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EXHIBIT 10(y)
$19.0 MILLION PROMISSORY NOTE
AND MORTGAGE, ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT, EACH DATED JULY 28, 1999,
BETWEEN META HOLDINGS, LLC AND HUNTINGTON CAPITAL CORP.
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(Defeasance)
PROMISSORY NOTE
US$19,000,000.00 Columbus, Ohio
July 28, 1999
FOR VALUE RECEIVED, the undersigned promise to pay HUNTINGTON CAPITAL
CORP., an Ohio corporation, or order, the principal sum of Nineteen Million
Dollars, with interest on the unpaid principal balance from the date of this
Note, until paid, at the rate of eight and one-fifth (8.20%) percent per annum.
The principal and interest shall be payable at 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxx 00000, or such other place as the holder hereof may designate in writing,
in consecutive monthly installments of One Hundred Forty-Two Thousand
Seventy-Three and 35/100 Dollars (US$142,073.35) on the 1st day of each month
beginning September 1, 1999, (herein "amortization commencement date"), until
the entire indebtedness evidenced hereby is fully paid, except that any
remaining indebtedness, if not sooner paid, shall be due and payable on August
1, 2009 (the "Maturity Date").
If any installment under this Note is not paid when due, the entire
principal amount outstanding hereunder and accrued interest thereon shall at
once become due and payable, at the option of the holder hereof. The holder
hereof may exercise this option to accelerate during any default by the
undersigned regardless of any prior forbearance. In the event of any default in
the payment of this Note or any other payment due under the Instrument or any
other Loan Document (as such terms are hereinafter defined) and if the same is
referred to an attorney at law for collection or any action at law or in equity
is brought with respect hereto, the undersigned shall pay the holder hereof all
expenses and costs, including, but not limited to, attorneys' fees.
If any installment under this Note is not received by the holder hereof
within ten (10) calendar days after the installment is due, the undersigned
shall pay to the holder hereof a late charge of the greater of (a) US$250.00 or
(b) five percent (5%) of such installment, such late charge to be immediately
due and payable without demand by the holder hereof. If any installment under
this Note or any other monetary payment due under this Note, the Instrument or
any other Loan Document remains past due for ten (10) calendar days or more, the
outstanding principal balance of this Note shall bear interest during the period
in which the undersigned is in default at a rate of thirteen and one-fifth
(13.20%) percent per annum, or if there shall exist any non-monetary default
under this Note, the Instrument or any other Loan Document which remains uncured
for the later of (i) ten (10) calendar days or (ii) the expiration of any
applicable grace or cure period specifically provided in the Instrument, the
outstanding principal balance of this Note shall bear interest during the period
the undersigned is in default at the rate of ten and one-fifth (10.20%) percent
per annum, or, if such increased rate of interest may not be collected from the
undersigned under applicable law, then at the maximum increased rate of
interest, if any, which may be collected from the undersigned under applicable
law.
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From time to time, without affecting the obligation of the undersigned
or the successors or assigns of the undersigned to pay the outstanding principal
balance of this Note and observe the covenants of the undersigned contained
herein, in the Instrument or in any other Loan Document without affecting the
guaranty of any person, corporation, partnership or other entity for payment of
the outstanding principal balance of this Note, without giving notice to or
obtaining the consent of the undersigned, the successors or assigns of the
undersigned or guarantors, and without liability on the part of the holder
hereof, the holder hereof may, at the option of the holder hereof, extend the
time for payment of said outstanding principal balance or any part thereof,
reduce the payments thereon, release anyone liable on any of said outstanding
principal balance, accept a renewal of this Note, modify the terms and time of
payment of said outstanding principal balance, join in any extension or
subordination agreement, release any security given herefor, take or release
other or additional security, and agree in writing with the undersigned to
modify the rate of interest or period of amortization of this Note or change the
amount of the monthly installments payable hereunder.
Presentment, notice of dishonor, and protest are hereby waived by all
makers, sureties, guarantors and endorsers hereof. This Note shall be the joint
and several obligation of all makers, sureties, guarantors, and endorsers, and
shall be binding upon them and their successors and assigns.
The indebtedness evidenced by this Note is secured by, among other
things, that certain Mortgage, Assignment of Rents and Security Agreement (the
"Instrument"), executed by the undersigned, encumbering real property more
particularly described therein (the "Property"), dated of even date herewith,
and reference is made thereto for rights as to acceleration of the indebtedness
evidenced by this Note.
The indebtedness evidenced by this Note may not be prepaid in full or
in part; provided that the undersigned may prepay the indebtedness in full
without premium during the period commencing two (2) months prior to the
Maturity Date. At any time during the Defeasance Period (as defined below),
however, the undersigned may obtain a release of the Property from the lien of
the Instrument upon satisfaction of the following conditions:
(1) not less than thirty (30) days' prior written notice shall be
given to the holder hereof specifying a date (the "Defeasance
Date") on which the Defeasance Deposit (as defined below) is
to be delivered, such date being a principal and interest
installment payment date;
(2) all accrued and unpaid interest and all other sums due under
this Note and under the other Loan Documents up to the
Defeasance Date, including, without limitation, all reasonable
costs and expenses incurred by the holder hereof or its agents
in connection with such defeasance, including, without
limitation, any legal fees and expenses incurred in connection
with obtaining and reviewing the Defeasance Collateral (as
defined below) and the preparation of the Defeasance Security
Agreement (as defined below) and related documentation, shall
be paid in full on or prior to the Defeasance Date;
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(3) no default or event of default, and no event or condition
that, with the giving of notice or passage of time or both,
would constitute a default or an event of default, shall exist
hereunder or under any of the other Loan Documents either at
the time the undersigned gives notice of the Defeasance Date
to the holder hereof or on the Defeasance Date;
(4) at least ten (10) days prior to the Defeasance Date, the
undersigned shall pay to the holder hereof the principal
amount of the loan evidenced by this Note (the "Loan") to be
defeased together with an additional amount (the "Yield
Maintenance Charge") such that the aggregate amount (the
"Defeasance Deposit") is sufficient to purchase direct,
non-callable obligations of the United States of America (the
"Defeasance Collateral") that provide for payments prior, but
as close as possible, to all successive principal and interest
installment payment dates occurring after the Defeasance Date
through and including the Maturity Date, with each such
payment being equal to or greater than (1) the monthly
installment and (2) with respect to the payment due on the
Maturity Date, the entire outstanding principal balance of
this Note together with any interest accrued as of such date
and all other amounts payable pursuant to the Loan Documents;
(5) the Defeasance Collateral shall be duly endorsed by the holder
thereof as directed by the holder hereof or accompanied by a
written instrument of transfer in form and substance wholly
satisfactory to the holder hereof (including, without
limitation, such instruments as may be required by the
depository institution holding such securities to effectuate
book-entry transfers and pledges through the book-entry
facilities of such institution) in order to create a first
priority security interest therein in favor of the holder
hereof in conformity with all applicable state and federal
laws governing granting of such security interests;
(6) The undersigned shall deliver the following to the holder
hereof on or prior to the Defeasance Date:
(a) a pledge and security agreement, in form and
substance satisfactory to the holder hereof in its
sole discretion, creating a first priority security
interest in favor of the holder hereof in the
Defeasance Deposit and the Defeasance Collateral (the
"Defeasance Security Agreement"), which shall
provide, among other things, that any excess received
by the holder hereof from the Defeasance Collateral
over the amounts payable by the undersigned hereunder
shall be refunded to the undersigned promptly after
each monthly payment date;
(b) a certificate of the undersigned certifying that all
of the defeasance requirements set forth in this Note
have been satisfied;
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(c) an opinion of counsel for the undersigned in form and
substance and delivered by counsel satisfactory to
the holder hereof in its sole discretion stating,
among other things, (x) that the holder hereof has a
perfected first priority security interest in the
Defeasance Deposit and the Defeasance Collateral, (y)
that the Defeasance Security Agreement is enforceable
against the undersigned in accordance with its terms
and (z) that the defeasance will not cause the trust
holding this Note to fail to qualify as a "real
estate mortgage investment conduit" (a "REMIC"),
within the meaning of Section 860D of the Internal
Revenue Code of 1986, as amended from time to time,
or any successor statute (the "Code");
(d) evidence in writing from each of the rating agencies
(as described in PARAGRAPH 37 of the Instrument) to
the effect that such release will not result in a
qualification, downgrade or withdrawal of any rating
in effect immediately prior to the Defeasance Date
for any securities issued in connection with a
secondary market transaction (as described in
PARAGRAPH 37 of the Instrument); and
(e) such other certificates, opinions, documents or
instruments as the holder hereof may reasonably
require.
The "Defeasance Period" shall mean the period of time commencing on the
earlier of (i) the date four (4) years after the date hereof or (ii)
the date two (2) years after the "startup day" (within the meaning of
Section 860G(a)(9) of the Code) of the REMIC, and ending two (2) months
prior to the Maturity Date.
Upon a defeasance in accordance with this Note, the undersigned shall,
at the holder hereof's request, assign all its obligations and rights under this
Note to a special-purpose, bankruptcy-remote entity ("Successor Borrower") to be
formed by the undersigned at its sole cost and expense. In connection therewith,
the Successor Borrower shall execute an assumption agreement in form and
substance satisfactory to the holder hereof in its sole discretion pursuant to
which the Successor Borrower shall assume the undersigned's obligations under
this Note and the Defeasance Security Agreement. The sole asset of the Successor
Borrower shall be the Defeasance Collateral. In connection with such assignment
and assumption, the undersigned and/or the Successor Borrower shall:
(1) deliver to the holder hereof an opinion of counsel in form and
substance and delivered by counsel satisfactory to the holder
hereof in its sole discretion stating, among other things,
that such assumption agreement is enforceable against the
undersigned and the Successor Borrower, as applicable, in
accordance with its terms and that this Note, the Defeasance
Security Agreement and any other documents executed in
connection with such defeasance are enforceable against the
undersigned or the Successor Borrower, as applicable, in
accordance with their respective terms; and
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(2) pay all costs and expenses incurred by the holder hereof or
its agents in connection with such assignment and assumption
(including, without limitation, any fees and disbursements of
legal counsel).
Upon an assumption by a Successor Borrower acceptable to the holder hereof, the
undersigned shall be relieved of its obligations under this Note and the
Defeasance Security Agreement and, to the extent such documents relate to the
Property, the other Loan Documents.
Upon compliance with the defeasance requirements, the Property shall be
released from the lien of the Instrument and the other Loan Documents, and the
Defeasance Collateral shall constitute collateral which shall secure this Note.
The holder hereof, will, at the undersigned's expense, execute and deliver any
agreements reasonably requested by the undersigned to release the lien of the
Instrument.
The holder hereof, as attorney-in-fact of the undersigned, shall cause
the purchase of the Defeasance Collateral with the Defeasance Deposit, which
purchase may be through an affiliate of the holder hereof. The undersigned shall
be responsible for the payment of any brokerage or other transaction fees in
connection with such purchase.
In the event of a prepayment of this Note after the Defeasance Period,
Borrower shall pay, together with the amount of such prepayment, an amount equal
to the interest which would have been accrued on the amount of such prepayment
during the remaining days of the full calendar month within which such
prepayment is made.
Notwithstanding any other provision herein to the contrary, the
undersigned shall not be required to pay any premium in connection with any
prepayment occurring as a result of the application of insurance proceeds or
condemnation awards under the Instrument.
Notwithstanding anything herein contained to the contrary, any
permitted prepayment of this Note may only be made by payment of the principal
amount to be prepaid together with (i) all accrued and unpaid interest and (ii)
any other sums due under this Note, the Instrument or any other Loan Document.
In the event of involuntary prepayment of this Note because of the
holder hereof's acceleration of the unpaid principal balance of this Note or the
Instrument is satisfied or released by foreclosure or deed in lieu of
foreclosure, the undersigned shall pay to the holder hereof an amount (the
"Yield Maintenance Premium") equal to the aggregate (without duplication) of:
(a) the product obtained by multiplying (1) the entire unpaid
principal balance of this Note at the time of prepayment, times (2) the
difference obtained by subtracting from the interest rate on this Note
the yield rate (the "Yield Rate") on the 5.50% U.S. Treasury Security
due May 15, 2009 (the "Specified U.S. Treasury Security"), as the Yield
Rate is reported in the Wall
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Street Journal on the fifth Business Day (as hereinafter defined)
preceding (x) the date notice of prepayment is given to holder hereof
where prepayment is voluntary, or (y) the date holder hereof
accelerates the Loan (as hereinafter defined), times (3) the present
value factor calculated using the following formula:
1-(1 + r)-n
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r
r = Yield Rate
n = the number of years, and any fraction thereof,
remaining between the prepayment date and the
Maturity Date.
In the event that no Yield Rate is published for the Specified
U.S. Treasury Security, then the nearest equivalent U.S. Treasury
Security shall be selected at the holder hereof's sole discretion. If
the publication of such Yield Rates in the Wall Street Journal is
discontinued, the holder hereof shall determine such Yield Rates from
another source selected by the holder hereof. As used herein, the term
"Business Day" means any day other than a Saturday, a Sunday, or any
other day on which the holder hereof is not open for business; and
(b) an amount equal to the interest which would have accrued
on the amount of such prepayment during the remaining days of the full
calendar month within which such prepayment is made.
The Yield Maintenance Premium is not a penalty or additional interest,
but is the holder hereof's cost of liquidating its investments in the event of
an involuntary prepayment of this Note. The undersigned hereby covenants and
agrees to indemnify the holder hereof and hold it harmless from any costs, fees,
expenses (including attorney's fees) resulting from any action, litigation or
judicial decision alleging, claiming or holding that the Yield Maintenance
Premium is a penalty or additional interest, and from any damages (whether
compensatory or punitive) ordered by a court, judge or administrative law judge
which may determine that the Yield Maintenance Premium is a penalty or
additional interest.
Subject to the qualifications below in this paragraph, the undersigned
shall be liable for payment and performance of all of the obligations, covenants
and agreements of the undersigned under this Note, the Instrument, the
Assignment of Leases and Rents (herein so called), dated of even date herewith,
and executed by the undersigned to the holder hereof, the Environmental
Indemnity Agreement (herein so called), dated of even date herewith, and
executed by the undersigned and the holder hereof, and all other instruments and
documents evidencing, securing or governing the terms of the Loan (collectively,
the "Loan Documents"), to the full extent (but only to the extent) of all of the
Property and any other items, property or amounts which are collateral or
security for the Loan. If a default occurs in the timely and proper payment of
any portion of such indebtedness or in the timely performance of any
obligations, agreements or
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covenants under any of the Loan Documents, except as set forth below in this
paragraph, neither the undersigned, nor any member of the undersigned, nor any
partner, stockholder, director or officer of any member of the undersigned,
shall be personally liable for the repayment of any of the principal of,
interest on, or prepayment fees or late charges, or other charges or fees, due
in connection with, the Loan, the performance of any covenants of the
undersigned under this Note, the Instrument or any of the other Loan Documents
or for any deficiency judgment which the holder hereof may obtain after default
by the undersigned. Notwithstanding the foregoing provisions of this paragraph
or any other agreement, the undersigned shall be fully and personally liable for
any and all: (1) liabilities, costs, losses, damages, expenses or claims
(including, without limitation, any reduction in the value of the Property or
any other items, property or amounts which are collateral or security for the
Loan) suffered or incurred by the holder hereof by reason of or in connection
with (a) any fraud or misrepresentation by the undersigned in connection with
the Loan, including but not limited to any misrepresentation of the undersigned
contained in any Loan Document, (b) any failure by the undersigned to pay taxes,
insurance premiums (except to the extent that such taxes and insurance premiums
are then held by the holder hereof), assessments, charges for labor or materials
or other charges that can create liens on any portion of the Property, (c) any
misapplication by the undersigned or by any member of the undersigned or by any
partner, member, stockholder, director or officer of any member of the
undersigned of (i) proceeds of insurance covering any portion of the Property,
or (ii) proceeds of the sale or condemnation of any portion of the Property, (d)
any rentals, income, profits, issues and products received by or on behalf of
the undersigned subsequent to the date on which the holder hereof gives written
notice that a default has occurred under the Loan and not applied to the payment
of principal or interest due under this Note or the payment of operating
expenses (excluding any operator's, manager's, or developer's fee payable to the
undersigned or any affiliate of the undersigned) of the Property, (e) any
failure by the undersigned to maintain, repair or restore the Property in
accordance with any Loan Document, to the extent not covered by insurance
proceeds made available to the holder hereof, (f) any failure by the undersigned
to deliver to the holder hereof all unearned advance rentals and security
deposits paid by tenants of the Property received by or on behalf of the
undersigned, and not refunded to or forfeited by such tenants, (g) any failure
by the undersigned to return to, or reimburse the holder hereof for, all
personalty taken from the Property by or on behalf of the undersigned, except in
accordance with the provisions of the Instrument, and (h) any and all
indemnities given by the undersigned to the holder hereof set forth in the
Environmental Indemnity Agreement or any other Loan Document in connection with
any environmental matter relating to the Property; and (2) court costs and all
attorneys' fees provided for in any Loan Document. Furthermore, no limitation of
liability or recourse provided above in this paragraph shall (x) apply to the
extent that the holder hereof's rights of recourse to the Property are
suspended, reduced or impaired by or as a result of any act, omission or
misrepresentation of the undersigned or any other party now or hereafter liable
for any part of the Loan and accrued interest thereon, or by or as a result of
any case, action, suit or proceeding to which the undersigned or any such other
party, voluntarily becomes a party; or (y) constitute a waiver, forfeiture,
abrogation or limitation of or on any right accorded by any law establishing a
debtor relief proceeding, including, but not limited to, Title 11, U.S. Code,
which right provides for the assertion in such debtor relief proceeding of a
deficiency arising by reason of the insufficiency of collateral notwithstanding
an agreement of the holder hereof not to assert such deficiency.
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This Note shall be governed by and construed in accordance with the law
of the state in which the Property is located, and applicable federal law. The
parties hereto intend to conform strictly to the applicable usury laws. In no
event, whether by reason of demand for payment, prepayment, acceleration of the
maturity hereof or otherwise, shall the interest contracted for, charged or
received by the holder hereof hereunder or otherwise exceed the maximum amount
permissible under applicable law. If from any circumstance whatsoever interest
would otherwise be payable to the holder hereof in excess of the maximum lawful
amount, the interest payable to the holder hereof shall be reduced automatically
to the maximum amount permitted by applicable law. If the holder hereof shall
ever receive anything of value deemed interest under applicable law which would
apart from this provision be in excess of the maximum lawful amount, an amount
equal to any amount which would have been excessive interest shall be applied to
the reduction of the principal amount owing hereunder in the inverse order of
its maturity and not to the payment of interest, or if such amount which would
have been excessive interest exceeds the unpaid balance of principal hereof,
such excess shall be refunded to the undersigned. All interest paid or agreed to
be paid to the holder hereof 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 permitted
by applicable law. The provisions of this paragraph shall control all existing
and future agreements between the undersigned and the holder hereof.
THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY RIGHT THE UNDERSIGNED MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THIS
NOTE, THE INSTRUMENT, ANY OTHER LOAN DOCUMENT, ANY OTHER AGREEMENT CONTEMPLATED
TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
The holder hereof shall have the right to assign, in whole or in part,
this Note, the Instrument and any other Loan Document and all of its rights
hereunder and thereunder, and all of the provisions herein and therein shall
continue to apply to the Loan. The holder hereof shall have the right to
participate the Loan with other parties.
Interest on the principal sum of this Note shall be calculated on the
basis of the actual number of days elapsed over a year consisting of 360 days.
Interest on this Note shall be paid in arrears.
The undersigned shall pay the holder hereof, in advance, on the date
hereof, interest only on the outstanding principal balance of this Note, at the
interest rate first mentioned above, from the date hereof through and including
the last day of the calendar month in which this Note is executed.
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Executed as of the date set forth above.
META HOLDINGS, LLC, an Ohio limited liability
company
By META Management, LLC, Sole Member
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: Secretary and Treasurer
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THIS INSTRUMENT
PREPARED BY AND WHEN
RECORDED MAIL TO
Xxxxxx X. Xxxxxx, Esq.
Porter, Wright, Xxxxxx & Xxxxxx LLP
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 SPACE ABOVE THIS LINE FOR RECORDER'S USE
-------------------------------------- -----------------------------------------
MORTGAGE,
ASSIGNMENT OF RENTS AND SECURITY AGREEMENT
THIS MORTGAGE (herein "Instrument") is made this 28th day of July,
1999, between the Mortgagor/Grantor, META HOLDINGS, LLC, an Ohio limited
liability company, whose address is 0000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxx 00000
(herein "Borrower"), and the Mortgagee, HUNTINGTON CAPITAL CORP., an Ohio
corporation organized and existing under the laws of Ohio, whose address is 00
Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, together with its successors, assigns
and transferees, (herein "Lender").
WHEREAS, Borrower is indebted to Lender in the principal sum of
Nineteen Million ($19,000,000.00) Dollars, which indebtedness is evidenced by
Borrower's Promissory Note dated of even date herewith (herein "Note"),
providing for monthly installments of principal and interest, with the balance
of the indebtedness, if not sooner paid, due and payable on August 1, 2009 (the
"Maturity Date");
TO SECURE TO LENDER (a) the repayment of the indebtedness evidenced by
the Note with interest thereon, and all renewals, extensions and modifications
thereof; (b) the performance of the covenants and agreements of Borrower
contained in an Environmental Indemnity Agreement (herein so-called) between
Lender, Borrower and Principal (as defined in the Environmental Indemnity
Agreement) dated of even date herewith; (c) the payment of all other sums, with
interest thereon, advanced in accordance herewith to protect the security of
this Instrument; and (d) the performance of the covenants and agreements of
Borrower herein contained, or contained in any other Loan Document (as
hereinafter defined), Borrower does hereby mortgage, grant, convey and assign to
Lender, its successors, assigns and transferees, the following described
property located in Franklin County, State of Ohio:
See Exhibit "A" attached hereto and incorporated herein by reference
for all purposes.
TOGETHER with all buildings, improvements, and tenements now or
hereafter erected on the property, and all heretofore or hereafter vacated
alleys and streets abutting the property, and all easements, rights,
appurtenances, rents (subject however to the assignment of rents to Lender
herein), royalties, mineral, oil and gas rights and profits, water, water
rights, and water stock appurtenant to the property, and all fixtures,
machinery, equipment, engines, boilers, incinerators, building materials,
appliances and goods of every nature whatsoever now or
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hereafter located in, or on, or used, or intended to be used in connection with
the property, including, but not limited to, those for the purposes of supplying
or distributing heating, cooling, electricity, gas, water, air and light; and
all elevators, and related machinery and equipment, fire prevention and
extinguishing apparatus, security and access control apparatus, plumbing, water
heaters, water closets, sinks, awnings, storm windows, storm doors, screens,
blinds, shades, curtains and curtain rods, mirrors, cabinets, panelling, rugs,
attached floor coverings, furniture, pictures, antennas, trees and plants, tax
refunds, trade names, licenses, permits, Borrower's rights to insurance
proceeds, unearned insurance premiums and choses in action (excluding, however,
personal property owned by and removable by tenants under the terms of their
leases); all of which, including replacements and additions thereto, shall be
deemed to be and remain a part of the real property covered by this Instrument;
and all of the foregoing, together with said property are herein referred to as
the "Property";
TOGETHER with all right, title and interest in, to and under any and
all leases now or hereinafter in existence (as amended or supplemented from time
to time) and covering space in or applicable to the Property (hereinafter
referred to collectively as the "Leases" and singularly as a "Lease"), together
with all rents, earnings, income, profits, benefits and advantages arising from
the Property and from said Leases and all other sums due or to become due under
and pursuant thereto, and together with any and all guarantees of or under any
of said Leases, and together with all rights, powers, privileges, options and
other benefits of Borrower as lessor under the Leases, including, without
limitation, the immediate and continuing right to receive and collect all rents,
income, revenues, issues, profits, condemnation awards, insurance proceeds,
moneys and security payable or receivable under the Leases or pursuant to any of
the provisions thereof, whether as rent or otherwise, the right to accept or
reject any offer made by any tenant pursuant to its Lease to purchase the
Property and any other property subject to the Lease as therein provided and to
perform all other necessary or appropriate acts with respect to such Leases as
agent and attorney-in-fact for Borrower, and the right to make all waivers and
agreements, to give and receive all notices, consents and releases, to take such
action upon the happening of a default under any Lease, including the
commencement, conduct and consummation of proceedings at law or in equity as
shall be permitted under any provision of any Lease or by any law, and to do any
and all other things whatsoever which the Borrower is or may become entitled to
do under any such Lease together with all accounts receivable, contract rights,
franchises, interests, estates or other claims, both at law and in equity,
relating to the Property, to the extent not included in rent earnings and income
under any of the Leases;
TOGETHER with all right, title and interest in, to and under any and
all reserve, deposit or escrow accounts (the "Accounts") made pursuant to any
Loan Document made between Borrower and Lender with respect to the Property,
together with all income, profits, benefits and advantages arising therefrom,
and together with all rights, powers, privileges, options and other benefits of
Borrower under the Accounts, and together with the right to do any and all other
things whatsoever which the Borrower is or may become entitled to do under the
Accounts;
TOGETHER with all right, title and interest in, to and under any and
all agreements, contracts, certificates, guaranties, warranties, instruments,
franchises, permits, licenses, plans, specifications and other documents, now or
hereafter entered into, and all rights therein and
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thereto, pertaining to the use, occupancy, construction, management or operation
of the Property and any part thereof and any improvements or respecting any
business or activity conducted on the Property and any part thereof and all
right, title and interest of Borrower therein, including the right to receive
and collect any sums payable to Borrower thereunder and all deposits or other
security or advance payments made by Borrower with respect to any of the
services related to the Property or the operation thereof;
TOGETHER with all of Borrower's tradenames, trademarks, servicemarks,
logos, copyrights, goodwill, books and records and all other general intangibles
relating to or used in connection with the operation of the Property; and
TOGETHER with any and all proceeds resulting or arising from the
foregoing (collectively, the "Collateral").
Borrower covenants that Borrower is lawfully seised of the estate
hereby conveyed and has the right to mortgage, grant, convey and assign the
Property, that the Property is unencumbered, and that Borrower will warrant and
defend generally the title to the Property against all claims and demands,
subject to any easements and restrictions listed in a schedule of exceptions to
coverage in any title insurance policy insuring Lender's interest in the
Property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay when due the
principal of and interest on the indebtedness evidenced by the Note, any
prepayment and late charges provided in the Note and all other sums secured by
this Instrument.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Subject to applicable law or to
a written waiver by Lender, Borrower shall pay to Lender on the day monthly
installments of principal or interest are payable under the Note (or on another
day designated in writing by Lender), until the Note is paid in full, a sum
(herein "Funds") equal to one-twelfth of (a) the yearly taxes and assessments
which may be levied on the Property and (b) the yearly premium installments for
fire and other hazard insurance, rent loss insurance and such other insurance
covering the Property as Lender may require pursuant to PARAGRAPH 5 hereof, all
as reasonably estimated initially and from time to time by Lender on the basis
of assessments and bills and reasonable estimates thereof; provided, however,
Lender has agreed to waive the requirement to escrow for insurance premiums as
long as Borrower pays such premiums for 12-month periods in advance and provides
renewal certificates of insurance not later than forty-five (45) days prior to
each expiration date. Any waiver by Lender of a requirement that Borrower escrow
for taxes and assessments may be revoked by Lender, in Lender's sole discretion,
at any time upon notice in writing to Borrower. Lender may require Borrower to
pay to Lender, in advance, such other Funds for other taxes, charges, premiums,
assessments and impositions in connection with Borrower or the Property which
Lender shall reasonably deem necessary to protect Lender's interests (herein
"Other Impositions"). Unless otherwise provided by applicable law, Lender may
require Funds for Other Impositions to be paid by Borrower in a lump sum or in
periodic installments, at Lender's option.
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The Funds shall be held in an interest-bearing account with an
institution(s) the deposits or accounts of which are insured or guaranteed by a
Federal or state agency (including Lender if Lender is such an institution).
Lender shall apply the Funds to pay said taxes, assessments, insurance premiums
and Other Impositions so long as Borrower is not in breach of any covenant or
agreement of Borrower in this Instrument. Lender shall make no charge for so
holding and applying the Funds, analyzing said account or for verifying and
compiling said assessments and bills. Lender shall give to Borrower, without
charge, an annual accounting of the Funds in Lender's normal format showing
credits and debits to the Funds and the purpose for which each debit to the
Funds was made. The Funds are pledged as additional security for the sums
secured by this Instrument.
If the amount of the Funds held by Lender at the time of the annual
accounting thereof shall exceed the amount deemed necessary by Lender to provide
for the payment of taxes, assessments, insurance premiums, and Other
Impositions, as they fall due, such excess shall be credited to Borrower on the
next monthly installment or installments of Funds due. If at any time the amount
of the Funds held by Lender shall be less than the amount deemed necessary by
Lender to pay taxes, assessments, insurance premiums, and Other Impositions, as
they fall due, Borrower shall pay to Lender any amount necessary to make up the
deficiency within thirty days after notice from Lender to Borrower requesting
payment thereof.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument, Lender may apply, in any amount and in any order as Lender shall
determine in Lender's sole discretion, any Funds held by Lender at the time of
application (i) to pay taxes, assessments, insurance premiums and Other
Impositions which are now or will hereafter become due, or (ii) as a credit
against sums secured by this Instrument. Upon payment in full of all sums
secured by this Instrument, Lender shall promptly refund to Borrower any Funds
held by Lender.
3. APPLICATION OF PAYMENTS. Unless applicable law provides otherwise, all
payments received by Lender from Borrower under the Note or this Instrument
shall be applied by Lender in the following order of priority: (i) amounts
payable to Lender by Borrower under PARAGRAPH 2 hereof; (ii) interest payable on
the Note; (iii) principal of the Note; (iv) interest payable on advances made
pursuant to PARAGRAPH 8 hereof; (v) principal of advances made pursuant to
PARAGRAPH 8 hereof, and (vi) any other sums secured by this Instrument in such
order as Lender, at Lender's option, may determine: provided, however, that
Lender may, at Lender's option, apply any sums payable pursuant to PARAGRAPH 8
hereof prior to interest on and principal of the Note, but such application
shall not otherwise affect the order of priority of application specified in
this PARAGRAPH 3.
4. CHARGES; LIENS. Borrower shall pay all rents, taxes, assessments, premiums,
and Other Impositions attributable to the Property at Lender's option in the
manner provided under PARAGRAPH 2 hereof or, if not paid in such manner, by
Borrower making payment, when due, directly to the payee thereof, or in such
other manner as Lender may designate in writing. Borrower shall promptly furnish
to Lender all notices of amounts due under this PARAGRAPH 4, and in the event
Borrower shall make payment directly, Borrower shall promptly furnish to
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Lender receipts evidencing such payments. Borrower shall promptly discharge any
lien, which has, or may have, priority over or equality with, the lien of this
Instrument, and Borrower shall pay, when due, the claims of all persons
supplying labor or materials to or in connection with the Property. Without
Lender's prior written permission, Borrower shall not allow any lien inferior to
this Instrument to be perfected against the Property.
5. HAZARD INSURANCE. Borrower shall keep the improvements now existing or
hereafter erected on the Property insured by carriers at all times satisfactory
to Lender against loss by fire, hazards included within the term "extended
coverage", rent loss and such other hazards, casualties, liabilities and
contingencies as Lender shall require and in such amounts and for such periods
as Lender shall require. Borrower shall purchase policies of insurance with
respect to the Property with such insurers, in such amounts and covering such
risks as shall be satisfactory to Lender, including, but not limited to, (i)
personal injury and death; (ii) loss or damage by fire, lightning, hail,
windstorm, explosion, hurricane (to the extent available), and such other
hazards, casualties and contingencies (including at least twelve (12) months
rental insurance in an amount equal to the gross rentals for such period and
broad form boiler and machinery insurance) as are normally and usually covered
by extended coverage policies in effect where the Property is located and
comprehensive general public liability insurance in amounts not less than
$1,000,000.00 per occurrence and $2,000,000.00 aggregate with $3,000,000.00
excess liability and containing an "Ordinance or Law Coverage" or "Enforcement"
endorsement if any of the improvements or the use of the Property shall at any
time constitute legal nonconforming structures or uses; provided, that each
policy shall provide by way of endorsement, rider or otherwise that no such
insurance policy shall be cancelled, endorsed, altered, or reissued to effect a
change in coverage unless such insurer shall have first given Lender thirty (30)
days prior written notice thereof, such policy shall be on a replacement cost
basis, with a waiver of depreciation, in an amount not less than that necessary
to comply with any coinsurance percentage stipulated in the policy, but not less
than one hundred percent (100%) of the insurable value (based upon replacement
cost) of the Property and the deductible clause, if any, of the fire and
extended coverage policy may not exceed the lesser of one percent (1%) of the
face amount of the policy or $1,000.00; (iii) loss or damage by flood, if the
Property is in an area designated by the Secretary of Housing and Urban
Development as an area having special flood hazards, in an amount equal to the
principal amount of the Note or the maximum amount available under the Flood
Disaster Protection Act of 1973, and regulations issued pursuant thereto, as
amended from time to time, whichever is less, in form complying with the
"insurance purchase requirement" of that Act; and (iv) such other insurance and
endorsements, if any, as Lender reasonably may require from time to time, or
which is required by the Loan Documents. Borrower shall cause all insurance
(except general public liability insurance) carried in accordance with this
PARAGRAPH 5 to be payable to Lender as a mortgagee and not as a coinsured, and,
in the case of all policies of insurance carried by each lessee for the benefit
of Borrower, if any, to cause all such policies to be payable to Lender as
Lender's interest may appear. All premiums on insurance policies shall be paid,
in the manner provided under PARAGRAPH 2 hereof, or in such other manner as
Lender may designate in writing.
All insurance policies and renewals thereof shall be in a form
acceptable to Lender and shall include a standard mortgagee clause in favor of
and in form acceptable to Lender. Lender
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shall have the right to hold the policies, and Borrower shall promptly furnish
to Lender all renewal notices and all receipts of paid premiums. At least thirty
(30) days prior to the expiration date of a policy, Borrower shall deliver to
Lender a renewal policy in form satisfactory to Lender.
In the event of loss, Borrower shall give immediate written notice to
the insurance carrier and to Lender. Borrower hereby authorizes and empowers
Lender as attorney-in-fact for Borrower to make proof of loss, to adjust and
compromise any claim under insurance policies, to appear in and prosecute any
action arising from such insurance policies, to collect and receive insurance
proceeds, and to deduct therefrom Lender's expenses incurred in the collection
of such proceeds; provided however, that nothing contained in this PARAGRAPH 5
shall require Lender to incur any expense or take any action hereunder. Borrower
further authorizes Lender, at Lender's option, (a) to hold the balance of such
proceeds to be used to reimburse Borrower for the cost of reconstruction or
repair of the Property or (b) subject to the immediately following paragraph, to
apply such proceeds to the payment of the sums secured by this Instrument
whether or not then due, in the order of application set forth in PARAGRAPH 3
hereof.
Lender shall not exercise Lender's option to apply insurance proceeds
to the payment of the sums secured by this Instrument if all of the following
conditions are met: (i) Borrower is not in breach or default of any covenant or
agreement of this Instrument, the Note or any other Loan Document; (ii) Lender
determines that there will be sufficient funds to restore and repair the
Property to the Pre-existing Condition (as hereinafter defined); (iii) Lender
agrees in writing that the rental income of the Property, after restoration and
repair of the Property to the Pre-existing Condition, will be sufficient to meet
all operating costs and other expenses, payments for reserves and loan repayment
obligations (including any obligations under any permitted subordinate
financing) relating to the Property and maintain a debt service coverage ratio
of at least 1.47 to 1.0; (iv) Lender determines that restoration and repair of
the Property to the Pre-existing Condition will be completed within one year of
the date of the loss or casualty to the Property, but in no event later than six
months prior to the Maturity Date; (v) less than fifty percent (50%) of the
total floor area of the improvements has been damaged, destroyed or rendered
unusable as a result of such fire or other casualty; (vi) tenant leases demising
in the aggregate at one hundred percent (100%) of the total rentable space in
the Property and in effect as of the date of the occurrence of such fire or
other casualty remain in full force and effect during and after the completion
of the restoration and repair of the Property; and (vii) Lender is reasonably
satisfied that the Property can be restored and repaired as nearly as possible
to the condition it was in immediately prior to such casualty and in compliance
with all applicable zoning, building and other laws and codes (the "Pre-existing
Condition"). If Lender elects to make the insurance proceeds available for the
restoration and repair of the Property, Borrower agrees that, if at any time
during the restoration and repair, the cost of completing such restoration and
repair, as determined by Lender, exceeds the undisbursed insurance proceeds,
Borrower shall, immediately upon demand by Lender, deposit the amount of such
excess with Lender, and Lender shall first disburse such deposit to pay for the
costs of such restoration and repair on the same terms and conditions as the
insurance proceeds are disbursed.
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If the insurance proceeds are held by Lender to reimburse Borrower for
the cost of restoration and repair of the Property, the Property shall be
restored to the equivalent of its original condition or such other condition as
Lender may approve in writing. Lender may, at Lender's option, condition
disbursement of said proceeds on Lender's approval of such plans and
specifications of an architect satisfactory to Lender, contractor's cost
estimates, architect's certificates, waivers of liens, sworn statements of
mechanics and materialmen and such other evidence of costs, percentage
completion of construction, application of payments; and satisfaction of liens
as Lender may reasonably require. If the insurance proceeds are applied to the
payment of the sums secured by this Instrument, any such application of proceeds
to principal shall not extend or postpone the due dates of the monthly
installments referred to in PARAGRAPHS 1 AND 2 hereof or change the amounts of
such installments. If the Property is sold pursuant to PARAGRAPH 27 hereof or if
Lender acquires title to the Property, Lender shall have all of the right, title
and interest of Borrower in and to any insurance policies and unearned premiums
thereon and in and to the proceeds resulting from any damage to the Property
prior to such sale or acquisition.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a) shall not commit waste
or permit impairment or deterioration of the Property, (b) shall not abandon the
Property, (c) shall restore or repair promptly and in a good and workmanlike
manner all or any part of the Property to the equivalent of its original
condition, or such other condition as Lender may approve in writing, in the
event of any damage, injury or loss thereto, whether or not insurance proceeds
are available to cover in whole or in part the costs of such restoration or
repair, (d) shall keep the Property, including improvements, fixtures,
equipment, machinery and appliances thereon in good repair and shall replace
fixtures, equipment, machinery and appliances on the Property when necessary to
keep such items in good repair, (e) shall comply with all laws, ordinances,
regulations and requirements of any governmental body applicable to the
Property, (f) if Borrower or its managing member ceases to manage the Property,
then Borrower shall provide for professional management of the Property by a
commercial rental property manager satisfactory to Lender pursuant to a contract
approved by Lender in writing, (g) shall generally operate and maintain the
Property in a manner to ensure maximum rentals, and (h) shall give notice in
writing to Lender of and, unless otherwise directed in writing by Lender, appear
in and defend any action or proceeding purporting to affect the Property, the
security of this Instrument or the rights or powers of Lender. Neither Borrower
nor any tenant or other person shall remove, demolish or alter any improvement
now existing or hereafter erected on the Property or any fixture, equipment,
machinery or appliance in or on the Property except when incident to the
replacement of fixtures, equipment, machinery and appliances with items of like
kind and except as permitted under the terms of approved leases.
7. USE OF PROPERTY. Unless required by applicable law or unless Lender has
otherwise agreed in writing, Borrower shall not allow changes in the use for
which all or any part of the Property was intended at the time this Instrument
was executed. Borrower shall not subdivide the Property or initiate or acquiesce
in a change in the zoning classification of the Property without Lender's prior
written consent.
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8. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the covenants
and agreements contained in this Instrument, or if any action or proceeding is
commenced which affects the Property or title thereto or the interest of Lender
therein, including, but not limited to, eminent domain, insolvency, code
enforcement, or arrangements or proceedings involving a bankrupt or decedent,
then Lender at Lender's option may make such appearances, disburse such sums and
take such action as Lender deems necessary, in its sole discretion, to protect
Lender's interest, including, but not limited to, (i) disbursement of attorney's
fees, (ii) entry upon the Property to make repairs, (iii) procurement of
satisfactory insurance as provided in PARAGRAPH 5 hereof, and (iv) the payment
of any taxes and/or assessments levied against the Property and then due and
payable.
Any amounts disbursed by Lender pursuant to this PARAGRAPH 8, with
interest thereon, shall become additional indebtedness of Borrower secured by
this Instrument. Unless Borrower and Lender agree to other terms of payment,
such amounts shall be immediately due and payable and shall bear interest from
the date of disbursement at the rate stated in the Note unless collection from
Borrower of interest at such rate would be contrary to applicable law, in which
event such amounts shall bear interest at the highest rate which may be
collected from Borrower under applicable law. Borrower hereby covenants and
agrees that Lender shall be subrogated to the lien of any mortgage or other lien
discharged, in whole or in part, by the indebtedness secured hereby. Nothing
contained in this PARAGRAPH 8 shall require Lender to incur any expense or take
any action hereunder.
9. INSPECTION. Upon not less than two (2) business days prior written notice to
Borrower, Lender may make or cause to be made reasonable entries upon and
inspections of the Property including, but not limited to, phase I and/or phase
II environmental audits and inspections which phase II inspections will not
unreasonably disturb Borrower's use of the Property.
10. BOOKS AND RECORDS. Borrower shall keep and maintain at all times at
Borrower's address stated below, or such other place as Lender may approve in
writing, complete and accurate books of accounts and records adequate to reflect
correctly the results of the operation of the Property and copies of all written
contracts, leases and other instruments which affect the Property. Such books,
records, contracts, leases and other instruments shall be subject to examination
and inspection at any reasonable time by Lender. Upon Lender's request, Borrower
shall furnish to Lender, within thirty (30) days after the end of each three
month quarter of each fiscal year of Borrower, a balance sheet, a statement of
income and expenses of the Property and a statement of changes in financial
position, each in reasonable detail and certified by Borrower and, if Lender
shall require, by an independent certified public accountant. Borrower shall
furnish, together with the foregoing financial statements and at any other time
upon Lender's request, a rent schedule for the Property, certified by Borrower,
showing the name of each tenant, and for each tenant, the space occupied, the
lease expiration date, the rent payable and the rent paid. In addition to the
above delivery of financial statements and rent schedule, Borrower shall deliver
to Lender updated versions of such financial statements at any other time upon
Lender's request, including monthly balance sheets and monthly statements of
income and expenses of the Property.
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11. CONDEMNATION. Borrower shall promptly notify Lender of any action or
proceeding relating to any condemnation or other taking, whether direct or
indirect, of the Property, or part thereof, and Borrower shall appear in and
prosecute any such action or proceeding unless otherwise directed by Lender in
writing. Borrower authorizes Lender, at Lender's option, as attorney-in-fact for
Borrower, to commence, appear in and prosecute, in Lender's or Borrower's name,
any action or proceeding relating to any condemnation or other taking of the
Property, whether direct or indirect, and to settle or compromise any claim in
connection with such condemnation or other taking. The proceeds of any award,
payment or claim for damages, direct or consequential, in connection with any
condemnation or other taking, whether direct or indirect, of the Property, or
part thereof, or for conveyances in lieu of condemnation, are hereby assigned to
and shall be paid to Lender.
Borrower authorizes Lender to apply such awards, payments, proceeds or
damages, after the deduction of Lender's expenses incurred in the collection of
such amounts, at Lender's option, to restoration or repair of the Property or to
payment of the sums secured by this Instrument, whether or not then due, in the
order of application set forth in PARAGRAPH 3 hereof, with the balance, if any,
to Borrower. Unless Borrower and Lender otherwise agree in writing, any
application of proceeds to principal shall not extend or postpone the due date
of the monthly installments referred to in PARAGRAPHS 1 AND 2 hereof or change
the amount of such installments. Borrower agrees to execute such further
evidence of assignment of any awards, proceeds, damages or claims arising in
connection with such condemnation or taking as Lender may require.
12. BORROWER AND LIEN NOT RELEASED. From time to time, Lender may, at Lender's
option, without giving notice to or obtaining the consent of Borrower,
Borrower's successors or assigns or of any junior lienholder or guarantors,
without liability on Lender's part and notwithstanding Borrower's breach of any
covenant or agreement of Borrower in this Instrument, extend the time for
payment of said indebtedness or any part thereof, reduce the payments thereon,
release anyone liable on any of said indebtedness, accept a renewal note or
notes therefor, modify the terms and time of payment of said indebtedness,
release from the lien of this Instrument any part of the Property, take or
release other or additional security, reconvey any part of the Property, consent
to any map or plan of the Property, consent to the granting of any easement,
join in any extension or subordination agreement, and agree in writing with
Borrower to modify the rate of interest or period of amortization of the Note or
change the amount of the monthly installments payable thereunder. Any actions
taken by Lender pursuant to the terms of this PARAGRAPH 12 shall not affect the
obligation of Borrower or Borrower's successors or assigns to pay the sums
secured by this Instrument and to observe the covenants of Borrower contained
herein, shall not affect the guaranty of any person, corporation, partnership or
other entity for payment of the indebtedness secured hereby, and shall not
affect the lien or priority of lien hereof on the Property. Borrower shall pay
Lender a reasonable service charge, together with such title insurance premiums
and attorney's fees as may be incurred at Lender's option, for any such action
if taken at Borrower's request.
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13. FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by Lender in exercising
any right or remedy hereunder, or otherwise afforded by applicable law, shall
not be a waiver of or preclude the exercise of any right or remedy. The
acceptance by Lender of payment of any sum secured by this Instrument after the
due date of such payment shall not be a waiver of Lender's right to either
require prompt payment when due of all other sums so secured or to declare a
default for failure to make prompt payment. The procurement of insurance or the
payment of taxes or other liens or charges by Lender shall not be a waiver of
Lender's right to accelerate the maturity of the indebtedness secured by this
Instrument, nor shall Lender's receipt of any awards, proceeds or damages under
PARAGRAPHS 5 AND 11 hereof operate to cure or waive Borrower's default in
payment of sums secured by this Instrument.
14. ESTOPPEL CERTIFICATE. Borrower shall within ten (10) days of a written
request from Lender furnish Lender with a written statement, duly acknowledged,
setting forth the sums secured by this Instrument and any right of set-off,
counterclaim or other defense which exists against such sums and the obligations
of this Instrument and attaching true, correct and complete copies of the Note,
this Instrument and any other Loan Documents and any and all modifications,
amendments and substitutions thereof.
15. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument is intended to
be a security agreement pursuant to the Uniform Commercial Code for any of the
items specified above as part of the Collateral which, under applicable law, may
be subject to a security interest pursuant to the Uniform Commercial Code, and
Borrower hereby grants Lender a security interest in said items. Borrower agrees
that Lender may file this Instrument, or a reproduction thereof, in the real
estate records or other appropriate index, as a financing statement for any of
the items specified above as part of the Property. Any reproduction of this
Instrument or of any other security agreement or financing statement shall be
sufficient as a financing statement. In addition, Borrower agrees to execute and
deliver to Lender, upon Lender's request, any financing statements, as well as
extensions, renewals and amendments thereof, and reproductions of this
Instrument in such form as Lender reasonably may require to perfect a security
interest with respect to said items. Borrower shall pay all costs of filing such
financing statements and any extensions, renewals, amendments and releases
thereof, and shall pay all reasonable costs and expenses of any record searches
for financing statements Lender may reasonably require. Without the prior
written consent of Lender, Borrower shall not create or suffer to be created
pursuant to the Uniform Commercial Code any other security interest in said
items, including replacements and additions thereto. Upon Borrower's breach of
any covenant or agreement of Borrower contained in this Instrument, including
the covenants to pay when due all sums secured by this Instrument, Lender shall
have the remedies of a secured party under the Uniform Commercial Code and, at
Lender's option, may also invoke the remedies provided in PARAGRAPH 27 of this
Instrument as to such items. In exercising any of said remedies, Lender may
proceed against the items of real property and any items of personal property
specified above as part of the Property separately or together and in any order
whatsoever, without in any way affecting the availability of Lender's remedies
under the Uniform Commercial Code or of the remedies provided in PARAGRAPH 27 of
this Instrument.
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16. LEASES OF THE PROPERTY. Borrower shall comply with and observe Borrower's
obligations as landlord under all leases of the Property or any part thereof.
Borrower will not lease any portion of the Property except with the prior
written approval of Lender. By acceptance of this Instrument, Lender
acknowledges approval of the lease to Metatec International, Inc., a copy of
which lease was provided to Lender prior to execution of this Instrument.
Borrower acknowledges that a default by Metatec International, Inc. under the
Lease, which default continues at the expiration of the applicable notice and
cure period, if any, provided in the Lease, shall constitute a default under the
Loan Documents.
Borrower shall be required to obtain Lender's consent, which shall not
be unreasonably withheld, for any lease and subleases at the Property. The
request for approval of each such proposed lease shall be made to Lender in
writing and Borrower shall furnish to Lender (and any loan servicer specified
from time to time by Lender): (i) such biographical and financial information
about the proposed tenant as Lender may require in conjunction with its review,
(ii) a copy of the proposed form of lease, and (iii) a summary of the material
terms of such proposed lease (including, without limitation, rental terms and
the term of the proposed lease and any options).
Borrower, at Lender's request, shall furnish Lender with executed
copies of all leases hereafter made of all or any part of the Property, and all
leases hereafter entered into will be in form and substance subject to the
approval of Lender. All leases of the Property or a separate agreement in
recordable form and substance satisfactory to Lender shall specifically provide
that such leases are subordinate to this Instrument; that the tenant attorns to
Lender, such attornment to be effective upon Lender's acquisition of title to
the Property; that the tenant agrees to execute such further evidences of
attornment as Lender may from time to time request; that the attornment of the
tenant shall not be terminated by foreclosure; that in no event shall Lender, as
holder of this Instrument or as successor landlord, be liable to the tenant for
any act or omission of any prior landlord or for any liability or obligation of
any prior landlord occurring prior to the date that Lender or any subsequent
owner acquire title to the Property; and that Lender may, at Lender's option,
accept or reject such attornments. Borrower shall not, without Lender's written
consent, execute, modify, surrender or terminate, either orally or in writing,
any lease now existing or hereafter made of all or any part of the Property,
permit an assignment or sublease of a lease without Lender's written consent, or
request or consent to the subordination of any lease of all or any part of the
Property to any lien subordinate to this Instrument. If Borrower becomes aware
that any tenant proposes to do, or is doing, any act or thing which may give
rise to any right of set-off against rent, Borrower shall (i) take such steps as
shall be reasonably calculated to prevent the accrual of any right to a set-off
against rent, (ii) notify Lender thereof and of the amount of said set-offs, and
(iii) within ten (10) days after such accrual, reimburse the tenant who shall
have acquired such right to set-off or take such other steps as shall
effectively discharge such set-off and as shall assure that rents thereafter due
shall continue to be payable without set-off or deduction.
Upon Lender's request, Borrower shall absolutely assign to Lender, by
written instrument satisfactory to Lender, all leases now existing or hereafter
made of all or any part of the Property and all security deposits made by
tenants in connection with such leases of the Property. Upon assignment by
Borrower to Lender of any leases of the Property, Lender shall have all of the
rights and powers possessed by Borrower prior to such assignment and Lender
shall have the
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right to modify, extend or terminate such existing leases and to execute new
leases, in Lender's sole discretion.
17. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is distinct and
cumulative to all other rights or remedies under this Instrument or afforded by
law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
18. ACCELERATION IN CASE OF BORROWER'S INSOLVENCY. If Borrower shall voluntarily
file a petition under Title 11 of the U.S. Code (the "Act"), as such Act may
from time to time be amended, or under any similar or successor Federal statute
relating to bankruptcy, insolvency, arrangements or reorganizations, or under
any state bankruptcy or insolvency act, or file an answer in any involuntary
proceeding admitting insolvency or inability to pay debts, or if Borrower shall
fail to obtain a vacation or stay of involuntary proceedings brought for the
reorganization, dissolution or liquidation of Borrower, within one hundred and
twenty (120) days of the filing of such involuntary proceeding, or if Borrower
shall be adjudged a bankrupt, or if a trustee or receiver shall be appointed for
Borrower or Borrower's property, or if the Property shall become subject to the
jurisdiction of a Federal bankruptcy court or similar state court, or if
Borrower shall make an assignment for the benefit of Borrower's creditors, or if
there is an attachment, execution or other judicial seizure of any portion of
Borrower's assets and such seizure is not discharged within ten (10) days, then
Lender may, at Lender's option, declare all of the sums secured by this
Instrument to be immediately due and payable without prior notice to Borrower,
and Lender may invoke any remedies permitted by PARAGRAPH 27 of this Instrument.
Any attorney's fees and other expenses incurred by Lender in connection with
Borrower's bankruptcy or any of the other aforesaid events shall be additional
indebtedness of Borrower secured by this Instrument pursuant to PARAGRAPH 8
hereof.
19. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER.
(a) Except as provided in SUBPARAGRAPH (c) of this PARAGRAPH 19, upon
the sale or transfer of (i) all or any part of the Property, or any interest
therein, or (ii) beneficial interests in Borrower (if Borrower is not a natural
person or persons but is a corporation, partnership, trust or other legal
entity), Lender may, at Lender's option, declare all of the sums secured by this
Instrument to be immediately due and payable, and Lender may invoke any remedies
permitted by PARAGRAPH 27 of this Instrument.
(b) For purposes of this PARAGRAPH 19, a sale or transfer of a
beneficial interest in Borrower shall be deemed to include, but is not limited
to:
(i) if Borrower or any general partner of Borrower is a
corporation or limited liability company, the
voluntary or involuntary sale, conveyance, transfer
or pledge of a majority of such corporation's or
limited liability company's stock (or the stock of
any corporation directly or indirectly controlling
such corporation or limited liability company by
operation of law or otherwise) or the creation or
issuance
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of new stock by which an aggregate of more than 49%
of such corporation's or limited liability company's
stock shall be vested in a party or parties who are
not now stockholders;
(ii) if Borrower is a limited liability company, the
change, removal or resignation of a managing member;
(iii) if Borrower, or any general partner of Borrower, is a
limited or general partnership, the change, removal
or resignation of a general partner or managing
partner or the transfer or pledge of the partnership
interest of any general partner or managing partner
or any profits or proceeds relating to such
partnership interest;
(iv) if Borrower is a limited partnership, the transfer or
pledge of a majority of the limited partnership
interests which in the aggregate constitute more than
a 49% interest in Borrower, or any profits or
proceeds relating to such limited partnership
interests.
(c) Notwithstanding the foregoing, the following shall not be deemed a
sale or transfer of a beneficial interest in Borrower for purposes of this
PARAGRAPH 19:
(i) a transfer of less than a 49% interest in Borrower,
or any partner, shareholder or member of Borrower, by
devise, descent or by operation of law upon the death
of a partner, member or stockholder of Borrower;
(ii) a transfer of a limited partner, shareholder or
non-managing member interest in Borrower for estate
planning purposes to an immediate family member of
such limited partner, shareholder or member, or a
trust for the benefit of an immediate family member;
or
(iii) a transfer of a general partner or managing member
interest in Borrower for estate planning purposes to
an immediate family member of such partner or member,
or a trust for the benefit of an immediate family
member, subject to obtaining Lender's prior written
consent, which consent shall not be unreasonably
withheld, subject to the criteria set forth in
SUBPARAGRAPH (b) of PARAGRAPH 35 of this Instrument.
See PARAGRAPH 35 of this Instrument.
20. NOTICE. Except for any notice required under applicable law to be given in
another manner, (a) any notice to Borrower provided for in this Instrument or in
the Note shall be given by mailing such notice by certified mail addressed to
Borrower at Borrower's address stated above or at such other address as Borrower
may designate by notice to Lender as provided herein, and (b) any notice to
Lender shall be given by certified mail, return receipt requested, to Lender's
address stated herein or to such other address as Lender may designate by notice
to
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Borrower as provided herein. Any notice provided for in this Instrument or in
the Note shall be deemed to have been given to Borrower or Lender when given in
the manner designated herein.
21. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; AGENTS; CAPTIONS.
The covenants and agreements herein contained shall bind, and the rights
hereunder shall inure to, the respective successors and assigns of Lender and
Borrower, subject to the provisions of PARAGRAPH 19 hereof. All covenants and
agreements of Borrower shall be joint and several. In exercising any rights
hereunder or taking any actions provided for herein, Lender may act through its
employees, agents or independent contractors as authorized by Lender. The
captions and headings of the paragraphs of this Instrument are for convenience
only and are not to be used to interpret or define the provisions hereof.
22. UNIFORM INSTRUMENT; GOVERNING LAW; SEVERABILITY. This form of instrument
combines uniform covenants for national use and non-uniform covenants with
limited variations by jurisdiction to constitute a uniform security instrument
covering real property and related fixtures and personal property. This
Instrument shall be governed by the law of the jurisdiction in which the
Property is located. In the event that any provision of this Instrument or the
Note conflicts with applicable law, such conflict shall not affect other
provisions of this Instrument or the Note which can be given effect without the
conflicting provisions, and to this end the provisions of this Instrument and
the Note are declared to be severable. In the event that any applicable law
limiting the amount of interest or other charges permitted to be collected from
Borrower is interpreted so that any charge provided for in this Instrument or in
the Note, whether considered separately or together with other charges levied in
connection with this Instrument and the Note, violates such law, and Borrower is
entitled to the benefit of such law, such charge is hereby reduced to the extent
necessary to eliminate such violation. The amounts, if any, previously paid to
Lender in excess of the amounts payable to Lender pursuant to such charges as
reduced shall be applied by Lender to reduce the principal of the indebtedness
evidenced by the Note. For the purposes of determining whether any applicable
law limiting the amount of interest or other charges permitted to be collected
from Borrower has been violated, all indebtedness which is secured by this
Instrument or evidenced by the Note and which constitutes interest, as well as
all other charges levied in connection with such indebtedness which constitute
interest, shall be deemed to be allocated and spread over the stated term of the
Note. Unless otherwise required by applicable law, such allocation and spreading
shall be effected in such a manner that the rate of interest computed thereby is
uniform throughout the stated term of the Note.
23. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the right to assert
any statute of limitations as a bar to the enforcement of the lien of this
Instrument or to any action brought to enforce the Note or any other obligation
secured by this Instrument.
24. WAIVER OF MARSHALLING. Notwithstanding the existence of any other security
interest in the Property held by Lender or by any other party, Lender shall have
the right to determine the order in which any or all of the Property shall be
subjected to the remedies provided herein. Lender shall have the right to
determine the order in which any or all portions of the indebtedness secured
hereby are satisfied from the proceeds realized upon the exercise of
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the remedies provided herein. Borrower, any party who consents to this
Instrument and any party who now or hereafter acquires a security interest in
the Property and who has actual or constructive notice hereof hereby waives any
and all right to require the marshalling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein.
25. INTENTIONALLY OMITTED.
26. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION. As part
of the consideration for the indebtedness evidenced by the Note, Borrower hereby
absolutely and unconditionally assigns and transfers to Lender all the rents and
revenues of the Property, including those now due, past due, or to become due by
virtue of any lease or other agreement for the occupancy or use of all or any
part of the Property, regardless of to whom the rents and revenues of the
Property are payable. Borrower hereby authorizes Lender or Lender's agents to
collect the aforesaid rents and revenues and hereby directs each tenant of the
Property to pay such rents to Lender or Lender's agents; provided, however, that
prior to written notice given by Lender to Borrower of the breach by Borrower of
any covenant or agreement of Borrower in this Instrument or any other Loan
Document, Borrower shall collect and receive all rents and revenues of the
Property as trustee for the benefit of Lender and Borrower, to apply the rents
and revenues so collected to the sums secured by this Instrument in the order
provided in PARAGRAPH 3 hereof with the balance, so long as no such breach has
occurred, to the account of Borrower, it being intended by Borrower and Lender
that this assignment of rents constitutes an absolute assignment and not an
assignment for additional security only. Upon delivery of written notice by
Lender to Borrower of the breach by Borrower of any covenant or agreement of
Borrower in this Instrument, and without the necessity of Lender entering upon
and taking and maintaining full control of the Property in person, by agent or
by a court-appointed receiver, Lender shall immediately be entitled to
possession of all rents and revenues of the Property as specified in this
PARAGRAPH 26 as the same become due and payable, including, but not limited to,
rents then due and unpaid, and all such rents shall immediately upon delivery of
such notice be held by Borrower as trustee for the benefit of Lender only;
provided, however, that the written notice by Lender to Borrower of the breach
by Borrower shall contain a statement that Lender exercises its rights to such
rents. Borrower agrees that commencing upon delivery of such written notice of
Borrower's breach by Lender to Borrower, each tenant of the Property shall make
such rents payable to and pay such rents to Lender or Lender's agents on
Lender's written demand to each tenant therefor, delivered to each tenant
personally, by mail or by delivering such demand to each tenant, without any
liability on the part of said tenant to inquire further as to the existence of a
default by Borrower.
Borrower hereby covenants that Borrower has not executed any prior
assignment of said rents, that Borrower has not performed, and will not perform,
any acts or has not executed, and will not execute, any instrument which would
prevent Lender from exercising its rights under this PARAGRAPH 26, and that at
the time of execution of this Instrument there has been no anticipation or
prepayment of any of the rents of the Property for more than one month prior to
the due dates of such
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rents. Borrower covenants that Borrower will not hereafter collect or accept
payment of any rents of the Property more than one month prior to the due dates
of such rents. Borrower further covenants that Borrower will execute and deliver
to Lender such further assignments of rents and revenues of the Property as
Lender may from time to time request.
Upon Borrower's breach of any covenant or agreement of Borrower in this
Instrument, or upon Borrower's breach of any material covenant of Borrower as
landlord or lessor under any lease, Lender shall be entitled to the appointment
of a receiver for the Property, without notice to Borrower or any other person
or entity and Lender may in person, by agent or by a court appointed receiver,
regardless of the adequacy of Lender's security, enter upon and take and
maintain full control of the Property in order to perform all acts necessary and
appropriate for the operation and maintenance thereof including, but not limited
to, the execution, cancellation or modification of leases, the collection of all
rents and revenues of the Property, the enforcement or fulfillment of any terms,
condition or provision of any lease, the making of repairs to the Property and
the execution or termination of contracts providing for the management or
maintenance of the Property, all on such terms as reasonably are deemed best to
protect the security of this Instrument. In the event Lender elects to seek the
appointment of a receiver for the Property upon Borrower's breach of any
covenant or agreement of Borrower in this Instrument, Borrower hereby expressly
consents to the appointment of such receiver. Lender or the receiver shall be
entitled to receive a reasonable fee for so managing the Property.
All rents and revenues collected subsequent to delivery of written
notice by Lender to Borrower of the breach by Borrower of any covenant or
agreement of Borrower in this Instrument shall be applied first to the costs, if
any, of taking control of and managing the Property and collecting the rents,
including, but not limited to, attorney's fees, receiver's fees, premiums on
receiver's bonds, costs of repairs to the Property, premiums on insurance
policies, taxes, assessments and other charges on the Property, and the costs of
discharging any obligation or liability of Borrower as lessor or landlord of the
Property and then to the sums secured by this Instrument. Lender or the receiver
shall have access to the books and records used in the operation and maintenance
of the Property and shall be liable to account only for those rents actually
received. Lender shall not be liable to Borrower, anyone claiming under or
through Borrower or anyone having an interest in the Property by reason of
anything done or left undone by Lender under this PARAGRAPH 26.
If the rents of the Property are not sufficient to meet the costs, if
any, of taking control of and managing the Property and collecting the rents,
any funds expended by Lender for such purposes shall become indebtedness of
Borrower to Lender secured by this Instrument pursuant to PARAGRAPH 8 hereof.
Unless Lender and Borrower agree in writing to other terms of payment, such
amounts shall be payable upon notice from Lender to Borrower requesting payment
thereof and shall bear interest from the date of disbursement at the rate stated
in the Note unless payment of interest at such rate would be contrary to
applicable law, in which event such amounts shall bear interest at the highest
rate which may be collected from Borrower under applicable law.
Any entering upon and taking and maintaining of control of the Property
by Lender or the receiver and any application of rents as provided herein shall
not cure or waive any default hereunder or invalidate any other right or remedy
of Lender under applicable law or provided
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herein. This assignment of rents of
the Property shall terminate at such time as this Instrument ceases to secure
indebtedness held by Lender.
NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as
follows:
27. ACCELERATION; REMEDIES. Upon Borrower's breach of any representation,
covenant or agreement of Borrower in this Instrument, the Note, the
Environmental Indemnity Agreement or any other Loan Document, including, but not
limited to, the covenants to pay when due any sums secured by this Instrument,
Lender, at Lender's option, may declare all of the sums secured by this
Instrument to be immediately due and payable without further demand, and may
invoke any remedies permitted by applicable law or provided herein. Lender shall
be entitled to collect all costs and expenses incurred in pursuing such
remedies, including, but not limited to, attorney's fees and costs of
documentary evidence, abstracts and title reports.
Notwithstanding the foregoing, Lender shall not invoke any remedy
provided hereunder, under the Loan Documents, at law or in equity upon
Borrower's breach of a non-monetary representation, covenant, or agreement of
Borrower in this Instrument, the Note, the Environmental Indemnity Agreement or
any other Loan Document, other than a breach of PARAGRAPHS 5, 19, 32(K), 32(L)
OR 32(N) of this Instrument, or PARAGRAPH 2 of the Environmental Indemnity
Agreement, provided Borrower shall have, on or before the date that is ten (10)
days after Borrower's receipt of notice thereof, cured such default or, if such
default cannot be cured within such ten (10) day period, Borrower shall have
commenced to cure within such ten (10) day period and is taking all actions
required to diligently cure such default and such default is cured on or before
the date that is thirty (30) days after Borrower's receipt of a notice to cure
such default.
28. RELEASE. Upon payment of all sums secured by this Instrument, Lender shall
release this Instrument. Borrower shall pay the recording fees for the release
of this Instrument.
29. INTENTIONALLY OMITTED.
30. NONRECOURSE LOAN. Subject to the qualifications below in this paragraph, the
Borrower shall be liable for payment and performance of all of the obligations,
covenants and agreements of the Borrower under the Note, this Instrument, the
Assignment of Leases and Rents (herein so-called), dated of even date herewith,
executed by Borrower to Lender, the Environmental Indemnity Agreement dated of
even date herewith, executed by Borrower and Lender, and all other instruments
and documents evidencing, securing or governing the terms of the loan (the
"Loan") evidenced by the Note (collectively, the "Loan Documents"), to the full
extent (but only to the extent) of all of the Property and any other items,
property or amounts which are collateral or security for the Loan. If a default
occurs in the timely and proper payment of any portion of such indebtedness or
in the timely performance of any obligations, agreements or covenants, except as
set forth below in this paragraph, neither Borrower, nor any member of Borrower,
nor any partner, member, stockholder, director or officer of any member of
Borrower, shall be personally liable for the repayment of any of the principal
of, interest on, or prepayment fees or late charges, or other charges or fees
due in connection with the Loan, the
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performance of any covenants of Borrower under the Note, this Instrument or any
of the other Loan Documents or for any deficiency judgment which Lender may
obtain after default by Borrower. Notwithstanding the foregoing provisions of
this paragraph or any other agreement, the Borrower shall be fully and
personally liable for any and all: (1) liabilities, costs, losses, damages,
expenses or claims (including, without limitation, any reduction in the value of
the Property or any other items, property or amounts which are collateral or
security for the Loan) suffered or incurred by Lender by reason of or in
connection with (a) any fraud or misrepresentation by the Borrower in connection
with the Loan, including but not limited to any misrepresentation of the
Borrower contained in any Loan Document, (b) any failure by the Borrower to pay
taxes, insurance premiums (except to the extent that such taxes and insurance
premiums are then held by the Lender), assessments, charges for labor or
materials or other charges that can create liens on any portion of the Property,
(c) any misapplication by the Borrower or by any member of the Borrower or by
any partner, member, stockholder, officer or director of any member of the
Borrower of (i) proceeds of insurance covering any portion of the Property, or
(ii) proceeds of the sale or condemnation of any portion of the Property, (d)
any rentals, income, profits, issues and products received by or on behalf of
the Borrower subsequent to the date on which the Lender gives written notice
that a default has occurred under the Loan and not applied to the payment of
principal or interest due under the Note or the payment of operating expenses
(excluding any operator's, manager's or developer's fee paid to the Borrower or
any affiliate of the Borrower) of the Property, (e) any failure by the Borrower
to maintain, repair or restore the Property in accordance with any Loan Document
to the extent not covered by insurance proceeds made available to the Lender,
(f) any failure by the Borrower to deliver to the Lender all unearned advance
rentals and security deposits paid by tenants of the Property received by or on
behalf of the Borrower, and not refunded to or forfeited by such tenants, (g)
any failure by the Borrower to return to, or reimburse the Lender for, all
personalty taken from the Property by or on behalf of the Borrower, except in
accordance with the provisions of this Instrument, and (h) any and all
indemnities given by the Borrower to the Lender set forth in the Environmental
Indemnity Agreement or any other Loan Document in connection with any
environmental matter relating to the Property; and (2) court costs and all
attorneys' fees provided for in any Loan Document. Furthermore, no limitation of
liability or recourse provided above in this paragraph shall (x) apply to the
extent that the Lender's rights of recourse to the Property are suspended,
reduced or impaired by or as a result of any act, omission or misrepresentation
of the Borrower or any other party now or hereafter liable for any part of the
Loan and accrued interest thereon, or by or as a result of any case, action,
suit or proceeding to which the Borrower or any such other party, voluntarily
becomes a party; or (y) constitute a waiver, forfeiture, abrogation or
limitation of or on any right accorded by any law establishing a debtor relief
proceeding, including, but not limited to, Title 11, U.S. Code, which right
provides for the assertion in such debtor relief proceeding of a deficiency
arising by reason of the insufficiency of collateral notwithstanding an
agreement of the Lender not to assert such deficiency.
31. REPRESENTATIONS OF BORROWER. The Borrower hereby represents and warrants to
Lender the following:
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(a) Borrower is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Ohio. There are no
proceedings or actions pending, threatened or contemplated for the liquidation,
termination or dissolution of Borrower.
(b) The lease to Metatec International, Inc. (the "Existing Lease") is
the only lease affecting the Property; Borrower has delivered to Lender a true,
correct, and complete copy of the Existing Lease; and there are no other leases,
assignments, modifications, extensions, renewals, or other agreements of any
kind whatsoever (written or oral) outstanding with respect to the Existing
Lease.
(c) Unless otherwise specified:
(i) the Existing Lease is in full force and effect;
(ii) Borrower has not given any notice of default to the
tenant under the Existing Lease (the "Existing
Tenant") which remains uncured;
(iii) the Existing Tenant has no set off, claim or defense
to the enforcement of the Existing Lease;
(iv) the Existing Tenant is not in arrears in the payment
of rent, additional rent or any other charges
whatsoever due under the Existing Lease; and, to the
knowledge of Borrower, is not materially in default
in the performance of any other obligation of the
Existing Tenant under the Existing Lease; and
(v) except for the work described in the
Completion/Repair and Security Agreement of even date
with the Note, by and between Borrower and Lender,
Borrower has completed all work or alterations
required of the landlord or lessor under the Existing
Lease; and all of the other obligations of landlord
or lessor under the Existing Lease have been
performed.
(d) Borrower has not granted the Existing Tenant any rent concessions
(whether in form of cash contributions, work agreements, assumption of the
Existing Tenant's other obligations, or otherwise) or extensions of time
whatsoever.
(e) There are no legal proceedings commenced (or, to the best of the
knowledge of the Borrower, threatened) against Borrower by the Existing Tenant;
no rental in excess of one month's rent has been prepaid under the Existing
Lease; the Existing Lease is valid and binding on the parties thereto in
accordance with its terms; and the execution of this Instrument and the other
Loan Documents will not constitute an event of default under the Existing Lease.
(f) Borrower currently holds the security deposit (if any) specified in
the Existing Lease and has not given any credit, refund, or set off against such
security deposit to any person.
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(g) There are no residential units in the Property, and no portion of
the Property is an apartment or other unit subject to any form or rent control,
stabilization or regulation; and no person presently occupies any part of the
Property for dwelling purposes.
(h) Except for Borrower and the Existing Tenant, there are no persons
or entities occupying space in the Property.
(i) Except as specifically listed in the schedule of exceptions to
coverage in the title policy insuring Lender's interest in the Property,
Borrower is now in possession of the Property; Borrower's possession of the
Property is peaceable and undisturbed; Borrower does not know any facts by
reason of which any claim to the Property, or any part thereof, might arise or
be set up adverse to Borrower; and the Property is free and clear of (i) any
lien for taxes (except real property taxes not yet due and payable for the
calendar year in which this Instrument is being executed), and (ii) any
easements, rights-of-way, restrictions, encumbrances, liens or other exceptions
to title by mortgage, decree, judgment, agreement, instrument, or, to the
knowledge of Borrower, proceeding in any court.
(j) Except for certain work described in the above-referenced
Completion/Repair and Security Agreement, all charges for labor, materials or
other work of any kind furnished in connection with the construction,
improvement, renovation or rehabilitation of the Property or any portion thereof
have been paid in full, and no unreleased affidavit claiming a lien against the
Property, or any portion thereof, for the supplying of labor, materials or
services for the construction of improvements on the Property has been executed
or recorded in the mechanic's lien or other appropriate records in the county in
which the Property is located.
(k) The Property and the current and contemplated uses of the Property
are in compliance with all applicable federal, state and municipal laws, rules,
regulations and ordinances, applicable restrictions, zoning ordinances, building
codes and regulations, building lines and easements, including, without
limitation, federal and state environmental protection law and the Americans
with Disabilities Act of 1990, the Fair Housing Amendments Act of 1988, all
state and local laws or ordinances related to handicapped access, and any
statute, rule, regulation, ordinance, or order of governmental bodies or
regulatory agencies, or any order or decree of any court adopted or enacted with
respect thereto (collectively, "Applicable Laws"); no governmental authority
having jurisdiction over any aspect of the Property has made a claim or
determination that there is any such violation; the Property is not included in
any area identified by the Secretary of Housing and Urban Development pursuant
to the Flood Disaster Protection Act of 1973, as amended, as an area having
special flood hazards; and all permits, licenses and the like which are
necessary for the operation of the Property have been issued (except for
occupancy permits for Building Two, as defined in the above-referenced
Completion/Repair and Security Agreement) and are in full force and effect.
(l) There have been no material adverse changes, financial or
otherwise, in the condition of Borrower from that disclosed to Lender in the
loan application submitted to Lender by Borrower, or in any supporting data
submitted in connection with the Loan, and all of the
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information contained therein was true and correct when submitted and is now
substantially and materially true and correct on the date hereof.
(m) There is no claim, litigation or condemnation proceeding pending,
or, to the knowledge of the Borrower, threatened, against the Property or
Borrower, which would affect the Property or Borrower's ability to perform its
obligations in the connection with the Loan.
(n) Borrower does not own any real property or assets other than the
Property and does not operate any business other than the management and
operation of the Property.
(o) No proceedings in bankruptcy or insolvency has ever been instituted
by or against Borrower or any affiliate thereof, and no such proceeding is now
pending or contemplated.
(p) Borrower is, and if there are any general partners or members of
Borrower, such partners or members are, solvent pursuant to the laws of the
United States, as reflected by the entries in Borrower's books and records and
as reflected by the actual facts.
(q) The Loan Documents have been duly authorized, executed and
delivered by Borrower and constitute valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their respective terms. No
approval, consent, order or authorization of any governmental authority and no
designation, registration, declaration or filing with any governmental authority
is required in connection with the execution and delivery of the Note, this
Instrument or any other Loan Document.
(r) The execution and delivery of the Loan Documents will not violate
or contravene in any way the articles of incorporation or bylaws or partnership
agreement, articles of organization or operating agreement as the case may be,
of Borrower or any indenture, agreement or instrument to which Borrower is a
party or by which it or its property may be bound, or be in conflict with,
result in a breach of or constitute a default under any such indenture,
agreement or other instrument, result in the creation or imposition of any lien,
charge or encumbrance of any nature whatsoever upon any of the property or
assets of Borrower, except as contemplated by the provisions of such Loan
Documents, and no action or approval with respect thereto by any third person is
required.
(s) No part of the Property is all or a part of Borrower's homestead.
(t) The Property is served by all utilities required for the current or
contemplated use thereof. All utility service is provided by public utilities
and the Property has accepted or is equipped to accept such utility service.
(u) All public roads and streets necessary for service of and access to
the Property for the current or contemplated use thereof have been completed,
are serviceable and all-weather and are physically and legally open for use by
the public.
(v) The Property is serviced by public water and sewer systems.
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(w) The Property is free from damage caused by fire or other casualty.
(x) All liquid and solid waste disposal, septic and sewer systems
located on the Property are in a good and safe condition and repair and in
compliance with all Applicable Laws.
32. BORROWER'S ADDITIONAL COVENANTS. Borrower hereby covenants, agrees and
undertakes to:
(a) fulfill and perform all of Borrower's obligations as landlord or
lessor under any lease; will promptly send Lender copies of any notices of
default received from the tenant under any lease; and will enforce (short of
terminating such lease) the performance by the tenant of the tenant's
obligations under any lease;
(b) not make, enter into, execute, cancel, amend or modify any lease
without the prior written consent of Lender;
(c) not approve any assignment of a lease, of any sublease or
underlease, without the prior written consent of Lender;
(d) not cancel or modify any guaranty of a lease, or release any
security deposit or letter of credit constituting security under a lease,
without the prior written consent of Lender;
(e) not accept prepayment of any installment of rent from any tenants
of the Property for a period of more than one (1) month in advance;
(f) not further assign the whole (or any part of) the leases or the
rents;
(g) except for completion of Building Two, not undertake or commence
any alterations of any improvements on the Property the cost of which is in
excess of five percent (5%) of the then original principal amount of the Note,
without the prior written consent of Lender;
(h) from time to time, at the request of Lender, (i) promptly correct
any defect, error or omission which may be discovered in the contents of this
Instrument or in any other Loan Document or in the execution or acknowledgement
thereof; (ii) execute, acknowledge, deliver and record and/or file such further
documents or instruments (including, without limitation, further mortgages,
security agreements, financing statements, continuation statements, assignments
of rents or leases and environmental indemnity agreements) and perform such
further acts and provide such further assurances as reasonably may be necessary,
desirable or proper, in Lender's opinion, to carry out more effectively the
purposes of this Instrument and such other instruments and to subject to the
liens and security interests hereof and thereof any property intended by the
terms hereof or thereof to be covered hereby or thereby, including specifically,
but without limitation, any renewals, additions, substitutions, replacements, or
appurtenances to the Property; provided that such documents or instruments do
not materially
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increase Borrower's liability under the Loan Documents; and (iii) execute,
acknowledge, deliver, procure, and file and/or record any document or instrument
(including specifically, but without limitation, any financing statement)
reasonably deemed advisable by Lender to protect the liens and the security
interests herein granted against the rights or interests of third persons;
provided that such documents or instruments do not materially increase
Borrower's liability under the Loan Documents. Borrower will pay all reasonable
costs connected with any of the foregoing in this SUBPARAGRAPH (h);
(i) continuously maintain Borrower's existence and right to do business
in the State of Ohio;
(j) at any time any law shall be enacted imposing or authorizing the
imposition of any tax upon this Instrument, or upon any rights, titles, liens or
security interests created hereby, or upon the obligations secured hereby or any
part thereof, immediately pay all such taxes; provided that, if such law as
enacted makes it unlawful for Borrower to pay such tax, Borrower shall not pay
nor be obligated to pay such tax, and in the alternative, Borrower may, in the
event of the enactment of such a law, and must, if it is unlawful for Borrower
to pay such taxes, prepay the obligations secured hereby in full within sixty
(60) days after demand therefor by Lender;
(k) not execute or deliver any other deed of trust, mortgage or pledge
of any type covering all or any portion of the Property;
(l) not acquire any real property or assets (other than the Property)
or operate any business other than the management and operation of the Property
during the term of the Loan;
(m) not permit any drilling or exploration for or extraction, removal
or production of any mineral, natural element, compound or substance from the
surface or subsurface of the Property regardless of the depth thereof or the
method of mining or extraction thereof;
(n) not change its name, identity, structure or employer identification
number during the term of the Loan;
(o) pay on demand all reasonable and bona fide out-of-pocket costs,
fees and expenses and other expenditures, including, but not limited to,
reasonable attorneys' fees and expenses, paid or incurred by Lender to third
parties incident to this Instrument or any other Loan Document (including, but
not limited to, reasonable attorneys' fees and expenses in connection with the
negotiation, preparation and execution hereof and of any other Loan Document and
any amendment hereto or thereto, any release hereof, any consent, approval or
waiver hereunder or under any other Loan Document, the making of any advance
under the Note, and any suit to which Lender is a party involving this
Instrument or the Property) or incident to the enforcement of the obligations
secured hereby or the exercise of any right or remedy of Lender under any Loan
Document; and
(p) maintain and keep the Property in compliance with all Applicable
Laws.
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33. INTENTIONALLY OMITTED.
34. INTENTIONALLY OMITTED.
35. ASSUMABILITY.
(a) So long as (i) Borrower is not in default under any of the terms of
the Note, this Instrument or any other Loan Document, and (ii) no situation
exists which with the passage of time or the giving of notice or both would
constitute a default under the Note, this Instrument or any other Loan Document,
in the event Borrower desires to transfer all of the Property to another party
(the "Transferee") and have the Transferee assume all of Borrower's obligations
under the Note, this Instrument and all of the other Loan Documents
(collectively, the "Transfer and Assumption"), Borrower, subject to the terms of
this paragraph, may make a written application to Lender for Lender's consent to
the Transfer and Assumption, subject to the conditions set forth in SUBPARAGRAPH
(B) of this PARAGRAPH 35. Together with such written application (and afterwards
if requested by Lender), Borrower will submit to Lender true, correct and
complete copies of any and all information and documents of any kind requested
by Lender concerning the Property, Transferee and/or Borrower, together with any
review fee required by Lender, in Lender's sole discretion.
(b) Lender shall not unreasonably withhold its consent to a Transfer
and Assumption provided and upon the condition that:
(iv) Lender receives an opinion from counsel acceptable to
Lender that (x) such Transfer and Assumption shall
not affect, in any way, the enforceability of the
Loan Documents or the lien status, and (y) that the
Transferee complies in all respects with the
provisions of PARAGRAPH 31(N) and PARAGRAPH 32(L) of
this Instrument and such other conditions concerning
the organizational structure of the Transferee as
were required by Lender at the time of the making of
the Loan;
(v) Borrower has submitted to Lender true, correct and
complete copies of any and all information and
documents of any kind requested by Lender concerning
the Property, Transferee and/or Borrower;
(vii) the Transferee, in Lender's sole judgment, has
sufficient experience in managing assets similar in
size and type to the Property;
(vii) in Lender's sole judgment, the Transferee and the
partners, members or shareholders of the Transferee
are financially sound or have sufficient financial
resources to manage the Property for the term of the
Loan;
(viii) the Loan has been placed, or Lender plans to place
the Loan, in an offering of Securities (as defined in
PARAGRAPH 37) and Lender receives written
confirmation from the rating agencies that the
Transfer and
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Assumption will not result in any downgrade,
qualification or withdrawal of the ratings assigned
to the pool and assets in which the Loan has been
placed; and
(ix) Borrower has paid any review fee required by Lender.
(c) If Lender consents to the Transfer and Assumption, the Transferee
and/or Borrower as the case may be, shall deliver the following to Lender:
(x) Borrower shall deliver to Lender an assumption fee in
the amount of one percent (1%) of the then unpaid
principal balance of the Loan;
(xi) Borrower and Transferee shall execute and deliver to
Lender any and all documents required by Lender, in
form and substance required by Lender, in Lender's
sole discretion (the "Assumption Documents");
(xii) Borrower shall cause to be delivered to Lender, an
endorsement to the mortgagee policy of title
insurance then insuring the lien created by this
Instrument in form and substance acceptable to
Lender, in Lender's sole discretion (the
"Endorsement"); and
(xiii) Borrower shall deliver to Lender a payment in the
amount of all costs incurred by Lender in connection
with the Transfer and Assumption, including but not
limited to, Lender's attorneys fees and expenses, all
recording fees for the Assumption Documents, and all
fees payable to the title company for the delivery to
Lender of the Endorsement.
(d) Notwithstanding anything contained in this paragraph to the
contrary, (x) under no circumstances may the Property and Loan be transferred
and assumed by any party under the terms of this paragraph more than once during
the entire term of the Loan and (y) except based on Lender's written agreement
to the Transfer and Assumption and Borrower's and Transferee's compliance with
all of the terms and provisions of this paragraph, the terms and provisions of
this paragraph shall in no way amend or modify the terms and provisions
contained in PARAGRAPH 19 of this Instrument.
36. WAIVER OF JURY TRIAL. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT THE BORROWER MAY HAVE TO A TRIAL BY JURY IN
RESPECT TO ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN
CONJUNCTION WITH THE NOTE, THIS INSTRUMENT, ANY OTHER LOAN DOCUMENT, ANY OTHER
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
EITHER PARTY.
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37. TRANSFER OF LOAN. Lender may, at any time, sell, transfer or assign the
Note, this Instrument and the Loan Documents, or any part thereof, and any or
all servicing rights with respect thereto, or grant participations therein or
issue mortgage pass-through certificates or other securities evidencing a
beneficial interest in a rated or unrated public offering or private placement
(the "Securities"). Lender may forward to each purchaser, transferee, assignee,
servicer, participant, investor in such Securities or any rating agency rating
such Securities (singularly, an "Investor," and collectively, the "Investors")
and each prospective Investor, all documents and information which Lender now
has or may hereafter acquire relating to the Loan and to Borrower, any
guarantor, any indemnitors and/or the Property, whether furnished by Borrower,
any guarantor, any indemnitors or otherwise, as Lender determines necessary or
desirable. Borrower shall furnish and Borrower consents to Lender furnishing to
such Investors or such prospective Investors or rating agency any and all
information concerning the Property, the leases, the financial condition of
Borrower, any guarantor and any indemnitor as may be requested by Lender, any
Investor or any prospective Investor or rating agency in connection with any
sale, transfer or participation interest.
This Instrument may be executed in any number of duplicate originals
and each duplicate original shall be deemed to be an original.
IN WITNESS WHEREOF, Borrower has executed this Instrument or has caused
the same to be executed by its representatives thereunto duly authorized.
Signed and acknowledged META HOLDINGS, LLC
in the presence of:
By META Management, LLC, Sole
Member
/s/ Xxxxxx X. DeDent
-------------------------------------- By: /s/ Xxxxx Xxxxxxx
Signature ------------------------------
Xxxxxx X. DeDent Name: Xxxxx Xxxxxxx
-------------------------------------- ----------------------------
Printed Name
Title: Secretary and Treasurer
/s/ Xxxxxx X. Xxxxxx ---------------------------
--------------------------------------
Signature
Xxxxxx X. Xxxxxx
--------------------------------------
Printed Name
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STATE OF OHIO,
COUNTY OF FRANKLIN, SS:
On this 23rd day of July, 1999, before me, a notary public in and for
said County and State, personally appeared Xxxxx Xxxxxxx, known to me or
satisfactorily identified to be the person who as Secretary and Treasurer of
META Management, LLC, the sole member of META Holdings, LLC, the limited
liability company which signed the foregoing instrument as "Borrower," who being
first duly sworn, acknowledged to me that he/she did sign the foregoing
instrument on behalf of Borrower in such capacity, being duly authorized, and
that the same is the free act and deed of Borrower and his/her free act and
deed.
WITNESS my hand and notarial seal.
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Notary Public
THIS INSTRUMENT PREPARED BY:
Xxxxxx X. Xxxxxx, Esq.
Porter, Wright, Xxxxxx & Xxxxxx
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
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EXHIBIT A
Property Description
