EXHIBIT 10.61
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
DATED AS OF OCTOBER 1, 2003
BY
XXXXXXX SPRINGS SC, LLC
(MORTGAGOR)
TO AND FOR THE BENEFIT OF
CITIGROUP GLOBAL MARKETS REALTY CORP.
(MORTGAGEE)
LOCATION OF THE PROPERTY
000-000 XXXXX 000
XXXXX XXXXXXX, XXX XXXXXX 00000
RECORD AND RETURN TO:
SIDLEY XXXXXX XXXXX & XXXX LLP
BANK ONE PLAZA
00 X. XXXXXXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
ATTENTION: XXXXX X. XXXXX, ESQ.
RETURN TO:
Xxxxx X. Xxxxx
Sidley Xxxxxx Xxxxx & Xxxx LLP
Bank One Plaza
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, 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 as of the 1st day
of October 2003, by XXXXXXX SPRINGS SC, LLC, a Delaware limited liability
company, having its principal place of business at c/o Ramco-Xxxxxxxxxx, Inc.,
00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 ("Mortgagor"),
to and for the benefit of CITIGROUP GLOBAL MARKETS REALTY CORP., a New York
corporation, its successors or assigns, having its place of business at 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 ("Mortgagee").
W I T N E S S E T H:
To secure the payment of an indebtedness in the principal sum of
TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000), lawful money of the United
States of America, to be paid with interest according to a certain note dated
the date hereof made by Mortgagor 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 Mortgagor or any other person or entity to
Mortgagee or others as set forth in the Loan Documents (the "Obligations"),
Mortgagor has mortgaged, given, granted, bargained, sold, alienated, infeft,
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, with power of sale, 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");
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TOGETHER WITH: all right, title, interest and estate of Mortgagor 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;
(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 is 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
from 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,
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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 Mortgagor, 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;
(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 owned by Mortgagor;
(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 (hereafter defined) the Replacement Reserve Fund
(hereafter defined), 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 Mortgagor 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.
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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;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if 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, these presents and the estate hereby granted shall
cease, terminate and be void;
AND Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Mortgagor 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"). Mortgagor represents and warrants that
none of the Permitted Encumbrances will materially and adversely affect (a)
Mortgagor'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 and (ii) 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.
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(b) Mortgagor, at its sole cost and expense, for the
mutual benefit of Mortgagor and Mortgagee, shall also obtain and maintain, or
cause to be obtained and maintained, during the entire term of this Mortgage the
following policies (collectively, with the other policies required by this
Section, the "Policies" and each a "Policy"):
(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
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.
(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 $2 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
estimated gross revenues from the operations of the Mortgaged
Property over 12 months. The amount of such rental loss
insurance shall be increased 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 increased rent and increased 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. Coverage
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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 Mortgagor, as required by any
governmental authority or legal requirement.
(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
reasonably 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 use 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) Windstorm insurance in an amount equal to
the lesser of the original principal balance of the Loan and
the maximum amount permitted by law.
(ix) Such other insurance as may from time to
time be reasonably required by Mortgagee in order to protect
its interests and which is then customarily required by
institutional lenders for similar properties similarly
situated, against other insurable hazards, which at the time
are commonly insured against and generally available at
commercially reasonable premiums in the case of properties
similarly situated, due regard to be given to the size and
type of the Premises, Improvements and Equipment and their
location, construction and use.
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 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 if obtainable from any insurer or any
governmental authority (for the maximum amount obtainable up to the amounts set
forth in subsections 3(a) and 3(b)(iii) above and with deductibles no greater
than those provided in subsection 3(a) above).
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(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 "A:VIII"
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 maintained throughout the
term of the Mortgage without cost to Mortgagee; (vi) shall be delivered to
Mortgagee in the form of certified copies of the Policies in effect on the date
hereof; (vii) 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;
(viii) shall be for a term of not less than one year, (ix) shall be issued by an
insurer licensed in the state in which the Mortgaged Property is located, (x)
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, (xii) shall be
reasonably satisfactory in form and substance to Mortgagee and shall be
reasonably approved by Mortgagee as to amounts, form, risk coverage,
deductibles, loss payees and insureds; and (xiii) shall provide that all claims
shall be allowable on an occurrence basis. Policies may also be so-called
"blanket" policies, subject to Mortgagee's reasonable approval, so long as the
required coverages are provided and are not reduced in amount or quality by
virtue of the pooling effect of such "blanket" policies. 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 reasonably 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). Subject to the immediately
preceding parenthetical, if Mortgagor 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 Mortgagor agrees to
reimburse Mortgagee for the cost of such Insurance Premiums promptly on demand.
Within thirty (30) days after request by Mortgagee, Mortgagor 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 Mortgagor
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.
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(d) Intentionally omitted.
(e) If the Mortgaged Property shall be damaged or
destroyed, in whole or in part, by fire or other casualty (an "Insured
Casualty"), the Mortgagor shall give prompt notice thereof to the 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
reasonably 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:
(i) In the event of an Insured Casualty that
does not exceed $500,000, 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 $500,000, then and in that event, Mortgagee, with the
reasonable approval of Mortgagor in the absence of an Event of
Default, and without the consent of Mortgagor if any Event of
Default has occurred and is continuing, 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, and (B),
in the reasonable judgment of Mortgagee, the Mortgaged
Property can be restored within twelve (12) 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 (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,
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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, that if
such proceeds are so made available to Mortgagor pursuant to
the terms hereof, Mortgagor shall in any event 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 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 shall not be considered a voluntary prepayment
requiring payment of the Yield Maintenance Premium (as such
term is defined in 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 that the restoration, repair, replacement
and rebuilding 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 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 (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 at Mortgagee's option
be applied to the Debt (such application to the Debt shall not
be considered a voluntary prepayment requiring payment of the
Yield Maintenance Premium) or paid to Mortgagor. In no event
shall Mortgagee assume
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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, 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
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. Notwithstanding Sections 3 and
4 above, 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 one (1) monthly installment 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, pay to Mortgagee (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");
provided, however, that for blanket insurance policies and financed premiums,
Mortgagee may require the static deposit of one (1) year's premium. 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 Mortgagor will promptly reimburse Mortgagee for
the reasonable cost (not in excess of $500.00 in the aggregate so long as no
Event of Default
11
exists)of retaining any such third parties or obtaining such certificates. Any
unpaid reimbursements for the aforesaid shall be added to the Debt. The Tax and
Insurance Escrow Fund and the payments of interest or principal or both, payable
pursuant to the Note, shall be added together and shall be paid as an aggregate
sum by Mortgagor to Mortgagee. 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 xxxx, 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 xxxx, 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 security for the Debt. The
Tax and Insurance Escrow Fund shall not constitute a trust fund, shall be held
in an interest-bearing account and may be commingled with other monies held by
Mortgagee. Interest earned on the Tax and Insurance Escrow Fund shall become
part of the Tax and Insurance Escrow Fund, and such income shall be reported
under Mortgagor's tax identification number. 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 Tax and Insurance Escrow Fund
shall be promptly thereafter refunded to Mortgagor. Notwithstanding the
foregoing, Mortgagee shall waive the setup, maintenance and disbursement fees in
connection with said interest bearing account.
6. Replacement Reserve Fund. Beginning on the date the first
constant monthly payment is due under the Note, and on the first day of each
calendar month thereafter for thirty-six (36) consecutive months, Mortgagor
shall pay to Mortgagee an amount equal to one-twelfth of $40,344.96 (the
"Replacement Deposit"), 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"). In the event
thereafter the aggregate sum of Replacement Deposits which remain undisbursed in
the Replacement Reserve Fund falls below $121,035.00, Mortgagor's obligation to
make Replacement Deposits shall resume until the aggregate sum of Replacement
Deposits which remain undisbursed in the Replacement Reserve Fund equals or
exceeds $121,035.00. Mortgagor hereby pledges (and grants a lien and security
interest) to Mortgagee any
12
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, Mortgagor 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. 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 Mortgagor, and
approved by Mortgagee in its sole discretion, on a 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 from the requested disbursement)
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 credit for the sums actually received. The
Replacement Reserve Fund shall be held in an interest bearing account in
Mortgagee's name at a financial institution selected by Mortgagee in its sole
discretion. 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 promptly thereafter 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 Mortgagor'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), Mortgagor 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
13
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 (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.
(b) Notwithstanding the provisions of Subsection (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 sole discretion, result in a material
adverse effect to the use or operation of the Mortgaged Property, Mortgagor's
ability to make payments hereunder, or the operating income from 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 or payment (less amounts payable to Mortgagee for 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 Mortgagor decides to engage a third
party management company to manage the Mortgaged Property, Mortgagor agrees to
engage a management company satisfactory to Mortgagee, 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.
(c) In the event Mortgagee determines in its sole and
reasonable discretion that the quality of management for the Mortgaged Property
has deteriorated, Mortgagor agrees to engage a management company satisfactory
to Mortgagee within forty-five (45) days after Mortgagor's
14
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) Mortgagor has reviewed and is familiar with all
opinions of legal counsel to Mortgagor 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, nor any
Affiliate 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.
(f) The representations and warranties contained in the
Closing Certificate executed by Mortgagor in connection with the Note (which
certificate constitutes one of the Loan Documents) are true and correct and
Mortgagor shall observe the covenants contained therein.
(g) Mortgagor shall cause the law firm of Xxxxxxxx,
Xxxxxx & Finger, or other reputable Delaware counsel acceptable to Mortgagee
(the "Law Firm") to deliver to Mortgagee an opinion letter reasonably
satisfactory to Mortgagee, whereby the Law Firm opines (which opinion may be
subject to standard assumptions, qualifications, limitations and exceptions
acceptable to Mortgagee), among other requirements of Mortgagee, that: (1) the
unanimous consent of the Single Member and the Independent Director is required
in order for the Mortgagor to file a voluntary bankruptcy petition; (2) the
provision in the Mortgagor's organizational documents that requires unanimous
consent as a condition to filing a voluntary bankruptcy petition is enforceable
against the Single Member; (3) the bankruptcy of the Single Member will not
cause Mortgagor to be dissolved; (4) no creditor of the Single Member shall have
the right to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, Mortgagor's property; and (5) Delaware law, not
federal law governs the determination of what persons or entities have the
authority to file a voluntary bankruptcy petition on behalf of Mortgagor.
9. Single Purpose Entity/Separateness. Mortgagor represents,
warrants and covenants as follows:
(a) Mortgagor 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.
15
(b) Mortgagor shall not engage in any business or
activity other than the ownership, management and operation of the Mortgaged
Property and such activities as are necessary, incidental or appropriate in
connection therewith, and Mortgagor will conduct and operate its business as
presently conducted and operated.
(c) Mortgagor 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 arms-length
basis with third parties other than any Guarantor or Affiliate. Borrower will
appropriately document and accurately record on its books and records all
contracts, business transactions and transfers between Borrower, on the one
hand, and any of Ramco-Xxxxxxxxxx Properties, L.P., a Delaware limited
partnership (the "Partnership"), Ramco-Xxxxxxxxxx, Inc., a Michigan corporation
("RG, Inc."), and/or the REIT (as defined in Section 12 below), on the other.
(d) Other than debt owed which shall be discharged and
paid upon funding of the loan secured hereby, Mortgagor shall not incur any
indebtedness, secured or unsecured, direct or indirect, absolute or contingent
(including guaranteeing any obligation), other than (i) the Debt; (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 thirty (30) days after the
same are incurred; and (iii) unsecured subordinated loans to Mortgagor (the
"Subordinated Loans", each a "Subordinated Loan") made by the Partnership,
provided that such loan or loans are made for the sole purpose of funding, and
are used by Mortgagor solely for, working capital and/or otherwise to improve,
alter and remodel the Mortgaged Property and provided that Mortgagee consents to
such improvement, alteration or remodeling, as applicable, such consent not to
be unreasonably withheld; provided, however, that Subordinated Loans shall be
permitted only if and so long as each of the following conditions are satisfied:
(1) the payment terms of each Subordinate Loan shall not require payments to be
made or payments to become due unless and until the Loan (or any refinancing
loan the proceeds of which are used to repay the Loan) is fully paid and
satisfied, except that voluntary payments by Mortgagor from excess cash flow
from the Mortgaged Property may be permitted so long as no Event of Default has
occurred and is continuing, (2) the aggregate outstanding balance of the
Subordinated Loans and interest accrued and unpaid thereon together with the
Debt (the "Total Debt Amount") shall not exceed 80% of the value of the
Mortgaged Property (such value to be determined at the time each such
Subordinated Loan is made and to be determined based on an appraisal similar to
the appraisal obtained at loan origination and otherwise in form and substance
reasonably acceptable to Mortgagee, such appraisal also to take account of any
increase in value created by any related expansion or remodeling; provided,
however, that if the Total Debt Amount does not exceed 80% of $32,600,000, a new
appraisal will not be required) and (3) the Partnership shall, prior to making
any Subordinate Loan advance, execute and deliver to and for the benefit of
Mortgagee a subordination and standstill agreement in the form of Exhibit E
attached to that certain Closing Certificate dated as
16
of the date hereof, executed by Mortgagor for the benefit of Mortgagee (the
"Closing Certificate"), and (4) all reasonable costs and expenses incurred by
Mortgagee in connection with such Subordinated Loans, including, but not limited
to, the review of any and all materials required to be provided in connection
therewith (including Mortgagee's reasonable attorney's fees and expenses) shall
be at the expense of Mortgagor and shall be paid by Mortgagor to Mortgagee upon
demand. No indebtedness other than the Debt may be secured (senior, subordinate
or pari passu) by the Mortgaged Property.
(e) Mortgagor shall not make any loans or advances to any
third party, nor to Guarantor, any Affiliate or any constituent party of
Mortgagor.
(f) Without intending to modify or diminish any
limitations on recourse benefiting Mortgagor under this Mortgage or the other
Loan Documents, Mortgagor will remain solvent and Mortgagor will pay its debts
from its assets as the same shall become due.
(g) Mortgagor 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, certificate of formation,
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.
(h) Mortgagor 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 Mortgagor shall file its own tax returns, if
any, as may be required under applicable law, or if part of a consolidated group
filing, the Mortgagor is shown as a separate member of such group. Mortgagor
shall maintain its books, records, resolutions and agreements as official
records.
(i) Mortgagor 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 separate stationery, invoices and checks. Mortgagor shall allocate
fairly and reasonably any overhead for shared office space.
(j) Mortgagor 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 will observe all
partnership, corporate or limited liability company formalities, as applicable.
(k) Mortgagor shall maintain adequate capital and a
sufficient number of employees, if any, 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.
17
(l) Neither Mortgagor nor any constituent party of
Mortgagor 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 shall not commingle the funds and other
assets of Mortgagor with those of any Affiliate, any Guarantor, any constituent
party of Mortgagor or any other person, and Mortgagor will pay its own
liabilities out of its own funds and assets.
(n) Mortgagor 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 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 obligations
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 terms and conditions of, all
material permits, licenses, registrations and other 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 shall not own any subsidiary, or make any
investment in any person or entity.
(r) Mortgagor 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) Mortgagor shall be a limited liability company formed
under the laws of the State of Delaware with one (1) member (the "Single
Member"), whose certificate of formation and operating agreement ("Mortgagor's
Organizational Documents") shall be in form and substance reasonably
satisfactory to Mortgagee.
(t) Mortgagor's Organizational Documents shall contain
each of the representations, covenants and warranties set forth in this Section
9 and shall require Mortgagor to at all times cause there to be at least one (1)
duly appointed member of the board of directors (each an "Independent Director")
of Mortgagor who shall be an individual, natural person and whose vote will be
required in connection with the voluntary filing for protection under the
Bankruptcy Code or similar action by Mortgagor and who is not at the time of
initial appointment, and may not have been at any time during the preceding five
years, a shareholder of (other than as a shareholder of the REIT, so long as
such person has not been a shareholder of
18
the REIT within the last 2 years), or an officer, director (other than an
Independent Director), partner, paid consultant or employee of, Mortgagor or any
of its shareholders, subsidiaries or affiliates, 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. Mortgagor's Organizational Documents shall further
require that upon the occurrence of any event that causes the Single Member to
cease to be a member in Mortgagor, the Independent Director shall, without
action of any person and simultaneously with the Single Member ceasing to be a
member of Mortgagor, automatically be admitted to Mortgagor as a member and
shall continue the Mortgagor without dissolution.
(u) Intentionally Deleted.
(v) Mortgagor shall not cause or permit the board of
directors of Mortgagor to take any action which, under the terms of any
certificate of incorporation, by-laws or any voting trust agreement with respect
to any common stock, requires the vote of the board of directors of Mortgagor
unless at the time of such action there shall be at least one (1) member who is
an Independent Director.
(w) Mortgagor 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 Xxxxxxxx
Xxxxxx Xxxxxxxx and Xxxx LLP in connection with the Loan shall be true and
correct in all respects.
9A. Prior Single Purpose Entity/Separateness. Mortgagor represents
and warrants that from the date of Mortgagor's formation until the Closing Date,
Mortgagor has complied with the following:
(a) Mortgagor has observed all limited liability company
formalities and preserved its existence, and Mortgagor has not, and has not
permitted any constituent party or guarantor to, amend, modify or otherwise
change, in any material respect, the certificate of formation, operating
agreement or other organizational documents of Mortgagor in violation of any
other document or agreement entered into by Mortgagor prior to the Closing Date.
(b) Mortgagor has held itself out to the public as a
legal entity, separate and distinct from any other entity (including any
affiliate of Mortgagor, any constituent party of Mortgagor, any guarantor or any
affiliate of the constituent party or guarantor), has corrected any known
misunderstanding regarding its status as a separate entity, has conducted
business in its own name, has not identified itself as a division or part of the
other and has maintained and utilized a telephone number at the Mortgaged
Property which was separate from the telephone number of any other entity and
maintained separate stationery, invoices and checks.
19
(c) Mortgagor has maintained books of account in
accordance with generally accepted accounting principles and maintained its
accounts, books and records separate from any other person or entity; provided,
that Mortgagor's assets and liabilities may have been included in a consolidated
financial statement issued by an Affiliate of Mortgagor; provided however, that
any such consolidated financial statement made clear that Mortgagor's assets
were not available to satisfy the obligations of such Affiliate.
(d) Mortgagor has maintained its assets in its own name
and has paid its debts and liabilities from its own assets.
(e) Mortgagor has caused its financial statements to be
prepared separately from those of any other entity in accordance with generally
accepted accounting principles in a manner that indicated the separate existence
of Mortgagor and its separate assets and liabilities.
(f) Mortgagor has fairly and reasonably (and paid or
charged for, as applicable) expenses that were shared with an Affiliate,
including paying for office space and services performed by an employee of an
Affiliate, if any.
(g) Mortgagor has maintained a sufficient number of
employees in light of its contemplated business operations; provided, however,
that nothing in this Section 9A required Mortgagor to have any employees as long
as the employees were not necessary to the conduct of business.
(h) Mortgagor has paid the salary of its own employees,
if any, from its own funds.
(i) Mortgagor has maintained adequate capital for the
normal business obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations.
(j) Mortgagor has held its assets and conducted its own
business in its own name.
(k) Mortgagor has not incurred any indebtedness or
material liabilities, secured or unsecured, direct or indirect, absolute or
contingent (including guaranteeing any obligation) other than (i) the
indebtedness in the amount of $16,000,000 incurred by Mortgagor in connection
with a loan from Bankers Trust Company which is being satisfied in full by the
proceeds of the Loan, (ii) trade and operational debt incurred in the ordinary
course of business with trade creditors and in amounts as were normal and
reasonable under the circumstances, and (iii) debt incurred in the financing of
equipment and other personal property used on the Mortgaged Property (not
exceeding $100,000 in the aggregate).
(l) Without written consent of all the members of
Mortgagor, including, without limitation, the affirmative consent of an
independent director of Xxxxxxx Springs SC Holdings Corp. who was not at the
time of his appointment or at any time in the preceding five (5) years and has
not
20
been at any time while serving as independent director: (i) a shareholder of, or
an officer, director, partner or employee of, Xxxxxxx Springs SC Holdings Corp.
or any of its shareholders, partners, members, subsidiaries or affiliates, (ii)
a customer of, or supplier to, Xxxxxxx Springs SC Holdings Corp. or any of its
shareholders, partners, members, subsidiaries or affiliates, (iii) a person or
other entity controlling or under common control with any such shareholder,
officer, director, partner, member, employee, supplier or customer, or (iv) a
member of the immediate family of any such shareholder, officer, director,
partner, member, employee, supplier or customer, Mortgagor has not done any of
the following: (i) sought relief under any federal or state law relating to
bankruptcy, insolvency, reorganization, the relief from debts or the protection
of debtors generally, (ii) instituted proceedings to have Mortgagor adjudicated
bankrupt or insolvent, (iii) consented to the institution of bankruptcy or
insolvency proceedings against Mortgagor, (iv) filed a petition or consented to
a petition seeking reorganization or relief under any applicable federal or
state bankruptcy law, (v) sought or consented to the appointment of a receiver,
liquidator, trustee, conservator, assignee, sequester, custodian or similar
official of Mortgagor or a substantial part of the property of Mortgagor, (vi)
made any assignment for the benefit of Mortgagor's creditors, (vii) admitted in
writing Mortgagor's inability to pay its debts generally as they become due,
(viii) taken any action in furtherance of the foregoing, or (ix) caused any
dissolution of Mortgagor.
(m) Mortgagor has not entered into any contract,
transaction or agreement with any member of Mortgagor or any member, partner,
principal or Affiliate of any of the members of Mortgagor, except upon terms and
conditions that were intrinsically fair and substantially similar to those that
would have been available on an arms-length basis with third parties other than
any such party. Mortgagor has appropriately documented and accurately recorded
on its books and records all contracts, business transaction and transfers
between Mortgagor, on one hand, and any of the Partnership, RG, Inc. and/or the
REIT, on the other.
(n) Mortgagor has not had any assets other than those
related to the Primary Business (as defined in that certain Operating Agreement
of Xxxxxxx Springs SC, LLC by and between RPT/Invest L.L.C. and Xxxxxxx Springs
SC Holdings Corp., dated June 24, 1999). Mortgagor has not commingled its funds
or assets with those of any Affiliate or other Person.
(o) Mortgagor has not assumed, guaranteed or become
obligated for the debts of any other Person, including but not limited to the
debts of any Affiliate, or held out Mortgagor's credit as being available to
satisfy the obligations of other Persons.
(p) Mortgagor has not made loans or advances to any
Person, and has not pledged its assets for the benefit of any other Person and
has not allowed any entity to guaranty or become obligated for its debts.
(q) Mortgagor has not acquired the obligations or
securities of its members or Affiliates.
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(r) Mortgagor has not entered into any transaction or
merger or consolidation, or acquired by purchase or otherwise all or
substantially all of the business or assets of, or any stock or other evidence
of beneficial ownership of, any entity.
(s) Mortgagor has not identified itself as a division of
any other person or entity.
(t) Mortgagor has not engaged in any dissolution,
liquidation, consolidation, merger or sale of assets.
(u) Mortgagor has independently made decisions with
respect to its business and daily operations.
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, 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, land use designation or other public or private
restriction, limiting or defining the uses which may be made of the Mortgaged
Property or any part thereof, nor shall Mortgagor initiate, join in, acquiesce
in, or consent to any land use change, 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 to 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 Mortgagor's ownership of the Mortgaged
Property as a means of maintaining the value of the Mortgaged Property as
security for repayment of
22
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 Section 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 or 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; and
(ii) no new partner, member, shareholder, beneficiary or
other legal or equitable owner shall be admitted to or created in
Mortgagor or 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 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 no 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
Mortgagor's affairs.
As used in this Section 12, "transfer" shall include, without
limitation, (1) an installment sales agreement wherein Mortgagor agrees to sell
the Mortgaged Property or any part thereof for a price to be paid in
installments; and (ii) 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, Mortgagor'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 Section 12(a) above: (A) 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; (B) a sale or other disposition of obsolete or worn-out personal
property which is
23
contemporaneously replaced by comparable personal property of equal or greater
value which is free and clear of liens, encumbrances and security interests
other than those created by the Loan Documents; (C) 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 Mortgagor's request; (D) transfers of
non-managing membership interests in Mortgagor, or of indirect interests in the
non-managing members in Mortgagor, provided, that (1) following any such
transfer the Partnership continues to own, directly or indirectly, at least a
25% beneficial interest in Mortgagor and continues to control Mortgagor, either
directly or indirectly through subsidiary entities, (2) Ramco-Xxxxxxxxxx
Properties Trust, a Maryland real estate investment trust (the "REIT"), remains
the sole general partner of the Partnership and continues to maintain not less
than a 50% partnership interest in the Partnership, and (3) if such transfer or
series of transfers would result in (a) a transfer in the aggregate of more than
75% of the direct or indirect interests in Mortgagor as of the date hereof or
(b) the proposed transferee, together with his, her or its Affiliates and
immediate family members, owning in the aggregate, directly or indirectly
(whether by means of beneficial ownership or ownership interests in entities
which in turn directly or indirectly, through multiple ownership tiers or
otherwise, own interests in Mortgagor or otherwise), more than 75% of the
ownership or beneficial ownership interest in Mortgagor (unless such Transferee
is the Partnership or a subsidiary thereof), then such transfer or series of
transfers shall require the consent of Mortgagee and, at the sole option of
Mortgagee, recommendations in writing from the Rating Agencies (as defined
hereinafter) to the effect that such transfer will not result in a
re-qualification, reduction or withdrawal of any rating initially assigned or to
be assigned in a Secondary Market Transaction; or (E) the merger of REIT with
another publicly traded real estate investment trust so long as the newly-formed
entity remains the sole general partner of the Partnership and continues to
maintain not less than a 50% partnership interest in the Partnership.
(c) The occurrence of any of the foregoing transfers or
other occurrences described in the foregoing Section 12(a) shall, unless
permitted under Section 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 at its option, without
being required to demonstrate any actual impairment of its security or any
increased risk of default hereunder, 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 Section 12(a) above (unless permitted under Section
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 Section 12(a) above.
(d) Mortgagor 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,
24
encumbrance, pledge, transfer or other transaction or event described in Section
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 Section
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; provided, however, with respect to the one-time sale
or transfer of the Mortgaged Property described in Section 12(f) below,
Mortgagee shall not be obligated to pay an assumption fee.
(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 Section 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 Section 12(a) above, if made in contravention of
this Section 12, shall be null and void and of no force and effect.
(f) Notwithstanding the foregoing provisions of Section
12(a) above, a one-time sale or transfer of the Mortgaged Property will be
permitted, provided that:
(i) no Event of Default or event which with the
giving of notice or the passage of time would constitute an
Event of Default shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall
be either (A) wholly owned by the Partnership or shall be an
affiliate of the Partnership in which the Partnership shall
own, directly or indirectly, at least a 25% beneficial
ownership and economic interest, or (B) a reputable entity or
person of good character, creditworthy, with sufficient
financial worth considering the obligations assumed and
undertaken, which Transferee and its property manager shall
have sufficient experience in the ownership and management of
properties similar to the Mortgaged Property, as evidenced by
financial statements, resumes and other information reasonably
requested by Mortgagee (and Mortgagee reserves the right to
approve the Transferee without approving the substitution of
the property manager);
(iii) the Transferee shall have executed and
delivered to Mortgagee an assumption agreement in form and
substance acceptable to Mortgagee, evidencing such
Transferee's agreement to abide and be bound by the terms of
the Note, this Mortgage and the other Loan Documents together
with such legal opinions and title insurance endorsements as
may be reasonably requested by Mortgagee;
(iv) unless otherwise waived by Mortgagee based
on applicable guidelines of the Rating Agencies (as
hereinafter defined), Mortgagee shall have recommendations in
writing from the Rating Agencies to the effect that such
transfer
25
will not result in a re-qualification, reduction or withdrawal
of any rating initially assigned or to be assigned in a
Secondary Market Transaction. The term "Rating Agencies" as
used herein shall mean each of Standard & Poor's Ratings
Services, a division of XxXxxx-Xxxx Companies, Inc., Xxxxx'x
Investors Service, Inc., and Fitch, Inc., or any other
nationally-recognized statistical rating agency which is or
may be designated by Mortgagee;
(v) either the Partnership, shall have
reaffirmed its obligations under the Guaranty with respect to
the transfer of the Mortgaged Property to Transferee or
replacement guarantor(s), satisfactory to Mortgagee in
Mortgagee's sole discretion, shall have executed a new
guaranty on Mortgagee's then current form; and
(vi) Mortgagor shall have paid and Mortgagee
shall have received the payments, fees, and reimbursements
required under Section 12(d) hereof, provided that if the
Transferee is wholly owned by the Partnership or shall be an
affiliate of the Partnership in which the Partnership shall
own, directly or indirectly, at least a 25% beneficial
ownership and economic interest, the 1% assumption fee shall
be waived.
(g) Upon any sale or transfer and assumption approved by
Mortgagee with replacement guarantors approved by Mortgagee and Mortgagee's
determination that no actual pending or threatened actions or claims then exist
against Mortgagee, Mortgagor or the Mortgaged Property, Mortgagor and any
original guarantors shall be released from liability under the Note and Guaranty
(except for indemnification obligations pertaining to occurrences prior to
Mortgagor's sale or transfer of its interest in the Mortgaged Property).
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 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 Mortgagee, 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 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.
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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, Mortgagor will pay for the same, with interest and
penalties thereon, if any. Mortgagor 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.
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 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
27
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 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 time in effect and applicable to the Debt for so
long as the Debt is outstanding. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of 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). Mortgagor 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 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) Mortgagor 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, (hereinafter defined), 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 fifty (50) 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
28
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 one hundred (100) 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; (C) an annual balance sheet and profit and loss
statement of Mortgagor, certified by Mortgagor, or, if available,
audited financial statements prepared by an independent certified
public accountant acceptable to Mortgagee; and (D) any financial
statements required under the Guaranty.
(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 (the "Annual
Budget"), in form satisfactory to Mortgagee, setting forth in
reasonable detail budgeted monthly operating income and monthly
operating capital and other expenses for the Mortgaged Property. Each
Annual Budget shall contain, among other things, limitations on
management fees, third party service fees and other expenses as
Mortgagee may reasonably determine.
(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 $2,500 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 Mortgagor to timely submit the
applicable Required Records.
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
29
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
Mortgagor, 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, require, for the better assuring, conveying, assigning,
transferring, and confirming unto Mortgagee the property and rights hereby
mortgaged, given, granted, bargained, sold, alienated, infeft, 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. Mortgagor, on demand, will execute and
deliver and hereby authorizes Mortgagee to execute in the name of Mortgagor 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, Mortgagor 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.
(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 (the
transactions referred to in clauses (i) through (iv) are hereinafter each
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 Transaction, (b)
amending the Loan Documents and organizational documents of Mortgagor, 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
30
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, Mortgagor and Mortgagor 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 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, Mortgagor 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 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. Mortgagor 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. Subject to the notice and cure periods in
Section 23, 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;
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(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 Mortgagor 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 Section 12(a), or any violation of
Section 9 of this Mortgage;
(e) if any representation or warranty of Mortgagor, or of
any 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 or if any proceeding for the dissolution or
liquidation of Mortgagor or of any Guarantor shall be instituted; however, if
such appointment, adjudication, petition or proceeding was involuntary and not
consented to by Mortgagor or such Guarantor, upon the same not being discharged,
stayed or dismissed within sixty (60) 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;
(i) subject to Mortgagor's right to contest as provided
herein, if the Mortgaged Property becomes subject to any mechanic's,
materialman's, mortgage or 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 or ordinances affecting or which may be interpreted to affect the Mortgaged
Property;
(k) except as permitted in this Mortgage, the 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 solely as a result of Mortgagor'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;
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(n) if, without Mortgagee's prior consent (i) the manager
of the Mortgaged Property is transferred or is removed by Mortgagor, or (ii) the
manager for the Mortgaged Property approved by Mortgagee resigns and is not
replaced within sixty (60) days by Mortgagor with a manager satisfactory to
Mortgagee, (iii) the manager ceases to be controlled by REIT, (iv) there is any
material change in any management agreement of the Mortgaged Property, or (v)
the manager engaged by Mortgagor and approved by Mortgagee fails to execute the
Acknowledgment of Property Manager;
(o) entry of a judgment in excess of $100,000, unless
insured against and paid within thirty (30) days of the expiration of any appeal
rights or the dismissal or final adjudication of appeals against Mortgagor;
(p) the Mortgage shall cease to constitute a
first-priority lien on the Mortgaged Property (other than in accordance with its
terms);
(q) seizure or forfeiture of the Mortgaged Property, or
any portion thereof, or Mortgagor's interest therein, resulting from criminal
wrongdoing or other unlawful action of Mortgagor, or its affiliates, 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 any reason whatsoever (other than temporary
cessation in connection with any repair or renovation thereof undertaken with
the consent of Mortgagee); or
(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.
23. Notice and Cure. Notwithstanding the foregoing, Mortgagee
agrees to give to Mortgagor written notice as described below of (a) Mortgagor's
failure to pay any part of the Debt 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 Mortgagor'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 Default 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
33
required, to give notice of a Noticed Monetary Default or a recurrence of the
same Noticed Nonmonetary Default more frequently than two times in any
twelve-month period. A 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
during the continuance thereof, and subject to any applicable cure period,
Mortgagee may, at Mortgagee's option, do any one or more of the following:
(a) Right to Perform Mortgagor'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 Mortgagor 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 from the date when paid, incurred
or expended by Mortgagee at the Default Rate (as defined and otherwise specified
in the Note).
(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 a 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.
34
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 Mortgagor shall reimburse such Indemnified Party therefor
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, or 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.
(c) Right to Accelerate. Mortgagee 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 Mortgagor 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 all rights 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 (d) above, whether made
35
under the power of sale herein granted or by virtue of judicial proceedings or
of a judgment or decree of foreclosure and sale:
(i) Mortgagee may conduct any number of sales from 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 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 Mortgagor 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. Mortgagee is hereby appointed the true and
lawful attorney-in-fact of Mortgagor, which appointment is irrevocable
and shall be deemed to be coupled with an interest, in Mortgagor's name
and stead, to make all necessary conveyances, assignments, transfers
and deliveries of the property and rights so sold, Mortgagor hereby
ratifying and confirming all that said attorney or such substitute or
substitutes shall lawfully do by virtue thereof. Nevertheless,
Mortgagor, if requested by Mortgagee, shall ratify and confirm any such
sale or sales by executing and delivering to Mortgagee or such
purchaser or purchasers all such instruments as may be advisable, in
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 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 Mortgagee is authorized
to deduct under the terms hereof, to the extent necessary to satisfy
such bid.
36
(vii) Upon any such sale, it shall not be necessary
for 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 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 nonjudicial 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 nonjudicial remedy of Mortgagee.
(g) Mortgagee's Right to Appointment of Receiver.
Mortgagee, as a matter of right and (i) without regard to the sufficiency of the
security for repayment of the Debt and without notice to Mortgagor, (ii) without
any showing of insolvency, fraud, or mismanagement on the part of Mortgagor,
(iii) without the necessity of filing any judicial or other proceeding other
than the proceeding for appointment of a receiver, and (iv) without 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 period of redemption (if any), whether
there be a redemption or not, as well as during any further times when
Mortgagor, except for the intervention of such receiver, would be entitled to
collection of such Rents. Mortgagor 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. The
Mortgagee may exercise its rights 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; and (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
37
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, and
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 any
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 Mortgagor 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 Mortgagor 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 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
the 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 Mortgagor 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,
Mortgagor 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 Mortgagor
to stay, condition, or inhibit Mortgagee from exercising its remedies are hereby
admitted by Mortgagor to be in bad faith and Mortgagor 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
38
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
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;
(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 (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.
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 the
first 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
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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 Mortgagor'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 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 Mortgagor'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 and is not cured within applicable grace periods, 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 Mortgagor 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.
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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 Mortgagee's exercise of any
right, remedy, or recourse provided for under the Loan Documents.
(c) To the extent permitted by applicable law,
Mortgagee'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 Mortgagee 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 Mortgage 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 Mortgagor 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 materialman's
liens asserted against the Mortgaged Property if, and
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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 contest 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 contest, 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.
30. Recovery of Sums Required to Be Paid. Mortgagee shall have the
right from time to 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) Mortgagor agrees that the Mortgaged
Property shall at all times comply in all material respects with applicable
requirements of the Americans with Disabilities Act of 1990, 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 Mortgagee's approval of alterations of the
Mortgaged Property, Mortgagor shall not alter the Mortgaged Property in any
manner which would materially increase Mortgagor's responsibilities for
compliance with the applicable Access Laws without the prior written approval of
Mortgagee. The foregoing 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 Laws.
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(c) Mortgagor agrees to give prompt notice to Mortgagee
of the receipt by Mortgagor of any complaints related to violation of any Access
Laws and of the commencement of any proceedings or investigations which relate
to compliance with applicable Access Laws.
32. Indemnification; Limitation of Liability. (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,
Mortgagor shall protect, defend, indemnify and save harmless the Indemnified
Parties from and against all actual liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses (including without limitation
reasonable attorneys' fees and expenses (of counsel engaged by Mortgagee, rather
than of all counsel engaged by all such Indemnified Parties)) imposed upon or
incurred by or asserted against any Indemnified Party by reason of (a) ownership
of the Mortgage, the Mortgaged Property or any interest therein or receipt of
any rents; (b) 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; (c) 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; (d) 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; (e) any actions taken by
any Indemnified Party in the enforcement of this Mortgage and the other Loan
Documents; (f) any failure to act on the part of any Indemnified Party
hereunder; (g) the payment or nonpayment of any brokerage commissions to any
party in connection with the transaction contemplated hereby; and (h) the
failure of Mortgagor to file timely with the Internal Revenue Service an
accurate Form 0000-X, Xxxxxxxxx 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 of the transaction in connection with which this
Mortgage is made; provided, that the foregoing indemnification shall not include
punitive damages as may be charged to the Indemnified Parties (as opposed to
being claimed by the Indemnified Parties against the Mortgagor). 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 or damage is sustained by such Indemnified Party until
paid. The provisions of this Section 32 shall survive any termination,
satisfaction or assignments of the Loan Documents or the entry of a judgment of
foreclosure, sale of the Mortgaged Property by nonjudicial foreclosure sale,
delivery of a deed in lieu of foreclosure or the exercise by Mortgagee of any of
its other rights and remedies under this Mortgage or the other Loan Documents.
(b) Neither Mortgagee, nor any affiliate, officer,
director, employee, attorney, or agent of Mortgagee, shall have any liability
with respect to, and Mortgagor hereby waives, releases, and agrees not to xxx
any of them upon, any claim for any special, indirect, incidental, or
consequential damages suffered or incurred by Mortgagor in connection with,
arising out of, or in any way related to, this Mortgage or any of the other Loan
Documents, or any of the transactions contemplated by this Mortgage or any of
the other Loan Documents, other than the gross negligence or willful misconduct
of a Mortgagee. Mortgagor hereby waives, releases, and agrees not to xxx
Mortgagee or any of Mortgagee's affiliates, officers, directors, employees,
attorneys, or agents for punitive damages in respect of any claim in connection
with, arising out of, or in any way related to,
43
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 gross negligence or willful
misconduct of a Mortgagee.
33. Intentionally omitted.
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 (i) the day such notice is
personally delivered to such addressee, (ii) the third (3rd) day following the
day such notice is deposited with the United States postal service first class
certified mail, return receipt requested, (iii) the day following the day on
which such notice is delivered to a nationally recognized overnight courier
delivery service, or (iv) 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, Mortgagor 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, Mortgagor 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) Equity interests in Mortgagor are publicly
offered securities, within the meaning of 29 C.F.R. Section
2510.3-101(b)(2);
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(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
(C) Mortgagor 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 with 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 specifically 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 or 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 Mortgagor'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 provisions 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
45
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
portion 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 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," 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 and
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.
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47. Assignments. Mortgagee shall have the right to assign or
transfer its rights under this Mortgage and the other Loan Documents without
limitation, including, without limitation, the right 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 Loan
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 judgment 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 and Mortgagee to be, and
shall be construed as, covenants running with the Mortgaged Property until the
lien of this Mortgage has been fully released by 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 and Mortgagee and
shall not inure to the benefit of any third party (other than any successor or
assignee of 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
Mortgagor is solely that of debtor and creditor, and Mortgagee has no fiduciary
or other special relationship with Mortgagor, and no term or condition of any of
the Loan Documents shall be construed to be other than that of debtor and
creditor. Mortgagor represents and acknowledges that the Loan Documents do not
provide for any shared appreciation rights or other equity participation
interest.
54. Intentionally omitted.
47
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) Mortgagor 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 Leases and Rents, Mortgagor hereby
assigns to Mortgagee, as further security for the Debt and the Obligations, the
Leases and Rents. Subject to the expiration of applicable cure periods, 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.
57. Waiver of Right to Trial by Jury. MORTGAGOR HEREBY 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 RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY MORTGAGOR, 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 MORTGAGOR.
58. Expenses and Attorneys' Fees. Mortgagor 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: (i) reasonable fees, costs and expenses
(including reasonable attorneys' 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; (ii) 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; (iii)
reasonable fees, costs and expenses
48
(including reasonable attorneys' fees) incurred in connection with the review,
documentation, negotiation, closing and administration of any subordination or
intercreditor agreements; and (iv) 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 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.
60. Sophisticated Parties; Reasonable Terms. Mortgagor represents,
warrants and acknowledges that (i) Mortgagor is a sophisticated real estate
investor, familiar with transactions of this kind, and (ii) Mortgagor has
entered into this Mortgage and the other Loan Documents after conducting its own
assessment of the alternatives available to it in the market, and after lengthy
negotiations in which it has been represented by legal counsel of its choice.
Mortgagor also acknowledges and agrees that the rights of Mortgagee under this
Mortgage and the other Loan Documents are 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 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. Limitation on Liability. This Mortgage is a Loan Document, as
defined in the Note, to which the provisions of Section 12 of the Note apply and
are hereby incorporated in full herein by this reference, including those
provisions providing for the limitation on the personal liability of the
Mortgagor and other persons under the Loan Documents.
64. Special State Provisions.
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(a) Inconsistencies. In the event of any inconsistencies
between the terms and conditions of this Section 64 and any other terms of this
Mortgage the terms and conditions of this Section 64 shall control and be
binding.
(b) Environmental.
(i) Mortgagor represents and warrants, based
upon an environmental assessment of the Mortgaged Property and
information that Mortgagor knows or should have reasonably
known that: except as indicated in the environmental report
delivered by Mortgagor to Mortgagee or as otherwise disclosed
in writing to Mortgagee at or prior to the date hereof: (a) no
portion of the Mortgaged Property has ever been used by the
Mortgagor or any former owner, occupant or operator to
generate, manufacture, refine, produce, treat, store, handle,
dispose of, transfer, process or transport Hazardous
Substances, whether or not any of those parties has received
notice or advice from any governmental agency or other source
with respect thereto; (b) no portion of the Mortgaged Property
is now nor at any time that Mortgagor has owned the Mortgaged
Property, nor at any time prior to Mortgagor acquiring title
to the Mortgaged Property has ever been, used as a "Major
Facility," as that term is defined in the Spill Compensation
and Control Act, N.J.S.A. 58:10-23.11 et seq. (said Spill
Compensation and Control Act together with any amendments or
revisions thereof and any regulations promulgated pursuant
thereto being hereinafter collectively called the "Spill
Act"), and that Mortgagor has not used, and does not intend to
use, any portion of the Mortgaged Property for that purpose;
(c) at any time that Mortgagor has owned the Mortgaged
Property and at any time prior to Mortgagor acquiring title to
the Mortgaged Property, Hazardous Substances have not been
transported from the Mortgaged Property to another location
which is not in compliance with all Environmental Laws; and
(d) there are no environmental permits required for current or
anticipated uses of the Mortgaged Property; (e) no lien has
been attached to the Mortgaged Property under the Spill Act or
any other Environmental Laws; and (f) Mortgagor has not in the
past, and does not now own, operate or control any "Major
Facility" (as such term is defined in the Spill Act) or any
hazardous or solid waste disposal facility.
(ii) If a lien is filed against the Mortgaged
Property pursuant to the Spill Act or any other Environmental
Law (other than any such lien which is filed with respect to
any state of facts that first come into existence after the
Mortgagee or any third party that is not related to or
affiliated with Mortgagor acquires title to the Mortgaged
Property through foreclosure of this Mortgage or a deed in
lieu thereof), Mortgagor shall immediately either: (i) pay the
claim and remove the lien from the Mortgaged Property, or (ii)
furnish (a) a bond reasonably satisfactory to Mortgagee and
the title insurance company which insures the priority of the
lien of this Mortgage in the amount of the claim out of which
the lien arises, (b) a cash deposit in the amount of the claim
out of which the lien arises, or (c) other security reasonably
satisfactory to Mortgagee in an amount sufficient to discharge
the claim out of which the lien arises. In addition to the
foregoing, Mortgagor hereby agrees to defend,
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indemnify and to save Mortgagee harmless from and against all
loss, damage, liability and expense (including reasonable
attorney's fees and expenses) which Mortgagee may sustain by
reason of any lien filed against the Mortgaged Property
pursuant to the Spill Act or any other federal, state or local
laws, ordinances, rules or regulations. Mortgagor shall be
personally liable to Mortgagee for the foregoing
notwithstanding any exculpatory provisions contained in this
Mortgage, the Note or the other Loan Documents.
(iii) All references herein to executives,
departments, funds, statutes, and acts of the State of New
Jersey are not intended to be exclusive and shall be deemed to
apply to any successors, replacements, amendments, thereof and
any additional statutes, rules, regulations, organizations and
persons of a similar nature, whether of the State of New
Jersey or the United State of America.
(iv) Upon Mortgagee's request, and in all events
no later than sixty (60) days prior to "closing, terminating
or transferring operations" (as such term is defined in the
New Jersey Industrial Site Recovery Act, Senate No. 1070, N.J.
Laws 1993, c. 139 (effective June 16, 1993), N.J.S.A. 13:1K-6
et, seq. and the regulations promulgated pursuant thereto
(said New Jersey Industrial Site Recovery Act together with
any amendments or revisions thereof and any regulations
promulgated pursuant thereto hereinafter collectively called
"ISRA")) by Mortgagor and/or any one or more of the Tenants,
Mortgagor, at its sole cost and expense, shall, to the extent
permitted by law, provide Mortgagee with a certified true copy
of the following, as applicable:
(A) an opinion letter or a letter of
non-applicability (accompanied by the Applicant's
supporting affidavit) from the New Jersey Department
of Environmental Protection (or such other agency or
body as shall then have jurisdiction over ISRA
matters) ("DEP"), or any attorney's opinion letter
addressed to Mortgagee in a form reasonably
satisfactory to Mortgagee's counsel, stating that
ISRA does not then apply to: (x) Mortgagor, (y) the
use of and occupancy of the Mortgaged Property and
(z) the closing, terminating or transferring of
operations of all or any portion of the Mortgaged
Property; or
(B) a Negative Declaration (as such
term is defined in ISRA) duly and finally approved by
DEP; or
(C) a Remedial Action Workplan (as such
term is defined in ISRA) duly and finally approved by
DEP; or
(D) a De Minimis Quantity Exemption (as
such term is defined in ISRA) issued by DEP to
Mortgagor; or
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(E) a Remediation Agreement issued in
accordance with ISRA by DEP to Mortgagor, permitting
the closing, terminating or transferring of
operations; or
(F) a No Further Action Letter issued
in accordance with ISRA by DEP to Mortgagor.
Nothing in this subsection iv shall be construed as limiting
Mortgagor's obligation to otherwise comply with ISRA.
(v) If Mortgagor complies with subsection iv by:
(A) obtaining an approved and final
Remedial Action Workplan, Mortgagor shall (x)
promptly implement and prosecute to completion or
cause to be so implemented and prosecuted the
Remedial Action Workplan or the requirements of the
Remediation Agreement, as the case may be, in
accordance with the schedules contained therein or as
may be otherwise ordered or directed by DEP or such
other agency or body as shall then have jurisdiction
over the Remedial Action Workplan or the Remediation
Agreement. Mortgagor expressly understands and
acknowledges that Mortgagor's compliance with the
provisions of this subsection IV and V may require
Mortgagor to expend funds or do acts after the
expiration or termination of the term of one or more
leases ("Leases") between Mortgagor and one or more
Tenants. Mortgagor shall expend such funds and do
such acts and shall not be excused therefrom even
though the term of the Lease shall have previously
expired or been terminated and notwithstanding any
provisions in any such Lease or in ISRA placing the
burden or compliance on the Tenant, and (y) provide
an affidavit dated not more than ten (10) days nor
less than five (5) days prior to the closing,
terminating or transferring of operations that it is
in full compliance with and has not received any
notice that it has violated the terms of the Remedial
Action Workplan or the Remediation Agreement, as the
case may be, including without limitation, the terms
regarding the establishment and maintenance of a
remediation funding source, such affidavit is to be
provided to Mortgagor within two (2) days after its
execution;
(B) providing an opinion letter or a
letter of non-applicability from DEP, or an
attorney's opinion letter, Mortgagor shall reiterate,
in affidavit form, dated not more than ten (10) days
nor less than five (5) days prior to the closing,
terminating or transferring of operations, that the
facts upon which the opinion letter, letter of
non-applicability or attorney's letter are based are
and remain true as of that date, such affidavit to be
provided to Mortgagee within two (2) days after its
execution.
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(vi) The obligations and liabilities of Mortgagor
under this Agreement shall survive any entry of a judgment of
foreclosure or the delivery of a deed in lieu of foreclosure
of this Mortgage.
(c) COPY OF MORTGAGE. MORTGAGOR REPRESENTS AND WARRANTS
THAT IT HAS RECEIVED A TRUE COPY OF THIS MORTGAGE WITHOUT CHARGE.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Mortgagor has executed this instrument the day and
year first above written.
MORTGAGOR:
XXXXXXX SPRINGS SC, LLC,
A DELAWARE LIMITED LIABILITY COMPANY
By: ________________________________________
Name: Xxxxxx Xxxxxxxxxx
Its: President
STATE OF ____________________)
)
COUNTY OF ___________________)
BE IT REMEMBERED, that on this ___ day of ____________, 2003, before
me, the subscriber, a notary public of the State of ___________, personally
appeared _______________, who being by me duly sworn on his oath, deposes and
makes proof to my satisfaction that he is the President of Xxxxxxx Springs SC,
LLC, a Delaware limited liability company, the limited liability company named
in the within Instrument and said Instrument was signed and delivered by said
President as and for the voluntary act and deed of said limited liability
company for the uses and purposes therein expressed.
Sworn to and subscribed before me the date aforesaid.
_________________________ ___________________________
EXHIBIT A
Legal Description
Property located in the Borough of Xxxxxxx, County of Xxxxxx, State of New
Jersey, more particularly described as follows:
Beginning at a point marking the intersection of the southwesterly sideline of
Seminar Avenue (50 feet right-of-way), with the southeasterly sideline of Maple
Avenue (50 feet right-of-way), and running thence:
1. Along said southwesterly sideline of Seminary Avenue, and along lands now or
formerly of Xxxxxx X. and Xxxxxxx Xxxxxx, and also lands of Xxxxxxx X. and
Xxxxxx Xxxxxxx, South 36 degrees 39 minutes 06 seconds East a distance of
1208.40 feet to a point; thence
2. South 57 degrees 06 minutes 29 seconds West, a distance of 382.40 feet to a
point, said point being on the division line of the Borough and Township of
Xxxxxxx; thence
3. South 69 degrees 29 minutes 03 seconds West a distance of 649.28 feet to an
iron pin in the northeasterly sideline of Route 206; thence
4. Along said Route 206 northeasterly sideline North 25 degrees 20 minutes 50
seconds West a distance of 521.38 feet to a concrete monument at a point of
curvature; thence
5. Along the same, in a northwesterly direction and along a curve to the right
having a radius of 1870.08 feet, a central angle of 03 degrees 34 minutes 14
seconds and an arc length of 116.54 feet to a point; thence
6. North 49 degrees 29 minutes 40 seconds East a distance of 248.90 feet to an
iron pin; thence
7. North 15 degrees 37 minutes 39 seconds West a distance of 154.99 feet to and
iron pin; thence
8. South 76 degrees 47 minutes 21 seconds West a distance of 100.00 feet to a
point; thence
9. North 13 degrees 12 minutes 39 seconds West a distance of 150.00 feet to an
iron pin in said Maple Avenue southeasterly sideline; thence
10. Along said southeasterly sideline North 50 degrees 16 minutes 25 seconds
East a distance of 199.32 feet to P.K. Nail; thence
11. Along the same, North 49 degrees 18 minutes 43 seconds East a distance of
406.80 feet to the point and place of beginning.
FOR INFORMATIONAL PURPOSES ONLY:
"In compliance with Chapter 157, Laws of 1977, premises herein is Lot 13; 13.01
& 14.02 in Block 7 on the Tax Map of the Borough of Xxxxxxx and in the Borough
of Xxxxxxx, County of Xxxxxx, State of New Jersey."
Together with a non-exclusive perpetual easement for purposes of vehicular and
pedestrian ingress and egress over and through, and parking, at places
designated and used as and for such purposes on the premises contiguous to the
above described premises and known as Xxxxxxx Springs Shopping Center in Deed
Book 2440, page 954 as amended in Deed Book 3576, page 292, and as same is shown
on a site plan "Xxxxxxx Springs Shopping Center" dated June 11, 1974, and as
said shopping center may change from time to time.
