[Michigan]
================================================================================
Date: November 29, 1999
FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
("this Mortgage")
FROM
APPLE SUITES, INC.,
a Virginia corporation
("Fee Owner")
AND
APPLE SUITES MANAGEMENT, INC.,
a Virginia corporation
("Lessee")
Address of Fee Owner and Lessee: 000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
TO
PROMUS HOTELS, INC.,
a Delaware corporation
("Mortgagee")
Address of Mortgagee: 000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Mortgage Amount: $64,185,000
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This instrument prepared by, and after recording please return to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esq.
TABLE OF CONTENTS
Page
----
RECITAL.............................................................................................1
CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION.......................................................2
GRANTING CLAUSE.....................................................................................3
ARTICLE I COVENANTS OF MORTGAGOR....................................................5
Section 1.01. (a) Warranty of Title; Power and Authority..............................5
(b) Hazardous Materials.................................................5
(c) Flood Hazard Area...................................................6
Section 1.02. (a) Further Assurances..................................................6
(b) Information Reporting and Back-up Withholding.......................6
Section 1.03. (a) Filing and Recording of Documents...................................6
(b) Filing and Recording Fees and Other Charges.........................7
Section 1.04. Payment and Performance of Loan Documents.................................7
Section 1.05. Maintenance of Existence; Compliance with Laws............................7
Section 1.06. After-Acquired Property...................................................7
Section 1.07. (a) Payment of Taxes and Other Charges..................................8
(b) Payment of Mechanics and Materialmen................................8
(c) Good Faith Contests.................................................9
Section 1.08. Taxes on Mortgagee........................................................9
Section 1.09. Insurance.................................................................9
Section 1.10. Protective Advances by Mortgagee.........................................12
Section 1.11. (a) Visitation and Inspection..........................................13
(b) Financial and Other Information....................................13
(c) Estoppel Certificates..............................................13
Section 1.12. Maintenance of Premises and Improvements.................................13
Section 1.13. Condemnation.............................................................14
Section 1.14. Leases...................................................................14
Section 1.15. Premises Documents.......................................................15
Section 1.16. Trust Fund; Lien Laws....................................................15
ARTICLE II EVENTS OF DEFAULT AND REMEDIES...........................................15
Section 2.01. Events of Default and Certain Remedies...................................15
Section 2.02. Other Matters Concerning Sales...........................................19
Section 2.03. Payment of Amounts Due...................................................21
Section 2.04. Actions; Receivers.......................................................22
Section 2.05. Mortgagee's Right to Possession..........................................23
Section 2.06. Remedies Cumulative......................................................23
(i)
Section 2.07. Moratorium Laws; Right of Redemption.....................................24
Section 2.08. Regarding Defenses.......................................................24
Section 2.09. Expenses as Indebtedness.................................................24
Section 2.10. Mortgagee's Rights Concerning Application of Amounts Collected...........24
ARTICLE III MISCELLANEOUS............................................................25
Section 3.01. Assignment of Rents......................................................25
Section 3.02. Security Agreement.......................................................25
Section 3.03. Application of Certain Payments..........................................26
Section 3.04. Severability.............................................................26
Section 3.05. Modifications and Waivers in Writing.....................................26
Section 3.06. Notices..................................................................26
Section 3.07. Successors and Assigns...................................................26
Section 3.08. Limitation on Interest...................................................26
Section 3.09. Counterparts.............................................................26
Section 3.10. Substitute Mortgages.....................................................27
Section 3.11. Mortgagee's Sale of Interests in Loan....................................27
Section 3.12. No Merger of Interests...................................................27
Section 3.13. No Credit For Taxes......................................................27
Section 3.14. No Consent to Contracts..................................................27
Section 3.15. Business Loan............................................................27
Section 3.16. CERTAIN WAIVERS..........................................................27
Section 3.17. GOVERNING LAW............................................................28
(ii)
THE AMOUNT OF THIS MORTGAGE IS $64,185,000.
RECITAL
Mortgagee, Hampton Inns, Inc. ("Hampton") and Promus Hotels Florida,
Inc. ("Promus Florida"), as sellers, and Fee Owner, as buyer, have heretofore
entered into an Agreement of Sale dated as of August 6, 1999 (as amended, the
"First Agreement of Sale") for the purchase of certain premises more
particularly described therein (the "Initial Premises"). Hampton, as seller, and
Fee Owner, as buyer, have entered into an Agreement of Sale dated as of October
5, 1999 (as amended, the "Second Agreement of Sale") for the purchase of certain
premises more particularly described therein (the "Additional Premises";
together with the Initial Premises, collectively, the "Existing Premises").
Mortgagee, Hampton and Promus Florida, as sellers, and Fee Owner, as buyer, have
entered into an Agreement of Sale dated as of November 22, 1999 (as amended, the
"Third Agreement of Sale"; together with the First Agreement of Sale and the
Second Agreement of Sale, collectively, the "Agreement of Sale") for the
purchase of, among other premises, the premises described in SCHEDULE A attached
hereto and made a part hereof. Fee Owner has acquired and is the owner of the
premises described in SCHEDULE A and Lessee is the owner of a leasehold interest
therein. Lessee acknowledges that it will derive substantial benefit from the
making of the loans contemplated in the Agreement of Sale and further
acknowledges that the obligation of Mortgagee to make such loans is conditioned
upon, among other things, the execution and delivery by Lessee of this Mortgage.
In connection with the purchase of the Existing Premises by Fee Owner (or its
indirect wholly-owned subsidiary) from Mortgagee (or its affiliates) pursuant to
the First Agreement of Sale and the Second Agreement of Sale, Fee Owner has
borrowed (i) the sum of $26,625,000 and has executed and delivered to Mortgagee
its note, dated September 20, 1999, obligating it to pay the sum of $26,625,000,
with interest thereon as therein provided (the "First Note") and (ii) the sum of
$7,350,000 and has executed and delivered to Mortgagee its note, dated October
5, 1999, obligating it to pay the sum of $7,350,000, with interest thereon as
therein provided (the "Second Note"). In connection with the purchase of the
Premises and certain of the other premises described in the Third Agreement of
Sale, Fee Owner will borrow $30,210,000 from Mortgagee and has executed and
delivered to Mortgagee its note, dated the date hereof, obligating it to pay the
sum of $30,210,000, with interest thereon as therein provided (the "Third Note";
together with the First Note, the Second Note and as any thereof may hereafter
be amended, modified, extended, severed, assigned, renewed, replaced or
restated, hereinafter, the "Note"). In order to secure payment of the Note, Fee
Owner and Lessee, as mortgagors, have duly authorized the execution and delivery
of this Mortgage. For purposes of this Mortgage, "Mortgagor" shall mean Fee
Owner and Lessee but only to the extent of their respective interests in the
Mortgaged Property (as herein defined) and their respective obligations under
the Note and Ground Lease.
CERTAIN DEFINITIONS AND RULES OF CONSTRUCTION
Mortgagor and Mortgagee agree that, unless the context otherwise
specifies or requires, the following terms shall have the meanings herein
specified.
"Chattels" means all fixtures, furnishings, fittings, appliances,
apparatus, equipment, building materials and components, machinery and articles
of personal property, of whatever kind or nature, including any replacements,
proceeds or products thereof and additions thereto, other than those owned by
lessees, now or at any time hereafter intended to be or actually affixed to,
attached to, placed upon, or used in any way in connection with the complete and
comfortable use, enjoyment, development, occupancy or operation of the Premises,
and whether located on or off the Premises.
"Default Rate" means the rate (or, if more than one, the highest of the
rates) of interest per annum provided in the Note plus 5%, but in no event to
exceed the maximum rate allowed by law.
"Events of Default" means the events and circumstances described as
such in Section 2.01.
"Ground Lease" means the Master Hotel Lease Agreement dated as of
September 20, 1999 between Fee Owner and Lessee covering, among other premises,
the premises described in SCHEDULE A, as the same may be amended, supplemented
or modified from time to time.
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes, materials or substances, as any of
those terms are defined from time to time in or for the purposes of any relevant
environmental law, rule, regulation, code, permit, order, notice, demand letter
or other binding determination (hereinafter, "Environmental Laws") including,
without limitation, asbestos fibers and friable asbestos, polychlorinated
biphenyls and any petroleum or hydrocarbon-based products or derivatives, in
each case in amounts in violation of applicable Environmental Laws.
"Improvements" means all structures or buildings, and replacements
thereof, now or hereafter located upon the Premises, including all plant
equipment, apparatus, machinery and fixtures of every kind and nature whatsoever
forming part of said structures or buildings.
"lease" or "leases" means any lease or leases of all or any portion of
the Premises, whether affecting the fee or leasehold portion thereof.
"Loan" means the loan made by Mortgagee to Mortgagor evidenced by the
Note and secured hereby.
"Premises" means the premises described in SCHEDULE A, including the
leasehold interest therein created by the Ground Lease, and including all of the
easements, rights, privileges and appurtenances (including air or development
rights) thereunto belonging or in anywise appertaining, and all of the estate,
right, title, interest,
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claim or demand whatsoever of Mortgagor therein and in the streets and ways
adjacent thereto, either in law or in equity, in possession or expectancy, now
or hereafter acquired, and as used herein shall, unless the context otherwise
requires, be deemed to include the Improvements.
"Premises Documents" means all reciprocal easement or operating
agreements, declarations of covenants, conditions or restrictions, declarations
of condominium, developer's or utility agreements with any village, town, county
or other governmental authority, and any similar such agreements or declarations
now or hereafter affecting the Premises or any part thereof.
All terms of this Mortgage which are not defined above shall have the
meaning set forth elsewhere in this Mortgage.
Except as expressly indicated otherwise, when used in this Mortgage (i)
"or" is not exclusive, (ii) "hereunder", "herein", "hereof" and the like refer
to this Mortgage as a whole, (iii) "Article", "Section" and "Schedule" refer to
Articles, Sections and Schedules of this Mortgage, (iv) terms defined in the
singular have a correlative meaning when used in the plural and vice versa, (v)
a reference to a law or statute includes any amendment or modification to, or
replacement of, such law or statute and (vi) a reference to an agreement,
instrument or document means such agreement, instrument or document as the same
may be amended, modified or supplemented from time to time in accordance with
its terms and as permitted hereby and by the other documents executed or
delivered to Mortgagee in connection with the Loan. The cover page and all
Schedules hereto are incorporated herein and made a part hereof. Any table of
contents and the headings and captions herein are for convenience only and shall
not affect the interpretation or construction hereof.
GRANTING CLAUSE
NOW, THEREFORE, Mortgagor, in consideration of the premises and in
order to secure the payment of both the principal of, and the interest and any
other sums payable under, the Note or this Mortgage and the performance and
observance of all the provisions hereof and of the Note, hereby gives, grants,
bargains, sells, warrants, aliens, remises, releases, conveys, assigns,
transfers, mortgages, hypothecates, deposits, pledges, sets over and confirms
unto Mortgagee, all its estate, right, title and interest in, to and under any
and all of the following described property (hereinafter, the "Mortgaged
Property") whether now owned or held or hereafter acquired:
(i) the Premises;
(ii) the Improvements;
(iii) the Chattels;
(iv) the Premises Documents;
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(v) all rents, royalties, issues, profits, revenue, income,
recoveries, reimbursements and other benefits of the Mortgaged Property
(hereinafter, the "Rents") and all leases of the Mortgaged Property or
portions thereof now or hereafter entered into and all right, title and
interest of Mortgagor thereunder, including, without limitation, cash
or securities deposited thereunder to secure performance by the lessees
of their obligations thereunder, whether such cash or securities are to
be held until the expiration of the terms of such leases or applied to
one or more of the installments of rent coming due immediately prior to
the expiration of such terms, and including any guaranties of such
leases and any lease cancellation, surrender or termination fees in
respect thereof, all subject, however, to the provisions of Section
3.01;
(vi) all (a) development work product prepared in connection
with the Premises, including, but not limited to, engineering,
drainage, traffic, soil and other studies and tests; water, sewer, gas,
electrical and telephone approvals, taps and connections; surveys,
drawings, plans and specifications; and subdivision, zoning and
platting materials; (b) building and other permits, rights, licenses
and approvals relating to the Premises; and (c) contracts and
agreements (including, without limitation, contracts with architects
and engineers, construction contracts and contracts for the maintenance
or management of the Premises), contract rights, logos, trademarks,
trade names, copyrights and other general intangibles used or useful in
connection with the ownership, operation or occupancy of the Premises
or any part thereof;
(vii) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash or liquidated claims,
including, without limitation, proceeds of insurance and condemnation
awards, and all rights of Mortgagor to refunds of real estate taxes and
assessments;
(viii) all revenue and income received by or on behalf of
Mortgagor resulting from the operation of the Premises as a hotel,
including all sums (1) paid by customers for the use of hotel rooms
located within the Premises, (2) derived from food and beverage
operations located within the Premises, (3) generated by other hotel
operations, including any parking, convention, sports and recreational
facilities and (4) business interruption insurance proceeds;
(ix) all accounts and accounts receivable, including all
present and future right to payment from any consumer credit or charge
card organization or entity (such as those organizations which sponsor
or administer the American Express, Xxxxx Xxxxxxx, Discover Card,
Diners Club, Visa and Master Card) arising out of the leasing and
operation of, or the business conducted at or in relation to, all or
any part of the Premises; and
(x) any deposit, operating or other account including the
entire balance therein (now or hereafter existing) of Mortgagor
containing proceeds of the operation of the Premises with any banking
or financial institution and all money, instruments, securities,
documents, chattel paper, credits, demands, and any other
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property, rights, or interests of Mortgagor relating to the operation
of the Premises which at any time shall come into the possession,
custody or control of any banking or financial institution.
TO HAVE AND TO HOLD unto Mortgagee, its successors and assigns forever.
ARTICLE I
COVENANTS OF MORTGAGOR
Mortgagor represents, except as known by Mortgagee or its affiliates to
the contrary, or disclosed to Mortgagee in connection with the sale of the
Mortgaged Property to Mortgagor, and Mortgagor covenants and agrees as follows:
Section 1.01. (a) Warranty of Title; Power and Authority. Mortgagor
warrants that, with respect to the fee interest in the Premises, it has a good
and marketable title to an indefeasible fee estate subject to no lien, charge or
encumbrance, that the Ground Lease is subject to no lien, charge or encumbrance
of any kind and is prior to all liens, charges and encumbrances whatsoever on
the fee interest of the landlord thereunder, except in either case such as are
listed as exceptions to title in the title policy insuring the lien hereof; and,
Mortgagor further warrants that, with respect to the leasehold interest in the
Premises, that it is the owner of a valid and subsisting interest as tenant
under the Ground Lease, that the Ground Lease is in full force and effect, there
are no defaults thereunder and no event has occurred or is occurring which after
notice or passage of time or both will result in such a default; that it owns
the Chattels, all leases and the Rents in respect of the Mortgaged Property and
all other personal property encumbered hereby free and clear of liens and
claims; and Mortgagor warrants that this Mortgage is and will remain a valid and
enforceable lien on the Mortgaged Property subject only to the exceptions
referred to above. Mortgagor has full power and lawful authority to mortgage the
Mortgaged Property in the manner and form herein done or intended hereafter to
be done. Mortgagor will preserve such title, will preserve such leasehold estate
created by the Ground Lease and will forever warrant and defend the same to
Mortgagee and will forever warrant and defend the validity and priority of the
lien hereof against the claims of all persons and parties whomsoever. Mortgagor
will perform or cause to be performed all of the covenants and conditions
required to be performed by it under the Ground Lease, will do all things
necessary to preserve unimpaired its rights thereunder, and will not (i) enter
into any agreement modifying or amending the Ground Lease that would reduce the
term of the Ground Lease, increase the amount of rent payable thereunder (except
as contemplated by the provisions of the Ground Lease) or have a material
adverse effect on the lien created by this Mortgage or the rights of Mortgagee
hereunder or (ii) for so long as the Ground Lease is in effect, release the
landlord thereunder from any obligations imposed upon it thereby. If Mortgagor
receives a notice of default under the Ground Lease, it shall immediately cause
a copy of such notice to be sent by registered United States mail to Mortgagee.
(b) Hazardous Materials. To the best of Mortgagor's knowledge,
Mortgagor represents and warrants that (i) the Premises and the improvements
thereon and the
5
surrounding areas are not currently and have never been subject to Hazardous
Materials or their effects, in each case in amounts in violation of applicable
Environmental Laws, (ii) neither it nor any portion of the Premises or
improvements thereon is in violation of, or subject to any existing, pending or
threatened investigation or proceeding by any governmental authorities under,
any Environmental Law, (iii) there are no claims, litigation, administrative or
other proceedings, whether actual or threatened, or judgments or orders,
concerning Hazardous Materials relating in any way to the Premises or the
improvements thereon and (iv) Mortgagor is not required by any Environmental Law
to obtain any permits or licenses to construct or use any improvements, fixtures
or equipment with respect to the Premises, or if any such permit or license is
required it has been obtained and is capable of being mortgaged and assigned
hereby. Mortgagor will comply with all applicable Environmental Laws and will,
at its sole cost and expense, promptly remove, or cause the removal of, any and
all Hazardous Materials or the effects thereof at any time identified as being
on, in, under or affecting the Premises.
(c) Flood Hazard Area. Mortgagor represents that neither the Premises
nor any part thereof is located in an area identified by the Secretary of the
United States Department of Housing and Urban Development or by any applicable
federal agency as having special flood hazards or, if it is, Mortgagor has
obtained the insurance required by Section 1.09.
Section 1.02. (a) Further Assurances. Mortgagor will, at its sole cost
and expense, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers and assurances as Mortgagee shall from time to time reasonably
require, for the better assuring, conveying, assigning, transferring and
confirming unto Mortgagee the property and rights hereby conveyed or assigned or
intended now or hereafter so to be, or which Mortgagor may be or may hereafter
become bound to convey or assign to Mortgagee, or for carrying out the intention
or facilitating the performance of the terms hereof, or for filing, registering
or recording this Mortgage and, on demand, will execute and deliver, and hereby
authorizes Mortgagee to execute and file in Mortgagor's name, to the extent it
may lawfully do so, one or more financing statements, chattel mortgages or
comparable security instruments, to evidence or perfect more effectively
Mortgagee's security interest in and the lien hereof upon the Chattels and other
personal property encumbered hereby.
(b) Information Reporting and Back-up Withholding. Mortgagor will, at
its sole cost and expense, do, execute, acknowledge and deliver all and every
such acts, information reports, returns and withholding of monies as shall be
necessary or appropriate to comply fully, or to cause full compliance, with all
applicable information reporting and back-up withholding requirements of the
Internal Revenue Code of 1986 (including all regulations now or hereafter
promulgated thereunder) in respect of the Premises and all transactions related
to the Premises, and will at all times provide Mortgagee with satisfactory
evidence of such compliance and notify Mortgagee of the information reported in
connection with such compliance.
Section 1.03. (a) Filing and Recording of Documents. Mortgagor
forthwith upon the execution and delivery hereof, and thereafter from time to
time, will cause this
6
Mortgage and any security instrument creating a lien or evidencing the lien
hereof upon the Chattels and each instrument of further assurance to be filed,
registered or recorded in such manner and in such places as may be required by
any present or future law in order to publish notice of and fully to protect the
lien hereof upon, and the interest of Mortgagee in, the Mortgaged Property.
(b) Filing and Recording Fees and Other Charges. Mortgagor will pay all
filing, registration or recording fees, and all expenses incident to the
execution and acknowledgment hereof, any mortgage supplemental hereto, any
security instrument with respect to the Chattels, and any instrument of further
assurance, and any reasonable expenses (including attorneys' fees and
disbursements) incurred by Mortgagee in connection with the Loan, and will pay
all federal, state, county and municipal stamp taxes and other taxes, duties,
imposts, assessments and charges arising out of or in connection with the
execution and delivery of the Note, this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Chattels or any instrument
of further assurance.
Section 1.04. Payment and Performance of Loan Documents. Mortgagor will
punctually pay the principal and interest and all other sums to become due in
respect hereof and of the Note at the time and place and in the manner specified
therein, according to the true intent and meaning thereof, all in currency of
the United States of America which at the time of such payment shall be legal
tender for the payment of public and private debts. Mortgagor will duly and
timely comply with and perform all of the terms, provisions, covenants and
agreements contained in said documents and in all other documents or instruments
executed or delivered by Mortgagor to Mortgagee in connection with the Loan, and
will permit no failures of performance thereunder.
Section 1.05. Maintenance of Existence; Compliance with Laws.
Mortgagor, if other than a natural person, will, so long as it is owner of all
or part of the Mortgaged Property, do all things necessary to preserve and keep
in full force and effect its existence, franchises, rights and privileges as a
business or stock corporation, partnership, limited liability company, trust or
other entity under the laws of the state of its formation. Mortgagor will duly
and timely comply with all laws, regulations, rules, statutes, orders and
decrees of any governmental authority or court applicable to it or to the
Mortgaged Property or any part thereof.
Section 1.06. After-Acquired Property. All right, title and interest of
Mortgagor in and to all extensions, improvements, betterments, renewals,
substitutes and replacements of, and all additions and appurtenances to, the
Mortgaged Property, hereafter acquired by, or released to, Mortgagor or
constructed, assembled or placed by Mortgagor on the Premises, and all
conversions of the security constituted thereby, immediately upon such
acquisition, release, construction, assembling, placement or conversion, as the
case may be, and in each such case, without any further mortgage, conveyance,
assignment or other act by Mortgagor, shall become subject to the lien hereof as
fully and completely, and with the same effect, as though now owned by Mortgagor
and specifically described in the Granting Clause hereof, but at any and all
times Mortgagor will execute and deliver to Mortgagee any and all such further
7
assurances, mortgages, conveyances or assignments thereof as Mortgagee may
reasonably require for the purpose of expressly and specifically subjecting the
same to the lien hereof.
Section 1.07. (a) Payment of Taxes and Other Charges. Mortgagor, from
time to time before the same shall become delinquent, will pay and discharge all
taxes of every kind and nature (including real and personal property taxes and
income, franchise, withholding, profits and gross receipts taxes), all general
and special assessments, levies, permits, inspection and license fees, all water
and sewer rents and charges, and all other public charges whether of a like or
different nature, imposed upon or assessed against it or the Mortgaged Property
or any part thereof or upon the revenues, rents, issues, income and profits of
the Mortgaged Property or arising in respect of the occupancy, use or possession
thereof. Mortgagor will, upon Mortgagee's request, deliver to Mortgagee receipts
evidencing the payment of all such taxes, assessments, levies, fees, rents and
other public charges imposed upon or assessed against it or the Mortgaged
Property or any portion thereof.
Mortgagee may, at its option following the occurrence of an Event of
Default, to be exercised by thirty (30) days' notice to Mortgagor, require the
deposit by Mortgagor, at the time of each payment of an installment of interest
or principal under the Note (but no less often than monthly), of an additional
amount sufficient to discharge the obligations under this clause (a) when they
become due. The determination of the amount so payable and of the fractional
part thereof to be deposited with Mortgagee, so that the aggregate of such
deposits shall be sufficient for this purpose, shall be made by Mortgagee in its
sole discretion. Such amounts shall be held by Mortgagee without interest and
applied to the payment of the obligations in respect of which such amounts were
deposited or, at Mortgagee's option, to the payment of said obligations in such
order or priority as Mortgagee shall determine, on or before the respective
dates on which the same or any of them would become delinquent. If one (1) month
prior to the due date of any of the aforementioned obligations the amounts then
on deposit therefor shall be insufficient for the payment of such obligation in
full, Mortgagor within ten (10) days after demand shall deposit the amount of
the deficiency with Mortgagee. Nothing herein contained shall be deemed to
affect any right or remedy of Mortgagee under any provisions hereof or of any
statute or rule of law to pay any such amount and to add the amount so paid,
together with interest at the Default Rate, to the indebtedness hereby secured.
(b) Payment of Mechanics and Materialmen. Mortgagor will pay, from time
to time when the same shall become due, all lawful claims and demands of
mechanics, materialmen, laborers, and others which, if unpaid, might result in,
or permit the creation of, a lien on the Mortgaged Property or any part thereof,
and in general will do or cause to be done everything necessary so that the lien
hereof shall be fully preserved, at the cost of Mortgagor and without expense to
Mortgagee, other than those liens which Mortgagee or its affiliates have
indemnified Mortgagor pursuant to the provisions set forth in the Agreement of
Sale.
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(c) Good Faith Contests. Nothing in this Section 1.07 shall require the
payment or discharge of any obligation imposed upon Mortgagor by this Section so
long as Mortgagor shall in good faith and at its own expense contest the same or
the validity thereof by appropriate legal proceedings which shall operate to
prevent the collection thereof or other realization thereon and the sale or
forfeiture of the Mortgaged Property or any part thereof to satisfy the same;
provided, however, that (i) during such contest Mortgagor shall set aside
reserves sufficient to discharge Mortgagor's obligation hereunder and of any
additional charge, penalty or expense arising from or incurred as a result of
such contest and (ii) if at any time payment of any obligation imposed upon
Mortgagor by clause (a) above shall become necessary to prevent the delivery of
a tax deed or other instrument conveying the Mortgaged Property or any portion
thereof because of non-payment, then Mortgagor shall pay the same in sufficient
time to prevent the delivery of such tax deed or other instrument.
Section 1.08. Taxes on Mortgagee. Mortgagor will pay any taxes, except
income taxes, imposed on Mortgagee by reason of its ownership of the Note or
this Mortgage, provided that Mortgagee can require payment of the Note in full
within ninety (90) days if it shall be illegal for Mortgagor to pay any tax or
if the payment of such tax by Mortgagor would result in the violation of
applicable usury laws.
Section 1.09. Insurance. (a) Mortgagor will at all times provide,
maintain and keep in force:
(i) policies of insurance insuring the Premises, Improvements
and Chattels against loss or damage by fire and lightning; against loss
or damage by other risks embraced by coverage of the type now known as
All Risk Replacement Cost Insurance with agreed amount endorsement,
including but not limited to riot and civil commotion, vandalism,
malicious mischief and theft; and against such other risks or hazards
as Mortgagee from time to time reasonably may designate in an amount
sufficient to prevent Mortgagee or Mortgagor from becoming a co-insurer
under the terms of the applicable policies, but in any event in an
amount not less than 100% of the then full replacement cost of the
Improvements (exclusive of the cost of excavations, foundations and
footings below the lowest basement floor) without deduction for
physical depreciation;
(ii) policies of insurance insuring the Premises against the
loss of "rental value" of the buildings which constitute a part of the
Improvements on a "rented or vacant basis" arising out of the perils
insured against pursuant to clause (i) above in an amount equal to not
less than one (1) year's gross "rental value" of the Improvements.
"Rental value" as used herein is defined as the sum of (A) the total
anticipated gross rental income from tenant occupancy of such buildings
as furnished and equipped, (B) the amount of all charges which are the
legal obligation of tenants and which would otherwise be the obligation
of Mortgagor and (C) the fair rental value of any portion of such
buildings which is occupied by Mortgagor. Mortgagor hereby assigns the
proceeds of such insurance to Mortgagee, to be applied by Mortgagee in
payment of the interest and principal on the Note, insurance premiums,
taxes, assessments and private impositions until
9
such time as the Improvements shall have been restored and placed in
full operation, at which time, provided Mortgagor is not then in
default hereunder, the balance of such insurance proceeds, if any, held
by Mortgagee shall be paid over to Mortgagor;
(iii) if all or part of the Premises are located in an area
identified by the Secretary of the United States Department of Housing
and Urban Development or by any applicable federal agency as a flood
hazard area, flood insurance in an amount at least equal to the maximum
limit of coverage available under the National Flood Insurance Act of
1968, provided, however, that Mortgagee reserves the right to require
flood insurance in excess of said limit if such insurance is
commercially available up to the amount provided in clause (i) above;
(iv) during any period of restoration under this Section 1.09
or Section 1.13, a policy or policies of builder's "all risk"
insurance, written on a Standard Builder's Risk Completed Value Form
(100% non-reporting), in an amount not less than the full insurable
value of the Premises against such risks (including, without
limitation, fire and extended coverage, collapse and earthquake
coverage to agreed limits) as Mortgagee may reasonably request, in form
and substance acceptable to Mortgagee;
(v) a policy or policies of workers' compensation insurance as
required by workers' compensation insurance laws (including employer's
liability insurance, if requested by Mortgagee) covering all employees
of Mortgagor;
(vi) comprehensive liability insurance on an "occurrence"
basis against claims for "personal injury" liability, including,
without limitation, bodily injury, death or property damage liability,
with a limit of not less than $15,000,000 in the event of "personal
injury" to any number of persons or of damage to property arising out
of one "occurrence". Such policies shall name Mortgagee as additional
insured by an endorsement, and shall contain cross-liability and
severability of interest clauses, all satisfactory to Mortgagee; and
(vii) such other insurance (including, but not limited to,
earthquake insurance), and in such amounts, as may from time to time be
reasonably required by Mortgagee against the same or other insurable
hazards.
Notwithstanding anything herein to the contrary, for so long as that
certain Management Agreement of even date herewith between Lessee and Mortgagee
with respect to the Premises remains in full force and effect (as the same may
be amended, the "Management Agreement"), the types and amounts of insurance
required by the Management Agreement to the extent inconsistent with those set
forth above shall govern and control Mortgagor's obligations in respect thereof.
(b) All policies of insurance required under this Section 1.09 shall be
issued by companies having Best's ratings and being otherwise reasonably
acceptable to
10
Mortgagee, shall be subject to the reasonable approval of Mortgagee as to
amount, content, form and expiration date and, except for the liability policies
described in clauses (a)(v) and (vi) above, shall contain a Non-Contributory
Standard Mortgagee Clause and Lender's Loss Payable Endorsement, or their
equivalents, in favor of Mortgagee, and shall provide that the proceeds thereof
shall be payable to Mortgagee. Mortgagee shall be furnished with the original of
each policy required hereunder, which policies shall provide that they shall not
lapse, nor be modified or cancelled, without thirty (30) days' written notice to
Mortgagee. At least thirty (30) days prior to expiration of any policy required
hereunder, Mortgagor shall furnish Mortgagee appropriate proof of issuance of a
policy continuing in force the insurance covered by the policy so expiring.
Mortgagor shall furnish to Mortgagee, promptly upon request, receipts or other
satisfactory evidence of the payment of the premiums on such insurance policies.
In the event that Mortgagor does not deposit with Mortgagee a new certificate or
policy of insurance with evidence of payment of premiums thereon at least thirty
(30) days prior to the expiration of any expiring policy, then Mortgagee may,
but shall not be obligated to, procure such insurance and pay the premiums
therefor, and Mortgagor agrees to repay to Mortgagee the premiums thereon
promptly on demand, together with interest thereon at the Default Rate.
(c) Mortgagor hereby assigns to Mortgagee all proceeds of any insurance
required to be maintained by this Section 1.09 which Mortgagor may be entitled
to receive for loss or damage to the Premises, Improvements or Chattels. All
such insurance proceeds shall be payable to Mortgagee, and Mortgagor hereby
authorizes and directs any affected insurance company to make payment thereof
directly to Mortgagee subject, however, to clause (f) below. Mortgagor shall
give prompt notice to Mortgagee of any casualty, whether or not of a kind
required to be insured against under the policies to be provided by Mortgagor
hereunder, such notice to generally describe the nature and cause of such
casualty and the extent of the damage or destruction. Mortgagor may settle,
adjust or compromise any claims for loss, damage or destruction, regardless of
whether or not there are insurance proceeds available or whether any such
insurance proceeds are sufficient in amount to fully compensate for such loss or
damage, subject to Mortgagee's prior consent. Notwithstanding the foregoing,
Mortgagee shall have the right to join Mortgagor in settling, adjusting or
compromising any loss of $100,000 or more. Mortgagor hereby authorizes the
application or release by Mortgagee of any insurance proceeds under any policy
of insurance, subject to the other provisions hereof. The application or release
by Mortgagee of any insurance proceeds shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to such notice.
(d) In the event of the foreclosure hereof or other transfer of the
title to the Mortgaged Property in extinguishment, in whole or in part, of the
indebtedness secured hereby, all right, title and interest of Mortgagor in and
to any insurance policy, or premiums or payments in satisfaction of claims or
any other rights thereunder then in force, shall pass to the purchaser or
grantee notwithstanding the amount of any bid at such foreclosure sale. Nothing
contained herein shall prevent the accrual of interest as provided in the Note
on any portion of the principal balance due under the Note until
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such time as insurance proceeds are actually received and applied to reduce the
principal balance outstanding.
(e) Mortgagor shall not take out separate insurance concurrent in form
or contributing in the event of loss with that required to be maintained under
this Section 1.09 unless Mortgagee is included thereon as a named insured with
loss payable to Mortgagee under standard mortgage endorsements of the character
and to the extent above described. Mortgagor shall promptly notify Mortgagee
whenever any such separate insurance is taken out and shall promptly deliver to
Mortgagee the policy or policies of such insurance.
(f) Any and all monies received as payment which Mortgagor may be
entitled to receive for loss or damage to the Premises, Improvements or Chattels
under any insurance maintained pursuant to this Section 1.09 (other than
proceeds under the policies required by clause (a)(ii) above) shall be paid over
to Mortgagee and, at Mortgagee's option, either applied to the prepayment of the
Note and all interest and other sums accrued and unpaid in respect thereof or
disbursed from time to time to Mortgagor in reimbursement of its costs and
expenses incurred in the restoration of the Improvements in accordance with
Mortgagee's standard construction lending practices, terms and conditions, in
either case, less Mortgagee's reasonable expenses for collecting and, if
applicable, disbursing the insurance proceeds, or otherwise incurred in
connection therewith. Notwithstanding the provisions of the immediately
preceding sentence, provided no default exists hereunder, Mortgagee agrees to
apply any such proceeds received by it to the reimbursement of Mortgagor's costs
of restoring the Improvements. Advances of insurance proceeds shall be made to
Mortgagor from time to time in accordance with Mortgagee's standard construction
lending practices, terms and conditions; amounts not required for such purposes
shall be applied, at Mortgagee's option, to the prepayment of the Note and to
interest accrued and unpaid thereon in such order and proportions as Mortgagee
may elect. In no event shall Mortgagee be required to advance such proceeds to
Mortgagor unless Mortgagee shall have (i) received satisfactory evidence that
the funding/expiration dates of the commitment, if any, for the permanent
financing of the Improvements have been extended for such period of time as is
reasonably necessary to complete said restoration and (ii) reasonably determined
that the restoration of the Improvements can be completed by the Maturity Date
of the Note at a cost which does not exceed the amount of available insurance
proceeds or, in the event that such proceeds are reasonably determined by
Mortgagee to be inadequate, Mortgagee shall have received from Mortgagor a cash
deposit equal to the excess of said estimated cost of restoration over the
amount of said available proceeds. If the conditions for the advance of
insurance proceeds for restoration set forth in clauses (i) and (ii) above are
not satisfied within sixty (60) days of Mortgagee's receipt thereof or if the
actual restoration shall not have been commenced within such period, Mortgagee
shall have the option at any time thereafter to apply such insurance proceeds to
the payment of the Note and to interest accrued and unpaid thereon in such order
and proportions as Mortgagee may elect.
Section 1.10. Protective Advances by Mortgagee. If Mortgagor shall fail
to perform any of the covenants contained herein, Mortgagee may make advances to
perform the same on its behalf and all sums so advanced shall be a lien upon the
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Mortgaged Property and shall be secured hereby. Mortgagor will repay on demand
all sums so advanced on its behalf together with interest thereon at the Default
Rate. The provisions of this Section shall not prevent any default in the
observance of any covenant contained herein from constituting an Event of
Default.
Section 1.11. (a) Visitation and Inspection. Mortgagor will keep
adequate records and books of account in accordance with generally accepted
accounting principles and will permit Mortgagee, by its agents, accountants and
attorneys, to visit and inspect the Mortgaged Property and examine its records
and books of account and make copies thereof or extracts therefrom, and to
discuss its affairs, finances and accounts with the officers or general
partners, as the case may be, of Mortgagor, at such reasonable times as may be
requested by Mortgagee.
(b) Financial and Other Information. Mortgagor will deliver to
Mortgagee with reasonable promptness such financial information with respect to
Mortgagor or the Premises as Mortgagee may reasonably request from time to time.
All financial statements of Mortgagor shall be prepared in accordance with
generally accepted accounting principles and shall be accompanied by the
certificate of a principal financial or accounting officer or general partner,
as the case may be, of Mortgagor, dated within five (5) days of the delivery of
such statements to Mortgagee, stating that he or she knows of no Event of
Default, nor of any event which after notice or lapse of time or both would
constitute an Event of Default, which has occurred and is continuing, or, if any
such event or Event of Default has occurred and is continuing, specifying the
nature and period of existence thereof and what action Mortgagor has taken or
proposes to take with respect thereto, and, except as otherwise specified,
stating that Mortgagor has fulfilled all of its obligations hereunder and
otherwise in respect of the Loan which are required to be fulfilled on or prior
to the date of such certificate.
(c) Estoppel Certificates. Mortgagor, within three (3) days upon
request in person or within five (5) days upon request by mail, will furnish a
statement, duly acknowledged, of the amount due whether for principal or
interest on this Mortgage and whether any offsets, counterclaims or defenses
exist against the indebtedness secured hereby.
Section 1.12. Maintenance of Premises and Improvements. Mortgagor will
not commit any waste on the Premises or make any change in the use of the
Premises which will in any way increase any ordinary fire or other hazard
arising out of construction or operation. Mortgagor will, or shall cause its
Lessee to, at all times, maintain the Improvements and Chattels in good
operating order and condition and will promptly make, from time to time, all
repairs, renewals, replacements, additions and improvements in connection
therewith which are needful or desirable to such end. The Improvements shall not
be demolished or substantially altered, nor shall any Chattels be removed
without Mortgagee's prior consent except where appropriate replacements free of
superior title, liens and claims are immediately made of value at least equal to
the value of the removed Chattels.
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Section 1.13. Condemnation. Mortgagor, immediately upon obtaining
knowledge of the institution or pending institution of any proceedings for the
condemnation of the Premises or any portion thereof, will notify Mortgagee
thereof. Mortgagee may participate in any such proceedings and may be
represented therein by counsel of its selection. Mortgagor from time to time
will deliver to Mortgagee all instruments requested by it to permit or
facilitate such participation. In the event of such condemnation proceedings,
the award or compensation payable is hereby assigned to and shall be paid to
Mortgagee. Mortgagee shall be under no obligation to question the amount of any
such award or compensation and may accept the same in the amount in which the
same shall be paid. The proceeds of any award or compensation so received shall,
at Mortgagee's option, either be applied to the prepayment of the Note and all
interest and other sums accrued and unpaid in respect thereof at the rate of
interest provided therein regardless of the rate of interest payable on the
award by the condemning authority, or be disbursed to Mortgagor from time to
time for restoration of the Improvements in accordance with Mortgagee's standard
construction lending practices, terms and conditions, in either case, less
Mortgagee's reasonable expenses for collecting and, if applicable, disbursing
the award, or otherwise incurred in connection therewith. Notwithstanding the
provisions of the immediately preceding sentence, provided no monetary or
bankruptcy related default or any Event of Default exists hereunder, Mortgagee
agrees to apply any such condemnation award proceeds received by it to the
reimbursement of Mortgagor's costs of restoring the Improvements. Advances of
condemnation award proceeds shall be made to Mortgagor from time to time in
accordance with Mortgagee's standard construction lending practices, terms and
conditions; amounts not required for such purposes shall be applied, at
Mortgagee's option, to the prepayment of the Note and to interest accrued and
unpaid thereon (at the rate of interest provided therein regardless of the rate
of interest payable on the award by the condemning authority) in such order and
proportions as Mortgagee may elect.
Section 1.14. Leases. (a) Mortgagor will not (i) execute an assignment
of the rents or any part thereof from the Premises without Mortgagee's prior
consent, (ii) except where the lessee is in default thereunder, terminate or
consent to the cancellation or surrender of any lease of the Premises or of any
part thereof, now existing or hereafter to be made, having an unexpired term of
one (1) year or more, provided, however, that any lease may be cancelled if
promptly after the cancellation thereof a new lease is entered into with a new
lessee having a credit standing at least equivalent to that of the lessee whose
lease was cancelled, on substantially the same terms as the terminated or
cancelled lease, (iii) modify any such lease so as to shorten the unexpired term
thereof or so as to decrease, waive or compromise in any manner the amount of
the rents payable thereunder or materially expand the obligations of the lessor
thereunder, (iv) accept prepayments of more than one month of any installments
of rents to become due under such leases, except prepayments in the nature of
security for the performance of the lessees thereunder, (v) modify, release or
terminate any guaranties of any such lease or (vi) in any other manner impair
the value of the Mortgaged Property or the security hereof.
(b) Mortgagor will not execute any lease of all or a substantial
portion of the Premises except for actual occupancy by the lessee thereunder or
its property manager,
14
and will at all times promptly and faithfully perform, or cause to be performed,
all of the covenants, conditions and agreements contained in all leases of the
Premises or portions thereof now or hereafter existing, on the part of the
lessor thereunder to be kept and performed and will at all times do all things
reasonably necessary to compel performance by the lessee under each lease of all
obligations, covenants and agreements by such lessee to be performed thereunder.
If any of such leases provide for the giving by the lessee of certificates with
respect to the status of such leases, Mortgagor shall exercise its right to
request such certificates within five (5) days of any demand therefor by
Mortgagee and shall deliver copies thereof to Mortgagee promptly upon receipt.
(c) In the event of the enforcement by Mortgagee of the remedies
provided for hereby or by law, the lessee under each of the leases of the
Premises will, upon request of any person succeeding to the interest of
Mortgagor as a result of such enforcement, automatically become the lessee of
said successor in interest, without change in the terms or other provisions of
such lease, provided, however, that said successor in interest shall not be
bound by (i) any payment of rent or additional rent for more than one (1) month
in advance, except prepayments in the nature of security for the performance by
said lessee of its obligations under said lease or (ii) any amendment or
modification of the lease made without the consent of Mortgagee or such
successor in interest. Each lease shall also provide that, upon request by said
successor in interest, such lessee shall execute and deliver an instrument or
instruments confirming such attornment.
Section 1.15. Premises Documents. Mortgagor shall (a) do all things
reasonably necessary to cause the due compliance and faithful performance by the
other parties to the Premises Documents with and of all obligations and
agreements by such other parties to be complied with and performed thereunder,
except for any continuing failure of the Premises to comply with the Premises
Documents of the date of the acquisition hereof from Mortgagee or its affiliate,
and (b) deliver promptly to Mortgagee copies of any notices which it gives or
receives under any of the Premises Documents.
Section 1.16. Trust Fund; Lien Laws. Mortgagor will receive the
advances secured hereby and will hold the right to receive such advances as a
trust fund to be applied first for the purpose of paying the costs of
improvements on the Premises and will apply the same first to the payment of
such costs before using any part of the total of the same for any other purpose.
Mortgagor will indemnify and hold Mortgagee harmless against any loss or
liability, cost or expense, including, without limitation, any judgments,
attorney's fees, costs of appeal bonds and printing costs, arising out of or
relating to any proceeding instituted by any claimant alleging a violation by
Mortgagor of any applicable lien law.
ARTICLE II
EVENTS OF DEFAULT AND REMEDIES
Section 2.01. Events of Default and Certain Remedies. If one or more of
the following Events of Default shall happen, that is to say:
15
(a) if (i) default shall be made in the payment of any
principal, interest, fees or other sums under the Note, in any such
case, when and as the same shall become due and payable, whether at
maturity or by acceleration or as part of any payment or prepayment or
otherwise, in each case, as herein or in the Note provided, and such
default shall have continued for a period of ten (10) days or (ii)
default shall be made in the payment of any tax or other charge
required by Section 1.07 to be paid and said default shall have
continued for a period of twenty (20) days; or
(b) if default shall be made in the due observance or
performance of any covenant, condition or agreement in the Note, this
Mortgage or in any other document executed or delivered to Mortgagee in
connection with the Loan, and such default shall have continued for a
period of thirty (30) days after notice thereof shall have been given
to Mortgagor by Mortgagee, or, in the case of such other documents,
such xxxxxxx xxxxx period, if any, as may be provided for therein; or
(c) if any representation or warranty made by Mortgagor in
Section 1.01 shall be incorrect, or if any other representation or
warranty made to Mortgagee in this Mortgage, or in any other document,
certificate or statement executed or delivered to Mortgagee in
connection with the Loan shall be incorrect in any material respect
when made or remade; or
(d) if by order of a court of competent jurisdiction, a
trustee, receiver or liquidator of the Mortgaged Property or any part
thereof, or of Mortgagor shall be appointed and such order shall not be
discharged or dismissed within sixty (60) days after such appointment;
or
(e) if Mortgagor shall file a petition in bankruptcy or for an
arrangement or for reorganization pursuant to the Federal Bankruptcy
Act or any similar federal or state law, or if, by decree of a court of
competent jurisdiction, Mortgagor shall be adjudicated a bankrupt, or
be declared insolvent, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall consent to the appointment of a
receiver or receivers of all or any part of its property; or
(f) if any of the creditors of Mortgagor shall file a petition
in bankruptcy against Mortgagor or for reorganization of Mortgagor
pursuant to the Federal Bankruptcy Act or any similar federal or state
law, and if such petition shall not be discharged or dismissed within
sixty (60) days after the date on which such petition was filed; or
(g) if final judgment for the payment of money shall be
rendered against Mortgagor and Mortgagor shall not discharge the same
or cause it to be discharged within sixty (60) days from the entry
thereof, or shall not appeal therefrom or from the order, decree or
process upon which or pursuant to which
16
said judgment was granted, based or entered, and secure a stay of
execution pending such appeal; or
(h) [Intentionally Omitted]; or
(i) if there shall occur a default which is not cured within
the applicable grace period, if any, under any mortgage, deed of trust
or other security instrument covering all or part of the Mortgaged
Property regardless of whether any such mortgage, deed of trust or
other security instrument is prior or subordinate hereto; it being
further agreed by Mortgagor that an Event of Default hereunder shall
constitute an Event of Default under any such mortgage, deed of trust
or other security instrument held by Mortgagee; or
(j) if there shall occur a default which is not cured within
the applicable grace period, if any, under any of the Premises
Documents, except for any continuing failure of the Premises to comply
with the Premises Documents of the date of the acquisition hereof from
Mortgagee or its affiliate; or if any of the Premises Documents is
amended, modified, supplemented or terminated without Mortgagee's prior
consent; or
(k) if Mortgagor shall transfer, or agree to transfer (or
suffer or permit the transfer or agreement to transfer), in any manner,
either voluntarily or involuntarily, by operation of law or otherwise,
all or any portion of the Mortgaged Property, or any interest or rights
therein (including air or development rights) without, in any such
case, Mortgagee's prior consent. As used in this clause, "transfer"
shall include, without limitation, any sale, assignment, lease (other
than to Lessee) or conveyance except leases for occupancy subordinate
hereto and to all advances made and to be made hereunder or, in the
event Mortgagor (or a general partner or co-venturer thereof) is a
partnership, joint venture, limited liability company, trust or
closely-held corporation, the sale, conveyance, transfer or other
disposition of more than 10%, in the aggregate, of any class of the
issued and outstanding capital stock of such closely-held corporation
or of the beneficial interest of such partnership, venture, limited
liability company or trust, or a change of any general partner, joint
venturer, member or beneficiary, as the case may be. In the event
Mortgagor is a limited partnership, and so long as a limited partner
has contributed to (or remains personally liable for) the present and
future partnership capital contributions required of such limited
partner by the partnership agreement, such partner may sell, convey,
devise, transfer or dispose of all or a part of his limited partnership
interest to his spouse, children, grandchildren or a family trust in
which his spouse, children or grandchildren are sole beneficiaries; or
(l) if Mortgagor shall encumber, or agree to encumber, in any
manner, either voluntarily or involuntarily, by operation of law or
otherwise, all or any portion of the Mortgaged Property, or any
interest or rights therein (including air or development rights)
without, in any such case, Mortgagee's prior consent. As used in this
clause, "encumber" shall include, without limitation, the placing or
17
permitting the placing of any mortgage, deed of trust, assignment of
rents or other security device. (Mortgagee may grant or deny its
consent under this clause and the immediately preceding clause in its
sole discretion and, if consent should be given, any such transfer or
encumbrance shall be subject hereto and to any other documents which
evidence or secure the Loan, and, if a transfer, any such transferee
shall assume all of Mortgagor's obligations hereunder and thereunder
and agree to be bound by all provisions and perform all obligations
contained herein and therein; consent to one such transfer or
encumbrance shall not be deemed to be a waiver of the right to require
consent to future or successive transfers or encumbrances);
then and in every such case:
I. During the continuance of any such Event of Default,
Mortgagee, by notice to Mortgagor, may declare the entire principal of
the Note then outstanding (if not then due and payable), and all
accrued and unpaid interest and other sums in respect thereof, to be
due and payable immediately, and upon any such declaration the
principal of the Note and said accrued and unpaid interest and other
sums shall become and be immediately due and payable, anything herein
or in the Note (other than Section 3.08 hereof, the provisions thereof
limiting interest payable thereunder to the maximum amount permitted by
applicable law) to the contrary notwithstanding.
II. During the continuance of any such Event of Default,
Mortgagee personally, or by its agents or attorneys, may enter into and
upon all or any part of the Premises, and each and every part thereof,
and is hereby given a right and license and appointed Mortgagor's
attorney-in-fact and exclusive agent to do so, and may exclude
Mortgagor, its agents and servants wholly therefrom; and having and
holding the same, may use, operate, manage and control the Premises and
conduct the business thereof, either personally or by its
superintendents, managers, agents, servants, attorneys or receivers;
and upon every such entry, Mortgagee, at the expense of the Mortgaged
Property, from time to time, either by purchase, repairs or
construction, may maintain and restore the Mortgaged Property, whereof
it shall become possessed as aforesaid; may complete the construction
of the Improvements and in the course of such completion may make such
changes in the contemplated Improvements as Mortgagee may deem
desirable and may insure the same; and likewise, from time to time, at
the expense of the Mortgaged Property, Mortgagee may make all necessary
or proper repairs, renewals and replacements and such useful
alterations, additions, betterments and improvements thereto and
thereon as to it may seem advisable; and in every such case Mortgagee
shall have the right to manage and operate the Mortgaged Property and
to carry on the business thereof and exercise all rights and powers of
Mortgagor with respect thereto either in the name of Mortgagor or
otherwise as it shall deem best; and Mortgagee shall be entitled to
collect and receive the Rents and every part thereof, all of which
shall for all purposes constitute property of Mortgagor; and in
furtherance of such right Mortgagee may collect the rents payable under
all leases of the Premises directly from the lessees thereunder upon
18
notice to each such lessee that an Event of Default exists hereunder
accompanied by a demand on such lessee for the payment to Mortgagee of
all rents due and to become due under its lease, and Mortgagor FOR THE
BENEFIT OF MORTGAGEE AND EACH SUCH LESSEE hereby covenants and agrees
that the lessee shall be under no duty to question the accuracy of
Mortgagee's statement of default and shall unequivocally be authorized
to pay said rents to Mortgagee without regard to the truth of
Mortgagee's statement of default and notwithstanding notices from
Mortgagor disputing the existence of an Event of Default such that the
payment of rent by the lessee to Mortgagee pursuant to such a demand
shall constitute performance in full of the lessee's obligation under
the lease for the payment of rents by the lessee to Mortgagor; and
after deducting the expenses of conducting the business thereof and of
all maintenance, repairs, renewals, replacements, alterations,
additions, betterments and improvements and amounts necessary to pay
for taxes, assessments, insurance and prior or other proper charges
upon the Mortgaged Property or any part thereof, as well as just and
reasonable compensation for the services of Mortgagee and for all
attorneys, counsel, agents, clerks, servants and other employees by it
engaged and employed, Mortgagee shall apply the moneys arising as
aforesaid, first, to the payment of the principal of the Note and the
interest thereon, when and as the same shall become payable and in such
order and proportions as Mortgagee shall elect and second, to the
payment of any other sums required to be paid by Mortgagor hereunder.
III. Mortgagee, with or without entry, personally or by its
agents or attorneys, insofar as applicable, may:
(1) sell the Mortgaged Property to the extent permitted
and pursuant to the procedures provided by law, and all estate,
right, title and interest, claim and demand therein, and right
of redemption thereof, at one (1) or more sales as an entity or
in parcels or parts, and at such time and place upon such terms
and after such notice thereof as may be required or permitted
by law; or
(2) institute proceedings for the complete or partial
foreclosure hereof; or
(3) take such steps to protect and enforce its rights
whether by action, suit or proceeding in equity or at law for
the specific performance of any covenant, condition or
agreement in the Note or herein, or in aid of the execution of
any power herein granted, or for any foreclosure hereunder, or
for the enforcement of any other appropriate legal or equitable
remedy or otherwise as Mortgagee shall elect.
Section 2.02. Other Matters Concerning Sales. (a) Mortgagee may adjourn
from time to time any sale by it to be made hereunder or by virtue hereof by
announcement at the time and place appointed for such sale or for such adjourned
sale or sales; and, except as otherwise provided by any applicable provision of
law, Mortgagee,
19
without further notice or publication, may make such sale at the time and place
to which the same shall be so adjourned.
(b) Upon the completion of any sale or sales made by Mortgagee under or
by virtue of this Article II, Mortgagee, or an officer of any court empowered to
do so, shall execute and deliver to the accepted purchaser or purchasers a good
and sufficient instrument or instruments conveying, assigning and transferring
all estate, right, title and interest in and to the property and rights sold.
Mortgagee is hereby appointed the true and lawful attorney irrevocable of
Mortgagor, in its name and stead, to make all necessary conveyances,
assignments, transfers and deliveries of the Mortgaged Property and rights so
sold and for that purpose Mortgagee may execute all necessary instruments of
conveyance, assignment and transfer, and may substitute one or more persons with
like power, Mortgagor hereby ratifying and confirming all that its said attorney
or such substitute or substitutes shall lawfully do by virtue hereof.
Nevertheless, Mortgagor, if requested by Mortgagee, shall ratify and confirm any
such sale or sales by executing and delivering to Mortgagee or to such purchaser
or purchasers all such instruments as may be advisable, in the judgment of
Mortgagee, for the purpose, and as may be designated in such request. Any such
sale or sales made under or by virtue of this Article II, whether made under the
power of sale herein granted or under or by virtue of judicial proceedings or of
a judgment or decree of foreclosure and sale, shall operate to divest all the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of Mortgagor in and to the properties and rights so sold, and shall
be a perpetual bar both at law and in equity against Mortgagor and against any
and all persons claiming or who may claim the same, or any part thereof from,
through or under Mortgagor.
(c) In the event of any sale or sales made under or by virtue of this
Article II (whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale), the entire principal of, and interest and other sums on, the Note, if not
previously due and payable, and all other sums required to be paid by Mortgagor
pursuant hereto, immediately thereupon shall, anything in any of said documents
(other than Section 3.08 hereof) to the contrary notwithstanding, become due and
payable.
(d) The purchase money, proceeds or avails of any sale or sales made
under or by virtue of this Article II, together with any other sums which then
may be held by Mortgagee hereunder, whether under the provisions of this Article
II or otherwise, shall be applied as follows:
First: To the payment of the costs and expenses of such sale,
including reasonable compensation to Mortgagee, its agents and counsel,
and of any judicial proceedings wherein the same may be made, and of
all expenses, liabilities and advances made or incurred by Mortgagee
hereunder, together with interest at the Default Rate on all advances
made by Mortgagee, and of all taxes, assessments or other charges,
except any taxes, assessments or other charges subject to which the
Mortgaged Property shall have been sold.
20
Second: To the payment of the whole amount then due, owing or
unpaid upon the Note for principal and interest, with interest on the
unpaid principal at the Default Rate from and after the happening of
any Event of Default described in clause (a) of Section 2.01 from the
due date of any such payment of principal until the same is paid, in
such order and amounts as Mortgagee may elect.
Third: To the payment of any other sums required to be paid by
Mortgagor pursuant to any provision hereof or of the Note, including
all expenses, liabilities and advances made or incurred by Mortgagee
hereunder or in connection with the enforcement hereof, together with
interest at the Default Rate on all such advances.
Fourth: To the payment of the surplus, if any, to whomsoever
may be lawfully entitled to receive the same.
(e) Upon any sale or sales made under or by virtue of this Article II,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale,
Mortgagee may bid for and acquire the Mortgaged Property or any part thereof and
in lieu of paying cash therefor may make settlement for the purchase price by
crediting upon the indebtedness secured hereby the net sales price after
deducting therefrom the expenses of the sale and the costs of the action and any
other sums which Mortgagee is authorized to deduct hereunder.
Section 2.03. Payment of Amounts Due. (a) In case an Event of Default
described in clause (a) of Section 2.01 shall have happened and be continuing,
then, upon demand of Mortgagee, Mortgagor will pay to Mortgagee the whole amount
which then shall have become due and payable on the Note, for principal or
interest or both, as the case may be, and after the happening of said Event of
Default will also pay to Mortgagee interest at the Default Rate on the then
unpaid principal of the Note, and the sums required to be paid by Mortgagor
pursuant to any provision hereof, and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to Mortgagee, its agents and counsel and any expenses
incurred by Mortgagee hereunder. In the event Mortgagor shall fail forthwith to
pay all such amounts upon such demand, Mortgagee shall be entitled and empowered
to institute such action or proceedings at law or in equity as may be advised by
its counsel for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce any
such judgment or final decree against Mortgagor and collect, out of the property
of Mortgagor wherever situated, as well as out of the Mortgaged Property, in any
manner provided by law, moneys adjudged or decreed to be payable.
(b) Mortgagee shall be entitled to recover judgment as aforesaid either
before, after or during the pendency of any proceedings for the enforcement of
the provisions hereof; and the right of Mortgagee to recover such judgment shall
not be affected by any entry or sale hereunder, or by the exercise of any other
right, power or remedy for the enforcement of the provisions hereof, or the
foreclosure of the lien hereof; and in the event of a sale of the Mortgaged
Property, and of the application of the proceeds of sale,
21
as herein provided, to the payment of the debt hereby secured, Mortgagee shall
be entitled to enforce payment of, and to receive all amounts then remaining due
and unpaid upon, the Note, and to enforce payment of all other charges, payments
and costs due hereunder or otherwise in respect of the Loan, and shall be
entitled to recover judgment for any portion of the debt remaining unpaid, with
interest at the Default Rate. In case of proceedings against Mortgagor in
insolvency or bankruptcy or any proceedings for its reorganization or involving
the liquidation of its assets, then Mortgagee shall be entitled to prove the
whole amount of principal, interest and other sums due upon the Note to the full
amount thereof, and all other payments, charges and costs due hereunder or
otherwise in respect of the Loan, without deducting therefrom any proceeds
obtained from the sale of the whole or any part of the Mortgaged Property,
provided, however, that in no case shall Mortgagee receive, from the aggregate
amount of the proceeds of the sale of the Mortgaged Property and the
distribution from the estate of Mortgagor, a greater amount than such principal
and interest and such other payments, charges and costs.
(c) No recovery of any judgment by Mortgagee and no levy of an
execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect in any manner or to any extent, the lien
hereof upon the Mortgaged Property or any part thereof, or any liens, rights,
powers or remedies of Mortgagee hereunder, but such liens, rights, powers and
remedies of Mortgagee shall continue unimpaired as before.
(d) Any moneys thus collected by Mortgagee under this Section 2.03
shall be applied by Mortgagee in accordance with the provisions of clause (d) of
Section 2.02.
Section 2.04. Actions; Receivers. After the happening of any Event of
Default and immediately upon the commencement of any action, suit or other legal
proceedings by Mortgagee to obtain judgment for the principal of, or interest
on, the Note and other sums required to be paid by Mortgagor pursuant to any
provision hereof, or of any other nature in aid of the enforcement of the Note
or hereof, Mortgagor will (a) waive the issuance and service of process and
enter its voluntary appearance in such action, suit or proceeding and (b) if
required by Mortgagee, consent to the appointment of a receiver or receivers of
all or part of the Mortgaged Property and of any or all of the Rents in respect
thereof. After the happening of any Event of Default and during its continuance,
or upon the commencement of any proceedings to foreclose this Mortgage or to
enforce the specific performance hereof or in aid thereof or upon the
commencement of any other judicial proceeding to enforce any right of Mortgagee,
Mortgagee shall be entitled, as a matter of right, if it shall so elect, without
the giving of notice to any other party and without regard to the adequacy or
inadequacy of any security for the indebtedness secured hereby, forthwith either
before or after declaring the unpaid principal of the Note to be due and
payable, to the appointment of such a receiver or receivers. Such appointment
may be made either before or after any foreclosure sale without regard to the
solvency or insolvency of Mortgagor at the time of application for such receiver
and without regard to the then value of the Premises or whether the same shall
be then occupied as a homestead or not and Mortgagee may be appointed as such
receiver. Such receiver shall have (i) power to collect the rents, issues and
profits of the Premises and, in case of a foreclosure sale and a deficiency,
during the full statutory period
22
of redemption, whether there be redemption or not, as well as during any further
times when Mortgagor, except for the intervention of such receiver, would be
entitled to collect such rents, issues and profits, (ii) power to extend or
modify any then existing leases and to make new leases, which extensions,
modifications and new lease may provide for terms to expire, or for options to
lessees to extend or renew terms to expire, beyond the maturity date of the
indebtedness secured hereby and beyond the date of the issuance of a deed or
deeds to a purchaser or purchasers at a foreclosure sale, it being understood
and agreed that any such leases, and the options or other such provisions to be
contained therein, shall be binding upon Mortgagor and all persons whose
interest in the Mortgaged Property are subject to the lien hereof and upon the
purchaser or purchasers at any foreclosure sale, notwithstanding any redemption
from sale, discharge of the indebtedness secured hereby, satisfaction of any
foreclosure decree, or issuance of any certificate of sale or deed to any
purchaser and (iii) all other powers which may be necessary or are usual in such
cases for the protection, possession, control, management and operation of the
Mortgaged Property during the whole of said period. The court from time to time
may authorize the receiver to apply the net income in his hands in payment in
whole or in part of: (x) the indebtedness secured hereby, or by any decree
foreclosing this Mortgage, or any tax, special assessment or other lien which
may be or become superior to the lien hereof or of such decree, provided such
application is made prior to foreclosure sale and (y) the deficiency in case of
a foreclosure sale and deficiency.
In connection with the foregoing it is understood and agreed that
Mortgagor's failure to pay taxes and/or assessments against the Premises, or any
installment thereof, or any insurance premiums upon the policies required by
this Mortgage, shall constitute waste as provided by Act 236 of the Public Acts
of 1961 of Michigan (Revised Judicature Act), Section 600.2927, as and if
amended from time to time, or any successor statute; and Mortgagor agrees to and
hereby consents to the appointment of a receiver under said statute should
Mortgagee elect to resort to its remedies thereunder.
Section 2.05. Mortgagee's Right to Possession. Notwithstanding the
appointment of any receiver, liquidator or trustee of Mortgagor, or of any of
its property, or of the Mortgaged Property or any part thereof, Mortgagee shall
be entitled to retain possession and control of all property now or hereafter
held hereunder.
Section 2.06. Remedies Cumulative. No remedy herein conferred upon or
reserved to Mortgagee is intended to be exclusive of any other remedy or
remedies, and each and every such remedy shall be cumulative, and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law, in equity or by statute. No delay or omission of Mortgagee to exercise any
right or power accruing upon any Event of Default shall impair any such right or
power, or shall be construed to be a waiver of any such Event of Default or any
acquiescence therein; and every power and remedy given hereby to Mortgagee may
be exercised from time to time as often as may be deemed expedient by Mortgagee.
Nothing herein or in the Note shall affect the obligation of Mortgagor to pay
the principal of, and interest and other sums on, the Note in the manner and at
the time and place therein respectively expressed.
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Section 2.07. Moratorium Laws; Right of Redemption. Mortgagor will not
at any time insist upon, or plead, or in any manner whatever claim or take any
benefit or advantage of any stay or extension or moratorium law, any exemption
from execution or sale of the Mortgaged Property or any part thereof, wherever
enacted, now or at any time hereafter in force, which may affect the covenants
and terms of performance hereof, nor claim, take or insist upon any benefit or
advantage of any law now or hereafter in force providing for the valuation or
appraisal of the Mortgaged Property, or any part thereof, prior to any sale or
sales thereof which may be made pursuant to any provision herein, or pursuant to
any decree, judgment or order of any court of competent jurisdiction; nor, after
any such sale or sales, claim or exercise any right under any statute heretofore
or hereafter enacted to redeem the property so sold or any part thereof and
Mortgagor hereby expressly waives all benefit or advantage of any such law or
laws, and covenants not to hinder, delay or impede the execution of any power
herein granted or delegated to Mortgagee, but to suffer and permit the execution
of every power as though no such law or laws had been made or enacted.
Mortgagor, for itself and all who may claim under it, waives, to the extent that
it lawfully may, all right to have the Mortgaged Property marshaled upon any
foreclosure hereof. Mortgagor hereby waives any and all rights of redemption
from sale under any order or decree of foreclosure of this Mortgage on behalf of
Mortgagor and all persons beneficially interested therein, and each and every
person except decree or judgment creditors of Mortgagor in its representative
capacity acquiring any interest in or title to the Premises subsequent to the
date of this Mortgage.
Section 2.08. Regarding Defenses. No action for the enforcement of the
lien or any provision hereof shall be subject to any defense which would not be
good and available to the party interposing the same in an action at law upon
the Note.
Section 2.09. Expenses as Indebtedness. In any suit to foreclose the
lien hereof (including any partial foreclosure) or to enforce any other remedy
of Mortgagee under this Mortgage or the Note or other Loan documents or
otherwise in respect of the Loan, there shall be allowed and included as
additional indebtedness in the decree for sale or other judgment or decree all
expenditures and expenses which may be paid or incurred by or on behalf of
Mortgagee for attorneys' fees, appraiser's fees, outlays for documentary and
expert evidence, stenographer's charges, publication costs, and costs (which may
be estimated as to items to be expended after entry of the decree) of procuring
all such abstracts of title, title searches and examinations, title insurance
policies, Torrens certificates, and similar data and assurances with respect to
title and value as Mortgagee may deem reasonably necessary either to prosecute
such suit or to evidence to bidders at any sale which may be had pursuant to
such decree the true condition of the title to or the value of the Premises.
Section 2.10. Mortgagee's Rights Concerning Application of Amounts
Collected. Notwithstanding anything to the contrary contained herein, upon the
occurrence of an Event of Default, Mortgagee may apply, to the extent permitted
by law, any amount collected hereunder to principal, interest or any other sum
due under the Note or otherwise in respect of the Loan in such order and
amounts, and to such obligations, as Mortgagee shall elect in its sole and
absolute discretion.
24
ARTICLE III
MISCELLANEOUS
Section 3.01. Assignment of Rents. This Mortgage is intended to
constitute a present, absolute and irrevocable assignment of all of the Rents
now or hereafter accruing, and Mortgagor, without limiting the generality of the
Granting Clause hereof, specifically hereby presently, absolutely and
irrevocably assigns all of the Rents now or hereafter accruing to Mortgagee. The
aforesaid assignment shall be effective immediately upon the execution hereof
and is not conditioned upon the occurrence of any Event of Default hereunder or
any other contingency or event, provided, however, that Mortgagee hereby grants
to Mortgagor the right and license to collect and receive the Rents as they
become due, and not in advance, so long as no Event of Default exists hereunder.
Immediately upon the occurrence of any such Event of Default, the foregoing
right and license shall be automatically terminated and of no further force or
effect. Nothing contained in this Section or elsewhere herein shall be construed
to make Mortgagee a mortgagee in possession unless and until Mortgagee actually
takes possession of the Mortgaged Property, nor to obligate Mortgagee to take
any action or incur any expense or discharge any duty or liability under or in
respect of any leases or other agreements relating to the Mortgaged Property or
any part thereof. The foregoing provisions of this Section and Mortgagee's
rights under this Mortgage generally, including, without limitation, under
clauses (v) or (viii) of the Granting Clause, are in addition to and not in lieu
of Mortgagee's rights and benefits under Act 210 of the Public Acts of Michigan
of 1953, as amended, and under Act 228 of the Public Acts of Michigan of 1925,
as amended.
Section 3.02. Security Agreement. This Mortgage constitutes a security
agreement under the applicable Uniform Commercial Code with respect to the
Chattels and such other of the Mortgaged Property which is personal property. In
addition to the rights and remedies granted to Mortgagee by other applicable law
or hereby, Mortgagee shall have all of the rights and remedies with respect to
the Chattels and such other personal property as are granted to a secured party
under the applicable Uniform Commercial Code. Upon Mortgagee's request after an
Event of Default, Mortgagor shall promptly and at its expense assemble the
Chattels and such other personal property and make the same available to
Mortgagee at a convenient place acceptable to Mortgagee. Mortgagor, after an
Event of Default, shall pay to Mortgagee on demand, with interest at the Default
Rate, any and all expenses, including attorneys' fees, incurred by Mortgagee in
protecting its interest in the Chattels and such other personal property and in
enforcing its rights with respect thereto. Any notice of sale, disposition or
other intended action by Mortgagee with respect to the Chattels and such other
personal property sent to Mortgagor in accordance with the provisions hereof at
least five (5) days prior to such action shall constitute reasonable notice to
Mortgagor. The proceeds of any such sale or disposition, or any part thereof,
may be applied by Mortgagee to the payment of the indebtedness secured hereby in
such order and proportions as Mortgagee in its discretion shall deem
appropriate.
25
Section 3.03. Application of Certain Payments. In the event that all or
any part of the Mortgaged Property is encumbered by one or more mortgages held
by Mortgagee, Mortgagor hereby irrevocably authorizes and directs Mortgagee to
apply any payment received by Mortgagee in respect of any note secured hereby or
by any other such mortgage to the payment of such of said notes as Mortgagee
shall elect in its sole and absolute discretion, and Mortgagee shall have the
right to apply any such payment in reduction of principal and/or interest and in
such order and amounts as Mortgagee shall elect in its sole and absolute
discretion without regard to the priority of the mortgage securing the note so
repaid or to contrary directions from Mortgagor or any other party.
Section 3.04. Severability. In the event any one or more of the
provisions contained herein or in the Note shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision hereof, but this Mortgage
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein or therein.
Section 3.05. Modifications and Waivers in Writing. No provision hereof
may be changed, waived, discharged or terminated orally or by any other means
except an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. Any agreement hereafter
made by Mortgagor and Mortgagee relating hereto shall be superior to the rights
of the holder of any intervening or subordinate lien or encumbrance.
Section 3.06. Notices. All notices, demands, consents, approvals and
statements required or permitted hereunder shall be in writing and shall be
deemed to have been sufficiently given or served for all purposes when presented
personally, three (3) days after mailing by registered or certified mail,
postage prepaid, or one (1) day after delivery to a nationally recognized
overnight courier service providing evidence of the date of delivery, if to
Mortgagor at its address stated above, , with a copy to Xxxxxx X. Xxxxx, Esq.,
Jenkens & Xxxxxxxxx, 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000-0000, and
if to Mortgagee to its address stated above, or at such other address of which a
party shall have notified the party giving such notice in accordance with the
provisions of this Section.
Section 3.07. Successors and Assigns. All of the grants, covenants,
terms, provisions and conditions herein shall run with the land and shall apply
to, bind and inure to the benefit of, the respective successors and assigns of
Mortgagor and Mortgagee.
Section 3.08. Limitation on Interest. Anything herein or in the Note to
the contrary notwithstanding, the obligations of Mortgagor hereunder and under
the Note shall be subject to the limitation that payments of interest shall not
be required to the extent that receipt of any such payment by Mortgagee would be
contrary to provisions of law applicable to Mortgagee limiting the maximum rate
of interest that may be charged or collected by Mortgagee.
Section 3.09. Counterparts. This Mortgage may be executed in any number
of counterparts and each of such counterparts shall for all purposes be deemed
to be an
26
original; and all such counterparts shall together constitute but one and the
same mortgage.
Section 3.10. Substitute Mortgages. Mortgagor and Mortgagee shall, upon
their mutual agreement to do so, execute such documents as may be necessary in
order to effectuate the modification hereof, including the execution of
substitute mortgages, so as to create two (2) or more liens on the Mortgaged
Property in such amounts as may be mutually agreed upon but in no event to
exceed, in the aggregate, the unpaid principal portion of the Mortgage Amount;
in such event, Mortgagor covenants and agrees to pay the reasonable fees and
expenses of Mortgagee and its counsel in connection with any such modification.
Section 3.11. Mortgagee's Sale of Interests in Loan. Mortgagor
recognizes that Mortgagee may sell and transfer interests in the Loan to one or
more participants or assignees and that all documentation, financial statements,
appraisals and other data, or copies thereof, relevant to Mortgagor or the Loan,
may be exhibited to and retained by any such participant or assignee or
prospective participant or assignee.
Section 3.12. No Merger of Interests. Unless expressly provided
otherwise, in the event that ownership hereof and title to the fee and/or
leasehold estates in the Premises encumbered hereby shall become vested in the
same person or entity, this Mortgage shall not merge in said title but shall
continue to be and remain a valid and subsisting lien on said estates in the
Premises for the amount secured hereby.
Section 3.13. No Credit For Taxes. Mortgagor shall not claim or demand
or be entitled to receive any credit or credits on the principal indebtedness to
be secured by this Mortgage, or on the interest payable thereon, for any part of
the taxes assessed against the Premises and no deduction shall be made or
claimed from the taxable value of the Premises by reason of this Mortgage.
Section 3.14. No Consent to Contracts. Mortgagee does not consent to
any contract for labor or materials, and all contracts for labor or materials
that will be let by Mortgagor shall at all times be subordinate to the lien of
this Mortgage.
Section 3.15. Business Loan. Mortgagor represents and agrees that the
obligations secured hereby: (a) constitute a business loan and (b) are exempted
transactions under the federal Truth-in-Lending Act (15 U.S.C. Section 1601, et
seq.). None of the forgoing is intended, however, to vitiate or in any way
detract from the intention of Mortgagor and Mortgagee to have the laws of the
State of Tennessee apply in all respects to the construction and enforcement of
the Note, as said intention is expressly set forth therein.
Section 3.16. CERTAIN WAIVERS. MORTGAGOR EXPRESSLY AND UNCONDITIONALLY
WAIVES BY EXECUTION HEREOF, AND MORTGAGEE WAIVES BY ACCEPTANCE HEREOF, IN
CONNECTION WITH ANY FORECLOSURE OR SIMILAR ACTION OR PROCEDURE BROUGHT BY
MORTGAGEE ASSERTING AN EVENT OF DEFAULT UNDER CLAUSE (a) OF
27
SECTION 2.01 OF THIS MORTGAGE, ANY AND EVERY RIGHT IT MAY HAVE TO A TRIAL BY
JURY.
Section 3.17. GOVERNING LAW. THE PERFORMANCE REQUIRED BY THIS MORTGAGE
SHALL, INSOFAR AS IS POSSIBLE, BE RENDERED TO THE MORTGAGEE AT ITS OFFICE IN
TENNESSEE. MORTGAGOR AND MORTGAGEE INTEND THAT THE VALIDITY AND CONSTRUCTION OF
THE OBLIGATIONS SECURED BY THIS MORTGAGE BE GOVERNED BY THE LAWS OF THE STATE OF
TENNESSEE INCLUDING ALL OBLIGATIONS AND LIABILITIES HEREUNDER WITH RESPECT TO
THE PAYMENT OF INTEREST OR ANY OTHER COMPENSATION FOR THE USE, FORBEARANCE OR
DETENTION OF MONEY. THIS MORTGAGE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TENNESSEE, WITHOUT REFERENCE TO THE CONFLICTS OF
LAW PRINCIPLES OF THAT STATE, EXCEPT ONLY TO THE EXTENT THAT MICHIGAN LAW
EXPRESSLY PROVIDES THAT IT GOVERNS AND THAT A CONTRARY AGREEMENT BY THE PARTIES
IS INEFFECTIVE AND EXCEPT THAT THE LAW OF THE STATE OF MICHIGAN SHALL APPLY TO
ANY AND ALL ACTS WITH RESPECT TO THE CREATION AND PRIORITY OF THE LIEN OF THIS
MORTGAGE AND ASSIGNMENT OF LEASES AND RENTS ON THE MORTGAGED PROPERTY HEREBY
EVIDENCED AND ON THE MORTGAGED PROPERTY. MORTGAGOR AND MORTGAGEE COVENANT AND
AGREE TO TAKE ANY AND ALL ACTION WHICH MAY BE NECESSARY UNDER MICHIGAN LAW WITH
RESPECT TO FORECLOSURE UNDER THE LAWS OF THE STATE OF MICHIGAN. SHOULD ANY
OBLIGATION OR REMEDY UNDER THIS MORTGAGE BE INVALID OR UNENFORCEABLE UNDER THE
LAWS PROVIDED HEREIN TO GOVERN, THE LAWS OF ANOTHER STATE WHOSE LAWS CAN
VALIDATE AND APPLY TO THIS MORTGAGE SHALL APPLY.
28
IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered
by Mortgagor.
APPLE SUITES, INC.,
Witness: a Virginia corporation
/s/ Xxx Xxxxxxxx By /s/ Xxxxx X. Xxxxxx [L.S.]
---------------------------- --------------------------
Name: Name: Xxxxx X. Xxxxxx
Title: President
/s/ Xxxx X. Xxxxxx
----------------------------
Name:
APPLE SUITES MANAGEMENT, INC.,
Witness: a Virginia corporation
/s/ Xxx Xxxxxxxx By /s/ Xxxxx X. Xxxxxx [L.S.]
----------------------------- --------------------------
Name: Name: Xxxxx X. Xxxxxx
Title: President
/s/ Xxxx X. Xxxxxx
-----------------------------
Name:
STATE OF TEXAS
COUNTY OF TARRANT
THIS INSTRUMENT was acknowledged before me on the 29th day of
November, 1999, by Xxxxx X. Xxxxxx, President of Apple Suites, Inc., a Virginia
corporation, on behalf of said Apple Suites, Inc.
/s/ Xxxx M. A. Xxxx
--------------------------------
Notary Public, State of Texas
Printed Name: Xxxx M. A. Xxxx
Commission Expires: 3/31/02
STATE OF TEXAS
COUNTY OF TARRANT
THIS INSTRUMENT was acknowledged before me on the 29th day of
November, 1999, by Xxxxx X. Xxxxxx, President of Apple Suites Management, Inc.,
a Virginia corporation, on behalf of said Apple Suites Management, Inc.
/s/ Xxxx M. A. Xxxx
--------------------------------
Notary Public, State of Texas
Printed Name: Xxxx M. A. Xxxx
Commission Expires: 3/31/02
EXHIBIT "A"
LEGAL DESCRIPTION OF PREMISES
LAND IN THE CITY OF XXXXXX, MACOMB COUNTY, MICHIGAN, DESCRIBED AS: Part of the
Northwest 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of Xxxxxx, Macomb
County, Michigan being more particularly described as: Beginning at a point on
the east line of Civic Center Blvd., said point located north 89 degrees 39
minutes 10 seconds east along the east and west 1/4 line of said Section 10, a
distance of 1024.74 feet and north 00 degrees 33 minutes east along said east
line 280.14 feet and on a curve to the left (radius = 281.49 feet long chord
bears north 19 degrees 50 minutes 55 seconds west 196.22 feet) a distance of
200.43 feet from the west 1/4 corner of said Section 10; thence continuing on a
curve to the left (radius = 281.49 FEET LONG CHORD BEARS NORTH 42 DEGREES 29
MINUTES 09 SECONDS WEST 21.99 feet) a distance of 22.0 feet; thence north 45
degrees 16 minutes 30 seconds east 118.52 feet; thence north 03 degrees 25
minutes 47 seconds east 106.51 feet thence north 00 degrees 33 minutes east
310.00 feet; thence south 89 degrees 27 minutes east 176.39 feet; thence south
23 degrees 33 minutes west 97.22 feet; thence on a curve to the right (radius =
225.0 FEET, LONG CHORD BEARS SOUTH 38 DEGREES 40 MINUTES 08 SECONDS EAST 285.13
feet) a distance of 308.80 feet; thence South 00 degrees 38 minutes 58 seconds
west 144.40 feet; thence North 89 degrees 21 minutes 02 seconds West 286.44
feet; thence on a curve to the left (radius = 105.0 feet long chord bears South
67 degrees 57 minutes 44 seconds West 80.99 feet) a distance of 83.14 feet;
thence south 45 degrees 16 minutes 30 seconds west 44.0 feet to the point of
beginning. Parcel Indent. # (Part of) 00-00-000-000
