MORTGAGE AND SECURITY AGREEMENT
Date: June ______, 2007
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Mortgagor: 000-00 000xx Xxxxxx, XXX, 00-00 Xxxxxxxx Xxxxx Xxxxxxxxx,
LLC, 00-00 00xx Xxxxxx, XXX, and 114-15 Xxx Xxxxxx
Boulevard, LLC
Mortgagor's 000 Xxxxxxx Xxxx
-
Notice Address: Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Mortgagee: ING USA ANNUITY AND LIFE INSURANCE
COMPANY, ING LIFE INSURANCE AND ANNUITY
COMPANY, RELIASTAR LIFE INSURANCE
COMPANY AND SECURITY LIFE OF DENVER
INSURANCE COMPANY
(Hereinafter sometimes "Lender")
Mortgagee's 0000 Xxxxxx Xxxxx Xxxx, XX
Notice Address: Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn.: Private Placements
Aggregate Amount of
Notes: $1,000,000.00
Premises:
Address County Block(s) Lot(s)
---------------------------------------------------------------- ----------------- ---------------- ------------------------------
000-00 000xx Xxxxxx, Xxxxxxx, Xxx Xxxx Queens 13296 7, 14 & 101
13298 11
13302 171
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00-00 Xxxxxxxx Xxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxx Xxxxxx 00000 1
15841 5, 7, 8, 10, 14 & 70
---------------------------------------------------------------- ----------------- ---------------- ------------------------------
00-00 00xx Xxxxxx, Xxxx Xxxxxxxx, Xxx Xxxx Queens 1081 1
---------------------------------------------------------------- ----------------- ---------------- ------------------------------
114-15 Xxx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxx Xxxxxx 00000 1, 8 & 30
---------------------------------------------------------------- ----------------- ---------------- ------------------------------
After recording, please return to:
Xxx Xxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
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Attention: Xxxxxx Xxxxxxx, Esq.
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE AND SECURITY AGREEMENT (this "Mortgage") is made as of June
_____, 2007, by and between 000-00 000XX XXXXXX, XXX, a New York limited
liability company having an office at 000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxx
Xxxx 00000 ("147th Avenue"), 00-00 XXXXXXXX XXXXX XXXXXXXXX, LLC, a New York
limited liability company having an office at 000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxx Xxxx 00000 ("Rockaway Beach"), 00-00 00XX XXXXXX, XXX, x Xxx Xxxx
limited liability company having an office at 000 Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxx Xxxx 00000 ("24th Avenue"), and 114-15 XXX XXXXXX BOULEVARD, LLC,
a New York limited liability company having an office at 000 Xxxxxxx Xxxx, Xxxxx
000, Xxxxxxxx, Xxx Xxxx 00000 ("Xxx Xxxxxx" and collectively with 147th Avenue,
Rockaway Beach, and 24th Avenue, "Mortgagor"), and ING USA ANNUITY AND LIFE
INSURANCE COMPANY, ING LIFE INSURANCE AND ANNUITY COMPANY, RELIASTAR LIFE
INSURANCE COMPANY AND SECURITY LIFE OF DENVER INSURANCE COMPANY, each having an
office at 0000 Xxxxxx Xxxxx Xxxx, XX, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000-0000
(individually and collectively, "Lender", which term shall include other persons
that may from time to time become a Lender under the Loan Agreement (as defined
below)). As of even date herewith, Lender, Mortgagor and the other borrowers
identified therein (collectively, the "Borrowers") have executed a certain Loan
Agreement (the "Loan Agreement") pursuant to which Lender will make the
following loans to Borrower: (i) a $1,000,000 mortgage loan (the "Mortgage
Loan") in the principal amount of $1,000,000, which Mortgage Loan is secured by
this Mortgage; and (ii) non-mortgage loans (the "Non-Mortgage Loans") in the
maximum principal amount of $71,500,000, which Non-Mortgage Loans are not
secured by this Mortgage.
GRANTING CLAUSES
For good and valuable consideration and to secure the payment of an
indebtedness in the principal sum of ONE MILLION and 00/100 Dollars
($1,000,000.00) lawful money of the United States, to be paid according to those
certain Mortgage Notes of even date herewith from Borrowers to Lender in said
principal sum and by this reference made a part hereof (said Mortgage Notes, as
the same may hereafter be amended, modified, consolidated or extended, the
"Mortgage Notes"), together with all other obligations and liabilities due or to
become due to Lender, all amounts, sums and expenses paid hereunder by or
payable to Lender according to the terms hereof, and all other covenants,
obligations and liabilities of Borrower under the Mortgage Notes, this Mortgage
and the Assignment (hereinafter defined) (all of the foregoing instruments,
collectively, the "Loan Documents"), and together with all interest on said
indebtedness, obligations, liabilities, amounts, sums, Advances (as hereinafter
defined) and expenses (all of the foregoing, collectively, the "Indebtedness"),
Mortgagor has created a security interest in and mortgaged, warranted, granted,
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bargained, sold, conveyed, assigned, pledged, transferred and set over, and does
by these presents create a security interest in and MORTGAGE, WARRANT, GRANT,
BARGAIN, SELL, CONVEY, ASSIGN, PLEDGE, TRANSFER AND SET OVER unto Lender, its
successors and assigns forever, WITH MORTGAGE COVENANTS the following property:
The parcel or parcels of land described in Schedules A-1 through A-4 attached
hereto and by this reference made a part hereof (the "Land");
TOGETHER with the buildings, foundations, structures and improvements (including
fixtures) now or hereafter located on or in the Land (collectively, the
"Improvements");
TOGETHER with all right, title and interest, if any, of Mortgagor in and to the
streets and roads, opened or proposed, abutting the Land, all strips and gores
within or adjoining the Land, the air space and right to use the air space above
the Land, all rights of ingress and egress to and from the Land, all easements,
rights of way, reversions, remainders, estates, rights, titles, interests,
privileges, servitudes, tenements, hereditaments, and appurtenances now or
hereafter affecting the Land or the Improvements, all royalties and rights and
privileges appertaining to the use and enjoyment of the Land or the
Improvements, including all air, lateral support, streets, alleys, passages,
vaults, drainage, water, oil, gas and mineral rights, development rights, all
options to purchase or lease, and all other interests, estates or claims, in law
or in equity, which Mortgagor now has or hereafter may acquire in or with
respect to the Land or the Improvements (collectively, the "Appurtenances");
The Land, the Improvements and the Appurtenances are hereinafter sometimes
collectively referred to as the "Premises";
TOGETHER with all equipment, fittings, furniture, furnishings, appliances,
apparatus, and machinery in which Mortgagor now or hereafter has a possessory or
title interest and now or hereafter installed in or located upon the Premises
and all building materials, supplies and equipment now or hereafter delivered to
the Premises and intended to be installed therein or located thereon; all
fixtures, other goods and personal property of whatever kind and nature now
contained on or in or hereafter placed on or in the Premises and used or to be
used in connection with the letting or operation thereof, in which Mortgagor now
has or hereafter may acquire a possessory or title interest (but specifically
excluding inventory) and all renewals or replacements of any of the foregoing
property or articles in substitution thereof (collectively, the "Equipment");
TOGETHER with all right, title and interest of Mortgagor in and under all
present or future accounts, escrows, documents, instruments, chattel paper, and
general intangibles, as the foregoing terms are defined in the Code (hereinafter
defined), and all contract rights, including, without limitation, casualty
insurance policies and liability insurance policies (irrespective of whether
such policies are required to be obtained or maintained in force pursuant to
this Mortgage or other Loan Documents), trade names, trademarks, servicemarks,
logos, copyrights, goodwill, franchises, books, records, plans, specifications,
permits, licenses, approvals, actions and causes of action which now or
hereafter relate to, are derived from or are used in connection with the
Premises or the use, operation, maintenance, occupancy or enjoyment thereof or
the conduct of any business or activities thereon (collectively, the
"Intangibles");
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TOGETHER with all right, title and interest of Mortgagor in and under all
leases, lettings, tenancies and licenses of the Premises or any part thereof now
or hereafter entered into and all amendments, extensions, renewals and
guaranties thereof, all security therefor, and all moneys payable thereunder,
including without limitation, the leases described on Schedules B-1 through B-4
attached hereto and by this reference made a part hereof (collectively, the
"Leases");
TOGETHER with all rents, income, accounts, receivables, issues, profits,
security deposits and other benefits to which Mortgagor may now or hereafter be
entitled from the Premises, the Equipment or the Intangibles or under or in
connection with the Leases (collectively, the "Property Income"); and
TOGETHER with all proceeds, judgments, claims, compensation, awards of damages
and settlements pertaining to or resulting from or in lieu of any condemnation
or taking of the Mortgaged Property by eminent domain (including any additional
amounts received by Mortgagor under the Leases in the event of a taking by the
City of New York or any of its agencies or instrumentalities, or the
Metropolitan Transportation Authority, or by the State of New York on behalf of
the Metropolitan Transportation Authority) or any casualty loss or damage to the
Mortgaged Property, the Leases or the Property Income, and including also, the
right to assert, prosecute and settle claims arising out of or pertaining to
such condemnation or taking or such casualty loss under insurance policies (or
any self-insurance maintained in lieu of such insurance policies) and to apply
for and receive payments of proceeds under such insurance policies (and any
payments in respect of any self-insurance maintained in lieu of such insurance
policies) and in any condemnation or taking, the right to apply for and receive
all refunds with respect to the payment of property taxes and assessments and
all other proceeds from the conversion, voluntary or involuntary, of the
Mortgaged Property, the Leases or the Property Income, or any part thereof, into
cash or liquidated claims. Collectively, all of the foregoing, are herein
referred to as the "Proceeds," and are subject to the provisions of this
Mortgage including without limitation Sections 2.04 and 2.05
The Equipment, the Intangibles, the Leases, the Property Income and the Proceeds
are hereinafter sometimes collectively referred to as the "Collateral." The
Premises and the Collateral are hereinafter sometimes collectively referred to
as the "Mortgaged Property."
TO HAVE AND TO HOLD the Mortgaged Property, whether now or hereafter existing,
together with all the rights, privileges and appurtenances to the same
belonging, and with the possession and right of possession thereof, unto Lender
and its successors and assigns forever, upon the terms, provisions and
conditions hereinafter set forth, and each Mortgagor does hereby bind itself and
its successors, legal assigns, representatives, and to warrant and forever
defend all and singular the Mortgaged Property unto Lender and its successors
and assigns, against every person whomsoever lawfully claiming or to claim the
same or any part thereof.
For purposes of the MORTGAGE, WARRANT, GRANT, BARGAIN, SELL, CONVEY, ASSIGN,
PLEDGE, TRANSFER AND SET OVER made to Lender herein, 000xx Xxxxxx is the owner
and mortgagor of the Mortgaged Property located on the Land described in
Schedule A-1 attached hereto, Rockaway Beach is the owner and mortgagor of the
Mortgaged Property located on the Land described in Schedule A-2 attached
hereto, 00xx Xxxxxx is the owner and mortgagor of the Mortgaged Property located
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on the Land described in Schedule A-3 attached hereto, and Xxx Xxxxxx is the
owner and mortgagor of the Mortgaged Property located on the Land described in
Schedule A-4 attached hereto.
ARTICLE I
Definition of Terms
As used in this Mortgage, the terms set forth below shall have the
following meanings:
"Advances" - All sums, amounts or expenses advanced or paid and all costs
incurred by Lender, as provided in this Mortgage or in any other Loan Document,
upon failure of Mortgagor to pay or perform any obligation or covenant contained
herein or in such other Loan Document.
"Assignment" - The Assignment of Leases and Rents from Mortgagor to Lender
of even date herewith.
"Bankruptcy Proceeding" - Any proceeding, action, petition or filing under
the Federal Bankruptcy Code or any similar state or federal law now or hereafter
in effect relating to bankruptcy, reorganization or insolvency, or the
arrangement or adjustment of debts.
"Business Day" - Any day other than a Saturday, Sunday or other day on
which national banks in the State are not open for business.
"Code" - The Uniform Commercial Code of the State.
"Default Rate" - The per annum interest rate equal to the lesser of (i) the
highest rate permitted by applicable law, or (ii) the sum of two percent (2%)
plus the Interest Rate (as defined in the Mortgage Notes).
"Environmental Law" - Any and all federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
Hazardous Materials.
"Event of Default" - Any one or more of the events described in Section
4.01.
"Hazardous Material" - Any and all pollutants, toxic or hazardous wastes or
other substances that might pose a hazard to health and safety, the removal of
which is required or the generation, manufacture, refining, production,
processing, treatment, storage, handling, transportation, transfer, use,
disposal, release, discharge, spillage, seepage or filtration of which is or
shall be restricted, prohibited or penalized by any applicable law including
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,
petroleum and petroleum products.
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"Lender" - ING USA Annuity and Life Insurance Company, ING Life Insurance
and Annuity Company, Reliastar Life Insurance Company and Security Life of
Denver Insurance Company, the mortgagees identified as such on the Cover Sheet
and in the preamble of this Mortgage, and their successors and assigns
(including any other holders from time to time of the Note).
"Losses" - Claims, suits, liabilities (including without limitation, strict
liabilities), actions, proceedings, obligations, debts, damages, losses, costs,
fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement, punitive damages, foreseeable and unforeseeable consequential
damages of whatever kind or nature (including but not limited to reasonable
attorneys' fees and other costs of defense).
"Permitted Encumbrances" - The liens and security interest created by this
Mortgage and the other Loan Documents and those exceptions to title set forth in
Schedule C-1 through C-4 to this Mortgage.
"State" - The State of New York.
ARTICLE II
Covenants of Mortgagor
Mortgagor covenants, warrants, represents and agrees with and to Lender as
follows:
Section 2.01. Payment of the Indebtedness. Mortgagor shall punctually pay
the Indebtedness at the times and in the manner provided in the Mortgage Note
and the other Loan Documents, all in lawful money of the United States of
America.
Section 2.02. Title to the Mortgaged Property.
(a) Mortgagor has good and indefeasible title to the applicable Mortgaged
Property, free and clear of liens and encumbrances except Permitted
Encumbrances.
(b) Mortgagor has full power and lawful authority to encumber the applicable
Mortgaged Property in the manner and form herein set forth.
(c) This Mortgage is and will remain a valid and enforceable lien on and
security interest in the Mortgaged Property.
(d) Mortgagor will preserve such title and will forever warrant and defend the
same and the validity and priority of the lien hereof to Lender against all
claims whatsoever.
Section 2.03. Maintenance of the Mortgaged Property. Mortgagor shall (or,
to the extent that any Lease requires the tenant to assume responsibility
therefor, Mortgagor shall use good faith efforts to enforce the provisions of
such Lease that require the tenant to) maintain or cause the Mortgaged Property
to be maintained in good and safe condition, working order and repair, and
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comply with all existing and future federal, state and local laws, ordinances,
rules and regulations and court orders affecting or that may be interpreted as
affecting the Property, including the Americans with Disabilities Act, all
Environmental Laws and all zoning, subdivision, land use, environmental,
traffic, fire, building, and occupational safety and health rules, regulations,
codes, acts and statutes to which it is subject. Mortgagor shall not, without
the prior consent of Lender: (i) change the use of the Mortgaged Property; (ii)
cause or permit the use or occupancy of any part of the Mortgaged Property to be
discontinued if such discontinuance would violate any zoning or other law,
ordinance or regulation; (iii) consent to any zoning reclassification,
modification or restriction materially affecting the Mortgaged Property; (iv)
threaten, commit or permit any waste, structural or material alteration,
demolition or removal of the Mortgaged Property or any portion thereof (provided
that the Equipment may be removed if replaced with similar items of equal or
greater value);or (v) take any steps whatsoever to convert the Mortgaged
Property, or any portion thereof, to a condominium or cooperative form of
ownership, if any such action shall result in: (A) a reduction of the fixed rent
which the tenant is obligated to pay under the applicable Lease, or (B) a
termination of the applicable Lease. Lender acknowledges that a tire shop
structure located at 00-00 00xx Xxxxxx, Xxxx Xxxxxxxx has been damaged and may
be demolished and not replaced by the tenant or subtenant under the Lease
applicable to such Mortgaged Property.
Section 2.04. Insurance; Casualty. (a) Mortgagor shall use good faith
efforts cause all tenants and subtenants to maintain all insurance required
pursuant to the terms of the Leases and shall provide Lender with copies of all
insurance certificates and other evidence of insurance received from tenants and
subtenants. Lender acknowledges that the tenants and subtenants under the Leases
listed in Schedules B-1 through B-4 are permitted to provide self-insurance and
are so doing. Mortgagor shall maintain commercially reasonable insurance
determined by Mortgagor. The insurance identified on Schedule D is satisfactory
to Lender. Lender may notify any and all insurers under casualty and liability
insurance policies relating to the Mortgaged Property that Lender has a security
interest pursuant to the provisions of this Mortgage in and to such insurance
policies and any proceeds thereof, and that any payments under those insurance
policies are to be made directly to Lender.
(b) Mortgagor shall promptly notify Lender in the event of any casualty
affecting the Mortgaged Property. Mortgagor shall not adjust, compromise or
settle any claim for casualty Proceeds without the prior consent of Lender,
which shall not be unreasonably withheld, conditioned or delayed. So long as
such casualty does not result in the reduction of the fixed rent that the tenant
is obligated to pay under the applicable Lease, (i) Mortgagor shall be entitled
to collect, receive and retain any casualty proceeds and (ii) no portion thereof
shall be applied to any of the Indebtedness. If, as a result of any casualty,
any tenant reduces the fixed rent that it is paying under any Lease, Lender
shall have the option, in its sole discretion, to apply and/or to require
Mortgagor to apply any Proceeds that Mortgagor is not required to make available
to the tenants under the terms of the Leases (less any cost to Lender of
recovering and paying out such Proceeds, including reasonable attorneys' fees,
costs and expenses) (the "Available Casualty Proceeds") to the payment of the
Indebtedness or to allow all or a portion of such Available Casualty Proceeds to
be used for the repair, restoration and rebuilding of the Mortgaged Property. In
the event that any Available Casualty Proceeds are required by Lender to be used
toward payment of the Indebtedness, no Make-Whole Amount (as defined in the
Notes) shall be due or payable on such payment. In the event that any such
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Available Casualty Proceeds are made available to Mortgagor for repair and
restoration of the Mortgaged Property, the parties shall establish a reasonable
mechanism for Lender to provide oversight as to the distribution of such
Available Casualty Proceeds. In the event that Lender does not require 100% of
such Available Casualty Proceeds be applied either toward payment of the
Indebtedness and/or toward repair, restoration and rebuilding of the Mortgaged
Property, the provisions of Section 4.3 of the Loan Agreement shall govern.
Section 2.05. Condemnation. Mortgagor shall notify Lender promptly of the
actual or threatened commencement of any proceedings for the condemnation or
taking of the Mortgaged Property or any portion thereof, and shall deliver to
Lender copies of any and all material papers served in connection with such
proceedings. Mortgagor shall not adjust, compromise, settle or enter into any
agreement with respect to such proceedings without the prior consent of Lender,
which shall not be unreasonably withheld, conditioned or delayed. So long as
such condemnation, or purchase in lieu thereof, of the Mortgaged Property or any
portion thereof, does not result in the reduction of the fixed rent that the
tenant is obligated to pay under the applicable Lease, (i) Mortgagor shall be
entitled to collect, receive and retain up to $5,000,000 of any Proceeds from
such condemnation, or purchase in lieu thereof, that are not otherwise required
by the Lease to be made available to the tenant under the Lease or to be applied
to the repair or restoration of the Mortgaged Property ("Available Condemnation
Proceeds"), and (ii) Lender may, in Lender's sole discretion, apply and/or
require Mortgagor to apply any such Available Condemnation Proceeds in excess of
$5,000,000 toward the payment of the Indebtedness or to the repair or
restoration of the Mortgaged Property. If, as a result of any condemnation, or
purchase in lieu thereof, of the Mortgaged Property, or any part thereof, any
tenant reduces, or is entitled to reduce, the fixed rent that it is paying under
any Lease, (x) Lender shall be entitled to collect and receive the Proceeds from
such condemnation or purchase, give proper receipts and acquittances therefor
and, in Lender's sole discretion, apply and/or to require Mortgagor to apply the
Allocable Portion of any Available Condemnation Proceeds toward the payment of
the Indebtedness or to the repair or restoration of the Mortgaged Property and
(y) Mortgagor shall be entitled to receive the balance of any Available
Condemnation Proceeds in excess of such Allocable Portion (less any cost to
Lender of recovering and paying out such Proceeds, including reasonable
attorneys' fees, costs and expenses allocable to inspecting any repair,
restoration or rebuilding work and the plans and specifications therefor). In
the event that any Available Condemnation Proceeds are required by Lender to be
used toward payment of the Indebtedness, no Make-Whole Amount shall be due and
payable on such payment. In the event that any Available Condemnation Proceeds
are made available to Mortgagor for repair and restoration of the Mortgaged
Property, the parties shall establish a reasonable mechanism for Lender to
provide oversight as to the distribution of such Available Condemnation
Proceeds. In the event that Lender does not require 100% of any Available
Condemnation Proceeds be applied either toward payment of the Indebtedness
and/or toward repair, restoration and rebuilding of the Mortgaged Property, the
provisions of Section 4.3 of the Loan Agreement shall govern.
The "Allocable Portion" of any Available Condemnation Proceeds shall be the
portion of such Proceeds that is equal to the amount, if any, by which
Consolidated Debt (as defined in the Loan Agreement) would be required to be
reduced (assuming that prior to such reduction, the aggregate amount of
Non-Mortgage Loans outstanding was equal to the full Aggregate Non-Mortgage
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Commitment Amount (as such terms are defined in the Loan Agreement)) so that
after giving effect to such reduction and to any reduction in the fixed rents
payable under any Lease as a result of any condemnation, or purchase in lieu,
the Debt Service Coverage Ratio (as defined in the Loan Agreement) for the most
recently completed period of four consecutive Fiscal Quarters (calculated on a
pro forma basis, assuming both such reduction in such assumed Consolidated Debt
and such reduction in fixed rents under any Lease throughout such period) would
be the same as the Debt Service Coverage Ratio for such period before such
reductions (but assuming that the Aggregate Amount of Non-Mortgage Loans
outstanding throughout such period had been equal to the full Aggregate
Non-Mortgage Commitment Amount).
Section 2.06. Impositions. Mortgagor shall (or, to the extent that any
Lease requires the tenant to assume responsibility therefor, Mortgagor shall use
good faith efforts to enforce the provisions of such Lease that require the
tenant to) pay or cause to be paid before any fine, penalty, interest or cost
may be added thereto, and shall not enter into any agreement which may
materially and negatively impact the interests of the Lender to defer, any
taxes, or payments in lieu of taxes of every kind and nature, sewer, rents,
charges for water, for setting or repairing meters and for all other utilities
serving the Mortgaged Property, and assessments, levies, inspection and license
fees and all other charges imposed or assessed against the Mortgaged Property or
any portion thereof. Mortgagor shall not suffer or permit the joint assessment
of the Mortgaged Property with any other real or personal property owned by
Mortgagor. Mortgagor shall (or, to the extent that any Lease requires the tenant
to assume responsibility therefor, Mortgagor shall use good faith efforts to
enforce the provisions of such Lease that require the tenant to) pay when due
all claims and demands of mechanics, materialmen, laborers and others that, if
unpaid, might result in a lien on the Mortgaged Property; however, Mortgagor may
contest the validity of such claims and demands under commercially reasonable
standards.
Section 2.07. Payment of Liens. Mortgagor shall (or, to the extent that any
Lease requires the tenant to assume responsibility therefor, Mortgagor shall use
good faith efforts to enforce the provisions of such Lease that require the
tenant to) pay or cause to be paid when due all payments and charges due under
or in connection with any liens and encumbrances on and security interests in
the Mortgaged Property or any portion thereof, all rents and charges under any
ground leases and other leases forming a part of the Mortgaged Property, and
(subject to Section 2.06) all claims and demands of mechanics, materialmen,
laborers and others that, if unpaid, might result in or permit the creation of a
lien on the Mortgaged Property or any portion thereof, and shall cause the
prompt (but in no event later than 30 days after imposition), full and
unconditional discharge of all liens imposed on or against the Mortgaged
Property or any portion thereof. If Mortgagor fails to make or cause to be made
any such payment or if a lien attaches to the Mortgaged Property or any portion
thereof, Lender may (but shall not be obligated to) make such payment or
discharge such lien and Mortgagor shall reimburse Lender on demand for all such
Advances.
Section 2.08. Costs of Defending and Upholding the Lien. Lender may, after
notice to Mortgagor and failure to appear or defend by Mortgagor for an
unreasonable period of time, (a) appear in and defend any action or proceeding,
in the name and on behalf of either Lender or Mortgagor, in which Lender is
named or which Lender in its sole discretion determines may adversely affect the
Mortgaged Property, this Mortgage, the lien hereof or any other Loan Document;
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and (b) institute any action or proceeding which Lender in its sole discretion
determines should be instituted to protect its interest in the Mortgaged
Property or its rights under this Mortgage or any other Loan Document including,
without limitation, foreclosure proceedings. Mortgagor agrees to bear and shall
pay or reimburse Lender on demand for all Advances and expenses (including
reasonable attorneys' fees) relating to or incurred by Lender in connection with
any such action or proceeding.
Section 2.09. Costs of Enforcement. Mortgagor agrees to bear and shall pay
or reimburse Lender on demand for all Advances and expenses (including
reasonable attorneys' and appraisers' fees and the expenses and reasonable fees
of any receiver or similar official) of or incidental to the collection of the
Indebtedness, any foreclosure of this Mortgage or any other Loan Document, any
enforcement, compromise or settlement of this Mortgage, any other Loan Document
or the Indebtedness, or any defense or assertion of the rights or claims of
Lender in respect of any thereof, by litigation or otherwise.
Section 2.10. Interest on Advances and Expenses. All Advances made at any
time by Lender pursuant to the provisions of this Mortgage or the other Loan
Documents or under applicable law shall be secured by this Mortgage as part of
the Indebtedness, with equal rank and priority. All such Advances shall bear
interest at the Default Rate from the date that each such Advance is made to the
date of repayment and all Advances with interest thereon shall be payable to
Lender on demand.
Section 2.11. Indemnification. Except arising from acts or omissions
attributable to Lender, Mortgagor shall indemnify and hold Lender harmless from
and against and reimburse Lender for all Losses which may be imposed upon,
asserted against, or incurred or paid by Lender (a) by reason of, on account of
or in connection with any act or occurrence relating to the Mortgaged Property
or any bodily injury, death, other personal injury or property damage occurring
in or upon the Premises from any cause whatsoever, (b) as a result of the
failure of Borrower to perform any of its obligations under any of the Loan
Documents beyond applicable cure and grace periods, or (c) on account of any
transaction otherwise arising out of or in any way connected with the Mortgaged
Property, this Mortgage or the Indebtedness.
Section 2.12. Prohibition Against Conveyances and Encumbrances. Except for
the Leases or as expressly permitted by the Loan Agreement or other Loan
Documents, Mortgagor shall not, without the prior written consent of Lender, (i)
directly or indirectly sell, transfer, convey, mortgage, pledge or assign any
interest in the Mortgaged Property or any part thereof (including any
membership, partnership or any other ownership interest in Assignor, any general
partner of Mortgagor or any general partner of any such general partner of
Mortgagor); (ii) other than this Mortgage, the Assignment and the Permitted
Encumbrances, encumber, alienate, xxxxx x xxxx or xxxxx any other interest in
the Mortgaged Property or any part thereof (including any membership,
partnership or other ownership interest in Assignor), whether voluntarily or
involuntarily; or (iii) enter into any easement or other agreement granting
rights in or restricting the use or development of the Mortgaged Property.
Section 2.13. Estoppel Certificates. Within 10 Business Days of a request
by Lender, Borrower shall furnish to Lender a duly acknowledged written
statement confirming the amount of the outstanding Indebtedness and maturity
10
date of the Mortgage Notes, the date to which interest has been paid, and
whether to Borrower's knowledge and belief, any offsets or defenses exist
against the Indebtedness. If any such offsets or defenses are alleged to exist,
the nature thereof shall be set forth in detail. Borrower shall also use good
faith efforts to furnish to Lender within 30 days of its request therefor tenant
estoppel letters from such tenants of the Premises as Lender may require, but
such requests shall not be made more often than once in a calendar year period.
Section 2.14. Assignment of Leases and Property Income.
(a) Assignment. Mortgagor acknowledges and confirms that it has executed and
delivered to Lender the ---------- Assignment, intending that such
instrument create a present, absolute assignment to Lender of the Leases
and the Property Income. Without limiting the intended benefits or the
remedies provided under the Assignment , Mortgagor hereby assigns to
Lender, as further security for the Indebtedness, the Leases and the
Property Income. Upon the occurrence of an Event of Default, Lender shall
be entitled to exercise any or all of the remedies provided in the
Assignment and in Section 4.02 hereof, including, ------------ without
limitation, the right to have a receiver appointed. If any conflict or
inconsistency exists between the assignment of the Property Income and the
Leases in this Mortgage and the absolute assignment of the Property Income
and the Leases in the Assignment, the terms of the Assignment shall
control.
(b) No Merger of Estates. So long as any part of the Indebtedness secured
hereby remain unpaid and undischarged, the fee and leasehold estates to the
Mortgaged Property shall not merge, but shall remain separate and distinct,
notwithstanding the union of such estates either in Mortgagor, Lender, any
lessee or any third party by purchase or otherwise.
Section 2.15. Environmental Matters.
(a) Mortgagor shall not, and shall use good faith efforts to not allow any
tenant to, install, use, generate, manufacture, refine, transport, store,
handle, dispose, transfer, produce or process on, under or about the
Premises, any Hazardous Materials, except in compliance with applicable
Environmental Laws.
(b) Mortgagor shall keep and maintain, and shall use good faith efforts to
cause all tenants to keep and maintain, the Premises in compliance with,
and shall not cause or permit the Premises to be in violation of,
applicable Environmental Laws.
(c) Mortgagor shall promptly provide notice to Lender of, and copies of all
relevant materials related to :
(i) any proceeding, investigation or inquiry commenced by any governmental
authority with respect to the presence of any Hazardous Material on,
under or about the Premises or the migration of any Hazardous Material
to or from adjoining property;
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(ii) all claims made or threatened by any person or entity against
Mortgagor, any other party occupying the Premises or any portion
thereof, or the Premises, relating to any loss or injury allegedly
resulting from any Hazardous Material; and
(iii) the discovery of any occurrence or condition on the Premises or on
any real property adjoining or in the vicinity of the Premises, of
which Mortgagor becomes aware, which might cause the Premises or any
portion thereof to be in violation of any Environmental Law or subject
to any restriction on ownership, occupancy, transferability or use
under any Environmental Law (collectively, an "Environmental
Violation").
(d) Remedial Work. If any investigation, site monitoring, containment, cleanup,
removal, restoration or other remediation of any kind or nature
(collectively, the "Remedial Work") is required under any applicable
Environmental Law, Mortgagor shall promptly commence and diligently
prosecute to completion all such Remedial Work, provided that, to the
extent that any tenant under any of the Leases is responsible for any such
matters, Mortgagor shall be deemed to be in compliance with this provision
so long as Mortgagor is using good faith efforts to enforce the applicable
provisions of the Leases .
ARTICLE III
Security Agreement
Section 3.01. Security Interest. This Mortgage constitutes a "Security
Agreement" on personal property within the meaning of the Code and other
applicable law. To this end, Mortgagor, as further security for the payment of
the Indebtedness and in addition to all the rights and remedies otherwise
available to Lender under this Mortgage and the other Loan Documents, grants to
Lender a security interest, under the Code, in and to the Mortgaged Property and
all proceeds thereof. Upon the occurrence of an Event of Default, Lender shall
have, in addition to all the other rights and remedies allowed by applicable
law, the rights and remedies of a secured party under the Code as in effect at
that time. Mortgagor further agrees that the security interest created hereby
also secures all expenses of Lender (including reasonable expenses for legal
services of every kind, and cost of any insurance, and payment of taxes or other
charges) incurred in or incidental to, the custody, care, sale or collection of,
or realization upon, any of the property secured hereby or in any way relating
to the enforcement or protection of the rights of Lender hereunder. The
Mortgagor's organization numbers are ___________, __________, _______, and
___________.
Section 3.02. Financing Statements. Mortgagor shall execute and/or deliver
to Lender such financing statements and further assurances as Lender may, from
time to time, consider reasonably necessary to create, perfect and preserve
Lender's security interest hereunder, and Lender may prepare any financing
statements and cause such financing statements to be recorded and filed, at such
times and places as may be required or permitted by law to so create, perfect
and preserve such security interest. Each Mortgagor is organized under the laws
of the State and Mortgagor's chief executive office is in the State at the
address set forth in the first paragraph of this Mortgage.
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Section 3.03. Fixture Filing. This Mortgage shall also constitute a
"fixture filing" for the purposes of the Code against all of the Mortgaged
Property which is or is to become fixtures.
ARTICLE IV
Default and Remedies
Section 4.01. Events of Default. Each of the following shall constitute an
Event of Default hereunder:
(a) an Event of Default should occur under any of the Mortgage Notes;
(b) default in the due observance or performance of any term, covenant or
condition contained in Section 2.12 of this Mortgage;
(c) default in the due observance or perfomance of any other term, covenant or
condition contained in this Mortgage and such default is not remedied
within 30 days after the earlier of Mortgagor (x) obtaining actual
knowledge of such default and (y) receiving written notice of such default
from Lender; or
(c) an Event of Default should occur under the Loan Agreement.
Section 4.02. Remedies. Upon the occurrence of an Event of Default, Lender
may, at Lender's election, exercise any or all of the following rights, remedies
and recourses:
(a) Acceleration. Declare the Indebtedness to be immediately due and payable,
without further notice, presentment, protest, notice of intent to
accelerate, notice of acceleration, demand or action of any nature
whatsoever (each of which hereby is expressly waived by Mortgagor),
whereupon the same shall become immediately due and payable.
(b) Entry on Mortgaged Property. Enter the Mortgaged Property and take
exclusive possession thereof and of all books, records and accounts
relating thereto, subject to any rights of tenants. If Mortgagor remains in
possession of the Mortgaged Property after the occurrence of an Event of
Default and prior to the acceptance by Lender of a cure thereof and without
Lender's prior written consent, Lender may invoke any legal remedies to
dispossess Mortgagor.
(c) Operation of Mortgaged Property. Subject to any rights of tenants, hold,
lease, develop, manage, operate or otherwise use the Mortgaged Property
upon such terms and conditions as Lender may in its sole discretion
determine (including without limitation, making such repairs, alterations,
additions and improvements and taking other actions, from time to time, as
Lender deems necessary or desirable), and apply all Property Income and
other amounts collected by Lender in connection therewith in such manner
and at such times as Lender shall determine in its discretion to the
payment of the Indebtedness and the interest thereon and/or to the payment
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of any other sums required to be paid by Mortgagor hereunder or under any
other Loan Document.
(d) Foreclosure and Sale. Institute proceedings for the complete
foreclosure of this Mortgage, in which case the Mortgaged Property may be
sold for cash or credit in one or more parcels. With respect to any notices
required or permitted under the Code, Mortgagor agrees that ten (10)
Business Days' prior written notice shall be deemed commercially
reasonable. At any such sale by virtue of any judicial proceedings or any
other legal right, remedy or recourse, the title to and right of possession
of any such property shall pass to the purchaser thereof, and to the
fullest extent permitted by law, Mortgagor shall be completely and
irrevocably divested of all of its right, title, interest, claim and demand
whatsoever, either at law or in equity, in and to the property sold and
such sale shall be a perpetual bar both at law and in equity against
Mortgagor, and against all other persons claiming or to claim the property
sold or any part thereof, by, through or under Mortgagor. Lender may be a
purchaser at such sale and if Lender is the highest bidder, may credit the
portion of the purchase price that would be distributed to Lender against
the Indebtedness in lieu of paying cash.
(e) Receiver. Make application to a court of competent jurisdiction for,
and obtain from such court as a matter of strict right and without notice
to Mortgagor or regard to the adequacy of the Mortgaged Property for the
repayment of the Indebtedness, the appointment of a receiver of the
Mortgaged Property, and Mortgagor irrevocably consents to such appointment.
Any such receiver shall have all the usual powers and duties of receivers
in similar cases, including the full power to rent, maintain and otherwise
operate the Mortgaged Property upon such terms as may be approved by the
court, and shall apply such Property Income in such manner and at such
times as Lender shall determine in its discretion to the payment of the
Indebtedness and the interest thereon and/or to the payment of any other
sums required to be paid by Mortgagor hereunder or under any other Loan
Document.
(f) Code. Exercise any and all rights and remedies granted to a secured
party upon default under the Code, including, without limiting the
generality of the foregoing: (i) the right to take possession of any
personalty or any part thereof, and to take such other measures as Lender
may deem necessary for the care, protection and preservation of such
personalty, and (ii) request Lender at its expense to assemble the
personalty and make it available to Lender at a convenient place acceptable
to Lender. Any notice of sale, disposition or other intended action by
Lender with respect to the personalty sent to Mortgagor in accordance with
the provisions hereof at least ten (10) Business Days prior to such action,
shall constitute commercially reasonable notice to Mortgagor;
(g) Other. Exercise all other rights, remedies and recourses granted under
the Loan Documents or otherwise available at law or in equity (including an
action for specific performance of any covenant contained in the Loan
Documents, or a judgment on the Notes either before, during or after any
proceeding to enforce this Mortgage).
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Section 4.03. Separate Sales. The Mortgaged Property may be sold in one or
more parcels and in such manner and order as Lender in its sole discretion, may
elect; the right of sale arising out of any Event of Default shall not be
exhausted by any one or more sales.
Section 4.04. Remedies Cumulative, Concurrent and Nonexclusive. Lender
shall have all rights, remedies and recourses granted in the Loan Documents and
available at law or equity (including the Code), which rights (a) shall be
cumulative and concurrent, (b) may be pursued separately, successively or
concurrently against Mortgagor or others obligated under the Notes and the other
Loan Documents, or against the Mortgaged Property, or against any one or more of
them, at the sole discretion of Lender, (c) may be exercised as often as
occasion therefore shall arise, and the exercise or failure to exercise any of
them shall not be construed as a waiver or release thereof or of any other
right, remedy or recourse, and (d) are intended to be, and shall be,
nonexclusive. No action by Lender in the enforcement of any rights, remedies or
recourses under the Loan Documents or otherwise at law or equity shall be deemed
to cure any Event of Default.
Section 4.05. Release of and Resort to Collateral. Lender may release,
regardless of consideration and without the necessity for any notice to or
consent by the holder of any subordinate lien on the Mortgaged Property, any
part of the Mortgaged Property without, as to the remainder, in any way
impairing, affecting, subordinating or releasing the lien or security interests
created in or evidenced by the Loan Documents or their stature as a first and
prior lien and security interest in and to the Mortgaged Property. For payment
of the Indebtedness, Lender may resort to any other security in such order and
manner as Lender may elect.
Section 4.06. Waiver of Redemption, Notice and Marshalling of Assets. To
the fullest extent permitted by law, Mortgagor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to
Mortgagor by virtue of any present or future statute of limitations or law or
judicial decision exempting the Mortgaged Property from attachment, levy or sale
on execution or providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption or extension of time for payment, (b)
except as otherwise expressly provided in the Loan Documents, all notices of any
Event of Default or of Lender's election to exercise or its actual exercise of
any right, remedy or recourse provided for under the Loan Documents, and (c) any
right to a marshalling of assets or a sale in inverse order of alienation.
Section 4.07. Discontinuance of Proceedings. If Lender shall have proceeded
to invoke any right, remedy or recourse permitted under the Loan Documents and
shall thereafter elect to discontinue or abandon it for any reason, Lender shall
have the unqualified right to do so and, in such an event, Mortgagor and the
Lender shall be restored to their former positions with respect to the
Indebtedness, the Obligations, the Loan Documents, the Mortgaged Property and
otherwise, and the rights, remedies, recourses and powers of Lender shall
continue as if the right, remedy or recourse had never been invoked, but no such
discontinuance or abandonment shall waive any Event of Default which may then
exist or the right of Lender thereafter to exercise any right, remedy or
recourse under the Loan Documents for such Event of Default.
Section 4.08. Occupancy After Foreclosure. The purchaser at any foreclosure
sale pursuant to Section 4.02 shall become the legal owner of the Mortgaged
Property.
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Section 4.09. Additional Advances and Disbursements; Costs of Enforcement.
(a) If any Event of Default exists, Lender shall have the right, but not the
obligation, to cure such Event of Default in the name and on behalf of
Mortgagor. All sums advanced and expenses incurred at any time by Lender
under this Section 4.09 and/or such other provisions of the Loan Documents
which provide that Lender is entitled to be reimbursed therefore by
Mortgagor shall bear interest from the date that such sum is advanced or
expense incurred, to and including the date of reimbursement, computed at
the Default Rate and all such sums, together with interest thereon, shall
be secured by this Mortgage.
(b) Mortgagor shall pay all expenses (including reasonable attorneys' fees and
expenses) of or incidental to the perfection and enforcement of this
Mortgage and the other Loan Documents, or the enforcement, compromise or
settlement of the Indebtedness or any claim under this Mortgage and the
other Loan Documents, and for the curing thereof, or for defending or
asserting the rights and claims of Lender in respect thereof, by litigation
or otherwise.
Section 4.10. No Mortgagee in Possession. Neither the enforcement of any of
the remedies under this Article 4, the assignment of the Property Income and
Leases under Article 2.15, the security interests under Article 3, nor any other
remedies afforded to Lender under the Loan Documents, at law or in equity shall
cause Lender to be deemed or construed to be a mortgagee in possession of the
Mortgaged Property, to obligate Lender to lease the Mortgaged Property or
attempt to do so, or to take any action, incur any expense, or perform or
discharge any obligation, duty or liability whatsoever under any of the Leases
or otherwise.
Section 4.11. Actions and Proceedings. Upon prior notice to Borrower,
Lender shall have the right to appear in and defend any action or proceeding
brought with respect to the Mortgaged Property and to bring any action or
proceeding, in the name and on behalf of Mortgagor, which Lender, in its
reasonable discretion, decide should be brought to protect its interest in the
Mortgaged Property.
ARTICLE V
Miscellaneous
Section 5.01. Notices.
(a) All notices and communications provided for hereunder shall be in writing
and sent by (i) telecopy if the sender on the same day sends a confirming
copy of such notice by recognized overnight delivery service (charges
prepaid), (ii) certified or registered mail with return receipt requested
(postage prepaid), or (ii) recognized overnight delivery service (with
charges prepaid), addressed in all cases to any party hereto at its address
as stated on the Cover Sheet of this Mortgage, or at such other address and
person as shall be designated from time to time by Lender or Mortgagor, as
the case may be, in a written notice to the other party in the manner
provided for in this Section 5.01.
(b) Mortgagor shall notify Lender promptly of the occurrence of any of the
following: (i) receipt of material notice from any governmental authority
relating to the Mortgaged Property; (ii) any material change in the
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occupancy of the Mortgaged Property; (iii) receipt of any notice from the
holder of any other lien or security interest in the Mortgaged Property; or
(iv) commencement of any material judicial or administrative proceedings
by, against or otherwise affecting Mortgagor or any guarantor, the
Mortgaged Property, or any entity controlling, controlled by or under
common control with Mortgagor or any guarantor, or any other action by any
creditor thereof as a result of any default under the terms of any loan.
Section 5.02. Binding Obligations; Joint and Several. The provisions and
covenants of this Mortgage shall run with the land, shall be binding upon
Mortgagor, its successors and assigns, and shall inure to the benefit of Lender,
its successors and assigns. If there is more than one Mortgagor, all their
obligations and undertakings hereunder are and shall be joint and several.
Section 5.03. Captions. The captions of the sections and subsections of
this Mortgage are for convenience only and are not intended to be a part of this
Mortgage and shall not be deemed to modify, explain, enlarge or restrict any of
the provisions hereof.
Section 5.04. Further Assurances. Mortgagor shall do, execute, acknowledge
and deliver, at its sole cost and expense, such further acts, instruments or
documentation, including additional title insurance policies or endorsements, as
Lender may reasonably require from time to time to better assure, transfer and
confirm unto Lender the rights now or hereafter intended to be granted to Lender
under this Mortgage or any other Loan Document.
Section 5.05. 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 provision of this Mortgage, but this Mortgage shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
Section 5.06. Mortgagor's Obligations Absolute. All sums payable by
Mortgagor hereunder shall be paid without notice, demand, counterclaim, setoff,
deduction or defense and without abatement, suspension, deferment, diminution or
reduction, and the obligations and liabilities of Mortgagor hereunder shall in
no way be released, discharged, or otherwise affected (except as expressly
provided herein) by reason of: (a) except as otherwise provided in this
Mortgage, any damage to or destruction of or any condemnation or similar taking
of the Mortgaged Property or any portion thereof; (b) any restriction or
prevention of or interference with any use of the Mortgaged Property or any
portion thereof; (c) any title defect or encumbrance or any eviction from the
Premises or any portion thereof by title paramount or otherwise; (d) any
Bankruptcy Proceeding relating to Mortgagor, any general partner of Mortgagor,
or any guarantor or indemnitor, or any action taken with respect to this
Mortgage or any other Loan Document by any trustee or receiver of Mortgagor or
any such general partner, guarantor or indemnitor, or by any court, in any such
proceeding; (e) any claim which Mortgagor has or might have against Lender; (f)
any default or failure on the part of Lender to perform or comply with any of
the terms hereof or of any other agreement with Mortgagor; or (g) any other
occurrence whatsoever, whether similar or dissimilar to the foregoing, whether
or not Mortgagor shall have notice or knowledge of any of the foregoing. Except
as expressly provided herein, Mortgagor waives all rights now or hereafter
conferred by statute or otherwise to any abatement, suspension, deferment,
17
diminution or reduction of any sum secured hereby and payable by Mortgagor.
Section 5.07. Amendments. This Mortgage cannot be altered, amended,
modified or discharged orally and no executory agreement shall be effective to
modify or discharge it in whole or in part, unless in writing and signed by the
party against which enforcement is sought.
Section 5.08. Other Loan Documents and Schedules. All of the agreements,
conditions, covenants, provisions and stipulations contained in the Notes and
the other Loan Documents, and each of them, which are to be kept and performed
by Mortgagor are hereby made a part of this Mortgage to the same extent and with
the same force and effect as if they were fully set forth in this Mortgage, and
Mortgagor shall keep and perform the same, or cause them to be kept and
performed, strictly in accordance with their respective terms. The Cover Sheet
and each schedule and rider attached to this Mortgage are integral parts of this
Mortgage and are incorporated herein by this reference. In the event of any
conflict between the provisions of any such schedule or rider and the remainder
of this Mortgage, the provisions of such schedule or rider shall prevail.
Section 5.09. Legal Construction.
(a) The enforcement of this Mortgage shall be governed by, and construed and
interpreted in accordance with, the laws of the State.
(b) All terms contained herein shall be construed, whenever the context of this
Mortgage so requires, so that the singular number shall include the plural,
and the plural the singular, and the use of any gender shall include all
genders.
(c) The terms "include" and "including" as used in this Mortgage shall be
construed as if followed by the phrase "without limitation".
(d) Any provision of this Mortgage permitting the recovery of attorneys'
fees and costs shall be deemed to include such reasonable fees and
costs incurred in all appellate proceedings.
Section 5.10. Merger. So long as any Indebtedness shall remain unpaid, fee
title to and any other estate in the Mortgaged Property shall not merge, but
shall be kept separate and distinct, notwithstanding the union of such estates
in any person or entity.
Section 5.11. Time of the Essence. Time shall be of the essence in the
performance of all obligations of Mortgagor under this Mortgage.
Section 5.12. Transfer of Loan. Lender, in the management of its
investments or for any other reason, may, at any time, sell, transfer or assign
the Mortgage Notes, the Mortgage and the other Loan Documents and the servicing
rights with respect thereto or grant participations therein or issue mortgage
pass-through certificates or other securities evidencing a beneficial interest
in the Note, Mortgage and other Loan Documents (collectively, a "Transfer"). As
part of a Transfer, Lender may forward to each transferee, assignee, servicer,
participant or investor all documents and information which Lender now has or
may hereafter acquire relating to the Indebtedness, the Loan Documents and the
18
Mortgaged Property. Mortgagor agrees to cooperate with Lender in connection with
a Transfer including, without limitation, the delivery of any estoppel
certificates required hereunder and such other documents as may be reasonably be
requested by Lender.
Section 5.13. Defeasance. If all of the Indebtedness is paid in full in
accordance with the Notes and the other Loan Documents and all of the covenants,
warranties, conditions, undertakings and agreements made in this Mortgage and
the other Loan Documents are fully kept and performed, then in that event only
all rights of Lender under this Mortgage and the other Loan Documents shall
terminate and the Mortgaged Property shall become wholly clear of the liens,
grants, security interests, conveyances and assignments evidenced hereby and
thereby, and Lender shall release or cause to be released such liens, grants,
assignments, conveyances and security interests in due form at Borrower's cost
(to the extent permitted by the law of the State), and this Mortgage shall be
void; provided, however, that no provision of this Mortgage or any other Loan
Document which, by its own terms, is intended to survive such payment,
performance, and release (nor the rights of Lender under any such provision)
shall be affected in any manner thereby and such provision shall, in fact,
survive. To the extent permitted by law, such an instrument may describe the
grantee or releasee as "the person or persons legally entitled thereto" and
Lender shall not have any duty to determine the rights of persons claiming to be
rightful grantees or releasees of any of the Mortgaged Property. When this
Mortgage has been fully released or discharged by Lender, the release or
discharge hereof shall operate as a release and discharge of the Assignment and
as a reassignment of all future Leases and Property Income with respect to the
Mortgaged Property to the person or persons legally entitled thereto, unless
such release expressly provides to the contrary. At Mortgagor's request, Lender
will assign this Mortgage to Mortgagor's designee upon payment of the
Indebtedness.
Section 5.14. Commercial Property. Mortgagor represents that this Mortgage
does not encumber real property principally improved or to be improved by one or
more structures containing in the aggregate not more than six residential
dwelling units, each having its own separate cooking facilities.
Section 5.15. Maximum Principal Indebtedness. Notwithstanding anything
contained herein to the contrary, the maximum amount of indebtedness secured by
this Mortgage at execution or which under any contingency may become secured
hereby at any time hereafter is (a) the principal sum of ONE MILLION AND 00/100
DOLLARS ($1,000,000.00) plus interest thereon (at such rates as provided for in
the Note or herein, as applicable), plus (b) amounts expended by Lender in
accordance with the terms of this Mortgage after a default, to maintain the lien
of this Mortgage or to protect the property secured by this Mortgage, including,
without limitation, amounts in respect of insurance premiums, real estate taxes,
litigation expenses to prosecute or defend the rights, remedies and lien of this
Mortgage or title to the property secured hereby, and any costs, charges or
amounts to which Lender becomes subrogated upon payment, whether under
recognized principles of law or equity or under express statutory authority,
together with interest on all the foregoing amounts at such rates as provided
for in the Notes or herein, as applicable.
Section 5.16. Insurance Proceeds. In the event of any conflict,
inconsistency or ambiguity between the provisions of this Mortgage and the
provisions of subsection 4 of Section 254 of the Real Property Law of New York
covering the insurance of buildings against loss by fire, the provisions of this
Mortgage shall control.
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Section 5.17. Trust Fund. Pursuant to Section 13 of the lien law of New
York, Mortgagor shall receive the advances secured hereby and shall hold the
right to receive such advances as a trust fund to be applied first for the
purpose of paying the cost of any improvement and shall apply such advances
first to the payment of the cost of any such improvement on the Property before
using any part of the total of the same for any other purpose.
Section 5.18. Section 291-f Agreement. This Mortgage is intended to be, and
shall operate as, the agreement described in Section 291-f of the Real Property
Law of the State of New York and shall be entitled to the benefits afforded
thereby.
Section 5.19 Section 254 of the Real Property Law. All covenants hereof
shall be construed as affording Lender rights additional to, and not exclusive
of, the rights conferred under the provisions of Section 254 of the Real
Property law of the State.
[Remainder of page intentionally left blank]
20
IN WITNESS WHEREOF, this Mortgage has been duly executed and delivered as of the
day and year first above written.
WITNESSES MORTGAGOR
__________________________________ 165-25 147TH AVENUE, LLC
__________________________________ By:_______________________________
Name
Title
__________________________________ 00-00 XXXXXXXX XXXXX XXXXXXXXX, LLC
__________________________________ By:_______________________________
Name
Title
__________________________________ 00-00 00XX XXXXXX, LLC
__________________________________ By:_______________________________
Name
Title
__________________________________ 000-00 XXX XXXXXX XXXXXXXXX, LLC
__________________________________ By:_______________________________
Name
Title
00
Xxxxx xx Xxx Xxxx :
: ss:
County of :
On the ___ day of June in the year 2007 , before me, the undersigned, personally
appeared
, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
________________________________________________________
Signature and office of individual taking acknowledgment
State of New York :
: ss:
County of :
On the ___ day of June in the year 2007 , before me, the undersigned, personally
appeared
, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
________________________________________________________
Signature and office of individual taking acknowledgment
0
Xxxxx xx Xxx Xxxx :
: ss:
County of :
On the ___ day of June in the year 2007 , before me, the undersigned, personally
appeared
, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
________________________________________________________
Signature and office of individual taking acknowledgment
State of New York :
: ss:
County of :
On the ___ day of June in the year 2007 , before me, the undersigned, personally
appeared
, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their signature(s) on the
instrument, the individual(s), or the person upon behalf of which the
individual(s) acted, executed the instrument.
Signature and office of individual taking acknowledgment
1
SCHEDULE A-1
DESCRIPTION OF LAND
SCHEDULE A-2
DESCRIPTION OF LAND
SCHEDULE A-3
DESCRIPTION OF LAND
SCHEDULE A-4
DESCRIPTION OF LAND
SCHEDULE B-1
DESCRIPTION OF LEASE
SCHEDULE B-2
DESCRIPTION OF LEASE
SCHEDULE B-3
DESCRIPTION OF LEASE
SCHEDULE B-4
DESCRIPTION OF LEASE
SCHEDULE C-1
PERMITTED ENCUMBRANCES
SCHEDULE C-2
PERMITTED ENCUMBRANCES
SCHEDULE C-3
PERMITTED ENCUMBRANCES
SCHEDULE C-4
PERMITTED ENCUMBRANCES
SCHEDULE D
INSURANCE
COVERAGE AMOUNTS OR LIMITS COMPANY POLICY NUMBER EFFECTIVE MO. EXPIRES
DAY YR DAY YR.
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
1. PACKAGE Travelers Y6601533C949TIL06 12/31/2006 12/31/2007
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
GENERAL
LIABILITY
SECTION
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Each Occurrence $1,000,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
General Aggregate
Per Location $2,000,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Products/Comp.
Ops Aggregate $1,000,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Premises Damage
Liability $100,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Medical Payments $10,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
EMPLOYEE BENEFITS
LIABILITY SECTION
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Aggregate Limit
of Liability $1,000,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Each Claim $1,000,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Deductible -
Each Claim None
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
CRIME SECTION
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Employee
Dishonesty $100,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Computer Fraud $100,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Theft D&D Premises $20,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Theft, D&D
Messenger-Outside $10,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Deductible - Per
Occurrence $5,000
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
INLAND MARINE
SECTION
--------------------------- ---------------------- ------------------ -------------------------- ------------------ ----------------
Data Processing
Equipment $21,000
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Deductible $1,000
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
2. EXCESS LIABILITY
INSURANCE Travelers YFSEX3718C988TIL06 12/31/2006 12/31/2007
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Per Occurrence $25,000,000
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Aggregate $25,000,000
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
3. STORAGE TANK
POLLUTION LIABILITY American ST1955273 7/26/2006 7/26/2007
International
Specialty Lines
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Form - Claims Made
Coverage
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Sudden & Gradual
Pollution
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Limits of
Liability
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Each Incident $1,000,000
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Aggregate $4,000,000
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Deductible $25,000 ea.
Accident
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Certified Acts
of Terrorism
Coverage
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
-------------------------- ---------------------- ------------------ -------------------------- ------------------ -----------------
Location Schedule
(Applies to the
three policies
listed above)
-------------------------- ---------------------- ------------------ -------------------------- ------------------------- ----------
1. 000-00 000xx Xxxxxx,
Xxxxxxx, XX
-------------------------- ---------------------- ------------------ -------------------------- ------------------------- ----------
2. 00-00 Xxxxxxxx Xxxxx
Xxxx., Xxxxxx, XX
-------------------------- ---------------------- ------------------ -------------------------- ------------------------- ----------
3. 00-00 00xx Xxxxxx,
Xxxx Xxxxxxxx, XX
-------------------------- ---------------------- ------------------ -------------------------- ------------------------- ----------
4. 000-00 Xxx Xxxxxx
Xxxx., Xxxxxx, XX
-------------------------- ---------------------- ------------------ -------------------------- ------------------------- ----------