EXHIBIT 10.175
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INLAND WESTERN SPOKANE NORTHPOINTE, L.L.C.,
a Delaware limited liability company, as mortgagor (Borrower)
to
PACIFIC NORTHWEST TITLE COMPANY OF SPOKANE, as Trustee (Trustee)
for the benefit of
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC., as beneficiary (Lender)
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DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING
This document serves as a Fixture Filing under the Uniform Commercial Code.
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Borrower's Organizational No.: 3786952
Dated: As of June 4, 2004
Location: Spokane, Washington
County: Spokane
Borrower's Federal Tax I.D. No.: 00-0000000
PREPARED BY AND UPON
RECORDATION RETURN TO:
KMZ Rosenman
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
STATE OF WASHINGTON DEED OF TRUST, SECURITY
AGREEMENT AND FIXTURE FILING
COUNTY OF SPOKANE
THIS DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING (this
"MORTGAGE") is made as of this 4th day of June, 2004 by INLAND WESTERN SPOKANE
NORTHPOINTE, L.L.C., a Delaware limited liability company, having its principal
place of business at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, as
mortgagor ("BORROWER"), to PACIFIC NORTHWEST TITLE COMPANY OF SPOKANE, having an
address at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, as trustee
("TRUSTEE") for the benefit of BEAR XXXXXXX COMMERCIAL MORTGAGE, INC., a New
York corporation, having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as beneficiary ("LENDER").
W I T N E S S E T H:
WHEREAS, pursuant to that certain Loan Agreement dated as of the date
hereof between Borrower and Lender (as the same may be amended, restated,
replaced, supplemented or otherwise modified from time to time, the "LOAN
AGREEMENT"), Borrower has agreed to borrow from Lender the sum of THIRTY MILLION
EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($30,850,000.00) (the "LOAN") as
evidenced by that certain Promissory Note dated the date hereof made by Borrower
to Lender (such Note, together with all extensions, renewals, replacements,
restatements or modifications thereof being hereinafter referred to as the
"NOTE"). The final payment of the Note is due on July 1, 2009;
WHEREAS, Borrower desires to secure the payment of the Debt (as
defined hereinafter) and the performance of all of its obligations under the
Note, the Loan Agreement and the other Loan Documents; and
WHEREAS, this Mortgage is that certain "Mortgage" as defined in the
Loan Agreement, and payment, fulfillment, and performance by Borrower of its
obligations thereunder and under the other Loan Documents are, subject to the
limits set forth herein, secured hereby, and each and every term and provision
of the Loan Agreement and the Note, including the rights, remedies, obligations,
covenants, conditions, agreements, indemnities, representations and warranties
of the parties therein, are hereby incorporated by reference herein as though
set forth in full and shall be considered a part of this Mortgage (the Loan
Agreement, the Note, this Mortgage, that certain Assignment of Leases and Rents
of even date herewith made by Borrower in favor of Lender (the "ASSIGNMENT OF
LEASES") and all other documents evidencing or securing the Debt are hereinafter
referred to collectively as the "LOAN DOCUMENTS").
NOW THEREFORE, in consideration of the making of the Loan by Lender
and the covenants, agreements, representations and warranties set forth in this
Mortgage:
ARTICLE I
GRANTS OF SECURITY
1.1 PROPERTY MORTGAGED. Borrower does hereby irrevocably mortgage,
grant, bargain, sell, pledge, assign, warrant, transfer and convey to Trustee
and its successors in trust, WITH POWER OF SALE and grant a security interest to
Trustee and its successors in trust, in each case for the benefit of Lender, in
the following property, rights, interests and estates now owned, or hereafter
acquired by Borrower (collectively, the "PROPERTY"):
(a) LAND. The real property described in Exhibit A attached hereto and
made a part hereof (the "LAND");
(b) ADDITIONAL LAND. All xxxxxxxxxx xxxxx, xxxxxxx and development
rights hereafter acquired by Borrower for use in connection with the Land and
the development of the Land and all additional lands and estates therein which
may, from time to time, by supplemental mortgage or otherwise be expressly made
subject to the lien of this Mortgage;
(c) IMPROVEMENTS. The buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
now or hereafter erected or located on the Land (collectively, the
"IMPROVEMENTS"):
(d) EASEMENTS. All easements, rights-of-way or use, rights, strips and
gores of land, streets, ways, alleys, passages, sewer rights, water, water
courses, water rights and powers, air rights and development rights, and all
estates, rights, titles, interests, privileges, liberties, servitudes,
tenements, hereditaments and appurtenances of any nature whatsoever, in any way
now or hereafter belonging, relating or pertaining to the Land and the
Improvements and the reversion and reversions, remainder and remainders, and all
land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Land, to the center line thereof and all the estates,
rights, titles, interests, dower and rights of dower, curtesy and rights of
curtesy, property, possession, claim and demand whatsoever, both at law and in
equity, of Borrower of, in and to the Land and the Improvements and every part
and parcel thereof, with the appurtenances thereto;
(e) EQUIPMENT. All "equipment," as such term is defined in Article 9
of the Uniform Commercial Code, now owned or hereafter acquired by Borrower,
which is used at or in connection with the Improvements or the Land or is
located thereon or therein (including, but not limited to, all machinery,
equipment, furnishings, and electronic data-processing and other office
equipment now owned or hereafter acquired by Borrower and any and all additions,
substitutions and replacements of any of the foregoing), together with all
attachments, components, parts, equipment and accessories installed thereon or
affixed thereto (collectively, the "EQUIPMENT"). Notwithstanding the foregoing,
Equipment shall not include any property belonging to tenants under leases
except to the extent that Borrower shall have any right or interest therein;
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(f) FIXTURES. All Equipment now owned, or the ownership of which is
hereafter acquired, by Borrower which is so related to the Land and Improvements
forming part of the Property that it is deemed fixtures or real property under
the law of the particular state in which the Equipment is located, including,
without limitation, all building or construction materials intended for
construction, reconstruction, alteration or repair of or installation on the
Property, construction equipment, appliances, machinery, plant equipment,
fittings, apparatuses, fixtures and other items now or hereafter attached to,
installed in or used in connection with (temporarily or permanently) any of the
Improvements or the Land, including, but not limited to, engines, devices for
the operation of pumps, pipes, plumbing, cleaning, call and sprinkler systems,
fire extinguishing apparatuses and equipment, heating, ventilating, plumbing,
laundry, incinerating, electrical, air conditioning and air cooling equipment
and systems, gas and electric machinery, appurtenances and equipment, pollution
control equipment, security systems, disposals, dishwashers, refrigerators and
ranges, recreational equipment and facilities of all kinds, and water, gas,
electrical, storm and sanitary sewer facilities, utility lines and equipment
(whether owned individually or jointly with others, and, if owned jointly, to
the extent of Borrower's interest therein) and all other utilities whether or
not situated in easements, all water tanks, water supply, water power sites,
fuel stations, fuel tanks, fuel supply, and all other structures, together with
all accessions, appurtenances, additions, replacements, betterments and
substitutions for any of the foregoing and the proceeds thereof (collectively,
the "FIXTURES"). Notwithstanding the foregoing, "Fixtures" shall not include any
property which tenants are entitled to remove pursuant to leases except to the
extent that Borrower shall have any right or interest therein;
(g) PERSONAL PROPERTY. All furniture, furnishings, objects of art,
machinery, goods, tools, supplies, appliances, general intangibles, contract
rights, accounts, accounts receivable, franchises, licenses, certificates and
permits, and all other personal property of any kind or character whatsoever (as
defined in and subject to the provisions of the Uniform Commercial Code as
hereinafter defined), other than Fixtures, which are now or hereafter owned by
Borrower and which are located within or about the Land and the Improvements,
together with all accessories, replacements and substitutions thereto or
therefor and the proceeds thereof (collectively, the "PERSONAL PROPERTY"), and
the right, title and interest of Borrower in and to any of the Personal Property
which may be subject to any security interests, as defined in the Uniform
Commercial Code, as adopted and enacted by the state or states where any of the
Property is located (the "UNIFORM COMMERCIAL CODE"), superior in lien to the
lien of this Mortgage and all proceeds and products of the above;
(h) LEASES AND RENTS. All leases, subleases or subsubleases, lettings,
licenses, concessions or other agreements (whether written or oral) pursuant to
which any Person is granted a possessory interest in, or right to use or occupy
all or any portion of the Land and the improvements, and every modification,
amendment or other agreement relating to such leases, subleases, subsubleases,
or other agreements entered into in connection with such leases, subleases,
subsubleases, or other agreements and every guarantee, of the performance and
observance of the covenants, conditions and agreements to be performed and
observed by the other party thereto, heretofore or hereafter entered into,
whether before or after the filing by or against Borrower of any petition for
relief under 11 U.S.C. Section 101 et. seq., as the same may be amended from
time to time (the "BANKRUPTCY CODE") (collectively, the "LEASES") and all right,
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title, and interest of Borrower, its successors and assigns therein and
thereunder, including, without limitation, cash or securities deposited
thereunder to secure the performance by the lessees of their obligations
thereunder and all rents, additional rents, revenues, issues and profits
(including all oil and gas or other mineral royalties and bonuses) from the Land
and the Improvements whether paid or accruing before or after the filing by or
against Borrower of any petition for relief under the Bankruptcy Code
(collectively, the "RENTS") and all proceeds from the sale or other disposition
of the Leases and the right to receive and apply the Rents to the payment of the
Debt;
(i) CONDEMNATION AWARDS. All awards or payments, including interest
thereon, which may heretofore and hereafter be made with respect to the
Property, whether from the exercise of the right of eminent domain (including
but not limited to any transfer made in lieu of or in anticipation of the
exercise of the right), or for a change of grade, or for any other injury to or
decrease in the value of the Property subject to the terms, provisions and
conditions of the Loan Agreement;
(j) INSURANCE PROCEEDS. All proceeds in respect of the Property under
any insurance policies covering the Property, including, without limitation, the
right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Property subject to the
terms, provisions and conditions of the Loan Agreement;
(k) TAX CERTIORARI. All refunds, rebates or credits in connection with
reduction in real estate taxes and assessments charged against the Property as a
result of tax certiorari or any applications or proceedings for reduction;
(l) CONVERSION. All proceeds of the conversion, voluntary or
involuntary, of any of the foregoing including, without limitation, proceeds of
insurance and condemnation awards, into cash or liquidation claims;
(m) RIGHTS. Subject to the terms, provisions and conditions of the
Loan Agreement, the right, in the name and on behalf of Borrower, to appear in
and defend any action or proceeding brought with respect to the Property and to
commence any action or proceeding to protect the interest of Lender in the
Property;
(n) AGREEMENTS. All agreements, contracts, certificates, instruments,
franchises, permits, licenses, plans, specifications and other documents, now or
hereafter entered into, and all rights therein and thereto, respecting or
pertaining to the use, occupation, construction, management or operation of the
Land and any part thereof and any Improvements or respecting any business or
activity conducted on the Land and any part thereof and all right, title and
interest of Borrower therein and thereunder, including, without limitation, the
right, upon the happening of any default hereunder, to receive and collect any
sums payable to Borrower thereunder, in each case, to the extent assignable;
(o) TRADEMARKS. All tradenames, trademarks, servicemarks, logos,
copyrights, goodwill, books and records and all other general intangibles
relating to or used in connection with the operation of the Property (excluding,
however, the name "Inland" and any xxxx
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registered to The Inland Group, Inc., or any of its affiliates), in each case,
to the extent assignable;
(p) ACCOUNTS. All reserves, escrows and deposit accounts maintained by
Borrower with respect to the Property, including without limitation, all
securities, investments, property and financial assets held therein from time
to time and all proceeds, products, distributions or dividends or substitutions
thereon and thereof;
(q) LETTER OF CREDIT. All letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing) Borrower now has or hereafter
acquires relating to the properties, rights, titles and interests referred to in
this Section 1.1;
(r) TORT CLAIMS. All commercial tort claims Borrower now has or
hereafter acquires relating to the properties, rights, titles and interests
referred to in this Section 1.1; and
(s) OTHER RIGHTS. Any and all other rights of Borrower in and to the
items set forth in Subsections (a) through (r) above.
AND without limiting any of the other provisions of this Mortgage, to
the extent permitted by applicable law, Borrower expressly grants to Lender, as
secured party, a security interest in the portion of the Property which is or
may be subject to the provisions of the Uniform Commercial Code which are
applicable to secured transactions; it being understood and agreed that the
Improvements and Fixtures are part and parcel of the Land (the Land, the
Improvements and the Fixtures collectively referred to as the "REAL PROPERTY")
appropriated to the use thereof and, whether affixed or annexed to the Real
Property or not, shall for the purposes of this Mortgage be deemed conclusively
to be real estate and mortgaged hereby.
1.2 ASSIGNMENT OF RENTS. Borrower hereby absolutely and
unconditionally assigns to Lender all of Borrower's right, title and interest in
and to all current and future Leases and Rents; it being intended by Borrower
that this assignment constitutes a present, absolute assignment and not an
assignment for additional security only. Nevertheless, subject to the terms of
the Assignment of Leases and Section 7.1(h) of this Mortgage, Lender grants to
Borrower a revocable license to collect, receive, use and enjoy the Rents.
Borrower shall hold the Rents, or a portion thereof sufficient to discharge all
current sums due on the Debt, for use in the payment of such sums.
1.3 SECURITY AGREEMENT. This Mortgage is both a real property deed
of trust and a "security agreement" within the meaning of the Uniform
Commercial Code. The Property includes both real and personal property and all
other rights and interests, whether tangible or intangible in nature, of
Borrower in the Property. By executing and delivering this Mortgage, Borrower
hereby grants to Lender, as security for the Obligations (hereinafter defined),
a security interest in the Fixtures, the Equipment and the Personal Property and
other property constituting the Property, whether now owned or hereafter
acquired, to the full extent that the Fixtures, the Equipment, and the Personal
Property may be subject to the Uniform Commercial Code (said portion of the
Property so subject to the Uniform Commercial Code being called the
"COLLATERAL"). THE COLLATERAL IS OR INCLUDES FIXTURES. If an Event of Default
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shall occur and be continuing, Lender, in addition to any other rights and
remedies which it may have, shall have and may exercise immediately and without
demand, any and all rights and remedies granted to a secured party upon default
under the Uniform Commercial Code, including, without limiting the generality of
the foregoing, the right to take possession of the Collateral or any part
thereof, and to take such other measures as Lender may deem necessary for the
care, protection and preservation of the Collateral. Upon request or demand of
Lender after the occurrence and during the continuance of an Event of Default,
Borrower shall, at its expense, assemble the Collateral and make it available to
Lender at a convenient place (at the Land if tangible property) reasonably
acceptable to Lender. Borrower shall pay to Lender on demand any and all
expenses, including reasonable legal expenses and attorneys' fees, incurred or
paid by Lender in protecting its interest in the Collateral and in enforcing its
rights hereunder with respect to the Collateral after the occurrence and during
the continuance of an Event of Default. Any notice of sale, disposition or other
intended action by Lender with respect to the Collateral sent to Borrower in
accordance with the provisions hereof at least ten (10) business days prior to
such action, shall, except as otherwise provided by applicable law, constitute
commercially reasonable notice to Borrower. The proceeds of any disposition of
the Collateral, or any part thereof, may, except as otherwise required by
applicable law, be applied by Lender to the payment of the Debt in such priority
and proportions as Lender in its discretion shall deem proper. Borrower's
(Debtor's) principal place of business is as set forth on page one hereof and
the address of Lender (Secured Party) is as set forth on page one hereof.
1.4 FIXTURE FILING. Certain of the Property is or will become
"fixtures" (as that term is defined in the Uniform Commercial Code) on the Land,
described or referred to in this Mortgage, and this Mortgage, upon being filed
for record in the real estate records of the city or county wherein such
fixtures are situated, shall operate also as a financing statement filed as a
fixture filing in accordance with the applicable provisions of said Uniform
Commercial Code upon such of the Property that is or may become fixtures.
The Borrower hereby authorizes the Lender at any time and from time
to time to file any initial financing statements, amendments thereto and
continuation statements with or without the signature of the Borrower as
authorized by applicable law, as applicable to all or part of the fixtures or
Personal Property. For purposes of such filings, the Borrower agrees to furnish
any information requested by the Lender promptly upon request by the Lender. The
Borrower also ratifies its authorization for the Lender to have filed any like
initial financing statements, amendments thereto and continuation statements, if
filed prior to the date of this Mortgage. The Borrower hereby irrevocably
constitutes and appoints the Lender and any officer or agent of the Lender, with
full power of substitution, as its true and lawful attorneys- in-fact with full
irrevocable power and authority in the place and stead of the Borrower or in
the Borrower's own name to execute in the Borrower's name any documents and
otherwise to carry out the purposes of this Section 1.4, to the extent that the
Borrower's authorization above is not sufficient. To the extent permitted by
law, the Borrower hereby ratifies all acts said attorneys-in-fact have lawfully
done in the past or shall lawfully do or cause to be done in the future by
virtue hereof. This power of attorney is coupled with an interest and shall be
irrevocable.
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1.5 PLEDGES OF MONIES HELD. Borrower hereby pledges to Lender any
and all monies now or hereafter held by Lender or on behalf of Lender,
including, without limitation, any sums deposited in the Lockbox Account (if
any), the Reserve Funds and Net Proceeds, as additional security for the
Obligations until expended or applied as provided in this Mortgage or in the
Loan Agreement.
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property unto
Trustee, as trustee for the benefit of Lender, and to its successors in trust
and assigns, forever;
IN TRUST, WITH THE POWER OF SALE, to secure payment to Lender of the
Debt at the time and in the manner provided for in the Note, the Loan Agreement,
and this Mortgage;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Borrower shall well and truly pay to Lender the Debt at the time and in the
manner provided in the Note, the Loan Agreement and this Mortgage, shall well
and truly perform the Other Obligations as set forth in this Mortgage and shall
well and truly abide by and comply with each and every covenant and condition
set forth herein and in the Note, the Loan Agreement and the other Loan
Documents, these presents and the estate hereby granted shall cease, terminate
and be void and Lender shall xxxx the Note "paid in full" and will, at
Borrower's sole cost and expense, release the lien of this Mortgage; provided,
however, that Borrower's obligation to indemnify and hold harmless Lender
pursuant to the provisions hereof shall survive any such payment or release.
ARTICLE II
DEBT AND OBLIGATIONS SECURED
2.1 DEBT. This Mortgage and the grants, assignments and transfers
made in Article I are given for the purpose of securing the debt evidenced by
the Note (the "Debt").
2.2 OTHER OBLIGATIONS. This Mortgage and the grants, assignments
and transfers made in Article I are also given for the purpose of securing the
following (the "OTHER OBLIGATIONS"):
(a) the performance of all other obligations of Borrower contained
herein;
(b) the performance of each obligation of Borrower contained in the
Loan Agreement and any other Loan Document; and
(c) the performance of each obligation of Borrower contained in any
renewal, extension, amendment, modification, consolidation, change of, or
substitution or replacement for, all or any part of the Note, the Loan Agreement
or any other Loan Document.
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2.3 DEBT AND OTHER OBLIGATIONS. Borrower's obligations for the
payment of the Debt and the performance of the Other Obligations shall be
referred to collectively herein as the "OBLIGATIONS."
ARTICLE III
BORROWER COVENANTS
Borrower covenants and agrees that:
3.1 PAYMENT OF DEBT. Borrower will pay the Debt at the time and in
the manner provided in the Loan Agreement, the Note and this Mortgage.
3.2 INCORPORATION BY REFERENCE. All the covenants, conditions and
agreements contained in (a) the Loan Agreement, (b) the Note and (c) all and any
of the other Loan Documents, are hereby made a part of this Mortgage to the same
extent and with the same force as if fully set forth herein.
3.3 INSURANCE. Borrower shall obtain and maintain, or cause to be
maintained, in full force and effect at all times insurance with respect to
Borrower and the Property as required pursuant to the Loan Agreement.
3.4 MAINTENANCE OF PROPERTY. Borrower shall cause the Property to
be maintained in a good and safe condition and repair. The Improvements, the
Fixtures, the Equipment and the Personal Property shall not be removed,
demolished or materially altered except as provided for in the Loan Agreement
(except for normal replacement of the Fixtures, the Equipment or the Personal
Property, tenant finish and refurbishment of the Improvements) without the
consent of Lender as provided for in the Loan Agreement. Borrower shall promptly
repair, replace or rebuild any part of the Property which may be destroyed by
any casualty, or become damaged, worn or dilapidated and shall complete and pay
for any structure at any time in the process of construction or repair on the
Land except as set forth in the Loan Agreement.
3.5 WASTE. Borrower shall not commit or suffer any waste of the
Property or make any change in the use of the Property which will in any way
materially increase the risk of fire or other hazard arising out of the
operation of the Property, or take any action that might invalidate or allow the
cancellation of any Policy, or do or permit to be done thereon anything that may
in any way materially impair the value of the Property or the security of this
Mortgage. Borrower will not, without the prior written consent of Lender, permit
any drilling or exploration for or extraction, removal, or production of any
minerals from the surface or the subsurface of the Land, regardless of the depth
thereof or the method of mining or extraction thereof.
3.6 PAYMENT FOR LABOR AND MATERIALS. (a) Subject to the terms,
provisions and conditions of the Loan Agreement, Borrower will promptly pay or
cause to be paid when due all bills and costs for labor, materials, and
specifically fabricated materials ("LABOR AND MATERIAL COSTS") incurred in
connection with the Property and never permit to exist beyond the due date
thereof in respect of the Property or any part thereof any lien or security
interest, even though
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inferior to the liens and the security interests hereof, and in any event never
permit to be created or exist in respect of the Property or any part thereof any
other or additional lien or security interest other than the liens or security
interests hereof except for the Permitted Encumbrances.
(b) Subject to the terms, provisions and conditions of the Loan
Agreement, after prior written notice to Lender, Borrower, or any tenant of the
Property pursuant to the terms of such tenant's lease, at its own expense, may
contest by appropriate legal proceeding, promptly initiated and conducted in
good faith and with due diligence, the amount or validity or application in
whole or in part of any of the Labor and Material Costs, provided that (i) no
Event of Default has occurred and is continuing under the Loan Agreement, the
Note, this Mortgage or any of the other Loan Documents, (ii) Borrower is
permitted to do so under the provisions of any other mortgage, deed of trust or
deed to secure debt affecting the Property, (iii) such proceeding shall suspend
the collection of the Labor and Material Costs from Borrower and from the
Property or Borrower shall have paid all of the Labor and Material Costs under
protest, (iv) such proceeding shall be permitted under and be conducted in
accordance with the provisions of any other instrument to which Borrower is
subject and shall not constitute a default thereunder, (v) neither the Property
nor any part thereof or interest therein will be in danger of being sold,
forfeited, terminated, canceled or lost, and (vi) Borrower shall have furnished
the security as may be required in the proceeding, or as may be reasonably
requested by Lender to insure the payment of any contested Labor and Material
Costs, together with all interest and penalties thereon.
3.7 PERFORMANCE OF OTHER AGREEMENTS. Borrower shall observe and
perform each and every term, covenant and provision to be observed or performed
by Borrower pursuant to the Loan Agreement, any other Loan Document and any
other agreement or recorded instrument affecting or pertaining to the Property
and any amendments, modifications or changes thereto.
3.8 CHANGE OF NAME. IDENTITY OR STRUCTURE. Except as set forth in
the Loan Agreement, Borrower shall not change Borrower's name, identity
(including its trade name or names) or, if not an individual, Borrower's
corporate, partnership or other structure without notifying Lender of such
change in writing at least thirty (30) days prior to the effective date of such
change and, in the case of a change in Borrower's structure, without first
obtaining the prior written consent of Lender which consent will not be
unreasonably withheld, delayed or conditioned provided that such action is
otherwise in compliance with the Loan Agreement. Borrower shall execute and
deliver to Lender, prior to or contemporaneously with the effective date of any
such change, any financing statement or financing statement change reasonably
required by Lender to establish or maintain the validity, perfection and
priority of the security interest granted herein. At the request of Lender,
Borrower shall execute a certificate in form reasonably satisfactory to Lender
listing the trade names under which Borrower intends to operate the Property,
and representing and warranting that Borrower does business under no other trade
name with respect to the Property.
3.9 TITLE. Borrower has good, marketable and insurable fee simple
title to the real property comprising part of the Property and good title to the
balance of such Property, free
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and clear of all Liens (as defined in the Loan Agreement) whatsoever except the
Permitted Encumbrances (as defined in the Loan Agreement), such other Liens as
are permitted pursuant to the Loan Documents and the Liens created by the Loan
Documents. To Borrower's actual knowledge, the Permitted Encumbrances in the
aggregate do not materially adversely affect the value, operation or use of the
Property of Borrower's ability to repay the Loan. This Mortgage, when properly
recorded in the appropriate records, together with any Uniform Commercial Code
financing statements required to be filed in connection therewith, will create
(a) a valid, perfected first priority lien, security title and security interest
on the Property, to the extent such security interests can be perfected by
filing; subject only to any applicable Permitted Encumbrances, such other Liens
as are permitted pursuant to the Loan Documents and the Liens created by the
Loan Documents. There are no claims for payment for work, labor or materials
affecting the Property which are past due and are or may become a lien prior to,
or of equal priority with, the Liens created by the Loan Documents unless such
claims for payments are being contested in accordance with the terms and
conditions of this Mortgage.
3.10 LETTER OF CREDIT RIGHTS. If Borrower is at any time a
beneficiary under a letter of credit relating to the properties, rights, titles
and interests referenced in Section 1.1 of this Mortgage now or hereafter issued
in favor of Borrower, Borrower shall promptly notify Lender thereof and, at the
request and option of Lender, Borrower shall, pursuant to an agreement in form
and substance satisfactory to Lender, either (i) arrange for the issuer and any
confirmer of such letter of credit to consent to an assignment to Lender of the
proceeds of any drawing under the letter of credit or (ii) arrange for the
Lender to become the transferee beneficiary of the letter of credit, with Lender
agreeing, in each case that the proceeds of any drawing under the letter of
credit are to be applied as provided in Section 7.2 of this Mortgage.
ARTICLE IV
OBLIGATIONS AND RELIANCES
4.1 RELATIONSHIP OF BORROWER AND LENDER. The relationship between
Borrower and Lender is solely that of debtor and creditor, and Lender has no
fiduciary or other special relationship with Borrower, and no term or condition
of any of the Loan Agreement, the Note, this Mortgage and the other Loan
Documents shall be construed so as to deem the relationship between Borrower and
Lender to be other than that of debtor and creditor.
4.2 NO RELIANCE ON LENDER. The general partners, members,
principals and (if Borrower is a trust) beneficial owners of Borrower are
experienced in the ownership and operation of properties similar to the
Property, and Borrower and Lender are relying solely upon such expertise and
business plan in connection with the ownership and operation of the Property.
Borrower is not relying on Lender's expertise, business acumen or advice in
connection with the Property.
4.3 NO LENDER OBLIGATIONS, (a) Notwithstanding the provisions of
Subsections 1.1(h) and (n) or Section 1.2, Lender is not undertaking the
performance of (i) any
10
obligations under the Leases; or (ii) any obligations with respect to such
agreements, contracts, certificates, instruments, franchises, permits,
trademarks, licenses and other documents.
(b) By accepting or approving anything required to be observed,
performed or fulfilled or to be given to Lender pursuant to this Mortgage, the
Loan Agreement, the Note or the other Loan Documents, including, without
limitation, any officer's certificate, balance sheet, statement of profit and
loss or other financial statement, survey, appraisal, or insurance policy,
Lender shall not be deemed to have warranted, consented to, or affirmed the
sufficiency, the legality or effectiveness of same, and such acceptance or
approval thereof shall not constitute any warranty or affirmation with respect
thereto by Lender.
4.4 RELIANCE. Borrower recognizes and acknowledges that in
accepting the Loan Agreement, the Note, this Mortgage and the other Loan
Documents, Lender is expressly and primarily relying on the truth and accuracy
of the warranties and representations set forth in Section 4.1 of the Loan
Agreement without any obligation to investigate the Property and notwithstanding
any investigation of the Property by Lender; that such reliance existed on the
part of Lender prior to the date hereof, that the warranties and representations
are a material inducement to Lender in making the Loan; and that Lender would
not be willing to make the Loan and accept this Mortgage in the absence of the
warranties and representations as set forth in Section 4.1 of the Loan
Agreement.
ARTICLE V
FURTHER ASSURANCES
5.1 RECORDING OF MORTGAGE, ETC. Borrower forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time, will
cause this Mortgage and any of the other Loan Documents creating a lien or
security interest or evidencing the lien hereof upon the Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect and perfect the lien or security
interest hereof upon, and the interest of Lender in, the Property. Borrower will
pay all taxes, filing, registration or recording fees, and all expenses incident
to the preparation, execution, acknowledgment and/or recording of the Note, this
Mortgage, the other Loan Documents, any note, deed of trust or mortgage
supplemental hereto, any security instrument with respect to the Property and
any instrument of further assurance, and any modification or amendment of the
foregoing documents, and all federal, state, county and municipal taxes, duties,
imposts, assessments and charges arising out of or in connection with the
execution and delivery of this Mortgage, any deed of trust, or mortgage
supplemental hereto, any security instrument with respect to the Property or any
instrument of further assurance, and any modification or amendment of the
foregoing documents, except where prohibited by law so to do.
5.2 FURTHER ACTS. ETC. Borrower will, at the cost of Borrower, and
without expense to Lender, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, deeds of trust, mortgages, assignments,
notices of assignments, transfers and
11
assurances as Lender shall, from time to time, reasonably require, for the
better assuring, conveying, assigning, transferring, and confirming unto Lender
the property and rights hereby mortgaged, deeded, granted, bargained, sold,
conveyed, confirmed, pledged, assigned, warranted and transferred or intended
now or hereafter so to be, or which Borrower may be or may hereafter become
bound to convey or assign to Lender, or for carrying out the intention or
facilitating the performance of the terms of this Mortgage or for filing,
registering or recording this Mortgage, or for complying with all Legal
Requirements. Borrower, on demand, will execute and deliver, and in the event it
shall fail to so execute and deliver, hereby authorizes Lender to execute in the
name of Borrower or without the signature of Borrower to the extent Lender may
lawfully do so, one or more financing statements to evidence more effectively
the security interest of Lender in the Property. Borrower grants to Lender an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Lender at
law and in equity following an Event of Default, including without limitation
such rights and remedies available to Lender pursuant to this Section 5.2.
Nothing contained in this Section 5.2 shall be deemed to create an obligation on
the part of Borrower to pay any costs and expenses incurred by Lender in
connection with the Securitization or other sale or transfer of the Loan.
5.3 CHANGES IN TAX, DEBT, CREDIT, AND DOCUMENTARY STAMP LAWS. (a)
If any law is enacted or adopted or amended after the date of this Mortgage
which deducts the Debt from the value of the Property for the purpose of
taxation or which imposes a tax, either directly or indirectly, on the Debt or
Lender's interest in the Property. Borrower will pay the tax, with interest and
penalties thereon, if any. If Lender is advised by counsel chosen by it that the
payment of tax by Borrower would be unlawful or taxable to Lender or
unenforceable or provide the basis for a defense of usury then Lender shall have
the option by written notice of not less than one hundred eighty (180) days to
declare the Debt immediately due and payable.
(b) Borrower will not claim or demand or be entitled to any credit or
credits on account of the Debt for any part of the Taxes or Other Charges
assessed against the Property, or any part thereof, and no deduction shall
otherwise be made or claimed from the assessed value of the Property, or any
part thereof, for real estate tax purposes by reason of this Mortgage or the
Debt. If such claim, credit or deduction shall be required by law, Lender shall
have the option, by written notice of not less than one hundred eighty (180)
days, to declare the Debt immediately due and payable.
(c) If at any time the United States of America, any State thereof or
any subdivision of any such State shall require revenue or other stamps to be
affixed to the Note, this Mortgage, or any of the other Loan Documents or impose
any other tax or charge on, the same, Borrower will pay for the same, with
interest and penalties thereon, if any.
5.4 SPLITTING OF MORTGAGE. The provisions of Section 9.7 of the
Loan Agreement are hereby incorporated by reference herein.
5.5 REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of an
officer of Lender as to the loss, theft, destruction or mutilation of the Note
or any other Loan Document
12
which is not of public record, and, in the case of any such mutilation, upon
surrender and cancellation of such Note or other Loan Document, Borrower will
issue, in lieu thereof, a replacement Note or other Loan Document, dated the
date of such lost, stolen, destroyed or mutilated Note or other Loan Document in
the same principal amount thereof and otherwise of like tenor.
ARTICLE VI
DUE ON SALE/ENCUMBRANCE
6.1 LENDER RELIANCE. Borrower acknowledges that. Lender has
examined and relied on the experience of Borrower and its general partners,
members, principals and (if Borrower is a trust) beneficial owners in owning and
operating properties such as the Property in agreeing to make the Loan, and will
continue to rely on Borrower's ownership of the Property as a means of
maintaining the value of the Property as security for repayment of the Debt and
the performance of the Other Obligations. Borrower acknowledges that Lender has
a valid interest in maintaining the value of the Property so as to ensure that,
should Borrower default in the repayment of the Debt or the performance of the
Other Obligations, Lender can recover the Debt by a sale of the Property
conducted in accordance with the terms of the Loan Documents and applicable law.
6.2 NO SALE/ENCUMBRANCE. Except as set forth in Section 5.2.13 of
the Loan Agreement, Borrower agrees that Borrower shall not, without the prior
written consent of Lender, sell, convey, mortgage, grant, bargain, encumber,
pledge, assign, or otherwise transfer the Property or any part thereof,
including, but not limited to, a grant of an easement, restriction, covenant,
reservation or right of way (except, as expressly permitted in Section 5.2.13 of
the Loan Agreement), or permit the Property or any part thereof to be sold,
conveyed, mortgaged, granted, bargained, encumbered, pledged, assigned, or
otherwise transferred, unless Lender shall consent thereto in accordance with
Section 6.4 hereof.
6.3 SALE/ENCUMBRANCE DEFINED. Except as permitted pursuant to the
terms of Section 5.2.13 of the Loan Agreement, a sale, conveyance, mortgage,
grant, bargain, encumbrance, pledge, assignment, or transfer within the meaning
of this Article 6 shall be deemed to include, but not be limited to (a) an
installment sales agreement wherein Borrower agrees to sell the Property or any
part thereof for a price to be paid in installments; (b) an agreement by
Borrower leasing all or a substantial part of the Property for other than actual
occupancy by a space tenant thereunder or a sale, assignment or other transfer
of, or the grant of a security interest in, Borrower's right, title and interest
in and to any Leases or any Rents; (c) the voluntary or involuntary sale,
conveyance, transfer or pledge of the stock of the general partner of Borrower
(or the stock of any corporation directly or indirectly controlling such general
partner by operation of law or otherwise) or the creation or issuance of new
stock by which an aggregate of more than ten percent (10%) of such general
partner's stock shall be vested in a party or parties who are not now
stockholders; (d) the voluntary or involuntary sale, conveyance, transfer or
pledge of any general or limited partnership interest in Borrower: (e) if
Borrower, any general partner of Borrower, any guarantor or any indemnitor is a
limited liability
13
company, the change, removal or resignation of a member or managing member or
the transfer or pledge, of the interest of any member or managing member or any
profits or proceeds relating to such interest; or (f) any other transfer
prohibited by the terms of the Loan Agreement.
6.4 LENDER'S RIGHTS. Except as set forth in the Loan Agreement,
Lender reserves the right to condition the consent, required hereunder upon (a)
a modification of the terms hereof and of the Loan Agreement, the Note or the
other Loan Documents; (b) an assumption of the Loan Agreement, the Note, this
Mortgage and the other Loan Documents as so modified by the proposed transferee,
subject to the provisions of Section 9.4 of the Loan Agreement; (c) payment of
all of Lender's reasonable expenses incurred in connection with such transfer
including, without limitation, the cost of any third party reports, legal fees,
rating agency or required legal opinions; (d) the payment of an assumption fee
equal to one percent (1%) of the outstanding principal balance of the Loan; (e)
the confirmation in writing by the applicable Rating Agencies that the proposed
transfer will not, in and of itself, result in a downgrade, qualification or
withdrawal of the initial, or, if higher, then current ratings assigned in
connection with any Securitization; (f) intentionally deleted; (g) the proposed
transferee's continued compliance with the representations and covenants set
forth in Section 4.1.30 and 5.2.12 of the Loan Agreement; (h) the delivery of
evidence satisfactory to Lender that the single purpose nature and bankruptcy
remoteness of Borrower following such transfers are in accordance with the then
current standards of Lender and the Rating Agencies, or (i) such other
conditions as Lender shall determine in its reasonable discretion to be in the
interest of Lender, including, without limitation, the creditworthiness,
reputation and qualifications of the transferee with respect, to the Loan and
the Property. Lender shall not be required to demonstrate any actual impairment
of its security or any increased risk of default hereunder in order to declare
the Debt immediately due and payable upon Borrower's sale, conveyance, mortgage,
grant, bargain, encumbrance, pledge, assignment, or transfer of the Property
without Lender's consent (to the extent such consent is required hereunder or
under the Loan Agreement). This provision shall apply to every sale, conveyance,
mortgage, grant, bargain, encumbrance, pledge, assignment, or transfer of the
Property regardless of whether voluntary or not, or whether or not Lender has
consented to any previous sale, conveyance, mortgage, grant, bargain,
encumbrance, pledge, assignment, or transfer of the Property.
ARTICLE VII
RIGHTS AND REMEDIES UPON DEFAULT
7.1 REMEDIES. Upon the occurrence and during the continuance of
any Event of Default, Borrower agrees that Lender or Trustee may take such
action, without notice or demand, as it deems advisable to protect and enforce
its rights against Borrower and in and to the Property, including, but not
limited to, the following actions, each of which may be pursued concurrently or
otherwise, at such time and in such order as Lender or Trustee may determine, in
its sole discretion, without impairing or otherwise affecting the other rights
and remedies of Lender or Trustee:
(a) declare the entire unpaid Debt to be immediately due and payable;
14
(b) institute proceedings, judicial or otherwise, for the complete
foreclosure of this Mortgage under any applicable provision of law, in which
case the Property or any interest therein may be sold for cash or upon credit in
one or more parcels or in several interests or portions and in any order or
manner;
(c) with or without entry, to the extent permitted and pursuant to the
procedures provided by applicable law, institute proceedings for the partial
foreclosure of this Mortgage for the portion of the Debt then due and payable,
subject to the continuing lien and security interest of this Mortgage for the
balance of the Debt not then due, unimpaired and without loss of priority;
(d) sell for cash or upon credit the Property or any part thereof and
all estate, claim, demand, right, title and interest of Borrower therein and
rights of redemption thereof, pursuant to power of sale or otherwise, at one or
more sales, as an entity or in parcels, at such time and place, upon such terms
and after such notice thereof As may be required or permitted by law;
(e) institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein, in the
Note, the Loan Agreement or in the other Loan Documents;
(f) recover judgment on the Note either before, during or after any
proceedings for the enforcement of this Mortgage or the other Loan Documents;
(g) apply for the appointment of a receiver, trustee, liquidator or
conservator of the Property, without notice and without regard for the adequacy
of the security for the Debt and without regard for the solvency of Borrower,
any guarantor, indemnitor with respect to the Loan or of any Person, liable for
the payment of the Debt;
(h) the license granted to Borrower under Section 1.2 hereof shall
automatically be revoked and Lender may, to the extent permitted pursuant to
procedures provided by applicable law, enter into or upon the Property, either
personally or by its agents, nominees or attorneys and dispossess Borrower and
its agents and servants therefrom, without liability for trespass, damages or
otherwise and exclude Borrower and its agents or servants wholly therefrom, and
take possession of all books, records and accounts relating thereto and Borrower
agrees to surrender possession of the Property and of such books, records and
accounts to Lender upon demand, and thereupon Lender may (i) use, operate,
manage, control, insure, maintain, repair, restore and otherwise deal with all
and every part of the Property and conduct the business thereat; (ii) complete
any construction on the Property in such manner and form as Lender deems
advisable; (iii) make alterations, additions, renewals, replacements and
improvements to or on the Property; (iv) exercise all rights and powers of
Borrower with respect to the Property, whether in the name of Borrower or
otherwise, including, without limitation, the right to make, cancel, enforce or
modify Leases, obtain and evict tenants, and demand, xxx for, collect and
receive all Rents of the Property and every part thereof; (v) require Borrower
to pay monthly in advance to Lender, or any receiver appointed to collect the
Rents, the fair and reasonable rental value for the use and occupation of such
part of the Property as may be
15
occupied by Borrower; (vi) require Borrower to vacate and surrender possession
of the Property to Lender or to such receiver and, in default thereof, Borrower
may be evicted by summary proceedings or otherwise; and (vii) apply the receipts
from the Property to the payment of the Debt, in such order, priority and
proportions as Lender shall deem appropriate in its sole discretion after
deducting therefrom all expenses (including reasonable attorneys' fees) incurred
in connection with the aforesaid operations and all amounts necessary to pay the
Taxes, Other Charges, insurance and other expenses in connection with the
Property, as well as just and reasonable compensation for the services of
Lender, its counsel, agents and employees;
(i) exercise any and all rights and remedies granted to a secured
party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing: (i) the right to take possession of
the Fixtures, the Equipment, the Personal Property or any part thereof, and to
take such other measures as Lender may deem necessary for the care, protection
and preservation of the Fixtures, the Equipment, the Personal Property, and (ii)
request Borrower at its expense to assemble the Fixtures, the Equipment, the
Personal Property and make it available to Lender at a convenient place
acceptable to Lender Any notice of sale, disposition or other intended action
by Lender with respect to the Fixtures, the Equipment, the Personal Property
sent to Borrower in accordance with the provisions hereof at least five (5) days
prior to such action, shall constitute commercially reasonable notice to
Borrower;
(j) apply any sums then deposited or held in escrow or otherwise by or
on behalf of Lender in accordance with the terms of the Loan Agreement, this
Mortgage or any other Loan Document to the payment of the following items in
any order in its uncontrolled discretion:
(i) Taxes and Other Charges;
(ii) Insurance Premiums;
(iii) Interest on the unpaid principal balance of the Note;
(iv) Amortization of the unpaid principal balance of the Note;
(v) All other sums payable pursuant to the Note, the Loan
Agreement, this Mortgage and the other Loan Documents, including without
limitation advances made by Lender pursuant to the terms of this Mortgage;
(k) pursue such other remedies as Lender may have under applicable
law;
(1) apply the undisbursed balance of any Net Proceeds Deficiency
deposit, together with interest thereon, to the payment of the Debt in such
order, priority and proportions as Lender shall deem to be appropriate in its
discretion; or
(m) under the power of sale hereby granted, Lender or Trustee shall
have the discretionary right to cause some or all of the Property, including any
Personal Property, to be sold or otherwise disposed of in any combination and in
any manner permitted by applicable law.
16
In the event of a sale, by foreclosure, power of sale or otherwise, of less than
all of Property, this Mortgage shall continue as a lien and security interest
on the remaining portion of the Property unimpaired and without loss of
priority.
7.2 APPLICATION OF PROCEEDS. The purchase money, proceeds and
avails of any disposition of the Property, and or any part thereof, or any other
sums collected by Lender pursuant to the Note, this Mortgage or the other Loan
Documents, may be applied by Lender to the payment of the Debt in such priority
and proportions as Lender in its discretion shall deem proper.
7.3 RIGHT TO CURE DEFAULTS. Upon the occurrence and during the
continuance of any Event of Default or if Borrower fails to make any payment or
to do any act as herein provided, Lender may, but without any obligation to do
so and without notice to or demand on Borrower and without releasing Borrower
from any obligation hereunder, make or do the same in such manner and to such
extent as Lender may deem necessary to protect the security hereof. Lender is
authorized to enter upon action or proceeding to the Property for such purposes,
or appear in, defend, or bring any action or proceeding to protect its interest
in the Property or to foreclose this Mortgage or collect the Debt, and the cost
and expense thereof (including reasonable attorneys' fees to the extent
permitted by law), with interest as provided in this Section 7.3, shall
constitute a portion of the Debt and shall be due and payable to Lender upon
demand. All such costs and expenses incurred by Lender in remedying such Event
of Default or such failed payment or act or in appearing in, defending, or
bringing any such action or proceeding shall bear interest at the Default Rate,
for the period after notice from Lender that such cost or expense was incurred
to the date of payment to Lender. All such costs and expenses incurred by Lender
together with interest thereon calculated at the Default Rate shall be deemed to
constitute a portion of the Debt and be secured by this Mortgage and the other
Loan Documents and shall be immediately due and payable upon demand by Lender
therefor.
7.4 ACTIONS AND PROCEEDINGS. Lender has the right to appear in and
defend any action or proceeding brought with respect to the Property and to
bring any action or proceeding, in the name and on behalf of Borrower, which
Lender, in its discretion, decides should be brought to protect its interest in
the Property.
7.5 RECOVERY OF SUMS REQUIRED TO BE PAID. Lender shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Lender thereafter to bring an action of foreclosure, or any other action, for
a default or defaults by Borrower existing at the time such earlier action was
commenced.
7.6 EXAMINATION OF BOOKS AND RECORDS. At reasonable times and upon
reasonable notice, Lender, its agents, accountants and attorneys shall have the
right to examine the records, books, management and other papers of Borrower
which reflect upon their financial condition, at the Property or at any office
regularly maintained by Borrower where the books and records are located. Lender
and its agents shall have the right to make copies and extracts from
17
the foregoing records and other papers In addition, at reasonable times and
upon reasonable notice, Lender, its agents, accountants and attorneys shall have
the right to examine and audit the books and records of Borrower pertaining to
the income, expenses and operation of the Property during reasonable business
hours at any office of Borrower where the books and records are located. This
Section 7.6 shall apply throughout the term of the Note and without regard to
whether an Event of Default has occurred or is continuing. Unless an Event of
Default shall be continuing, in which event the action contemplated by this
Section 7.6 shall be at Borrower's sole costs and expenses hereunder.
7.7 OTHER RIGHTS. ETC, (a) The failure of Lender to insist upon
strict performance of any term hereof shall not be deemed to be a waiver of any
term of this Mortgage. Borrower shall not be relieved of Borrower's obligations
hereunder by reason of (i) the failure of Lender to comply with any request of
Borrower or any guarantor or indemnitor with respect to the Loan to take any
action to foreclose this Mortgage or otherwise enforce any of the provisions
hereof or of the Note or the other Loan Documents, (ii) the release, regardless
of consideration, of the whole or any part of the Property, or of any person
liable for the Debt or any portion thereof, or (iii) any agreement or
stipulation by Lender extending the time of payment or otherwise modifying or
supplementing the terms of the Note, this Mortgage or the other Loan Documents.
(b) It is agreed that the risk of loss or damage to the Property is on
Borrower, and Lender shall have no liability whatsoever for decline in value of
the Property, for failure to maintain the Policies, or for failure to determine
whether insurance in force is adequate as to the amount of risks insured.
Possession by Lender shall not be deemed an election of judicial relief, if any
such possession is requested or obtained, with respect to any Property or
collateral not in Lender's possession.
(c) Lender or Trustee may resort for the payment of the Debt to any
other security held by Lender or Trustee in such order and manner as Lender or
Trustee, in its discretion, may elect. Lender or Trustee may take action to
recover the Debt, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Lender or Trustee thereafter to foreclose this
Mortgage. The rights of Lender or Trustee under this Mortgage shall be separate,
distinct and cumulative and none shall be given effect to the exclusion of the
others. No act of Lender or Trustee shall be construed as an election to proceed
under any one provision herein to the exclusion of any other provision. Lender
or Trustee shall not be limited exclusively to the rights and remedies herein
stated but shall be entitled to every right and remedy now or hereafter afforded
at law or in equity.
7.8 RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may
release any portion of the Property for such consideration as Lender may require
without, as to the remainder of the Property, in any way impairing or affecting
the lien or priority of this Mortgage, or improving the position of any
subordinate lienholder with respect thereto, except to the extent that the
obligations hereunder shall have been reduced by the actual monetary
consideration, if any, received by Lender for such release, and may accept by
assignment, pledge or otherwise any other property in place thereof as Lender
may require without being accountable for so doing to
18
any other lienholder. This Mortgage shall continue as a lien and security
interest in the remaining portion of the Property.
7.9 VIOLATION OF LAWS. If the Property is not in material
compliance with Legal Requirements, Lender may impose additional requirements
upon Borrower in connection herewith including, without limitation, monetary
reserves or financial equivalents.
7.10 RECOURSE AND CHOICE OF REMEDIES. Notwithstanding any other
provision of this Mortgage or the Loan Agreement, including, without limitation,
Section 9.4 of the Loan Agreement, Lender and other Indemnified Parties (as
hereinafter defined) are entitled to enforce the obligations of Borrower, any
guarantor or indemnitor contained in Sections 9.2, 9.3 and 9.4 herein and
Section 9.4 of the Loan Agreement without first resorting to or exhausting any
security or collateral and without first having recourse to the Note or any of
the Property, through foreclosure or acceptance of a deed in lieu of foreclosure
or otherwise, and in the event Lender commences a foreclosure action against the
Property. Lender is entitled to pursue a deficiency judgment with respect to
such obligations against Borrower and any guarantor or indemnitor with respect
to the Loan. The provisions of Sections 9.2, 9.3 and 9.4 herein and Section 9.4
of the Loan Agreement are exceptions to any non-recourse or exculpation
provisions in the Loan Agreement, the Note, this Mortgage or the other Loan
Documents, and Borrower and any guarantor or indemnitor with respect to the Loan
are fully and personally liable for the obligations pursuant to Sections 9.2,
9.3 and 9.4 herein and Section 9.4 of the Loan Agreement. The liability of
Borrower and any guarantor or indemnitor with respect to the Loan pursuant to
Sections 9.2, 9.3 and 9.4 herein and Section 9.4 of the Loan Agreement is not
limited to the original principal amount of the Note. Notwithstanding the
foregoing, nothing herein shall inhibit or prevent Lender from foreclosing or
exercising any other rights and remedies pursuant to the Loan Agreement, the
Note, this Mortgage and the other Loan Documents, whether simultaneously with
foreclosure proceedings or in any other sequence. A separate action or actions
may be brought and prosecuted against Borrower pursuant to Sections 9.2, 9.3 and
9.4 herein and Section 9.4 of the Loan Agreement, whether or not action is
brought against any other Person or whether or not any other Person is joined in
the action or actions. In addition, Lender shall have the right but not the
obligation to join and participate in, as a party if it so elects, any
administrative or judicial proceedings or actions initiated in connection with
any matter addressed in Article 8 or Section 9.4 herein.
7.11 RIGHT OF ENTRY. Upon reasonable notice to Borrower, Lender and
its agents shall have the right to enter and inspect the Property at all
reasonable times.
7.12 RELEASE. Upon payment of all sums secured by this Mortgage,
the Lender shall release this Mortgage. The Borrower shall pay the Lender's
reasonable costs incurred in releasing this Mortgage.
ARTICLE VIII
ENVIRONMENTAL HAZARDS
19
8.1 ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES. To the best of
Borrower's knowledge, and except as otherwise disclosed by that certain
Environmental Site Assessment of the Property delivered to Lender (such report
is referred to below as the "ENVIRONMENTAL REPORT"), Borrower hereby represents
and warrants (a) to the best of Borrower's knowledge, based on the Environmental
Report, there are no Hazardous Substances (defined below) or underground storage
tanks in, on, or under the Property, except those that are both (i) in
compliance with Environmental Laws (defined below) and with permits issued
pursuant thereto and (ii) fully disclosed to Lender in writing pursuant the
Environmental Report; (b) there are no past, present or threatened Releases
(defined below) of Hazardous Substances in, on, under or from the Property which
has not been fully remediated in accordance with Environmental Law; (c) there is
no threat of any Release of Hazardous Substances migrating to the Property; (d)
there is no past or present non-compliance with Environmental Laws, or with
permits issued pursuant thereto, in connection with the Property which has not
been fully remediated in accordance with Environmental Law; (e) Borrower does
not know of, and has not received, any written or oral notice or other
communication from any Person (including but not limited to a governmental
entity) relating to Hazardous Substances or Remediation (defined below) thereof,
of possible liability of any Person pursuant to any Environmental Law, other
environmental conditions in connection with the Property, or any actual or
potential administrative or judicial proceedings in connection with any of the
foregoing; and (f) Borrower has truthfully and fully provided to Lender, in
writing, any and all information relating to conditions in, on, under or from
the Property that is known to Borrower and that is contained in Borrower's files
and records, including but not limited to any reports relating to Hazardous
Substances in, on, under or from the Property and/or to the environmental
condition of the Property.
"ENVIRONMENTAL LAW" means any present and future federal, state and
local laws, statutes, ordinances, rules, regulations and the like, as well as
common law, relating to protection of human health or the environment, relating
to Hazardous Substances, relating to liability for or costs of Remediation or
prevention of Releases of Hazardous Substances or relating to liability for or
costs of other actual or threatened danger to human health or the environment.
Environmental Law includes, but is not limited to, the following statutes, as
amended, any successor thereto, and any regulations promulgated pursuant
thereto, and any state or local statutes, ordinances, rules, regulations and the
like addressing similar issues: the Comprehensive Environmental Response,
Compensation and Liability Act; the Emergency Planning and Community
Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource
Conservation and Recovery Act (including but not limited to Subtitle 1 relating
to underground storage tanks); the Solid Waste Disposal Act; the Clean Water
Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking
Water Act; the Occupational Safety and Health Act; the Federal Water Pollution
Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the
Endangered Species Act; the National Environmental Policy Act; and the River and
Harbors Appropriation Act. Environmental Law also includes, but is not limited
to, any present and future federal, state and local laws, statutes, ordinances,
rules, regulations and the like, as well as common law: conditioning transfer of
property upon a negative declaration or other approval of a governmental
authority of the environmental condition of the Property; requiring notification
or disclosure of Releases of Hazardous Substances or other environmental
condition of the Property to any governmental authority or other Person, whether
or not in
20
connection with transfer of title to or interest in property; imposing
conditions or requirements in connection with permits or other authorization for
lawful activity; relating to nuisance, trespass or other causes of action
related to the Property; and relating to wrongful death, personal injury, or
property or other damage in connection with any physical condition or use of the
Property.
"HAZARDOUS SUBSTANCES" include but are not limited to any and all
substances (whether solid, liquid or gas) defined, listed, or otherwise
classified as pollutants, hazardous wastes, hazardous substances, hazardous
materials, extremely hazardous wastes, or words of similar meaning or regulatory
effect under any present or future Environmental Laws or that may have a
negative impact on human health or the environment, including but not limited to
petroleum and petroleum products, asbestos and asbestos-containing materials,
polychlorinated biphenyls, lead, radon, radioactive materials, flammables and
explosives, but excluding substances of kinds and in amounts ordinarily and
customarily used or stored in similar properties for the purpose of cleaning or
other maintenance or operations and otherwise in compliance with all
Environmental Laws.
"RELEASE" of any Hazardous Substance includes but is not limited to
any release, deposit, discharge, emission, leaking, spilling, seeping,
migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing
or other movement of Hazardous Substances.
"REMEDIATION" includes but is not limited to any response, remedial,
removal, or corrective action, any activity to cleanup, detoxify, decontaminate,
contain or otherwise remediate any Hazardous Substance, any actions to prevent,
cure or mitigate any Release of any Hazardous Substance, any action to comply
with any Environmental Laws or with any permits issued pursuant thereto, any
inspection, investigation, study, monitoring, assessment, audit, sampling and
testing, laboratory or other analysis, or evaluation relating to any Hazardous
Substances or to anything referred to in Article 8.
8.2 ENVIRONMENTAL COVENANTS. Borrower covenants and agrees that:
(a) all uses and operations on or of the Property, whether by Borrower or any
other Person, shall be in compliance with all Environmental Laws and permits
issued pursuant thereto; (b) Borrower shall not cause or permit the Release of
any Hazardous Substances in, on, under or from the Property; (c) there shall be
no Hazardous Substances in, on, or under the Property, except those that are
both (i) in compliance with all Environmental Laws and with permits issued
pursuant thereto and (ii) fully disclosed to Lender in writing; (d) Borrower
shall keep the Property free and clear of all liens and other encumbrances
imposed pursuant to any Environmental Law, whether due to any act or omission of
Borrower or any other Person (the "ENVIRONMENTAL LIENS"); (e) Borrower shall, at
its sole cost and expense, fully and expeditiously cooperate in all activities
pursuant to Section 8.3 below, including but not limited to providing all
relevant information and making knowledgeable persons available for interviews;
(f) Borrower shall, at its sole cost and expense, perform any environmental site
assessment or other investigation of environmental conditions in connection with
the Property, pursuant to any reasonable written request of Lender made in the
event that Lender has a good faith reason to believe based upon credible
evidence or information that an environmental hazard exists on or affects the
Property (including but not limited to sampling, testing and analysis of soil,
water, air, building materials and other materials and
21
substances whether solid, liquid or gas), and share with Lender the reports and
other results thereof, and Lender and other Indemnified Parties shall be
entitled to rely on such reports and other results thereof; (g) Borrower shall,
at its sole cost and expense, comply with all reasonable written requests of
Lender made in the event that Lender has a good faith reason to believe based
upon credible evidence or information that an environmental hazard exists on or
affects the Property to (i) reasonably effectuate Remediation of any condition
(including but not limited to a Release of a Hazardous Substance) in, on, under
or from the Property; (ii) comply with any Environmental Law; (iii) comply with
any directive from any governmental authority; and (iv) take any other
reasonable action necessary or appropriate for protection of human health or the
environment; (h) Borrower shall not do or knowingly allow any tenant or other
user of the Property to do any act that materially increases the dangers to
human health or the environment, poses an unreasonable risk of harm to any
Person (whether on or off the Property), impairs or may impair the value of the
Property, is contrary to any requirement of any insurer, constitutes a public or
private nuisance, constitutes waste, or violates any covenant, condition,
agreement or easement applicable to the Property; and (i) Borrower shall
immediately notify Lender in writing of (A) any presence or Releases or
threatened Releases of Hazardous Substances in, on, under, from or migrating
towards the Property; (B) any non-compliance with any Environmental Laws related
in any way to the Property; (C) any actual or potential Environmental Lien; (D)
any required or proposed Remediation of environmental conditions relating to the
Property; and (E) any written or oral notice or other communication of which
Borrower becomes aware from any source whatsoever (including but not limited to
a governmental entity) relating in any way to Hazardous Substances or
Remediation thereof, possible liability of any Person pursuant to any
Environmental Law, other environmental conditions in connection with the
Property, or any actual or potential administrative or judicial proceedings in
connection with anything referred to in this Article 8.
8.3 LENDER'S RIGHTS. In the event that Lender has a good faith
reason to believe based upon credible evidence or information that an
environmental hazard exists on the Property, upon reasonable notice from Lender,
Borrower shall, at Borrower's expense, promptly cause an engineer or consultant
satisfactory to Lender to conduct any environmental assessment or audit (the
scope of which shall be determined in Lender's sole and absolute discretion) and
take any samples of soil, groundwater or other water, air, or building materials
or any other invasive testing requested by Lender and promptly deliver the
results of any such assessment, audit, sampling or other testing; provided,
however, if such results are not delivered to Lender within a reasonable period,
upon reasonable notice to Borrower, Lender and any other Person designated by
Lender, including but not limited to any receiver, any representative of a
governmental entity, and any environmental consultant, shall have the right, but
not the obligation, to enter upon the Property at all reasonable times to assess
any and all aspects of the environmental condition of the Property and its use,
including but not limited to conducting any environmental assessment or audit
(the scope of which shall be determined in Lender's sole and absolute
discretion) and taking samples of soil, groundwater or other water, air, or
building materials, and reasonably conducting other invasive testing. Borrower
shall cooperate with and provide access to Lender and any such Person designated
by Lender.
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ARTICLE IX
INDEMNIFICATION
9.1 GENERAL INDEMNIFICATION. Borrower shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless the Indemnified
Parties from and against any and all claims, suits, liabilities (including,
without limitation, strict liabilities), actions, proceedings, obligations,
debts, damages, losses, costs, expenses, diminutions in value, fines, penalties,
charges, fees, expenses, judgments, awards, amounts paid in settlement, punitive
damages, foreseeable and unforeseeable consequential damages, of whatever kind
or nature (including but not limited to reasonable attorneys' fees and other
costs of defense) (collectively, the "LOSSES") imposed upon or incurred by or
asserted against any Indemnified Parties and directly or indirectly arising out
of or in any way relating to any one or more of the following: (a) ownership of
this Mortgage, the Property or any interest therein or receipt of any Rents; (b)
any amendment to, or restructuring of, the Debt, and the Note, the Loan
Agreement, this Mortgage, or any other Loan Documents; (c) any and all lawful
action that may be taken by Lender in connection with the enforcement of the
provisions of this Mortgage or the Loan Agreement or the Note or any of the
other Loan Documents, whether or not suit is filed in connection with same, or
in connection with Borrower, any guarantor or indemnitor and/or any partner,
joint venturer or shareholder thereof becoming a party to a voluntary or
involuntary federal or state bankruptcy, insolvency or similar proceeding; (d)
any accident, injury to or death of persons or loss of or damage to property
occurring in, on or about the Property or any part thereof or on the adjoining
sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways;
(e) performance of any labor or services or the furnishing of any materials or
other property in respect of the Property or any part thereof; (f) the failure
of any person to file timely with the Internal Revenue Service an accurate Form
0000-X, Xxxxxxxxx for Recipients of Proceeds from Real Estate, Broker and Barter
Exchange Transactions, which may be required in connection with this Mortgage,
or to supply a copy thereof in a timely fashion to the recipient of the proceeds
of the transaction in connection with which this Mortgage is made; (g) any
failure of the Property to be in compliance with any Legal Requirements; (h) the
enforcement by any Indemnified Party of the provisions of this Article 9; (i)
any and all claims and demands whatsoever which may be asserted against Lender
by reason of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants, or agreements contained in any Lease; (j)
the payment of any commission, charge or brokerage fee to anyone claiming
through Borrower which may be payable in connection with the funding of the
Loan; or (k) any misrepresentation made by Borrower in this Mortgage or any
other Loan Document. Notwithstanding the foregoing, Borrower shall not be liable
to the Indemnified Parties under this Section 9.1. for any Losses to which the
Indemnified Parties may become subject to the extent such Losses arise by reason
of the gross negligence, illegal acts, fraud or willful misconduct of the
Indemnified Parties or Losses resulting from acts or omissions arising after a
completed foreclosure of the Property or acceptance by Lender of a deed in lieu
of foreclosure. Any amounts payable to Lender by reason of the application of
this Section 9.1 shall become immediately due and payable and shall bear
interest at the Default Rate from the date loss or damage is sustained by
Lender until paid. For purposes of this Article 9, the term "INDEMNIFIED
PARTIES" means Lender and any Person who is or will have been involved in the
origination of
23
the Loan, any Person who is or will have been involved in the servicing of the
Loan secured hereby, any Person in whose name the encumbrance created by this
Mortgage is or will have been recorded, persons and entities who may hold or
acquire or will have held a full or partial interest in the Loan secured hereby
(including, but not limited to, investors or prospective investors in the
Securities, as well as custodians, trustees and other fiduciaries who hold or
have held a full or partial interest in the Loan secured hereby for the benefit
of third parties) as well as the respective directors, officers, shareholders,
partners, employees, agents, servants, representatives, contractors,
subcontractors, affiliates, subsidiaries, participants, successors and assigns
of any and all of the foregoing (including but not limited to any other Person
who holds or acquires or will have held a participation or other full or partial
interest in the Loan, whether during the term of the Loan or as a part of or
following a foreclosure of the Loan and including, but not limited to, any
successors by merger, consolidation or acquisition of all or a substantial
portion of Lender's assets and business).
9.2 MORTGAGE AND/OR INTANGIBLE TAX. Borrower shall, at its sole
cost and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all Losses imposed upon or incurred
by or asserted against any Indemnified Parties and directly or indirectly
arising out of or in any way relating to any tax on the making and/or recording
of this Mortgage, the Note or any of the other Loan Documents, but excluding any
income, franchise or other similar taxes. Borrower hereby agrees that, in the
event that it is determined that any documentary stamp taxes or intangible
personal property taxes are due hereon or on any mortgage or promissory note
executed in connection herewith (including, without limitation, the Note),
Borrower shall indemnify and hold harmless the Indemnified Parties for all such
documentary stamp and/or intangible taxes, including all penalties and interest
assessed or charged in connection therewith.
9.3 ERISA INDEMNIFICATION. Borrower shall, at its sole cost and
expense, protect, defend, indemnify, release and hold harmless the Indemnified
Parties from and against any and all Losses (including, without limitation,
reasonable attorneys' fees and costs incurred in the investigation, defense, and
settlement of Losses incurred in correcting any prohibited transaction or in the
sale of a prohibited loan, and in obtaining any individual prohibited
transaction exemption under ERISA that may be required, in Lender's sole
discretion) that Lender may incur, directly or indirectly, as a result of a
default under Sections 4.1.9 or 5.2.12 of the Loan Agreement.
9.4 ENVIRONMENTAL INDEMNIFICATION. Borrower shall, at its sole
cost and expense, protect, defend, indemnify, release and hold harmless the
Indemnified Parties from and against any and all Losses and costs of Remediation
(whether or not performed voluntarily), engineers' fees, environmental
consultants' fees, and costs of investigation (including but not limited to
sampling, testing, and analysis of soil, water, air, building materials and
other materials and substances whether solid, liquid or gas) imposed upon or
incurred by or asserted against any Indemnified Parties, and directly or
indirectly arising out of or in any way relating to any one or more of the
following: (a) any presence of any Hazardous Substances in, on, above, or under
the Property; (b) any past, present or threatened Release of Hazardous
Substances in, on, above, under or from the Property; (c) any activity by
Borrower, any Person affiliated with
24
Borrower or any tenant or other user of the Property in connection with any
actual, proposed or threatened use, treatment, storage, holding, existence,
disposition or other Release, generation, production, manufacturing, processing,
refining, control, management, abatement, removal, handling, transfer or
transportation to or from the Property of any Hazardous Substances at any time
located in, under, on or above the Property; (d) any activity by Borrower, any
Person affiliated with Borrower or any tenant or other user of the Property in
connection with any actual or proposed Remediation of any Hazardous Substances
at any time located in, under, on or above the Property, whether or not such
Remediation is voluntary or pursuant to court or administrative order, including
but not limited to any removal, remedial or corrective action; (e) any past or
present non-compliance or violations of any Environmental Laws (or permits
issued pursuant to any Environmental Law) in connection with the Property or
operations thereon, including but not limited to any failure by Borrower, any
Affiliate of Borrower or any tenant or other user of the Property to comply with
any order of any Governmental Authority in connection with any Environmental
Laws; (f) the imposition, recording or filing of any Environmental Lien
encumbering the Property; (g) any administrative processes or proceedings or
judicial proceedings in any way connected with any matter addressed in Article 8
and this Section 9.4; (h) any past, present or threatened injury to, destruction
of or loss of natural resources in any way connected with the Property,
including but not limited to costs to investigate and assess such injury,
destruction or loss; (i) any acts of Borrower or other users of the Property in
arranging for disposal or treatment, or arranging with a transporter for
transport for disposal or treatment, of Hazardous Substances owned or possessed
by such Borrower or other users, at any facility or incineration vessel owned or
operated by another Person and containing such or any similar Hazardous
Substance; (j) any acts of Borrower or other users of the Property, in accepting
any Hazardous Substances for transport to disposal or treatment facilities,
incineration vessels or sites selected by Borrower or such other users, from
which there is a Release, or a threatened Release of any Hazardous Substance
which causes the incurrence of costs for Remediation; (k) any personal injury,
wrongful death, or property damage arising under any statutory or common law or
tort law theory, including but not limited to damages assessed for the
maintenance of a private or public nuisance or for the conducting of an
abnormally dangerous activity on or near the Property; and (1) any
misrepresentation or inaccuracy in any representation or warranty or material
breach or failure to perform any covenants or other obligations pursuant to
Article 8. Notwithstanding the foregoing, Borrower shall not be liable under
this Section 9.4 for any Losses or costs of Remediation to which the Indemnified
Parties may become subject to the extent such Losses or costs of Remediation
arise by reason of the gross negligence, illegal acts, fraud or willful
misconduct of the Indemnified Parties or Losses resulting from acts or omissions
arising after a completed foreclosure of the Property or acceptance by Lender of
a deed in lieu of foreclosure. This indemnity shall survive any termination,
satisfaction or foreclosure of this Mortgage, subject to the provisions of
Section 10.5.
9.5 DUTY TO DEFEND: ATTORNEYS' FEES AND OTHER FEES AND EXPENSES.
Upon written request by any Indemnified Party, Borrower shall defend such
Indemnified Party (if requested by any Indemnified Party, in the name of the
Indemnified Party) by attorneys and other professionals approved by the
Indemnified Parties. Notwithstanding the foregoing, if the defendants in any
such claim or proceeding include both Borrower and any Indemnified Party and
Borrower and such Indemnified Party shall have reasonably concluded that there
are any
25
legal defenses available to it and/or other Indemnified Parties that are
different from or additional to those available to Borrower, such Indemnified
Party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such Indemnified Party, provided that no compromise or settlement shall be
entered without Borrower's consent, which consent shall not be unreasonably
withheld. Upon demand, Borrower shall pay or, in the sole and absolute
discretion of the Indemnified Parties, reimburse, the Indemnified Parties for
the payment of reasonable fees and disbursements of attorneys, engineers,
environmental consultants, laboratories and other professionals in connection
therewith.
ARTICLE X
WAIVERS
10.1 WAIVER OF COUNTERCLAIM. To the extent permitted by applicable
law, Borrower hereby waives the right to assert a counterclaim, other than a
mandatory or compulsory counterclaim, in any action or proceeding brought
against it by Lender arising out of or in any way connected with this Mortgage,
the Loan Agreement, the Note, any of the other Loan Documents, or the
Obligations.
10.2 MARSHALLING AND OTHER MATTERS. To the extent permitted by
applicable law, Borrower hereby waives, to the extent permitted by law, the
benefit of all appraisement, valuation, stay, extension, reinstatement and
redemption laws now or hereafter in force and all rights of marshalling in the
event of any sale hereunder of the Property or any part thereof or any interest
therein. Further, Borrower hereby expressly waives any and all rights of
redemption from sale under any order or decree of foreclosure of this Mortgage
on behalf of Borrower, and on behalf of each and every person acquiring any
interest in or title to the Property subsequent to the date of this Mortgage and
on behalf of all persons to the extent permitted by applicable law.
10.3 WAIVER OF NOTICE. To the extent permitted by applicable law,
Borrower shall not be entitled to any notices of any nature whatsoever from
Lender or Trustee except with respect to matters for which this Mortgage
specifically and expressly provides for the giving of notice by Lender or
Trustee to Borrower and except with respect to matters for which Lender or
Trustee is required by applicable law to give notice, and Borrower hereby
expressly waives the right to receive any notice from Lender or Trustee with
respect to any matter for which this Mortgage does not specifically and
expressly provide for the giving of notice by Lender or Trustee to Borrower.
10.4 WAIVER OF STATUTE OF LIMITATIONS. To the extent permitted by
applicable law, Borrower hereby expressly waives and releases to the fullest
extent permitted by law, the pleading of any statute of limitations as a defense
to payment of the Debt or performance of its Other Obligations.
10.5 SURVIVAL. The indemnifications made pursuant to Sections 9.3
and 9.4 herein and the representations and warranties, covenants, and other
obligations arising under Article 8, shall continue indefinitely in full force
and effect and shall survive and shall in no way
26
be impaired by: any satisfaction or other termination of this Mortgage, any
assignment or other transfer of all or any portion of this Mortgage or Lender's
interest in the Property (but, in such case, shall benefit both Indemnified
Parties and any assignee or transferee), any exercise of Lender's rights and
remedies pursuant hereto including but not limited to foreclosure or acceptance
of a deed in lieu of foreclosure, any exercise of any rights and remedies
pursuant to the Loan Agreement, the Note or any of the other Loan Documents, any
transfer of all or any portion of the Property (whether by Borrower or by Lender
following foreclosure or acceptance of a deed in lieu of foreclosure or at any
other time), any amendment to this Mortgage, the Loan Agreement, the Note or the
other Loan Documents, and any act or omission that might otherwise be construed
as a release or discharge of Borrower from the obligations pursuant hereto.
Notwithstanding anything to the contrary contained in this Mortgage or the other
Loan Documents, Borrower shall not have any obligations or liabilities under the
indemnification under Section 9.4 herein or other indemnifications with respect
to Hazardous Substances contained in the other Loan Documents with respect to
those obligations and liabilities that Borrower can prove arose solely from
Hazardous Substances that (i) were not present on or a threat to the Property
prior to the date that Lender or its nominee acquired title to the Property,
whether by foreclosure, exercise by power of sale, acceptance of a deed-in-lieu
of foreclosure or otherwise and (ii) were not the result of any act or
negligence of Borrower or any of Borrower's affiliates, agents or contractors.
ARTICLE XI
EXCULPATION
The provisions of Section 9.4 of the Loan Agreement are hereby
incorporated by reference into this Mortgage to the same extent and with the
same force as if fully set forth herein.
ARTICLE XII
NOTICES
All notices or other written communications hereunder shall be
delivered in accordance with Section 10.6 of the Loan Agreement.
ARTICLE XIII
APPLICABLE LAW
13.1 GOVERNING LAW. THIS MORTGAGE SHALL BE DEEMED TO BE A CONTRACT
ENTERED INTO PURSUANT TO THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED AND
SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED.
27
13.2 USURY LAWS. Notwithstanding anything to the contrary, (a) all
agreements and communications between Borrower and Lender are hereby and shall
automatically be limited so that, after taking into account, all amounts deemed
interest, the interest contracted for, charged or received by Lender shall
never exceed the maximum lawful rate or amount, (b) in calculating whether any
interest exceeds the lawful maximum, all such interest shall be amortized,
prorated, allocated and spread over the full amount and term of all principal
indebtedness of Borrower to Lender, and (c) if through any contingency or event,
Lender receives or is deemed to receive interest in excess of the lawful
maximum, any such excess shall be deemed to have been applied toward payment of
the principal of any and all then outstanding indebtedness of Borrower to
Lender, or if there is no such indebtedness, shall immediately be returned to
Borrower.
13.3 PROVISIONS SUBJECT TO APPLICABLE LAW. All rights, powers and
remedies provided in this Mortgage may be exercised only to the extent that the
exercise thereof does not violate any applicable provisions of law and are
intended to be limited to the extent necessary so that they will not render this
Mortgage invalid, unenforceable or not entitled to be recorded, registered or
filed under the provisions of any applicable law. If any term of this Mortgage
or any application thereof shall be invalid or unenforceable, the remainder of
this Mortgage and any other application of the term shall not be affected
thereby.
ARTICLE XIV
DEFINITIONS
All capitalized terms not defined herein shall the respective meanings
set forth in the Loan Agreement. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Mortgage may be used interchangeably in singular or plural form and the word
"BORROWER" shall mean "each Borrower and any subsequent owner or owners of the
Property or any part thereof or any interest therein," the word "LENDER" shall
mean "Lender and any subsequent holder of the Note," the word "NOTE" shall mean
"the Note and any other evidence of indebtedness secured by this Mortgage," the
word "PROPERTY" shall include any portion of the Property and any interest
therein, and the phrases "ATTORNEYS' FEES", "LEGAL LEES" and "COUNSEL FEES"
shall include any and all attorneys', paralegal and law clerk fees and
disbursements, including, but not limited to, fees and disbursements at the
pre-trial, trial and appellate levels incurred or paid by Lender in protecting
its interest in the Property, the Leases and the Rents and enforcing its rights
hereunder.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 NO ORAL CHANGE. This Mortgage, and any provisions hereof, may not
be modified, amended, waived, extended, changed, discharged or terminated orally
or by any act or failure to act on the part of Borrower or Lender, but only by
an agreement in writing signed by the party against whom enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
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15.2 SUCCESSORS AND ASSIGNS. This Mortgage shall be binding upon
and inure to the benefit of Borrower and Lender and their respective successors
and assigns forever.
15.3 INAPPLICABLE PROVISIONS. If any term, covenant or condition of
the Loan Agreement, the Note or this Mortgage is held to be invalid, illegal or
unenforceable in any respect, the Loan Agreement, the Note and this Mortgage
shall be construed without such provision.
15.4 HEADINGS, ETC. The headings and captions of various Sections
of this Mortgage are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
15.5 NUMBER AND GENDER. Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.
15.6 SUBROGATION. If any or all of the proceeds of the Note have
been used to extinguish, extend or renew any indebtedness heretofore existing
against the Property, then, to the extent of the funds so used, Lender shall be
subrogated to all of the rights, claims, liens, titles, and interests existing
against the Property heretofore held by, or in favor of, the holder of such
indebtedness and such former rights, claims, liens, titles, and interests, if
any, are not waived but rather are continued in full force and effect in favor
of Lender and are merged with the lien and security interest created herein as
cumulative security for the repayment of the Debt, the performance and discharge
of Borrower's obligations hereunder, under the Loan Agreement, the Note and the
other Loan Documents and the performance and discharge of the Other Obligations.
15.7 ENTIRE AGREEMENT. The Note, the Loan Agreement, this Mortgage
and the other Loan Documents constitute the entire understanding and agreement
between Borrower and Lender with respect to the transactions arising in
connection with the Debt and supersede all prior written or oral understandings
and agreements between Borrower and Lender with respect thereto. Borrower hereby
acknowledges that, except as incorporated in writing in the Note, the Loan
Agreement, this Mortgage and the other Loan Documents, there are not, and were
not, and no persons are or were authorized by Lender to make, any
representations, understandings, stipulations, agreements or promises, oral or
written, with respect to the transaction which is the, subject of the Note, the
Loan Agreement, this Mortgage and the other Loan Documents.
15.8 LIMITATION ON LENDER'S RESPONSIBILITY. No provision of this
Mortgage shall operate to place any obligation or liability for the control,
care, management or repair of the Property upon Lender, nor shall it operate to
make Lender responsible or liable for any waste committed on the Property by the
tenants or any other Person, or for any dangerous or defective condition of the
Property, or for any negligence in the management, upkeep, repair or control of
the Property resulting in loss or injury or death to any tenant, licensee,
employee or stranger. Nothing herein contained shall be construed as
constituting Lender a "mortgagee in possession."
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ARTICLE XVI
SPECIAL WASHINGTON PROVISIONS
16.1 PRINCIPLES OF CONSTRUCTION. In the event of any
inconsistencies between the terms and conditions of this Article 16 and the
terms and conditions of this Mortgage, the terms and conditions of this Article
16 shall control and be binding.
16.2 SUBSTITUTION OF TRUSTEE. Pursuant, to RCW 61.24.010(2), the
powers of Trustee may be exercised by any successor Trustee with the same effect
as if exercised by Trustee. Borrower hereby grants to Lender, in its sole
discretion, the right and power to appoint a substitute trustee or trustees for
any reason whatsoever. Such substitution shall be made by an instrument duly
executed and acknowledged and recorded where this Mortgage is recorded.
16.3 PERFORMANCE OF DUTIES; LIABILITY. Trustee shall perform and
fulfill faithfully its obligations hereunder, but it shall be under no duty to
act until it receives notice of the occurrence of an Event of Default from
Lender and arrangements have been made which are satisfactory to it for the
indemnification to which it is entitled, the payment of its compensation and the
reimbursement of any expenses it may incur in the performance of its duties. It
shall have no liability for its acts unless it is guilty of willful misconduct
or gross negligence.
16.4 TRUSTEE'S FEES. Borrower shall pay Trustee reasonable
compensation for any and all services performed and all its reasonable expenses,
charges, attorneys' fees and other obligations incurred in the administration
and execution of the trusts hereby created and the performance of its duties and
powers hereunder, which compensation, expenses, fees and disbursements shall
constitute a part of the Debt secured hereby.
16.5 RECONVEYANCE. Trustee shall reconvey all or any part of the
Property covered by this Mortgage to the person entitled thereto, upon written
request of Lender and Borrower, or upon full satisfaction of the Debt secured
hereby and written request of Lender or the person entitled thereto.
16.6. COMMERCIAL LOAN. Borrower warrants that the proceeds of the
Loan are for commercial purposes only and not for personal, family or household
purposes pursuant to RCW 19.52.080.
16.7. NON-AGRICULTURAL USE. The Property is not used principally for
agricultural purposes.
16.8. STATUTE OF FRAUDS. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LEND
MONEY, EXTEND CREDIT, OR FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
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31
IN WITNESS WHEREOF, THIS MORTGAGE has been executed by Borrower the
day and year first above written.
BORROWER:
INLAND WESTERN SPOKANE
NORTHPOINTE, L.L.C., a Delaware limited
liability company
By: Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, its sole
member
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Assistant Secretary
WITNESS:
/s/ Xxxxxx Xxxxxxxxx
--------------------
XXXXXX XXXXXXXXX
WITNESS:
/s/ [ILLEGIBLE]
------------------
[ILLEGIBLE]
32
ACKNOWLEDGMENT
STATE OF ILLINOIS
COUNTY OF DUPAGE
The foregoing instrument was acknowledged before me this 4th day
of June ___, 2004 by Xxxxxxx Xxxxxx as Assistant Secretary of INLAND WESTERN
RETAIL REAL ESTATE TRUST, INC., a Maryland corporation, which is the sole member
and manager of INLAND WESTERN SPOKANE NORTHPOINTE, L.L.C., a Delaware limited
liability company, who executed the foregoing instrument, and acknowledged the
execution thereof to be his/her free act and deed as such officer on behalf of
said corporation in its capacity as sole member and manager of said limited
liability company for the use and purposes therein mentioned, and the said
instrument is the act and deed of said corporation and limited liability
company.
My commission expires: 12/8/07
[Notarial Seal]
OFFICIAL SEAL /s/ Xxxxx X. Xxxxx
XXXXX X XXXXX -----------------------------
NOTARY PUBLIC - STATE OF ILLINOIS Print Name: Xxxxx X. Xxxxx
MY COMMISSION EXPIRES: 12/08/07 Notary Public
Serial Number:___________________
33
EXHIBIT A
LEGAL DESCRIPTION
(the legal description follows on next page)
