Exhibit 10(UUU)
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS
AND SECURITY AGREEMENT
OVERSEAS PARTNERS (MADISON PLAZA), LLC
Mortgagor
with
NEW YORK LIFE INSURANCE COMPANY,
Mortgagee
Dated: December __, 1998
Premises: Madison Plaza
000 Xxxx Xxxxxxx
Xxxxxxx, Xxxxxxxx
Prepared By and
Record And Return To:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx, Esq.
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TABLE OF CONTENTS*
RECITALS:................................................................ 1
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GRANTING CLAUSE.......................................................... 1
DEFINITIONS.............................................................. 5
ARTICLE I - COVENANTS AND AGREEMENTS..................................... 7
1.01 Payment of Obligations.................................... 7
1.02 Payment of Taxes, Assessments, Etc........................ 7
A. Impositions.......................................... 7
B. Installments......................................... 7
C. Receipts............................................. 7
D. Evidence of Payment.................................. 8
E. Payment by Mortgagee................................. 8
F. Change in Law........................................ 8
G. Permitted Contest.................................... 8
H. No Lease Default..................................... 9
I. Joint Assessment..................................... 9
J. Tax Service Fee...................................... 9
1.03 Insurance................................................. 9
A. Extended Coverage.................................... 9
B. Additional Coverage.................................. 9
C. Separate Insurance................................... 10
D. Insurers; Policies................................... 10
E. Mortgagee's Right to Provide Coverage................ 11
F. Damage or Destruction................................ 11
G. Mortgagor's Use of Proceeds.......................... 12
H. Transfer of Interest in Policies..................... 14
1.04 Escrow Deposits........................................... 14
1.05 Care and Use of Premises.................................. 15
A. Maintenance and Repairs.............................. 15
B. Standard of Repairs.................................. 15
C. Notice to Mortgagee.................................. 15
D. Removal of Equipment................................. 15
E. Compliance With Laws and Insurance................... 15
F. Hazardous Materials.................................. 16
G. Intentionally Omitted................................ 18
H. Compliance With Instruments of Record................ 18
I. Alteration of Secured Property....................... 18
J. Parking.............................................. 19
K. Entry on Secured Property............................ 19
L. No Consent to Alterations or Repairs................. 19
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M. Mechanics Liens........................................................ 19
N. Use of Secured Property by Mortgagor................................... 19
O. Use of Secured Property by Mortgagor................................... 19
P. Management............................................................. 20
1.06 Financial Information....................................................... 20
A. Audit.................................................................. 20
B. Right to Inspect Books and Records..................................... 21
1.07 Condemnation................................................................ 21
A. Mortgagee's Right to Participate in Proceedings........................ 21
B. Application of Condemnation Award...................................... 21
C. Reimbursement of Costs................................................. 21
D. Existing Obligations................................................... 21
E. Application of Award................................................... 22
1.08 Leases...................................................................... 22
A. Performance of Lessor's Covenants...................................... 22
B. Notice of Default...................................................... 23
C. Representations Regarding Leases....................................... 23
D. Manager................................................................ 23
E. Covenants Regarding Leases............................................. 23
F. Approval of Leases..................................................... 24
G. Application of Rents................................................... 26
1.09 Assignment of Leases, Rents, Income, Profits and Cash Collateral............ 26
A. Assignment; Discharge of Obligations................................... 26
B. Entry Onto Secured Property; Lease of Secured Property................. 26
C. License to Manage Secured Property..................................... 27
D. Delivery of Assignments................................................ 27
E. Indemnity.............................................................. 27
1.10 Further Assurances.......................................................... 27
A. General; Appointment of Attorney-in-Fact............................... 27
B. Statement Regarding Obligations........................................ 28
C. Additional Security Instruments........................................ 28
D. Security Agreement and Fixture Filing.................................. 28
E. Preservation of Mortgagor's Existence.................................. 29
F. Further Indemnities.................................................... 29
G. Absence of Insurance................................................... 30
1.11 Further Sales or Encumbrances............................................... 30
A. Continuing Ownership and Management.................................... 30
B. Transfer or Encumbrance of Secured Property............................ 30
C. Acceleration of Obligations............................................ 31
D. Subordinate, Wrap-Around and Other Financing........................... 31
1.12 Intentionally Omitted....................................................... 32
1.13 Expenses.................................................................... 32
ARTICLE II - REPRESENTATIONS AND WARRANTIES................................................ 32
2.01 Warranty of Title........................................................... 32
2.02 Ownership Of Improvements And Personal Property............................. 32
2.03 No Pending Material Litigation or Proceeding; No Hazardous Materials........ 33
A. Proceedings Affecting Mortgagor........................................ 33
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B. Proceedings Affecting Secured Property................................. 33
C. No Hazardous Materials................................................. 33
D. No Litigation Regarding Hazardous Materials............................ 34
2.04 Valid Organization, Good Standing and Qualification of Mortgagor............ 34
2.05 Authorization; No Legal Restrictions on Performance......................... 34
2.06 Compliance With Laws........................................................ 35
2.07 Tax Status.................................................................. 35
2.08 Absence of Foreign or Enemy Status.......................................... 35
2.09 Federal Reserve Board Regulations........................................... 35
2.10 Investment Company Act and Public Utility Holding Company Act............... 36
2.11 Exempt Status of Transactions Under Securities Act
and Representations Relating Thereto........................................ 36
2.12 Employee Benefit Plans...................................................... 36
ARTICLE III - DEFAULTS..................................................................... 37
3.01 Events of Default........................................................... 37
ARTICLE IV - REMEDIES...................................................................... 38
4.01 Acceleration, Foreclosure, etc.............................................. 38
A. Foreclosure............................................................ 38
B. Partial Foreclosure.................................................... 39
C. Entry.................................................................. 39
D. Collection of Rents, etc............................................... 40
E. Receivership........................................................... 40
F. Specific Performance................................................... 40
G. Illinois Mortgage Foreclosure and Remedies............................. 40
4.02 No Election of Remedies..................................................... 45
4.03 Mortgagee's Right to Release, etc........................................... 45
4.04 Mortgagee's Right to Remedy Defaults, etc................................... 45
4.05 Waivers..................................................................... 45
4.06 Prepayment Charge........................................................... 46
ARTICLE V - MISCELLANEOUS.................................................................. 47
5.01 Non-Waiver.................................................................. 47
5.02 Sole Discretion of Mortgagee................................................ 48
5.03 Recovery of Sums Required To Be Paid........................................ 48
5.04 Legal Tender................................................................ 48
5.05 No Merger................................................................... 48
5.06 Discontinuance of Actions................................................... 49
5.07 Headings.................................................................... 49
5.08 Notice to Parties........................................................... 49
5.09 Non-Recourse................................................................ 50
5.10 Successors and Assigns Included In Parties.................................. 51
5.11 Number and Gender........................................................... 51
5.12 Changes and Modifications................................................... 51
5.13 Applicable Law.............................................................. 51
5.14 Invalid Provisions to Affect No Others...................................... 51
5.15 Usury Savings Clause........................................................ 52
5.16 No Statute of Limitations................................................... 52
5.17 Late Charges................................................................ 52
5.18 Waiver of Jury Trial........................................................ 52
5.19 Continuing Effectiveness.................................................... 52
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS
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AND SECURITY AGREEMENT
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT (this
"Mortgage") made as of the ____ day of December, 1998 by and between OVERSEAS
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PARTNERS (MADISON PLAZA), LLC, an Illinois limited liability company, having an
office at 000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
("Mortgagor"), and NEW YORK LIFE INSURANCE COMPANY, a New York mutual insurance
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company, having an office at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Mortgagee").
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RECITALS:
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Mortgagor has executed and delivered to Mortgagee that certain Promissory
Note (the "Note") dated the date hereof made by Mortgagor and payable to
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Mortgagee in the original principal amount of One Hundred Twenty-Five Million
and 00/100 Dollars ($125,000,000.00) in lawful money of the United States, which
Note is secured by this Mortgage and the terms, covenants and conditions of
which Note are hereby incorporated herein and made a part hereof;
NOW, THEREFORE, THIS MORTGAGE WITNESSETH, that in consideration of the sum
of One Dollar ($1.00) this day paid and other good and lawful consideration, the
receipt and sufficiency of which are hereby acknowledged and in order to secure
the Obligations (as hereinafter defined), Mortgagor hereby MORTGAGES, CONVEYS,
WARRANTS, grants, assigns, releases, transfers, pledges and sets over unto
Mortgagee, and confirms that this Mortgage constitutes a valid first lien upon
the following property:
GRANTING CLAUSE ONE
All that tract or parcel of land more particularly described in Exhibit A
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hereto and made a part hereof (the "Land").
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GRANTING CLAUSE TWO
TOGETHER WITH, any and all buildings and improvements now or hereafter located
or erected on the Land, including, without limitation, any and all machinery,
apparatus, equipment and fixtures now or hereafter attached to, or used or
procured for use in connection with the operation and/or maintenance of, any
building, structure or other improvement (including, without limitation, all
refrigerators, shades, awnings, venetian blinds, screens, screen doors, storm
doors and windows, stoves and ranges, curtain fixtures, partitions, attached
floor coverings and fixtures, apparatus, equipment or articles used to supply
sprinkler protection and waste removal, laundry equipment, furniture,
furnishings, appliances, office equipment, elevators, escalators, tanks,
dynamos, motors, generators, switchboards, communications equipment, electrical
equipment, television and radio systems, heating, plumbing, lifting and
ventilating apparatus, air-cooling and air conditioning apparatus, gas and
electric fixtures, fittings and machinery and all other equipment of every kind
and description but excluding trade fixtures and personal property of tenants
under Leases (as hereinafter defined) which do not become the property of
Mortgagor upon expiration or termination of the term of such Leases), and all
renewals and replacements thereof and articles in substitution therefor used or
procured for use in the operation of any and all such buildings, structures and
improvements, provided, in all cases, that, whether or not any of the foregoing
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are attached to said buildings, structures or other improvements in any manner,
all such items shall be deemed to be fixtures, part of the real estate and
security for the Obligations (collectively, the "Improvements", and the Land and
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Improvements are herein collectively called the "Premises"). To the extent any
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of the Improvements are not deemed real estate under the laws of the State of
Illinois they shall be deemed personal property ("Personal Property") and this
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Mortgage is and shall be deemed to be a Security Agreement for the purposes of
creating hereby a security interest under the Uniform Commercial Code as adopted
in the State of Illinois in Mortgagee as Secured Party in the Personal Property
as hereinafter provided.
GRANTING CLAUSE THREE
TOGETHER WITH, all easements, rights-of-way, strips and gores of land,
streets, ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, and all estates, rights, titles, interests, privileges,
liberties, tenements, hereditaments, air rights, development rights and credits
and appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to, or above or below the Premises.
GRANTING CLAUSE FOUR
TOGETHER WITH, all right, title and interest of Mortgagor, now owned or
hereafter acquired, in and to any land lying within the right-of-way of any
street, opened or proposed, adjoining the Premises, and in and to any and all
sidewalks, alleys and strips and gores of land adjacent to or used in connection
with the Premises.
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GRANTING CLAUSE FIVE
TOGETHER WITH, all right, title and interest of Mortgagor in and to all
options to purchase or lease the Premises or any portion thereof or interest
therein, and any greater estate in the Premises owned or hereafter acquired by
Mortgagor.
GRANTING CLAUSE SIX
TOGETHER WITH, all accounts receivable, insurance policies, licenses,
franchises, permits, service contracts, management agreements, trade names
(including without limitation all right, title and interest of Borrower in the
name of "Madison Plaza"), trademarks, service marks, logos, general intangibles,
contract rights, interests, estates and other claims, both in law and in equity,
which Mortgagor now has or may hereafter acquire in the Premises.
GRANTING CLAUSE SEVEN
TOGETHER WITH, all the estate, interest, right, title and other claim or
demand which Mortgagor now has or may hereafter acquire in any and all awards or
payments made for the taking by eminent domain, or by any proceeding or purchase
in lieu thereof, of the whole or any part of the Premises, including, without
limitation, any awards resulting from a change of grade of streets and awards
for severance damages together, in all cases, with any interest thereon.
GRANTING CLAUSE EIGHT
TOGETHER WITH, all proceeds of and any unearned premiums on any insurance
policies covering the Premises, including, without limitation, the right to
receive and apply the proceeds of any insurance or judgments, or settlements
made in lieu thereof, for damage to the Premises.
GRANTING CLAUSE NINE
TOGETHER WITH, all the estate, interest, right, title and other claim or
demand which Mortgagor now has or may hereafter acquire against anyone with
respect to any damage to all or any part of the Premises, including, without
limitation, damage arising or resulting from any defect in or with respect to
the design or construction of all or any part of the Improvements.
GRANTING CLAUSE TEN
TOGETHER WITH, all deposits or other security or advance payments, including
rental payments, made by or on behalf of Mortgagor to others in connection with
the ownership or operation of all or any part of the Premises including, without
limitation, any such deposits or
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payments made with respect to (i) insurance policies, (ii) utility service,
(iii) cleaning, maintenance, repair or similar services, (iv) refuse removal or
sewer service, (v) rental of equipment, if any, used by or on behalf of
Mortgagor, and (vi) parking or similar services or rights.
GRANTING CLAUSE ELEVEN
TOGETHER WITH, all remainders, reversions, leasehold estate, other estate,
right, title, interest and other claim or demand of Mortgagor in and to all
leases or subleases covering the Premises or any portion thereof now or
hereafter existing or entered into, and all right, title and interest of
Mortgagor thereunder, including, without limitation, all cash or security
deposits, advance rentals and deposits or payments of similar nature.
GRANTING CLAUSE TWELVE
TOGETHER WITH, absolutely and presently, all rents, issues, profits, cash
collateral, royalties, income and other benefits, including, without limitation,
benefits accruing from all present and future oil, gas and mineral leases and
agreements derived from the Premises (collectively, the "Rents"), subject to the
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right, power and authority hereinafter given to Mortgagor as a licensee to
collect and apply such Rents prior to the occurrence of a default hereunder.
The foregoing Premises, Personal Property and rights therein, hereinabove
described or mentioned are hereinafter collectively referred to as the "Secured
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Property".
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TO HAVE AND TO HOLD the Premises unto the said Mortgagee, its successors and
assigns, forever, for the purposes and uses herein set forth.
Upon full satisfaction of the Obligations (defined herein), Mortgagor shall
request Mortgagee to release this Mortgage and the lien hereof and upon payment
by Mortgagor to Mortgagee of any filing fee due any third party in order to
record and cause such release of public record, Mortgagee shall so release this
Mortgage and the lien hereof as a matter of public record.
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DEFINITIONS
As used in this Mortgage, the following terms shall have the meanings
specified below (such meanings to be equally applicable to both the singular and
plural forms of the terms defined:
"Assignment" shall mean the Assignment of Leases, Rents, Income and Cash
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Collateral dated the date hereof from Mortgagor, as assignor, to Mortgagee, as
assignee.
"Code" shall mean the Uniform Commercial Code of the State of Illinois.
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"Condemnation Proceedings" shall have the meaning set forth in Subsection
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1.07A hereof.
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"Debt Coverage Ratio" shall mean for any period, a fraction, the numerator of
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which shall equal the projected net operating income of the Premises for such
period, and the denominator of which shall equal the aggregate of the principal,
interest and any other amounts payable for such period with respect to the
Obligations.
"Employee Benefit Plans" shall mean any employee benefit plans (as defined in
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ERISA) maintained at any time by Mortgagor.
"ERISA" shall mean Internal Revenue Code Section 4975 and the Employee
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Retirement Income Security Act of 1974 and the regulations thereunder.
"Event of Default" shall have the meaning set forth in Section 3.01 hereof.
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"Governmental Agency" shall mean any governmental department, commission,
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board, regulatory authority, bureau, agency or instrumentality, domestic,
foreign, federal, state or municipal.
"Hazardous Material" shall mean and include any oil, flammable explosives,
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radioactive materials, asbestos in any form, underground fuel tanks, hazardous,
toxic or dangerous waste, chemical, substance or related material, urea
formaldehyde foam insulation, polychlorinated biphenyls, or radon gas including,
but not limited to, substances defined as such in (or for purposes of) or which
may give rise to liability under any Hazardous Materials Laws.
"Hazardous Materials Laws" shall mean and include (i) the Comprehensive
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Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C.
Section 9601, et seq.; (ii) the Hazardous Materials Transportation Act, as
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amended 49 U.S.C. Section 1801, et seq.; (iii) the Resource Conservation and
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Recovery Act, as amended, 42 U.S.C. Section 6901, et seq.; (iv) the Clean Water
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Act of 1977, 33 U.S.C. Section 1251, et seq.; (v) the Federal Safe Drinking
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Water Act, 42 U.S.C. Section 300(f) et seq.; (vi) the Federal Toxic Substances
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Control Act, 15 U.S.C. Sections 2601, et seq.; (vii) the Federal Clean Air Act,
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42 U.S.C. Section 7401 et seq.; (viii) the Illinois Clean Indoor Air Act, 410
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ILCS 80/1 et seq.; (ix) the Illinois Environmental Protection Act, 415 ILCS 5/1
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et seq. and all regulations issued pursuant thereto and any so-called
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"Superfund" or "Superlien" law, or any other federal, state or local statute,
law,
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ordinance, code, rule, regulation, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in
effect.
"Hazardous Materials Claims" shall have the meaning set forth in Subsection
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1.05F(4) hereof.
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"Impositions" shall have the meaning set forth in Subsection 1.02A hereof.
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"Improvements" shall have the meaning set forth in Granting Clause Two hereof.
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"Increased Rate" shall mean the rate of twelve and ninety hundredths percent
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(12.90%) per annum.
"Land" shall have the meaning set forth in Granting Clause One hereof.
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"Lease" shall have the meaning set forth in Subsection 1.08A hereof.
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"Lessee" shall have the meaning set forth in Subsection 1.08A hereof.
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"Loan Documents" shall mean the Note, this Mortgage, the Assignment and any
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other instrument now or hereafter given to evidence, secure or guaranty the
Obligations.
"Mortgagee's Architect" shall mean an architect or registered engineer
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approved by Mortgagee.
"Net Rental Rate" shall equal: (i) for a net Lease, the then-current base
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annual rental rate per square foot as identified in such Lease; or (ii) for a
gross Lease, the then-current base annual rental rate per square foot less: (a)
the applicable expense stop, if any, or (b) if an expense stop is not stated,
the then current good faith estimate of expenses that are typically recoverable
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from the Lessee; however, under no circumstances shall such estimate be less
than 95% of the preceding calendar year's actual expenses generally recoverable
from Lessees in the Building on a pro rata basis.
"Obligations" shall mean the full and prompt payment and performance of all of
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the indebtedness, obligations, covenants, agreements and liabilities of
Mortgagor to Mortgagee, together with all interest and other charges thereon,
whether direct or indirect, existing, future, contingent or otherwise, due or to
become due, under or arising out of or in connection with the Note, this
Mortgage, the Assignment or any other Loan Document, any and all modifications,
extensions and renewals of any of the foregoing; and any and all expenses and
costs of collection or enforcement, including, without limitation, attorneys'
fees incurred by Mortgagee in the collection or enforcement of any of the
foregoing, or in the exercise of any of the rights or remedies under the Loan
Documents or applicable law.
"Partial Foreclosure" shall have the meaning set forth in Subsection 4.01B
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hereof.
"Personal Property" shall have the meaning set forth in Granting Clause Two
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hereof.
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"Premises" shall have the meaning set forth in Granting Clause Two hereof.
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"Rents" shall have the meaning set forth in Granting Clause Twelve hereof.
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"Secured Property" shall have the meaning set forth in Granting Clause
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Twelve hereof.
"Transfer" shall have the meaning set forth in Subsection 1.11B hereof.
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ARTICLE I
COVENANTS AND AGREEMENTS
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Mortgagor hereby covenants and agrees as follows:
1.01 Payment of Obligations. Mortgagor shall pay when due the principal
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of, and the interest on, the indebtedness evidenced by the Note, any future
advances necessary to protect the Secured Property and all other charges, fees
and all other Obligations as provided in the Loan Documents.
1.02 Payment of Taxes, Assessments, Etc.
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A. Impositions. Mortgagor shall pay when due and payable, without
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notice or demand before any fine, penalty, interest or cost for the non-payment
thereof may be added thereto, all taxes, assessments, water and sewer rents,
rates and charges, transit taxes, county taxes, charges for public utilities,
excises, levies, vault and all other license and permit fees and other
governmental charges, general and special, ordinary and extraordinary,
unforeseen and foreseen, of any kind and nature whatsoever (including penalties,
interest, costs and charges accrued or accumulated thereon) which at any time
may be assessed, levied, confirmed, imposed upon or become due and payable out
of or in respect to, or become a lien on, the Secured Property or any part
thereof or any appurtenance thereto, as the case may be (all such taxes,
assessments, water and sewer rents, rates and charges, transit taxes, county
taxes, charges for public utilities, excises, levies, vault and all other
license and permit fees and other governmental charges including all interest,
penalties, costs and charges accrued or accumulated thereon, are herein
collectively called "Impositions", and individually, an "Imposition").
B. Installments. Notwithstanding anything to the contrary contained in
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Subsection 1.02A above, if by law any Impositions may at the option of the
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taxpayer be paid in installments (whether or not interest shall accrue on the
unpaid balance of such Impositions), Mortgagor may exercise the option to pay
the same (and any accrued interest on the unpaid balance of such Impositions) in
installments and, in such event, shall pay such installments as the same
respectively become due and before any fine, penalty, further interest or cost
may be added thereto.
C. Receipts. Mortgagor, upon request of Mortgagee, will furnish to
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Mortgagee within five (5) days before the date when any Imposition would become
delinquent, official receipts of the appropriate taxing authority, or other
evidence reasonably satisfactory to
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Mortgagee evidencing the payment thereof.
D. Evidence of Payment. The certificate, advice or xxxx issued by
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the appropriate official (designated by law either to make or issue the same or
to receive payment of any Imposition) of non-payment of an Imposition shall be
prima facie evidence that such Imposition is due and unpaid at the time of the
making or issuance of such certificate, advice or xxxx. Mortgagor agrees to pay
Mortgagee, on demand, all charges, costs and expenses of every kind incurred by
Mortgagee in connection with obtaining evidence satisfactory to Mortgagee that
the payment of all Impositions is current and that there is no Imposition due
and owing or which has become or given rise to a lien on the Secured Property or
any part thereof or any appurtenance thereto.
E. Payment by Mortgagee. Subject to Subsection G of this Section
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1.02, if Mortgagor shall fail to pay any Imposition in accordance with the
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provisions of this Section 1.02, Mortgagee may, at its option (but shall be
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under no obligation to do so), pay such Imposition and Mortgagor will repay to
Mortgagee on demand any amount so paid by Mortgagee, with interest thereon at
the Increased Rate to the date of repayment and all such amounts shall be
secured by this Mortgage. In no event shall the Increased Rate be greater than
the highest interest rate permissible by law.
F. Change in Law. In the event of the passage after the date of
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this Mortgage of any law of the State of Illinois deducting the Obligations from
the value of the Secured Property or any part thereof for the purpose or with
the result of taxes being assessed against the Obligations payable by the holder
thereof or resulting in any lien thereon, or changing in any way the laws now in
force for the taxation of this Mortgage or the Obligations for state or local
purposes, or the manner of the operation of any such taxes so as to affect the
interest of Mortgagee, then, and in such event, Mortgagor shall bear and pay the
full amount of such taxes, provided that if for any reason payment by Mortgagor
of any such new or additional taxes would be unlawful or if the payment thereof
would constitute usury or render the loan secured hereby or the Obligations
wholly or partially usurious under any of the terms or provisions of the Note,
this Mortgage or otherwise, Mortgagee may, at its option, declare the whole sum
secured by this Mortgage with interest thereon to be immediately due and payable
without a prepayment premium, or Mortgagee may, at its option, pay that amount
or portion of such taxes as renders the loan or Obligations unlawful or
usurious, in which event Mortgagor shall concurrently therewith pay the
remaining lawful and non-usurious portion or balance of said taxes.
G. Permitted Contest. Provided that Mortgagor shall not be in
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default under any of the Loan Documents, Mortgagor shall have the right to
contest the amount or the validity, in whole or in part, of any Imposition by
appropriate proceedings diligently conducted in good faith. To prevent default
hereunder, Mortgagor shall pay in full under protest, in the manner provided by
statute, any Impositions which Mortgagor may decide to contest. Upon the
conclusion of the proceedings pursuant to which Mortgagor shall have contested
the amount or validity of an Imposition, any refund shall be paid to Mortgagor,
unless Mortgagor shall be in default under any of the Loan Documents, in which
case Mortgagor shall apply such refund to cure such default, and the remainder
of such refund, if any, shall be repaid to Mortgagor.
H. No Lease Default. If contesting the validity or amount of any
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Imposition
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shall cause a breach of any of the terms, conditions or covenants required to be
performed by Mortgagor as lessor under any Lease (as hereinafter defined), then
Mortgagor shall not have the right to contest the same as provided in Subsection
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1.02G, and payment of such Imposition shall be made pursuant to Subsection 1.02A
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above.
I. Joint Assessment. Mortgagor covenants and agrees, to the extent
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permitted by applicable law, not to suffer, permit or initiate the joint
assessment of the Premises and Personal Property, or any other procedure, unless
required by applicable law, whereby the lien of the personal property taxes
shall be assessed or levied or charged to the Secured Property together with
real property taxes.
J. Tax Service Fee. Mortgagor covenants and agrees to pay to
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Mortgagee on demand all charges, costs and expenses of every kind including,
without limitation, a tax service search fee or charge, incurred by Mortgagee at
any time or times during the term of this Mortgage in connection with obtaining
evidence satisfactory to Mortgagee that the payment of any and all real estate,
ad valorem, and other taxes and/or assessments is current and that there are no
such taxes or assessments due or owing which have become or given rise to a lien
on the Premises or any part thereof. The Premises consist of two parcels of land
for tax identification purposes, and the amount of the real estate tax search
service charge shall not exceed $5,000 throughout the term of this Mortgage.
1.03 Insurance.
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A. Extended Coverage. Mortgagor, at its sole cost and expense,
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shall keep the Personal Property and the Improvements insured during the term of
this Mortgage against loss or damage by fire and against loss or damage by other
risks now embraced by "All Risk Replacement Cost Coverage," so called with an
agreed amount endorsement, in amounts and from carriers acceptable to Mortgagee
which have a minimum A.M. Best rating of B+, or comparable, and otherwise in
amounts, forms and substance satisfactory to Mortgagee in its sole discretion,
but in no event shall the amounts be less than the greater of (1) 100% of the
full replacement cost of the Personal Property and the Improvements, including
work performed for tenants, without deduction for depreciation; (2) the amounts
required to prevent any insured from becoming a co-insurer under the terms of
such insurance; or (3) $125,000,000.
B. Additional Coverage. Mortgagor, at its sole cost and expense,
-------------------
shall at all times also maintain:
(1) Personal injury and property damage liability insurance
against claims for bodily injury, death or property damage, occurring on, in or
about the Secured Property or in or about the adjoining streets, sidewalks and
passageways; such insurance to afford protection, during the term of this
Mortgage, in amounts and in form and substance satisfactory to Mortgagee;
(2) Rent or business interruption insurance in an amount not
less than the greater of (a) $15,447,223, or (b) one year's aggregate rentals
(including, without limitation, minimum rentals, escalation charges, percentage
rents, based on sales projections acceptable to Mortgagee, and other additional
rentals, and any other amounts payable by tenants or other occupants under
Leases or otherwise) payable by all tenants and other occupants at the
-7-
Premises, which amount shall be increased from time to time upon the leasing of
space at the Premises or upon the increase in aggregate rentals (including the
other items referred to above);
(3) War risk insurance upon the building and other Improvements
as and when such insurance is obtainable from the United States of America or
any agency or instrumentality thereof for the maximum amount of insurance
obtainable, not to exceed the outstanding principal amount of the Note;
(4) Such other insurance, including, without limitation, all
risk in such amounts and in form and substance as may from time to time be
required by Mortgagee against other insurable hazards, including, but not
limited to, malicious mischief, vandalism, windstorm, earthquake, nuclear
reaction or radioactive contamination, which at the time are commonly insured
against and generally available in the case of premises similarly situated, due
regard being or to be given to the height and type of Improvement, its location,
construction, use and occupancy;
(5) If the Improvements are located in a flood hazard area,
flood insurance on the Improvements in an amount equal to the lesser of "full
replacement cost" thereof or the maximum amount of insurance obtainable; and
(6) Insurance against loss or damage from (a) leakage of
sprinkler systems and (b) explosion of steam boilers, air conditioning
equipment, pressure vessels or similar apparatus now or hereafter installed in
or on the Premises in such amounts as Mortgagee shall from time to time require.
C. Separate Insurance. Mortgagor shall not carry separate
------------------
insurance, concurrent in kind or form, and contributing, in the event of loss,
with any insurance required hereunder. Mortgagor may, however, effect for its
own account any insurance not required under the provisions of this Mortgage but
any such insurance effected by Mortgagor on the Secured Property whether or not
required under this Section 1.03 shall be for the mutual benefit of Mortgagor
------------
and Mortgagee, as their respective interests may appear, and shall be subject to
all other provisions of this Section 1.03.
------------
D. Insurers; Policies. All insurance provided for in this Section
------------------ -------
1.03 shall be effected under valid and enforceable policies issued by
----
financially responsible insurers authorized to do business in the State of
Illinois, which policies and insurers are approved in writing by Mortgagee. The
proceeds of all such policies shall be deposited with and held by Mortgagee. All
casualty insurance policies and rent insurance policies shall be payable to
Mortgagee pursuant to a standard non-contributory first mortgage endorsement in
favor of Mortgagee, and such policies shall contain a waiver of subrogation
endorsement, and shall name Mortgagee as loss payee or mortgagee (and additional
insured, as appropriate) all in form and content satisfactory to Mortgagee. All
original policies shall contain a provision that such policies will not be
canceled or materially amended, which term shall include any reduction in the
scope or limits of coverage, without at least thirty (30) days' prior written
notice to Mortgagee. Not less than thirty (30) days prior to the expiration
dates of the policies theretofore furnished pursuant to this Mortgage,
originals, or copies certified as true and correct by the issuer of the
policies, bearing notations evidencing the payment of premiums or accompanied by
other evidence satisfactory to Mortgagee of such payment, shall be delivered by
Mortgagor to Mortgagee. In the
-8-
event of a change in ownership of the Secured Property immediate notice thereof
shall be delivered to all insurers by Mortgagor.
E. Mortgagee's Right to Provide Coverage. If Mortgagor fails to
-------------------------------------
provide, maintain, keep in force or deliver and furnish to Mortgagee the
original or certified copies of policies of insurance required by this Section
-------
1.03, Mortgagee may, at its sole option, procure such insurance and Mortgagor
----
will reimburse Mortgagee for all premiums thereon promptly upon demand by
Mortgagee with interest thereon at the Increased Rate to the date of
reimbursement and all such amounts shall be secured by this Mortgage.
F. Damage or Destruction. After the happening of any casualty to
---------------------
the Secured Property or any part thereof, Mortgagor shall give prompt written
notice thereof to Mortgagee or its authorized representative and the following
shall apply:
(1) In the event of any damage or destruction of all or any part
of the Secured Property, all proceeds of insurance shall be payable to
Mortgagee, and Mortgagor hereby authorizes and directs any affected insurance
company to make payment of such proceeds directly to Mortgagee. Insurance
proceeds held by Mortgagee may be commingled with other funds in Mortgagee's or
its authorized representative's possession, shall constitute additional security
for the Obligations and Mortgagor shall not be entitled to the payment of
interest thereon; provided, however, that in the event such insurance proceeds
exceed $100,000 and such funds will be used for restoration or repair as
provided below, such funds shall constitute additional security for the
Obligations, but at Mortgagor's written request, such proceeds shall be
deposited into an interest-bearing account at a bank or other financial
institution satisfactory to Mortgagee, and held in accordance with a written
escrow agreement satisfactory to Mortgagee and its legal counsel. Interest on
such escrowed funds shall be added to, become a part of, and be disbursed as
part of such insurance proceeds. Until said escrow agreement is executed and
delivered, such monthly deposits shall not be held in an interest-bearing
account and shall be held by Mortgagee as provided above. Any and all escrow
fees and other costs associated with establishing such third-party escrow shall
be borne by Mortgagor. Mortgagee by itself or through its authorized
representative is hereby authorized and empowered by Mortgagor to participate in
any settlement, adjustment or compromise of any claims for loss, damage or
destruction under any policy or policies of insurance. Mortgagor may not settle,
adjust or compromise any claim without Mortgagee's consent, not to be
unreasonably withheld; provided, however, that Mortgagor may, without
Mortgagee's consent, settle, adjust or compromise any claim if the resulting
settlement, adjustment or compromise is in an amount sufficient to satisfy the
Obligations in full, and such Obligations are actually paid in full.
(2) In the event of any such damage or destruction, subject to
Subsection 1.03G, Mortgagee shall have the option in its sole and absolute
----------------
discretion and without regard to the adequacy of its security hereunder, of
applying all or part of the insurance proceeds (a) to the Obligations, whether
or not then due, in the inverse order of maturity, or (b) to the repair or
restoration of the Secured Property, or (c) to cure any then current default
under any of the Loan Documents, or (d) to reimburse the Mortgagee and its
authorized representative for its reasonable costs and expenses in connection
with the recovery of such insurance proceeds, or (e) any combination of the
foregoing.
(3) Nothing herein contained shall be deemed to excuse
Mortgagor
-9-
from repairing or maintaining the Secured Property as provided in Section 1.05
------------
hereof or restoring all damage or destruction to the Secured Property,
regardless of whether there are insurance proceeds available or whether such
proceeds are sufficient in amount, and the application or release by Mortgagee
of any insurance proceeds shall not cure or waive any Event of Default (as
hereinafter defined) or notice of default under this Mortgage or invalidate any
act done pursuant to such notice.
G. Mortgagor's Use of Proceeds.
---------------------------
(1) Notwithstanding any provision herein to the contrary, in the
event of any destruction to the Premises by fire or other casualty (except for
any destruction which occurs during the last twelve (12) months of the loan
term), the insurance proceeds shall be made available to Mortgagor for repair
and restoration of the property so damaged or destroyed, after deducting and
payment to Mortgagee of Mortgagee's reasonable costs of collection and
disbursement of such proceeds, subject to each and all of the following
conditions:
(a) that Mortgagor is not then in default under any of the
terms, covenants and conditions of the Note, this Mortgage, any other agreement
securing repayment of the indebtedness evidenced by the Note, and at all times
while restoration work progresses no such default shall occur;
(b) that, except as provided in (h) below, Mortgagee shall
be satisfied that by the expenditure of such proceeds the Improvements will be
fully restored within a reasonable period of time to not less than their value
immediately preceding the loss or damage, free and clear of all liens, except
the lien and security title of this Mortgage, a lien for property taxes and such
other liens as are specifically approved by Mortgagee in writing or otherwise
permitted under the terms of this Mortgage;
(c) that in the event such proceeds shall be insufficient
to restore or rebuild the Improvements, Mortgagor shall deposit promptly with
Mortgagee funds which, together with such proceeds, shall be sufficient in
Mortgagee's reasonable judgment to restore and rebuild the Secured Property;
(d) that Mortgagor shall use its best efforts to obtain a
waiver of the right of subrogation from any insurer under such policies of
insurance who, at that time, claims that no liability exists as to Mortgagor or
the then owner or the assured under such policies;
(e) that the excess of the proceeds above the amount
necessary to complete such restoration and compensate Mortgagor for all other
losses shall be applied at Mortgagee's option on account of the indebtedness or
obligation hereby secured (in inverse order of maturity and without payment of
any prepayment premium);
(f) Mortgagor shall have delivered to Mortgagee and
Mortgagee shall have reviewed and approved in writing the plans and
specifications for the restoration worked signed by Mortgagor and describing the
nature and type of expenses and amounts thereof estimated by Mortgagor for said
restoration work, including, but not limited to, the cost of material and
supplies, architect and designer fees, general contractor's fees and the
-10-
anticipated monthly disbursement schedule, and Mortgagee shall have given to
Mortgagor written approval of such budget and the cost breakdown (if Mortgagor
determines that its actual expenses do or will differ from its estimated budget,
it will so advise Mortgagee promptly) which approval will not be unreasonably
withheld, delayed or conditioned;
(g) Mortgagor has delivered to Mortgagee evidence
reasonably satisfactory to Mortgagee, and Mortgagee has determined in its sole
reasonable discretion, that sufficient leases of the property existing at the
time of the loss or damage will remain in full force and effect through the
projected period of repair and restoration, without abatement of rent during
such period (except for rent during the period of repair and restoration for
which rental loss insurance proceeds are available), which, together with rental
loss insurance proceeds available due to the casualty, produce rental income to
Mortgagor of at least 110% of the debt service on the Obligations for such
period; and
(h) in Mortgagee's reasonable judgment, such restoration
work can be completed prior to the maturity of the Note.
In the event any of the conditions described above are not or cannot be
satisfied, then such proceeds shall be disposed of as otherwise provided in
Subsection F(2). Under no circumstances shall Mortgagee become obligated to
---------------
take any action to restore the premises.
(2) Disbursement of the proceeds during the course of
reconstruction shall be upon the certification of Mortgagee's Architect as to
the cost of the work done and the conformity of the work to plans and
specifications approved by Mortgagee, and evidence supplied by a title insurance
company acceptable to Mortgagee that there are no liens arising out of the
reconstruction or otherwise, except those liens for which Mortgagor holds funds
for disbursement in amounts adequate to pay the lienor in full. Notwithstanding
the above, a portion of the proceeds may be released prior to the commencement
of reconstruction to pay for items approved by Mortgagee in its sole discretion.
Disbursements shall be made within ten (10) business days after a request by
Mortgagor. No payment made prior to the final completion of work shall exceed
ninety percent (90%) of the value of the work performed from time to time, and
at all times the undisbursed balance of said proceeds remaining with the
Mortgagee must be at least sufficient to pay for the cost of completion of the
work free and clear of liens. Final payment shall be upon a certification of
Mortgagee's Architect as to completion in accordance with plans and
specifications approved by Mortgagee.
(3) At such time as Mortgagee's Architect shall certify to
Mortgagee that the damaged or destroyed portion of the Secured Property has been
completed in accordance with plans and specifications approved by Mortgagee, the
work shall be deemed completed. With Mortgagee's prior written consent, which
may be granted or withheld in Mortgagee's sole discretion, any certification
required to be made by an architect or registered engineer may be made by a
reputable contractor approved by Mortgagee. The balance of the insurance
proceeds so deposited after full disbursement in accordance with Subsection
----------
1.03G, at the sole option of Mortgagee, shall be either (a) returned to
-----
Mortgagor, it being understood that such obligation of reimbursement shall not
exceed the amount of insurance proceeds for such restoration and/or repair, or
(b) applied to the payment of installments of the Obligations in inverse order
of maturity whether or not such installments shall be due and payable (without
payment of any prepayment premium by Mortgagor).
-11-
(4) In all cases where any destruction to the Secured Property
by fire or other casualty occurs during the last twelve (12) months of the loan
term, or Mortgagor is not proceeding with the repair or restoration in a manner
that would entitle Mortgagor to have the proceeds disbursed to it, or for any
other reason Mortgagor shall not be entitled to such proceeds pursuant to the
terms of this Mortgage, Mortgagee shall have the options set forth in Subsection
----------
F(2) above.
----
(5) Under no circumstances shall Mortgagee become personally
liable for the fulfillment of the terms, covenants and conditions contained in
any of the Leases or obligated to take any action to restore the Secured
Property.
H. Transfer of Interest in Policies. In the event of foreclosure of
--------------------------------
this Mortgage or other transfer of title or assignment of the Secured Property
in extinguishment, in whole or in part, of the Obligations, all right, title and
interest of Mortgagor in and to all policies of insurance required by this
Section 1.03 shall inure to the benefit of and pass to the successor in interest
------------
to Mortgagor or the purchaser or grantee of the Secured Property. If any claim
under any insurance policy shall be paid after the extinguishment of the
Obligations, and if such foreclosure of this Mortgage, or other transfer of
title to or assignment of the Secured Property, shall have resulted in
extinguishing the Obligations for an amount (the "Consideration") less than the
-------------
amount (the "Debt") equal to the unpaid Obligations, with interest thereon at
----
the Increased Rate, plus counsel fees, costs and other disbursements incurred by
Mortgagee at the time of the extinguishment of the Obligations, then the portion
of the payment in satisfaction of the claim which is equal to the difference
between the Consideration and the Debt shall belong to and be the property of
Mortgagee and shall be paid to Mortgagee, and Mortgagor hereby assigns,
transfers and sets over to Mortgagee all of Mortgagor's right, title and
interest in and to said sum. The balance, if any, shall be paid to Mortgagor.
1.04 Escrow Deposits. To further secure the payment of the Impositions
---------------
and the premiums for the insurance required by this Mortgage, Mortgagor will
deposit with Mortgagee, or its designee, on the due date of each monthly
installment of principal and interest under the Note, a sum which shall be equal
to one-twelfth (1/12) of the annual total of the Impositions and such insurance
premiums, one month prior to the date when such Impositions and such insurance
premiums shall become due and payable. Such deposits shall be held by Mortgagee,
or its designee, without obligation for the payment of interest thereon to
Mortgagor, free of any liens or claims on the part of creditors of Mortgagor and
as a part of the security of Mortgagee, and shall be used by Mortgagee, or its
designee, to pay current Impositions and insurance premiums as the same shall
become payable. Said deposits shall not be, nor be deemed to be, trust funds but
may be commingled with general funds of Mortgagee, or its designee. If at any
time and for any reason Mortgagee determines that said deposits are insufficient
to pay the Impositions and insurance premiums in full as they become payable,
Mortgagor will deposit with Mortgagee, or its designee, within ten (10) days
after demand therefor, such additional sum or sums as may be required in order
for Mortgagee, or its designee, to pay such Impositions and insurance premiums
in full. It shall be the responsibility of Mortgagor to furnish bills to
Mortgagee in sufficient time for Mortgagee to pay the Impositions and insurance
premiums before any penalty attaches and before the policies lapse. Upon any
Event of Default, Mortgagee may, at its option, in its sole and absolute
discretion and without regard to the adequacy of its security hereunder, apply
any such deposits to the payment of the Obligations in such manner as it may
elect.
-12-
1.05 Care and Use of Premises.
------------------------
A. Maintenance and Repairs. Mortgagor, at its sole cost and
-----------------------
expense, will take good care of the Secured Property and the sidewalks and curbs
adjoining the Secured Property and will keep the same in good order and
condition, and make all necessary repairs thereto, interior and exterior,
structural and nonstructural, ordinary and extraordinary, unforeseen and
foreseen, and will not commit or suffer to be committed any waste of the Secured
Property and will not do or suffer to be done anything which will increase the
risk of fire or other hazard to the Secured Property or any part thereof.
B. Standard of Repairs. The necessity for and adequacy of repairs
-------------------
to the Improvements pursuant to Subsection 1.05A shall be measured by the
----------------
standard which is appropriate for a first-class office building and related
facilities of similar construction and class, and similarly situated, provided
that Mortgagor shall in any event make all repairs necessary to avoid any
structural damage to the Improvements and to keep the Improvements in a proper
condition for their intended use. When used in this Section 1.05, the terms
------------
"repair" and "repairs" shall include all necessary renewals and replacements.
All repairs made by Mortgagor shall be made with new first-class materials and
in a good, substantial and workmanlike manner and shall be equal or better in
quality and class to the original work.
C. Notice to Mortgagee. Mortgagor will notify Mortgagee promptly of
-------------------
any damage to the Secured Property the cost of which to repair is in excess of
$100,000.
D. Removal of Equipment. Mortgagor shall have the right, at any
--------------------
time and from time to time, to remove and dispose of equipment which may have
become obsolete or unfit for use or which is no longer useful in the operation
of the Secured Property. Mortgagor will promptly replace any such equipment so
disposed of or removed with other equipment of a value and serviceability equal
to or greater than the original value and serviceability of the equipment so
disposed of or removed, free of superior title, liens and claims; except that,
if by reasons of technological or other developments in the operation and
maintenance of buildings of the general character of the Improvements, no
replacement of the building equipment so removed or disposed of is necessary or
desirable in the proper operation or maintenance of said Improvements, Mortgagor
shall not be required to replace same. All such replacements or additional
equipment shall be covered by the security interest herein granted.
E. Compliance With Laws and Insurance. Mortgagor shall promptly
----------------------------------
comply with all present and future laws, ordinances, orders, rules, regulations
and requirements of all federal, state and municipal governments, courts,
departments, commissions, boards and officers, any national or local Board of
Fire Underwriters, including, without limitation, all zoning, building code,
environmental protection and equal employment opportunity statutes, ordinances,
regulations, orders and restrictions, foreseen or unforeseen, ordinary as well
as extraordinary, which may be applicable to the Secured Property and the
sidewalks and curbs adjoining the Secured Property or to the use or manner of
use of the Secured Property whether or not such law, ordinance, order, rule,
regulation or requirement shall necessitate structural changes or improvements.
Mortgagor shall not bring or keep any article upon any of the Secured Property
or cause or permit any condition to exist thereon which would be prohibited by
or could invalidate any insurance coverage maintained, or required hereunder to
be maintained, by
-13-
Mortgagor on or with respect to any part of the Secured Property, and further
shall do all other acts which from the character or use of the Secured Property
may be necessary to protect the security hereof, the specific enumerations
herein not excluding the general. Mortgagor covenants and agrees to take all
reasonable steps necessary to cause the Improvements to comply with the
Americans with Disabilities Act of 1990, as amended (42 U.S.C. (S) 12101, et
--
seq.) and regulations promulgated thereunder; Mortgagor shall commence such
---
actions within a year from the date hereof and shall diligently pursue the same,
except that as to tenant spaces occupied by tenants, Mortgagor shall bring such
spaces into compliance after vacation by the tenant.
F. Hazardous Materials.
-------------------
(1) Mortgagor hereby indemnifies and agrees to defend, protect
and hold Mortgagee its directors, officers, employees or agents, and any
successor or successors to Mortgagee's interest in the chain of title to the
Secured Property, harmless from and against any and all losses, liabilities,
fines, charges, damages, injuries, penalties, response costs, costs, expenses
and claims of any and every kind whatsoever paid, incurred or suffered by, or
asserted against, Mortgagee, including, without limitation,
(a) all foreseeable consequential damages;
(b) the costs of any required or necessary repair, cleanup
or detoxification of the Secured Property, and the
preparation and implementation of any closure, remedial
or other required plans; and
(c) all reasonable costs and expenses incurred by Mortgagee
in connection with clauses (a) and (b) above,
including, but not limited to, attorneys' fees and
expenses,
(i) for, with respect to, or as a direct or indirect
result of (A) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, or release from, the Secured Property or any
other property legally or beneficially owned (or any interest or estate which is
owned) by Mortgagor of any Hazardous Material (including, without limitation,
any losses, liabilities, damages, injuries, costs, expenses or claims asserted
or arising under Hazardous Materials Laws to the extent such Hazardous Materials
were present, escaped, seeped, leaked, spilled, discharged, emitted or released
during or prior to Mortgagor's ownership of the Secured Property, but regardless
of whether or not caused by, or within the control of, Mortgagor or any
predecessor in title or any employees, agents, contractors or subcontractors of
Mortgagor, or any third persons at any time, occupying or present on or
otherwise affecting the Secured Property; or (B) the transport, treatment,
storage or disposal of Hazardous Materials to or at any location by Mortgagor or
by any other party directly or indirectly affiliated with it, or at the
direction or on behalf of any of them;
(ii) arising out of or related to any breach of
Mortgagor's obligations under this Subsection 1.05F or any inaccuracy,
----------------
incompleteness or misrepresentation under Subsections 2.03C and D below,
-----------------------
irrespective of whether any of such actions or circumstances were or will be in
compliance with applicable laws, regulations, codes or ordinances; or
-14-
(iii) arising out of the enforcement or attempted
enforcement of this indemnity.
Such indemnification and hold harmless agreement shall survive (i) the repayment
of all sums due under the Note; (ii) the release of the Secured Property or any
portion thereof; (iii) the reconveyance of or foreclosure under this Mortgage
(notwithstanding that all or a portion of the obligations secured by this
Mortgage shall have been discharged thereby); (iv) the acquisition of the
Secured Property by Mortgagee; and/or (v) the transfer of all of Mortgagee's
rights in and to the Note and/or the Secured Property.
(2) Mortgagor shall keep and maintain the Secured Property in
compliance with, and shall not cause or permit the Secured Property to be in
violation of, any federal, state or local laws, ordinances or regulations
relating to industrial hygiene or to the environmental conditions on, under or
about the Secured Property including, but not limited to, soil and ground water
conditions. Mortgagor shall not use, generate, manufacture, store, dispose of or
permit to exist in, on, under or about the Secured Property any Hazardous
Material except in such quantities or concentrations as would not constitute a
violation of any Hazardous Materials Laws and which would not otherwise create
an environmentally unsafe or unsound condition. Mortgagor hereby agrees at all
times to comply fully and in a timely manner with, and to cause all of its
employees, agents, contractors and subcontractors and any other persons
occupying or present on the Secured Property to so comply with, all Hazardous
Materials Laws.
(3) If Mortgagor or Mortgagee receive notice from any
Governmental Agency or any Lessee that Mortgagor is in violation of any
Hazardous Materials Laws, then if Mortgagor does not initiate the following
action on its own within thirty (30) days of Mortgagor's receipt of such notice
(or receipt of a copy of such notice), promptly, upon the written request of
Mortgagee, but not more frequently than once every three (3) years, Mortgagor
shall provide Mortgagee, at Mortgagor's expense, with an environmental site
assessment or environmental audit report prepared by an environmental
engineering firm acceptable to Mortgagee, to assess, the presence or absence of
any Hazardous Material and the potential costs in connection with abatement,
cleanup or removal of any Hazardous Material found on, under, at or within the
Secured Property and Mortgagor shall cooperate in the conduct of such
environmental audit.
(4) Mortgagor represents and warrants that, to the best of its
knowledge, (a) no enforcement, cleanup, removal or other governmental or
regulatory actions have, at any time, been instituted, contemplated or
threatened against the Secured Property, or against Mortgagor with respect to
the Secured Property, pursuant to any Hazardous Materials Laws; (b) no violation
or non-compliance with Hazardous Materials Laws has occurred with respect to the
Secured Property at any time; and (c) no claims have, at any time, been made or
threatened by any third party against the Secured Property or against Mortgagor
with respect to the Secured Property, relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from any Hazardous Materials
(the matters set forth in clauses (a), (b) and (c) above are hereinafter
referred to as "Hazardous Materials Claims"). Mortgagor shall promptly advise
Mortgagee in writing if any Hazardous Materials Claims are hereafter asserted,
or if Mortgagor obtains knowledge of any discharge, release, or disposal of any
Hazardous Materials in, on, under or about the Secured Property, [or that any of
the conditions described in clause (d)
-15-
above has occurred].
(5) Without Mortgagee's prior written consent, Mortgagor
shall not take any remedial action in response to the presence of any
Hazardous Materials on, under or about the Secured Property, nor enter into
any settlement agreement, consent decree, or other compromise in respect to
any Hazardous Materials Claims, which remedial action, settlement, consent
or compromise might, in Mortgagee's reasonable judgment, impair the value
of Mortgagee's security hereunder; provided, however, that Mortgagee's
prior consent shall not be necessary in the event that the presence of any
Hazardous Material on, under, or about the Secured Property either poses an
immediate threat to the health, safety or welfare of any individual or is
of such a nature that an immediate remedial response is necessary and it is
not possible to obtain Mortgagee's consent before taking such action,
provided that in such event Mortgagor shall notify Mortgagee as soon as
practicable of any action so taken. Mortgagee agrees not to withhold its
consent, where such consent is required hereunder, if either (i) a
particular remedial action is ordered by a court of competent jurisdiction,
or (ii) Mortgagor establishes to the reasonable satisfaction of Mortgagee
that there is no reasonable alternative to such remedial action which would
result in less impairment of Mortgagee's security hereunder.
(6) Mortgagee shall have the right to join and participate
in, as a party if it so elects, any legal proceedings or actions initiated
by any person or entity in connection with any Hazardous Materials Claims
and, in such case, to have its reasonable attorneys' fees and costs
incurred in connection therewith paid by Mortgagor.
G. Intentionally Omitted
---------------------
H. Compliance With Instruments of Record. Mortgagor will
-------------------------------------
promptly perform and observe, or cause to be performed and observed, all of the
terms, covenants and conditions of all instruments of record affecting the
Secured Property, non-compliance with which may affect the priority of the lien
of this Mortgage, or which may impose any duty or obligation upon Mortgagor or
any lessee or other occupant of the Secured Property or any part thereof, and
Mortgagor shall do or cause to be done all things necessary to preserve intact
and unimpaired any and all easements, appurtenances and other interests and
rights in favor of or constituting any portion of the Secured Property.
I. Alteration of Secured Property. Mortgagor will not
------------------------------
demolish, remove, construct, restore, add to or alter any Improvement or any
extension thereof, nor consent to or permit any such demolition, removal,
construction, restoration, addition or alteration without Mortgagee's prior
written consent (which consent will not be unreasonably withheld), except for
(1) tenant improvement work and tenant alterations provided for in any Lease in
effect on the date hereof and any other Lease approved by Mortgagee in writing,
any Lease for which Mortgagee's approval is not required, or any Lease for which
Mortgagee is deemed to have given its approval under the provisions of Section
1.08(F) of this Mortgage, but such deemed approval shall be sufficient for
purposes of this Section 1.05(I) ONLY if the written request for approval of
----
such Lease specifies that the request includes a request for approval of
alterations of the Secured Property not otherwise permitted and describes the
estimated cost thereof and attaches the work letter or refers to the work letter
attached to the lease, and (2) ordinary, non-structural maintenance work, and
(3) structural repairs and restorations having a cost of less than $100,000.
-16-
J. Parking. Mortgagor will grant no parking rights in the Secured
-------
Property other than those provided for in existing Leases and Leases otherwise
approved by Mortgagee or Leases otherwise permitted without Mortgagee's consent,
except with Mortgagee's prior written consent. Subject to casualty and
condemnation the Secured Property shall contain at all times not less than
eighty-nine (89) on-site parking spaces of the sizes presently located therein,
or such lesser number of parking spaces as shall comply with applicable law and
the Leases, said parking spaces to be located in an underground garage. If any
part of the automobile parking areas included within said Secured Property is
taken by condemnation or said areas are otherwise reduced, Mortgagor will
provide parking facilities in kind, size and location to comply with all Leases,
and before making any contract therefor will furnish to Mortgagee satisfactory
assurance of completion thereof free of liens and in conformity with all
governmental zoning ordinances and regulations.
K. Entry on Secured Property. Mortgagee or its representative is
-------------------------
hereby authorized, subject to the rights of tenants at the Secured Property to
enter upon and inspect the Secured Property at all reasonable times and as often
as Mortgagee deems necessary or appropriate.
L. No Consent to Alterations or Repairs. Nothing contained in this
------------------------------------
Mortgage shall be deemed or construed in any way as constituting the consent or
request of Mortgagee, express or implied by inference or otherwise to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific improvement,
alteration to or repair of the Secured Property or any part thereof.
M. Mechanics Liens. Mortgagor will discharge, pay, or bond, or
---------------
cause to be discharged, paid or bonded, from time to time when the same shall
become due, all lawful claims and demands of mechanics, materialmen, laborers
and others which, if unpaid, might result in, or permit the creation of, a lien
on the Secured Property or any part thereof, or on the revenues, rents, issues,
income and profits arising therefrom, and Mortgagor will do or cause to be done
everything necessary so that the lien of this Mortgage shall be fully preserved,
at the cost of Mortgagor without expense to Mortgagee.
N. Use of Secured Property by Mortgagor. Mortgagor will use, or cause
------------------------------------
to be used, the Secured Property principally and continuously as and for a first
class office building with related commercial facilities. Mortgagor shall not
use, or permit the use of the Secured Property or any part thereof for any other
principal use without the prior written consent of Mortgagee.
O. Use of Secured Property by Mortgagor. Mortgagor shall not suffer
------------------------------------
or permit the Secured Property, or any portion thereof, to be used by the public
as such, without restriction or in such manner as might impair Mortgagor's title
to the Secured Property or any portion thereof, or in such manner as might make
possible a claim or claims of adverse usage or adverse possession by the public,
or of implied dedication of the Secured Property or any portion thereof.
P. Management. Management of the Premises shall be satisfactory to
----------
Mortgagee (and shall be deemed satisfactory if same is in compliance with
Section 1.08(D)
---------------
-17-
hereof) and shall be performed by Mortgagor or a management company approved in
writing by Mortgagee and under a management contract satisfactory to Mortgagee
(approval of such management company and/or management contract not to be
unreasonably withheld by Mortgagee), which management contract shall be subject
and subordinate to the rights and title of Mortgagee under this Mortgage.
1.06 Financial Information.
---------------------
A. Audit. Mortgagor will keep and maintain complete and accurate
-----
books and records of the earnings and expenses of the Secured Property and,
without expense to Mortgagee, furnish to Mortgagee, within one hundred twenty
(120) days after the end of each fiscal year of Mortgagor, an annual audit
prepared and certified by an independent certified public accountant reasonably
satisfactory to Mortgagee, in accordance with generally accepted accounting
principles relating to real estate consistently applied, which shall include:
(1) a statement of financial position by Mortgagor with respect to the Secured
Property, (2) a statement of funds cash flows by Mortgagor with respect to the
Secured Property, (3) a detailed statement summary of operations relating to the
ownership and operation of the Secured Property, including, without limitation,
all rents and other income derived therefrom and all expenses paid or incurred
in connection therewith, and (4) such interim summary of operations statements
of financial position as may be required by Mortgagee. Mortgagor shall also
provide to Mortgagee, within one hundred twenty (120) days after the end of each
fiscal year of Mortgagor, such financial information sufficient for Mortgagee to
determine the net worth of Overseas Partners Capital Corp. ("OPCC") and Overseas
Holding Company, Inc. ("Holding") (such entity to be renamed Overseas Partners
Capital Corp. in the future); provided, however, that if all outstanding stock
in OPCC is transferred to Holding and OPCC transfers to Holding all of the
outstanding stock in all OPCC subsidiaries owned as of the date hereof by OPCC,
then from and after the occurrence of such transfer, Mortgagor shall only
provide such information as relates to Holding.
B. Right to Inspect Books and Records. Mortgagee or its
----------------------------------
representative shall have the right to examine and make copies of such books and
records and all supporting vouchers and data at the Premises or at Mortgagor's
principal place of business at Mortgagor's expense (excluding the cost of
travel, lodging and meals); provided that Mortgagee shall exercise such rights
no more often than one (1) time per calendar year.
1.07 Condemnation.
------------
A. Mortgagee's Right to Participate in Proceedings. If the Secured
-----------------------------------------------
Property, or any part thereof, shall be taken in condemnation proceedings or by
exercise of any right of eminent domain (collectively, "Condemnation
Proceedings"), Mortgagee shall have the right to participate in any such
Condemnation Proceedings and the award or payment that may be made in any such
Condemnation Proceedings is hereby assigned to Mortgagee and shall be deposited
with Mortgagee and disbursed in the manner set forth in this Section 1.07.
------------
Mortgagor will give Mortgagee immediate notice of the actual or threatened
commencement of any Condemnation Proceedings affecting all or any part of the
Secured Property, including severance and consequential damage and change in
grade in streets, and will deliver to Mortgagee copies of any and all papers
served in connection with any such proceedings. Notwithstanding the foregoing,
Mortgagee is hereby authorized, at its option, to commence, appear in and
prosecute with Mortgagor, in its own or Mortgagor's name, any action or
proceeding relating to any such
-18-
condemnation. No settlement for the damages sustained thereby shall be made by
Mortgagor without Mortgagee's prior written approval thereof (such approval not
to be unreasonably withheld, delayed or conditioned), except that Mortgagee's
consent or approval is not required when the Obligations would be paid in full
and are actually paid in full from the proceeds of such settlement. Mortgagor
agrees to execute any and all further documents that may be required in order to
facilitate the collection of any award or awards and the making of any such
deposit.
B. Application of Condemnation Award. If at any time title or
---------------------------------
temporary title to the whole or any part of the Secured Property shall be taken
in Condemnation Proceedings or pursuant to any agreement between Mortgagor,
Mortgagee and those authorized to exercise the right to condemnation, Mortgagee,
at its option in its sole and absolute discretion and without regard to the
adequacy of its security hereunder, shall have the right to apply such award or
proceeds which it receives to payment of the Obligations in inverse order of
maturity. In the event that all or substantially all of the Secured Property is
taken and the amount of the award or proceeds received by Mortgagee shall not be
sufficient to pay the then unpaid balance of the Obligations, then the balance
of the Obligations shall, at the option of Mortgagee, become immediately due and
payable and Mortgagor shall, within thirty (30) days after the application of
the award or proceeds as aforesaid, pay such deficiency to Mortgagee.
"Substantially all of the Secured Property" shall be deemed to have been taken
if the remainder of the Secured Property (1) in the sole opinion of Mortgagee's
Architect, cannot be capable of being restored to a self-contained and
architecturally complete unit or units or (2) in the sole reasonable opinion of
Mortgagee, the balance of the Secured Property as restored will not be
economically viable and capable of supporting all carrying charges and operation
and maintenance expenses.
C. Reimbursement of Costs. In the case of any taking covered by the
----------------------
provisions of this Section 1.07, Mortgagee (to the extent that Mortgagee has not
------------
been reimbursed therefor by Mortgagor) shall be entitled, as a first priority,
to the reimbursement out of any award or awards for all reasonable costs, fees,
reimbursements to Mortgagee and expenses incurred in the determination and
collection of any such awards.
D. Existing Obligations. Notwithstanding any taking by Condemnation
--------------------
Proceedings, Mortgagor shall continue to pay the monthly installments due under
the Note as well as all other sums secured by this Mortgage at the rate provided
therein until any such award or payment shall have been actually received by
Mortgagee and applied to the Obligations. Any reduction in the Obligations
resulting from Mortgagee's application of such award or payment as hereinabove
set forth shall be deemed to take effect only on the date of receipt by
Mortgagee. If prior to Mortgagee's receipt of such award or payment the Secured
Property shall have been sold on foreclosure of this Mortgage, Mortgagee shall
have the right to receive said award or payment to the extent of any portion of
the Obligations still unpaid after application of the proceeds of the
foreclosure sale, with interest thereon at the Increased Rate, plus attorneys'
fees at such attorneys' standard rates and other costs and disbursements
actually incurred by Mortgagee in connection with the collection of such award
or payment and in establishing the deficiency. The application of condemnation
proceeds to the Obligations, whether or not then due or not then due or payable,
shall not postpone, xxxxx or reduce any of the periodic installments of
principal and/or interest thereafter to become due under this Mortgage until the
Obligations are paid in full.
-00-
X. Xxxxxxxxxxx of Award. Notwithstanding any provision contained
--------------------
herein to the contrary, if all or any part of the Premises shall be taken in a
Condemnation Proceeding (except for a taking which occurs during the last twelve
(12) months of the loan term), Mortgagee shall, after deducting Mortgagee's
costs in connection with the disbursement of funds, apply the award or payment
to the cost to restore, repair or alter the remaining portion of the Secured
Property, subject to the provisions of Subsection 1.03(G) (which shall apply in
------------------
all respects except that any reference therein to insurance proceeds shall be
deemed to refer to the award or payment in the taking and Mortgagor shall
likewise have the right to request that the award be deposited in an interest-
bearing account if the award is in excess of $100,000, in accordance with the
provisions of Section 1.03(F)(1) hereof), and Mortgagor will promptly restore,
------------------
repair or alter the remaining Secured Property. The provisions of this
Subsection 1.07E shall not apply unless (1) the balance of the Improvements
----------------
shall, in the opinion of Mortgagee's Architect, be capable of being restored to
a self-contained and architecturally complete unit or units, (2) the balance of
the Improvements after restoration to a self-contained and architecturally
complete unit or units shall, in the opinion of Mortgagee, be economically
viable and capable of supporting all carrying charges and operating and
maintenance expenses of the Secured Property, after reduction, if any, of the
Obligations in accordance with the following sentence, and (3) Mortgagor shall
furnish to Mortgagee evidence satisfactory to Mortgagee that the Improvements so
restored or reconstructed and their use would fully comply with all zoning and
building laws, ordinances and regulations, and with all other applicable
federal, state and municipal laws and requirements. The balance of the
condemnation award or payment so deposited with Mortgagee, after disbursement in
accordance with this Subsection 1.07E, shall be applied to the Obligations in
----------------
inverse order of maturity, whether or not the same shall then be due and
payable. All awards and payments and other sums deposited with Mortgagee, until
expended or applied as provided in this subsection, may be commingled with the
general funds of Mortgagee and shall constitute additional security for the
Obligations and shall not bear interest. In all cases where a taking occurs
during the last twelve (12) months of the loan term, or if Mortgagee has
determined in its sole reasonable discretion that leases remaining in effect
after the taking do not produce rental income of at least 110% of the debt
service on the Obligations for such period (taking into account any rent loss
insurance proceeds available with respect to such taking), or where any of the
conditions set forth in Section 1.03G(1)(a), (b), (c), (e) and (f) are not
satisfied, or in Mortgagee's sole reasonable judgment Mortgagor is not
proceeding with the repair or restoration in a manner that would entitle
Mortgagor to have the awards or payments disbursed to it, Mortgagee, at its
option in its sole and absolute discretion and without regard to the adequacy of
its security hereunder, shall have the right to apply such award or proceeds
which it receives to payment of the Obligations in the inverse order of
maturity, whether or not the same shall then be due and payable.
-20-
1.08 Leases.
------
A. Performance of Lessor's Covenants. Mortgagor, as lessor, has
---------------------------------
entered and will enter into leases with space tenants, as lessees, for parts or
all of the Secured Property (all such leases for parts or all of the Secured
Property are hereinafter referred to individually as a "Lease" and collectively
-----
as "Leases" and the lessees under such Leases are hereinafter referred to
------
individually as a "Lessee" and collectively as "Lessees"). Mortgagor shall
------ -------
faithfully perform the lessor's covenants under any subsisting and future Leases
affecting the Secured Property or any part thereof, and neither do, nor neglect
to do, nor permit to be done (other than enforce the terms of such Leases and
exercise the lessor's remedies thereunder following a default or event of
default on the part of any Lessee in the performance of its prescribed
obligations), anything which may cause the modification or termination of any of
said Leases, or of the obligations of any Lessee or any other person claiming
through such Lessee, or which may diminish or impair the value of any Lease or
the rents provided for therein, or the interest of the lessor or of Mortgagee
therein or thereunder.
B. Notice of Default. Mortgagor will give Mortgagee prompt notice, by
-----------------
certified mail, of any notice of default, Event of Default, extension, renewal,
expansion or cancellation given to or received from (i) any Lessee having a
Lease of more than 5,000 square feet; (ii) all Lessees having a Lease of 5,000
square feet or less, when in any six month period such notices are given by
Lessees having Leases of 40,000 square feet or more in the aggregate; and (iii)
Lessees under any Lease having a remaining term of one year or more.
C. Representations Regarding Leases. Mortgagor hereby represents and
--------------------------------
warrants that to the knowledge and belief of Mortgagor, upon due inquiry, (1)
all representations made by it in the Leases are true; (2) all Improvements and
the leased space demised and let pursuant to each Lease have been completed to
the satisfaction of Lessee; (3) each Lessee has accepted possession of its
leased space and has opened for business and commenced payment of rent under its
Lease; (4) each Lessee is in occupancy; (5) all rents and other charges due and
payable under the Leases have been paid except as disclosed in writing to
Mortgagee; (6) no rent has been prepaid, except as expressly described under
such Lease; (7) there is no existing default or breach of any covenant or
condition on the part of any Lessee or Lessor under any Lease except as
disclosed to Mortgagee in writing, and no Lessee has any rights to any offsets
or concessions, claims or defenses to the enforcement of such Lease; (8) there
are no options to purchase all or any portion of the Secured Property contained
in any Lease; (9) there are no options to renew, cancel, extend or expand by any
Lessee except as stated in the Leases; (10) there are no amendments of or
modifications to any Leases except as disclosed in writing to Mortgagee; and
(11) no leasing brokerage commissions are due or payable or are to come due and
payable with respect to the Leases, except for commissions due with respect to
Leases entered into after the date hereof and commissions due upon renewals,
extensions and expansions with respect to such of the Leases as have been
disclosed to Mortgagee in writing.
D. Manager. The manager of the Secured Property shall be of good
-------
reputation and be generally recognized as experienced in the management of
properties of size and type similar to the Secured Property. The manager or
management shall not be changed without first having obtained Mortgagee's prior
written consent, such consent not to be unreasonably withheld, delayed or
conditioned.
-21-
E. Covenants Regarding Leases. Mortgagor covenants it will not,
--------------------------
without the prior written consent of the Mortgagee obtained in each instance,
which consent shall not be unreasonably withheld, delayed or conditioned:
(1) lease to any person, firm or corporation, all or any part of
the space in any of the Improvements;
(2) cancel, terminate or accept a surrender or suffer or permit
any cancellation, termination or surrender of any Lease
(except in each case in accordance with the terms thereof)
other than any Lease having a remaining term of less than
six (6) months;
(3) modify any Lease so as to reduce the term thereof or the
rent payable thereunder, or to change any renewal provision
contained therein;
(4) commence any summary proceeding or other action to recover
possession of any space demised pursuant to any Lease, other
than a proceeding brought in good faith by reason of a
default of any Lessee;
(5) receive or collect or permit the receipt or collection of
any rental payments of more than one monthly installment of
rent under any Lease in advance of the due dates of such
rental payments;
(6) take any other action with respect to any Lease which would
tend to materially impair the security of Mortgagee under
this Mortgage;
(7) extend any present Lease other than in the manner presently
provided for therein, or at a rental rate lower than that
under the present Lease;
(8) execute an agreement or create or permit a lien which may be
or become superior to any existing Leases affecting the
Secured Property;
(9) sell, assign, transfer, mortgage, pledge or otherwise
dispose of or encumber, whether by operation of law or
otherwise, any Lease or any rentals under any Lease or any
rents, income, profits or cash collateral issuing from the
Secured Property;
(10) fail to perform any material covenant or agreement to be
performed by Mortgagor, as Lessor under any of the Leases;
or
(11) suffer or permit to occur any release of liability of any
Lessee or the accrual of any right in any Lessee to withhold
payment of Rents.
-22-
F. Approval of Leases. The provisions of this Subsection 1.08(F)
------------------
shall apply notwithstanding any of the covenants made by Mortgagor in Subsection
1.08(E). Mortgagor shall deliver to Mortgagee a copy of each executed Lease.
Unless otherwise provided in this Subsection 1.08(F), each lease shall be
subject to Mortgagee's approval, which approval shall not be unreasonably
withheld. Any Lease executed on Mortgagor's standard form, which has already
been approved by Mortgagee, without material modification thereto, shall not
require Mortgagee's approval if and only if:
(1) Mortgagor is not in default under any of the Loan Documents;
and
---
(2) Such Lease is for space not exceeding 10,000 square feet and
has a term not exceeding five (5) years; and
---
(3) Such Lease meets the following applicable minimum Net Rental
Rate:
(a) if the Lease is for space on floors two through six of the
Improvements, then (i) the minimum Net Rental Rate for
such Lease must be equal to or greater than $11.50 per
rentable square foot, or (ii) if the minimum Net Rental
Rate for such Lease is less than $11.50 per rentable
square foot, the minimum Net Rental Rate for such Lease
must be equal to or greater than $10.00 per square foot
and the overall weighted average of the Net Rental Rate
for the Leases on such floors (including the subject
Lease) must be equal to or greater than $11.50 per
rentable square foot;
(b) if the Lease is for space on floors seven through thirty
of the Improvements, then (i) the minimum Net Rental Rate
for such Lease must be equal to or greater than $15.00 per
rentable square foot, or (ii) if the minimum Net Rental
Rate for such Lease is less than $15.00 per rentable
square foot, the minimum Net Rental Rate for such Lease
must be equal to or greater than $13.50 per square foot
and the overall weighted average of the Net Rental Rate
for the Leases on such floors (including the subject
Lease) must be equal to or greater than $15.00 per
rentable square foot;
(c) if the Lease is for space on floors thirty-one through
forty-five of the Improvements, the minimum Net Rental
Rate for such Lease must be equal to or greater than
$17.00 per rentable square foot.
Mortgagee shall respond to Mortgagor's request for approval of a Lease or
approval of any matter under Subsection 1.08 E hereof no later than eight (8)
-----------------
business days following Mortgagee's receipt of such request accompanied by the
subject Lease in complete and final form.
-23-
If Mortgagee does not approve or disapprove of such Lease or such request within
such time period, the Lease or such request shall be deemed approved by
Mortgagee so long as the letter requesting Mortgagee's approval of such Lease or
such request itself specified in bold capital letter print that such Lease or
such request will be deemed approved if Mortgagee's reply is not received within
the applicable time period.
From time to time, upon Mortgagor's request, Mortgagee shall confirm with
Mortgagor the current calculations of the weighted average of the Net Rental
Rate for the Leases on certain floors, such weighted average to be determined by
Mortgagee based upon Leases and rent rolls provided to Mortgagee by Mortgagor.
G. Application of Rents. Mortgagor shall use and apply all rents,
--------------------
income and profits from the Secured Property first to the payment of the
Obligations in accordance with the terms of the Loan Documents, and then to the
payment of all Impositions and costs and expenses of management, operation,
repair, maintenance, preservation, reconstruction and restoration of the Secured
Property in accordance with the requirements of this Mortgage and the
obligations of Mortgagor as the lessor under any Lease, and shall not use such
rents, income or profits for purposes unrelated to the Secured Property unless
and until all current payments on the Obligations, Impositions, and such costs
and expenses have been paid or provided for and adequate cash reserves have been
set aside on a monthly basis to ensure the timely payment of Impositions and
Obligations next coming due.
1.09 Assignment of Leases, Rents, Income, Profits and Cash Collateral.
----------------------------------------------------------------
A. Assignment; Discharge of Obligations. Mortgagor does hereby
------------------------------------
unconditionally, absolutely and presently bargain, sell, assign and set over
unto Mortgagee, all Leases, Rents, income, profits and any and all cash
collateral which, whether before or after foreclosure, shall be made upon or
accrue and be owing for the use or occupation of the Secured Property and of the
buildings and fixtures thereon, or any part thereof. For the aforesaid purpose,
Mortgagor does hereby constitute and appoint Mortgagee its attorney-in-fact,
irrevocably in its name, to receive, collect and receipt all sums due or owing
for such use and occupation, as the same accrue, and, out of the amount so
collected, Mortgagee, its successors and assigns, are hereby authorized (but not
obligated) to pay and discharge all obligations of Mortgagor hereunder,
including, but not being limited to, the obligation to pay the Obligations (and
including any accelerated Obligations) in such order as Mortgagee, its
successors or assigns, may determine and whether due or not, and to pay the
remainder, if any, to Mortgagor, but neither this assignment nor any such action
shall constitute Mortgagee as a "mortgagee in possession". The assignments of
Leases, rents, income, profits and any and all cash collateral of the Secured
Property in this Section 1.09 is intended to be an absolute, unconditional and
------------
present assignment from Mortgagor to Mortgagee and not merely the passing of a
security interest. Mortgagor shall, at any time or from time to time, upon
request of Mortgagee, execute and deliver any instrument as may be requested by
Mortgagee to further evidence the assignment and transfer to Mortgagee of
Mortgagor's interest in any Lease. Nothing herein shall in any way limit
Mortgagee's remedies or Mortgagor's obligations under the Assignment to
Mortgagee. It is the intent of the parties that the terms of this Mortgage and
the terms of the Assignment shall be cumulative, but to the extent of any
contradictions between the terms of the Assignment and the terms of this
Mortgage as to the Leases and the Rents, the terms of the Assignment shall
control.
-24-
B. Entry Onto Secured Property; Lease of Secured Property. Upon the
------------------------------------------------------
occurrence of an Event of Default (as hereinafter defined); Mortgagee at its
sole option shall have the right by itself or through its authorized
representative to enter and take possession of the Secured Property and manage
and operate the same as further provided in Subsection 4.01C, including, without
----------------
limitation, the right to enter into Leases and new agreements extending said
termination dates beyond the maturity set forth in the Note and take any action
which, in Mortgagee's judgment, is necessary or proper to conserve the value of
the Secured Property. The expense (including any receiver's fees, attorneys'
fees, costs and agent's compensation) incurred pursuant to the powers herein
contained shall be secured hereby. Mortgagee shall not be liable to account to
Mortgagor for any action taken pursuant hereto other than to account for any
rents actually received by Mortgagee.
C. License to Manage Secured Property. Notwithstanding anything
----------------------------------
to the contrary contained in Subsection 1.09A above, so long as there shall
----------------
exist no Event of Default hereunder, Mortgagor shall have the license to manage
and operate the Secured Property, subject to Section 1.08 herein, including
------------
without limitation, the right to enter into Leases, and collect, as they accrue,
all such rents, income, profits and cash collateral.
D. Delivery of Assignments. Mortgagor will, as reasonably
-----------------------
requested from time to time by Mortgagee, execute such additional documents, to
evidence the assignment to Mortgagee or its nominee of any Leases now or
hereafter made upon said Secured Property, such assignment documents to be in
form and content acceptable to Mortgagee. For the aforesaid purposes, Mortgagor
agrees to deliver to Mortgagee within thirty (30) days after Mortgagee's
request, a duplicate original (or copy certified by Mortgagor to be accurate and
complete) of every Lease which is at the time of such request outstanding upon
the said Secured Property and in addition thereto shall supply Mortgagee at its
request a complete list of each and every Lease certified by the managing member
or manager of Mortgagor, showing unit number, type, name of each Lessee, monthly
rental, date to which rents have been paid, term of Lease, date of occupancy,
date of expiration and any and every special provision, concession or inducement
granted to Lessee.
E. Indemnity. Notwithstanding anything to the contrary set forth
---------
in this Section 1.09, Mortgagor agrees that in the exercise of the rights of
------------
Mortgagee contained in this Section 1.09, no liability shall be asserted against
------------
Mortgagee, all such liability being expressly waived and released by Mortgagor.
Mortgagor hereby holds Mortgagee harmless from and against any and all claims,
liabilities and expenses of any kind or nature against or incurred by Mortgagee
arising out of such management, operation or maintenance of the Secured Property
or the collection and disposition of rents, income, profits or cash collateral
therefrom.
-25-
1.10 Further Assurances.
------------------
A. General; Appointment of Attorney-in-Fact. At any time, and from
----------------------------------------
time to time, upon request by Mortgagee, Mortgagor will make, execute, and
deliver or cause to be made, executed and delivered to Mortgagee, any and all
other instruments, certificates and other documents as may, in the opinion of
Mortgagee, be necessary or desirable in order to effectuate, complete, perfect
or continue and preserve the obligations of Mortgagor under the Note and the
Loan Documents. Upon any failure by Mortgagor to do so, Mortgagee may make,
execute and record any and all such instruments, certificates and documents for
and in the name of Mortgagor and Mortgagor hereby irrevocably appoints Mortgagee
the agent and attorney-in-fact of Mortgagor for such purposes. Such power of
attorney is coupled with an interest and is irrevocable by death or otherwise.
Mortgagor will reimburse Mortgagee for any reasonable or customary sums expended
by Mortgagee in making, executing and recording such instruments, certificates
and documents and such sums shall be secured by this Mortgage.
B. Statement Regarding Obligations. Mortgagor from time to time
-------------------------------
within ten (10) days after request by Mortgagee, shall furnish Mortgagee with a
written statement, duly acknowledged, setting forth the unpaid principal of, and
interest on, the Obligations secured hereby and whether or not any set-offs or
defenses exist against such principal and interest, and, if so, the particulars
thereof. Mortgagee shall no more often than one (1) time per calendar year and
at Mortgagor's expense, within ten (10) days after request by Mortgagor, furnish
Mortgagor a written statement duly acknowledged setting forth the unpaid
principal of, and interest on, the obligations and whether or not any setoffs or
defenses exist against such principal and interest and, if so, the particulars
thereof.
C. Additional Security Instruments. Mortgagor shall from time to time,
-------------------------------
within fifteen (15) days after request by Mortgagee, execute, acknowledge and
deliver to Mortgagee such chattel mortgages, security agreements or other
similar security instruments, in form and substance satisfactory to Mortgagee,
covering all property of any kind whatsoever owned by Mortgagor or in which
Mortgagor may have any interest which, in the sole opinion of Mortgagee, is
essential to the operation and maintenance of the Secured Property. Mortgagor
shall further from time to time within fifteen (15) days after request by
Mortgagee, execute, acknowledge and deliver any financing statement, renewal,
affidavit, certificate, continuation statement or other document as Mortgagee
may request in order to perfect, preserve, continue, extend or maintain the
security interest under, and the priority of, this Mortgage or such chattel
mortgage or other security instrument as a first lien in accordance with the
terms of this Mortgage and the Assignment. Mortgagor further agrees to pay to
Mortgagee on demand all costs and expenses incurred by Mortgagee in connection
with the preparation, execution, recording, filing and refiling of any such
instrument or document, including the charges for examining title and the
attorneys' fee (such fee to be reasonable) for rendering an opinion as to the
priority of this Mortgage and of such chattel mortgage or other security
instrument as a valid first and subsisting lien. However, neither a request so
made by Mortgagee nor the failure of Mortgagee to make such a request shall be
construed as a release of such property, or any part thereof, from the lien of
this Mortgage, it being understood and agreed that this covenant and any such
chattel mortgage, security agreement or other similar security instrument,
delivered to Mortgagee, are cumulative and given as additional security.
Mortgagor shall also pay all actual premiums and related costs in connection
with any title insurance policy or policies in full or partial replacement
-26-
of the title policy now insuring or which will insure the lien of this Mortgage.
D. Security Agreement and Fixture Filing. Mortgagor and Mortgagee
-------------------------------------
agree: (i) that this Mortgage shall constitute a Security Agreement within the
meaning of Article 9 of the Code with respect to all sums on deposit with the
Mortgagee pursuant to Section 1.04 hereof ("Deposits") and with respect to any
------------
property included in the definition herein of the word "Personal Property,"
which property may or may not constitute a "fixture" (within the meaning of
Section 9-313 of the Code), and all replacements of such property, substitutions
for such property, additions to such property, and the proceeds thereof (said
property, replacements, substitutions, additions and the proceeds thereof being
sometimes herein collectively referred to as the "Collateral"); and (ii) that a
security interest in and to the Collateral and the Deposits is hereby granted to
the Mortgagee; and (iii) that the Deposits and all of Mortgagor's right, title
and interest therein are hereby assigned to the Mortgagee; all to secure payment
of the indebtedness and to secure performance by the Mortgagor of the terms,
covenants and provisions hereof. Mortgagor hereby appoints Mortgagee as its
attorney-in-fact to execute and file on its behalf any financing statements,
continuation statements or other statements in connection therewith which
Mortgagee deems necessary or reasonably advisable to preserve and maintain the
priority of the lien hereof, or to extend the effectiveness thereof, under the
Code or any other laws which may hereafter become applicable. This power, being
coupled with an interest, shall be irrevocable so long as any part of the
Obligations remains unpaid. Mortgagor shall pay to Mortgagee, from time to time,
upon demand, any and all costs and expenses incurred by Mortgagee in connection
with the filing of any such statements including, without limitation, reasonable
attorneys' fees and all disbursements and such amounts shall be part of the
Obligations secured by this Mortgage. Mortgagor and Mortgagee also agree, to the
extent permitted by law, that: (i) all of the goods described within the
definition of the word "Premises" herein are or are to become fixtures on the
land described in Exhibit A; (ii) this instrument, upon recording or
---------
registration in the real estate records of the proper office, shall constitute a
"fixture filing" within the meaning of Sections 9-313 and 9-402 of the Code; and
(iii) Mortgagor is the record owner of the land described in Exhibit A. The
---------
addresses of Mortgagor and Mortgagee are set forth in Section 5.09 hereof.
------------
E. Preservation of Mortgagor's Existence. Mortgagor is a limited
-------------------------------------
liability company, and it and its managing member shall do all things necessary
to preserve and keep in full force and effect its existence, franchise, rights
and privileges under the laws of the state of its organization and the state in
which the Secured Property is located, if required by the laws of such state,
and shall comply with all regulations, rules, ordinances, statutes, orders and
decrees of any governmental or quasi-governmental authority or court applicable
to it.
F. Further Indemnities. In addition to any other indemnities to
-------------------
Mortgagee specifically provided for in this Mortgage, Mortgagor hereby
indemnifies and saves Mortgagee harmless from and against any and all losses,
liabilities, suits, obligations, fines, damages, penalties, claims, costs,
charges, and expenses, including, without limitation, reasonable architects',
engineers' and attorneys' fees and all disbursements which may be imposed upon,
incurred or asserted against Mortgagee prior to any entry by Mortgagee onto the
Premises and taking of possession of the Premises or any part thereof by reason
of: (1) the construction of the Improvements, (2) any capital improvements,
other work or things, done in, on or about the Secured Property or any part
thereof, (3) any use, non-use, misuse, possession, occupation, alteration,
repair, condition, operation, maintenance or management of the Secured Property
or any part thereof or any street, drive, sidewalk, curb, passageway or space
comprising a part
-27-
thereof or adjacent thereto, (4) any negligence or wilful act or omission on the
part of Mortgagor, any Lessee under a Lease or their agents, contractors,
servants, employees, licensees or invitees, (5) any accident, injury (including
death) or damage to any person or property occurring in, on or about the Secured
Property or any part thereof or in, on or about any street, drive, sidewalk,
curb, passageway or space adjacent thereto, (6) any default or Event of Default
(as herein defined), (7) any lien or claim which may be alleged to have arisen
on or against the Secured Property or any part thereof under the laws of the
local or state government or any other governmental or quasi-governmental
authority or any liability asserted against Mortgagee with respect thereto, (8)
any tax attributable to the execution, delivery, filing or recording of this
Mortgage, the Note, any Lease, or any other Loan Documents, (9) any contest
permitted pursuant to the provisions of this Mortgage, or (10) the enforcement
or attempted enforcement of this indemnity.
G. Absence of Insurance. The obligations of Mortgagor under this
--------------------
Section 1.10 shall not in any way be affected by the absence in any case of
------------
covering insurance, by the amount of the insurance or by the failure or refusal
of any insurance carrier to perform any obligation on its part under insurance
policies affecting the Secured Property. If any claim, action or proceeding is
made or brought against Mortgagee by reason of any event as to which Mortgagor
is obligated to indemnify Mortgagee, then, upon demand by Mortgagee, Mortgagor,
at its sole cost and expense, shall resist or defend such claim, action or
proceeding in Mortgagee's name, if necessary, by the attorneys for Mortgagor's
insurance carrier, if such claim, action or proceeding is covered by insurance,
otherwise by such attorneys as Mortgagee shall approve. Notwithstanding the
foregoing, Mortgagee may engage its own attorneys in its reasonable discretion
to defend it or to assist in its defense and Mortgagor shall pay the reasonable
fees and disbursements of such attorneys and such amounts shall bear interest at
the Increased Rate and shall be secured by this Mortgage.
1.11 Further Sales or Encumbrances.
-----------------------------
A. Continuing Ownership and Management. Mortgagor acknowledges that
-----------------------------------
the continuous ownership of the Secured Property and the continuous management
and/or control of the operation of same by Mortgagor is of a material nature to
the transaction and the making of the loan evidenced by the Note and secured by
this Mortgage.
B. Transfer or Encumbrance of Secured Property. Mortgagor shall not,
-------------------------------------------
without the prior written consent of Mortgagee being first had and obtained
(which consent may be granted or denied in Mortgagee's sole discretion),
voluntarily or involuntarily, by operation of law or otherwise, transfer or
dispose of, or suffer any third party to transfer or dispose of, all or any
portion of the Secured Property or any interest therein or the management and/or
operation by Mortgagor of the Secured Property. For purposes of this Section
-------
1.11, a transfer or disposition of the Secured Property or any part thereof or
----
interest therein shall include, without limitation, the sale of the Secured
Property or any portion thereof to a cooperative corporation, conversion of all
or any part of the Secured Property to a condominium form of ownership,
execution of a contract to sell or option to purchase all or any portion of the
Secured Property or any interest therein (other than a contract or agreement
which provides for a purchase price in excess of the amount necessary to satisfy
the Obligations in full, or a contract or agreement which by its terms provides
that Mortgagor's Obligations thereunder are subject to Mortgagee's approval),
any lease for space in any Improvements on the Secured Property for purposes
other
-28-
than occupancy by the tenant, any lease for space in the Improvements containing
an option to purchase, or any direct or indirect sale, assignment, conveyance,
transfer (including a transfer as a result of or in lieu of condemnation except
for a voluntary conveyance by Mortgagor not permitted under Section 1.07(A)), or
other alienation of all or any portion of the Secured Property or any interest
therein, including, but not limited to, the creation of a lien, mortgage,
security interest or other encumbrance on the Secured Property or any part
thereof or interest therein, and further including any assignment, pledge, grant
of security interest in, conditional sale, or the execution of a title retention
agreement with regard to any personalty included in the Secured Property. For
purposes of this Section 1.11, a transfer or disposition shall
------------
not include any Lease entered into in accordance with Subsection 1.08(E) or (F)
-------------------------
or any easement for utilities or other services to the Secured Property. Any
such action described in this Subsection 1.11(B) is herein called a
-----------------
"Transfer." A Transfer shall also include, without limitation, any of the
following events, whether made directly or through an intermediary, and whether
made in one transaction or effected in more than one transaction:
(1) If Mortgagor or any member of Mortgagor is a corporation, a
transfer or disposition, directly or indirectly, of more
than 25% of the outstanding voting stock of Mortgagor or
such member of Mortgagor or of any other corporation
directly or indirectly owning or controlling 25% or more of
the voting stock of Mortgagor or such member;
(2) If Mortgagor or any member of Mortgagor is a partnership, a
transfer or disposition, directly or indirectly, of any
interest of any general partner in Mortgagor or such member
of Mortgagor;
(3) If Mortgagor or any member of Mortgagor is a trust or other
entity, a transfer or disposition, directly or indirectly,
of more than 25% of the beneficial interests in Mortgagor or
such member of Mortgagor; or
(4) If Mortgagor or any member of Mortgagor is a limited
liability company, a transfer or disposition, directly or
indirectly, of any interest of any member in Mortgagor or
such member of Mortgagor.
For purposes of the foregoing, a "transfer or disposition" of such stock or
interests shall include, without limitation, any direct or indirect sale
thereof, any execution of a contract or other agreement to sell or option to
purchase such stock or interests, or any assignment of such stock or interests,
including any assignment for security purposes, but shall exclude any transfer
by devise or operation of law.
C. Acceleration of Obligations. In the event of a Transfer
---------------------------
without the prior written consent of Mortgagee, Mortgagee may, without limiting
any other right or remedy available to Mortgagee at law, in equity or by
agreement with Mortgagor, and in Mortgagee's absolute discretion and without
regard to the adequacy of its security, accelerate the maturity of the Note and
require the payment of the then existing outstanding principal balance and all
other sums due under the Note and under this Mortgage, including, but not
limited to, the prepayment
-29-
charge provided in Section 4.06 herein. The giving of consent by Mortgagee to
------------
a Transfer in any one or more instances shall not limit or waive the need for
such consent in any other or subsequent instances.
D. Subordinate, Wrap-Around and Other Financing. Mortgagor shall
--------------------------------------------
not obtain any financing through any loans, or otherwise incur any indebtedness,
secured by the Secured Property. Should the Secured Property at any time be or
become subject to the lien of any agreement, deed of trust or mortgage or
similar instrument in connection with which payments on account of the
Obligations secured hereby are to be made directly or indirectly by or through a
mortgagee, grantee or beneficiary thereunder, regardless of whether or not
payment of the Obligations secured hereby is assumed by such mortgagee, grantee
or beneficiary, the whole of the principal sum and interest and other sums
hereby secured, at the option of Mortgagee, shall immediately become due and
payable.
1.12 Intentionally Omitted.
---------------------
1.13 Expenses. Mortgagor will pay or reimburse Mortgagee for all reasonable
--------
attorneys' fees, costs and expenses actually incurred by Mortgagee in any
proceedings affecting the Obligations or the Secured Property, (A) involving the
estate of a decedent or an insolvent, or (B) in any action, legal proceeding or
dispute of any kind in which Mortgagee is made a party, or appears as party
plaintiff or defendant, including, but not limited to, any exercise of the power
of sale or judicial foreclosure as set forth in this Mortgage, any bankruptcy,
receivership or other insolvency under any chapter of the Bankruptcy Code (Title
11 of the United States Code) as amended, or in any other applicable insolvency
proceeding, any condemnation action involving the Secured Property or any action
to protect the security hereof or upon the reasonable concern of Mortgagee with
the condition of the Secured Property, and any such amounts paid by Mortgagee
shall be added to the Obligations and secured by this Mortgage. If the
Obligations are referred to attorneys for collection, foreclosure or for any
cause set forth in Article III hereof, Mortgagor shall pay all expenses incurred
by Mortgagee, including reasonable attorneys' fees actually incurred, all costs
of collection, litigation costs, and costs (which may be estimated as to items
to be expended after entry of the decree) of procuring title insurance policies,
whether or not obtained, Torrens certificates, and similar assurances with
respect to title and value as Mortgagee may deem reasonably necessary together
with all statutory costs, with or without the institution of an action or
proceeding. All such costs and expenses with interest thereon at the Increased
Rate shall be deemed to be secured by this Mortgage.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
------------------------------
Mortgagor makes the following representations and warranties:
2.01 Warranty of Title. Mortgagor (A) is lawfully seized and possessed of
-----------------
the Secured Property, in fee simple, subject to no mortgage, lien, charge or
encumbrance, except as specifically set forth in the title insurance policy
issued to Mortgagee upon recordation of this Mortgage, (B) has full power and
lawful authority to grant, bargain, sell, convey, assign, transfer
-30-
and mortgage the Secured Property in the manner and form hereby mortgaged and
conveyed, (C) is the fee owner of the Land and the Improvements, (D) is the
owner of the Personal Property, and (E) does warrant and will defend the title
to the Secured Property against all claims and demands whatsoever, subject to
those matters set forth in Schedule B of the above-referenced title insurance
policy.
2.02 Ownership Of Improvements And Personal Property. All Improvements and
-----------------------------------------------
Personal Property now or hereafter affixed, placed or used by Mortgagor are and
will hereafter be owned by Mortgagor free from any prior liens or encumbrances,
provided, however, that if any of the foregoing Improvements or Personal
Property shall be subject to a conditional xxxx of sale, chattel mortgage or
other agreement creating a security interest, then all of the right, title and
interest of Mortgagor in and to such Improvements and Personal Property together
with the benefits of any deposits or payments now or hereafter made thereon
shall be covered by and subject to this Mortgage.
2.03 No Pending Material Litigation or Proceeding; No Hazardous Materials.
--------------------------------------------------------------------
A. Proceedings Affecting Mortgagor. There are no actions, suits or
-------------------------------
proceedings pending, and, to the best knowledge and belief of Mortgagor, there
are no actions, suits, investigations or proceedings threatened, against or
affecting Mortgagor or any managing member of Mortgagor, or the business,
operations, properties or assets of Mortgagor or any managing member of the
Mortgagor, or before or by any Governmental Agency, or any court, arbitrator or
grand jury, which may result in any material adverse change in the business,
operations, properties or assets or in the condition, financial or otherwise, of
Mortgagor or any managing member of Mortgagor, or in the ability of Mortgagor to
perform its obligations under the Note or this Mortgage. To the best knowledge
and belief of Mortgagor, Mortgagor is not in default, and there is no other
default, with respect to any judgment, order, writ, injunction, decree, demand,
rule or regulation of any court, arbitrator, grand jury or of any Governmental
Agency, default under which might have consequences which would materially and
adversely affect the business, operations, properties or assets or the
condition, financial or otherwise, of Mortgagor or the ability of Mortgagor to
perform its obligations under the Note or this Mortgage.
B. Proceedings Affecting Secured Property. There are no proceedings
--------------------------------------
of any kind pending, or, to the best knowledge and belief of Mortgagor,
threatened against or affecting Mortgagor, the Secured Property (including any
attempt or threat by any Governmental Agency to condemn or rezone all or any
portion of the Secured Property), any party constituting Mortgagor or any
general partner in any such party, or involving the validity, enforceability or
priority of this Mortgage, the Note or any of the other Loan Documents or
enjoining or preventing or threatening to enjoin or prevent the use and
occupancy of the Secured Property or the performance by Mortgagee of its
obligations hereunder, and there are no rent controls, governmental moratoria or
environmental controls (other than those generally imposed by federal or state
law upon property in the State of Illinois) presently in existence, or to the
best knowledge of Mortgagor, threatened, affecting the Secured Property, except
as identified in writing to, and approved by, Mortgagee.
-31-
C. No Hazardous Materials. Except as disclosed in environmental
----------------------
surveys and reports submitted to Mortgagee by Mortgagor and described on Exhibit
-------
B attached hereto and made a part hereof, Neither Mortgagor nor, to the best
-
knowledge and belief of Mortgagor, any other person has ever caused or knowingly
permitted, in violation of law, any Hazardous Material to be placed, held,
located or disposed of, on, under or at the Secured Property or any part
thereof, or any other real property legally or beneficially owned (or any
interest or estate which is owned) by Mortgagor in any state now or hereafter
having in effect a so-called "Superlien" law or ordinance or any part thereof
(the effect of which would be to create a lien on the Secured Property to secure
any obligation in connection with the real property in such state), and neither
the Secured Property, nor any part thereof, nor any other real property legally
or beneficially owned (or any interest or estate therein which is owned) by
Mortgagor in any state now or hereafter having in effect a so-called "Superlien"
law or ordinance or any part thereof, has ever been used (whether by Mortgagor
or, to the best knowledge of Mortgagor, by any other person) as a dump site or
storage (whether permanent or temporary) site for any Hazardous Material. Except
as disclosed in those documents listed on Exhibit B, Mortgagor further
---------
represents and warrants that neither Mortgagor nor, to the best knowledge and
belief of Mortgagor, any other person has ever caused or knowingly permitted any
asbestos or underground fuel storage facility to be located on the Secured
Property. Except as disclosed in those documents listed on Exhibit B, Mortgagor
---------
further represents and warrants that neither Mortgagor nor, to the best
knowledge or belief of Mortgagor, any other person has discovered any occurrence
or condition on any real property adjoining or in the vicinity of the Secured
Property that could cause the Secured Property or any part thereof to be subject
to any restrictions on the ownership, occupancy, transferability or use of the
Secured Property under any federal, state or local law, ordinance or regulation
relating to Hazardous Materials.
D. No Litigation Regarding Hazardous Materials. No litigation,
-------------------------------------------
administrative enforcement actions or proceedings have been brought, or to
Mortgagor's best knowledge and belief, threatened nor have any settlements been
reached by or with any party or parties, public or private, in disputes in which
the presence, disposal, release or threatened release of any Hazardous Material
on, from, or under any of the Secured Property had been alleged.
2.04 Valid Organization, Good Standing and Qualification of Mortgagor.
----------------------------------------------------------------
Mortgagor is a duly and validly organized and existing limited liability company
in good standing under the laws of the State of Illinois and is duly licensed or
qualified and in good standing as a foreign entity in all other jurisdictions
where the ownership or leasing of property or the nature of business transacted
makes such qualification necessary, and is entitled to own its properties and
assets, and to carry on its business, all as, and in the places where, such
properties and assets are now owned or operated or such business is now
conducted or presently proposed to be conducted. Mortgagor does not own any real
property located outside of the jurisdictions in which it is duly qualified to
do business as a foreign entity and it is not doing business outside of such
jurisdictions of a character which would require such qualification. Mortgagor
has made payment of all franchise and similar taxes in the State of Illinois and
in all of the jurisdictions in which it is qualified as a foreign entity,
insofar as such taxes are due and payable at the date of this Mortgage, except
for any such taxes the validity of which is being contested in good faith and
for which proper reserves have been set aside on the books of Mortgagor.
2.05 Authorization; No Legal Restrictions on Performance. The execution and
---------------------------------------------------
-32-
delivery by Mortgagor of this Mortgage and the other Loan Documents and its
compliance with the terms and conditions hereof and thereof have been duly and
validly authorized by all necessary limited liability company action and the
Loan Documents are valid and enforceable obligations of Mortgagor in accordance
with the terms hereof and thereof. Neither the execution and delivery by
Mortgagor of this Mortgage or any of the other Loan Documents to which it is a
party nor the consummation of the transactions contemplated herein or therein,
nor compliance with the terms and conditions hereof or thereof will, to the best
of Mortgagor's knowledge, (A) conflict with or result in a breach of, or
constitute a default under, any of the terms, obligations, covenants, conditions
or provisions of (1) any corporate restriction or indenture, mortgage, deed of
trust, pledge, bank loan or credit agreement, corporate charter, by-law or any
other agreement or instrument to which Mortgagor is now a party or by which its
properties may be bound or affected, or (2) any judgment, order, writ,
injunction, decree or demand of any court, arbitrator, grand jury or
Governmental Agency, or (B) result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any property or asset of
Mortgagor under the terms or provisions of any of the foregoing. Mortgagor is
not in default in the performance, observance or fulfillment of any of the
terms, obligations, covenants, conditions or provisions contained in any
indenture or other agreement creating, evidencing or securing Obligations of
Mortgagor or pursuant to which Mortgagor is a party or by which Mortgagor or its
properties may be bound or affected.
2.06 Compliance With Laws. Mortgagor has, to the best of its knowledge and
--------------------
belief, complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, in respect of the conduct of its business and ownership of its
properties (including, without limitation, applicable statutes, rules,
regulations, orders and restrictions relating to equal employment opportunities
or environmental standards or controls). No governmental orders, permissions,
consents, approvals or authorizations are required to be obtained and no
registrations or declarations are required to be filed in connection with the
execution and delivery or performance of this Mortgage or any of the other Loan
Documents. Mortgagor has received no notice of any violation of any applicable
zoning, land use, subdivision or other law applicable to the Secured Property.
2.07 Tax Status. Mortgagor has filed all United States income tax returns
----------
and all state and municipal tax returns which are required to be filed, and has
paid, or made provision for the payment of, all taxes which have become due
pursuant to said returns or pursuant to any assessment received by Mortgagor,
except such filings and taxes, if any, as are being contested in good faith and
as to which adequate reserves have been provided. The United States income tax
liability of Mortgagor has been finally determined by the Internal Revenue
Service and satisfied for all taxable years up to and including the taxable year
ending 1997.
2.08 Absence of Foreign or Enemy Status. Mortgagor is not a "national" of a
----------------------------------
"designated foreign country" (or a person defined as a "designated foreign
country") within the definitions in the Foreign or Cuban Assets Control
Regulations of the United States Treasury Department, 31 CFR, Subtitle B,
Chapter V, as amended, or any regulation or ruling issued thereunder.
2.09 Federal Reserve Board Regulations. Mortgagor does not own any
---------------------------------
"margin security" as such term is defined in Regulation G of the Board of
Governors of the Federal Reserve System (12 CFR Part 207), as amended, except
margin securities owned or which may
-33
be acquired by Mortgagor which do not and would not in the aggregate constitute
a substantial part of the assets of Mortgagor within the meaning of Section
207.2(i) of the aforesaid Regulation G, and Mortgagor will not use any part of
the proceeds from the loan to be made under this Mortgage (A) directly or
indirectly, to purchase or carry any such security or to reduce or retire any
Obligations originally incurred to purchase any such security within the meaning
of such Regulation, (B) so as to involve Mortgagor in a violation of Regulation
T, U or X of such Board (12 CFR Parts 220, 221 and 224), or (C) for any other
purpose not permitted by Section 7 of the Securities Exchange Act of 1934, as
amended, or any of the rules and regulations respecting the extension of credit
promulgated thereunder.
2.10 Investment Company Act and Public Utility Holding Company Act.
-------------------------------------------------------------
Mortgagor is not an "investment company," or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended, and Mortgagor is not a "holding company" or a "subsidiary company"
of a "holding company," or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company," as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
2.11 Exempt Status of Transactions Under Securities Act and Representations
----------------------------------------------------------------------
Relating Thereto. Mortgagor has not, either directly or through any agent,
----------------
offered all or any part of the loan made or to be made by Mortgagee and secured
by this Mortgage to, or solicited any offers to make all or any part of such
loan from, or otherwise approached or negotiated or communicated in respect of
all or any part of such loan with anyone other than Mortgagee. Neither Mortgagor
nor any agent on its behalf will offer to obtain all or any part of such loan
from, or solicit any offers to make all or any part of such loan from, or
otherwise approach or negotiate or communicate in respect of all or any part of
such loan with, any person or persons so as thereby to bring the obtaining of
such loan by Mortgagor and the delivery of the Note within the registration
provisions of the Securities Act of 1933, as amended.
2.12 Employee Benefit Plans.
----------------------
A. None of the Employee Benefit Plans or the trusts created thereunder
has engaged in a prohibited transaction which could subject any such Employee
Benefit Plan or trust to a tax or penalty on prohibited transactions imposed
under ERISA.
B. None of the Employee Benefit Plans which are employee pension
benefit plans or the trusts created thereunder has been terminated since
September 2, 1974; nor has any such Employee Benefit Plan incurred any liability
to the Pension Benefit Guaranty Corporation established pursuant to ERISA which
would be material to Mortgagor, other than for required insurance premiums which
have been paid when due, or incurred any accumulated funding deficiency which
would be material to Mortgagor, whether or not waived; nor has there been any
reportable event, or other event or condition, which presents a risk of
termination of any such Employee Benefit Plan by such Pension Benefit Guaranty
Corporation which termination would be material to Mortgagor.
C. The present value of all benefits vested under the Employee Benefit
Plans which are employee pension benefit plans did not, as of the most recent
valuation date, exceed the then current value of the assets of such Employee
Benefit Plans allocable to such vested benefits by an amount that would
materially affect the financial condition of Mortgagor or the ability of
-34-
Mortgagor to perform under the Loan Documents.
D. The consummation of the loan from Mortgagee referred to in this
Mortgage, and the execution and delivery of the Note hereunder and the
performance by Mortgagor of its obligations under the Loan Documents, will not
involve any prohibited transaction.
E. As used in this Section 2.12, the terms "employee benefit plans,"
------------
"employee pension benefit plans," "accumulated funding deficiency," "reportable
event," "accrued benefits," "separate account" and "multiemployer plan" shall
have the respective meanings assigned to them in ERISA, and the term "prohibited
transaction" shall have the meaning assigned to it in Internal Revenue Code
Section 4975 and ERISA.
ARTICLE III
DEFAULTS
--------
3.01 Events of Default. Any of the following events shall be deemed an
-----------------
"Event of Default" hereunder:
A. if Mortgagor shall fail, refuse, or neglect to make payment of any
installment of the principal of, or interest on the Obligations or any other sum
which is payable hereunder as and when the same shall become due and payable as
in the Note or herein provided, within three (3) business days after Mortgagee
delivers written notice to Mortgagor of such non-payment; provided, however,
that Mortgagor will not be entitled to such written notice more than four (4)
times during the term of this Mortgage; or
B. if Mortgagor fails to perform or observe any term, provision,
covenant or agreement in the Note, this Mortgage or in any other Loan Documents
(other than those relating to satisfaction of monetary obligations) beyond the
applicable grace period therefor, or if no such grace period is applicable, if
such default has not been remedied within thirty (30) calendar days after
written notice thereof has been given by Mortgagee to Mortgagor; provided,
however, that if the default is curable but is not reasonably susceptible of
cure within said thirty (30) day period, Mortgagor shall have ninety (90) days
from the date Mortgagee gave such notice within which to effect a cure if
Mortgagor commences cure activities within such thirty (30) day period and
thereafter diligently and continuously prosecutes the same to completion and
completes same within said ninety (90) day period; or
C. if any warranty, representation, certification, financial statement
or other information made or furnished at any time pursuant to the terms of this
Mortgage or otherwise, by Mortgagor, or by any person or entity liable for the
Obligations in connection with the loan transaction, shall prove to be
materially false and to have been made or furnished with knowledge of the false
nature thereof; or
D. if Mortgagor shall:
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(1) apply for, consent to or acquiesce in the appointment of a
receiver, trustee or liquidator of it or of all or a
substantial part of its assets, or the Secured Property or
any interest in any part thereof (the term "acquiesce"
includes, but is not limited to, the failure to file a
petition or motion to vacate or discharge any order,
judgment or decree providing for such appointment within ten
(10) days after the appointment); or
(2) commence a voluntary case or other proceeding in bankruptcy,
or admit in writing its inability to pay its debts as they
come due; or
(3) make a general assignment for the benefit of creditors; or
(4) file a petition or an answer seeking reorganization,
arrangement, composition, readjustment, liquidation,
dissolution, or similar relief for itself under the present
or any future federal bankruptcy act or any other statute or
law relative to bankruptcy, insolvency, or other relief for
debtors; or
(5) file an answer admitting the material allegations of, or
consent to, or default in answering, a petition filed
against it in any bankruptcy, reorganization or insolvency
case or proceeding; or
E. if an order for relief shall be entered against Mortgagor by a
court of competent jurisdiction under any present or future bankruptcy law,
which order shall continue unstayed and in effect for any period of sixty (60)
consecutive days; or
F. if an order, judgment or decree shall be entered by any court of
competent jurisdiction, adjudicating Mortgagor insolvent, approving a petition
seeking reorganization or arrangement of Mortgagor or appointing a receiver,
trustee or liquidator of it or of all or a substantial part of its assets, and
such order, judgment or decree shall continue unstayed and in effect for any
period of sixty (60) consecutive days; or
G. if Mortgagor has assigned or purports to assign the whole or any
part of the rents, income or profits arising from the Secured Property, without
the prior written consent of Mortgagee; or
H. if a Transfer not consented to by Mortgagee shall have occurred;
or
I. if any mechanic's, laborer's or materialman's lien, federal tax
lien, broker's lien or other lien not permitted hereunder and affecting the
Secured Property or any part thereof is not discharged, by payment, bonding,
order of a court of competent jurisdiction or otherwise, within twenty (20) days
after Mortgagor receives notice thereof from the lienor or from Mortgagee.
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ARTICLE IV
REMEDIES
--------
4.01 Acceleration, Foreclosure, etc. Upon the happening of any one or
------------------------------
more of the Events of Default, the entire unpaid principal balance of the
Obligations, interest accrued thereon, and all of the sums secured by this
Mortgage, including, without limitation, the prepayment charge as provided in
Section 4.06 herein and in the Note, at the sole option of Mortgagee, shall
------------
become immediately due and payable without notice or demand, and Mortgagee may
forthwith, without further delay, undertake any one or more of the following:
A. Foreclosure. Mortgagee shall have the right to institute an
-----------
action to foreclose this Mortgage, or take such other action as may be allowed
at law or in equity, for the enforcement hereof and realization on the Secured
Property or any other security which is herein or elsewhere provided for, or
proceed thereon through power of sale or to final judgment and execution thereon
for the entire Obligations, with interest, at the rate specified in this
Mortgage to the date of such Event of Default and thereafter at the Increased
Rate, together with all other sums secured by this Mortgage, including, without
limitation, all costs of suit, interest at the Increased Rate on any judgment
obtained by Mortgagee from and after the date of any sale of the Secured
Property (which may be sold in one parcel or in such parcels, manner or order as
Mortgagee shall elect) until actual payment is made of the full amount due
Mortgagee, and any attorneys' fees for collection actually incurred at such
attorneys' standard rates, without further stay, any law, usage or custom to the
contrary notwithstanding.
B. Partial Foreclosure. Mortgagee shall have the right to foreclose
-------------------
the lien hereof for the Obligations or any part thereof. It is further agreed
that if default be made in the payment of any part of the Obligations, as an
alternative to the right of foreclosure for the full Obligations after
acceleration thereof, Mortgagee shall have the right to institute partial
foreclosure proceedings with respect to the portion of said Obligations so in
default, as if under a full foreclosure, and without declaring the entire
Obligations due (such proceeding being hereinafter referred to as a "partial
foreclosure"), and provided that if foreclosure sale is made because of default
of a part of the Obligations, such sale may be made subject to the continuing
lien of this Mortgage for the unmatured part of the Obligations; and it is
agreed that such sale pursuant to a partial foreclosure, if so made, shall not
in any manner affect the unmatured part of the Obligations, but as to such
unmatured part, this Mortgage and the lien hereof shall remain in full force and
effect just as though no foreclosure sale had been made under the provisions of
this subsection. Notwithstanding the filing of any partial foreclosure or entry
of a decree of sale therein, Mortgagee may elect at any time prior to a
foreclosure sale pursuant to such decree, to discontinue such partial
foreclosure and to accelerate the Obligations by reason of any uncured default
or defaults upon which such partial foreclosure was predicated or by reason of
any other defaults, and proceed with full foreclosure proceedings. It is further
agreed that several foreclosure sales may be made pursuant to partial
foreclosures without exhausting the right of full or partial foreclosure sale
for any unmatured part of the Obligations, it being the purpose to provide for a
partial foreclosure sale of the Obligations for any matured portion of the
Obligations without exhausting the power to foreclose and to sell the Secured
Property pursuant to any such partial foreclosure for any other part of the
Obligations, whether matured at the time or subsequently maturing, and without
exhausting any right of acceleration and full foreclosure.
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C. Entry. Mortgagee personally, or by its agents or attorneys, may
-----
enter into and upon all or any part of the Secured Property, and each and every
part thereof, and may exclude Mortgagor, its agents and servants wholly
therefrom without liability for trespass, damages or otherwise and Mortgagor
agrees to surrender possession to Mortgagee on demand after the happening of any
Event of Default; and having and holding the same, Mortgagee may use, operate,
manage and control the Secured Property and conduct the business thereof, either
personally or by its superintendents, managers, agents, servants, attorneys or
receivers; and upon each such entry, Mortgagee, at the expense of Mortgagor from
time to time, either by purchase, repairs or construction, may maintain and
restore the Secured Property, may complete the construction of the Improvements
and in the course of such completion may make such changes in the contemplated
or completed buildings, structures and improvements as it may deem desirable and
may insure the same; and likewise, from time to time, at the expense of
Mortgagor, Mortgagee may make all necessary or proper repairs, renewals and
replacements and such alterations, additions, betterments and improvements
thereto and thereon as it may deem advisable; and in every such case Mortgagee
shall have the right to manage and operate the Secured Property and to carry on
the business thereof and exercise all rights and powers of Mortgagor with
respect thereto either in the name of Mortgagor or otherwise as it shall deem
best.
D. Collection of Rents, etc. Mortgagee shall be entitled to
------------------------
collect and receive all earnings, revenues, rents, issues, profits and income
derived from the Secured Property and every part thereof, and after deducting
the expenses of conducting the business thereof and of all maintenance, repairs,
renewals, replacements, alterations, additions, betterments and improvements and
amounts necessary to pay for Impositions, insurance and liens or other charges
upon the Secured Property or any part thereof, as well as just and reasonable
compensation for the services of Mortgagee and for all attorneys, counsel,
agents, clerks, servants, and other employees by it properly engaged and
employed, Mortgagee shall apply the moneys arising as aforesaid, first, to the
payment of the unpaid Obligations in inverse order of maturity and then to the
payment of any other sums required to be paid by Mortgagor hereunder.
E. Receivership. Mortgagee shall have the right to have a receiver
------------
appointed to enter into possession of the Secured Property, collect the
earnings, revenues, rents, issues, profits and income therefrom and apply the
same as the court may direct. Mortgagee shall be entitled to the appointment of
a receiver as a matter of right without notice and without the necessity of
proving either the inadequacy of the security or the insolvency of Mortgagor or
any other person who may be legally or equitably liable to pay money secured by
this Mortgage and Mortgagor and each such person shall be deemed to have waived
such proof and to have consented to the appointment of such receiver. Should
Mortgagee or any receiver collect earnings, revenues, rents, issues, profits or
income from the Secured Property, the moneys so collected shall not be
substituted for payment of the Obligations nor can they be used to cure an Event
of Default, without the prior written consent of Mortgagee. Mortgagee shall be
liable to account only for earnings, revenues, rents, issues, profits and income
actually received by Mortgagee.
F. Specific Performance. Mortgagee may institute an action for
--------------------
specific performance of any covenant contained herein or in aid of the execution
of any power herein granted.
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G. Illinois Mortgage Foreclosure and Remedies.
------------------------------------------
(1) All advances, disbursements and expenditures (collectively
"advances") made by Mortgagee before and during foreclosure, prior to sale, and
where applicable, after sale, for the following purposes, including interest
thereon at the Increased Rate (as defined in the Note), are hereinafter referred
to as "Protective Advances" and shall constitute additional indebtedness
hereunder and shall be secured by the lien hereof:
(a) any amount for restoration or rebuilding in excess of
the actual or estimated proceeds of insurance or condemnation award for the
purpose of such repair or replacement;
(b) advances in accordance with the terms of this Mortgage
to: (i) protect, preserve or restore the Secured Property; (ii) preserve the
lien of this Mortgage or the priority thereof; or (iii) enforce this Mortgage,
as referred to in Subsection (b)(5) of Section 15-1302 of the Illinois Mortgage
Foreclosure Law, 735 ILCS 5/15-1101 et seq., as amended from time to time
-- ---
("Act");
(c) payments of (i) when due installments of principal,
interest or other obligations in accordance with the terms of any Prior
Encumbrance (as hereinafter defined); (ii) when due installments of real estate
taxes and other Impositions; (iii) other obligations authorized by this
Mortgage; or (iv) with court approval any other amounts in connection with other
liens, encumbrances or interests reasonably necessary to preserve the status of
title, all as referred to in Section 15-1505 of the Act;
(d) attorneys' fees and other costs actually incurred in
connection with the foreclosure of this Mortgage as referred to in Sections
1504(d)(2) and 15-1510 of the Act and in connection with any other litigation or
administrative proceeding to which the Mortgagee may be or become or be
threatened or contemplated to be a party, including probate and bankruptcy
proceedings, or in the preparation for the commencement or defense of any such
suit or proceeding; including filing fees, appraisers' fees, outlays for
documents and expert evidence, witness fees, stenographer's charges, publication
costs, and costs (which may be estimated as to items to be expended after entry
of judgment) of procuring all such abstracts of title, title charges and
examinations, foreclosure minutes, title insurance policies, appraisals, and
similar data and assurances with respect to title and value as Mortgagee may
deem reasonably necessary either to prosecute or defend such suit or, in case of
foreclosure, to evidence to bidders at any sale which may be had pursuant to the
foreclosure judgment the true condition of the title to or the value of the
Secured Property;
(e) Mortgagee's fees and costs arising between the entry of
judgment of foreclosure and the confirmation hearing as referred to in
Subsection (b)(1) of Section 15-1508 of the Act;
(f) payment by Mortgagee of Impositions as required of
Mortgagor by Section 1.02 of this Mortgage;
------------
(g) Mortgagee's advances of any amount required to make
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up a deficiency in deposits for installments of Impositions, as may be required
of Mortgagor under this Mortgage;
(h) expenses deductible from proceeds of sale referred to
in Subsections (a) and (b) of Section 15-1512 of the Act; and
(i) expenses incurred and expenditures made by Mortgagee
for any one or more of the following: (i) if any of the Secured Property
consists of an interest in a leasehold estate under a lease or sublease, rentals
or other payments required to be made by the lessee under the terms of the lease
or sublease; (ii) premiums upon casualty and liability insurance made by
Mortgagee whether or not Mortgagee or a receiver is in possession, if reasonably
required, without regard to the limitation to maintaining of insurance in effect
at the time any receiver or mortgagee takes possession of the Secured Property
imposed by Subsection (c)(1) of Section 15-1704 of the Act; (iii) payments
required or deemed by Mortgagee to be for the benefit of the Secured Property or
required to be made by the owner of the Secured Property under any grant or
declaration of easement, easement agreement, reciprocal easement agreement,
agreement with any adjoining land owners or other instruments creating covenants
or restrictions for the benefit of or affecting the Secured Property; (iv)
shared or common expense assessments payable to any association or corporation
in which the owner of the premises is a member in any way affecting the Secured
Property; (v) operating deficits incurred by Mortgagee in possession or
reimbursed by Mortgagee to any receiver; (vi) fees and costs incurred to obtain
an environmental assessment report relating to the Secured Property; and (vii)
any monies expended in excess of the face amount of the Note.
(2) This Mortgage shall be a lien for all Protective Advances as
to subsequent purchasers and judgment creditors from the time the Mortgage is
recorded, pursuant to Subsection (b)(5) of Section 15-1302 of the Act.
The Protective Advances shall, except to the extent, if any,
that any of the same is clearly contrary to or inconsistent with the provisions
of the Act, be included in:
(a) determination of the amount of indebtedness secured by
this Mortgage at any time;
(b) the indebtedness found due and owing to the Mortgagee
in the judgment of foreclosure and any subsequent amendment of such judgment,
supplemental judgments, orders, adjudications or findings by the court of any
additional indebtedness becoming due after entry of such judgment, it being
hereby agreed that in any foreclosure judgment, the court may reserve
jurisdiction for such purpose;
(c) determination of amounts deductible from sale proceeds
pursuant to Section 15-1512 of the Act;
(d) determination of the application of income in the hands
of any receiver or mortgagee in possession; and
(e) computation of any deficiency judgment pursuant to
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Subsections (b)(2) and (e) of Section 15-1508 and Section 15-1511 of the Act.
All moneys paid for Protective Advances or any of the other
purposes herein authorized and all expenses paid or incurred in connection
therewith, including attorneys' fees actually incurred, and any other moneys
advanced by Mortgagee to protect the Secured Property and the lien hereof, shall
be so much additional indebtedness secured hereby, and shall become immediately
due and payable without notice and with interest thereon at the Increased Rate.
Inaction of Mortgagee shall never be considered as a waiver of any right
accruing to it on account of any default on the part of Mortgagor.
(3) Should the proceeds of the Note or any part thereof, or any
amount paid out or advanced hereunder by Mortgagee, be used directly or
indirectly to pay off, discharge or satisfy, in whole or in part, any senior
mortgage (as described in Subsection (i) of Section 15-1505 of the Act) or any
other lien or encumbrance upon the Mortgaged Property or any part thereof on a
parity with or prior or superior to the lien hereof ("Prior Encumbrance"), then
as additional security hereunder, the Mortgagee shall be subrogated to any and
all rights, equal or superior titles, liens and equities, owned or claimed by
any owner or holder of said outstanding liens, charges and indebtedness, however
remote, regardless of whether said liens, charges and indebtedness are acquired
by assignment or have been released of record by the holder thereof upon
payment.
(4) If an Event of Default has occurred hereunder, or when the
outstanding indebtedness hereby secured, or any part thereof, shall become due,
whether by acceleration or otherwise, Mortgagee shall have the right to
foreclose the lien hereof for such indebtedness or part thereof and pursue all
remedies afforded to a mortgagee under and pursuant to the Act.
(5) The proceeds of any foreclosure sale of the Secured Property
shall be distributed and applied in accordance with the provisions of Subsection
(c) of Section 15-1512 of the Act. The judgment of foreclosure or order
confirming the sale shall provide (after application pursuant to Subsections (a)
and (b) of said Section 15-1512) for application of sale proceeds in the
following order of priority: first, all items not covered by the provisions of
said Subsections (a) and (b), which under the terms hereof constitute secured
indebtedness additional to that evidenced by the Note, with interest thereon as
herein provided; and second, all principal and interest remaining unpaid on the
Note.
(6) Upon, or at any time after the filing of a complaint to
foreclose this Mortgage, the court in which such complaint is filed shall
appoint a receiver of the Secured Property whenever Mortgagee, when entitled to
possession, so requests pursuant to Section 15-1702(a) of the Act or when such
appointment is otherwise authorized by operation of law. Such receiver shall
have all powers and duties prescribed by Section 15-1704 of the Act, including
the power to make leases to be binding upon all parties; including the Mortgagor
after redemption, the purchaser at a sale pursuant to a judgment of foreclosure
and any person acquiring an interest in the Secured Property after entry of a
judgment of foreclosure, all as provided in Subsection (g) of Section 15-1701 of
the Act. In addition, such receiver shall also have the following powers: (a) to
extend or modify any then existing Leases, which extensions and modifications
may provide for terms to expire, or for options to Lessees to extend or renew
terms to expire, beyond the maturity date of the indebtedness hereunder and
beyond the date of
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the issuance of a deed or deeds to a purchaser or purchasers at a foreclosure
sale, it being understood and agreed that any such Leases, and the options or
other such provisions to be contained therein, shall be binding upon Mortgagor
and all persons whose interests in the Secured Property are subject to the lien
hereof and upon the purchaser or purchasers at any foreclosure sale,
notwithstanding any redemption, discharge of the mortgage indebtedness,
satisfaction of any foreclosure judgment, or issuance of any certificate of sale
or deed to any purchaser; and (b) all other powers which may be necessary or are
usual in such cases for the protection, possession, control, management and
operation of the Secured Property during the whole of the period of
receivership. The court from time to time, either before or after entry of
judgment of foreclosure, may authorize the receiver to apply the net income in
his hands in payment in whole or in part of: (a) the indebtedness secured
hereby, or by or included in any judgment of foreclosure or supplemental
judgment or other item for which Mortgagee is authorized to make a Protective
Advance; and (b) the deficiency in case of a sale and deficiency.
(7) In any case in which under the provisions of this Mortgage
Mortgagee has a right to institute foreclosure proceedings, whether before or
after the whole principal sum secured hereby is declared to be immediately due
as aforesaid, or whether before or after the institution of legal proceedings to
foreclose the lien hereof or before or after judgment thereunder, and at all
times until confirmation of sale, Mortgagor shall forthwith, upon demand of
Mortgagee, surrender to Mortgagee and Mortgagee shall be entitled to take and
upon Mortgagee's request to the court to be placed in actual possession of,
Mortgagee shall be placed in possession of the Secured Property or any part
thereof, personally, or by its agent or attorneys as provided in Subsections
(b)(2) and (c) of Section 1701 of the Act. In such event Mortgagee in its
discretion may, with or without force and with or without process of law, enter
upon and take and maintain or may apply to the court in which a foreclosure is
pending to be placed in possession of all or any part of said Secured Property,
together with all documents, books, records, papers and accounts of Mortgagor or
then owner of the Secured Property relating thereto, and may exclude Mortgagor,
its agents or servants, wholly therefrom and may, as attorney in fact or agent
of Mortgagor, or in its own name as Mortgagee and under the powers herein
granted, hold, operate, manage and control the Secured Property and conduct the
business, if any, thereof, either personally or by its agents, and with full
power to use such measures, legal or equitable, as in its discretion or in the
discretion of its successors or assigns may be deemed proper or necessary to
enforce the payment or security of the avails, rents, issues, and profits of the
Secured Property, including actions for the recovery of rent, actions in
forcible detainer and actions in distress for rent, and with full power: (a) to
cancel or terminate any Lease or sublease for any cause or on any ground which
would entitle Mortgagor to cancel the same; (b) to elect to disaffirm any Lease
or sublease which is then subordinate to the lien hereof; (c) to extend or
modify any then existing Leases and to make new Leases, which extensions,
modifications and new Leases may provide for terms to expire, or for options to
Lessees to extend or renew terms to expire, beyond the maturity date of the
indebtedness hereunder and beyond the date of the issuance of a deed or deeds to
a purchaser or purchasers at a foreclosure sale, it being understood and agreed
that any such Leases, and the options or other such provisions to be contained
therein, shall be binding upon Mortgagor and all persons whose interests in the
Secured Property are subject to the lien hereof and upon the purchaser or
purchasers at any foreclosure sale, notwithstanding any redemption from sale,
discharge of the Mortgage indebtedness, satisfaction of any foreclosure decree,
or issuance of any certificate of sale or deed to any purchaser; (d) to enter
into any management, leasing or brokerage agreements covering the Secured
Property; (e) to make all necessary or proper repairs, decorating, renewals,
replacements, alterations, additions,
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betterments and improvements to the Secured Property as to it may deem
judicious; (f) to insure and reinsure the same and all risks incidental to
Mortgagee's possession, operation and management thereof; and (g) to receive all
of such avails, rents, issues and profits; hereby granting full power and
authority to exercise each and every of the rights, privileges and powers herein
granted at any and all times hereafter, without notice to Mortgagor. Without
limiting the generality of the foregoing provisions of this Section, Mortgagee
shall also have all power, authority and duties as provided in Section 15-1703
of the Act.
(8) Mortgagor acknowledges that the Secured Property does not
constitute agricultural real estate, as said term is defined in Section 15-1201
of the Act or residential real estate as defined in Section 15-1219 of the Act.
Mortgagor hereby waives any and all rights of redemption from sale under any
judgment of foreclosure of this Mortgage on behalf of Mortgagor and on behalf of
each and every person acquiring any interest in or title to the Secured Property
of any nature whatsoever, subsequent to the date of this Mortgage. The foregoing
waiver of right of redemption is made pursuant to the provisions of Section 15-
1601(b) of the Act.
(9) At all times, regardless of whether any Loan proceeds have
been disbursed, this Mortgage secures (in addition to the amounts secured
hereby) the payment of any and all Loan commissions, service charges, liquidated
damages, expenses and advances due to or incurred by Mortgagee in connection
with the Loan; provided, however, that in no event shall the total amount
secured hereby exceed two hundred percent (200%) of the face amount of the Note.
(10) At the option of Mortgagee, this Mortgage shall become
subject and subordinate, in whole or in part (but not with respect to priority
of entitlement to insurance proceeds or any Condemnation Proceeds), to any and
all Leases of all or any part of the Secured Property upon the execution by
Mortgagee and recording thereof, at any time hereafter in the appropriate
official records of the County wherein the Secured Property are situated, of a
unilateral declaration to that effect.
4.02 No Election of Remedies. Mortgagee shall be entitled in its sole
-----------------------
discretion to exercise all or any of the rights and remedies herein or in the
Loan Documents provided, or which may be provided by statute, law, equity, or
otherwise in such order and manner as Mortgagee shall elect without impairing
Mortgagee's lien in, or rights to, any of such Loan Documents and without
affecting the liability of any person, firm, corporation or other entity for the
sums secured by the Loan Documents.
4.03 Mortgagee's Right to Release, etc. Mortgagee, in its sole
---------------------------------
discretion, shall have the right to release for such consideration as Mortgagee
may require, any portion of the Secured Property without, as to the remainder of
the Secured Property, in any way impairing or affecting the lien of this
Mortgage, or the priority thereof, or improving the position of any subordinate
lienholder with respect thereto, except to the extent that the Obligations shall
have been reduced by the actual monetary consideration, if any, received by
Mortgagee for such release; and Mortgagee shall have the right to accept by
assignment or pledge any other property in place thereof as Mortgagee may
require without being accountable for so doing to any other lienor. To the
extent permitted by law, neither Mortgagor nor the holder of any lien or
encumbrance affecting the Secured Property or any part thereof shall have the
right to require Mortgagee to xxxxxxxx assets.
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4.04 Mortgagee's Right to Remedy Defaults, etc. Mortgagee shall have the
-----------------------------------------
right to remedy any default or appear in, defend or bring any action or
proceeding to protect its interest in the Secured Property or to foreclose this
Mortgage or collect the Obligations and the costs and expenses thereof
(including reasonable attorneys' fees actually incurred to the extent permitted
by law), which shall be paid by Mortgagor to Mortgagee upon demand with interest
at the Increased Rate. All such costs and expenses incurred by Mortgagee, and
any other costs incurred by Mortgagee pursuant to this Mortgage, with interest
as provided in this Mortgage, shall be secured by this Mortgage.
4.05 Waivers. Mortgagor hereby waives and releases (A) all benefits that
-------
might accrue to Mortgagor by virtue of any present or future laws excepting the
Secured Property, or any part of the proceeds arising from any sale thereof,
from attachment, levy or sale under execution from civil process; (B) all
benefits that might accrue to Mortgagor from requiring valuation or appraisal of
any part of the Secured Property levied or sold on execution of any judgment
recovered for the Obligations; (C) all notices not herein or elsewhere
specifically required of Mortgagor's default or of Mortgagee's exercise, or
election to exercise, any option under any of the Loan Documents; and (D) any
right of redemption to the extent that Mortgagor may lawfully waive same. At no
time will Mortgagor insist upon, or plead, or in any manner whatever, claim or
take any benefit or advantage of any stay or extension or moratorium law and any
exemption from execution or sale of the Secured Property or any part thereof,
whenever enacted, now or at any time hereafter in force, which may affect the
covenants and terms of performance of this Mortgage; nor claim, take or insist
upon any benefit or advantage of any law now or hereafter in force providing for
the valuation or appraisal of the Secured Property or any part thereof, prior to
any sale or sales thereof which may be made pursuant to any provision herein, or
pursuant to the decree, judgment or order of any court of competent
jurisdiction; nor after any such sale or sales, and to the extent permitted by
law, claim or exercise any right under any statute heretofore or hereafter
enacted to redeem the property so sold, or any part thereof, and Mortgagor
hereby expressly waives all benefits or advantages of any such law or laws, and
covenants not to hinder, delay or impede the execution of any power herein
granted or delegated to Mortgagee, but to suffer and permit the execution of
every power as though no such law or laws had been made or enacted. In case of a
sale of the Secured Property, the same may be sold in one parcel, as an
entirety, or in such parcels, manner or order as Mortgagee in its sole
discretion may decide, any provision of law to the contrary notwithstanding.
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4.06 Prepayment Charge. Mortgagor hereby agrees to pay the charge
-----------------
provided in the Note for prepayment of the Obligations, if for any reason any of
said Obligations shall be paid prior to the stated maturity date thereof, even
if and notwithstanding that an Event of Default shall have occurred and
Mortgagee, by reason thereof, shall have declared said Obligations due and
payable, and whether or not said payment is made prior to or at any sale held
under or by virtue of this Article IV. Mortgagor acknowledges that Mortgagee, in
making the loan evidenced by the Note and entering into this Mortgage, is
relying on Mortgagor's creditworthiness and its agreement to repay the
Obligations in strict accordance with the terms set forth in the Note. Mortgagor
acknowledges that Mortgagee would not make the loan without full and complete
assurance by Mortgagor of its agreement to make regular payments of principal
and interest under the Note and its further agreement not to prepay all or any
part of the principal of the Note prior to the final maturity date thereof,
except on the terms expressly set forth herein and in the Note. Therefore, any
prepayment of the Note, whether occurring as a voluntary prepayment by Mortgagor
or occurring upon an acceleration of the principal balance of the Note by
Mortgagee on account of any default by Mortgagor (including, but not limited to,
the making or suffering by Mortgagor, of any transfer or disposition of all or
any portion of the Secured Property or any interest therein as prohibited by
Section 1.11 of this Mortgage) will prejudice Mortgagee's ability to meet its
------------
obligations and to earn the return on the funds advanced to Mortgagor, which
Mortgagee intended and expected to earn when it agreed to make the subject loan
and will also result in other loss and additional expenses to Mortgagee.
Accordingly, in recognition of the foregoing and in consideration of Mortgagee
making the loan secured by this Mortgage at the interest rate and for the term
set forth in the Note, Mortgagor hereby expressly (A) waives any and all rights
it may have under applicable law to prepay without charge or premium all or any
part of the Note, either voluntarily or upon an acceleration of the maturity
date of the Note on account of any default of Mortgagor (including, but not
limited to, the making or suffering by Mortgagor of any transfer or disposition
prohibited by Section 1.11 of this Mortgage) and (B) agrees that if, for any
------------
reason, whether due to the voluntary acceptance by Mortgagee of a prepayment
tendered by Mortgagor or the acceleration by Mortgagee of the maturity date of
the Note, as aforesaid, on account of any such default by Mortgagor, a
prepayment of all or any part of the principal of the Note is made by or on
behalf of Mortgagor, or is otherwise made or occurs in connection with any
reinstatement of the Loan Documents under any foreclosure proceedings, or any
right of redemption exercised by Mortgagor or any other party having the right
to redeem or to prevent any foreclosure of this Mortgage, or upon the
consummation of any foreclosure sale, then Mortgagor or any other party making
any such prepayment shall be obligated to pay, concurrently therewith, the
prepayment charge set forth in the Note, and the payment of such premium shall
be a condition to the making of such prepayment and shall be secured by this
Mortgage. Such prepayment charge shall be paid without prejudice to the right of
Mortgagee to collect any other amounts provided to be paid or to declare a
default hereunder. Nothing herein shall be construed as permitting any partial
prepayment except with Mortgagee's prior written consent thereto obtained in
each instance. Notwithstanding anything contained in this Section 4.06 to the
------------
contrary, no prepayment charge or other fee shall be paid (i) within ninety (90)
days prior to the end of the term of this Mortgage, as provided in the Note, or
(ii) as a result of application of proceeds of a condemnation or destruction of
the Secured Property, or (iii) as a result of an acceleration of the Obligations
pursuant to Section 1.02(F) of this Mortgage.
---------------
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ARTICLE V
MISCELLANEOUS
-------------
5.01 Non-Waiver. The failure of Mortgagee to insist upon strict
----------
performance of any term of this Mortgage shall not be deemed to be a waiver of
any term of this Mortgage. Mortgagor shall not be relieved of its obligation to
pay the Obligations at any time and in the manner provided for its payment in
the Note and this Mortgage by reason of (A) a failure by Mortgagee to comply
with any request of Mortgagor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions of this Mortgage or of the Note or any
other Loan Document, (B) the release, regardless of consideration, of the whole
or any part of the Secured Property or any other security for the Obligations,
or (C) any agreement or stipulation between Mortgagee and any subsequent owner
or owners of the Secured Property or other person extending the time of payment
or otherwise modifying or supplementing the terms of the Note, this Mortgage or
any Loan Document securing or guaranteeing the Obligations or any portion
thereof, without first having obtained the consent of Mortgagor and, in the
latter event, Mortgagor shall continue to be obligated to pay the Obligations at
the time and in the manner provided in the Note and this Mortgage, as so
extended, modified and supplemented, unless expressly released and discharged by
Mortgagee. Regardless of consideration, and without the necessity for any notice
to or consent by the holder of any subordinate lien, encumbrance, right, title
or interest in or to the Secured Property, Mortgagee may release any person at
any time liable for the payment of the Obligations or any portion thereof or any
part of the security held for the Obligations and may extend the time of payment
or otherwise modify the terms of any Loan Documents, including, without
limitation, a modification of the interest rate payable on the principal balance
of the Note, without in any manner impairing or affecting any of the Loan
Documents or the lien thereof or the priority of this Mortgage, as so extended
and modified, as security for the Obligations over any such subordinate lien,
encumbrance, right, title or interest. Mortgagee may resort for the payment of
the Obligations to any other security held by Mortgagee in such order and manner
as Mortgagee, in its discretion, may elect. Mortgagee may take action to recover
the Obligations, or any portion thereof, or to enforce any covenant of this
Mortgage without prejudice to the right of Mortgagee thereafter to foreclose
this Mortgage. Mortgagee shall not be limited exclusively to the rights and
remedies stated in this Mortgage but shall be entitled to every additional right
and remedy now or hereafter afforded by law. The rights of Mortgagee under this
Mortgage shall be separate, distinct and cumulative and none shall be given
effect to the exclusion of the others. No act of Mortgagee shall be construed as
an election to proceed under any one provision of this Mortgage to the exclusion
of any other provision.
5.02 Sole Discretion of Mortgagee. Wherever, pursuant to this Mortgage,
----------------------------
Mortgagee's consent or approval is required, the decision as to whether or not
to consent or approve shall be in the sole discretion of Mortgagee and
Mortgagee's decision shall be final and conclusive, except where this Mortgage
expressly provides to the contrary. If Mortgagor shall seek the approval by or
consent of Mortgagee under this Mortgage and Mortgagee shall fail or refuse to
give such consent or approval, Mortgagor shall not be entitled to any damages
for any withholding of such approval or consent by Mortgagee, it being intended
that Mortgagor's sole remedy shall be an action for injunctive or declaratory
relief, which remedy shall be available only in those cases where Mortgagee has
expressly agreed not to unreasonably withhold its
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consent or approval.
5.03 Recovery of Sums Required To Be Paid. Mortgagee shall have the right
------------------------------------
from time to time to take action to recover any sum or sums which constitute a
part of the Obligations as such sums shall become due, without regard to whether
or not the balance of the Obligations shall be due, and without prejudice to the
right of Mortgagee thereafter to bring an action of foreclosure or any other
action for default(s) or Event(s) of Default by Mortgagor existing at the time
such earlier action was commenced.
5.04 Legal Tender. All payments of principal, interest and any and all
------------
other payments required or provided herein shall be paid in lawful money of the
United States of America which shall be legal tender in payment of all debts and
dues, public and private, at the time of payment, at the office of Mortgagee or
at such other place either within or without the State of Illinois as Mortgagee
may from time to time designate.
5.05 No Merger. If both the lessor's and lessee's estates under any Lease
---------
or any portion thereof which constitutes a part of the Secured Property shall at
any time become vested in one owner, this Mortgage and the lien created hereby
shall not be destroyed or terminated by the application of the doctrine of
merger and in such event, Mortgagee shall continue to have and enjoy all of the
rights and privileges of Mortgagee as to the separate estates. In addition, upon
the foreclosure of the lien created by this Mortgage on the Secured Property
pursuant to the provisions hereof, any Leases or subleases then existing and
created by Mortgagor shall not be destroyed or terminated by application of the
law of merger or as a matter of law or as a result of such foreclosure unless
Mortgagee or any purchaser at any such foreclosure sale shall so elect. No act
by or on behalf of Mortgagee or any such purchaser shall constitute a
termination of any Lease or sublease unless Mortgagee or such purchaser shall
give written notice thereof to such Lessee or sublessee.
5.06 Discontinuance of Actions. In case Mortgagee shall have proceeded to
-------------------------
enforce any right under this Mortgage by foreclosure, sale or entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely, then, in every such case,
Mortgagor and Mortgagee shall be restored to their former positions and rights
hereunder with respect to the Secured Property which shall remain subject to the
lien and security interest of this Mortgage.
5.07 Headings. The headings of the sections, paragraphs and subdivisions
--------
of this Mortgage are for the convenience of reference only, are not to be
considered a part hereof and shall not limit or otherwise affect any of the
terms hereof.
5.08 Notice to Parties. All notices and demands or other communications
-----------------
hereunder shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes when presented personally or sent by certified
or registered mail with return receipt requested or generally recognized
overnight delivery service, addressed to the parties at the addresses stated
below, or at such other address as either party may hereafter notify the other
in writing as aforesaid:
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Mortgagor: OVERSEAS PARTNERS (MADISON PLAZA), LLC
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Legal Department
with a copy to: Xxxxxxxx Xxxxxxx LLP
NationsBank Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
with a courtesy copy to: Overseas Partners Capital Corp.
Xxxxxxxxxx Xxxxx
X.X. Xxx 0000
0 Xxx-xx-Xxxxx Xxxx
Xxxxxxxx XX XX
Bermuda
Attn: Xxxxxx X. Xxxxxx, Esq.
Mortgagee: NEW YORK LIFE INSURANCE COMPANY
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Senior Vice President
Mortgage Finance Dept.
with a copy to: Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Service of any such notice or demand so made shall be deemed effective on the
day of actual delivery as shown by the addressee's return receipt or the
expiration of forty-eight (48) hours after the date sent by generally recognized
overnight delivery service or mailed, whichever is the earlier in time, except
that service of any notice of default or notice of sale provided or required by
law shall, if mailed, be deemed effective on the date of mailing.
5.09 Non-Recourse. If an Event of Default has occurred, Mortgagee shall
------------
have all
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rights reserved in the Note, this Mortgage and every other Loan Document and
shall have full recourse to the Secured Property and to the other collateral
given by Mortgagor to secure the Note, provided, however, that any judgment
obtained by Mortgagee in any proceeding to enforce such rights shall be enforced
only against the Secured Property and such other collateral and Mortgagee shall
have no personal liability under any Loan Document except as hereafter expressly
provided. Notwithstanding the foregoing, Mortgagee shall not in any way be
prohibited from naming Mortgagor or any of its successors or assigns or any
person holding under or through them as parties to any actions, suits or other
proceedings initiated by Mortgagee to enforce such rights or to foreclose its
Mortgage lien or otherwise realize upon any other lien or security interest
created in any other collateral given to secure the payment of the Obligations.
The foregoing restriction shall not apply to, and Mortgagor shall be personally
liable for, any losses, damages, costs and expenses incurred by Mortgagee as a
result of (A) any material misstatement of fact (1) made by Mortgagor or any
person or entity constituting Mortgagor to induce Mortgagee to advance the
principal amount evidenced hereby or (2) contained in any Loan Document, (B)
fraud committed by Mortgagor or any person or entity constituting Mortgagor, (C)
application of any insurance proceeds, condemnation awards, trust funds, or
Rents by Mortgagor or Mortgagor's agents or Mortgagor's authorized
representatives in a manner which is not in accordance with the provisions of
this Mortgage, (D) breach of any representation or warranty contained in
Subsections 2.03C or D hereof, (E) default with respect to any covenant
----------------------
contained in Section 1.05F hereof, (F) any default with respect to Mortgagor's
-------------
obligations to pay real estate taxes and assessments due and payable against the
Secured Property during the time period of Mortgagor's ownership thereof
pursuant to Section 1.02 hereof or to pay insurance premiums pursuant to Section
------------ -------
1.03 hereof, or (G) any loss, damage, expense or liability on the part of
----
Mortgagee (including, without limitation, reasonable attorneys fees and
disbursements actually incurred) arising from, in respect of, as a consequence
of, or in connection with any of the following: (1) the existence of any
circumstance or the occurrence of any action described in clause (i) of
Subsection 1.05F(1)(d) hereof; (2) claims asserted by any person or entity
----------------------
(including, without limitation, any governmental agency or quasi-governmental
authority, board, bureau, commission, department, instrumentality or public
body, court, or administrative tribunal), in connection with or in any way
arising out of the presence, storage, use disposal, generation, transportation,
or treatment of any Hazardous Material on, in or under the Secured Property; (3)
the violation or claimed violation of any Hazardous Materials Laws in regard to
the Secured Property, whether such violation or claimed violation occurred prior
to or after the date of this Mortgage and regardless of whether such violation
occurred prior to or after the time that Mortgagor became owner of the Secured
Property but only to the extent such violation or claimed violation relates to
or arises or occurs prior to or during ownership or operation of the Secured
Property by Mortgagor or as a result of the acts or omissions of Mortgagor,
Mortgagor's affiliates, Mortgagor's agents, or authorized representatives of
Mortgagor or its affiliates; (4) the preparation of an environmental audit on
the Secured Property, whether conducted or authorized by Mortgagor, Mortgagee,
or a third party or the implementation or any environmental audit's
recommendations; or (5) all agreements and indemnification obligations under
that certain Environmental Indemnity Agreement of even date herewith in favor of
Mortgagee.
5.10 Successors and Assigns Included In Parties. Subject to the
------------------------------------------
provisions of Section 1.11, whenever in this Mortgage one of the parties hereto
------------
is named or referred to, the heirs, legal representatives, successors and
assigns of such party shall be included and all covenants and agreements
contained in this Mortgage by or on behalf of Mortgagor or by or on behalf of
Mortgagee shall bind and inure to the benefit of their respective heirs, legal
representatives,
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successors and assigns, whether so expressed or not. Mortgagee shall have the
right at any time, and without requiring the consent of the Mortgagor, to
appoint and utilize a "servicing agent" or "loan correspondent" for the purpose
of servicing the loan contemplated herein. Mortgagee agrees to so notify
Mortgagor of the appointment of any such directives and requests of such party
as though promulgated directly by Mortgagee.
5.11 Number and Gender. Whenever the singular or plural number, masculine
-----------------
or feminine or neuter gender is used herein, it shall equally include the other.
5.12 Changes and Modifications. This Mortgage cannot be changed except by
-------------------------
an agreement in writing, signed by the party against whom enforcement of any
change or modification is sought.
5.13 Applicable Law. This Mortgage shall be construed and enforced
--------------
according to the laws of the State of Illinois.
5.14 Invalid Provisions to Affect No Others. The unenforceability or
--------------------------------------
invalidity of any provision or provisions of this Mortgage as to any persons or
circumstances shall not render that provision or those provisions unenforceable
or invalid as to any other persons or circumstances, and all provisions hereof,
in all other respects, shall remain valid and enforceable.
5.15 Usury Savings Clause. It is the intention of Mortgagor and Mortgagee
--------------------
to conform strictly to the usury laws now or hereafter in force in the State of
Illinois and any interest payable under the Note, this Mortgage, or any of the
other Loan Documents executed by Mortgagor, to the extent that any sums secured
hereby or the advancing of such sums by Mortgagee shall not be exempt from such
laws, shall be subject to reduction to the amount equal to the maximum non-
usurious amount allowed under the usury laws of Illinois as now or hereafter
construed by the courts having jurisdiction over such matters. In the event the
maturity of the Note is accelerated by reason of any provision of this Mortgage
including, without limitation, an election by Mortgagee resulting from an Event
of Default (or an event permitting acceleration) under this Mortgage or any
other Loan Documents, voluntary prepayment of the Note, or otherwise, then
earned interest may never include more than the maximum amount permitted by law,
computed from the dates of each advance of the Obligations until payment, and
any interest in excess of the maximum amount permitted by law shall be canceled
automatically and, if theretofore paid, shall at the option of Mortgagee either
be rebated to Mortgagor or credited on the principal amount of the Note or if
all principal has been repaid, then the excess shall be rebated to Mortgagor.
The aggregate of all interest (whether designated as interest, service charges,
points or otherwise) contracted for, chargeable, or receivable under the Note,
this Mortgage, or any other Loan Document shall under no circumstances exceed
the maximum legal rates upon the unpaid principal balance of the Note remaining
unpaid from time to time. In the event such interest does exceed the maximum
legal rate, it shall be deemed a mistake and such excess shall be canceled
automatically and if theretofore paid, rebated to Mortgagor or credited on the
principal amount of the Note, or if the Note has been repaid, then such excess
shall be rebated to Mortgagor.
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5.16 No Statute of Limitations. The pleadings of any statute of
-------------------------
limitations as a defense to any and all obligations secured by this Mortgage are
hereby waived to the full extent permissible by law.
5.17 Late Charges. In the event that any installment of principal,
------------
interest or escrow deposit shall become overdue, a "late charge" of four cents
($.04) for each dollar ($1.00), or part thereof so overdue, may be charged to
Mortgagor by Mortgagee for the purpose of defraying Mortgagee's expenses
incident to handling such delinquent payment. This charge shall be in addition
to, and not in lieu of, any other remedy Mortgagee may have and is in addition
to any reasonable fees and charges of any agents or attorneys which Mortgagee is
entitled to employ on any default hereunder whether authorized herein or by law.
Such "late charges", if not previously paid, shall, at the option of Mortgagee,
be added to and become part of the succeeding monthly payment to be made under
the Note and secured by this Mortgage.
5.18 Waiver of Jury Trial. Mortgagor hereby waives any right to trial by
--------------------
jury with respect to any action or proceeding (a) brought by Mortgagor,
Mortgagee or any other Person relating to (i) the Obligations and/or any
understandings or prior dealings between the parties hereto or (ii) the Loan
Documents, or (b) to which Mortgagee is a party.
5.19 Continuing Effectiveness. This Mortgage shall cover any and all
------------------------
advances made pursuant to the Loan Documents, rearrangements and renewals of the
Obligations and all extensions in the time of payment thereof, whether such
advances, extensions or renewals are evidenced by new promissory notes or other
instruments hereafter executed and irrespective of whether filed or recorded.
Likewise, the execution of this Mortgage shall not impair or affect any other
security which may be given to secure the payment of the Obligations, and all
such additional security shall be considered as cumulative. The taking of
additional security, execution of partial releases of the security, or any
extension of time of payment of the Obligations shall not diminish the force,
effect or lien of this Mortgage and shall not affect or impair the liability of
any maker, surety or endorser for the payment of the Obligations.
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date and year
first above written.
MORTGAGOR
OVERSEAS PARTNERS (MADISON PLAZA), LLC, an Illinois
limited liability company
By: Overseas Partners (333), Inc., an Illinois
corporation, Manager
By: /s/ Xxxxxxx X Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------------
Its: Vice President
------------------------------------
STATE OF Georgia )
------------
) ss
COUNTY OF Xxxx )
------------
I, Xxxx Xxxxx Xxxxxxxxxx , a notary public in and for said County, in the
---------------------
State aforesaid, DO HEREBY CERTIFY that Xxxxxxx X Xxxxxxx, the Vice President of
-----------------
Overseas Partners (333) Inc., personally known to me to be the same person whose
----------------------------
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that he/she signed, sealed and delivered the said
instrument in his/her capacity as Vice President of such Company as his/her free
---------------- ---------
and voluntary act, for the uses and purposes therein set forth.
GIVEN under my hand and official seal, this 13th day of December, 1998.
-----
/s/ Xxxx Xxxxx Xxxxxxxxxx
-----------------------------------------
Notary Public
My commission expires: ------------------
Notary Public, Xxxx Count, Georgia
My Commision Expires January 28, 2002
THIS TABLE OF CONTENTS IS PROVIDED FOR CONVENIENCE ONLY AND IS NOT A PART OF THE
ATTACHED MORTGAGE.
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