as hereinabove required.
All such Occupancy Leases hereafter made shall be subject to the approval of
Lender and: (i) shall be at competitive market rental rates then prevailing in
the geographic area for shopping center comparable to the Property; (ii) shall
have lease terms of not less than three (3) years; and (iii) at Lender's option,
shall be superior or subordinate in all respects to the lien of this Mortgage.
Provided, however, that Lender shall not require approval in advance of any
Occupancy Leases which conform to the Borrower's Form Lease (as hereinafter
defined) as previously approved by Lender, except as set forth below.
Lender has heretofore approved a form of Occupancy Lease to be used by
Borrower in connection with the Property (hereinafter referred to as the "Form
Lease"). Borrower shall not, without the prior written consent of Lender, modify
or alter the Form Lease in any material respect. However, Borrower shall not be
required to obtain the prior approval of Lender for any changes or modifications
to the standard terms and conditions of Borrower's Form Lease which are
customary industry changes. In addition, Borrower shall not, without the prior
written consent of Lender, surrender or terminate, either orally or in writing,
any Occupancy Lease now
14
existing or hereafter made with any Major Tenant (as hereinafter defined) for
all or part of the Property, permit an assignment or sublease of any such
Occupancy Lease (to the extent Borrower has the right to prevent same), or
request or consent to the subordination of any Occupancy Lease to any lien
subordinate to this Mortgage. Borrower shall furnish Lender with copies of all
executed Occupancy Leases of all or any part of the Property now existing or
hereafter made, and Borrower shall assign to Lender (which assignment shall be
in form and content acceptable to Lender), as additional security for the Note
and the Loan, all Occupancy Leases now existing or hereafter made for all or any
part of the Property. Additionally, if any Occupancy Lease contains a provision
allowing the tenant to terminate their lease upon payment of a lease termination
fee, Borrower agrees that except to the extent such fees are first used to
satisfy operating costs, debt service and any costs associated with obtaining a
new tenant in the space (including leasing commissions and tenant improvements)
for which termination fee was paid, all such sums shall constitute rent, and
shall be paid to Lender so long as this Mortgage is in effect.
Notwithstanding the foregoing approval by Lender of Borrower's Form
Lease, Lender hereby specifically reserves the right to approve all prospective
tenants under all Occupancy Leases hereafter proposed to be made if either: (i)
the term thereof, excluding options to renew the same, exceeds five (5) years;
or (ii) the net rentable area to be occupied thereunder, including expansion
options, exceeds ten percent (10%) of the net leasable area of each of the
buildings and exceeds the ten thousand (10,000) square foot threshold described
in this Section 12 hereinabove, comprising the Improvements (the tenants under
such leases being hereinafter referred to as "Major Tenants"). Lender shall
respond in writing with specific objections noted to Borrower's request for
review and approval of any new lease within ten (10) business days of receipt by
Lender or said lease will be deemed to be approved. Lender's approval shall not
be unreasonably withheld. Borrower shall notify Lender in writing of all
prospective Major Tenants, and shall deliver to Lender, at Borrower's sole cost
and expense, a copy of the prospective Major Tenant's current financial
statement and the most recent Dun & Bradstreet credit report on said prospective
Major Tenant. The financial statement delivered to Lender hereunder shall be
certified as true and correct by the Major Tenant, or, if available, by a
certified public accountant.
13. Maintenance of Parking and Access; Prohibition Against Alteration.
To construct, keep and constantly maintain, as the case may be, all curbs,
drives, parking areas and the number of parking spaces heretofore approved by
Lender or heretofore or hereafter required by any Laws or governmental body,
agency or authority having jurisdiction over Borrower or the Property, and as
required by the terms of the Occupancy Leases, and not to alter, erect, build or
construct upon any portion of the Property, any building or structure or
improvement of any kind whatsoever, the erection, building or construction of
which has not been previously approved by Lender in writing, which approval
shall be at the sole discretion of Lender, except as set forth in Section 3(a)
hereinabove.
14. Execution of Additional Documents. To do, make, execute,
acknowledge and deliver all deeds, conveyances, mortgages, assignments, estoppel
certificates, subordination non-disturbance and attornments, notices of
assignments, transfers, assurances, security agreements,
15
financing statements and renewals thereof, and all other instruments or other
acts necessary, as Lender shall from time to time require for the purpose of
better assuring, conveying, assigning, transferring, securing and confirming
unto Lender the Property and rights hereby encumbered, created, conveyed,
assigned or intended now or hereafter so to be encumbered, created, conveyed or
assigned or which Borrower may now be or may hereafter become bound to encumber,
create, convey, or assign to Lender, or for the purpose of carrying out the
intention or facilitating the performance of the terms of this Mortgage, or for
filing, registering or recording this Mortgage, and to pay all filing,
registration or recording fees and all taxes, costs and other expenses,
including Reasonable Attorneys' Fees (as defined in Paragraph 40), incident to
the preparation, execution, acknowledgment, delivery and recordation of any of
the same. By signing this Mortgage, Borrower authorizes Lender to file such
financing statements, with or without the signature of Borrower, as Lender may
elect, as may be necessary or desirable to perfect the lien of Lender's security
interest in the Fixtures and Personal Property. Borrower further authorizes
Lender to file, with or without any additional signature from Borrower, as
Lender may elect, such amendments and continuation statements as Lender may deem
necessary or desirable from time to time to perfect or continue the lien of
Lender's security interest in the Fixtures and Personal Property. Borrower
hereby expressly ratifies any financing statements that may have been filed by
Lender in advance of the date hereof to perfect Lender's security interest in
the Fixtures and Personal Property.
15. After-Acquired Property Secured. To subject to the lien of this
Mortgage all right, title and interest of Borrower in and to all extensions,
improvements, betterments, renewals, substitutions and replacements of, and all
additions and appurtenances to, the Property hereinabove described, hereafter
acquired by or released to Borrower, or constructed, assembled or placed by
Borrower on the Real Property, and all conversions of the security constituted
thereby, immediately upon such acquisition, release, construction, assembling,
placement or conversion, as the case may be, and in each such case, without any
further mortgage, encumbrance, conveyance, assignment or other act by Borrower,
as fully and completely and with the same effect as though now owned by Borrower
and specifically described herein, but at any and all times Borrower will
execute and deliver to Lender any and all such further assurances, mortgages,
conveyances, security agreements, financing statements or assignments thereof or
security interests therein as Lender may reasonably require for the purpose of
expressly and specifically subjecting the same to the lien of this Mortgage.
16. Payments by Lender on Behalf of Borrower. To make payment of any
taxes, assessments or public charges on or with respect to the Property before
the same shall become delinquent, or to make payment of any insurance premiums
or other charges, impositions, or liens herein or elsewhere required to be paid
by Borrower, or if Borrower shall fail so to do subject to Section 23 cure
rights, then Lender, at its sole option, but without obligation to do so, may
make payment or payments of the same and also may redeem the Property from tax
sale without any obligation to inquire into the validity of such taxes,
assessments and tax sales, charges, impositions or liens. In the case of any
such payment by Lender, Borrower agrees to reimburse Lender, upon demand
therefor, the amount of such payment and of any fees and expenses attendant in
making the same, together with interest thereon at the lesser of either (i) the
highest rate of interest then allowable by the laws of the State of Florida or,
if controlling, the
16
laws of the United States, or (ii) the then applicable interest rate of the Note
plus five hundred (500) basis points; and until paid such amounts and interest
shall be added to and become part of the Loan secured hereby to the same extent
that this Mortgage secures the repayment of the Loan evidenced by the Note. In
making payments hereby authorized by the provisions of this Paragraph 16, Lender
may do so whenever, in Lender's sole judgment and discretion, such advance or
advances are necessary or desirable to protect the full security intended to be
afforded by this Mortgage. Neither the right nor the exercise of the right
herein granted unto Lender to make any such payments as aforesaid shall preclude
Lender from exercising its option to cause the Loan secured hereby to become
immediately due and payable by reason of Borrower's default in making such
payments as hereinabove required.
17. Funds Held by Lender for Taxes, Assessments Insurance Premiums and
Other Charges. In order to more fully protect the security of this Mortgage,
Borrower shall deposit with Lender, together with and in addition to each
monthly payment due on account of the Loan evidenced by the Note, an amount
equal to one-twelfth (1/12) of the annual total of such taxes, assessments,
insurance premiums and other charges (all as estimated by Lender in its sole
discretion) so that, at least thirty (30) days prior to the due date thereof,
Lender shall be able to pay in full all such taxes, assessments, insurance
premiums and other charges as the same shall become due. Lender may hold the
sums so deposited without paying interest, commingle same with its general funds
and/or apply the same to the payment of said taxes, assessments, insurance
premiums or other charges as they become due and payable. If at any time the
funds so held by Lender are insufficient to pay such taxes, assessments,
insurance premiums or other charges as they become due and payable Borrower
shall immediately, upon notice and demand by Lender, deposit with Lender the
amount of such deficiency. The failure on the part of Borrower to do so shall
entitle Lender, at its sole option, to make such payments in accordance with the
rights and pursuant to the conditions elsewhere provided in this Mortgage.
Whenever any default exists under this Mortgage, Lender may, at its sole option
but without an obligation so to do, apply any funds so held by it pursuant to
this Paragraph 17 toward the payment of the Loan secured hereby, notwithstanding
the fact that the amount owing thereon may not then be due and payable or that
said Loan may otherwise be adequately secured, in such order and manner of
application as Lender may elect.
18. Condemnation; Eminent Domain. All claims and rights of action for,
and all awards and other compensation heretofore or hereafter made to Borrower
and all subsequent owners of the Property in any taking by eminent domain or
recovery for inverse condemnation or by deed in lieu thereof, whether permanent
or temporary, of all or any part of the Property or any easement or any
appurtenance thereto, including severance and consequential damages and change
in grade of any way, street, avenue, road, alley, passage or public place are
hereby assigned to Lender. Borrower shall have the right to independently settle
any claim of under One Hundred Thousand and No/100 Dollars ($100,000.00) and
retain the proceeds so long as no uncured default has occurred. Borrower hereby
irrevocably appoints Lender as its attorney-in-fact, coupled with an interest,
and authorizes, directs and empowers Lender, at the option of Lender as
attorney-in-fact, on behalf of Borrower, its successors and assigns, to adjust
or compromise the claim for any such award and alone to collect and receive the
proceeds thereof,
17
to give proper receipts and acquittances therefor and, after deducting any
expenses of collection, at Lender's sole option either:
(i) To apply the net proceeds as a credit upon any
portion of the Loan secured hereby, as selected by Lender,
notwithstanding the fact that the amount owing thereon may not
then be due and payable or that the Loan is otherwise
adequately secured. In the event Lender applies such awards to
the reduction of the outstanding Loan evidenced by the Note,
such proceeds shall be applied at par and the monthly
installments due and payable under the Note shall be reduced
accordingly; however no such application shall serve to cure
an existing default in the payment of the Note; or
(ii) To hold said proceeds without any allowance of
interest and make the same available for restoration or
rebuilding of the Improvements. In the event that Lender
elects to make said proceeds available to reimburse Borrower
for the cost of the restoration or rebuilding of the other
Improvements on the Property, such proceeds shall be made
available in the manner and under the same conditions as
required under Paragraph 8 hereof. If the proceeds are made
available by Lender to reimburse Borrower for the cost of said
restoration or rebuilding, any surplus which may remain out of
said award after payment of such cost of restoration or
rebuilding shall be applied on account of the Loan secured
hereby at par, notwithstanding the fact that the amount due
and owing thereon may not then be due and payable or that said
Loan may otherwise be adequately secured.
Borrower further covenants and agrees to give Lender immediate notice
of the actual or threatened commencement of any proceedings under eminent domain
and to deliver to Lender copies of any and all papers served in connection with
any proceedings. Borrower further covenants and agrees to make, execute and
deliver to Lender, at any time or times, upon request, free, clear and
discharged of any encumbrance of any kind whatsoever, any and all further
assignments and/or other instruments deemed necessary by Lender for the purpose
of validly and sufficiently assigning all such awards and other compensation
heretofore or hereafter made to Lender (including the assignment of any award
from the United States government at any time after the allowance of the claim
therefor, the ascertainment of the amount thereof and the issuance of the
warrant for payment thereof).
It shall be a default hereunder if either: (a) any material part (which
shall include any part of the buildings) of any of the Improvements situated on
the Property shall be condemned by any governmental authority having
jurisdiction; or (b) lands constituting a portion of the Property shall be
condemned by any governmental authority having jurisdiction, such that the
Property is in violation of applicable parking, zoning, platting, or other
ordinances, or fails to comply with the terms of the Occupancy Leases with Major
Tenants. In either of said events, Lender shall be entitled to exercise any or
all remedies provided or referenced in this Mortgage, including the application
of condemnation proceeds to the outstanding principal balance of the
18
Note at par and the right to accelerate the maturity date of the Note and
require payment in full without the imposition of a Prepayment Premium.
19. Costs of Collection. In the event that the Note secured hereby is
placed in the hands of an attorney for collection, or in the event that Lender
shall become a party either as plaintiff or as defendant, in any action, suit,
appeal or legal proceeding (including, without limitation, foreclosure,
condemnation, bankruptcy or administrative proceedings or any proceeding wherein
proof of claim is by law required to be filed), hearing, motion or application
before any court or administrative body in relation to the Property or the lien
and security interest granted or created hereby or herein, or for the recovery
or protection of said Loan or the Property, or for the foreclosure of this
Mortgage, or for the enforcement of the terms and conditions of the Loan
Documents, Borrower shall indemnify, save, defend and hold Lender harmless from
and against any and all costs and expenses incurred by Lender on account
thereof, including, but not limited to, Reasonable Attorneys' Fees, title
searches and abstract and survey charges, at all trial and appellate levels, and
Borrower shall repay, on demand, all such costs and expenses, together with
interest thereon until paid at the lesser of either: (i) the highest rate of
interest then allowed by the laws of the State of Florida or, if controlling,
the laws of the United States, or (ii) the then applicable rate of interest of
the Note plus five percent (5%) per annum; all of which sums, if unpaid, shall
be added to and become a part of the Loan secured hereby.
20. Default Rate. Any sums not paid when due, whether maturing by lapse
of time or by reason of acceleration under the provisions of the Note or this
Mortgage, and whether principal, interest or money owing for advancements
pursuant to the terms of this Mortgage or any of the other Loan Documents, shall
bear interest until paid at the lesser of either: (i) the highest rate of
interest then allowed by the laws of the State of Florida or, if controlling,
the laws of the United States, or (ii) the then applicable rate of interest of
the Note plus five percent (5%) per annum, all of which sums shall be added to
and become a part of the Loan secured hereby.
21. Savings Clause. Notwithstanding any provisions in the Note or in
this Mortgage to the contrary, the total liability for payments in the nature of
interest including but not limited to Prepayment Premiums, default interest and
late payment charges shall not exceed the limits imposed by the laws of the
State of Florida or, if controlling, the United States of America relating to
maximum allowable charges of interest. Lender shall not be entitled to receive,
collect or apply, as interest on the Loan evidenced by the Note, any amount in
excess of the maximum lawful rate of interest permitted to be charged by the
Laws. In the event Lender ever receives, collects or applies as interest any
such excess, such amount which would be excessive interest shall be applied to
reduce the unpaid principal balance of the Loan evidenced by the Note. If the
unpaid principal balance of such Loan has been paid in full, any remaining
excess shall be forthwith paid to Borrower.
22. Bankruptcy, Reorganization or Assignment. It shall be a default
hereunder if Borrower or any general partner of Borrower shall: (i) elect to
dissolve and liquidate its business organization and windup its business affairs
without receiving the prior written approval of Lender, or (ii) consent to the
appointment of a receiver, trustee or liquidator of all or a substantial part of
Borrower's or any general partner of Borrower's assets, or (iii) be adjudicated
as bankrupt
19
or insolvent, or file a voluntary petition in bankruptcy, or admit in writing
its inability to pay its debts as they become due, or (iv) make a general
assignment for the benefit of creditors, or (v) file a petition under or take
advantage of any insolvency law, or (vi) file an answer admitting the material
allegations of a petition filed against Borrower in any bankruptcy,
reorganization or insolvency proceeding or fail to cause the dismissal of such
petition within thirty (30) days after the filing of said petition, or (vii)
take action for the purpose of effecting any of the foregoing, or (viii) if any
order, judgment or decree shall be entered upon an application of a creditor of
Borrower or any general partner of Borrower by a court of competent jurisdiction
approving a petition seeking appointment of a receiver or trustee of all or a
substantial part of Borrower's or such general partner's assets and such order,
judgment or decree shall continue unstayed and in effect for a period of sixty
(60) days.
23. Time is of the Essence; Monetary and Non-Monetary Defaults. It is
understood by Borrower that time is of the essence hereof in connection with all
obligations of Borrower herein and in the Note, the Assignment and in any of the
other Loan Documents.
Lender, at its sole option, may declare the Loan evidenced by the Note,
as well as all other monies secured hereby, including, without limitation, all
Prepayment Premiums (to the extent permitted by the laws of the State of
Florida) and late payment charges, to be forthwith due and payable, in the
event:
(a) Borrower defaults in the payment of any monthly
installment of the Note, whether of principal or interest, or both, or in the
payment of any other sums of money referred to herein or in the Note, promptly
and fully when the same shall be due, without notice or demand from Lender to
Borrower. Notwithstanding the foregoing, once per loan year for the term of the
loan, Borrower shall be entitled to written notice of a Monetary Default (as
hereinafter defined) and a five (5) day period to cure same. It is understood
and agreed that the agreement of Lender to provide notice and an opportunity to
cure a Monetary Default does not waive Lender's right to any late payment
changes;
(b) Borrower breaches or defaults on any one of the terms,
covenants, conditions and agreements of the Note, this Mortgage, the Assignment
or any other Loan Documents evidencing or securing the Note or the Loan; or in
the event that each and every one of said terms, covenants, conditions and
agreements is not otherwise either duly, promptly and fully discharged or
performed, and any such Non-Monetary Default (as hereinafter defined) remains
uncured for a period of thirty (30) days after Written Notice thereof has been
delivered from Lender to Borrower; unless such Non-Monetary Default cannot be
cured within said thirty (30) day period, in which event Borrower shall have an
extended period of time to complete cure, provided that action to cure such
Non-Monetary Default is promptly commenced within said thirty (30) day period,
and Borrower is, in Lender's sole judgment, not diminishing or materially
impairing the value of the Property, and is diligently pursuing a cure to
completion, but in no event longer than ninety (90) days.
(c) Any default occurs in the performance of any covenant or
obligation of Borrower or any other party under any indemnity or guaranty
delivered to Lender in connection
20
with the Loan and such default continues beyond the expiration of applicable
notice and cure periods.
Upon the occurrence of any one of the above events, and at the option
of Lender, the principal of and the interest accrued on the Loan (as evidenced
by the Note) and all other sums secured by this Mortgage shall immediately
become due and payable as if all of said sums of money were originally
stipulated to be paid on such day. In addition, Lender may avail itself of all
rights and remedies provided by law and may foreclose or prosecute a suit at law
or in equity as if all monies secured hereby had matured prior to its
institution, anything in this Mortgage or in the Note to the contrary
notwithstanding. Except as provided hereinabove, Lender shall have no obligation
to give Borrower notice of, or any period to cure, any Monetary Default or any
Incurable Default (as hereinafter defined) prior to exercising its rights,
powers, privileges and remedies to accelerate the maturity of the Loan secured
hereby.
As used herein, the term "Monetary Default" shall mean any default of a
specific payment obligation under the Loan Documents which can be cured by the
payment of money such as, but not limited to, the payment of principal and
interest due under the Note and the payment of taxes, assessments and insurance
premiums when due as provided in this Mortgage. As used herein, the term
"Non-Monetary Default" shall mean any default which is not a Monetary Default or
an Incurable Default. As used herein, the term "Incurable Default" shall mean
either: (i) any voluntary or involuntary sale, assignment, mortgaging,
encumbering or transfer in violation of the covenants contained herein; or (ii)
if Borrower, or any person or entity comprising Borrower or any guarantor or
indemnitor of the Loan, should make an assignment for the benefit of creditors,
become insolvent, or file a petition in bankruptcy (including but not limited
to, a petition seeking a rearrangement or reorganization) which is not dismissed
within sixty (60) days after the filing of same.
Lender may institute an action to foreclose this Mortgage as to the
amount so declared due and payable, and thereupon, the Property shall be sold
according to law to satisfy and pay the same together with all costs, expenses
and allowances thereof, including, without limitation, Reasonable Attorney's
Fees. The Property may be sold in one parcel, several parcels or groups of
parcels, and Lender shall be entitled to bid at the sale, and, if Lender is the
highest bidder for the Property or any part or parts thereof, Lender shall be
entitled to purchase the same. The failure or omission on the part of Lender to
exercise the option for acceleration of maturity of the Note and foreclosure of
this Mortgage following any default as aforesaid or to exercise any other option
or remedy granted hereunder to Lender when entitled to do so in any one or more
instances, or the acceptance by Lender of partial payment of the Loan secured
hereby, whether before or subsequent to Borrower's default hereunder, shall not
constitute a waiver of any such default or the right to exercise any such option
or remedy, but such option or remedy shall remain continuously in force.
Acceleration of the maturity of the Note, once claimed hereunder by Lender, at
the option of Lender, may be rescinded by written acknowledgment to that effect
by Lender, but the tender and acceptance of partial payments alone shall not in
any way affect or rescind such acceleration of maturity, nor act as a waiver,
accord and satisfaction, modification, novation or similar defense.
21
24. Protection of Lender's Security. At any time after default
hereunder, Lender, or Lender's agent or contractors, is authorized, without
notice and in its sole discretion, to enter upon and take possession of the
Property or any part thereof and to perform any acts which Lender deems
necessary or proper to conserve the security interest herein intended to be
provided by the Property, to operate any business or businesses conducted
thereon and to collect and receive all rents, issues, profits and income,
including termination fees and taking proceeds, thereof and therefrom, including
those past due as well as those accruing thereafter.
25. Appointment of Receiver. If, at any time after a default hereunder,
Lender deems, in Lender's sole discretion, that a receivership may be necessary
to protect the Property or its rents, issues, license fees, issues, profits or
income, including termination fees and taking proceeds, whether before or after
maturity of the Note and whether before or at the time of or after the
institution of suit to collect such Loan, or to enforce this Mortgage, Lender,
as a matter of strict right and regardless of the value of the Property or the
amounts due hereunder or secured hereby, or of the solvency of any party bound
for the payment of such indebtedness, shall have the right, upon ex parte
application and without notice to anyone, and by any court having jurisdiction,
to the appointment of a receiver to take charge of, manage, preserve, protect
and operate the Property, to collect the Rents thereof, to make all necessary
and needful repairs, and to pay all taxes, assessments, insurance premiums and
all other such charges against and expenses of the Property, and to do such
other acts as may by such court be authorized and directed, and after payment of
the expenses of the receivership and the management of the Property, to apply
the net proceeds of such receivership in reduction of the Loan secured hereby or
in such other manner as the said court shall direct, notwithstanding the fact
that the amount owing thereon may not then be due and payable or the said Loan
may otherwise be adequately secured. Such receivership shall, at the option of
Lender, continue until full payment of all sums hereby secured or until title to
the Property shall have passed by sale under this Mortgage. Borrower hereby
specifically waives its right to object to the appointment of a receiver as
aforesaid and hereby expressly agrees that such appointment shall be made as an
admitted equity and as a matter of absolute right to Lender.
26. Rights and Remedies Cumulative; Forbearance Not a Waiver. The
rights and remedies herein provided are cumulative and Lender, as the holder of
the Note and of every other obligation secured hereby, may recover judgment
thereon, issue execution therefor and resort to every other right or remedy
available at law or in equity, without first exhausting any right or remedy
available to Lender and without affecting or impairing the security of any right
or remedy afforded hereby, and no enumeration of special rights or powers by any
provisions hereof shall be construed to limit any grant of general rights or
powers, or to take away or limit any and all rights granted to or vested in
Lender by law. Borrower further agrees that no delay or omission on the part of
Lender to exercise any rights or powers accruing to it hereunder shall impair
any such right or power or shall be construed to be a waiver of any such event
of default hereunder or an acquiescence therein; and every right, power and
remedy granted herein or by law to Lender may be exercised from time to time as
often as Lender deems expedient.
27. Modification Not an Impairment of Security. Lender, without notice
and without regard to the consideration, if any, paid therefor, and
notwithstanding the existence at that time
22
of any inferior mortgages or other liens thereon, may release any part of the
security described herein or may release any person or entity liable for any
Loan secured hereby without in any way affecting the priority of this Mortgage,
to the full extent of the Loan remaining unpaid hereunder, upon any part of the
security not expressly released. Lender may, at its option and within its sole
discretion, also agree with any party obligated on said Loan, or having any
interest in the security described herein, to extend the time for payment of any
part or all of the Loan secured hereby, and such agreement shall not, in any
way, release or impair this Mortgage, but shall extend the same as against the
title of all parties having any interest in said security, which interest is
subject to this Mortgage.
28. Property Management/Leasing. The exclusive manager of the Property
shall be Borrower, Ramco Xxxxxxxxxx, Inc. or such other manager as may be first
approved in writing by Lender. The exclusive leasing agent of the Property, if
other than Borrower or the foregoing party, shall be first approved in writing
by Lender. The governing management and leasing contracts (or in the absence of
any such written contract, a letter so stating and further identifying the name
of the person or entity charged with the responsibility for managing and/or
leasing the Property) shall be subordinate to this Mortgage and satisfactory to
and subject to the written approval of Lender throughout the term of the Loan
secured hereby. Upon default in either of these requirements, then the whole of
the Loan hereby secured shall, at the election of Lender, become immediately due
and payable, together with any default premium and late payment charges and all
other sums required by the Note, and Lender shall be entitled to exercise any or
all remedies provided or referenced in this Mortgage.
29. Modification Not a Waiver. In the event Lender: (a) releases, as
aforesaid, any part of the security described herein or any person or entity
liable for any Loan secured hereby, or (b) grants an extension of time for the
payment of the Note, or (c) takes other or additional security for the payment
of the Note, or (d) waives or fails to exercise any rights granted herein or in
the Note, or any other Loan Document, any said act or omission shall not release
Borrower, subsequent purchasers of the Property or any part thereof, or makers,
sureties, endorsers or guarantors of the Note, if any, from any obligation or
any covenant of this Mortgage or of the Note or of any of the other Loan
Documents, nor preclude Lender from exercising any right, power or privilege
herein granted or intended to be granted in the event of any other default then
made, or any subsequent default.
30. Transfer of Property or Controlling Interest in Borrower;
Assumption. Except as set forth in Paragraph 36 (B) hereof, and except as
provided in the last two (2) sentences hereof, the sale, transfer, assignment or
conveyance of all or any portion of the Property or the transfer, assignment or
conveyance of a controlling interest in Borrower or any of the general partners
of Borrower, whether voluntarily or by operation of law, without the prior
written consent of Lender, shall constitute a default under the terms of this
Mortgage and entitle Lender, at its sole option, to accelerate all sums due on
the Note together with any Prepayment Premiums to the extent permitted by the
laws of the State of Florida, late payment charges or any other amounts secured
hereby. Lender may, however, elect to waive the option to accelerate granted
hereunder if, prior to any such sale, transfer, assignment or conveyance of the
Property, the following conditions shall be fully satisfied: (a) Lender
acknowledges in writing that, in its sole discretion,
23
the creditworthiness of the proposed transferee and the ability and experience
of the proposed transferee to operate the Property are satisfactory to Lender;
(b) Lender and the proposed transferee shall enter into an agreement in writing
that (i) the rate of interest payable on the Loan secured hereby shall be at
such rate as Lender shall determine, (ii) the repayment schedule as set forth in
the Note shall be modified by Lender, in its sole discretion, to initiate
amortization or modify the existing amortization schedule in order to amortize
the then remaining unpaid principal balance of the Note secured hereby over a
period of time as determined by Lender, in Lender's sole discretion, without a
change in the maturity date of the Note, and (iii) the proposed transferee shall
assume all obligations of Borrower under the Note, this Mortgage and the other
Loan Documents in writing and an assumption fee, to be determined by Lender in
Lender's sole discretion, may be charged by Lender; (c) Lender shall receive,
for Lender's review and approval, copies of all transfer documents; and (d)
Borrower or the transferee shall pay all costs and expenses in connection with
such transfer and assumption, including, without limitation, all fees and
expenses incurred by Lender.
Borrower, or any subsequent owner of the Property or any portion
thereof, shall do all things necessary to preserve and keep in full force and
effect its and their legal existence, franchises, rights and privileges as a
corporation or partnership, as the case may be, under the laws of the state of
its formation and its right to own property and transact business in the State
of Florida. It shall be a default hereunder if Borrower, or any subsequent owner
of the Property or any portion thereof, shall amend, modify, transfer, assign or
terminate the partnership agreement, certificate of partnership, operating
agreement, articles of organization or articles of incorporation, as the case
may be, of Borrower or such subsequent owner without the prior written consent
of Lender and, in the reasonable determination of Lender, such amendment,
modification, transfer, assignment or termination shall have a material adverse
effect on Lender, the Property or the security value thereof. Borrower, or such
subsequent owner of the Property, shall provide Lender, within thirty days
following execution thereof, with copies of any amendment to its partnership
agreement, certificate of partnership or articles of incorporation, as the case
may be, so that Lender may, in Lender's sole discretion, determine whether such
amendment adversely affects Lender, the Property or the security value thereof.
Provided, however, that any amendment, modification, transfer, assignment or
termination of Borrower's partnership agreement or any other action pursuant to
which the current managing general partner of Borrower shall either: (a) cease
to be the managing general partner of Borrower; or (b) except to the extent
permitted herein, cease to own or maintain a partnership interest in Borrower
equal to or greater than its partnership interest at the time this Mortgage is
executed, shall be deemed to have a material adverse effect upon Lender and the
Property, and shall be a default hereunder.
Borrower shall not change its name or identity in any manner which may
make any financing or continuation statement filed in connection with the Loan
seriously misleading within the meaning of Section 9-402(7) of the UCC (or any
other then applicable provision of the UCC) enacted in the State unless Borrower
shall have delivered to Lender written notice thereof not less than thirty (30)
days before the effective date of such change and shall have taken all action
which Lender determines to be reasonably necessary or desirable to amend such
financing statement or continuation statement so that it is not seriously
misleading. Assignor will not
24
change its principal places of business unless it shall have given the Lender
prior written notice of its intent to do so not less than thirty (30) days in
advance of the effective date of such change. Borrower shall bear all costs
incurred by Lender in connection with any such change in, including, without
limitation Reasonable Attorney's Fees.
In the event the ownership of the Property, or any part thereof, shall
become vested in a person or entity other than Borrower, whether with or without
the prior written consent of Lender, Lender may, without notice to Borrower,
deal with such successor or successors in interest with reference to the
Property, this Mortgage and the Note, in the same manner and to the same extent
as with Borrower without in any way vitiating or discharging Borrower's
liability hereunder or under the Note. No sale, transfer or conveyance of the
Property, no forbearance on the part of Lender and no extension of time given by
Lender to Borrower for the payment of the Note hereby secured shall operate to
release, discharge, modify, change or affect the original liability of Borrower,
either in whole or in part, unless expressly set forth in writing executed by
Lender. Notwithstanding anything contained herein to the contrary, Borrower
hereby waives any right it now has or may hereafter have to require Lender to
prove an impairment of its security as a condition to the exercise Lender's
rights under this Paragraph 30.
A sale, transfer, assignment or conveyance within the meaning of this
Paragraph shall be deemed to include, but not be limited to: (a) an installment
sales agreement wherein Borrower agrees to sell the Property or any part thereof
for a price to be paid in installments; (b) an agreement by Borrower leasing all
or a substantial part of the Property for other than actual occupancy by a
tenant under an Occupancy Lease or a sale, assignment or other transfer of, or
the grant of a security interest in, Borrower's right, title and interest in and
to any leases or any rents; and (d) if Borrower, any guarantor or indemnitor or
any general partner of Borrower, any guarantor or indemnitor is a limited
partnership, general partnership, limited liability partnership, limited
liability company or joint venture, the change, removal or resignation of a
general partner, managing partner or member, or the transfer or pledge of the
interest of any general partner, managing partner or member, or any profits or
proceeds relating to such interest except to an entity controlled by Borrower.
Notwithstanding the foregoing, Lender acknowledges that Borrower's
general partner is a publicly traded real estate investment trust ("REIT") and
that such general partner shares are freely traded in the public markets. Lender
also acknowledges and agrees that operating partnership units ("OP units") held
by the limited partners of Borrower may be freely traded. Transfers of OP units
and/or shares of the general partner and issuing new OP units and/or shares
shall not be a default under the loan documents.
Notwithstanding anything contained in this Paragraph 30 to the
contrary, as long as no default, or event which, with notice or the passage of
time or both, could result in a default, has occurred hereunder, under the Note
or any of the other Loan Documents, Lender shall permit one (1) bona fide arm's
length transfer of the Property to another borrowing entity without a change in
the terms of the Loan; provided, however, that no such transfer shall be valid
or permitted hereunder unless: (i) Lender receives prior Written Notice of such
proposed transfer; (ii) such proposed transferee has been approved in writing by
Lender (taking into consideration
25
such factors as transferee's creditworthiness, business experience, financial
condition and managerial capabilities); (iii) Lender is paid a cash assumption
fee (the "Assumption Fee") of one percent (1%) of the then outstanding principal
balance of the Note; (iv) Borrower pays all fees and expenses incurred by Lender
in connection with such transfer and assumption, including, without limitation,
inspection and investigation fees, title insurance charges and Reasonable
Attorneys' Fees; (v) such proposed transferee assumes in writing all obligations
of Borrower under the Note, this Mortgage and the other Loan Documents, with the
same degree of liability as Borrower; and (vi) Lender approves the management
agreement and the management company to be employed by the proposed transferee.
Any transfer of all or any portion of the Property which does not strictly
comply with the terms and conditions of the foregoing shall be a default
hereunder, and shall entitle Lender to exercise all rights and remedies provided
in this Mortgage and the other Loan Documents. This one-time right of transfer
shall apply to the Borrower named herein and not to any subsequent owner of the
Property. Notwithstanding the foregoing, the Assumption Fee provided in this
Section 30(iii) above shall not apply to a transfer to an entity controlled by
Borrower (nor shall such transfer be deemed the one-time right to transfer
allowed hereunder) but Borrower shall pay all of Lender's out of pocket expenses
incurred in connection with any such transfer. Upon such transfer, provided that
a Phase I Environmental Report acceptable to Lender has been reviewed and
approved by Lender, Borrower and the Responsible Party shall be released from
further liability hereunder.
31. Further Encumbrance Prohibited; Subrogation. So long as the Note
remains unpaid, Borrower shall neither voluntarily nor involuntarily permit the
Property or any part thereof to become subject to any secondary lien, mortgage,
security interest or encumbrance of any kind whatsoever without the prior
written consent of Lender, and the imposition of any such secondary lien,
mortgage, security interest or encumbrance without the approval of Lender shall
constitute an event of default hereunder and entitle Lender, at its sole option,
to declare the outstanding principal balance of the Note, all accrued and unpaid
interest thereon, Prepayment Premiums (to the extent permitted by the laws of
the State of Florida), late payment charges and any other amounts secured hereby
to be and become immediately due and payable in full. In the event that Lender
shall hereafter give its written consent to the imposition of any such secondary
lien, mortgage, security interest or other encumbrance upon the Property,
Lender, at its sole option, shall be entitled to accelerate the maturity of the
Note secured hereby and exercise any and all remedies provided and available to
Lender hereunder and in the other Loan Documents in the event that the holder of
any such secondary lien or encumbrance shall institute foreclosure or other
proceedings to enforce the same; it being understood and agreed that a default
under any instrument or document evidencing, securing or secured by any such
secondary lien or encumbrance shall be and constitute an event of default
hereunder. In the event all or any portion of the proceeds of the loan secured
hereby are used for the purpose of retiring debt or debts secured by prior liens
on the Property, Lender shall be subrogated to the rights and lien priority of
the holder or holders of the lien or liens so discharged.
32. Conveyance of Mineral Rights Prohibited. Borrower agrees that the
making of any oil, gas or mineral lease, or the sale or conveyance of any
mineral interest or right to explore for minerals under, through or upon the
Property, would impair the value of the Property securing the Note, and that
Borrower shall have no right, power or authority to lease the
26
Property, or any part thereof, for oil, gas or other mineral purposes, or to
grant, assign or convey any mineral interest of any nature, or the right to
explore for oil, gas and other minerals, without first obtaining Lender's
express written permission therefor, which permission shall not be valid until
recorded among the Public Records of Broward County, State of Florida. Borrower
further agrees that if Borrower shall make, execute, or enter into any such
lease or attempt to grant any such mineral rights without such prior written
permission of Lender, then Lender shall have the option, without notice, to
declare the same to be a default hereunder, and to declare the Loan hereby
secured immediately due and payable in full. Whether or not Lender shall consent
to such lease or grant of mineral rights, Lender shall receive the entire
consideration to be paid for any such lease or grant of mineral rights, with the
same to be applied to the Loan hereby secured notwithstanding the fact that the
amount owing thereon may not then be due and payable or that the said Loan is
otherwise adequately secured; provided, however, that the acceptance of such
consideration shall in no way impair the lien of this Mortgage on the Property
or cure any existing Monetary Default.
33. Estoppel Certification by Borrower. Borrower, upon request of
Lender therefor made either personally or by mail, shall certify in writing to
Lender (or any party designated by Lender) in form satisfactory to Lender the
amount of principal and interest then outstanding under the terms of the Note
and any other sums owing on account of this Mortgage or the other Loan
Documents, and whether any offsets or defenses exist against the Loan. Such
certification shall be made by Borrower within ten (10) days if the request is
made personally, or within twenty (20) days if the request is made by mail.
34. Cross-Default. The Note secured hereby is also secured by the
terms, conditions and provisions of the Assignment from Borrower to Lender
recorded among the Public Records of Broward County, State of Florida
(hereinafter referred to as the "Assignment") and, additionally, may be secured
by contracts or agreements of guaranty or other security instruments from
Borrower to Lender relating to the Property. The terms, covenant, conditions and
agreements of each such security instrument shall be considered a part hereof as
fully as if set forth herein verbatim. Any default under this Mortgage or the
Note or any of the other Loan Documents shall constitute an event of default
under the aforesaid Assignment and any other security instruments, and any
default under the Assignment or other security instruments shall likewise
constitute a default hereunder and under the Note secured hereby.
Notwithstanding the foregoing, the enforcement or attempted enforcement of this
Mortgage or any other security instrument now or hereafter held by Lender shall
not prejudice or in any manner affect the right of Lender to enforce any other
Loan Document; it being understood and agreed that Lender shall be entitled to
enforce this Mortgage and any other Loan Document now or hereafter held by it in
such order and manner as Lender, in its sole discretion, shall determine.
35. Examination of Borrower's Records. Borrower will maintain complete
and accurate books and records showing in detail the income and expenses of the
Property, and will permit Lender and its agents, contractors or representatives,
to examine said books and records and all supporting vouchers and data during
normal business hours and from time to time upon request by Lender, in such
place as such books and records are customarily kept. Borrower will furnish to
Lender, within one hundred twenty (120) days after the close of each respective
fiscal
27
period annual and semi-annual financial statements (income statements and a
balance sheet) for the Borrower and the Property. These statements shall be in
form acceptable to Lender, shall be prepared in accordance with generally
accepted accounting principles, and shall include a rent roll, certified as true
and correct by Borrower. The statements shall show in detail all income derived
from and expenses incurred in connection with the ownership of the Property,
including current annual sales figures for all Major Tenants of the Property if
required under the Major Tenant leases or if such financial information is
otherwise available (such certification shall provide with respect to any Major
Tenant that the current annual sales figures are the figures that the Major
Tenant has delivered to Borrower and that Borrower shall make no certification
as to the correctness, completeness or accuracy of such figures). In the event
Borrower fails to provide such statements to Lender within the time prescribed
above, Borrower shall pay Lender the sum of TWO HUNDRED AND NO/100 DOLLARS
($200.00) in administrative expenses for each successive month for which the
statements are delinquent. In the event of a default hereunder, Lender shall
have the right to require that said financial statements of Borrower be audited
and certified by a certified public accountant acceptable to Lender, at the sole
cost and expense of Borrower.
In addition, at the request of Lender, but in no case more often than
once a quarter or more than three (3) times during the term of the Loan,
Borrower shall furnish to Lender: (i) unaudited financial statements (balance
sheet, income statement, cash flow statement and current rent roll) covering
operation of the Property for periods other than those set forth in the
preceding paragraph; (ii) unaudited financial statements (balance sheets, income
statements and cash flow statements) for the Borrower, its general partner(s),
shareholder(s) or member(s) (whichever is applicable) and for such other
principals of the Borrower as designated by Lender; and (iii) a portfolio
analysis showing annualized cash flow statements (including debt service
payments) for all real properties owned by Borrower, its general partner(s),
shareholder(s), member(s) (whichever is applicable) and for such designated
principals. All such statements shall be certified to Lender to be complete,
correct and accurate by the individual (for an individual's statements) or by an
authorized representative of the entity (if statements are for a partnership,
corporation or limited liability company). Notwithstanding the foregoing: (i)
Borrower's financial statements are consolidated into the general partner of
Borrower and, as a result, Lender will only receive the general partner's
statements, as consolidated; (ii) Lender shall only require Borrower to provide
cash flow statements for the Property and for no other real estate projects
owned by Borrower and no portfolio analysis shall be required; and (iii) for
purposes of Borrower's financial statements, Lender shall accept from Borrower,
audited financial statements as such statements are regularly prepared and
provided by Borrower's general partner.
36. Alteration, Removal and Change in Use of Property Prohibited.
Borrower covenants and agrees to permit or suffer none of the following without
the prior written consent of Lender:
(A) Subject to Section 3(a) hereinabove, any structural
alteration of, or addition to, the Improvements now or
hereafter situated upon the Real
28
Property or the addition of any new buildings or other
structure(s) thereto, other than the erection or removal
of non-load bearing interior walls; or
(B) The removal, transfer, sale or lease of the Property,
except that the renewal, replacement or substitution of
fixtures, equipment, machinery, apparatus and articles of
personal property (replacement or substituted items must
be of like or better quality than the removed items in
their original condition) encumbered hereby may be made
in the normal course of business; or
(C) The use of any of the Improvements now or hereafter
situated on the Real Property for any purpose other than
as a shopping center project and related facilities.
(D) Notwithstanding the foregoing, the free standing building
located within the Sunshine Plaza Shopping Center from
which the China Duck restaurant is currently operated
shall not be considered when calculating completion
and/or construction reserves, accounts and/or escrows, if
any, required by Lender. Lender acknowledges and agrees
that Borrower shall have the right and obligation to tear
down the building from which the China Duck restaurant is
operated and related improvements during the term of the
Loan without obtaining any further consents from Lender.
Borrower shall cause the demolition of China Duck to be
completed by June 30, 2002.
37. Future Advances Secured. This Mortgage shall secure not only
existing Loan, but also future advances, whether such advances are obligatory or
to be made at the option of Lender, as are made within twenty (20) years from
the date hereof. Upon request of Borrower, and at Lender's option prior to
release of this Mortgage, Lender may make future advances to Borrower. All
future advances with interest thereon shall be secured by this Mortgage to the
same extent as if such future advances were made on the date of the execution of
this Mortgage unless the parties shall agree otherwise in writing, but the total
secured Loan shall not exceed at any one time a maximum principal amount equal
to double the face amount of the Note plus interest, and costs of collection
including court costs and Reasonable Attorney's Fees. Any advances or
disbursements made for the benefit or protection of or the payment of taxes,
assessments, levies or insurance upon the Property, with interest on such
disbursements as provided herein shall be added to the principal balance of the
Note and collected as part thereof. The filing of any notice limiting the
maximum amount that may be secured by this Mortgage pursuant to Florida Statutes
Section 697.04 or otherwise shall be and constitute a default under this
Mortgage.
38. Effect of Security Agreement. Borrower does hereby grant and this
Mortgage is and shall be deemed to create, grant, give and convey a mortgage of,
a lien and encumbrance upon, and a present security interest in both real and
personal property, including all improvements, goods, chattels, furniture,
furnishings, fixtures, equipment, apparatus, appliances
29
and other items of tangible or intangible personal property, hereinabove
particularly or generally described and conveyed, whether now or hereafter
affixed to, located upon, necessary for or used or useful, either directly or
indirectly, in connection with the operation of the Property as a shopping
center project, and this Mortgage shall also serve as a "security agreement" as
that term is defined and used in the Uniform Commercial Code as adopted and in
force from time to time in the State of Florida, and shall be operative and
effective as a security agreement in addition to, and not in substitution for,
any other security agreement executed by Borrower in connection with the Note
secured hereby. Borrower agrees to and shall, upon the request of Lender,
execute and deliver to Lender, in form and content satisfactory to Lender, such
financing statements, descriptions of property and such further assurances as
Lender, in its sole discretion, may from time to time consider necessary to
create, perfect, continue and preserve the lien and encumbrances hereof and the
security interest granted herein upon and in such real and personal property and
fixtures described herein, including all buildings, improvements, goods,
chattels, furniture, furnishings, fixtures, equipment, apparatus, appliances,
and other items of tangible and intangible personal property herein specifically
or generally described and intended to be the subject of the security interest,
lien and encumbrance hereby created, granted and conveyed. Without the prior
written consent of Lender, Borrower shall not create or suffer to be created,
pursuant to the Uniform Commercial Code, any other security interest in such
real and personal property and fixtures described herein. Upon the occurrence of
a default hereunder or Borrower's breach of any other covenants or agreements
between the parties entered into in conjunction herewith, Lender shall have the
remedies of a secured party under the Uniform Commercial Code and, at Lender's
option, the remedies provided for in this Mortgage. Lender, at the expense of
Borrower, may cause such statements, descriptions and assurances, as herein
provided in this Paragraph 38, and this Mortgage to be recorded and re-recorded,
filed and refiled, at such times and in such places as may be required or
permitted by law to so create, perfect and preserve the lien and encumbrance
hereof upon all of the Property.
39. Terms of Commitment Survive Closing. The terms and provisions of
the Application/Contract for Mortgage Loan dated February 28, 2002 and accepted
by Lender on April 4, 2002 and any subsequent amendments thereto (hereinafter
referred to as the "Contract"), executed by and between Borrower and Lender, are
incorporated herein by reference. All terms, covenants, conditions and
agreements of the Contract not expressly set forth in this Mortgage, the Note,
the Assignment and any of the other Loan Documents additionally securing the
Note shall survive the execution and delivery hereof, and remain in full force
and effect. In the event any conflict exists between the terms, covenants,
conditions and agreements of the Contract and the Loan Documents, the terms,
covenants, conditions and agreements of the Loan Documents shall prevail.
40. Successors and Assigns; Terminology. The provisions hereof shall be
binding upon Borrower, and the heirs, personal representatives, trustees,
successors and assigns of Borrower, and shall inure to the benefit of Lender,
its successors and assigns. Where more than one (1) Borrower is named herein,
the obligations and liabilities of said Borrower shall be joint and several.
30
Wherever used in this Mortgage, unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein: (i) the word
"Borrower" shall mean Borrower and/or any subsequent owner or owners of the
Property; (ii) the word "Lender" shall mean Lender or any subsequent holder or
holders of this Mortgage; (iii) the word "Note" shall mean the Note(s) secured
by this Mortgage; and (iv) the word "person" shall mean an individual, trustee,
trust, corporation, partnership, limited liability corporation, limited
liability partnership, joint venture or unincorporated association. As used
herein, the phrase "Reasonable Attorneys' Fees" shall mean fees charged by
attorneys selected by Lender based upon such attorneys' then prevailing hourly
rates as opposed to any statutory presumption specified by any statute then in
effect in the State of Florida.
41. Notices. All notices, reports, requests or other written
instruments required or permitted hereunder, shall be in writing, signed by the
party giving or making the same, and shall be sent hand-delivered, effective
upon receipt, sent by United States Express Mail or by a nationally recognized
overnight courier, effective upon receipt, or sent by United States registered
or certified mail, postage prepaid, with return receipt requested, deemed
effective on the earlier of the day of actual delivery as shown by the
addressee's return receipt or the expiration of three (3) business days after
the date of mailing, addressed to the party intended to receive the same at the
address set forth below or at such other address as shall be given in writing by
any party to another (herein referred to as "Written Notice"):
If to Borrower: RAMCO-XXXXXXXXXX PROPERTIES, L.P.
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
If to Lender: NATIONWIDE LIFE INSURANCE COMPANY
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Real Estate Investment Department
42. Governing Law; Severability. This Mortgage is to be governed by and
construed in accordance with the laws of the State of Florida, and if
controlling, by the laws of the United States. If any clauses or provisions
herein contained shall operate or would prospectively operate to invalidate this
Mortgage, then such clauses or provisions only shall be held for naught, as
though not herein contained, and the remainder of this Mortgage shall remain
operative and in full force and effect.
43. Rights of Lender Cumulative. The rights of Lender arising under the
terms, covenants, conditions and agreements contained in this Mortgage shall be
separate, distinct and cumulative, and none of them shall be in exclusion of the
others. No act of Lender shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provisions, anything herein
or otherwise to the contrary notwithstanding. If the Borrower hereunder is
comprised of more than one (1) person or entity, then the liability of each such
person and entity hereunder shall be joint and several.
31
44. Modifications. This Mortgage cannot be changed, altered, amended or
modified except by an agreement in writing and in recordable form, executed by
both Borrower and Lender.
45. Exculpation. Notwithstanding anything contained herein to the
contrary, the liability of Borrower is subject to the limited recourse
provisions contained in the Exculpation section of the Note, which are
incorporated herein and made a part hereof by reference as if fully set forth
herein.
46. Full Recourse. Notwithstanding any provisions in this Mortgage to
the contrary, including, without limitation the provisions set forth in the
section captioned "Exculpation" hereinabove, Borrower and the general partners
of Borrower shall be personally liable, jointly and severally, for the entire
Loan secured by this Mortgage (including all principal, interest and other
charges) in the event (i) Borrower violates the covenant governing the placing
of subordinate financing on the Property as set forth in Paragraph 31 of this
Mortgage; (ii) Borrower violates the covenant restricting transfers of interest
in the Property or transfers of ownership interests in Borrower as set forth in
Paragraph 30 of this Mortgage; or (iii) there is filed against Borrower or any
guarantor or indemnitor of the Loan, a petition in bankruptcy or for the
appointment of a receiver, or there commences under any bankruptcy or insolvency
law, proceedings for Borrower's relief, or for the compromise, extension,
arrangement or adjustment of Borrower's obligations which becomes a final
nonappealable judgment or if Borrower voluntarily files a petition in bankruptcy
or initiates a similar action.
47. Captions. The captions set forth at the beginning of the various
paragraphs of this Mortgage are for convenience only, and shall not be used to
interpret or construe the provisions of this Mortgage.
[SIGNATURES BEGIN ON NEXT PAGE]
32
IN WITNESS WHEREOF, Borrower has caused this Mortgage to be executed as
of the day and year first above written.
Signed, sealed and delivered
in the presence of: RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership
By: RAMCO-XXXXXXXXXX PROPERTIES
TRUST, a Maryland real estate
investment trust
By:
--------------------------------
------------------------------
Name: Name:
-------------------------- ------------------------------
Its:
------------------------------ -------------------------------
Name: (CORPORATE SEAL)
--------------------------
STATE OF
----------------
COUNTY OF
---------------
The foregoing instrument was acknowledged before me this day of
April, 2002, by , as of RAMCO-XXXXXXXXXX PROPERTIES TRUST, a
Maryland real estate investment trust, general partner of RAMCO-XXXXXXXXXX
PROPERTIES, L.P., a Delaware limited partnership on behalf of the limited
partnership. He/she is personally known to me or has produced as
identification.
Notary Public
Name:
-------------------------
Commission No.:
---------------
My Commission Expires:
--------
(SEAL)
33
Exhibit A
Legal Description
Borrower Name: Ramco-Xxxxxxxxxx Properties, L.P.
Project Name: Sunshine Plaza Shopping Center
NOTE
$13,000,000.00 Orlando, Florida
April _____, 2002
FOR VALUE RECEIVED, THE UNDERSIGNED, RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership ("Borrower") whose Federal Tax Identification
Number is 00-0000000 promises to pay to the order of NATIONWIDE LIFE INSURANCE
COMPANY, an Ohio corporation, its successors and assigns ("Lender"), the
principal sum of THIRTEEN MILLION AND NO/100 DOLLARS ($13,000,000.00), together
with interest on the principal balance of this Note (the "Note"), from time to
time remaining unpaid, from the date of disbursement by Lender at the applicable
interest rate hereinafter set forth together with all other sums due hereunder
or under the terms of the Mortgage (as hereinafter defined) in lawful money of
the United States of America which shall be legal tender in payment of all debts
at the time of such payment the ("Loan"). Both principal and interest and all
other sums due hereunder shall be payable at the office of Lender at Xxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxx 00000-0000, Attention: Real Estate Investment
Department, or at such other place either within or without the State of Ohio as
Lender may from time to time designate. Said principal and interest shall be
paid over a term, at the times, and in the manner set forth below, to wit:
Payment Provision:
(A) Interest accrued on the unpaid principal balance of this Note, from
the date of disbursement hereof through April 30, 2002 at the rate of Seven and
Thirty-Five One Hundreths percent (7.35%) per annum, shall be due and payable on
the disbursement date of the Loan;
(B) Thereafter, monthly installments of principal and interest on the
unpaid principal balance of this Note at the rate of Seven and Thirty-Five One
Hundreths percent (7.35%) per annum, shall be due and payable in One Hundred
Nineteen (119) consecutive monthly installments commencing on June 1, 2002 and
continuing on the first day of each calendar month thereafter, with each such
installment to be in the sum of Ninety-Four Thousand Eight Hundred Four and
06/100 Dollars ($94,804.06), without deduction or set-off.
Maturity:
The unpaid principal balance of this Note and all accrued unpaid
interest thereon, (if not sooner paid), shall be due and payable in full on May
1, 2012 (the "Maturity Date").
Application of Payments:
All payments shall be applied first to any late payment or other such
charges as provided in this Note or in the Mortgage, then to accrued unpaid
interest on this Note, and the balance, if any, shall be applied to the
reduction of the outstanding principal balance of this Note. Interest due
hereunder shall be calculated on the basis of a three hundred sixty (360)-day
year (composed of twelve (12) thirty (30)-day months) except the payment due
under payment provision (A) above which shall be calculated on the actual number
of days; provided however, in no event shall the rate of interest payable under
the terms of this Note exceed the maximum rate of interest permitted under
applicable law.
Late Payment Charge:
Prior to the acceleration of this Note, the Lender may collect a late
payment charge in an amount equal to five percent (5%) of any full monthly
installment not received by the due date. Such late payment charge shall
constitute liquidated damages for the purpose of covering the extra expenses
involved in handling delinquent installments.
Prepayment:
(A) Except as hereinafter provided, Borrower shall not have the right
to prepay all or any part of the Loan at any time. Borrower shall have the right
to prepay in full, but not in part, the Loan evidenced by this Note, provided
that, as conditions precedent, Borrower: (i) gives Lender not less than thirty
(30) days' prior Written Notice (as defined in the Mortgage) of Borrower's
intention to so prepay this Note; and (ii) pays to Lender the Prepayment Premium
(as hereinafter defined), if any, then due and payable to Lender as hereinafter
provided. As used herein, the term "Prepayment Premium" shall mean a sum equal
to the greater of either: (i) one percent (1%) of the outstanding principal
balance of this Note at the time of prepayment; or (ii) an amount equal to the
sum of (a) the present value of the scheduled monthly payments due under this
Note from the date of prepayment to the Maturity Date, and (b) the present value
of the amount of principal and interest due under this Note on the Maturity Date
(assuming all scheduled monthly payments due prior to the Maturity Date were
made when due), minus (c) the outstanding principal balance of this Note as of
the date of prepayment. The present values described in (a) and (b) shall be
computed on a monthly basis as of the date of prepayment discounted at the
yield-to-maturity of the U. S. Treasury Note or Bond closest in maturity to the
Maturity Date of this Note as reported in The Wall Street Journal (or, if The
Wall Street Journal is no longer published, as reported in such other daily
financial publication of national circulation which shall be designated by
Lender) on the fifth (5th) business day preceding the date of prepayment.
Borrower shall be obligated to prepay this Note on the date set forth in the
notice to Lender required hereinabove, after such notice has been delivered to
Lender. Notwithstanding the foregoing or any other provision herein to the
contrary, if Lender elects to apply insurance proceeds, condemnation awards or
any escrowed amounts, if applicable, to the reduction of the outstanding
principal balance of this Note in the manner provided in the
2
Mortgage, no Prepayment Premium shall be due or payable as a result of such
application, and the monthly installments due and payable hereunder shall be
reduced accordingly.
(B) In the event the Maturity Date of the Loan evidenced by this Note
is accelerated by Lender at any time due to a default by Borrower in the payment
of principal and/or interest due under this Note or in the performance of the
terms, covenants or conditions contained in this Note, the Mortgage or any of
the other Loan Documents (as hereinafter defined), then a tender of payment in
an amount necessary to satisfy the entire outstanding principal balance of this
Note together with all accrued unpaid interest hereon made by Borrower or by
anyone on behalf of Borrower, at any time prior to, at or as a result of, a
foreclosure sale or sale pursuant to power of sale, shall constitute a voluntary
prepayment hereunder prior to the contracted Maturity Date of this Note thus
requiring the payment to Lender of a Prepayment Premium equal to the applicable
Prepayment Premium as set forth in paragraph (A.) above; provided, however, that
in the event such Prepayment Premium is construed to be interest under the laws
of the State of Florida in any circumstance, such payment shall not be required
to the extent that the amount thereof, together with other interest payable
hereunder, exceeds the maximum rate of interest that may be lawfully charged
under applicable law.
(C) Notwithstanding anything contained herein to the contrary, during
the one hundred twenty (120) day period immediately preceding the Maturity Date
of this Note, the entire outstanding principal balance and all accrued unpaid
interest on this Note may be prepaid in full, but not in part, at par, without
incurring a Prepayment Premium.
Additional Conditions:
This Note is secured by a Mortgage and Security Agreement (the
"Mortgage") and by an Assignment of Leases, Rents and Profits (the "Assignment")
of even date herewith encumbering certain real property located in Broward
County, State of Florida and certain other property, all as more particularly
described in the Mortgage (the "Property"). The Mortgage and the Assignment
contain terms and provisions which provide grounds for acceleration of the Loan
evidenced by this Note together with additional remedies in the event of default
hereunder or thereunder. Failure on the part of Lender to exercise any right
granted herein or in the aforesaid Mortgage or the Assignment shall not
constitute a waiver of such right, or preclude Lender's subsequent exercise and
enforcement thereof. This Note, the Mortgage, the Assignment and all other
documents and instruments executed as further evidence of, as additional
security for, or executed in connection with, the Loan evidenced by this Note
are hereinafter collectively referred to as the "Loan Documents."
Except as otherwise provided herein, all parties to this Note,
including endorsers, sureties and guarantors, hereby jointly and severally waive
presentment for payment, demand, protest, notice of protest, notice of demand,
notice of nonpayment, notice of dishonor, notice of intent to accelerate the
maturity of this Note, notice of acceleration of the maturity of this Note, and
any and all other notices and demands whatsoever, and agree to remain bound
hereby until the principal and interest and all other obligations arising under
this Note are paid in full,
3
notwithstanding any extensions of time for payment which may be granted by
Lender, even though the period of extension be indefinite, and notwithstanding
any inaction by, or failure to assert any legal rights available to Lender
pursuant to the terms and conditions of this Note.
If the obligations evidenced by this Note, or any part hereof, are
placed in the hands of an attorney or other person for collection, whether by
suit or otherwise, at any time, or from time to time, Borrower shall be liable
to Lender, in each instance, for all costs and expenses incurred in connection
therewith, including, without limitation, Reasonable Attorneys' Fees (as
hereinafter defined).
Default:
If Borrower defaults in the payment of principal, interest and/or any
other obligations arising under this Note as stipulated herein or under any of
the other Loan Documents, or if Borrower defaults in the performance of any of
the other terms, covenants and conditions contained herein or in any of the
other Loan Documents, then in any or all of such events, at the option of
Lender, the entire outstanding principal balance of this Note, together with all
accrued unpaid interest thereon and all other obligations arising under this
Note or any of the other Loan Documents, may be accelerated by Lender and may
become and be immediately due and payable then or thereafter as Lender may
elect, regardless of the Maturity Date hereof. All such amounts shall bear
interest after maturity, by acceleration or otherwise, at the lesser of either:
(i) the highest rate of interest then allowed by the laws of the State of
Florida or, if controlling, the laws of the United States, or (ii) the then
applicable interest rate of this Note plus five hundred (500) basis points.
During the existence of any default, Lender may apply any sums
received, including but not limited to, insurance proceeds or condemnation
awards, to any amount then due and owing hereunder or under the terms of any of
the other Loan Documents as Lender may determine. Neither the right nor the
exercise of the right herein granted unto Lender to apply such proceeds as
aforesaid shall serve to cure the default or preclude Lender from exercising its
option to cause the entire Loan evidenced by this Note to become immediately due
and payable by reason of Borrower's default under the terms of this Note or any
of the other Loan Documents.
Notwithstanding any provisions herein to the contrary, Lender's right,
power and privilege to accelerate the maturity of the indebtedness evidenced
hereby shall be conditioned upon: (A) with respect to any Monetary Default (as
hereinafter defined), Lender giving Borrower written notice of such Monetary
Default and a five (5) day period after the date a payment is due within which
to cure such Monetary Default, provided however that such opportunity to cure a
Monetary Default shall be limited to once per loan year for the term of the loan
and does not waive Lender's right to any late payment charges; and (B) with
respect to Non-Monetary Default (as hereinafter defined), Lender giving Borrower
written notice of such Non-Monetary Default and a thirty (30) day period, after
the date of such notice, within which to cure such Non-Monetary Default, unless
such Non-Monetary Default cannot reasonably be cured within said thirty (30) day
time period, in which event Borrower shall have an extended period of time to
4
complete such cure, provided that action to cure such Non-Monetary Default has
commenced within said thirty (30) day period and Borrower is, in Lender's sole
judgment, not materially diminishing or impairing the value of the Property, and
is diligently pursuing a cure to completion, but in no event longer than ninety
(90) days. Any notice required hereunder shall be given as provided in the
Mortgage. Except as provided hereinabove, Lender shall have no obligation to
give Borrower notice of, or any period to cure, any Monetary Default (as
hereinafter defined) or any Incurable Default (as hereinafter defined) prior to
exercising its right, power and privilege to accelerate the maturity of the Loan
evidenced hereby and to declare the same to be immediately due and payable and
exercise all other rights and remedies herein granted or otherwise available to
Lender at law or in equity. As used herein, the term "Monetary Default" shall
mean any default of a specific payment obligation under the Loan Documents which
can be cured by the payment of money, including, but not limited to, the payment
of principal and interest due under this Note and the payment of taxes,
assessments and insurance premiums when due as provided in the Mortgage. As used
herein, the term "Non-Monetary Default" shall mean any default which is not a
Monetary Default or an Incurable Default. As used herein, the term "Incurable
Default" shall mean either: (i) any voluntary or involuntary sale, assignment,
mortgaging or transfer of the Property or ownership interests in Borrower in
violation of the covenants of the Mortgage; or (ii) if Borrower, or any person
or entity comprising Borrower, should make an assignment for the benefit of
creditors, become insolvent, or file (or have filed against it) a petition in
bankruptcy (including but not limited to, a petition seeking a rearrangement or
reorganization) which is not dismissed within sixty (60) days after the filing
of same.
Notwithstanding any provision of this Note to the contrary, during any
period of default and regardless of any cure period applicable to such default,
in each instance under this Note, the Mortgage or any of the other Loan
Documents in which either: (i) Borrower is permitted to take a material action
without Lender's consent; or (ii) Lender's consent is to be exercised
reasonably, Lender's consent shall be required and shall be granted or withheld
in Lender's sole and absolute discretion.
Savings Clause; Severability:
Notwithstanding any provisions herein, in the Mortgage or in the other
Loan Documents to the contrary, the total liability for payments in the nature
of interest including but not limited to Prepayment Premiums, default interest
and late payment charges, shall not exceed the maximum allowable charges of
interest imposed by applicable laws. Lender shall not be entitled to receive,
collect or apply, as interest on the Loan evidenced by this Note, any amount in
excess of the maximum allowable rate of interest permitted to be charged by
applicable law or regulations, as amended or enacted from time to time. In the
event Lender ever receives, collects or applies, as interest any such excess,
such amount which would be excessive interest shall be applied to reduce the
unpaid principal balance of the Loan evidenced by this Note. If the unpaid
principal balance of such Loan has been paid in full, any remaining excess shall
be forthwith paid to Borrower.
5
If any clauses or provisions herein contained operate or would
prospectively operate to invalidate this Note, then such clauses or provisions
only shall be held for naught, as though not herein contained and the remainder
of this Note shall remain operative and in full force and effect.
Exculpation:
The liability of Borrower with respect to the payment of principal and
interest hereunder shall be "non-recourse", except as provided for under any
separate guarantee required in connection with the Loan, and Lender's source of
satisfaction of Borrower's obligations under this Note and other Loan Documents
shall be limited to the Property and Lender's receipt of the rents, issues and
profits from the Property and any other security or collateral now or hereafter
held by Lender, and Lender shall not seek to procure payment out of any other
assets of Borrower, or any person or entity comprising Borrower, or to seek
judgment (except as hereinafter provided) for any sums which are or may be
payable under this Note or under any of the other Loan Documents, as well as any
claim or judgment (except as hereafter provided) for any deficiency remaining
after foreclosure of the Mortgage. Notwithstanding the foregoing, nothing herein
contained shall be deemed to be a release or impairment of the Loan evidenced by
this Note or the security therefor intended by the other Loan Documents, or be
deemed to preclude Lender from exercising its rights to foreclose the Mortgage
or to enforce any of its other rights or remedies under the Loan Documents.
Notwithstanding the foregoing, it is expressly understood and agreed
that the aforesaid limitation on liability shall in no way affect or apply to
the continued personal liability of Borrower and Borrower's general partner's
for all sums due to:
(1) fraud or intentional material misrepresentation made in or in
connection with the Application/Contract for Mortgage Loan
dated February 28, 2002, and accepted by Lender on April 4,
2002 and any subsequent amendments thereto, this Note or any
of the other Loan Documents;
(2) the failure to pay taxes which accrue prior to Lender taking
control of the Property or to pay assessments or any other
governmental impositions, charges for labor, materials or
other charges which may create liens on any portion of the
Property;
(3) the misapplication of (i) proceeds of insurance covering any
portion of the Property; or (ii) proceeds of the sale,
condemnation or transfer in lieu of condemnation of any
portion of the Property; or (iii) rentals received by or on
behalf of the Borrower subsequent to the date on which Lender
makes written demand therefor pursuant to Lender's rights
under any of the Loan Documents;
(4) causing or permitting waste (as hereinafter defined) or
causing arson to occur in, on or about the Property and
failing to maintain the Property, excepting ordinary wear and
tear. As used herein, the term "waste" shall mean any
intentional act or
6
intentional neglect of maintenance of the property which
causes the value of the property to be materially diminished,
but excepting normal wear and tear;
(5) the failure to return to Lender all unearned advance rentals
and security deposits that have been paid by tenants of the
Property to the extent that such fees have not been refunded
to or forfeited by such tenants;
(6) the failure to pay any and all tenant improvement allowances
owed to tenants leasing space in the Property;
(7) the failure to pay to Lender any and all fees paid to Borrower
by any tenant of the Property which fees permit the tenant to
terminate its lease or otherwise abandon or vacate its leased
premises. Notwithstanding the foregoing, and provided the
Borrower named herein remains the Borrower and the Loan
Documents have not been transferred to any subsequent
Borrower, the Borrower shall have no liability as it relates
to this subparagraph as long as such fees are first used to
satisfy operating costs, debt service and any costs associated
with obtaining a new tenant in the space (including leasing
commissions and tenant improvements) for which such
termination fee was paid;
(8) loss by fire or any other casualty to the extent not
compensated by insurance proceeds collected by or remitted to
Lender, as a result of Borrower's failure to comply with the
insurance provisions of the Mortgage;
(9) the failure to return to or reimburse Lender for all Fixtures
and Personal Property (as defined in the Mortgage) owned by
Borrower taken from the Property by or on behalf of Borrower,
out of the ordinary course of business, and not replaced by
items with values equal to or greater than the values of the
Fixtures and Personal Property so removed;
(10) all court costs and Reasonable Attorneys' Fees (as hereinafter
defined) actually incurred by Lender for which Borrower is
liable pursuant to the terms of this Note or the terms of any
of the other Loan Documents;
(11) (i) the removal of any chemical, material or substance in
excess of legal limits or which is required by any
governmental entity, to which exposure is prohibited, limited
or regulated by any federal, state, county or local authority,
and which may or could pose a hazard to the health and safety
of the occupants of the Property (which substances are also
further defined in the Mortgage as "Hazardous Materials"),
regardless of the source of origination (including sources off
the Property which migrate onto the Property or its
groundwater); (ii) the restoration of the Property to comply
with all governmental regulations pertaining to Hazardous
Materials found in, on or under the Property regardless of the
source of origination (including sources off the Property
which migrate onto the Property or its groundwater); and (iii)
any indemnity or other agreement to hold Lender
7
harmless from and against any and all losses, liabilities,
damages, injuries, costs and expenses of any and every kind
arising as a result of the existence and/or removal of
Hazardous Materials and from the violation of Hazardous Waste
Laws (as defined in the Mortgage). Borrower shall not be
liable hereunder the Property becomes contaminated subsequent
to Lender's acquisition of the Property by foreclosure or
acceptance of a deed in lieu thereof, or subsequent to any
transfer of ownership of the Property which was approved or
authorized in writing by Lender pursuant to the Mortgage,
provided that such transferee assumes in writing all
obligations of Borrower under the Loan Documents pertaining to
Hazardous Materials. Liability under this subparagraph (11)
shall extend beyond repayment of the Loan and compliance with
the terms of the Note and compliance with the terms of the
Mortgage unless Borrower at such time provides Lender with an
environmental assessment report acceptable to Lender, in
Lender's reasonable discretion, showing the Property to be
free of Hazardous Materials and not in violation of Hazardous
Waste Laws. The burden of proof under this subparagraph with
regard to establishing the date upon which such Hazardous
Materials were placed or appeared in, on or under the Property
shall be upon Borrower.
Furthermore, with respect to the Borrower named herein and not to any
subsequent Borrower, Borrower shall not be liable if: (i) the Property becomes
contaminated after Lender has taken possession of the Property, either through
itself, an affiliate or by appointment of a receiver, regardless of whether or
not the Property has been conveyed or transferred to Lender; or (ii) due to the
wrongful act or omission of Lender or its affiliates or agents. In addition,
Borrower shall not be responsible for any additional damages caused by Lender's
negligent or wrongful act resulting in the exacerbation of an existing
environmental condition from and after the date Lender takes possession of the
Property;
(12) (i) any and all costs incurred in order to cause the Property
to comply with the Accessibility Laws (as defined in the
Mortgage); and (ii) any indemnity or other agreements to hold
Lender harmless from and against any and all losses,
liabilities, damages, injuries, costs or expenses of any kind
arising as a result of non-compliance with any applicable
Accessibility Laws. Borrower shall not be liable hereunder for
compliance with any Accessibility Laws that first become
effective, or for any violation of any Accessibility Laws
resulting from alterations or improvements to the Property
that are performed subsequent to Lender's acquisition of the
Property by foreclosure or acceptance of a deed in lieu
thereof or subsequent to any transfer of ownership of the
Property which was approved or authorized in writing by Lender
pursuant to the Mortgage, provided that such transferee
assumes in writing all obligations of Borrower pertaining to
any applicable Accessibility Laws pursuant to the terms of the
Loan Documents; and
(13) failure to remit to Lender any amounts under any letter of
credit (or any renewals and/or replacements thereof) supplied
by Borrower to Lender in connection with
8
the Loan, the Note or any of the other Loan Documents in the
event that the bank issuing such letter of credit becomes
insolvent, files or has filed against it any bankruptcy or
similar proceeding or is closed (either temporarily or
permanently), or placed in receivership, conservatorship or
liquidation by the Federal Deposit Insurance Corporation,
Resolution Trust Corporation or any other governmental or
quasi-governmental entity or otherwise fails or refuses to
honor such letter of credit.
The obligations of Borrower in subparagraphs (1) through (13) above,
except as specifically provided in subparagraphs (11) and (12), shall survive
the repayment by foreclosure or by Lender's acceptance of a deed in lieu of
foreclosure of the Loan evidenced by this Note, and satisfaction of the
Mortgage.
Full Recourse:
Notwithstanding any provisions in this Note to the contrary including
without limitation, the provisions set forth in the section captioned
"Exculpation" hereinabove, Borrower and the general partners of Borrower shall
be personally liable, jointly and severally, for the entire indebtedness
evidenced by this Note (including all principal, interest and other charges) in
the event (i) Borrower violates the covenant governing the placing of
subordinate financing on the Property as set forth in Paragraph 31 of the
Mortgage; or (ii) Borrower violates the covenant restricting transfers of
interest in the Property or transfers of ownership interests in Borrower as set
forth in Paragraph 30 of the Mortgage; or (iii) there is filed against Borrower
or any guarantor or indemnitor of the Loan, a petition in bankruptcy or for the
appointment of a receiver, or there commences under any bankruptcy or insolvency
law, proceedings for Borrower's relief, or for the compromise, extension,
arrangement or adjustment of Borrower's obligations which becomes a final,
nonappealable judgment or if Borrower voluntarily files a petition in bankruptcy
or initiates a similar action. .
Waiver of Jury Trial:
Borrower hereby waives, to the fullest extent permitted by law, any
right Borrower may have to trial by jury in any legal action, proceeding or
counterclaim, whether in contract, tort or otherwise, relating directly or
indirectly to the indebtedness evidenced by this Note, the application or
commitment for the Loan evidenced by this Note, the interpretation,
construction, validity, enforcement or performance of this Note or any of the
other Loan Documents; or any acts or omission of Lender, its officers,
employees, directors or agents in connection with any of the foregoing.
Captions:
The captions set forth at the beginning of the various paragraphs of
this Note are for convenience only and shall not be used to interpret or
construe the provisions of this Note.
9
Attorney's Fees:
As used herein, the phrase "Reasonable Attorneys' Fees" shall mean fees
charged by attorneys selected by Lender based upon such attorneys' then
prevailing hourly rates as opposed to any statutory presumption specified by any
statute then in effect in the State of Florida.
Applicable Laws:
The terms and conditions of this Note shall be governed by and
construed in accordance with the laws of the state in which the Property is
located (excluding such state's conflicts of law provisions), and, if
controlling, by the laws of the United States of America.
Modifications:
This Note may not be amended or modified except by an agreement in
writing signed by the party against whom enforcement is sought.
Time of the Essence:
In connection with the Loan and this Note, time shall be of the
essence.
Successors and Assigns:
The terms, conditions, obligations and liabilities of this Note shall
be binding upon Borrower, its heirs, personal representatives, successors and
assigns, and shall inure to the benefit of Lender, its successors and assigns.
If Borrower is comprised of more than one person or entity, then the liability
of each such person and entity hereunder shall be joint and several.
Authorization:
By its signature below, Borrower represents and warrants that the Loan
transaction contemplated by this Note, the Contract and any of the other Loan
Documents have been properly authorized by Borrower's governing or managing
body, and that the person(s) signing on behalf of Borrower has(have) been duly
authorized to sign for, and hereto bind, the Borrower.
[SIGNATURES BEGIN ON THE NEXT PAGE]
10
IN WITNESS WHEREOF, Borrower has executed this Note under seal as of
the day and year first above written.
RAMCO-XXXXXXXXXX PROPERTIES, L.P.,
a Delaware limited partnership
By: RAMCO-XXXXXXXXXX PROPERTIES
TRUST, a Maryland real estate
investment trust
By:
--------------------------
Name:
------------------------
Its:
-------------------------
(CORPORATE SEAL)
Borrower's Address:
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Borrower's FEI#: 00-0000000
11
