Exhibit 99.4
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VENTAS REALTY, LIMITED PARTNERSHIP,
as Mortgagor
to
BANK OF AMERICA, N.A., as Administrative Agent,
as Mortgagee
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AMENDED AND RESTATED MORTGAGE, SECURITY
AGREEMENT AND ASSIGNMENT OF RENTS
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Dated as of April 17, 2002
PREPARED BY AND UPON RECORDATION RETURN TO:
XXXXX & XXX XXXXX, PLLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Xx., Esq.
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THIS AMENDED AND RESTATED MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
RENTS (this "Mortgage") dated as of April 17, 2002, by and between VENTAS
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REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership, having its
principal office at 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, as mortgagor hereunder ("Mortgagor"), and BANK
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OF AMERICA, N.A., in its capacity as Administrative Agent ("Administrative
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Agent") for the Lenders (as hereinafter defined) from time to time party to the
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Credit Agreement (as hereinafter defined), with a mailing address of Agency
Management, 0000 Xxxxxx Xxxxxx, 0xx Xxxxx, Mail Code: CA5-701-05-19, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 (Bank of America, N.A., in its capacity as
Administrative Agent, is referred to herein as "Mortgagee").
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WHEREAS, Mortgagor previously executed and delivered that certain
Mortgage, Open-End Mortgage, Deed of Trust, Trust Deed, Deed to Secure Debt,
Credit Line Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Financing Statement dated as of January 31, 2000, by and between Mortgagor,
as mortgagor/trustor/grantor/debtor thereunder and Bank of America, N.A., as
administrative agent, mortgagee/beneficiary/grantee thereunder recorded in the
official records of Xxxxxx County, Indiana, as Instrument No. 2000-0038831 (the
"Original Mortgage");
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WHEREAS, the Mortgagor is the owner of the fee simple interest in the
real property described on Schedule A attached hereto and incorporated herein by
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reference;
WHEREAS, in connection with that certain credit facility in the amount of
$350 million (the "Credit Facility") established in favor of Mortgagor pursuant
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to the terms of that certain Second Amended and Restated Credit, Security and
Guaranty Agreement dated as of April 17, 2002 (as amended, modified, increased,
extended, renewed or replaced from time to time, the "Credit Agreement") among
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Mortgagor, as borrower thereunder, Ventas, Inc., certain subsidiaries of
Mortgagor, as guarantors, the Lenders identified therein (the "Lenders"), Bank
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of America, N.A., as issuing bank for the letter of credit thereunder,
Administrative Agent and UBS Warburg, as Syndication Agent, Mortgagor has
refinanced the debt obligations secured by the Original Mortgage. Terms used but
not otherwise defined herein shall have the meanings provided in the Credit
Agreement; and
WHEREAS, the Lenders agreed to make the requested Credit Facility
available to the Mortgagor provided that, among other things, the Mortgagor
amends and restates the Original Mortgage and Mortgagor and Administrative Agent
have agreed to amend and restate the Original Mortgage in its entirety.
NOW THEREFORE, in consideration of the premises herein stated and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Mortgagor and Administrative Agent agree that, effective as
of the date hereof, the terms of the Original Mortgage are hereby amended and
restated in their entirety as follows:
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, in this Mortgage, any reference to "Secured Indebtedness" shall
mean the total indebtedness, obligations and liabilities to be secured by this
Mortgage consisting of the sum of the following:
(i) the aggregate principal of all Loans and other advances
made and to be made by the Lenders under the Credit Agreement, the
outstanding amount of which shall not exceed Three Hundred Fifty Million
Dollars ($350,000,000) at any time, as the same may be increased to Four
Hundred Fifty Million Dollars ($450,000,000) per the terms of the Credit
Agreement; plus
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(ii) interest on the principal amount of all Loans made and to
be made by the Lenders under the Credit Agreement, as provided in the
Credit Agreement; plus
----
(iii) all other amounts payable under the Credit Agreement, this
Mortgage and any other Fundamental Document (as defined herein) which
relate to the Credit Agreement, or any of the security therefor, in each
case as the same may be amended, amended and restated, modified or
supplemented from time to time (including advances to protect the
collateral and all costs of enforcement), or as the maturities thereof
may be extended or renewed from time to time; plus
----
(iv) any and all Hedging Obligations payable by Borrower to the
Hedging Banks or any amounts payable to Bank of America, N.A. or any
other Lender in connection with any bank account maintained by the
Borrower or any other Credit Party (as defined in the Credit Agreement)
at Bank of America, N.A. or any other Lender or any other banking
services provided to the Borrower or any other Credit Party by Bank of
America, N.A., Xxxxxx Guaranty Trust Company of New York or any other
Lender with respect to, or in any way related to, any of the Fundamental
Documents; plus
----
(v) any other Obligations (as defined in the Credit Agreement)
of the Borrower; and
WHEREAS, the Lenders have required Mortgagor to execute and deliver this
Mortgage as a condition precedent to entering into the Credit Agreement and the
making of any Loans;
In consideration of the foregoing recitals and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
Mortgagor, to ratably secure the punctual payment by Mortgagor when due, whether
at stated maturity, by acceleration or otherwise, of the Secured Indebtedness
and the performance and observance of all other covenants, obligations and
liabilities of Mortgagor under the Credit Agreement, this Mortgage or any other
document referred to as a Fundamental Document under the Credit Agreement (the
Credit Agreement, this Mortgage and such other documents being herein
collectively called the "Fundamental Documents"), Mortgagor does hereby grant,
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bargain and sell, give, mortgage, warrant, convey, alien, remise, release,
assign, transfer, grant a security interest in, set over, deliver and confirm to
Mortgagee upon the terms and conditions of this Mortgage,
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with power of sale and right of entry and possession (to the extent permitted by
Applicable Law), each and all of the real property, and further grants to
Mortgagee a security interest in and to all other property, described in the
Granting Clauses set forth below.
The total outstanding principal amount of indebtedness secured by this
Mortgage shall not exceed Four Hundred Fifty Million Dollars ($450,000,000).
However, the security for such indebtedness shall not be reduced by any
prepayment or repayment thereof so long as any portion of such indebtedness
shall remain unpaid and that portion of such indebtedness last remaining unpaid
shall be deemed secured hereby.
GRANTING CLAUSES
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ALL of the estate, right, title and interest of the Mortgagor in and to
all of those certain lot(s), piece(s) or parcel(s) of land described on Schedule
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"A" attached hereto and made a part hereof for all purposes, and all tenements,
--
hereditaments, servitudes, appurtenances, rights, privileges, and immunities
belonging or appertaining thereto (the foregoing is collectively referred to as
the "Land"); and
----
TOGETHER WITH, all of the estate, right, title and interest of the
Mortgagor, as lessor, both at law and in equity, under any leases which may now
or hereafter be entered into in respect of the Mortgaged Property (as
hereinafter defined), as the same may be hereafter amended, modified, restated,
extended, supplemented, renewed or consolidated and all subleases, licenses,
occupancy agreements or concessions whereby any Person has agreed to pay money
or any consideration to the Mortgagor for the use, possession or occupancy of
the Mortgaged Property or any part thereof, and all rents, income, profits,
benefits, avails, advantages and claims against guarantors under any thereof
(each of the foregoing is referred to as a "Lease" and collectively are referred
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to as the "Leases") and all rights in and to any deposits of cash, securities or
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other property which may be held at any time and from time to time by Mortgagor
as the lessor under the Leases to secure the performance of the covenants,
conditions and agreements to be performed by any lessee thereunder; and
TOGETHER WITH, all right, title and interest of Mortgagor in and to all
structures, buildings, facilities and other improvements thereto or thereon
situate heretofore or hereafter erected or placed on the Land, and in and to all
building materials, equipment and fixtures of every kind and nature now or
hereafter located on the Land (the foregoing is collectively referred to as the
"Improvements"); and
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TOGETHER WITH, all right, title and interest of Mortgagor in and to all
tenements, hereditaments, rights, rights-of-way, easements, privileges,
liberties, riparian rights and appurtenances thereunto belonging, or in any way
appertaining to the Real Property (as such term is defined herein) (including,
without limitation, all rights relating to storm and sanitary sewer, water, gas,
electric, railway and telephone services); all right, title and interest, if
any, of the Mortgagor in and to all gas, oil, minerals, coal and other
substances of any kind or character underlying such Real Property; all estate,
claim, demand, right, title or interest, if any, of the Mortgagor in and to any
street, road, highway, or alley
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(vacated or otherwise) adjoining said Real Property or any part thereof (the
foregoing is collectively referred to as the "Appurtenances"); and
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TOGETHER WITH, all right, title and interest of Mortgagor in and to all
machinery, equipment, fixtures, furniture, fittings, inventory, appliances,
tools, accessories, building or construction materials and other property of
every kind whatsoever owned by Mortgagor (and, with respect to a lease of any of
the foregoing, to the extent of Mortgagor's rights as a lessee thereunder), or
in which Mortgagor has any right, title or interest, now or hereafter attached
to, or located in or upon, or used in connection with, the Real Property,
together with any and all additions thereto, substitutions therefor, and
repairs, replacements, improvements, and restorations thereof (including,
without limitation, all elevators, escalators, utility installations, plumbing,
boilers, heating, lighting, ventilation, air conditioning equipment, roof tanks,
motors, steam piping, sprinkler systems, cleaning equipment, spare parts of any
kind whatsoever, and other installations and fixtures of every kind whatsoever),
and all cash and non-cash proceeds thereof, all of which shall be deemed to be
and remain and form a part of the realty (to the maximum extent permitted by
law) and are covered by the lien of this Mortgage (the foregoing is collectively
referred to as the "Equipment"); and
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TOGETHER WITH, all right, title and interest of Mortgagor in and to all
contracts, agreements, options, rights of first refusal or rights of first offer
and other agreements, understandings or arrangements relating to the ownership,
construction, maintenance, repair, operation, occupancy, sale or financing of
the Real Property or any part thereof, and all income, profits, benefits,
avails, advantages and claims against guarantors under any of them (the
foregoing is collectively referred to as the "Contracts"); and
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TOGETHER WITH, all right, title and interest of Mortgagor in and to all
licenses, permits, certificates of occupancy and other governmental approvals
relating to construction, completion, occupancy, use or operation of the Real
Property or any part thereof, (all of the foregoing is collectively referred to
as the "Permits"); and
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TOGETHER WITH, all right, title and interest of Mortgagor in and to all
drawings, plans, specifications and similar or related items relating to the
Real Property (the foregoing is collectively referred to as the "Plans"); and
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TOGETHER WITH, all right, title and interest of Mortgagor in and to any
and all awards, damages, payment and other compensation, and any and all claims
therefor and rights thereto, which may result from taking or injury by virtue of
the exercise of the power of eminent domain, or any damage, injury or
destruction in any manner caused to the Real Property or the improvements
thereon, or any part thereof (the foregoing is collectively referred to as the
"Condemnation Awards"); and
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TOGETHER WITH, all right, title and interest of Mortgagor in and to the
insurance policies required to be maintained by the Mortgagor pursuant to the
Credit Agreement or this Mortgage (the foregoing is collectively referred to as
the "Insurance Policies") and all right, title and interest of Mortgagor in and
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to any and all proceeds of insurance policies of every kind whatsoever,
including title
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insurance (and all unearned premiums thereon), now or hereafter payable by
reason of any damage or destruction to the Real Property, whether payable under
the Insurance Policies or otherwise, and all interest thereon (the foregoing is
collectively referred to as the "Insurance Policies and Proceeds"); and
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TOGETHER WITH, all right, title and interest of the Mortgagor in and to
all other proceeds of the foregoing (the foregoing is collectively referred to
as the "Proceeds").
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(In this Mortgage, the Land, the Leases, the Appurtenances, the Improvements,
and the Equipment are collectively referred to as the "Real Property" provided,
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however, that where the context would require reference to tangible real
property, the term "Real Property" shall mean the Land, the Improvements, the
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Appurtenances and the Equipment and the other items of tangible property which
are referred to in the granting clauses hereinabove set forth. The Real Property
and all the other rights, interests, benefits and properties described in the
foregoing granting clauses are collectively referred to as the "Mortgaged
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Property").
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TO HAVE AND TO HOLD the above granted, conveyed, mortgaged and warranted
Mortgaged Property unto the Mortgagee, its successors, heirs and assigns, to its
and their own proper use, benefit and behoove forever;
PROVIDED THAT this Mortgage shall be discharged at the expense of
Mortgagor (i) upon payment in full of the Secured Indebtedness, (ii) if the
Credit Agreement provides for a discharge or release of the lien of this
Mortgage or for the reconveyance of the Mortgaged Property to Mortgagor upon the
payment to Mortgagee of a specified sum other than the entire Secured
Indebtedness (herein referred to as the "Release Price"), upon payment in full
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of the Release Price to Mortgagee or (iii) as otherwise expressly provided in
the Credit Agreement.
ARTICLE I
MORTGAGOR REPRESENTS, WARRANTS, COVENANTS AND AGREES WITH MORTGAGEE AS FOLLOWS:
Section 1. Definitions. In this Mortgage, all words and terms not
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defined herein shall have the respective meanings and be construed herein as
provided in the Credit Agreement. Any reference to a provision of the Credit
Agreement shall be deemed to incorporate that provision as a part hereof in the
same manner and with the same effect as if the same were fully set forth herein.
In this Mortgage, unless otherwise specified, references to this "Mortgage" or
to "Lease(s)," "Credit Agreement," or "Fundamental Document(s)" shall include
all renewals, modifications, amendments, restatements, supplements, extensions,
consolidations, substitutions, spreaders and replacements thereof, in whole or
in part.
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Section 2. Beneficiaries. Nothing herein expressed or implied is
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intended or shall be construed to confer upon, or to give to, any person other
than the Mortgagor and the Mortgagee any right, remedy or claim under, or by
reason hereof. All covenants, stipulations and agreements herein contained by
and on behalf of the Mortgagor shall be for the sole and exclusive benefit of
the Mortgagee, as agent for the Lenders.
Section 3. No Credit for Taxes Paid. Mortgagor shall not be entitled
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to any credit against payments due hereunder by reason of the payment of any
taxes, assessments, water or sewer rent or other governmental charges levied
against the Mortgaged Property.
Section 4. Representations: Seisin and Warranty. Mortgagor represents
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and warrants that, except as set forth on Schedule "B" attached hereto and made
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a part hereof for all purposes, the Mortgagor is the owner of a good, valid and
subsisting fee simple ownership interest in the Real Property (except for trade
fixtures and other improvements and property owned by tenants under any Lease),
free and clear of all liens other than liens which are Permitted Encumbrances
(as said term is defined in the Credit Agreement) under the Credit Agreement;
and as and to the extent required under Section 5.10 of the Credit Agreement,
Mortgagor shall warrant, defend and preserve such title and the rights granted
by this Mortgage with respect thereto against all claims of all persons and
entities. Mortgagor further warrants that it has the absolute right to grant
this Mortgage without the necessity of obtaining the consent of any Person. This
Mortgage constitutes a valid, binding and enforceable first lien on such portion
of the Mortgaged Property as constitutes real property and fixtures, subject
only to the Permitted Encumbrances. Mortgagor shall cause the representation and
warranties in this Section 4 to continue to be true in each and every respect.
Section 5. Preservation, Maintenance and Repair. Subject to the
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applicable terms of the Credit Agreement, including, without limitation, the
limitations set forth in Section 5.3 of the Credit Agreement, all buildings,
structures and other improvements which are presently erected or in the future
are to be erected upon the Real Property, shall be kept and maintained or caused
to be kept and maintained in good and substantial repair, working order and
condition and otherwise in accordance with the terms of the Credit Agreement.
All of Mortgagor's right, title and interest in and to all alterations,
replacements, renewals or additions made pursuant to this Section shall
automatically become and constitute a part of the Mortgaged Property and shall
be covered by the lien of this Mortgage.
Section 6. No Additional Liens. Except as otherwise expressly provided
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or permitted in the Credit Agreement or in any leases with tenants, the
Mortgagor shall not, without the prior express written consent of the Mortgagee,
remove or suffer to be removed from the Mortgaged Property any fixtures subject
to the lien hereof (as the term "fixtures" is defined by the law in the State in
which the Real Property is located) and including all personal property owned by
Mortgagor located on and used in connection with the Real Property, presently or
in the future to be incorporated into, installed in, annexed or affixed to the
Mortgaged Property (unless such fixtures and property have been replaced with
similar fixtures of equal or greater value or are sold or disposed of or removed
in accordance with the terms of the Credit Agreement); nor, except as expressly
provided or permitted pursuant to the Credit Agreement,
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will the Mortgagor execute or cause to be executed any security interest upon
any such fixtures, additions to, substitutions or replacements thereof or upon
any fixtures in the future to be installed in, annexed or affixed to the
Mortgaged Property, without the prior express written consent of the Mortgagee.
Section 7. Secured Indebtedness; Performance. The Mortgagor shall duly
---------------------------------
and punctually pay when due the Secured Indebtedness. Mortgagor will perform and
observe all of its obligations under the Credit Agreement and the other
Fundamental Documents to which it is a party. The Mortgagor shall duly perform
and abide by the terms and covenants herein.
Section 8. Waiver. The acceptance by the Mortgagee of any payments
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hereunder, after default, or the failure of the Mortgagee, in any one or more
instances to insist upon strict performance by the Mortgagor of any terms and
covenants of this Mortgage or to exercise any option or election herein
conferred, shall not be deemed to be a waiver or relinquishment for the future
of any such terms, covenants, elections or options.
Section 9. Mortgage as Security Agreement. This Mortgage constitutes a
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security agreement under the Uniform Commercial Code of the State in which the
Real Property is situated, and the Mortgagor hereby grants to the Mortgagee a
security interest in all of Mortgagor's right, title and interest in and to all
goods, inventory, furniture, fixtures and equipment, and all other machinery,
appliances, furnishings, tools, personal property and building materials, now
owned or hereafter acquired by the Mortgagor, and installed or to be installed
in or on the Mortgaged Property, or used or to be used in the business,
management or operation of the Mortgaged Property, and all substitutions,
replacements, additions and accessions thereto (provided that any such
substitutions, replacements, additions and accessions thereto shall be of equal
or greater value), together with all cash and non-cash proceeds thereof. The
mailing addresses of Mortgagor (Debtor) and Mortgagee (Secured Party) appear at
the beginning hereof. The Mortgagor shall execute, deliver, file and refile any
financing statements, or continuation statements that the Mortgagee may
reasonably require from time to time to perfect or confirm the lien of this
Mortgage with respect to such property. Without limiting the foregoing,
Mortgagor hereby irrevocably authorizes the Mortgagee to file UCC financing
statements and any amendments thereto or continuations thereof, and any other
appropriate security documents or instruments and to give any notices necessary
or desirable to perfect or confirm the lien of this Mortgage with respect to
such property, in all cases without the signature of Mortgagor or to execute
such items as attorney-in-fact for Mortgagor; provided, that Mortgagee shall
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provide copies of any such documents or instruments to Mortgagor. This
instrument shall be deemed a fixture financing statement under the Uniform
Commercial Code of the State in which the Real Property is situated.
Section 10. No Assignment. Unless otherwise expressly provided or
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permitted in the Credit Agreement, this Mortgage shall not be assigned by the
Mortgagor without the prior express written consent of the Mortgagee.
Section 11. Date of Mortgage. The date of this Mortgage shall be for
----------------
identification purposes only and shall not be construed to imply that this
Mortgage was executed on any date other than the
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respective dates of the acknowledgments of the parties hereto. This Mortgage
shall become effective upon its delivery.
Section 12. Taxes; Recording Taxes and Fees. (a) Subject to the terms
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of the Credit Agreement (including, without limitation, Mortgagor's right to
contest taxes as set forth in Section 5.9 of the Credit Agreement), Mortgagor
shall promptly pay and discharge or cause to be promptly paid and discharged all
taxes, assessments, municipal or governmental rates, charges, impositions, liens
and water and sewer rents or any part thereof (each an "Imposition",
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collectively the "Impositions"), heretofore or hereafter imposed upon the
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Mortgaged Property, Mortgagor or in respect of this Mortgage. Within fifteen
(15) Business Days of a written request by Mortgagee, Mortgagor shall submit or
cause to be submitted to Mortgagee receipted bills or other evidence showing
payment of the Impositions or that the same are being contested on the terms set
forth in the Credit Agreement.
(b) Mortgagor will pay all filing, registration or recording
fees, and all reasonable expenses incident to the execution and
acknowledgment of this Mortgage, any mortgage supplemental hereto, any
assignments of leases and rents, profits and leases, any security
instrument with respect to any equipment, any subordination,
non-disturbance and attornment agreement in connection with any Lease,
and any instrument of further assurance, and all federal, state, county
and municipal stamp taxes, mortgage recording taxes, and other taxes,
duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Mortgage, any mortgage
supplemental hereto, any security instrument with respect to any
equipment or any instrument of further assurance.
Section 13. Change in Laws. During the term of this Mortgage, in the
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event of the passage of any law or regulation which changes in any way the laws
now in force for the taxation of mortgages, or debts secured thereby, for state
or local purposes, or the manner of the operation of any such taxes, so as to
affect the interest of the Mortgagee or the Lenders, then and in such event, the
Mortgagor shall bear and pay the full amount of such taxes; provided however,
that Mortgagor shall not be responsible for the payment of any income or
franchise taxes of the Mortgagee or any of the Lenders.
Section 14. Insurance. Mortgagor shall maintain in full force and
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effect or cause to be maintained in full force and effect Insurance Policies
during the life of this Mortgage, insuring the Mortgaged Property against fire,
extended coverage and other insurable hazards, casualties and contingencies as
required under the Credit Agreement or other Fundamental Documents.
Section 15. Damage and Destruction. If the Mortgaged Property, or any
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material part thereof, shall be destroyed or damaged by fire or any other
casualty, whether insured or uninsured, Mortgagor shall give notice thereof to
Mortgagee within thirty (30) days after Mortgagor obtains knowledge of the
occurrence of such casualty. Notwithstanding anything to the contrary contained
herein or in any other provision of Applicable Law, the proceeds of insurance
policies coming into the possession of Mortgagee shall not be deemed trust funds
and Mortgagee shall be entitled to dispose of such funds as expressly provided
in the Credit Agreement. Mortgagee shall apply proceeds of insurance
8
as provided or permitted in the Credit Agreement, without affecting the lien of
the Mortgage for the full amount secured hereby before such payment took place.
Section 16. Condemnation/Eminent Domain. Promptly upon obtaining
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knowledge of the institution of any proceedings for the condemnation of the
Mortgaged Property, or any portion thereof which would result in Condemnation
Proceeds of $300,000 or more, Mortgagor will notify Mortgagee in writing of the
pendency of such proceedings. Mortgagor shall, at its sole expense, diligently
prosecute any such proceeding. All Condemnation Awards shall be held, applied,
and disbursed as expressly provided or permitted by the Credit Agreement.
Section 17. Compliance with Laws. The Mortgagor agrees to comply or
--------------------
cause compliance with all Applicable Law relating to the Mortgaged Property as
and to the extent required by the terms of the Credit Agreement. Without
limiting any other provision of this Mortgage, the Mortgagor shall not initiate,
consent to or affirmatively support any change in applicable zoning which would
materially and adversely affect the value of the lien created by this Mortgage
or seek any zoning variance or permission which would adversely and materially
affect the value of the lien created by this Mortgage, in either case without
the consent of Mortgagee, which consent shall not be unreasonably withheld, or
except to the extent Mortgagor is required to take any of such actions, or to
cooperate therewith pursuant to the terms of any Lease.
Section 18. Environmental Laws. Mortgagor shall comply or cause
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compliance with all of the terms, conditions and provisions of the Credit
Agreement relating to compliance with Environmental Laws; notification
requirements with respect to violations or potential violations thereof;
testing, sampling and investigation requirements; and all other requirements and
obligations with respect to Environmental Laws, in each case as and to the
extent required in the Credit Agreement. Nothing herein, in the Credit Agreement
or other Fundamental Documents shall be construed as devolving control of the
Real Property or imposing "owner or operator" status upon Mortgagee prior to any
purchase of the Real Property by Mortgagee at foreclosure or the taking of a
deed in lieu of foreclosure.
Section 19. Indemnification. If any action or proceeding arising out of
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or relating to the Mortgaged Property, this Mortgage or any of the transactions
contemplated herein shall be commenced, to which action or proceeding the holder
of this Mortgage is made a party, or in which it becomes necessary to defend or
uphold the lien of this Mortgage, the expense of any litigation to prosecute or
defend the rights and lien created by this Mortgage (including reasonable
attorneys' fees, charges and disbursements through all appeals but excluding any
such expenses to the extent incurred (x) by reason of the gross negligence or
willful misconduct, as determined by a final order or judgment of a court of
competent jurisdiction, of Mortgagee, or (y) in any litigation in which
Mortgagee and Mortgagor are adverse to each other, and in which the Mortgagor
prevails on its claims and the Mortgagee does not prevail on its defenses or its
counterclaims interposed in such litigation), shall be paid by the Mortgagor,
and until so paid, any such sum and the interest thereon shall be a lien on the
Mortgaged Property, prior to any right, or title to, interest in or claim upon
the Mortgaged Property attaching or accruing subsequent to the lien of this
Mortgage, and shall be deemed to be secured by this Mortgage. In any action or
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proceeding to foreclose this Mortgage, or to recover or collect the debt secured
hereby, the provisions of law respecting the recovery of costs, disbursements
and allowances shall prevail unaffected by this covenant.
Section 20. Assignment of Leases and Rents. The Mortgagor hereby
------------------------------
assigns to the Mortgagee all Leases, rents, issues and profits (collectively the
"Rents") relating to or arising out of or from the Mortgaged Property as further
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security for the payment of the Secured Indebtedness secured hereby, and the
Mortgagor grants to the Mortgagee the right to enter upon and to take possession
of the Mortgaged Property for the purpose of collecting the Rents and to let the
Mortgaged Property or any part thereof, and to apply the Rents after payment of
all necessary charges and expenses, on account of the Secured Indebtedness. The
assignments of the Leases and Rents are and shall be present, absolute and
irrevocable assignments and not merely the passing of a security interest and
such assignments shall continue in effect until all of the Secured Indebtedness
is paid in full and all the Obligations have been fully repaid and this Mortgage
discharged of record or until this Mortgage is otherwise released in accordance
with the terms of the Credit Agreement; provided however, for so long as no
Event of Default exists, the Mortgagee hereby waives the right to enter upon and
to take possession of the Mortgaged Property for the purpose of collecting the
Rents and further grants to Mortgagor a revocable license to collect the Rents.
Said license shall terminate and be revoked automatically upon the occurrence of
an Event of Default. Mortgagor shall not, without the written consent of the
Mortgagee (i) receive or collect rent from any tenant of the Mortgaged Property
or any part thereof for a period of more than one month in advance of the date
said rent is due per the terms of the applicable lease (excluding any security
deposits as provided in leases expressly approved by the Mortgagee or otherwise
permitted by the Credit Agreement); and (ii) except as expressly permitted by
the Credit Agreement, assign or attempt to assign the Leases or the Rents to any
Person other than Mortgagee. Upon the occurrence of any Event of Default,
Mortgagor shall pay the Rents or cause the Rents to be paid to the Mortgagee, or
to any receiver appointed to receive the Rents.
Section 21. Advances. Upon any Event of Default by Mortgagor, the
--------
Mortgagee may, at its option, remedy such Event of Default in accordance with
the terms of the Credit Agreement, and all payments made by the Mortgagee to
remedy an Event of Default (including reasonable attorneys' fees, charges and
disbursements through all appeals) and the total of any payment or payments due
from the Mortgagor to the Mortgagee which are in default, together with interest
thereon at the rate payable from time to time as provided under the Credit
Agreement (such interest to be calculated from the date of such advance to the
date of payment thereof by the Mortgagor), shall be added to the debt secured by
this Mortgage until paid, and the Mortgagor covenants to repay the same to the
Mortgagee upon demand. Any such sums and the interest thereon shall be a lien on
the Mortgaged Property prior to any other lien attaching to or accruing
subsequent to the lien of this Mortgage to the fullest extent permitted by law.
Section 22. No Waiver of Existing or Future Rights. No other security
--------------------------------------
previously or hereafter granted by Mortgagor to Mortgagee to secure payment of
the amount secured by this Mortgage shall be impaired or affected by this
Mortgage; and no security subsequently taken by Mortgagee to secure payment of
the amount secured by this Mortgage shall affect or impair the lien of this
Mortgage,
10
but all such additional security shall be deemed cumulative. Subject to the
terms of the Credit Agreement, Mortgagee may resort for payment of the amount
secured by this Mortgage to any security held by Mortgagee, in such order and
manner as Mortgagee, in its sole discretion, may elect.
Section 23. Permitted Exceptions. Except as permitted pursuant to the
--------------------
Credit Agreement, at no time throughout the term of this Mortgage shall the
Mortgagor create, incur, assume or suffer to exist any mortgage, pledge, lien,
security interest, encumbrance, attachment, levy, distraint or other judicial
process and burdens of any kind or nature on or with respect to any of the
Mortgaged Property.
Section 24. Lease Provisions. Mortgagor covenants and agrees
----------------
specifically with respect to each Lease, and the leasehold estate created
thereunder that:
(a) In case any proceeds of insurance upon the Land, the Mortgaged
Property or any part thereof are deposited with any person other than the
Mortgagee pursuant to the requirements of the Lease, then, upon Mortgagor
obtaining knowledge of same, Mortgagor will promptly notify the Mortgagee
in writing of the name and address of the person with whom such proceeds
have been deposited and the amount so deposited.
(b) Mortgagor will promptly notify the Mortgagee in writing of any
request made by either party to a Material Lease to the other party
thereto for arbitration or appraisal proceedings pursuant to such Lease,
and of the institution of any arbitration or appraisal proceedings and
promptly deliver to Mortgagee a copy of the determination of the
arbitrators or appraisers in each such proceeding.
(c) As further security for the Secured Indebtedness, Mortgagor
hereby agrees to deposit with the Mortgagee a fully executed counterpart
of the Lease and all supplements thereto and amendments thereof, in each
case if and to the extent Mortgagor possesses such documents, to be
retained by the Mortgagee until the Secured Indebtedness secured hereby
is fully paid or until this Mortgage is released in accordance with the
terms of the Credit Agreement.
(d) As to any Material Lease relating to all or any portion of the
Mortgaged Property, Mortgagor shall (i) as and to the extent required
under the Credit Agreement, appear in and defend any action or proceeding
arising under or in any manner connected with such Lease or the
obligations of Mortgagor as lessor thereunder; (ii) exercise, within ten
(10) days after a request by Mortgagee, any right to request from the
lessee a certificate with respect to the status thereof; (iii) deliver to
Mortgagee upon Mortgagee's request, a written statement, certified by
Mortgagor as being true, correct and complete, to the best of Mortgagor's
knowledge, containing the names of all lessees under Material Leases
affecting the Mortgaged Property, the terms of all such Leases and the
spaces occupied and rentals payable thereunder, and a list of all
Material Leases which are then in default, including the nature and
magnitude of such default.
11
(e) All Leases entered into by Mortgagor after the date hereof,
and all rights of any lessees thereunder shall be subject and subordinate
in all respects to the lien and provisions of this Mortgage unless
Mortgagee shall otherwise elect in writing; provided, however, that
Mortgagee hereby agrees to the inclusion in all such Leases of a
customary recognition and non-disturbance provision to the effect that
Mortgagee (and any Person succeeding to the interest of Mortgagee under
this Mortgage) will not disturb the applicable lessee's occupancy of the
Mortgaged Property, or any other rights of such lessee under the
applicable Lease, so long as the lessee is not in default under said
Lease (after the expiration of all applicable cure periods).
(f) All Leases entered into by Mortgagor after the date hereof
shall provide that if any act or omission of Mortgagor would give any
lessee under any such Lease the right, immediately or after lapse of a
period of time, to cancel or terminate such Lease, or to xxxxx or offset
against the payment of rent or to claim a partial or total eviction, such
lessee shall not exercise such right until it has given written notice of
such act or omission to Mortgagee and until a reasonable period for
remedying such act or omission shall have elapsed following the giving of
such notice without a remedy being effected.
(g) All Leases entered into by Mortgagor after the date hereof
shall provide that in the event of the enforcement by Mortgagee of any
remedy under this Mortgage, the lessee under each such Lease shall at
Mortgagee's option attorn to Mortgagee (or to any other Person succeeding
to the interest of Mortgagee as a result of such enforcement) and
recognize Mortgagee or such successor in interest as lessor under the
Lease without change in the provisions thereof; provided, however,
Mortgagee or such successor in interest shall not be: (i) bound by any
payment of an installment of rent or additional rent which may have been
made more than thirty (30) days before the due date of such installment;
(ii) bound by any amendment or modification to the Lease made without the
consent of Mortgagee or such successor in interest; (iii) liable for any
previous act or omission of Mortgagor (or its predecessors in interest);
(iv) responsible for any monies owing by Mortgagor to the credit of such
lessee or subject to any credits, offsets, claims, counterclaims, demands
or defenses which the lessee may have against Mortgagor (or its
predecessors in interest); (v) bound by any covenant to undertake or
complete any construction of the premises demised under any Lease or any
portion thereof; or (vi) obligated to make any payment to such lessee
other than any security deposit actually delivered to Mortgagee or such
successor in interest. Each such Lease shall provide that each lessee or
other occupant, upon request by Mortgagee or such successor in interest,
shall execute and deliver an instrument or instruments confirming such
attornment and non-disturbance.
Section 25. [reserved].
--------
Section 26. Transfer of Mortgaged Property. Except as permitted
------------------------------
pursuant to the Credit Agreement or an express provision of this Mortgage,
Mortgagor shall not sell, transfer, convey or assign
12
all or any portion of, or any interest in the Mortgaged Property, whether legal
or equitable, by outright sale, deed, installment sale contract, land contract,
contract for deed, leasehold interest, lease option, contract or any other
method of conveyance of real property interests.
Section 27. Future Advances. This Mortgage shall secure the payment of
---------------
all loans, monies, credit and other Secured Indebtedness advanced under the
Credit Agreement and the other Fundamental Documents and/or this Mortgage,
whether the entire amount shall have been advanced at the date hereof or at a
later date, or having been advanced, shall have been repaid in part and further
advances made at a later date, and whether or not related to the original
advances, together with the specified interest thereon all in accordance with
the terms of the Credit Agreement. It is understood that, at any time before the
cancellation and release of this Mortgage, the Credit Agreement and the other
Fundamental Documents and/or this Mortgage, including the terms of repayment,
may from time to time be modified or amended in writing thereon by the parties
liable thereon and the holder thereof to include any future advance or advances
for any purpose made by the holder, at its option, to or for said parties liable
thereon.
Section 28. [reserved].
--------
Section 29. Other Security. Mortgagee may resort to any other security
--------------
held by Mortgagee for the payment of the Secured Indebtedness or the performance
of the Obligations in such order and manner as Mortgagee may elect; provided
however, that Mortgagee may resort to the sale of any other security held by
Mortgagee for the payment of the Secured Indebtedness or the performance of the
Obligations to the extent that the sale of any such other security is, in the
reasonable judgment of Mortgagee, necessary for the payment of the Secured
Indebtedness or the performance of the Obligations and no such action by
Mortgagee shall operate to modify or terminate any of the rights, powers or
remedies contained in the Credit Agreement or other Fundamental Documents.
Section 30. No Exhaustion of Remedies Required. Notwithstanding
----------------------------------
anything contained herein to the contrary, Mortgagee shall not be under any duty
to Mortgagor, any Affiliate, or others, including, without limitation, the
holder of any junior, senior or subordinate mortgage on the Mortgaged Property
or any part thereof or on any other security held by Mortgagee, to exercise or
exhaust all or any of the rights, powers and remedies available to Mortgagee,
whether under this Mortgage or any other document evidencing or securing the
payment of the Secured Indebtedness or the performance of the Obligations prior
to the sale of the Mortgaged Property.
Section 31. No Merger of Estates. If the Real Property consists of a
--------------------
leasehold estate, then so long as the Secured Indebtedness shall remain unpaid,
unless Mortgagee shall otherwise consent, the fee title to any leasehold estate
in the Real Property created by the Lease shall not merge but shall always be
kept separate and distinct, notwithstanding the union of such estates either in
the lessor or in the lessee under the Lease or in a third party, by purchase or
otherwise. Mortgagor further covenants and agrees that, in case it shall acquire
the fee title, or any other estate, title or interest in the Real Property, or
any part thereof, covered by the Lease or this Mortgage, this Mortgage shall
attach to and cover and be a lien upon such other estate so acquired, and such
other estate so acquired by Mortgagor shall be mortgaged to
13
Mortgagee and the lien hereof spread to cover such estate with the same force
and effect as though specifically herein mortgaged. Mortgagor shall, upon
demand, execute such further instruments to facilitate the intent of this
Section as Mortgagee shall reasonably request.
Section 32. Revolving Loans. The Obligations secured by this Mortgage
---------------
include Revolving Loans made, and Obligations relating to Letters of Credit
issued or extended under the Credit Agreement which are advanced, paid and
readvanced from time to time. Notwithstanding the amount outstanding at any
particular time, this Mortgage secures the total amount of Obligations (except
to the extent, if any, that the amount secured by this Mortgage is limited as
specified in this Mortgage). The unpaid balance of the Revolving Loans and the
Obligations relating to Letters of Credit issued or extended under the Credit
Agreement may at certain times be, or be reduced to, zero. A zero balance, by
itself, does not affect any Issuing Bank's obligation to issue or extend Letters
of Credit or to make payments upon draws under Letters of Credit or any Lender's
obligation to advance Revolving Loans or to participate in Letters of Credit
subject to the conditions stated in the Credit Agreement. Each of the security
interest of the Mortgagee hereunder and the priority of the lien of this
Mortgage will remain in full force and effect with respect to all of the
Obligations notwithstanding such a zero balance of the Revolving Loans, and
obligations with respect to Letters of Credit and the lien of this Mortgage will
not be extinguished, terminated or released except as expressly provided in this
Mortgage or the Credit Agreement.
ARTICLE II
THE OCCURRENCE OF ANY OF THE FOLLOWING EVENTS SHALL BE AN
EVENT OF DEFAULT UNDER THIS MORTGAGE:
Section 1. Event of Default Under the Fundamental Documents. The
------------------------------------------------
occurrence of any Event of Default under the Credit Agreement or the other
Fundamental Documents.
Section 2. Transfers. If the Mortgaged Property, any part thereof, any
---------
interest therein, or any interest in Mortgagor shall be transferred, conveyed,
sold, assigned or encumbered, in violation of the terms and provisions of this
Mortgage, the Credit Agreement and/or any other Fundamental Document.
Section 3. Breach of Covenants. The Mortgagor shall have failed to
-------------------
perform any of the terms, covenants, conditions or undertakings contained in
this Mortgage and such failure shall continue unremedied for thirty (30) days
after Mortgagor receives written notice from Mortgagee of said failure (provided
that, for non-monetary defaults, if the nature of Mortgagor's failure is such
that more time is reasonably required in order to cure, such failure shall not
constitute an Event of Default, if Mortgagor commences to cure promptly within
such thirty (30) day period, keeps Mortgagee reasonably informed of efforts to
cure such failure, and diligently prosecutes the same to completion within a
reasonable time); provided, however, that such thirty (30) day period shall only
be available to the extent that the aforementioned failure hereunder does not
also constitute an Event of Default under the Credit Agreement
14
or the other Fundamental Documents for which no or a xxxxxxx xxxxx period is
available by the terms thereof.
ARTICLE III
SHOULD ANY EVENT OF DEFAULT BE MADE BY THE MORTGAGOR, THE MORTGAGEE
MAY TAKE ANY OR ALL OF THE FOLLOWING ACTIONS, AT THE SAME OR AT DIFFERENT
TIMES:
Section 1. Acceleration. The Mortgagee may declare the entire Secured
------------
Indebtedness to be due and payable immediately, and upon any such declaration,
the entire unpaid balance of the Secured Indebtedness shall be immediately due
and payable without presentment, demand, protest or further notice of any kind,
all of which are expressly waived by Mortgagor, anything herein or in any other
Fundamental Documents notwithstanding.
Section 2. Possession. The Mortgagee shall have the right forthwith
----------
after any such Event of Default to enter upon, and take possession of, the
Mortgaged Property, and to lease and let the said Mortgaged Property, and to
receive all the Rents thereof which are overdue, due or to become due, and to
apply the same, after payment of all necessary charges and expenses, on account
of the amounts hereby secured, and the holder of this Mortgage is given and
granted full power and authority to do any act or thing which the Mortgagor or
the successors or assigns of the Mortgagor who may then own the Mortgaged
Property might or could do in connection with the management and operation of
the Mortgaged Property (including, without limitation, complete the construction
of the Improvements and, in the course of such completion, make such changes as
Mortgagee deems advisable). This remedy shall be effective either with or
without any action brought to foreclose this Mortgage and without applying at
any time for a receiver of such rents. Costs and expenses (including, without
limitation, all reasonable attorneys' fees, expenses and charges through all
appeals) incurred by the Mortgagee under this Section shall become part of the
Secured Indebtedness secured hereunder.
Section 3. Foreclosure. (a) The Mortgagee may institute an action of
-----------
mortgage foreclosure, or take other action as the law may allow, at law or in
equity, for the enforcement of this Mortgage, and proceed thereon to final
judgment and execution of the entire amount secured hereby including costs of
suit, interest and reasonable attorneys' fees. In case of any sale of the
Mortgaged Property by virtue of judicial proceedings, the Mortgaged Property may
be sold in one parcel and as an entirety or in such parcels, manner or order as
the Mortgagee in its sole discretion may elect. The failure to make any tenant a
party defendant to a foreclosure proceeding and to foreclose its rights will not
be asserted by the Mortgagor as a defense in any proceeding instituted by the
Mortgagee to collect the obligations secured hereby or any deficiency remaining
unpaid after the foreclosure sale of the Mortgaged Property. Costs and expenses
incurred by the Mortgagee (including, without limitation, all reasonable
attorneys' fees, expenses and charges through all appeals) under this Section
shall become part of the Secured Indebtedness secured hereby. Proceeds realized
from a foreclosure of this Mortgage shall be applied in
15
accordance with the provisions of the Credit Agreement and Section 5 of this
Article 3 and, in any event, in accordance with the provisions of Applicable
Law.
(b) [reserved].
(c) Upon any foreclosure sale made under this Mortgage,
Mortgagee may bid for and acquire the Mortgaged Property by crediting the
sales price (after deducting the costs and expenses of sale and any other
sums which Mortgagee is authorized to deduct) upon the indebtedness or
other sums secured by this Mortgage.
(d) Any foreclosure sale made under this Mortgage shall operate
to divest all of the estate, right, title, interest, claim and demand
whatsoever, whether at law or in equity, of Mortgagor in and to the
Mortgaged Property and rights so sold, and shall be a perpetual bar, both
at law and in equity, against Mortgagor and all Persons who may at any
time claim the same, or any part thereof, from, through or under
Mortgagor. Mortgagor hereby expressly waives any right to direct the
order in which the Mortgaged Property shall be sold pursuant hereto.
(e) To the fullest extent permitted by law, Mortgagor will not
at any time insist upon, plead, or in any manner whatsoever claim, take
or insist upon any benefit or advantage of any stay, extension or
moratorium law; any law pertaining to the marshaling of assets or the
administration of estates or decedents; any exemption from execution or
sale (including, but not limited to, any exemption of homestead); any law
providing for valuation or appraisal prior to any sale pursuant to this
Mortgage, or any decree, judgment or order of any court of competent
jurisdiction; any law allowing redemption of Mortgaged Property sold; or
any law, now or at any time hereafter in force, which may affect the
covenants and terms or performance of this Mortgage; and Mortgagor (for
itself and all who claim under it) hereby expressly waives all benefit or
advantage of such laws, and covenants not to hinder, delay or impede the
execution of any power herein granted or delegated to Mortgagee, but to
suffer and permit the execution of every power as though no such laws had
been made or enacted.
(f) Mortgagor hereby requests that a copy of any Notice of
Default and a copy of any Notice of Sale under this Mortgage be mailed to
Mortgagor at Mortgagor's address for Notices as set forth in Section 2 of
Article IV.
Section 4. [reserved].
--------
Section 5. Application of Proceeds; Excess Monies. The proceeds of any
--------------------------------------
foreclosure sale made under or by virtue of this Article, together with any
other sums which may then be held by Mortgagee pursuant to this Mortgage,
whether under the provisions of this Article or otherwise, shall be applied as
follows:
16
(a) first, to Mortgagee for payment of the costs and expenses
(including, without limitation, all reasonable attorneys' fees, expenses
and charges through all appeals) of such sale and of all expenses,
liabilities and advances made or incurred by Mortgagee under this
Mortgage, and all taxes and assessments due upon the Mortgaged Property
at the time of such sale, except any taxes or assessments subject to
which the Mortgaged Property shall have been sold;
(b) second, to the payment of whatever may then remain unpaid
on account of the Secured Indebtedness with interest thereon on the date
of payment in accordance with the terms and any order of priorities
specified in the Credit Agreement;
(c) third, to the payment of any other sums required to be paid
by Mortgagor pursuant to any provisions of the Fundamental Documents,
including, without limitation, all expenses, liabilities and advances
made or incurred by Mortgagee under this Mortgage or in connection with
the enforcement thereof, together with interest on all such advances;
and,
(d) the balance to Mortgagor in accordance with the terms and
any order of priorities specified in the Credit Agreement.
Section 6. Deficiency Decree. If, at any foreclosure proceeding, the
-----------------
Mortgaged Property shall be sold for a sum less than the total amount of
indebtedness for which judgment is therein given, the judgment creditor shall be
entitled to the entry of a deficiency decree against Mortgagor and against the
property of Mortgagor for the amount of such deficiency; and Mortgagor does
hereby irrevocably consent to the appointment of a receiver for the Mortgaged
Property and the property of Mortgagor and of the Rents thereof after such sale
and until such deficiency decree is satisfied in full.
Section 7. Appointment of Receiver. The Mortgagee may have a receiver
-----------------------
of the Rents of the Mortgaged Property appointed without the necessity of
proving either the depreciation or the inadequacy of the value of the security
or the insolvency of the Mortgagor or any person who may be legally or equitably
liable to pay monies secured hereby, and the Mortgagor and each such person
waive such proof and consent to the appointment of a receiver.
Section 8. Waivers of Right. Along with any and all agreements,
----------------
waivers and relinquishments made by Mortgagor under this Mortgage and the other
Fundamental Documents, Mortgagor waives (i) the benefit of all Applicable Laws
now existing or that hereafter may be enacted providing for any appraisement
before sale of any portion of the Mortgaged Property; and (ii) the benefit of
all Applicable Laws that may be hereafter enacted in any way extending the time
for enforcing collection of the Secured Indebtedness, or creating or extending a
period of redemption from any sale made in collecting the Secured Indebtedness.
Mortgagor acknowledges and agrees that the Real Property Assets are located in
more than one State and therefor Mortgagor waives and relinquishes any and all
rights it may have, whether at law or equity, to require Mortgagee to proceed to
enforce or exercise any rights, powers and remedies they may have under the
Credit Agreement and the other Fundamental Documents in any particular manner,
in any particular order, or in any particular State or other
17
jurisdiction. Mortgagor further agrees that any particular proceeding, including
without limitation foreclosure through court action (in a state or federal
court) or power of sale, may be brought and prosecuted in the local or federal
courts of any one or more States as to all or any part of the Real Property,
wherever located, without regard to the fact that any one or more prior or
contemporaneous proceedings have been situated elsewhere with respect to any
other part of the Real Property. To the fullest extent that Mortgagor may do so,
Mortgagor agrees that Mortgagor will not at any time insist upon, plead, claim
or take the benefit or advantage of any law now or hereafter in force providing
for any redemption, valuation, appraisement, stay of execution or extension, and
Mortgagor, for Mortgagor, Mortgagors' heirs, devisees, representatives,
successors and assigns, and for any and all persons ever claiming any interest
in the Mortgaged Property, to the extent permitted by law, hereby waives and
releases all rights of redemption, valuation, appraisement, marshaling, stay of
execution, extension, and notice of election to mature or declare due the whole
of the Secured Indebtedness in the event of foreclosure of the liens hereby
created. Mortgagor further agrees that if any law referred to in this Section
and now in force, of which Mortgagor, Mortgagor's heirs, devisees,
representatives, successors and assigns or other person might take advantage
despite this Section, shall hereafter be repealed or cease to be in force, such
law shall not thereafter be deemed to preclude the application of this Section.
Mortgagor expressly waives and relinquishes any and all rights and remedies that
Mortgagor may have or be able to assert by reason of the laws of the State of
jurisdiction pertaining to the rights and remedies of sureties. Mortgagor makes
these agreements, waivers and relinquishments knowingly after consulting with
and considering the advice of independent legal counsel selected by Mortgagor.
Section 9. Other Remedies. In an Event of Default the Mortgagee may
--------------
also exercise any and all remedies available to it in law or in equity or in the
Credit Agreement or in the other Fundamental Documents without regard as to any
particular order of remedy exercised. Without limiting the foregoing, Mortgagee
shall be entitled to enforce payment and performance of the Secured Indebtedness
or the Obligations and to exercise all rights and powers under this Mortgage or
under any Fundamental Document or other agreement or any laws now or hereafter
in force, notwithstanding that some or all of the Secured Indebtedness and the
Obligations may now or hereafter be otherwise secured, whether by mortgage, deed
of trust, pledge, lien, assignment or otherwise. Neither the acceptance of this
Mortgage nor its enforcement, whether by court action or pursuant to the power
of sale or other powers herein contained, shall prejudice or in any manner
affect Mortgagee's right to realize upon or enforce any other security now or
hereafter held by Mortgagee, it being agreed that Mortgagee shall be entitled to
enforce this Mortgage and any other security now or hereafter held by Mortgagee
in such order and manner as Mortgagee may in Mortgagee's absolute discretion
determine. No right or remedy herein conferred upon or reserved to Mortgagee is
intended to be exclusive of any other remedy herein or by law provided or
permitted, but each shall be cumulative and shall be in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or by statute. Every power or remedy given by any of the Fundamental
Documents to Mortgagee, or to which Mortgagee may be otherwise entitled, may be
exercised concurrently or independently, from time to time and as often as may
be deemed expedient by Mortgagee and either of them may pursue inconsistent
remedies.
18
Section 10. Multisite Collateral. If(a) the Real Property shall consist
--------------------
of one or more parcels, whether or not contiguous and whether or not located in
the same county or city, or (b) in addition to this Mortgage, Mortgagee shall
now or hereafter hold or be the mortgagee or beneficiary of one or more
additional mortgages, liens, deeds of trust or other security (directly or
indirectly) securing the Secured Indebtedness upon other property in the State
in which the Real Property is located (whether or not such property is owned by
Mortgagor or by others) or (c) both the circumstances described in clauses (a)
and (b) shall be true, then to the fullest extent permitted by law, Mortgagee
may, at its election, commence or consolidate in a single trustee's sale or
foreclosure action all trustee's sale or foreclosure proceedings against all
such collateral securing the Secured Indebtedness (including the Mortgaged
Property), which action may be brought or consolidated in the courts of, or sale
conducted in, any county or city in which any of such collateral is located.
Mortgagor acknowledges that the right to maintain a consolidated trustee's sale
or foreclosure action is a specific inducement to Mortgagee to extend the
Secured Indebtedness, and 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. Mortgagor
----- --- ----------
further agrees that if Mortgagee shall be prosecuting one or more foreclosure or
other proceedings against a portion of the Mortgaged Property or against any
collateral other than the Mortgaged Property, which collateral directly or
indirectly secures the Secured Indebtedness, or if Mortgagee shall have obtained
a judgment of foreclosure and sale or similar judgment against such collateral
(or, in the case of a trustee's sale, shall have met the statutory requirements
therefor with respect to such collateral), then, whether or not such proceedings
are being maintained or judgments were obtained in or outside the State in which
the Real Property is located, Mortgagee may commence or continue any trustee's
sale or foreclosure proceedings and exercise its other remedies granted in this
Mortgage against all or any part of the Mortgaged Property and Mortgagor waives
any objections to the commencement or continuation of a foreclosure of this
Mortgage or exercise of any other remedies hereunder based on such other
proceedings or judgments, and waives any right to seek to dismiss, stay, remove,
transfer or consolidate either any action under this Mortgage or such other
proceedings on such basis. The commencement or continuation of proceedings to
sell the Mortgaged Property in a trustee's sale, to foreclose this Mortgage or
the exercise of any other rights hereunder or the recovery of any judgment by
Mortgagee or the occurrence of any sale by the Mortgagee in any such proceedings
shall not prejudice, limit or preclude Mortgagee's right to commence or continue
one or more trustee's sales, foreclosure or other proceedings or obtain a
judgment against (or, in the case of a trustee's sale, to meet the statutory
requirements for any such sale of) any other collateral (either in or outside
the State in which the Real Property is located) which directly or indirectly
secures the Secured Indebtedness, and Mortgagor expressly waives any objections
to the commencement of, continuation of, or entry of a judgment in such other
sales or proceedings or exercise of any remedies in such sales or proceedings
based upon any action or judgment connected to this Mortgage, and Mortgagor also
waives any right to seek to dismiss, stay, remove, transfer or consolidate
either such other sales or proceedings or any sale or action under this Mortgage
on such basis. It is expressly understood and agreed that, to the fullest extent
permitted by law, Mortgagee may, at its election, cause the sale of all
collateral which is the subject of a single trustee's sale or foreclosure action
at either a single sale or at multiple sales conducted simultaneously and take
such other measures as are appropriate in order to effect the agreement of the
parties to dispose of and administer all collateral
19
securing the Secured Indebtedness (directly or indirectly) in the most
economical and least time-consuming manner.
Section 11. JURY WAIVER. TO THE EXTENT NOT PROHIBITED BY APPLICABLE
-----------
LAW, WHICH CANNOT BE WAIVED, IT IS MUTUALLY AGREED BY AND BETWEEN MORTGAGOR AND
MORTGAGEE THAT THE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST THE OTHER ON
ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS MORTGAGE
AND/OR THE CONDUCT OF THE RELATIONSHIP BETWEEN MORTGAGOR AND MORTGAGEE.
Section 12. Service of Process. In the event the Mortgagee brings any
------------------
action or commences any proceeding to enforce the provisions of this Mortgage,
service of copies of the summons and complaint and any other process which may
be served in any such action or proceeding may be made in accordance with the
terms of the Credit Agreement. Nothing in this Section shall affect the right of
the Mortgagee to serve legal process in any other manner permitted by law.
Section 13. Invalidity of Certain Provisions. If the lien of this
--------------------------------
Mortgage is invalid or unenforceable as to any part of the Secured Indebtedness,
or if the lien is invalid or unenforceable as to any part of the Mortgaged
Property, the unsecured or partially secured portion of the Secured Indebtedness
shall be completely paid prior to the payment of the remaining and secured or
partially secured portion of the Secured Indebtedness, and all payments made on
the Secured Indebtedness, whether voluntary or under foreclosure or other
enforcement action or procedure, shall be considered to have been first paid on
and applied to the full payment of that portion of the Secured Indebtedness that
is not secured or fully secured by the lien of this Mortgaged Property.
ARTICLE IV
MISCELLANEOUS
Section 1. Cumulative Rights. The rights and remedies herein expressed
-----------------
to be vested in or conferred upon the Mortgagee shall be cumulative and shall be
in addition to and not in substitution for or in derogation of the rights and
remedies conferred by any Applicable Law. The failure, at any one or more times,
of the Mortgagee to assert the right to declare the Secured Indebtedness due or
the granting of any extension or extensions of time of payment of the Secured
Indebtedness either to the maker or to any other person, or taking of other or
additional security for the payment thereof, or releasing any security, or
changing any of the terms of this Mortgage, the Credit Agreement, the other
Fundamental Documents or other obligations accompanying this Mortgage, or waiver
of or failure to exercise any right under any covenant or stipulation herein
contained shall not in any way affect this Mortgage nor the rights of the
Mortgagee hereunder, nor operate as a release from any personal liability upon
the Credit Agreement and
20
the other Fundamental Documents or obligation accompanying this Mortgage, nor
under any covenant or stipulation therein contained, nor under any agreement
assuming the payment of said obligation.
Section 2. Notices. Notices and other communications provided for
-------
herein shall be in writing and shall be delivered or mailed (or if by facsimile
communications equipment, delivered by such equipment) addressed, (a) if to the
Mortgagee, to it at Agency Management, 0000 Xxxxxx Xxxxxx, 0/xx/ Xxxxx, Mail
Code: CA5-701-05-19, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx,
Facsimile No.: (000) 000-0000 with a copy to 000 Xxxxx Xxxxx Xxxxxx, 00/xx/
Xxxxx, XX-000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx, Attn: Xxxxxxx Xxxxxx, Facsimile
No.: (000) 000-0000, or (b) if to Mortgagor, to it at 0000 Xxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attn: General Counsel, Facsimile
No.: (000) 000-0000, with a courtesy copy to Barack, Xxxxxxxxxx, Xxxxxxxxxx &
Xxxxxxxxx, LLC, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx, Attn:
Xxxxxx X. Xxxxxxxxxx, Facsimile No.: (000) 000-0000, or (c) such other address
as such party may from time to time designate by giving written notice to the
other parties hereunder. Any failure of any Person giving notice pursuant to
this Section to provide a courtesy copy to a party as provided herein shall not
affect the validity of such notice. All notices and other communications given
to any party hereto in accordance with the provisions of this Mortgage shall be
deemed to have been given (x) on the date of receipt, when sent by registered or
certified mail, postage prepaid, return receipt requested, if by mail, (y) when
delivered, if delivered by hand or overnight courier service or (z) when receipt
is acknowledged, if by facsimile communications equipment, in each case
addressed to such party as provided in this Section or in accordance with the
latest unrevoked written direction from such party. No notice to or demand on
Mortgagor shall entitle Mortgagor to any other or further notice or demand in
the same, similar or other circumstances.
Section 3. Successors and Assigns. This Mortgage and all its terms,
----------------------
covenants, conditions, and provisions are intended and shall be held to be real
covenants running with the Land and shall bind Mortgagor and Mortgagor's heirs,
legal representatives, successors, assigns, and any and all subsequent owners,
successors in title, encumbrancers, and tenants of the Real Property and shall
inure to the benefit of Mortgagee and Mortgagee's successors, assigns and legal
representatives and all subsequent holders of this Mortgage.
Section 4. Gender. When such interpretation is appropriate, any word
------
denoting gender used herein shall include all persons, natural or artificial,
and words used in the singular shall include the plural.
Section 5. Severability. If any court determines that any provision of
------------
this Mortgage is void or unenforceable, the Mortgage shall remain in effect in
accordance with its terms excluding the provision declared void or
unenforceable, unless Mortgagee (in Mortgagee's exclusive discretion) determines
that the entire Mortgage should be terminated. Whenever possible, each provision
of this Mortgage shall be interpreted in such manner as to be effective and
valid under Applicable Law, but if any provision of this Mortgage shall be
prohibited by or invalid under Applicable Law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remaining provisions of this Mortgage.
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Section 6. Amendment. This Mortgage may not be changed or terminated, or
---------
any term or provision thereof waived or discharged, except in writing signed by
the party against whom such change, termination, waiver or discharge is sought.
Schedule "A" and Schedule "B" annexed hereto are made a part of this Mortgage as
though fully set forth herein.
SECTION 7. GOVERNING LAW. THIS MORTGAGE SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE IN WHICH THE REAL PROPERTY IS
LOCATED.
Section 8. Limitation of Interest. It is the intent of Mortgagor and
----------------------
Mortgagee in the execution of this Mortgage and all other Fundamental Documents
to contract in strict compliance with the usury laws governing the Secured
Indebtedness evidenced by the Credit Agreement and the other Fundamental
Documents. In furtherance thereof, Mortgagor and Mortgagee stipulate and agree
that none of the terms and provisions contained in the Fundamental Documents
shall ever be construed to create a contract for the use, forbearance or
detention of money requiring payment of interest at a rate in excess of the
maximum interest rate permitted to be charged by the laws governing the Loans
evidenced by the Credit Agreement and the other Fundamental Documents. Mortgagor
or any Guarantor, endorser or other party now or hereafter becoming liable for
the payment of the Secured Indebtedness shall never be required to pay interest
on the Secured Indebtedness at a rate in excess of the maximum interest that may
be lawfully charged under the laws governing the Loans evidenced by the Credit
Agreement and the other Fundamental Documents, and the provisions of this
Section shall control over all other provisions of the Credit Agreement and the
other Fundamental Documents and any other instrument executed in connection
herewith which may be in apparent conflict herewith. In the event any holder of
the Secured Indebtedness shall collect monies that are deemed to constitute
interest and that would otherwise increase the effective interest rate on the
Secured Indebtedness to a rate in excess of that permitted to be charged by the
laws governing the Loan evidenced by the Credit Agreement and the other
Fundamental Documents, all such sums deemed to constitute interest in excess of
the legal rate shall be applied to the unpaid principal balance of the Secured
Indebtedness and, if in excess of such balance, shall be immediately returned to
Mortgagor upon such determination.
Section 9. Conflict. In case of any conflict or inconsistency between any
--------
provision of this Mortgage and the Credit Agreement, the provisions of the
Credit Agreement shall control.
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THE MORTGAGOR HEREBY DECLARES THAT THE MORTGAGOR HAS READ THIS MORTGAGE,
HAS SIGNED THIS MORTGAGE AS OF THE DATE AT THE TOP OF THE FIRST PAGE AND THE
MORTGAGOR ACKNOWLEDGES THAT IT HAS RECEIVED A TRUE AND COMPLETE COPY OF THIS
MORTGAGE.
IN WITNESS WHEREOF, the Mortgagor and the Administrative Agent have duly
caused this Mortgage to be duly executed and delivered as of the day and year
first above written.
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ventas, Inc., a Delaware corporation,
its general partner
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: EVP
BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Principal
Done at New York, New York this 17th day of April, 2002.
In the Presence Of: Ventas Realty, Limited Partnership,
Mortgagor
Xxxxxxxxx X. Xxxxxx By: Xxxx X. Xxxxxxxx
----------------------------- -----------------------------------
Witness _______, duly authorized agent
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
At New York, New York on this 17th day of April, 2002, personally appeared
before me Xxxx Xxxxxxxx, EVP and duly authorized agent of the above named
Mortgagor who executed the foregoing instrument before me and declared the same
to be his/her free act and deed and the free act and deed of the above named
Mortgagor.
Xxxxxxxx X. Xxxxx
--------------------------------
Notary Public
A Notary residing in NY County, NY
[NOTARY SEAL]
Done at New York, New York this 17th day of April, 2002.
In the Presence Of: Bank of America, N.A., as
Administrative Agent
Xxxxxxxxx X. Xxxxxx By: Xxxxx Xxxxxx
----------------------------- ------------------------------------
Witness _______, duly authorized agent
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
At New York, New York on this 17th day of April, 2002, personally appeared
before me Xxxxx Xxxxxx, Principal and duly authorized agent of the above named
Mortgagor who executed the foregoing instrument before me and declared the same
to be his/her free act and deed and the free act and deed of the above named
Administrative Agent.
Xxxxxxxx X. Xxxxx
--------------------------------------
Notary Public
A Notary residing in NY County, NY
[Notary Seal]
Prepared By:
Xxxxxx X. Xxxxxx, Xx.
Xxxxx & Xxx Xxxxx PLLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
(000) 000-0000
