Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture Filing (Kane County, Illinois)
EXHIBIT 10.4
Prepared by and after recording
return document to:
return document to:
Stoel Rives LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Loan No. 700218 & 700218A
Mortgage, Security Agreement, Assignment of Leases
and Rents, and Fixture Filing
(Xxxx County, Illinois)
and Rents, and Fixture Filing
(Xxxx County, Illinois)
This Mortgage, Security Agreement, Assignment of Leases and Rents, and Fixture Filing (this
“Mortgage”) is made and given as of the 7th day of February, 2008, by XXXX X. XXXXXXXXXX & SON,
INC., a Delaware corporation, as Mortgagor, whose address is 0000 Xxxxx Xxxxxxx Xxxx, Mail Code -
2NW-EX, Xxxxx, Xxxxxxxx 00000 (the “Borrower”), to TRANSAMERICA LIFE INSURANCE COMPANY, an Iowa
corporation, as Mortgagee, having an office c/o AEGON USA Realty Advisors, Inc., 0000 Xxxxxxxx
Xxxx, X.X., Xxxxx Xxxxxx, Xxxx 00000-0000, and its successors and assigns (the “Lender”). The
definitions of capitalized terms used in this Mortgage may be found either in Section 3
below, or through the cross-references provided in that Section.
| 1. | RECITALS |
| A. | Under the terms of a Second Revised Agricultural Mortgage Loan Application/Commitment dated January 31, 2008 (the “Commitment”), AEGON USA Realty Advisors, Inc. (“AEGON”), as agent for the Lender, agreed to fund a loan in the original principal amount of Forty-five Million Dollars ($45,000,000) (the “Loan”) bearing interest as provided in the Notes (hereinafter defined) and maturing on March 1, 2023. | ||
| B. | The Commitment requires that the Loan be secured by all of the Borrower’s existing and after-acquired interest in certain real property and by certain tangible and intangible personal property. |
| 2. | GRANTING CLAUSE | |
| To secure the repayment of the Indebtedness, any increases, modifications, renewals or extensions of the Indebtedness, and any substitutions for the Indebtedness, as well as the performance of the Borrower’s other Obligations, and in consideration of the sum of Ten Dollars ($10.00) and other valuable consideration, the receipt and sufficiency of which are acknowledged, the Borrower mortgages, grants, bargains, warrants, conveys, alienates, releases, |
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| assigns, sets over and confirms to the Lender, and to its successors and assigns forever, all of the Borrower’s existing and after acquired interests in the Real Property. | ||
| 3. | DEFINED TERMS | |
| The following defined terms are used in this Mortgage. For ease of reference, terms relating primarily to the Security Agreement are defined in Subsection 19.1. | ||
| an “Affiliate” of any person means any entity controlled by, or under common control with, that person. | ||
| “Appurtenances” means all rights, estates, titles, interests, privileges, easements, tenements, hereditaments, titles, royalties, reversions, remainders and other interests, whether presently held by the Borrower or acquired in the future, that may be conveyed as interests in the Land under the laws of Illinois. Appurtenances include the Easements and the Assigned Rights. | ||
| “Assigned Rights” means all of the Borrower’s rights, easements, privileges, tenements, hereditaments, contracts, claims, licenses or other interests, whether presently existing or arising in the future, which, in each case, pertain to the Real Property. The Assigned Rights include all of the Borrower’s rights in and to: |
| (i) | any greater estate in the Real Property; | ||
| (ii) | insurance policies required to be carried hereunder with respect to the Real Property, including the right to negotiate claims and to receive Insurance Proceeds and unearned insurance premiums with respect to insurance policies regarding the Real Property (except as expressly provided in Subsection 8.1); | ||
| (iii) | Condemnation Proceeds; | ||
| (iv) | licenses and agreements permitting the use of sources of groundwater or water utilities, septic xxxxx fields, railroad sidings, sewer lines, means of ingress and egress; | ||
| (v) | drainage over other property; | ||
| (vi) | air space above the Land; | ||
| (vii) | mineral rights and water rights; | ||
| (viii) | party walls; | ||
| (ix) | vaults and their usage; | ||
| (x) | franchises; | ||
| (xi) | commercial tort claims that arise during the Loan term in respect of damages to the Real Property or to its operations, in respect of any impairment to the value of the Real Property, or in respect of the collection of any Rents; | ||
| (xii) | construction contracts; | ||
| (xiii) | roof and equipment guarantees and warranties; | ||
| (xiv) | building and development licenses and permits; | ||
| (xv) | tax credits or other governmental entitlements, credits or rights, whether or not vested with respect to the Real Property; |
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| (xvi) | licenses and applications (whether or not yet approved or issued) with respect to the Property; | ||
| (xvii) | rights under management and service contracts with respect to the Property; | ||
| (xviii) | leases of Fixtures; and | ||
| (xix) | agreements with architects, environmental consultants, property tax consultants, engineers, and any other third party contractors whose services benefit the Real Property. |
| “Bankruptcy Code” means the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. Sections 101 et seq., and the regulations promulgated pursuant to those statutes. | ||
| “Business Day” means any day when state and federal banks are open for business in Cedar Rapids, Iowa. | ||
| “Condemnation Proceeds” means all money or other property that has been, or is in the future, awarded or agreed to be paid or given in connection with any taking by eminent domain of all or any part of the Real Property (including a taking through the vacation of any street dedication or through a change of grade of such a street), either permanent or temporary, or in connection with any purchase in lieu of such a taking, or as a part of any related settlement. | ||
| “Curable Nonmonetary Default” means any of the acts, omissions, or circumstances specified in Subsection 9.3 below. | ||
| “Default” means any of the acts, omissions, or circumstances specified in Section 9 below. | ||
| “Default Rate” means the rate of interest specified as the “Default Interest Rate” in the Notes. | ||
| “Development Agreements” means all development, utility or similar agreements included in the Permitted Encumbrances. | ||
| “Easements” means the Borrower’s existing and future interests in and to the declarations, easements, covenants, and restrictions appurtenant to the Land. | ||
| “Environmental Indemnity Agreement” means the Environmental Indemnity Agreement by the Borrower for the benefit of Lender dated as of even date herewith. | ||
| “Environmental Laws” means all present and future laws, statutes, ordinances, rules, regulations, orders, guidelines, rulings, decrees, notices and determinations of any Governmental Authority to the extent that they pertain to: (A) the protection of health against environmental hazards; (B) the protection of the environment, including air, soils, wetlands, and surface and underground water, from contamination by any substance that may have any adverse health effect on humans, livestock, fish, wildlife, or plant life, or which may disturb an ecosystem; (C) underground storage tank regulation or removal; (D) wildlife conservation; (E) protection or regulation of natural resources; (F) the protection of wetlands; (G) management, regulation and disposal of solid and hazardous wastes; (H) radioactive materials; (I) biologically hazardous materials; (J) indoor air quality; or (K) the manufacture, possession, presence, use, generation, storage, transportation, treatment, release, emission, discharge, disposal, abatement, cleanup, removal, remediation or handling of any Hazardous Substances. “Environmental Laws” include the Comprehensive Environmental Response, Compensation, and Liability Act, as amended by the |
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| Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §9601 et seq., the Resource Conservation and Xxxxxxxx Xxx, 00 X.X.X. §0000 et seq., the Federal Water Pollution Control Act, as amended by the Clean Xxxxx Xxx, 00 X.X.X. §0000 et seq., the Clean Air Act, 42 U.S.C. §7401 et seq., the Toxic Substances Xxxxxxx Xxx, 00 X.X.X. §0000 et seq., all similar state statutes and local ordinances, and all regulations promulgated under any of those statutes, and all administrative and judicial actions respecting such legislation, all as amended from time to time. | ||
| “ESA” means the written environmental site assessment of the Real Property obtained under the terms of the Commitment. | ||
| “Fixtures” means all materials, supplies, goods, equipment, apparatus and other items now or hereafter attached to or installed on the Land and Improvements in a manner that causes them to become fixtures under the laws of Illinois, including all built-in or attached furniture or appliances, machinery, elevators, escalators, heating, ventilating and air conditioning system components, emergency electrical generators and related fuel storage or delivery systems, septic system components, built-in loading, storage and processing equipment, storm windows, doors, built-in electrical equipment, plumbing, water conditioning, lighting, cleaning, snow removal, lawn, landscaping, irrigation, security, incinerating, fire-fighting, sprinkler or other fire safety equipment, xxxxx, irrigation and wastewater equipment, built-in bridge cranes or other installed materials handling equipment, satellite dishes or other built-in telecommunication equipment, built-in video conferencing equipment, sound systems or other built-in audiovisual equipment, and cable television distribution systems. Fixtures do not include (A) trade fixtures, office furniture and office equipment; (B) racking systems; (C) machinery and equipment not specifically described above as constituting a Fixture; or (D) rolling stock. Without limiting the foregoing, Fixtures expressly include HVAC, mechanical, security and similar systems of general utility for the operation of the Improvements as leasable commercial real property and as a warehouse and processing facility. | ||
| “Governmental Authority” means any political entity with the legal authority to impose any requirement on the Property, including the governments of the United States, the State of Illinois, Xxxx County, the Township of Dundee, and any other entity with jurisdiction to decide, regulate, or affect the ownership, construction, use, occupancy, possession, operation, maintenance, alteration, repair, demolition or reconstruction of any portion or element of the Real Property. | ||
| “Hazardous Substance” means any substance the release of or the exposure to which is prohibited, limited or regulated by any Environmental Law, or which poses a hazard to human health, including: (A) any “oil,” as defined by the Federal Water Pollution Control Act and regulations promulgated thereunder (including crude oil or any fraction of crude oil), (B) any radioactive substance and (C) Stachybotrys chartarum or other molds. However, the term “Hazardous Substance” includes neither (i) a substance used in the ordinary course of the business conducted on the Real Property in accordance with the covenants herein contained by the Borrower or by a tenant under a permitted Lease, or used in the cleaning and maintenance of the Real Property, if the quantity, storage and manner of its use are customary, prudent, and do not violate applicable law, nor (ii) automotive motor oil in immaterial quantities, if leaked from vehicles in the ordinary course of the operation of the Real Property and cleaned up in accordance with reasonable property management procedures and in a manner that violates no applicable law. | ||
| “Impositions” means all real and personal property taxes levied against the Property; general or special assessments; ground rent; water, gas, sewer, vault, electric or other utility charges; |
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| common area charges; owners’ association dues or fees; fees for any easement, license or agreement maintained for the benefit of the Property; and any and all other taxes, levies, user fees, claims, charges and assessments whatsoever that at any time may be assessed, levied or imposed on the Property or upon its ownership, use, occupancy or enjoyment, and any related costs, interest or penalties. In addition, “Impositions” include all documentary, stamp or intangible personal property taxes that may become due in connection with the Indebtedness, including Indebtedness in respect of any future advance made by the Lender to the Borrower, or that are imposed on any of the Loan Documents. | ||
| “Improvements” means, to the extent of the Borrower’s existing and future interest, all buildings and improvements of any kind erected or placed on the Land now or in the future, including the Fixtures, together with all appurtenant rights, privileges, Easements, tenements, hereditaments, titles, reversions, remainders and other interests. | ||
| “Indebtedness” means all sums that are owed or become due pursuant to the terms of the Notes, this Mortgage, or any of the other Loan Documents, including scheduled principal payments, scheduled interest payments, default interest, late charges, prepayment premiums, accelerated or matured principal balances, advances, collection costs (including reasonable attorneys’ fees), reasonable attorneys’ fees and costs in enforcing or protecting the Notes, the Mortgage, or any of the other Loan Documents in any probate, bankruptcy or other proceeding, receivership costs and all other financial obligations of the Borrower incurred in connection with the Loan transaction pursuant to the Loan Documents, provided, however, that this Mortgage shall not secure any Loan Document or any particular person’s liabilities or obligations under any Loan Document to the extent that such Loan Document expressly states that it or such particular person’s liabilities or obligations are unsecured by this Mortgage. Indebtedness shall also include any obligations under agreements executed and delivered by Borrower which specifically provide that such obligations are secured by this Mortgage. | ||
| “Insurance Premiums” means all premiums or other charges required to maintain in force any and all insurance policies that this Mortgage requires that the Borrower maintain. | ||
| “Insurance Proceeds” means all Proceeds of all insurance now or hereafter carried by or payable to the Borrower with respect to the Property, including with respect to the interruption of Rents derived from the Property, all unearned insurance premiums with respect to the Property and all related claims or demands. | ||
| “Land” means that certain tract of land located in the Township of Dundee, Xxxx County, Illinois, which is described on the attached Exhibit A, together with the Appurtenances. | ||
| “Leasing Action” means all executions, modifications, terminations and extensions of Leases, and all other actions taken by the Borrower in exercising its rights as landlord under the Leases. | ||
| “Leases” means all leases, subleases, licenses, concessions, extensions, renewals and other agreements (whether written or oral, and whether presently effective or made in the future) through which the Borrower grants any possessory interest in and to, or any right to occupy or use, all or any part of the Real Property, and any related guaranties. |
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| “Legal Requirements” means all laws, statutes, rules, regulations, ordinances, judicial decisions, administrative decisions, building permits, development permits, certificates of occupancy, or other requirements of any Governmental Authority. | ||
| “Loan Agreement” means the Loan Agreement executed as of even date herewith between Borrower and Lender. | ||
| “Loan Documents” means the Notes, the Loan Agreement, this Mortgage, the other Mortgages described in the Loan Agreement and all other documents evidencing the Loan, whether entered into at the closing of the Loan or in the future, as amended in writing from time to time. | ||
| “Maximum Permitted Rate” means the highest rate of interest permitted to be paid or collected by applicable law with respect to the Loan. | ||
| “Notes” means (i) the Promissory Note dated of even date herewith in the original principal amount of Thirty-Six Million Dollars ($36,000,000) evidencing Tranche A of the Indebtedness; and (ii) the Promissory Note dated of even date herewith in the original principal amount of Nine Million Dollars ($9,000,000) evidencing Tranche B of the Indebtedness, together with all extensions, renewals and modifications thereof. | ||
| “Notice” means a notice given in accordance with the provisions of Subsection 21.13. | ||
| “Obligations” means all of the obligations required to be performed under the terms and conditions of any of the Loan Documents by any Obligor. | ||
| “Obligor” means the Borrower, or any other Person that is liable under the Loan Documents for the payment of any portion of the Indebtedness, or the performance of any other obligation required to be performed under the terms and conditions of any of the Loan Documents, under any circumstances. | ||
| “Participations” means participation interests in the Loan Documents granted by the Lender. | ||
| “Permitted Encumbrances” means (A) the lien of taxes and assessments not yet due and payable, (B) the liens and security interests in favor of Lender created by the Loan Documents, (C) Leases permitted under the terms of this Mortgage, which shall include the Leases identified in the rent roll attached to the Closing Certificate executed as one of the Loan Documents; and (D) those matters listed as special exceptions in the Lender’s title insurance policy insuring the priority of this Mortgage. | ||
| “Person” means any individual, corporation, limited liability company, partnership, trust, unincorporated association, government, governmental authority or other entity. | ||
| “Property” means the Real Property and the Leases, Rents and Personal Property (as defined in Subsection 19.1 below). | ||
| “Real Property” means the Land and the Improvements. | ||
| “Rents” means all rents, income, receipts, issues and profits and other benefits paid or payable for using, leasing, licensing, possessing, operating from or in, residing in, selling, mining, extracting |
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| minerals from, or otherwise enjoying the Real Property as commercial real estate (but not any such income, receipts, issues, profits or other benefits arising from the specific business operations of Borrower and/or its subsidiaries), whether presently existing or arising in the future, to which the Borrower may now or hereafter become entitled or may demand or claim from the commencement of the Loan term through the time of the satisfaction of all of the Obligations, including security deposits, amounts drawn under letters of credit securing tenant obligations, minimum rents, additional rents, common area maintenance charges, parking revenues, deficiency rents, termination payments, space contraction payments, damages following default under a Lease, premiums payable by tenants upon their exercise of cancellation privileges, proceeds from lease guarantees, proceeds payable under any policy of insurance covering loss of rents resulting from untenantability caused by destruction or damage to the Real Property, all rights and claims of any kind which the Borrower has or may in the future have against the tenants under the Leases, lease guarantors, or any subtenants or other occupants of the Real Property, all proceeds of any sale of the Real Property in violation of the Loan Documents, any future award granted the Borrower in any court proceeding involving any such tenant in any bankruptcy, insolvency, or reorganization proceedings in any state or federal court, and any and all payments made by any such tenant in lieu of rent. | ||
| “Restoration” means (A) in the case of a casualty resulting in damage to or the destruction of the Improvements, the repair or rebuilding of the Improvements to their original condition, or (B) in the case of the condemnation of a portion of the Real Property, the completion of such work as may be necessary in order to remedy the effects of the condemnation so that the value and income-generating characteristics of the Real Property are restored. | ||
| 4. | TITLE | |
| The Borrower represents to and covenants with the Lender that, at the point in time of the grant of the lien created by this Mortgage, the Borrower is well seized of good and indefeasible title to the Real Property, in fee simple absolute, subject to no lien or encumbrance except the Permitted Encumbrances. The Borrower warrants this estate and title to the Lender forever, against all lawful claims and demands of all persons. The Borrower shall maintain mortgagee title insurance issued by a solvent carrier, covering the Real Property in an amount at least equal to the amount of the Loan’s original principal balance. This Mortgage is and shall remain a valid and enforceable first lien on the Real Property, and if the validity or enforceability of this first lien is attacked by appropriate proceedings, the Borrower shall diligently and continuously defend it through appropriate proceedings. Should the Borrower fail to do so, the Lender may at the Borrower’s expense take all necessary action, including the engagement and compensation of legal counsel, the prosecution or defense of litigation, and the compromise or discharge of claims. The Borrower shall defend, indemnify and hold the Lender harmless in any suit or proceeding brought to challenge or attack the validity, enforceability or priority of the lien granted by this Mortgage. If a prior construction, mechanics’ or materialmen’s lien on the Real Property arises by operation of statute during any construction or repair of the Improvements, the Borrower shall either cause the lien to be discharged by paying when due any amounts owed to such persons, or shall comply with Section 11 of this Mortgage. | ||
| 5. | REPRESENTATIONS OF THE MORTGAGOR |
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| The Borrower represents to the Lender as follows: |
| 5.1 | Formation, Existence, Good Standing | ||
| The Borrower is a corporation duly organized, validly existing and in good standing under the laws of Delaware and has obtained all licenses and permits and filed all statements of fictitious name and registrations necessary for the lawful operation of its business in Delaware. | |||
| 5.2 | Qualification to Do Business | ||
| The Borrower is qualified to do business as a foreign corporation under the laws of Illinois and has obtained all licenses and permits and filed all statements of fictitious name and registrations necessary for the lawful operation of its business in Illinois. | |||
| 5.3 | Power and Authority | ||
| The Borrower has full power and authority to carry on its business as presently conducted, to own the Property, to execute and deliver the Loan Documents, and to perform its Obligations. | |||
| 5.4 | Anti-Terrorism Regulations | ||
| No Borrower or Borrower Affiliate is a “Specially Designated National” or a “Blocked Person” as those terms are defined in the Office of Foreign Asset Control Regulations (31 CFR Section 500 et seq.). | |||
| 5.5 | Due Authorization | ||
| The Loan transaction and the performance of all of the Borrower’s Obligations have been duly authorized by all requisite corporate action, and each individual executing any Loan Document on behalf of the Borrower has been duly authorized to do so. | |||
| 5.6 | No Default or Violations | ||
| The execution and performance of the Borrower’s Obligations will not result in any breach of, or constitute a default under, any contract, agreement, document or other instrument to which the Borrower is a party or by which the Borrower may be bound or affected, and do not and will not violate or contravene any law to which the Borrower is subject; nor do any such other instruments impose or contemplate any obligations which are or will be inconsistent with the Loan Documents. | |||
| 5.7 | No Further Approvals or Actions Required | ||
| No approval by, authorization of, or filing with any federal, state or municipal or other governmental commission, board or agency or other governmental authority is necessary in connection with the authorization, execution and delivery of the Loan Documents by the Borrower. | |||
| 5.8 | Due Execution and Delivery | ||
| Each of the Loan Documents to which the Borrower is a party has been duly executed and delivered on behalf of the Borrower. |
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| 5.9 | Legal, Valid, Binding and Enforceable | ||
| Each of the Loan Documents to which the Borrower is a party constitutes the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms. | |||
| 5.10 | Accurate Financial Information | ||
| All financial information furnished by the Borrower to the Lender in connection with the application for the Loan is true, correct and complete in all material respects and does not omit to state any fact or circumstance necessary to make the statements in them not misleading in any material respect, and there has been no material adverse change in the financial condition of the Borrower since the date of such financial information. | |||
| 5.11 | Compliance with Legal Requirements | ||
| All governmental approvals and licenses required for the conduct of the Borrower’s business and for the maintenance and operation of the Real Property in compliance with applicable law are in full force and effect, and the Real Property is currently being operated in compliance with the Legal Requirements in all material respects. | |||
| 5.12 | Contracts and Franchises | ||
| All contracts and franchises necessary for the conduct of the Borrower’s business and for the operation of the Real Property in accordance with good commercial practice are in force. | |||
| 5.13 | No Condemnation Proceeding | ||
| As of the date of this Mortgage, the Borrower has no knowledge of any present, pending or threatened condemnation proceeding or award affecting the Real Property. | |||
| 5.14 | No Casualty | ||
| As of the date of this Mortgage, no damage to the Real Property by any fire or other casualty has occurred, other than damage that has been completely repaired in accordance with good commercial practice and in compliance with applicable law. | |||
| 5.15 | Independence of the Real Property | ||
| The Real Property may be operated independently from other land and improvements not included within or located on the Land, and it is not necessary to own or control any property other than the Real Property in order to meet the obligations of the landlord under any Lease, or in order to comply with the Legal Requirements. | |||
| 5.16 | Complete Lots and Tax Parcels | ||
| The Land is comprised exclusively of tax parcels that are entirely included within the Land, and, if the Land is subdivided, of subdivision lots that are entirely included within the Land. |
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| 5.17 | Ownership of Fixtures | ||
| The Borrower owns the Fixtures free of any encumbrances, including purchase money security interests, rights of lessors, and rights of sellers under conditional sales contracts or other financing arrangements. | |||
| 5.18 | Real Property is not Homestead Property | ||
| The Real Property is NOT HOMESTEAD PROPERTY of the Borrower or of the spouse of any person named as the Borrower. | |||
| 5.19 | Performance under Development Agreements | ||
| To the best of Borrower’s knowledge, all of the obligations of the owner of the Real Property due under the Development Agreements have been fully, timely and completely performed to the extent required thereunder and such performance has been accepted by the related governmental agency or utility company, and Borrower has received no notice by any Governmental Authority that any default exists under any of the Development Agreements. | |||
| 5.20 | Status of Certain Title Matters | ||
| To Borrower’s knowledge, neither Borrower nor any tenant under the Leases is in material default under the terms of any Easement. | |||
| 5.21 | No Prohibited Transactions | ||
| The Borrower represents to the Lender that either (a) the Borrower is not an “employee benefit plan” within the meaning of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is subject to Title I of ERISA, a “plan” within the meaning of Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), or an entity that is deemed to hold “plan assets” within the meaning of 29 C.F.R. §2510.3-101 of any such employee benefit plan or (b) the entering into of the Loan Documents, the acceptance of the Loan by the Borrower and the existence of the Loan will not result in a non-exempt prohibited transaction under §406 of ERISA or Section 4975 of the Code. The Borrower further warrants and covenants that the foregoing representation will remain true during the term of the Loan. |
| 6. | COVENANTS |
| 6.1 | Good Standing | ||
| The Borrower shall remain in good standing as a corporation under the laws of Delaware and shall maintain in force any statements of fictitious name and registrations necessary to remain in good standing as a corporation under the laws of the State of Delaware during the term of the Loan. | |||
| 6.2 | Qualification to Do Business | ||
| The Borrower shall remain qualified to do business as a foreign corporation under the laws of Illinois and shall maintain in force any statements of fictitious name and registrations necessary to remain in good standing as a corporation under the laws of the |
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| State of Illinois during the term of the Loan. The Borrower shall also maintain in force any licenses and permits, filings and statements of fictitious name and registrations necessary for the lawful operation of its business in Illinois. | |||
| 6.3 | No Default or Violations | ||
| The Borrower shall not enter into any contract, agreement, document or other instrument, if the performance of the Borrower’s Obligations would result in any breach of, or constitute a default under, any such contract, agreement, document or other instrument, or if the contract, agreement, document or other instrument would impose any obligations the performance of which would result in a Default under the Loan Documents. | |||
| 6.4 | Payment and Performance | ||
| The Borrower shall pay the Indebtedness and perform all of its other Obligations, as and when the Loan Documents require such payment and performance. | |||
| 6.5 | Payment of Impositions | ||
| The Borrower shall pay the Impositions on or before the last day on which they may be paid without penalty or interest, and shall, within thirty (30) days, furnish the Lender with a paid receipt or a cancelled check as evidence of payment. If the Lender does not receive such evidence, the Lender may obtain it directly. If it does so, the Lender will charge the Borrower an administrative fee of Two Hundred Fifty Dollars ($250) for securing the evidence of payment. The payment of this fee shall be a demand obligation of the Borrower. If the Borrower wishes to contest the validity or amount of an Imposition, it may do so by complying with Section 11. If any new Legal Requirement (other than a general tax on income or on interest payments) taxes the Mortgage so that the yield on the Indebtedness would be reduced, and the Borrower may lawfully pay the tax or reimburse the Lender for its payment, the Borrower shall do so. | |||
| 6.6 | Maintenance of the Real Property | ||
| The Borrower shall not commit or permit any waste of the Real Property as a physical or economic asset, and agrees to maintain (or cause to be maintained) in good repair the Improvements, including structures, roofs, mechanical systems, parking lots or garages, and other components of the Real Property that are necessary or desirable for the use of the Real Property, or which the Borrower as landlord under any Lease is required to maintain for the benefit of any tenant. In its performance of this Obligation, the Borrower shall promptly and in a good and workmanlike manner repair or restore, as required under Subsection 6.16, any elements of the Improvements that are damaged or destroyed. The Borrower shall also replace roofs, parking lots, mechanical systems, and other elements of the Improvements requiring periodic replacement. The Borrower shall carry out such replacements no less frequently than would a commercially reasonable owner of properties of a similar use, value, age, nature and construction. The Borrower shall not, without the prior written consent of the Lender, which consent shall not be unreasonably withheld, demolish, reconfigure, or materially alter the structural elements of the Improvements, unless such an action is the obligation of the Borrower under a Lease approved by Lender or for which the Lender’s approval is not required. The Lender agrees that any request for its consent to such an action shall be deemed given if the Lender does not respond within fifteen (15) Business Days to any written request for such |
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| a consent, if the request is accompanied by all materials required to permit the Lender to analyze the proposed action. | |||
| 6.7 | Use of the Real Property | ||
| The Borrower agrees that the Real Property may only be used as a commercial property and industrial processing facility and distribution warehouse and its related office building, for ancillary uses related thereto and for no other purpose. | |||
| 6.8 | Legal Requirements | ||
| The Borrower shall maintain in full force and effect all governmental approvals and material permits and licenses required for the conduct of the Borrower’s business and for the maintenance and operation of the Real Property in compliance with applicable law, and shall comply in all material respects with all Legal Requirements relating to the Real Property at all times. | |||
| 6.9 | Contracts and Franchises | ||
| The Borrower shall maintain in force all material contracts and franchises necessary for the conduct of the Borrower’s business and for the operation of the Real Property in accordance with good commercial practice. | |||
| 6.10 | Covenants Regarding Certain Title Matters | ||
| The Borrower shall promptly pay, perform and observe all of its obligations under the Easements included within the Appurtenances or under reciprocal easement agreements, operating agreements, declarations, and restrictive covenants included in the Permitted Encumbrances, shall not modify or consent to the termination of any of them without the prior written consent of the Lender, shall promptly furnish the Lender with copies of all notices of default under them, and shall enforce all covenants and conditions under them and benefiting the Real Property. | |||
| 6.11 | Independence of the Real Property | ||
| The Borrower shall maintain the independence of the Real Property from other land and improvements not included within or located on the Land. In fulfilling this covenant, the Borrower shall neither take any action which would make it necessary to own or control any property other than the Real Property in order to meet the obligations of the landlord under any Lease, or in order to comply with the Legal Requirements, nor take any action which would cause any land or improvements other than the Land and the Improvements to rely upon the Land or the Improvements for those purposes. | |||
| 6.12 | Complete Lots and Tax Parcels | ||
| The Borrower shall take no action that would result in the inclusion of any portion of the Land in a tax parcel or subdivision lot that is not entirely included within the Land. | |||
| 6.13 | Real Property is not Homestead Property | ||
| The Real Property shall NOT BECOME HOMESTEAD PROPERTY of the Borrower or of the spouse of any person named as the Borrower. |
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| 6.14 | Performance under Development Agreements | ||
| The Borrower shall fully, timely and completely perform all of the obligations of the owner of the Real Property due under the Development Agreements and shall cause no default under any of the Development Agreements. | |||
| 6.15 | Status of Certain Title Matters | ||
| The Borrower shall not take or fail to take any action with respect to the Easements included within the Appurtenances or the reciprocal easement agreements, operating agreements, declarations, and restrictive covenants included in the Permitted Encumbrances if, as the result of such an action or failure, the subject Easement or other title matter would (a) be rendered invalid or without force or effect, (b) be amended or supplemented without the consent of the Lender, (c) be placed in default or alleged default, (d) result in any lien against the Real Property, or (e) give rise to any assessment against the Real Property, unless immediately paid in full. | |||
| 6.16 | Restoration upon Casualty or Condemnation | ||
| If a casualty or condemnation occurs, the Borrower shall promptly commence the Restoration of the Real Property, to the extent that the Lender has made Insurance Proceeds or Condemnation Proceeds available to the Borrower for such Restoration. | |||
| 6.17 | Performance of Landlord Obligations | ||
| The Borrower shall perform, in all material respects, its obligations as landlord under the Leases. The Borrower shall not, without the Lender’s written consent, which consent shall not be unreasonably withheld, or except as otherwise provided in Section 13 below, extend, modify, terminate, or enter into any Lease of the Real Property. | |||
| 6.18 | Financial Reports and Operating Statements |
| (a) | Maintenance of Books and Records | ||
| During the term of the Loan, the Borrower shall maintain complete and accurate accounting and operational records, including copies of all Leases and other material written contracts relating to the Real Property, copies of all tax statements, and evidence to support the payment of all material property-related expenses. | |||
| (b) | Delivery of Financial and Property-Related Information | ||
| Within one hundred twenty (120) days after the end of each of its fiscal years, or, if a Default exists, on demand by the Lender, and within sixty (60) days after the end of each fiscal quarter, the Borrower shall deliver to the Lender (A) copies of the financial statements of the Borrower and its Affiliates, including balance sheets and earnings statements, and (B) a complete and accurate operating statement for the Real Property, all in form satisfactory to the Lender. The annual financial statements shall include a complete rent roll certified by the Borrower to be true and correct and must include each tenant’s name, premises, square footage, rent, lease expiration date, renewal options and related rental rates, delinquencies and vacancies and the existence of any unsatisfied landlord obligations, e.g. in respect of free rent periods, unfinished tenant improvements or other leasing costs. If the Borrower fails to deliver the items required in this |
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| Subsection, then subject to the Notice and cure period set forth in Subsection 6.18(c) below, the Lender may engage an accounting firm to prepare the required items. The Borrower shall cooperate fully with any investigative audit required to permit the accounting firm to produce these items, and the fees and expenses incurred in connection with their preparation shall be paid on demand by the Borrower. | |||
| (c) | Effect of Failure to Deliver Financial and Property Reports | ||
| If no Default exists and the Borrower fails to provide the financial and property reports required under this Section within one hundred twenty (120) days of the close of any fiscal year, the Lender will provide a Notice of this failure and a thirty (30)-day opportunity to cure before a Default shall exist. | |||
| (d) | Certification of Information | ||
| The annual financial and operating statements provided under this Subsection shall be certified by an independent certified public accountant as having been prepared in accordance with generally accepted accounting principles, consistently applied, or, in the case of financial statements prepared on a cash or income tax basis, or of operating statements, as not materially misleading based on an audit conducted in accordance with generally accepted auditing standards. The quarterly financial and operating statements provided under this Subsection need not be audited. The Borrower shall, however certify that such statements are true and correct. |
| 6.19 | Estoppel Statements |
| Upon request by the Lender, the Borrower shall, within ten (10) Business Days of Notice of the request, furnish to the Lender or to whom it may direct, a written statement acknowledging the amount of the Indebtedness and disclosing whether any offsets or defenses exist against the Indebtedness. |
| 6.20 | Prohibition on Certain Distributions | ||
| If a Default exists or would occur as a result, the Borrower shall not pay any dividend or make any partnership, trust or other distribution, and shall not make any payment or transfer any property in order to purchase, redeem or retire any interest in its beneficial interests or ownership. | |||
| 6.21 | Use of Loan Proceeds | ||
| The Loan proceeds shall be used solely for business and commercial purposes. | |||
| 6.22 | Prohibition on Cutoff Notices | ||
| The Borrower shall not issue any Notice to the Lender to the effect that liens on the Real Property after the date of the Notice will enjoy priority over the lien of this Mortgage. | |||
| 6.23 | Prohibited Person Compliance | ||
| Borrower warrants, represents and covenants that neither Borrower nor any Obligor nor any of their respective Affiliates is or will be an entity or person (i) that is listed in the Annex to, or is otherwise subject to the provisions of, Executive Order 13224 issued on September 00, 0000 (“XX00000”), (xx) whose name appears on the United States |
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| Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designated National and Blocked Persons” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:xxx.xxxxx.xxx/xxxx/x00xxx.xxx), (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in EO 13224, or (iv) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in subparts [i] — [iv] above are herein referred to as a “Prohibited Person”). Borrower covenants and agrees that neither Borrower, nor any Obligor nor any of their respective Affiliates will (i) knowingly conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services to or for the benefit of a Prohibited Person, or (ii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in EO13224. Borrower further covenants and agrees to deliver (from time to time) to Lender any such certification or other evidence as may be requested by Lender in its sole and absolute discretion, confirming that (i) neither Borrower nor any Obligor is a Prohibited Person and (ii) neither Borrower nor any Obligor has knowingly engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person. |
| 7. | INSURANCE REQUIREMENTS | |
| At all times until the Indebtedness is paid in full, the Borrower shall maintain insurance coverage and administer insurance claims in compliance with this Section. |
| 7.1 | Required Coverages |
| (a) | Open Perils/Special Form/Special Perils Property | ||
| The Borrower shall maintain “Open Perils,” “Special Form,” or “Special Perils” property insurance coverage in an amount not less than one hundred percent (100%) of the replacement cost of all insurable elements of the Real Property and of all tangible Personal Property, with coinsurance waived, or if a coinsurance clause is in effect, with an agreed amount endorsement acceptable to the Lender. Coverage shall extend to the Real Property and to all tangible Personal Property. | |||
| (b) | Broad Form Boiler and Machinery | ||
| If any boiler or other machinery is located on or about the Real Property, the Borrower shall maintain broad form boiler and machinery coverage, including a form of business income coverage. | |||
| (c) | Flood | ||
| If the Real Property is located in a special flood hazard area (that is, an area within the 100-year floodplain) according to the most current flood insurance rate map issued by the Federal Emergency Management Agency and if flood insurance is available, the Borrower shall maintain flood insurance coverage on all insurable elements of Real Property and of all tangible Personal Property. | |||
| (d) | Comprehensive/General Liability |
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| The Borrower shall maintain commercial general liability coverage (which may be in the form of umbrella/excess liability insurance) with a One Million Dollar ($1,000,000) combined single limit per occurrence and a minimum aggregate limit of Two Million Dollars ($2,000,000). Lender reserves the right to require increased coverage with respect to these amounts. | |||
| (e) | Worker’s Compensation | ||
| The Borrower shall maintain worker’s compensation if applicable. | |||
| (f) | Elective Coverages | ||
| The Lender may require additional coverages appropriate to the property type and site location. Additional coverages may include liquor liability, earthquake, windstorm, mine subsidence, sinkhole, supplemental liability, or coverages of other property-specific risks, as determined by Lender. |
| 7.2 | Primary Coverage | ||
| Each coverage required under this Section shall be primary rather than contributing or secondary to the coverage Borrower may carry for other properties or risks, provided, however, that blanket coverage shall be acceptable if (a) the policy includes limits by property location and (b) the Lender determines, in the exercise of its discretion, that the amount of such coverage is sufficient in light of the other risks and properties insured under the blanket policy. | |||
| 7.3 | How the Lender Shall Be Named | ||
| On all property insurance policies and coverages required under this Section (including coverage against loss of business income), the Lender must be named as “first mortgagee” under a standard mortgage clause. On all liability policies and coverages, the Lender must be named as an “additional insured.” The Lender shall be referred to verbatim as follows: Transamerica Life Insurance Company and its successors, assigns, and affiliates; as their interest may appear; c/o AEGON USA Realty Advisors, Inc.; Mortgage Loan Dept.; 0000 Xxxxxxxx Xx., XX; Xxxxx Xxxxxx, Xxxx 00000-0000.” | |||
| 7.4 | Rating | ||
| Each insurance carrier providing insurance required under this Section must have, independently of its parent’s or any reinsurer’s rating, a General Policyholder Rating of A, and a Financial Rating of X or better, as reported in the most current issue of Best’s Insurance Guide, or as reported by Best on its internet web site. | |||
| 7.5 | Deductible | ||
| The maximum deductible on each required coverage or policy is One Hundred Thousand Dollars ($100,000). | |||
| 7.6 | Notices, Changes and Renewals | ||
| All policies required under this Section must require the insurance carrier to give the Lender a minimum of thirty (30) days’ notice in the event of modification, cancellation or termination or non renewal and shall provide that no act or omission by the insured shall invalidate or diminish the insurance provided to Lender. The Borrower shall report to the Lender immediately any facts known to the Borrower that may adversely affect the |
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| appropriateness or enforceability of any insurance contract, including, without limitation, changes in the ownership or occupancy of the Real Property, any hazard to the Real Property and any matters that may give rise to any claim. Prior to expiration of any policy required under this Section, the Borrower shall provide either (a) an original or certified copy of the renewed policy, or (b) a “binder,” an Xxxxx 28 (real property), Xxxxx 27 (personal property) or Xxxxx 25 (liability) certificate, or another document satisfactory to the Lender conferring on the Lender the rights and privileges of mortgagee. If the Borrower meets the foregoing requirement under clause (b), the Borrower shall supply an original or certified copy of the original policy within ninety (90) days. All binders, certificates, documents, and original or certified copies of policies must name the Borrower as a named insured or as an additional insured, must include the complete and accurate property address and must bear the original signature of the issuing insurance agent. | |||
| 7.7 | Unearned Premiums | ||
| If this Mortgage is foreclosed, the Lender may at its discretion cancel any of the insurance policies required under this Section and apply any unearned premiums to the Indebtedness. | |||
| 7.8 | Insurance Disclosure Notice Under 815 ILCS 180/10 | ||
| Unless the Borrower provides the Lender with evidence of the insurance coverage required by this Section, the Lender may purchase insurance at the expense of the Borrower to protect the interests of the Lender in the Property. This insurance may, but need not, protect the Borrower’s interests. The coverage that the Lender purchases may not pay any claim that the Borrower makes or any claim that is made against the Borrower in connection with the Property. The Borrower may later cancel any insurance purchased by the Lender, but only after providing the Lender, in accordance with this Section, with evidence that the Borrower has purchased the insurance required by this Section. If the Lender purchases insurance covering the Property, the Borrower will be responsible for the costs of that insurance, including interest at the Default Rate and any other charges imposed by the Lender in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The costs of the insurance may be added to the Indebtedness. The costs of the insurance may be more than the cost of insurance the Borrower may be able to obtain on its own. |
| 8. | INSURANCE AND CONDEMNATION PROCEEDS |
| 8.1 | Adjustment and Compromise of Claims and Awards | ||
| The Borrower may settle any insurance claim or condemnation proceeding if the effect of the casualty or the condemnation may be remedied for Two Hundred Fifty Thousand Dollars ($250,000) or less. If a greater sum is required, the Borrower may not settle any such claim or proceeding without the advance written consent of the Lender. If a Default exists, the Borrower may not settle any insurance claim or condemnation proceeding without the advance written consent of the Lender. | |||
| 8.2 | Direct Payment to the Lender of Proceeds |
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| If the Insurance Proceeds received in connection with a casualty or the Condemnation Proceeds received in respect of a condemnation exceed Two Hundred Fifty Thousand Dollars ($250,000), or if there is a Default, then such proceeds shall be paid directly to the Lender. The Lender shall have the right to endorse instruments which evidence proceeds that it is entitled to receive directly. | |||
| 8.3 | Availability to the Borrower of Proceeds | ||
| The Borrower shall have the right to use the Insurance Proceeds or the Condemnation Proceeds to carry out the Restoration of the Real Property, if the amount received is less than Five Million Dollars ($5,000,000), subject to the conditions set forth in Subsections 8.4, 8.5, and 8.6 of this Section. | |||
| If the amount received in respect of a casualty or condemnation equals or exceeds Five Million Dollars ($5,000,000), and if the Loan-to-Value ratio of the Property on completion will be sixty-five percent (65%) or less, as determined by the Lender in its discretion based on its estimate of the market value of the Real Property, the Lender shall receive such Insurance Proceeds or Condemnation Proceeds directly and hold them in a fund for Restoration subject to the conditions set forth in Subsections 8.4, 8.5, and 8.6 of this Section. If the Lender’s estimate of the market value of the Real Property implies a Loan-to-Value ratio of over sixty-five percent (65%), and the Borrower disagrees with the Lender’s estimate, the Borrower may require that the Lender engage an independent appraiser (the “Fee Appraiser”) to prepare and submit to AEGON a full narrative appraisal report estimating the market value of the Real Property. The Fee Appraiser shall be certified in Illinois and shall be a member of a national appraisal organization that has adopted the Uniform Standards of Professional Appraisal Practice (USPAP) established by the Appraisal Standards Board of the Appraisal Foundation. The Fee Appraiser will be required to use the procedure for the appraisal of the Real Property at the time of the origination of the Loan, including the required assumptions and limiting conditions. For purposes of this Section, the independent appraiser’s value conclusion shall be binding on both the Lender and the Borrower. The Borrower shall have the right to make a prepayment of the Loan, without premium, sufficient to achieve this Loan-to-Value ratio. The independent fee appraisal shall be at the Borrower’s expense. | |||
| Unless the Borrower has the right to use the Insurance Proceeds or the Condemnation Proceeds under the foregoing paragraphs, the Lender may, in its sole and absolute discretion, either apply them to the Loan balance or disburse them for the purposes of repair and reconstruction, or to remedy the effects of the condemnation. No prepayment premium will be charged on Insurance Proceeds or Condemnation Proceeds applied to reduce the principal balance of the Loan. | |||
| 8.4 | Conditions to Availability of proceeds | ||
| The Lender shall have no obligation to release Insurance Proceeds or Condemnation Proceeds to the Borrower, and may hold such amounts as additional security for the Loan, if (a) a Default exists, (b) a payment Default has occurred during the preceding twelve (12) months, or (c) if the Insurance Proceeds or Condemnation Proceeds received by the Lender and any other funds deposited by the Borrower with the Lender are insufficient, as determined by the Lender in its reasonable discretion, to complete the Restoration. If a Default exists, the Lender may at its sole and absolute discretion apply |
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| such Insurance Proceeds and Condemnation Proceeds to the full or partial cure of the Default. | |||
| 8.5 | Permitted Mezzanine Financing for Rebuilding or Remediation of the Effect of Taking by Eminent Domain | ||
| If the Lender reasonably determines that the Insurance Proceeds or Condemnation Proceeds received in respect of a casualty or condemnation, as the case may be, would be insufficient to permit the Borrower to restore the Improvements to their condition before the casualty, or to remedy the effect on the Real Property of the condemnation, then the Borrower shall use its commercially reasonable efforts to secure such additional funds as are necessary to effect the Restoration. The Borrower’s obligation to use its commercially reasonable efforts shall be limited to securing such funds on a non-recourse basis. Interests in the Borrower may be pledged as security to the extent necessary in connection with any such financing. | |||
| 8.6 | Draw Requirements | ||
| The Borrower’s right to receive Insurance Proceeds and Condemnation Proceeds held by the Lender under this Section shall be conditioned on the Lender’s approval of plans and specifications for the Restoration, which approval shall not be unreasonably withheld. Each draw shall be in the minimum amount of Fifty Thousand Dollars ($50,000). Draw requests shall be accompanied by customary evidence of construction completion, and by endorsements to the Lender’s mortgagee title insurance coverage insuring the absence of construction, mechanics’ or materialmen’s liens. Draws based on partial completion of the Restoration shall be subject to a ten percent (10%) holdback. All transactional expenses shall be paid by the Borrower. |
| 9. | DEFAULT |
| 9.1 | Payment Defaults | ||
| A “Default” shall exist without Notice upon the occurrence of any of the following events: |
| (a) | Scheduled Payments | ||
| The Borrower’s failure to pay, or to cause to be paid, (i) any regular monthly payment of principal and interest under the Notes, on or before the tenth (10th) day of the month in which it is due or (ii) any other scheduled payment under the Notes, this Mortgage or any other Loan Document within ten (10) days of its due date. | |||
| (b) | Payment at Maturity | ||
| The Borrower’s failure to pay, or to cause to be paid, the Indebtedness when the Loan matures by acceleration under Section 14, because of a transfer or encumbrance under Section 12, or by lapse of time. |
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| (c) | Demand Obligations | ||
| The Borrower’s failure to pay, or to cause to be paid, within five (5) Business Days of the Lender’s demand, any other amount required under the Notes, this Mortgage or any of the other Loan Documents. |
| 9.2 | Incurable Nonmonetary Default | ||
| A Default shall exist upon any of the following: |
| (a) | Material Untruth or Misrepresentation | ||
| The Lender’s discovery that any representation made by the Borrower in any Loan Document was materially and adversely untrue or misleading when made, if the misrepresentation either was intentional or is not capable of being cured as described in Subsection 9.3(a) below. | |||
| (b) | Due on Sale or Encumbrance | ||
| The occurrence of any sale, conveyance, transfer or vesting that would result in the Loan becoming immediately due and payable at the Lender’s option under Section 12. | |||
| (c) | Voluntary Bankruptcy Filing | ||
| The filing by the Borrower of a petition in bankruptcy or for relief from creditors under any present or future law that affords general protection from creditors. | |||
| (d) | Insolvency | ||
| The failure of the Borrower generally to pay its debts as they become due, its admission in writing to an inability so to pay its debts, the making by the Borrower of a general assignment for the benefit of creditors, or a judicial determination that the Borrower is insolvent. | |||
| (e) | Receivership | ||
| The appointment of a receiver or trustee to take possession of any of the assets of the Borrower. | |||
| (f) | Levy or Attachment | ||
| The taking or seizure of any material portion of the Property under levy of execution or attachment. | |||
| (g) | Lien | ||
| The filing against the Real Property of any lien or claim of lien for the performance of work or the supply of materials, or the filing of any federal, state or local tax lien against the Borrower, or against the Real Property, unless the Borrower promptly complies with Section 11 of this Mortgage. | |||
| (h) | Defaults under other Loan Documents | ||
| The existence of any default or Default under the Loan Agreement or any other Loan Document, provided any required Notice of such default has been given and any applicable cure period has expired. | |||
| (i) | Dissolution or Liquidation |
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| The Borrower shall initiate or suffer the commencement of a proceeding for its dissolution or liquidation, and such proceeding shall not be dismissed within sixty (60) days, or the Borrower shall cease to exist as a legal entity. |
| 9.3 | Curable Non-Monetary Default | ||
| A Default shall exist, following the cure periods specified below, under the following circumstances: |
| (a) | Unintentional Misrepresentations that are Capable of Being Cured | ||
| A “Default” shall exist, with Notice, if the Lender discovers that the Borrower has unintentionally made any material and adverse misrepresentation that is capable of being cured, unless the Borrower promptly commences and diligently pursues a cure of the misrepresentation approved by the Lender, and completes the cure within one hundred twenty (120) days of its receipt of Notice. Any such cure shall place the Lender in the risk position that would have existed had the false representation been true when made. The Lender shall afford the Borrower an additional one hundred twenty (120) day period in cases where construction or repair is needed to cure the potential Default, and the cure cannot be completed within the first one hundred twenty (120) day cure period. During the cure period, the Borrower has the obligation to provide on demand satisfactory documentation of its effort to cure, and, upon completion, evidence that the cure has been achieved. | |||
| (b) | Involuntary Bankruptcy or Similar Filing | ||
| The Borrower becomes the subject of any petition or action seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief, or that may result in a composition of its debts, provide for the marshaling of the Borrower’s assets for the satisfaction of its debts, or result in the judicially ordered sale of the Borrower’s assets for the purpose of satisfying its obligations to creditors, unless dismissed within sixty (60) days of the filing of the petition or other action. | |||
| (c) | Entry of a Material Judgment | ||
| Any judgment is entered against the Borrower or any other Obligor involving an aggregate amount of One Million Five Hundred Thousand and 00/100 Dollars ($1,500,000.00) or more (unless another Default then exists, in which event there shall be no dollar limitation), and the judgment may materially and adversely affect the value, use or operation of the Real Property, unless the judgment is satisfied within thirty (30) days or the Borrower’s insurer accepts full coverage and liability in writing within such thirty (30) day period. | |||
| (d) | Other Defaults | ||
| The Borrower fails to observe any promise or covenant made in this Mortgage, unless the failure results in a Default described elsewhere in this Section 9, provided the Lender delivers written Notice to the Borrower of the existence of such an act, omission or circumstance, and that such an act, omission or circumstance shall constitute a Default under the Loan Documents unless the Borrower promptly initiates an effort to cure the potential Default, pursues the |
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| cure diligently and continuously, and succeeds in effecting the cure within one hundred twenty (120) days of receipt of Notice. The Lender shall afford the Borrower an additional one hundred twenty (120) day period in cases where construction or repair is needed to cure the potential Default, and the cure cannot be completed within the first one hundred twenty (120) day cure period. During the cure period, the Borrower has the obligation to provide on demand satisfactory documentation of its effort to cure, and, upon completion, evidence that the cure has been achieved. All notice and cure periods provided in this Mortgage shall run concurrently with any notice or cure periods provided by law and in any of the other Loan Documents. |
| 10. | RIGHT TO CURE | |
| The Lender shall have the right to cure any Default. The expenses of doing so shall be part of the Indebtedness, and the Borrower shall pay them to the Lender on demand. | ||
| 11. | CONTEST RIGHTS | |
| The Borrower may secure the right to contest Impositions and construction, mechanics’ or materialmen’s liens, through appropriate proceedings conducted in good faith, by either (A) depositing with the Lender an amount equal to one hundred twenty five percent (125%) of the amount of the Imposition or the lien, or (B) obtaining and maintaining in effect a bond issued by a surety acceptable to the Lender, in an amount equal to the greater of (i) the amount of a required deposit under clause (A) above and (ii) the amount required by the surety or by the court in order to obtain a court order staying the foreclosure of the lien pending resolution of the dispute, and releasing the lien of record. The proceeds of such a bond must be payable directly to the Lender. The surety issuing such a bond must be acceptable to the Lender in its reasonable discretion. After such a deposit is made or bond issued, the Borrower shall promptly commence the contest of the lien and continuously pursue that contest in good faith and with reasonable diligence. If the contest of the related Imposition or lien is unsuccessful, any deposits or bond proceeds shall be used to pay the Imposition or to satisfy the obligation from which the lien has arisen. Any surplus shall be refunded to the Borrower. | ||
| 12. | DUE ON TRANSFER OR ENCUMBRANCE | |
| Upon the sale or transfer of any portion of the Property or any other conveyance, transfer or vesting of any direct or indirect interest in the Property, including (i) any encumbrance (other than a Permitted Encumbrance) of the Real Property (unless the Borrower contests the encumbrance in compliance with Section 11); and (ii) the granting of any security interest in the Property (other than Permitted Encumbrances), the Indebtedness shall, at the Lender’s option, become immediately due and payable without Notice to the Borrower. | ||
| 13. | ABSOLUTE ASSIGNMENT OF LEASES AND RENTS |
| 13.1 | ASSIGNMENT OF RENTS AND PROCEEDS AND LEASES |
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| In connection with the Loan, Borrower hereby absolutely, presently and irrevocably assigns, grants, transfers, and conveys to Lender, its successors and assigns, all of Borrower’s right, title, and interest in, to, and under all Leases, now or hereafter affecting all or any part of the Property or Borrower’s use thereof, including without limitation the right to take all Leasing Actions, together with all of Borrower’s right, title, and interest in and to all Rents, and the right, without taking possession of the Real Property, to collect the same as they become due and to apply such Rents and Proceeds to the Secured Obligations. It is the intent of Borrower and Lender to establish a present transfer and assignment of all of the Leases and the Rents to Lender. | |||
| 13.2 | DISCLAIMER | ||
| Neither the assignments set forth in Section 13.1 above nor Lender’s exercise of its rights thereunder shall be deemed or construed to constitute the Lender a mortgagee in possession of the Real Property, nor shall the Lender be deemed to have assumed, by accepting this Assignment, the landlord’s obligations to any tenant. In particular, acceptance by Lender of this Assignment shall not obligate the Lender (a) to appear in or to defend any action or proceeding relating to the Leases or to the Real Property, (b) to perform any obligation as landlord under the Leases, (c) to pay any amount or to assume any future financial obligation of the landlord, including any obligation to pay to any tenant a security or other deposit not actually received by Lender or (d) to indemnify any tenant for any injury or damage to person or property sustained by any person or persons, firm or corporation in or about the Real Property. | |||
| 13.3 | REPRESENTATIONS, WARRANTIES AND COVENANTS | ||
| Borrower hereby represents, warrants, and covenants as follows. |
| (a) | Borrower is the sole holder of the landlord’s interest under the Leases, is entitled to receive the Rents and Proceeds from the Leases and from the Property, and has the full right to sell, assign, transfer, and set over the same and to grant to and confer upon Lender the rights, interests, powers, and authorities herein granted and conferred. | ||
| (b) | If the Borrower receives any written notice from any tenant asserting a material default by the landlord under a Lease, or advising the Borrower that a condition exists which may become a material default with the passage of time, the Borrower shall send a copy or memorandum of the notice to the Lender. | ||
| (c) | The Borrower agrees upon written request of the Lender following the revocation of the licenses granted in Section 13.4, to notify the tenants under the Leases of this Assignment, to direct them in writing to send the Lender, simultaneously, copies of all notices of default that they serve on the Borrower, and to direct them, at the Lender’s request, to pay all future Rent directly to the Lender. The Rents and copies of such notices shall be sent to the Lender at such address as is specified by the Lender to tenants from time to time. |
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| (d) | The Borrower shall not create or permit any lien, charge, or encumbrance of the Leases or of the Rents, and shall not pledge, transfer, or otherwise assign the Leases or the Rents unless at the Lender’s request, or unless otherwise agreed to by the Lender in writing. | ||
| (e) | Borrower has made no pledge or assignment of the Leases or Rents prior to the date hereof, other than collateral assignments to other lenders that will be released concurrently with the delivery and recordation of this Mortgage, and Borrower shall not, after the date hereof, make or permit any such pledge or assignment. | ||
| (f) | Borrower shall provide Lender with a fully-executed copy of each Lease, amendment, modification or alteration thereto. |
| 13.4 | LICENSE | ||
| The Lender grants to the Borrower a conditional license, subject to the Lender’s rights under Section 13.5 below, to collect the Rents, other than those Rents paid more than one (1) month in advance. The Borrower may use the Rents so collected for any lawful purpose which is consistent with the Borrower’s ongoing performance of its obligations under the Loan Documents, provided (a) no Default then exists and (b) the Borrower does not intend to cause, and has no reason to expect the occurrence of, any Default in respect of the Obligations due to be performed in the following calendar month. | |||
| Any Rents excluded from the scope of this license shall be trust funds for the benefit of the Lender. The Lender may require that such Rents be deposited in a reserve fund to serve as additional security for the Loan, or to be used to benefit the Real Property, under such terms and conditions as the Lender may determine in the exercise of its sole and absolute discretion. | |||
| The Lender further grants to the Borrower a conditional license subject to the Lender’s rights under Section 13.5 to take all Leasing Actions in the ordinary course of business. The license does not extend to any Leasing Action that permits (i) less than reasonable market rent during its original term or any extension period, (ii) that permits prepayment of rent more than one (1) year in advance, or such shorter period as is actually provided for rentals under the Lease, or (iii) that modifies a Lease in any manner that increases the liability or obligations of any successor to Borrower’s interest in such Lease or affects the notice and cure rights available thereunder. Furthermore, any Leases to Affiliates of Borrower, or other Leases specifically identified by Lender, must be unconditionally subordinated to this Mortgage. | |||
| 13.5 | Revocation of License | ||
| Upon Default, the Lender may by Notice to the Borrower or Assignor immediately terminate the Borrower’s licenses under Section 13.4, regardless of whether the Real Property or any other collateral adequately secures the Loan’s eventual repayment. Upon the termination of the Borrower’s license, the Borrower shall immediately deliver to the Lender all Rents then in the Borrower’s possession, and all Rents then due or accruing |
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| thereafter shall be payable by tenants directly to the Lender. This Assignment shall constitute a direction to and full authority to any tenant of the Real Property, upon the Lender’s written request, to pay all Rents to the Lender, without requiring the Lender to prove to the tenant the existence of Default. The Borrower agrees to deliver immediately to the Lender any Rents received by the Borrower after the revocation of the Borrower’s license under Section 4, and at the Lender’s written request, shall execute such further assignments to the Lender of any Lease as the Lender may in its sole judgment request. This Assignment is given in connection with the Loan and in support of the performance of the Obligations, and nothing herein contained shall be construed as (a) constituting the Lender a “mortgagee-in-possession” of the Real Property, or (b) an assumption by the Lender of the Borrower’s obligations as landlord under the Leases. | |||
| Upon the cure of all Defaults, the Lender may by Notice to the Borrower, reinstate the licenses of the Borrower under Section 13.4 of this Mortgage. |
| 14. | ACCELERATION | |
| If a Default exists, the Lender may, at its option, declare the unpaid principal balance of the Notes to be immediately due and payable, together with all accrued interest on the Indebtedness, all costs of collection (including reasonable attorneys’ fees and expenses) and all other charges due and payable by the Borrower under the Notes or any other Loan Document. | ||
| If the subject Default is nonmonetary in nature other than a Default arising under Section 9.2(b), the Lender shall exercise its option to accelerate only by giving Notice of acceleration to the Borrower. The Lender shall not give any such Notice of acceleration until (a) the Borrower has been given any required Notice of the prospective Default and (b) any applicable cure period has expired. | ||
| Except as expressly described in this Section, no notice of acceleration shall be required in order for the Lender to exercise its option to accelerate the Indebtedness in the event of Default. | ||
| 15. | RIGHTS OF ENTRY AND TO OPERATE |
| 15.1 | Entry on Real Property | ||
| If a Default exists, the Lender may, to the extent permitted by applicable law, enter upon the Real Property and take exclusive possession of the Real Property and of all books, records and accounts, all without Notice and without being guilty of trespass, but subject to the rights of tenants in possession under the Leases. If the Borrower remains in possession of all or any part of the Property after Default and without the Lender’s prior written consent, the Lender may, without Notice to the Borrower, invoke any and all legal remedies to dispossess the Borrower. | |||
| 15.2 | Operation of Real Property | ||
| If a Default exists, the Lender may hold, lease, manage, operate or otherwise use or permit the use of the Real Property, either itself or by other persons, firms or entities, in such manner, for such time and upon such other terms as the Lender may deem to be |
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| prudent under the circumstances (making such repairs, alterations, additions and improvements thereto and taking any and all other action with reference thereto, from time to time, as the Lender deems prudent), and apply all Rents and other amounts collected by the Lender to the Obligations. |
| 16. | RECEIVERSHIP | |
| Following Default, the Lender may apply to a court of competent jurisdiction for the appointment of a receiver of the Property, ex parte without Notice to the Borrower, whether or not the value of the Property exceeds the Indebtedness, whether or not waste or deterioration of the Real Property has occurred, and whether or not other arguments based on equity would justify the appointment. The Borrower irrevocably, with knowledge and for valuable consideration, consents to such an appointment. Any such receiver shall have all the rights and powers customarily given to receivers in Illinois, including the rights and powers granted to the Lender by this Mortgage, the power to maintain, lease and operate the Real Property on terms approved by the court, and the power to collect the Rents and apply them to the Indebtedness or otherwise as the court may direct. Once appointed, a receiver may at the Lender’s option remain in place until the Indebtedness has been paid in full. | ||
| 17. | FORECLOSURE; POWER OF SALE |
| 17.1 | Availability of Remedies | ||
| Upon Default, the Lender may immediately proceed to foreclose the lien of this Mortgage, against all or part of the Property, or to sell the Property, by judicial or nonjudicial foreclosure in accordance with the laws of Illinois and may pursue any other remedy available to commercial mortgage lenders under the laws of Illinois. | |||
| 17.2 | Construction with Illinois Mortgage Foreclosure Law | ||
| In the event that any provision of this Mortgage shall be inconsistent with any provision of the Illinois Mortgage Foreclosure Law (Chapter 735, Sections 5/15-1101 et seq., Illinois Compiled Statutes) (the “Act”), the provisions of the Act shall take precedence over the provisions of this Mortgage, but shall not invalidate or render unenforceable any other provision of this Mortgage that can be construed in a manner consistent with the Act. | |||
| 17.3 | Availability of all Remedies under the Act | ||
| If any provision of this Mortgage shall grant to Mortgagee any rights or remedies upon default of the Mortgagor which are more limited than the rights that would otherwise be vested in Mortgagee under the Act in the absence of said provision, the Mortgagee shall be vested with the rights granted in the Act to the full extent permitted by law. | |||
| 17.4 | Expenses included in Indebtedness | ||
| Without limiting the generality of the foregoing, all expenses incurred by the Mortgagee to the extent reimbursable under Section 15-1512 of the Act, whether incurred before or after any decree or judgment of foreclosure, and whether enumerated in this Mortgage, |
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| shall be added to the Indebtedness secured by this Mortgage or by the judgment of foreclosure. |
| 18. | WAIVERS | |
| To the maximum extent permitted by applicable law, the Borrower irrevocably and unconditionally WAIVES and RELEASES any present or future rights (a) of reinstatement or redemption pursuant to 735 ILSC 5/15-1601 or similar reinstatement or redemption rights now or hereafter available to the Lender following a Default, (b) that may exempt the Property from any civil process, (c) to appraisal or valuation of the Property, (d) to extension of time for payment, (e) that may subject the Lender’s exercise of its remedies to the administration of any decedent’s estate or to any partition or liquidation action, (f) to any homestead and exemption rights provided by the Constitution and laws of the United States and of Illinois, (g) to notice of acceleration or notice of intent to accelerate (other than as expressly stated herein) following a Default, and (h) that in any way would delay or defeat the right of the Lender to cause the sale of the Real Property for the purpose of satisfying the Indebtedness following a Default,. The Borrower agrees that the price paid at a lawful foreclosure sale, whether by the Lender or by a third party, and whether paid through cancellation of all or a portion of the Indebtedness or in cash, shall conclusively establish the value of the Real Property. | ||
| The foregoing waivers shall apply to and bind any party assuming the Obligations of the Borrower under this Mortgage. | ||
| 19. | SECURITY AGREEMENT AND FIXTURE FILING |
| 19.1 | Definitions | ||
| “Account” shall have the definition assigned in the UCC. | |||
| “Account Collateral” means all Accounts that arise from the leasing, licensing or use by third parties of the Property, from the commencement of the Loan term through the satisfaction of all of the Obligations. | |||
| “Chattel Paper” shall have the definition assigned in the UCC. | |||
| “Chattel Paper Collateral” means all Chattel Paper arising from the sale or other disposition of all or part of the Property. | |||
| “Control Agreement” means a Deposit Account or Securities Account control agreement by and among the Borrower, the Lender and the relevant depository or securities intermediary providing the Lender with “control” of such Deposit Account or Securities Account within the meaning of Articles 8 and 9 of the UCC. | |||
| “Deposit Account” shall have the definition assigned in the UCC. | |||
| “Deposit Account Collateral” means that certain demand account number 0692-37808 established with Xxxx Xxxxxx Bank in Rosemont, Illinois (the “Proceeds Account”) and any replacement or successor accounts and all other Deposit Accounts and/or Securities |
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| Accounts over which Lender has obtained a Control Agreement into which Rents , Insurance Proceeds, Condemnation Proceeds or Proceeds of the Property are deposited or held at any time from the commencement of the Loan term through the satisfaction of all of the Obligations and shall include all funds in such Deposit Accounts. | |||
| “Document” shall have the definition assigned in the UCC. | |||
| “Document Collateral” means all Documents that evidence title to all or any part of the Goods Collateral. | |||
| “Equipment” shall have the definition assigned in the UCC. | |||
| “Equipment Collateral” means all Equipment that relates to the Real Property arising from the sale or other disposition of all or part of the Property. | |||
| “Excluded Collateral” means (A) trade fixtures, office furniture and office equipment; (B) racking systems; (C) machinery and equipment which does not constitute a Fixture or Equipment Collateral; or (D) rolling stock. | |||
| “Financing Statements” shall have the definition assigned in the UCC. | |||
| “General Intangibles” shall have the definition assigned in the UCC. | |||
| “General Intangible Collateral” means all General Intangibles that have arisen or that arise in the future in connection with the Borrower’s ownership, operation or leasing of the Real Property as commercial real estate (but not any General Intangibles arising from the specific business operations of Borrower and/or its subsidiaries), at any time from the commencement of the Loan term through the satisfaction of all of the Obligations. | |||
| “Goods” shall have the definition assigned in the UCC. “Goods” include all detached Fixtures, items of Personal Property that may become Fixtures, property management files, accounting books and records, reports of consultants relating to the Real Property as commercial real estate, site plans, test borings, environmental or geotechnical surveys, samples and test results, blueprints, construction and shop drawings, and plans and specifications. | |||
| “Goods Collateral” means all Goods that relate to the Real Property as commercial real estate and are used in the operation of the Real Property as commercial real estate. | |||
| “Instrument” shall have the definition assigned in the UCC. | |||
| “Instrument Collateral” means all Instruments received as Rents or identifiable Proceeds of Property or purchased by the Borrower with Rents or identifiable Proceeds. | |||
| “Investment Property” shall have the definition assigned in the UCC. | |||
| “Investment Property Collateral” means all the Investment Property purchased using Rents or identifiable Proceeds of Property, or received in respect of Account Collateral. |
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| “Money Collateral” means all money received in respect of Rents. | |||
| “Personal Property” means Account Collateral, Chattel Paper Collateral, Commercial Tort Claim Collateral, Deposit Account Collateral, Document Collateral, Equipment Collateral, General Intangibles Collateral, Goods Collateral, Instrument Collateral, Investment Property Collateral, and Money Collateral, but shall not include the Excluded Collateral. | |||
| “Proceeds” mean all proceeds (as defined in the UCC) of any Property. | |||
| “UCC” means the Uniform Commercial Code as adopted in Illinois. | |||
| 19.2 | Creation of Security Interest | ||
| This Mortgage shall be self-operative and shall constitute a security agreement pursuant to the provisions of the UCC with respect to the Personal Property. The Borrower, as debtor, hereby grants the Lender, as secured party, for the purpose of securing the Indebtedness, a security interest in the Account Collateral, Chattel Paper Collateral, Commercial Tort Claim Collateral, Deposit Account Collateral, Document Collateral, Equipment Collateral, General Intangible Collateral, Goods Collateral, Instrument Collateral, Investment Property Collateral, and Money Collateral, in the accessions, additions, replacements, substitutions and Proceeds of any of the foregoing items of collateral. Upon Default, the Lender shall have the rights and remedies of a secured party under the UCC as well as all other rights and remedies available at law or in equity, and, at the Lender’s option, the Lender may also invoke the remedies provided elsewhere in this Mortgage as to such Property. The Borrower and the Lender agree that the rights granted to the Lender as secured party under this Section 19 are in addition to rather than a limitation on any of the Lender’s other rights under this Mortgage with respect to the Property. | |||
| 19.3 | Filing Authorization | ||
| The Borrower irrevocably authorizes the Lender to file, in the appropriate locations for filings of UCC financing statements in any jurisdictions as the Lender in good xxxxx xxxxx appropriate, such financing statements and amendments as the Lender may require in order to perfect or continue this security interest, or in order to prevent any filed financing statement from becoming misleading or from losing its perfected status. | |||
| 19.4 | Additional Searches and Documentation | ||
| Borrower shall provide to Lender upon request, certified copies of any searches of UCC records deemed necessary or appropriate by Lender to confirm the first priority status of its security interest in the Personal Property, together with copies of all documents or records evidencing security interests disclosed by such searches. | |||
| 19.5 | Costs | ||
| The Borrower shall pay all filing fees and costs and all reasonable costs and expenses of any record searches (or their continuations) as the Lender may require. |
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| 19.6 | Representations, Warranties and Covenants of the Borrower |
| (a) | Ownership of the Personal Property | ||
| All of the Personal Property is owned by the Borrower, and except for the Collateral Use Agreement executed among Borrower, Lender and Xxxxx Fargo Foothill, LLC, in its capacity as agent for the Revolving Credit Lenders referenced therein, is not the subject matter of any lease, control agreement or other instrument, agreement or transaction whereby any ownership, security or beneficial interest in the Personal Property is held by any person or entity other than the Borrower, subject only to (1) the Lender’s security interest, (2) the rights of tenants occupying the Property pursuant to Leases approved by the Lender, which shall include the Leases identified in the rent roll attached to the Closing Certificate executed as one of the Loan Documents, and (3) the Permitted Encumbrances. | |||
| (b) | No Other Identity | ||
| Except as set forth on Schedule 19.6, the Borrower represents and warrants that the Borrower has not used or operated under any other name or identity for at least five (5) years. The Borrower covenants and agrees that Borrower will furnish Lender with notice of any change in its name, form of organization, or state of organization within thirty (30) days prior to the effective date of any such change. | |||
| (c) | Location of Equipment | ||
| All Equipment Collateral is located upon the Land. | |||
| (d) | Removal of Goods | ||
| The Borrower will not remove or permit to be removed any detached Fixtures or Goods that may become Fixtures from the Land, unless the same is replaced immediately with unencumbered assets (1) of a quality and value equal or superior to that which it replaces and (2) which is located on the Land. All such replacements, renewals, and additions shall become and be immediately subject to the security interest of this Mortgage. | |||
| (e) | Proceeds | ||
| The Borrower shall not, without the Lender’s prior written consent, dispose of any Personal Property in any other manner, except in compliance with Subsection 19.6(d) above |
| 19.7 | Fixture Filing | ||
| This Mortgage constitutes a financing statement filed as a fixture filing in the Official Records of the County Recorder of Xxxx County, Illinois with respect to any and all fixtures comprising Property. The “debtor” is Xxxx X. Xxxxxxxxxx & Son, Inc., a corporation organized under Delaware law, the “secured party” is Transamerica Life Insurance Company, the collateral is as described in Subsection 19.1 above and the granting clause of this Mortgage, and the addresses of the debtor and secured party are the addresses stated in Subsection 21.13 of this Mortgage for Notices to such parties. The organizational identification number of the debtor is 0878236. The owner of record of the Real Property is Xxxx X. Xxxxxxxxxx & Son, Inc. |
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| 19.8 | Deposit Account |
| (a) | Borrower shall deposit all Rents, Insurance Proceeds and Condemnation Proceeds, as well as the Proceeds of any of the other Property described herein, in the Proceeds Account, all of which shall be subject to the terms of this Agreement. | ||
| (b) | Borrower shall maintain the Proceeds Account in effect at all times during the term of the Loan. | ||
| (c) | Borrower shall take all steps necessary to create in Lender a perfected security interest in the Proceeds Account, and shall afford Lender control of the Proceeds Account within the meaning of Section 9104 of the UCC (and any successor or replacement statutes) within ten (10) business days following the recordation of this instrument in the real estate records of the County in which the Real Property is located. | ||
| (d) | If the depository bank at which the Proceeds Account is located becomes insolvent, ceases doing business or is otherwise incapable in Lender’s reasonable discretion of holding and administering the Proceeds Account for its intended purposes, the Proceeds Account shall be moved to a replacement depository bank reasonably acceptable to Lender, and Lender’s security interest therein shall be perfected by control agreement with the replacement depository bank. | ||
| (e) | Upon the occurrence of a Default, Lender shall be entitled to provide the depository bank with notice of exclusive control of the Proceeds Account and Lender shall have the unilateral right to provide instructions as to the use, disposition and application of the funds or other financial assets in the Proceeds Account. |
| 20. | ENVIRONMENTAL MATTERS |
| 20.1 | Representations | ||
| The Borrower represents as follows: |
| (a) | No Hazardous Substances | ||
| To the best of the Borrower’s knowledge, and except as disclosed in the ESA, no release of any Hazardous Substance has occurred on or about the Real Property in a quantity or at a concentration level that (i) violates any Environmental Law, or (ii) requires reporting to any regulatory authority or may result in any obligation to remediate under any Environmental Law. | |||
| (b) | Absence of Mold Contamination | ||
| To the best of Borrower’s knowledge, there are no mold issues present in the Improvements that result in a violation of Environmental Laws. Borrower has received no mold-related tenant complaint or notice of any legal proceeding relating to mold affecting the Improvements. | |||
| (c) | Compliance with Environmental Laws |
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| The Real Property and its current use and presently anticipated uses comply with all Environmental Laws, including those requiring permits, licenses, authorizations, and other consents and approvals. |
| (d) | No Actions or Proceedings | ||
| To the best of Borrower’s knowledge, no governmental authority or agency has commenced any action, proceeding or investigation based on any suspected or actual violation of any Environmental Law on or about the Real Property. To the best of the Borrower’s knowledge, no such authority or agency has threatened to commence any such action, proceeding, or investigation. |
| 20.2 | Environmental Covenants | ||
| The Borrower covenants as follows: |
| (a) | Compliance with Environmental Laws | ||
| The Borrower shall, and the Borrower shall cause all employees, agents, contractors, and tenants of the Borrower to, keep and maintain the Real Property in compliance with all Environmental Laws. | |||
| (b) | Notices, Actions and Claims | ||
| The Borrower shall immediately advise the Lender in writing of (i) any written notices from any governmental or quasi-governmental agency or authority of violation or potential violation of any Environmental Law received by the Borrower, (ii) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened pursuant to any Environmental Law about which Borrower has received written notice, (iii) all claims made or threatened by any third party against the Borrower or the Real Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Substances, and (iv) discovery by the Borrower of any occurrence or condition on any real property adjoining or in the vicinity of the Real Property that creates a foreseeable risk of contamination of the Real Property by or with Hazardous Substances. |
| 20.3 | The Lender’s Right to Control Claims | ||
| The Lender shall have the right (but not the obligation) to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Substances and to have its related and reasonable attorneys’ and consultants’ fees paid by the Borrower upon demand. | |||
| 20.4 | Indemnification | ||
| The Borrower shall be solely responsible for, and shall indemnify, defend, and hold harmless the Lender and its directors, officers, employees, agents, successors and assigns, from and against, any claim, judgment, loss, damage, demand, cost, expense or liability of whatever kind or nature, known or unknown, contingent or otherwise, directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence (whether prior to or after the date of this Mortgage) of Hazardous Substances on, in, under or about the Real Property (whether by the Borrower, a predecessor in title, any tenant, or any employees, agents, contractor or subcontractors of any of the foregoing or any third persons at any time occupying or |
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| present on the Real Property), including: (i) personal injury; (ii) death; (iii) damage to property; (iv) all consequential damages; (v) the cost of any required or necessary repair, cleanup or detoxification of the Real Property, including the soil and ground water thereof, and the preparation and implementation of any closure, remedial or other required plans; (vi) damage to any natural resources; and (vii) all reasonable costs and expenses incurred by the Lender in connection with clauses (i) through (vi), including reasonable attorneys’ and consultants’ fees; provided, however, that nothing contained in this Section shall be deemed to preclude the Borrower from seeking indemnification from, or otherwise proceeding against, any third party including any tenant or predecessor in title to the Real Property, and further provided that this indemnification will not extend to matters caused by the Lender’s gross negligence or willful misconduct, or arising from a release of Hazardous Substances which occurs after the Lender has taken possession of the Real Property, so long as the Borrower has not caused the release through any act or omission. The covenants, agreements, and indemnities set forth in this Section shall be binding upon the Borrower and its successors and assigns, and shall survive repayment of the Indebtedness, foreclosure of the Real Property, and the Borrower’s granting of a deed to the Real Property in lieu of foreclosure. Payment shall not be a condition precedent to this indemnity. Any costs or expenses incurred by the Lender for which the Borrower is responsible or for which the Borrower has indemnified the Lender shall be paid to the Lender on demand, with interest at the Default Rate from the date incurred by the Lender until paid in full, and shall be secured by this Mortgage. Without the prior written consent of the Lender, which consent shall not be unreasonably withheld, the Borrower shall not enter into any settlement agreement, consent decree, or other compromise in respect to any claims relating to Hazardous Substances. The Lender agrees that it shall not unreasonably delay its consideration of any written request for its consent to any such settlement agreement, consent decree, or other compromise once all information, reports, studies, audits, and other documentation have been submitted to the Lender. |
| 20.5 | Environmental Audits | ||
| If a Default exists, or the Lender has a reasonable basis to believe that a release of Hazardous Substances may have occurred, the Lender may require that the Borrower retain, or the Lender may retain directly, at the sole cost and expense of the Borrower, a licensed geologist, industrial hygienist or an environmental consultant acceptable to the Lender to conduct an environmental assessment or audit of the Real Property. In the event that the Lender makes a reasonable determination of the need for an environmental assessment or audit, the Lender shall inform the Borrower in writing that such a determination has been made and, if requested to do so by the Borrower, give the Borrower a written explanation of that determination before the assessment or audit is conducted. The Borrower shall afford any person conducting an environmental assessment or audit access to the Real Property and all materials reasonably requested; provided that such person shall not unreasonably interfere with the use and operation of the Real Property. Except as set forth below, the Borrower shall pay on demand the cost and expenses of any environmental consultant engaged by the Lender under this Subsection. The Borrower shall, at the Lender’s request and at the Borrower’s sole cost and expense, take such investigative and remedial measures determined by the geologist, hygienist or consultant to be necessary to address any condition discovered by the assessment or audit so that (i) the Real Property shall be in compliance with all |
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| Environmental Laws, (ii) the condition of the Real Property shall not constitute any identifiable risk to human health or to the environment, and (iii) the value of the Real Property shall not be affected by the presence of Hazardous Substances. Notwithstanding the foregoing, the Borrower shall not be required to pay for the costs of such audit or assessment if it reasonably disagrees with the Lender’s determination that there is a reasonable basis that a release of a Hazardous Substance has occurred, the Lender proceeds with such audit or assessment and the audit or assessment does not reveal any material violation of Environmental Laws that were not identified on the ESA. |
| 21. | MISCELLANEOUS |
| 21.1 | Successors and Assigns | ||
| All of the terms of the Loan Documents shall apply to, be binding upon and inure to the benefit of the successors and assigns of the Obligors, or to the holder of the Notes, as the case may be. | |||
| 21.2 | Survival of Obligations | ||
| Each and all of the Obligations shall continue in full force and effect until the latest of (a) the date the Indebtedness has been paid in full and the Obligations have been performed and satisfied in full, (b) the last date permitted by law for bringing any claim or action with respect to which the Lender may seek payment or indemnification in connection with the Loan Documents, and (c) the date on which any claim or action for which the Lender seeks payment or indemnification is fully and finally resolved and, if applicable, any compromise thereof of judgment or award thereon is paid in full. | |||
| 21.3 | Further Assurances | ||
| The Borrower, upon the request of the Lender, shall complete, execute, acknowledge, deliver and record or file such further instruments and do such further acts as may be reasonably necessary to carry out more effectively the purposes of this Mortgage, to subject any property intended to be covered by this Mortgage to the liens and security interests it creates, to place third parties on notice of those liens and security interests, or to correct any defects which may be found in any Loan Document. | |||
| 21.4 | Right of Inspection | ||
| The Lender shall have the right from time to time, upon reasonable advance notice to the Borrower, to enter onto the Real Property during regular business hours for the purpose of inspecting and reporting on its physical condition, tenancy and operations; provided the Lender shall not unreasonably interfere with the use and operation of the Real Property. | |||
| 21.5 | Expense Indemnification | ||
| The Borrower shall pay all filing and recording fees, documentary stamps, intangible taxes, and all expenses incident to the execution and acknowledgment of this Mortgage, the Notes or any of the other Loan Documents, any supplements, amendments, renewals or extensions of any of them, or any instrument entered into under Subsection 21.3. The Borrower shall pay or reimburse the Lender, upon demand, for all costs and expenses, |
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| including appraisal and reappraisal costs of the Property and reasonable attorneys’ and legal assistants’ fees, which the Lender may incur in connection with enforcement proceedings under the Notes, this Mortgage, or any of the other Loan Documents (including all fees and costs incurred in enforcing or protecting the Notes, this Mortgage, or any of the other Loan Documents in any bankruptcy proceeding), and reasonable attorneys’ and legal assistants’ fees incurred by the Lender in any other suit, action, legal proceeding or dispute of any kind in which the Lender is made a party or appears as party plaintiff or defendant, affecting the Indebtedness, the Notes, this Mortgage, any of the other Loan Documents, or the Property, or required to protect or sustain the lien of this Mortgage. The Borrower shall be obligated to pay (or to reimburse the Lender) for such fees, costs and expenses and shall indemnify and hold the Lender harmless from and against any and all loss, cost, expense, liability, damage and claims and causes of action, including reasonable attorneys’ fees, incurred or accruing by reason of the Borrower’s failure to promptly repay any such fees, costs and expenses. If any suit or action is brought to enforce or interpret any of the terms of this Mortgage (including any effort to modify or vacate any automatic stay or injunction, any trial, any appeal, any petition for review or any bankruptcy proceeding), the Lender shall be entitled to recover all expenses reasonably incurred in preparation for or during the suit or action or in connection with any appeal of the related decision, whether or not taxable as costs. Such expenses include reasonable attorneys’ fees, witness fees (expert or otherwise), deposition costs, copying charges and other expenses. Whether or not any court action is involved, all reasonable expenses, including the costs of searching records, obtaining title reports, appraisals, environmental assessments, surveying costs, title insurance premiums, and reasonable attorneys’ fees, incurred by the Lender that are necessary at any time in the Lender’s opinion for the protection of its interest or enforcement of its rights shall become a part of the Indebtedness payable on demand and shall bear interest from the date of expenditure until repaid at the interest rate as provided in the Notes. |
| 21.6 | General Indemnification | ||
| The Borrower shall indemnify, defend and hold the Lender harmless against: (i) any and all claims for brokerage, leasing, finder’s or similar fees which may be made relating to the Real Property or the Indebtedness and (ii) any and all liability, obligations, losses, damages, penalties, claims, actions, suits costs and expenses (including the Lender’s reasonable attorneys’ fees, together with reasonable appellate counsel fees, if any) of whatever kind or nature which may be asserted against, imposed on or incurred by the Lender in connection with the Indebtedness, this Mortgage, the Real Property or any part thereof, or the operation, maintenance and/or use thereof, or the exercise by the Lender of any rights or remedies granted to it under this Mortgage or pursuant to applicable law; provided, however, that nothing herein shall be construed to obligate the Borrower to indemnify, defend and hold harmless the Lender from and against any of the foregoing which is imposed on or incurred by the Lender by reason of the Lender’s willful misconduct or gross negligence. | |||
| 21.7 | Recording and Filing | ||
| The Borrower shall cause this Mortgage and all amendments, supplements, and substitutions to be recorded, filed, re-recorded and re-filed in such manner and in such places as the Lender may reasonably request. The Borrower will pay all recording filing, re-recording and re-filing taxes, fees and other charges. |
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| 21.8 | No Waiver | ||
| No deliberate or unintentional failure by the Lender to require strict performance by the Borrower of any Obligation shall be deemed a waiver, and the Lender shall have the right at any time to require strict performance by the Borrower of any Obligation. | |||
| 21.9 | Covenants Running with the Land | ||
| All Obligations are intended by the parties to be and shall be construed as covenants running with the Land. | |||
| 21.10 | Severability | ||
| The Loan Documents are intended to be performed in accordance with, and only to the extent permitted by, all applicable Legal Requirements. Any provision of the Loan Documents that is prohibited or unenforceable in any jurisdiction shall nevertheless be construed and given effect to the extent possible. The invalidity or unenforceability of any provision in a particular jurisdiction shall neither invalidate nor render unenforceable any other provision of the Loan Documents in that jurisdiction, and shall not affect the validity or enforceability of that provision in any other jurisdiction. If a provision is held to be invalid or unenforceable as to a particular person or under a particular circumstance, it shall nevertheless be presumed valid and enforceable as to others, or under other circumstances. | |||
| 21.11 | Usury | ||
| The parties intend that no provision of the Notes or the Loan Documents be interpreted, construed, applied, or enforced so as to permit or require the payment or collection of interest in excess of the Maximum Permitted Rate. In this regard, the Borrower and the Lender each stipulate and agree that it is their common and overriding intent to contract in strict compliance with applicable usury laws. Accordingly, none of the terms of this Mortgage, the Notes or any of the other Loan Documents shall ever be construed to create a contract to pay, as consideration for the use, forbearance or detention of money, interest at a rate in excess of the Maximum Permitted Rate, and the Borrower shall never be liable for interest in excess of the Maximum Permitted Rate. Therefore, (a) in the event that the Indebtedness and Obligations are prepaid or the maturity of the Indebtedness and Obligations is accelerated by reason of an election by the Lender, unearned interest shall be canceled and, if theretofore paid, shall either be refunded to the Borrower or credited on the Indebtedness, as the Lender may elect; (b) the aggregate of all interest and other charges constituting interest under applicable laws and contracted for, chargeable or receivable under the Notes and the other Loan Documents or otherwise in connection with the transaction contemplated thereby shall never exceed the maximum amount of interest, nor produce a rate in excess of the Maximum Permitted Rate; and (c) if any excess interest is provided for or received, it shall be deemed a mistake, and the same shall, at the option of the Lender, either be refunded to the Borrower or credited on the unpaid principal amount (if any), and the Indebtedness shall be automatically reformed so as to permit only the collection of the interest at the Maximum Permitted Rate. Furthermore, if any provision of the Notes or any of the other Loan Documents is interpreted, construed, applied, or enforced, in such a manner as to provide for interest in excess of the Maximum Permitted Rate, then the parties intend that such provision automatically shall be deemed reformed retroactively so as to require payment only of |
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| interest at the Maximum Permitted Rate. If, for any reason whatsoever, interest paid or received during the full term of the applicable Indebtedness produces a rate which exceeds the Maximum Permitted Rate, then the amount of such excess shall be deemed credited retroactively in reduction of the then outstanding principal amount of the Indebtedness, together with interest at such Maximum Permitted Rate. The Lender shall credit against the principal of such Indebtedness (or, if such Indebtedness shall have been paid in full, shall refund to the payor of such interest) such portion of said interest as shall be necessary to cause the interest paid to produce a rate equal to the Maximum Permitted Rate. All sums paid or agreed to be paid to the Lender for the use, forbearance or detention of money shall, to the extent permitted by applicable law, be amortized, prorated, allocated and spread in equal parts throughout the full term of the applicable Indebtedness, so that the interest rate is uniform throughout the full term of such Indebtedness. In connection with all calculations to determine the Maximum Permitted Rate, the parties intend that all charges be excluded to the extent they are properly excludable under applicable usury laws, as they from time to time are determined to apply to this transaction. The provisions of this Section shall control all agreements, whether now or hereafter existing and whether written or oral, between the Borrower and the Lender. |
| 21.12 | Entire Agreement | ||
| The Loan Documents contain the entire agreements between the parties relating to the financing of the Real Property, and all prior agreements which are not contained in the Loan Documents, other than the unsecured Environmental Indemnity Agreement, are terminated. The Loan Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. The Loan Documents may be amended, revised, waived, discharged, released or terminated only by a written instrument or instruments executed by the party against whom enforcement of the amendment, revision, waiver, discharge, release or termination is asserted. Any alleged amendment, revision, waiver, discharge, release or termination that is not so documented shall be null and void. | |||
| 21.13 | Notices | ||
| In order for any demand, consent, approval or other communication to be effective under the terms of this Mortgage, “Notice” must be provided under the terms of this Subsection. All Notices must be in writing. Notices may be (a) delivered by hand, (b) transmitted by facsimile (with a duplicate copy sent by first class mail, postage prepaid), (c) sent by certified or registered mail, postage prepaid, return receipt requested, or (d) sent by reputable overnight courier service, delivery charges prepaid. Notices shall be addressed as set forth below: |
If to the Lender:
Transamerica Life Insurance Company
c/o AEGON USA Realty Advisors, Inc.
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, Xxxx 00000-0000
Attn: Mortgage Loan Department
c/o AEGON USA Realty Advisors, Inc.
0000 Xxxxxxxx Xxxx, X.X.
Xxxxx Xxxxxx, Xxxx 00000-0000
Attn: Mortgage Loan Department
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Reference: Loan No. D700218
Fax Number: (000) 000-0000
Fax Number: (000) 000-0000
If to the Borrower:
Xxxx X. Xxxxxxxxxx & Son, Inc.
0000 Xxxxx Xxxxxxx Xxxx
Mail Code — 2NW-EX
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Fax Number: (000) 000-0000
0000 Xxxxx Xxxxxxx Xxxx
Mail Code — 2NW-EX
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Fax Number: (000) 000-0000
| Notices delivered by hand or by overnight courier shall be deemed given when actually received or when refused by their intended recipient. Notices sent by facsimile will be deemed delivered when a legible copy has been received (provided receipt has been verified by telephone confirmation or one of the other permitted means of giving Notices under this Subsection). Mailed Notices shall be deemed given on the date of the first attempted delivery (whether or not actually received). Either the Lender or the Borrower may change its address for Notice by giving at least fifteen (15) Business Days’ prior Notice of such change to the other party. | |||
| 21.14 | Counterparts | ||
| This Mortgage may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute but one instrument. | |||
| 21.15 | Choice of Law | ||
| This Mortgage shall be interpreted, construed, applied, and enforced according to, and will be governed by, the laws of Illinois, without regard to any choice of law principle which, but for this provision, would require the application of the law of another jurisdiction and regardless of where executed or delivered, where payable or paid, where any cause of action accrues in connection with this transaction, where any action or other proceeding involving the Loan is instituted, or whether the laws of Illinois otherwise would apply the laws of another jurisdiction. | |||
| 21.16 | Forum Selection | ||
| The Borrower and Lender (by acceptance hereof) agree that the sole and exclusive forum for the determination of any action relating to the validity and enforceability of the Notes, this Mortgage and the other Loan Documents, and any other instruments securing the Notes shall be either in an appropriate court of the State of Illinois or the applicable United States District Court, except as otherwise set forth in the Loan Documents. | |||
| 21.17 | Sole Benefit | ||
| This Mortgage and the other Loan Documents have been executed for the sole benefit of the Borrower and the Lender and the successors and assigns of the Lender. No other party shall have rights thereunder or be entitled to assume that the parties thereto will insist upon strict performance of their mutual obligations hereunder, any of which may be |
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| waived from time to time. The Borrower shall have no right to assign any of its rights under the Loan Documents to any party whatsoever. |
| 21.18 | Release of Claims | ||
| The Borrower hereby RELEASES, DISCHARGES and ACQUITS forever the Lender and its officers, directors, trustees, agents, employees and counsel (in each case, past, present or future) from any and all Claims existing as of the date hereof (or the date of actual execution hereof by the Borrower, if later). As used herein, the term “Claim” shall mean any and all liabilities, claims, defenses, demands, actions, causes of action, judgments, deficiencies, interest, liens, costs or expenses (including court costs, penalties, attorneys’ fees and disbursements, and amounts paid in settlement) of any kind and character whatsoever, including claims for usury, breach of contract, breach of commitment, negligent misrepresentation or failure to act in good faith, in each case whether now known or unknown, suspected or unsuspected, asserted or unasserted or primary or contingent, and whether arising out of written documents, unwritten undertakings, course of conduct, tort, violations of laws or regulations or otherwise. | |||
| 21.19 | No Partnership | ||
| Nothing contained in the Loan Documents is intended to create any partnership, joint venture or association between the Borrower and the Lender, or in any way make the Lender a co-principal with the Borrower with reference to the Property. | |||
| 21.20 | Payoff Procedures | ||
| If the Borrower pays or causes to be paid to the Lender all of the Indebtedness, then Lender’s interest in the Real Property shall cease, and upon receipt by the Lender of such payment, the Lender shall either (a) release this Mortgage or (b) assign the Loan Documents and endorse the Notes (in either case without recourse or warranty of any kind) to a takeout lender, upon payment (in the latter case) of an administrative fee of Seven Hundred Fifty Dollars ($750). | |||
| 21.21 | Future Advances | ||
| Under this Mortgage, “Indebtedness” is defined to include certain advances made by the Lender in the future. Such advances include any additional disbursements to the Borrower (unless in connection with another, independent mortgage financing) and any obligations under agreements which specifically provide that such obligations are secured by this Mortgage. In addition, Indebtedness is defined to include any amounts advanced to pay Impositions, to cure Defaults, or to pay the costs of collection and receivership. Accordingly, all such advances and obligations shall be equally secured with, and shall have the same priority as, the Indebtedness, and shall be subject to all of the terms and provisions of this Mortgage. The Borrower shall pay any taxes that may be due in connection with any such future advance. Notwithstanding anything to the contrary contained herein, the total unpaid balance so secured at any one time by this Mortgage shall not exceed the maximum principal amount of Ninety Million and 00/100 Dollars ($90,000,000.00), which includes the principal of the Loan, interest, any disbursements made under the Mortgage for the payment of impositions, taxes, assessments, levies, insurance, or otherwise, with interest on such disbursements, and any other costs set forth in the Loan Documents. | |||
| 21.22 | Interpretation |
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| (a) | Headings and General Application | ||
| The section, subsection, paragraph and subparagraph headings of this Mortgage are provided for convenience of reference only and shall in no way affect, modify or define, or be used in construing, the text of the sections, subsections, paragraphs or subparagraphs. If the text requires, words used in the singular shall be read as including the plural, and pronouns of any gender shall include all genders. | |||
| (b) | Result of Negotiations | ||
| This Mortgage results from negotiations between the Borrower and the Lender and from their mutual efforts. Therefore, it shall be so construed, and not as though it had been prepared solely by the Lender. | |||
| (c) | Reference to Particulars | ||
| The scope of a general statement made in this Mortgage or in any other Loan Document shall not be construed as having been reduced through the inclusion of references to particular items that would be included within the statement’s scope. Therefore, unless the relevant provision of a Loan Document contains specific language to the contrary, the term “include” shall mean “include, but shall not be limited to” and the term “including” shall mean “including, without limitation.” |
| 21.23 | Joint and Several Liability | ||
| If there is more than one individual or entity executing this Mortgage as the Borrower, liability of such individuals and entities under this Mortgage shall be joint and several. | |||
| 21.24 | Time of Essence | ||
| Time is of the essence of each and every covenant, condition and provision of this Mortgage to be performed by the Borrower. | |||
| 21.25 | Jury Waiver | ||
| The Borrower and by its acceptance hereof, the Lender, hereby waive any right to a trial by jury in any action or proceeding to enforce or defend any rights (i) under this Mortgage or any other Loan Document or (ii) arising from any lending relationship existing in connection with this Mortgage or any other Loan Document, and the Borrower and by its acceptance hereof, the Lender, agree that any such action or proceeding shall be tried before a judge and not before a jury. | |||
| 21.26 | Renewal, Extension, Modification and Waiver | ||
| The Lender may enter into a modification of any Loan Document or of the Environmental Indemnity Agreement without the consent of any person not a party to the document being modified. The Lender may waive any covenant or condition of any Loan Document or of the Environmental Indemnity Agreement, in whole or in part, at the request of any person then having an interest in the Property or in any way liable for any part of the Indebtedness. The Lender may take, release, or resort to any security for the Notes and the Obligations and may release any party primarily or secondarily liable on any Loan Document or on the Environmental Indemnity Agreement, all without affecting any liability not expressly released in writing by the Lender. |
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| 21.27 | Cumulative Remedies | ||
| Every right and remedy provided in this Mortgage shall be cumulative of every other right or remedy of the Lender, whether conferred by law or by grant or contract, and may be enforced concurrently with any such right or remedy. The acceptance of the performance of any obligation to cure any Default shall not be construed as a waiver of any rights with respect to any other past, present or future Default. No waiver in a particular instance of the requirement that any Obligation be performed shall be construed as a waiver with respect to any other Obligation or instance. | |||
| 21.28 | No Obligation to Marshal Assets | ||
| No holder of any mortgage, security interest or other encumbrance affecting all or any portion of the Real Property, which encumbrance is inferior to the lien and security interest of this Mortgage, shall have any right to require the Lender to marshal assets. | |||
| 21.29 | Transfer of Ownership | ||
| The Lender may, without notice to the Borrower, deal with any person in whom ownership of any part of the Real Property has vested, without in any way vitiating or discharging the Borrower from liability for any of the Obligations. |
IN WITNESS WHEREOF, the Borrower has caused this Mortgage to be duly executed as of the date
first above written.
| BORROWER: XXXX X. XXXXXXXXXX & SON, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Xxxxxxx X. Xxxxxxxxx | ||||
| Its Chief Financial Officer and Group President | ||||
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