xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXX XXX ASSOCIATES, LLC,
a New York limited liability company,
having an office at c/o Acadia Realty Trust,
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxx Xxxx 00000
AND
FLEET NATIONAL BANK,
a national banking association,
having an office at 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
______________________________
MORTGAGE AND SECURITY AGREEMENT AND
ASSIGNMENT OF LEASES AND RENTS
______________________________
Xxxxxxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000, in the County of Nassau,
State of New York, as more particularly described in the Mortgage
Tax Map Designation
Xxxxxxxxx Xxxxxxxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Parcel One Parcel Two Parcel Three
State: New York New York New York
County: Nassau Nassau Nassau
Town: North Hempstead North Hempstead North Hempstead
District: N/A N/A N/A
Section: 4 4 4
Block: 129 129 129
Lots: 10, 14B, 00X 00 0, 00X, 00X
Leasehold Mortgage as to Parcel One and Parcel Two and a Mortgage on the Fee as
to Parcel Three
================================================================================
After recording, please return to:
XXXXX XXXXXXXXXX LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxxxx, Esq.
MORTGAGE AND SECURITY AGREEMENT AND
ASSIGNMENT OF LEASES AND RENTS
THIS AGREEMENT made as of the 1st day of December, 2003, by and between
Port Bay Associates, LLC, a New York limited liability company, having an office
at c/o Acadia Realty Trust, 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxx
Xxxx 00000 (hereinafter referred to as the "Mortgagor") and FLEET NATIONAL BANK,
a national banking association, having an office at 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as the "Mortgagee"),
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Mortgagor is the owner of a fee interest in Parcel Three
and is owner of the leasehold interest in Parcel One and Parcel Two, all as
described in Exhibit A attached hereto (hereinafter referred to as the
"Premises");
WHEREAS, Mortgagor has executed and delivered its note (the "Note") to
Mortgagee in the principal amount of $3,990,135.17 or so much thereof as may be
advanced thereunder (said principal sum, interest and all other sums which may
or shall become due under the Note and/or this Mortgage pursuant to the
provisions hereof, being hereinafter collectively referred to as the "Debt" or
"Indebtedness") and in order to secure the payment of the Debt, Mortgagor has
executed and delivered this mortgage (the "Mortgage"); and
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Mortgagor hereby represents and warrants to and covenants and agrees with
Mortgagee as follows:
As security for payment of the Debt pursuant to the Note, the Mortgagor
hereby gives, grants, bargains, sells, warrants, aliens, remises, releases,
conveys, assigns, transfers, mortgages, hypothecates, deposits, pledges, sets
over and confirms unto the Mortgagee all of its estate, the right, title and
interest of the Mortgagor, now owned or hereafter acquired, in and to the
following property, rights and interests (such property, rights and interests
being hereinbefore and hereinafter collectively referred to as the "Mortgaged
Property"):
(a) the Premises;
(b) The estate, right, title and interest of the Mortgagor, as Tenant,
in and to the Ground Lease, as defined in Exhibit C hereto (including the
leasehold interest created and granted thereby), the Premises, and all of
the right, title and interest of Mortgagor in and to the building and
equipment on the Premises, including without limitation (a) all rights of
the Mortgagor to exercise any election or option to make any decision or
determination or to give any notice, consent, waiver or approval, or to
take any other action under or in respect of the Ground Lease and (b) all
modifications, extensions, and renewals of the Ground Lease, and all
credits, deposits of the Mortgagor as tenant thereunder, including but not
limited to, the options and rights of the Mortgagor to renew the Ground
Lease for any succeeding term or terms thereof, and (c) and credits,
deposits, options, purchase options, privileges and rights of the Mortgagor
under the Ground Lease, including but not limited to the right, if any, to
renew or extend the Ground Lease for succeeding term or terms or to acquire
fee title to or other interest in all or any portion of the Premises or the
Improvements, and (d) all of the Mortgagor's rights and remedies at any
time arising under or pursuant to Section 365(h) of the Bankruptcy Code, 11
U.S.C.ss.101 et seq. (the "Bankruptcy Code"), including, without
limitation, all of the Mortgagor's right thereunder to remain in possession
of the Premises and the Improvements;
(c) all buildings and improvements now or hereafter located on the
Premises (hereinafter referred to as the Improvements);
(d) all easements, rights-of-way, 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, and appurtenances of any nature whatsoever, in any way
belonging, relating or pertaining to the Mortgaged Property and all land
lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Premises to the center line thereof;
(e) all machinery, apparatus, equipment, fittings, fixtures and other
property of every kind and nature whatsoever owned by the Mortgagor, or in
which the Mortgagor has or shall have an interest, now or hereafter located
upon the Mortgaged Property, or appurtenances hereto, and usable in
connection with the present or future operation and occupancy of the
Mortgaged Property and all building equipment, materials and supplies of
any nature whatsoever owned by the Mortgagor, or in which the Mortgagor has
or shall have an interest, now or hereafter located upon the Mortgaged
Property (hereinafter collectively referred to as the Equipment), and the
right, title and interest of the Mortgagor in and to any of the Equipment
which may be subject to any security agreements (as defined in the Uniform
Commercial Code of the State in which the Mortgaged Property is located),
superior in lien to the lien of the Mortgages;
(f) all awards or payments, including interest thereon, and the right
to receive the same, which may be made with respect to the Mortgaged
Property, whether from the exercise of the right of eminent domain
(including any transfer made in lieu of the exercise of said right), or for
any other injury to or decrease in the value of the Mortgaged Property;
(g) other than the Ground Lease, all leases and other agreements
affecting the use or occupancy of the Mortgaged Property now or hereafter
entered into (hereinafter referred to as the "Leases") and the right to
receive and apply the rents, issues and profits of the Mortgaged Property
(hereinafter referred to as the "Rents") to the payment of the Debt, after
the occurrence of an Event of Default;
(h) all proceeds of and any unearned premiums on any insurance policies
covering the Mortgaged Property, including, without limitation, the right
to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Mortgaged Property;
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(i) the right, in the name and on behalf of the Mortgagor, to appear in
and defend any action or proceeding brought with respect to the Mortgaged
Property, and to commence any action or proceeding to protect the interest
of the Mortgagee in the Mortgaged Property;
(j) all rents, royalties, issues, profits, revenue, income, recoveries,
reimbursements and other benefits of the Mortgaged Property (hereinafter,
the "Rents") and all leases of the Mortgaged Property or portions thereof
now or hereafter entered into and all right, title and interest of
Mortgagor thereunder, including, without limitation, cash, letters of
credit or securities deposited thereunder to secure performance by the
lessees of their obligations thereunder, whether such cash, letters of
credit or securities are to be held until the expiration of the terms of
such leases or applied to one or more of the installments of rent coming
due immediately prior to the expiration of such terms, and including any
guaranties of such leases and any lease cancellation, surrender or
termination fees in respect thereof, all subject, however, to the
provisions of Section 4.1;
(k) all (a) development work product prepared in connection with the
Premises, including, but not limited to, engineering, drainage, traffic,
soil and other studies and tests; water, sewer, gas, electrical and
telephone approvals, taps and connections; surveys, drawings, plans and
specifications; and subdivision, zoning and platting materials; (b)
building and other permits, rights, licenses and approvals relating to the
Premises; (c) contracts and agreements (including, without limitation,
contracts with architects and engineers, construction contracts and
contracts for the maintenance, management or leasing of the Premises),
contract rights, logos, trademarks, trade names, copyrights and other
general intangibles used or useful in connection with the ownership,
operation or occupancy of the Premises or any part thereof; (d) financing
commitments (debt or equity) issued to Mortgagor in respect of the Premises
and all amounts payable to Mortgagor thereunder; (e) contracts for the sale
of all or any portion of the Premises, the Improvements or the Chattels,
and all amounts payable by the purchasers thereunder; (f) operating and
other bank accounts, and monies therein, of Mortgagor relating to the
Premises, including, without limitation, any accounts relating to real
estate taxes or assessments; (g) interest rate protection agreements
entered into by Mortgagor in respect of the Loan; and (h) commercial tort
claims related to the Premises, the Improvements or the Chattels;
(l) all rights of Mortgagor under promissory notes, letters of credit,
electronic chattel paper, proceeds from accounts, payment intangibles, and
general intangibles related to the Premises, as the terms "accounts",
"general intangibles", and "payment intangibles" are defined in the
applicable Uniform Commercial Code Article 9, as the same may be modified
or amended from time to time;
(m) all other assets of Mortgagor related in any way to the Premises,
subject to certain limitations that may be set forth herein; and
(n) all proceeds of the conversion, voluntary or involuntary, of any of
the foregoing into cash or liquidated claims, including, without
limitation, proceeds of insurance and condemnation awards, and all rights
of Mortgagor to refunds of real estate taxes and assessments.
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ARTICLE I
Certain Definitions
The Mortgagor and the Mortgagee agree that, unless the context
otherwise specifies or requires, the following terms shall have the meanings
herein specified, such definitions to be applicable equally to the singular and
to the plural forms of such terms.
"Acadia" shall mean Acadia Realty Trust, a Maryland real estate
investment trust with offices at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxx
Xxxxxx, Xxx Xxxx 00000, and its successors and/or assigns.
"Accounting Principles" shall mean the accounting principles utilized
in the preparation of the operating statements for the Mortgaged Premises
heretofore delivered to the Mortgagee or income tax basis of accounting.
"Affiliate" shall mean (a) if with respect to a corporation, (i) any
officer or director thereof and any person or entity who or which is, directly
or indirectly, the legal or beneficial owner of more than ten (10%)percent of
any class of shares or other equity security of such corporation, or (ii) any
person or entity who or which, directly or indirectly, controls or is controlled
by or is under common control with such corporation; (b) if with respect to a
partnership or venture, any (i) general partner, (ii) general partner of a
general partner, (iii) partnership with a common general partner, (iv)
coventurer thereof, or (v) any person, trust, corporation, partnership, venture
or other entity who or which, directly or indirectly, controls or is controlled
by or is under common control with such partnership; and if any general partner
or general partner of a general partner or coventurer is a corporation, any
person or entity which is an Affiliate as defined in clause (a) above of such
corporation; and (c) if with respect to a limited liability company, (i) any
manager thereof and any person or entity who or which is, directly or
indirectly, the legal or beneficial owner of more than ten (10%) percent of any
class of the membership interests of such limited liability company, or (ii) any
person or entity who or which, directly or indirectly, controls or is controlled
by or is under common control with such limited liability company and if any
member which is the legal or beneficial owner of more than 10% of any class of
membership interests is a corporation, any person or entity which is an
Affiliate (as defined in clause (a) above) of such corporation. "Controls"
(including the correlative meanings of "controlled by" and "under common control
with") means effective power, directly or indirectly, to direct or cause the
direction of the management and policies of such person or entity.
"Appraised Value" shall mean the appraised value of the Mortgaged
Premises, as determined by an independent appraiser selected by the Mortgagee
and reasonably acceptable to the Mortgagor. The Mortgagee may require that such
an appraisal be performed at any time. Appraised Value shall be determined
utilizing an appraisal method consistent with that used in determining the
Appraised Value in connection with entering into the Note and Mortgage. The
Mortgagors shall be responsible for the cost of up to one appraisal per annum if
requested by Mortgagee.
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"Authorized Representative" shall mean Xxxxxxx Xxxxxx, Xxxxxx Xxxxxxx,
Xxxxxx Xxx, Xxx Xxxxxxx or any other person or persons designated by Mortgagor,
in a writing delivered to Mortgagee, as an Authorized Representative.
"Default Rate" shall mean the Involuntary Rate (as such term is defined
in the Note).
"Due and payable" when used with reference to the principal of, or
premium or interest on, or when referring to any and all other sums secured by
this Mortgage or any other of the Loan Documents shall mean due and payable,
whether at the monthly or other date of payment or at the date of maturity
specified in the Note, this Mortgage or the other Loan Documents; or by
acceleration or call for payment as provided in the Note, hereunder or in the
other Loan Documents, or, in the case of Impositions, the last day upon which
any charge may be paid without penalty and/or interest.
"Events of Default" shall have the meaning assigned to such term in
Section 6.1 of this Mortgage.
"Full Force and Effect" shall mean, as to any lease, that such lease
shall be in full force and effect, there shall be no material default by the
tenant thereunder or default by the landlord thereunder or other act or
condition or circumstance giving or which may give, without the giving of any
further notice, the tenant or the landlord the right to terminate any lease and,
if requested by the Mortgagor and required by its lease, the tenant shall have
delivered to the Mortgagor an estoppel certificate in form and substance
reasonably satisfactory to the Mortgagee.
"GAAP" shall mean Generally Accepted Accounting Principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable in the circumstances as of the
date in question, consistently applied within a period and from period to
period, provided, however, that if employment of more than one principle shall
be permissible at such time in respect to a particular accounting matter, "GAAP"
shall refer to the principle which is then employed by Acadia, the Managing
Member or Mortgagor, as the case may be, with the concurrence of the independent
certified public accountants of Debtor.
"Governmental Authorities" shall mean all federal, state,
county, municipal and local governments and all departments, commissions,
boards, bureaus and offices thereof, having or claiming jurisdiction over the
Mortgaged Premises or any part thereof.
"Ground Lease" or "Lease" means that certain agreement of lease by and
between Soundview Shopping Center, a general partnership having an office at
Soundview Shopping Center, c/o Mr. B.V. Xxxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000 ("Landlord"), Port Bay Associates, as tenant, dated as of
December 19, 1985, a Memorandum of Lease with respect thereto was recorded in
5
the Office of the Clerk of County of Nassau February 3, 1986 in Liber 9702 at
Page 404, as amended by that certain First Amendment to Agreement of Lease,
dated as of January 1999 by and between Landlord and Mortgagor (the "First
Amendment").
"Guaranty" or "Indemnity" means, individually, jointly, severally and
collectively, (i) that certain loan guaranty dated of even date hereof by the
Indemnitor in favor of Mortgagee, as the same may be extended and or otherwise
modified from time to time (the "Loan Guaranty"), (ii) that certain
Reaffirmation Agreement with respect to the hazardous material guaranty and
indemnity agreement dated of even date hereof by the Indemnitor in favor of
Mortgagee, as the same may be extended and or otherwise modified from time to
time (the "Hazardous Material Guaranty"), (iii) that certain ADA guaranty and
indemnity agreement dated of even date hereof by the Indemnitor in favor of
Mortgagee, as the same may be extended and or otherwise modified from time to
time (the "ADA Guaranty").
"Impositions" shall mean all duties, taxes (other than income taxes),
water and sewer rents, rates and charges, assessments (including, but not
limited to, all assessments for public improvements or benefit), charges for
public utilities, excises, levies, license and permit fees and other charges,
ordinary or extraordinary, whether foreseen or unforeseen, of any kind and
nature whatsoever, which prior to or during the term of this Mortgage will have
been or may be laid, levied, assessed or imposed upon or become due and payable
out of or in respect of, and become a lien on the Premises, the Improvements,
Building Service Equipment, Furnishings or any other property or rights included
in the Mortgaged Premises, or any part thereof or appurtenances thereto, or
which are levied or assessed against the rent and income received by the
Mortgagor from the Space Leases (as defined in Section 1.15) by virtue of any
present or future law, order or ordinance of the United States of America or of
any state, county or local government or of any department, office or bureau
thereof or of any other Governmental Authority.
"Indemnitor", "Guarantor", "Guarantors" or "Indemnitors" means
individually, jointly, severally and collectively, the Mortgagor and the
Managing Member.
"Legal Requirements" shall mean all present and future laws,
ordinances, rules, regulations and requirements of all Governmental Authorities,
and all orders, rules and regulations of any national or local board of fire
underwriters or other body exercising similar functions, foreseen or unforeseen,
ordinary or extraordinary, which may be applicable to the Mortgaged Premises or
any part thereof, or to the sidewalks, alleyways, passageways, curbs and vaults
adjoining the same, or to the use or manner of use of any of the foregoing, or
to the owners, tenants, or occupants thereof, whether or not any such law,
ordinance, order, rule, regulation or requirement shall necessitate structural
changes or improvements or shall interfere with the use or enjoyment of any of
the foregoing, and shall also mean and include all requirements of the policies
of public liability, fire and all other insurance at any time in force with
respect to any of the foregoing.
"Loan Documents" means the Note, this Mortgage, the Guaranty and all
other documents, including, without limitation, collateral documents, security
agreements, UCC financing statements, assignments of leases and rents,
guaranties, indemnities, title insurance, assignments, subordination agreements,
non-disturbance agreements, leases affecting the property encumbered by the
6
Mortgage, and any other document, mortgage, agreement, assignment or other
instrument executed by Mortgagor and/or Indemnitor, as the case may be, or any
other third party pursuant hereto or thereto or in connection herewith or in
connection with the loan evidenced by the Note and secured by this Mortgage, as
the same may be extended and or otherwise modified from time to time.
"Managing Member" shall mean Acadia Realty Limited Partnership, a
Delaware limited partnership having an office at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxx Xxxxxx, Xxx Xxxx 00000, and its successors and/or assigns.
"Mortgagor" shall mean the Mortgagor herein named, any subsequent owner
or owners of the Mortgaged Premises, and its or their respective successors and
assigns; provided, however, that this definition shall not be construed to limit
the provisions of Section 2.8.1 hereof.
"Net Operating Income" shall mean, with respect to the applicable
period, the aggregate rental and other receipts (unless excluded pursuant
hereto) of the Mortgaged Premises (actual results with respect to the preceding
six-months and pro forma with respect to the following six-months during such
period less the aggregate amount of all operating expenses of the Mortgaged
Premises during such period, in each case determined in accordance with the
Accounting Principles. For purposes of the determination of Net Operating
Income, operating expenses shall include, without limitation, all real estate
taxes (but not in excess of the pro rata portion of such real estate taxes
applicable to the applicable period covered by the statement), water and sewer
charges, utility charges, insurance premiums (but not in excess of the amounts
applicable to the applicable period covered by the statement), salaries and
benefits of all employees engaged in the operation, maintenance or management of
Mortgaged Premises, all costs of ordinary and necessary maintenance, cleaning
and repair, costs of snow and rubbish removal and security services. Net
Operating Income shall, however, (a) exclude from receipts all amounts paid to
the Mortgagor for tenant alterations in connection with the leasing of space at
the Mortgaged Premises, all amounts payable to the Mortgagor under leases with
Affiliates of the Mortgagor, as tenant, or with Mortgagor, as tenant (unless the
Mortgagee otherwise agrees) and, with respect to any lease providing for a
reduction in the rentals payable under such lease at any time during the term
thereof, base rentals in excess of the lowest base rentals payable under such
lease (other than during any period of rent concessions made with respect to
consecutive monthly periods commencing with the first month of the term of such
lease), and (b) exclude from expenses payments of principal and interest on the
Note, capital expenditures, leasing commissions, and other expenses payable to
the Mortgagee pursuant to the Note or any of the other Loan Documents. Net
Operating Income shall be determined without regard to extraordinary items of
income and of expense. Each lease, the rental or other income from which was
included in the calculations of Net Operating income, must in Full Force and
Effect as of the date Net Operating Income is being determined.
"Net Worth" shall mean the net worth of Acadia as shown on its
financial statements, and as subsequently determined in accordance with GAAP,
used in Acadia's most recent statements.
"Obligations" or "Indebtedness" shall mean (a) the aggregate unpaid
principal amount of, and accrued and unpaid interest on, the Note, plus (b) any
and all indebtedness, obligations and other liabilities of the Mortgagor to the
7
Mortgagee arising out of or in connection with or otherwise relating to the Note
or any of the Loan Documents, and/or any agreement(s) of the Mortgagor with the
Mortgagee pertaining thereto, including, without limitation, any Hedge
Agreement; in each case whether now or hereafter existing, direct or indirect,
absolute or contingent, joint, several or independent, due or to become due,
liquidated or unliquidated, held or to be held by the Mortgagee and whether
created directly or acquired by assignment or otherwise.
"Permitted Encumbrances" shall mean each of the exceptions to coverage
set forth in SCHEDULE B, PART I (other than the so-called standard exceptions
set forth therein as items 1-7, inclusive) of the title policy insuring the lien
of this Mortgage issued by Commonwealth Land Title Insurance Company of New York
and accepted by the Mortgagee with respect to the Premises, and such other items
as the Mortgagee, in its sole discretion, may approve in writing.
"Person" shall mean and include any individual, corporation,
partnership, unincorporated association, trust, governmental agency or authority
or other entity.
"Prime Rate" shall have the meaning assigned to such term in the Note.
"Space Lease" shall mean any and all leases, subleases, licenses,
concession agreements or any other form of agreement, however denominated
(written or verbal, now or hereafter in effect), in which the Mortgagor (or its
predecessor in interest as owner of the Mortgaged Premises in the case of
existing Space Leases) now or hereafter grants a possessory interest in and to,
or the right to use and occupy the Mortgaged Premises, or any portion thereof,
and all renewals, extensions, modifications, amendments and other agreements
affecting the same.
"Space Tenant" shall mean the tenant or other user or occupant of part
or all of the Mortgaged Premises under any Space Lease.
"State" or "New York" shall mean the State of New York.
ARTICLE II
Particular Covenants of the Mortgagor
-------------------------------------
The Mortgagor covenants and agrees as follows:
2.1. Payment of Obligations. The Mortgagor shall duly and punctually
pay to the Mortgagee, as and when due and payable, the Obligations; provided,
however, that the maximum principal amount which is, or under any contingency
may be, secured hereby is $3,990,135.17 plus protective advances under Section
7.3 and any amounts due under any Hedge Agreement.
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2.2. General Representations, Covenants and Warranties.
--------------------------------------------------
2.2.1. The Mortgagor represents and warrants that: (a) it has a good and
marketable title to an indefeasible fee estate in Parcel Three and it has a good
and marketable title to a leasehold estate in Parcel One and Parcel Two, subject
to no lien, charge or encumbrance, except for Permitted Encumbrances; (b) it
owns the Building Service Equipment and Furnishings free and clear of all liens
and claims other than in favor of the Mortgagee; (c) this Mortgage is and will
remain a valid and enforceable first lien on the Mortgaged Property subject only
to the exceptions referred to above; (d) the execution and delivery of this
Mortgage and the Note has been duly authorized by the Mortgagor, the Managing
Member and Acadia, the Managing Member's general partner, and that there is no
provision in any document that evidences or establishes the existence of the
Mortgagor, Managing Member or Acadia requiring further consent for such action
by any other entity or person; (e) Mortgagor is a limited liability company duly
formed, validly existing and in good standing under the laws of the State of New
York; Managing Member is a limited partnership duly formed, validly existing and
in good standing under the laws of the State of Delaware, and is in good
standing in the State of New York, and is authorized to conduct business in the
State of New York; and the General Partner is a trust duly formed, validly
existing and in good standing under the laws of the State of Maryland, and is in
good standing in the State of New York, and is authorized to conduct business in
the State of New York; (f) Mortgagor and Indemnitor each has (i) all necessary
licenses, authorizations, registrations, permits and/or approvals and (ii) full
power and authority to own its properties and carry on its business as presently
conducted and the execution and delivery by it of and performance of its
obligations under, this Mortgage, the Note and the other Loan Documents to which
it is a party will not result in the Mortgagor and/or Indemnitor being in
default under any provisions of any document which evidences or establishes the
existence of the Mortgagor and/or the Indemnitor or of any mortgage, credit or
other agreement to which Mortgagor and/or Indemnitor is a party or which affects
the Mortgagor and/or Indemnitor or the Premises, or any part thereof; (g) it
will preserve such title, and forever warrant and defend the same and the Ground
Lease to the Mortgagee, and will forever warrant and defend the validity and
priority of the lien hereof against the claims of all persons and parties
whomsoever; (h) the Mortgagor and Indemnitor each is now able to meet their
respective debts as they mature, the fair market value of their respective
assets exceeds their respective liabilities, and no bankruptcy or insolvency
proceedings are pending or contemplated by or against the Mortgagor and/or
Indemnitor; (i) all reports, statements and other data furnished by the
Mortgagor and/or Indemnitor in connection with the loan evidenced by the Note
are true and correct and complete in all material respects and do not omit to
state any fact or circumstance necessary to make the statements contained
therein not materially misleading; and (j) to the knowledge of Mortgagor, there
are no actions, suits, or proceedings pending against or affecting the Mortgagor
or the Mortgaged Property.
2.3. To Maintain Priority of Lien and Preserve Existence.
----------------------------------------------------
2.3.1. This Mortgage is and will be maintained as a valid first mortgage
lien on the Mortgaged Premises, and the Mortgagor will not, directly or
indirectly, create or suffer or permit to be created, or to stand against the
Mortgaged Premises or any portion thereof, or against the rents, issues and
profits therefrom, and will promptly discharge, any lien or charge prior to or
upon a parity with or junior to the lien of this Mortgage other than the
9
Permitted Encumbrances; provided, however, that the Mortgagor shall not be
required to pay any Imposition prior to the time it shall become due and payable
subject to the provisions of Section 2.4.1 hereof, and nothing herein contained
shall prevent the Mortgagor from contesting the validity of any such Imposition
in accordance with the provisions of Section 2.4.4. The Mortgagor will keep and
maintain the Mortgaged Premises, and every part thereof, free from all liens or
lien notices, of Persons supplying labor and/or materials in connection with any
construction, alteration, repair, improvement or replacement of the Improvements
or of the Building Service Equipment and Furnishings. If any such lien shall be
filed against the Mortgaged Premises, or any part thereof, the Mortgagor
promptly (but in any event within thirty (30) days of receiving notice of such
lien) shall discharge the lien of record, by bonding or otherwise. The Mortgagor
shall exhibit to the Mortgagee, upon request, appropriate receipts or other
satisfactory evidence of the payment of the Impositions or any other item which
may, if not paid, give rise to a lien against the Mortgaged Premises.
2.3.2. The Mortgagor will, so long as it is owner of the Mortgaged
Property or any part thereof, do all things necessary to preserve and keep in
full force and effect its existence, rights and privileges as a limited
liability company under the laws of the state of New York and will comply with
all regulations, rules, ordinances, statutes, orders and decrees of any
governmental authority or court applicable to the Mortgagor or to the Mortgaged
Property or any part thereof.
2.4. To Pay Impositions.
2.4.1. The Mortgagor will pay or cause to be paid, as and when due and
payable, all Impositions levied upon the Mortgaged Premises or any part thereof.
However, if by law, any Imposition may at the option of the taxpayer be paid in
installments (whether or not interest shall accrue on the unpaid balance
thereof), the Mortgagor shall have the right to exercise such option and to pay
such Imposition, or cause it to be paid (together with any accrued interest on
the unpaid balance) in installments as they fall due and before any fine,
penalty, further interest or cost may be added thereto.
2.4.2. Upon demand of the Mortgagee in the case of Impositions and, if an
Event of Default shall exists, upon demand of the Mortgagee in the case of
insurance premiums, the Mortgagor shall deposit with the Mortgagee a sum which
bears the same relation to the annual insurance premiums for all insurance
required by the terms hereof and real estate taxes and assessments assessed
against the Mortgaged Premises for the insurance period or tax year then in
effect, as the case may be, as the number of months elapsed as of the date of
such demand since the last preceding installment of said premiums or taxes or
assessments shall have become due and payable bears to twelve (12). For the
purpose of this computation, the month in which such last preceding installment
of premiums or real estate taxes or assessments became due and payable and the
month in which such demand is given shall be included and deemed to have
elapsed. On the first day of the month next succeeding the month in which such
demand is given, and thereafter on the first day of each and every month during
the term of this Mortgage, the Mortgagor shall deposit with the Mortgagee a sum
equal to one-twelfth of such insurance premiums and such taxes and assessments
for the then-current insurance period and tax year, so that as each installment
of such premiums and taxes and assessments shall become due and payable, the
Mortgagor shall have deposited with the Mortgagee a sum sufficient to pay the
10
same. All such deposits shall be received and held as part of such deposit by
the Mortgagee (all such deposits to be held in an account without interest
thereon) and shall be applied to the payment of each installment of such
premiums and taxes and assessments as they shall become due and payable. The
Mortgagee shall, upon demand, furnish evidence to the Mortgagor of the making of
each such payment. If the amount of such premiums and taxes and assessments has
not been definitely ascertained at the time when any such monthly deposits are
required to be made, the Mortgagor shall make such deposits based upon the
amount of such premiums and taxes and assessments for the preceding year,
subject to adjustment as and when the amount of such premiums and taxes and
assessments are ascertained. If at any time when any installment of such
premiums and such taxes and assessments becomes due and payable the Mortgagor
shall not have deposited a sum sufficient to pay the same, the Mortgagor shall,
within five (5) days after demand, deposit any deficiency with the Mortgagee.
Upon payment in full of the Obligations, any remaining amount on deposit with
the Mortgagee shall be repaid to the Mortgagor or Person lawfully entitled
thereto. If an Event of Default shall occur and be continuing, the Mortgagee
may, at its option, apply all or any portion of the amounts then on deposit with
the Mortgagee pursuant to this Section 2.4.2 to payment of the Obligations. The
Mortgagor shall deliver to the Mortgagee all insurance and tax bills promptly
following receipt during any period when such monthly deposits are to be made
with the Mortgagee.
2.4.3. The Mortgagor will pay all taxes and other governmental charges
(including, without limitation, stamp taxes), except income or franchise taxes
or similar taxes based upon or measured by income, assessed by the United States
government or any state or local governmental authority and imposed on the
Mortgagee by reason of the ownership of this Mortgage or the Note, or the
receipt of the interest or other sums payable thereunder or payable by the
Mortgagor or the Mortgagee upon any increase in the Obligations secured hereby,
or any modification, amendment, extension or consolidation of this Mortgage.
Without limiting the foregoing and subject to the limitations set forth above,
the Mortgagor will also pay the whole of any tax imposed, directly or
indirectly, on this Mortgage or the Note or the receipt of any portion of the
Obligations in lieu of a tax on the Mortgaged Premises or the Improvements and
Building Service Equipment, whether by reason of (a) the passage after the date
of this Mortgage of any law of the State deducting from the value of real
property for the purposes of taxation any lien thereon; (b) any change in the
laws for the taxation of mortgages or debts secured by mortgages for state or
local purposes; (c) a change in the means of collection of any such tax or
otherwise; or (d) any tax, whether or not now existing, assessed against, or
withheld from, interest or other payments made by the Mortgagor or assessed
against the Mortgagee and which are assessed or levied by the government of any
foreign nation or political subdivision thereof, provided such tax liability
shall not result from the ownership of this Mortgage by a Person not a citizen
of, or an entity not formed under the laws of, the United States or any state.
Within a reasonable time after payment of any such tax or governmental charge,
the Mortgagor will deliver to the Mortgagee satisfactory proof of payment
thereof, subject, however, to the right of the Mortgagor to contest Impositions
as hereinafter set forth. If the Mortgagor shall fail to pay such tax or charge
within fifteen (15) days after notice, or if under applicable law the
Mortgagor's payment or agreement to pay the same shall be unenforceable, the
Mortgagee shall have the right to declare all of the unpaid Obligations and all
accrued and unpaid interest thereon due and payable on a date specified by the
Mortgagee, but, in any event, not less than thirty (30) days after notice to the
Mortgagor.
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2.4.4. The Mortgagor shall have the right to contest the amount or
validity, in whole or in part, of any Imposition, or to seek a reduction in the
valuation of the Mortgaged Premises, or any part thereof, as assessed for real
estate or personal property tax purposes by appropriate proceedings diligently
conducted in good faith, but only after payment of such Imposition, unless such
payment would operate as a bar to such contest or materially adversely interfere
with the prosecution thereof, in which event the Mortgagor may postpone or defer
payment of such Imposition (but not the payment of any monthly deposits pursuant
to Section 2.4.2 hereof); and upon request by the Mortgagor, the Mortgagee shall
postpone or defer payment of such Imposition; provided, however, that if at any
time the Mortgaged Premises, the Building Service Equipment, the Furnishings, or
any part thereof would, in the Mortgagee's reasonable judgment, by reason of
such postponement or deferment be in imminent danger of being forfeited or lost,
or if the Mortgagee might be subjected to any civil or criminal liability or
other sanction, then the Mortgagor, on demand, shall immediately pay or cause to
be paid the amount so contested and unpaid, together with all interest and
penalties in connection therewith.
2.4.5. The certificate, advice or xxxx of the appropriate official
designated by law to make or issue the same or to receive payment of any
Imposition indicating the nonpayment of such Imposition shall be prima facie
evidence that such Imposition is due and payable but unpaid at the time of the
making or issuance thereof.
2.5. Insurance; Restoration Following Casualty.
2.5.1. Until the Obligations are paid in full, the Mortgagor shall at its
own expense at all times maintain or cause to be maintained on all of the
Mortgaged Premises (a) comprehensive general liability insurance, including
umbrella liability insurance, covering all claims for bodily injury, including
death, and property damage occurring on, in or about the Mortgaged Premises in
an amount not less than $13,600,000 combined single limit per person and per
occurrence for personal injury, bodily injury and property damage; the policy
limits of such insurance, if requested by the Mortgagee, shall be increased from
time to time to reflect what a reasonably prudent owner or lessee of buildings
or improvements similar in type and locality to the Mortgaged Premises would
carry; during any period of substantial alterations or improvements in, on or to
the Mortgaged Premises, the Mortgagor will cause the comprehensive general
liability insurance, including umbrella liability insurance, endorsed to provide
owners' and contractors' protective liability coverage, including completed
operations liability coverage; (b) physical damage insurance covering the
Mortgaged Premises for loss or damages resulting from the perils of fire,
lightning and such other risks and hazards as are provided under the current
standard "Extended Coverage Endorsement" and vandalism and malicious mischief
coverage, for the full replacement value of the Mortgaged Premises on a
stipulated and agreed-amount basis; (c) if the Mortgaged Premises is in an area
identified as a flood hazard area by the Secretary of Housing and Urban
Development, flood insurance, to the extent obtainable, in an amount equal to
the lesser of the full replacement value of the Mortgaged Premises or the
maximum amount available under the Federal flood insurance program; (d) boiler
and machinery insurance covering all boilers, machinery, air conditioning,
pressure vessels, and similar type equipment commonly covered under a broad-form
boiler and machinery policy, in an amount satisfactory to the Mortgagee; (e)
insurance against such other risks of damage, hazards, casualties and
contingencies in such amounts as the Mortgagee shall from time to time
reasonably require, provided that insurance against such other risks, hazards,
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casualties or contingencies shall then be commonly carried by prudent owners or
lessees of building or improvements in the locality similar in character,
construction, use and occupancy to the Improvements, Building Service Equipment
and Furnishings on, or constituting a part of, the Mortgaged Premises; and (f)
loss of rents/business interruption coverage in an amount sufficient to pay all
Impositions, insurance premiums, interest and principal installments and all
other amounts due under the Obligations and the normal operating expenses of the
Mortgaged Premises, all for a period of one (1) year. Furthermore, the Mortgagee
reserves the right to require additional insurance and/or higher policy limits
than heretofore specified if such additional insurance and/or higher policy
limits are commercially reasonable for similar properties, which right may be
exercised by written notice to the Mortgagor, and, as soon thereafter as
practicable, but in any event within thirty (30) days of the receipt thereof,
the Mortgagor agrees to obtain insurance coverage complying with such notice.
The proceeds of all such insurance (except the insurance specified in Section
2.5.1(a)) shall be paid solely to the Mortgagee and be held, applied or
disbursed by the Mortgagee as provided in Sections 2.5.7 and 2.5.8.
2.5.2. All insurance required in Section 2.5.1 shall be evidenced by
valid and enforceable policies, in form and substance, and issued by and
distributed among insurers of recognized responsibility having a Best's rating
of A or better and a financial size category of Class IX or above, as shall be
required by the Mortgagee from time to time. Such insurers shall be authorized
to do business in the State and in all other respects shall be reasonably
satisfactory to the Mortgagee. The originals of all such policies, or duplicate
copies or certificates thereof, shall be delivered to the Mortgagee concurrently
with the execution and delivery of this Mortgage. Thereafter, all renewal or
replacement policies, or duplicate copies or certificates thereof, shall be
delivered to the Mortgagee not less than thirty (30) days prior to the
expiration date of the policy or policies to be renewed or replaced, in each
case accompanied by evidence reasonably satisfactory to the Mortgagee that all
premiums currently payable with respect to such policies have been paid in full
by or at the direction of the Mortgagor.
2.5.3. All such insurance policies shall (a) except for any liability
policy required hereunder, contain a standard noncontributory form of mortgagee
clause (in favor of and entitling the Mortgagee to collect any and all proceeds
payable under such insurance), as well as a standard waiver of subrogation
endorsement, all to be in form and substance reasonably satisfactory to the
Mortgagee; (b) provide that such policies may not be cancelled or amended
without at least thirty (30) days', prior written notice to the Mortgagee; and
(c) provide that no act, omission or negligence of the Mortgagor, or its agents,
servants or employees, or of any Space Tenant under any Space Lease, which might
otherwise result in a forfeiture of such insurance or any part thereof, shall in
any way affect the validity or enforceability of such insurance insofar as the
Mortgagee is concerned. The Mortgagor shall not carry separate insurance,
concurrent in kind or form or contributing in the event of loss with any
insurance required under this Section 2.5. All losses under such insurance
policies shall be adjusted by the Mortgagor in the case of any single instance
of such damage or destruction not exceeding $1,000,000, by Mortgagor and
Mortgagee in the case of any such single instance of damage or destruction
exceeding such amount, provided that in no event shall the Mortgagor approve or
consent to any final adjustment in any amount exceeding the amount specified
above in this sentence without obtaining the Mortgagee's prior approval (which
approval shall not be unreasonably withheld) of the amount of such adjustment,
and solely by the Mortgagee in the case when an Event of Default exists and is
continuing.
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2.5.4. Intentionally Deleted.
2.5.5. If the Mortgagee shall, by any means, acquire the title or estate
of the Mortgagor in or to any portion of the Mortgaged Premises, it shall
thereupon become the sole and absolute owner of all insurance policies to the
extent affecting such portion of the Mortgaged Premises held by, or required
hereunder to be delivered to, the Mortgagee, with the sole right to collect and
retain all unearned premiums thereon; and the Mortgagor shall be entitled only
to a credit in reduction of the then outstanding Obligations in the amount of
the short rate cancellation refund, when and if received by Mortgagee. The
Mortgagor agrees, immediately upon demand, to execute and deliver such
assignments or other authorizations or instruments as may, in the opinion of the
Mortgagee, be necessary or desirable to effectuate any of the provisions of this
Section 2.5.5.
2.5.6. If any of the Improvements, Building Service Equipment or
Furnishings shall be damaged or destroyed, in whole or in part, by fire or other
casualty, the Mortgagor shall give prompt notice thereof to the Mortgagee, and,
without regard to the availability or adequacy of insurance proceeds, shall
promptly following receipt of any insurance proceeds or the date when any such
proceeds are made available to the Mortgagor in accordance with the terms
hereof, commence to restore, replace, rebuild or alter the same as nearly as
possible to the condition, character and value thereof existing immediately
prior to such damage or destruction. Any insurance proceeds in respect of such
damage or destruction, or any Award (as defined in Section 3.2) for a partial
taking which is not a substantial or total taking, as such terms are referred to
in Article III hereof, at the option of the Mortgagee, may either (i) be applied
as a prepayment of the Obligations, or (ii) be made available to pay or
reimburse costs incurred for restoration, replacement or rebuilding necessitated
as a result of such damage or destruction, or as a result of such taking, as the
case may be, or (iii) be used for any other purpose or object deemed appropriate
by the Mortgagee in connection with the Mortgaged Premises, provided, however,
that the Mortgagee shall not elect either option (i) or (iii) above if, and for
so long as, (a) no Default and/or Event of Default has occurred and is
continuing or would occur as a result of such casualty or taking; (b) the
balance of the insurance proceeds or such Award either initially paid to the
Mortgagee or deposited with the Depository (as hereinafter defined) or remaining
from time to time, shall be sufficient, in the Mortgagee's reasonable judgment,
to complete the restoration, replacement or rebuilding, or the Mortgagor shall
have deposited such sufficient funds with the Mortgagee or the Depository; (c)
the cost of such restoration, replacement or rebuilding is equal to or less than
25% of the then aggregate outstanding principal balance remaining under the
Note; and (d) in the Mortgagee's reasonable judgment, six months after
completion of the restoration, there will be no Default.
2.5.7. Any such insurance proceeds (other than the proceeds of the rent
insurance policy, which shall be paid as provided in Section 2.5.8 below) or
Award which are to be applied to restoration, replacement or rebuilding of the
Mortgaged Premises shall, after payment or reimbursement to the Mortgagee of all
reasonable costs and expenses of the Mortgagee in collecting such proceeds or
Award, be applied upon satisfaction of the following provisions and conditions:
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(a) If the damage be of such nature as to require the Mortgagor to
construct a replacement for, or to alter in any material or substantial
way, the damaged or destroyed items, the Mortgagor shall, before commencing
any such work, submit copies of the plans and specifications therefor to
the Mortgagee for the Mortgagee's approval, such approval to not be
unreasonably withheld or delayed.
(b) If after payment or reimbursement to the Mortgagee of all costs and
expenses of the Mortgagee in collecting such insurance proceeds or Award,
the aggregate insurance proceeds or Award received by reason of any single
instance of such damage or destruction or condemnation, as the case may be,
shall be $1,000,000 or less such insurance proceeds or Award shall be paid
to the Mortgagor, which shall hold all amounts so received in trust for
application first to pay the entire cost of restoring, repairing,
rebuilding or replacing the damaged or destroyed items, before any portion
of such proceeds may be used or applied for any other purpose. If the
aggregate net insurance proceeds or Award by reason of any single instance
of such damage or destruction or condemnation, as the case may be, shall be
more than $1,000,000 such sums shall be held and disbursed by Fleet
National Bank or, if this Mortgage is held by a financial institution, by
such financial institution or, if this Mortgage is not held by a financial
institution, by a financial institution selected by the then Mortgagee (the
holder of such monies, the "Depository") in accordance with the following
provisions of this Section 2.5.7.
(c) The Mortgagee shall have received as to each such disbursement a
certificate of the Mortgagor (i) requesting the payment of a specified
amount of such insurance or condemnation proceeds; (ii) describing in
reasonable detail the work and materials applied to the restoration,
replacement or rebuilding of the damaged, destroyed or taken Improvement,
or Building Service Equipment and/or Furnishings located therein, since the
date of the last such certificate; (iii) stating that the requested amount
does not exceed the cost of such work and materials; and (iv) stating that
a request for payment for such work and materials has not previously been
made; accompanied by
(d) a certificate of an independent engineer or architect designated by
the Mortgagor, who shall have been approved in writing by the Mortgagee,
stating (i) that the work and materials described in the accompanying
certificate of the Mortgagor were satisfactorily performed and furnished
and were necessary, appropriate or desirable to the restoration,
replacement or rebuilding of the damaged, destroyed or taken Improvement,
or Building Service Equipment and/or Furnishings; (ii) that the amount
specified in such certificate of the Mortgagor does not exceed the
reasonable cost of such work and materials; and (iii) the additional
amount, if any, required to complete the restoration, replacement or
rebuilding of the damaged, destroyed or taken Improvement, Building Service
Equipment and/or Furnishings; accompanied by
(e) evidence reasonably satisfactory to the Mortgagee (i) that there
exists no filed or recorded lien, or lien notice, or encumbrance or charge
in respect of all or any part of the Mortgaged Premises that is prior to or
on a parity with the lien of this Mortgage, except as may be permitted in
the Permitted Encumbrances; (ii) that neither the Mortgaged Premises nor
any part thereof is subject to any recorded or filed mechanic's, laborer's,
15
materialman's or any similar lien, encumbrance or charge; and (iii) that
none of the Building Service Equipment and Furnishings provided in
connection with such restoration, replacement or rebuilding is subject to
any security interest other than in favor of the Mortgagee; then, the
Mortgagee shall pay to the Mortgagor the amount of such insurance or
condemnation proceeds requested in such certificate of the Mortgagor or
consent to the Depository's payment thereof, as the case may be; provided,
however, that in no event shall the balance of insurance or condemnation
proceeds held by the Mortgagee and the Depository be reduced below the
amount specified in such certificate of the independent engineer or
architect as the amount required to complete the restoration, replacement
or rebuilding of the damaged, destroyed or taken Improvement, Building
Service Equipment and/or Furnishings. Each such payment, whether made by
the Mortgagee or the Depository, shall be held by the Mortgagor in trust
and shall be used solely for the payment of the cost of the work and
materials described in the certificate of the Mortgagor, or if such cost or
any part thereof has theretofore been paid by the Mortgagor out of its own
funds, then for the reimbursement to the Mortgagor of any such cost or part
thereof paid by it. Any balance of insurance or condemnation proceeds held
by the Mortgagee after the completion of the restoration, replacement or
rebuilding and payment of all costs incurred in connection therewith, to be
evidenced by a certificate to such effect of such independent engineer or
architect delivered to the Mortgagee, shall, if no Event of Default shall
have occurred and be continuing, be released to the Mortgagor or any other
party entitled thereto. Notwithstanding the foregoing, if the Mortgagor
needs to make deposits with or payments to contractors prior to the work
being performed, if the Mortgagee is otherwise obligated to allow funds to
be used to rebuild or restore, the Mortgagee agrees that it will not
unreasonably withhold or delay the Mortgagor's request that such deposits
or advances payments be allowed.
2.5.8. All proceeds of rent insurance payable as a result of the
occurrence of any fire or other casualty which affects the Mortgaged Premises,
or any part thereof, shall be paid to the Mortgagee or, if the Mortgagee is not
a financial institution, the Depository. The Mortgagee or the Depository, as the
case may be, if it shall receive such proceeds, shall hold such proceeds in
trust if permitted under law, and in an account bearing interest (payable to or
for account of the Mortgagor), and shall apply or cause such proceeds (including
any net interest thereon) to be applied to the payment of those items referred
to in Section 2.5.1(f) which become, and as they become, due and payable from
and after the date of the occurrence of such damage or loss, until the
completion of the necessary restoration or replacement by the Mortgagor or until
the exhaustion of such proceeds (including any interest thereon), whichever
first occurs. Upon completion of such restoration or replacement, any balance of
such rent insurance proceeds, together with the interest thereon, if any, not
theretofore applied as provided herein, in the hands of the Mortgagee or the
Depository, as the case may be, shall, provided that no Event of Default shall
have occurred and be continuing, be paid to the Mortgagor or any other party
entitled thereto.
2.5.9. Nothing in this Section 2.5 contained shall (i) relieve the
Mortgagor of its duty to repair, restore, rebuild or replace the Improvements,
Building Service Equipment and/or Furnishings following damage or destruction by
fire or other casualty or taking in the event that no Award or an inadequate
Award or that no or inadequate proceeds of insurance are available to defray the
cost of such repairing, restoring, rebuilding or replacement, or (ii) relieve
16
the Mortgagor of its obligation to pay principal and interest and to make all
other required payments in respect of the Obligations and this Mortgage
subsequent to the occurrence of any fire or other casualty, or taking, except
if, and to the extent that, any proceeds of rent insurance are applied by the
Mortgagee in accordance with Section 2.5.8 to such required payments.
2.5.10. If, while any insurance proceeds or Award is being held by the
Mortgagee or the Depository, an Event of Default shall occur and be continuing,
the Mortgagee shall be entitled to receive and apply all such insurance proceeds
or Award in reduction of the Obligations, in such order and respective amounts,
as the Mortgagee in its sole discretion shall determine.
2.6. To Comply with Laws.
2.6.1. The Mortgagor, at its own expense, will promptly cure all
violations of law affecting the Mortgaged Premises, or any part thereof, and/or
the use and operation thereof and will promptly comply, or cause to be complied
with, all present and future Legal Requirements. However, the Mortgagor shall
have the right, after prior notice to the Mortgagee, to contest by appropriate
legal proceedings, diligently conducted in good faith, the validity or
application of any Legal Requirement if and so long as the Mortgagor shall
promptly furnish to the Mortgagee a certificate to such effect showing the steps
taken to comply with such provisions, provided that:
(a) if by the terms of any such Legal Requirement, compliance therewith
pending the prosecution of any such proceeding may be delayed legally
without incurring any lien, charge or liability of any kind against the
Mortgaged Premises, or any part thereof, and without subjecting the
Mortgagor or the Mortgagee to any liability, civil or criminal, for failure
so to comply therewith, the Mortgagor may delay compliance therewith until
the final determination of any such proceeding; and
(b) if any lien, charge or civil liability would be incurred by reason
of any such delay, the Mortgagor nevertheless, on the prior written consent
of the Mortgagee, such consent not to be unreasonably withheld, may contest
and delay compliance with the Legal Requirement, provided that such delay
would not subject the Mortgagee to criminal liability and the Mortgagor (i)
furnishes to the Mortgagee security reasonably satisfactory to the
Mortgagee against loss or injury by reason of such contest or delay and
(ii) prosecutes the contest with due diligence.
2.6.2. Notwithstanding the provisions of Section 2.6.1, if any delay in
compliance with any Legal Requirement shall, in the reasonable judgment of the
Mortgagee, place all or any part of the Mortgaged Premises in imminent danger of
being forfeited or lost, the Mortgagor shall, upon notice from the Mortgagee,
immediately comply with such Legal Requirement.
2.6.3. The Mortgagor will use and permit the use of the Mortgaged
Premises only in accordance with the material requirements of any applicable
licenses and permits issued by Governmental Authorities.
17
2.6.4. The Mortgagor will procure, pay for and maintain (or cause to be
procured, paid and maintained) all permits, licenses and other authorizations
required to be procured and maintained by the owners and operators of the
Mortgaged Premises for any then use of all or any part of the Mortgaged Premises
then being made and for the lawful and proper operation and maintenance thereof.
2.6.5. If the Mortgagor receives notice from any Governmental Authority
that it is not in compliance with any Legal Requirement, the Mortgagor will
provide the Mortgagee with a copy of such notice promptly.
2.6.6. Without limiting the provisions of this Article II, Mortgagor
agrees to the indemnification and guaranty provisions set forth in the ADA
Guaranty, the provisions of which are incorporated herein by this reference. The
indemnification and guaranty provisions set forth in the ADA Guaranty shall be a
debt secured by the lien of this Mortgage.
2.6.7. Without limiting the provisions of this Article II, Mortgagor
agrees to the indemnification and guaranty provisions set forth in the Hazardous
Material Guaranty, the provisions of which are incorporated herein by this
reference. The indemnification and guaranty provisions set forth in the
Hazardous Material Guaranty shall be an obligation secured by the lien of this
Mortgage.
2.7. Limitation on Alterations and Demolition.
2.7.1. The Mortgagor shall not voluntarily demolish, replace or alter the
Mortgaged Premises, or any part thereof, or voluntarily make any addition
thereto, or voluntarily construct any additional improvements thereon, or suffer
any of the same to occur, whether structural or otherwise (collectively,
"change"), without the prior written consent of the Mortgagee; provided,
however, that if no Event of Default is continuing and such change involves an
estimated cost of less than $1,000,000 and is non-structural or if no Event of
Default is continuing and such change is non-structural and is being made to
prepare space for a Space Tenant pursuant to a Space Lease entered into in
accordance with the Note, then, in either of such events, the Mortgagee's
consent shall not be required; provided, further, however, that if any such
change is required by law, the Mortgagor may make such change with the prior
written consent of the Mortgagee, which consent the Mortgagee will not
unreasonably withhold or delay. As a condition to any consent under this Section
2.7.1, the Mortgagee may require (a) that plans and specifications for the
proposed work, prepared by a reputable architect reasonably satisfactory to the
Mortgagee, be submitted to the Mortgagee for approval, (b) that the Mortgagor
obtain a payment and performance bond or other security reasonably satisfactory
to the Mortgagee in form and amount reasonably satisfactory to the Mortgagee
from the contractor or subcontractor performing the work unless such work
amounts to less than $1,000,000 in aggregate total cost and (c) that the
contractor(s) deliver and file, prior to commencing any work, a waiver of
mechanics lien. All work performed by or on behalf of the Mortgagor shall be
completed with all reasonable diligence and continuity, in a good and
workmanlike manner, and in compliance with all applicable Legal Requirements.
Unless, and to the extent that, the provisions of Section 2.7.2 be applicable,
no Building Service Equipment or Furnishings shall be removed from the Mortgaged
Premises during the course of any such work without prior notification to the
Mortgagee and unless provision is made for return or replacement on or prior to
18
the completion of the work. The provisions of this Section 2.7.1. shall apply to
any change made or required to be made by the Mortgagor in the course of
complying with any other of the provisions of this Mortgage. A duplicate set of
all plans and specifications required to be filed with any Governmental
Authority prior to, or at any time in connection with, any such alteration,
demolition or new construction shall be furnished to the Mortgagee. The
Mortgagor will pay on demand the reasonable expenses incurred by the Mortgagee
in the review of plans and specifications provided for in this Mortgage.
2.7.2. The Mortgagor shall have the right, at any time and from time to
time, to remove and dispose of any item of Building Service Equipment or
Furnishings which may have become obsolete or unfit for use or which is no
longer useful in the operation of the Improvements, provided that the Mortgagor
promptly replaces such item with other Building Service Equipment or
Furnishings, free of superior title, liens or claims (other than in favor of the
Mortgagee) unless consent of the Mortgagee is first obtained, not necessarily of
the same character but of at least equal quality, value and usefulness in
connection with the operation and maintenance of the Mortgaged Premises,
provided, further, however, no removal of any item of Building Service Equipment
or Furnishings then having a fair market value of $50,000 or more shall be made
without the prior written consent of the Mortgagee, which consent will not be
unreasonably withheld. However, if by reason of technological or other
developments in the operation and maintenance of buildings and other
improvements of the general character of the Improvements or a change in the use
of the Mortgaged Premises or any part thereof, no replacement of the Building
Service Equipment or Furnishings so removed would be necessary or desirable for
the proper operation or maintenance of the Improvements, the Mortgagor shall not
be required to replace the item so removed.
2.8. Limitation on Disposition of the Mortgaged Premises.
2.8.1. Any sale, assignment, mortgage, pledge or other transfer or
encumbrance of the Mortgaged Premises or any part thereof or any interest
therein or in any of the rents, profits or income generated thereby (in any
case, either beneficially or of record) is herein a "Transfer"; any lease
entered into by the Mortgagor in compliance with PARAGRAPH 11 of the Note is not
a Transfer. Any Transfer is an Event of Default.
2.8.2. If there shall be a violation of the terms and provisions of
Section 2.8.1, whether by the Mortgagor or any other Person, in addition to all
other rights and remedies available to the Mortgagee under this Mortgage, the
Mortgagee shall have the option, by the giving of notice to the Mortgagor, of
declaring the entire unpaid principal balance of the Note, together with all
accrued and unpaid interest and all other sums and charges evidenced thereby,
immediately due and payable.
2.9. Maintenance of Mortgaged Premises; Covenant Against Waste;
Inspection by the Mortgagee. The Mortgagor will not commit or permit waste on
the Mortgaged Premises and, at its expense, will keep and maintain the
Improvements, the Building Service Equipment and Furnishings in its (or their)
present state of repair and condition and, if improved, in such improved state
of repair and condition; provided, that this shall not limit the Mortgagor's
other obligations hereunder, such as compliance with laws. The Mortgagor shall
do or cause to be done all maintenance and make or cause to be made all repairs
19
as may be required by the landlord under any Space Lease. The Mortgagor will
neither do nor permit to be done anything to the Mortgaged Premises that may
materially impair the value thereof or which may violate any covenant, condition
or restriction affecting the Mortgaged Premises, or any part thereof, or which
would effect any material change therein or in the condition thereof that would
increase the danger of fire or other hazard arising out of the operation of the
Mortgaged Premises. Subject to the rights of Space Tenants, the Mortgagee, and
its representatives and agents, may enter and inspect the Mortgaged Premises at
any time after reasonable notice (which may be oral) during usual business
hours, and the Mortgagor shall, within thirty (30) days after demand by the
Mortgagee (or immediately upon demand in case of emergency), make such repairs,
replacements, renewals or additions, or perform such items of maintenance, to
the Mortgaged Premises as the Mortgagee may reasonably require in order to cause
the Mortgaged Premises to comply with the standards established in this Section
2.9.
2.10. To Furnish Certificates; Other Reporting Requirements.
2.10.1. The Mortgagor will, at its own expense, deliver to the Mortgagee,
within fifteen (15) days after request, a written statement executed by the
Mortgagor, in recordable form, setting forth the amount then unpaid upon the
Obligations and secured by this Mortgage and stating whether any offsets or
defenses exist against the Obligations; and, if any such offsets or defenses are
alleged to exist, then the factual basis and amount of such claimed offsets or
defenses.
2.10.2. The Mortgagor will, if requested by the Mortgagee, deliver to the
Mortgagee a certificate of an officer of the member of the Mortgagor or of such
member's general partner, to the effect that he is familiar with this Mortgage
and the other Loan Documents, has reviewed the affairs of the Mortgagor, and to
the best of his knowledge and belief there exists no Event of Default and no act
or event has occurred or exists which with notice or lapse of time or both could
become such an Event of Default, or if any such incipient default or Event of
Default exists, specifying it and what action the Mortgagor is taking to cause
it to be remedied.
2.10.3. The Mortgagor further covenants and agrees that it will, at its
own expense, deliver to the Mortgagee as soon as available, and in any event
within ninety (90) days after the end of each fiscal year of the Mortgagor, an
annual balance sheet, a statement of profit and loss, one-year projections, and
a cash-flow statement, prepared in accordance with Accounting Principles
acceptable to the Mortgagee, consistently applied, together with a schedule of
Space Leases. Such statements shall show the income and expenses of the
Mortgagor for such fiscal year, all in reasonable detail, shall be prepared in
accordance with such accounting principles, consistently applied, and shall
state in comparative form the figures at the end of such fiscal year and for the
preceding fiscal year. Such statements shall be certified to be true and correct
by the chief financial officer of the Mortgagor.
2.10.4. The Mortgagor further covenants and agrees that it will, at its
own expense, deliver to the Mortgagee semi-annually, as soon as available, and
in any event within ninety (90) days after the end of each second quarter end of
the Mortgagor, copies of Mortgagor's financial statements (inclusive of a
detailed balance sheet, income statement and cash flow statement) prepared
internally, in accordance with Accounting Principles, in its reasonable
discretion, and certified to be true and correct by the chief financial officer
of the Mortgagor.
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2.10.5. In addition, the Mortgagor shall furnish to the Mortgagee: (a)
within ninety (90) days after the end of the Mortgagor's fiscal year, and within
forty-five (45) days after the end of each six-month period, commencing with the
period ended June 30, 2000, a statement of income and expenses with respect to
the Mortgaged Premises, in such form as may be required by the Mortgagee; (b)
within ninety (90) days after the end of the Mortgagor's fiscal year, statements
of financial condition of the Mortgagor in such form as may be required by the
Mortgagee; (c) within one hundred and fifty (150) days after the end of the
Mortgagor's fiscal year, the Mortgagor's federal and state tax filings; and (d)
such interim unaudited financial statements and other information as the
Mortgagee may reasonably require.
2.10.6. The Mortgagor shall furnish to the Mortgagee, within ten (10)
days after the same are filed, copies of each Form 10-K of Acadia and Form 10-Q
of Acadia filed with the Securities and Exchange Commission;
2.10.7. The Mortgagor shall furnish to Mortgagee, upon request by
Mortgagee, but in any event not more frequently than quarterly, a complete rent
roll listing tenants, unit numbers, square feet occupied and leased, rents,
delinquencies, vacancies, other income received and expenses.
2.10.8. The Mortgagor further covenants and agrees that it will, at its
own expense, promptly upon receipt by Mortgagor, deliver to Mortgagee copies of
all reports of the Key Tenants' gross revenue from sales merchandise during the
preceding fiscal-year which are delivered by the applicable Key Tenant in
accordance with the provisions of the applicable Key Tenant's lease. "Key
Tenants" shall mean all tenants whose leases cover 10,000 square feet or more of
the Improvements; with "Key Tenant" meaning each, every and any one of the Key
Tenants.
2.11. After-Acquired Property. All right, title and interest of the
Mortgagor in and to all improvements, betterments, renewals, substitutes and
replacements of, and all additions and appurtenances to, the Mortgaged Premises
hereafter acquired, constructed, assembled or placed by the Mortgagor on the
Mortgaged Premises, immediately upon such acquisition, construction, assembly or
placement, as the case may be, and in each such case without any further
mortgage, conveyance or assignment or other act of the Mortgagor, shall become
subject to the lien of this Mortgage as fully and completely, and with the same
effect, as though now owned by the Mortgagor and specifically described in the
granting clauses of this Mortgage; and at any time and from time to time the
Mortgagor, on demand, will execute, acknowledge and deliver to the Mortgagee any
and all such further assurances, mortgages, conveyances or assignments as the
Mortgagee may reasonably require to further evidence, confirm and perfect the
provisions of this Section 2.11.
2.12. Further Assurances. The Mortgagor shall, at its sole cost and
without expense to the Mortgagee, on demand, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, transfers and assurances as the Mortgagee
shall from time to time reasonably require for better assuring, conveying,
21
assigning, transferring and confirming unto the Mortgagee the property and
rights hereby mortgaged or assigned or intended now or hereafter so to be, or
which the Mortgagor may be or may hereafter become bound to convey, mortgage or
assign to the Mortgagee, or for carrying out the intention or facilitating the
performance of the terms of this Mortgage, or for filing, registering or
recording this Mortgage.
2.13. Recorded Instruments. The 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 Mortgaged Premises (other
than non-consensual encumbrances hereafter affecting the Mortgaged Premises, the
validity or enforceability of which the Mortgagor is contesting in accordance
with this Mortgage) where non-compliance therewith affects the security of this
Mortgage or imposes any duty or obligation upon the Mortgagor or any Space
Tenant. The Mortgagor shall do or cause to be done all things reasonably
required to preserve intact and unimpaired and to renew any and all
rights-of-way, easements, grants, appurtenances, privileges, licenses,
franchises and other interests and rights in favor of or constituting any
portion of the Mortgaged Premises. The Mortgagor will not, without the prior
written consent of the Mortgagee, initiate, join in or consent to any private
restrictive covenant or other public or private restriction as to the use of all
or any portion of the Mortgaged Premises. The Mortgagor will, however, comply
with all lawful restrictive covenants and zoning ordinances and other public or
private restrictions affecting all or any portion of the Mortgaged Premises.
2.14. Leasing Standards. Notwithstanding anything to the contrary
contained herein or in the other Loan Documents, the Mortgagor covenants and
agrees that no Space Lease will be consummated without the prior written
approval thereof by the Mortgagee unless such Space Lease (i) is prepared and
executed on Mortgagor's standard lease form submitted to and approved, in
writing, by the Mortgagee, with such approval not to be unreasonably withheld or
delayed, and the Mortgagee's approval of immaterial changes to the form approved
by the Mortgagee shall not be required; and (ii) (x) provides for terms and
conditions, including as to rentals and other economic terms and the
creditworthiness of the tenant, which are approved by Mortgagee, with such
approval not to be unreasonably withheld or delayed, or (y) is of less than
10,000 leasable square feet and is on commercially reasonable terms and
conditions, including as to rentals and other economic terms and
creditworthiness of the tenant. Notwithstanding the foregoing, if a Default
and/or Event of Default shall be continuing, the Mortgagor will not enter into
Space Leases without the Mortgagee's prior written approval thereof, which
approval the Mortgagee may withhold in its sole discretion.
2.15. Intentionally Deleted Prior to Execution.
2.16. Late Charges. If the entire amount of any required principal
and/or interest under the Note is not paid in full within ten (10) days after
the same is due, Mortgagor shall pay to the Mortgagee a late fee equal to five
(5%) percent of the required payment, and such charge shall be deemed to be part
of the Indebtedness and therefore secured by the lien of this Mortgage.
2.17. Trust Funds. The Mortgagor, in compliance with Section 13 of the
Lien Law, will receive the advances secured by this Mortgage and will hold the
right to receive such advances as a trust fund to be applied first for the
22
purpose of paying the cost of improvement and will apply the same first to the
payment of the cost of improvement before using any part of the total of the
same for any other purposes. The Mortgagor agrees that it shall indemnify and
hold the Mortgagee harmless against any loss or liability, cost or expense,
including, without limitation, any judgments, attorneys' fees, costs of appeal
bonds and printing costs arising out of or relating to any proceeding instituted
by any claimant alleging priority over the lien of this Mortgage, and/or by any
claimant alleging a violation by the Mortgagor or the Mortgagee of any section
of Article 3-A of the Lien Law of the State of New York.
2.18. The Ground Lease.
2.18.1. The Mortgagor shall: (i) pay all rents, additional rents and
other sums required to be paid by the Mortgagor as lessee under and pursuant to
the provisions of the Ground Lease, (ii) diligently perform and observe all of
the terms, covenants and conditions of the Ground Lease on the part of the
Mortgagor, as lessee thereunder, to be performed and observed, unless such
performance or observance shall be waived or not required in writing by the
lessor under the Ground Lease, to the end that all things shall be done which
are necessary to keep unimpaired the rights of the Mortgagor, as lessee, under
the Ground Lease, (iii) promptly notify the Mortgagee in writing of any default
by the Mortgagor under the Ground Lease in the performance or observance of any
of the terms, covenants or conditions on the part of, respectively, the
Mortgagor to be performed or observed under the Ground Lease, (iv) promptly
notify the Mortgagee of the giving of any notice by the lessor under the Ground
Lease to the Mortgagor (other than notices customarily sent on a regular basis)
and of any notice noting or claiming any default by the Mortgagor in the
performance or observance of any of the terms, covenants or conditions of the
Ground Lease on the part of the Mortgagor, as lessee thereunder, to be performed
or observed and deliver to the Mortgagee a true copy of each such notice (v)
promptly notify the Mortgagee in writing of any request made by either party to
the Ground Lease, as the case may be, for arbitration proceedings pursuant to
the Ground Lease and of the institution of any arbitration proceedings, as well
as of all proceedings thereunder, and promptly deliver to the Mortgagee a copy
of the determination of the arbitrators in each such arbitration proceeding, it
being acknowledged and agreed that the Mortgagee shall have the right to
participate in such arbitration proceedings in association with the Mortgagor or
on its own behalf as an interested party, and (vi) furnish to the Mortgagee,
within ten (10) days after demand, proof of payment of all items which are
required to be paid by the Mortgagor pursuant to the Ground Lease.
2.18.2. The Mortgagor, shall not without the prior written consent of the
Mortgagee, surrender the leasehold estate created by the Ground Lease or
terminate or cancel the Ground Lease or modify, change, supplement, alter or
amend the Ground Lease, or consent to a modification change, supplement
alteration or amendment to the Ground Lease, in any material respect, either
orally or in writing, and the Mortgagor hereby assigns to the Mortgagee, as
further security for the payment of the Indebtedness and for the performance and
observance of the terms, covenants and conditions of this Mortgage, all of the
rights, privileges and prerogatives of the Mortgagor, as lessee under the Ground
Lease, to surrender the leasehold estate created by the Ground Lease or to
terminate, cancel, modify, change, supplement, alter or amend the Ground Lease,
and any such surrender of the leasehold estate created by the Ground Lease or
termination, cancellation, modification, change, supplement, alteration or
23
amendment of the Ground Lease without the prior written consent of the Mortgagee
shall be void and of no force and effect. The Mortgagee will not unreasonably
withhold or delay its consent to a modification, change, supplement, alteration
or amendment to the same.
2.18.3. Supplementing the provisions of subparagraph (b) above, it is
understood and agreed that the Mortgagor shall not, without the Mortgagee's
prior written consent, elect to treat the Ground Lease as terminated under
Section 365(h)(1)(A)(i) of the Bankruptcy Code. Any such election made without
the Mortgagee's prior written consent shall be void. The Mortgagor hereby
unconditionally assigns, transfers and set over to the Mortgagee all of the
Mortgagor's claims and rights to the payment of damages arising under the
Bankruptcy Code from any rejection by the lessor under the Ground Lease. The
Mortgagee shall have the right to proceed in its own name on behalf of the
Mortgagor in respect of any claim, suit, action or proceeding relating to the
rejection of the Ground Lease, including, without limitation, the right to file
and prosecute, to the exclusion of the Mortgagor, any proofs of claim,
complaints, motions, applications, notices and other documents, in any case in
respect of such lessor under the Bankruptcy Code. This assignment constitutes a
present, irrevocable and unconditional assignment of the foregoing claims,
rights and remedies, and shall continue in effect until all of the Indebtedness
secured by the Mortgage shall have been satisfied and discharged in full. Any
amounts received by the Mortgagee as damages arising out of the rejection of the
Ground Lease as aforesaid shall be applied first to all costs and expenses of
the Mortgagee (including, without limitation, attorneys' fees) incurred in
connection with the exercise of any of its rights or remedies under this
Paragraph and then shall be applied against the Indebtedness in such order,
priority and proportion as the Mortgagee shall determine. If any action, motion
or notice shall be commenced or filed in respect of the Mortgagor, as lessee
under the Ground Lease, or all or any portion of the Mortgaged Property in
connection with any case under the Bankruptcy Code, the Mortgagor shall give the
Mortgagee prompt written notice thereof. Other than during the existence of an
Event of Default, the Mortgagor may commence any action, suit, proceeding or
case, or file any application or make any motion, in respect of the Ground Lease
in any such case under the Bankruptcy Code without the prior written consent of
the Mortgagor but will not settle or compromise any of the foregoing without the
consent of the Mortgagee, which consent will not be unreasonably withheld or
delayed by Mortgagee. During the existence of an Event of Default, the Mortgagor
shall not commence any action, suit, proceeding or case, or file any application
or make any motion, in respect of the Ground Lease in any such case under the
Bankruptcy Code without the prior written consent of the Mortgagee, and the
Mortgagee, during the existence of an Event of Default, may proceed in its own
name, in connection with any such litigation. The Mortgagor shall, immediately
after obtaining knowledge thereof, notify the Mortgagee and its counsel, by
telecopy or by hand of any filing by or against the lessor under the Ground
Lease of a petition under the Bankruptcy Code. The Mortgagor shall thereafter
forthwith give written notice of such filing to the Mortgagee, setting forth the
date of such filing, the court in which the petition was filed and the relief
sought therein. The Mortgagor shall promptly deliver to the Mortgagee, following
receipt, any and all notices, summonses, pleadings, applications and other
written documents received by the Mortgagor in connection with any such petition
and any proceedings relating thereto.
2.18.4. If the Mortgagor shall default in the performance or observance
of any term, covenant or condition of the Ground Lease on the part of the
Mortgagor, as lessee thereunder, to be performed or observed, then, without
limiting the generality of the other provisions of this Mortgage, and without
24
waiving or releasing the Mortgagor from any of its obligations hereunder, the
Mortgagee shall have the right, but shall be under no obligation, to pay any
sums and to perform any act or take any action as may be appropriate to cause
all of the terms, covenants and conditions of the Ground Lease on the part of
the Mortgagor, as lessee thereunder, to be performed or observed to be promptly
performed or observed on behalf of the Mortgagor, to the end that the rights of
the Mortgagor in, to and under the Ground Lease shall be kept unimpaired and
free from default. If the Mortgagee shall make any payment or perform any act or
take action in accordance with the preceding sentence, the Mortgagee will notify
the Mortgagor of the making of any such payment, the performance of any such
act, or the taking of any such action. All sums so paid by the Mortgagee and all
costs and expenses incurred by the Mortgagee in connection with the performance
of any such act shall be paid by the Mortgagor to the Mortgagee upon demand with
interest, from the date so advanced by Mortgagee until thirty (30) days after
demand by the Mortgagee to the Mortgagor, at the Interest Rate set forth in the
Note and thereafter at the Involuntary Rate, and the same shall be deemed to be
secured by this Mortgage and shall be a lien on the Mortgaged Property prior to
any right, title to, interest in or claim upon the Mortgaged Property attaching
subsequent to the lien of this Mortgage. In any such event, subject to the
rights, if any, of lessees and other occupants under the Ground Lease, the
Mortgagee and any person designated by the Mortgagee shall have, and are hereby
granted, the right to enter upon the Mortgaged Property at any time and from
time to time for the purpose of taking any such action. If the lessor under the
Ground Lease shall deliver to the Mortgagee a copy of any notice of default sent
by said lessor to the Mortgagor, as lessee under the Ground Lease, such notice
shall constitute full protection to the Mortgagee for any action taken or
omitted to be taken by the Mortgagee, in good faith, in reliance thereon.
2.18.5. Mortgagor hereby delegates irrevocably, coupled with an interest,
to Mortgagee the authority to exercise any and all of Mortgagor's rights under
the Ground Lease, including, but not limited to, the right of the Mortgagee to
participate (to the exclusion of Mortgagor) in any proceeding, arbitration or
settlement involving condemnation or eminent domain affecting Mortgagor's
leasehold interest in the Mortgaged Property. However, Mortgagee agrees not to
exercise such power, except during the existence of an Event of Default and/or
upon acceleration of the Indebtedness pursuant to the terms of this Mortgage.
2.18.6. The generality of the provisions of this Paragraph relating to
the Ground Lease shall not be limited by other provisions of this Mortgage or
any other agreement between the Mortgagee and the Mortgagor, setting forth
particular obligations of the Mortgagor which are also required of the Mortgagor
as tenant under the Ground Lease.
2.18.7. Should there be a conflict between the terms of the Mortgage or
any other Loan Document on the one hand, and the terms of the Ground Lease, on
the other, the terms of the Mortgage shall prevail and control.
2.18.8. In accordance with the provisions of Section 10.02 of the Ground
Lease, the Mortgagee and Mortgagor agree to be bound by the following
provisions:
(a) This Mortgage is executed upon the condition that no purchaser at
any foreclosure sale shall acquire any right, title or interest in or to
the Lease hereby mortgaged, unless the said purchaser, or the person, firm
or corporation to whom or to which such purchaser's right has been
25
assigned, shall, in the instrument transferring to such purchaser or
assignee the Tenant's interest under the said Lease, assume and agree to
perform all of the terms, covenants and conditions of said Lease to be
observed or performed on the part of the Tenant subsequent to the date of
the assumption agreement, and moreover, that no further or additional
mortgage or assignment or said Lease shall be made, except subject to the
provisions contained in Articles 9 and 10 of said Lease, and that a
duplicate original of said assumption agreement, in form reasonably
satisfactory to Landlord's counsel and duly executed and acknowledged by
such purchaser or such assignee, is delivered to Landlord immediately after
the consummation of such sale, or, in any event, prior to taking possession
of the premises.
(b) This Mortgage and all rights of the Mortgagee hereunder are,
without the necessity for the execution of any further documents, subject
and subordinate to any Fee Mortgages now or hereafter made, as said terms
are defined in the Lease hereby mortgaged, provided that Tenant and
leasehold Mortgagee shall receive a non-disturbance agreement from the Fee
Mortgagee in recordable form and reasonably satisfactory to the Leasehold
Mortgagee. Subject to the receipt of such a non-disturbance agreement, the
holder of this mortgage agrees from time to time upon request and without
charge, to execute, acknowledge and deliver any instruments requested by
the Landlord under the Lease hereby mortgaged to evidence the foregoing
subordination.
2.19. Intentionally Deleted Prior to Execution.
2.20. Earn-Out Provision. Upon compliance by Mortgagor of the
conditions precedent set forth in PARAGRAPH 5 of the Note, the Mortgagor shall
advance the aggregate principal sum of up to $3,990,135.17 in one or more
advances (herein called the "Earn-Out"), payable in accordance with the terms of
the Note.
ARTICLE III
Condemnation
3.1. Notice of Taking. The Mortgagor shall promptly notify the
Mortgagee if the Mortgagor receives notice of the institution of any proceeding
or negotiations for the taking of the Mortgaged Premises, or any part thereof,
whether for permanent or temporary use and occupancy in condemnation or by the
exercise of the power of eminent domain or by agreement of interested parties in
lieu of such condemnation (all the foregoing called a "taking"); shall keep the
Mortgagee currently advised, in detail, as to the status of such proceedings or
negotiations and will promptly give to the Mortgagee copies of all notices,
pleadings, judgments, determinations and other papers received or delivered by
the Mortgagor in connection with any such proceedings. The Mortgagee shall have
the right to appear and participate in such proceedings and may be represented
by counsel. The Mortgagor will not, without the Mortgagee's consent, enter into
any agreement for the taking of the Mortgaged Premises, or any part thereof,
with anyone authorized to acquire the Mortgaged Premises by eminent domain or in
condemnation.
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3.2. Condemnation Award. If the Mortgaged Premises shall be the subject
of a taking the Mortgagee shall be entitled to and shall receive the total of
such portion of all awards made that shall be allowed to the Mortgagor with
respect to all the right, title and interest of the Mortgagor in and to the
Mortgaged Premises (the award made in any total, partial or temporary taking is
herein called the "Award"), provided that the obligations of the Mortgagor to
perform the terms, covenants and conditions of this Mortgage, if any, affected
by such taking shall continue unimpaired until the actual vesting of title in
such proceeding and the actual receipt by the Mortgagee of Mortgagor's share of
the entire Award resulting from such taking.
3.3. Application of Award. The Mortgagee shall have the option of
treating a total taking or a substantial taking (as hereinafter defined) as an
Event of Default and of accelerating the entire Obligations, in which event it
shall apply the Mortgagor's entire Award in reduction of such Obligations
(including principal, interest and other sums secured hereby, in such order as
the Mortgagee may determine) and shall turn over any balance remaining, if any,
to the Mortgagor; or if the Mortgagee shall not so elect to accelerate the
Obligations and apply the Award thereto, then the total Award shall, regardless
of amount, be deposited with the Mortgagee or with the Depository, the Mortgagor
hereby agreeing to elect that such proceeds be held and disbursed by the
Depository in accordance with Sections 2.5.6, 2.5.7, 2.5.8, 2.5.9 and 2.5.10
hereof for restoration required to be made by the Mortgagor. If there be a
partial taking, the net proceeds of the Award shall be deposited with the
Mortgagee and applied by the Mortgagee in accordance with the provisions of
Sections 2.5.6, 2.5.7, 2.5.9 and 2.5.10. Any Award remaining after the
completion of such restoration, replacement or rebuilding shall be applied in
reduction of the Obligations (including principal, interest and other sums
secured hereby) in such order as the Mortgagee shall determine. A partial taking
is substantial only if it materially decreases the fair market value of the
Mortgaged Premises and the remainder of the Mortgaged Premises cannot be
restored to an economically viable whole.
3.4. Temporary Taking. If any Award payable to the Mortgagor on account
of a taking for temporary use or occupancy is made in a lump sum or is payable
other than in equal monthly installments, the Mortgagor shall pay over such
Award to the Depository and such Award shall be applied to installments of
Impositions and of principal and interest and all other charges secured by this
Mortgage or due in respect of the Obligations or the other Loan Documents as and
when the same become due and payable. Any unapplied portion of such Award held
by the Depository when such taking ceases or expires (if no Event of Default has
then occurred and is continuing), or after the Obligations shall have been paid
in full, shall be paid to the Mortgagor or to any other party entitled thereto.
3.5. The Mortgagor's Obligation to Restore. If proceeds of the Award
are made available to the Mortgagor for restoration, replacement or rebuilding
pursuant hereto, the Mortgagor shall be obligated promptly to restore, replace,
rebuild or alter any Improvements or Building Service Equipment affected by a
taking so as to restore the Mortgaged Premises to an economically viable whole,
all without regard to the adequacy of the proceeds of an Award, if any, made
available to the Mortgagor.
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ARTICLE IV
Assignment of Space Leases, Profits
and Other Income as Further Security, Etc.
------------------------------------------
4.1. Assignment of Space Leases, Rents, Issues and Profits. The
Mortgagor hereby absolutely assigns and sets over unto the Mortgagee all Space
Leases, if any, now or hereafter entered into with respect to all or any part of
the Mortgaged Premises, and all renewals, extensions, subleases or assignments
thereof, and all other occupancy agreements (written or oral), by concession,
license or otherwise, together with all of the rents, income, receipts,
revenues, issues and profits arising therefrom (the "Collateral"). This
assignment is intended by the Mortgagor and the Mortgagee to create, and shall
be construed to create, an absolute assignment of all Space Leases, rents,
issues and profits, subject only to the terms and conditions of this Mortgage.
4.2. The Mortgagor's Covenants Regarding Space Leases.
4.2.1. Without the prior consent and approval of the Mortgagee in each
instance, the Mortgagor will not (a) assign, pledge, hypothecate or otherwise
encumber any of the Space Leases or the rents, income, issue and profits of the
Mortgaged Premises; or (b) enter into any Space Leases affecting the Mortgaged
Premises or any part thereof, unless such Space Lease is expressly subordinate
to the lien of this Mortgage and to any consolidation, extension, renewal,
recasting or refinancing hereof and the Space Lease provides, in substance, that
in the event of enforcement by the Mortgagee of the remedies provided for by law
or by this Mortgage, each Space Tenant shall, at the option of the Mortgagee,
attorn to any person succeeding to the interest of the Mortgagor as a result of
such enforcement and shall recognize such successor in interest as landlord (or
sublandlord, as the case may be) under such Space Lease without change in the
terms or other provisions thereof, provided, however, that such successor shall
not be bound by any payment of rent or additional rent for more than one (1)
month in advance or any amendment or modification of any such Space Lease made
without the Mortgagee's written consent; or (c) enter into any Space Leases
except in accordance with the provisions of the Note.
4.2.2. The Mortgagor further represents, warrants, covenants and agrees
that:
(a) To the best of its knowledge, each Space Lease is (or, when
executed, will be) a valid and legally enforceable obligation of the
parties thereto, in full force and effect.
(b) With respect to each Space Lease and the Space Tenant security
deposits thereunder, any and/or all of such security deposits shall be held
as required by the Space Lease but in no event in a manner other than that
required by law.
(c) The Mortgagor shall, at its sole cost and expense, keep, observe,
perform and discharge, duly and punctually, all and singular the material
obligations, terms, covenants, conditions, representations and warranties
of each Space Lease on the part of the Mortgagor to be kept, observed,
performed and discharged.
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(d) (i) Except as herein in this clause (i) expressly provided, the
Mortgagor shall, at its sole cost and expense, maintain the Space Leases in
full force and effect; the Mortgagor will not waive its rights under or
materially modify, change, supplement, alter or amend ("Change"), nor shall
the Mortgagor surrender (whether partial or total), terminate, cancel or
subordinate, any of the Space Leases, and any such attempted Change,
surrender, termination, cancellation or subordination shall be void,
unless, in each case, the prior written consent thereto of the Mortgagee
shall have been obtained. Notwithstanding the foregoing, the Mortgagor may
terminate or cancel any Space Lease as a result of a material default by
the tenant under such Space Lease if (w) such termination is being effected
in the ordinary course of the Mortgagor's business, (x) no Event of Default
then exists and (y) such termination or cancellation would not materially
and adversely affect the value of the Space Leases as collateral security
for the Obligations. A material Change shall include but not be limited to
any material Change in the amount or time of payment of the rent or
additional rent, the length of term or square footage of the premises under
any Space Lease or any other Change which would materially adversely affect
the Mortgagor's rights under the Space Lease, or would affect the
Mortgagee's rights under the Space Lease or the value of the Space Lease as
collateral security for the Obligations.
(ii) The Mortgagor shall, at its sole cost and expense, enforce the
Space Leases in accordance with their terms; and shall appear in and defend
any action or proceeding arising to which it is a party under or in any
manner connected with any of the Space Leases.
(e) The Mortgagor shall deliver to the Mortgagee a copy of each notice
of default sent or received by it relating in any way to any Space Lease
promptly upon, but in any event within five (5) business days after, its
sending or receipt thereof.
4.3. The Mortgagor's Rights, and Powers.
4.3.1. The Mortgagor hereby irrevocably, in the name of the Mortgagor or
otherwise, authorizes and empowers the Mortgagee, and absolutely assigns and
transfers unto the Mortgagee, and constitutes and appoints the Mortgagee its
true and lawful attorney-in-fact, coupled with an interest and as its agent,
irrevocably, with full power of substitution for it and in its name, but solely
for the following purposes: (i) to exercise and enforce every right, power,
remedy, authority, option and privilege of the Mortgagor under the Space Leases,
and as such attorney-in-fact, the Mortgagee may subordinate, terminate, cancel
or modify the Space Leases, accept the surrender of the Space Leases, give any
notice, take any action resulting in such subordination, termination,
cancellation, modification or surrender, give any authorization, furnish any
information, make any demands, execute any instruments and take any and all
other action on behalf of and in the name of the Mortgagor which in the opinion
of the Mortgagee may be necessary or appropriate to be given, furnished, made,
exercised or taken by the Mortgagor under the Space Leases in order to comply
therewith, to perform the conditions thereof or to prevent or remedy any default
by the Mortgagor thereunder or to enforce any of the Mortgagor's rights and
remedies thereunder, and (ii) to ask, require, demand, receive and collect and
give acquittances for the Income (as hereinafter defined), and on nonpayment
thereof to xxx for, recover and receive the same, and on payment thereof to give
sufficient releases, receipts, discharges and acquittances thereof; to endorse
29
any checks or other instruments or orders in connection therewith and to file
any claims or take any action or institute any proceedings which the Mortgagee
may deem to be necessary or advisable; provided, however, that the power
provided for in this sentence may not be exercised by the Mortgagee unless an
Event of Default shall have occurred and be continuing. "Income" shall mean all
deposits, rents, issues, profits, revenues, royalties, and other revenue
producing arrangements, whether written or oral, and all monetary benefits of,
and/or derived from, and/or sums payable under and by virtue of the Space Leases
and/or the Premises.
4.3.2. So long as there shall not have occurred and then be continuing
any Event of Default and until such right of Mortgagor is terminated by the
Mortgagee as in Section 4.3.3 provided, the Mortgagee will not exercise its
rights pursuant to Section 4.3.1, and the Mortgagor shall have the right (but
limited as hereinafter provided) to exercise all of its rights under the Space
Leases, provided that the Mortgagor shall at all times comply with, observe and
perform, in the exercise of such right, all of the provisions of this Mortgage
and the other Loan Documents applicable to the Space Leases; provided, further,
that no action shall be taken or failed to be taken by the Mortgagor which would
impair the Collateral or any other collateral security for the Obligations
provided for in the Loan Documents.
4.3.3. The Mortgagee, upon the occurrence and during the continuance of
an Event of Default, at its option and upon written notice to the Mortgagor,
shall have the right to terminate the right of the Mortgagor to exercise its
rights under the Space Leases, and, thereupon, in addition, the Mortgagee, at
any time thereafter, at its option, shall have the complete right, power and
authority hereunder to exercise and enforce all rights, powers, remedies,
authority, options and privileges of the Mortgagor under the Space Leases in the
name of the Mortgagor or the Mortgagee, to enforce all obligations of the other
parties to the Space Leases and to exercise and enforce all of its rights and
remedies hereunder and under law not exercisable prior to an Event of Default.
4.3.4. The Mortgagor does hereby direct each and all of the Space Tenants
under the Space Leases and all contractual obligors of the Mortgagor to pay any
Income to the Mortgagee upon demand for payment thereof by the Mortgagee without
further inquiry. It is understood and agreed, however, that no such demand shall
be made unless an Event of Default shall have occurred and be continuing. No
such Space Tenant or obligor shall be obliged to account to the Mortgagor for
any amounts paid to the Mortgagee by reason of any payment made to the Mortgagee
pursuant to such demand and, upon any such payment to the Mortgagee, shall be
pro tanto released from their obligations to the Mortgagor. Each Space Tenant
shall be permitted to rely on any communication from the Mortgagee pursuant
hereto, and under no circumstances shall such Space Tenant be obligated to the
Mortgagor for any payments made to the Mortgagee hereunder. Until such demand is
made, the Mortgagor is authorized to collect or enforce or continue collecting
or enforcing such Income in accordance with the provisions of this Mortgage.
4.3.5. The Mortgagee shall not have any duty as to the collection or
protection of the Collateral or any income thereon or payments with respect
thereto, or as to the preservation of any rights pertaining thereto beyond the
safe custody of any thereof actually in its possession. In no instance shall the
Mortgagee be responsible to lessees for payment of interest upon, or return of,
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any lease security deposits, except as provided by law or as provided in the
leases and then only if and to the extent that such deposits are received by the
Mortgagee. The Mortgagor hereby waives notice of acceptance hereof and, except
as otherwise specifically provided herein or required by provision of law which
may not be waived, hereby waives any and all notices or demands with respect to
any exercise by the Mortgagee of any rights or powers which it may have or to
which it may be entitled with respect to the Collateral.
4.3.6. The Mortgagor hereby irrevocably constitutes and appoints the
Mortgagee as the true and lawful attorney-in-fact of the Mortgagor, which
appointment is coupled with an interest, with full power of substitution, to
proceed from time to time in the Mortgagor's name in any statutory or
non-statutory proceeding affecting the Mortgagor or any Collateral, and the
Mortgagee or its nominee may (i) execute and file proof claim for the full
amount of any Collateral and vote such claims for the full amount thereof (A)
for or against any proposal or resolution, (B) for a trustee or trustees or for
a receiver or receivers or for a committee of creditors and/or (C) for the
acceptance or rejection of any proposed arrangement, plan of reorganization,
composition or extension, and the Mortgagee or its nominee may receive any
payment or distribution and give acquittance therefor and may exchange or
release Collateral; (ii) endorse any draft or other instrument for the payment
of money, execute releases and negotiate and enter into settlements; and (iii)
execute all such other documents or instruments as may be necessary or expedient
to be executed by the Mortgagor for any of the purposes of this Mortgage;
provided, however, that the power provided for in this sentence may be exercised
by the Mortgagee only while an Event of Default is continuing. The Mortgagee
shall have no duty to exercise any of the aforesaid rights, privileges or
options and shall not be responsible for any failure to do so or delay in so
doing.
4.4. Remedies and Entry Upon Default.
4.4.1. So long as no Event of Default shall have occurred and be
continuing, the Mortgagor shall have the right to collect (but not more than one
(1) month in advance) and retain all of the rents, gross receipts and other
payments, if any, from the Space Leases and from the Mortgaged Premises
generally, and the Mortgagee agrees that customary initial rent payments,
security deposits and reimbursements by a Space Tenant to the Mortgagor on
account of alterations made by the Mortgagor for the benefit of the Space Tenant
are permissible advance payments by the Space Tenant.
4.4.2. Upon any Event of Default, the Mortgagee may, but shall not be
obligated to:
(a) terminate the rights of the Mortgagor referred to in Section 4.3
hereof and exercise all of the powers, rights and remedies provided for in
Section 4.3 hereof, including those to be exercised only from and after an
Event of Default;
(b) at any time and from time to time, without notice to, or assent by,
the Mortgagor or any other Person, but without affecting any of the
Obligations, in the name of the Mortgagor or in the name of the Mortgagee,
notify the account debtors and obligors on any or all of the Space Leases
to make payment and performance directly to the Mortgagee, and demand,
collect, receive, compound and give acquittance for the Space Leases or any
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part thereof; extend the time of payment and performance of, compromise or
settle for cash, credit or otherwise, upon any terms and conditions, any of
the Space Leases; endorse to the order of the Mortgagee checks, drafts or
other orders or instruments for the payment of moneys payable to the
Mortgagor which shall be issued in respect of any of the Space Leases; file
any claims, commence, maintain or discontinue any actions, suits or other
proceedings deemed by the Mortgagee necessary or advisable for the purpose
of collecting upon or enforcing any of the Space Leases; and execute any
instrument and do all other things deemed necessary and proper by the
Mortgagee to protect and preserve and realize upon the Space Leases and/or
the other rights contemplated hereby and the Mortgagor hereby irrevocably
constitutes and appoints the Mortgagee as such Mortgagor's lawful
attorney-in-fact, coupled with an interest, and its agent for the foregoing
purposes;
(c) demand, collect, xxx for, attach, levy, recover, receive,
compromise and adjust, and make, execute and deliver receipts and releases
for all Income that may then be or may thereafter become due, owing or
payable with respect to the Premises or any part or parts thereof from any
present or future lessees, tenants, subtenants or occupants thereof or from
any present or future contract obligors; and/or
(d) pay, in such order as the Mortgagee in its sole discretion shall
determine, from and out of the Income collected in connection with the
Premises and/or the Collateral or any part or parts thereof or from or out
of any other funds (less the expense of collection, including attorneys'
fees and disbursements), any taxes, assessments, water rates, sewer rates,
or other government or other charges levied, assessed or imposed against
the Premises or any part or part thereof, and also any and all other
charges, costs and expenses which the Mortgagee deems necessary or
advisable to pay in respect of the management or operation of the Premises,
including, without limitation, the costs of insurance policies, repairs and
alterations, commissions for renting the Premises or any part or parts
thereof, legal expenses in enforcing claims, preparing papers or procuring
any other services that may be required and any amounts payable under or
pursuant to any Lease. All amounts so paid and expended shall be payable on
demand, together with interest at the Default Rate from the date incurred
until paid, and be deemed to be included within the Obligations and secured
by this Mortgage. The provisions of Section 4.2.2 and the rights given to
the Mortgagee hereby shall inure to the benefit of the Mortgagee even
though the Mortgagee does not enter and take possession of the Premises.
Any balance remaining after the Obligations shall have been paid in full
shall be turned over to the Mortgagor or such other Person as may lawfully
be entitled thereto. Neither the entry upon and taking possession of the
Mortgaged Premises, nor the collection and application of the rents, gross
receipts or other charges thereof, nor any other action taken by the
Mortgagee in connection therewith, shall cure or waive any default
hereunder or waive or modify any notice thereof or notice of acceleration
of the Obligations theretofore given by the Mortgagee.
4.4.3. If an Event of Default shall have occurred and be continuing and
the Mortgagee shall have entered upon the Mortgaged Premises as provided in
Section 6.2.2 hereof, a notice in writing by the Mortgagee to the Space Tenants
under the Space Leases advising them that the Mortgagor has defaulted hereunder
and requesting that all future payments of rent, additional rent or other
32
charges under the Space Leases be made to the Mortgagee (or its agent) shall be
construed as conclusive authority to such Space Tenants that such payments are
to be made to the Mortgagee (or its agent). Each Space Tenant shall be fully
protected in making such payments to the Mortgagee (or its agent) and be given
full credit against its obligations under the applicable Space Lease to the
extent of payments made to the Mortgagee (or its agent) pursuant to any such
notice; and the Mortgagor hereby irrevocably constitutes and appoints the
Mortgagee the attorney-in-fact and agent of the Mortgagor, coupled with an
interest, for the purpose of endorsing the consent of the Mortgagor on any such
notice.
4.5. No Obligation of Mortgagee.
4.5.1. The Mortgagee shall not be obligated to perform or discharge any
obligation of the Mortgagor as a result of the collateral assignment hereby
effected, and the Mortgagor hereby agrees to indemnify and hold the Mortgagee
harmless from and against any and all liability, loss or damage which the
Mortgagee may incur by reason of any act of the Mortgagee under this Mortgage,
other than as a result of the Mortgagee's willful misconduct or gross
negligence. Should the Mortgagee incur any such liability, loss or damage by
reason of this Mortgage and which is covered by the foregoing indemnity, or in
defense against any such claims or demands, or perform any acts or covenants on
the part of Mortgagor to be performed under the Space Leases, or pay for the
account of the Mortgagor any and all sums, costs and expenses for the discharge
of taxes, assessments, water rents or other liens against the Collateral (as
hereinafter defined) or any part thereof, or on account of insurance premiums or
repairs, and also any amounts and expenses necessary to perform any covenants
and conditions to be performed on the part of the Mortgagor under the Space
Leases, the amount thereof, including costs, expenses and attorneys' fees,
together with interest thereon at the Default Rate from the date such expenses
were paid by the Mortgagee to the date of payment to the Mortgagee by the
Mortgagor, shall be included in the Obligations secured by this Mortgage, and
the Mortgagor shall reimburse the Mortgagee therefor upon demand.
4.5.2. The acceptance by the Mortgagee of this Mortgage, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Mortgagee to appear in or defend any action or proceeding
relating to the Collateral, or to take any action hereunder or thereunder, or to
expend any money or incur any expenses or perform or discharge any obligation,
duty or liability under the Collateral.
ARTICLE V
Security Agreement Under Uniform Commercial Code
------------------------------------------------
5.1. The Mortgagor intends that this Mortgage shall constitute a
security agreement within the meaning of the Uniform Commercial Code of the
State (the "Code") with respect to all of the Mortgagor's right, title and
interest in and to the Building Service Equipment and Furnishings as are
considered or as shall be determined to be personal property or "fixtures" (as
defined in the Code) and all books, records, licenses and certificates of the
Mortgagor or relating to the Mortgaged Premises, together with all replacements
thereof, substitutions therefor or additions thereto (said property being
sometimes hereinafter in this Article V referred to as the "Personal Property
33
Collateral"), and that a security interest shall attach thereto for the benefit
of the Mortgagee to secure the Obligations and all other sums and charges which
may become due hereunder, thereunder or under any of the other Loan Documents.
The Mortgagor hereby authorizes the Mortgagee to file financing and continuation
statements with respect to the Personal Property Collateral without the
signature of the Mortgagor, if permitted by the Code as adopted by the State. In
any event the Mortgagor covenants to execute such financing and continuation
statements as the Mortgagee may reasonably request. If an Event of Default shall
occur and be continuing, the Mortgagee, pursuant to the appropriate provisions
of the Code, shall have the option of proceeding as to both real and personal
property in accordance with its rights and remedies in respect of real property
under this Mortgage and the law of the State, in which event the default
provisions of the Code shall not apply. The Mortgagor agrees that, in the event
the Mortgagee shall elect to proceed with respect to the Personal Property
Collateral separately from the real property, unless a greater period shall then
be mandated by the Code, five (5) days notice of the sale of the Personal
Property Collateral shall be reasonable notice. The expenses of retaking,
holding, preparing for sale and selling incurred by the Mortgagee shall be
assessed against the Mortgagor and shall include, but not be limited to, the
reasonable legal expenses incurred by Mortgagee. The Mortgagor agrees that it
will not remove or permit to be removed from the Mortgaged Premises any of the
Personal Property Collateral without the prior written consent of the Mortgagee
except as set forth in Section 2.7.2. All replacements, renewals and additions
to the Personal Property Collateral shall be and become immediately subject to
the security interest of this Mortgage and the provisions of this Article V. The
Mortgagor warrants and represents that all Personal Property Collateral now is
free and clear of all liens, encumbrances or security interests other than the
Permitted Encumbrances, and that all replacements of the Personal Property
Collateral, substitutions therefor or additions thereto, unless the Mortgagee
otherwise consents, will be, free and clear of liens, encumbrances or security
interests of others.
ARTICLE VI
Events of Default and Remedies
------------------------------
6.1. Events of Default. Mortgagee shall be entitled to exercise any and
all of the remedies provided in Section 6.2 and in the other Loan Documents upon
the happening of an Event of Default. The term "Event of Default", wherever used
in the Mortgage, shall mean any one or more of the following events:
(a) failure of Mortgagor (x) to pay, for a period of ten (10) days
after the same becomes due (i) any installment of interest and/or principal
under this Note, or (ii) any other payment required hereunder or under any
of the other Loan Documents or under any supplement, modification or
extension hereof or thereof, or (y) to pay the final principal balance of
the Note when due, whether upon the stated maturity date set forth therein,
upon acceleration of such principal sum or otherwise, together with accrued
and unpaid interest thereon; or
(b) if any of Mortgagor's representations or warranties contained
herein or in any of the Loan Documents shall be untrue or incorrect in any
material respect at the time made, or if any such warranty or
34
representation intended to be a continuing one shall become untrue or
incorrect in any material respect and Mortgagor shall fail to remedy such
situation within thirty (30) days after notice from Mortgagee, unless such
situation cannot be remedied in such period and provided further that the
Mortgagor shall commence compliance with such situation and shall continue
to diligently prosecute such compliance, then such cure period shall be
extended for an additional sixty (60) day period, or such other period of
time as the Mortgagee may agree in writing (or immediately upon notice in
case of emergency); or
(c) if Mortgagor shall commence a voluntary case concerning itself
under Title 11 of the United States Code entitled "Bankruptcy" as now or
hereafter in effect, or any successor thereto (the "Bankruptcy Code"); or
an involuntary case is commenced against Mortgagor and the petition is not
controverted within thirty (30) days, or is not dismissed within ninety
(90) days, after commencement of the case; or a custodian (as defined in
the Bankruptcy Code) is appointed for, or takes charge of, all or any
substantial part of the property of Mortgagor; or Mortgagor commences any
other proceeding under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency or liquidation or similar law of
any jurisdiction whether now or hereafter in effect relating to Mortgagor
or there is commenced against Mortgagor any such proceeding which remains
undismissed for a period of ninety (90) days; or Mortgagor is adjudicated
insolvent or bankrupt; or any order of relief of other order approving any
such case or proceeding is entered; or Mortgagor suffers any appointment of
any custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of ninety (90) days; or
Mortgagor makes a general assignment for the benefit of creditors; or
Mortgagor shall fail to pay, or shall state that it is unable to pay, or
shall be unable to pay, its debts generally as they become due; or
Mortgagor shall call a meeting of its creditors with a view to arranging a
composition or adjustment of its debts; or
(d) if any of the events enumerated in clause (c) of this Section shall
happen to Acadia; or
(e) if any execution, warrant, attachment, garnishment or other similar
processes shall be levied or filed against the Mortgaged Premises or any
part thereof, or against Mortgagor which involve claims aggregating more
than $100,000 and such processes shall not be stayed, vacated or
discharged, such as by bonding, within ninety (90) days after the same
shall have been levied or filed; or
(f) if Mortgagor shall fail to perform or observe, or cause to be
performed or observed the provisions contained in Section 2.18. herein,
within the time periods set forth therein, with time being of the essence;
or
(g) except as otherwise provided in PARAGRAPH (f) directly hereinabove,
if Mortgagor shall fail to perform or observe, or cause to be performed or
observed, any other term, obligation, covenant, condition or agreement
contained in the Note, this Mortgage or in any of the other Loan Documents,
or in any assignment of leases and rents or in any other instrument
executed concurrently herewith by Mortgagor and/or Guarantor or
35
supplemental hereto, pertaining to the debt evidenced by this Note or the
security therefor, or under any supplement, modification or extension of
any of the foregoing, on its part to be performed and such failure shall
have continued for a period of thirty (30) days after notice thereof;
provided, however, if such default shall not have been occasioned by any
willful act of Mortgagor, and if such default cannot with due diligence be
cured within such thirty (30) days period, the time within which to cure
the same shall be extended for such period as may be necessary to cure the
same with due diligence if Mortgagor commences within such thirty (30) days
and proceeds diligently to cure the same; or
(h) if there should occur a default which is not cured within the
applicable grace or cure period, if any, under any mortgage or deed of
trust of all or part of the Mortgaged Premises (as such term is defined in
the Mortgage), including a mortgage or deed of trust held by Mortgagee,
regardless of whether any such other mortgage or deed of trust is superior,
subordinate, or collateral to the Mortgage; it being further agreed by
Mortgagor that an Event of Default shall constitute an "Event of Default"
under any such other mortgage or deed of trust held by Mortgagee; provided,
however, that this provision shall not be construed as Mortgagee's consent
to any such mortgage or deed of trust; or
(i) if any "Event of Default" (as such term is defined in any Loan
Document) shall occur; or
(j) if there shall be an acceleration upon default of any other loan
made by or held by Mortgagee to a borrower controlled by Acadia; or
(k) if any Guarantor defaults under or attempts to withdraw, cancel or
disclaim liability under any Indemnity pursuant to the terms therein; or
(l) if the Mortgagor shall default in the observance or performance of
any term, covenant or condition of the Ground Lease on the part of the
Mortgagor, as lessee thereunder, to be observed or performed beyond any
applicable notice and cure periods under the Ground Lease; or
(m) if the leasehold estate created by the Ground Lease shall be
surrendered, in whole or in material part, or if the Lease shall be
terminated or canceled for any reason or under any circumstance whatsoever,
or if any of the terms, covenants or conditions of the Ground Lease shall
in any manner be materially modified, changed, supplemented, altered or
amended without the consent of the Mortgagee, which consent shall not be
unreasonably withheld.
6.2. Remedies. If an Event of Default shall occur and be continuing,
the Mortgagee, at its option, may:
6.2.1. by notice to the Mortgagor, declare the entire principal amount of
the Note then outstanding and all accrued and unpaid interest thereon and all
other Obligations of the Mortgagor to the Mortgagee to be immediately due and
payable, and upon such declaration such principal and interest and all other
Obligations of the Mortgagor to the Mortgagee shall become and be immediately
36
due and payable, anything in the Note or in this Mortgage or in any of the other
Loan Documents to the contrary notwithstanding.
6.2.2. after commencement of such proceedings as may be required by any
applicable law, either in person, or by its agents or attorneys, or by a
court-appointed receiver, enter into and upon all or any part of the Mortgaged
Premises and exclude the Mortgagor, its agents and employees from possession;
and while in possession, use, operate, manage, control, and conduct the business
of, the Mortgaged Premises in such manner and to such extent as the Mortgagee
shall, in its reasonable discretion, determine to be appropriate, either itself
or by its employees, agents, attorneys or the receiver; and maintain and restore
the Mortgaged Premises and make all necessary or proper repairs, replacements,
alterations, and improvements as the Mortgagee, in its reasonable discretion,
determines to be advisable; and, without limiting the Mortgagee's rights under
Section 4.4.2, the Mortgagee (whether or not it shall have taken possession of
the Premises or obtained a receiver for the Mortgaged Premises) shall be
entitled to collect and receive all earnings, revenues, rents, issues, profits
and income of the Mortgaged Premises. After first deducting the amount of
expenses incurred in connection with the operation of the Mortgaged Premises,
including advances for maintenance, repairs, alterations, improvements, taxes,
assessments, insurance and other prior or current charges in respect of the
Mortgaged Premises or any part thereof, as well as compensation for the services
of the Mortgagee and for all attorneys, agents, consultants and other persons
engaged by it to render services in connection with the Mortgaged Premises, the
Mortgagee shall apply the balance of said moneys to the payment of the
Obligations. Any remaining moneys shall be remitted to the Mortgagor or to such
other person as lawfully may be entitled thereto. Any and all amounts advanced
by the Mortgagee as authorized, or contemplated, by this Section 6.2.2 shall
bear interest from the date advanced at the Default Rate and, together with such
interest, shall be added to the Obligations secured by this Mortgage, and shall
be payable by Mortgagor on demand.
6.2.3. with or without entry, either itself or by its agents or
attorneys:
(a) foreclose this Mortgage in accordance with the laws of the State
and the provisions hereof, for all of the Obligations or for any portion
thereof or any other sums secured hereby which are then due and payable,
subject to the continuing lien of this Mortgage for the balance of the
Obligations not then due; or
(b) take such steps to protect and enforce its rights whether by
action, suit or proceeding in equity or at law for the specific performance
of any covenant, condition or agreement in the Note or in this Mortgage, or
in aid of the execution of any power herein granted, or for any foreclosure
hereunder, or for the enforcement of any other appropriate legal or
equitable remedy or otherwise as the Mortgagee shall elect, including
bringing any appropriate action or proceeding to foreclose this Mortgage
and any other documents securing the Note and to sell, as an entirety or in
separate lots or parcels, the Mortgaged Property under the power of sale
hereinafter provided or the judgment or decree of a court or courts of
competent jurisdiction; and (c) to pursue any other remedy available to it.
The Mortgagee shall take action either by such proceedings or by the
exercise of its power with respect to entry and/or taking possession, or
both, as the Mortgagee may determine; and
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6.2.4. exercise any or all of its rights and remedies under the Loan
Documents in such order of priority as the Mortgagee shall determine in its sole
discretion. The Mortgagee may proceed in any such action to final judgment and
execution thereon for all sums due under Section 6.2.1, together with interest
on such sums at the Default Rate. Interest at the Default Rate shall be due on
any judgment obtained by the Mortgagee from the date of judgment until actual
payment is made of the full amount of the judgment by the Sheriff or otherwise.
6.3. Foreclosure; No Marshalling of Assets; Appointment of Receiver.
6.3.1. In case of a foreclosure sale, all of the Mortgaged Premises, at
the option of Mortgagee, in its sole discretion, may be sold in one or more
parcels even though the proceeds of such sale exceed or may exceed the
Obligations. The Mortgagee shall not be required to exercise any rights under
this Mortgage before proceeding against any other security, shall not be
required to proceed against other security before proceeding under this
Mortgage, and shall not be precluded from proceeding against any or all of any
security held by the Mortgagee for any or all of the Obligations in any order or
at the same time.
6.3.2. The Mortgagee, in any action to foreclose this Mortgage, shall be
entitled, without notice and without regard to the adequacy of any security for
the Obligations or the solvency of any Person liable for the payment thereof, to
the appointment of a receiver of the rents and profits of the Mortgaged
Premises.
6.3.3. The Mortgagor agrees, to the full extent that it may lawfully do
so, that in any foreclosure or other action brought by the Mortgagee to enforce
this Mortgage, it will not at any time insist upon or plead or in any way take
advantage of any appraisement, valuation, stay, marshalling of assets,
extension, redemption or moratorium law now or hereafter in force and effect so
as to prevent, hinder, delay or otherwise affect the enforcement of the
provisions of this Mortgage or any rights or remedies the Mortgagee may have
hereunder or by law.
6.3.4. If the Mortgagee shall elect to accelerate the Obligations
following the occurrence of an Event of Default, the Mortgagor, within five (5)
days after demand, will pay to the Mortgagee, or any receiver appointed in
connection with the foreclosure of this Mortgage, any and all amounts then held
as security deposits under all Space Leases; and the Mortgagee or such receiver
shall be deemed to indemnify the Mortgagor against all claims of tenants in
respect of the security deposits so paid following such demand.
6.3.5. If an Event of Default shall occur and be continuing, in addition
to all other rights of the Mortgagee provided in this Mortgage or by law, the
Mortgagor shall, on demand, surrender possession of the Mortgaged Premises to
the Mortgagee; the Mortgagor consents that the Mortgagee may exercise any or all
of the rights specified in Section 6.2.2; and the Mortgagor irrevocably appoints
the Mortgagee its attorney-in-fact, coupled with an interest, for such purposes.
If the Mortgagor is then an occupant of all or any portion of the Mortgaged
Premises, it agrees to surrender possession of that part of the Mortgaged
Premises which it occupies to the Mortgagee immediately upon demand if an Event
of Default shall have occurred and be continuing. If the Mortgagor remains in
possession despite such demand, such possession shall, at the Mortgagee's
election, be as tenant of the Mortgagee; and the Mortgagor agrees to pay monthly
in advance to the Mortgagee such rent for the premises so occupied as the
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Mortgagee may demand, and in default of so doing, the Mortgagor may also be
dispossessed by summary proceedings or otherwise. If a receiver of the rents and
profits of the Mortgaged Premises shall be appointed, the covenants of this
Section 6.3.5 may be enforced by the receiver.
6.4. Legal Expenses of Mortgagee.
6.4.1. The Mortgagor will pay to the Mortgagee, on demand, all costs,
charges and expenses (including, without limitation, reasonable attorneys' fees
and disbursements) incurred or paid at any time by the Mortgagee (i) in
connection with any action or proceeding to foreclose this Mortgage or to
recover or collect all, or any portion of the Obligations; and (ii) in
connection with any modification or amendment or assignment of this Mortgage or
the other Loan Documents, together with interest on each such payment made by
the Mortgagee at the Default Rate from the date of the Mortgagee's demand for
such payment to the date of reimbursement by Mortgagor.
6.4.2. If any action or proceeding be commenced in which the Mortgagee is
made a party, or in which it becomes necessary to defend or uphold the lien of
this Mortgage, all reasonable sums paid by the Mortgagee for the expense of any
litigation to prosecute or defend the title, rights and lien created by this
Mortgage (including, without limitation, reasonable attorneys' fees) shall be
paid by the Mortgagor, together with interest thereon at the Default Rate from
the date of the Mortgagee's demand for such payment to the date of reimbursement
by Mortgagor.
6.5. Remedies Cumulative; No Waiver; Etc.
6.5.1. No remedy in this Mortgage conferred upon or reserved to the
Mortgagee is intended to be exclusive of any other remedy or remedies, and each
and every such remedy shall be cumulative, and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity.
No delay or omission by the Mortgagee in exercising any right or power arising
upon any Event of Default shall impair any such right or power, or shall be
construed to be a waiver of or acquiescence in any such Event of Default; and
every power and remedy given by this Mortgage to the Mortgagee may be exercised
from time to time as often as the Mortgagee may determine it is appropriate to
do so.
6.5.2. A waiver in one or more instances of compliance with any of the
terms, covenants, conditions or provisions of this Mortgage or of the other Loan
Documents shall apply to the particular instance or instances and at the
particular time or times only, and no such waiver shall be deemed a continuing
waiver. In any event, no waiver shall be effective, or be asserted by the
Mortgagor as having been made, unless set forth in a writing signed by the
Mortgagee.
6.5.3. The Mortgagor waives and renounces all homestead and similar
exemption rights with respect to the Mortgaged Premises provided for by the
Constitution and laws of the United States and of the State as against the
collection of the Loan Documents, or any part thereof.
6.6. No Merger. It is the intention of the parties to this Mortgage
that if the Mortgagee shall at any time hereafter acquire title to all or any
portion of the Mortgaged Premises, then, and until the Obligations have been
paid in full, the interest of the Mortgagee hereunder and the lien of this
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Mortgage shall not merge or become merged in or with the estate and interest of
the Mortgagee as the holder and owner of title to all or any portion of the
Mortgaged Premises and that, until such payment, the estate of the Mortgagee in
the Mortgaged Premises and the lien of this Mortgage and the interest of the
Mortgagee hereunder shall continue in full force and effect to the same extent
as if the Mortgagee had not acquired title to all or any portion of the
Mortgaged Premises.
6.7. Foreclosure of Mortgage by Power of Sale. Mortgagee may, either
with or without entry of taking possession of the Mortgaged Property as provided
in this Mortgage or otherwise, personally or by its agents or attorneys, and
without prejudice to the right to bring an action for foreclosure of this
Mortgage, sell the Mortgaged Property or any part thereof pursuant to any
procedures provide by applicable law, including, without limitation, the
procedures set forth in Article 14 of the New York Real Property Actions and
Proceedings Law (and any amendments or substitute statutes in regard thereto),
and all estate, right, title, interest, claim and demand therein, and right of
redemption thereof, at one or more sales as an entity or in parcels, and at such
time and place upon such terms and after such notice thereof as may be required
or permitted by applicable law.
All Notices hereunder or under any applicable law pertaining hereto
(including, without limitation, Article 14 of the New York Real Property Actions
and Proceeding Law) shall be in writing and shall be deemed sufficiently given
or served for all purposes when delivered (i) by personal service or courier
service, and shall be deemed given on the date when signed for or, if refused,
when refused by the person designated as an agent for receipt of service, (ii)
by facsimile transmission, and shall be deemed given when printed confirmation
of completion of transmission is generated by the sender's facsimile
transmission instrument, or (iii) by United States certified mail, return
receipt requested, postage prepaid, and shall be deemed given two (2) days after
being sent, to any party hereto at the following address: 00 Xxxxxxxxx
Xxxxxxxxxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 or such other address of which a
party shall have notified the party giving such notice in writing as aforesaid.
For purposes hereof, notices may be given by the parties hereto or by their
attorneys identified herein.
6.8. Purchase by Mortgagee. Without limiting any other provision
contained herein, upon any such foreclosure sale, the Mortgagee may bid for and
purchase the Mortgaged Property and, upon compliance with the terms of sale, may
hold, retain and possess and dispose of such property in its own absolute right
without further accountability.
6.9. Application of Indebtedness Toward Purchase Price. Without
limiting any other provision contained herein, upon any such foreclosure sale,
the Mortgagee may, if permitted by law, and after allowing for costs and
expenses of the sale, compensation and other charges, in paying the purchase
price, apply any portion or all of the indebtedness and other sums due to the
Mortgagee under the Note, this Mortgage or any other instrument securing the
Note, in lieu of cash, to the amount which shall, upon distribution of the net
proceeds of such sale, be payable thereon.
6.10. Waiver of Appraisement, Valuation, Stay, Execution and Redemption
Laws. Without limiting any other provision contained herein, the Mortgagor
agrees, to the full extent permitted by law that in case of a default on its
part hereunder, neither the Mortgagor nor anyone claiming through or under it
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shall or will set up, claim or seek to take advantage of any appraisement,
valuation, stay, extension or redemption laws now or hereafter in force, in
order to prevent or hinder the enforcement or foreclosure of this Mortgage or
the absolute sale of the Mortgaged Property or the final and absolute putting
into possession thereof, immediately after such sale, of the purchasers thereat,
and the Mortgagor for itself and all who may at any time claim through or under
it, hereby waives, to the full extent that may be lawfully so do, the benefit of
all such laws, and any and all right to have the assets comprising the Mortgaged
Property marshaled upon any foreclosure of the lien hereof and agrees that the
Mortgagee or any court having jurisdiction to foreclose such lien may sell the
Mortgaged Property in part or as an entirety. Mortgagor agrees that neither it
nor any guarantor will assert a defense in any action to recover a deficiency
judgment following a foreclosure that the sales price realized at the sale was
less than the fair market value.
6.11. Receiver. Without limiting any other provision contained herein,
if an Event of Default shall have occurred, the Mortgagee, to the extent
permitted by law and without regard to the value, adequacy or sufficiency of the
security for the indebtedness and other sums secured hereby, shall be entitled
as a matter of right if it so elects to the appointment of a receiver to enter
upon and take possession of the Mortgaged Property and to collect all rents,
income and other benefits thereof and apply the same as the court may direct.
The expenses, including receiver's fees, reasonable attorneys' fees, costs and
reasonable agent's compensation, incurred pursuant to the powers herein
contained shall be secured by this Mortgage. The right to enter and take
possession of and to manage and operate the Mortgaged Property and to collect
all rents, income and other benefits thereof, whether by a receiver or
otherwise, shall be cumulative to any other right or remedy hereunder of
afforded by law or in equity and may be exercised concurrently therewith or
independently therewith or independently thereof. The Mortgagee shall be liable
to account only for such rents, income and other benefits actually received by
the Mortgagee, whether received pursuant to this paragraph or paragraph 3.03.
Notwithstanding the appointment of any receiver or other custodian, the
Mortgagee shall be entitled as pledged to the possession and control of any
cash, deposits, or instruments at the time held by, or payable or deliverable
under the terms of this Mortgage to, the Mortgagee.
6.12. Suits to Protect the Mortgaged Property. Without limiting any
other provision contained herein, the Mortgagee shall have the power and
authority to institute and maintain any suits and proceedings as the Mortgagee
may deem advisable in its judgment (a) to prevent any impairment of the
Mortgaged Property by any acts which may be unlawful or any violation of this
Mortgage, (b) to preserve or protect its interest in the Mortgaged Property, and
(c) to restrain the enforcement of or compliance with any legislation or other
governmental enactment, rule or order might impair the security hereunder or be
prejudicial to the Mortgagee's interest.
6.13. Proofs of Claim. Without limiting any other provision contained
herein, in case of any receivership, insolvency, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceedings affecting the
Mortgagor or any guarantor, co-maker or endorser of any of the Mortgagor's
obligations, its creditors or its property, the Mortgagee, to the extent
permitted by law, shall be entitled to file such proofs of claim and other
documents as may be necessary or advisable in order to have its claims allowed
in such proceedings for the entire amount due and payable by the Mortgagor under
the Note, this Mortgage and any other instrument securing the Note, at the date
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of the institution of such proceedings, and for any additional amounts which may
become due and payable by the Mortgagor after such date.
6.14. Delay or Omission; No Waiver. No delay or omission of Mortgagee
or of any holder of the Note to exercise any right, power or remedy accruing
upon any Event of Default shall exhaust or impair any such right, power or
remedy or shall be construed to waive any such Event of Default or to constitute
acquiescence therein. Every right, power and remedy given to the Mortgagee may
be exercised from time to time and as often as may be deemed expedient by the
Mortgagee.
6.15. No Waiver of One Default to Affect Another. No waiver of any
Event of Default hereunder shall extend to or affect any subsequent or any other
Event of Default then existing, or impair any rights, powers or remedies
consequent thereon. If the Mortgagee (a) grants forbearance or an extension of
time for the payment of any sums secured hereby; (b) takes other or additional
security for the payment thereof; (c) waives or does not exercise any right
granted in the Note, this Mortgage or any instrument securing the Note; (d)
releases any part of the Mortgaged Property from the lien of this Mortgage or
any other instrument securing the Note; (e) consents to the filing of any map,
plat or replat of the Land; (f) consents to the granting of any easement on the
Land; or (g) makes or consents to any agreement changing the terms of this
Mortgage or subordinating the lien or any charge hereof, then, except as
otherwise provided by an instrument executed by the Mortgagee, no such act or
omission shall release, discharge, modify, change or affect the original
liability under the Note, this Mortgage or otherwise of the Mortgagor or any
subsequent purchaser of the Mortgaged Property or any part thereof or any maker,
co-signer, endorser, surety or guarantor. No such act or omission shall preclude
the Mortgagee from exercising any right, power or privilege herein granted or
intended to be granted in case of any Event of Default then existing or of any
subsequent Event of Default nor, except as otherwise expressly provided in an
instrument executed by the Mortgagee, shall the lien of this Mortgage be altered
thereby, except to the extent of releases as described in subparagraph (d) above
of this paragraph 3.12. In the event of the sale or transfer by operation of law
or otherwise of all or any part of the Mortgaged Property, the Mortgagee,
without notice to any person, firm or corporation, is hereby authorized and
empowered to deal with any such vendee or transferee with reference to the
Mortgaged Property or the indebtedness secured hereby, or with reference to any
of the terms or conditions hereof, as fully and to the same extent as it might
deal with the original parties hereto and without in any way releasing or
discharging any of the liabilities or undertakings hereunder.
6.16. Discontinuance of Proceedings; Position of Parties Restored. If
the Mortgagee shall have proceeded to enforce any right or remedy under the
Mortgage by foreclosure, entry or otherwise and such proceedings shall have
resulted in a final determination adverse to the Mortgagee, then and in every
such case the Mortgagor and the Mortgagee shall be restored to their former
positions and rights hereunder, and all rights, powers and remedies of the
Mortgagee shall continue as if no such proceedings had occurred or had been
taken.
6.17. Remedies Cumulative. No right, power or remedy conferred upon or
reserved to the Mortgagee by the Note, this Mortgage or any other instrument
securing the Note is exclusive of any other right, power or remedy, but each
such right, power and remedy shall be cumulative and concurrent and shall be in
addition to any other right, power and remedy given hereunder or under the Note
or any other instrument securing the Note, or now or hereafter existing as law,
in equity or by statute.
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6.18. Defeasance. If Mortgagor shall pay or cause to be paid the
principal of and premium, if any, and interest on the Note, in accordance with
the terms thereof, and if the Mortgagor shall pay or cause to be paid all sums
payable hereunder by the Mortgagor and shall comply with all terms, conditions
and requirements hereof, then this Mortgage shall be null and void and of no
further force and effect and shall be released by the Mortgagee upon the written
request and at the expense of the Mortgagor.
6.19. Interest After Default. Upon default or after maturity or after
judgment has been rendered on the Note, Mortgagor's right to select pricing
options shall cease and the unpaid principal of all advances shall, at the
option of the Mortgagee, bear interest at the Involuntary Rate.
6.20. Construction of Mortgagee Rights. All covenants hereof shall be
construed as affording to the Mortgagee rights additional to and not exclusive
of the rights conferred under the provisions of Section 254 and 273 of the Real
Property Law of the State of New York.
ARTICLE VII
Provisions of General Application
7.1. Modifications. No change, amendment, termination, modification or
cancellation of this Mortgage, or of any part hereof, shall be valid unless set
forth in a writing signed by the Mortgagor and the Mortgagee, except that only
the Mortgagee need sign any satisfaction of this Mortgage.
7.2. Notices. All notices, demands, requests, consents, approvals or
other communications (each, a "Notice") given or required to be given hereunder
shall be deemed given or furnished hereunder when addressed to the party
intended to receive the same, at the address of such party set forth below:
If to Mortgagee:
Fleet National Bank
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Vice President
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If to Mortgagor:
Port Bay Associates, LLC
c/o Acadia Realty Trust
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
with a copy to Xxxxxxx Xxxxxx at the same address
Each such Notice shall be effective (i) if delivered by hand, at the time of
delivery to the address specified herein below or (ii) if given by first-class
certified or first-class registered mail, return receipt requested postage
prepaid, on the fourth Business Day (as "Business Day" is defined in the Note)
following the time of mailing in the manner aforesaid, or (iii) on the Business
Day immediately following the delivery of such notice to an overnight delivery
service.
Any party may change the address to which any such notice, report,
demand or other instrument is to be delivered or mailed, by furnishing written
notice of such change to the other parties, but no such notice of change shall
be effective unless and until received by such other parties.
7.3. The Mortgagee's Rights to Perform the Mortgagor's Covenants. If
the Mortgagor shall fail to pay or cause payment to be paid to the Mortgagee in
accordance with the terms of the Loan Documents, or to perform or observe any
other term, covenant, condition or obligation required to be performed or
observed by the Mortgagor under this Mortgage or the other Loan Documents,
without limiting any other provision of this Mortgage, and without waiving or
releasing the Mortgagor from any obligation or default hereunder, after giving
any notice to the Mortgagor required hereunder and after the passage of any
applicable cure periods (or without such notice in the event of an emergency),
the Mortgagee (or any receiver of the Mortgaged Premises) shall have the right,
but not the obligation, to make any such payment, or to perform any other act or
take any appropriate action, including, without limitation, entry on the
Mortgaged Premises and performance of work thereat, as it, in its sole
discretion, may deem necessary to cause such other term, covenant, condition or
obligation to be promptly performed or observed on behalf of the Mortgagor or to
protect the security of this Mortgage. All amounts advanced by, or on behalf of,
the Mortgagee in exercising its rights under this Section 7.3 (including, but
not limited to, legal expenses and disbursements incurred in connection
therewith), together with interest thereon at the Default Rate from the date of
the Mortgagee's demand upon the Mortgagor for reimbursement of such sums until
reimbursement by the Mortgagor, shall be payable by the Mortgagor to the
Mortgagee upon demand and shall be secured by this Mortgage.
7.4. Additional Sums Payable by the Mortgagor. All sums which, by the
terms of this Mortgage or any of the other Loan Documents are payable by the
Mortgagor to the Mortgagee shall, together with the interest thereon provided
for herein or in the Note or such other Loan Documents, be added to and deemed
part of the Obligations secured by the lien of this Mortgage whether or not the
provision which obligates the Mortgagor to make any such payment to the
Mortgagee specifically so states.
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7.5. Captions. The captions used in this Mortgage are inserted only as
a matter of convenience and for reference, and in no way define, limit, enlarge
or describe the scope or intent of this Mortgage or in any other way affect this
Mortgage or the construction of any provision hereof.
7.6. Successors and Assigns. The covenants and agreements contained in
this Mortgage shall run with the land and bind the Mortgagor, the heirs,
legatees, legal representatives, successors and assigns of the Mortgagor and of
each Person constituting the Mortgagor and all subsequent owners, encumbrances
and Space Tenants of the Mortgaged Premises, or any part thereof; and shall
inure to the benefit of the Mortgagee, its successors and assigns and all
subsequent beneficial owners of this Mortgage.
7.7. Gender and Number. Wherever the context of this Mortgage so
requires, the neuter gender includes the masculine and/or feminine gender and
the singular number includes the plural.
7.8. Severability. If any one or more of the provisions contained in
this Mortgage shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Mortgage; and this Mortgage shall,
in such event, be construed as if such invalid, illegal or unenforceable
provision had never been included.
7.9. Usury. Anything in this Mortgage or the other Loan Documents to
the contrary notwithstanding, the Mortgagee shall never be entitled to receive,
collect or apply as interest on the principal amount of the Obligations secured
hereby any amount in excess of the maximum rate of interest permitted to be
charged by applicable law. In the event the Mortgagee ever receives, collects or
applies as interest any such excess, the amount which would be excessive
interest shall be applied to the reduction of the principal amount of said
Obligations; and if said principal amount shall have been paid in full, shall be
remitted to the Mortgagor. In determining whether or not the interest paid or
payable in any specific instance shall exceed the highest lawful rate, the
Mortgagor and the Mortgagee shall to the maximum extent permitted by applicable
law (i) characterize any non-principal payment as an expense, fee or premium
rather than as interest, (ii) exclude voluntary prepayments and the effects
thereof and (iii) "spread" the total amount of interest throughout the entire
contemplated terms of the obligations so that the interest rate is uniform
throughout the entire said term.
7.10. Subrogation. Should the proceeds of the loan made by the
Mortgagee to the Mortgagor and evidenced by the Note be used directly or
indirectly to discharge, or satisfy, in whole or in part, any prior lien or
encumbrance upon the Mortgaged Premises or any part thereof, then the Mortgagee
shall be subrogated to such other lien or encumbrance and to any additional
security held by the holder thereof and shall have the benefit of the priority
thereof.
7.11. Controlling Law. This Mortgage shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York.
45
7.12. Entire Agreement. This Mortgage, together with the other Loan and
Loan Documents, embodies the entire agreement and understanding between the
parties relating to the subject matter hereof.
7.13. Jurisdiction. Any legal action or proceeding with respect to the
Note or any of the Loan Documents may be brought in the courts of the States of
New York or if the requisites of jurisdiction obtain, of the United States of
America for the Southern or Eastern District of New York and, by execution and
delivery hereof, the Mortgagor hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Nothing herein, however, shall affect the right of the Mortgagee to
commence legal proceedings or otherwise proceed against the Mortgagor in any
other jurisdiction. The Mortgagor hereby waives any claim that New York or any
such District is an inconvenient forum and any claim against the Mortgagee for
consequential, special or punitive damages respecting the Loan Documents.
7.14. Reappraisal or Subsequent Environmental Reports of Mortgaged
Premises. At intervals in Mortgagee's sole discretion, the Mortgagee may order a
reappraisal or an environmental assessment of the Mortgaged Property by an
independent appraiser or environmental firm, as applicable, of its selection, or
by an employee of the Mortgagee, and Mortgagor agrees to allow access to the
Mortgaged Property to such independent appraiser, environmental firm, or
employee of the Mortgagee, and in the case of an independent appraiser or
environmental firm, to pay to the Mortgagee, within thirty (30) days of billing,
such appraiser's or environmental firm's, as applicable, reasonable fee and
expenses. However, notwithstanding the above, Mortgagor shall be responsible for
paying the cost of up to one appraisal per annum if more than one appraisal per
annum is required by the Mortgagee
7.15. Agent for Service of Process. The Mortgagor agrees to submit to
personal jurisdiction in the State of New York in any action or proceeding
arising out of this Mortgage and in furtherance of such agreement designates CT
Corporation System, 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 as the
agent for service of process in any such action or proceeding.
7.16. Consent of Mortgagee. Except as may be specifically provided for
herein, whenever the consent or approval of the Mortgagee is required, the
decision whether to consent or approve shall be in the sole and absolute
discretion of the Mortgagee.
7.17. Construction of Loan Document. This Mortgage, the Note and all
other documents executed and delivered in connection herewith or therewith shall
be given a fair and reasonable construction in accordance with the intention of
the parties as expressed herein and therein and without regard for any rule of
law requiring construction against the party who prepares such instruments.
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ARTICLE VIII
Intentionally Deleted.
ARTICLE IX
Particular Provisions
---------------------
The foregoing Articles of this Mortgage are subject to the following
further provisions, if any, set forth in this Article IX.
9.1. The phrase "if an Event of Default has occurred and is continuing"
or the like contained herein, in the Note or in any other Security Document is
not intended to mean, and shall not be construed, by implication or otherwise,
to mean that Mortgagor or any other Person shall have a right to cure an Event
of Default following acceleration by Mortgagee, and the only right Mortgagor or
any other Person shall have upon the occurrence of any Event of Default and
Mortgagee's election to accelerate repayment of the Obligations is to tender
payment in full of the Obligations unless Mortgagee, in its sole discretion,
agrees in writing to waive such Event of Default.
9.2. Interest Rate Protection Agreement. This Mortgage shall secure the
payment of all amounts that may be due and payable pursuant to the terms of any
interest rate swap, cap or other interest rate protection agreement
(collectively, the "Hedge Agreement") now or hereafter entered into between the
Mortgagor and the Mortgagee or their respective designees, including, without
limitation, the obligation of the Mortgagor to make payments thereunder and to
pay any amounts of which may become due upon a termination thereof. All such
payments with respect to such Hedge Agreement shall be deemed to be additional
interest under the Note. The additional interest shall be secured by this
Mortgage (even if the principal balance has been paid in full) and the Mortgagor
shall not be entitled to a satisfaction, termination or release of this
Mortgage, and the lien and conveyance created by this Mortgage shall continue,
if and so long as any additional interest under the Note payable by the
Mortgagor remains outstanding and unpaid. A copy of the Hedge Agreement, if any,
is on file with the Mortgagor.
9.3. Mortgagor Acknowledgment. The Mortgagor hereby acknowledges that
it has received a complete copy of this Mortgage without charge.
9.4. Set-Off. Mortgagor represents, warrants and covenants that there
are no offsets, counterclaims or defenses against the Indebtedness, the Mortgage
or the Note and that Mortgagor and the undersigned has full power, authority and
legal right to execute this Mortgage and to keep and observe all of the terms of
this Mortgage on Mortgagor's part to be observed or performed.
Mortgagor hereby grants to Mortgagee a lien, security interest and
right of setoff as security for all liabilities and obligations to Mortgagee,
whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Mortgagee or any entity under the control of Fleet
47
Boston Financial Corporation or in transit to any of them. At any time after an
Event of Default, without demand or notice, Mortgagee may set off the same or
any part thereof and apply the same to any liability or obligation of Mortgagor
regardless of the adequacy of any other collateral securing the Loan. ANY AND
ALL RIGHTS TO REQUIRE MORTGAGEE TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT
TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE MORTGAGOR
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
9.5. Re-execution of Documents. Upon receipt of an affidavit of an
officer of the Mortgagee as to the loss, theft, destruction or mutilation of the
Note or any other security document which is not of public record, and, in the
case of any such loss, theft, destruction or mutilation, upon surrender of such
Note or other security document, Mortgagor will issue, in lieu thereof, a
replacement Note or other security document in the same principal amount thereof
and otherwise of like tenor.
9.6. Right to Prepay. Provided that the Mortgagor is not in default of
any of the covenants, conditions, or agreements contained in this Mortgage, the
Note or any other loan document delivered in connection thereto, the Mortgagor
may prepay the Loan, in whole or in part, in accordance with, and subject to,
the prepayment provisions set forth in Paragraph 10 of the Note, which Paragraph
10 includes provisions for payment of a yield maintenance premium under certain
circumstances. The provisions of Paragraph 10 of the Note is incorporated herein
by this reference, and shall be deemed an obligation secured by the lien of this
Mortgage.
9.7. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE MUTUALLY HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS MORTGAGE OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR MORTGAGEE TO ACCEPT THIS MORTGAGE AND MAKE THE LOAN.
ACCEPTANCE OF THIS MORTGAGE BY THE MORTGAGEE SHALL BE DEEMED TO CONSTITUTE A
WAIVER BY THE MORTGAGEE OF THE RIGHT TO TRIAL BY JURY IN THE EVENT OF ANY
LITIGATION IN RESPECT OF WHICH THE MORTGAGOR HAS WAIVED THE RIGHT TO TRIAL BY
JURY HEREUNDER.
9.8. Multiple Security. If (a) the Premises shall consist of one or
more parcels, whether or not contiguous and whether or not located in the same
county, or (b) in addition to this Mortgage, the Mortgagee shall now or
hereafter hold one or more additional mortgages, liens or other security
(directly or indirectly) for the Indebtedness upon other property in the State
in which the Premises are located, then to the fullest extent permitted by law,
the Mortgagee may, at its election, commence or consolidate in a single
foreclosure action all foreclosure proceedings against all such collateral
securing the Indebtedness (including the Mortgaged Property), which action may
be brought or consolidated in the courts of any county in which any of such
48
collateral is located. The Mortgagor acknowledges that the right to maintain a
consolidated foreclosure action is a specific inducement to the. Mortgagee to
extend the Indebtedness, and the Mortgagor expressly and irrevocably waives any
objections to the commencement or consolidation of the foreclosure proceedings
in a single action and any objections to the laying of venue or based on the
grounds of forum non conveniens which it may now or hereafter have.
9.9. Non-Residential Property. This Mortgage does not cover real
property principally improved by one or more structures containing in the
aggregate six (6) or less residential dwelling units having their own separate
cooking facilities.
9.10. Limited Recourse. Mortgagee expressly agrees that the extent of
liability of the Mortgagor for any sums due or obligations to perform under the
Note (except for the indemnities and/or guarantees delivered to Mortgagee by the
Mortgagor and/or the other Indemnitor dated as of this date in connection with
the loan evidenced by the Note, and secured, in part, by this Mortgage) is
limited to the Mortgagor's estate, right, title and interest in, to and under
the Mortgaged Property, the Mortgagor's right, title and interest to the leases
and all interest of undersigned thereto (the "Leases"), as described in this
Mortgage and/or any other document evidencing or securing the Note, as the same
may be amended from time to time (individually, herein referred to as the
"Instrument" or "Loan Document" and collectively, either as "Instruments" or
"Loan Documents") and the assignment of leases in rents dated of even date
hereof by the Mortgagor in favor of Mortgagee, as the same may be amended from
time to time (the "Assignment"), Mortgagee agreeing not to look personally to
the Mortgagor or to the other Indemnitor or to any principals, trustees members,
partners, shareholders, officers, directors, employees or agents of the
Mortgagor (collectively, the "Affiliates") but to look solely to the Mortgaged
Property, the Leases and the Collateral and no other assets of the Mortgagor,
Indemnitor or the Affiliates for payment of any of such sums; provided that the
foregoing shall not (i) constitute a waiver of any obligation evidenced by the
Note, this Mortgage, the Assignment and/or any other Instrument, (ii) limit the
right of the holder of the Note, this Mortgage, the Assignment, and/or any other
Instrument to name the Mortgagor as a party defendant in any action or suit for
judicial or nonjudicial foreclosure and sale under the Note, the Mortgage, the
Assignment and/or any other Instrument in any action or proceeding hereunder so
long as no judgment in the nature of a deficiency judgment or any other personal
or money judgment shall be asked for or taken against the Mortgagor or the
Affiliates, (iii) affect in any way the validity of any guaranty or indemnity
from the Mortgagor, the other Indemnitors and/or any other person of all or any
of the obligations evidenced and secured by the Note and/or the any of the other
Instruments, or the rights of the Mortgagee in connection with such guaranties
and/or indemnities to look to the property and assets of the Mortgagor, the
other Indemnitor, any guarantor, and/or any Affiliates, but only to the extent
provided in such guaranty and/or indemnity, as the case may be (iv) release or
impair the Note or the lien of the Mortgage, the Assignment, and/or other
Instrument, (v) prevent or in any way hinder the Mortgagee from exercising or
constitute a defense, an affirmative defense, a counterclaim or other basis for
relief in respect of the exercise of, any other remedy against the Mortgaged
Property, the Leases and/or the Collateral and/or the Mortgage, Assignment,
Instrument and/or any other instrument securing the Note including the other
loan documents executed and delivered to the Mortgagee in connection with the
transactions contemplated herein or as prescribed by law or in equity in case of
default, except that Mortgagee shall in no event seek any deficiency or other
49
personal or money judgment against the Mortgagor or any Affiliates except to the
extent provided for in such guarantees and/or indemnities, (vi) prevent or in
any way hinder the Mortgagee from exercising, or constitute a defense, an
affirmative defense, a counterclaim or other basis for relief in respect of the
exercise of, its remedies in respect of any deposits, insurance proceeds,
condemnation awards or other monies or other collateral or letters of credit
securing the Note, or (vii) be applicable to the responsible Person in the event
of and to the extent of fraud, misappropriation of funds or other property, or
intentional damage to any of the Mortgaged Premises or any other collateral
securing this Note or any part thereof intentionally inflicted in bad faith by
Mortgagor or any partner, principal, shareholder, officer, director, agent or
employee of Maker or any partner or principal of any of the foregoing or (viii)
be applicable to the liability arising in respect of hazardous materials or ADA
compliance.
Nothing herein shall be deemed to be a waiver of any right which the
Mortgagee may have under Section 506(a), 506(b), 1111(b) or any other provision
of the Bankruptcy Reform Act of 1978 or any successor thereto or similar
provisions under applicable state law to file a claim for the full amount of the
debt owing to the Mortgagee by the Mortgagor or to require that all of the
Mortgaged Property shall continue to secure all of the indebtedness owing to the
Mortgagee in accordance with the Note, this Mortgage, and the other Loan
Documents.
9.11. Obligations Unconditional. The Mortgagor's obligations under the
Note, the Mortgage and other Loan Documents are absolute and unconditional and
are valid irrespective of any other agreement or circumstance which might
otherwise constitute a defense to the obligations under the Note, the Mortgage
or the other Loan Documents or to the obligations of others related to it.
9.12. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
9.13. Waiver of Jury Trial. The Mortgagor and the Mortgagee hereby
irrevocably and unconditionally waive any and all rights to trial by jury in any
action, suit or counterclaim arising in connection with, out of or otherwise
related to the Note, the Mortgage and all other Loan Documents, the Debt and all
other obligations of the Mortgagor related thereto.
THIS MORTGAGE IS GIVEN ON THE CONDITION that if the Mortgagor, its
successors or assigns, shall well and truly pay the Note according to its tenor
and shall pay all other sums due under the Loan Documents and any Hedge
Agreement, and shall duly perform every covenant, term, condition and agreement
of the Mortgagor in this Mortgage and in the Note and other Loan Documents
contained and pay all of the other Obligations, then this Mortgage shall be
void; otherwise it shall remain in full force and effect.
[Remainder of page intentionally left blank.]
50
IN WITNESS WHEREOF, the Mortgagor and the Mortgagee have duly
executed this Agreement the day and year first above written.
PORT BAY ASSOCIATES, LLC
By: Acadia Realty Limited Partnership, its
Managing Member
By: Acadia Realty Trust, its General
Partner
By
-------------------------------
Xxxxxx Xxxxxxx
Senior Vice President
FLEET NATIONAL BANK
By
--------------------------------------
Xxxxxx X. Xxxxx
Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF ____________ )
On the _____ day of January, 2004, before me, the undersigned, a Notary
Public in and for said State, personally appeared Xxxxxx Xxxxxxx, personally
known to me or proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his capacity and that by his signature on the
instrument, the person or the entity upon behalf of which the person acted
executed the instrument.
--------------------------------------------
Notary Public
My Commission Expires:
------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF ____________ )
On the _____ day of January, 2004, before me, the undersigned,
a Notary Public in and for said State, personally appeared Xxxxxx X. Xxxxx,
personally known to me or proved to me on the basis of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged
to me that she executed the same in her capacity and that by her signature on
the instrument, the person or the entity upon behalf of which the person acted
executed the instrument.
--------------------------------------------
Notary Public
My Commission Expires:
------------------------
EXHIBIT A
DESCRIPTION
-----------
The Leasehold Interest in property described below as Parcels One and Two,
pursuant to Lease evidenced by a Memorandum thereof dated December 19, 1985
recorded on February 3, 1986 in Liber 9702 page 404 from Soundview Shopping
Center, Landlord, to Port Bay Associates (Now by Conversion: Port Bay
Associates, LLC), Tenant:
Parcel One:
-----------
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Incorporated Village of Port Washington North and partly in the Incorporated
Village of Manorhaven, Town of North Hempstead, County of Nassau and State of
New York, bounded and described as follows:
BEGINNING at a point on the southwesterly side of Waterview Drive (Harborview
Drive) distant 457.57 feet northwesterly from the extreme northwesterly end of
the arc of a curve connecting the southwesterly side of Waterview Drive with the
northwesterly side of Seaview Lane (Shoreview Lane):
RUNNING THENCE south 57 degrees 00 minutes 00 seconds west, 161 feet;
THENCE south 33 degrees 00 minutes 00 seconds east, 240 feet;
THENCE south 57 degrees 00 minutes 00 seconds west, 217 feet;
THENCE south 33 degrees 00 minutes 00 seconds east, 4.75 feet;
THENCE south 57 degrees 00 minutes 00 seconds west, 150 feet to the
northeasterly side of New Shore Road;
THENCE north 33 degrees 00 minutes 00 seconds west along the northeasterly side
of New Shore Road, 753.11 feet to the southeasterly side of Soundview Drive;
THENCE northeasterly along the southeasterly side of Soundview Drive along the
arc of a circle bearing to the left having a radius of 754.41 feet, a distance
along said curve of 282.65 feet;
THENCE north 35 degrees 32 minutes 01 seconds east, still along the
southeasterly side of Soundview Drive, 17.45 feet to the westerly end of the arc
of a curve connecting the southeasterly side of Soundview Drive with the
southerly side of Fishermans Drive;
THENCE northeasterly along the arc of said curve bearing to the right having a
radius of 20 feet, a distance along said arc of 27.15 feet to a point on the
southerly side of Fishermans Drive;
THENCE easterly along the southerly side of Fishermans Drive and along the arc
of a curve bearing to the left having a radius of 500 feet, a distance along
said arc of 324.09 feet to the extreme westerly end of the arc of a curve
connecting the southerly side of Fishermans Drive with the southwesterly side of
Waterview Drive;
THENCE southeasterly along said arc of a curve bearing to the right having a
radius of 10 feet, a distance along said arc of 14.98 feet to a point on the
southwesterly side of Waterview Drive (as widened);
THENCE along the southwesterly side of Waterview Drive, the following three
courses and distances:
1. South 18 degrees 00 minutes 00 seconds east, 120.26 feet;
2. Southeasterly along the arc of a curve bearing to the left having a radius
of 452 feet, a distance along said curve of 118.33 feet;
3. South 33 degrees 00 minutes 00 seconds east, 119.51 feet to the point or
place of BEGINNING.
Parcel Two:
-----------
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Incorporated Village of Port Washington North, Town of North Hempstead, County
of Nassau and State of New York, bounded and described as follows:
BEGINNING at a point on the southwesterly side of Waterview Drive, distant
217.57 feet northwesterly from the extreme northwesterly end of the arc of a
curve connecting the southwesterly side of Waterview Drive with the
northwesterly side of East Soundview Drive;
RUNNING THENCE south 57 degrees 00 minutes 00 seconds west, 181 feet;
THENCE north 33 degrees 00 minutes 00 seconds west, 255.37 feet;
THENCE north 57 degrees 00 minutes 00 seconds east, 139.23 feet;
THENCE north 33 degrees 00 minutes 00 seconds west, 0.41 feet along the face of
the building on the premises adjoining on the north;
THENCE north 57 degrees 00 minutes 00 seconds east, 45.77 feet to the
southwesterly side of Waterview Drive;
THENCE south 33 degrees 00 minutes 00 seconds east along the southerly side of
Waterview Drive, 255.78 feet to the point or place of BEGINNING.
The Fee Interest in property described below as Parcel Three:
Parcel Three:
-------------
ALL that certain plot, piece or parcel of land, situate, lying and being in the
Incorporated Village of Port Washington North, Town of North Hempstead, County
of Nassau and State of New York, more particularly bounded and described as
follows:
2
BEGINNING at a point on the northerly line of East Soundview Drive, formerly
Shoreview Lane, formerly Seaview Lane, said point of beginning being 140.24 feet
easterly from the terminus of an arc connecting the easterly line of New Shore
Road with the northerly line of East Soundview Drive, said arc having a radius
of 10.00 feet and a length of 15.71 feet
RUNNING THENCE from said point of beginning, north 33 degrees 00 minutes 00
seconds west, 159.51 feet;
THENCE north 57 degrees 00 minutes 00 seconds east, 378 feet;
THENCE south 33 degrees 00 minutes 00 seconds east, 217.57 feet;
THENCE along a curve to the right having a radius of 16.83 feet and a length of
27.62 feet;
THENCE westerly along the northerly line of East Soundview Drive, the following
four courses and distances:
1. South 61 degrees 00 minutes 00 seconds west, 33.14 feet;
2. On a curve to the right having a radius of 870.00 feet and a length of
204.99 feet;
3. South 74 degrees 30 minutes 00 seconds west, 64.98 feet; and
4. Along a curve to the left having a radius of 423.70 feet and a length of
65.81 feet, to the point or place of BEGINNING.
END OF EXHIBIT A
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