EXHIBIT 10.46
OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FINANCING STATEMENT
FROM XXXXX OPERATING PARTNERSHIP, L.P.
TO
NATIONSBANK, N.A.
OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND
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RENTS, SECURITY AGREEMENT AND FINANCING STATEMENT
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THIS INSTRUMENT IS ALSO TO BE INDEXED IN THE INDEX OF
FINANCING STATEMENTS. THIS INSTRUMENT CONVEYS A SECURITY
INTEREST IN GOODS WHICH ARE OR ARE TO BECOME FIXTURES.
THIS MORTGAGE SECURES FUTURE ADVANCES
(All notices to be given to Mortgagee pursuant to 42 PA. C.S.A. (S)
8143 shall be given as set forth in Section 6.13 of this Mortgage.)
THIS OPEN-END MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FINANCING STATEMENT (this "Mortgage") dated February 4, 1999, is
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executed and delivered by XXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Mortgagor") to NATIONSBANK, N.A., a national banking association,
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together with its successors and assigns ("Mortgagee"), for good and valuable
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consideration, including the indebtedness herein recited, the receipt and
adequacy of which are hereby acknowledged by Mortgagor.
This Mortgage is an "Open-End Mortgage" as set forth in 42 PA. C.S.A. (S)
8143 and secures obligations up to a maximum principal amount of indebtedness
outstanding at any time equal to double the face amount of the Note (as
hereinafter defined), plus accrued and unpaid interest, and including, but not
limited to, advances for the payment of taxes and municipal assessments,
maintenance charges, insurance premiums, costs incurred for the protection of
the Property (as hereinafter defined) or the lien of this Mortgage, expenses
incurred by Mortgagee by reason of default by Mortgagor under this Mortgage and
advances for construction, alteration or renovation on the Property or for any
other purpose, together with all other sums due hereunder or secured hereby.
ARTICLE 1 - CERTAIN DEFINITIONS; GRANTING CLAUSES; SECURED INDEBTEDNESS
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Section 1.1. Certain Definitions and Reference Terms. In addition to
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other terms defined
herein, each of the following terms shall have the meaning assigned to it:
"Loan Documents": The Note, this Mortgage, the Environmental Indemnity
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Agreement of even date herewith between Mortgagor and Mortgagee (the
"Environmental Agreement") and all other documents now or hereafter evidencing,
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governing, guaranteeing, securing or otherwise executed in connection with the
Loan evidenced by the Note, including any purchase and sale agreement, as they
or any of them may be from time to time renewed, extended, supplemented,
increased or modified.
"Promissory Note": Promissory Note dated of even date herewith made
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by Mortgagor payable to the order of Mortgagee in the principal face amount of
SIX MILLION FOUR HUNDRED TWENTY-FIVE THOUSAND AND NO/100 DOLLARS
($6,425,000.00), bearing interest as therein provided, and finally maturing on
or before January 4, 2002, which, by this reference, is made a part hereof.
Section 1.2. Property. Mortgagor, in consideration of the
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indebtedness herein recited and intending to be legally bound, does hereby
irrevocably GRANT, BARGAIN, SELL, ALIEN, TRANSFER, ASSIGN and MORTGAGE to
Mortgagee and its successors and assigns, under and subject to the terms and
conditions hereinafter set forth, the following:
(a) the real estate (herein called the "Land") described in Exhibit A
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which is attached hereto and incorporated herein by reference, and (i) all
improvements now or hereafter situated or to be situated on the Land (herein
together called the "Improvements"); and (ii) all right, title and interest of
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Mortgagor, now owned or hereafter acquired, in and to (1) all streets, roads,
alleys, easements, rights-of-way, licenses, rights of ingress and egress,
vehicle parking rights and public places, existing or proposed, abutting,
adjacent, used in connection with or pertaining to the Land or the Improvements;
(2) any strips or gores between the Land and abutting or adjacent properties;
(3) all options to purchase or lease the Land or the Improvements or any portion
thereof or interest therein, and any greater estate in the Land or the
Improvements; (4) all claims, actions and causes of action, both in law and in
equity, with respect to the Property or the Improvements; and (5) all water and
water rights, timber, crops and mineral interests on or pertaining to the Land
(the Land, Improvements and other rights, titles and interests referred to in
this clause (a) being herein sometimes collectively called the "Premises");
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(b) all fixtures, equipment, systems, machinery, furniture, furnishings,
appliances, inventory, goods, building and construction materials, supplies, and
articles of personal property, of every kind and character, now owned or
hereafter acquired by Mortgagor, which are now or hereafter attached to or
situated in, on or about the Land or the Improvements, or used in or necessary
to the complete and proper planning, development, use, occupancy or operation
thereof, or acquired (whether delivered to the Land or stored elsewhere) for use
or installation in or on the Land or the Improvements, and all renewals and
replacements of, substitutions for and additions to the foregoing (the
properties referred to in this clause (b) being herein sometimes collectively
called the "Accessories," all of which are hereby declared to be permanent
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accessions to the Land);
(c) all (i) plans and specifications for the Improvements; (ii) Mortgagor's
rights, but not
liability for any breach by Mortgagor, under all commitments (including any
commitment for financing to pay any of the secured indebtedness, as defined
below), insurance policies, contracts and agreements for the design,
construction, operation or inspection of the Improvements and other contracts
and general intangibles (including but not limited to trademarks, trade names,
goodwill and symbols) related to the Premises or the Accessories or the
operation thereof; (iii) deposits (including but not limited to Mortgagor's
rights in tenants' security deposits, deposits with respect to utility services
to the Premises, and any deposits or reserves hereunder or under any other Loan
Document for taxes, insurance or otherwise), rebates or refunds of impact fees
or other taxes, assessments or charges, money, accounts, instruments, documents,
notes and chattel paper arising from or by virtue of any transactions related to
the Premises or the Accessories; (iv) permits, licenses, franchises,
certificates, development rights, commitments and rights for utilities, and
other rights and privileges obtained in connection with the Premises or the
Accessories; (v) leases, rents, royalties, bonuses, issues, profits, revenues
and other benefits of the Premises and the Accessories (without derogation of
Article 3 hereof); (vi) oil, gas and other hydrocarbons and other minerals
produced from or allocated to the Land and all products processed or obtained
therefrom, and the proceeds thereof; and (vii) engineering, accounting, title,
legal, and other technical or business data concerning the Property which are in
the possession of Mortgagor or in which Mortgagor can otherwise grant a security
interest; and
(d) all (i) proceeds of or arising from the properties, rights, titles and
interests referred to above in this Section 1.2, including but not limited to
proceeds of any sale, lease or other disposition thereof, proceeds of each
policy of insurance relating thereto (including premium refunds), proceeds of
the taking thereof or of any rights appurtenant thereto, including change of
grade of streets, curb cuts or other rights of access, by eminent domain or
transfer in lieu thereof for public or quasi-public use under any law, and
proceeds arising out of any damage thereto; (ii) all claims, actions and causes
of action, both in law and in equity, with respect to the Property or the
Improvements; and (iii) other interests of every kind and character which
Mortgagor now has or hereafter acquires in, to or for the benefit of the
properties, rights, titles and interests referred to above in this Section 1.2
and all property used or useful in connection therewith, including but not
limited to rights of ingress and egress and remainders, reversions and
reversionary rights or interests; and if the estate of Mortgagor in any of the
property referred to above in this Section 1.2 is a leasehold estate, this
conveyance shall include, and the lien and interest created hereby shall
encumber and extend to, all other or additional title, estates, interests or
rights which are now owned or may hereafter be acquired by Mortgagor in or to
the property demised under the lease creating the leasehold estate; TO HAVE AND
TO HOLD the foregoing rights, interests and properties, and all rights, estates,
powers and privileges appurtenant thereto (herein collectively called the
Property"), to the use, benefit and behoof of Mortgagee, forever, in fee simple
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subject to the Permitted Encumbrances (as hereafter defined).
Section 1.3. Security Interest. Mortgagor hereby assigns and grants
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to Mortgagee a security interest in all of the Property which constitutes
personal property or fixtures (herein sometimes collectively called the
"Collateral"). In addition to its rights hereunder or otherwise, Mortgagee
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shall have all of the rights of a secured party under the Uniform Commercial
Code of Pennsylvania, or under the Uniform Commercial Code in force in any other
state to the extent the same is applicable law.
Section 1.4. Note, Loan Documents, Other Obligations. This Mortgage
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is made to secure and enforce the payment and performance of the following
promissory notes, obligations, indebtedness and liabilities and all renewals,
extensions, supplements, increases, and modifications thereof in whole or in
part from time to time: (a) the Promissory Note and all other notes given in
substitution therefor or in modification, supplement, increase, renewal or
extension thereof, in whole or in part (such note or notes, whether one or more,
as from time to time renewed, extended, supplemented, increased or modified and
all other notes given in substitution therefor, or in modification, renewal or
extension thereof, in whole or in part, being hereinafter called the "Note");
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(b) all indebtedness and other obligations owed by Mortgagor to Mortgagee, now
or hereafter incurred or arising pursuant to or permitted by the provisions of
the Note, this Mortgage, or any of the other Loan Documents; and (c) all other
loans and future advances (such future advances to be made up to a maximum
principal amount of indebtedness outstanding at any one time equal to double the
face amount of the Note plus all interest, costs, reimbursements, fees and
expenses due under this Mortgage) made by Mortgagee to Mortgagor and all other
debts, obligations and liabilities of Mortgagor of every kind and character now
or hereafter existing in favor of Mortgagee, however and whenever incurred,
whether direct or indirect, primary or secondary, joint or several, fixed or
contingent, secured or unsecured, and whether originally payable to Mortgagee or
to a third party and subsequently acquired by Mortgagee; provided, however, and
notwithstanding the foregoing provisions of this clause (c), this Mortgage shall
not secure any such other loan, advance, debt, obligation or liability with
respect to which Mortgagee is by applicable law prohibited from obtaining a lien
or security title on real estate nor shall this clause (c) operate or be
effective to constitute or require any assumption or payment by any person, in
any way, of any debt of any other person to the extent that the same would
violate or exceed the limit provided in any applicable usury or other law. The
indebtedness referred to in this Section 1.4 is hereinafter sometimes referred
to as the "secured indebtedness" or the "indebtedness secured hereby."
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ARTICLE 2 - REPRESENTATIONS, WARRANTIES AND COVENANTS
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Section 2.1. Mortgagor represents, warrants, and covenants as follows:
(a) Payment and Performance. Mortgagor will make due and punctual
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payment of the secured indebtedness. Mortgagor will timely and properly perform
and comply with all of the covenants, agreements, and conditions imposed upon it
by this Mortgage and the other Loan Documents and will not permit a default to
occur hereunder or thereunder. Time shall be of the essence in this Mortgage.
(b) Title and Permitted Encumbrances. Mortgagor has, in Mortgagor's
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own right, and Mortgagor covenants to maintain, lawful, good and marketable fee
simple title to the Property, is lawfully seized and possessed of the Property
and every part thereof, and has the right to convey the same, free and clear of
all liens, charges, debts, claims, interests, and encumbrances except for (i)
the matters, if any, set forth under the heading "Permitted Exceptions" in
Exhibit B hereto, which are Permitted Exceptions only to the extent the same are
valid and subsisting and affect the Property, (ii) the liens and security
interests evidenced by this Mortgage, (iii) other liens and security interests
(if any) in favor of Mortgagee (the matters described in the foregoing clauses
(i),
(ii) and (iii) being herein called the "Permitted Encumbrances"). Mortgagor, and
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Mortgagor's successors and assigns, will warrant and forever defend title to the
Property, subject as aforesaid, to Mortgagee and its successors and assigns,
against the claims and demands of all persons claiming or to claim the same or
any part thereof. Mortgagor will punctually pay, perform, observe and keep all
covenants, obligations and conditions in or pursuant to any Permitted
Encumbrance and will not modify or permit modification of any Permitted
Encumbrance without the prior written consent of Mortgagee. Inclusion of any
matter as a Permitted Encumbrance does not constitute approval or waiver by
Mortgagee of any existing or future violation or other breach thereof by
Mortgagor, by the Property or otherwise. If any right or interest of Mortgagee
in the Property or any part thereof shall be endangered or questioned or shall
be attacked directly or indirectly, Mortgagee (whether or not named as the party
to legal proceedings with respect thereto) is hereby authorized and empowered to
take such steps as in its discretion may be proper for the defense of any such
legal proceedings or the protection of such right or interest of Mortgagee,
including but not limited to the employment of independent counsel, the
prosecution or defense of litigation, and the compromise or discharge of adverse
claims. All expenditures so made of every kind and character shall be a demand
obligation (which obligation Mortgagor hereby promises to pay) owing by
Mortgagor to Mortgagee, and Mortgagee shall be subrogated to all rights of the
person receiving such payment.
(c) Taxes and Other Impositions. Mortgagor will pay, or cause to be
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paid, all taxes, assessments and other charges or levies imposed upon or against
or with respect to the Property or the ownership, use, occupancy or enjoyment of
any portion thereof, or any utility service thereto, as the same become due and
payable, including but not limited to all ad valorem taxes assessed against the
Property or any part thereof, and shall deliver promptly to Mortgagee such
evidence of the payment thereof as Mortgagee may require.
(d) Insurance.
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I. Requirements Regarding Insurance.
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Mortgagor shall obtain and maintain at Mortgagor's sole expense: (1)
mortgagee title insurance issued to Mortgagee covering the Premises as required
by Mortgagee; (2) all-risk insurance with respect to all insurable Property,
against loss or damage by fire, lightning, windstorm, explosion, hail, tornado
and such hazards as are presently included in so-called "all-risk" coverage and
against such other insurable hazards as Mortgagee may require, in an amount not
less than 100% of the full replacement cost, including the cost of debris
removal, without deduction for depreciation and sufficient to prevent Mortgagor
and Mortgagee from becoming a coinsurer, such insurance to be in builder's risk
(non-reporting) form during and with respect to any construction on the
Premises; (3) if and to the extent any portion of the Improvements is in a
special flood hazard area, a flood insurance policy in an amount equal to the
lesser of the principal face amount of the Note or the maximum amount available;
(4) comprehensive general public liability insurance, on an "occurrence" basis,
for the benefit of Mortgagor and Mortgagee as named insureds; (5) statutory
workers' compensation insurance with respect to any work on or about the
Premises; and (6) such other insurance on the Property as may from time to time
be required by Mortgagee (including but not limited to rental loss or business
interruption insurance, boiler and machinery insurance, earthquake insurance,
and war risk
insurance) and against other insurable hazards or casualties which at the time
are commonly insured against in the case of premises similarly situated, due
regard being given to the height, type, construction, location, use and
occupancy of buildings and improvements. All insurance policies shall be issued
and maintained by insurers, in amounts, with deductibles, and in form
satisfactory to Mortgagee, and shall require not less than thirty (30) days'
prior written notice to Mortgagee of any cancellation or change of coverage. All
insurance policies maintained, or caused to be maintained, by Mortgagor with
respect to the Property, except for public liability insurance, shall provide
that each such policy shall be primary without right of contribution from any
other insurance that may be carried by Mortgagor or Mortgagee and that all of
the provisions thereof, except the limits of liability, shall operate in the
same manner as if there were a separate policy covering each insured. If any
insurer which has issued a policy of title, hazard, liability or other insurance
required pursuant to this Mortgage or any other Loan Document becomes insolvent
or the subject of any bankruptcy, receivership or similar proceeding or if in
Mortgagee's reasonable opinion the financial responsibility of such insurer is
or becomes inadequate, Mortgagor shall, in each instance promptly upon the
request of Mortgagee and at Mortgagor's expense, obtain and deliver to Mortgagee
a like policy (or, if and to the extent permitted by Mortgagee, a certificate of
insurance) issued by another insurer, which insurer and policy meet the
requirements of this Mortgage or such other Loan Document, as the case may be.
Without limiting the discretion of Mortgagee with respect to required
endorsements to insurance policies, all such policies for loss of or damage to
the Property shall contain a standard mortgagee clause (without contribution)
naming Mortgagee as mortgagee with loss proceeds payable to Mortgagee
notwithstanding (i) any act, failure to act or negligence of or violation of any
warranty, declaration or condition contained in any such policy by any named
insured; (ii) the occupation or use of the Property for purposes more hazardous
than permitted by the terms of any such policy; (iii) any foreclosure or other
action by Mortgagee under the Loan Documents; or (iv) any change in title to or
ownership of the Property or any portion thereof, such proceeds to be held for
application as provided in the Loan Documents. The originals of each initial
insurance policy (or to the extent permitted by Mortgagee, a copy of the
original policy and a satisfactory certificate of insurance) shall be delivered
to Mortgagee at the time of execution of this Mortgage, with premiums fully
paid, and each renewal or substitute policy (or certificate) shall be delivered
to Mortgagee, with premiums fully paid, at least ten (10) days before the
termination of the policy it renews or replaces. Mortgagor shall pay all
premiums on policies required hereunder as they become due and payable and
promptly deliver to Mortgagee evidence satisfactory to Mortgagee of the timely
payment thereof. If any loss occurs at any time when Mortgagor has failed to
perform Mortgagor's covenants and agreements in this paragraph, Mortgagee shall
nevertheless be entitled to the benefit of all insurance covering the loss and
held by or for Mortgagor, to the same extent as if it had been made payable to
Mortgagee. Upon any foreclosure hereof or transfer of title to the Property in
extinguishment of the whole or any part of the secured indebtedness, all of
Mortgagor's right, title and interest in and to the insurance policies referred
to in this Section (including unearned premiums) and all proceeds payable
thereunder shall thereupon vest in the purchaser at foreclosure or other such
transferee, to the extent permissible under such policies. Mortgagee shall have
the right (but not the obligation) to make proof of loss for, settle and adjust
any claim under, and receive the proceeds of, all insurance for loss of or
damage to the Property, and the expenses incurred by Mortgagee in the adjustment
and collection of insurance proceeds shall be a part of the secured indebtedness
and shall be due and payable to Mortgagee on demand. Mortgagee shall not be,
under any circumstances, liable or responsible for failure to collect or
exercise diligence in the collection of any of such proceeds or for the
obtaining, maintaining or adequacy of any insurance or for failure to see to the
proper application of any amount paid over to Mortgagor. Subject to the terms of
Subsection II, below, any such proceeds received by Mortgagee shall, after
deduction therefrom of all reasonable expenses actually incurred by Mortgagee,
including attorneys' fees, at Mortgagee's option be (1) released to Mortgagor,
or (2) applied (upon compliance with such terms and conditions as may be
required by Mortgagee) to repair or restoration, either partly or entirely, of
the Property so damaged, or (3) applied to the payment of the secured
indebtedness in such order and manner as Mortgagee, in its sole but reasonable
discretion, may elect, whether or not due. In any event, the unpaid portion of
the secured indebtedness shall remain in full force and effect and the payment
thereof shall not be excused. Mortgagor shall at all times comply with the
requirements of the insurance policies required hereunder and of the issuers of
such policies and of any board of fire underwriters or similar body as
applicable to or affecting the Property.
II. Restoration Advances.
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(i) Mortgagee agrees that in the event that all or a portion of the
Improvements shall be destroyed or damaged by fire, explosion, windstorm, hail
or any other casualty against which insurance is required under this Mortgage,
Mortgagee will elect to apply the insurance proceeds which remain after payment
of the expenses of collection thereof as provided in Subsection I, above (called
the "Proceeds" below in this Subsection), or so much thereof as is required, to
restoration of the portion of the Premises damaged, as nearly as practicable to
its value, character and condition immediately prior to such casualty (the
"Restoration"), provided that all of the following conditions precedent are
satisfied in full not later than ninety (90) days after the date on which the
casualty loss occurs:
A) no default shall have occurred and shall remain uncured following
the expiration of any grace or cure period;
B) all tenants having present or future possessory rights under
Leases (hereinafter defined), including without limitation the tenant under
that certain Build-To-Suit Office Lease Agreement (the "Pennsylvania
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Cellular Lease") dated as of September 26, 1997, by and among Xxxxx Xxxxxxx
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No. 33, L.P., a Pennsylvania limited partnership, as Landlord, Pennsylvania
Cellular Telephone Corp., a North Carolina corporation, as Tenant, and
Xxxxx, Xxxxxxx & Company, an Illinois corporation, as Contractor, as
amended, the Landlord's interest thereunder having been assigned to
Mortgagor, have agreed in a manner satisfactory to Mortgagee that their
Leases will continue in full force and effect and, if necessary, the time
for taking or regaining possession of the demised premises under such
Leases will be extended by the time necessary to complete the Restoration;
C) all parties having operating, management or franchise interests
in, and arrangements concerning, the Property have agreed that they will
continue their interests and arrangements for the contract terms then in
effect following the Restoration;
D) all parties having commitments to provide financing with respect
to the Property, to purchase Mortgagor's interest in full or in part in the
Property or to purchase or pay the loan evidenced by the Note
(collectively, "Commitment Providers") have agreed in a manner satisfactory
to Mortgagee that their commitments will continue in full force and effect
and, if necessary, the expiration of such commitments will be extended by
the time necessary to complete the Restoration;
E) Mortgagor has presented evidence satisfactory to Mortgagee, and
Mortgagee has reasonably determined, that the Restoration can be
accomplished within a reasonable period of time and in any event prior to
the Maturity Date (as defined in the Note);
F) Mortgagor has delivered or caused to be delivered to Mortgagee,
and Mortgagee has approved, complete final plans and specifications (the
"Restoration Plans") for the work to be performed in connection with the
Restoration (hereinafter called the "Restoration Work") prepared and sealed
by an architect (the "Architect") acceptable to Mortgagee, with evidence
satisfactory to Mortgagee of the approval of the Restoration Plans by all
Commitment Providers and by all governmental authorities and all tenants
under Leases whose approval is required;
G) Mortgagor has delivered or caused to be delivered to Mortgagee a
signed estimate approved in writing by the Architect, stating the entire
cost of completing the Restoration Work;
H) Mortgagor has entered into, and has furnished to Mortgagee a copy
of, a fixed price construction contract satisfactory to Mortgagee, with a
contractor reasonably acceptable to Mortgagee, bonded to the extent
required by Mortgagee, for the Restoration Work and such contractor shall
have executed a waiver of its right and the right of all subcontractors and
materialmen to file mechanics' liens with respect to the Restoration Work;
I) if Mortgagee has determined that (i) the projected cost of the
Restoration Work substantially in accordance with the Restoration Plans
exceeds (ii) the available Proceeds held by Mortgagee, then Mortgagor has
deposited with Mortgagee funds sufficient to cover the excess cost;
J) Mortgagor has furnished all insurance coverage required by
Mortgagee pursuant to Subsection 2.1(d)(I), above; and
K) Mortgagee has determined that it will not incur any liability to
any person as a result of such use of the Proceeds.
If all of the foregoing conditions have not been satisfied within the
time limit specified above, then Mortgagee may, at its option, apply such
Proceeds to the indebtedness
secured hereby, whether or not due, in such order and manner as Mortgagee
elects.
(ii) To the extent that Mortgagee elects to apply the Proceeds to the
restoration or reconstruction of the Improvements, then disbursement of the
Proceeds for Restoration or Restoration Work shall be subject to and shall
be made in accordance with the customary practices of Mortgagee governing
the disbursement of construction loans. If Mortgagee determines from time
to time that (i) the estimated cost of the Restoration substantially in
accordance with the Restoration Plans exceeds (ii) the available Proceeds
held by Mortgagee plus all other available funds deposited by Mortgagor
with Mortgagee for the purpose of the Restoration, then Mortgagor shall
deposit additional funds with Mortgagee to cover the excess cost before
Mortgagee shall be required to disburse any such Proceeds or other
available funds for Restoration costs. Any such funds provided by
Mortgagor to cover excess costs shall be used for the costs of Restoration
prior to disbursement of any of the Proceeds for such costs.
(iii) Any such Proceeds and additional funds provided by Mortgagor
which are held by Mortgagee under this Subsection II shall be held by
Mortgagee in an account of Mortgagee's selection until disbursed for
Restoration or otherwise applied as herein provided. Mortgagee's receipt
and custody of such Proceeds or additional funds shall not constitute a
repayment of any of the indebtedness secured hereby, unless and until such
Proceeds or additional funds are actually applied against the indebtedness
secured hereby in accordance with this Mortgage. No disbursement of such
Proceeds for Restoration costs shall constitute an advance of the loan
evidenced by the Note or increase the principal amount of such loan. If
surplus Proceeds remain after completion of the Restoration and payment of
all costs therefor, then such surplus Proceeds shall be applied against the
indebtedness secured hereby in such manner and order as Mortgagee elects.
If surplus funds then remain from additional funds provided by Mortgagor to
cover excess costs of Restoration, then such surplus funds shall be
returned to Mortgagor, provided that no uncured default shall exist
hereunder.
(iv) In any event, upon the occurrence of a default at any time, and
the expiration of any applicable grace or cure period without the curing
thereof, Mortgagee may (but has no obligation to) apply all or any portion
of such Proceeds or additional funds provided by Mortgagor in Mortgagee's
possession to the payment of the indebtedness secured hereby, whether or
not due, in such order and manner as Mortgagee elects, and/or to the cure
of any default without waiving the same.
(e) Reserve for Insurance, Taxes and Assessments. Upon request of
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Mortgagee, to secure certain of Mortgagor's obligations in paragraphs (c) and
(d) above, but not in lieu of such obligations, Mortgagor will deposit with
Mortgagee a sum equal to ad valorem taxes, assessments and charges (which
charges for the purpose of this paragraph shall include without limitation any
recurring charge which could result in a lien against the Property) against the
Property for the current year and the premiums for such policies of insurance
for the current year, all as estimated by Mortgagee and prorated to the end of
the calendar month following the month during which Mortgagee's request is made,
and thereafter will deposit with Mortgagee, on each date when an
installment of principal and/or interest is due on the Note, sufficient funds
(as estimated from time to time by Mortgagee) to permit Mortgagee to pay at
least fifteen (15) days prior to the delinquency date thereof, the next maturing
ad valorem taxes, assessments and charges and premiums for such policies of
insurance. Mortgagee shall have the right to rely upon tax information furnished
by applicable taxing authorities in the payment of such taxes or assessments and
shall have no obligation to make any protest of any such taxes or assessments.
Any excess over the amounts required for such purposes shall be held by
Mortgagee for future use, applied to any secured indebtedness or refunded to
Mortgagor, at Mortgagee's option, and any deficiency in such funds so deposited
shall be made up by Mortgagor upon demand of Mortgagee. All such funds so
deposited shall bear interest at the rate applicable to the account selected by
Mortgagee for such funds, may be mingled with the general funds of Mortgagee and
shall be applied by Mortgagee toward the payment of such taxes, assessments,
charges and premiums when statements therefor are presented to Mortgagee by
Mortgagor (which statements shall be presented by Mortgagor to Mortgagee a
reasonable time before the applicable amount is delinquent); provided, however,
that, if a default shall have occurred hereunder, such funds may at Mortgagee's
option be applied to the payment of the secured indebtedness in the order
determined by Mortgagee in its sole discretion, and that Mortgagee may (but
shall have no obligation) at any time, in its discretion, apply all or any part
of such funds toward the payment of any such taxes, assessments, charges or
premiums which are past due, together with any penalties or late charges with
respect thereto. The conveyance or transfer of Mortgagor's interest in the
Property for any reason (including without limitation the foreclosure of a
subordinate lien or security interest or a transfer by operation of law) shall
constitute an assignment or transfer of Mortgagor's interest in and rights to
such funds held by Mortgagee under this paragraph but subject to the rights of
Mortgagee hereunder.
(f) Condemnation. Mortgagor shall notify Mortgagee immediately of any
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threatened or pending proceeding for condemnation affecting the Property or
arising out of damage to the Property, and Mortgagor shall, at Mortgagor's
expense, diligently prosecute any such proceedings. Mortgagee shall have the
right (but not the obligation) to participate in any such proceeding and to be
represented by counsel of its own choice. Mortgagee shall be entitled to
receive all sums which may be awarded or become payable to Mortgagor for the
condemnation of the Property, or any part thereof, for public or quasi-public
use, or by virtue of private sale in lieu thereof, and any sums which may be
awarded or become payable to Mortgagor for injury or damage to the Property.
Mortgagor shall, promptly upon request of Mortgagee, execute such additional
assignments and other documents as may be necessary from time to time to permit
such participation and to enable Mortgagee to collect and receipt for any such
sums. All such sums are hereby assigned to Mortgagee, and shall, after deduction
therefrom of all reasonable expenses actually incurred by Mortgagee, including
attorneys' fees, at Mortgagee's option be (1) released to Mortgagor, or (2)
applied (upon compliance with such terms and conditions as may be required by
Mortgagee) to repair or restoration of the Property so affected, or (3) applied
to the payment of the secured indebtedness in such order and manner as
Mortgagee, in its sole but reasonable discretion, may elect, whether or not due.
In any event the unpaid portion of the secured indebtedness shall remain in full
force and effect and the payment thereof shall not be excused. Mortgagee shall
not be, under any circumstances, liable or responsible for failure to collect or
to exercise diligence in the collection of any such sum or for failure to see to
the proper application of any amount paid over to Mortgagor. Mortgagee is
hereby authorized, in the name of Mortgagor, to execute and deliver valid
acquittances for, and to appeal from, any such award, judgment or decree. All
costs and expenses (including but not limited to attorneys' fees) incurred by
Mortgagee in connection with any condemnation shall be a demand obligation owing
by Mortgagor (which Mortgagor hereby promises to pay) to Mortgagee pursuant to
this Mortgage.
(g) Compliance with Legal Requirements. The Property and the use,
----------------------------------
operation and maintenance thereof and all activities thereon do and shall at all
times comply with all applicable Legal Requirements (defined below). The
Property is not, and shall not be, dependent on any other property or premises
or any interest therein other than the Property to fulfill any requirement of
any Legal Requirement. Mortgagor shall not, by act or omission, permit any
building or other improvement not subject to the lien and interest of this
Mortgage to rely on the Property or any interest therein to fulfill any
requirement of any Legal Requirement. No part of the Property constitutes a
nonconforming use under any zoning law or similar law or ordinance. Mortgagor
has obtained and shall preserve in force all requisite zoning, utility,
building, parking, health, environmental and operating permits from the
governmental authorities having jurisdiction over the Property. If Mortgagor
receives a notice or claim from any person that the Property, or any use,
activity, operation or maintenance thereof or thereon, is not in compliance with
any Legal Requirement, Mortgagor will promptly furnish a copy of such notice or
claim to Mortgagee. Mortgagor has received no notice and has no knowledge of
any such noncompliance. As used in this Mortgage: (i) the term "Legal
-----
Requirement" means any Law (defined below), agreement, covenant, restriction,
-----------
easement or condition (including, without limitation of the foregoing, any
condition or requirement imposed by any insurance or surety company), as any of
the same now exists or may be changed or amended or come into effect in the
future; and (ii) the term "Law" means any federal, state or local law, statute,
---
ordinance, code, rule, regulation, license, permit, authorization, decision,
order, injunction or decree, domestic or foreign.
(h) Maintenance, Repair and Restoration. Mortgagor will keep the
-----------------------------------
Property in first class order, repair, operating condition and appearance,
causing all necessary repairs, renewals, replacements, additions and
improvements to be promptly made, and will not allow any of the Property to be
misused, abused or wasted or to deteriorate. The Improvements are directly
connected to abutting public water, sewer, gas, electrical and telephone lines
and pipes (and other necessary utilities) properly operating and in sufficient
capacity with all charges being currently paid. Notwithstanding the foregoing,
Mortgagor will not, without the prior written consent of Mortgagee, which
consent shall not be unreasonably withheld, (i) remove from the Property any
fixtures or personal property conveyed or encumbered by this Mortgage except
such as is replaced by Mortgagor by an article of equal suitability and value,
owned by Mortgagor, free and clear of any lien or security interest (except that
created by this Mortgage), or (ii) make any structural alteration to the
Property or any other alteration thereto which impairs the value thereof. If any
act or occurrence of any kind or nature (including any condemnation or any
casualty for which insurance was not obtained or obtainable) shall result in
damage to or loss or destruction of the Property, Mortgagor shall give prompt
notice thereof to Mortgagee and Mortgagor shall promptly, at Mortgagor's sole
cost and expense and regardless of whether insurance or condemnation proceeds
(if any) shall be available or sufficient for the purpose, commence and continue
diligently to completion to restore, repair, replace and rebuild the Property as
nearly as possible to its value, condition and character immediately prior to
the damage, loss or destruction.
(i) No Other Liens. Mortgagor will not, without the prior written
--------------
consent of Mortgagee, create, place or permit to be created or placed, or
through any act or failure to act, acquiesce in the placing of, or allow to
remain, any mortgage, security instrument, voluntary or involuntary lien,
whether statutory, constitutional or contractual, security title, interest,
encumbrance or charge, or conditional sale or other title retention document,
against or covering the Property, or any part thereof, other than the Permitted
Encumbrances, regardless of whether the same are expressly or otherwise
subordinate to the lien or security interest created in this Mortgage, and
should any of the foregoing become attached hereafter in any manner to any part
of the Property without the prior written consent of Mortgagee, Mortgagor will
cause the same to be promptly discharged and released. Mortgagor will own all
parts of the Property and will not acquire any fixtures, equipment or other
property forming a part of the Property, pursuant to a lease, license, security
agreement or similar agreement, whereby any party has or may obtain the right to
repossess or remove same, without the prior written consent of Mortgagee, which
consent shall not be unreasonably withheld. If Mortgagee consents to the
voluntary grant by Mortgagor of any mortgage, lien, security interest, or other
encumbrance (hereinafter called "Subordinate Lien") conveying or encumbering any
of the Property or if the foregoing prohibition is determined by a court of
competent jurisdiction to be unenforceable as to a Subordinate Lien, any such
Subordinate Lien shall contain express covenants to the effect that: (1) the
Subordinate Lien is unconditionally subordinate to this Mortgage and all Leases
(hereinafter defined); (2) if any action (whether judicial or pursuant to a
power of sale) shall be instituted to foreclose or otherwise enforce the
Subordinate Lien, no tenant of any of the Leases (hereinafter defined) shall be
named as a party defendant, and no action shall be taken that would terminate
any occupancy or tenancy without the prior written consent of Mortgagee; (3)
Rents (hereinafter defined), if collected by or for the holder of the
Subordinate Lien, shall be applied first to the payment of the secured
indebtedness then due and expenses incurred in the ownership, operation and
maintenance of the Property in such order as Mortgagee may determine, prior to
being applied to any indebtedness secured by the Subordinate Lien; (4) written
notice of default under the Subordinate Lien and written notice of the
commencement of any action (whether judicial or pursuant to a power of sale) to
foreclose or otherwise enforce the Subordinate Lien or to seek the appointment
of a receiver for all or any part of the Property shall be given to Mortgagee
with or immediately after the occurrence of any such default or commencement;
and (5) neither the holder of the Subordinate Lien, nor any purchaser at
foreclosure thereunder, nor anyone claiming by, through or under any of them
shall succeed to any of Mortgagor's rights hereunder without the prior written
consent of Mortgagee.
(j) Operation of Property. Mortgagor will operate the Property in a
---------------------
good and workmanlike manner and in accordance with all Legal Requirements and
will pay all fees or charges of any kind in connection therewith. Mortgagor
will keep the Property occupied so as not to impair the insurance carried
thereon. Mortgagor will not use or occupy or conduct any activity on, or allow
the use or occupancy of or the conduct of any activity on, the Property in any
manner which violates any Legal Requirement or which constitutes a public or
private nuisance or which makes void, voidable or cancelable, or increases the
premium of, any insurance then in force with respect thereto. Mortgagor will
not initiate or permit any zoning reclassification of the Property or seek any
variance under existing zoning ordinances applicable to the Property or use or
permit the use of the Property in such a manner which would result in such use
becoming a nonconforming
use under applicable zoning ordinances or other Legal Requirement. Mortgagor
will not impose any easement, restrictive covenant or encumbrance upon the
Property, execute or file any subdivision plat or condominium declaration
affecting the Property or consent to the annexation of the Property to any
municipality, without the prior written consent of Mortgagee, which consent
shall not be unreasonably withheld. Mortgagor will not do or suffer to be done
any act whereby the value of any part of the Property may be lessened. Mortgagor
will preserve, protect, renew, extend and retain all material rights and
privileges granted for or applicable to the Property. Without the prior written
consent of Mortgagee pursuant to paragraph (u) of this Section 2.1, there shall
be no drilling or exploration for or extraction, removal or production of any
mineral, hydrocarbon, gas, natural element, compound or substance (including
sand and gravel) from the surface or subsurface of the Land regardless of the
depth thereof or the method of mining or extraction thereof. Mortgagor will
cause all debts and liabilities of any character (including without limitation
all debts and liabilities for labor, material and equipment and all debts and
charges for utilities servicing the Property) incurred in the construction,
maintenance, operation and development of the Property to be promptly paid.
(k) Financial Matters. Mortgagor is solvent after giving effect to
-----------------
all borrowings contemplated by the Loan Documents and no proceeding under any
Debtor Relief Law (hereinafter defined) is pending (or, to Mortgagor's
knowledge, threatened) by or against Mortgagor, or any affiliate of Mortgagor,
as a debtor. All reports, statements, plans, budgets, applications, agreements
and other data and information heretofore furnished or hereafter to be furnished
by or on behalf of Mortgagor to Mortgagee in connection with the loan or loans
evidenced by the Loan Documents (including, without limitation, all financial
statements and financial information) are and will be true, correct and complete
in all material respects as of their respective dates and do not and will not
omit to state any fact or circumstance necessary to make the statements
contained therein not misleading. No material adverse change has occurred since
the dates of such reports, statements and other data in the financial condition
of Mortgagor or, to Mortgagor's knowledge, of any tenant under any lease
described therein. For the purposes of this paragraph, "Mortgagor" shall also
include any person liable directly or indirectly for the secured indebtedness or
any part thereof and any joint venturer or general partner of Mortgagor.
(l) Status of Mortgagor; Suits and Claims; Loan Documents. Mortgagor
-----------------------------------------------------
is and will continue to be (i) duly organized, validly existing and in good
standing under the laws of its state of organization, (ii) authorized to do
business in, and in good standing in, each state in which the Property is
located, and (iii) possessed of all requisite power and authority to carry on
its business and to own and operate the Property. Each Loan Document executed
by Mortgagor has been duly authorized, executed and delivered by Mortgagor, and
the obligations thereunder and the performance thereof by Mortgagor in
accordance with their terms are and will continue to be within Mortgagor's power
and authority (without the necessity of joinder or consent of any other person),
are not and will not be in contravention of any Legal Requirement or any other
document or agreement to which Mortgagor or the Property is subject, and do not
and will not result in the creation of any encumbrance against any assets or
properties of Mortgagor, or any other person liable, directly or indirectly, for
any of the secured indebtedness, except as expressly contemplated by the Loan
Documents. There is no suit, action, claim, investigation, inquiry, proceeding
or demand pending (or, to Mortgagor's knowledge, threatened) against Mortgagor
or against any other
person liable directly or indirectly for the secured indebtedness or which
affects the Property (including, without limitation, any which challenges or
otherwise pertains to Mortgagor's title to the Property) or the validity,
enforceability or priority of any of the Loan Documents. There is no judicial or
administrative action, suit or proceeding pending (or, to Mortgagor's knowledge,
threatened) against Mortgagor or against any other person liable directly or
indirectly for the secured indebtedness, except as has been disclosed in writing
to Mortgagee in connection with the loan evidenced by the Note. The Loan
Documents constitute legal, valid and binding obligations of Mortgagor (and of
each guarantor) enforceable in accordance with their terms, except as the
enforceability thereof may be limited by Debtor Relief Laws (hereinafter
defined) and except as the availability of certain remedies may be limited by
general principles of equity. Mortgagor is not a "foreign person" within the
meaning of the Internal Revenue Code of 1986, as amended, Sections 1445 and 7701
(i.e. Mortgagor is not a non-resident alien, foreign corporation, foreign
partnership, foreign trust or foreign estate as those terms are defined therein
and in any regulations promulgated thereunder). The loan evidenced by the Note
is solely for business purposes, and is not for personal, family, household or
agricultural purposes. Mortgagor will not cause or permit any change to be made
in its name, identity, or corporate or partnership structure, unless Mortgagor
shall have notified Mortgagee of such change prior to the effective date of such
change, and shall have first taken all action required by Mortgagee for the
purpose of further perfecting or protecting the lien and security interest of
Mortgagee in the Property. Mortgagor's principal place of business and chief
executive office, and the place where Mortgagor keeps its books and records
concerning the Property, has for the preceding four months been and will
continue to be (unless Mortgagor notifies Mortgagee of any change in writing
prior to the date of such change) the address of Mortgagor set forth at the end
of this Mortgage.
(m) Certain Environmental Matters.
-----------------------------
(i) Definitions. As used in this Mortgage: (1) "Environmental Claim"
----------- -------------------
means any investigative, enforcement, cleanup, removal, containment,
remedial or other governmental or regulatory action at any time threatened,
instituted or completed pursuant to any applicable Environmental
Requirement against Mortgagor or against or with respect to the Property or
any use or activity on the Property, and any claim at any time threatened
or made by any person against Mortgagor or against or with respect to the
Property or any use or activity on the Property, relating to damage,
contribution, cost recovery, compensation, loss or injury resulting from
any Hazardous Substance; (2) "Environmental Requirement" means any Legal
-------------------------
Requirement which pertains to ground or air or water or noise pollution or
contamination, underground or aboveground tanks, health or the environment,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), the Resource
------
Conservation and Recovery Act of 1976, as amended ("RCRA"), and all
----
environmental laws, ordinances, regulations and rules of the Commonwealth
of Pennsylvania and each agency, instrumentality, and subdivision thereof
having jurisdiction over the Premises, including, but not limited to, the
Pennsylvania Discharge Elimination System Rules, the Pennsylvania
Wastewater Treatment Regulations, the Pennsylvania Water Quality Standards,
the Pennsylvania Hazardous Material Response Act, the Pennsylvania Storage
Tank and Spill Prevention Act, the Pennsylvania Underground Storage Act,
the
Pennsylvania Air Pollution Control Act, and the Pennsylvania Air Pollution
Sources Standards; and (3) "Hazardous Substance" means any substance,
-------------------
whether solid, liquid or gaseous: (a) which is listed, defined or regulated
as a "hazardous substance", "hazardous waste" or "solid waste", or
otherwise classified as hazardous or toxic, in or pursuant to any
Environmental Requirement; or (b) which is or contains asbestos, radon, any
polychlorinated biphenyl, urea formaldehyde foam insulation, or explosive
or radioactive material; or (c) which causes or poses a threat to cause a
contamination or nuisance on the Property or on any adjacent property or a
hazard to the environment or to the health or safety of persons on the
Property. As used in this paragraph (m), the word "on" when used with
respect to the Property or adjacent property means "on, in, under, above or
about".
(ii) Representations and Warranties. Mortgagor represents and
------------------------------
warrants to Mortgagee, without regard to whether Mortgagee has or hereafter
obtains any knowledge or report of the environmental condition of the
Property, as follows: (1) during the period of Mortgagor's ownership of
the Property, the Property has not been used for industrial or
manufacturing purposes, for landfill, dumping or other waste disposal
activity or operation, for generation, storage, use, sale, treatment,
processing, recycling or disposal of any Hazardous Substance, or for any
other use that would give rise to the release of any Hazardous Substance on
the Property; (2) to the best of Mortgagor's knowledge after inquiry in
accordance with good commercial or customary practices, no use of the
Property described in clause (1) preceding occurred at any time prior to
the period of Mortgagor's ownership of the Property nor did any such use on
any adjacent property occur during or at any time prior to the period of
Mortgagor's ownership of the Property, and there is no Hazardous Substance,
storage tank (or similar vessel), sump or well on the Property; (3)
Mortgagor has received no notice and has no knowledge of any Environmental
Claim or any completed, pending, proposed or threatened investigation or
inquiry concerning the presence or release of any Hazardous Substance on
the Property or on any adjacent property or concerning whether any
condition, use or activity on the Property or on any adjacent property is
in violation of any Environmental Requirement; (4) the present conditions,
uses and activities on the Property do not violate any Environmental
Requirement and the use of the Property which Mortgagor (and each tenant
and subtenant, if any) makes and intends to make of the Property complies
and will comply with all applicable Environmental Requirements; (5) the
Property is not currently on, and to the best of Mortgagor's knowledge
after inquiry in accordance with good commercial or customary practices,
has never been on, any federal or state "superfund" or "superlien" list;
and (6) neither Mortgagor, nor to Mortgagor's knowledge any tenant or
subtenant, has obtained or is required to obtain any permit or other
authorization to construct, occupy, operate, use or conduct any activity on
any of the Property by reason of any Environmental Requirement.
(iii) Violations. Mortgagor will not cause, commit, permit or allow
----------
to continue any violation of any Environmental Requirement by Mortgagor or
by or with respect to the Property or any use or activity on the Property,
or the attachment of any environmental lien to the Property. Mortgagor
will not place, install, dispose of or release, or cause, permit or allow
the placing, installation, disposal or release of, any Hazardous Substance
or storage tank (or similar vessel) on the Property and will keep the
Property free of any Hazardous
Substance. Notwithstanding the foregoing provisions of this Subparagraph
(iii), Mortgagor shall not be in default under this Subparagraph (iii)
should Mortgagor store minimal quantities of substances on the Property
which technically could be considered Hazardous Substances, provided that:
-------------
such substances are of a type and are held only in a quantity normally used
in connection with the construction, occupancy or operation of comparable
buildings (such as cleaning fluids, and supplies normally used in the day
to day operation of business offices), such substances are being held,
stored and used in complete and strict compliance with all applicable
Environmental Requirements, and the indemnity in Section 7 of the
Environmental Agreement shall always apply to such substances, and it shall
be and continue to be the responsibility of Mortgagor to take all remedial
actions required under and in accordance with Subparagraph (vi), below, in
the event of any unlawful release of any such substance.
(iv) Notice to Mortgagee. Mortgagor will promptly advise Mortgagee in
-------------------
writing of any Environmental Claim or of the discovery of any Hazardous
Substance on the Property, as soon as Mortgagor first obtains knowledge
thereof, including a full description of the nature and extent of the
Environmental Claim and/or Hazardous Substance and all relevant
circumstances.
(v) Site Assessments and Information. If Mortgagee shall ever have
--------------------------------
reason to believe that any Hazardous Substance affects the Property, or if
any Environmental Claim is made or threatened, or if a default shall have
occurred, Mortgagor will at its expense provide to Mortgagee from time to
time, in each case within 30 days of Mortgagee's request, a report
(including all drafts thereof if requested by Mortgagee) of an
environmental assessment of the Property made after the date of Mortgagee's
request and of such scope (including but not limited to the taking of soil
borings, air and groundwater samples and other above and below ground
testing) as Mortgagee may request and by a consulting firm acceptable to
Mortgagee. Mortgagor will cooperate with each consulting firm making any
such assessment and will supply to the consulting firm, from time to time
and promptly on request, all information available to Mortgagor to
facilitate the completion of the assessment and report.
(vi) Remedial Actions. Without limitation of Mortgagee's rights to
----------------
declare a default and to exercise all remedies available by reason thereof,
if any Hazardous Substance is discovered on the Property at any time and
regardless of the cause, Mortgagor shall: (1) promptly at Mortgagor's sole
risk and expense remove, treat and dispose of the Hazardous Substance in
compliance with all applicable Environmental Requirements and solely under
Mortgagor's name (or if removal is prohibited by any Environmental
Requirement, take whatever action is required by applicable Environmental
Requirements), in addition to taking such other action as is necessary to
have the full use and benefit of the Property as contemplated by the Loan
Documents, and provide Mortgagee with satisfactory evidence thereof; and
(2) if requested by Mortgagee, provide to Mortgagee within 30 days of
Mortgagee's request a bond, letter of credit or other financial assurance
evidencing to Mortgagee's satisfaction that all necessary funds are readily
available to pay the costs and expenses of the actions required by clause
(1) preceding and to discharge any assessments
or liens established against the Property as a result of the presence of
the Hazardous Substance on the Property.
(n) Further Assurances. Mortgagor will, promptly on request of Mortgagee,
------------------
(i) correct any defect, error or omission which may be discovered in the
contents, execution or acknowledgment of this Mortgage or any other Loan
Document; (ii) execute, acknowledge, deliver, procure and record and/or file
such further documents (including, without limitation, further mortgages,
security agreements, financing statements, continuation statements, and
assignments of rents or leases) and do such further acts as may be necessary,
desirable or proper to carry out more effectively the purposes of this Mortgage
and the other Loan Documents, to more fully identify and subject to the liens
and interests hereof any property intended to be covered hereby (including
specifically, but without limitation, any renewals, additions, substitutions,
replacements, or appurtenances to the Property) or as deemed advisable by
Mortgagee to protect the lien or the interest hereunder against the rights or
interests of third persons; and (iii) provide such certificates, documents,
reports, information, affidavits and other instruments and do such further acts
as may be necessary, desirable or proper in the reasonable determination of
Mortgagee to enable Mortgagee to comply with the requirements or requests of any
agency having jurisdiction over Mortgagee or any examiners of such agencies with
respect to the indebtedness secured hereby, Mortgagor or the Property. Mortgagor
shall pay all costs connected with any of the foregoing, which shall be a demand
obligation owing by Mortgagor (which Mortgagor hereby promises to pay) to
Mortgagee pursuant to this Mortgage.
(o) Fees and Expenses. Without limitation of any other provision of
-----------------
this Mortgage or of any other Loan Document and to the extent not prohibited by
applicable law, Mortgagor will pay, and will reimburse to Mortgagee on demand to
the extent paid by Mortgagee: (i) all appraisal fees, filing and recording fees,
taxes, brokerage fees and commissions, abstract fees, title search or
examination fees, title policy and endorsement premiums and fees, uniform
commercial code search fees, escrow fees, reasonable attorneys' fees, architect
fees, construction consultant fees, environmental inspection fees, survey fees,
and all other out-of-pocket costs and expenses of every character incurred by
Mortgagor or Mortgagee in connection with the preparation of the Loan Documents,
the evaluation, closing and funding of the loan evidenced by the Loan Documents,
and any and all amendments and supplements to this Mortgage, the Note or any
other Loan Documents or any approval, consent, waiver, release or other matter
requested or required hereunder or thereunder, or otherwise attributable or
chargeable to Mortgagor as owner of the Property; and (ii) all costs and
expenses, including reasonable attorneys' fees and expenses, incurred or
expended in connection with the exercise of any right or remedy, or the
enforcement of any obligation of Mortgagor, hereunder or under any other Loan
Document.
(p) Indemnification.
---------------
(i) Mortgagor will indemnify and hold harmless Mortgagee from and
against, and reimburse Mortgagee on demand for, any and all Indemnified
Matters (defined below). For purposes of this paragraph (p), the term
"Mortgagee" shall include the directors, officers, partners, employees and
agents of Mortgagee, and any persons owned or controlled by, owning or
controlling, or under common control or affiliated with Mortgagee. Without
limitation, the foregoing indemnities shall apply to each indemnified
person with respect to matters which in whole or in part are caused by or
arise out of the negligence of such (and/or any other) indemnified person.
However, such indemnities shall not apply to a particular indemnified
person to the extent that the subject of the indemnification is caused by
or arises out of the gross negligence or willful misconduct of that
indemnified person. Any amount to be paid under this paragraph (p) by
Mortgagor to Mortgagee shall be a demand obligation owing by Mortgagor
(which Mortgagor hereby promises to pay) to Mortgagee pursuant to this
Mortgage. Nothing in this paragraph, elsewhere in this Mortgage or in any
other Loan Document shall limit or impair any rights or remedies of
Mortgagee (including without limitation any rights of contribution or
indemnification) against Mortgagor or any other person under any other
provision of this Mortgage, any other Loan Document, any other agreement or
any applicable Legal Requirement.
(ii) As used herein, the term "Indemnified Matters" means any and all
-------------------
claims, demands, liabilities (including strict liability), losses, damages
(including consequential damages), causes of action, judgments, penalties,
costs and expenses (including without limitation, reasonable fees and
expenses of attorneys and other professional consultants and experts, and
of the investigation and defense of any claim, whether or not such claim is
ultimately defeated, and the settlement of any claim or judgment including
all value paid or given in settlement) of every kind, known or unknown,
foreseeable or unforeseeable, which may be imposed upon, asserted against
or incurred or paid by Mortgagee at any time and from time to time,
whenever imposed, asserted or incurred, because of, resulting from, in
connection with, or arising out of any transaction, act, omission, event or
circumstance in any way connected with the Property or with this Mortgage
or any other Loan Document, including but not limited to any bodily injury
or death or property damage occurring in or upon or in the vicinity of the
Property through any cause whatsoever at any time on or before the Release
Date, any act performed or omitted to be performed hereunder or under any
other Loan Document, any breach by Mortgagor of any representation,
warranty, covenant, agreement or condition contained in this Mortgage or in
any other Loan Document, any default as defined herein or any claim under
or with respect to any Lease (hereinafter defined), or arising under the
Environmental Agreement.
The term "Release Date" as used herein means the earlier of the following
------------
two dates: (i) the date on which the indebtedness and obligations secured
hereby have been paid and performed in full and this Mortgage has been
cancelled and satisfied of record, or (ii) the date on which this Mortgage
is fully and finally foreclosed or a conveyance by deed in lieu of such
foreclosure is fully and finally effective, and possession of the Property
has been given to the purchaser or grantee free of occupancy and claims to
occupancy by Mortgagor
and Mortgagor's heirs, devisees, representatives, successors and assigns;
provided, that if such payment, performance, release, foreclosure or
conveyance is challenged, in bankruptcy proceedings or otherwise, the
Release Date shall be deemed not to have occurred until such challenge is
rejected, dismissed or withdrawn with prejudice. The indemnities in this
paragraph (p) shall not terminate upon the Release Date or upon the
cancellation, satisfaction, foreclosure or other termination of this
Mortgage but will survive the Release Date, foreclosure of this Mortgage or
conveyance in lieu of foreclosure, the repayment of the secured
indebtedness, the discharge, cancellation and satisfaction of this Mortgage
and the other Loan Documents, any bankruptcy or other debtor relief
proceeding, and any other event whatsoever.
(q) Records and Financial Reports. Mortgagor will keep accurate books
-----------------------------
and records in accordance with sound accounting principles in which full, true
and correct entries shall be promptly made with respect to the Property and the
operation thereof, and will permit all such books and records to be inspected
and copied, and the Property to be inspected and photographed, by Mortgagee and
its representatives during normal business hours and at any other reasonable
times. Without limitation of other or additional requirements in any of the
other Loan Documents, Mortgagor will furnish to Mortgagee current operating
statements itemizing all income and expenses of the Property, for each quarter
(and for the fiscal year through the end of such quarter) as soon as reasonably
practicable but in any event within fifteen (15) days after the end of such
quarter and for the fiscal year of Mortgagor within sixty (60) days after the
end thereof including also a projection of such operations for the next fiscal
year; (ii) a balance sheet (including disclosure of all contingent liabilities)
and an income statement of Mortgagor, for each fiscal year of Mortgagor as soon
as reasonably practicable following the end of such fiscal year, but in any
event within ninety (90) days after the end thereof. Each financial statement
submitted pursuant to this paragraph shall be prepared in accordance with
generally accepted accounting principles, consistently applied, and be certified
in writing as true and correct by a representative of Mortgagor acceptable to
Mortgagee. Mortgagor will furnish to Mortgagee at Mortgagor's expense all
evidence which Mortgagee may from time to time reasonably request as to
compliance with all provisions of the Loan Documents. Any inspection or audit
of the Property or the books and records of Mortgagor, or the procuring of
documents and financial and other information, by or on behalf of Mortgagee
shall be for Mortgagee's protection only, and shall not constitute any
assumption of responsibility to Mortgagor or anyone else with regard to the
condition, construction, maintenance or operation of the Property nor
Mortgagee's approval of any certification given to Mortgagee nor relieve
Mortgagor of any of Mortgagor's obligations. Mortgagee may from time to time
assign or grant participations in the secured indebtedness and Mortgagor
consents to the delivery by Mortgagee to any acquirer or prospective acquirer of
any interest or participation in or with respect to all or part of the secured
indebtedness such information as Mortgagee now or hereafter has relating to the
Property, Mortgagor, any party obligated for payment of any part of the secured
indebtedness, any tenant or guarantor under any lease affecting any part of the
Property and any agent or guarantor under any management agreement affecting any
part of the Property.
(r) Taxes on Note or Mortgage. Mortgagor will promptly pay all income,
-------------------------
franchise and other taxes owing by Mortgagor and any stamp taxes or other taxes
(unless such payment by Mortgagor is prohibited by law) which may be required to
be paid with respect to the Note, this
Mortgage or any other instrument evidencing or securing any of the secured
indebtedness. In the event of the enactment after this date of any law of any
governmental entity applicable to Mortgagee, the Note, the Property or this
Mortgage deducting from the value of property for the purpose of taxation any
lien or interest thereon, or imposing upon Mortgagee the payment of the whole or
any part of the taxes or assessments or charges or liens herein required to be
paid by Mortgagor, or changing in any way the laws relating to the taxation of
mortgages or security agreements or debts secured by mortgages or security
agreements or the interest of the mortgagee or secured party in the property
covered thereby, or the manner of collection of such taxes, so as to affect this
Mortgage or the indebtedness secured hereby or Mortgagee, then, and in any such
event, Mortgagor, upon demand by Mortgagee, shall pay such taxes, assessments,
charges or liens, or reimburse Mortgagee therefor; provided, however, that if in
the opinion of counsel for Mortgagee (i) it might be unlawful to require
Mortgagor to make such payment or (ii) the making of such payment might result
in the imposition of interest beyond the maximum amount permitted by law, then
and in such event, Mortgagee may elect, by notice in writing given to Mortgagor,
to declare all of the indebtedness secured hereby to be and become due and
payable sixty (60) days from the giving of such notice.
(s) Statement Concerning Note or Mortgage. Mortgagor shall at any
-------------------------------------
time and from time to time furnish within seven (7) days of request by Mortgagee
a written statement in such form as may be required by Mortgagee stating that
(i) the Note, this Mortgage and the other Loan Documents are valid and binding
obligations of Mortgagor, enforceable against Mortgagor in accordance with their
terms; (ii) the unpaid principal balance of the Note; (iii) the date to which
interest on the Note is paid; (iv) the Note, this Mortgage and the other Loan
Documents have not been released, subordinated or modified; and (v) there are no
offsets or defenses against the enforcement of the Note, this Mortgage or any
other Loan Document. If any of the foregoing statements are untrue, Mortgagor
shall, alternatively, specify the reasons therefor.
(t) Annual Appraisal. Mortgagee may at its option obtain at
----------------
Mortgagor's expense, once in each year (or as otherwise reasonably requested by
Mortgagee) an appraisal of the Property or any part thereof prepared in
accordance with written instructions from Mortgagee by a third-party appraiser
engaged directly by Mortgagee. Each such appraiser and appraisal shall be
satisfactory to Mortgagee. The costs of each such appraisal shall be a part of
the secured indebtedness and shall be payable by Mortgagor to Mortgagee on
demand (which obligation Mortgagor hereby promises to pay).
(u) Mineral Interests. Mortgagor agrees that the making of any oil,
-----------------
gas or mineral lease or the sale or conveyance of any mineral interest or right
to explore for minerals under, through or upon the Property would impair the
value of the Property as security for payment of the indebtedness secured hereby
and that Mortgagor shall have no right, power or authority to lease the
Property, or any part thereof, for oil, gas or other mineral purposes, or to
grant, assign or convey any mineral interest of any nature, or the right to
explore for oil, gas and other minerals, without first obtaining from Mortgagee
express written permission, which permission shall not be valid until recorded.
Mortgagor further agrees that if Mortgagor shall make any such lease or attempt
to grant any such mineral rights without such prior written permission, then
Mortgagee shall have the option, without notice, to declare the same to be a
default hereunder
and to declare the indebtedness secured hereby immediately due and payable.
Whether or not Mortgagee shall consent to such lease or grant of mineral rights,
Mortgagee shall receive the entire consideration to be paid for such lease or
grant of mineral rights, with the same to be applied upon the indebtedness
secured hereby; provided, however, that the acceptance of such consideration
shall in no way impair the lien of this Mortgage on the Property, including all
mineral rights.
(v) Year 2000 Compliance. Mortgagor has (i) initiated a review and
--------------------
assessment of all areas within its business and operations (including those
affected by suppliers and vendors) that could be adversely affected by the "Year
----
2000 Problem" (that is, the risk that computer applications used by Mortgagor
------------
(or its suppliers and vendors) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999), (ii) developed a plan and timeline for addressing the Year
2000 Problem on a timely basis, and (iii) to date, implemented that plan in
accordance with that timetable. Mortgagor reasonably believes that all computer
applications (including those of its suppliers and vendors) that are material to
its business and operations will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000 (that
is, will be "Year 2000 Compliant"), except to the extent that a failure to do so
-------------------
could not reasonably be expected to cause a material adverse change in the
financial condition, results of operations, business or properties of Mortgagor
(a "Material Adverse Change"). Mortgagor will promptly notify Mortgagee in the
-----------------------
event that Mortgagor discovers or determines that any computer application
(including those of its suppliers and vendors) that is material to its business
and operations will not be Year 2000 Compliant on a timely basis, except to the
extent that such failure could not reasonably be expected to cause a Material
Adverse Change.
Section 2.2. Performance by Mortgagee on Mortgagor's Behalf.
----------------------------------------------
Mortgagor agrees that, if Mortgagor fails to perform any act or to take any
action which under any Loan Document Mortgagor is required to perform or take,
or to pay any money which under any Loan Document Mortgagor is required to pay,
and whether or not the failure then constitutes a default hereunder or
thereunder, and whether or not there has occurred any default or defaults
hereunder or the secured indebtedness has been accelerated, Mortgagee, in
Mortgagor's name or its own name, may, but shall not be obligated to, perform or
cause to be performed such act or take such action or pay such money, and any
expenses so incurred by Mortgagee and any money so paid by Mortgagee shall be a
demand obligation owing by Mortgagor to Mortgagee (which obligation Mortgagor
hereby promises to pay), shall be a part of the indebtedness secured hereby, and
Mortgagee, upon making such payment, shall be subrogated to all of the rights of
the person, entity or body politic receiving such payment. Mortgagee and its
designees shall have the right to enter upon the Property at any time and from
time to time for any such purposes. No such payment or performance by Mortgagee
shall waive or cure any default or waive any right, remedy or recourse of
Mortgagee. Any such payment may be made by Mortgagee in reliance on any
statement, invoice or claim without inquiry into the validity or accuracy
thereof. Each amount due and owing by Mortgagor to Mortgagee pursuant to this
Mortgage shall bear interest, from the date such amount becomes due until paid,
at the rate per annum provided in the Note for interest on past due principal
owed on the Note but never in excess of the maximum nonusurious amount permitted
by applicable law, which interest shall be payable to Mortgagee on demand; and
all such amounts, together with such interest
thereon, shall automatically and without notice be a part of the indebtedness
secured hereby. The amount and nature of any expense by Mortgagee hereunder and
the time when paid shall be fully established by the certificate of Mortgagee or
any of Mortgagee's officers or agents.
Section 2.3. Absence of Obligations of Mortgagee with Respect to
---------------------------------------------------
Property. Notwithstanding anything in this Mortgage to the contrary, including,
--------
without limitation, the definition of "Property" and/or the provisions of
Article 3 hereof, (i) to the extent permitted by applicable law, the Property is
composed of Mortgagor's rights, title and interests therein but not Mortgagor's
obligations, duties or liabilities pertaining thereto, (ii) Mortgagee neither
assumes nor shall have any obligations, duties or liabilities in connection with
any portion of the items described in the definition of "Property" herein,
either prior to or after obtaining title to such Property, whether by
foreclosure sale, the granting of a deed in lieu of foreclosure or otherwise,
and (iii) Mortgagee may, at any time prior to or after the acquisition of title
to any portion of the Property as above described, advise any party in writing
as to the extent of Mortgagee's interest therein and/or expressly disaffirm in
writing any rights, interests, obligations, duties and/or liabilities with
respect to such Property or matters related thereto. Without limiting the
generality of the foregoing, it is understood and agreed that Mortgagee shall
have no obligations, duties or liabilities prior to or after acquisition of
title to any portion of the Property, as lessee under any lease or purchaser or
seller under any contract or option unless Mortgagee elects otherwise by written
notification.
ARTICLE 3 - COLLATERAL ASSIGNMENT OF LEASES AND RENTS
-----------------------------------------
Section 3.1. Assignment. As additional security for the indebtedness
-----------
secured hereby, Mortgagor hereby assigns to Mortgagee all Rents (hereinafter
defined) and all of Mortgagor's rights in and under all Leases (hereinafter
defined). Upon the occurrence of a default hereunder, Mortgagee shall have the
right, power and privilege (but shall be under no duty) to demand possession of
the Rents, which demand shall to the fullest extent permitted by applicable law
be sufficient action by Mortgagee to entitle Mortgagee to immediate and direct
payment of the Rents (including delivery to Mortgagee of Rents collected for the
period in which the demand occurs and for any subsequent period), for
application as provided in Section 5.2 of this Mortgage, all without the
necessity of any further action by Mortgagee, including, without limitation, any
action to obtain possession of the Land, Improvements or any other portion of
the Property or any action for the appointment of a receiver. Mortgagor hereby
authorizes and directs the tenants under the Leases to pay Rents to Mortgagee
upon written demand by Mortgagee, without further consent of Mortgagor, without
any obligation to determine whether a default has in fact occurred and
regardless of whether Mortgagee has taken possession of any portion of the
Property, and the tenants may rely upon any written statement delivered by
Mortgagee to the tenants. Any such payment to Mortgagee shall constitute
payment to Mortgagor under the Leases, and Mortgagor hereby appoints Mortgagee
as Mortgagor's lawful attorney-in-fact for giving, and Mortgagee is hereby
empowered to give, acquittances to any tenants for such payments to Mortgagee
after a default. The assignment contained in this Section shall become null and
void upon the release of this Mortgage. As used herein: (i) "Lease" means each
-----
existing or future lease, sublease (to the extent of Mortgagor's rights
thereunder), usufruct or other agreement under the terms of which any person has
or acquires any right to occupy or use the Property, or any part thereof, or
interest therein, and each existing or future guaranty of payment or performance
thereunder, and all extensions, renewals, modifications
and replacements of each such lease, sublease, usufruct, agreement or guaranty;
and (ii) "Rents" means all of the rents, revenue, income, profits and proceeds
-----
derived and to be derived from the Property or arising from the use or enjoyment
of any portion thereof or from any Lease, including but not limited to
liquidated damages following default under any such Lease, all proceeds payable
under any policy of insurance covering loss of rents resulting from
untenantability caused by damage to any part of the Property, all of Mortgagor's
rights to recover monetary amounts from any tenant in bankruptcy including,
without limitation, rights of recovery for use and occupancy and damage claims
arising out of Lease defaults, including rejections, under any applicable Debtor
Relief Law (as hereinafter defined), together with any sums of money that may
now or at any time hereafter be or become due and payable to Mortgagor by virtue
of any and all royalties, overriding royalties, bonuses, delay rentals and any
other amount of any kind or character arising under any and all present and all
future oil, gas, mineral and mining leases covering the Property or any part
thereof, and all proceeds and other amounts paid or owing to Mortgagor under or
pursuant to any and all contracts and bonds relating to the construction or
renovation of the Property.
Section 3.2. Covenants, Representations and Warranties Concerning
----------------------------------------------------
Leases and Rents. Mortgagor covenants, represents and warrants that: (i)
----------------
Mortgagor has good title to, and is the owner of the entire landlord's interest
in, the Leases and Rents hereby assigned and authority to assign them; (ii) all
Leases are valid and enforceable, and in full force and effect, and are
unmodified except as stated therein; (iii) neither Mortgagor nor any tenant in
the Property is in default under its Lease (and no event has occurred which with
the passage of time or notice or both would result in a default under its Lease)
or is the subject of any bankruptcy, insolvency or similar proceeding; (iv)
unless otherwise stated in a Permitted Encumbrance, no Rents or Leases have been
or will be assigned, mortgaged, pledged or otherwise encumbered and no other
person has or will acquire any right, title or interest in such Rents or Leases;
(v) no Rents have been waived, released, discounted, set off or compromised;
(vi) except as stated in the Leases, Mortgagor has not received any funds or
deposits from any tenant for which credit has not already been made on account
of accrued Rents; (vii) Mortgagor shall perform all of its obligations under the
Leases and enforce the tenants' obligations under the Leases to the extent
enforcement is prudent under the circumstances; (viii) Mortgagor will not
without the prior written consent of Mortgagee (which consent shall not be
unreasonably withheld), enter into any Lease after the date hereof, or waive,
release, discount, set off, compromise, reduce or defer any Rent, receive or
collect Rents more than one (1) month in advance, grant any rent-free period to
any tenant, reduce any Lease term or waive, release or otherwise modify any
other material obligation under any Lease, renew or extend any Lease except in
accordance with a right of the tenant thereto in such Lease, approve or consent
to an assignment of a Lease or a subletting of any part of the premises covered
by a Lease, or settle or compromise any claim against a tenant under a Lease in
bankruptcy or otherwise; (ix) Mortgagor will not, except in good faith where the
tenant is in material default thereunder, terminate or consent to the
cancellation or surrender of any Lease having an unexpired term of one year or
more unless promptly after the cancellation or surrender a new Lease of such
premises is made with a new tenant, having a credit standing, in Mortgagee's
judgment, at least equivalent to that of the tenant whose Lease was cancelled,
on substantially the same terms as the terminated or cancelled Lease; (x)
Mortgagor will not execute any Lease except in accordance with the Loan
Documents and for actual occupancy by the tenant thereunder; (xi) Mortgagor
shall give prompt notice to Mortgagee, as soon as Mortgagor first obtains
notice, of any claim, or the commencement of any action, by any
tenant or subtenant under or with respect to a Lease regarding any claimed
damage, default, diminution of or offset against Rent, cancellation of the
Lease, or constructive eviction, and Mortgagor shall defend, at Mortgagor's
expense, any proceeding pertaining to any Lease, including, if Mortgagee so
requests, any such proceeding to which Mortgagee is a party; (xii) Mortgagor
shall as often as requested by Mortgagee, within ten (10) days of each request,
deliver to Mortgagee a complete rent roll of the property in such detail as
Mortgagee may require and financial statements of the tenants, subtenants and
guarantors under the Leases to the extent available to Mortgagor, and deliver to
such of the tenants and others obligated under the Leases specified by Mortgagee
written notice of the assignment in Section 3.1 hereof in form and content
satisfactory to Mortgagee; (xiii) promptly upon request by Mortgagee, Mortgagor
shall deliver to Mortgagee executed originals of all Leases and copies of all
records relating thereto; (xiv) there shall be no merger of the leasehold
estates, created by the Leases, with the fee estate of the Land without the
prior written consent of Mortgagee; and (xv) Mortgagee may at any time and from
time to time by specific written instrument intended for the purpose,
unilaterally subordinate the lien of this Mortgage to any Lease, without joinder
or consent of, or notice to, Mortgagor, any tenant or any other person, and
notice is hereby given to each tenant under a Lease of such right to
subordinate. No such subordination shall constitute a subordination to any lien
or other encumbrance, whenever arising, or improve the right of any junior
lienholder; and nothing herein shall be construed as subordinating this Mortgage
to any Lease.
Section 3.3. No Liability of Mortgagee. Mortgagee's acceptance of
-------------------------
this assignment shall not be deemed to constitute Mortgagee a "mortgagee in
possession," nor obligate Mortgagee to appear in or defend any proceeding
relating to any Lease or to the Property, or to take any action hereunder,
expend any money, incur any expenses, or perform any obligation or liability
under any Lease, or assume any obligation for any deposit delivered to Mortgagor
by any tenant and not as such delivered to and accepted by Mortgagee. Mortgagee
shall not be liable for any injury or damage to person or property in or about
the Property, or for Mortgagee's failure to collect or to exercise diligence in
collecting Rents, but shall be accountable only for Rents that it shall actually
receive. Neither the assignment of Leases and Rents nor enforcement of
Mortgagee's rights regarding Leases and Rents (including collection of Rents)
nor possession of the Property by Mortgagee nor Mortgagee's consent to or
approval of any Lease (nor all of the same), shall render Mortgagee liable on
any obligation under or with respect to any Lease or constitute affirmation of,
or any subordination to, any Lease, occupancy, use or option. If Mortgagee
seeks or obtains any judicial relief regarding Rents or Leases, the same shall
in no way prevent the concurrent or subsequent employment of any other
appropriate rights or remedies nor shall same constitute an election of judicial
relief for any foreclosure or any other purpose. Mortgagee neither has nor
assumes any obligations as lessor or landlord with respect to any Lease. The
rights of Mortgagee under this Article 3 shall be cumulative of all other rights
of Mortgagee under the Loan Documents or otherwise.
ARTICLE 4 - DEFAULT
-------
Section 4.1. Events of Default. The occurrence of any one of the
-----------------
following shall be a default under this Mortgage ("Default" or "default"):
------- -------
(a) Failure to Pay Indebtedness. Any of the secured indebtedness is
---------------------------
not paid when due, regardless of how such amount may have become due, and such
failure is not cured within the applicable grace or cure period provided for in
Section 4.2 of this Mortgage.
(b) Nonperformance of Covenants. Any covenant, agreement or condition
---------------------------
herein or in any other Loan Document (other than covenants otherwise addressed
in another paragraph of this Section, such as covenants to pay the secured
indebtedness) is not fully and timely performed, observed or kept, and such
failure is not cured within the applicable grace or cure period provided for in
Section 4.2 of this Mortgage.
(c) Representations. Any statement, representation or warranty in any
---------------
of the Loan Documents, or in any financial statement or any other writing
heretofore or hereafter delivered to Mortgagee in connection with the secured
indebtedness is false, misleading or erroneous in any material respect on the
date hereof or on the date as of which such statement, representation or
warranty is made.
(d) Bankruptcy or Insolvency. The owner of the Property or any person
------------------------
liable, directly or indirectly, for any of the secured indebtedness (or any
general partner or joint venturer of such owner or other person):
(1) (i) Executes an assignment for the benefit of creditors, or
takes any action in furtherance thereof; or (ii) admits in writing its
inability to pay, or fails to pay, its debts generally as they become
due; or (iii) as a debtor, files a petition, case, proceeding or other
action pursuant to, or voluntarily seeks the benefit or benefits of,
Title 11 of the United States Code as now or hereafter in effect or
any other law, domestic or foreign, as now or hereafter in effect
relating to bankruptcy, insolvency, liquidation, receivership,
reorganization, arrangement, composition, extension or adjustment of
debts, or similar laws affecting the rights of creditors (Title 11 of
the United States Code and such other laws being herein called "Debtor
------
Relief Laws"), or takes any action in furtherance thereof; or (iv)
-----------
seeks the appointment of a receiver, trustee, custodian or liquidator
of the Property or any part thereof or of any significant portion of
its other property; or
(2) Suffers the filing of a petition, case, proceeding or other
action against it as a debtor under any Debtor Relief Law or seeking
appointment of a receiver, trustee, custodian or liquidator of the
Property or any part thereof or of any significant portion of its
other property, and (i) admits, acquiesces in or fails to contest
diligently the material allegations thereof, or (ii) the petition,
case, proceeding or other action results in entry of any order for
relief or order granting relief sought against it, or (iii) in a
proceeding under the Federal Bankruptcy Code, the case is converted
from one chapter to another, or (iv) fails to have the petition, case,
proceeding or other action permanently dismissed or discharged on or
before the earlier of trial thereon or sixty (60) days next following
the date of its filing; or
(3) Conceals, removes, or permits to be concealed or removed,
any part of its property, with intent to hinder, delay or defraud its
creditors or any of them, or makes or suffers a transfer of any of its
property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or makes any transfer of its
property to or for the benefit of a creditor at a time when other
creditors similarly situated have not been paid; or suffers or
permits, while insolvent, any creditor to obtain a lien (other than as
described in subparagraph (4) below) upon any of its property through
legal proceedings which are not vacated and such lien discharged prior
to enforcement thereof and in any event within sixty (60) days from
the date thereof; or
(4) Fails to have discharged within a period of ten (10) days
any attachment, sequestration, or similar writ levied upon any of its
property; or
(5) Fails to pay immediately any final money judgment against
it.
(e) Transfer of the Property. There occurs any sale, lease,
------------------------
conveyance, assignment, pledge, encumbrance, or transfer of all or any part of
the Property or any interest therein, voluntarily or involuntarily, whether by
operation of law or otherwise, except: (i) sales or transfers of items of the
Accessories which have become obsolete or worn beyond practical use and which
have been replaced by adequate substitutes, owned by Mortgagor, having a value
equal to or greater than the replaced items when new; and (ii) the grant, in the
ordinary course of business, of a leasehold interest in a part of the
Improvements to a tenant for occupancy, not containing a right or option to
purchase and not in contravention of any provision of this Mortgage or of any
other Loan Document. Mortgagee may, in its sole discretion, waive a default
under this paragraph, but it shall have no obligation to do so, and any waiver
may be conditioned upon such one or more of the following (if any) which
Mortgagee may require: the proposed grantee's integrity, reputation, character,
creditworthiness and management ability being satisfactory to Mortgagee in its
sole judgment and such grantee's executing, prior to such sale or transfer, a
written assumption agreement containing such terms as Mortgagee may require, a
principal paydown on the Note, an increase in the rate of interest payable under
the Note, a transfer fee, a modification of the term of the Note, and any other
modification of the Loan Documents which Mortgagee may require.
(f) Transfer of Ownership of Mortgagor. There occurs any sale,
----------------------------------
pledge, encumbrance, assignment or transfer, voluntarily or involuntarily,
whether by operation of law or otherwise, of any interest in Mortgagor, without
the prior written consent of Mortgagee.
(g) Grant of Easement, Etc. Without the prior written consent of
-----------------------
Mortgagee, which will not be unreasonably withheld, Mortgagor grants any
easement or dedication, files any plat, condominium declaration, or restriction,
or otherwise encumbers the Property, or seeks or permits any zoning
reclassification or variance, unless such action is expressly permitted by the
Loan Documents or does not affect the Property.
(h) Abandonment. The owner of the Property abandons any of the
-----------
Property.
(i) Default Under Other Lien. A default or event of default occurs
------------------------
and is continuing under any lien, security interest or assignment covering the
Property or any part thereof (whether or not Mortgagee has consented, and
without hereby implying Mortgagee's consent, to any such lien, security interest
or assignment not created hereunder), or the holder of any such lien, security
interest or assignment declares a default or institutes foreclosure or other
proceedings for the enforcement of its remedies thereunder.
(j) Destruction. The Property is so demolished, destroyed or damaged
-----------
that, in the reasonable opinion of Mortgagee, it cannot be restored or rebuilt
with available funds to a profitable condition within a reasonable period of
time and in any event prior to the final maturity date of the Note.
(k) Condemnation. (i) Any governmental authority shall require, or
------------
commence any proceeding for, the demolition of any building or structure
comprising a part of the Premises, or (ii) there is commenced any proceeding to
condemn or otherwise take pursuant to the power of eminent domain, or a contract
for sale or a conveyance in lieu of such a taking is executed which provides for
the transfer of, a material portion of the Premises, including but not limited
to the taking (or transfer in lieu thereof) of any portion which would result in
the blockage or substantial impairment of access or utility service to the
Improvements or which would cause the Premises to fail to comply with any Legal
Requirement.
(l) Liquidation, Etc. There occurs a liquidation, termination,
-----------------
dissolution, merger, consolidation or failure to maintain good standing in the
Commonwealth of Pennsylvania or in the State of Delaware (or in the case of an
individual, the death or legal incapacity) of the owner of the Property or any
person obligated to pay any part of the secured indebtedness.
(m) Material, Adverse Change. In Mortgagee's reasonable opinion, the
------------------------
prospect of payment of all or any part of the secured indebtedness has been
impaired because of a material adverse change in the financial condition,
results of operations, business or properties of the owner of the Property or
any person liable, directly or indirectly, for any of the secured indebtedness.
(n) Enforceability; Priority. Any Loan Document shall for any reason
------------------------
without Mortgagee's specific written consent cease to be in full force and
effect, or shall be declared null and void or unenforceable in whole or in part,
or the validity or enforceability thereof, in whole or in part, shall be
challenged or denied by any party thereto other than Mortgagee; or the liens,
interests, mortgages or security interests of Mortgagee in any of the Property
become unenforceable in whole or in part, or cease to be of the priority herein
required; or the validity or enforceability thereof, in whole or in part, shall
be challenged or denied by Mortgagor or any person obligated to pay any part of
the secured indebtedness.
(o) Other Loan Documents; Pennsylvania Cellular Lease. A default or
-------------------------------------------------
event of default occurs under any Loan Document, other than this Mortgage, or a
default or event of default occurs under the Pennsylvania Cellular Lease, and
the same is not remedied within the applicable period of grace (if any) provided
in such Loan Document.
(p) Notice of Limitation of Indebtedness. Mortgagor shall at any time
------------------------------------
deliver or cause to be delivered to Mortgagee a notice pursuant to 42 PA. C.S.A.
(S) 8143 electing to limit the indebtedness secured hereby.
Section 4.2. Notice and Cure. Mortgagee agrees, by its acceptance of
---------------
this Mortgage, that notwithstanding anything to the contrary contained herein or
in any of the other Loan Documents, upon the occurrence of any default of the
type described in Subparagraphs (a) or (b) of Section 4.1 of this Mortgage,
Mortgagee will not accelerate the maturity of the Note or the secured
indebtedness and will not exercise any of its other rights and remedies
hereunder or under the other Loan Documents until and unless Mortgagee has first
given notice of such default to Mortgagor, in the manner prescribed in Section
6.13 of this Mortgage, and Mortgagor has failed to cure such default within the
following periods of time:
(a) If such default is a default of the type described in
Subparagraph (a) of Section 4.1 of this Mortgage, Mortgagor shall have a period
of ten (10) days from and after the effective date of such notice within which
to cure such default; or
(b) If such default is a default of the type described in
Subparagraph (b) of Section 4.1 of this Mortgage, Mortgagor shall have a period
of thirty (30) days from and after the effective date of such notice within
which to cure such default.
After the occurrence of three (3) such defaults, and the giving of
notice thereof by Mortgagee, Mortgagee shall not be obligated to give to
Mortgagor any further notice of default or opportunity to cure the same. The
agreements set forth in this Section 4.2 do not and shall not be deemed to
prevent or prohibit Mortgagee from withholding any advances of the secured
indebtedness, following the occurrence of a default, until and unless such
default shall have been cured.
If Mortgagee shall fail to give such notice and right to cure to
Mortgagor, as provided herein, the sole and exclusive remedy of Mortgagor for
such failure shall be to seek appropriate equitable relief to enforce the
agreement to give such notice and right to cure and to have any acceleration of
the maturity of the Note and the secured indebtedness postponed or revoked and
foreclosure or other proceedings in connection therewith delayed or terminated
pending or upon the curing of such default in the manner and during the period
of time permitted by such agreement, and Mortgagor shall have no right to
damages or any other type of relief not herein specifically set out against
Mortgagee, all of which damages or other relief are hereby waived by Mortgagor.
Nothing herein or in any of the other Loan Documents shall operate or be
construed to add on or make cumulative any cure or grace periods specified in
any of the Loan Documents.
ARTICLE 5 - REMEDIES
--------
Section 5.1. Certain Remedies. If a default shall occur, Mortgagee
----------------
may (but shall have no obligation to) exercise any one or more of the following
remedies, without additional notice (unless notice is required by applicable
statute):
(a) Acceleration. Mortgagee may at any time and from time to time
------------
declare any or all of the secured indebtedness immediately due and payable and
such secured indebtedness shall thereupon be immediately due and payable,
without presentment, demand, protest, notice of protest, notice of acceleration
or of intention to accelerate or any other notice or declaration of any kind,
all
of which are hereby expressly waived by Mortgagor. Without limitation of the
foregoing, upon the occurrence of a default described in clauses (i), (iii) or
(iv) of subparagraph (1) of paragraph (d) of Section 4.1, hereof, all of the
secured indebtedness shall thereupon be immediately due and payable, without
presentment, demand, protest, notice of protest, declaration or notice of
acceleration or intention to accelerate, or any other notice, declaration or act
of any kind, all of which are hereby expressly waived by Mortgagor.
(b) Enforcement of Assignment of Rents. Prior or subsequent to taking
----------------------------------
possession of any portion of the Property or taking any action with respect to
such possession, Mortgagee may: (1) collect and/or xxx for the Rents in
Mortgagee's own name, give receipts and releases therefor, and after deducting
all expenses of collection, including attorneys' fees and expenses, apply the
net proceeds thereof to the secured indebtedness in such manner and order as
Mortgagee may elect and/or to the operation and management of the Property,
including the payment of management, brokerage and attorney's fees and expenses;
and (2) require Mortgagor to transfer all security deposits and records thereof
to Mortgagee together with original counterparts of the Leases.
(c) Foreclosure. When the secured indebtedness or any part thereof
-----------
shall become due, whether by acceleration or otherwise, Mortgagee may (i)
institute and maintain an action of mortgage foreclosure against the Property
and the interests of Mortgagor therein, (ii) institute and maintain an action on
any instrument evidencing the secured indebtedness or any portion thereof, and
(iii) take such other action at law or in equity for the enforcement of any of
the Loan Documents as the law may allow, and in each such action Mortgagee shall
be entitled to all costs of suit and attorneys fees. In the case of any sale
under this Mortgage by virtue of the exercise of the powers herein granted, or
pursuant to any order in any judicial proceedings or otherwise, at the election
of Mortgagee, the Property or any part thereof may be sold in one parcel and as
an entirety, or in such parcels, manner or order as Mortgagee in its sole
discretion may elect, and one or more exercises of the powers herein granted
shall not extinguish or exhaust the power unless the entire Property is sold or
the secured indebtedness is paid in full.
(d) Uniform Commercial Code. Without limitation of Mortgagee's rights
-----------------------
of enforcement with respect to the Collateral or any part thereof in accordance
with the procedures for foreclosure of real estate, Mortgagee may exercise its
rights of enforcement with respect to the Collateral or any part thereof under
the Uniform Commercial Code of Pennsylvania (or under the Uniform Commercial
Code in force in any other state to the extent the same is applicable law) and
in conjunction with, in addition to or in substitution for those rights and
remedies: (1) Mortgagee may enter upon Mortgagor's premises to take possession
of, assemble and collect the Collateral or, to the extent and for those items of
the Collateral permitted under applicable law, to render it unusable; (2)
Mortgagee may require Mortgagor to assemble the Collateral and make it available
at a place Mortgagee designates which is mutually convenient to allow Mortgagee
to take possession or dispose of the Collateral; (3) written notice mailed to
Mortgagor as provided herein at least five (5) days prior to the date of public
sale of the Collateral or prior to the date after which private sale of the
Collateral will be made shall constitute reasonable notice; (4) any sale made
pursuant to the provisions of this paragraph shall be deemed to have been a
public sale conducted in a commercially reasonable manner if held
contemporaneously with and upon the same notice as required for the sale of the
Property under power of sale as provided in paragraph (c) above in this
Section 5.1; (5) in the event of a foreclosure sale, whether made by Mortgagee
under the terms hereof, or under judgment of a court, the Collateral and the
other Property may, at the option of Mortgagee, be sold as a whole; (6) it shall
not be necessary that Mortgagee take possession of the Collateral or any part
thereof prior to the time that any sale pursuant to the provisions of this
Section is conducted and it shall not be necessary that the Collateral or any
part thereof be present at the location of such sale; (7) with respect to
application of proceeds of disposition of the Collateral under Section 5.2
hereof, the costs and expenses incident to disposition shall include the
reasonable expenses of retaking, holding, preparing for sale or lease, selling,
leasing and the like and the reasonable attorneys' fees and legal expenses
incurred by Mortgagee; (8) any and all statements of fact or other recitals made
in any xxxx of sale or assignment or other instrument evidencing any foreclosure
sale hereunder as to nonpayment of the secured indebtedness or as to the
occurrence of any default, or as to Mortgagee's having declared all of such
indebtedness to be due and payable, or as to notice of time, place and terms of
sale and of the properties to be sold having been duly given, or as to any other
act or thing having been duly done by Mortgagee, shall be taken as prima facie
evidence of the truth of the facts so stated and recited; and (9) Mortgagee may
appoint or delegate any one or more persons as agent to perform any act or acts
necessary or incident to any sale held by Mortgagee, including the sending of
notices and the conduct of the sale, but in the name and on behalf of Mortgagee.
(e) Lawsuits. Mortgagee may proceed by a suit or suits in equity or
--------
at law, whether for collection of the indebtedness secured hereby, the specific
performance of any covenant or agreement herein contained or in aid of the
execution of any power herein granted, or for any foreclosure hereunder or for
the sale of the Property under the judgment or decree of any court or courts of
competent jurisdiction.
(f) Entry on Property. Mortgagee is authorized, prior or subsequent
-----------------
to the institution of any foreclosure proceedings, to the fullest extent
permitted by applicable law, to enter upon the Property, or any part thereof,
and to take possession of the Property and all books and records relating
thereto, and to exercise without interference from Mortgagor any and all rights
which Mortgagor has with respect to the management, possession, operation,
protection or preservation of the Property. Mortgagee shall not be deemed to
have taken possession of the Property or any part thereof except upon the
exercise of its right to do so, and then only to the extent evidenced by its
demand and overt act specifically for such purpose. All costs, expenses and
liabilities of every character incurred by Mortgagee in managing, operating,
maintaining, protecting or preserving the Property shall constitute a demand
obligation of Mortgagor (which obligation Mortgagor hereby promises to pay) to
Mortgagee pursuant to this Mortgage. If necessary to obtain the possession
provided for above, Mortgagee may invoke any and all legal remedies to
dispossess Mortgagor. In connection with any action taken by Mortgagee pursuant
to this Section, Mortgagee shall not be liable for any loss sustained by
Mortgagor resulting from any failure to let the Property or any part thereof, or
from any act or omission of Mortgagee in managing the Property, unless such loss
is caused by the willful misconduct and bad faith of Mortgagee, nor shall
Mortgagee be obligated to perform or discharge any obligation, duty or liability
of Mortgagor arising under any lease or other agreement relating to the Property
or arising under any Permitted Encumbrance or otherwise arising. Mortgagor
hereby assents to, ratifies and confirms any and all actions of Mortgagee with
respect to the Property taken under this Section.
(g) Receiver. Mortgagee shall as a matter of right be entitled to the
--------
appointment of a receiver or receivers for all or any part of the Property,
whether such receivership be incident to a proposed sale (or sales) of such
property or otherwise, and without regard to the value of the Property or the
solvency of any person or persons liable for the payment of the indebtedness
secured hereby, and Mortgagor does hereby irrevocably consent to the appointment
of such receiver or receivers, waives any and all defenses to such appointment,
agrees not to oppose any application therefor by Mortgagee, and agrees that such
appointment shall in no manner impair, prejudice or otherwise affect the rights
of Mortgagee to application of Rents as provided in this Mortgage. Nothing
herein is to be construed to deprive Mortgagee of any other right, remedy or
privilege it may have under the law to have a receiver appointed. Any money
advanced by Mortgagee in connection with any such receivership shall be a demand
obligation (which obligation Mortgagor hereby promises to pay) owing by
Mortgagor to Mortgagee pursuant to this Mortgage.
(h) Termination of Commitment to Lend. Mortgagee may terminate any
---------------------------------
commitment or obligation to lend or disburse funds under any Loan Document.
(i) Other Rights and Remedies. Mortgagee may exercise any and all
-------------------------
other rights and remedies which Mortgagee may have under the Loan Documents, or
at law or in equity or otherwise.
Section 5.2. Proceeds of Foreclosure. The proceeds of any sale held
-----------------------
by Mortgagee or any receiver of the liens and interests evidenced hereby shall
be applied: FIRST, to the payment of all necessary costs and expenses incident
-----
to such foreclosure sale, including but not limited to all reasonable attorneys'
fees and legal expenses, all court costs and charges of every character, and
publication fees and costs, and to the payment of the other secured
indebtedness, including specifically without limitation the principal, accrued
interest and attorneys' fees due and unpaid on the Note and the amounts due and
unpaid and owed to Mortgagee under this Mortgage, the order and manner of
application to the items in this clause FIRST to be in Mortgagee's sole
-----
discretion; and SECOND, the remainder, if any there shall be, shall be paid to
------
Mortgagor, or to Mortgagor's heirs, devisees, representatives, successors or
assigns, or such other persons (including the holder or beneficiary of any
inferior lien) as may be entitled thereto by law; provided, however, that if
Mortgagee is uncertain which person or persons are so entitled, Mortgagee may
interplead such remainder in any court of competent jurisdiction, and the amount
of any attorneys' fees, court costs and expenses incurred in such action shall
be a part of the secured indebtedness and shall be reimbursable (without
limitation) from such remainder.
Section 5.3. Mortgagee as Purchaser. Mortgagee shall have the right
----------------------
to become the purchaser at any sale held by Mortgagee or substitute or successor
or by any receiver or at any public sale, and Mortgagee shall have the right to
credit upon the amount of Mortgagee's successful bid, to the extent necessary to
satisfy such bid, all or any part of the secured indebtedness in such manner and
order as Mortgagee may elect.
Section 5.4. Remedies Cumulative. All rights and remedies provided
-------------------
for herein and in any other Loan Document are cumulative of each other and of
any and all other rights and remedies existing at law or in equity, and
Mortgagee shall, in addition to the rights and remedies provided herein or in
any other Loan Document, be entitled to avail itself of all such other rights
and remedies as may now or hereafter exist at law or in equity for the
collection of the secured indebtedness and the enforcement of the covenants
herein and the foreclosure of the liens and interests evidenced hereby, and the
resort to any right or remedy provided for hereunder or under any such other
Loan Document or provided for by law or in equity shall not prevent the
concurrent or subsequent employment of any other appropriate right or rights or
remedy or remedies.
Section 5.5. Mortgagee's Discretion as to Security. Mortgagee may
-------------------------------------
resort to any security given by this Mortgage or to any other security now
existing or hereafter given to secure the payment of the secured indebtedness,
in whole or in part, and in such portions and in such order as may seem best to
Mortgagee in its sole and uncontrolled discretion, and any such action shall not
in any way be considered as a waiver of any of the rights, benefits, liens or
interests evidenced by this Mortgage.
Section 5.6. Mortgagor's Waiver of Certain Rights. To the full
------------------------------------
extent 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 appraisement, valuation, stay, extension or
redemption, homestead, moratorium, reinstatement, marshalling or forbearance,
and Mortgagor, for Mortgagor, Mortgagor's successors and assigns, and for any
and all persons ever claiming any interest in the Property, to the extent
permitted by applicable law, hereby waives and releases all rights of
redemption, valuation, appraisement, stay of execution, reinstatement, notice of
intention to mature or declare due the whole of the secured indebtedness, notice
of election to mature or declare due the whole of the secured indebtedness and
all rights to a marshaling of assets of Mortgagor, including the Property, or to
a sale in inverse order of alienation in the event of foreclosure of the liens
and/or security interests hereby created. Mortgagor shall not have or assert
any right under any statute or rule of law pertaining to the marshaling of
assets, sale in inverse order of alienation, the exemption of homestead, the
administration of estates of decedents, or other matters whatever to defeat,
reduce or affect the right of Mortgagee under the terms of this Mortgage to a
sale of the Property for the collection of the secured indebtedness without any
prior or different resort for collection, or the right of Mortgagee under the
terms of this Mortgage to the payment of the secured indebtedness out of the
proceeds of sale of the Property in preference to every other claimant whatever.
Mortgagor waives any right or remedy which Mortgagor may have or be able to
assert, pursuant to any provision of applicable law, pertaining to the rights
and remedies of sureties. If any law referred to in this Section and now in
force, of which Mortgagor or Mortgagor's successors or assigns or any other
persons claiming any interest in the Property 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
acknowledges that all waivers of the aforesaid rights of Mortgagor have been
made knowingly, intentionally and willingly by Mortgagor as part of a bargained
for loan transaction and that this Mortgage is valid and enforceable by
Mortgagee against Mortgagor in accordance with all the terms and conditions
hereof.
Initialed by Mortgagor:
______
Section 5.7. Delivery of Possession After Foreclosure. In the event
----------------------------------------
there is a foreclosure sale hereunder and at the time of such sale, Mortgagor or
Mortgagor's successors or assigns are occupying or using the Property, or any
part thereof, each and all shall immediately become the tenant of the purchaser
at such sale, which tenancy shall be a tenancy from day to day, terminable at
the will of either landlord or tenant, at a reasonable rental per day based upon
the value of the property occupied, such rental to be due daily to the
purchaser; and to the extent permitted by applicable law, the purchaser at such
sale shall, notwithstanding any language herein apparently to the contrary, have
the sole option to demand immediate possession following the sale or to permit
the occupants to remain as tenants at will. In the event the tenant fails to
surrender possession of said property upon demand, the purchaser shall be
entitled to institute and maintain a summary action for possession of the
property (such as an action for forcible detainer) in any court having
jurisdiction.
Section 5.8. Withdrawal, Discontinuance or Abandonment of
--------------------------------------------
Proceedings. In the case Mortgagee shall have proceeded to enforce any right,
power or remedy under this Mortgage by foreclosure, entry or otherwise or in the
event that Mortgagee shall have commenced advertising the intended exercise of
the right of foreclosure provided hereunder, and such proceeding or
advertisement shall be withdrawn, discontinued or abandoned for any reason, or
shall be determined adversely to Mortgagee, then, in every such case (i)
Mortgagor and Mortgagee shall be restored to their former positions and rights,
(ii) all rights, powers and remedies of Mortgagee shall continue as if no such
proceeding had been taken, (iii) each and every default declared and remaining
uncured prior to such withdrawal, discontinuance or abandonment shall and shall
be deemed to be a continuing default, and (iv) neither this Mortgage, the Note,
the secured indebtedness nor any other instrument concerned therewith shall be
or shall be deemed to have been reinstated or otherwise affected by such
withdrawal, discontinuance or abandonment, and Mortgagor hereby expressly waives
the benefit of any statute or rule of law which would produce a result contrary
to or in conflict with the foregoing.
ARTICLE 6 - MISCELLANEOUS
-------------
Section 6.1. Scope of Mortgage. This Mortgage is a mortgage,
-----------------
collateral assignment, security agreement and financing statement and also
covers proceeds and fixtures.
Section 6.2. Effective as a Financing Statement. This Mortgage shall
----------------------------------
be effective as a financing statement filed as a fixture filing with respect to
all fixtures included within the Property and is to be filed for record in the
real estate records of each county where any part of the Property (including
said fixtures) is situated. This Mortgage shall also be effective as a
financing statement covering minerals or the like (including oil and gas) and
accounts and is to be filed for record in the
real estate records of each county where any part of the Property is situated.
This Mortgage shall also be effective as a financing statement covering any
other Property and may be filed in any other appropriate filing or recording
office. The mailing address of Mortgagor is the address of Mortgagor set forth
at the end of this Mortgage and the address of Mortgagee from which information
concerning the security interests hereunder may be obtained is the address of
Mortgagee set forth at the end of this Mortgage. A carbon, photographic or other
reproduction of this Mortgage or of any financing statement relating to this
Mortgage shall be sufficient as a financing statement for any of the purposes
referred to in this Section.
Section 6.3. Notice to Account Debtors. In addition to the rights
-------------------------
granted elsewhere in this Mortgage, Mortgagee may at any time notify the account
debtors or obligors of any accounts, chattel paper, negotiable instruments or
other evidences of indebtedness included in the Collateral to pay Mortgagee
directly.
Section 6.4. Waiver by Mortgagee. Mortgagee may at any time and from
-------------------
time to time by a specific writing intended for the purpose: (a) waive
compliance by Mortgagor with any covenant herein made by Mortgagor to the extent
and in the manner specified in such writing; (b) consent to Mortgagor's doing
any act which hereunder Mortgagor is prohibited from doing, or to Mortgagor's
failing to do any act which hereunder Mortgagor is required to do, to the extent
and in the manner specified in such writing; (c) release any part of the
Property or any interest therein from the lien and security interest of this
Mortgage; or (d) release any party liable, either directly or indirectly, for
the secured indebtedness or for any covenant herein or in any other Loan
Document, without impairing or releasing the liability of any other party. No
such act shall in any way affect the rights or powers of Mortgagee hereunder
except to the extent specifically agreed to by Mortgagee in such writing.
Section 6.5. No Impairment of Security. The lien, interest and other
-------------------------
security rights of Mortgagee hereunder or under any other Loan Document shall
not be impaired by any indulgence, moratorium or release granted by Mortgagee
including, but not limited to, any renewal, extension or modification which
Mortgagee may grant with respect to any secured indebtedness, or any surrender,
compromise, release, renewal, extension, exchange or substitution which
Mortgagee may grant in respect of the Property, or any part thereof or any
interest therein, or any release or indulgence granted to any endorser,
guarantor or surety of any secured indebtedness. The taking of additional
security by Mortgagee shall not release or impair the lien, interest or other
security rights of Mortgagee hereunder or affect the liability of Mortgagor or
of any endorser, guarantor or surety, or improve the right of any junior
lienholder in the Property (without implying hereby Mortgagee's consent to any
junior lien).
Section 6.6. Acts Not Constituting Waiver by Mortgagee. Mortgagee
-----------------------------------------
may waive any default without waiving any other prior or subsequent default.
Mortgagee may remedy any default without waiving the default remedied. Neither
failure by Mortgagee to exercise, nor delay by Mortgagee in exercising, nor
discontinuance of the exercise of any right, power or remedy (including but not
limited to the right to accelerate the maturity of the secured indebtedness or
any part thereof) upon or after any default shall be construed as a waiver of
such default or as a waiver of the right to exercise any such right, power or
remedy at a later date. No single or partial exercise
by Mortgagee of any right, power or remedy hereunder shall exhaust the same or
shall preclude any other or further exercise thereof, and every such right,
power or remedy hereunder may be exercised at any time and from time to time. No
modification or waiver of any provision hereof nor consent to any departure by
Mortgagor therefrom shall in any event be effective unless the same shall be in
writing and signed by Mortgagee and then such waiver or consent shall be
effective only in the specific instance, for the purpose for which given and to
the extent therein specified. No notice to nor demand on Mortgagor in any case
shall of itself entitle Mortgagor to any other or further notice or demand in
similar or other circumstances. Remittances in payment of any part of the
secured indebtedness other than in the required amount in immediately available
U.S. funds shall not, regardless of any receipt or credit issued therefor,
constitute payment until the required amount is actually received by Mortgagee
in immediately available U.S. funds and shall be made and accepted subject to
the condition that any check or draft may be handled for collection in
accordance with the practice of the collecting bank or banks. Acceptance by
Mortgagee of any payment in an amount less than the amount then due on any
secured indebtedness shall be deemed an acceptance on account only and shall not
in any way excuse the existence of a default hereunder.
Section 6.7. Mortgagor's Successors. If the ownership of the
----------------------
Property or any part thereof becomes vested in a person other than Mortgagor,
Mortgagee may, without notice to Mortgagor, deal with such successor or
successors in interest with reference to this Mortgage and to the indebtedness
secured hereby in the same manner as with Mortgagor, without in any way
vitiating or discharging Mortgagor's liability hereunder or for the payment of
the indebtedness or performance of the obligations secured hereby. No transfer
of the Property, no forbearance on the part of Mortgagee, and no extension of
the time for the payment of the indebtedness secured hereby given by Mortgagee
shall operate to release, discharge, modify, change or affect, in whole or in
part, the liability of Mortgagor hereunder for the payment of the indebtedness
or performance of the obligations secured hereby or the liability of any other
person hereunder for the payment of the indebtedness secured hereby. Mortgagor
agrees that it shall be bound by any modification of this Mortgage or any of the
other Loan Documents made by Mortgagee and any subsequent owner of the Property,
with or without notice to such Mortgagor, and no such modifications shall impair
the obligations of such Mortgagor under this Mortgage or any other Loan
Document. Nothing in this Section or elsewhere in this Mortgage shall be
construed to imply Mortgagee's consent to any transfer of the Property.
Section 6.8. Place of Payment; Forum. All secured indebtedness which
-----------------------
may be owing hereunder at any time by Mortgagor shall be payable at the place
designated in the Note or if no such designation is made, at the address of
Mortgagee indicated at the end of this Mortgage. Mortgagor hereby irrevocably
submits generally and unconditionally for itself and in respect of its property
to the non-exclusive jurisdiction of any state or United States federal court
sitting in the county in which the secured indebtedness is payable, and to the
non-exclusive jurisdiction of any state or United States federal court sitting
in the state in which any of the Property is located, over any suit, action or
proceeding arising out of or relating to this Mortgage or the secured
indebtedness. Mortgagor hereby agrees and consents that, in addition to any
methods of service of process provided for under applicable law, all service of
process in any such suit, action or proceeding in any state or United States
federal court sitting in the county in which the secured indebtedness is payable
may be made by certified or registered mail, return receipt requested,
directed to Mortgagor at its address stated in this Mortgage, or at a subsequent
address of Mortgagor of which Mortgagee received actual notice from Mortgagor in
accordance with this Mortgage, and service so made shall be complete five (5)
days after the same shall have been so mailed.
Section 6.9. Subrogation to Existing Liens; Vendor's Lien. To the
--------------------------------------------
extent that proceeds of the Note are used to pay indebtedness secured by any
outstanding lien, interest, charge or prior encumbrance against the Property,
such proceeds have been advanced by Mortgagee at Mortgagor's request, and
Mortgagee shall be subrogated to any and all rights, interests and liens owned
by any owner or holder of such outstanding liens, security interests, charges or
encumbrances, however remote, irrespective of whether said liens, interests,
charges or encumbrances are released, and all of the same are recognized as
valid and subsisting and are renewed and continued and merged herein to secure
the secured indebtedness, but the terms and provisions of this Mortgage shall
govern and control the manner and terms of enforcement of the liens, security
interests, charges and encumbrances to which Mortgagee is subrogated hereunder.
It is expressly understood that, in consideration of the payment of such
indebtedness by Mortgagee, Mortgagor hereby waives and releases all demands and
causes of action for offsets and payments in connection with the said
indebtedness. If all or any portion of the proceeds of the loan evidenced by
the Note or of any other secured indebtedness has been advanced for the purpose
of paying the purchase price for all or a part of the Property, no vendor's lien
is waived; and Mortgagee shall have, and is hereby granted, a vendor's lien on
the Property as cumulative additional security for the secured indebtedness.
Mortgagee may foreclose under this Mortgage or under the vendor's lien without
waiving the other or may foreclose under both.
Section 6.10. Application of Payments to Certain Indebtedness. If
-----------------------------------------------
any part of the secured indebtedness cannot be lawfully secured by this Mortgage
or if any part of the Property cannot be lawfully subject to the lien and
interest hereof to the full extent of such indebtedness, then all payments made
shall be applied on said indebtedness first in discharge of that portion thereof
which is not secured by this Mortgage.
Section 6.11. Compliance with Usury Laws. It is the intent of
--------------------------
Mortgagor and Mortgagee and all other parties to the Loan Documents to conform
to and contract in strict compliance with applicable usury law from time to time
in effect. All agreements between Mortgagee and Mortgagor (or any other party
liable with respect to any indebtedness under the Loan Documents) are hereby
limited by the provisions of this Section which shall override and control all
such agreements, whether now existing or hereafter arising. In no way, nor in
any event or contingency (including but not limited to prepayment, default,
demand for payment, or acceleration of the maturity of any obligation), shall
the interest taken, reserved, contracted for, charged, chargeable, or received
under this Mortgage, the Note or any other Loan Document or otherwise, exceed
the maximum nonusurious amount permitted by applicable law (the "Maximum
-------
Amount"). If, from any possible construction of any document, interest would
------
otherwise be payable in excess of the Maximum Amount, any such construction
shall be subject to the provisions of this Section and such document shall ipso
----
facto be automatically reformed and the interest payable shall be automatically
-----
reduced to the Maximum Amount, without the necessity of execution of any
amendment or new document. If Mortgagee shall ever receive anything of value
which is
characterized as interest under applicable law and which would apart
from this provision be in excess of the Maximum Amount, an amount equal to the
amount which would have been excessive interest shall, without penalty, be
applied to the reduction of the principal amount owing on the secured
indebtedness in the inverse order of its maturity and not to the payment of
interest, or refunded to Mortgagor or the other payor thereof if and to the
extent such amount which would have been excessive exceeds such unpaid
principal. The right to accelerate maturity of the Note or any other secured
indebtedness does not include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and Mortgagee does not
intend to charge or receive any unearned interest in the event of acceleration.
All interest paid or agreed to be paid to Mortgagee shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full stated term (including any renewal or extension) of such
indebtedness so that the amount of interest on account of such indebtedness does
not exceed the Maximum Amount. As used in this Section, the term "applicable
law" shall mean applicable laws of the State of Georgia or the federal laws of
the United States applicable to this transaction, whichever laws allow the
greater interest, as such laws now exist or may be changed or amended or come
into effect in the future.
Section 6.12. Cancellation of Mortgage. If all of the secured
------------------------
indebtedness be paid as the same becomes due and payable and all of the
covenants, warranties, undertakings and agreements made in this Mortgage are
kept and performed, and all obligations, if any, of Mortgagee for further
advances have been terminated, then, and in that event only, this Mortgage shall
be cancelled by Mortgagee in due form at Mortgagor's cost. Without limitation,
all provisions herein for indemnity of Mortgagee shall survive discharge of the
secured indebtedness and any foreclosure, release or termination of this
Mortgage.
Section 6.13. Notices. All notices, requests, consents, demands and
-------
other communications required or which any party desires to give hereunder or
under any other Loan Document shall be in writing and, unless otherwise
specifically provided in such other Loan Document, shall be deemed sufficiently
given or furnished if delivered by personal delivery, by courier, or by
registered or certified United States mail, postage prepaid, addressed to the
party to whom directed at the addresses specified at the end of this Mortgage
(unless changed by similar notice in writing given by the particular party whose
address is to be changed) or by telex, or facsimile. Any such notice or
communication shall be deemed to have been given and to be effective either at
the time of personal delivery or, in the case of courier or mail, as of the date
of first attempted delivery at the address and in the manner provided herein,
or, in the case of telex, when transmitted (answerback confirmed), or, in the
case of facsimile, upon receipt. Notwithstanding the foregoing, no notice of
change of address shall be effective except upon receipt. This Section shall
not be construed in any way to affect or impair any waiver of notice or demand
provided in any Loan Document or to require giving of notice or demand to or
upon any person in any situation or for any reason. All notices given to
Mortgagee by any person or entity (other than Mortgagor) pursuant to 42 PA.
C.S.A. (S) 8143(c) or (d) shall be in writing and shall be sent exclusively by
registered or certified mail, return receipt requested, to Mortgagee at the
address set forth at the end of this Mortgage.
Section 6.14. Invalidity of Certain Provisions. A determination that
--------------------------------
any provision of this Mortgage is unenforceable or invalid shall not affect the
enforceability or validity of any other provision and the determination that the
application of any provision of this Mortgage to any person or circumstance is
illegal or unenforceable shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
Section 6.15. Gender; Titles; Construction. Within this Mortgage,
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words of any gender shall be held and construed to include any other gender, and
words in the singular number shall be held and construed to include the plural,
unless the context otherwise requires. Titles appearing at the beginning of any
subdivisions hereof are for convenience only, do not constitute any part of such
subdivisions, and shall be disregarded in construing the language contained in
such subdivisions. The use of the words "herein," "hereof," "hereunder" and
other similar compounds of the word "here" shall refer to this entire Mortgage
and not to any particular Article, Section, paragraph or provision. The term
"person" and words importing persons as used in this Mortgage shall include
firms, associations, partnerships (including limited partnerships), joint
ventures, trusts, corporations and other legal entities, including public or
governmental bodies, agencies or instrumentalities, as well as natural persons.
Section 6.16. Reporting Compliance. Mortgagor agrees to comply with
--------------------
any and all reporting requirements applicable to the transaction evidenced by
the Note and secured by this Mortgage which are set forth in any law, statute,
ordinance, rule, regulation, order or determination of any governmental
authority, including but not limited to The International Investment Survey Act
of 1976, The Agricultural Foreign Investment Disclosure Act of 1978, The Foreign
Investment in Real Property Tax Act of 1980 and the Tax Reform Act of 1984 and
further agrees upon request of Mortgagee to furnish Mortgagee with evidence of
such compliance.
Section 6.17. Mortgagee's Consent. Except where otherwise expressly
-------------------
provided herein, in any instance hereunder where the approval, consent or the
exercise of judgment of Mortgagee is required or requested, (i) the granting or
denial of such approval or consent and the exercise of such judgment shall be
within the sole discretion of Mortgagee, and Mortgagee shall not, for any reason
or to any extent, be required to grant such approval or consent or exercise such
judgment in any particular manner, regardless of the reasonableness of either
the request or Mortgagee's judgment, and (ii) no approval or consent of
Mortgagee shall be deemed to have been given except by a specific writing
intended for the purpose and executed by an authorized representative of
Mortgagee.
Section 6.18. Mortgagor. Unless the context clearly indicates
---------
otherwise, as used in this Mortgage, "Mortgagor" means the mortgagor named in
the first paragraph of this Mortgage. Each signatory who signs on behalf of
Mortgagor and the general partner of Mortgagor represents and warrants to
Mortgagee that this instrument is executed, acknowledged and delivered by
Mortgagor's duly authorized representatives.
Section 6.19. Execution; Recording. This Mortgage has been executed
--------------------
in several counterparts, all of which are identical, and all of which
counterparts together shall constitute one and the same instrument. The date or
dates reflected in the acknowledgments hereto indicate the
date or dates of actual execution of this Mortgage, but such execution is as of
the date shown on the first page hereof, and for purposes of identification and
reference the date of this Mortgage shall be deemed to be the date reflected on
the first page hereof. Mortgagor will cause this Mortgage and all amendments and
supplements thereto and substitutions therefor and all financing statements and
continuation statements relating thereto to be recorded, filed, re-recorded and
refiled in such manner and in such places as Mortgagee shall reasonably request
and will pay all such recording, filing, re-recording and refiling taxes, fees
and other charges.
Section 6.20. Successors and Assigns. The terms, provisions,
----------------------
covenants and conditions hereof shall be binding upon Mortgagor, and the
successors and assigns of Mortgagor, and shall inure to the benefit of Mortgagee
and the successors and assigns of Mortgagee and shall constitute covenants
running with the Land. All references in this Mortgage to Mortgagor shall be
deemed to include all such successors and assigns of Mortgagor, and all
references in this Mortgage to Mortgagee shall be deemed to include all such
successors and assigns of Mortgagee.
Section 6.21. Modification or Termination. The Loan Documents may
---------------------------
only be modified or terminated by a written instrument or instruments intended
for that purpose and executed by the party against which enforcement of the
modification or termination is asserted. Any alleged modification or
termination which is not so documented shall not be effective as to any party.
Section 6.22. No Partnership, Etc.. The relationship between
--------------------
Mortgagee and Mortgagor is solely that of lender and borrower. Mortgagee has no
fiduciary or other special relationship with Mortgagor. Nothing contained in
the Loan Documents is intended to create any partnership, joint venture,
association or special relationship between Mortgagor and Mortgagee or in any
way make Mortgagee a co-principal with Mortgagor with reference to the Property.
All agreed contractual duties between Mortgagor and Mortgagee are set forth
herein and in the other Loan Documents and any additional implied covenants or
duties are hereby disclaimed. Any inferences to the contrary of any of the
foregoing are hereby expressly negated.
Section 6.23 Disclosure of Information. Mortgagee may, from time to
-------------------------
time, sell or offer to sell the Loan, or interests therein, to one or more
assignees or participants and is hereby authorized to disseminate any
information it now has or hereafter obtains pertaining to the Loan, including,
without limitation, any security for the Loan and credit or other information on
the Project, Mortgagor, any of its principals and any guarantor, to any assignee
or participant or prospective assignee or prospective participant, to
Mortgagee's affiliates, including without limitation NationsBanc Capital
Markets, Inc., to any regulatory body having jurisdiction over Mortgagee and to
any other parties as necessary or appropriate in Mortgagee's reasonable
judgment. Mortgagor shall execute, acknowledge and deliver any and all
instruments reasonably requested by Mortgagee in connection therewith and to the
extent, if any, specified in any such assignment or participation, such
companies, assignees or participants shall have the rights and benefits with
respect to the Loan Documents as such persons would have if such persons were
Mortgagee hereunder.
Section 6.24. Applicable Law. The enforceability of this Mortgage
--------------
shall be governed by Pennsylvania law only for purposes of determining the
following: (i) the applicable conflict of law rules in this Mortgage and the
other Loan Documents, (ii) whether this Mortgage transfers or creates an
interest in real property for security purposes or otherwise, (iii) the nature
of an interest in real property that is transferred or created by this Mortgage,
(iv) the method for foreclosure of a lien on real property and the exercise of
any other remedy with respect to the real property or the Rents or profits
therefrom, (v) the nature of an interest in real property that results from
foreclosure, and (vi) the manner and effect of recording or failing to record
evidence of a transaction that transfers or creates an interest in real
property. Except as expressly set out above, the enforceability of this
Mortgage and the other Loan Documents shall be governed by Georgia law.
Section 6.25. Effective as a Financing Statement. This Mortgage
----------------------------------
shall be effective as a financing statement filed as a fixture filing with
respect to all fixtures included within the Property and is to be filed for
record in the real estate records of each county where any part of the Property
(including said fixtures) is situated. This Mortgage shall also be effective as
a financing statement covering minerals or the like (including oil and gas) and
accounts and is to be filed for record in the real estate records of each county
where any part of the Property is situated. This Mortgage shall also be
effective as a financing statement covering any other Property and may be filed
in any other appropriate filing or recording office. The mailing address of
Mortgagor is the address of Mortgagor set forth at the end of this Mortgage and
the address of Mortgagee from which information concerning the Mortgage and
security interests hereunder may be obtained is the address of Mortgagee set
forth at the end of this Mortgage. A carbon, photographic or other reproduction
of this Mortgage or of any financing statement relating to this Mortgage shall
be sufficient as a financing statement for any of the purposes referred to in
this Section.
Section 6.26. Entire Agreement. The Loan Documents constitute the
----------------
entire understanding and agreement between Mortgagor and Mortgagee with respect
to the transactions arising in connection with the indebtedness secured hereby
and supersede all prior written or oral understandings and agreements between
Mortgagor and Mortgagee with respect to the matters addressed in the Loan
Documents. Mortgagor hereby acknowledges that, except as incorporated in
writing in the Loan Documents, there are not, and were not, and no persons are
or were authorized by Mortgagee to make, any representations, understandings,
stipulations, agreements or promises, oral or written, with respect to the
matters addressed in the Loan Documents.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
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PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
----------------------------------------------------------------------------
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
------------------------------------------
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
-----------------------------------------------------------
IN WITNESS WHEREOF, this Mortgage has been executed and sealed by Mortgagor
as of the date first written on page 1 hereof.
Mortgagor:
Xxxxx Operating Partnership, L.P.,
a Delaware limited partnership
By: Xxxxx Real Estate Investment
Trust, Inc., a Maryland corporation,
General Partner
By: /s/ Xxx X Xxxxx
-------------------------------
Name: XXX X XXXXX
-----------------------------
Title: PRESIDENT
----------------------------
Attest: Xxxxx X Xxxxxx
---------------------------
Name: XXXXX X XXXXXX
---------------------------
Title: EXECUTIVE VICE PRESIDENT
----------------------------
[CORPORATE SEAL]
The address and federal tax
identification number of Mortgagor
are:
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Federal Tax I.D. No.00-0000000
The address of Mortgagee is
(including county):
NationsBank, N.A.
NationsBank Plaza - 6th Floor
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx
00000
CERTIFICATE OF RESIDENCE
------------------------
The Undersigned certifies that the address of Mortgagee is XxxxxxxXxxx
Xxxxx, 0xx Xxxxx, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000.
NationsBank, N.A.
By: [ILLEGIBLE]
-----------------------
Name: [ILLEGIBLE]
----------------------
Title: [ILLEGIBLE]
---------------------
ACKNOWLEDGEMENT OF MORTGAGOR
----------------------------
State of GEORGIA
County of GWINNELT
On this 2nd day of February, 1999, before me, a notary public, personally
appeared XXX X XXXXX who acknowledged himself to be the PRESIDENT of XXXXX REAL
ESTATE INVESTMENT TRUST, INC., a Maryland corporation, which is the General
Partner of Xxxxx Operating Partnership, L.P., a Delaware limited partnership,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation in its capacity as
General Partner of such limited partnership by himself as such officer.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ [SIGNATURE ILLEGIBLE]
---------------------------
Notary Public
My Commission expires:
Notary Public, Gwinnelt County, Georgia
My Commission expires June 24, 2000
_______________________________________
