RECORDING REQUESTED BY
AND WHEN RECORDED
RETURN TO:
Xxxx xxx Xxxxx, Esq. Tax Map Nos.: 0280000001260
Xxxxxx Xxxxxx Xxxxx & Xxxx LLP 0280000000700
0000 X Xxxxxx, X.X. 0000000000000
Washington, D.C. 20005 Amount Secured Hereby: $43,950,000.00
Prepared outside the Commonwealth
of Virginia:
DEED OF TRUST, ASSIGNMENT OF LEASES
AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING (as the same may be amended, restated, extended, supplemented
or otherwise modified from time to time, the "Mortgage"), is made the as of the
6th day of September, 2002, by CROSSWAYS ASSOCIATES LLC, a Delaware limited
liability company, having its principal place of business at 0000 Xxxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 ("Mortgagor"), to XXXXXXX X. XXXXX, having
an address at 0000 Xxxxx Xxxx, XxXxxx, Xxxxxxxx 00000 ("Trustee"), the trustee
hereunder and to and for the benefit of SUBURBAN CAPITAL MARKETS, INC., a
Maryland corporation, having its place of business at 00000 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxx, XX 00000-0000 (together with its successors and assigns,
"Mortgagee"), the beneficiary hereunder.
W I T N E S S E T H:
To secure (A) the payment of an indebtedness in the principal sum of
TWENTY-SIX MILLION NINE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($26,950,000.00), lawful money of the United States of America, to be paid with
interest, with the balance of the indebtedness, if not sooner paid, due and
payable on September 1, 2012, (the "Maturity Date") according to that certain
Fixed Rate Note dated of even date hereof made by Xxxxxxxxx to Mortgagee (the
note together with all extensions, renewals or modifications thereof being
hereinafter
collectively called the "Note") and all other sums due hereunder, or otherwise
due under the Loan Documents (as defined in the Note) (said indebtedness,
interest and all sums due hereunder and under the Note and any other Loan
Documents being collectively called the "Debt"), and all of the agreements,
covenants, conditions, warranties, representations and other obligations (other
than to repay the Debt) made or undertaken by Xxxxxxxxx or any other person or
entity to Mortgagee or others as set forth in the Loan Documents (the
"Obligations"), and (B) the payment of an indebtedness in the principal sum of
$17,000,000.00) in lawful money of the United States of America, to be paid with
interest according to that certain Fixed Rate Note of even date herewith in the
amount of $17,000,000.00 made by Newington Terminal Associates LLC, a Delaware
limited liability company (the "Other Borrower") to the order of Mortgagee (as
the same may be amended modified, supplemented, extended, restated or
supplemented from time to time, the "Other Note") that evidences the other loan
in the original principal amount of $17,000,000.00 made contemporarily herewith
by Mortgagee to the Other Borrower (the "Other Loan"), and which Other Note is
also secured by, among other things, that certain Deed of Trust, Assignment of
Leases and Rents, Security Agreement and Fixture Filing of even date herewith in
the amount of $17,000,000.00 (as the same may be amended modified, supplemented,
extended, restated or supplemented from time to time, the "Other Mortgage")
given by the Other Borrower for the use and benefit of Mortgagee, covering the
fee estate of the Other Borrower in certain premises more particularly described
in Exhibit B hereto (the "Other Premises"), and all other sums otherwise due
under the Loan Documents (as defined in the Other Note, and henceforth referred
to as the "Other Loan Documents"); said indebtedness and all other sums due
under the Other Note and the Other Loan Documents being referred to as the
"Related Debt," Mortgagor has mortgaged, given, granted, bargained, sold,
alienated, conveyed, confirmed, pledged, assigned, and hypothecated and by these
presents does hereby mortgage, give, grant, bargain, sell alien, enfeoff,
convey, confirm, pledge, assign and hypothecate unto Mortgagee the real property
described in Exhibit A attached hereto (the "Premises") and the buildings,
structures, fixtures, additions, enlargements, extensions, modifications,
repairs, replacements and improvements now or hereafter located thereon (the
"Improvements");
TOGETHER WITH: all right, title, interest and estate of Xxxxxxxxx now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements together with the
following property, rights, interests and estates being hereinafter described
are collectively referred to herein as the "Mortgaged Property"):
(a) all easements, rights-of-way, strips and gores of land,
streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, and all estates, rights,
titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of any
street, road or avenue, opened or proposed, in front of or adjoining the
Premises, to the center line thereof and all the estates, rights, titles,
interests, dower and rights, of dower, courtesy and rights, of courtesy,
property, possession, claim and demand whatsoever, both at law and in equity, of
Mortgagor of, in and to the Premises and the Improvements and every part and
parcel thereof, with the appurtenances thereto;
2
(b) all machinery, equipment, fixtures (including but not limited
to all heating, ventilation, air conditioning, plumbing, lighting,
communications and elevator fixtures) and other property of every kind and
nature, whether tangible or intangible, whatsoever owned by Mortgagor, or in
which Mortgagor has or shall have an interest, now or hereafter located upon the
Premises and the Improvements, or appurtenant thereto, and usable in
connection with the present or future operation and occupancy of the Premises
and the Improvements and all building equipment, materials and supplies of any
nature whatsoever owned by Mortgagor, or in which Mortgagor has or shall have an
interest, now or hereafter located upon the Premises and the Improvements, or
appurtenant thereto, or usable in connection with the present or future
operation, enjoyment and occupancy of the Premises and the Improvements
(hereinafter collectively called the "Equipment"), including the proceeds of any
sale or transfer of the foregoing, and the right, title and interest of
Mortgagor in and to any of the Equipment which may be subject to any security
interests, as defined in the Uniform Commercial Code, as adopted and enacted by
the state or states where any of the Mortgaged Property in located (the "Uniform
Commercial Code") superior in lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Mortgaged Property, whether
form the exercise of the right of eminent domain or condemnation (including but
not limited to any transfer made in lieu of or in anticipation of the exercise
of said rights), or for a change of grade, or for any other injury to or
decrease in the value of the Mortgaged Property;
(d) all leases and subleases (including, without limitation, all
guarantees, letter of credit rights and other supporting obligations in respect
thereof) and other agreements or arrangements heretofore or hereafter entered
into affecting the use, enjoyment or occupancy of, or the conduct of any
activity upon or in, the Premises and the Improvements, including any
extensions, renewals, modifications or amendments thereof (the "Leases") and all
rents, rent equivalents (including room revenues, if applicable), moneys payable
as damages or in lieu of rent or rent equivalents, royalties (including, without
limitation, all oil and gas or other mineral royalties and bonuses), income,
receivables, receipts, revenues, deposits (including, without limitation,
security, utility and other deposits), accounts (including deposit accounts),
cash, issues, profits, charges for services rendered, and other consideration of
whatever form or nature received by or paid to or for the account of or benefit
of Mortgagor or its agents or employees from any and all sources arising from or
attributable to the Premises and the Improvements (the "Rents"), together with
all proceeds from the sale or other disposition of the Leases and the right to
receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance
policies covering the Mortgaged Property, including, without limitation, the
right to receive and apply the proceeds of any insurance, judgments, or
settlements made in lieu thereof, for damage to the Mortgaged Property or any
part thereof;
(f) the right, in the name and on behalf of Xxxxxxxxx, to appear
in and defend any action or proceeding brought with respect to the Mortgaged
Property and to commence any action or proceeding to protect the interest of
Mortgagee in the Mortgaged Property or any part thereof;
3
(g) all accounts, escrows, reserves, documents, records,
instruments, chattel paper (including both tangible chattel paper and electronic
chattel paper), claims, financial assets, investment property, letter of credit
rights, supporting obligations, deposits and general intangibles (including
payment intangibles and software), as the foregoing terms are defined in the
Uniform Commercial Code, and all franchises, trade names, trademarks, symbols,
service marks, books, records, plans, specifications, designs, drawings,
permits, consents, licenses, franchises, management agreements, contracts,
contract rights (including, without limitation, any contract with any architect
or engineer or with any other provider of goods or services for or in connection
with any construction, repair, or other work upon the Mortgaged Property),
approvals, actions, refunds or real estate taxes and assessments (and any other
governmental impositions related to the Mortgaged Property), and causes of
action that now or hereafter relate to, are derived from or are used in
connection with the Mortgaged Property, or the use, operation, management,
improvement, alteration, repair, maintenance, occupancy or enjoyment thereof or
the conduct of any business or activities thereon;
(h) any and all proceeds and products of any of the foregoing and
any and all other security and collateral of any nature whatsoever, now or
hereafter given for the repayment of the Debt and the performance of Mortgagor's
obligations under the Loan Documents, including (without limitation) the Tax and
Insurance Escrow Fund (as hereinafter defined), the Replacement Reserve Fund (as
hereinafter defined), and the other Collateral Accounts (as defined in the Cash
Management Agreement dated as of the date hereof by and between Mortgagor and
Mortgagee ( the "Cash Management Agreement") and any other escrows set forth in
the Loan Documents;
(i) all accounts receivable, contract rights, interests, estates
or other claims, both in law and in equity, which Xxxxxxxxx now has or may
hereafter acquire in the Mortgaged Property or any part thereof; and
(j) all rights which Mortgagor now has or may hereafter acquire,
to be indemnified and/or held harmless from any liability, loss, damage, cost or
expense (including, without limitation, attorneys' and paralegals' fees and
disbursements) relating to the Mortgaged Property or any part thereof.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the use and benefit of Mortgagee, and the successors and assigns of
Mortgagee, FOREVER, and Xxxxxxxxx does hereby bind itself and its successors and
assigns to warrant and forever defend the Mortgaged Property unto Mortgagee, its
successors and assigns against every person whomsoever lawfully claiming, or to
claim the same, or any part thereof;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if both (a) Mortgagor shall well and truly pay to Mortgagee the Debt at the time
and in the manner provided in the Note and this Mortgage and shall well and
truly abide by and comply with each and every covenant and condition set forth
herein and in the Note in a timely manner, and (b) the Other Borrower shall well
and truly pay to Mortgagee the Related Debt at the time and in the manner
provided in the Other Note and the Other Mortgage, and shall well and truly
abide by and comply with each and every covenant and conditions set forth in the
Other Mortgage and the Other Note in a timely manner, these presents and the
estate hereby granted shall cease, terminate and be void;
4
AND Xxxxxxxxx represents and warrants to and covenants and agrees with
Mortgagee as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Xxxxxxxxx shall pay the Debt at the time and in the manner provided
in the Note and in this Mortgage. Mortgagor will duly and punctually perform all
of the covenants, conditions and agreements contained in the Note, this Mortgage
and the other Loan Documents all of which covenants, conditions and agreements
are hereby made a part of this Mortgage to the same extent and with the same
force as if fully set forth herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor has good,
marketable and insurable title to the Mortgaged Property and has the right to
mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm, pledge,
assign and hypothecate the same and that Mortgagor possesses an unencumbered fee
estate in the Premises and the Improvements and that it owns the Mortgaged
Property free and clear of all liens, encumbrances and charges whatsoever except
for those exceptions shown in the title insurance policy insuring the lien of
this Mortgage ("Permitted Encumbrances"). Xxxxxxxxx represents and warrants that
none of the Permitted Encumbrances will materially and adversely affect (a)
Xxxxxxxxx's ability to pay in full the Debt, (b) the use of the Mortgaged
Property for the use currently being made thereof, (c) the operation of the
Mortgaged Property, or (d) the value of the Mortgaged Property. Mortgagor shall
forever warrant, defend and preserve such title and the validity and priority of
the lien of this Mortgage and shall forever warrant and defend the same to
Mortgagee against the claims of all persons whomsoever.
3. Insurance, (a) Mortgagor, at its sole cost and expense, will
keep the Mortgaged Property insured during the entire term of this Mortgage for
the mutual benefit of Mortgagor and Mortgagee against loss or damage by fire,
lightning, wind and such other perils as are included in a standard "all-risk"
or "special causes of loss" form and against loss or damage by all other risks
and hazards covered by a standard extended coverage insurance policy including,
without limitation, riot and civil commotion, vandalism, malicious mischief,
burglary and theft. Such insurance shall be in an amount equal to the greatest
of (i) the then full replacement cost of the Improvements and Equipment, without
deduction for physical depreciation, (ii) the outstanding principal balance of
the Loan (as such term is defined in the Note), and (iii) such amount that the
insurer would not deem Mortgagor a co-insurer under said policies. The policies
of insurance carried in accordance with this section shall be paid annually in
advance and shall contain a "Replacement Cost Endorsement" with a waiver of
depreciation and an "Agreed Amount Endorsement" The policies shall have a
deductible no greater than $25,000 unless agreed to by Mortgagee.
(b) Mortgagor, at its sole cost and expense, for the
mutual benefit of Mortgagor and Mortgagee, shall also obtain and maintain during
the entire term of this Mortgage the following Policies:
(i) Flood insurance if any part of the Mortgaged Property
is located in an area identified by the Federal Emergency Management
Agency as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance
Act of 1968, the Flood Disaster Protection Act of 1973 or the National
Flood
5
Insurance Reform Act of 1994 (and any amendment or successor act
thereto) in an amount at least equal to the lesser of (A) the full
replacement cost of the Improvements and the Equipment within the parts
of the Mortgaged Property so affected, (B) the outstanding principal
amount of the Note or (C) the maximum limit of coverage available with
respect to the Improvements and Equipment under said Act. Mortgagor
hereby agrees to pay Mortgagee such fees as may be permitted under
applicable law for the reasonable costs incurred by Mortgagee in
determining, from time to time, whether the Mortgaged Property is then
located within such area.
(ii) Comprehensive General Liability or Commercial General
Liability insurance, including a broad form comprehensive general
liability endorsement and coverage for broad form property damage,
contractual damages, personal injuries (including death resulting
therefrom) and a liquor liability endorsement if liquor is sold on the
Mortgaged Property, containing minimum limits of liability of $1
million for both injury to or death of a person and for property damage
per occurrence and $2 million in the aggregate, and such other
liability insurance reasonably requested by Mortgagee. In addition, at
least $3 million excess and/or umbrella liability insurance shall be
obtained and maintained for any and all claims, including all legal
liability imposed upon Mortgagor and all court costs and attorneys'
fees incurred in connection with the ownership, operation and
maintenance of the Mortgaged Property.
(iii) Rental loss and/or business interruption insurance
for a period of 12 months in an amount equal to the greater of (A)
estimated gross revenues from the operations of the Mortgaged Property
over 12 months or (B) the projected operating expenses (including
stabilized management fees, applicable reserve deposits, and debt
service) for the maintenance and operation of the Mortgaged Property
over 12 months. The amount of such rental loss insurance shall be
adjusted from time to time during the term of this Mortgage as and when
new Leases and renewal Leases are entered into in accordance with the
terms of this Mortgage, to reflect all adjusted rent and adjusted
additional rent payable by all of the tenants under such Leases.
(iv) Insurance against loss or damage from explosion of
steam boilers, air conditioning equipment, high pressure piping,
machinery and equipment, pressure vessels or similar apparatus now or
hereafter installed in the Improvements and including broad form boiler
and machinery insurance (without exclusion for explosion) covering all
boilers or other pressure vessels, machinery and equipment located in,
on, or about the Premises and the Improvements. Coverage is required in
an amount at least equal to the full replacement cost of such equipment
and the building or buildings housing same. Coverage must extend to
electrical equipment, sprinkler systems, heating and air conditioning
equipment, refrigeration equipment and piping.
(V) If the mortgaged Property includes commercial
property, worker's compensation insurance with respect to any employees
of Xxxxxxxxx, as required by any governmental authority or legal
requirement.
6
(vi) During any period of repair or restoration, builder's
"all risk" insurance in an amount equal to not less than the full
insurable value of the Mortgaged Property against such risks
(including, without limitation, fire and extended coverage and collapse
of the Improvements to agreed limits) as Mortgagee may request, in form
and substance acceptable to Mortgagee.
(vii) Ordinance or law coverage to compensate for the cost
of demolition, increased cost of construction, and loss to any
undamaged portions of the Improvements, if the current uses of the
Mortgaged Property or the Improvements themselves are or become
"nonconforming" pursuant to the applicable zoning regulations, or full
rebuildability following casualty is otherwise not permitted under such
zoning regulations.
(viii) Such other insurance as may from time to time be
reasonably required by Mortgagee in order to protect its interests.
The insurance policies required under subsections 3(a) and 3(b) (iii)
above shall be required to cover perils of terrorism and acts of terrorism so
long as such insurance coverage is available at commercially reasonable rates
(as determined by Mortgagee in its sole but reasonable discretion); provided
however, if a Rating Agency in connection with a Secondary Market Transaction
(as hereinafter defined) or in connection with its rating surveillance of the
certificates issued pursuant to a Secondary Market Transaction would not provide
or maintain a rating (including, without limitation, any so-called "shadow"
rating) for any portion of such certificates or the Loan which would otherwise
be available but for the failure to maintain terrorism insurance with respect to
the Loan(or the Loan among other loans included in the Secondary Market
Transaction), Mortgagor will so maintain such insurance of obtainable from any
insurer or any governmental authority (for the maximum amount obtainable up to
the amounts set forth in subsection 3(a) and 3(b) (iii) above and with
deductibles no greater than those provided in subsection 3(a) above).
(c) All Policies (i) shall be issued by companies
approved by Mortgagee and licensed to do business in the state where the
Mortgaged Property is located, with a claims paying ability rating of "AA" or
better by Standard & Poor's Ratings Services and a rating of "A:IX" or better in
the current Best's Insurance Reports; (ii) shall be maintained throughout the
term of this Mortgage without cost to Mortgagee; (iii) shall contain a
Non-Contributory Standard Mortgagee Clause and a Lender's Loss Payable
Endorsement, or their equivalents, naming Mortgagee as the person to which all
payments made by such insurance company shall be paid; (iv) shall contain a
waiver of subrogation against Mortgagee; (v) shall be assigned and the originals
delivered to Mortgagee (including certified copies of the policies in effect on
the date hereof within thirty(30) days after the closing of the Loan); (vi)
shall contain such provisions as Mortgagee deems reasonably necessary or
desirable to protect its interest including, without limitation, endorsements
providing that neither Mortgagor, Mortgagee nor any other party shall be a
co-insurer under said Policies and that Mortgagee shall receive at least
thirty(30) days prior written notice of any modification or cancellation; (vii)
shall be for a term of not less than one year, (viii) shall be issued by an
insurer licensed in the state in which the Mortgaged Property is located, (ix)
shall provide that Mortgagee may, but shall not be obligated to, make premium
payments to prevent any cancellation, endorsement, alteration or reissuance,
and such payments shall be accepted by the insurer to prevent same, (x) shall
7
be satisfactory in form and substance to Mortgagee and shall be approved by
Mortgagee as to amounts, form, risk coverage, deductibles, loss payees and
insureds; and (xi) shall provide that all claims shall be allowable on events as
they occur. Upon demand therefor, Mortgagor shall reimburse Mortgagee for all of
Mortgagee's (or its servicer's ) reasonable costs and expenses incurred in
obtaining any or all of the Policies or otherwise causing the compliance with
the terms and provisions of this Section 3, including (without limitation)
obtaining updated flood hazard certificates and replacement of any so-called
"forced placed" insurance coverages. Mortgagor shall pay the premiums for such
Policies (the "Insurance Premiums") as the same become due and payable and shall
furnish to Mortgagee evidence of the renewal of each of the Policies with
receipts for the payment of the Insurance Premiums or other evidence of such
payment reasonable satisfactory to Mortgagee (provided, however, that Mortgagor
is not required to furnish such evidence of payment to Mortgagee in the event
that such Insurance Premiums have been paid by Mortgagee pursuant to Section 5
hereof). If Xxxxxxxxx does not furnish such evidence and receipts at least
thirty (30) days prior to the expiration of any expiring Policy, then Mortgagee
may procure, but shall not be obligated to procure, such insurance and pay the
Insurance Premiums therefor, and Xxxxxxxxx agrees to reimburse Mortgagee for
the cost of such Insurance Premiums promptly on demand. Within thirty (30)
days after request by Mortgagee, Xxxxxxxxx shall obtain such increases in the
amounts of coverage required hereunder as may be reasonably requested by
Mortgagee, taking into consideration changes in the value of money over time,
changes in liability laws, changes in prudent customs and practices, and the
like. Mortgagor shall give Mortgagee prompt written notice if Xxxxxxxxx receives
from any insurer any written notification or threat of any actions or
proceedings regarding the non-compliance or non-conformity of the Mortgaged
Property with any insurance requirements. For purposes hereof, references to
"Mortgagee" shall also be deemed to include, without limitation, Mortgagee's
successors, assigns or other designees.
(d) In the event of the entry of a judgment of
foreclosure, sale of the Mortgaged Property by non-judicial foreclosure sale, or
delivery of a deed in lieu of foreclosure, Mortgagee hereby is authorized
(without the consent of Mortgagor) to assign any and all Policies to the
purchaser or transferee thereunder, or to take such other steps as Mortgagee may
deem advisable to cause the interest of such transferee or purchaser to be
protected by any of the Policies without credit or allowance to Mortgagor for
prepaid premiums thereon.
(e) If the Mortgaged Property shall be damaged or
destroyed, in whole or in part, by fire or other casualty (an "Insured
Casualty"), Mortgagor shall give prompt notice thereof to Mortgagee and,
provided Mortgagee makes the insurance proceeds available to Mortgagor,
Mortgagor shall promptly repair the Mortgaged Property to be at least equal
value and of substantially the same character as prior to such damage, all to be
effected in accordance with applicable law and plans and specifications approved
in advance by Mortgagee. The expenses incurred by Mortgagee in the adjustment
and collection of insurance proceeds shall become part of the Debt and be
secured hereby and shall be reimbursed by Mortgagor to Mortgagee upon demand.
(f) In case of loss or damages covered by any of the
Policies, the following provisions shall apply:
8
(i) In the event of an Insured Casualty that does not
exceed $50,000, Mortgagor may settle and adjust any claim without the
consent of Mortgagee and agree with the insurance company or companies
on the amount to be paid upon the loss; provided that such adjustment
is carried out in a competent and timely manner. In such case,
Mortgagor is hereby authorized to collect and receipt for any such
insurance proceeds.
(ii) In the event an Insured Casualty shall exceed
$50,000, then and in that event, Mortgagee may settle and adjust any
claim without the consent of Mortgagor and agree with the insurance
company or companies on the amount to be paid on the loss and the
proceeds of any such policy shall be due and payable solely to
Mortgagee and held in escrow by Mortgagee in accordance with the terms
of this Mortgage.
(iii) In the event of any Insured Casualty, if (A) the loss
is in an aggregate amount less than twenty percent(20%) of the original
principal balance of the Note, (B) in the reasonable judgment of
Mortgagee, the Mortgaged Property can be restored within six (6) months
after insurance proceeds are made available to an economic unit not
less valuable (including an assessment of the impact of the termination
of any Leases due to such Insured Casualty) and not less useful than
the same was prior to the Insured Casualty, and after such restoration
will adequately secure the outstanding balance of the Debt, and such
restoration can be completed on or before six (6) months prior to the
Maturity Date of the Loan, and (C) no Event of Default (as hereinafter
defined) shall have occurred and be then continuing, then the proceeds
of insurance shall be applied to reimburse Mortgagor for the cost of
restoring, repairing, replacing or rebuilding the Mortgaged Property or
part thereof subject to Insured Casualty, as provided for below; and
Mortgagor hereby covenants and agrees forthwith to commence and
diligently to prosecute such restoring, repairing, replacing or
rebuilding; provided, however, in any event Mortgagor shall pay all
costs (and if required by Mortgagee, Mortgagor shall deposit the total
thereof with Mortgagee in advance) of such restoring, repairing,
replacing or rebuilding in excess of the net proceeds of insurance made
available pursuant to the terms hereof.
(iv) Except as provided above, the proceeds of insurance
collected upon any Insured Casualty shall, at the option of Mortgagee
in its sole discretion, be applied to the payment of the Debt (or, to
the extent that the Debt has been paid in full or will be paid in full
as a result of such application to the Debt, to the Related Debt) or
applied to reimburse Mortgagor for the cost of restoring, repairing,
replacing or rebuilding the Mortgaged Property or part thereof subject
to the Insured Casualty, in the manner set forth below. Any such
application to the Debt or the Related Debt shall not be considered a
voluntary prepayment requiring payment of the prepayment consideration
provided in the Note, and shall not reduce or postpone any payments
otherwise required pursuant to the Note, other than the final payment
on the Note.
(v) In the event Mortgagor is entitled to reimbursement
out of insurance proceeds held by Mortgagee, such proceeds shall be
disbursed from time to time upon Mortgagee being furnished with (A)
evidence reasonably satisfactory to it (which evidence may include
inspection(s) of the work performed) that the restoration, repair,
replacement and rebuilding
9
covered by the disbursement has been completed in accordance with plans
and specifications approved by Mortgagee, (B) evidence reasonably
satisfactory to it of the estimated cost of completion of the
restoration, repair, replacement and rebuilding, (C) funds, or, at
Mortgagee's option, assurances reasonably satisfactory to Mortgagee
that such funds are available, sufficient in addition to the proceeds
of insurance to complete the proposed restoration, repair, replacement
and rebuilding, and (D) such architect's certificates, waivers of lien,
contractor's sworn statements, title insurance endorsements, bonds,
plats of survey and such other evidences of cost, payment and
performance as Mortgagee may reasonably require and approve; and
Mortgagee may, in any event, require that all plans and specifications
for such restoration, repair, replacement and rebuilding be submitted
to and approved by Mortgagee prior to commencement of work. With
respect to disbursements to be made by Mortgagee: (A) no payment made
prior to the final completion of the restoration, repair, replacement
and rebuilding shall exceed ninety percent (90%) of the value of the
work performed from time to time; (B) funds other than proceeds of
insurance shall be disbursed prior to disbursement of such proceeds;
and (C) at all times, the undisbursed balance of such proceeds
remaining in the hands of Mortgagee, together with funds deposited for
that purpose or irrevocably committed to the satisfaction of Mortgagee
by or on behalf of Mortgagor for that purpose, shall be at least
sufficient in the reasonable judgment of Mortgagee to pay for the cost
of completion of the restoration, repair, replacement or rebuilding,
free and clear of all liens or claims for lien and the costs described
in subsection 3(vi) below. Any surplus which may remain out of
insurance proceeds held by Mortgagee after payment of such costs of
restoration, repair, replacement or rebuilding shall be paid to any
party entitled thereto. In no event shall Mortgagee assume any duty or
obligation for the adequacy, form or content of any such plans and
specifications, nor for the performance, quality or workmanship of any
restoration, repair, replacement and rebuilding.
(vi) Notwithstanding anything to the contrary contained
herein, the proceeds of insurance reimbursed to Mortgagor in accordance
with the terms and provisions of this Mortgage shall be reduced by the
reasonable costs (if any) incurred by Mortgagee in the adjustment and
collection thereof and by the reasonable costs incurred by Mortgagee of
paying out such proceeds (including, without limitation, reasonable
attorneys' fees and costs paid to third parties for inspecting the
restoration, repair, replacement and rebuilding and reviewing the plans
and specifications therefor).
4. Payment of Taxes and Other Charges. Subject to the provisions
of Section 5 below and in accordance with the Cash Management Agreement,
Mortgagor shall pay all taxes, assessments, water rates and sewer rents, now or
hereafter levied or assessed or imposed against the Mortgaged Property or any
part thereof (the "Taxes") and all ground rents, maintenance charges, other
governmental impositions, and other charges, including without limitation vault
charges and license fees for the use of vaults, chutes and similar areas
adjoining the Premises, now or hereafter levied or assessed or imposed against
the Mortgaged Property or any part thereof (the "Other Charges") as the same
become due and payable. Mortgagor will deliver to Mortgagee, promptly upon
Mortgagee's request, evidence satisfactory to Mortgagee that the Taxes and Other
Charges have been so paid or are not then delinquent. Mortgagor shall not suffer
and shall promptly cause to be paid and discharged any lien or charge whatsoever
which may be or become a lien or charge against
10
the Mortgaged Property, and shall promptly pay for all utility services provided
to the Mortgaged Property. Mortgagor shall furnish to Mortgagee or its designee
receipts for the payment of the Taxes, Other Charges and said utility services
prior to the date the same shall become delinquent (provided, however; that
Mortgagor is not required to furnish such receipts for payment of Taxes in the
event that such Taxes have been paid by Mortgagee pursuant to Section 5 hereof).
5. Tax and Insurance Escrow Fund. In accordance with the terms of
the Cash Management Agreement, on the Closing Date, Mortgagor shall make an
initial deposit to the Tax and Insurance Escrow Fund, as hereinafter defined, in
an amount which, when added to the monthly amounts to be deposited as specified
below, will be sufficient in the estimation of Mortgagee to satisfy the next due
taxes, assessments, insurance premiums and other similar charges, plus an
additional amount equal to two (2) monthly installments for each. Beginning on
the date the first constant monthly payment is due under the Note, and on the
first day of each calendar month thereafter, Mortgagor shall, at the option of
Mortgagee or its designee, shall pay or cause to be paid into the appropriate
Collateral Account in accordance with the terms of the Cash Management Agreement
(a) one-twelfth of an amount which would be sufficient to pay the Taxes payable,
or estimated by Mortgagee to be payable, during the next ensuing twelve (12)
months, and (b) one-twelfth of an amount which would be sufficient to pay the
Insurance Premiums due for the renewal of the coverage afforded by the Policies
upon the expiration thereof (said amounts in (a) and (b) above hereinafter
called the "Tax and Insurance Escrow Fund"). Mortgagee may, in its sole
discretion, retain a third party tax consultant to obtain tax certificates or
other evidence or estimates of tax due or to become due or to verify the payment
of taxes and Xxxxxxxxx will promptly reimburse Mortgagee for the reasonable cost
of retaining any such third parties or obtaining such certificates. Any unpaid
reimbursements for the aforesaid shall be added to the Debt. Mortgagor hereby
pledges to Mortgagee any and all monies now or hereafter deposited in the Tax
and Insurance Escrow Fund as additional security for the payment of the Debt.
Mortgagee will apply the Tax and Insurance Escrow Fund to payments of Taxes and
Insurance Premiums required to be made by Mortgagor pursuant to Sections 3 and 4
hereof. In making any payment relating to the Tax and Insurance Escrow Fund,
Mortgagee may do so according to any bill, statement or estimate procured from
the appropriate public office (with respect to Taxes) or insurer or agent (with
respect to Insurance Premiums), without inquiry into the accuracy of such bill,
statement or estimate or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof. If the amount of the Tax and
Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance
Premiums Pursuant to Sections 3 and 4 hereof, Mortgagee shall, in its
discretion, credit such excess against future payments to be made to the Tax and
Insurance Escrow Fund. In allocating such excess, Mortgagee may deal with the
person shown on the records of Mortgagee to be the owner of the Mortgaged
Property. If at any time Mortgagee determines that the Tax and Insurance Escrow
Fund is not or will not be sufficient to pay the items set forth in (a) and (b)
above, Mortgagee shall notify Mortgagor of such determination and Mortgagor
shall increase its monthly payments to Mortgagee by the amount that Mortgagee
estimates is sufficient to make up the deficiency at least thirty (30) days
prior to delinquency of the Taxes and/or expiration of the Policies, as the case
may be. Upon the occurrence of an Event of Default, Mortgagee may apply any sums
then present in the Tax and Insurance Escrow Fund to the payment of the Debt in
any order in its sole discretion. Until expended or applied as above provided,
any amounts in the Tax and Insurance Escrow Fund shall constitute additional
11
security for the Debt. Except as provided under the Cash Management Agreement,
the Tax and Insurance Escrow Fund shall not constitute a trust fund and may be
commingled with other monies held by Mortgagee. Except as provided under the
Cash Management Agreement or unless otherwise required by applicable law, no
earnings or interest on the Tax and Insurance Escrow Fund shall be payable to
Mortgagor even if Mortgagee or its servicer is paid a fee and/or receives
interest or other income in connection with the deposit or placement of such
fund (in which event such income shall be reported under Mortgagee's or its
servicer's tax identification number, as applicable). Upon payment of the Debt
and performance by Xxxxxxxxx of all its obligations under this Mortgage and the
other Loan Documents, any amounts remaining in the Tax and Insurance Escrow Fund
shall be refunded to Mortgagor.
6. Replacement Reserve Fund. In accordance with the terms of the
Cash Management Agreement, beginning on the date the first constant monthly
payment is due under the Note, and on the first day of each calender month
thereafter, Mortgagor shall pay to Mortgagee an amount equal to one-twelfth of
$65,307, the amount estimated by Mortgagee in its sole discretion to be due for
replacements and repairs required to be made to the Mortgaged Property during
the calendar year for the replacements and repairs deemed reasonably necessary
by Mortgagee (the "Replacement Reserve Fund"). Mortgagor hereby pledges (and
grants a lien and security interest) to Mortgagee any and all monies now or
hereafter deposited in the Replacement Reserve Fund as additional security for
the payment of the Debt. As required in Section 17 below, Xxxxxxxxx shall
deliver to Mortgagee for Mortgagee's review and approval, a capital expenditure
budget (the "Budget") itemizing the replacements and capital repairs which are
anticipated to be made to the Mortgaged Property during the next immediately
succeeding calendar year. Notwithstanding the foregoing, Mortgagee may reassess
its estimate of the amount necessary for the Replacement Reserve Fund from time
to time and in its reasonable discretion may adjust the monthly amounts required
to be deposited into the Replacement Reserve Fund after giving thirty (30) days
notice to Mortgagor. Provided that no Event of Default shall exist and remain
uncured, Mortgagee shall make disbursements from the Replacement Reserve Fund as
requested, in writing by Xxxxxxxxx, and approved by Mortgagee in its sole
discretion, on monthly basis in increments of no less than $2,500 upon delivery
by Mortgagor of copies of paid invoices (or with respect to requests in excess
of $10,000, unpaid invoices) for the amounts requested, a certification from
Mortgagor stating: (a) the nature and type of the related replacement or repair,
(b) that the related replacement or repair has been completed in a good and
workmanlike manner, and (c) that the related replacement or repair has been paid
for in full (or, with respect to requests in excess of $10,000, will be paid for
in full (or, with respect to requests in excess of $10,000, will be paid for in
full from the requested disbursements) and, if required by Mortgagee, lien
waivers and releases from all parties furnishing materials and/or services in
connection with the requested payment. Any disbursement by Mortgagee hereunder
for a capital item in excess of $10,000 and not already paid for by Mortgagor,
shall be made by joint check, payable to Mortgagor and the applicable
contractor, supplier, materialman, mechanic, subcontractor or other party to
whom payment is due in connection with such capital item. Mortgagee may require
an inspection of the Mortgaged Property at Mortgagor's expense prior to making a
disbursement in order to verify completion of replacements and repairs for which
reimbursement is sought. The Replacement Reserve Fund is solely for the
protection of Mortgagee and entails no responsibility or obligation on
Mortgagee's part beyond the payment of the costs and expenses described in this
section in accordance with the terms hereof and beyond the allowing of due
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credit for the sums actually received. The Replacement Reserve Fund shall be
held in a Collateral Account account in Mortgagee's name as provided in the Cash
Management Agreement. All earnings or interest on the Replacement Reserve Fund
shall be and become part of such Replacement Reserve Fund and shall be disbursed
as provided in this Section 6. Upon the occurrence of an Event of Default,
Mortgagee may apply any sums then present in the Replacement Reserve Fund to the
payment of the Debt in any order in its sole discretion. Upon payment of the
Debt and performance by Mortgagor of all its obligations under this Mortgage and
the other Loan Documents, any amounts remaining in the Replacement Reserve Fund
shall be refunded to Mortgagor. The Replacement Reserve Fund shall not
constitute a trust fund and may be commingled with other monies held by
Mortgagee.
7. Condemnation. (a) Mortgagor shall promptly give Mortgagee
written notice of the actual or threatened commencement of any condemnation or
eminent domain proceeding and shall deliver to Mortgagee copies of any and all
papers served in connection with such proceedings. Mortgagee is hereby
irrevocably appointed as Xxxxxxxxx's attorney-in-fact, coupled with an interest,
with exclusive power to collect, receive and retain any award or payment for
said condemnation or eminent domain and to make any compromise or settlement in
connection with such proceeding, subject to the provisions of this Mortgage.
Notwithstanding any taking by any public or quasi-public authority through
eminent domain or otherwise (including but not limited to any transfer made in
lieu of or in anticipation of the exercise of such taking), Xxxxxxxxx shall
continue to pay the Debt at the time and in the manner provided for its payment
in the Note, in this MOrtgage and the other Loan Documents and the Debt shall
not be reduced until any award or payment therefor shall have been actually
received after expenses of collection and applied by Mortgagee to the discharge
of the Debt. Mortgagee shall not be limited to the interest paid on the award by
the condemning authority but shall be entitled to receive out of the award
interest at the rate or rates provided herein and in the Note. Mortgagor shall
cause the award or payment made in any condemnation or eminent domain
proceeding, which is payable to Mortgagor, to be paid directly to Mortgagee.
Mortgagee may apply any such award or payment to the reduction or discharge of
the Debt whether or not then due and payable and, if and upon payment in full
of the Debt, to the Related Debt (such application to be without any prepayment
consideration, except that if an Event of Default, or an event with notice
and/or the passage of time, or both, would constitute an Event of Default, has
occurred, then such application shall be subject to the prepayment consideration
computed in accordance with the Note). If the Mortgaged Property is sold,
through foreclosure or otherwise, prior to the receipt by Mortgagee of such
award or payment, Mortgagee shall have the right, whether or not a deficiency
judgment on the NOte shall have been sought, recovered or denied, to receive
said award or payment, or a portion thereof sufficient to pay the Debt and the
Related Debt.
(b) Notwithstanding the provisions of subsection 7(a)
above, in the event of a condemnation of less than all of the Mortgaged Property
where: (i) no Event of Default shall have occurred and be continuing; (ii) the
condemnation will not, in Mortgagee's reasonable discretion, result in a
material adverse effect to the use or operation of the Mortgaged Property,
Xxxxxxxxx's ability to make payments hereunder, or the operating income form
the Mortgaged Property; and (iii) the amount of any award or payment that is
uncontested shall have been paid to Mortgagee, then Mortgagee and Mortgagor
shall jointly make any such compromise or settlement hereunder, or otherwise
adjudicate such claim, and such award of payment (less amounts payable to
Mortgage for
13
its costs and expenses incurred in connection therewith) shall be paid by
Mortgagee to Mortgagor in the same manner as provided by subsection 3(f)(v)
above to restore the Mortgaged Property to an architecturally and functionally
compatible condition.
8. Representations and Covenants Concerning Loan. Mortgagor
represents, warrants and covenants as follows:
(a) Mortgagor shall comply with all of the
recommendations concerning the maintenance and repair of the Mortgaged Property
which are contained in the inspection and engineering report which was delivered
to Mortgagee in connection with the origination of the Loan.
(b) In the event Xxxxxxxxx decides to engage a third
party management company to manage the Mortgaged Property, Xxxxxxxxx agrees to
engage a management company reasonably satisfactory to Mortgagee, pursuant to a
management agreement reasonably satisfactory to Mortgagee, and to cause such
management company to execute the Acknowledgment of Property Manager in form and
substance as executed by the existing manager of the Mortgaged Property in
connection with the Loan, and to deliver to Mortgagee promptly upon such
engagement, a fully-executed copy of the management agreement, together with the
Acknowledgment of Property Manager signed by such manager.
(c) In the event Mortgagee determines in its sole and
reasonable discretion that the quality of management for the Mortgaged Property
has deteriorated, Xxxxxxxxx agrees to engage a management company satisfactory
to Mortgagee within ninety (90) days after Xxxxxxxxx's receipt of written notice
of Mortgagee's determination of the deterioration of the quality of management,
pursuant to a management agreement satisfactory to Mortgagee, and to cause such
management company to execute the Acknowledgment of Property Manager in form and
substance as executed by the existing manager of the Mortgaged Property in
connection with the Loan, and to deliver to Mortgagee promptly upon such
engagement, a fully-executed copy of the management agreement, together with the
Acknowledgment of Property Manager signed by such manager.
(d) Xxxxxxxxx has reviewed and is familiar with all
opinions of legal counsel to Xxxxxxxxx and any Guarantor or Affiliate (as
hereinafter defined) to be delivered in connection with the Loan, including
those respecting enforceability and authority, and the Nonconsolidation Opinion
(as defined below). None of the assumptions set forth in such opinions are
incorrect.
(e) Neither Mortgagor, nor any Guarantor (as hereinafter
defined), nor any Affiliate (as hereinafter defined) is or has been a debtor,
and no property of any of them (including the Mortgaged Property) is property of
the estate, in any voluntary or involuntary case under the Bankruptcy Code or
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect. No such party and no property of any of them is or has been
under the possession or control of a receiver, trustee or other custodian.
Neither Mortgagor, any Guarantor or any Affiliate has made or will make any
assignment for the benefit of creditors. No such assignment or bankruptcy or
similar case or proceeding is now contemplated.
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(f) The representations and warranties contained in the
Closing Certificate executed by Xxxxxxxxx in connection with the Note (which
certificate constitute on of the Lone Documents) are true and correct and
Mortgagor shall observe the covenants contained therein.
9. Single Purpose Entity/Separateness. Mortgagor represents,
warrants and covenants as follows.
(a) Mortgagor has not and shall not own any asset or
property other than (i) the Mortgaged Property, and (ii) incidental personal
property necessary for the ownership or operation of the Mortgaged Property.
(b) Xxxxxxxxx has not engaged and shall not engage in any
business or activity other than the ownership, management and operation of the
Mortgaged Property and Mortgagor will conduct and operate in all material
respects its business as presently conducted and operated.
(c) Mortgagor has not and shall not enter into or be a
party to any transaction, contract or agreement with any guarantor of the Debt
or any part thereof (a "Guarantor") or any party which is directly or indirectly
controlling, controlled by or under common control with Mortgagor or Guarantor
(an "Affiliate"), except upon terms and conditions that are intrinsically fair
and substantially similar to those that would be available on an arm's-length
basis with third parties other than any Guarantor or Affiliate.
(d) Mortgagor has not incurred and shall not incur any
indebtedness, secured or unsecured, direct or indirect, absolute or contingent
(including guaranteeing any obligation), other than (i) the Debt and (ii) trade
and operational debt incurred in the ordinary course of business with trade
creditors in connection with owning, operating and maintaining the Mortgaged
Property, in such amounts as are normal and reasonable under the circumstances,
provided such debt is not evidenced by a promissory note or other security
instrument and is not at any time in an aggregate amount in excess of two
percent (2%) of the original loan amount evidenced by the Note, and further
provided that all such trade debts are paid within sixty (60) days after the
same are incurred. No indebtedness other than the Debt may be secured (senior,
subordinate or pari passu) by the Mortgaged Property.
(e) Mortgagor has not made and shall not make any loans
or advances to any third party, nor to Guarantor, any Affiliate or any
constituent party or Mortgagor.
(f) Mortgagor is and will remain solvent and Mortgagor
will pay its debts from its assets as the same shall become due.
(g) Mortgagor has done or caused to be done and shall do
all things necessary, to preserve its existence, and Mortgagor will not, nor
will Mortgagor permit Guarantor to amend, modify or otherwise change the
partnership certificate, partnership agreement, articles of incorporation and
bylaws, operating agreement, trust or other organizational documents of
Mortgagor or Guarantor in a manner which would adversely affect Mortgagor's
existence as a single-purpose entity, without the prior written consent of
Mortgagee.
15
(h) Xxxxxxxxx has maintained and shall maintain financial
statements, accounting records, books and records, bank accounts and other
entity documents separate from those of its Affiliates and any constituent party
of Mortgagor or any other person or entity, and Xxxxxxxxx has filed and shall
file its own tax returns. Xxxxxxxxx has maintained and shall maintain its books,
records, resolutions and agreements as official records.
(i) Mortgagor has been and will be, and at all times will
hold itself out to the public as, a legal entity separate and distinct from any
other entity (including any Affiliate, any constituent party of Mortgagor or any
Guarantor), shall correct any known misunderstanding regarding its status as a
separate entity, shall conduct business in its own name, shall not identify
itself or any of its Affiliates as a division or part of the other and shall
maintain and utilize a separate telephone number and separate stationary,
invoices and checks. Mortgagor has allocated and shall allocate fairly and
reasonably any overhead for shared office space.
(j) Mortgagor has preserved and kept and shall preserve
and keep in full force and effect its existence, good standing and qualification
to do business in the state in which the Mortgaged Property is located and
Mortgagor has observed and will observe all partnership, corporate and limited
liability company formalities, as applicable.
(k) Mortgagor has maintained and shall maintain adequate
capital and a sufficient number of employees for the normal obligations
reasonably foreseeable in a business of its size and character and in light of
its contemplated business operations. Mortgagor will pay the salaries of its own
employees.
(l) Neither Mortgagor nor any constituent party of
Mortgagor has sought or shall seek or consent to the dissolution or winding up,
in whole or in part, of Mortgagor, nor will Mortgagor merge with or be
consolidated into any other entity or acquire by purchase or otherwise all or
substantially all of the business assets of, or any stock of beneficial
ownership of, any entity.
(m) Mortgagor has not and shall not commingle the funds
and other assets of Mortgagor with those of any Affiliate, any Guarantor, any
constituent party or Mortgagor or any other person, and Mortgagor will pay its
own liabilities out of its own funds and assets.
(n) Mortgagor has maintained and shall maintain its
assets in such a manner that it will not be costly or difficult to segregate,
ascertain or identify its individual assets from those of any constituent party
of Mortgagor, Affiliate, Guarantor or any other person.
(o) Mortgagor has not and shall not assume, guarantee,
become obligated for or hold itself out to be responsible for the debts or
obligations of any other person (provided, that the foregoing shall not prevent
Mortgagor from being and holding itself responsible for expenses incurred or
obligation undertaken by the property manager of the Mortgaged Property in
respect of its duties regarding the Mortgaged Property).
(p) Mortgagor shall obtain and maintain in full force and
effect, and abide by and satisfy the material term and condition of, all
material permits, licenses, registrations and other
16
authorizations with or granted by any governmental authorities that may be
required from time to time with respect to the performance of its obligations
under this Mortgage.
(q) Mortgagor does not and shall not own any subsidiary,
or make any investment in any person or entity.
(r) Mortgagor has not and shall not without the unanimous
consent of all its general partners, directors or members, as applicable, file
or consent to the filing of any petition, either voluntary or involuntary, to
take advantage of any applicable insolvency, bankruptcy, liquidation or
reorganization statute, or make an assignment for the benefit of creditors.
(s) If Mortgagor is a limited partnership with more than
one general partner, its limited partnership agreement require the remaining
partners to continue the partnership as long as one solvent general partner
exists.
(t) Mortgagor shall at all times cause there to be an
independent manager (an "Independent Manager") of Mortgagor reasonably
satisfactory to Mortgagee who shall not have been at the time of such
individual's appointment, and may not have been any time during the preceding
five years, a shareholder of, or an officer, director, partner, paid consultant
or employee of, Mortgagor or any of its shareholders, subsidiaries or affiliates
(except as an independent manager or independent director of any of the
foregoing), a customer of, or supplier to, Mortgagor or any of its shareholders,
subsidiaries or affiliates, a person or other entity controlling or under common
control with any such shareholder, partner, supplier or customer, or a member of
the immediate family of any such shareholder, officer, director, partner,
employee, supplier or customer of Mortgagor. As used herein, the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a person or entity, whether
through ownership of voting securities, by contract or otherwise.
(u) Mortgagor shall not take any action which, under the
terms of its articles of organization or operating agreement, requires the vote
of the managers of Mortgagor unless at the time of such action there shall be at
least one (1) member who is an Independent Manager.
(v) Mortgagor has conducted and shall conduct its
business so that the assumptions made with respect to Mortgagor in that certain
opinion letter dated of even date herewith (the "Nonconsolidation Opinion")
delivered by Xxxxxxxxx Xxxxxxxx LLP in connection with the Loan shall be true
and correct in all respects.
10. Maintenance of the Mortgaged Property. Mortgagor shall cause
the Mortgaged Property to be operated and maintained in a good and safe
condition and repair and in keeping with the condition and repair of properties
of a similar use, value, age, nature and construction. Mortgagor shall not use,
maintain or operate the Mortgaged Property in any manner which constitutes a
public or private nuisance or which makes void, voidable, or cancelable, or
increases the premium of, any insurance then in force with respect thereto. The
Improvements and the Equipment shall not be removed, demolished or materially
altered (except for normal replacement of the Equipment) without the consent of
Mortgagee. Mortgagor shall promptly comply with all laws,
17
orders and ordinances affecting the Mortgaged Property, or the use thereof.
Mortgagor shall promptly repair, replace or rebuild any part of the Mortgaged
Property which may be destroyed by any casualty, or become damaged, worn or
dilapidated or which may be affected by any proceeding of the character referred
to in Section 7 hereof and shall complete and pay for any structure at any time
in the process of construction or repair on the Premises.
11. Use of the Mortgaged Property. Mortgagor shall not initiate,
join in, acquiesce in, or consent to any change in any private restrictive
covenant, zoning law or other public or private restriction, limiting or
defining the uses which may be made of the Mortgaged Property or any part
thereof, or shall Mortgagor initiate, join in, acquiesce in, or consent to any
zoning change or zoning matter affecting the Mortgaged Property. If under
applicable zoning provisions the use of all or any portion of the Mortgaged
Property is or shall become a nonconforming use, Mortgagor will not cause or
permit such nonconforming use to be discontinued or abandoned without the
express written consent of Mortgagee. Mortgagor shall not permit or suffer or
occur any waste on or to the Mortgaged Property or to any portion thereof and
shall not take any steps whatsoever to convert the Mortgaged Property, or any
portion thereof, to a condominium or cooperative form of management. Mortgagor
will not install or permit to be installed on the Premises any underground
storage tank or above-ground storage tank without the written consent of
Mortgagee.
12. Transfer or Encumbrance of the Mortgaged Property. (a)
Mortgagor acknowledges that Mortgagee has examined and relied on the
creditworthiness and experience of Mortgagor in owning and operating properties
such as the Mortgaged Property in agreeing to make the loan secured hereby, and
that Mortgagee will continue to rely on Xxxxxxxxx's ownership of the Mortgaged
Property as a means of maintaining the value of the Mortgaged Property as
security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a
valid interest in maintaining the value of the Mortgaged Property so as to
ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee
can recover the Debt by a sale of the Mortgaged Property. Subject to the
provisions of subsection 12(b) below, without the prior written consent of
Mortgagee:
(i) neither Mortgagor nor any other Person shall,
directly or indirectly, voluntarily or involuntarily, by operation of
law or otherwise, sell, transfer, convey, mortgage, pledge, or assign
any interest in or encumber, alienate xxxxx x Xxxx in or against, or
grant or enter into any easement, covenant or other agreement granting
rights in or restricting the use of development of, (A) the Mortgaged
Property or any part thereof, or (B) any partnership interest,
membership interest, shares of stock, beneficial interest or any other
ownership interest (in whole or in part) in Mortgagor or in any
partner, member, shareholder, beneficiary or other direct or indirect
holder or any interest therein, through each tier of ownership with the
intention that the foregoing restrictions shall not be avoided by the
use of multiple tiers of ownership of direct or indirect interests in
Mortgagor;
(ii) no new partner, member, shareholder, beneficiary or
other legal or equitable owner shall be admitted to or created in
Mortgagor in any partner, member, shareholder, beneficiary or other
direct or indirect holder of any interest therein, through each tier of
ownership with the intention that the foregoing restrictions shall not
be avoided by the use
18
of multiple tiers of ownership of direct or indirect interests in
Mortgagor, (nor shall any existing general partner or member or
controlling limited partner withdraw from Mortgagor);
(iii) there shall be permitted on change in the
organizational documents of, nor any withdrawal, resignation, removal
or other change of status on the part of any partner, member, officer,
director, manager or other Person from or with respect to his, her or
its position of authority or control in, any of Mortgagor or any
partner, member, shareholder, beneficiary or other legal or equitable
owner of Mortgagor, or any partner, member, shareholder, beneficiary or
other direct or indirect holder of any interest therein (through each
tier of ownership with the intention that these restrictions shall not
be avoided by the use of multiple tiers of ownership of direct or
indirect interests in Mortgagor), if any such occurrence shall result
in a change in control of the Mortgaged Property, Mortgagor or
Xxxxxxxxx's affairs; and
(iv) there shall occur no material reduction or change in
the current power, authority or duties of [key principal(s) or other
control party(ies) designated by underwriter]with respect to the
management or control of the Mortgaged Property, Mortgagor or
Xxxxxxxxx's affairs, whether as a result of retirement withdrawal,
removal, resignation, incapacity, death or other cause, unless
Xxxxxxxxx provides a substitute or replacement acceptable to Mortgagee
in its sole discretion within thirty (30) days thereafter.
As used in this Section 12, "transfer" shall include, without
limitation, (A) an installment sales agreement wherein Xxxxxxxxx agrees to sell
the Mortgaged Property or any part thereof for a price to be paid in
installments; and (B) an agreement by Mortgagor leasing all or a substantial
part of the Mortgaged Property for other than actual occupancy by a space tenant
thereunder or a sale, assignment or other transfer of, or the grant of a
security interest in, Xxxxxxxxx's right, title and interest in and to any Leases
or any Rents.
(b) Notwithstanding the foregoing, the following shall
not constitute a violation of the provisions of subsection 12(a) above: (i) the
leasing of individual units within the Mortgaged Property so long as Mortgagor
complies with the provisions of the Loan Documents relating to such leasing
activity; (ii) transfers of non-managing membership interests in Mortgagor, and
transfers that occur by inheritance, devise, or bequest or by operation of law
upon the death of a natural person who is an owner of the Mortgaged Property or
the owner of a direct or indirect ownership interest in Mortgagor, so long as
such transfers don not result in a change of control of Mortgagor or the
Mortgaged Property or otherwise violate the provisions of subsections 12(a)
(iii) and (iv) and, after taking into account all such transfers described under
this clause (ii), no such transfer or series of transfer shall result in (A) a
transfer in the aggregate of more than forty-nine percent (49%)of the interests
in Mortgagor as of the date hereof, or (B) the proposed transferee, together
with his, her or its Affiliates and immediate family members of Affiliates
thereof, owning in the aggregate, directly or indirectly (whether by means of
beneficial ownership or ownership of interests in entities which in turn
directly or indirectly, through multiple ownership tiers or otherwise, own
interests in entities which in turn directly through multiple ownership tiers or
otherwise, own interests in Mortgagor or otherwise), more than forty-nine
percent (49%) of the ownership or beneficial interest in Mortgagor, (iii) a sale
or other disposition of obsolete or worn-out personal property which is
contemporaneously replaced by comparable personal property of equal or greater
value which is free
19
and clear of liens, encumbrances and security interests other than those created
by the Loan Documents; or (iv) the grant of an easement, if prior to the
granting of the easement Mortgagor causes to be submitted to Mortgagee all
information required by Mortgagee to evaluate the easement, and if Mortgagee
determines that the easement will not materially affect the operation of the
Mortgaged Property or Mortgagee's interest in the Mortgaged Property and
Mortgagor pays to Mortgagee, on demand, all cost and expense incurred by
Mortgagee in connection with reviewing Xxxxxxxxx's request.
(c) The occurrence of any of the foregoing transfers or
other occurrences described in the foregoing subsection 12(a) shall, unless
permitted under subsection 12(b) above or otherwise approved in writing by
Mortgagee, constitute an Event of Default (as defined below) hereunder,
regardless of whether any such transfer or occurrence was caused or instituted
by Mortgagor or any other Person, whereupon Mortgagee as its option, without
being required to demonstrate any actual impairment of its security or any
increased risk of default hereunder, may declare the Debt immediately due and
payable. This provision shall apply to every sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property or other
occurrence described in subsection 12(a) above (unless permitted under
subsection 12(b) above), regardless of whether voluntary or not, or whether or
not Mortgagee has consented to any previous sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property or other
occurrence described in subsection 12(a) above.
(d) Xxxxxxxxx agrees to bear and shall pay or reimburse
Mortgagee on demand for all reasonable expenses (including, without limitation,
reasonable attorneys' fees and disbursements, title search costs and title
insurance endorsement premiums) incurred by Mortgagee in connection with the
review, approval and documentation of any sale, conveyance, alienation,
mortgage, encumbrance, pledge, transfer or other transaction or event described
in subsection 12(a) above. In addition, prior to the effectiveness of any direct
or indirect transfer of the Mortgaged Property (including any transfer of the
direct or indirect ownership interests in Mortgagor, other than as permitted
under subsection 12(b) above), Mortgagee shall receive an assumption fee equal
to one percent (1%) of the then unpaid principal balance of the Note, together
with any review fee required by Mortgagee.
(e) Mortgagee's consent to one sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property
or any part thereof or any other transaction or event described in subsection
12(a) above shall not be deemed to be a waiver of Mortgagee's right to require
such consent to any future occurrence of same. Any attempted or purported sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property or of any direct or indirect interest in Mortgagor, and any
other transfer described in subsection 12(a) above, if made in contravention of
this Section 12, shall be null and void and of no force and effect.
13. Estoppel Certificates and No Default Affidavits. (a) After
request by Mortgagee, Mortgagor shall within ten (10) days furnish Mortgagee
with a statement, duly acknowledged and certified, setting forth (i) the amount
of the original principal amount of the Note, (ii) the unpaid principal amount
of the Note, (iii) the rate of interest of the Note, (iv) the date installments
of interest
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and/or principal were last paid, (v) any offsets or defenses to the payment of
the Debt, if any, and (vi) that the Note, this Mortgage and the other Loan
Documents are valid, legal and binding obligations and have not been modified or
if modified, giving particulars of such modification.
(b) After request by Mortgage, Mortgagor shall within ten
(10) days furnish Mortgagee with a certificate reaffirming all representations
and warranties of Mortgagor set forth herein and in the other Loan Documents as
of the date requested by Mortgagee or, to the extent of any changes to any such
representations and warranties, so stating such changes.
(c) If the Mortgaged Property includes commercial
property, Mortgagor shall use commercially reasonable efforts to deliver to
Mortgagee upon request, tenant estoppel certificates from each commercial tenant
at the Mortgaged Property in form and substance reasonably satisfactory to
Mortgagee provided that Mortgagor shall not be required to deliver such
certificates more frequently than one (1) time in any calendar year.
14. Taxes on Security; Documentary Stamps; Intangibles Tax. (a)
Mortgagor shall pay all taxes, charges, filing, registration and recording fees,
excises and levies payable with respect to the Note or the liens created or
secured by the Loan Documents, other than income, franchise and doing business
taxes imposed on Mortgagee. If there shall be enacted any law (i) deducting the
Loan from the value of the Mortgaged Property for the purpose of taxation, (ii)
affecting any lien on the Mortgaged Property, or (iii) changing existing laws of
taxation of mortgages, deeds of trust, security deeds, or debts secured by real
property, or changing the manner of collecting any such taxes, Mortgagor shall
promptly pay to Mortgagee, on demand, all taxes, costs and charges for which
Mortgagee is or may be liable as a result thereof; however, if such payment
would be prohibited by law or would render the Loan usurious, then instead of
collecting such payment, Mortgagee may declare all amounts owing under the Loan
Documents to be immediately due and payable. No prepayment consideration shall
be imposed on any such payment.
(b) If at any time the United States of America, any
State thereof or any subdivision of any such State shall require revenue or
other stamps to be affixed to the Note or this Mortgage, or impose any other tax
or charge on the same, Xxxxxxxxx will pay for the same, with interest and
penalties thereon, if any. Xxxxxxxxx hereby agrees that, in the event that it is
determined that additional documentary stamp tax or intangible tax is due hereon
or any mortgage or promissory note executed in connection herewith (including,
without limitation, the Note), Mortgagor shall indemnify and hold harmless
Mortgagee for all such documentary stamp tax and/or intangible tax, including
all penalties and interest assessed or charged in connection therewith.
Mortgagor shall pay same within ten (10) days after demand of payment from
Mortgagee and the payment of such sums shall be secured by this Mortgage and
such sums shall bear interest at the Default Rate (as defined in the Note) until
paid in full.
(c) Mortgagor shall hold harmless and indemnify
Mortgagee, its successors and assigns, against any liability incurred by reason
of the imposition of any tax on the making and recording of this Mortgage.
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15. No Credits on Account of the Debt. Mortgagor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes or Other Charges assessed against the Mortgaged Property, or
any part thereof, and no deduction shall otherwise be made or claimed from the
assessed value of the Mortgaged Property, or any part thereof, for real estate
tax purposes by reason of this Mortgage or the Debt. In the event such claim,
credit or deduction shall be required by law, Mortgagee shall have the option,
by written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
16. Controlling Agreement. It is expressly stipulated and agreed
to be the intent of Mortgagor, Trustee and Mortgagee at all times to comply with
applicable state law or applicable United States federal law (to the extent that
it permits Mortgagee to contract for, charge, take, reserve, or receive a
greater amount of interest than under state law) and that this section shall
control every other covenant and agreement in this Mortgage and the other Loan
Documents. If the applicable law (state or federal) is ever judicially
interpreted so as to render usurious any amount called for under the Note or
under any of the other Loan Documents, or contracted for, charged, taken,
reserved, or received with respect to the Debt, or if Mortgagee's exercise of
the option to accelerate the maturity of the Note, or if any prepayment by
Mortgagor results in Mortgagor having paid any interest in excess of that
permitted by applicable law, then it is Mortgagor's, Trustee's and Mortgagee's
express intent that all excess amounts theretofore collected by Mortgagee shall
be credited on the principal balance of the Note and all other Debt (or, if the
Note and all other Debt have been or would thereby be paid in full, refunded to
Mortgagor), and the provisions of the Note and the other Loan Documents
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder. All
sums paid or agreed to be paid to Mortgagee for the use, forbearance, or
detention of the Debt shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Debt until payment in full so that the rate or amount of interest on account
of the Debt does not exceed the maximum rate permitted under applicable law from
time to item in effect and applicable contained herein or in any of the other
Loan Documents, it is not the intention of Trustee and/or Mortgagee to
accelerate the maturity of any interest that has not accrued at the time of such
acceleration or to collect unearned interest at the time of such acceleration.
17. Financial Statements. (a) The financial statements heretofore
furnished to Mortgagee are, as of the dates specified therein, complete and
correct and fairly present the financial condition of Mortgagor and any other
persons or entities that are the subject of such financial statements, and are
prepared in accordance with generally accepted accounting principles in the
United States of America consistently applied (or such other accounting basis
reasonably acceptable to Mortgagee). Xxxxxxxxx does not have any contingent
liabilities, liabilities for taxes, unusual forward or long-term Commitments or
unrealized or anticipated losses from any unfavorable commitments that are known
to Mortgagor and reasonably likely to have a materially adverse effect on the
Mortgaged Property or the operation thereof for its current use, except as
referred to or reflected in said financial statements. Since the date of such
financial statements, there has been no materially adverse change
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in the financial condition, operation or business of Mortgagor or any other
persons or entities that are the subject of such financial statements from that
set forth in said financial statements.
(b) Xxxxxxxxx will maintain full and accurate books of
accounts and other records reflecting the results of the operations of the
Mortgaged Property and will furnish to Mortgagee the following items, each
certified by Mortgagor as being true and correct and presented in such format as
Mortgagee or its designee may request, as follows:
(i) Until the earlier to occur of (A) eighteen (18)
months following the date hereof, or (B) a Secondary Market
Transaction, Mortgagor shall furnish monthly each of the items listed
in subsections 17(b)(ii)(A), (B) and (C) below, but dated as of the
last day of each such month (collectively, the "Pre-Securitization
Financials") within twenty (20) days after the end of such month.
(ii) On or before forty-five (45) days after the end of
each calendar quarter: (A) a written statement (rent roll) dated as of
the last day of each such calendar quarter identifying each of the
Leases by the term, renewal options (including rental base), space
occupied, rental and other charges required to be paid, security
deposit paid, real estate taxes paid by tenants, common area charges
paid by tenants, tenant pass-throughs, any rental concessions or
special provisions or inducements, tenant sales (if the tenant is
required to report sales to Mortgagor), rent delinquencies, rent
escalations, amounts taken in settlement of outstanding arrears,
collections of rent for more than one (1) month in advance, continuous
operation obligations, cancellation or "go dark" provisions,
"non-competition" provisions (restricting Mortgagor or any tenant), any
defaults thereunder and any other information reasonably required by
Mortgagee; (B) monthly and year to date operating statements prepared
for each calendar month during each such calendar quarter, each of
which shall include an itemization of actual (not pro forma) capital
expenditures during the applicable period; (C) a property balance sheet
for such month; and (D) a comparison of the budgeted income and
expenses with the actual income and expenses for such month and year to
date, together with a detailed explanation of any variances between
budgeted and actual amounts that are in excess of the greater of: (1)
$1,000, or (2) five percent (5%) or more for each line item therein.
(iii) Within ninety (90) days following the end of each
calendar year: (A) a written statement (rent roll) dated as of the last
day of each such calendar year identifying each of the Leases by the
term, space occupied, rental required to be paid, security deposit
paid, any rental concessions, and identifying any defaults or payment
delinquencies thereunder; (B) annual operating statements prepared for
such calendar year, which shall include an itemization of actual (not
pro forma) capital expenditures during the applicable period, total
revenues received, total expenses incurred, total debt service and
total cash flow; and (C) an annual balance sheet and profit and loss
statement of Mortgagor, each general partner, member or principal
shareholder of Mortgagor, and any Guarantors in the form required by
Mortgagee, prepared and certified by the respective Mortgagor, general
partner, member of principal shareholder of Mortgagor or, as to
Guarantors' financial statements, such Guarantors.
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(iv) On or before December 1 of the year preceding the
year to which such budget pertains, Mortgagor shall furnish an annual
budget of the operation of the Mortgaged Property.
(c) In the event that Mortgagor fails to provide to
Mortgagee or its designee any of the financial statements, certificates, reports
or information (the "Required Records") required by this Section 17 within
thirty (30) days after the date upon which such Required Record is due,
Mortgagor shall pay to Mortgagee, at Mortgagee's option and in its sole
discretion, an amount equal to $7,500 if the Required Records are not so
delivered; provided that, Mortgagee has given at least ten (10) days prior
written notice to Mortgagor of such failure by Xxxxxxxxx to timely submit the
applicable Required Records. Notwithstanding the foregoing, in the event that
Mortgagor fails to provide Mortgagee with Pre-Securitization Financials on or
before the date they are due, Mortgagor shall pay to Mortgagee, at Mortgagee's
option and in its sole discretion, an amount equal to $7,500 if the
Pre-Securitization Financials are not so delivered.
18. Performance of Other Agreements. Mortgagor shall duly and
punctually observe and perform each and every term, provision, condition, and
covenant to be observed or performed by Mortgagor pursuant to the terms of any
agreement or recorded instrument (including all instruments comprising the
Permitted Encumbrances) affecting or pertaining to the Mortgaged Property, and
will not suffer or permit any default or event of default (giving effect to any
applicable notice requirements and cure periods) to exist under any of the
foregoing.
19. Further Acts, Etc. (a) Mortgagor will, at the cost of
Xxxxxxxxx, and without expense to Mortgagee, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, Uniform Commercial Code financing statements
or continuation statements, transfers and assurances as Mortgagee shall, from
time to time, reasonably require, for the better assuring, conveying, assigning,
transferring, and confirming unto Mortgagee the property and rights hereby
mortgaged, given, granted, bargained, sold, alienated, conveyed, confirmed,
pledged, assigned and hypothecated or intended now or hereafter so to be, or
which Mortgagor may be or may hereafter become bound to convey or assign to
Mortgagee, or for carrying out the intention or facilitating the performance of
the terms of this Mortgage or for filing, registering or recording this Mortgage
or for facilitating the sale of the Loan and the Loan Documents as described in
subsection 19(b) below. Xxxxxxxxx, on demand, will execute and deliver and
hereby authorizes Mortgagee to execute in the name of Xxxxxxxxx or without the
signature of Mortgagor to the extent Mortgagee may lawfully do so, one or more
financing statements, chattel mortgages or other instruments, to evidence more
effectively the security interest of Mortgagee in the Mortgaged Property. Upon
foreclosure, the appointment of a receiver or any other relevant action,
Xxxxxxxxx will, at the cost of Mortgagor and without expense to Mortgagee,
cooperate fully and completely to effect the assignment or transfer of any
license, permit, agreement or any other right necessary or useful to the
operation of the Mortgaged Property. Mortgagor grants to Mortgagee an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Mortgagee
at law and in equity, including, without limitation, such rights and remedies
available to Mortgagee pursuant to this section.
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(b) Mortgagor acknowledges that Mortgagee and its
successors and assigns may (i) sell this Mortgage, the Note and other Loan
Documents to one or more investors as a whole loan, (ii) participate the Loan
secured by this Mortgage to one or more investors, (iii) deposit this Mortgage,
the Note and other Loan Documents with a trust, which trust may sell
certificates to investors evidencing an ownership interest in the trust assets,
or (iv) otherwise sell the Loan or interest therein to investors (each of the
transactions referred to in clauses (i) through (iv) will be hereinafter
referred to as a "Secondary Market transaction"). Mortgagor shall cooperate with
Mortgagee in effecting any such Secondary Market Transaction and shall cooperate
to implement all requirements imposed by any Rating Agency involved in any
Secondary Market Transaction, including but not limited to, (A) providing
Mortgagee an estoppel certificate and such information, legal opinions and
documents relating to Mortgagor, Guarantor, if any, the Mortgaged Property and
any tenants of the Mortgaged Property as Mortgagee or the Rating Agencies may
reasonably request in connection with such Secondary Market Trans action, (B)
amending the Loan Documents and organizational documents of Xxxxxxxxx, and
updating and/or restating officer's certificates, title insurance and other
closing items, as may be required by the Rating Agencies, (C) participating in
bank, investors and Rating Agencies' meetings if requested by Mortgagee, (D)
upon Mortgagee's request amending the Loan Documents (and updating and/or
restating officer's certificates, title insurance and other closing items in
connection therewith) to divide the Loan into two or more separate or component
notes, which notes may be included in separate transactions (and thus may have
separate REMIC "start up dates") and have different interest rates and
amortization schedules (but with aggregated financial terms which are equivalent
to that of the Loan prior to such separation), and (E) reviewing the offering
documents relating to any Secondary Market Transaction to ensure that all
information concerning Mortgagor, the Mortgaged Property, and the Loan is
correct, and certifying to the accuracy thereof. Mortgagee shall be permitted to
share all such information with the investment banking firms, Rating Agencies,
accounting firms, law firms and other third-party advisory firms and investors
involved with the Loan and the Loan Documents or the applicable Secondary Market
Transaction. Mortgagee and all of the aforesaid third-party advisors and
professional firms shall be entitled to rely on the information supplied by, or
on behalf of, Xxxxxxxxx and Xxxxxxxxx indemnifies Mortgagee its successors,
assigns and their respective shareholders, employees, directors, officers, and
agents (each an "Indemnified Party" and, collectively, the "Indemnified
Parties") as to any losses, claims, damages or liabilities that arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in such information or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated in such information or necessary in order to make the statements in such
information, or in light of the circumstances under which they were made, not
misleading. Mortgagee may publicize the existence of the Loan in connection with
its marketing for a Secondary Market Transaction or otherwise as part of its
business development.
20. Recording of Mortgage, Etc. Upon the execution and delivery of
this Mortgage and thereafter, from time to time, Xxxxxxxxx will cause this
Mortgage, and any security instrument creating a lien or security interest or
evidencing the lien hereof upon the Mortgaged Property and each instrument of
further assurance to be filed, registered or recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and fully to protect the lien or security interest hereof upon, and
the interest of Mortgagee in, the Mortgaged
25
Property. Mortgagor will pay all filing, registration or recording fees, and all
expenses incident to the preparation, execution and acknowledgment of this
Mortgage, any mortgage supplemental hereto, any security instrument with respect
to the Mortgaged, Property and any instrument of further assurance, and all
federal, state, county and municipal, taxes, duties, imposts, assessments and
charges arising out of or in connection with the execution and delivery of this
Mortgage, any mortgage supplemental hereto, any security instrument with respect
to the Mortgaged Property or any instrument of further assurance, except where
prohibited by law so to do.
21. Reporting Requirements. Xxxxxxxxx agrees to give prompt notice
to Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the death,
insolvency or bankruptcy filing of any Guarantor.
22. Events of Default. The term "Event of Default" as used herein
shall mean the occurrence or happening, at any time and from time to time, of
any one or more of the following:
(a) if any portion of the Debt is not paid within five(5)
days from the date when the same is due;
(b) if the Policies are not kept in full force and
effect, or if the Policies are not delivered to Mortgagee upon request;
(c) if Xxxxxxxxx fails to timely provide any financial or
accounting report;
(d) if Mortgagor suffers or permits the transfer or
encumbrance of any portion of the Mortgaged Property in violation of Section 12
of this Mortgage, or any other violation of subsection 12(a), or any violation
of Section 9 of this Mortgage;
(e) if any representation or warranty of Mortgagor, or of
Guarantor, made herein or in any other Loan Document or in any certificate,
report, financial statement or other instrument or document furnished to
Mortgagee shall have been false or misleading in any material respect when
made;
(f) if Mortgagor or any Guarantor shall make an
assignment for the benefit of creditors or if Mortgagor shall generally not be
paying its debts as they become due;
(g) if a receiver, liquidator or trustee of Mortgagor or
of any Guarantor shall be appointed or if Mortgagor or any Guarantor shall be
adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by or against, consented to, or acquiesced
in by, Mortgagor or any Guarantor of if any proceeding for the dissolution or
liquidation, of Mortgagor or of any Guarantor shall be instituted; however, if
such appointment, adjudication, petition of proceeding was involuntary and not
consented to be Mortgagor or such Guarantor, upon the same not being discharged,
stayed or dismissed within ninety(90) days;
(h) if Mortgagor shall be in default under any other
mortgage or security agreement covering any part of the Mortgaged Property and
otherwise permitted hereunder;
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(i) subject to Xxxxxxxxx's right to contest as provided
herein, if the Mortgaged Property becomes subject to any mechanic's,
materialman's, mortgage of other lien except a lien for local real estate taxes
and assessments not then due and payable;
(j) if Mortgagor fails to cure properly any violations of
laws of ordinances materially affecting or which may be interpreted to
materially affect the Mortgaged Property;
(k) except as permitted in this Mortgage, the actual or
threatened alteration, improvement, demolition or removal of any of the
Improvements without the prior consent of Mortgagee;
(l) damage to the Mortgaged Property in any manner which
is not covered by insurance soley as a result of Xxxxxxxxx's failure to maintain
insurance required in accordance with this Mortgage;
(m) if Mortgagor shall continue to be in default under
any term, covenant, or provision of the Note or any of the other Loan Documents,
beyond applicable cure periods contained therein;
(n) if without Mortgagee's prior consent (i) the manager
of the Mortgaged Property is transferred or is removed by Xxxxxxxxx, or (ii) the
manager for the Mortgaged Property approved by Mortgagee resigns and is not
replaced within sixty (60) days by Xxxxxxxxx with a manager satisfactory to
Mortgagee, (iii) the ownership, management or control of such manager is
transferred to a person or entity other than the general partner of managing
member of Xxxxxxxxx, (iv) there is any material change in any management
agreement of the Mortgaged Property, of (V) the manager engaged by Xxxxxxxxx and
approved by Mortgagee fails to execute the Acknowledgement of Property Manager.
(o) entry of a judgment in excess of $100,000 and the
expiration of any appeal rights or the dismissal or final adjudication of
appeals against Mortgagor unless such judgment is vacated within sixty (60)
days following the date of the same;
(p) the Mortgage shall cease to constitute a
first-priority lien on the Mortgaged Property (other than in accordance with its
terms);
(q) seizure of forfeiture of the Mortgaged Property, or
any portion thereof, or Mortgagor's interest therein, resulting from criminal
wrongdoing of other unlawful action of Mortgagor, its Affiliates, or any tenant
in the Mortgaged Property under any federal, state or local law;
(r) if, without Mortgagee's prior written consent,
Mortgagor ceases to continuously operate the Mortgaged Property or any material
portion thereof as the same use that is currently permitted under applicable
zoning or other local laws for nay reason whatsoever (other than temporary
cessation in connection with any damage which is an insured claim under any of
the Policies, a condemnation or taking, or any repair or renovation thereof
undertaken with the consent of Mortgagee);
27
(s) Mortgagor shall fail to deliver any item described in
an undelivered items letter or other post-closing letter on or before the date
set forth in such letter for the delivery of such item; or
(t) there shall occur an "Event of Default" (as such term
is defined in the Other Mortgage) under the Other Mortgage.
23. Notice and Cure. Notwithstanding the foregoing, Mortgagee
agrees to give to Mortgagor written notice as described below of (a) Xxxxxxxxx's
failure to pay any part of the Dabt when due, other than a regularly scheduled
monthly payment of principal, interest revenues, escrows or other amounts,
required under the Note, this Mortgage, or any other Loan Document (a "Noticed
Monetary Default"), (b) a default referred to in subsection 22(p) above (a
"First Lien Default"), and (c) a default referred to in subsections
22(c),(h),(j),(l),(m),(q) or (r) above which is not a Noticed Monetary Default
(a "Noticed Nonmonetary Default"). Without limiting Mortgagee's rights to impose
a late charge for Xxxxxxxxx's nonpayment as provided in the Note, Mortgagor
shall have a period of ten(10) days from its receipt of notice in which to cure
a Noticed Monetary Default which written notice period may run concurrently with
the five (5)-day period referred to in subsection 22(a), shall have a period of
twenty (20) days from its receipt of notice to cure a First Lien Dafault and
shall have a period of thirty (30) days from its receipt of notice in which to
cure a Noticed Nonmonetary Default, provided however, that if such Noticed
Nonmonetary Default is reasonably susceptible of cure, but not within such
thirty (30) day period, then Mortgagor may be permitted up to an additional
sixty (60) days to cure such default provided that Mortgagor diligently and
continuously pursues such cure. Notwithstanding the foregoing, Mortgagee may,
but shall not be required, to give notice of a Noticed Monetary Default or a
recurrence of the same Noticed Monetary Default and/or First Lien Default and/or
Noticed Nonmonetary Default shall nevertheless be an Event of Default for all
purposes under the Loan Documents (including, without limitation, Mortgagee's
right to collect Default Interest and any other administrative charge set forth
in the Note) except that the acceleration of the Debt or other exercise of
remedies shall not be prior to the expiration of the applicable cure and/or
grace periods provided in Section 22 or in this section.
24. Remedies, Upon the occurrence of an Event of Default and
subject to any applicable cure period, Mortgagee may, at Mortgagee's option, and
by or through Trustee, by Mortgagee itself, or otherwise, do any one or more of
the following:
(a) Right to Perform Xxxxxxxxx's Covenants. If Mortgagor
has failed to keep or perform any covenant whatsoever contained in this
Mortgage or the other Loan Documents, Mortgagee may, but shall not be obligated
to any person to do so, perform or attempt to perform said covenant; and any
payment made or expense incurred in the performance or attempted performance of
any such covenant, together with any sum expended by Mortgagee that is
chargeable to Mortgagor or subject to reimbursement by Mortgagor under the Loan
Documents, shall be and become a part of the Debt, and Xxxxxxxxx promises, upon
demand, to pay to Mortgagee, at the place where the Note is payable, all sums so
incurred, paid or expended by Mortgagee, with interest form the date when paid,
incurred or expended by Mortgagee at the Default Rate (as defined and otherwise
specified in the Note).
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(b) Right of Entry. Mortgagee may, prior or subsequent to
the institution of any foreclosure proceedings, enter upon the Mortgaged
Property or any part thereof, and take exclusive possession of the Mortgaged
Property and of all books, records, and accounts relating thereto and to
exercise without interference from Mortgagor any and all rights which Mortgagor
has with respect to the management, possession, operation, protection, or
preservation of the Mortgaged Property, including without limitation the right
to rent the same for the account of Mortgagor and to deduct from such Rents all
costs, expenses, and liabilities of every character incurred by Mortgagee in
collecting such Rents and in managing, operating, maintaining, protecting, or
preserving the Mortgaged Property, and to apply the remainder of such Rents on
the Debt in such manner as Mortgagee may elect. All such costs, expenses, and
liabilities incurred by Mortgagee in collecting such Rents and in managing,
operating, maintaining, protecting, or preserving the Mortgaged Property, if
not paid out of Rents as hereinabove provided, shall constitute demand
obligation owing by Mortgagor and shall bear interest from the date of
expenditure until paid at the Default Rate as specified in the Note, all of
which shall constitute a portion of the Debt. If necessary to obtain the
possession provided for above, Mortgagee may invoke any and all legal remedies
to dispossess Mortgagor, including specifically one or more actions for forcible
entry and detainer, trespass to try title, and restitution. In connection with
any action taken by Mortgagee pursuant to this subsection, Mortgagee shall not
be liable for any loss sustained by Mortgagor resulting from any failure to let
the Mortgaged Property, or any part thereof, or from any other act or omission
of Mortgagee in managing the Mortgaged Property unless such loss is caused by
the willful misconduct of Mortgagee, nor shall Mortgagee be obligated to perform
or discharge any obligation, duty, or liability under any Lease or under or by
reason hereof or the exercise of rights or remedies hereunder. Mortgagor shall
and does hereby agree to indemnify the Indemnified Parties for, and to hold the
Indemnified Parties harmless from, any and all liability, loss, or damage, which
may or might be incurred by any Indemnified Party under any such Lease or under
or by reason hereof or the exercise of rights or remedies hereunder, and from
any and all claims and demands whatsoever which may be asserted against any
Indemnified Party by reason of any alleged obligations or undertakings on its
part to perform or discharge any of the terms, covenants, or agreements
contained in any such Lease, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY, LOSS,
DAMAGE, OR CLAIM CAUSED BY OR RESULTING FROM THE ORDINARY NEGLIGENCE OF ANY
INDEMNIFIED PARTY. Should any Indemnified Party incur any such liability, the
amount thereof, including without limitation costs, expenses, and reasonable
attorneys' fees, together with interest thereon from the date of expenditure
until paid at the Default Rate as specified in the Note, shall be secured
hereby, and Xxxxxxxxx shall reimburse such Indemnified Party therefore
immediately upon demand. Nothing in this subsection shall impose any duty,
obligation, or responsibility upon any Indemnified Party for the control, care
management, leasing, or repair of the Mortgaged Property, nor for the carrying
out of any of the terms and conditions of any such Lease; nor shall it operate
to make any Indemnified Party responsible or liable for any waste committed on
the Mortgaged Property by the tenants or by any other parties, or for any
hazardous substances or environmental conditions on or under the Mortgaged
Property, of for any dangerous or defective condition of the Mortgaged Property
or for any negligence in the management, leasing, upkeep, repair, or control of
the Mortgaged Property resulting in loss or injury or death to any tenant,
licensee, employee, or stranger. Mortgagor hereby assents to, ratifies, and
confirms any and all actions of Mortgagee with respect to the Mortgaged Property
taken under this subsection.
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(c) Right to Accelerate. Mortgage may, without notice
except as provided in Section 23 above, demand, presentment, notice of
nonpayment or nonperformance, protest, notice of protest, notice of intent to
accelerate, notice of acceleration, or any other notice or any other action, all
of which are hereby waived by Xxxxxxxxx and all other parties obligated in any
manner whatsoever on the Debt, declare the entire unpaid balance of the Debt
immediately due and payable, and upon such declaration, the entire unpaid
balance of the Debt shall be immediately due and payable.
(d) Foreclosure-Power of Sale. Mortgagee may institute a
proceeding or proceedings, judicial or non-judicial, by advertisement or
otherwise, for the complete or partial foreclosure of this Mortgage or the
complete or partial sale of the Mortgaged Property under the power of sale
contained herein or under any applicable provision of law. Mortgagee may sell
the Mortgaged Property, and all estate, right, title, interest, claim and demand
of Mortgagor therein, and right of redemption thereof, at one or more sales, as
an entirety or in parcels, with such elements of real and/or personal property,
and at such time and place and upon such terms as it may deem expedient, or as
may be required by applicable law, and in the event of a sale, by foreclosure or
otherwise, of less than all of the Mortgaged Property, this Mortgage shall
continue as a lien and security interest on the remaining portion of the
Mortgaged Property.
(e) Rights Pertaining to Sales. Subject to the
requirements of applicable law and except as otherwise provided herein, the
following provisions shall apply to any sale or sales of all or any portion of
the Mortgaged Property Under or by virtue of subsection 24(d) above, whether
made under the power of sale herein granted or by virtue of judicial proceedings
or of a judgment or decree of foreclosure and sale:
(i) Trustee or Mortgagee may conduct any number of sales
form time to time. The power of sale set forth above shall not be
exhausted by any one or more such sales as to any part of the Mortgaged
Property which shall not have been sold, nor by any sale which is not
completed or is defective in Mortgagee's opinion, until the Debt shall
have been paid in full.
(ii) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or for such
postponed or adjourned sale without further notice.
(iii) After each sale, Mortgagee, Trustee or an officer of
any court empowered to do so shall execute and deliver to the purchaser
or purchasers at such sale a good and sufficient instrument or
instruments granting, conveying, assigning and transferring all right,
title and interest of Xxxxxxxxx in and to the property and rights sold
and shall receive the proceeds of said sale or sales and apply the same
as specified in the Note. Each of Trustee and Mortgagee is hereby
appointed the true and lawful attorney-in-fact of Xxxxxxxxx, which
appointment is irrevocable and shall be deemed to be coupled with an
interest, in Xxxxxxxxx's name and stead, to make all necessary
conveyances, assignments, transfers and deliveries of the property and
rights so sold, Xxxxxxxxx hereby ratifying and confirming all that said
attorney or such substitute or substitutes shall lawfully do by virtue
thereof. Nevertheless,
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Mortgagor, if requested by Trustee of Mortgagee, shall ratify and
confirm any such sale or sales by executing and delivering to Trustee,
Mortgagee or such purchaser or purchasers all such instruments as may
be advisable, in Trustee's or Mortgagee's judgment, for the purposes as
may be designated in such request.
(iv) Any and all statements of fact or other recitals made
in any of the instruments referred to in subsection 24(e)(iii) above
given by Trustee or Mortgagee shall be taken as conclusive and binding
against all persons as to evidence of the truth of the facts so stated
and recited.
(v) Any such sale or sales shall operate to divest all of
the estate, right, title, interest, claim and demand whatsoever,
whether at law or in equity, of Mortgagor in and to the properties and
rights so sold, and shall be a perpetual bar both at law and in equity
against Mortgagor and any and all persons claiming or who may claim the
same, or any part thereof or any interest therein, by, through or under
Mortgagor to the fullest extent permitted by applicable law.
(vi) Upon any such sale or sales, Mortgagee may bid for
and acquire the Mortgaged Property and, in lieu of paying cash
therefor, may make settlement for the purchase price by crediting
against the Debt the amount of the bid made therefor, after deducting
therefrom the expenses of the sale, the cost of any enforcement
proceeding hereunder, and any other sums which Trustee or Mortgagee is
authorized to deduct under the terms hereof, to the extent necessary to
satisfy such bid.
(vii) Upon any such sale it shall not be necessary
for Trustee, Mortgagee or any public officer acting under execution or
order of court to have present or constructively in its possession any
of the Mortgaged Property.
(f) Mortgagee's Judicial Remedies. Mortgagee, or Trustee
upon written request of Mortgagee, may proceed by suit or suits, at law or in
equity, to enforce the payment of the Debt to foreclose the liens and security
interests of this Mortgage as against all or any part of the Mortgaged Property,
and to have all or any part of the Mortgaged Property sold under the judgment or
decree of a court of competent jurisdiction. This remedy shall be cumulative of
any other non-judicial remedies available to Mortgagee under this Mortgage or
the other Loan Documents. Proceeding with a request or receiving a judgment for
legal relief shall not be or be deemed to be an election of remedies or bar any
available non-judicial remedy of Mortgagee.
(g) Mortgagee's Right to Appointment of Receiver.
Mortgagee, as a matter of right and without (i) regard to the sufficiency of the
Security for repayment of the Debt and without notice to Mortgagor, (ii) any
showing of insolvency, fraud, or mismanagement on the part of Xxxxxxxxx, (iii)
the necessity of filing any judicial or other proceeding other than the
proceeding for appointment of a receiver, and (iv) regard to the then value of
the Mortgaged Property, shall be entitled to the appointment of a receiver or
receivers for the protection, possession, control management and operation of
the Mortgaged Property, including (without limitation), the power to collect the
Rents, enforce this Mortgage and, in case of a sale and deficiency, during the
full statutory
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period of redemption (if any), whether there be a redemption or not, as well as
during any further times when Xxxxxxxxx, except for the intervention of such
receiver, would be entitled to collection of such Rents. Xxxxxxxxx hereby
irrevocably consents to the appointment of a receiver or receivers. Any receiver
appointed pursuant to the provisions of this subsection shall have the usual
powers and duties of receivers in such matters.
(h) Mortgagee's Uniform Commercial Code Remedies.
Mortgagee may exercise its right of enforcement under the Uniform Commercial
Code in effect in the state in which the Mortgaged Property is located.
(i) Other Rights. Mortgagee (i) may surrender the
Policies maintained pursuant to this Mortgage or any part thereof, and upon
receipt shall apply the unearned premiums as a credit on the Debt, and, in
connection therewith, Mortgagor hereby appoints Mortgagee as agent and
attorney-in-fact (which is coupled with an interest and is therefore
irrevocable) for Mortgagor to collect such premiums; (ii) may apply the Tax and
Insurance Escrow Fund and/or the Replacement Reserve Fund and any other funds
held by Mortgagee toward payment of the Debt; and (iii) shall have and may
exercise any and all other rights and remedies which Mortgagee may have at law
or in equity, or by virtue of any of the Loan Documents, or otherwise.
(j) Discontinuance of Remedies. In case Mortgagee shall
have proceeded to invoke any right, remedy, or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon same for any
reason, Mortgagee shall have the unqualified right so to do and, in such event,
Mortgagor and Mortgagee shall be restored to their former positions with respect
to the Debt, the Loan Documents, the Mortgaged Property or otherwise, and the
rights, remedies, recourses and powers of Mortgagee shall continue as if same
had never been invoked.
(k) Remedies Cumulative. All rights, remedies, recourses
of Mortgagee granted in the Note, this Mortgage and the other Loan Documents,
any other pledge of collateral, or otherwise available at law or equity: (i)
shall be cumulative and concurrent; (ii) may be pursued separately,
successively, or concurrently against Mortgagor, the Mortgaged Property, or nay
one or more of them, at the sole discretion of Mortgagee; (iii) may be exercised
as often as occasion therefor shall arise, it being agreed by Xxxxxxxxx that the
exercise or failure to exercise any of same shall in no event be construed as a
waiver or release thereof or of any other right, remedy, or recourse; (iv) shall
be nonexclusive; (v) shall not be conditioned upon Mortgagee exercising or
pursuing any remedy in relation to the Mortgaged Property prior to Mortgagee
bringing suit to recover the Debt; and (vi) in the event Mortgagee elects to
bring suit on the Debt and obtains a judgment against Xxxxxxxxx prior to
exercising any remedies in relation to the Mortgaged Property, all liens and
security interests, including the lien of this Mortgage, shall remain in full
force and effect and may be exercised thereafter at Mortgagee's option.
(l) Election of Remedies. Mortgagee may release,
regardless of consideration, any part of the Mortgaged Property without, as to
the remainder, in any way impairing, affecting, subordinating, or releasing the
lien or security interests evidenced by this Mortgage or the other Loan
Documents or affecting the obligations of Mortgagor or any other party to pay
the Debt. For payment of the Debt, Mortgagee may resort to any collateral
securing the payment of the Debt in
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such order and manner as Mortgagee may elect. No collateral taken by Mortgagee
shall in any manner impair or affect the lien or security interests given
pursuant to the Loan Documents, and all collateral shall be taken, considered,
and held as cumulative.
(m) Bankruptcy Acknowledgment. In the event the Mortgaged
Property or any portion thereof or any interest therein becomes property of any
bankruptcy estate or subject to any state or federal insolvency proceeding, then
Mortgagee shall immediately become entitled, in addition to all other relief to
which Mortgagee may be entitled Under this Mortgage, to obtain (i) an order from
Bankruptcy Court or other appropriate court granting immediate relief from the
automatic stay pursuant to Section 362 of the Bankruptcy Code so to permit
Mortgagee to pursue its rights and remedies against Xxxxxxxxx as provided under
this Mortgage and all other rights and remedies of Mortgagee at law and in
equity under applicable state law, and (ii) an order from the Bankruptcy Court
prohibiting Mortgagor's use of all "cash collateral" as defined under Section
363 of the Bankruptcy Code. In connection with such Bankruptcy Court orders,
Xxxxxxxxx shall not contend or allege in any pleading or petition filed in any
court proceeding that Mortgagee does not have sufficient grounds for relief from
the automatic stay. Any bankruptcy petition or other action taken by Xxxxxxxxx
to stay, condition, or inhibit Mortgagee from exercising its remedies are hereby
admitted by Xxxxxxxxx to be in bad faith and Xxxxxxxxx further admits that
Mortgagee would have just cause for relief from the automatic stay in order to
take such actions authorized under state law.
(n) Application of Proceeds. The proceeds from any sale,
lease, or other disposition made pursuant to this Mortgage, or the proceeds from
the surrender of any insurance policies pursuant hereto, or any Rents collected
by Mortgagee from the Mortgaged Property, or the Tax and Insurance Escrow Fund
or the Replacement Reserve Fund or sums received pursuant to Section 7 hereof,
or proceeds from insurance which Mortgagee elects to apply to the Debt pursuant
to Section 3 hereof, shall be applied by Trustee, or by Mortgagee, as the case
may be, to the Debt in the following order and priority: (i) to the payment of
all expenses of advertising, selling, and conveying the Mortgaged Property or
part thereof, and/or prosecuting or otherwise collecting Rents, proceeds,
premiums or other sums including reasonable attorneys' fees and a reasonable fee
or commission to Trustee, not to exceed five percent of the proceeds thereof or
sums so received; (ii) to that portion, if any, of the Debt with respect to
which no person or entity has personal or entity liability for payment (the
"Exculpated Portion"), and with respect to the Exculpated Portion as follows:
first, to accrued but unpaid interest, second, to matured principal, and third,
to unmatured principal in inverse order of maturity; (iii) to the remainder of
the Debt as follows: first, to the remaining accrued but unpaid interest,
second, to the matured portion of principal of the Debt, and third, to
prepayment of the unmatured portion, if any, of principal of the Debt applied to
installments of principal in inverse order of maturity; (iv) the balance, if any
or to the extent applicable, remaining after the full and final payment of the
Debt to the holder or beneficiary of any inferior liens covering the Mortgaged
Property, if any, in order of the priority of such inferior liens (Trustee and
Mortgagee shall hereby be entitled to rely exclusively on a commitment for title
insurance issued to determine such priority); and (v) the cash balance, if any,
to Mortgagor. The application of proceeds of sale or other proceeds as otherwise
provided herein shall be deemed to be a payment of the Debt like any other
payment. The balance of the Debt remaining unpaid, if any, shall remain fully
due and owing in accordance with the terms of the Note and the other Loan
Documents.
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25. Security Agreement. This Mortgage is both a real property
Mortgage or deed of trust and a "security agreement" within the meaning of the
Uniform Commercial Code. The Mortgaged Property includes both real and personal
property and all other rights and interests, whether tangible or intangible in
nature, of Mortgagor in the Mortgaged Property. Mortgagor by executing and
delivering this Mortgage has granted and hereby grants to Mortgagee, as security
for the Debt, a security interest in the Mortgaged Property to the full extent
that the Mortgaged Property may be subject to the Uniform Commercial Code (said
portion of the Mortgaged Property so subject to the Uniform Commercial Code
being called in this section the "Collateral"). Mortgagor hereby agrees with
Mortgagee to execute and deliver to Mortgagee, in form and substance
satisfactory to Mortgagee, such financing statements and such further assurances
as Mortgagee may from time to time, reasonably consider necessary to create,
perfect, and preserve Mortgagee's security interest herein granted. This
Mortgage shall also constitute a "fixture filing" for the purposes of the
Uniform Commercial code. All or part of the Mortgaged Property are or are to
become fixtures. Information concerning the security interest herein granted may
be obtained from the parties at the addresses of the parties set forth in
paragraph of this Mortgage. If an Event of Default shall occur, Mortgagee, in
addition to any other rights and remedies which it may have, shall have and may
exercise immediately and without demand, any and all rights and remedies granted
to a secured party upon default under the Uniform Commercial Code, including,
without limiting the generality of the foregoing, the right to take possession
of the Collateral or any part thereof, and to take such other measures as
Mortgagee may deem necessary for the care, protection and preservation of the
Collateral. Upon request or demand of Mortgagee, Mortgagor shall at its expense
assemble the Collateral and make it available to Mortgagee at a convenient place
acceptable to Mortgagee. Mortgagor shall pay to Mortgagee on demand any and all
expenses, including legal expenses and attorneys' fees, incurred or paid by
Mortgagee in protecting the interest in the Collateral and in enforcing the
rights hereunder with respect to the Collateral. Any notice of sale, disposition
or other intended action by Mortgagee with respect to the Collateral sent to
Mortgagor in accordance with the provisions hereof at least five (5) days prior
to such action, shall constitute commercially reasonable notice to Mortgagor.
The proceeds of any disposition of the Collateral, or any part thereof, may be
applied by Mortgagee to the payment of the Debt in such priority and proportions
as Mortgagee in its discretion shall deem proper. In the event of any change in
name, identity or structure of any Mortgagor, such Mortgagor shall notify
Mortgagee thereof and promptly after request shall execute, file and record such
Uniform Commercial Code forms as are necessary to maintain the priority of
Mortgagee's lien upon and security interest in the Collateral, and shall pay all
expenses and fees in connection with the filing and recording thereof. If
Mortgagee shall require the filing or recording of additional Uniform Commercial
Code forms or continuation statements, Mortgagor shall, promptly after request,
execute, file and record such Uniform Commercial Code forms or continuation
statements as Mortgagee shall deem necessary, and shall pay all expenses and
fees in connection with the filing and recording thereof,it being understood and
agreed, however, that no such additional documents shall increase Mortgagor's
obligations under the Note, this Mortgage and the other Loan Documents.
Mortgagor hereby irrevocably appoints Mortgagee as its attorney-in-fact, coupled
with an interest, to file with the appropriate public office on its behalf any
financing or other statements signed only by Mortgagee, as Xxxxxxxxx's
attorney-in-fact, in connection with the Collateral covered by this Mortgage.
Notwithstanding the foregoing Mortgagor shall appear and defend in any action or
proceeding which affects or purports to affect the Mortgaged Property and
34
any interest or right therein, whether such proceeding affects title or any
other rights in the Mortgaged Property (and in conjunction therewith, Mortgagor
shall fully cooperate with Mortgagee in the event Mortgagee is a party to such
action or proceeding).
26. Right of Entry. In addition to any other rights or remedies
granted under this Mortgage, Mortgagee and its agents shall have the right to
enter and inspect the Mortgaged Property and Mortgagor's place of business,
including its financial and accounting records, and to make copies and take
extracts therefrom, and to discuss its affairs finances and business with its
officers and independent public accountants (with such Xxxxxxxxx's
representative(s) present) at any reasonable time during the term of the Loan
and as often as may be reasonably requested. The cost of such inspections or
audits shall be borne by Mortgagor should Mortgagee determine that an Event of
Default exists, including the cost of all follow up or additional investigations
or inquiries deemed reasonably necessary by Mortgagee. The cost of such
inspections, if not paid for by Xxxxxxxxx following demand, may be added to the
principal balance of the sums due under the Note and this Mortgage and shall
bear interest thereafter until paid at the Default Rate.
27. Actions and Proceedings. Mortgagee has the right to appear in
and defend any action or proceeding brought with respect to the Mortgaged
Property and to bring any action or proceeding, in the name and on behalf of
Mortgagor, which Mortgagee, in its discretion, decides should be brought to
protect its interest in the Mortgaged Property. Mortgagee shall, at its option,
be subrogated to the lien of any mortgage or other security instrument
discharged in whole or in part by the Debt, and any such subrogation rights
shall constitute additional security for the payment of the Debt.
28. Waiver of Setoff and Counterclaim, Marshalling, Statute of
Limitations, Automatic or Supplemental Stay, Etc. (a) All amounts due under this
Mortgage, the Note and the other Loan Documents shall be payable without setoff,
counterclaim or any deduction whatsoever. Mortgagor hereby waives the right to
assert a setoff, counterclaim or deduction in any action or proceeding in which
Mortgagee is a participant, or arising out of or in any way connected with this
Mortgage, the Note, any of the other Loan Documents, or the Debt.
(b) Mortgagor hereby expressly, irrevocably, and
unconditionally waives and releases, to the extent permitted by law (i) the
benefit of all appraisement, valuation, stay, extension, reinstatement and
redemption laws now or hereafter in force and all rights of marshalling, sale in
the inverse order of alienation, or any other right to direct in any manner the
order or sale of any of the Mortgaged Property in the event of any sale
hereunder of the Mortgaged Property or any part thereof or any interest therein;
(ii) any and all rights of redemption from sale under any order or decree of
foreclosure of this Mortgage on behalf of Mortgagor, and on behalf of each and
every person acquiring any interest in or title to the Mortgaged Property
subsequent to the date of this Mortgage and on behalf of all persons to the
extent permitted by applicable law; (iii) all benefits that might accrue to
Mortgagor by virtue of any present or future law exempting the Mortgaged
Property from attachment, levy or sale on execution or providing for any
appraisement, valuation, stay of execution, exemption from civil process,
redemption, or extension of time for payment; and (iv) all notices of any Event
of Default except as expressly provided herein or of Trustee's exercise of any
right, remedy, or recourse provided for under the Loan Documents.
35
(c) To the extent permitted by applicable law, Mortgage's
rights hereunder shall continue even to the extent that a suit for collection of
the Debt, or part thereof, is barred by a statute of limitations. Mortgagor
hereby expressly waives and releases to the fullest extent permitted by law, the
pleading of any statute of limitations as a defense to payment of the Debt.
(d) In the event of the filing of any voluntary or
involuntary petition under the U.S. Bankruptcy Code (the "Bankruptcy Code") by
or against Mortgagor (other than an involuntary petition filed by or joined in
by Mortgagee), Mortgagor shall not assert, or request any other party to assert,
that the automatic stay under Section 362 of the Bankruptcy Code shall operate
or be interpreted to stay, interdict, condition, reduce or inhibit the ability
of Mortgagee to enforce any rights it has by virtue of this Mortgage, or any
other rights that Motgagee has, whether now or hereafter acquired, against any
guarantor of the Debt. Further, Mortgagor shall not seek a supplemental stay or
any other relief, whether injunctive or otherwise, pursuant to Section 105 of
the Bankruptcy Code or any other provision therein to stay, interdict,
condition, reduce or inhibit the ability of Mortgagee to enforce any rights it
has by virtue of this Montage against any guarantor of the Debt. The waivers
contained in this section are a material inducement to Mortgagee's willingness
to enter into this Mortgage and Xxxxxxxxx acknowledges and agrees that no
grounds exist for equitable relief which would bar, delay or impede the exercise
by Mortgagee of Mortgagee's rights and remedies against Mortgagor or any
guarantor of the Debt.
29. Contest of Certain Claims. Notwithstanding the provisions of
Section 4 and subsection 22(i) hereof, Mortgagor shall not be in default for
failure to pay or discharge Taxes, Other Charges or mechanic's or material man's
liens asserted against the Mortgaged Property if, and so long as, (a) Mortgagor
shall have notified Mortgagee of same within five (5) days of obtaining
knowledge thereof (b) Mortgagor shall diligently and in good faith content the
same by appropriate legal proceedings which shall operate to prevent the
enforcement or collection of the same and the sale of the Mortgaged Property or
any part thereof, to satisfy the same; (c) Mortgagor shall have furnished to
Mortgagee a cash deposit, or an indemnity bond satisfactory to Mortgagee with a
surety satisfactory to Mortgagee, in the amount of the Taxes, Other Charges or
mechanic's or materialman's lien claim, plus a reasonable additional sum to pay
all costs, interest and penalties that may be imposed or incurred in connection
therewith to assure payment of the matters under contest and to prevent any sale
or forfeiture of the Mortgaged Property or any part thereof; (d) Mortgagor shall
promptly upon final determination thereof pay the amount of any such Taxes,
Other Charges or claim so determined, together with all costs, interest and
penalties which may be payable in connection therewith; (e) the failure to pay
the Taxes, Other Charges or mechanic's or materialman's lien claim does not
constitute a default under any other deed of trust, mortgage or security
interest covering or affecting any part of the Mortgaged Property; and (f)
notwithstanding the foregoing, Mortgagor shall immediately upon request of
Mortgagee pay ( and if Mortgagor shall fail so to do, Mortgagee may, but shall
not be required to, pay or cause to be discharged or bonded against) any such
Taxes, Other Charges or claim notwithstanding such content, if in the opinion of
Mortgagee, the Mortgaged Property or any part thereof or interest therein may be
in danger of being sold, forfeited, foreclosed, terminated, canceled or lost.
Mortgagee may pay over any such cash deposit or part thereof to the claimant
entitled thereto at any time when, in the judgment of Mortgagee, the entitlement
of such claimant is established.
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30. Recovery of Sums Required to Be Paid. Mortgagee shall have the
right from time to take action to recover any sum or sums which constitute a
part of the Debt as the same become due, without regard to whether or not the
balance of the Debt shall be due, and without prejudice to the right of
Mortgagee thereafter to bring an action of foreclosure, or any other action, for
a default or defaults by Mortgagor existing at the time such earlier action
was commenced.
31. Handicapped Access. (a)Xxxxxxxxx agrees that the Mortgaged
Property shall at all times comply in all material respects with applicable
requirements of the Americans with Disabilities Act of 19990, the Fair Housing
Amendments Act of 1988, all state and local laws and ordinances related to
handicapped access and all rules, regulations and orders issued pursuant thereto
including, without limitation, the Americans with Disabilities Act Accessibility
Guidelines for Buildings and Facilities (collectively, "Access Laws").
(b) Notwithstanding any provisions set forth herein or in
any other document regarding Mortgage's approval of alterations of the Mortgaged
Property, Mortgagor shall not alter the Mortgaged Property in any manner which
would increase Mortgagor's responsibilities for compliance with the applicable
Access Laws without the prior written approval of Mortgagee. The forgoing shall
apply to tenant improvements constructed by Mortgagor or by any of its tenants.
Mortgagee may condition any such approval upon receipt of a certificate from an
architect, engineer, or other person acceptable to Mortgagee of compliance with
Access Law.
(c) Xxxxxxxxx agrees to give prompt notice to Mortgagee
of the receipt by Xxxxxxxxx of any complaints related to violation of any Access
Laws of the commencement of any proceedings or investigations which related to
compliance with applicable Access Laws.
32. Indemnification; Limitation of Legality. (a) Unless caused
solely by an Indemnified Party's gross negligence or willful misconduct AND
REGARDLESS OF WHETHER CAUSED BY AN INDEMNIFIED PARTY'S ORDINARY NEGLIGENCE,
Xxxxxxxxx shall protect defend, indemnify and save harmless the Indemnified
Parties from and against all liabilities, obligations, claims, damages,
penalties, cause of action, costs and expenses (including without limitation
reasonable attorney's fees and expenses), imposed upon or incurred by or
asserted against any Indemnified Party by reason of (i) ownership of the
Mortgage, the Mortgaged Property or any interest therein or receipt of any
rents; (ii) any accident, injury to or death of persons or loss of or damage to
property occurring in, on or about the Mortgaged Property or any part thereof or
on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (iii) any use, nonuse or condition in, on or about the
Mortgaged Property or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (iv) performance
of any labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof; (v) any action taken by
any Indemnified Party in the enforcement of this Mortgage and the other Loan
Documents; (vi) any failure to act on the party of any Indemnified Party
hereunder; (vii) the payment or nonpayment of any breakage commissions to any
party in connection with the transaction contemplated hereby; and (viii) the
failure of Mortgagor to file timely with the Internal Revenue Service an
accurate Form 1099-B, Statement for Recipients of Proceeds from Real Estate,
Broker and Barter Exchange Transactions, which may be required in connection
with this Mortgage, or to supply a copy thereof in a timely fashion to the
recipient of the proceeds
37
of the transaction in connection with which this Mortgage is made. Any amounts
payable to an Indemnified Party by reason of the application of this section
shall become immediately due and payable and shall bear interest at the Default
Rate from the date loss of damage is sustained by such Indemnified Party until
paid.
(b) Neither Mortgagee, nor any affiliate, officer,
director, employee, attorney, of agent of Mortgagee, shall have any liability
with respect to, and Mortgagor hereby waives, releases, and agrees not to sue
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by Xxxxxxxxx in connection with,
arising out of, or in contemplated by this Mortgage or any of the other Loan
Documents, other than the willful misconduct or gross negligence of a Mortgagee.
Mortgagor hereby waives, releases, and agrees not to sue Mortgagee or any of
Mortgagee's affiliates, officers, directors, employees, attorneys, or agents to,
this Mortgage or any of the other Loan Documents, or any of the transactions
contemplated by this Mortgage or any of the transactions contemplated hereby
except to the extent same is caused by the willful misconduct of gross
negligence of Mortgagee.
33. Trustee. Trustee may resign by the giving of notice of such
resignation in writing or verbally to Mortgagee. If Trustee shall die, resign or
become disqualified from acting in the execution of this trust, or if, for any
reason Mortgagee shall prefer to appoint a substitute trustee or multiple
substitute trustees, or successive substitute trustees or successive multiple
substitute trustees, to act instead of the aforenamed Trustee, Mortgagee shall
have full power to appoint a substitute trustee (or, if preferred, multiple
substitute trustees) in succession who shall succeed (and if multiple substitute
trustees are appointed, each of such multiple substitute trustees shall succeed)
to all the estates, rights, powers, and duties of the aforenamed Trustee. Such
appointment may be executed by any authorized agent of Mortgagee, and if such
Mortgagee be a corporation and such appointment be executed in its behalf by any
officer of such corporation, such appointment shall be conclusively presumed to
be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors of any superior officer of the corporation.
Xxxxxxxxx hereby ratifies and confirms any and all acts which the aforenamed
Trustee, or his successor or successors in this trust, shall do lawfully by
virtue hereof. If multiple substitute Trustees are appointed, each of such
multiple substitute Trustees shall be empowered and authorized to act alone
without the necessity of the joinder of the other multiple substitute trustees,
whenever any action or undertaking of such substitute trustees is requested or
required under or pursuant to this Mortgage of applicable law. Any substitute
trustee appointed pursuant to any of the provisions hereof shall, without any
further act, deed, or conveyance, become vested with all the estates,
properties, rights, powers and trusts of its or his predecessor in the rights
hereunder with like effect as if originally named as Trustee herein, but
nevertheless, upon the written request of Mortgagee or of the substitute
Trustee, Trustee ceasing to act shall execute and deliver any instrument
transferring to such substitute Trustee, upon the trusts herein expressed, all
the estates, properties, rights powers, and trusts of Trustee so ceasing to act,
and shall duly assign, transfer and deliver any of the property and moneys held
by such Trustee to the substitute Trustee so appointed in Trustee's place, No
fees or expenses shall be payable to trustee, except in connection with a
foreclosure of the Mortgaged Property or any part thereof or in connection with
the release of the Mortgaged Property following payment in full of the Debt.
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34. Notices. Any notice, demand, statement, request or consent
made hereunder shall be in writing, addressed to the address, as set forth above
, of the party to whom such notice is to be given, or to such other address as
Mortgagor or Mortgagee, as the case may be, shall designate in writing, and
shall be deemed to be received by the addressee on (a) the day such notice is
personally delivered to such addressee, (b) the third (3rd) day following the
day such notice is deposited with the United States postal service first class
certified mail, return receipt requested, (c) the day following the day on which
such notice is delivered to a nationally recognized overnight courier delivery
service, or (d) the day facsimile transmission is confirmed after transmission
of such notice by telecopy to such telecopier number as Mortgagor or Mortgagee,
as the case may be, shall have previously designated in writing.
35. Authority. (a)Mortgagor (and the undersigned representative of
Mortgagor, if any) has full power, authority and right to execute, deliver and
perform its obligations pursuant to this Mortgage, and to mortgage, give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and
assign the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Mortgage on Mortgagor's part to be performed;
and (b) Mortgagor represents and warrants that Mortgagor is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended and the related Treasury Department regulations.
36. ERISA. (a) As of the date hereof and throughout the term of
the Loan, Xxxxxxxxx represents and covenants that (i) it is not and will not be
an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA, and (ii) the assets of Mortgagor do not and will not constitute "plan
assets" of one or more such plans for purposes of Title I of ERISA.
(b) As of the date hereof and throughout the term of the
Loan, Mortgagor represents and covenants that (i) it is not and will not be a
"governmental plan" within the meaning of Section 3(3) of ERISA, and (ii)
transactions by or with Mortgagor are not and will not be subject to state
statutes applicable to Mortgagor regulating investments of and fiduciary
obligations with respect to governmental plans.
(c) As of the date hereof and throughout the term of the
Loan, Xxxxxxxxx represents and covenants that (i) it is not and will not be
subject to state statutes regulating investments and fiduciary obligations with
respect to governmental plans, and (ii) one or more of the following
circumstances is and will continue through the term of the Loan to be true:
(A) Enquiry interests in Mortgagor are publicly
offered securities, within the meaning of 29 C.F.R Section 2510.3- 101
(b)(2);
(B) Less than twenty- five percent (25%) of each
outstanding class of equity interests in Mortgagor are held by "benefit
plan investors" within the meaning of 29 C.F.R. Section 2510.3-101(f)
(2); or
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(C) Xxxxxxxxx qualifies as an "operating company
" or a "real estate operating company" within the meaning of 29 C.F.R.
Section 2510.3- 101(c) or (e), or an investment company registered
under The Investment Company Act of 1940.
37. Waiver of Notice. Mortgagor shall not be entitled to any
notices of any nature whatsoever from Mortgagee except respect to matters for
which this Mortgage specifically and expressly provides for the giving of notice
by Mortgagee to Mortgagor and except with respect to matters for which Mortgagee
is required by applicable law to give notice, and Mortgagor hereby expressly
waives the right to receive any notice from Mortgagee with respect to any matter
for which this Mortgage does not specially and expressly provide for the giving
of notice by Mortgagee to Mortgagor.
38. Remedies of Mortgagor. In the event that a claim or
adjudication is made that Mortgagee has acted unreasonably delayed acting in any
case where by law or under the Note, this Mortgage or the other Loan Documents,
it has an obligation to act reasonably or promptly, Mortgagee shall not be
liable for any monetary damages, and Xxxxxxxxx's remedies shall be limited to
injunctive relief or declaratory judgment.
39. Sole Discretion of Mortgagee. Whenever pursuant to this
Mortgage or the other Loan Documents, Mortgagee exercises any right given to it
to consent, approve or disapprove, or any arrangement or term is to be
satisfactory to Mortgagee, the decision of Mortgagee to consent, approve or
disapprove, or to decide that arrangements or terms are satisfactory or not
satisfactory shall be in the sole discretion of Mortgagee and shall be final and
conclusive, except as may be otherwise expressly and specifically provided
herein. Notwithstanding anything to the contrary contained herein, it shall be
understood and agreed that any such consent, approval, or disapproval may be
conditioned, among other things, upon Mortgagee obtaining confirmation by the
Rating Agencies that the action or other matter subject to Mortgagee's consent,
approval, or disapproval shall not adversely affect the rating of any securities
issued or to be issued in connection with any Secondary Market Transaction,
notwithstanding that such condition may not be expressly set forth in the
provision or provisions of the Loan Documents which require that Mortgagee's
consent be obtained.
40. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations
hereunder by reason of (a) the failure of Mortgagee to comply with any request
of Mortgagor or Guarantor to take any action to foreclose this Mortgage or
otherwise enforce any of the provision hereof or of the Note or other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Debt or any
portion thereof, or (c) any agreement or stipulation by Mortgagee extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Mortgage, or the other Loan Documents. Mortgagee may resort for the payment
of the Debt to any other security held by Mortgagee in such order and manner as
Mortgagee, in its discretion, may elect. Mortgagee may take action to recover
the Debt, or any potion thereof, or to enforce any covenant hereof without
prejudice to the right of Mortgagee thereafter to foreclosure this Mortgage. The
rights and remedies of Mortgagee under this Mortgage shall be separate, distinct
and cumulative and
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none shall be given effect to the exclusion of the others. No act of Mortgagee
shall be construed as an election to proceed under any one provision herein to
the exclusion of any other provision. Mortgagee shall not be limited
exclusively to the rights and remedies herein stated but shall be entitled to
every right and remedy now or hereafter afforded at law or in equity.
41. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Mortgagee's consent to any
transfer of the Mortgaged Property, this Mortgage shall be binding upon and
inure to the benefit of Mortgagor and Mortgagee and their respective successors
and assigns forever.
42. Inapplicable Provisions. If any term, covenant or condition of
this Mortgage is held to be invalid, illegal or unenforceable in any respect,
this Mortgage shall be construed without such provision.
43. Headings, Etc. The headings and captions of various sections
of this Mortgage are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
44. Counterparts. This Mortgage may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
45. Definitions. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Mortgage may be used interchangeably in singular or plural form and the word
"Mortgagor" shall mean "each Mortgagor and any subsequent owner or owners of the
Mortgaged Property or any part thereof or any interest therein," the word
"Mortgagee" shall mean "Mortgagee and any subsequent holder of the Note," the
word "Debt" shall mean "the Note and any other evidence of indebtedness secured
by this Mortgage Property," the word "person" shall include an individual,
corporation, partnership, trust, unincorporated association, government,
governmental authority, and any other entity, and the words "Mortgaged
Property" shall include any portion of the Mortgaged Property and any interest
therein and the words "attorneys'fees" shall include any and all attorneys'fees,
paralegal an law clerk fees, including, but not limited to, fees at the
pre-trial, trial and appellate levels incurred or paid by Mortgagee in
protecting its interest in the Mortgaged Property and Collateral and enforcing
its rights hereunder. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
46. Homestead. Mortgagor hereby waives and renounces all homestead
and exemption rights provided by the constitution and the laws of the United
States and of any state, in and to the Premises as against the collection of the
Debt, or any part hereof.
47. Assignments. Mortgagee shall have the right to assign or
transfer its rights under this Mortgage and the Loan Documents without
limitation, including, without limitation, the right
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to assign or transfer its rights to a servicing agent. Any assignee or
transferee shall be entitled to all the benefits afforded Mortgagee under this
Mortgage and the other Loan Documents.
48. Survival of Obligations; Survival of Warranties and
Representations. Each and all of the covenants, obligations, representations and
warranties of Mortgagor shall survive the execution and delivery of the Lean
Documents and the transfer or assignment of this Mortgage (including, without
limitation, any transfer of the Mortgage by Mortgagee of any of its rights,
title and interest in and to the Mortgaged Property to any party, whether or not
affiliated with Mortgagee), and shall also survive the entry of a
judgement of foreclosure, sale of the Mortgaged Property by non-judicial
foreclosure or deed in lieu of foreclosure and satisfaction of the Debt.
49. Covenants Running with the Land. All covenants, conditions,
warranties, representations and other obligations contained in this Mortgage and
the other Loan Documents are intended by Mortgagor, Mortgagee and Trustee to be,
and shall be construed as, covenants running with the Mortgaged Property until
the lien of this Mortgage has been fully released my Mortgagee.
50. Governing Law; Jurisdiction. THIS MORTGAGE AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED (WITHOUT REGARD TO ANY CONFLICT
OF LAWS PRINCIPLES) AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
MORTGAGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF
COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE MORTGAGED PROPERTY IS
LOCATED IN CONNECTION WITH ANY PROCEEDING OUT OF OR RELATING TO THIS MORTGAGE.
51. Time. Time is of the essence in this Mortgage and the other
Loan Documents.
52. No Third-Party Beneficiaries. The Provisions of this
Mortgage and the other Loan Documents are for the benefit of
Mortgagor, Mortgagee and Trustee and shall not inure to the benefit of any third
party (other than any successor or assignee of either Trustee or Mortgagee).
This Mortgage and the other Loan Documents shall not be construed as creating
any rights, claims or causes of action against Mortgagee or any of its officers,
directors, agents or employees in favor of any party other than Mortgagor
including but not limited to any claims to any sums held in the Tax and
Insurance Escrow Fund or the Replacement Reserve Fund.
53. Relationship of Parties. The relationship of Mortgagee and
Xxxxxxxxx is solely that of debtor and creditor, and Mortgagee has no fiduciary
or other special relationship with Xxxxxxxxx, and no term or condition of any of
the Loan Documents shall be construed to be other than that of debtor and
creditor. Xxxxxxxxx represents and acknowledges that the Loan Documents do not
provide for any shared appreciation rights or other equity participation
interest.
54. Trustee Provisions.
(a) The foregoing sections of this Mortgage contain
standard provisions for use in multiple states. In the event of any conflict
between the terms and provisions of this section and
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any other provision of this Mortgage, the terms and provisions of this section
shall govern and control.
(b) This instrument shall constitute an be a deed of
trust, security agreement and financing statement (notwithstanding any
references to this instrument as the "Mortgage"). In confirmation thereof and of
the grant of the Mortgaged Property to Trustee set forth above, Xxxxxxxxx does
hereby further GRANT, BARGAIN AND SELL, CONVEY AND CONFIRM unto Trustee the
Mortgaged Property. TO HAVE AND TO HOLD the same unto Trustee and the successor
or successors of Trustee in this trust forever, in trust, for the benefit of
Mortgagee, all upon and in accordance with the terms of this Mortgage.
Notwithstanding anything contained in this Mortgage, Trustee (including any
successor of Trustee) shall have the power of sale under this Mortgage in lieu
of Mortgagee, and all references in the Mortgage to Mortgagee having a power of
sale shall refer instead to the power of sale in Trustee, except that this shall
not limit the powers of Mortgagee as the secured party pursuant to the Security
Agreement as set forth in Section 25 above. The construction of this instrument
as a deed of trust and the grant to Trustee as set forth above shall not limit
the rights and authorities separately granted to Mortgagee under this Mortgage
except as expressly provided in this Section 54 and shall not limit the
Assignment of Rents and Leases and Rents (as hereinafter defined) of even date
herewith between Mortgagor and Mortgagee with respect to the Mortgaged Property.
55. Investigations. Any and all representations, warranties,
covenants and agreements made in this Mortgage (and/or in other Loan Documents)
shall survive any investigation or inspection made by or on behalf of Mortgagee.
56. Assignment of Leases and Rents. (a) Xxxxxxxxx acknowledges and
confirms that it has executed and delivered to Mortgagee an Assignment of Leases
and Rents of even date (as the same may be amended, restated, supplemented, or
otherwise modified from time to time, the "Assignment of Leases and Rents"),
intending that such instrument create a present, absolute assignment to
Mortgagee of the Leases and Rents. Without limiting the intended benefits or
the remedies provided under the Assignment of Lease and Rents, Mortgagor hereby
assigns to Mortgagee, as further security for the Debt and the Obligations, the
Leases and Rents. While any Event of Default exists, Mortgagee shall be entitled
to exercise any or all of the remedies provided in the Assignment of Leases and
Rents and in Section 24 hereof, including, without limitation, the right to have
a receiver appointed. If any conflict or inconsistency exists between the
assignment of the Leases and the Rents in this Mortgage and the absolute
assignment of the Leases and the Rents in the Assignment of Leases and Rents,
the terms of the Assignment of Leases and Rents shall control.
(b) So long as any part of the Debt and the Obligations
secured hereby remain unpaid and undischarged, the fee and leasehold estates
to the Mortgaged Property shall not merge, but shall remain separate and
distinct, notwithstanding the union of such estates either in Mortgagor,
Mortgagee, any lessee or any third party by purchase or otherwise.
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57. Waiver of Right to Trial by Jury. XXXXXXXXX XXXXXX AGREES NOT
TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY
RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS MORTGAGE OR THE OTHER LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER
OF THE RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY XXXXXXXXX,
AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO
WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. MORTGAGEE IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY XXXXXXXXX.
58. Expenses and Attorneys' Fees. Xxxxxxxxx agrees to promptly pay
all reasonable fees, costs and expenses incurred by Mortgagee in connection with
any matters contemplated by or arising out of this Mortgage and the Loan
Documents, including the following, and all such fees, costs and expenses shall
be part of the Debt, payable on demand: (a) reasonable fees, costs and expenses
(including reasonable attorney's fees, and other professionals retained by
Mortgagee) incurred in connection with the examination, review, due diligence
investigation, documentation and closing of the financing arrangements evidenced
by the Loan Documents; (b) reasonable fees, costs and expenses (including
reasonable attorneys' fees and other professionals retained by Mortgagee)
incurred in connection with the administration of the Loan Documents and the
loan and any amendments, modifications and waivers relating thereto; (c)
reasonable fees, costs and expenses (including reasonable attorneys' fees)
incurred in connection with the review, documentation, negotiation, closing and
administration of any subordination or intercreditor agreements; and (d)
reasonable fees, costs and expenses (including attorneys' fees and fees of other
professionals retained by Mortgagee) incurred in any action to enforce this
Mortgage or the other Loan Documents or to collect any payments due from
Mortgagor under this Mortgage, the Note or any other Loan Document or incurred
in connection with any refinancing or restructuring of the credit arrangements
provided under this Mortgage, whether in the nature of a "workout" or in
connection with any insolvency or bankruptcy proceedings or otherwise.
59. Amendments and Waivers. Except as otherwise provided herein,
no amendment, modification, termination or waiver of any provision of this
Mortgage, the Note or any other Loan Document, or consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Xxxxxxxxx, Mortgagee and any other party to be charged. Each
amendment, modification, termination or waiver shall be effective only in the
specific instance and for the specific purpose for which it was given. No notice
to or demand on Mortgagor in any case shall entitle Mortgagor to any other or
further notice or demand in similar or other circumstances unless otherwise
provided herein.
60. Sophisticated Parties; Reasonable Terms. Xxxxxxxxx represents,
warrants and acknowledges that (a) Mortgagor is a sophisticated real estate
investors, familiar with transactions of this kind, and (b) Xxxxxxxxx has
entered into this Mortgage and the other Loan Documents after conducting its own
assessment of the alternatives available to them in the market, and after
lengthy negotiations in which they have been represented by legal counsel of
their choice. Mortgagor also
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acknowledges and agrees that the rights of Mortgagee under this Mortgage and the
other Loan Documents and reasonable and appropriate, taking into consideration
all of the facts and circumstances including without limitation the quantity of
the loan secured by this Mortgage, the nature of the Mortgaged Property, and the
risks incurred by the Mortgagee in this transaction.
61. Servicer. Mortgagee shall have the right at any time
throughout the term of the loan to designate a loan servicer to administer this
Mortgage and the other Loan Documents. All of Mortgagee's rights under this
Mortgage and the Loan Documents may be exercised by any such servicer designated
by Mortgagee. Any such servicer shall be entitled to the benefit of all
obligations of Mortgagor in favor of Mortgagee.
62. No Duty. All loan servicers, attorneys, accountants,
appraisers, and other professionals and consultants retained by Mortgagee or any
such loan servicers shall have the right to act exclusively in the interest of
Mortgagee and shall have no duty of disclosure, duty of loyalty, duty of care,
or other duty or obligation of any type or nature whatsoever to Mortgagor, any
Guarantor or Affiliate.
63. Virginia-specific Provisions. This Deed of Trust is made under
and pursuant to the provisions of the Code of Virginia, 1950, Sections 26-49,
55.58.1, 55-59, 55-59.1 through 55-59.4, and 55-60, as amended, and shall be
construed to impose and confer upon the parties hereto and mortgagee all the
rights, duties, and obligations prescribed by said Sections 26-49, 55.58.1,
55-59, 55-59.1 through 55-59.4, and 55-60, as amended, except as herein
otherwise restricted, expanded or changed, including without limitation the
following rights, duties and obligations described in short form:
(i) All exemptions are hereby waived.
(ii) Subject to [c] all upon default.
(iii) Renewal, extension or reinstatement
permitted.
(iv) Substitution of the trustees collectively or
of any of them individually by Beneficiary
is permitted for any reason whatsoever, and
any number of times without exhaustion of
the right to do so.
(v) Advertisement required, once a week for two
successive weeks in any newspaper of general
circulation in the county in which the
Property is situate.
(vi) Any trustee may act.
(vii) The Trustee may require a deposit in the
amount of two percent (2%) of the unpaid
principal indebtedness then secured hereby
or Fifty Thousand Dollars ($50,000.00),
whichever is greater, to accompany each bid
at foreclosure sale or sale in lieu thereof.
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64. Special Collateral-Related Provisions. (a) Xxxxxxxxx
acknowledges and agrees that Mortgagee would not make the Loan to Mortgagor or
the loan constituting the Related Debt unless Xxxxxxxxx and the Other Borrower
granted liens on the collateral owned by Xxxxxxxxx and the Other Borrower,
respectively, to secure the payment of the Debt and the Related Debt (subject to
Xxxxxx's election(s) at Xxxxxx's sole discretion from time to time pursuant to
Section 64(g) below).
(b) Mortgagor (i) shall have no right of subrogation with
respect to the Related Debt and (ii) waives any right to enforce any remedy
which Mortgagee now has or may hereafter have against the Other Borrower, any
endorser or any guarantor of all or any part of the Related Debt or any other
individual or entity, and Mortgagor waives any benefit of, and any right to
participate in, any security or collateral given to Mortgagee to secure the
payment or performance of all or any part of the Related Debt or any other
liability of the Other Borrower to Mortgagee. Should Mortgagor have the right,
notwithstanding the foregoing, to exercise its subrogation rights, Mortgagor
hereby expressly and irrevocably (1) subordinates any and all rights at law or
in equity to subrogation, reimbursement, exoneration, contribution,
indemnification or set off that Mortgagor may have to the payment in full in
cash of the Debt and the Related Debt and (2) waives any and all defenses
available to a surety, guarantor or accommodation co-obligor until the Debt and
the Related Debt are paid in full in cash. Xxxxxxxxx acknowledges and agrees
that this subordination is intended to benefit Mortgagee and shall not limit or
otherwise affect Mortgagor's liability hereunder or the enforceability of this
Mortgage or the other Loan Documents.
(c) Xxxxxxxxx agrees that any and all claims of Mortgagor against the Other
Borrower or any endorser or any guarantor of all or any part of the Related Debt
(collectively, the "Related Obligors") with respect to any obligations,
liabilities or indebtedness now or hereafter owing by the Related Obligors, or
any of them, to Mortgagor, or otherwise existing or claimed to be owed or to
exist on the part of any of the Related Obligors, or against any of their
respective properties (collectively, the "Related Party Obligations") shall be
subordinate and subject in right of payment to the prior payment, in full and in
cash, of all the Debt and the Related Debt. Notwithstanding any right of
Mortgagor to ask, demand, sue for, take or receive any payment from any of the
Related Obligors, all rights, liens and security interests of Mortgagor, whether
now or hereafter arising and howsoever existing, in any assets of any of the
Related Obligors shall be and are subordinated to the rights of Mortgagee in
those assets and otherwise, under the Loan Documents, the Other Loan Documents
and otherwise, and Mortgagor shall not, until the date that is one year and one
day after the date that all of the Debt and the Related Debt shall have been
paid and satisfied in full, (i) assert, collect, sue upon, or enforce all or any
part of the Related Party Obligations; (ii) commence or join with any other
creditors of any of the Related Obligors in commencing any bankruptcy,
reorganization, receivership or insolvency proceeding against any of the Related
Obligors; (iii) take, accept, ask for, sue for, receive, set off or demand any
payments upon the Related Party Obligations; or (iv) take, accept, ask for, sue
for, receive, demand or allow to be created liens, security interests,
mortgages, or pledges of or with respect to any of the assets of any of the
Related Obligors in favor of or for the benefit of Mortgagor.
(d) If all or any part of the assets of any of the Related Obligors, or
the proceeds thereof, are subject to any distribution, division or application
to the creditors of such Related Obligor, whether partial or complete, voluntary
or involuntary, and whether by reason of liquidation,
46
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding, or if the business of any such Related
Obligor is dissolved or if substantially all of the assets of any such Related
Obligor are sold, then, and in any such event (such events being herein referred
to as an "Related Obligor Insolvency Event"), any payment or distribution of any
kind or character, either in cash, securities or other property, which shall be
payable or deliverable upon or with respect to any Related Party Obligations
shall be paid or delivered directly to the Mortgagee for application on the Debt
and the Related Debt, due or to become due, until such Debt and Related Debt
shall have first been fully paid and satisfied (in cash). Should any payment,
distribution, security or instrument or proceeds thereof be received by
Mortgagor upon or with respect to the Related Party Obligations after any
Related Obligor Insolvency Event and prior to the payment in full and
satisfaction of all of the Debt and Related Debt, Mortgagor shall receive and
hold the same in trust, as trustee, for the benefit of Mortgagee and shall
forthwith deliver the same to Mortgagee in precisely the form received (except
for the endorsement or assignment of Mortgagor where necessary), for application
to any of the Debt or Related Debt, due or not due, and, until so delivered, the
same shall be held in trust by Xxxxxxxxx as the property of Mortgagee. If
Xxxxxxxxx fails to make any such endorsement or assignment to Mortgagee,
Mortgagee or any of its officers or employees is irrevocably authorized to make
the same. Xxxxxxxxx agrees that until the Debt and Related Debt have been paid
in full (in cash) and satisfied, Xxxxxxxxx will not assign or transfer to any
individual or entity (other than Mortgagee) any claim Mortgagor has or may have
against any Related Obligor.
(e) Subject to the provisions of Section 64(g), to the extent that any
collection upon any of the Debt or the Related Debt is made by Mortgagee from
the Other Borrowers or its property (a "Related Debt Collection") which, taking
into account all other Related Debt Collections then previously or concurrently
made by such Other Borrower, exceeds the amount which otherwise would have been
collected from such Other Borrower if Mortgagor had paid the portion of the Debt
and Related Debt satisfied by such Related Debt Collection in the same
proportion as the Other Borrower's "Allocable Amount" (as defined below) (as
determined immediately prior to such Related Debt Collection) bore to the
aggregate Allocable Amounts of each of the Mortgagor and the Other Borrower as
determined immediately prior to the making of such Related Debt Collection,
then, following payment in full in cash of the entire Debt and Related Debt, the
Other Borrower shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, Xxxxxxxxx for the amount of such excess.
As of any date of determination, the "Allocable Amount" of Mortgagor or the
Other Borrower shall be equal to the maximum amount of the claim which could
then be recovered from Mortgagor or the Other Borrower under the Loan Documents
and Other Loan Documents without rendering such claim voidable or avoidable
under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable
state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or
similar statute or common law. The foregoing provision shall be for the benefit
of the Other Borrower and Mortgagee, but shall be subject to modification as
provided in Section 64(g) below and to amendment by agreement of Mortgagor and
Mortgagee, in each case without necessity of any agreement, acknowledgment or
approval of the Other Borrower or any notice to the Other Borrower. Section
64(e) of the Other Mortgage contains provisions similar to this Section 64(e)
for the benefit of Mortgagee and (subject to the terms thereof) Mortgagor. This
Section 64(e) and Section 64(e) of the Other
47
Mortgage are intended only to define the relative rights of the Mortgagor and
the Other Borrower, and nothing set forth in this Section 64(e) or in Section
64(e) of the Other Mortgage is intended to or shall impair the liens and
security interests of the Loan Documents and the Other Loan Documents or the
obligations of the Mortgagor and the Other Borrower thereunder. Mortgagor
acknowledges that the rights of contribution and indemnification under this
Section 64(e) and under Section 64(e) of the Other Mortgage constitute assets of
the Mortgagor or the Other Borrower to which such contribution and
indemnification is owing, and any such right of contribution and indemnification
owing to Mortgagor under Section 64(e) of the Other Mortgage shall constitute
additional Related Party Obligations for all purposes under this Section 64.
(f) Mortgagor hereby consents and agrees to each of the following, and
agrees that Xxxxxxxxx's obligations under this Mortgage and the other Loan
Documents and the liens and security interests created under this Mortgage and
the other Loan Documents securing the Debt and the Related Debt shall not be
released, diminished, impaired, reduced or adversely affected by any of the
following, and waives any common law, equitable, statutory or other rights
(including without limitation rights to notice) that Xxxxxxxxx might otherwise
have as a result of or in connection with any of the following:
(i) Any renewal, extension, increase, modification, alteration or
rearrangement of all or any part of the Related Debt, the Other Note,
the Other Loan Documents, or other document, instrument, contract or
understanding between the Other Borrower and Mortgagee, or any other
parties, pertaining to the Related Debt or any failure of Mortgagee to
notify Mortgagor of any such action.
(ii) Any adjustment, indulgence, forbearance or compromise that might
be granted or given by Mortgagee to the Other Borrower.
(iii) The insolvency, bankruptcy, arrangement, adjustment, composition,
liquidation, disability, dissolution or lack of power of the Other
Borrower or any other party at any time liable for the payment of all
or part of the Related Debt; or any dissolution of the Other Borrower,
or any sale, lease or transfer of any or all of the assets of the Other
Borrower, or any changes in the shareholders, partners or members of
the Other Borrower; or any reorganization of the Other Borrower.
(iv) The invalidity, illegality or unenforceability of all or any part
of the Related Debt, or any document or agreement executed in
connection therewith, for any reason whatsoever, including without
limitation the fact that (A) the Related Debt, or any part thereof,
exceeds the amount permitted by law, (B) the act of creating the
Related Debt or any part thereof is ultra xxxxx, (C) the officers or
representatives executing the Other Note or the Other Loan Documents or
otherwise creating the Related Debt acted in excess of their authority,
(D) the Related Debt violates applicable usury laws, (E) the Other
Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement) which render the Related Debt wholly or
partially uncollectible from the Other Borrower, (F) the creation,
performance or repayment of the Related Debt (or the execution,
delivery and performance of any document or instrument representing
part of the Related Debt or executed in connection with the
48
Related Debt, or given to secure the repayment of the Related Debt) is illegal,
uncollectible or unenforceable, or (G) the Other Note or any of the Other Loan
Documents have been forged or otherwise are irregular or not genuine or
authentic, it being agreed that Mortgagor shall remain liable hereon regardless
of whether the Other Borrower or any other person be found not liable on the
Related Debt or any part thereof for any reason.
(v) Any full or partial release of the liability of the Other Borrower on the
Related Debt, or any part thereof, or of any co-guarantors, or any other person
or entity now or hereafter liable, whether directly or indirectly, jointly,
severally, or jointly and severally, to pay, perform, guarantee or assure the
payment of the Related Debt, or any part thereof, it being recognized,
acknowledged and agreed by Mortgagor that Mortgagor has not been induced to
enter into this Mortgage on the basis of a contemplation, belief, understanding
or agreement that other parties will be liable to pay or perform the Mortgage,
or that Mortgagee will look to other parties to pay or perform the Related Debt.
(vi) The taking or accepting of any other security, collateral or guaranty, or
other assurance of payment, for all or any part of the Related Debt.
(vii) Any release, surrender, exchange, subordination, deterioration, waste,
loss or impairment (including without limitation negligent, willful,
unreasonable or unjustifiable impairment) or any collateral, property or
security, at any time existing in connection with, or assuring or securing
payment of, all or any part of the Related Debt.
(viii) The failure of Mortgagee or any other party to exercise diligence or
reasonable care in the preservation, protection, enforcement, sale or other
handling or treatment of all or any part of such collateral, property or
security, including but not limited to any neglect, delay, omission, failure or
refusal of Mortgagee (A) to take or prosecute any action for the collection of
any of the Related Debt, (B) to foreclose, or initiate any action to foreclose,
or, once commenced, prosecute to completion any action to foreclose upon any
security therefor, or (C) to take or prosecute any action in connection with any
instrument or agreement evidencing or securing all or any part of the Related
Debt.
(ix) The fact that any collateral, security interest or lien contemplated or
intended to be given, created or granted as security for the repayment of the
Related Debt, or any part thereof, shall not be properly perfected or created,
or shall prove to be unenforceable or subordinate to any other security interest
or lien, it being recognized and agreed by Xxxxxxxxx that Mortgagor is not
entering into this Mortgage in reliance on, or in contemplation of the benefits
of, the validity, enforceability, collectibility or value of any of the
collateral for the Related Debt.
(x) Any payment by the Other Borrower to Mortgagee is held to constitute a
preference under bankruptcy laws, or for any reason Mortgagee is required to
refund such payment or pay such amount to the Other Borrower or someone else.
49
(xi) Any other action taken or omitted to be taken with respect to the
Other Loan Documents, the Related Debt, or the security and collateral
therefor.
(g) Notwithstanding anything to the contrary set forth in this
Mortgage, Mortgagee may, at its sole option and in its sole discretion, from
time to time (one or more times) deliver written notice to Mortgagor stating
that this Mortgage and the other Loan Documents shall no longer secure the Other
Loan (each a "Release Notice"), whereupon (i) this Mortgage and the other Loan
Documents shall no longer secure the Other Loan for which a Release Notice is
given (the "Excluded Loan"; the Other Borrower which is the borrower with
respect to the Excluded Loan is herein referred to as the "Excluded Borrower",
and the promissory note, mortgage or deed of trust and Other Loan Documents
executed and delivered by an Excluded Borrower with respect to the Excluded Loan
made to it are herein referred to as the "Excluded Note", "Excluded Mortgage"
and "Excluded Loan Documents", respectively), (ii) each reference herein and in
the other Loan Documents to the "Other Loan" and the "Related Debt" shall be
deemed to exclude the Excluded Loan, (iii) each reference herein and in the
other Loan Documents to the "Other Note", the "Other Mortgage" and "Other Loan
Documents" shall be deemed to exclude the Excluded Note, the Excluded Mortgage
and Excluded Loan Documents, respectively, (iv) each reference herein and in the
other Loan Documents to the "Other Borrower" and the "Related Obligors" shall be
deemed to exclude the Excluded Borrower, (v) the provisions of Section 64(e) of
this Mortgage shall not apply to any Related Debt Collection from any Excluded
Borrower or its property and Mortgagor shall have no obligation or liability on
account thereof; and (vi) Mortgagor shall no longer be a beneficiary of the
covenants and agreements set forth in Section 64(e) of the Excluded Mortgage,
and Mortgagor shall have no rights or claims on account of any contribution or
indemnification obligations of the Excluded Borrower under Section 64(e) of the
Excluded Mortgage. In addition to and without limiting the foregoing, Xxxxxxxxx
hereby agrees to cooperate with Mortgagee, if Mortgagee is considering the
termination of the cross collateralization and cross default of this Mortgage
with the Other Loan, including, but not limited to (x) amending this Mortgage
and the other Loan Documents as may be required by Mortgagee to effectuate such
termination of the cross collateralization and cross default provisions thereof,
and (y) updating the title insurance policies to reflect the continuation of
the first priority lien of this Mortgage.
65. Limitations on Recourse. The provisions of Section 12 of the
Note are hereby incorporated by reference into this Mortgage to the same extent
and with the same force as if fully set forth herein.
66. ENTIRE AGREEMENT. THIS MORTGAGE AND THE LOAN DOCUMENTS
TOGETHER CONSTITUTE A WRITTEN AGREEMENT AND REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
50
IN WITNESS WHEREOF, Xxxxxxxxx has executed this instrument the day and
year first above written.
MORTGAGOR:
CROSSWAYS ASSOCIATES LLC,
a Delaware limited liability company
By: Xxxxxxxx Way Investments LLC, a
Delaware limited liability company,
its managing member
By: First Potomac Newington,
Inc., a Delaware corporation,
its managing member
By: /s/ [ILLEGIBLE]
----------------------------
Name: __________________________
Title: _________________________
ACKNOWLEDGMENTS
District of Columbia )
) ss:
___________________ )
On this the 5th day of September, 2002, before me, the undersigned officer,
personally appeared Xxxxxxx X. Xxxxxxxxx, who acknowledged himself/herself to be
the President of First Potomac Newington, Inc., a Delaware corporation, managing
member of Xxxxxxxx Xxx Investments LLC, a Delaware limited liability company,
managing member of CROSSWAYS ASSOCIATES LLC, a Delaware limited liability
company, and that he/she, as President of said First Potomac Newington, Inc., as
managing member of Xxxxxxxx Xxx Investments LLC, as managing member of CROSSWAYS
ASSOCIATES LLC, being authorized so to do, acknowledged to me that he/she
executed the foregoing instrument for the purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
(Notarial Seal)
/s/ Xxxxxxxx X. Xxxx
-------------------------
Notary Public
My Commission Expires: __________________________
Xxxxxxxx X. Xxxx
Notary Public, District of Columbia
My Commission Expires 09-30-2006
EXHIBIT A
Legal Description
LEGAL DESCRIPTION
All those certain lots or parcels of land situate and lying In the City of
Chesapeake, Virginia, and more particularly described as follows:
PARCEL I - Crossways Commerce Center II - 0000 Xxxxxxxxx Xxxxxxxxx & 0000
Xxxxxxxx Xxx
All that certain lot, piece or parcel of land, together with the buildings,
structures and other improvements located thereon, lying, situate and being in
the City of Chesapeake, Virginia, and being known, numbered and designated as
"PARCEL 5B-1," consisting of 12.056 acres, as shown on that certain plat
entitled "RESUBDIVISION PLAT OF PARCELS 5B AND 4J, VOLVO TRACT, WASHINGTON
BOROUGH, CHESAPEAKE, VIRGINIA, "which said plat is recorded in the Clerk's
Office of the Circuit Court of the City of Chesapeake, Virginia, in Map Book
122, at page 28, 28A, 28B, 28C, 28D and 28E.
TOGETHER WITH THE RIGHT, AND SUBJECT TO THE RIGHTS OF OTHERS, in and to that
certain Variable Width Mutual Private Ingress/Egress Easement for the benefit of
Parcels 5B-1 and 4J-1 as shown on plat entitled "Resubdivision Plat of Parcels
5B and 4J, VOLVO TRACT," recorded In Map Book 122 at page 28 among the Land
Records of the City of Chesapeake, Virginia.
PARCEL II - Crossways Commerce Center I - 0000 Xxxxxxxxx Xxxxxxxxx
All that certain lot, piece or parcel of land, together with the buildings,
structures and other Improvements located thereon, lying, situate and being In
the City of Chesapeake, Virginia, and being known, numbered and designated as
"PARCEL 4J-1," consisting of 18.742 acres, as shown on that certain plat
entitled "RESUBDIVISION OF PLAT OF PARCELS 5B AND 4J, VOLVO TRACT, WASHINGTON
BOROUGH, CHESAPEAKE, VIRGINIA," which said plat is recorded in the Clerk's
Office of the Circuit Court of the City of Chesapeake, Virginia, In Map Book
122, at page 28,28A, 28B, 28C, 28D and 28E.
TOGETHER WITH AND SUBJECT TO the easement, rights, privileges and
responsibilities set forth in that certain Declaration of Easement (Private
Roadway) recorded in Deed Book 3122 at page 255 among the Land Records of the
City of Chesapeake, Virginia, and shown on plat attached thereto.
FURTHER SUBJECT TO THE RIGHT, AND SUBJECT TO THE RIGHTS OF OTHERS, In and to
that certain Variable Width Mutual Private Ingress/Egress Easement for the
benefit of Parcels 5B-1 and 4J-1 as shown on plat entitled "Resubdivision Plat
of Parcels 5B and 4J, VOLVO TRACT," recorded In Map Book 122 at page 28 among
the Land Records of the City of Chesapeake, Virginia.
PARCEL III - Coast Guard (GSA) Building - 0000 Xxxxxxxx Xxx
All that certain lot, place or parcel of land, together with buildings,
structures and other Improvements located thereon, lying, situate and being In
the City of Chesapeake, Virginia, and being known, numbered and designated as
"PARCEL 9-B", containing 5.392 acres, more or less, as shown on that certain
plat entitled "SUBDIVISION PLAT OF PARCEL 9, VOLVO TRACT, WASHINGTON BOROUGH,
CHESAPEAKE, VIRGINIA," which said plat is recorded in the Clerk's Office of
the Circuit Court of the City of Chesapeake, Virginia, In Map Book 95, at pages
90, 90A and 90B; and as enlarged by a portion of the partial vacation of the
right of way of Kristina Way, which vacation is shown on that certain xxxx
entitled 'SUBDIVISION PLAT OF PARCEL 5D1, VOLVO TRACT", recorded in Map Book
114 at pages 33 and 33A in the aforesaid Clerk's Office.
TAX MAP - Parcel/GPIN
Parcel I 0280000001260
Parcel II 0280000000700
Parcel III 0280000000751
AND BEING the same property conveyed to Crossways Associates LLC, a Delaware
limited liability company, by Special Warranty Deed from The Prudential
Insurance Company of America, a New Jersey corporation, dated December 21, 1999
and recorded December 29, 1999 In Deed Book 4016 at page 538 among the Land
Records of the City of Chesapeake, Virginia.
EXHIBIT B
Legal Description of Other Premises
LEGAL DESCRIPTION
All that certain lot or parcel of land situate and lying and being in Fairfax
County, Virginia, and being more particularly described as follows:
BEGINNING at a rebar, found in the westerly line of the Richmond, Fredericksburg
and Potomac Rallroad; thence with the said westerly line of the Richmond,
Fredericksburg and Potomac Railroad South 68 degrees 25' 20" West, 821.53 feet
to an Iron pipe, set marking the northeasterly corner of the Fairfax County Park
Authority (Deed Book 5888 at page 1321); thence with the northerly line of the
said Fairfax County Park Authority the following seven courses: North 74 degrees
23' 33" West, 387.00 feet to an Iron pipe, set; thence continuing 135.09 feet
along a curve to the left having a radius of 86.00 feet, a delta of 89 degrees
59' 52" and a chord bearing South 60 degrees 36' 27" West, 121.62 feet to an
iron pipe, set; thence continuing South 15 degrees 36' 27" West, 107.00 feet to
an iron pipe, set; thence continuing 56.55 feet along a curve to the right
having a radius of 36.00 feet, a delta of 89 degrees 59' 46", and a chord
bearing South 60 degrees 36' 27" West 50.91 feet to an iron pipe, set; thence
continuing North 74 degrees 23' 33" West, 904.20 feet to an iron pipe, set;
thence continuing 58.61 feet along a curve to the right having a radius of 28.00
feet, a delta of 119 degrees 55' 56", and a chord bearing North 14 degrees 25'
28" West, 48.48 feet to an iron pipe, set; thence continuing North 45 degrees
32' 38" East, 205.44 feet to an iron pipe, set in the Southerly line of
Newington Associates (Deed Book 9304 at page 821); thence with the said
Newington Associates the following two courses South 74 degrees 23' 33" East,
799.95 feet to an iron pipe, set; thence continuing North 15 degrees 36' 27"
East, 601.00 feet to a point on the Southerly line of Equitable Life Insurance
Society of U.S. (Deed Book 4534, page 206); thence with the Southerly line of
the said Equitable Life Insurance Society, the Southerly terminus of Terminal
Road Route 3726, the Southerly line of Waste Management of Virginia (Deed Book
5806, page 1290) and Xxxxx Xxxxxx (Deed Book 6550 at page 1400) the following
eight courses: South 74 degrees 23' 33" East, 484.73 feet to a rebar, found;
thence continuing South 38 degrees 07' 00" West 77.21 feet to an iron pipe, set;
thence continuing 237.13 feet along a curve to the left having a radius of 55.00
feet, a delta of 247 degrees 01' 53", and a chord bearing South 85 degrees 23'
55" East, 91.71 feet to an iron pipe, set; thence continuing 31.59 feet along a
curve to the right having a radius of 27.00 feet, a delta of 67 degrees 02' 16",
and a chord bearing North 04 degrees 36' 05" East, 29.82 feet to a rebar, found;
thence continuing North 38 degrees 07' 00" East, 4.64 feet to an iron pipe set;
thence continuing 63.40 feet along the arc of a curve to the left having a
radius of 50.00 feet, a delta of 72 degrees 39' 18", and a chord bearing North
85 degrees 36' 32" East 59.24 feet to an iron pipe, set; thence continuing South
74 degrees 23' 33" East, 600.46 feet to an iron pipe, set; thence continuing
along the said Southerly line of Xxxxx Xxxxxx and the said Westerly line of the
Richmond, Fredricksburg & Potomac Railroad South 20 degrees 21' 25" West, 95.80
feet to the place of beginning, containing 733,791 square feet or 16.8455 acres,
more or less.
Tax Map No.: 099-3-01-0042
AND BEING the same property conveyed to Newington Terminal Associates, LLC, by
deed from Principal Life Insurance Company, an Iowa corporation, formerly known
as Principal Mutual Life Insurance Company, dated December 10, 1999 and
recorded December 23, 1999 in Deed Book 11192 at page 1821 among the Land
Records of Fairfax County, Virginia.
