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XX XXXXX OPERATING PARTNERSHIP, L.P., NEW GREEN 1140
REALTY LLC and SLG 17 BATTERY LLC
(collectively, Borrower)
to
XXXXXX BROTHERS HOLDINGS INC.
D/B/A XXXXXX CAPITAL, A DIVISION
OF XXXXXX BROTHERS HOLDINGS INC., Individually as a Co-Lender and
as Agent For One or More
Co-Lenders and as Syndication Agent as mortgagee
(Lender)
___________________________________
AGREEMENT OF SPREADER,
CONSOLIDATION AND
MODIFICATION OF MORTGAGE
___________________________________
Dated: As of March 20, 1998
PREPARED BY AND UPON
RECORDATION RETURN TO:
Xxxxxxx Xxxxxxxx & Xxxx
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
File No.: 16248-00337
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THIS AGREEMENT OF SPREADER, CONSOLIDATION, AND MODIFICATION OF
MORTGAGE (the "Security Instrument") is made as of March 20, 1998 among XX
XXXXX OPERATING PARTNERSHIP, L.P. (the "Partnership"), NEW GREEN 1140 REALTY
LLC (the "Green LLC") and SLG 17 BATTERY LLC (the "17 LLC"; the Partnership,
the Green LLC and the 17 LLC are hereinafter referred to as, individually and
collectively, as the context requires as, the "Borrower") each having an
address at 00 Xxxx 00/xx/ Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and XXXXXX
BROTHERS HOLDINGS INC. D/B/A XXXXXX CAPITAL, A DIVISION OF XXXXXX BROTHERS
HOLDINGS INC., a Delaware corporation ("Xxxxxx"), having an address at Three
World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as
mortgagee (the term "Lender" hereinafter referring to Xxxxxx individually as
a Co- Lender (as defined in the Loan Agreement (herein defined)) and as Agent
(as defined in the Loan Agreement) for one or more Co-Lenders and as
Syndication Agent (as defined in the Loan Agreement).
RECITALS:
Borrower is the fee owner of the Land (as defined in Section
1.1(a)) and the leasehold owner of the Leased Land (as defined in Section
1.1(b)) and Lender is the owner and holder of certain mortgages covering the
fee estate in the Land and the leasehold estate of Borrower in the Leased
Land, which mortgages are more particularly described in Exhibit C attached
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hereto (hereinafter collectively referred to as the "Existing Mortgages"),
and of the notes, bonds or other obligations secured thereby (hereinafter
collectively referred to as the "Existing Notes").
There is now owing on the Existing Notes and the Existing Mortgages
the unpaid principal sum of $149,513,915.20 together with interest thereon
(the "Existing Indebtedness").
Borrower by its Consolidated Amended and Restated Promissory Note
of even date herewith given to Lender is indebted to Lender in the aggregate
principal sum of $275,000,000.00 (the Consolidated Amended and Restated
Promissory Note together with all modifications, substitutions and amendments
thereof shall collectively be referred to as the "Note"). The Note evidences
a new indebtedness of $125,486,084.80 together with the renewal,
confirmation, extension, modification, amendment and restatement of an
existing indebtedness of $149,513,915.20 evidenced by the Existing Notes
secured by the Existing Mortgages, with interest from the date thereof at the
rates set forth in the Note, principal and interest to be payable in
accordance with the terms and conditions provided in the Note.
Borrower and Lender have agreed in the manner hereinafter set forth
to (i) spread the Existing Mortgages and the respective liens thereof over
those portions of the Property (as defined in Section 1.1) not already
covered thereby, (ii) consolidate and coordinate the respective liens of the
Existing Mortgages and (iii) modify the terms and provisions of the Existing
Mortgages.
Borrower desires to secure the timely payment of the Debt (as
defined in Article
2) and the performance of all of its obligations under the Note, the Loan
Agreement and the Other Obligations (as defined in Article 2).
NOW, THEREFORE, in pursuance of said agreement and in consideration
of One Dollar ($1) and other valuable consideration, the parties hereto agree
as follows:
A. SPREADING OF MORTGAGE. The Existing Mortgages and the
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respective liens thereof are hereby spread to cover those portions of the
Property not already covered thereby.
B. CONSOLIDATION OF MORTGAGES. The liens of the Existing
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Mortgages as so spread, are hereby consolidated and coordinated so
that together they shall hereafter constitute in law but one mortgage, a
single lien, covering the Property and securing the principal sum of
$149,513,915.30, together with
interest thereon as hereinafter provided (the Existing Mortgages, as so
spread, consolidated and coordinated and as modified, amended, restated,
ratified and confirmed pursuant to the provisions of this Agreement being
hereinafter collectively referred to as the "Security Instrument").
C. INTENTIONALLY DELETED.
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D. THIS AGREEMENT.
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(1) Borrower shall promptly cause this Agreement 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 and fully to protect
the lien of the Security Instrument upon, and the interest of Lender in, the
Property. Borrower will pay all filing, registration and recording fees, and
all reasonable expenses incident to the preparation, execution and
acknowledgment of this Agreement, and all Federal, state, county and
municipal taxes, duties, imposts, assessments and charges arising out of or
in connection with the filing, registration, recording, execution and
delivery of this Agreement and Borrower shall hold harmless and indemnify
Lender against any liability incurred by reason of the imposition of any tax
on the issuance, making, filing, registration or recording of this Agreement.
(2) Borrower represents, warrants and covenants that there
are no offsets, counterclaims or defenses against the Debt, this Agreement,
the Security Instrument, the Loan Agreement or the Note, that Borrower has
full power, authority and legal right to execute this Agreement and to keep
and observe all of the terms of this Agreement on Borrower's part to be
observed or performed, and that the Loan Agreement, the Note, the Security
Instrument and this Agreement constitute valid and binding obligations of
Borrower.
(3) This Agreement, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally
or by any act or failure to act on the part of Borrower or Lender, but only
by an agreement in writing signed by the party against whom the enforcement
of any modification, amendment, waiver, extension, change, discharge or
termination is sought.
(4) This Agreement shall be binding upon and inure to the
benefit of Borrower and Lender and their respective successors and assigns.
(5) This Agreement may be executed in any number of duplicate
originals and each duplicate original shall be deemed to be an original. The
Agreement may be executed in several counterparts, each of which counterparts
shall be deemed an original instrument and all of which together shall
constitute a single agreement. The failure of any party hereto to execute
this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
(6) If any term, covenant or condition of this Agreement
shall be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such provision.
(7) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and the applicable laws of
the United States of America.
(8) Except as otherwise provided to the contrary in the
following numbered Sections, all defined terms in the following numbered
Sections shall have the meaning given to such terms in the above body of this
Agreement and all references to the "Note" and the "Security Instrument"
shall refer to the Existing Mortgages as spread, coordinated, combined,
consolidated, modified, amended and restated pursuant to the provisions of
this Agreement.
J. MODIFICATION OF MORTGAGE. The terms, covenants and provisions
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of the Existing Mortgages are hereby modified, amended and restated so that
henceforth the terms, covenants and provisions of this Agreement and the Loan
Agreement shall supersede the terms, covenants and provisions of the Existing
Mortgages and the terms, covenants and provisions of the Existing Mortgages
shall read the same as the following Articles and Sections of this Agreement.
The Security Instrument as herein modified, amended, spread and restated, is
hereby ratified and confirmed in all respects by Borrower.
ARTICLE 1 - GRANTS OF SECURITY
Section 1.1. PROPERTY MORTGAGED. Borrower does hereby irrevocably
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mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey
to Lender, and grant a security interest to Lender in and to the following
property, rights, interests and estates to the extent now owned or hereafter
acquired by Borrower (hereinafter referred to, individually and collectively,
as the context requires as, the "Property"):
(a) Land. The real property described in Exhibit A attached hereto and
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made a part hereof (the "Land");
(b) Ground Lease. That certain ground lease (the "Ground Lease") dated
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October 1, 1951, by and between Phoenix Mutual Life Insurance Company
("Owner"), and 00 Xxxx 00/xx/ Xxxxxx Inc., which by those certain assignments
described in Exhibit B attached hereto and by that certain Assignment and
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Assumption of Ground Lease, dated August 20, 1997, by and between 0000 Xxxxx
Xxxxxx Associates, L.P. and the Green LLC, been assigned to the Green LLC, as
tenant and the leasehold estate created thereby in the real property
described therein and in Exhibit B attached hereto which is made a part
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hereto (the "Leased Land"), including all assignments, modifications,
extensions and renewals of the Ground Lease and all credits, deposits,
options, privileges and rights of the Green LLC as tenant under the Ground
Lease, including but not limited to, the right, if any, to renew or extend
the Ground Lease for a succeeding term or terms and also including all the
right, title, claim or demand whatsoever of Lender either in law or in
equity, in possession or expectancy, of, in and to the Green LLC's right, as
tenant under the Ground Lease, to elect under Section 365(h)(1) of the
Bankruptcy Code, Title 11 U.S.C.A. Section101 et seq. (the "Bankruptcy Code")
to terminate or treat the Ground Lease as terminated in the event (i) of the
bankruptcy reorganization or insolvency of the Owner, and (ii) the rejection
of the Ground Lease by the Owner, as debtor in possession, or by a Trustee
for the Owner, pursuant to Section 365 of the Bankruptcy Code;
(c) Additional Land. All xxxxxxxxxx xxxxx, xxxxxxx and development
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rights hereafter acquired by Borrower for use in connection with the Land
and/or the Leased Land and the development of the Land and/or the Leased
Land and all additional lands and estates therein which may, from time to
time, by supplemental mortgage or otherwise be expressly made subject to the
lien of this Security Instrument;
(d) Improvements. The buildings, structures, fixtures, additions,
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enlargements, extensions, modifications, repairs, replacements and
improvements now or hereafter erected or located on the Land and/or the
Leased Land (the "Improvements");
(e) Easements. All easements, rights-of-way or use, rights, strips and
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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, servitudes,
tenements, hereditaments and appurtenances of any nature whatsoever, in any
way now or hereafter belonging, relating or pertaining to the Land, the
Leased Land and/or the Improvements including, but not limited to, those
arising under and by virtue of the Ground Lease, 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 Land
and/or the Leased Land, to the center line thereof and all the estates,
rights, titles, interests, dower and rights of dower, curtesy and rights of
curtesy, property, possession, claim and demand whatsoever, both at law and
in equity, of Borrower of, in and to the Land, the Leased Land and/or the
Improvements, including, but not limited to, those arising under and by
virtue of the Ground Lease, and every part and parcel thereof, with the
appurtenances thereto;
(f) Fixtures and Personal Property. All machinery, equipment, fixtures
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(including, but not limited to, all heating, air conditioning, plumbing,
lighting, communications and elevator fixtures) and other property of every
kind and nature whatsoever owned by Borrower, or in which Borrower has or
shall have an interest, now or hereafter located upon the Land, the Leased
Land and/or the Improvements, or appurtenant thereto, and usable in
connection with the present or future operation and occupancy of the Land,
the Leased Land and/or the Improvements and all building equipment, materials
and supplies of any nature whatsoever owned by Borrower, or in which Borrower
has or shall have an interest, now or hereafter located upon the Land, the
Leased Land and/or the Improvements, or appurtenant thereto, and usable in
connection with the present or future operation and occupancy of the Land,
the Leased Land and/or the Improvements (collectively, the "Personal
Property"), and the right, title and interest of Borrower in and to any of
the Personal Property 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 Property is located (the "Uniform Commercial Code"), superior in lien to
the lien of this Security Instrument and all proceeds and products of the
above;
(g) Leases and Rents. All leases and other agreements affecting the
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use, enjoyment or occupancy of the Land, the Leased Land, and the
Improvements heretofore or hereafter entered into, whether entered into
before or after the filing by or against Borrower of any petition for relief
under 11 U.S.C. Section 101, et seq. as the same may be amended from time to
time (the "Bankruptcy Code") (the "Leases") and all right, title and interest
of Borrower, its successors and assigns therein and thereunder, including,
without limitation, cash or securities, if any, and other cash equivalents,
if any, and any Lease Guaranties (hereinafter defined) deposited thereunder
to secure the performance by the lessees of their obligations thereunder and
all rents, income, additional rents, revenues, issues, profits (including all
oil and gas or other mineral royalties and bonuses), pass throughs,
tenant-required contributions for taxes, costs for major improvements,
leasing commissions, capital expenditures and other cash items from the Land
and the Improvements whether paid or accruing before or after the filing by
or against Borrower of any petition for relief under the Bankruptcy Code and
all proceeds from the sale, termination or other disposition of the Leases or
from any award, judgment or payment which may heretofore or hereafter be made
with respect to any action or proceeding brought with respect to the Leases
whether paid or accruing before or after the filing by or against Borrower of
any petition for relief under the Bankruptcy Code (collectively, the "Rents")
and the right to receive and apply the Rents to the payment of the Debt; and
all deposits made by Borrower pursuant to this Security Instrument or other
agreement with Lender regarding the Property and any accounts in which such
deposits are held;
(h) Condemnation Awards. All awards or payments, including interest
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thereon, which may heretofore and hereafter be made with respect to the
Property, whether from the exercise of the right of eminent domain (including
but not limited to any transfer made in lieu of or in anticipation of the
exercise of the right), or for a change of grade, or for any other injury to
or decrease in the value of the Property;
(i) Insurance Proceeds. All proceeds of and any unearned premiums on
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any insurance policies covering the 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 Property;
(j) Tax Certiorari. All refunds, rebates or credits in connection with
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a reduction in real estate taxes and assessments charged against the Property
as a result of tax certiorari or any applications or proceedings for
reduction;
(k) Conversion. All proceeds of the conversion, voluntary or
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involuntary, of any of the foregoing including, without limitation, proceeds
of insurance and condemnation awards, into cash or liquidation claims;
(l) Rights. The right, in the name and on behalf of Borrower, to
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appear in and defend any action or proceeding brought with respect to the
Property and to commence any action or proceeding to protect the interest of
Lender in the Property;
(m) Agreements. All agreements, contracts, certificates, instruments,
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franchises, permits, licenses, plans, specifications and other documents, now
or hereafter entered into, and all rights therein and thereto, respecting or
pertaining to the use, occupation, construction, management or operation of
the Land and/or the Leased Land and any part thereof and any Improvements or
respecting any business or activity conducted on the Land and/or the Leased
Land and any part thereof and all right, title and interest of Borrower
therein and thereunder, including, without limitation the right, upon the
happening of any default hereunder, to receive and collect any sums payable
to Borrower thereunder;
(n) Trademarks. All tradenames, trademarks, servicemarks, logos,
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copyrights, goodwill, books and records and all other general intangibles
relating to or used in connection with the operation of the Property;
(o) Other Rights. Any and all other rights of Borrower in and to the
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items set forth in Subsections (a) through (n) above and all proceeds and
products of any of the foregoing and all rights and privileges pertaining
thereto.
Section 1.2. ASSIGNMENT OF RENTS. Borrower hereby absolutely and
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unconditionally assigns to Lender Borrower's right, title and interest in and
to all current and future Leases and Rents; it being intended by Borrower
that this assignment constitutes a present, absolute assignment and not an
assignment for additional security only. Nevertheless,
subject to the terms of this Section 1.2, Section 3.7, and Section 4.4,
Lender grants to Borrower a revocable license to collect and receive the
Rents. Borrower shall hold the Rents, or a portion thereof sufficient to
discharge all current sums due on the Debt, for use in the payment of such
sums.
Section 1.3. SECURITY AGREEMENT. This Security Instrument is both a
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real property mortgage and a "security agreement" within the meaning of the
Uniform Commercial Code. The Property includes both real and personal
property and all other rights and interests, whether tangible or intangible
in nature, of Borrower in the Property. By executing and delivering this
Security Instrument, Borrower hereby grants to Lender, as security for the
Obligations (defined in Section 2.3), a security interest in the Personal
Property to the full extent that the Personal Property may be subject to the
Uniform Commercial Code.
Section 1.4. PLEDGE OF MONIES HELD. Borrower hereby pledges to Lender
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any and all monies now or hereafter held by Lender, including, without
limitation, any sums deposited in the Escrow Fund (as defined in Section
3.5), Net Proceeds (as defined in Section 4.3), the Lock-Box Account (as
defined in Section 4.4), if any, and condemnation awards or payments
described in Section 3.6, as additional security for the Obligations until
expended or applied as provided in this Security Instrument.
CONDITIONS TO GRANT
TO HAVE AND TO HOLD the above granted and described Property, with
all privileges and appurtenances thereunto belonging unto and to the use and
benefit of Lender and the heirs, successors and assigns of Lender, forever;
provided, however, with respect to the Ground Lease and the Leased Land, such
period shall be for and during the rest, residue and remainder of the term of
years yet to come and unexpired in the Ground Lease (as the same may be
renewed or extended); subject nevertheless to the rents, covenants,
conditions and provisions of the Ground Lease;
PROVIDED, HOWEVER, these presents are upon the express condition
that, if Borrower shall well and truly pay to Lender the Debt at the time and
in the manner provided in the Note and this Security Instrument, shall well
and truly perform the Other Obligations as set forth in this Security
Instrument and shall well and truly abide by and comply with each and every
covenant and condition set forth herein and in the Note, these presents and
the estate hereby granted shall cease, terminate and be void.
ARTICLE 2. - DEBT AND OBLIGATIONS SECURED
Section 2.1. DEBT. This Security Instrument and the grants,
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assignments and transfers made in Article 1 are given for the purpose of
securing the following, in such order of priority as Lender may determine in
its sole discretion (the "Debt"):
(a) the payment of the indebtedness evidenced by the Note in lawful
money of the United States of America;
(b) the payment of interest, default interest, late charges and other
sums, as provided in the Note, the Loan Agreement, this Security Instrument
or Other Security Documents (defined below);
(c) Funding Costs (as defined in the Loan Agreement);
(d) the payment of all other moneys agreed or provided to be paid by
Borrower in the Note, the Loan Agreement, this Security Instrument or the
Other Security Documents including, but not limited to, all Fees (as defined
in the Loan Agreement) and Transaction Costs (as defined in the Loan
Agreement);
(e) the payment of all sums advanced pursuant to this Security
Instrument to protect and preserve the Property and the lien and the security
interest created hereby; and
(f) the payment of all sums advanced and costs and expenses incurred by
Lender in connection with the Debt or any part thereof, any renewal,
extension, or change of or substitution for the Debt or any part thereof, or
the acquisition or perfection of the security therefor, whether made or
incurred at the request of Borrower or Lender.
Notwithstanding the provisions this Section 2.1 to the contrary,
Borrower agrees that all payments made to reduce the amount of the Debt shall
be deemed applied first to that portion of the Debt that is in excess of the
Existing Indebtedness secured by this Security Instrument.
Section 2.2. OTHER OBLIGATIONS. This Security Instrument and the
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grants, assignments and transfers made in Article 1 are also given for the
purpose of securing the following (the "Other Obligations"):
(a) the performance of all other obligations of Borrower contained
herein;
(b) the performance of each obligation of Borrower contained in any
other agreement given by Borrower to Lender which is for the purpose of
further securing the obligations secured hereby, and any amendments,
modifications and changes thereto; and
(c) the performance of each obligation of Borrower contained in any
renewal, extension, amendment, modification, consolidation, change of, or
substitution or replacement for, all or any part of the Note, the Loan
Agreement, this Security Instrument or Other Security Documents.
Section 2.3. DEBT AND OTHER OBLIGATIONS. Borrower's obligations for
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the payment of the Debt and the performance of the Other Obligations shall be
referred to collectively below as the "Obligations."
Section 2.4. PAYMENTS. Unless payments are made in the required
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amounts in immediately available funds at the place where the Note is payable,
remittances in payment of all or any part of the Debt shall not, regardless
of any receipt or credit issued therefor, constitute payment until the
required amount is actually received by Lender in funds immediately available
at the place where the Note is payable (or any other place as Lender, in
Lender's sole discretion, may have established by delivery of written notice
thereof to Borrower) and shall be made and accepted subject to the condition
that any check or draft may be handled for collection in accordance with the
practice of the collecting bank or banks. Acceptance by Lender of any
payment in an amount less than the amount then due shall be deemed an
acceptance on account only, and the failure to pay the entire amount then due
shall be and continue to be an Event of Default (defined herein).
ARTICLE 3. - BORROWER COVENANTS
Borrower covenants and agrees that:
Section 3.1. PAYMENT OF DEBT. Borrower will pay the Debt at the time
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and in the manner provided in the Note and in this Security Instrument.
Section 3.2. INCORPORATION BY REFERENCE. All the covenants,
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conditions and agreements contained in (a) the Loan Agreement, (b) the
Note and (c) all and
any of the documents other than the Note, the Loan Agreement or this Security
Instrument now or hereafter executed by Borrower and/or others and by or in
favor of Lender, which wholly or partially secure or guaranty payment of the
Note, including without limitation each Loan Document (as defined in the Loan
Agreement) (the "Other Security Documents"), are hereby made a part of this
Security Instrument to the same extent and with the same force as if fully
set forth herein.
Section 3.3. INSURANCE. Borrower shall obtain and maintain, or cause
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to be maintained, insurance for Borrower and the Property as provided in the
Loan Agreement.
Section 3.4. PAYMENT OF TAXES, ETC. (a) Borrower shall promptly pay
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all taxes, assessments, water rates, sewer rents, governmental impositions, and
other charges, including without limitation vault charges and license fees
for the use of vaults, chutes and similar areas adjoining the Land and/or the
Leased Land, now or hereafter levied or assessed or imposed against the
Property or any part thereof (the "Taxes"), all ground rents payable under
the Ground Lease (the "Ground Rents"), maintenance charges and similar
charges, now or hereafter levied or assessed or imposed against the Property
or any part thereof (the "Other Charges"), and all charges for utility
services (other than those specifically billed to, and payable by, tenants)
provided to the Property as same become due and payable. Borrower will
deliver to Lender, promptly upon Lender's request, evidence reasonably
satisfactory to Lender that the Taxes, Other Charges and utility service
charges have been so paid or are not then delinquent. Borrower 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 Property.
Except to the extent sums sufficient to pay all Taxes and Other Charges have
been deposited with Lender in accordance with the terms of this Security
Instrument, Borrower, upon Lender's request, shall furnish to Lender paid
receipts (or, if paid receipts are not available, other evidence reasonably
satisfactory to Lender) for the payment of the Taxes and Other Charges prior
to the date the same shall become delinquent.
(b) After prior written notice to Lender, Borrower, at its own
expense, may contest by appropriate legal proceeding, promptly initiated and
conducted in good faith and with due diligence, the amount or validity or
application in whole or in part of any of the Taxes, provided that (i) no
event, act or condition which, with the giving of notice or lapse of time, or
both, would constitute an Event of Default (a "Default") or Event of Default
has occurred and is continuing under the Loan Agreement, the Note, this
Security Instrument or any of the Other Security Documents, (ii) Borrower is
not prohibited from doing so under the provisions of any other mortgage, deed
of trust or deed to secure debt affecting the Property, (iii) such proceeding
shall suspend the collection of the Taxes from Borrower and from the Property
or Borrower shall have paid all of the Taxes under protest, (iv) such
proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Borrower is subject and shall not
constitute a default thereunder, (v) neither the Property nor any part
thereof
or interest therein will be in danger of being sold, forfeited, terminated,
cancelled or lost, (vi) Borrower shall have deposited with Lender adequate
reserves for the payment of the Taxes, together with all interest and
penalties thereon, unless Borrower has paid all of the Taxes under protest,
and (vii) Borrower shall have furnished the security as may be required in
the proceeding, together with all interest and penalties thereon.
Section 3.5. ESCROW FUND. Subject to the last sentence of this
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Section 3.5, Borrower shall pay to Lender on the first day of each calendar
month (a) one-twelfth of an amount which would be sufficient to
pay the Taxes payable, or reasonably estimated by Lender to be payable,
during the next ensuing
twelve (12) months and (b) one-twelfth of an amount which would be sufficient
to pay the payment of the premiums due under the Policies (as defined in the
Loan Agreement) (the "Insurance Premiums") due for the renewal of the
coverage afforded by the Policies upon the expiration thereof (the amounts in
(a) and (b) above shall be called the "Escrow Fund"). Borrower agrees to
notify Lender promptly of any changes to the amounts, schedules and
instructions for payment of any Taxes and Insurance Premiums of which it has
obtained knowledge and authorizes Lender or its agent to obtain the bills for
Taxes and Other Charges directly from the appropriate taxing authority. The
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 Borrower to Lender. Lender will apply the Escrow Fund to
payments of Taxes and Insurance Premiums required to be made by Borrower
pursuant to Sections 3.3 and 3.4 hereof. If the amount of the Escrow Fund
shall exceed the amounts due for Taxes and Insurance Premiums pursuant to
Sections 3.3 and 3.4 hereof, Lender shall, in its discretion, return any
excess to Borrower or credit such excess against future payments to be made
to the Escrow Fund. In allocating such excess, Lender may deal with the
person shown on the records of Lender to be the owner of the Property. If
the Escrow Fund is not sufficient to pay the items set forth in (a) and (b)
above, Borrower shall pay to Lender, promptly after demand, an amount which
Lender shall reasonably estimate as sufficient to make up the deficiency.
The Escrow Fund shall be held in a non-interest bearing account, shall not
constitute a trust fund and may be commingled with other monies held by
Lender. No earnings or interest on the Escrow Fund shall be payable to
Borrower. The obligations contained in this Section 3.5 shall be applicable
only upon, and from and after, notification thereof by Lender, which
notification may take place (i) at any time a Default or Event of Default has
occurred and is continuing or (ii) if Borrower is delinquent, beyond any
applicable notice and grace periods, in the payment of any Taxes or Insurance
Premiums two or more times during the term of the Loan.
Section 3.6. CONDEMNATION. Borrower shall promptly give Lender notice
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of the actual or threatened commencement of any condemnation or eminent
domain proceeding and shall deliver to Lender copies of any and all papers
served in connection with such proceedings. Lender may participate in any
such proceedings, and Borrower shall from time to time deliver to Lender all
instruments requested by it to permit such participation. Borrower shall, at
its expense, diligently prosecute any such proceedings, and shall consult
with Lender, its attorneys and experts, and cooperate with them in the
carrying on or defense of any such proceedings. 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), Borrower shall continue to pay
the Debt at the time and in the manner provided for its payment in the Note
and in this Security Instrument and the Debt shall not be reduced until any
award or payment therefor shall have been actually received and applied by
Lender, after the deduction of expenses of collection, to the reduction or
discharge of the Debt. Lender 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 or in the Note. If
the Property or any portion thereof is taken by a condemning authority,
Borrower shall promptly commence and diligently prosecute the Restoration (as
defined in the Loan Agreement) of the Property and otherwise comply with the
provisions of Section 4.3 of this Security Instrument. In the event Lender
is not required to disburse Net Proceeds (as defined herein) to Borrower in
accordance with Section 4.3 of this Security Instrument, Lender may apply any
award or payment to the reduction or discharge of the Debt whether or not
then due and payable. The amount of any award or payment so applied in
excess of the Debt shall be returned to Borrower. If the Property is sold,
through foreclosure or otherwise, prior to the receipt by Lender of the award
or payment, Lender shall have the right, whether or not a deficiency judgment
on the Note shall have been sought, recovered or denied, to receive the award
or payment, or a portion thereof sufficient to pay the Debt.
Section 3.7. LEASES AND RENTS. (a) Except as otherwise consented to
-------------
by Lender, or as may be provided in Subsection 3.7(b) below, all Leases shall
be written on the standard form of lease which shall have been approved by
Lender. Upon request, Borrower shall furnish Lender with executed originals
of all Leases or copies thereof. No material changes may be made to the
Lender-approved standard lease without the prior written consent of Lender,
which consent shall be deemed granted if not otherwise denied within ten (10)
Business Days after Lender's receipt of any written request for approval;
provided, however that if such request includes a copy of the lease marked to
indicate the variations from the standard form approved by Lender, the period
within which Lender must respond shall be reduced to seven (7) Business Days.
In addition, all renewals of Leases and all proposed leases shall provide for
rental rates and terms comparable to existing local market rates and terms
and shall be arms-length transactions with bona fide, independent third party
tenants. All proposed Leases and renewals of existing Leases shall be
subject to the prior approval of Lender and its counsel, at Borrower's
expense, which consent shall be deemed granted if not otherwise denied within
ten (10) Business Days after Lender's receipt of written request for
approval; provided, however that if such request includes a copy of the
proposed or renewal lease marked to indicate the variations from the standard
form approved by Lender, the period within which Lender must respond shall be
reduced to seven (7) Business Days. All Leases shall provide that they are
subordinate to this Security Instrument and that the lessee agrees to attorn
to Lender. Borrower (i) shall observe and perform all the obligations
imposed upon the lessor under the Leases (except that with respect to the
Ground Lease, it shall observe and perform all of the obligations imposed
upon lessee) and shall not do or permit to be done anything to impair the
value of the Leases as security for the Debt; (ii) shall promptly send copies
to Lender of all notices of default which Borrower shall send or receive
thereunder; (iii) shall enforce all of the terms, covenants and conditions
contained in the Leases upon the part of the lessee thereunder to be observed
or
performed, short of termination thereof; (iv) shall not collect any of the
Rents more than one (1) month in advance; (v) shall not execute any other
assignment of the lessor's interest in the Leases or the Rents; (vi) shall
not alter, modify or change the terms of the Leases without the prior written
consent of Lender, or cancel or terminate the Leases or accept a surrender
thereof or convey or transfer or suffer or permit a conveyance or transfer of
the Land or of any interest therein so as to effect a merger of the estates
and rights of, or a termination or diminution of the obligations of, lessees
thereunder; (vii) shall not alter, modify or change the terms of any
guaranty, letter of credit or other credit support with respect to the Leases
(the "Lease Guaranty") or cancel or terminate such Lease Guaranty without the
prior written consent of Lender; and (viii) shall not consent to any
assignment of or subletting under the Leases not in accordance with their
terms, without the prior written consent of Lender. Borrower agrees that it
will give prompt notice to Lender at any time that (A) Leases comprising more
than five percent (5%) of the leasable space in the Property, whether
individually or in the aggregate, are terminated or have expired and have not
been renewed by the related tenant thereunder or (B) tenants under Leases
comprising more than five percent (5%) of the leasable space in the Property,
whether individually or in the aggregate, have vacated their leased space,
ceased operating their business in such space or have subleased such space,
commenced any action or proceeding relating to bankruptcy, made an assignment
for the benefit of creditors or availed themselves or have been subjected to
any similar action or proceeding. Upon written request made by Borrower,
Lender shall enter into its standard form of subordination, non-disturbance
and attornment agreement with any tenant or proposed tenant occupying or to
occupy at least 5,000 square feet of leasable space in the Property, provided
that all other conditions which may apply to any such tenant or its
respective Lease under this Article 3.7 have been satisfied.
(b) Notwithstanding the provisions of Subsection 3.7(a) above,
renewals or amendments of existing Leases and proposed Leases for commercial
space shall not be subject to the prior approval of Lender provided all of
the following conditions are satisfied: (i) the rental income pursuant to the
renewal, or amended or proposed Lease is not more than ten percent (10%) of
the total rental income for the Property, (ii) the renewal, amended or
proposed Lease covers less than ten percent (10%) of the Property, in the
aggregate ((i) and (ii), "Minor Leases"), (iii) the renewal, amended or
proposed Lease shall provide for rental rates and terms comparable to
existing local market rates and terms, (iv) the renewal or proposed Lease
shall be an arms-length transaction with a bona fide, independent third party
tenant and (v) the renewal, amended or proposed Lease shall satisfy other
criteria as shall be reasonably required by Lender and of which Borrower has
been notified by Lender at least thirty (30) days prior to the date on which
the relevant document is executed. Borrower shall deliver to Lender copies
of all Leases which are entered into pursuant to the preceding sentence
together with Borrower's certification that it has satisfied all of the
conditions of the preceding sentence within thirty (30) days after the
execution of the Lease.
(c) To the extent permitted by law, Borrower shall promptly
deposit with Lender any and all monies representing security deposits under
the Leases, whether or not Borrower actually received such monies (the
"Security Deposits"). Lender shall hold the Security Deposits in accordance
with the terms of the respective Lease, and shall only release
the Security Deposits in order to return a tenant's Security Deposit to such
tenant if such tenant is entitled to the return of the Security Deposit under
the terms of the Lease and is not otherwise in default under the Lease. To
the extent required by Applicable Laws (defined below), Lender shall hold the
Security Deposits in an interest bearing account selected by Lender in its
sole discretion. The provisions of this Section 3.7(c) shall be applicable
only upon notification by Lender, which notification may take place at any
time a Default or Event of Default has occurred and is continuing. If such
Security Deposits are held by Borrower, Borrower shall deposit the Security
Deposits into a segregated account with a federally insured institution as
approved by Lender.
Section 3.8. MAINTENANCE OF PROPERTY. Borrower shall cause the
-------------------------
Property to be maintained in a good and safe condition and repair.
The Improvements
and the Personal Property shall not be removed, demolished or materially
altered (except for normal replacement of the Personal Property) without the
consent of Lender, which consent shall not be unreasonably withheld, except
that Lender's approval shall not be required for non-structural alterations
made by Borrower or tenant improvements made pursuant to the terms of any
Lease that has otherwise been approved by Lender or for which Lender's
approval is not required, or, in the case of Personal Property, if it is to
be replaced. Borrower shall promptly repair, replace or rebuild any part of
the 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 3.6 hereof and shall complete and pay for any
structure at any time in the process of construction or repair on the Land
and/or the Leased Land. Borrower shall not initiate, join in, acquiesce in,
or consent to any change in any private restrictive covenant, zoning law or
other public or private restriction, limiting or defining the uses which may
be made of the Property or any part thereof. If under applicable zoning
provisions the use of all or any material portion of the Property is or shall
become a nonconforming use, Borrower will not cause or permit the
nonconforming use to be discontinued or abandoned without the express written
consent of Lender, which consent shall not be unreasonably withheld.
Section 3.9. WASTE. Borrower shall not commit or suffer any waste of
-----
the Property or make any change in the use of the Property which will in any
way materially increase the risk of fire or other hazard arising out of the
operation of the Property, or take any action that might invalidate or give
cause for cancellation of any Policy, or do or permit to be done thereon
anything that may in any way materially impair the value of the Property or
the security of this Security Instrument. Borrower will not, without the
prior written consent of Lender, permit any drilling or exploration for or
extraction, removal, or production of any minerals from the surface or the
subsurface of the Land, regardless of the depth thereof or the method of
mining or extraction thereof.
Section 3.10. COMPLIANCE WITH LAWS. (a) Borrower shall promptly comply
--------------------
with (or cause compliance with) all existing and future federal, state and
local laws, orders, ordinances, governmental rules and regulations or court
orders affecting or which may be interpreted to affect the Property, or the
use thereof including, but not limited to, the Americans with Disabilities
Act ("ADA") (collectively, the "Applicable Laws"), except for Applicable
Laws, (a) which Borrower is contesting in good faith and in compliance with
and pursuant to appropriate proceedings diligently prosecuted (provided that
such contest does not and cannot (i) expose Lender or Borrower to any
criminal liability or penalty, (ii) give rise to a lien against the Property,
or (iii) otherwise materially adversely affect the Property or the value
thereof, or (b) the failure to observe which, taken individually or in the
aggregate, could not be reasonably expected to result in a Material Adverse
Effect (as defined in the Loan Agreement).
(b) Borrower shall from time to time, upon Lender's request,
provide Lender with evidence reasonably satisfactory to Lender that the
Property complies with all Applicable Laws or is exempt from compliance with
Applicable Laws.
(c) Notwithstanding any provisions set forth herein or in any
document regarding Lender's approval of alterations of the Property, Borrower
shall not alter the Property in any manner which would materially increase
Borrower's responsibilities for compliance with Applicable Laws without the
prior written approval of Lender, which approval shall not be unreasonably
withheld. Lender's approval of the plans, specifications, or working
drawings for alterations of the Property shall create no responsibility or
liability on behalf of Lender for their completeness, design, sufficiency or
their compliance with Applicable Laws. The foregoing shall apply to tenant
improvements constructed by Borrower or by any of its tenants. Lender may
condition any such approval upon receipt of a certificate of compliance with
Applicable Laws from an independent architect, engineer, or other person
acceptable to Lender.
(d) Borrower shall give prompt notice to Lender of the receipt by
Borrower of any notice related to a violation of any Applicable Laws and of
the commencement of any proceedings or investigations which relate to
compliance with Applicable Laws.
(e) Borrower will take appropriate measures to prevent and will
not engage in or knowingly permit any illegal activities at the Property.
Section 3.11. INTENTIONALLY OMITTED.
---------------------
Section 3.12. PAYMENT FOR LABOR AND MATERIALS. Borrower will
-------------------------------
promptly pay when due all bills and costs for labor, materials,
and specifically
fabricated materials incurred by or on behalf of Borrower in connection with
the Property and never permit to exist beyond the due date thereof in respect
of the Property or any part thereof any lien or security interest, subject to
Borrower's right to contest the same as set forth in this Security
Instrument, even though inferior to the liens and the security interests
hereof, and in any event never permit to be created or exist in respect of
the Property or any part thereof any other or additional lien or security
interest other than the liens or security interests hereof, except for the
Permitted Exceptions (defined below).
Section 3.13. INTENTIONALLY OMITTED.
---------------------
Section 3.14. PERFORMANCE OF OTHER AGREEMENTS. Borrower shall observe
-------------------------------
and perform each and every term to be observed or performed by Borrower
pursuant to the terms of any agreement or recorded instrument affecting or
pertaining to the Property, or given by Borrower to Lender for the purpose of
further securing an obligation secured hereby and any amendments,
modifications or changes thereto.
Section 3.15. BUSINESS WITH AFFILIATES. Borrower shall not engage in
------------------------
business transactions with any Affiliate (as defined in the Loan Agreement)
of Borrower or of any general partner or Borrower unless the terms and
conditions thereof will be intrinsically fair, at not more than market rates
and substantially similar or more favorable to those that would be available
on an arms-length basis with persons or entities that are not affiliated with
each other.
Section 3.16. CURRENT BUSINESS. Borrower shall continue to carry on
----------------
and shall not change its current business subject to the terms and conditions
contained in the Loan Agreement.
Section 3.17. CHANGE OF NAME, IDENTITY OR STRUCTURE. Borrower will not
-------------------------------------
change Borrower's name, identity (including its trade name or names) chief
executive office, principal place of business or, if not an individual,
Borrower's corporate, partnership or other structure without
notifying the Lender of such change in writing at least ten
(10) days prior to the effective date of such change and,
in the case of a change in Borrower's structure, without
first obtaining the prior written consent of the Lender; provided, however,
that the Green LLC and/or the 17 Battery LLC may be merged or similarly
collapsed into the Partnership, or the Ground Lease may be assigned by the
Green LLC to the Partnership, without the prior consent of Lender. Borrower
will execute and deliver to the Lender, prior to or contemporaneously with
the effective date of any such change, any financing statement or financing
statement change required by the Lender to establish or maintain the
validity, perfection and priority of the security interest granted herein. At
the request of the Lender, Borrower shall execute a certificate in form
satisfactory to the Lender listing the trade names under which Borrower
intends to operate the Property, and representing and warranting that
Borrower does business under no other trade name with respect to the
Property.
Section 3.18. EXISTENCE. Borrower will continuously maintain its
---------
existence, good standing and its rights to do business in its state of
organization, the state where the Property is located and all other
jurisdictions in which it is required, together with its franchises and trade
names.
ARTICLE 4 - SPECIAL COVENANTS
Borrower covenants and agrees that:
Section 4.1. PROPERTY USE. The Property shall be used only for office
------------
and retail space and related uses, and for no other use without the prior
written consent of Lender, which consent may be withheld in Lender's sole and
absolute discretion.
Section 4.2. INTENTIONALLY OMITTED.
---------------------
Section 4.3. RESTORATION. Subject to the provisions of the Ground Lease
-----------
and the 00 Xxxxxxx Xxxxx Tenancy Agreement (as defined in the Loan Agreement)
as applicable, the following provisions shall apply in connection with the
Restoration of the Property:
(a) If the Net Proceeds shall be less than $250,000 and the
costs of completing the Restoration shall be less than $250,000, the Net
Proceeds will be disbursed by Lender to Borrower upon receipt, provided that
all of the conditions set forth in Subsection 4.3(b)(i) are met and Borrower
delivers to Lender (i) a written undertaking to expeditiously commence and to
satisfactorily complete with due diligence the Restoration in accordance with
the terms of this Security Instrument and (ii) a monthly accounting of all
payments, costs and expenditures made by Borrower in connection with the
Restoration.
(b) If the Net Proceeds are equal to or greater than $250,000
or the costs of completing the Restoration is equal to or greater than
$250,000 Lender shall make the Net Proceeds available for the Restoration in
accordance with the provisions of this Subsection 4.3(b). The term "Net
Proceeds" for purposes of this Section 4.3 shall mean: (i) the net amount of
all insurance proceeds received by Lender pursuant to Subsection 5.03(b)(i),
(iv), (vi) and (vii) of the Loan Agreement as a result of such damage or
destruction, after deduction of its reasonable costs and expenses (including,
but not limited to, reasonable counsel fees), if any, in collecting same
("Insurance Proceeds"), or (ii) the net amount of all awards and payments
received by Lender with respect to a taking referenced in Section 3.6 of this
Security Instrument, after deduction of its reasonable costs and expenses
(including, but not limited to, reasonable counsel fees), if any, in
collecting the same ("Condemnation Proceeds"), whichever the case may be.
(i) The Net Proceeds shall be made available to Borrower for the
Restoration provided that each of the following conditions are met:
(A) no Default or Event of Default shall have occurred and be
continuing under the Loan Agreement, the Note, this Security Instrument or
any of the Other Security Documents;
(B) (1) in the event the Net Proceeds are Insurance Proceeds, less than
fifty percent (50%) of the total floor area of the Improvements has been
damaged, destroyed or rendered unusable as a result of such fire or other
casualty or (2) in the event the Net Proceeds are Condemnation
Proceeds, less than ten percent (10%) of the land constituting the Property
is taken;
(C) Leases demising in the aggregate a percentage amount equal to or
greater than the Rentable Space Percentage (hereinafter defined) of the total
rentable space in the Property which has been demised under executed and
delivered Leases in effect as of the date of the occurrence of such fire or
other casualty or taking, whichever the case may be, shall remain in full
force and effect (subject to any rent abatement or rights of termination
resulting from such casualty pursuant to the terms of the Leases) during and
after the completion of the Restoration. The term "Rentable Space
Percentage" shall mean (1) in the event the Net Proceeds are Insurance
Proceeds, a percentage amount equal to fifty percent (50%), and (2) in the
event the Net Proceeds are Condemnation Proceeds, a percentage amount equal
to seventy-five percent (75%);
(D) Borrower shall commence the Restoration as soon as reasonably
practicable (but in no event later than thirty (30) days after such damage or
destruction or taking) and shall diligently pursue the same to satisfactory
completion (Restoration shall be deemed commenced upon the filing of a
building permit);
(E) Lender shall be satisfied that any operating deficits, including
all scheduled payments of principal and interest under the Note at the
Contract Rate (as defined in the Loan Agreement) which will be incurred with
respect to the Property as a result of the occurrence of any such fire or
other casualty or taking, whichever the case may be, will be covered out of
(1) the Net Proceeds, (2) the insurance coverage
referred to in Subsection 3.3(a)(iii), if applicable, or (3) by other funds
of Borrower;
(F) Intentionally deleted.
(G) Lender shall be satisfied that the Restoration will be completed on
or before the earliest to occur of (1) twelve (12) months prior to the
Maturity Date (as defined in the Loan Agreement), (2) twelve (12) months
after the occurrence of such fire or other casualty or taking, whichever the
case may be, (3) the earliest date required for such completion under the
terms of any Leases which are required in accordance with the provisions of
Subsection 4.3(b)(1)(C) to remain in effect subsequent to the occurrence of
such fire or other casualty or taking, whichever the case may be, or (4) such
time as may be required under applicable zoning law, ordinance, rule or
regulation in order to repair and restore the Property to the condition it
was in immediately prior to such fire or other casualty or to as nearly as
possible the condition it was in immediately prior to such taking, as
applicable;
(H) the Property and the use thereof after the Restoration will be in
compliance with and permitted under all applicable zoning laws, ordinances,
rules and regulations;
(I) the Restoration shall be done and completed by Borrower in an
expeditious and diligent fashion and in compliance with all applicable
governmental laws, rules and regulations (including, without limitation, all
applicable Environmental Laws, as defined in the Loan Agreement);
(J) such fire or other casualty or taking, as applicable, does not
result in the permanent loss of access to the Property or the Improvements.
(ii) The Net Proceeds shall be held by Lender in a non-interest bearing
account and, until disbursed in accordance with the provisions of this
Subsection 4.3(b), shall constitute additional security for the Obligations.
The Net Proceeds shall be disbursed by Lender to, or as directed by, Borrower
from time to time during the course of the Restoration, upon receipt of
evidence reasonably satisfactory to Lender that (A) all materials installed
and work and labor performed (except to the extent that they are to be paid
for out of the requested disbursement) in connection with the Restoration
have been paid for in full, and (B) there exist no notices of pendency, stop
orders, mechanic's or materialman's liens or notices of intention to file
same, or any other liens or encumbrances of any nature whatsoever on the
Property arising out of the Restoration which have not either been fully
bonded to the reasonable satisfaction of Lender and discharged of record or
in the alternative fully insured to the reasonable satisfaction of Lender by
the title company insuring the lien of this Security Instrument.
(iii) All plans and specifications required in connection with the
Restoration shall be subject to prior review and acceptance in all respects
by Lender and by an independent consulting engineer selected by Lender (the
"Restoration Consultant"), which review and acceptance shall not be
unreasonably withheld. Lender shall have the use of the plans and
specifications and all permits, licenses and approvals required or obtained
in connection with the Restoration. The identity of the contractors,
subcontractors and materialmen engaged in the Restoration, as well as the
contracts under which they have been engaged, shall be subject to prior
review and acceptance by Lender and the Restoration Consultant , which review
and
acceptance shall not be unreasonably withheld. All costs and expenses
incurred by Lender in connection with making the Net Proceeds available for
the Restoration including, without limitation, reasonable counsel fees and
disbursements and the Restoration Consultant's fees, shall be paid by
Borrower.
(iv) In no event shall Lender be obligated to make disbursements of the
Net Proceeds in excess of an amount equal to the costs actually incurred from
time to time for work in place as part of the Restoration, as certified by
the Restoration Consultant, minus the Retainage. The term "Retainage" as
-----
used in this Subsection 4.3(b) shall mean an amount equal to 10% of the costs
actually incurred for work in place as part of the Restoration, as certified
by the Restoration Consultant, until the Restoration has been completed. The
Retainage shall in no event, and notwithstanding anything to the contrary set
forth above in this Subsection 4.3(b), be less than the amount actually held
back by Borrower from contractors, subcontractors and materialmen engaged in
the Restoration. The Retainage shall not be released until the Restoration
Consultant certifies to Lender that the Restoration has been completed in
accordance with the provisions of this Subsection 4.3(b) and that all
approvals necessary for the re-occupancy and use of the Property have been
obtained from all appropriate governmental and quasi-governmental
authorities, and Lender receives evidence reasonably satisfactory to Lender
that the costs of the Restoration have been paid in full or will be paid in
full out of the Retainage, provided, however, that Lender will release the
portion of the Retainage being held with respect to any contractor,
subcontractor or materialman simultaneously engaged in the Restoration as of
the date upon which the Restoration Consultant certifies to Lender that the
contractor, subcontractor or materialman has satisfactorily completed all
work and has supplied all materials in accordance with the provisions of the
contractor's, subcontractor's or
materialman's contract, and the contractor, subcontractor or materialman
delivers the lien waivers and evidence of payment in full of all sums due to
the contractor, subcontractor or materialman as may be reasonably requested
by Lender or by the title company insuring the lien of this Security
Instrument. If required by Lender, the release of any such portion of the
Retainage shall be approved by the surety company, if any, which has issued a
payment or performance bond with respect to the contractor, subcontractor or
materialman.
(v) Lender shall not be obligated to make disbursements of the Net
Proceeds more frequently than once every calendar month.
(vi) If at any time the Net Proceeds or the undisbursed balance thereof
shall not, in the reasonable opinion of Lender, be sufficient to pay in full
the balance of the costs which are reasonably estimated by the Restoration
Consultant to be incurred in connection with the completion of the
Restoration, Borrower shall deposit the deficiency (the "Net Proceeds
Deficiency") with Lender before any further disbursement of the Net Proceeds
shall be made. The Net Proceeds Deficiency deposited with Lender shall be
held by Lender and shall be disbursed for costs actually incurred in
connection with the Restoration on the same conditions applicable to the
disbursement of the Net Proceeds, and until so disbursed pursuant to this
Subsection 4.3(b) shall constitute additional security for the Obligations.
(vii) The excess, if any, of the Net Proceeds and the remaining balance,
if any, of the Net Proceeds Deficiency deposited with Lender after the
Restoration Consultant certifies to Lender that the Restoration has been
completed in accordance with the provisions of this Subsection 4.3(b), and
the receipt by Lender of evidence reasonably satisfactory to Lender that all
costs incurred in connection with the Restoration have been paid in full,
shall be remitted by Lender to
Borrower, provided no Default or Event of Default shall have occurred and
shall be continuing under the Loan Agreement, the Note, this Security
Instrument or any of the Other Security Documents.
(viii) All Net Proceeds not required (i) to be made available for the
Restoration or (ii) to be returned to Borrower as excess Net Proceeds
pursuant to Subsection 4.3(b)(vii) may be retained and applied by Lender
toward the payment of the Debt whether or not then due and payable in such
order, priority and proportions as Lender in its discretion shall deem proper
or, at the discretion of Lender, the same may be paid, either in whole or in
part, to Borrower for such purposes as Lender shall designate, in its
discretion. If Lender shall receive and retain Net Proceeds, Lender shall
apply such sums in the reduction of the Debt and the lien of this Security
Instrument shall be reduced only by the amount thereof.
Section 4.4. LOCK-BOX ACCOUNT. Upon the occurrence of and during the
----------------
continuance of an Event of Default, Lender shall have the right, upon written
notice to Borrower to require that, from and after the next succeeding date
of payment of an installment of principal and interest under the Note, all
Rents with respect to the Property, at Lender's discretion, be paid directly
to the Manager or New Manager, as applicable and deposited daily by the
Manager or New Manager, as applicable in the name designated by Lender
directly to a designated lock-box account (the "Lock-Box Account"), opened by
Lender at a bank (the "Lock-Box Bank"), which account shall be within the
exclusive control of Lender. Notwithstanding the foregoing, Lender shall
have the right to require that each tenant under the Leases make all payments
under its respective Lease, (y) if by wire transfer, to the Lock-Box Account
and (z) if by check, money order or similar manner of payment, by mail to a
designated lock-box (the "Lock-Box") within the exclusive control of Lender.
All amounts deposited into the Lock-Box shall be collected and deposited
daily by the Manager or New Manager, as applicable (or, if required by
Lender, by the Lock-Box Bank) into the Lock-Box Account. Amounts on deposit
in the Lock-Box Account or held in the Lock-Box shall be applied by Lender
to, among other things, the payment of the Debt and operating expenses and
Taxes of the Property, in such order and priority as Lender shall determine
in its sole discretion.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender that:
Section 5.1. WARRANTY OF TITLE. Borrower has good title to the
-----------------
Property and has the right to mortgage, grant, bargain, sell, pledge,
assign, warrant,
transfer and convey the same and that Borrower possesses, other than the
Permitted Exceptions, (a) an unencumbered fee simple absolute estate in the
Land and the Improvements, (b) an unencumbered leasehold estate in the
Leased Land created by and pursuant to the provisions of the Ground Lease and
(c) an unencumbered tenancy-in-common interest in 00 Xxxxxxx Xxxxx (as
defined in the Loan Agreement), and that it owns the 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 Security Instrument (the "Permitted Exceptions"). Borrower further
represents and warrants that (a) the Ground Lease is in full force and effect
and has not been modified or amended in any manner whatsoever, (b) to the
best of its knowledge, there are no defaults under the Ground Lease and no
event has occurred which but for the passage of time, or notice, or both
would constitute a default under the Ground Lease, (c) all rents, additional
rents and other sums due and payable under the Ground Lease have been paid in
full, and (d) neither Borrower nor the landlord under the Ground Lease has
commenced any action or given or received any notice for the purpose of
terminating the Ground Lease. Borrower shall forever warrant, defend and
preserve the title and the validity and priority of the lien of this Security
Instrument and shall forever warrant and defend the same to Lender against
the claims of all persons whomsoever.
Section 5.2. INTENTIONALLY DELETED.
---------------------
Section 5.3. INTENTIONALLY DELETED.
---------------------
Section 5.4. VALIDITY OF DOCUMENTS. (a) The execution, delivery and
---------------------
performance of the Note, the Loan Agreement, this Security Instrument and
Other Security Documents and the borrowing evidenced by the Note (i) are
within the authority and power of Borrower; (ii) have been authorized by all
requisite limited liability company/corporate/partnership action; (iii) have
received all necessary licenses, approvals and consents, corporate,
governmental or otherwise; (iv) will not violate, conflict with, result in a
breach of or constitute (with notice or lapse of time, or both) a default
under any provision of law, rule, regulation, writ, any order or judgment of
any court or governmental authority, the articles of incorporation, by-laws,
partnership or trust agreement, or other governing instrument of Borrower or
its subsidiaries, or any indenture, agreement or other instrument to which
Borrower is a party or by which it or any of its assets or the Property is or
may be bound or affected; (v) will not result in the creation or imposition
of any lien, charge or encumbrance whatsoever upon any of its assets, except
the lien and security interest created hereby; and (vi) will not require any
authorization or license from any governmental or other body except as may
have already been obtained, or any filing with, any governmental or other
body (except for the recordation of this instrument in appropriate land
records in the State where the Property is located and except for Uniform
Commercial Code filings relating to the security interest created hereby);
and (b) the Loan Agreement, the Note, this Security Instrument and the Other
Security Documents constitute the legal, valid and binding obligations of
Borrower and are enforceable against Borrower in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting the rights of creditors generally and to the application of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (i) the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy and (ii) concepts of materiality, reasonableness, good
faith and fair dealing.
Section 5.5. INTENTIONALLY DELETED.
---------------------
Section 5.6. INTENTIONALLY DELETED.
---------------------
Section 5.7. NO FOREIGN PERSON. Borrower is not a "foreign person"
-----------------
within the meaning of Sections 1445(f)(3) of the Internal Revenue Code of
1986, as amended and the related Treasury Department regulations, including
temporary regulations.
Section 5.8. SEPARATE TAX LOT. The Property is assessed for real
-----------------
purposes as one or more wholly independent tax lot or lots, separate from
any adjoining land or improvements not constituting a part of such lot or
lots, and no other land or improvements is assessed and taxed together with
the Property or any portion thereof.
Section 5.9. INTENTIONALLY OMITTED.
---------------------
Section 6.0. LEASES. (a) Borrower is the sole owner of the entire
------
lessor's interest in the Leases; (b) to the best knowledge of Borrower, the
Leases are valid and enforceable; (c) the terms of all alterations,
modifications and amendments to the Leases are reflected in the certified
occupancy statement delivered to and approved by Lender; (d) none of the
Rents reserved in the Leases have been assigned or otherwise pledged or
hypothecated by Borrower other than to Lender; (e) none of the Rents have
been collected for more than one (1) month in advance; (f) the premises
demised under the Leases have been completed and the tenants under the Leases
have accepted the same and have taken possession of the same on a rent-paying
basis; (g) to the best knowledge of Borrower, there exist no offsets or
defenses to the payment of any portion of the Rents; (h) no Lease contains an
option to purchase, right of first refusal to purchase, or any other similar
provision; (i) no person or entity has any possessory interest in, or right
to occupy, the Property except under and pursuant to a Lease; (j) each Lease
is subordinate to this Security Instrument and the tenant under each Lease
agrees to attorn to Lender either pursuant to its terms or a recorded
subordination and attornment agreement; (k) there are no prior assignments,
pledges, hypothecations or other encumbrances by Borrower of any Leases or
any portion of Rents due and payable or to become due and payable thereunder
which are presently outstanding and have priority to the assignment of rents
executed in connection with this Security Instrument; and (l) the Property is
not subject to any Lease other than the Leases described in the rent rolls
delivered pursuant to the Loan Agreement.
Section 5.9. INTENTIONALLY DELETED.
---------------------
Section 5.10. BUSINESS PURPOSES. The loan evidenced by the Note is
-----------------
solely for the business purpose of Borrower,
and is not for personal, family, household, or agricultural purposes.
Section 5.11. INTENTIONALLY DELETED.
---------------------
Section 5.12. MAILING ADDRESS. Borrower's mailing address, as set forth
---------------
in the opening paragraph hereof or as changed in accordance with the
provisions hereof, is true and correct.
Section 5.13. INTENTIONALLY DELETED.
---------------------
Section 5.14. INTENTIONALLY DELETED.
---------------------
Section 5.15. ILLEGAL ACTIVITY. No portion of the Property has been or
-------------
will be purchased with proceeds of any illegal activity.
Section 5.16. CONTRACTS. All contracts, agreements, consents, waivers,
---------
documents and writings of every kind or character at any time to which the
Borrower is a party to be delivered to Lender pursuant to any of the
provisions of this Security Instrument are valid and enforceable against the
Borrower and, to the best knowledge of Borrower, are enforceable against all
other parties thereto, and in all respects are what they purport to be and,
to the best knowledge of Borrower, to the extent that any such writing shall
impose any obligation or duty on the party thereto or constitute a waiver of
any rights which any such party might otherwise have, said writing shall be
valid and enforceable against said party in accordance with the terms, except
as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally.
Section 5.18. SURVIVAL. The foregoing representations and warranties
--------
shall survive the execution and delivery of this Security Instrument and
shall continue in full force and effect until the Debt has been fully paid
and satisfied and Lender has no further commitment to advance funds
hereunder. The request for any Advance (as defined in the Loan Agreement)
under the Loan Agreement by Borrower or on its behalf shall constitute a
certification that the aforesaid representation and warranties are true and
correct as of the date of such request, except to the extent any such
representation or warranty shall relate to an earlier date.
ARTICLE 6 - OBLIGATIONS AND RELIANCES
Section 6.1. RELATIONSHIP OF BORROWER AND LENDER. The relationship between
-----------------------------------
Borrower and Lender is solely that of debtor and creditor, and Lender has no
fiduciary or other special relationship with Borrower, and no term or
condition of any of the Note, this Security Instrument and the Other Security
Documents shall be construed so as to deem the relationship between Borrower
and Lender to be other than that of debtor and creditor.
Section 6.2. NO RELIANCE ON LENDER. The officers of the REIT, are
-----------------
experienced in the ownership and operation of properties similar to the
Property, and Borrower and Lender are relying upon such expertise and
business plan in connection with the ownership and operation of the Property.
Borrower is not relying on Lender's expertise, business acumen or advice in
connection with the Property.
Section 6.3. NO LENDER OBLIGATIONS. (a) Notwithstanding the provisions
---------------------
of Subsections 1.1(f) and (l) or Section 1.2, Lender is not undertaking the
performance of (i) any obligations under the Leases; or (ii) any obligations
with respect to such agreements, contracts,
certificates, instruments, franchises, permits, trademarks, licenses and
other documents.
(b) By accepting or approving anything required to be observed,
performed or fulfilled or to be given to Lender pursuant to this Security
Instrument, the Loan Agreement, the Note or the Other Security Documents,
including without limitation, any officer's certificate, balance sheet,
statement of profit and loss or other financial statement, survey, appraisal,
or insurance policy, Lender shall not be deemed to have warranted, consented
to, or affirmed the sufficiency, the legality or effectiveness of same, and
such acceptance or approval thereof shall not constitute any warranty or
affirmation with respect thereto by Lender.
Section 6.4. RELIANCE. Borrower recognizes and acknowledges that in
---------
accepting the Loan Agreement, the Note, this Security Instrument and the
Other Security Documents, Lender is expressly and primarily relying on the
truth and accuracy of the warranties and representations set forth in Article
5 without any obligation to investigate the Property and notwithstanding any
investigation of the Property by Lender; that such reliance existed on the
part of Lender prior to the date hereof; that the warranties and
representations are a material inducement to Lender in accepting the Loan
Agreement, the Note, this Security Instrument and the Other Security
Documents; and that Lender would not be willing to make the loan evidenced by
the Loan Agreement, the Note, this Security Instrument and the Other Security
Documents and accept this Security Instrument in the absence of the
warranties and representations as set forth in Article 5.
ARTICLE 7 - FURTHER ASSURANCES
Section 7.1. RECORDING OF SECURITY INSTRUMENT, ETC. Borrower
-------------------------------------------
forthwith upon the execution and delivery of this Security Instrument
and thereafter, from
time to time, will cause this Security Instrument and any of the Other
Security Documents creating a lien or security interest or evidencing the
lien hereof upon the 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 and perfect the lien or security interest hereof upon, and the
interest of Lender in, the Property. Borrower will pay all taxes, filing,
registration or recording fees, and all expenses incident to the preparation,
execution, acknowledgment and/or recording of the Note, this Security
Instrument, the Other Security Documents, any note or mortgage supplemental
hereto, any security instrument with respect to the Property and any
instrument of further assurance, and any modification or amendment of the
foregoing documents, 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 Security Instrument, any mortgage
supplemental hereto, any security instrument with respect to the Property or
any instrument of further assurance, and any modification or amendment of the
foregoing documents, except for any income taxes imposed on Lender or where
prohibited by law so to do.
Section 7.2. FURTHER ACTS, ETC. Borrower will, at the cost of Borrower,
-----------------
and without expense to Lender, do, execute, acknowledge and deliver all and
every such further acts,
deeds, conveyances, mortgages, assignments, notices of assignments, transfers
and assurances as Lender shall, from time to time, reasonably require, for
the better assuring, conveying, assigning, transferring, and confirming unto
Lender the property and rights hereby mortgaged, granted, bargained, sold,
conveyed, confirmed, pledged, assigned, warranted and transferred or intended
now or hereafter so to be, or which Borrower may be or may hereafter become
bound to convey or assign to Lender, or for carrying out the intention or
facilitating the performance of the terms of this Security Instrument or for
filing, registering or recording this Security Instrument, or for complying
with all Applicable Laws if Borrower fails to cure promptly any violations of
Applicable Laws, except that Borrower's obligations and liabilities shall not
be increased in a manner inconsistent with its obligations and liabilities
under this Security Instrument. Borrower, on demand, will execute and
deliver and hereby authorizes Lender to execute in the name of Borrower or
without the signature of Borrower to the extent Lender may lawfully do so,
one or more financing statements, chattel mortgages or other instruments, to
evidence more effectively the security interest of Lender in the Property.
Borrower grants to Lender an irrevocable power of attorney coupled with an
interest for the purpose of exercising and perfecting any and all rights and
remedies available to Lender at law and in equity, including without
limitation such rights and remedies available to Lender pursuant to this
Section 7.2.
Section 7.3. CHANGES IN TAX, DEBT, CREDIT AND DOCUMENTARY STAMP LAWS.
--------------------------------------------------------
(a) If any law is enacted or adopted or amended after the date of
this Security
Instrument which deducts the Debt from the value of the Property for the
purpose of taxation or which imposes a tax, either directly or indirectly, on
the Debt or Lender's interest in the Property, Borrower will pay the tax,
with interest and penalties thereon, if any. If Lender is advised by counsel
chosen by it that the payment of tax by Borrower would be unlawful or taxable
to Lender or unenforceable or provide the basis for a defense of usury, then
Lender shall have the option by written notice of not less than ninety (90)
days to declare the Debt immediately due and payable.
(b) Borrower 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 Property, or any part thereof, and no deduction shall
otherwise be made or claimed from the assessed value of the Property, or any
part thereof, for real estate tax purposes by reason of this Security
Instrument or the Debt. If such claim, credit or deduction shall be required
by law, Lender shall have the option, by written notice of not less than
ninety (90) days, to declare the Debt immediately due and payable.
(c) 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, this Security Instrument, or any of the Other
Security Documents or impose any other tax or charge on the same, Borrower
will pay for the same, with interest and penalties thereon, if any.
Section 7.4. ESTOPPEL CERTIFICATES. (a) Borrower shall deliver to
---------------------
Lender, promptly upon request, duly executed estoppel
certificates from any one or more lessees as
required by Lender in the form attached to the Loan Agreement to the extent
lessees are required to do so under their respective Leases.
(b) Upon any transfer or proposed transfer contemplated by Section
19.1 hereof, at Lender's request, Borrower shall provide an estoppel
certificate to any Co-Lender or Participant (as each term is defined in the
Loan Agreement) or any prospective Co-Lender or Participant in such form,
substance and detail as Lender, such Co-Lender or Participant or prospective
Co-Lender or Participant may reasonably require.
(c) The delivery by Borrower and Lender of estoppel certificates
and similar statements shall otherwise be governed by the Loan Agreement.
Section 7.5. FLOOD INSURANCE. After Lender's request, Borrower shall
---------------
deliver evidence satisfactory to Lender that no portion of the Improvements
is situated in a federally designated "special flood hazard area" or, if
located with such area, Borrower shall maintain the insurance prescribed in
Section 5.03 of the Loan Agreement.
Section 7.6. SPLITTING OF SECURITY INSTRUMENT. This Security
------------------------------------
Instrument and
the Note shall, at any time until the same shall be fully paid and satisfied,
at the sole election of Lender, be split or divided into two or more notes
and two or more security instruments, each of which shall cover all or a
portion of the Property to be more particularly described therein. To that
end, Borrower, upon written request of Lender, shall execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered by the then
owner of the Property, to Lender and/or its designee or designees substitute
notes and security instruments in such principal amounts, aggregating not
more than the then unpaid principal amount of this Security Instrument, and
containing terms, provisions and clauses identical in all material respects
to those contained herein and in the Note, and such other documents and
instruments as may be required by Lender.
Section 7.7. REPLACEMENT DOCUMENTS. Upon receipt of an affidavit of
---------------------
an officer of Lender as to the loss, theft, destruction or mutilation of the
Note or any Other Security Document which is not of public record, and, in
the case of any such mutilation, upon surrender and cancellation of such Note
or Other Security Document, Borrower will issue, in lieu thereof, a
replacement Note or Other Security Document, dated the date of such lost,
stolen, destroyed or mutilated Note or Other Security Document in the same
principal amount thereof and otherwise of like tenor.
ARTICLE 8 - DUE ON SALE/ENCUMBRANCE
Section 8.1. LENDER RELIANCE. Borrower acknowledges that Lender has
---------------
examined and relied on the experience of Borrower and its general partner and
member in owning and operating properties such as the Property in agreeing to
make the loan secured hereby, and will continue to rely on Borrower's
ownership of the Property as a means of
maintaining the value of the Property as security for repayment of the Debt
and the performance of the Other Obligations. Borrower acknowledges that
Lender has a valid interest in maintaining the value of the Property so as to
ensure that, should Borrower default in the repayment of the Debt or the
performance of the Other Obligations, Lender can recover the Debt by a sale
of the Property.
Section 8.2. NO SALE/ENCUMBRANCE. Except as permitted herein and under
-------------------
the terms and conditions contained in the Loan Agreement, Borrower agrees
that Borrower shall not, without the prior written consent of Lender, sell,
convey, mortgage, grant, bargain, encumber, pledge, assign, or otherwise
transfer the Property or any part thereof or permit the Property or any part
thereof to be sold, conveyed, mortgaged, granted, bargained, encumbered,
pledged, assigned, or otherwise transferred.
Section 8.3. SALE/ENCUMBRANCE DEFINED. A sale, conveyance, mortgage,
-----------------------
grant, bargain, encumbrance, pledge, assignment, or transfer within the
meaning of this Article 8 shall be deemed to include, but not limited to, (a)
an installment sales agreement wherein Borrower agrees to sell the Property
or any part thereof for a price to be paid in installments; (b) an agreement
by Borrower leasing all or a substantial part of the 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, Borrower's right, title
and interest in and to any Leases or any Rents; (c) if Borrower or any
general partner or limited partner of Borrower is a corporation, the
voluntary or involuntary sale, conveyance, transfer or pledge of such
corporation's stock or the stock of any corporation directly or indirectly
controlling such corporation by operation of law or otherwise (other than
transfers of shares in the REIT), or the creation or issuance of new stock by
which an aggregate of more than 10% of such corporation's stock shall be
vested in a party or parties who are not now stockholders (other than the
issuance of shares in the REIT); (d) if Borrower or any general partner or
limited partner of Borrower is a limited or general partnership or joint
venture, the change, removal or resignation of a general partner, managing
partner or limited partner, or the transfer or pledge of the partnership
interest of any general partner, managing partner or limited partner or any
profits or proceeds relating to such partnership interest whether in one
transfer or a series of transfers and (e) if Borrower, or any general or
limited partner or member of Borrower is a limited liability company, the
change, removal or resignation of any member or the transfer or pledge of the
membership interest of any member or any profits or proceeds relating to such
membership interest whether in one or a series of transactions or the
voluntary or involuntary sale, conveyance, transfer or pledge of any
membership interests (or the membership interests of any limited liability
company directly or indirectly controlling such limited liability company by
operation of law or otherwise). Notwithstanding the foregoing, (i) transfer
by devise or descent or by operation of law upon the death of a partner or
stockholder of Borrower or any general partner thereof or (ii) any transfer
permitted under the Loan Agreement shall not be deemed to be a sale,
conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment, or
transfer within the meaning of this Article 8.
Section 8.4. LENDER'S RIGHTS. Lender reserves the right to condition
----------------
the consent required hereunder upon a modification of the
terms hereof and on
assumption of the Note, the Loan Agreement, this Security Instrument and the
Other Security Documents as so modified by the proposed transferee, payment
of all of Lender's expenses incurred in connection with such transfer, or
such other conditions as Lender shall determine in its sole discretion to be
in the interest of Lender. Lender shall not be required to demonstrate any
actual impairment of its security or any increased risk of default hereunder
in order to declare the Debt immediately due and payable upon Borrower's
sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment,
or transfer of the Property without Lender's consent. This provision shall
apply to every sale, conveyance, mortgage, grant, bargain, encumbrance,
pledge, assignment, or transfer of the Property regardless of whether
voluntary or not, or whether or not Lender has consented to any previous
sale, conveyance, mortgage, grant, bargain, encumbrance, pledge, assignment,
or transfer of the Property.
ARTICLE 9 - PREPAYMENT
Section 9.1. PREPAYMENT. The Debt may be prepaid only in strict
----------
accordance with the express terms and conditions of the Note and the Loan
Agreement including, but not limited to, the payment of any Funding Costs.
ARTICLE 10 - DEFAULT
Section 10.1. EVENTS OF DEFAULT. The occurrence of any one or more of
-----------------
the following events shall constitute an "Event of Default":
(a) the occurrence of an "Event of Default", as such term is defined in
the Loan Agreement.
(b) if any of the Taxes or Other Charges is not paid when the same is
due and payable except to the extent sums sufficient to pay such Taxes and
Other Charges have been deposited with Lender in accordance with the terms of
this Security Instrument;
(c) if the Policies are not kept in full force and effect, or if the
Policies are not delivered to Lender upon request or Borrower has not
delivered evidence of the renewal of the Policies thirty (30) days prior to
their expiration as provided in the Loan Agreement;
(d) if Borrower violates or does not comply with any of the provisions
of Sections 3.7, 4.3 and Articles 8 and 13;
(e) intentionally deleted;
(f) intentionally deleted;
(g) if Borrower shall be in default beyond the expiration of any
applicable notice and/or cure period under any other mortgage, deed of trust,
deed to secure debt or other security agreement covering any part of the
Property whether it be superior or junior in lien to this Security
Instrument;
(h) if the Property becomes subject to any mechanic's, materialman's or
other lien other than a lien for local real estate taxes and assessments not
then due and payable and the lien shall remain undischarged of record (by
payment, bonding or otherwise) for a period of forty-five (45) days;
(i) if any federal tax lien is filed against Borrower, any general
partner or member of Borrower or the Property and same is not discharged of
record within forty-five (45) days after same is filed;
(j) intentionally deleted;
(k) if any default occurs under that certain environmental indemnity
agreement dated the date hereof given by Borrower and the REIT to Lender (the
"Environmental Indemnity") and such default continues after the expiration of
applicable notice and grace periods, if any;
(l) if any default occurs under
any guaranty or indemnity executed in connection herewith and such default
continues after the expiration of applicable grace periods, if any;
(m) intentionally deleted;
(n) if Borrower defaults under the Management Agreement beyond the
expiration of applicable notice and grace periods, if any, thereunder or if
cancelled, terminated or surrendered, unless in such case (a) Borrower shall
enter into a new management agreement on market terms and conditions no less
favorable than the Management Agreement and with a management company
satisfactory to Lender, (b) Borrower self-manages the Property or (c) such
cancellation, termination or surrender is directed by Lender pursuant to the
terms of that certain Assignment of Management Agreement and Subordination of
Management Fees (the "Subordination of Management Agreement") dated the date
hereof between Borrower, Manager (as defined in the Subordination of
Management Agreement) and Lender for a reason other than an Event of Default
thereunder;
(o) if Borrower shall fail, after the applicable notice and grace
period contained in the Ground Lease, if any, in the payment of any rent,
additional rent or other charge mentioned in or made payable by the Ground
Lease when said rent or other charge is due and payable;
(p) if there shall occur any default by Borrower, as tenant, under the
Ground Lease in the observance or performance of any term, covenant or
condition of the Ground Lease on the part of Borrower to be observed or
performed and
said default is not cured following the expiration of any applicable grace
and notice period therein provided or if the leasehold estate created by the
Ground Lease shall be surrendered or the Ground Lease shall be terminated or
cancelled for any reason or under any circumstances whatsoever, or if any of
the terms, covenants or conditions of the Ground Lease shall in any manner be
modified, changed, supplemented, altered, or amended without the consent of
Lender;
(q) if for more than ten (10) days after notice from Lender or such
shorter time as provided for in the Note, the Loan Agreement, this Security
Agreement and the Other Security Documents, Borrower shall continue to be in
default under any other term, covenant or condition of this Security
Instrument in the case of any default which can be cured by the payment of a
sum of money, or for thirty (30) days after notice from Lender or such
shorter time as provided for in the Note, the Loan Agreement, this Security
Agreement and the Other Security Documents in the case of any other default,
provided that if such default cannot reasonably be cured within such thirty
(30) day period or such shorter time as provided for in the Note, the Loan
Agreement, this Security Agreement and the Other Security Documents and
Borrower shall have commenced to cure such default within such thirty (30)
day period or such shorter time as provided for in the Note, the Loan
Agreement, this Security Agreement and the Other Security Documents and
thereafter diligently and expeditiously proceeds to cure the same, such
thirty (30) day period or such shorter time as provided for in the Note, the
Loan Agreement, this Security Agreement and the Other Security Documents
shall be extended for so long as it shall require Borrower in the exercise of
due diligence to cure such default, it being agreed that no such extension
shall be for a period in excess of ninety (90) days;
(r) if Borrower fails to cure promptly any violations of Applicable
Laws within thirty (30) days after notice by Lender;
(s) if any condemnation proceeding is instituted which would, in
Lender's reasonable judgment, materially impair the use and enjoyment of the
Property for its intended purposes; or
(t) if Borrower shall fail to reimburse Lender within then (10) days
after notice by Lender with interest calculated at the Default Rate (as
defined in the Loan Agreement), for all Insurance Premiums or Taxes and Other
Charges, together with interest and penalties imposed thereon, paid by Lender
pursuant to this Security Instrument.
Section 10.2. DEFAULT INTEREST. Borrower does hereby agree that upon
----------------
the occurrence of an Event of Default, Lender shall be entitled to receive and
Borrower shall pay interest on the entire principal amount outstanding of the
Note at a rate equal to the Default Rate. The Default Rate shall be computed
(i) for all Events of Default which can be cured by the payment of a sum of
money, from the date upon which such payment was due, and (ii) for all other
Events of Default, from the occurrence of the Event of Default until, for all
Events of Default, the earlier of the date upon which the Event of Default is
cured or the date upon which the Debt is paid in full. Interest calculated
at the Default Rate shall be added to the Debt, and shall be deemed secured
by this Security Instrument. This clause, however, shall not be construed as
an agreement or privilege to extend the date of the payment of the Debt, nor
as a waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Default or Event of Default.
ARTICLE 11 - RIGHTS AND REMEDIES
Section 11.1. REMEDIES. Upon the occurrence of any Event of Default,
---------
Borrower agrees that Lender may take such action, without notice or demand,
as it deems advisable to protect and enforce its rights against Borrower and
in and to the Property, including, but not limited to, the following actions,
each of which may be pursued concurrently
or otherwise, at such time and in such order as Lender may determine, in its
sole discretion, without impairing or otherwise affecting the other rights
and remedies of Lender.
(a) declare the entire unpaid Debt to be immediately due and payable;
(b) institute proceedings, judicial or otherwise, for the complete
foreclosure of this Security Instrument under any applicable provision of law
in which case the Property or any interest therein may be sold for cash or
upon credit in one or more parcels or in several interests or portions and in
any order or manner;
(c) with or without entry, to the extent permitted and pursuant to the
procedures provided by applicable law, institute proceedings for the partial
foreclosure of this Security Instrument for the portion of the Debt then due
and payable, subject to the continuing lien and security interest of this
Security Instrument for the balance of the Debt not then due, unimpaired and
without loss of priority;
(d) sell for cash or upon credit the Property or any part thereof and
all estate, claim, demand, right, title and interest of Borrower therein and
rights of redemption thereof, pursuant to power of sale or otherwise, at one
or more sales, as an entity or in parcels, at such time and place, upon such
terms and after such notice thereof as may be required or permitted by law;
(e) institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein, in the
Note, the Loan Agreement or in the Other Security Documents;
(f) recover judgment on the Note either before, during or after any
proceedings for the enforcement of this Security Instrument, the Loan
Agreement or the Other Security Documents;
(g) apply for the appointment of a receiver, trustee, liquidator or
conservator of the Property, without notice and without regard for the
adequacy of the security for the Debt and without regard for the solvency of
Borrower, the REIT, or of any person, firm or other entity liable for the
payment of the Debt;
(h) subject to any applicable law, the license granted to Borrower
under Section 1.2 shall automatically be revoked and Lender may enter into or
upon the Property, either personally or by its agents, nominees or attorneys
and dispossess Borrower and its agents and servants therefrom, without
liability for trespass, damages or otherwise and exclude Borrower and its
agents or servants wholly therefrom, and take possession of all books,
records and accounts relating thereto and Borrower agrees to surrender
possession of the Property and of such books, records and accounts to Lender
upon demand, and thereupon Lender may (i) use, operate, manage, control,
insure, maintain, repair, restore and otherwise deal with all and every part
of the Property and conduct the business thereat; (ii) complete any
construction on the Property in such manner and form as Lender deems
advisable; (iii) make alterations, additions, renewals, replacements and
improvements to or on the Property; (iv) exercise all rights and powers of
Borrower with respect to the Property, whether in the name of Borrower or
otherwise, including, without limitation, the right to make, cancel, enforce
or modify Leases, obtain and evict tenants, and demand, xxx for, collect and
receive all Rents of the Property and every part thereof; (v) require
Borrower to pay monthly in advance to Lender, or any receiver appointed to
collect the Rents, the fair and reasonable rental value for the use and
occupation of such part of the Property as may be occupied by Borrower; (vi)
require Borrower to vacate and surrender possession of the Property to Lender
or to such receiver and, in default thereof, Borrower may be evicted by
summary proceedings or otherwise; and (vii) apply the receipts from the
Property to the payment of the Debt, in such order, priority and proportions
as Lender shall deem appropriate in its sole discretion after deducting
therefrom all expenses (including reasonable attorneys' fees) incurred in
connection with the aforesaid operations and all amounts necessary to pay the
Taxes, Other Charges, insurance and other expenses in connection with the
Property, as well as just and reasonable compensation for the services of
Lender, its counsel, agents and employees;
(i) exercise 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: (i) the right to take possession of the
Personal Property or any part thereof, and to take such other measures as
Lender may deem necessary for the care, protection and preservation of the
Personal Property, and (ii) request Borrower at its expense to assemble the
Personal Property and make it available to Lender at a convenient place
acceptable to Lender. Any notice of sale, disposition or other intended
action by Lender with respect to the Personal Property sent to Borrower in
accordance with the provisions hereof at least five (5) days prior to such
action, shall constitute commercially reasonable notice to Borrower;
(j) apply any sums then deposited in the Escrow Fund, if any, and any
other sums held in escrow or otherwise by Lender in accordance with the terms
of this Security Instrument or any Other Security Document to the payment of
the following items in any order in its uncontrolled discretion:
(i) Taxes and Other Charges;
(ii) Insurance Premiums;
(iii) Operating Expenses (as defined in the Loan Agreement);
(iv) Interest on the unpaid principal balance of the Note;
(v) Amortization of the unpaid principal balance of the Note;
(vi) All other sums payable pursuant to the Note, the Loan
Agreement, this Security Instrument and
the Other Security Documents, including
without limitation advances made
by Lender pursuant to the terms
of this Security Instrument;
(k) surrender the Policies maintained pursuant to Article 3 hereof,
collect the unearned Insurance Premiums and apply such sums as a credit on
the Debt in such priority and proportion as Lender in its discretion shall
deem proper, and in connection therewith, Borrower hereby appoints Lender as
agent and attorney-in-fact (which is coupled with an interest and is
therefore irrevocable) for Borrower to collect such Insurance Premiums;
(l) pursue such other remedies as Lender may have under applicable law;
(m) apply the undisbursed balance of any Net Proceeds Deficiency
deposit, together with interest thereon, to the payment of the Debt in such
order, priority and proportions as Lender shall deem to be appropriate in its
discretion; and/or
(n) require a Lock-Box Account pursuant to Section 4.4 and apply all
sums in the Lock-Box Account to the payment of the Debt, in such order,
priority and proportions as Lender shall deem appropriate in its discretion.
In the event of a sale, by foreclosure, power of sale, or otherwise, of less
than all of the Property, this Security Instrument shall continue as a lien
and security interest on the remaining portion of the Property unimpaired and
without loss of priority. Notwithstanding the provisions of this Section
11.1 to the contrary, if any Event of Default as described in clause (i) or
(ii) of Subsection 10.1(f) shall occur, the entire unpaid Debt shall be
automatically due and payable, without any further notice, demand or other
action by Lender.
Section 11.2. APPLICATION OF PROCEEDS. The purchase money, proceeds
------------------------
and avails of any disposition of the Property, or any part
thereof, or any other sums collected by Lender pursuant to the Note,
the Loan Agreement, this
Security Instrument or the Other Security Documents, may be applied by Lender
to the payment of the Debt in such priority and proportions as Lender in its
discretion shall deem proper; provided, however, that if no Event of Default
has occurred and is continuing, Lender's application of such sums shall be
governed by the Loan Agreement.
Section 11.3. RIGHT TO CURE DEFAULTS. Upon the occurrence of any
------------------------
Default or Event of Default, Lender may, but without any obligation to
do so and without notice to or demand on Borrower and without
releasing Borrower from
any obligation hereunder, make or do the same in such manner and to such
extent as Lender may deem necessary to protect the security hereof. Lender
is authorized to enter upon the Property for such purposes, or appear in,
defend, or bring any action or proceeding to protect its interest in the
Property and the cost and expense thereof (including reasonable attorneys'
fees to the extent permitted by law), with interest as provided in this
Section 11.3, shall constitute a portion of the Debt and shall be due and
payable to Lender upon demand. All such costs and expenses incurred by
Lender in remedying such Default or Event of Default or in appearing in,
defending, or bringing any such action or proceeding shall bear interest at
the Default Rate, for the period after notice from Lender that such cost or
expense was incurred to the date of payment to Lender. All such costs and
expenses incurred by Lender together with interest thereon calculated at the
Default Rate shall be deemed to constitute a portion of the Debt and be
secured by this Security Instrument and the Other Security Documents and
shall be promptly due and payable after demand by Lender therefor.
Section 11.4. ACTIONS AND PROCEEDINGS. Lender has the right to appear
-----------------------
in and defend any action or proceeding brought with
respect to the Property and
to bring any action or proceeding, in the name and on behalf of Borrower,
which Lender, in its discretion, decides should be brought to protect its
interest in the Property.
Section 11.5. RECOVERY OF SUMS REQUIRED TO BE PAID. Lender 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 Lender thereafter to bring an action of foreclosure, or any
other action, for a default or defaults by Borrower existing at the time such
earlier action was commenced.
Section 11.6. EXAMINATION OF BOOKS AND RECORDS. Lender, each
--------------------------------------
Co-Lender, and their agents, accountants and attorneys
shall have the right, upon providing
Borrower with prior written notice, to examine and inspect at any reasonable
time the records, books, management and other papers of Borrower and the REIT
which reflect upon their financial condition (including, without limitation,
leases, statements bills and invoices), at the Property or at the principal
place of business of Borrower, the REIT, their Affiliates or where the books
and records are located. Lender and its agents shall have the right to make
copies and extracts
from the foregoing records and other papers. In addition, Lender, its
agents, accountants and attorneys shall have the right to examine, copy and
audit the books and records of Borrower, the REIT and their affiliates
pertaining to the income, expenses and operation of the Property during
reasonable business hours at any office of Borrower, the REIT, their
Affiliates or where the books and records are located. This Section 11.6
shall apply throughout the term of the Note and without regard to whether a
Default or Event of Default has occurred or is continuing.
Section 11.7. OTHER RIGHTS, ETC. (a) The failure of Lender to
------------------
insist upon strict performance of any term hereof shall not be deemed to
be a waiver of
any term of this Security Instrument. Borrower shall not be relieved of
Borrower's obligations hereunder by reason of (i) the failure of Lender to
comply with any request of Borrower to take any action to foreclose this
Security Instrument or otherwise enforce any of the provisions hereof or of
the Note, the Loan Agreement or the Other Security Documents, (ii) the
release, regardless of consideration, of the whole or any part of the
Property, or of any person liable for the Debt or any portion thereof, or
(iii) any agreement or stipulation by Lender extending the time of payment or
otherwise modifying or supplementing the terms of the Note, the Loan
Agreement, this Security Instrument or the Other Security Documents.
(b) It is agreed that the risk of loss or damage to the Property
is on Borrower, and Lender shall have no liability whatsoever for decline in
value of the Property, for failure to maintain the Policies, or for failure
to determine whether insurance in force is adequate as to the amount of risks
insured. Possession by Lender shall not be deemed an election of judicial
relief, if any such possession is requested or obtained, with respect to any
Property or collateral not in Lender's possession.
(c) Lender may resort for the payment of the Debt to any other
security held by Lender in such order and manner as Lender, in its
discretion, may elect. Lender may take action to recover the Debt, or any
portion thereof, or to enforce any covenant hereof without prejudice to the
right of Lender thereafter to foreclose this Security Instrument. The rights
of Lender under this Security Instrument shall be separate, distinct and
cumulative and none shall be given effect to the exclusion of the others. No
act of Lender shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Lender 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.
Section 11.8. RIGHT TO RELEASE ANY PORTION OF THE PROPERTY. Lender may
--------------------------------------------
release any portion of the Property for such consideration as
Lender may require
without, as to the remainder of the Property, in any way impairing or
affecting the lien or priority of this Security Instrument, or improving the
position of any subordinate lienholder with respect thereto, except to the
extent that the obligations hereunder shall have been reduced by the actual
monetary consideration, if any, received by Lender for such release, and may
accept by assignment, pledge or otherwise any other property in place thereof
as Lender may require without being accountable for so doing to any other
lienholder. This Security Instrument shall continue as a lien and security
interest in the remaining portion of the Property.
Section 11.9. VIOLATION OF LAWS. If the Property is not in compliance
-----------------
with Applicable Laws, Lender may impose additional requirements upon Borrower
in connection herewith including, without limitation, monetary reserves or
financial equivalents.
Section 11.10. RECOURSE AND CHOICE OF REMEDIES. Subject to the recourse
-------------------------------
obligations and liabilities of Borrower and the REIT contained in Section
9.08 of the Loan Agreement and notwithstanding any other provision of this
Security Instrument, Lender and other Indemnified Parties (defined in Section
13.1 below) are entitled to enforce the obligations of Borrower contained in
Section 13.2 without first resorting to or exhausting any security or
collateral and without first having recourse to the Note or any of the
Property, through foreclosure or acceptance of a deed in lieu of foreclosure
or otherwise, and in the event Lender commences a foreclosure action against
the Property, Lender is entitled to pursue a deficiency judgment with respect
to such obligations against Borrower. The liability of Borrower is not
limited to the original principal amount of the Note. Notwithstanding the
foregoing, nothing herein shall inhibit or prevent Lender from foreclosing
pursuant to this Security Instrument or exercising any other rights and
remedies pursuant to the Note, the Loan Agreement, this Security Instrument
and the Other Security Documents, whether simultaneously with foreclosure
proceedings or in any other sequence. A separate action or actions may be
brought and prosecuted against Borrower, whether or not action is brought
against any other person or entity or whether or not any other person or
entity is joined in the action or actions. In addition, Lender shall have
the right but not the obligation to join and participate in, as a party if it
so elects, any administrative or judicial proceedings or actions initiated in
connection with any matter addressed in the Environmental Indemnity.
Borrower shall remain liable for any deficiency if the proceeds from any sale
or other disposition of the Property are insufficient to satisfy the
Obligation in full.
Section 11.11. RIGHT OF ENTRY. Lender and its agents shall have the
---------------
right to enter and inspect the Property at all reasonable
times, including, without
limitation, the right to enter and inspect in order to conduct an appraisal
of the Property. This Section 11.11 shall apply throughout the term of the
Note and without regard to whether a Default or Event of Default has occurred
or is continuing.
ARTICLE 12 - INTENTIONALLY OMITTED
ARTICLE 13 - INDEMNIFICATION
Section 13.1. GENERAL INDEMNIFICATION. Borrower shall, at its sole
-----------------------
cost and expense, protect, defend, indemnify, release and hold
harmless the
Indemnified Parties from and against any and all claims, suits, liabilities
(including, without limitation, strict liabilities), actions, proceedings,
obligations, debts, damages, losses, costs, expenses, diminutions in value,
fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement,
punitive damages, foreseeable and unforeseeable consequential damages, of
whatever kind or nature (including but not limited to reasonable attorneys'
fees and other costs of defense) (the "Losses") imposed upon or incurred by
or asserted against any Indemnified Parties and directly or indirectly
arising out of or in any way relating to any one or more of the following
(excluding Losses incurred by any Indemnified Party as a result of any
Indemnified Party's wilful misconduct or gross negligence or those arising
solely from a state of facts that first comes into existence after Lender or
a third party acquires title to the Property through foreclosure or deed in
lieu thereof or the exercise of any other right or remedy and not caused by
Borrower): (a) any and all lawful action that may be taken by Lender in
connection with the enforcement of the provisions of this Security Instrument
or the Note, the Loan Agreement or the Other Security Documents, whether or
not suit is filed in connection with same, or in connection with Borrower
and/or any partner, member, joint venturer or shareholder thereof becoming a
party to a voluntary or involuntary federal or state bankruptcy, insolvency
or similar proceeding; (b) any accident, injury to or death of persons or
loss of or damage to property occurring in, on or about the 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 Property or any part thereof or on the adjoining sidewalks,
curbs, adjacent property or adjacent parking areas, streets or ways; (d) any
failure on the part of Borrower to perform or be in compliance with any of
the terms of this Security Instrument; (e) performance of any labor or
services or the furnishing of any materials or other property in respect of
the Property or any part thereof; (f) the failure of any person 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 the Security
Instrument, or to supply a copy thereof in a timely fashion to the recipient
of the proceeds of the transaction in connection with which this Security
Instrument is made; (g) any failure of the Property to be in compliance with
any Applicable Laws; (h) the enforcement by any Indemnified Party of the
provisions of this Article 13; (i) any and all claims and demands whatsoever
which may be asserted against Lender 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 Lease; (j) the payment of any commission,
charge or brokerage fee to anyone which may be payable in connection with the
funding of the loan evidenced by the Note and secured by this Security
Instrument; or (k) any misrepresentation made by Borrower in this Security
Instrument or any Other Security Document. Any amounts payable to Lender by
reason of the application of this Section 13.1 shall become due and payable
within ten (10) days written notice therefor and shall bear interest at the
Default Rate from the date loss or damage is sustained by Lender until paid.
For purposes of this Article 13, the term "Indemnified Parties" means Lender
and any person or entity who is or will have been involved in the origination
of this loan, any person or entity who is or will have been involved in the
servicing of this loan, any person or entity in whose name the encumbrance
created by this Security Instrument is or will have been recorded, persons
and entities who may hold or acquire or will have held a full or partial
interest in this loan (including, but not limited to, Participants and each
Co-Lender (as defined in the Loan Agreement) as well as custodians, trustees
and other fiduciaries who hold or have held a full or partial interest in
this loan for the benefit of third parties) as well as the respective
directors, officers, shareholders, partners, employees, agents, servants,
representatives, contractors,
subcontractors, affiliates, subsidiaries, participants, successors and
assigns of any and all of the foregoing (including but not limited to any
other person or entity who holds or acquires or will have held a
participation or other full or partial interest in this loan or the Property,
whether during the term of this loan or as a part of or following a
foreclosure of this loan and including, but not limited to, any successors by
merger, consolidation or acquisition of all or a substantial portion of
Lender's assets and business).
Section 13.2. MORTGAGE AND/OR INTANGIBLE TAX. Borrower shall, at its
-------------------------------
sole cost and expense, protect, defend, indemnify, release
and hold harmless the
Indemnified Parties from and against any and all Losses imposed upon or
incurred by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any tax on the making
and/or recording of this Security Instrument, the Note, the Loan Agreement or
any of the Other Security Documents.
Section 13.3. INTENTIONALLY OMITTED.
---------------------
Section 13.4. INTENTIONALLY OMITTED.
---------------------
Section 13.5. DUTY TO DEFEND; ATTORNEYS' FEES AND OTHER
----------------------------------------------
FEES AND EXPENSES. Upon
------------------
written request by any Indemnified Party, Borrower shall defend such
Indemnified Party (if requested by any Indemnified Party, in the name of the
Indemnified Party) by attorneys and other professionals approved by the
Indemnified Parties. Notwithstanding the foregoing, any Indemnified Parties
may, in their sole and absolute discretion, engage their own attorneys and
other professionals to defend or assist them, and, at the option of
Indemnified Parties, their attorneys shall control the resolution of claim or
proceeding. Upon demand, Borrower shall pay or, in the sole and absolute
discretion of the Indemnified Parties, reimburse, the Indemnified Parties for
the payment of reasonable fees and disbursements of attorneys, engineers,
environmental consultants, laboratories and other professionals in connection
therewith.
ARTICLE 14 - WAIVERS
Section 14.1. WAIVER OF COUNTERCLAIM. Borrower hereby waives the right
----------------------
to assert a counterclaim, other than a mandatory or
compulsory counterclaim, in
any action or proceeding brought against it by Lender arising out of or in
any way connected with this Security Instrument, the Note, the Loan
Agreement, the Other Security Documents or the Obligations.
Section 14.2. MARSHALLING AND OTHER MATTERS. Borrower hereby waives,
------------------------------
to the extent permitted by law, the benefit of all
appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and
all rights of marshalling in the event of any sale hereunder of the Property
or any part thereof or any interest therein. Further, Borrower hereby
expressly waives any and all rights of redemption from sale under any order
or decree of foreclosure of this Security Instrument on behalf of Borrower,
and on behalf of each and every person acquiring any interest in or title to
the Property subsequent to the date of this Security Instrument and on behalf
of all persons to the extent permitted by applicable law.
Section 14.3. WAIVER OF NOTICE. Borrower shall not be entitled to any
----------------
notices of any nature whatsoever from Lender except with respect to matters
for which this Security Instrument specifically and expressly provides for
the giving of notice by Lender to Borrower and except with respect to matters
for which Lender is required by applicable law to give notice, and Borrower
hereby expressly waives the right to receive any notice from Lender with
respect to any matter for which this Security Instrument does not
specifically and expressly provide for the giving of notice by Lender to
Borrower.
Section 14.4. INTENTIONALLY OMITTED.
---------------------
Section 14.5. SOLE DISCRETION OF LENDER. Wherever pursuant to this
--------------------------
Security Instrument (a) Lender exercises any right given to it
to approve or
disapprove, (b) any arrangement or term is to be satisfactory to Lender, or
(c) any other decision or determination is to be made by Lender, the decision
of Lender to approve or disapprove, all decisions that arrangements or terms
are satisfactory or not satisfactory and all other decisions and
determinations made by Lender, shall be in the sole and absolute discretion
of Lender and shall be final and conclusive, except as may be otherwise
expressly and specifically provided herein.
Section 14.6. INTENTIONALLY OMITTED.
--------------------
SECTION 14.7. WAIVER OF TRIAL BY JURY. BORROWER, AND BY ITS ACCEPTANCE
----------------------
OF THIS SECURITY INSTRUMENT, LENDER, EACH CO-LENDER, PARTICIPANTS
(AS DEFINED IN
THE LOAN AGREEMENT), AGENT AND SYNDICATION AGENT EACH HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING
DIRECTLY OR INDIRECTLY TO THE LOAN EVIDENCED BY THE NOTE, THE APPLICATION FOR
THE LOAN EVIDENCED BY THE NOTE, THE LOAN AGREEMENT, THIS SECURITY INSTRUMENT
OR THE OTHER SECURITY DOCUMENTS OR ANY ACTS OR OMISSIONS OF LENDER, ITS
OFFICERS, EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
ARTICLE 15 - RECOURSE
Section 15.1. RECOURSE. The recourse obligations of Borrower and the
------
REIT relating to the Debt and the Obligations (as defined in the Loan
Agreement) shall be governed by Section 9.08 of the Loan Agreement.
ARTICLE 16 - NOTICES
Section 16.1. NOTICES. All notices or other written communications
-----
hereunder shall be deemed to have been properly given (i) upon delivery, if
delivered in person or by facsimile transmission with receipt acknowledged in
writing by the recipient thereof with respect to deliveries in person or by
answerback if delivered by facsimile transmission, (ii) one (1) Business Day
(defined below) after having been deposited for overnight delivery with any
reputable overnight courier service, or (iii) five (5) Business Days after
having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to Agent or Syndication Agent, as follows:
Xxxxxx Brothers Holdings Inc.
d/b/a Lehman Capital, a division of
Xxxxxx Brothers Holdings Inc.
Three World Financial Center, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier Number: (000) 000-0000
Attention: Xxxxx Xxxx
and to
Xxxxxxxx Philips Inc.
000 Xxxxxxxxx Xxxxxx Xxxxxx
Marquis Xxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier Number: (000) 000-0000
Attention: Xx. Xxxx Xxxxxxxxxx
If to Borrower or the REIT, as follows:
XX Xxxxx Operating Partnership, L.P.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile No. (000) 000-0000
with a copy to:
Greenberg, Traurig, Hoffman, Lipoff, Xxxxx & Quentel
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Ivanhoe, Esq.
Facsimile No. (000) 000-0000
or addressed as such party may from time to time designate by written notice
to the other parties.
Either party by notice to the other may designate additional or
different addresses for subsequent notices or communications.
For purposes of this Subsection, "Business Day" shall mean a day on
which commercial banks are not authorized or required by law to close in New
York, New York.
ARTICLE 17 - SERVICE OF PROCESS
Section 17. CONSENT TO SERVICE. Borrower will maintain a place of
------------------
business or an agent for service of process in New York, New York and give
prompt notice to Lender of the address of such place of business and of the
name and address of any new agent appointed by it, as appropriate. Borrower
further agrees that the failure of its agent for service of process to give
it notice of any service of process will not impair or affect the validity of
such service or of any judgment based thereon.
Section 17.2. SUBMISSION TO JURISDICTION. With respect to any claim or
--------------------------
action arising hereunder or under the Note or the Other Security Documents,
Borrower (a) irrevocably submits to the nonexclusive jurisdiction of the
courts of the State of New York and the United States District Court located
in the Borough of Manhattan in New York, New York, and appellate courts from
any thereof, and (b) irrevocably waives any objection which it may have at
any time to the laying on venue of any suit, action or proceeding arising out
of or relating to this Security Instrument brought in any such court,
irrevocably waives any claim that any such suit, action or proceeding brought
in any such court has been brought in an inconvenient forum.
Section 17.3. JURISDICTION NOT EXCLUSIVE. Nothing in this Security
--------------------------
Instrument will be deemed to preclude Lender from bringing an action or
proceeding with respect hereto in any other jurisdiction.
ARTICLE 18 - APPLICABLE LAW
SECTION 18.1. CHOICE OF LAW. THIS SECURITY INSTRUMENT SHALL BE DEEMED
-------------
TO BE A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE
STATE OF NEW YORK AND
SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, PROVIDED HOWEVER, THAT
WITH RESPECT TO THE CREATION, PERFECTION, PRIORITY AND ENFORCEMENT OF THE
LIEN OF
THIS SECURITY INSTRUMENT, AND THE DETERMINATION OF DEFICIENCY JUDGMENTS, THE
LAWS OF THE STATE WHERE THE PROPERTY IS LOCATED SHALL APPLY.
Section 18.2. USURY LAWS. This Security Instrument and the Note are
-----------
subject to the express condition that at no time shall Borrower be obligated
or required to pay interest on the Debt at a rate which could subject the
holder of the Note to either civil or criminal liability as a result of being
in excess of the maximum interest rate which Borrower is permitted by
applicable law to contract or agree to pay. If by the terms of this Security
Instrument or the Note, Borrower is at any time required or obligated to pay
interest on the Debt at a rate in excess of such maximum rate, the rate of
interest under the Security Instrument and the Note shall be deemed to be
immediately reduced to such maximum rate and the interest payable shall be
computed at such maximum rate and all prior interest payments in excess of
such maximum rate shall be applied and shall be deemed to have been payments
in reduction of the principal balance of the Note. All sums paid or agreed
to be paid to Lender 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 Note until
payment in full so that the rate or amount of interest on account of the Debt
does not exceed the maximum lawful rate of interest from time to time in
effect and applicable to the Debt for so long as the Debt is outstanding.
Section 18.3. PROVISIONS SUBJECT TO APPLICABLE LAW. All rights, powers
------------------------------------
and remedies provided in this Security Instrument may be
exercised only to the
extent that the exercise thereof does not violate any applicable provisions
of law and are intended to be limited to the extent necessary so that they
will not render this Security Instrument invalid, unenforceable or not
entitled to be recorded, registered or filed under the provisions of any
applicable law. If any term of this Security Instrument or any application
thereof shall be invalid or unenforceable, the remainder of this Security
Instrument and any other application of the term shall not be affected
thereby.
ARTICLE 19 - SECONDARY MARKET
Section 19.1. TRANSFER OF LOAN. The Lender shall have the right in its
-------------
sole discretion at any time during the term of this Security Instrument to
sell, assign, syndicate, participate or otherwise transfer and/or dispose of
all or any portion of its interest in the loan evidenced by the Note, in
accordance with, and subject to, the terms, covenants, conditions and
restrictions set forth in the Loan Agreement.
ARTICLE 20 - COSTS
Section 20.1. PERFORMANCE AT BORROWER'S EXPENSE. Borrower acknowledges
----------------------------------
and confirms that Lender shall impose certain commitment fees
and certain other
reasonable administrative processing and due diligence in connection with (a)
the extension, renewal, modification, amendment and termination of its loans,
(b) the release, addition or substitution of collateral therefor, (c)
obtaining certain consents, waivers and approvals with respect to the
Property, or (d) the review of any Lease or proposed Lease or the preparation
or review of any subordination, non-disturbance and attornment agreement (the
occurrence of any of the above shall be called an "Event"). Borrower further
acknowledges and confirms that it shall be responsible for the payment of all
costs of an appraisal or reappraisal of the Property or any part thereof,
whether required by law, regulation, Lender or any governmental or
quasi-governmental authority. Borrower hereby acknowledges and agrees to
pay, promptly after demand, all such fees (as the same may be increased or
decreased from time to time), and any additional fees of a similar type or
nature which may be imposed by Lender from time to time, upon the occurrence
of any Event or otherwise. Wherever it is provided for herein that Borrower
pay any costs and expenses, such costs and expenses shall include, but not be
limited to, all legal fees and disbursements of Lender, whether retained
firms, the reimbursement for the expenses of in-house staff or otherwise and
Lender's out-of-pocket expenses.
Section 20.2. ATTORNEY'S FEES FOR ENFORCEMENT. (a) Borrower shall pay
--------------------------------
all reasonable legal fees incurred by Lender in connection with
(i) the preparation of the Note, the Loan Agreement, this Security
Instrument and the
Other Security Documents and (ii) the items set forth in Section 20.1 above,
and (b) Borrower shall pay to Lender promptly upon demand any and all
expenses, including reasonable legal expenses, reasonable attorneys' fees and
due diligence costs incurred or paid by Lender in protecting its interest in
the Property or Personal Property or in collecting any amount payable
hereunder or in enforcing its rights hereunder with respect to the Property
or Personal Property, whether or not any legal proceeding is commenced
hereunder or thereunder and whether or not any Default or Event of Default
shall have occurred and is continuing, together with interest thereon at the
Default Rate from the date paid or incurred by Lender until such expenses are
paid by Borrower.
ARTICLE 21 - DEFINITIONS
Section 21.1. GENERAL DEFINITIONS. Unless the context clearly
---------------------
indicates a contrary intent or unless otherwise specifically
provided herein, words
used in this Security Instrument may be used interchangeably in singular or
plural form and the word "Borrower" shall mean "each Borrower and any
subsequent owner or owners of the Property or any part thereof or any
interest therein, including, but not limited to, the leasehold estate created
by the Ground Lease," the word "Lender" shall mean "Lender and any subsequent
holder of the Note and any Co-Lender (as defined in the Loan Agreement)," the
word "Note" shall mean "the Note and any other evidence of indebtedness
secured by this Security Instrument," the word "person" shall include an
individual, corporation, partnership, trust, unincorporated association,
government, governmental authority, and any other entity, the word "Property"
shall include any portion of the Property and any interest therein, and the
phrases "attorneys' fees" and "counsel
fees" shall include any and all attorneys', paralegal and law clerk fees and
disbursements, including, but not limited to, fees and disbursements at the
pre-trial, trial and appellate levels incurred or paid by Lender in
protecting its interest in the Property, the Leases and the Rents and
enforcing its rights hereunder.
ARTICLE 22 - MISCELLANEOUS PROVISIONS
Section 22.1. NO ORAL CHANGE. This Security Instrument, and any
---------------
provisions hereof, may not be modified, amended, waived, extended, changed,
discharged or terminated orally or by any act or failure to act on the part
of Borrower or Lender, but only by an agreement in writing signed by the
party against whom enforcement of any modification, amendment, waiver,
extension, change, discharge or termination is sought.
Section 22.2. LIABILITY. If Borrower consists of more than one person,
---------
the obligations and liabilities of each such person hereunder shall be joint
and several, subject to Section 9.08 of the Loan Agreement. This Security
Instrument shall be binding upon and inure to the benefit of Borrower and
Lender and their respective successors and assigns forever.
Section 22.3. INAPPLICABLE PROVISIONS. If any term, covenant or
------------------------
condition of the Note, the Loan Agreement or this
Security Instrument is held to be
invalid, illegal or unenforceable in any respect, the Note, the Loan
Agreement and this Security Instrument shall be construed without such
provision.
Section 22.4. HEADINGS, ETC. The headings and captions of various
-------------
Sections of this Security Instrument 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.
Section 22.5. DUPLICATE ORIGINALS; COUNTERPARTS. This Security
------------------------------------
Instrument may be executed in any number of duplicate
originals and each duplicate
original shall be deemed to be an original. This Security Instrument may be
executed in several counterparts, each of which counterparts shall be deemed
an original instrument and all of which together shall constitute a single
Security Instrument. The failure of any party hereto to execute this
Security Instrument, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.
Section 22.6. NUMBER AND GENDER. 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.
Section 22.7. SUBROGATION. If any or all of the proceeds of the Note
-----------
have been used to extinguish, extend or renew any indebtedness heretofore
existing against the Property, then, to the extent of the funds so used,
Lender shall be subrogated to all of the rights, claims, liens, titles, and
interests existing against the Property heretofore held by, or in favor of,
the
holder of such indebtedness and such former rights, claims, liens, titles,
and interests, if any, are not waived but rather are continued in full force
and effect in favor of Lender and are merged with the lien and security
interest created herein as cumulative security for the repayment of the Debt,
the performance and discharge of Borrower's obligations hereunder, under the
Note and the Other Security Documents and the performance and discharge of
the Other Obligations.
Section 22.8. NO JOINT VENTURE. Notwithstanding anything to the
------------------
contrary herein contained, Lender by entering into this
Security Instrument or by
taking any action pursuant hereto, will not be deemed a partner or joint
venturer with Borrower and Borrower agrees to hold Lender harmless from any
damages and expenses resulting from such a construction of the relationship
of the parties hereto or any assertion thereof.
Section 22.9. NO BENEFIT TO THIRD PARTIES. This Security Instrument
----------------------------
is for
the sole and exclusive benefit of Borrower and Lender and all conditions of
the obligations of Lender hereunder are imposed solely and exclusively for
the benefit of Lender and its assigns and no other person shall have standing
to require satisfaction of such conditions in accordance with their terms or
be entitled to assume that Lender will refuse to meet its obligations
hereunder in the absence of strict compliance with any and all thereof and no
other person shall under any circumstances be deemed to be a beneficiary of
such conditions, any or all of which may be freely waived in whole or in part
by the Lender at any time if it in its sole discretion deems it advisable to
do so. Without limiting the generality of the foregoing, Lender shall not
have any duty or obligation to anyone to ascertain that funds advanced
pursuant to the terms of the Loan Agreement are used to pay the cost of
constructing the improvements on the Property or to acquire materials and
supplies to be used in connection therewith or to pay costs of owning,
operating and maintaining same.
Section 22.10. ENTIRE AGREEMENT. The Note, the Loan Agreement, this
----------------
Security Instrument and the Other Security Documents constitute the entire
understanding and agreement between Borrower and Lender with respect to the
transactions arising in connection with the Debt and supersede all prior
written or oral understandings and agreements between Borrower and Lender
with respect thereto. Borrower hereby acknowledges that, except as
incorporated in writing in the Note, the Loan Agreement, this Security
Instrument and the Other Security Documents, there are not, and were not, and
no persons are or were authorized by Lender to make, any representations,
understandings, stipulations, agreements or promises, oral or written, with
respect to the transaction which is the subject of the Note, the Loan
Agreement, this Security Instrument and the Other Security Documents.
Section 22.11. BROKERS. Borrower and Lender hereby represent and
-------
warrant
that no brokers or finders were used in connection with procuring the
financing contemplated hereby and Borrower hereby agrees to indemnify and
save Lender harmless from and against any and all liabilities, losses, costs
and expenses (including attorneys' fees or court costs) suffered or incurred
by Lender as a result of any claim or assertion by any party claiming by,
through or under Borrower, that it is entitled to compensation in connection
with the financing contemplated
hereby and Lender hereby agrees to indemnify and save Borrower harmless from
and against any and all liabilities, losses, costs and expenses (including
attorneys' fees or court costs) suffered or incurred by Borrower as a result
of any claim or assertion by any party claiming by, through or under Lender
that it is entitled to compensation in connection with the financing
contemplated hereby.
ARTICLE 23 - INTENTIONALLY DELETED
ARTICLE 24 - STATE SPECIFIC PROVISIONS
Section 24.1. TRUST FUND. Pursuant to Section 13 of the New York Lien
----------
Law, Borrower shall receive the advances secured hereby and shall hold the
right to receive the advances as a trust fund to be applied first for the
purpose of paying the cost of any improvement and shall apply the advances
first to the payment of the cost of any such improvement on the Property
before using any part of the total of the same for any other purpose.
Section 24.2. COMMERCIAL PROPERTY. Borrower represents that this
---------------------
Security Instrument does not encumber real property
principally improved or to be
improved by one or more structures containing in the aggregate not more than
six residential dwelling units, each having its own separate cooking
facilities.
Section 24.3. INSURANCE. The provisions of subsection 4 of Section 254
---------
of the New York Real Property Law covering the insurance of buildings against
loss by fire shall not apply to this Security Instrument. In the event of
any conflict, inconsistency or ambiguity between the provisions of Section
3.3 hereof and the provisions of subsection 4 of Section 254 of the New York
Real Property Law covering the insurance of buildings against loss by fire,
the provisions of Section 3.3 shall control.
Section 24.4. LEASES. Lender shall have all of the rights against
------
lessees of the Property set forth in Section 291-f of the Real Property Law
of New York.
Section 24.5. STATUTORY CONSTRUCTION. The clauses and covenants
-----------------------
contained in this Security Instrument that are construed by
Section 254 of the New York
Real Property Law shall be construed as provided in those sections (except as
provided in Section 24.3). The additional clauses and covenants contained in
this Security Instrument shall afford rights supplemental to and not
exclusive of the rights conferred by the clauses and covenants construed by
Section 254 and shall not impair, modify, alter or defeat such rights (except
as provided in Section 24.3), notwithstanding that such additional clauses
and covenants may relate to the same subject matter or provide for different
or additional rights in the same or similar contingencies as the clauses and
covenants construed by Section 254. The rights of Lender arising under the
clauses and covenants contained in this Security Instrument shall be
separate, distinct and cumulative and none of them shall be in exclusion of
the others. No act of Lender shall be construed as an election to proceed
under any one provision herein to the exclusion of any other provision,
anything herein or otherwise to the contrary notwithstanding. In the event
of any inconsistencies between the provisions of Section 254 and the
provisions of this Security Instrument, the provisions of this Security
Instrument shall prevail.
Section 24.6. MAXIMUM PRINCIPAL AMOUNT SECURED. Notwithstanding anything
----------------------------------
contained herein to the contrary, the maximum amount of principal
indebtedness secured by this Security Instrument at the time of execution
hereof or which under any contingency may become secured by this Security
Instrument at any time hereafter is $149,513,915.18, plus (a) taxes, charges
or assessments which may be imposed by law upon the Property; (b) premiums on
insurance policies covering the Property; (c) expenses incurred in upholding
the lien of this Security Instrument, including, but not limited to (i) the
expenses of any litigation to prosecute or defend the rights and lien created
by this Security Instrument; (ii) any amount, cost or charges to which Lender
becomes subrogated, upon payment, whether under recognized principles of law
or equity, or under express statutory authority and (iii) interest at the
Default Rate (or regular interest rate).
Section 24.7. THE GROUND LEASE. Borrower shall (i) pay all rents,
----------------
additional rents and other sums required to be paid by Borrower, as tenant in
accordance with, and subject to, the provisions of the Ground Lease, (ii)
diligently perform and observe all of the terms, covenants and conditions of
the Ground Lease on the part of Borrower, as tenant thereunder, and (iii)
promptly notify Lender of the giving of any notice by the landlord under the
Ground Lease to Borrower of any default by Borrower, as tenant thereunder,
and deliver to Lender a true copy of each such notice. Borrower shall not,
without the prior consent of Lender, surrender the leasehold estate created
by the Ground Lease or terminate or cancel the Ground Lease or modify,
change, supplement, alter or amend the Ground Lease, in any respect, either
orally or in writing, and if Borrower shall default in the performance or
observance of any term, covenant or condition of the Ground Lease on the part
of Borrower, as tenant thereunder, Lender shall have the right, but shall be
under no obligation, to pay any sums and to perform any act or take any
action as may be appropriate to cause all of the terms, covenants and
conditions of the Ground Lease on the part of Borrower to be performed or
observed on behalf of Borrower, to the end that the rights of Borrower in, to
and under the Ground Lease shall be kept unimpaired and free from default.
If the landlord under the Ground Lease shall deliver to Lender a copy of any
notice of default under the Ground Lease, such notice shall constitute full
protection to Lender for any action taken or omitted to be taken by Lender,
in good faith, in reliance thereon. Borrower shall exercise each individual
option, if any, to extend or renew the term of the Ground Lease upon demand
by Lender made at any time within one (1) year prior to the last day upon
which any such option may be exercised, and Borrower hereby expressly
authorizes and appoints Lender its attorney-in-fact to exercise any such
option in the name of and upon behalf of Borrower, which power of attorney
shall be irrevocable and shall be deemed to be coupled with an interest.
Section 24.8. SUBLEASES. Notwithstanding anything contained in the
---------
Ground Lease to the contrary, Borrower shall not further sublet any portion
of the Leased Land without prior written consent of Lender. Each such
Lender-approved sublease hereafter made shall provide that, (a) in the event
of the termination of the Ground Lease, the lease shall not terminate or be
terminable by the lessee; (b) in the event of any action for the foreclosure
of this Security Instrument, the lease shall not terminate or be terminable
by the subtenant by reason of the termination of the Ground Lease unless the
lessee is specifically named and joined in any such action and unless a
judgment is obtained therein against the lessee; and (c) in the event that
the Ground Lease is terminated as aforesaid, the lessee shall attorn to the
lessor under the Ground Lease or to the purchaser at the sale of the Property
on such foreclosure, as the case may be. In the event that any portion of
the Leased Land shall be sublet pursuant to the terms of this Subsection,
such sublease shall be deemed to be included in the Property.
Section 24.9. NO MERGER OF FEE AND LEASEHOLD ESTATES; RELEASES. So
---------------------------------------------------
long as any portion of the Debt shall remain unpaid,
unless Lender shall otherwise
consent, the fee title to the Leased Land and the leasehold estate therein
created pursuant to the provisions of the Ground Lease shall not merge but
shall always be kept separate and distinct, notwithstanding the union of such
estates in Borrower, Owner, or in any other person by purchase, operation of
law or otherwise. Lender reserves the right, at any time, to release
portions of the Property, including, but not limited to, the leasehold estate
created by the Ground Lease, with or without consideration, at Lender's
election, without waiving or affecting any of its rights hereunder or under
the Note or the Other Security Documents and any such release shall not
affect Lender's rights in connection with the portion of the Property not so
released.
Section 24.10. BORROWER'S ACQUISITION OF FEE ESTATE. In the event that
------------------------------------
Borrower, so long as any portion of the Debt remains unpaid, shall be the
owner and holder of the fee title to the Leased Land, the lien of this
Mortgage shall be spread to cover Borrower's fee title to the Leased Land and
said fee title shall be deemed to be included in the Property. Borrower
agrees, at its sole cost and expense, including without limitation, Lender's
reasonable attorney's fees, to (i) execute any and all documents or
instruments necessary to subject its fee title to the Leased Land to the lien
of this Mortgage; and (ii) provide a title insurance policy which shall
insure that the lien of this Mortgage is a first lien on Borrower's fee title
to the Leased Land.
IN WITNESS WHEREOF, THIS SECURITY INSTRUMENT has been executed by
Borrower the day and year first above written.
XX XXXXX OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership
By: XX XXXXX REALTY CORP., a Maryland corporation,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Xxxxx X. Xxxxxxx
Chief Financial Officer
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxx
Executive Vice President
NEW GREEN 1140 REALTY LLC, a New York limited
liability company
By: XX XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership, its managing
member
By: XX XXXXX REALTY CORP., a Maryland
corporation, its general partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Xxxxx X. Xxxxxxx
Chief Financial Officer
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxx
Executive Vice President
SLG 17 BATTERY LLC, a New York limited liability
company
By: XX XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership, its managing
member
By: XX XXXXX REALTY CORP., a Maryland
corporation, its general partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Xxxxx X. Xxxxxxx
Chief Financial Officer
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxx
Executive Vice President
ACKNOWLEDGMENTS
(to be attached)
EXHIBIT A
(Exhibit Begins On Next Page)
EXHIBIT B
---------
That certain Ground Lease dated October 1, 1951, by and between Phoenix
Mutual Life Insurance Company, and 00 Xxxx 00xx Xxxxxx Inc., which by those
certain assignments described below has been assigned to New Green 1140
Realty LLC as tenant:
1. Assignment of Lease made by 00 XXXX 00XX XX. INC. to XXXXXXX ASSOCIATES,
a N.Y. Limited Partnership, dated 9/3/58 and recorded 9/5/58 in
Liber 5049 Cp. 304.
2. Assignment of Lease made by XXXXXXX ASSOCIATES, a N.Y. Limited Partnership,
to THE KRATTER CORPORATION, a Delaware Corporation, dated as of 1/9/60, and
recorded 3/23/64 in Liber 5271 Cp. 339.
3. Assignment of Lease made by THE KRATTER CORPORATION, a Delaware
Corporation, to 00 XXXX 00XX XX. INC., dated 3/1/65, and recorded
3/2/65 in Liber 5316 Cp. 287.
4. Assignment of Lease made by 00 XXXX 00XX XX. INC. to 44TH SIXTH
CORPORATION, dated 8/27/65, and recorded 8/30/65 in Liber 5340 Cp. 345.
5. Modification Agreement made by XXXXXX ASSOCIATES, INC. and 44TH SIXTH
CORPORATION, dated 4/30/66, and recorded 5/19/66 in Record Liber 58 Page 223.
6. Assignment of Lease made by 44TH SIXTH CORPORATION to 0000 XXXXX XXXXXX
COMPANY, dated as of 10/1/66, and recorded 12/8/66 in Record Liber 130 Page
397.
7. Assignment of Lease made by 0000 XXXXX XXXXXX COMPANY, a N.Y.
Limited Partnership, to CALNY CONSTRUCTION CORP., dated 7/21/71,
and recorded 7/22/71 in Reel 211 Page 1499.
8. Assignment of Lease made by CALNY CONSTRUCTION CORP. to 0000 XXXXX XXXXXX
COMPANY, a N.Y. Limited Partnership, dated 7/21/71, and
recorded 7/22/71 in Reel 211 Page 1572.
9. Assignment of Lease made by 0000 XXXXX XXXXXX COMPANY, a N.Y.
Limited Partnership, to CALNY CONSTRUCTION CORP., dated 10/19/71,
and recorded 10/21/71 in Reel 220 Page 50.
10.Assignment of Lease made by CALNY CONSTRUCTION CORP. to 0000 XXXXX XXXXXX
COMPANY, a N.Y. Limited Partnership, dated 10/19/71, and recorded
10/21/71 in Reel 220 Page 112.
11.Assignment of Lease made by 0000 XXXXX XXXXXX COMPANY, a N.Y.
Limited Partnership, to KAYEMACLER REALTY INC., dated as of 1/1/74,
and recorded 3/8/74 in Reel 307 Page 1108.
12.Assignment of Lease made by KAYEMACLER REALTY INC. to AVAMERICAS
ASSOCIATES, a N.Y. Limited Partnership, dated as of 1/1/74, and recorded
3/8/74 in Reel 307 Page 1169;
13.Assignment of Lease made by AVAMERICAS ASSOCIATES, a N.Y.
Limited Partnership, to KAYEMACLER REALTY INC., dated 5/7/74, and
recorded 5/7/74 in Reel 312 Page 1567.
14.Assignment of Lease made by KAYEMACLER REALTY INC. to AVAMERICAS
ASSOCIATES, a N.Y. Limited Partnership, dated 5/7/74, and
recorded 5/15/74 in Reel 313 Page 898.
15.Assignment of Lease made by AVAMERICAS ASSOCIATES, a N.Y. Limited
Partnership, to KAYEMACLER REALTY INC., dated 7/2/74, and
recorded 7/3/74 in Reel 318 Page 804.
16.Assignment of Lease made by KAYEMACLER REALTY INC. to AVAMERICAS
ASSOCIATES, dated as of 7/2/74, and recorded 7/10/74 in
Reel 318 Page 1713.
17.Assignment and Assumption of Lease made by AVAMERICAS ASSOCIATES,
a N.Y. Limited Partnership, to 1140 ASSOCIATES, a
N.Y. Limited Partnership, dated 9/15/82, and recorded 9/16/82
in Reel 638 Page 1777.
18.Assignment and Assumption of Ground Lease made by and between 1140
ASSOCIATES, a N.Y. Limited Partnership, and
INTER-OCEAN REALTY ASSOCIATES, a N.Y. Limited Partnership,
dated 5/2/84, and recorded 5/11/84 in Reel 792 Page 203.
19.Assignment and Assumption of Ground Lease made by and between INTER-OCEAN
REALTY ASSOCIATES and 1140 SIXTH ASSOCIATES L.P. dated as of 12/29/92 and
recorded 1/7/93 in Reel 1934 Page 1141.
20.Assignment and Assumption of Ground Lease made by and between 0000 XXXXX
XXXXXX ASSOCIATES, L.P. and NEW GREEN 1140 REALTY LLC, dated 8/20/97 and
recorded in the office of the City Register, New York County, New York.
EXHIBIT C
(Description of Mortgage)
I. Parcel I
1. Mortgage made by 0000 Xxxxxxxx
to The Chase Manhattan Bank, dated February 29, 1980, recorded in the
Office of the Register of the City of New York, County of New York,
(the "CITY REGISTER'S OFFICE) on June 18, 1980 in Reel/Liber 527 of
Mortgages, page 1796, and the note therein referred to, which said
note and mortgage were given to secure the payment of the principal
sum of $1,800,000 with interest thereon at the rate specified in
said note;
mortgage tax paid $27,000;
2. Mortgage made by 0000 Xxxxxxxx to The Chase Manhattan Bank, dated February
29, 1980, recorded in the City Register's Office on June 18, 1980 in
Reel/Liber 527 of Mortgages, Page 237, and the note therein referred to,
which said note and mortgage were given to secure the payment of the
principal sum of $1,800,000 with interest thereon at the rate specified in
said note;
mortgage tax paid $27,000;
Which mortgage (1) and (2) were consolidated by consolidation agreement made
by and between 0000 Xxxxxxxx Associates and The Chase Manhattan Bank, dated
February 29, 1980, recorded in the City Register's Office on October 30, 1980
in Reel/Liber 542 of Mortgages, Page 216 to form a single lien of $3,600,000;
3. Mortgage made by 0000 Xxxxxxxx to The Chase Manhattan Bank, dated February
29, 1980, recorded in the City Register's Office on June 18, 1980 in
Reel/Liber 527 of Mortgages, Page 1918, and the note therein referred to,
which said note and mortgage were given to secure the payment of the
principal sum of $1,800,000 with interest thereon at the rate specified in
said note;
mortgage tax paid $27,000;
Which mortgage together with Mortgages (1) and (2) were consolidated by
consolidation agreement made by and between 0000 Xxxxxxxx Associates and The
Chase Manhattan Bank, dated February 29, 1980, recorded in the City
Register's Office on December 19, 1980 in Reel/Liber 547 of Mortgages, Page
1952 to form a single lien of $5,400,000;
4. Mortgage made by 0000 Xxxxxxxx
Associates to The Chase Manhattan Bank, dated December 23, 1981,
recorded in the City Register's Office on December 30, 1981 in
Reel/Liber 597 of Mortgages, Page 1812, and the note therein referred
to, which said note and mortgage were given to secure the payment of
the principal sum of 6,600,000 with interest thereon at the rate
specified in said note;
mortgage tax paid $99,000;
Which mortgage together with Mortgages (1), (2) and (3) were consolidated by
a spreader and consolidation agreement made by and between The Chase
Manhattan Bank and 0000 Xxxxxxxx Associates, dated January 8, 1982, recorded
in the City Register's Office on January 21, 1982 in Reel/Liber 601 of
Mortgages, Page 1978 to form a single lien interest of $12,000,000 and
spreads the lien of Mortgages (1), (2) and (3) to cover the fee interest;
Which four (4) mortgages as consolidated were assigned by assignment of
mortgage by The Chase Manhattan Bank to Barclays Bank International Limited,
dated January 20, 1982 in Reel/Liber 603 of Mortgages, Page 760 to assign the
four (4) mortgages as consolidated;
Which four (4) mortgages as consolidated were modified by mortgage and
modification agreement made by and between Barclays Bank International
Limited and 0000 Xxxxxxxx Associates, dated January 26, 1982,
recorded in the City Register's Office on
January 26, 1982 in Reel/Liber 603 of Mortgages, Page 764 to modify the terms
of the four (4) mortgages as consolidated;
Which four (4) mortgages as consolidated were further assigned by assignment
of mortgage by Barclays Bank International Limited and The Chase Manhattan
Bank, N.A., dated August 15, 1983, recorded in the City Register's Office on
October 5, 1983 in Reel/Liber 723 of Mortgages, Page 1203 to further assign
the four (4) mortgages as consolidated;
5. Mortgage made by 0000 Xxxxxxxx Associates to The Chase Manhattan
Bank, dated August 29, 1983, recorded in the City Register's
Office on October 5, 1983 in Reel/Liber 723 of Mortgages, Page
1207 and the note therein referred to, which said note and mortgage
were given to secure the payment of the principal sum of $6,375,000
with interest thereon at the rate specified in said note;
mortgage tax paid $143,437.50
Which mortgage together with Mortgages (1), (2),(3), and (4) by consolidation
agreement made by and between 0000 Xxxxxxxx Associates and The Chase
Manhattan Bank, dated August 29, 1983, recorded in the City Register's Office
on October 5, 1983 in Reel/Liber 723 of Mortgages, Page 1214 were
consolidated to form a single lien of 18,375,000;
6. Mortgage made by 0000 Xxxxxxxx Associates to Mony Pension
Insurance Corporation, dated June 6, 1986, recorded in the City
Register's Office on June 18, 1986 in Reel/Liber 1077 of Mortgages,
Page 1781, and the note therein referred to, which said note and
mortgage were given to secure the payment of the principal sum of
$26,625,000 with interest thereon at the rate specified in
said note, which mortgage by its terms consolidates Mortgages (1),
(2), (3), (4), and (5) to form a single first mortgage lien in the
principal sum of $45,000,000;
mortgage tax paid $599,062.50;
Which six (6) mortgages as consolidated were assigned by assignment of
mortgage by Mony Pension Insurance Corporation to Mutual Life Insurance
Company, dated August 30, 1987, recorded in the City Register's Office on
February 15, 1989 in Reel/Liber 1844 of Mortgages, Page 1776 to assign the
six (6) mortgages as consolidated;
Which six (6) mortgages as consolidated were modified by mortgage
modification agreement made by 0000 Xxxxxxxx Associates and the Mutual Life
Insurance Company of New York, dated January 23, 1992, recorded in the City
Register's Office on January 30, 1992 in Reel/Liber 1844 of Mortgages, Page
1228 to modify the terms of the six mortgages as consolidated;
Which six mortgages as consolidated were further assigned by assignment of
mortgage/deed of trust and other loan documents made by The Mutual Life
Insurance Company of New Yrok to Ausa Life Insurance Company, Inc., dated
December 31, 1993, recorded in the City Register's Office on February 7, 1994
in Reel/Liber 2056 of Mortgages, Page 201;
Which six mortgages as consolidated were further modified by second mortgage
modification agreement made by and between 0000 Xxxxxxxx Associates and Ausa
Life Insurance Company Inc., dated August 5, 1996, recorded in the City
Register's Office on August 20, 1996 in Reel/Liber 2371 of Mortgages, Page
1184;
Which six mortgages as consolidated was further assigned by assignment of
mortgage made by Ausa Life Insurance Company, Inc. to 633 LLC, dated October
15, 1997, recorded in the City Register's Office on _____ __, 19__ in
Reel/Liber ____ of Mortgages, Page ___.
Parcel II
Mortgage dated as of January 19, 1994, made by 110 to Home Savings of America
FSB, in the original principal amount of $9,000,000.00 and recorded in the
City Register on February 1, 1994 in Reel 2054, Page 176; which mortgage was
corrected by a Correction Mortgage, dated as of January 19, 1994, made by
110 to Home, and recorded in the City Register on August 10, 1994 in Reel
2127, Page 1764; which mortgage was modified by a Substituted Mortgage B
Spreader and Note and Mortgage Modification Agreement, dated as of June 19,
1997 between 110 and Home in the original principal amount of $8,723,418.00,
and recorded in the City Register on August 20, 1997, in Reel 2489, Page 46.
Parcel III
1. Mortgage dated as of August 21, 1923, recorded on August 22, 1923
in Reel/Liber 3387, MP 126, in the original principal amount of
$320,000.
Mortgage tax paid $1,600.
2. Assignment of Mortgage, dated November 17, 1924, recorded on
November 18, 1924 in Reel/Liber 3506, MP 404, in the original
principal amount of $430,000.
Mortgage tax paid $2,150.
Which mortgage, together with Mortgage 1 were consolidated by consolidation
and extension agreement, dated November 17, 1924, recorded on November 18,
1924 in Reel/Liber 3511, MP 224, to form a single lien of $750,000.
Which two (2) mortgages as consolidated were assigned by assignment of
mortgage on January 31, 1951, recorded on February 2, 1951, in Reel/Liber
5216, MP 171.
3. Mortgage dated as of June 14, 1957, recorded on June 23, 1957 in
Reel/Liber 5483, MP 413, in the original principal amount of 183,224.83.
Mortgage tax paid $916.00.
Which mortgage, together with Mortgage 1 and 2 were consolidated by
consolidation and extension agreement dated June 14, 1957, recorded June 24,
1957 in Reel/Liber 5683, MP 587, to form a single lien of $650,000.
4. Mortgage dated as of June 28, 1963, recorded on June 31, 1963 in
Reel/Liber 6173, MP 74, in the original principal amount of $145,682.21.
Mortgage tax paid $.
Which mortgage, together with Mortgage 1, 2, and 3 were consolidated by
consolidation and extension agreement dated June 14, 1963, recorded on June
14, 1963 in Reel/Liber 6178, MP 179, to form a single lien of $725,000.
Which four (4) mortgages were assigned as consolidated by assignment of
mortgage dated May 10, 1973, recorded on May 25, 1973 in Reel 279, Page 1499.
5. Mortgage dated May 24, 1973, recorded on May 25, 1973 in
Reel/Liber 279, Page 1494, in the original principal amount of
402,988.29.
Mortgage tax paid $5,037.50.
Which mortgage, together with Mortgage 1, 2, 3, and 4 were consolidated by
consolidation
and extension agreement dated May 24, 1973, recorded on June 5, 1973 in
Reel/Liber 280, Page 1123, to form a single lien of $1,000,000.
Which five (5) mortgage's terms were extended by extension agreement dated
May 24, 1983, recorded on December 14, 1983 in Reel 744, Page 1917.
Which five (5) mortgages were assigned by assignment of mortgage dated
December 19, 1994, recorded on January 14, 1985 in Reel 866, Page 299.
6. Mortgage dated December 19, 1984, recorded on January 14, 1985 in
Reel 866, Page 221, in the original principal amount of 8,692,898.86.
Mortgage tax paid $195,590.25.
Which mortgage, together with Mortgage 1, 2, 3, 4, and 5 were consolidated by
agreement of spreader consolidation and modification of mortgage, dated
December 19, 1984, recorded on January 14, 1985 in Reel 866, Page 255 to form
a single lien of 9,500,000.
Which six (6) mortgage's terms were modified by modification of consolidation
agreement on August 24, 1995, recorded on September 8, 1985 in Reel 2241,
Page 1813.
Which six (6) mortgages were further modified by second modification of
consolidation agreement on December 21, 1995, recorded on February 20, 1996
in Reel 866, Page 255.
Which six (6) mortgages were severed by mortgage severance and modification
agreement dated January 25, 1996, recorded on January 30, 1996 in Reel 2293,
Page 1403, which mortgages were severed as follows:
(a)A mortgage in the amount of 2,660,000 as evidenced by Reel 2293, Page 1499
which is now satisfied; and
(b)A mortgage in the amount of 6, 840,000.
Which six (6) mortgages were assigned by assignment of mortgage dated January
25, 1996, recorded February 20, 1996 as severed in the amount of 6,840,000.
Which six (6) mortgages were modified and extended by modification and
extension agreement dated January 30, 1996, recorded on February 20, 1996.
Which six (6) were further assigned by The Bank of New York to Xxxxxx
Brothers Holdings Inc. d/b/a Xxxxxx Capital, a division of Xxxxxx Brothers
Holdings, Inc. dated August 11, 1997, recorded on December 30, 1997 in Reel
2526, Page 2027.
Parcel IV
1. (i) Mortgage Severance Agreement dated 1/1/93.
(ii)Substitute Note No. 1-A dated as of 1/1/93 made by 1414 Americas Company,
Xxxxxxxx Xxxx and Xxxxxxx X. Xxxxx to Principal Mutual Life Insurance Company
in the principal amount of $6,424,000.
(iii)Substitute Note No. 1-B dated as of 1/1/93 made by 1414 Americas
Company, Xxxxxxxx Xxxx and Xxxxxxx X. Xxxxx to Principal Mutual Life
Insurance Company in the principal amount of $876,000.
2.Assignment of Substitute Mortgage No. 1 in the amount of $7,300,000 dated
6/19/96 by and between Principal Mutual Life Insurance Company and The Xxxx
Xxxxxx Life Insurance Company recorded ___________, 1996 Reel 2339 Page 0368.
3.(i)Mortgage in the amount of $2,700,000 dated 6/19/96 between 1414
Management Associates L.P. and The Xxxx Xxxxxx Life Insurance Company
recorded on 6/28/96 in Reel 2339 Page 378.
(ii)Mortgage Note in the amount of $2,700,000 dated 6/19/96 by 1414
Management Associates L.P. and The Xxxx Xxxxxx Life Insurance Company.
0.Xxxxxxxx Consolidation and Modification Agreement made by and between 1414
Management Associates, L.P. and The Xxxx Xxxxxx Life Insurance Company dated
6/19/96, and recorded on 6/28/96 in Reel 2339 Page 385 which consolidates
above mortgages to form a single lien of $10,000,000.
5.Consolidation of Notes dated 6/19/96 by 1414 Management Associates L.P. and
The Xxxx Xxxxxx Life Insurance Company, dated June 19, 1996, recorded June
28, 1996 in Reel 2339, Page 385. which consolidates above notes to form a
single note evidencing a principal indebtedness in the amount of $10,000,000.
0.Xxxxxxxx Assignment dated 3/27/97 but effective 3/26/97 made by The Xxxx
Xxxxxx Life Insurance Company to LSOF Partners XII, L.P, recorded on June 12,
1997 in Reel 2465, Pge 1645..
7. Mortgage Assignment made by LSOF Partners XII, L.P. to Xxxxxx Brothers
Holdings Inc. d/b/a Xxxxxx Capital, a division of Xxxxxx Brothers Holdings
Inc., dated August 20, 1997, recorded December 23, 1997 on Reel 2525, Page
799.
8. Modification and Spreader Agreement made by and between XX Xxxxx Operating
Partnership, L.P. and Xxxxxx Brothers Holdings Inc. d/b/a Xxxxxx Capital, a
Division of Xxxxxx Brothers Holdings Inc.
Parcel V
1 .Mortgage in the amount of 2,000,000, dated August 27, 1965,
recorded on August 30, 1965 in Liber 6411, MP 446.
2 .Mortgage in the amount of 250,000, dated July 11, 1966,
recorded on July 11, 1966 in Liber 84, Page 82.
3. Assignment of Mortgage, dated July 15, 1966, recorded on July 20,
1977, in Liber 84, RP 87.
4. Mortgage in the amount of $250,000, date July 23, 1970, in
Reel 179, Page 451.
5. Mortgage in the amount of $1,100,000, dated August 27, 1965,
recorded on August 30, 1965, in Liber 6411, Page 451.
6. Assignment of Mortgage, dated June 8, 1971, recorded on June 10,
1971, in Reel 206, Page 1939.
7. Mortgage, in the amount of $537,252.68, dated July 21, 1971,
recorded on July 22, 1971, in Reel 211, Page 1505.
8. Mortgage in the amount $9,275,721.21, dated December 30,
1983, recorded on January 10, 1984, in Reel 753, Page 1326.
9. Assignment of Mortgage, dated May 2, 1984, recorded on May 11,
1984 in Reel 792, Page 212.
10. Mortgage in the amount of $10,029,768.62, dated May 2, 1984,
recorded on May 11, 1984, Reel 792, Page 239.
11. Mortgage in the amount of $5,500,000, dated June 27, 1985,
recorded on July 5, 1985 in Reel 932, Page 1879.
12. Assignment of Mortgage, dated September 14, 1988, recorded
on September 27, 1988, in Reel 1470, Page 1697.
13. Mortgage in the amount of $3,500,000 dated September 19,
1988, recorded on September 27, 1988 in Reel 1470, Page 1711, wich
mortgage, together with the above mortgages were consolidated to form
a single lien in the principal amount of 31,000,000.
Which mortgages, as consolidated, were reduced to the amount of $9,500,000 in
a certificate of reduction dated December 29, 1992, recorded on January 7,
1993 in Reel 1934, Page 1149.
Which mortgages, as consolidated, were assigned on December 29, 1992, and
recorded on January 7, 1993 in Reel 1934, Page 1156.
Which mortgages were further consolidated by a restated consolidated
leasehold mortgage to form single lien of $9,500,000 on December 30, 1992,
recorded on January 7, 1993 in Reel 1934, Page 1168.
Which mortgages, as consolidated, were assigned by assignment of mortgage on
July 1, 1997, and recorded on July 28, 1997 in Reel 2480, Page 142.
Which mortgages, as consolidated, were assigned by assignment of mortgage on
August 13, 1997, recorded on December 23, 1997 in Reel 2525, Page 824.
TABLE OF CONTENTS
Page
ARTICLE 1 - GRANTS OF SECURITY........................3
Section 0.0.XXXXXXXX MORTGAGED...................3
Section 1.2.ASSIGNMENT OF RENTS..................6
Section 0.0.XXXXXXXX AGREEMENT...................7
Section 1.4.PLEDGE OF MONIES HELD................7
ARTICLE 2 - DEBT AND OBLIGATIONS SECURED..............7
Section 2.1.DEBT.................................7
Section 2.2.THER OBLIGATIONS....................8
Section 2.3.DEBT AND OTHER OBLIGATIONS...........8
Section 2.4.PAYMENTS.............................8
ARTICLE 3 - BORROWER COVENANTS........................9
Section 3.1.PAYMENT OF DEBT......................9
Section 3.2.INCORPORATION BY REFERENCE...........9
Section 0.0.XXXXXXXXX............................9
Section 3.4.PAYMENT OF TAXES, ETC...............14
Section 3.5.ESCROW FUND.........................14
Section 3.6.CONDEMNATION........................15
Section 3.7.LEASES AND RENTS....................16
Section 3.8.MAINTENANCE OF PROPERTY.............17
Section 3.9.WASTE...............................18
Section 3.10.COMPLIANCE WITH LAWS...............18
Section 3.11.INTENTIONALLY OMITTED..............18
Section 3.12.PAYMENT FOR LABOR AND MATERIALS....19
Section 3.13.INTENTIONALLY OMITTED..............19
Section 3.14.PERFORMANCE OF OTHER AGREEMENTS....19
Section 0.00.XXXXXXXX WITH AFFILIATES...........19
Section 3.16.CURRENT BUSINESS...................19
Section 3.17.CHANGE OF NAME, IDENTITY OR STRUCTURE...19
Section 3.18EXISTENCE................................19
ARTICLE 4 - SPECIAL COVENANTS........................20
Section 0.0.XXXXXXXX USE........................20
Section 4.2.INTENTIONALLY OMITTED...............20
Section 4.3.RESTORATION.........................20
Section 4.4.LOCK-BOX ACCOUNT....................24
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES...........24
Section 5.1.WARRANTY OF TITLE...................24
Section 5.2.AUTHORITY...........................24
Section 0.0.XXXXX STATUS AND AUTHORITY..........25
Section 5.4.VALIDITY OF DOCUMENTS...............25
Section 5.5.LITIGATION..........................25
Section 5.6.STATUS OF PROPERTY..................26
Section 0.0.XX FOREIGN PERSON...................27
Section 5.8.SEPARATE TAX LOT....................27
Section 5.9.INTENTIONALLY OMITTED...............27
Section 5.10.LEASES.............................27
Section 0.00.XXXXXXXXX CONDITION................28
Section 0.00.XXXXXXXX PURPOSES..................28
Section 5.13.TAXES..............................28
Section 5.14.MAILING ADDRESS....................28
Section 0.00.XX CHANGE IN FACTS OR CIRCUMSTANCES....28
Section 5.16.DISCLOSURE.............................28
Section 5.17.ILLEGAL ACTIVITY.......................28
Section 5.18.CONTRACTS..............................28
Section 5.19.SURVIVAL...............................29
ARTICLE 6 - OBLIGATIONS AND RELIANCES....................29
Section 0.0.XX RELIANCE ON LENDER...................29
Section 0.0.XX LENDER OBLIGATIONS...................29
Section 0.0.XXXXXXXX................................29
ARTICLE 7 - FURTHER ASSURANCES...........................30
Section 7.1.RECORDING OF SECURITY INSTRUMENT, ETC...30
Section 7.2.FURTHER ACTS, ETC.......................30
Section 7.3.CHANGES IN TAX, DEBT, CREDIT AND
DOCUMENTARY STAMP LAWS..................31
Section 7.4.ESTOPPEL CERTIFICATES...................31
Section 7.5.FLOOD INSURANCE.........................31
Section 7.6.SPLITTING OF SECURITY INSTRUMENT........31
Section 7.7.REPLACEMENT DOCUMENTS...................32
ARTICLE 8 - DUE ON SALE/ENCUMBRANCE......................32
Section 8.1.LENDER RELIANCE.........................32
Section 0.0.XX SALE/ENCUMBRANCE.....................32
Section 0.0.XXXX/ENCUMBRANCE DEFINED................32
Section 8.4.LENDER'S RIGHTS.........................33
ARTICLE 9 - PREPAYMENT...................................33
Section 9.1.PREPAYMENT..............................33
ARTICLE 10 - DEFAULT.....................................33
Section 00.0.XXXXXX OF DEFAULT......................33
Section 10.2.DEFAULT INTEREST.......................36
ARTICLE 11 - RIGHTS AND REMEDIES..........................37
Section 11.1.REMEDIES................................37
Section 11.2.APPLICATION OF PROCEEDS.................40
Section 11.3.RIGHT TO CURE DEFAULTS..................40
Section 11.4.ACTIONS AND PROCEEDINGS.................40
Section 11.5.RECOVERY OF SUMS REQUIRED TO BE PAID....40
Section 11.6.EXAMINATION OF BOOKS AND RECORDS........40
Section 11.7.OTHER RIGHTS, ETC.......................41
Section 11.8.RIGHT TO RELEASE ANY PORTION OF THE PROPERTY..41
Section 11.9.VIOLATION OF LAWS.......................42
Section 11.10.RECOURSE AND CHOICE OF REMEDIES........42
Section 11.11.RIGHT OF ENTRY.........................42
ARTICLE 12 - INTENTIONALLY OMITTED........................42
ARTICLE 13 - INDEMNIFICATION..............................42
Section 13.1.GENERAL INDEMNIFICATION..................42
Section 00.0.XXXXXXXX AND/OR INTANGIBLE TAX...........44
Section 13.3.INTENTIONALLY OMITTED....................44
Section 13.4.INTENTIONALLY OMITTED....................44
Section 13.5.DUTY TO DEFEND; ATTORNEYS'
FEES AND OTHER FEES AND EXPENSES.........44
ARTICLE 14 - WAIVERS.......................................44
Section 14.1.WAIVER OF COUNTERCLAIM....................44
Section 14.2.MARSHALLING AND OTHER MATTERS.............44
Section 14.3.WAIVER OF NOTICE..........................44
Section 14.4.INTENTIONALLY OMITTED.....................45
Section 14.5.SOLE DISCRETION OF LENDER.................45
Section 14.6.INTENTIONALLY OMITTED.....................45
SECTION 14.7.WAIVER OF TRIAL BY JURY.................45
ARTICLE 15 - RECOURSE.......................45
Section 15.1.RECOURSE..................45
ARTICLE 16 - NOTICES.........................45
Section 16.1.NOTICES....................45
ARTICLE 17 - SERVICE OF PROCESS..............47
Section 17.1.CONSENT TO SERVICE.........47
Section 17.2.SUBMISSION TO JURISDICTION..47
Section 17.3.JURISDICTION NOT EXCLUSIVE..47
ARTICLE 18 - APPLICABLE LAW...................47
Section 18.1.CHOICE OF LAW................47
Section 18.2.USURY LAWS...................47
Section 18.3.PROVISIONS SUBJECT TO APPLICABLE LAW....48
ARTICLE 19 - SECONDARY MARKET.................48
Section 19.1TRANSFER OF LOAN.............48
ARTICLE 20 - COSTS............................48
Section 20.1PERFORMANCE AT BORROWER'S EXPENSE.........48
Section 20.2ATTORNEY'S FEES FOR ENFORCEMENT...........49
ARTICLE 21 - DEFINITIONS...................................49
Section 21.1.GENERAL DEFINITIONS......................49
ARTICLE 22 - MISCELLANEOUS PROVISIONS......................49
Section 00.0.XX ORAL CHANGE...........................49
Section 22.2.LIABILITY................................49
Section 22.3.INAPPLICABLE PROVISIONS..................50
Section 22.4.HEADINGS, ETC............................50
Section 22.5.DUPLICATE ORIGINALS; COUNTERPARTS........50
Section 22.6.NUMBER AND GENDER........................50
Section 22.7.SUBROGATION..............................50
Section 00.0.XX JOINT VENTURE.........................50
Section 00.0.XX BENEFIT TO THIRD PARTIES..............50
Section 22.10.ENTIRE AGREEMENT........................51
ARTICLE 23 - INTENTIONALLY DELETED.........................51
ARTICLE 24 - STATE SPECIFIC PROVISIONS.....................51
Section 00.0.XXXXX FUND................................51
Section 24.2.COMMERCIAL PROPERTY.......................51
Section 00.0.XXXXXXXXX.................................52
Section 24.4.LEASES....................................52
Section 24.5.STATUTORY CONSTRUCTION....................52
Section 24.6.MAXIMUM PRINCIPAL AMOUNT SECURED..........52
Section 24.7.THE GROUND LEASE..........................52
Section 24.8.SUBLEASES.................................53
Xxxxxxx 00.0.XX XXXXXX XX XXX XXX XXXXXXXXX XXXXXXX;
RELEASES..................................53
Section 24.10.BORROWER'S ACQUISITION OF FEE ESTATE.....53
DEFINITIONS
--------
The terms set forth below are defined in the following Sections of this
Security Instrument:
(A) Additional Security Instruments: Article 23, Section 23.1;
-------------------------------
(B) Applicable Laws: Article 3, Subsection 3.10(a);
---------------
(C) Attorneys' Fees/Counsel Fees: Article 21, Section 21.1;
----------------------------
(D) Bankruptcy Code: Article 1, Subsection 1.1(b);
---------------
(E) Borrower: Preamble and Article 21, Section 21.1;
--------
(F) Business Day: Article 16, Section 16.1;
------------
(G) Restoration Consultant: Article 4, Subsection 4.3(b)(iii);
----------------------
(H) Retainage: Article 4, Subsection 4.3(b)(iv);
---------
(I) Debt: Article 2, Section 2.1;
----
(J) Default Rate: Article 10, Section 10.1(t);
------------
(K) Environmental Indemnity: Article 10, Subsection 10.1(k);
-----------------------
(L) Escrow Fund: Article 3, Section 3.5;
-----------
(M) Event: Article 20, Section 20.1;
-----
(N) Event of Default: Article 10, Section 10.1;
----------------
(O) Existing Mortgages: Recitals;
------------------
(P) Existing Notes: Recitals;
---------------
(Q) GAAP: Article 3, Subsection 3.11(a);
----
(R) Improvements: Article 1, Subsection 1.1(c);
------------
(S) Indemnified Parties: Article 13, Section 13.1;
-------------------
(T) Indemnitor: Article 10, Subsection 10.1(q);
----------
(U) Insurance Premiums: Article 3, Subsection 3.3(b);
------------------
(V) Land: Article 1, Subsection 1.1(a);
----
(W) Lease Guaranty: Article 3, Subsection 3.7(a);
--------------
(X) Leased Land: Article 1, Subsection 1.1(b);
-----------
(Y) Leases: Article 1, Subsection 1.1(f);
-------
(Z) Lender: Preamble and Article 21, Section 21.1;
------
(AA) Lockbox Account: Article 4, Section 4.4;
---------------
(BB) Losses: Article 13, Section 13.1;
-------
(CC) Net Proceeds: Article 4, Subsection 4.3(b);
------------
(DD) Net Proceeds Deficiency: Article 4, Subsection 4.3(b)(vi);
-----------------------
(EE) Note: Recital C and Article 21, Section 21.1;
----
(FF) Obligations: Article 2, Section 2.3;
-----------
(GG) Other Charges: Article 3, Subsection 3.4(a);
-------------
(HH) Other Obligations: Article 2, Section 2.2;
-----------------
(II) Other Security Documents: Article 3, Section 3.2;
------------------
(JJ) Owner: Article 1, Subsection 1.1(b);
-----
(KK) Partnership: Preamble;
-----------
(LL) Permitted Exceptions: Article 5, Section 5.1;
--------------------
(MM) Person: Article 21, Section 21.1;
------
(NN) Personal Property: Article 1, Subsection 1.1(e);
-----------------
(OO) Policies/Policy: Article 3, Subsection 3.3(b);
---------------
(PP) Property: Article 1, Section 1.1 and Article 21, Section 21.1;
--------
(QQ) REIT: Article 5, Section 5.5;
----
(RR) Rents: Article 1, Subsection 1.1(f);
-----
(SS) Restoration: Article 3, Subsection 3.3(h);
-----------
(TT) Security Deposits: Article 3, Subsection 3.7(c);
-----------------
(UU) Security Instrument: Recital B;
-------------------
(VV) Taxes: Article 3, Subsection 3.4(a);
-----
(WW) Uniform Commercial Code: Article 1, Subsection 1.1(e)
-----------------------
