Ex 4.6
Form of Mortgage between the Company and
Allstate Life Insurance Company dated December 14, 2001
Exhibit 4.6
Form of Mortgage between the Company and
Allstate Life Insurance Company dated December 14, 2001
The following is the form of the Mortgage used in two transactions dated
December 14, 2001 between the Company and Allstate Life Insurance Company. In
the first transaction, Allstate provided a mortgage loan totaling $16,750,000 to
GLR Corporate Center LLC, a subsidiary of the Company, encumbering the Company's
property located at 0000 Xxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx. In the second
transaction Allstate provided a mortgage loan totaling $6,250,000 to Great Lakes
REIT, L.P. encumbering the Company's property located at 0000-0000 Xxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxx.
THIS INSTRUMENT PREPARED BY AND AFTER RECORDING SHOULD BE RETURNED TO:
Xxxxxxx X. Xxxxxx, Esq.
Kubasiak, Fylstra, Reizen & Xxxxxxx,
Two First National Plaza
00 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
ALLSTATE LIFE INSURANCE COMPANY
LOAN NO.
MORTGAGE, ASSIGNMENT OF LEASES,
RENTS AND CONTRACTS, SECURITY AGREEMENT
AND
FIXTURE FILING
BETWEEN
GREAT LAKES REIT, L.P., AS MORTGAGOR
AND
ALLSTATE LIFE INSURANCE COMPANY, AS MORTGAGEE
DATED: AS OF DECEMBER 14, 2001
LOAN AMOUNT: $6,250,000
PROPERTY ADDRESS:
WOODFIELD GREEN
0000-0000 XXXXXXX XXXXX XXXXX
XXXXXXXXXX, XXXXXXXX
TABLE OF CONTENTS
-----------------
ARTICLE ICOVENANTS OF MORTGAGOR 4
1.01 PERFORMANCE OF OBLIGATIONS SECURED 4
1.02 INSURANCE 5
1.03 CONDEMNATION 6
1.04 DAMAGE TO PROPERTY 7
1.05 ESCROW FUND FOR CONDEMNATION AND INSURANCE PROCEEDS 9
1.06 TAXES, LIENS AND OTHER ITEMS 11
1.07 ASSIGNMENT OF LEASES, CONTRACTS, RENTS AND PROFITS 12
1.08 DUE ON SALE OR ENCUMBRANCE 16
1.09 PRESERVATION AND MAINTENANCE OF PROPERTY 16
1.10 USE OF PROPERTY 17
1.11 ALTERATIONS AND ADDITIONS 17
1.12 OFFSET CERTIFICATES 18
1.13 REIT COVENANTS 18
1.14 PROTECTION OF SECURITY; COSTS AND EXPENSES 19
1.15 MORTGAGOR'S COVENANTS RESPECTING COLLATERAL 21
1.16 COVENANTS REGARDING FINANCIAL STATEMENTS 23
1.17 ENVIRONMENTAL COVENANTS 24
1.18 FURTHER ASSURANCES 26
1.19 MORTGAGOR'S CONTINUED EXISTENCE 26
ARTICLE IIEVENTS OF DEFAULT 26
2.01 MONETARY AND PERFORMANCE DEFAULTS 26
2.02 BANKRUPTCY, INSOLVENCY, DISSOLUTION 27
2.03 MISREPRESENTATION 28
2.04 DEFAULT UNDER SUBORDINATE LOANS 28
2.05 BREACH OF DUE ON SALE OR ENCUMBRANCE PROVISION 28
ARTICLE IIIREMEDIES 28
3.01 ACCELERATION 28
3.02 ENTRY; APPOINTMENT OF A RECEIVER 28
3.03 JUDICIAL ACTION 30
3.04 FORECLOSURE 30
3.05 RESCISSION OF NOTICE OF DEFAULT 33
3.06 MORTGAGEE'S REMEDIES RESPECTING COLLATERAL 34
3.07 PROCEEDS OF SALES 34
3.08 CONDEMNATION AND INSURANCE PROCEEDS 35
3.09 WAIVER OF MARSHALLING, RIGHTS OF REDEMPTION, HOMESTEAD AND VALUATION 35
3.10 REMEDIES CUMULATIVE 36
3.11 NONRECOURSE 36
ARTICLE IVMISCELLANEOUS 38
4.01 SEVERABILITY 38
4.02 CERTAIN CHARGES AND BROKERAGE FEES 38
4.03 NOTICES 38
4.04 MORTGAGOR NOT RELEASED 40
4.05 INSPECTION 40
4.06 RELEASE OR RECONVEYANCE OR CANCELLATION 41
4.07 STATUTE OF LIMITATIONS 41
4.08 INTERPRETATION 41
4.09 CAPTIONS 41
4.10 CONSENT 41
4.11 DELEGATION TO SUBAGENTS 41
4.12 SUCCESSORS AND ASSIGNS 42
4.13 GOVERNING LAW 42
4.14 ILLINOIS MORTGAGE FORECLOSURE LAW 42
4.15 CHANGES IN TAXATION 42
4.16 MAXIMUM INTEREST RATE 43
4.17 TIME OF ESSENCE 43
4.18 REPRODUCTION OF DOCUMENTS 43
4.19 NO ORAL MODIFICATIONS 43
4.20 MAXIMUM AMOUNT SECURED 43
4.21 ILLINOIS COLLATERAL PROTECTION ACT 43
EXHIBIT "A"(Property Description) 46
EXHIBIT "B"(Fixture Filing) 47
MORTGAGE, ASSIGNMENT OF LEASES, RENTS AND CONTRACTS,
SECURITY AGREEMENT AND FIXTURE FILING
-------------------------------------
THIS MORTGAGE, ASSIGNMENT OF LEASES, RENTS AND CONTRACTS, SECURITY AGREEMENT AND
FIXTURE FILING is made as of this ____ day of December, 2001 from
GREAT LAKES
REIT, L.P., a Delaware limited partnership, whose mailing address is c/o
GREAT
LAKES REIT, 000 XXXXXXXX XXXXX, XXXXX 000, XXX XXXXX, XXXXXXXX 00000 (herein
"Mortgagor") in favor of ALLSTATE LIFE INSURANCE COMPANY, an Illinois insurance
corporation, whose mailing address is Allstate Plaza South, 0000 Xxxxxxx Xxxx,
Xxxxx X0X, Xxxxxxxxxx, Xxxxxxxx, 00000 (herein "Mortgagee").
Mortgagor, in consideration of the indebtedness herein recited hereby
irrevocably grants, conveys, warrants, mortgages, transfers and assigns to
Mortgagee, its successors and assigns, all of Mortgagor's estate, right, title
and interest in, to and under that certain real property located in Xxxx County,
Illinois, more particularly described in EXHIBIT A attached hereto and
incorporated herein by this reference (the "Land");
TOGETHER with all of Mortgagor's now or hereafter acquired estate, right, title
and interest in, to and under all buildings, structures, improvements and
fixtures now existing or hereafter erected on the Land and all right, title and
interest, if any, of Mortgagor in and to the streets and roads, opened or
proposed, abutting the Land to the center lines thereof, and strips within or
adjoining the Land, the air space and right to use said air space above the
Land, all rights of ingress and egress on or within the Land, all easements,
rights and appurtenances thereto or used in connection with the Land, including,
without limitation, all lateral support, alley and drainage rights, all
revenues, income, rents, cash or security deposits, advance rental deposits, and
other benefits thereof or arising from the use or enjoyment of all or any
portion thereof (subject however to the rights and authorities given herein to
Mortgagor to collect and apply such revenues, and other benefits), all interests
in and rights, royalties and profits in connection with all minerals, oil and
gas and other hydrocarbon substances thereon or therein, and water stock, all
options to purchase or lease, all development or other rights relating to the
Land or the operation thereof, or used in connection therewith, including all
Mortgagor's right, title and interest in all fixtures, attachments, partitions,
machinery, equipment, building materials, appliances and goods of every nature
whatever now or hereafter located on, or attached to, the Land, all of which,
including replacements and additions thereto, shall, to the fullest extent
permitted by law and for the purposes of this Mortgage, be deemed to be real
property and, whether affixed or annexed thereto or not, be deemed conclusively
to be real property; and Mortgagor agrees to execute and deliver, from time to
time, such further instruments and documents as may be required by Mortgagee to
confirm the legal operation and effect of this Mortgage on any of the foregoing.
All of the foregoing property described in this section (the "Improvements")
together with the Land, shall be hereinafter referred to as the "Property".
Mortgagor further grants to Mortgagee a security interest in all of Mortgagor's
now existing or hereafter acquired right, title and interest in the following:
(A) All equipment, fixtures, inventory, goods, instruments, appliances,
furnishings, machinery, tools, raw materials, component parts, work in progress
and materials, and all other tangible personal property of whatsoever kind, used
or consumed in the improvement, use or enjoyment of the Property now or any time
hereafter owned or acquired by Mortgagor, wherever located and all products
thereof whether in possession of Mortgagor or whether located on the Property or
elsewhere;
(B) To the extent such general intangibles are assignable, all general
intangibles relating to design, development, operation, management and use of
the Property, including, but not limited to, (i) all names under which or by
which the Property may at any time be owned and operated or any variant thereof,
and all goodwill in any way relating to the Property and all service marks and
logotypes used in connection therewith, (ii) all permits, licenses,
authorizations, variances, land use entitlements, approvals, consents,
clearances, and rights obtained from governmental agencies issued or obtained in
connection with the Property, (iii) all permits, licenses, approvals, consents,
authorizations, franchises and agreements issued or obtained in connection with
the construction, use, occupation or operation of the Property, (iv) all
materials prepared for filing or filed with any governmental agency, and (v) the
books and records of Mortgagor relating to construction or operation of the
Property;
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(C) All shares of stock or partnership interest or other evidence of ownership
of any part of the Property that is owned by Mortgagor in common with others,
including all water stock relating to the Property, if any, and all documents or
rights of membership in any owners' or members' association or similar group
having responsibility for managing or operating any part of the Property
provided, however, that the foregoing shall not include any ownership interests
in the Mortgagor;
(D) All accounts, deposit accounts, tax and insurance escrows held pursuant to
this Mortgage, accounts receivable, instruments, documents, documents of title,
general intangibles, rights to payment of every kind, all of Mortgagor's rights,
direct or indirect, under or pursuant to any and all construction, development,
financing, guaranty, indemnity, maintenance, management, service, supply and
warranty agreements, commitments, contracts, subcontracts, insurance policies,
licenses and bonds now or anytime hereafter arising from construction on the
Land or the use or enjoyment of the Property to the extent such are assignable;
(E) All condemnation proceeds (including payments in lieu thereof) and
insurance proceeds related to the Property;
TOGETHER with all additions to, substitutions for and the products of all of the
above, and all proceeds therefrom, whether cash proceeds or noncash proceeds,
received when any such property (or the proceeds thereof) is sold, exchanged,
leased, licensed, or otherwise disposed of, whether voluntarily or
involuntarily. Such proceeds shall include any of the foregoing specifically
described property of Mortgagor acquired with cash proceeds. Together with, and
without limiting the above items, all Goods, Accounts, Documents, Instruments,
Money, Chattel Paper and General Intangibles arising from or used in connection
with the Property, as those terms are defined in the Uniform Commercial Code
from time to time in effect in the state in which the Property is located. (All
of the foregoing including such products and proceeds thereof, are collectively
referred to as "Collateral".)
The personal property in which Mortgagee has a security interest includes goods
which are or shall become fixtures on the Property. This Mortgage is intended to
serve as a fixture filing pursuant to the terms of the applicable provisions of
the Uniform Commercial Code of the state in which the Property is located and
the provisions of Exhibit B are, for that purpose, incorporated herein. This
filing is to be recorded in the real estate records of the appropriate city,
town or county in which the Property is located. In that regard, the following
information is provided:
Names of Debtor:
Great Lakes REIT, L.P.
a Delaware limited partnership
Address of Debtor: See section 4.03 hereof
Name of Secured Party: Allstate Life Insurance Company,
an Illinois insurance corporation
Address of Secured Party See section 4.03 hereof.
Mortgagor warrants and agrees that there is no financing statement covering the
foregoing Collateral, the Property, or any part thereof, on file in any public
office.
TO HAVE AND TO HOLD the Property hereby conveyed unto Mortgagee, its successors
and assigns, forever, subject to and for the uses and purposes herein set forth
and FOR THE PURPOSE OF SECURING, IN SUCH ORDER OF PRIORITY AS MORTGAGEE MAY
ELECT:
(A) The repayment of the indebtedness evidenced by that certain Mortgage Note
("Note") of even date herewith with a maturity date of January 1, 2007 executed
by Mortgagor and payable to the order of Mortgagee, in the principal sum of SIX
MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($6,250,000) with interest thereon,
as provided therein and all late charges, loan fees, commitment fees, Prepayment
Premiums (as described in the Note), and all extensions, renewals,
modifications, amendments and replacements thereof;
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(B) The payment of all other sums which may be advanced by or otherwise be due
to Mortgagee under any provision of this Mortgage or under any other instrument
or document referred to in clause (C) below, with interest thereon at the rate
provided herein or therein;
(C) The performance of each and every covenant and agreement of Mortgagor
contained (i) herein, in the Note, or in any note evidencing a Future Advance
(as hereinafter defined), and (ii) in the obligations of Mortgagor upon any and
all pledge or other security agreements, loan agreements, disbursement
agreements, supplemental agreements, environmental indemnity agreements (the
foregoing shall not include the Commitment Letter between Mortgagor and
Mortgagee), assignments (both present and collateral) and all instruments of
indebtedness or security now or hereafter executed by Mortgagor in connection
with any indebtedness referred to in clauses (A), (B) or (D) of this section or
for the purpose of supplementing or amending this Mortgage or any instrument
secured hereby (all of the foregoing in this clause (C), as the same may be
amended, modified or supplemented from time to time, being referred to
hereinafter as "Related Agreements") and all costs and expenses, including
reasonable attorneys' fees with respect to all such documents, including,
without limitation, the negotiation and drafting of any loan settlement or
workout agreement; and
(D) The repayment of any other loans or advances, with interest thereon,
hereafter made to Mortgagor (or any successor in interest to Mortgagor as the
owner of the Property or any part thereof) by Mortgagee when the promissory note
evidencing the loan or advance specifically states that said note is secured by
this Mortgage, together with all extensions, renewals, modifications, amendments
and replacements thereof (herein and in the Related Agreements, "Future
Advance"). Mortgagor and Mortgagee intend that all such advances, including
Future Advances whenever hereafter made, shall be a lien from the time this
Mortgage is recorded, as provided in Section 5/15-1302(b)(1) of the Illinois
Mortgage Foreclosure Law (as the same may be amended from time to time, the
"Act") Illinois Code of Civil Procedure, 735 ILCS 5/15-1101 et seq. (1998).
ARTICLE I
COVENANTS OF MORTGAGOR
To protect the security of this Mortgage, Mortgagor covenants and agrees as
follows:
1.01 PERFORMANCE OF OBLIGATIONS SECURED Mortgagor shall promptly pay when due
the principal of and interest on the indebtedness evidenced by the Note, the
principal of and interest on any Future Advance, any Prepayment Premium and late
charges provided for in the Note or in any note evidencing a Future Advance, and
shall further perform fully and in a timely manner all other obligations of
Mortgagor contained herein or in the Note or in any note evidencing a Future
Advance or in any of the Related Agreements.
1.02 INSURANCE For all times during the period there remains any indebtedness
under the Note, or any and all other indebtedness (including without limitation
Future Advances) secured by this Mortgage, Mortgagor shall keep the Property
insured against all risks or hazards as Mortgagee may require. Such insurance
shall be in policy form, amount and coverage satisfactory to Mortgagee,
including, but not limited to:
(A) Fire and extended coverage on an "all risk" replacement cost basis,
in an amount equal to the insurable value of the Improvements, without
coinsurance or deducting for depreciation, containing a waiver of subrogation
clause and a deductible amount acceptable to Mortgagee;
(B) General public liability insurance, in such form, amount and
deductible satisfactory to Mortgagee, and naming Mortgagee c/o Mortgagee's
servicing agent, if any, as additional insured covering Mortgagee's interest in
the Property;
(C) Business interruption or rent loss insurance endorsement in an amount
at least equal to 100% of the sum of: annual debt service on the Note, the
annual debt service on any other financing permitted by Mortgagee, ground rents,
if any, and operating expenses (without contribution from Mortgagor for a period
of twelve (12) months), including, without limitation, real estate taxes and
assessments and insurance, for the Property;
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(D) Flood insurance (whether or not available through the National Flood
Insurance Program) sufficient to cover any damage which may be anticipated in
the event of flood unless Mortgagor has provided Mortgagee evidence satisfactory
to Mortgagee that no portion of the Property is located within the boundaries of
the 100 year flood plain (Flood Zone A);
(E) "Dram shop" insurance if alcoholic beverages are sold on the
Property;
(F) Boiler and machinery insurance when risks covered thereby are present
and Mortgagee requires such insurance; and
(G) Earthquake insurance if Mortgagee requires such insurance.
The insurance coverages described in subsections (A), (C), (D), (F) and (G)
above shall name Mortgagee c/o Mortgagee's servicing agent, if any, under a
standard noncontributory mortgagee loss payable clause (and naming Mortgagee as
loss payee for rent loss coverage) or otherwise directly insure Mortgagee's
interest in the Property. All losses under said insurance shall be payable to
Mortgagee in the manner provided in sections 1.04 and 1.05 hereof. All policies
of insurance required under this section 1.02 shall be with a company or
companies with a policy rating of A- and financial rating of at least Class X in
the most current edition of Best's Key Rating Guide and authorized to do
business in the state in which the Property is located. All policies of
insurance shall provide that they will not be canceled or modified without
thirty (30) days' prior written notice to Mortgagee. True copies of the above
mentioned insurance policies or evidence of such insurance (in the form of Xxxxx
Form 27) satisfactory to Mortgagee shall be delivered to and held by Mortgagee.
True copies of all renewal and replacement policies or evidences of such
insurance forms (Xxxxx Form 27) thereof shall be delivered to Mortgagee at least
thirty (30) days before the expiration of the expiring policies. If any renewal
or replacement policy is not obtained as required herein, Mortgagee is
authorized to obtain the same in Mortgagor's name and at Mortgagor's expense.
Mortgagee shall not by the fact of failing to obtain any insurance, incur any
liability for or with respect to the amount of insurance carried, the form or
legal sufficiency of insurance contracts, solvency of insurance companies, or
payment or defense of lawsuits, and Mortgagor hereby expressly assumes full
responsibility therefor and all liability, if any, with respect thereto.
1.03 CONDEMNATION
(A) Immediately upon obtaining knowledge of the commencement or threat of
any action in connection with (i) any condemnation, (ii) any other taking of the
Property or any part thereof by any public authority or private entity having
the power of eminent domain, or (iii) any conveyance in lieu of such
condemnation or taking of the Property or any part thereof ("Condemnation"),
Mortgagor shall notify Mortgagee in writing but in no event later than ten (10)
days after Mortgagor obtains knowledge of the commencement of or threat of a
Condemnation. Mortgagee shall have the right, but not the obligation, to
participate in any proceedings relating to any Condemnation and may, in its sole
discretion, consent or withhold its consent to any settlement, adjustment, or
compromise of any claims arising from the Condemnation and no such settlement,
adjustment or compromise shall be final or binding upon Mortgagee without
Mortgagee's prior consent.
(B) If all or part of the Property is taken by Condemnation and Mortgagee
in its reasonable judgment determines that the remainder of the Property, if
any, cannot be operated as an economically viable entity at substantially the
same level of operations as immediately prior to such Condemnation, then all
proceeds of the Condemnation ("Condemnation Proceeds") shall be paid over to
Mortgagee and shall be applied first toward reimbursement of the costs and
expenses (including reasonable attorneys' fees) of Mortgagee, if any, in
connection with the recovery of such Condemnation Proceeds, and then, in the
sole and absolute discretion of Mortgagee and without regard to the adequacy of
its security under this Mortgage, shall be applied against all amounts due
herein or under the Note and any remaining Condemnation Proceeds shall be
released to the Mortgagor. Provided there is no Event of Default hereunder, full
or partial prepayment of the Note under this section 1.03(B) shall not be
subject to the Prepayment Premium; however, such partial prepayment shall not
entitle Mortgagor to prepay the portion of the Note remaining unpaid after
application of the Condemnation Proceeds unless (i) the Property cannot be
operated as an economically viable entity and (ii) Mortgagor prepays the balance
of the Note within sixty (60) days following the Condemnation. Except as
provided in the preceding sentence, prepayment of the balance shall continue to
be
25
subject to the terms and conditions of the Note, including the No-Prepayment
Period and the Prepayment Premium described therein.
(C) If less than all of the Property is taken by Condemnation and
Mortgagee in its reasonable judgment determines that the remainder of the
Property can be operated as an economically viable entity at substantially the
same level of operations as immediately prior to such Condemnation, then
Mortgagor shall diligently restore the Property to a condition and use as close
as possible to its condition immediately prior to the Condemnation (Mortgagor
shall not be required to acquire additional real estate to effect such
restoration) and all Condemnation Proceeds shall be made available to Mortgagor
for such restoration. If the estimated cost of restoration, as reasonably
determined by Mortgagee, is equal to or less than $250,000.00, all Condemnation
Proceeds shall be released directly to Mortgagor for restoration of the
Property. If the estimated cost of restoration exceeds $250,000.00, all
Condemnation Proceeds shall be deposited into an escrow fund in accordance with
section 1.05 below. Mortgagee shall have the right to obtain an opinion of an
independent contractor or engineer satisfactory to Mortgagee, at Mortgagor's
expense, to estimate the cost to restore the remaining portion of the Property.
If the amount of the Condemnation Proceeds is not sufficient to restore the
Property based on the opinion of an independent contractor or engineer, subject
to revision as restorations are made, Mortgagor shall be obligated to pay the
difference toward the restoration of the Property, prior to the disbursement of
any Condemnation Proceeds to, or for the account of Mortgagor.
(D) If an Event of Default exists at any time from the time of a
Condemnation through the completion of restoration and payment of any
Condemnation Proceeds, the use of the Condemnation Proceeds shall be governed by
Section 3.08 below. If an event has occurred which with notice, the passage of
time, or both, could become an Event of Default, then, the Condemnation Proceeds
shall be held by Mortgagee or in the Escrow Fund (as defined below), as
applicable, pending cure of such event prior to the expiration of any applicable
cure or grace period. The application of any Condemnation Proceeds to the
indebtedness secured hereby shall not cure or waive any Event of Default
hereunder, or invalidate any act done pursuant to any notice thereof.
1.04 DAMAGE TO PROPERTY
(A) Promptly upon obtaining knowledge of any damage to the Property or
any part thereof with an estimated cost of restoration in excess of $50,000.00,
but in no event later than five (5) days after Mortgagor obtains such knowledge,
Mortgagor shall notify Mortgagee of such damage in writing. Mortgagor shall
diligently restore the Property to the same condition that existed immediately
prior to the damage whether or not insurance proceeds are sufficient for such
restoration. All proceeds of any insurance on the Property ("Insurance
Proceeds") received by Mortgagor shall be applied to such restoration. Mortgagee
shall have the right to obtain an opinion of an independent contractor or
engineer satisfactory to Mortgagee, at Mortgagor's expense, to estimate the cost
to restore the Property to its original condition, which opinion may be revised
as restorations are made. If the amount of the Insurance Proceeds is not
sufficient to restore the Property based on an independent contractor's or
engineer's opinion, subject to revision as restorations are made, Mortgagor
shall be obligated to pay the difference toward the restoration of the Property,
prior to the application of any Insurance Proceeds to such restoration as
provided herein.
(B) If the estimated cost of restoration is equal to or less than
$250,000.00, Mortgagor shall promptly settle and adjust any claims under the
insurance policies which insure against such risks and, upon receipt of the
Insurance Proceeds, Mortgagee shall deliver such to Mortgagor for use in
restoration of the Property.
(C) If the estimated cost of restoration is greater than $250,000.00,
Mortgagee shall have the right, but not the obligation, to participate in the
settlement of the insurance claims and may, in its sole discretion, consent or
withhold its consent to any settlement, adjustment, or compromise of such
insurance claims and no such settlement, adjustment, or compromise shall be
final or binding upon Mortgagee without its prior consent. Upon settlement of
insurance claims, and if Mortgagor can demonstrate to the reasonable
satisfaction of Mortgagee that the projected ratio of Net Operating Income, as
defined below, to annual debt service due under the Note and any other notes
secured by the Property ("Debt Coverage Ratio") will be at least 105% for the
twelve months immediately following reconstruction of the Property, the
Insurance Proceeds shall be deposited into an escrow fund in accordance with
section 1.05 below.
26
As used in this Mortgage, "Net Operating Income" shall mean: (i) all gross
operating revenues anticipated to be received during the following twelve-month
period based on leases in effect as of the date of calculation and only for such
time as those leases are contracted to remain in effect without expiration by
their terms or optional termination by the tenant (unless the tenant has waived
its termination rights in writing or the term of the lease has been extended in
writing), including without limitation all amounts to be received from tenants
as payment of operating expenses but not including refundable deposits, lease
termination payments, excess tenant improvement and leasing commission payments
included as additional rent, principal or interest payments received by
Mortgagor on loans to tenants, and fees and reimbursements for work performed
for tenants by Mortgagor, LESS: (ii) all amounts, calculated on a proforma
basis, for the operation or maintenance of the Property for the following
twelve-month period, including ground rents, the cost of property management
(which shall be no less than 4% of gross revenues), maintenance, cleaning,
security, landscaping, parking maintenance and utilities, and other costs and
expenses approved in writing by Mortgagee and amounts reasonably estimated by
Mortgagee for the payment of real estate taxes and assessments and other taxes
related to the operation of the Property, insurance premiums, necessary repairs
and future replacements of equipment; payments under the Note shall not be
included in Net Operating Income. Notwithstanding the foregoing, if any of the
Related Agreements require a historical calculation of Net Operating Income, it
shall be calculated on a cash basis for the previous twelve-month period as of
the date of such calculation.
(D) If in the reasonable judgment of Mortgagee the conditions of section
1.04(C) cannot be satisfied, then at any time from and after the occurrence of
the damage, upon written notice to Mortgagor, Mortgagee may declare the entire
balance of the Note and/or any Future Advances then outstanding and accrued and
unpaid interest thereon, and all other sums or payments required thereunder or
under this Mortgage, without any Prepayment Premium (provided no Event of
Default exists hereunder), to be immediately due and payable, and all Insurance
Proceeds shall be applied by Mortgagee first to the reimbursement of any costs
or expenses incurred by Mortgagee in connection with the damage or the
determination to be made hereunder, and then to the payment of the indebtedness
secured by this Mortgage in such order as Mortgagee may determine in its sole
discretion.
(E) Notwithstanding any provision herein to the contrary, if an Event of
Default exists at any time from the time of damage through the completion of
restoration and the final release of any Insurance Proceeds to Mortgagor, the
use of the insurance proceeds shall be governed by Section 3.08 below. If an
event has occurred which with notice, the passage of time, or both, could become
an Event of Default, then the Insurance Proceeds shall be held by Mortgagee or
in the Escrow Fund, as applicable, pending cure of such event prior to the
expiration of any applicable cure or grace period. The application of any
Insurance Proceeds to the indebtedness secured hereby shall not cure or waive
any Event of Default hereunder or invalidate any act done pursuant to any notice
thereof.
1.05 ESCROW FUND FOR CONDEMNATION AND INSURANCE PROCEEDS
(A) In the circumstances indicated above in subsections 1.03(C) and
1.04(C), all Condemnation Proceeds and Insurance Proceeds ("Proceeds") shall be
deposited in an interest bearing escrow fund ("Escrow Fund"). The escrow agent
and the form of the escrow agreement shall be satisfactory to Mortgagee and
Mortgagor. The costs and fees of such escrow agent shall be paid by Mortgagor.
If the amount of the Proceeds is not sufficient to restore the Property based on
an independent contractor's or engineer's opinion obtained by Mortgagee at
Mortgagor's expense, subject to revision as restorations are made, Mortgagor
shall be obligated to deposit in the Escrow Fund the difference between the
contractor's or engineer's estimate and the amount of the Proceeds or deliver to
the escrow agent an irrevocable, unconditional letter of credit issued in the
amount of such difference in a form and by a financial institution acceptable to
Mortgagee or other cash equivalent acceptable to Mortgagee. The Mortgagor's
funds, if necessary, and the Proceeds shall be deposited into the Escrow Fund
and shall not be released by the escrow agent unless used to restore the
Property to its original condition and unless a disbursement agent satisfactory
to Mortgagee and Mortgagor approves such disbursements from time to time. The
escrow agreement shall provide that the escrow agent shall only disburse funds
to Mortgagor so long as the restoration work is being diligently performed by
Mortgagor and only after: (i) Mortgagor has delivered to Mortgagee and Mortgagee
has approved the plans and specifications for the restoration of the Property;
(ii) Mortgagor has executed a contract
27
acceptable to Mortgagee with a general contractor acceptable to Mortgagee for
the restoration of the Property; (iii) the general contractor has submitted lien
waivers and/or releases, executed by the general contractor and all
subcontractors which may be partial to the extent of partial payments and which,
in the case of releases, may be contingent upon payment if the escrow agent
makes payment directly to such contractor or subcontractor; (iv) Mortgagor has
furnished Mortgagee with an endorsement to its title policy showing no
additional exceptions; and (v) Mortgagor has deposited its funds in the Escrow
Fund as provided in this paragraph and has submitted such other documents and
information as may be requested by Mortgagee to determine that the work to be
paid for has been performed in accordance with the plans and specifications
approved by Mortgagee. If any requisition for payment of work performed is for
an amount which would result in the remaining balance of the Escrow Fund to be
insufficient to complete the remainder of the restoration, Mortgagor shall
advance the requisite amount in cash to the Escrow Fund immediately upon written
request from the disbursement agent or Mortgagee. Any failure by Mortgagor to
satisfy any of the conditions to the disbursement of Proceeds set forth in this
Paragraph upon demand by Mortgagee shall constitute a Performance Default, as
hereinafter defined.
(B) Any Proceeds and any interest thereon remaining in the Escrow Fund
after payment of the costs to complete the restoration of the Property pursuant
to the approved plans and specifications and the costs of the escrow agent shall
be paid first, to Mortgagor to the extent of any funds of Mortgagor's
contributed to the restoration pursuant to section 1.05, provided there is no
Event of Default or an event which with notice, the passage of time, or both,
could become an Event of Default, and thereafter at Mortgagee's option, any
remaining Proceeds may be applied to the prepayment of the Note without payment
of any Prepayment Premium. Full or partial prepayment of the Note under the
preceding sentences of this section 1.05B shall not be subject to the Prepayment
Premium; however, any such partial prepayment shall not entitle Mortgagor to
prepay the portion of the Note remaining unpaid after application of the
Proceeds. Prepayment of the balance shall continue to be subject to the terms
and conditions of the Note, including the No-Prepayment Period and the
Prepayment Premium described therein. If an Event of Default exists, the use of
the Proceeds shall be governed by Section 3.08 below. If, however, an event
exists which with notice, the passage of time, or both, could become an Event of
Default, the remaining balance in the Escrow Fund shall be held by the escrow
agent pending cure of the event prior to the expiration of any applicable cure
or grace period.
1.06 TAXES, LIENS AND OTHER ITEMS
(A) Mortgagor shall pay any and all taxes, bonds, assessments, fees,
liens, charges, fines, and any accrued interest or penalty thereon, and any and
all other items which are attributable to or affect the Property (collectively,
"Impositions") by making payment prior to delinquency directly to the payee
thereof and promptly furnish copies of paid receipts for these to Mortgagee.
Mortgagor shall promptly discharge or bond any lien or encumbrance on the
Property whether or not said lien or encumbrance has or may attain priority over
this Mortgage. This Mortgage shall be the sole encumbrance on the Property and,
if with the consent of Mortgagee it is not the sole encumbrance, then it shall
be prior to any and all other liens or encumbrances on the Property. Mortgagor
may in good faith and with due diligence protest the payment of any Imposition
which it believes unwarranted or excessive and may defer payment of such
Imposition pending conclusion of such contest if legally permitted to do so,
provided that the priority of this Mortgage and Mortgagee's security is not
adversely affected and that Mortgagor shall have furnished Mortgagee or the
taxing authority such security as may be required.
(B) As further security for the payment of the Note and the payment of
real estate taxes, regular or special assessments and insurance premiums,
Mortgagor shall deposit 1/12 of the annual amounts of such items as estimated by
Mortgagee, with each monthly payment on the Note, so that Mortgagee will hold a
sufficient amount to pay all such charges not less than thirty (30) days prior
to the date on which such items become due and payable. Mortgagee shall be
furnished evidence to allow it to estimate such amounts, including paid receipts
or annual insurance premium statements, assessment notices and tax receipts. All
funds so deposited shall, until applied to the payment of the aforesaid items,
as hereinafter provided, be held by Mortgagee without interest (except to the
extent required under applicable law) and may be commingled with other funds of
Mortgagee. All funds so deposited shall be applied to the payment of the
aforesaid items only upon the satisfaction of the following conditions: (i) no
Event of Default or event, which with notice or the passage of time or both
could become an Event of Default, shall have occurred; (ii) Mortgagee shall have
sufficient funds to pay the full amounts of such items (which funds may include
amounts paid solely for such purpose by Mortgagor in addition to the escrowed
funds); and (iii) Mortgagor shall have furnished Mortgagee with prior written
notification that such items are due and with the bills and invoices
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therefor in sufficient time to pay the same before any penalty or interest
attaches and before policies of insurance lapse, as the case may be, and shall
have deposited any additional funds as Mortgagee may determine as necessary to
pay such items.
(C) Mortgagee expressly disclaims any obligation to pay the aforesaid
items unless and until Mortgagor complies with all of the provisions set forth
in subsections 1.06(A) and (B). Mortgagor hereby pledges and grants a security
interest in any and all monies now or hereafter deposited pursuant to subsection
1.06(B) as additional security for the Note and Related Agreements. If any Event
of Default shall have occurred, or if the Note shall be accelerated as herein
provided, all funds so deposited may, at Mortgagee's option, be applied as
determined solely by Mortgagee or to cure said Event of Default or as provided
in this section 1.06. In no event shall Mortgagor claim any credit against the
principal and interest due hereunder for any payment or deposit for any of the
aforesaid items.
1.07 ASSIGNMENT OF LEASES, CONTRACTS, RENTS AND PROFITS
(A) Mortgagor hereby absolutely, presently and unconditionally grants,
assigns, transfers, conveys and sets over to Mortgagee, subject to all of the
terms, covenants and conditions set forth herein, all of Mortgagor's right,
title and interest in and to the following whether arising under the Leases (as
hereinafter defined), by statute, at law, in equity, or in any other way:
(1) All of the leases of the Property which are in effect on the
date hereof and all leases entered into or in effect from time to time after the
date hereof, including, without limitation, all amendments, extensions,
replacements, modifications and renewals thereof and all subleases, concession
agreements, and all other agreements affecting the same (the "Leases") and all
guaranties thereunder;
(2) All of the rents, income, profits, revenue, security deposits,
judgments, Proceeds, unearned insurance premiums, all termination and/or
cancellation payments received by Mortgagor in connection with any Lease,
proceeds from the surrender, sale or other disposition of any Lease, any other
fees or sums payable to Mortgagor or any other person as landlord and any award
or payment in connection with any enforcement action of any Lease, including,
without limitation, any award to Mortgagor made hereafter in any court involving
any of the tenants under the Leases in any bankruptcy, insolvency, or
reorganization proceeding in any state or federal court, and Mortgagor's right
to appear in any action and/or to collect any such award or payment, and all
payments by any tenant in lieu of rent (collectively, "Rents and Profits"); and
(3) All contracts, agreements, management, operating and maintenance
agreements, warranties, licenses, permits, guaranties and sales contracts
relating to the Property and the Collateral entered into by, or inuring to the
benefit of, Mortgagor (the "Contracts").
(B) Notwithstanding the provisions of subsection 1.07(A), so long as no
Event of Default has occurred, and, subject to subsection 1.07(F)and Article
III, Mortgagor shall have a license to manage the Property; to collect, receive
and use all Rents and Profits in accordance with the terms of the Leases; to let
the Property subject to the terms hereof and to take all actions which a
reasonable and prudent landlord would take in enforcing the provisions of the
Leases and Contracts; provided, however, that all amounts so collected shall be
applied toward operating expenses, real estate taxes and insurance relating to
the Property, capital repair items necessary to the operation of the Property,
and the payment of sums due and owing under the Note and this Mortgage. From and
after the occurrence of an Event of Default (whether or not Mortgagee shall have
exercised Mortgagee's option to declare the Note immediately due and payable),
such license shall be automatically revoked without any action required by
Mortgagee. Any amounts received by Mortgagor or its agents in the performance of
any acts prohibited by the terms of this Mortgage, including but not limited to
any amounts received in connection with any cancellation, modification or
amendment of any of the Leases prohibited by the terms of this Mortgage and any
amounts received by Mortgagor as rents, income, issues or profits from the
Property from and after the occurrence of an Event of Default under this
Mortgage, the Note, or any of the other Related Agreements, shall be held by
Mortgagor as trustee for Mortgagee and all such amounts shall be accounted for
to Mortgagee and shall not be commingled with other funds of the Mortgagor. Any
person acquiring or receiving all or any portion of such trust funds shall
acquire or receive the same in trust for Mortgagee as if such person had actual
or constructive notice that such funds were impressed with a trust in accordance
herewith.
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(C) Upon the occurrence of an Event of Default, the Mortgagee shall have
the right but not the obligation to perform as landlord under the Leases and as
a party under the Contracts. The assignment of Rents and Profits set forth
herein constitutes an irrevocable direction and authorization to all tenants
under the Leases to pay all Rents and Profits to Mortgagee upon demand and
without further consent or other action by Mortgagor. Mortgagor irrevocably
appoints Mortgagee its true and lawful attorney, at the option of Mortgagee at
any time, to demand, receive and enforce payment, to give receipts, releases and
satisfactions, and to xxx, either in the name of Mortgagor or in the name of
Mortgagee, for all such Rents and Profits and apply the same to the indebtedness
secured by this Mortgage.
(D) Neither the foregoing assignment of Rents and Profits, Leases and
Contracts to Mortgagee nor the exercise by Mortgagee of any of its rights or
remedies under Article III shall be deemed to make Mortgagee a
"mortgagee-in-possession" or otherwise liable in any manner with respect to the
Property, unless Mortgagee, in person or by agent, assumes actual possession
thereof. Nor shall appointment of a receiver for the Property by any court at
the request of Mortgagee or by agreement with Mortgagor, or the entering into
possession of the Property by such receiver, be deemed to make Mortgagee a
"mortgagee-in-possession" or otherwise liable in any manner with respect to the
Property.
(E) In the event Mortgagee collects and receives any Rents and Profits
under this section 1.07 pursuant to any Monetary or Performance Default as
defined in section 2.01 hereof, such collection or receipt shall in no way
constitute a curing of the Monetary or Performance Default.
(F) Mortgagor shall not, without the prior written consent of Mortgagee,
(i) enter into any lease, extend or renew any Lease (other than extensions or
renewals in accordance with the terms of a lease approved by Mortgagee), or
consent to or permit the assignment or subletting of any Leases (other than
assignments or subleases in accordance with the terms of a lease approved by
Mortgagee), or amend or terminate any Lease; (ii) alter, modify, change or
terminate the terms of any guaranties of any Leases; (iii) create or permit any
lien or encumbrance which, upon foreclosure, would be superior to any such
Leases or in any other manner impair Mortgagee's rights and interest with
respect to the Rents and Profits; (iv) pledge, transfer, mortgage or otherwise
encumber or assign the Leases, the Contracts or the Rents and Profits; or (v)
collect rents more than 30 days prior to their due date. Notwithstanding the
foregoing, so long as no Event of Default has occurred hereunder, Mortgagor may
enter into Leases, extend or renew Leases, and permit the assignment or sublease
of Leases which demise 10,000 rentable square feet or less for a term of five
(5) years or less ("Non-material Leases"), provided they are on rental rates,
including rental concessions, at least equal to that charged for comparable
properties within the Property's submarket area, have been negotiated at arm's
length, and do not contain material modifications to the form of lease
previously approved by Mortgagee. Mortgagor may also amend Non-material Leases
without Mortgagee's prior written consent if, in Mortgagor's prudent business
judgment, such amendments are necessary and do not impair the value of the
Property. Mortgagee will not unreasonably withhold, condition or delay its
consent to any lease submitted to it for approval. Any lease submitted for
Mortgagee's consent which includes a right of first refusal for the Property or
an option to purchase the Property shall, at Mortgagee's option, be accompanied
by a Subordination, Nondisturbance and Attornment Agreement in Mortgagee's then
current form.
(G) Mortgagor shall promptly give notice to Mortgagee of any default
under any of the Leases meeting the criteria of a lease for which Mortgagee's
consent would have been required pursuant to paragraph 1.07(F) regardless of
whether such Leases were executed before or after the date of this Mortgage,
together with a complete copy of any notices delivered to or by the tenant as a
result of such default. Mortgagee shall have the right, but not the obligation,
to cure any default of Mortgagor under any of the Leases and all amounts
disbursed in connection with said cure shall be deemed to be indebtedness
secured hereby.
(H) Mortgagee shall have the right to reasonably approve any lease forms
used by Mortgagor for lease of space in the Property.
(I) Mortgagor hereby represents, warrants and agrees that:
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(1) Mortgagor has the right, power and capacity to make this
assignment and that no person, firm or corporation or other entity other than
Mortgagor has or will have any right, title or interest in or to the Leases or
the Rents and Profits.
(2) Mortgagor shall, at its sole cost and expense, perform and
discharge all of the obligations and undertakings of the landlord under the
Leases. Mortgagor shall enforce the performance of each obligation of the
tenants under the Leases and will appear in and prosecute or defend any action
connected with the Leases or the obligations of the tenants thereunder; in each
case utilizing Mortgagor's prudent business judgement.
(J) Mortgagee shall not be obligated to perform or discharge, nor does it
hereby undertake to perform or discharge, any obligation, duty or liability
under the Leases or under or by reason of this assignment. Mortgagor shall and
does hereby agree to indemnify Mortgagee for and to defend and hold Mortgagee
harmless from any and all liability, loss or damage which Mortgagee may or might
incur under the Leases or under or by reason of this assignment, and from any
and all claims whatsoever which may be asserted against Mortgagee by reason of
any alleged obligations or undertakings on Mortgagee's part to perform or
discharge any of the terms, covenants or agreements contained in the Leases,
except for claims due solely to Mortgagee's gross negligence or willful
misconduct. Should Mortgagee incur any liability, loss or damage under the
Leases or under or by reason of this assignment, or in the defense of any of
such claims or demands, except for claims due solely to Mortgagee's gross
negligence or willful misconduct the amount thereof, including costs, expenses
and attorneys' fees, shall be secured by this Mortgage; and Mortgagor shall
reimburse Mortgagee therefor immediately upon demand, and upon failure of
Mortgagor to do so, Mortgagee may declare all sums so secured to be immediately
due and payable.
(K) Mortgagee may take or release other security, may release
any party primarily or secondarily liable for any indebtedness secured hereby,
may grant extensions, renewals or indulgences with respect to such indebtedness,
and may apply any other security therefor held by it to the satisfaction of such
indebtedness, without prejudice to any of its rights hereunder.
(L) Nothing herein contained and no act done or omitted by Mortgagee
pursuant to the powers and rights granted it herein shall be deemed to be a
waiver by Mortgagee of its other rights and remedies under the Note and this
Mortgage, and this assignment is made and accepted without prejudice to any of
the other rights and remedies possessed by Mortgagee under the terms thereof.
The right of Mortgagee to collect said indebtedness and to enforce any other
security therefor held by it may be exercised by Mortgagee either prior to,
simultaneously with, or subsequent to any action taken by it hereunder. It is
the intent of both Mortgagor and Mortgagee that this assignment be supplementary
to, and not in substitution or derogation of, any other provision contained in
this Mortgage giving Mortgagee any interest in or rights with respect to the
Leases or Rents and Profits.
(M) Neither this assignment nor pursuit of any remedy hereunder by
Mortgagee shall cause or constitute a merger of the interests of the tenant and
the Mortgagor under any of the Leases such that any of the Leases hereby
assigned are no longer valid and binding legal obligations of the parties
executing the same.
(N) Mortgagor agrees, from time to time, to execute and deliver, upon
demand, all assignments and any and all other writings as Mortgagee may
reasonably deem necessary or desirable to carry out the purpose and intent
hereof, or to enable Mortgagee to enforce any right or rights hereunder.
1.08 DUE ON SALE OR ENCUMBRANCE Neither Mortgagor nor any principal of
Mortgagor shall, without the prior written consent of Mortgagee: (i) create,
effect, consent to, suffer to exist, assume, incur, permit (voluntarily or
involuntarily, by operation of law or otherwise) any direct or indirect
conveyance, sale, assignment, transfer, grant, lien, pledge, mortgage, security
interest or other encumbrance or disposition (each of the foregoing defined as
"Transfer") of the Property or an interest therein; (ii) be divested of its
title to the Property or any interest therein; (iii) enter into a contract to
sell or grant any option to purchase that upon execution transfers possession or
equitable title to the Property or any portion thereof prior to the payment of
the Note in accordance with its terms; (iv) enter into any lease giving the
tenant any option to purchase the Property or any portion thereof; (v) permit or
suffer any Transfer of any direct or indirect ownership interest in the
Mortgagor or any indemnitor or guarantor under this Mortgage or any Related
Agreement; (vi) permit or suffer any Transfer of any ownership interest in any
direct or indirect owner of a legal or beneficial interest in the Mortgagor
(including, without limitation its partners, members, trustees, beneficiaries or
shareholders); (vii) permit the merger, dissolution, liquidation, or
consolidation of the Mortgagor or any of the direct or indirect owners of
Mortgagor or the conversion of one type of legal entity into
31
another type of legal entity. Except as expressly consented to in writing by
Mortgagee, Mortgagor shall not incur any additional indebtedness (secured or
unsecured, direct or contingent) other than unsecured debt or trade payables
incurred in the ordinary course of business in connection with the operation of
the Property. Upon the occurrence of any of the prohibited actions specified
herein, then Mortgagee shall have the right, at its option, to declare the
indebtedness secured by this Mortgage immediately due and payable, irrespective
of the maturity date specified in the Note.
1.09 PRESERVATION AND MAINTENANCE OF PROPERTY Mortgagor shall hire competent
and responsible property managers who shall be reasonably acceptable to
Mortgagee. Mortgagor, at its sole cost and expense, shall keep the Property and
every part thereof in good condition and repair, in such a fashion that the
value and utility of the Property will not be diminished and shall promptly and
faithfully comply with and obey all laws, ordinances, rules, regulations,
requirements and orders of every duly constituted governmental authority or
agent having jurisdiction with respect to the Property. All repairs,
replacements and renewals shall be at least equal in quality to the original
Improvements. Mortgagor shall not permit or commit any waste, impairment, or
deterioration of the Property, nor commit, suffer or permit any act upon or use
of the Property in violation of law or applicable order of any governmental
authority, whether now existing or hereafter enacted, or in violation of any
covenants, conditions or restrictions affecting the Property or bring or keep
any article in the Property or cause or permit any condition to exist thereon
which would be prohibited by or invalidate the insurance coverage required to be
maintained hereunder. Mortgagor shall promptly bond or discharge any mechanics'
liens against the Property.
1.10 USE OF PROPERTY Except as may have been previously agreed in writing by
Mortgagee, Mortgagor shall continue to operate the Property for the purposes for
which it was used on the date hereof and for no other purpose. Mortgagor shall
not make or suffer any improper or offensive use of the Property or any part
thereof and will not use or permit to be used any part of the Property for any
dangerous, noxious, offensive or unlawful trade or business or for any purpose
which will reduce the value of the Property in any respect or will cause the
Property or any part thereof or interest therein to be subject to forfeiture.
Mortgagor at its expense will promptly comply with all rights of way or use,
privileges, franchises, servitudes, licenses, easements, tenements,
hereditaments and appurtenances forming a part of the Property and all
instruments relating to or evidencing the same, in each case, to the extent
compliance therewith is required of Mortgagor under the terms thereof. Mortgagor
will not take any action which results in a forfeiture or termination of the
rights afforded to Mortgagor under any such instruments and will not, without
the prior written consent of Mortgagee, amend in any material respect any of
such instruments. Mortgagor shall at all times comply with all laws affecting
the Property and comply with any instruments of record at the time in force
affecting the Property or any part thereof and shall procure, maintain and
comply with all permits, licenses, and other authorizations required for any use
of the Property or any part thereof then being made, and for the proper
erection, installation, operation and maintenance of the Improvements or any
part thereof. Mortgagor shall not initiate, join in, acquiesce in, or consent to
any change in any private restrictive covenant, zoning law or other public or
private restriction, limiting or defining the uses which may be made of the
Property or any part thereof. In furtherance of the foregoing sentence,
Mortgagor will not, by act or omission: (i) impair the integrity of the Property
as a single zoning lot separate and apart from all other premises; or (ii)
permit or suffer to permit the Property to be used by the public or any party in
such manner as might make possible a claim of adverse usage or possession or any
implied dedication or easement. If under applicable zoning provisions the use of
all or any portion of the Property is or shall become a nonconforming use,
Mortgagor will not cause or permit such nonconforming use to be discontinued or
abandoned without the express written consent of Mortgagee.
1.11 ALTERATIONS AND ADDITIONS Mortgagor shall not cause, suffer or permit:
A. Without Mortgagee's consent which shall not be unreasonably
withheld or delayed, any material alterations of the Property except (i) as
required by any law, statute, ordinance, order, rule, regulation, decree or
other requirement of the United States, the applicable state or county in which
the Property is located or any political subdivision of any of the foregoing, or
any agency, department, commission, board, court, bureau or instrumentality of
any of them ("Governmental Authority") or by any condition of any approval,
consent, registration, franchise, permit, license, variance, certificate of
occupancy or other authorization with regard to zoning, landmark, ecological,
environmental, air quality, subdivision, planning, building or land use required
by any Governmental Authority for the construction, lawful occupancy and
operation of the Property and the actual and contemplated uses thereof, or
32
(ii) as permitted or required to be made by the terms of any Leases approved by
Mortgagee (with respect to work in any space demised thereunder);
B. Any demolition or removal of any portion of the Property;
C. Any change which would increase the risk of fire or other hazard;
D. Any zoning reclassification with respect to the Property; or
E. Any unlawful use of, or nuisance to exist upon, the Property.
As used herein, the term "material alteration" shall mean any alteration,
improvement or replacement (i) the cost of which (including any related
alteration, improvement or replacement) shall exceed two percent (2%) of the
principal amount of the indebtedness secured by this Mortgage (excluding tenant
improvement work pursuant to Leases), or (ii) which materially and adversely
affects the mechanical, electrical, heating, ventilating, air-conditioning or
other building or operating systems of any of the Improvements, or materially
affects the cost of operation or maintenance of any such building or operating
systems, affects the structure or structural soundness of any of the
Improvements, or the exterior or appearance of the Property, or otherwise has a
material adverse effect on the Property including the use and/or value thereof.
1.12 OFFSET CERTIFICATES Mortgagor, within five (5) business days following
written notice, shall furnish a written statement duly acknowledged and
notarized, of all amounts due on any indebtedness secured hereby or secured by
any of the Related Agreements, whether for principal or interest on the Note or
otherwise, and stating whether, to the best of Mortgagor's knowledge, any
offsets or defenses exist against the indebtedness secured hereby and covering
such other matters with respect to any such indebtedness as Mortgagee may
reasonably require.
1.13 REIT COVENANTS Mortgagor's general partner,
Great Lakes REIT, a Maryland
real estate investment trust ("
Great Lakes REIT") is a real estate investment
trust ("REIT") for federal income tax purposes. Mortgagor covenants that
Great
Lakes REIT: (i) shall maintain such status as a REIT at all times during the
term of the loan evidenced by the Note; (ii) Mortgagor shall, upon request,
deliver to Mortgagee such information or evidence as Mortgagee may require from
time to time concerning
Great Lakes REIT's REIT status; and (iii) Mortgagor
shall immediately notify Mortgagee in writing if
Great Lakes REIT loses its REIT
status for federal income tax purposes.
Further, with regard to Great Lakes REIT's status as a REIT, at Mortgagee's
election, a breach of any of the following covenants with respect to Mortgagor
or Great Lakes REIT, if such breach shall continue for thirty (30) days or more
following written notice to Mortgagor from Mortgagee of the breach, shall
constitute an Event of Default under this Mortgage:
(i) Mortgagor shall limit its business to development, construction, management
and acquisition of commercial real estate properties, and shall otherwise
conform its real estate development, construction, acquisition and management
activities in accordance with the statement of policies effective as of the date
of this Mortgage, adopted by Mortgagor and/or the trustees or directors of Great
Lakes REIT, a copy of which has been delivered to Mortgagee.
(ii) Mortgagor covenants that Mortgagor's "Maximum Adjusted Leverage", being the
ratio of "Consolidated Total Indebtedness" to "Consolidated Assets", shall not
be greater than sixty-five percent (65%) at any time.
As used herein, the term "Consolidated Total Indebtedness" means total
liabilities as indicated on the quarterly consolidated financial statements of
Great Lakes REIT (which includes the accounts of Mortgagee).
As used herein, "Gross Asset Value" equals EBITDA for the most recent quarter as
calculated from the consolidated financial statements of Great Lakes REIT
multiplied by four. This result is then divided by .0975.
As used herein, "Consolidated Assets" equals Gross Asset Value plus cash and
cash equivalents as listed on the consolidated balance sheet of Great Lakes
REIT.
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1.14 PROTECTION OF SECURITY; COSTS AND EXPENSES
A. In addition to any other rights or remedies of Mortgagee hereunder,
under any of the Related Agreements, or in law or in equity, upon the occurrence
and during the continuance of an Event of Default (or prior thereto after notice
to Mortgagor, when possible, if Mortgagor is not paying or performing the act
itself and Mortgagee determines in its sole good faith judgment that the same is
appropriate to preserve the Property or the lien of this Mortgage or any other
collateral securing the indebtedness evidenced by the Note, either before or
after acceleration of the indebtedness) Mortgagee may, but shall not be required
to, make any payment or perform any act required to be performed by Mortgagor
hereunder or under any of the Related Agreements in any form and manner deemed
expedient to Mortgagee, including, without limitation, if applicable: (i) paying
any Impositions which remain unpaid; (ii) procuring the release, discharge,
compromise or settlement of any lien filed or otherwise asserted against the
Property which has not been discharged by Mortgagor in accordance with the
provisions of this Mortgage or any of the Related Agreements; and (iii)
obtaining insurance policies where insurance coverage was required to be
obtained hereunder and the required evidence that Mortgagor had obtained the
same has not been delivered to Mortgagee as required hereunder. Nothing herein
shall be construed to require Mortgagee to advance or expend monies for any
purpose mentioned herein, or for any other purpose.
B. Mortgagor and its property manager, if applicable, shall appear in
and defend any action or proceeding purporting to affect the security of this
Mortgage or any additional or other security for the obligations secured hereby,
or the rights or powers of the Mortgagee, and shall pay all costs and expenses
actually incurred, including, without limitation, cost of evidence of title and
actual attorneys' fees, in any such action or proceeding in which Mortgagee may
appear, and in any suit brought by Mortgagee to foreclose this Mortgage or to
enforce or establish any other rights or remedies of Mortgagee hereunder or
under any other security for the obligations secured hereby. If Mortgagor fails
to perform any of the covenants or agreements contained in this Mortgage, or if
any action or proceeding is commenced which affects Mortgagee's interest in the
Property or any part thereof, including, eminent domain, code enforcement, or
proceedings of any nature whatsoever under any federal or state law, whether now
existing or hereafter enacted or amended, relating to bankruptcy, insolvency,
arrangement, reorganization or other form of debtor relief, or to a decedent,
then Mortgagee may, but without obligation to do so and without notice to or
demand upon Mortgagor, perform such covenant or agreement and compromise any
encumbrance, charge or lien which in the judgment of Mortgagee appears to be
prior or superior hereto. Mortgagor shall further pay all expenses of Mortgagee
actually incurred (including reasonable and actual fees and disbursements of
counsel) incident to the protection or enforcement of the rights of Mortgagee
hereunder, and enforcement or collection of payment of the Note or any Future
Advance whether by judicial or nonjudicial proceedings, or in connection with
any bankruptcy, insolvency, arrangement, reorganization or other debtor relief
proceeding of Mortgagor, or otherwise.
C. Mortgagor shall pay to Mortgagee, immediately upon written notice
from Mortgagee: (i) all recordation, transfer, stamp, documentary or other fees
or or taxes levied on Mortgagee (exclusive of Mortgagee's income taxes) by
reason of the making or recording of the Note, this Mortgage or any Related
Agreement; and (ii) all intangible property taxes levied upon any holder of the
Note or Mortgagee under this Mortgage or secured party under the Related
Agreements.
Any amounts disbursed by Mortgagee pursuant to this section including, without
limitation, reasonable attorneys' fees, whether or not the indebtedness as a
result thereof shall exceed the face amount of the Note, shall be additional
indebtedness of Mortgagor secured by this Mortgage and each of the Related
Agreements as of the date of disbursement shall become immediately due and
payable on demand and shall bear interest at the Default Rate set forth in the
Note, from demand until paid. All such amounts shall be payable by Mortgagor
within fifteen (15) days following written request. Nothing contained in this
section shall be construed to require Mortgagee to incur any expense, make any
appearance, or take any other action.
1.15 MORTGAGOR'S COVENANTS RESPECTING COLLATERAL
(A) Mortgagor shall execute and deliver financing and continuation
statements covering the Collateral from time to time and in such form as
Mortgagee may require to perfect and continue the perfection of
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Mortgagee's security interest with respect to such property, and Mortgagor shall
pay all reasonable costs and expenses of any record searches for financing
statements Mortgagee may reasonably require.
(B) Without the prior written consent of Mortgagee, Mortgagor shall
not create or suffer to be created any other security interest in the
Collateral, including replacements and additions thereto.
(C) Without the prior written consent of Mortgagee or except in the
ordinary course of business, Mortgagor shall not sell, transfer or encumber any
of the Collateral, or remove any of the Collateral from the Property unless
Mortgagor shall promptly substitute and replace the property removed with
similar property of at least equivalent value on which Mortgagee shall have a
continuing security interest ranking at least equal in priority to Mortgagee's
security interest in the property removed.
(D) Mortgagor shall (i) upon reasonable notice (unless an emergency
or Event of Default exists) permit Mortgagee and its representatives to enter
upon the Property to inspect the Collateral and Mortgagor's books and records
relating to the Collateral and make extracts therefrom and to arrange for
verification of the amount of Collateral, under procedures acceptable to
Mortgagee, directly with Mortgagor's debtors or otherwise at Mortgagor's
expense; (ii) promptly notify Mortgagee of any attachment or other legal process
levied against any of the Collateral and any information received by Mortgagor
relative to the Collateral, Mortgagor's debtors or other persons obligated in
connection therewith, which may in any way affect the value of the Collateral or
the rights and remedies of Mortgagee in respect thereto; (iii) reimburse
Mortgagee within fifteen (15) days following written request for any and all
costs actually incurred, including, without limitation, reasonable and actual
attorneys' and accountants' fees, and other expenses incurred in collecting any
sums payable by Mortgagor under any obligation secured hereby, or in the
checking, handling and collection of the Collateral and the preparation and
enforcement of any agreement relating thereto; (iv) notify Mortgagee of each
location at which the Collateral is or will be kept, other than for temporary
processing, storage or similar purposes, and of any removal thereof to a new
location, including, without limitation, each office of Mortgagor at which
records relating to the Collateral are kept; (v) provide, maintain and deliver
to Mortgagee originals or certified copies of the policies of insurance and
certificates of insurance insuring the Collateral against loss or damage by such
risks and in such amounts, form and by such companies as Mortgagee may require
and with loss payable to Mortgagee, and in the event Mortgagee takes possession
of the Collateral, the insurance policy or policies and any unearned or returned
premium thereon shall at the option of Mortgagee become the sole property of
Mortgagee; and (vi) do all acts necessary to maintain, preserve and protect all
Collateral, keep all Collateral in good condition and repair and prevent any
waste or unusual or unreasonable depreciation thereof.
(E) Until Mortgagee exercises its right to collect proceeds of the
Collateral pursuant hereto, Mortgagor will collect with diligence any and all
proceeds of the Collateral. If an Event of Default exists, any proceeds received
by Mortgagor shall be held in trust for Mortgagee, and Mortgagor shall keep all
such collections separate and apart from all other funds and property so as to
be capable of identification as the property of Mortgagee and shall deliver to
Mortgagee such collections at such time as Mortgagee may request in the
identical form received, properly endorsed or assigned when required to enable
Mortgagee to complete collection thereof.
(F) Mortgagee shall have all of the rights and remedies granted to a
secured party under the Uniform Commercial Code of the state in which the
Collateral is located, as well as all other rights and remedies available at law
or in equity. During the continuance of any Event of Default hereunder or under
the Note, Mortgagee shall have the right to take possession of all or any part
of the Collateral, to receive directly or through its agent(s) collections of
proceeds of the Collateral (including notification of the persons obligated to
make payments to Mortgagor in respect of the Collateral), to release persons
liable on the Collateral and compromise disputes in connection therewith, to
exercise all rights, powers and remedies which Mortgagor would have, but for the
security agreement contained herein, to all of the Collateral and proceeds
thereof, and to do all other acts and things and execute all documents in the
name of Mortgagor or otherwise, deemed by Mortgagee as necessary, proper and
convenient in connection with the preservation, perfection or enforcement of its
rights hereunder.
(G) After any Event of Default hereunder or under the Note,
Mortgagor shall, at the request of Mortgagee, assemble and deliver the
Collateral and books and records pertaining to the Property at a place
designated by Mortgagee, and Mortgagee may, with reasonable notice to Mortgagor
(unless an emergency exists), enter onto the Property and take possession of the
Collateral. It is agreed that public or private sales, for cash or on
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credit to a wholesaler or retailer or investor, or user of collateral of the
types subject to the security agreement, or public auction, are all commercially
reasonable since differences in the sales prices generally realized in the
different kinds of sales are ordinarily offset by the differences in the costs
and credit risks of such sales. The proceeds of any sale of the Collateral shall
be applied first to the expenses of Mortgagee actually incurred in retaking,
holding, preparing for sale, or selling the Collateral or similar matters,
including reasonable and actual attorneys' fees, and then, as Mortgagee shall
solely determine.
1.16 COVENANTS REGARDING FINANCIAL STATEMENTS
(A) Mortgagor shall keep true books of record and account in which full,
true and correct entries in accordance with sound accounting practice and
principles applied on a consistent basis from year to year shall be made of all
dealings or transactions with respect to the Property.
(B) (1) Mortgagor shall deliver to Mortgagee:
(a) within ninety (90) days after the last day of each fiscal
year of the Mortgagor during the term of the Note, unaudited annual financial
reports prepared on an accrual basis, including balance sheets, income
statements and cash flow statements covering the operation of the Property, the
financial condition of Mortgagor, Mortgagor's general partners(s),
shareholder(s), member(s) and such principals of the Mortgagor as Mortgagee may
from time to time designate, for the previous fiscal year, all certified to
Mortgagee to be complete, correct and accurate by the individual, managing
general partner, manager or chief financial officer of the party whom the report
concerns; and
(b) if available, within thirty (30) days after receipt by
Mortgagor, original annual audit reports of an independent certified public
accountant prepared in accordance with generally accepted accounting principles
containing an unqualified opinion, including balance sheets, income statements
and cash flow statements covering the operation of the Property and the
financial condition of the Mortgagor, Mortgagor's general partner(s),
shareholder(s), member(s) and such principals of the Mortgagor as Mortgagee may
from time to time designate, for the previous fiscal year;
(2) If, in Mortgagee's reasonable opinion, the loan to value ratio
is then seventy-five percent (75%) or greater, Mortgagor shall also deliver,
within thirty (30) days of Mortgagee's request from time to time (but no more
often than once in each fiscal quarter of the Mortgagor during the term of the
Note), unaudited financial reports prepared on an accrual basis, including
balance sheets, income statements and cash flow statements covering the
operation of the Property and the financial condition of the Mortgagor,
Mortgagor's general partner(s), shareholder(s), member(s) and such principals of
the Mortgagor as Mortgagee may from time to time request, for the previous
fiscal quarter and a current rent roll of the Property, all certified to
Mortgagee to be complete, correct and accurate by the individual, managing
general partner or chief financial officer of the party whom the report
concerns.
(3) All reports shall include, without limitation, balance sheets
and statements of income and of partner's equity, if applicable, setting forth
in each case in comparative form the figures for the previous fiscal quarter or
year, as the case may be. The interim quarterly reports shall also include a
breakdown of all categories of revenues and expenses, and any supporting
schedules and data requested by Mortgagee. Each set of annual or quarterly
financial reports or quarterly rent rolls delivered to Mortgagee pursuant to
this section 1.16 shall also be accompanied by a certificate of the chief
financial officer or the managing general partner of Mortgagor, stating whether
any condition or event exists or has existed during the period covered by the
annual or quarterly reports which then constituted or now constitutes an Event
of Default under the Note or this Mortgage, and if any such condition or event
then existed or now exists, specifying its nature and period of existence and
what Mortgagor did or proposes to do with respect to such condition or event.
(C) In the event such statements are not in a form reasonably acceptable
to Mortgagee or Mortgagor fails to furnish such statements and reports, then
Mortgagee shall have the immediate and absolute right to audit the respective
books and records of the Property and Mortgagor at the expense of Mortgagor.
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1.17 ENVIRONMENTAL COVENANTS Mortgagor covenants:
(A) That no Hazardous Materials (as defined below) shall be installed,
used, generated, manufactured, treated, handled, refined, produced, processed,
stored or disposed of, in, on or under the Property other than Hazardous
Materials in quantities and of types reasonably and customarily associated with
general office use which have been and are stored, used and disposed of in
compliance with Hazardous Material Laws (as defined below) and the presence of
which do not require compliance with any reporting requirements under any
Hazardous Material Laws;
(B) That no activity shall be undertaken on the Property which would
cause:
(1) the Property to become a hazardous waste treatment, storage or
disposal facility under any Hazardous Material Law,
(2) a release or threatened release of Hazardous Material from the
Property in violation of any Hazardous Material Law, or
(3) the discharge of Hazardous Material into any watercourse, body
of surface or subsurface water or wetland, or the discharge into the atmosphere
of any Hazardous Material which would require a permit under any Hazardous
Material Law and for which no such permit has been issued;
(C) That no activity shall be undertaken or permitted to be undertaken,
by the Mortgagor on the Property which would result in a violation under any
Hazardous Material Law;
(D) To obtain and deliver to Mortgagee, within a reasonable time
following completion of actions required by an appropriate governmental agency,
certifications of engineers or other professionals reasonably acceptable to
Mortgagee, in form and substance satisfactory to Mortgagee, certifying that all
necessary and required actions to clean up, remove, contain, prevent and
eliminate all releases or threats of release of Hazardous Materials on or about
the Property to the levels required by the appropriate governmental agencies
have been taken and, to the knowledge of such professional, the Property is then
in compliance with applicable Hazardous Material Laws as then in effect and
applicable to such actions. For purposes of this Mortgage, "Hazardous Materials"
means and includes asbestos or any substance containing asbestos,
polychlorinated biphenyls, any explosives, radioactive materials, chemicals
known or suspected to cause cancer or reproductive toxicity, pollutants,
effluents, contaminants, emissions, infectious wastes, any petroleum or
petroleum-derived waste or product or related materials and any items defined as
hazardous, special or toxic materials, substances or waste under any Hazardous
Material Law, or any material which shall be removed from the Property pursuant
to any administrative order or enforcement proceeding or in order to place the
Property in a condition that is suitable for ordinary use. For purposes of this
Mortgage, "Hazardous Material Laws" means all federal, state and local laws
(whether under common law, statute or otherwise), ordinances, rules, regulations
and guidance documents now in force, as amended from time to time, in any way
relating to or regulating human health or safety, industrial hygiene or
environmental conditions, protection of the environment, pollution or
contamination of the air, soil, surface water or groundwater, and includes,
without limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 42 U.S.C.Section 9601, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C.Section 6901, et seq., the Clean Water Act, 33
U.S.C.Section 1251 et seq., the Clean Air Act, as amended, 42 U.S.C. Section
7401 et seq., the Occupational Safety and Health Act, 29 U.S.C. Section 651 et
seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et
seq., the Federal Water Pollution Control Act, 33 U.S.C. Section 1321 et seq.,
and the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.
1.18 FURTHER ASSURANCES Mortgagor, from time to time, will execute,
acknowledge, subscribe and deliver to or at the direction of Mortgagee such
reasonable documents and further assurances as Mortgagee may reasonably require
for the purpose of evidencing, perfecting or confirming the lien and security
interest created by this Mortgage or the security to be afforded by the Related
Agreements, or both. Without limiting the foregoing and notwithstanding anything
in this Mortgage or the Related Agreements to the contrary, Mortgagor will
defend, indemnify and hold Mortgagee harmless with respect to any suit or
proceeding in which the validity, enforceability or priority of any such lien or
security interest, or both, is endangered or contested, directly or indirectly.
If Mortgagor fails to undertake the defense of any such claim in a timely
manner, or, in Mortgagee's sole
37
determination, fails to prosecute such defense with due diligence, then
Mortgagee is authorized to take, at the sole expense of Mortgagor, all necessary
and proper action in defense of any such claim, including, without limitation,
the retention of legal counsel, the prosecution or defense of litigation and the
compromise or discharge of claims, including payment of all reasonable costs and
attorneys' and paralegals' fees. All costs, expenses and losses, if any, so
incurred by Mortgagee, including all attorneys' and paralegals' fees, regardless
of whether suit is brought, for all administrative, trial and appellate
proceedings, if any, will constitute advances by Mortgagee as provided in
section 1.14 hereinabove.
1.19 MORTGAGOR'S CONTINUED EXISTENCE Mortgagor, as constituted from time to
time, shall at all times during the term of the Loan maintain its legal
existence and qualification to do or transact business in the state in which the
Property or any of the Collateral is located.
ARTICLE II
EVENTS OF DEFAULT
Each of the following shall constitute an event of default ("Event of Default")
hereunder:
2.01 MONETARY AND PERFORMANCE DEFAULTS
(A) Failure to make any payment due under the Note or any note evidencing
a Future Advance, other than the final payment and Prepayment Premium, or to
make any payment due under this Mortgage to Mortgagee or any other party,
including without limitation, payment of escrow deposits, real estate taxes,
insurance premiums and ground rents, if any, on or before the fifth day after
such payment is due; or
(B) Failure to make the final payment or the Prepayment Premium due under
the Note or any note evidencing a Future Advance when such payment is due
whether at maturity, by reason of acceleration, as part of a prepayment or
otherwise (the defaults in (A) and (B) hereinafter "Monetary Default"); or
(C) Breach or default in any of the covenants or agreements contained in
Section 1.13 of this Mortgage; or
(D) Breach or default in the performance of any of the other covenants or
agreements of Mortgagor contained herein or in any Related Agreement
("Performance Default"), if such Performance Default shall continue for fifteen
(15) days or more after written notice to Mortgagor from Mortgagee specifying
the nature of the Performance Default; provided, however, that if such
Performance Default is of a nature that it cannot be cured within the fifteen
(15) day period, then Mortgagor shall not be in default if it commences good
faith efforts to cure the Performance Default within the fifteen (15) day
period, demonstrates continuous diligent efforts to cure the Performance Default
in a manner satisfactory to Mortgagee and, within a reasonable period, not to
exceed 180 days after original written notice of the Performance Default,
completes the cure of such Performance Default. Notwithstanding the foregoing,
if the breach or default is one which is defined as an Event of Default
elsewhere in this Article II or in the default definition of any Related
Agreement, then Mortgagor shall not be entitled to any notice or cure period
upon the occurrence of such breach or default except for such notice and cure
periods, if any, as may be expressly granted in such other defined Event of
Default.
2.02 BANKRUPTCY, INSOLVENCY, DISSOLUTION
(A) Any court of competent jurisdiction shall sign an order (i)
adjudicating Mortgagor, or any person, partnership or corporation holding an
ownership interest in Mortgagor or in any partnership or limited liability
company comprising Mortgagor, or any guarantor (which term when used in this
Mortgage shall mean guarantor of payment of the indebtedness) bankrupt or
insolvent, (ii) appointing a receiver, trustee or liquidator of the Property or
of a substantial part of the property of Mortgagor, or any person, partnership,
limited liability company or corporation holding an ownership interest in
Mortgagor, or in any partnership comprising Mortgagor, or any guarantor, or
(iii) approving a petition for, or effecting an arrangement in bankruptcy, or
any other judicial modification or alteration of the rights of Mortgagee or of
other creditors of Mortgagor, or any person, partnership, limited liability
company or corporation holding an ownership interest in Mortgagor, or in any
partnership or limited liability company comprising Mortgagor or any guarantor;
or
38
(B) Mortgagor, any person, partnership, limited liability company or
corporation holding an ownership interest in Mortgagor or in any partnership
comprising Mortgagor, shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator for it or for any of its property, (ii) as
debtor, file a voluntary petition in bankruptcy, or petition or answer seeking
reorganization or an arrangement with creditors or to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or
liquidation law or statute, or an answer admitting the material allegations of a
petition filed against it in any proceeding under such law, (iii) admit in
writing an inability to pay its debts as they mature, or (iv) make a general
assignment for the benefit of creditors; or
(C) An involuntary petition in bankruptcy is filed against Mortgagor, or
any person, partnership, limited liability company or corporation holding an
ownership interest in Mortgagor or in any partnership or limited liability
company comprising Mortgagor and the same is not vacated or stayed within thirty
(30) days of the filing date.
2.03 MISREPRESENTATION Mortgagor makes or furnishes a representation, warranty,
statement, certificate, schedule and/or report to Mortgagee in or pursuant to
this Mortgage or any of the Related Agreements which is false or misleading in
any material respect as of the date made or furnished and is not corrected
within ten (10) days following written notice from Mortgagee to Mortgagor.
2.04 DEFAULT UNDER SUBORDINATE LOANS An occurrence of a default under any loan
subordinate to this Mortgage which is not an independent default under this
Mortgage which results in the commencement of foreclosure proceedings or the
taking of any other remedial action under such subordinate loan.
2.05 BREACH OF DUE ON SALE OR ENCUMBRANCE PROVISION Any occurrence of a
prohibited Transfer under section 1.08 hereof.
ARTICLE III
REMEDIES
Upon the occurrence of any Event of Default, Mortgagee shall have the following
rights and remedies set forth in sections 3.01 through 3.08:
3.01 ACCELERATION Notwithstanding the stated maturity date in the Note, or any
note evidencing any Future Advance, Mortgagee may without notice or demand,
declare the entire principal amount of the Note and/or any Future Advances then
outstanding and accrued and unpaid interest thereon, and all other sums or
payments required thereunder including, but not limited to the Prepayment
Premium described in the Note, to be due and payable immediately.
3.02 ENTRY; APPOINTMENT OF A RECEIVER Irrespective of whether Mortgagee
exercises the option provided in section 3.01 above, Mortgagee in person or by
agent or by court-appointed receiver may, at its option, without any action on
its part being required, without in any way waiving such Event of Default, with
or without the appointment of a receiver, or an application therefor:
(A) Take possession of the Property and conduct tests of, manage or hire
a manager to manage, lease and operate the Property or any part thereof, on such
terms and for such period of time as Mortgagee may deem proper, with full power
to make, from time to time, all alterations, renovations, repairs or
replacements thereto as may seem proper to Mortgagee;
(B) With or without taking possession of the Property, collect and
receive all Rents and Profits, notify tenants under the Leases or any other
parties in possession of the Property to pay Rents and Profits directly to
Mortgagee, its agent or a court-appointed receiver and apply such Rents and
Profits to the payment of:
39
(1) all costs and expenses incident to taking and retaining
possession of the Property (including the cost of any receivership), management
and operation of the Property, keeping the Property properly insured and all
alterations, renovations, repairs and replacements to the Property;
(2) all taxes, charges, claims, assessments, and any other liens
which may be prior in lien or payment to this Mortgage or the Note, and premiums
for insurance, with interest on all such items; and
(3) the indebtedness secured hereby together with all costs and
attorney's fees, in such order or priority as to any of such items as Mortgagee
in its sole discretion may determine, any statute, law, custom or use to the
contrary notwithstanding;
(C) Exclude Mortgagor, its agents and servants, wholly from the Property;
(D) Have joint access with Mortgagor to the books, papers and accounts of
Mortgagor relating to the Property, at the expense of Mortgagor;
(E) Commence, appear in and/or defend any action or proceedings
purporting to affect the interests, rights, powers and/or duties of Mortgagee
hereunder, whether brought by or against Mortgagor or Mortgagee; and
(F) Pay, purchase, contest or compromise any claim, debt, lien, charge or
encumbrance which in the judgment of Mortgagee may affect or appear to affect
the interest of Mortgagee or the rights, powers and/or duties of Mortgagee
hereunder.
Mortgagee, as a matter of right without notice to Mortgagor or anyone claiming
under it and without regard to the then value of the Property or the interest of
Mortgagor therein, shall have the right to apply to any court having
jurisdiction to appoint a receiver or receivers to take charge of the Property
or any portion thereof. Any such receiver or receivers shall have all of the
usual and customary powers and duties of receivers in like or similar cases and
all of the powers and duties of Mortgagee in case of entry as provided
hereinabove, including without limitation, the right to collect and receive
Rents and Profits. All such Rents and Profits paid to Mortgagee or collected by
such receiver shall be applied as provided for in subparagraph 3.02(B) above.
Mortgagor for itself and any subsequent owner of the Property hereby waives any
and all defenses to the application for such receiver and hereby irrevocably
consents to such appointment without notice of any application therefore.
The receipt by Mortgagee of any Rents and Profits pursuant to this Mortgage
after the institution of foreclosure or other proceedings under the Mortgage
shall not cure any such Event of Default or affect such proceedings or any sale
pursuant thereto. After deducting the expenses and amounts set forth above in
this section 3.02, as well as just and reasonable compensation for all
Mortgagee's employees and other agents (including, without limitation,
reasonable and actual attorneys' fees and management and rental commissions)
engaged and employed, the moneys remaining, at the option of Mortgagee, may be
applied to the indebtedness secured hereby. Whenever all amounts due on the Note
and under this Mortgage shall have been paid and all Events of Default have been
cured and any such cure has been accepted by Mortgagee, Mortgagee shall
surrender possession to Mortgagor. The same right of entry, however, shall exist
if any subsequent Event of Default shall occur; provided, however, Mortgagee
shall not be under any obligation to make any of the payments or do any of the
acts referred to in this section 3.02.
In addition to any provision of this Mortgage authorizing Mortgagee to take or
be placed in possession of the Property, or for the appointment of a receiver,
Mortgagee shall have the right, in accordance with Sections 5/15-1701 and
5/15-1702 of the Act, to be placed in possession of the Property or at its
request to have a receiver appointed, and such receiver, or Mortgagee, if and
when placed in possession, shall have, in addition to any other powers provided
in this Mortgage, all rights, powers, immunities, and duties as provided for in
Sections 5/15-1701 and 5/15-1703 of the Act.
3.03 JUDICIAL ACTION Mortgagee may bring an action in any court of competent
jurisdiction to foreclose this Mortgage or to enforce any of the covenants and
agreements hereof. The Property may be foreclosed in parts or as an entirety.
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3.04 FORECLOSURE Mortgagee may institute an action of mortgage foreclosure
against the Property, or take such other action at law or in equity for the
enforcement of this Mortgage and realization on the Property or any other
security herein or elsewhere provided for, as the law may allow, and may proceed
therein to final judgment and execution for the entire unpaid balance of the
principal debt and any prepayment premium, with interest thereon at the rate
stipulated in the Note to the date of default, and thereafter at the Default
Rate specified in the Note, together with all other sums due by Mortgagor in
accordance with the provisions of the Note and this Mortgage, including any sums
which may have been advanced or loaned by Mortgagee to Mortgagor after the date
of this Mortgage, including Future Advances, and all sums which may have been
advanced by Mortgagee for taxes, water or sewer rents, charges or claims,
payments on prior liens, insurance, utilities or repairs to the Property, all
costs of suit, together with interest at the Default Rate on any judgment
obtained by Mortgagee from and after the date of any sheriff or other judicial
sale until actual payment is made of the full amount due Mortgagee. In addition,
as an alternative to the right of foreclosure for the full amount secured hereby
after acceleration thereof, Mortgagee shall have the right, to the extent
permitted by law, to institute partial foreclosure proceedings with respect to
the portion of said indebtedness so in default, as if under a full foreclosure,
and without declaring the entire secured indebtedness due, and provided that if
foreclosure sale is made because of default of a part of the secured
indebtedness, such sale may be made subject to the continuing lien of this
Mortgage for the unmatured part of the secured indebtedness, and it is agreed
that such sale pursuant to a partial foreclosure, if so made, shall not in any
manner affect the unmatured part of the secured indebtedness, but as to such
unmatured part, this Mortgage and the lien thereof shall remain in full force
and effect just as though no foreclosure sale had been made under the provisions
of this section. Notwithstanding the filing of any partial foreclosure or entry
of a decree of sale therein, Mortgagee may elect at any time prior to a
foreclosure sale pursuant to such decree, to discontinue such partial
foreclosure and to accelerate the secured indebtedness by reason of any uncured
default or defaults upon which such partial foreclosure was predicated or by
reason of any other defaults, and proceed with full foreclosure proceedings. It
is further agreed that several foreclosure sales may be made pursuant to partial
foreclosures without exhausting the right of full or partial foreclosure sale
for any unmatured part of the secured indebtedness, it being the purpose to
provide for a partial foreclosure sale of the secured indebtedness without
exhausting the power to foreclose and to sell the Property pursuant to any such
partial foreclosure for any part of the secured indebtedness whether matured at
the time or subsequently maturing, and without exhausting any right of
acceleration and full foreclosure.
All advances, disbursements and expenditures made or incurred by Mortgagee
before and during a foreclosure, and before and after judgment of foreclosure,
and at any time prior to sale, and, where applicable, after sale, and during the
pendency of any related proceedings, for the following purposes, in addition to
those otherwise authorized by this Mortgage (collectively "Protective
Advances"), shall be deemed secured by the lien of this Mortgage and shall have
the same priority as the indebtedness evidenced by the Note, including as
follows:
(a) all advances by Mortgagee in accordance with the terms of this
Mortgage to: (i) preserve, maintain, repair, restore or rebuild the improvements
upon the Property; (ii) preserve the lien of the Mortgage or the priority
thereof; or (iii) enforce this Mortgage, as referred to in Section 5/15-1302
(b)(5) of the Act;
(b) payments by Mortgagee of: (i) principal, interest, or other
obligations in accordance with the terms of any senior mortgage or other prior
lien or encumbrance; (ii) real estate taxes and assessments, general and special
and all other taxes and assessments of any kind or nature whatsoever which are
assessed or imposed upon the Property or any part thereof; (iii) other
obligations authorized by this Mortgage; or (iv) with court approval, any other
amounts in connection with other liens, encumbrances or interests reasonably
necessary to preserve the status of title as referred to in Section 5/15-1505 of
the Act;
(c) advances by Mortgagee in settlement or compromise of any claims
asserted by claimants under senior mortgages or any other prior liens;
(d) reasonable and actual attorneys' fees and other costs incurred: (i)
in connection with the foreclosure of this Mortgage as referred to in Sections
5/15-1504(d)(2) and 5/15-1510 of the Act; (ii) in connection with any action,
suit or proceeding brought by or against Mortgagee for the enforcement of this
Mortgage or arising from the interest of Mortgagee hereunder; or (iii) in
preparation for or in connection with the commencement, prosecution or defense
of any other action related to the Mortgage or the Property;
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(e) Mortgagee's fees and costs, including reasonable and actual
attorneys'fees, arising between the entry of judgment of foreclosure and the
confirmation hearing as referred to in Section 5/15-1508(b)(1) of the Act;
(f) expenses deductible from proceeds of sale as referred to in Sections
5/15-1512(a) and (b) of the Act; and
(g) expenses incurred and expenditures made by Mortgagee for any one or
more of the following: (i) if the Property or any portion thereof constitutes
one or more units under a condominium declaration, assessments imposed upon the
unit owner thereof; (ii) if Mortgagor's interest in the Property is a leasehold
estate under a lease or sublease, rentals or other payments required to be made
by the lessee under the terms of the lease or sublease; (iii) premiums for
casualty and liability insurance paid by Mortgagee whether or not Mortgagee or a
receiver is in possession, if reasonably required, in reasonable amounts, and
all renewals thereof, without regard to the limitation to maintaining of
existing insurance in effect at the time any receiver or mortgagee takes
possession of the Property imposed by Section 5/15-1704(c)(1) of the Act; (iv)
repair or restoration of damage or destruction in excess of available insurance
proceeds or condemnation awards; (v) payments deemed by Mortgagee to be required
for the benefit of the Property or required to be made by the owner of the
Property under any grant or declaration of easement, easement agreement,
agreement with any adjoining land owners or instruments creating covenants or
restrictions for the benefit of or affecting the Property; (vi) shared or common
expense assessments payable to any association or corporation in which the owner
of the Property is a member or in any way affecting the Property; (vii) if the
loan secured hereby is a construction loan, costs incurred by Mortgagee for
demolition, preparation for and completion of construction, as may be authorized
by the applicable commitment, loan agreement or other agreement; and (viii)
payments required to be paid by Mortgagor or Mortgagee pursuant to any lease or
other agreement for occupancy of the Property.
All Protective Advances shall be so much additional indebtedness secured by this
Mortgage, and shall become immediately due and payable without notice and with
interest thereon from the date of the advances until paid at the rate of
interest payable after default under the terms of the Note.
This Mortgage shall be a lien for all Protective Advances as to subsequent
purchasers and judgment creditors from the time this Mortgage is recorded
pursuant to Section 5/15-1302(b)(5) of the Act.
All Protective Advances shall, except to the extent, if any, that any of the
same is clearly contrary to or inconsistent with the provisions of the Act,
apply to and be included in:
(a) any determination of the amount of indebtedness secured by this
Mortgage at any time;
(b) the indebtedness found due and owing to the Mortgagee in the judgment
of foreclosure and any subsequent supplemental judgments, orders, adjudications
or findings by the court of any additional indebtedness become due after such
entry of judgment, it being agreed that in any foreclosure judgment, the court
may reserve jurisdiction for such purpose;
(c) if right of redemption has not been waived by this Mortgage,
computation of amounts required to redeem pursuant to Sections 5/15-1603(d)(2)
and 5/15-1603(e) of the Act;
(d) determination of amounts deductible from sale proceeds pursuant to
Section 5/15-1512 of the Act;
(e) application of income in the hands of any receiver or mortgagee in
possession; and
(f) computation of any deficiency judgment pursuant to Sections
5/15-1508(b)(2), 5/15-1508(e) and 5/15-1511 of the Act.
3.05 RESCISSION OF NOTICE OF DEFAULT Mortgagee, from time to time before sale
or deed in lieu of foreclosure, may rescind any such notice of breach or default
and of election to cause the Property to be sold by executing and delivering to
a written notice of such rescission, which notice shall also constitute a
cancellation of any prior declaration of default and demand for sale or such
documents as may be required by the laws of the state in which the Property is
located to effect such rescission. The exercise by Mortgagee of such right of
rescission shall not constitute a waiver of any breach or Event of Default then
existing or subsequently occurring, or impair the right of
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Mortgagee to execute and deliver other declarations of default and notices of
breach or default, and of election to cause the Property to be sold to satisfy
the obligations hereof, nor otherwise affect any provision, agreement, covenant
or condition of the Note and/or of this Mortgage or any of the rights,
obligations or remedies of the parties hereunder.
3.06 MORTGAGEE'S REMEDIES RESPECTING COLLATERAL Mortgagee may realize upon the
Collateral, enforce and exercise all of the Mortgagor's rights, powers,
privileges and remedies in respect of the Collateral, dispose of or otherwise
deal with the Collateral in such order as Mortgagee may in its discretion
determine, and exercise any and all other rights, powers, privileges and
remedies afforded to a secured party under the laws of the state in which the
Property is located as well as all other rights and remedies available at law or
in equity.
3.07 PROCEEDS OF SALES The proceeds of any sale made under or by virtue of this
Article III, together with all other sums which then may be held by Mortgagee
under this Mortgage, whether under the provisions of this Article III or
otherwise, shall be applied as follows:
(A) To the payment of the costs, fees and expenses of sale and of any
judicial proceedings wherein the same may be made, including the cost of
evidence of title in connection with the sale and to the payment of all
expenses, liabilities and advances made or incurred by Mortgagee under this
Mortgage, together with interest on all advances made by Mortgagee at the
interest rate applicable under the Note, but limited to any maximum rate
permitted by law to be charged by Mortgagee;
(B) To the payment of any and all sums expended by Mortgagee under the
terms hereof, not then repaid, with accrued interest at the Default Rate set
forth in the Note, and all other sums (except advances of principal and interest
thereon) required to be paid by Mortgagor pursuant to any provisions of this
Mortgage, or the Note, or any note evidencing any Future Advance, or any of the
Related Agreements, including, without limitation, all expenses, liabilities and
advances made or incurred by Mortgagee under this Mortgage or in connection with
the enforcement thereof, together with interest thereon as herein provided; and
(C) To the payment of the entire amount then due, owing or unpaid for
principal and interest upon the Note, any notes evidencing any Future Advance,
and any other obligation secured hereby, with interest on the unpaid principal
at the rate set forth therein from the date of advancement thereof until the
same is paid in full; and then
(D) The remainder, if any, to the person or persons, including Mortgagor,
legally entitled thereto.
3.08 CONDEMNATION AND INSURANCE PROCEEDS All Proceeds and any interest earned
thereon shall be paid over either by the condemning authority, insurance company
or escrow agent to Mortgagee and shall be applied first toward reimbursement of
the costs and expenses of Mortgagee (including reasonable attorneys' fees), if
any, in connection with the recovery of such Proceeds, and then shall be applied
in the sole and absolute discretion of Mortgagee and without regard to the
adequacy of its security under this Mortgage:
(A) to the payment or prepayment of all or any portion of the Note
including the Prepayment Premium described in the Note;
(B) to the reimbursement of expenses incurred by Mortgagee in connection
with the restoration of the Property; or
(C) to the performance of any of the covenants contained in this Mortgage
as Mortgagee may determine. Any prepayment of the Note or portion thereof
pursuant to Mortgagee's election under this section shall be subject to the
Prepayment Premium described in the Note.
3.09 WAIVER OF MARSHALLING, RIGHTS OF REDEMPTION, HOMESTEAD AND VALUATION
(A) Mortgagor, for itself and for all persons hereafter claiming through
or under it or who may at any time hereafter become holders of liens junior to
the lien of this Mortgage, hereby expressly waives and releases all rights to
direct the order in which any of the Property shall be sold in the event of any
sale or sales pursuant hereto
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and to have any of the Property and/or any other property now or hereafter
constituting security for any of the indebtedness secured hereby marshalled upon
any foreclosure of this Mortgage or of any other security for any of said
indebtedness.
(B) To the fullest extent permitted by law, Mortgagor, for itself and all
who may at any time claim through or under it, hereby expressly waives, releases
and renounces all rights of redemption from any foreclosure sale, all rights of
homestead, exception, monitoring reinstatements, forbearance, appraisement,
valuation, stay and all rights under any other laws which may be enacted
extending the time for or otherwise affecting enforcement or collection of the
Note, the debt evidenced thereby, or this Mortgage.
The foregoing waiver of right of redemption shall be deemed to have been made
pursuant to Section 5/15-1601 of the Act; Mortgagor hereby acknowledging that
the Property does not constitute agricultural real estate, as said term is
defined in Section 5/15-1201 of the Act or residential real estate as defined in
Section 5/15-1219 of the Act.
3.10 REMEDIES CUMULATIVE No remedy herein conferred upon or reserved to
Mortgagee is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute. No delay or omission of Mortgagee to exercise any right or power
accruing upon any Event of Default shall impair any right or power or shall be
construed to be a waiver of any Event of Default or any acquiescence therein.
Every power and remedy given by this Mortgage or Mortgagee may be exercised
separately, successively or concurrently from time to time as often as may be
deemed expedient by Mortgagee. If there exists additional security for the
performance of the obligations secured hereby, Mortgagee, at its sole option,
and without limiting or affecting any of its rights or remedies hereunder, may
exercise any of the rights and remedies to which it may be entitled hereunder
either concurrently with whatever rights and remedies it may have in connection
with such other security or in such order as it may determine. Any application
of any amounts or any portion thereof held by Mortgagee at any time as
additional security or otherwise, to any indebtedness secured hereby shall not
extend or postpone the due dates of any payments due from Mortgagor to Mortgagee
hereunder or under the Note, any Future Advance, or under any of the Related
Agreements, or change the amounts of any such payments or otherwise be construed
to cure or waive any default or notice of default hereunder or invalidate any
act done pursuant to any such default or notice.
3.11 NONRECOURSE Except as otherwise set forth in this section, the liability
of Mortgagor and the general partners of Mortgagor, if any, under the Note, this
Mortgage and the Related Agreements shall be limited to and satisfied from the
Property and the proceeds thereof, the Rents and Profits and all other income
arising therefrom, the other assets of Mortgagor arising out of the Property
which are given as collateral for the Note, and any other collateral given in
writing to Mortgagee as security for repayment of the Note (all of the foregoing
collectively referred to as the "Loan Collateral"). Notwithstanding the
preceding sentence:
(A) Mortgagee may, in accordance with the terms of the Note, this
Mortgage or any Related Agreement: (i) foreclose the lien of this Mortgage; (ii)
take appropriate action to enforce the Note, this Mortgage and the Related
Agreements to realize upon and/or protect the Loan Collateral; (iii) name
Mortgagor as a party defendant in any action brought under the Note, this
Mortgage or any Related Agreement so long as the exercise of any remedy is
limited to the Loan Collateral; (iv) pursue all of its rights and remedies
against any guarantor or surety or master tenant, whether or not such guarantor
or surety or master tenant is a partner, member or other owner of Mortgagor; (v)
pursue all of its rights and remedies against Mortgagor and the indemnitors
under that certain Environmental Indemnity Agreement of even date herewith; or
(vi) pursue all of its rights and remedies against the Guarantor under the
certain Payment Guaranty of even date herewith;
(B) Mortgagee may seek damages or other monetary relief or any other
remedy at law or in equity against Mortgagor, any general partner of Mortgagor
and the indemnitors/guarantors under that certain Nonrecourse Carveout Guaranty
of even date herewith ("Nonrecourse Guarantors") by reason of or in connection
with (i) the failure of Mortgagor to pay to Mortgagee upon demand, all Rents and
Profits of the Property to which Mortgagee is entitled pursuant to the Note,
this Mortgage or the Related Agreements following an Event of Default; (ii) any
waste of the Property or any willful act or omission by Mortgagor which damages
or materially reduces the value of the Property; (iii) the failure to apply all
Rents and Profits from the Property to the payment of operating expenses, real
estate taxes, insurance, capital repair items, and the payment of sums due and
owing under the Note, this Mortgage or the Related Agreements prior to any other
expenditure or distribution by Mortgagor; (iv) the failure to
44
account for and to turn over security deposits (and interest required by law or
agreement to be paid thereon) or prepaid rents following the occurrence of an
Event of Default under the Note, this Mortgage or any Related Agreement; (v) the
failure to timely pay real estate taxes or any regular or special assessments
affecting the Property; (vi) the failure to maintain casualty and liability
insurance as required under this Mortgage or the Related Agreements or to apply
Insurance Proceeds or Condemnation Proceeds relating to the Property or other
collateral in the manner required under applicable provisions of the Note, this
Mortgage or any Related Agreement; or (vii) any modification, termination or
cancellation of any Lease of all or any portion of the Property without
Mortgagee's prior written consent, if and to the extent such consent is required
under this Mortgage or the Related Agreements and if and to the extent such
modification, termination or cancellation has a material adverse affect on the
value of the Property;
(C) Mortgagor, any general partners of Mortgagor and the Nonrecourse
Guarantors shall become personally liable for payment of the indebtedness
evidenced by the Note and performance of all other obligations of Mortgagor
under the Note, this Mortgage and the Related Agreements upon the occurrence of
any of the following: (i) fraud or willful misrepresentation of a material fact
by Mortgagor, any general partners of Mortgagor, or the Nonrecourse Guarantors
in connection with the Note, this Mortgage or the Related Agreements or any
request for any action or consent by Mortgagee; (ii) a Transfer of any interest
in the Mortgagor or all or any portion of the Property or any interest therein
in violation of the terms of the Note, this Mortgage or any Related Agreement;
or (iii) the incurrence by Mortgagor of any indebtedness in violation of the
terms of the Note, this Mortgage or any Related Agreement (whether secured or
unsecured, direct or contingent), other than unsecured debt or routine payables
incurred in the ordinary course of business in connection with the operation of
the Property.
In addition, Mortgagor, any general partners of Mortgagor and the Nonrecourse
Guarantors shall be responsible for any costs and expenses incurred by Mortgagee
in connection with the collection of any amounts for which Mortgagor, its
general partners, if any, and the Nonrecourse Guarantors are personally liable
under this section, including attorneys' fees and expenses, court costs, filing
fees, and all other costs and expenses incurred in connection therewith.
ARTICLE IV
MISCELLANEOUS
4.01 SEVERABILITY In the event any one or more of the provisions contained in
this Mortgage shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Mortgage, but this Mortgage shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein, but only to the extent that it is invalid, illegal or
unenforceable.
4.02 CERTAIN CHARGES AND BROKERAGE FEES
(A) Mortgagor agrees to pay Mortgagee for each written statement
requested of Mortgagee as to the obligations secured hereby furnished at
Mortgagor's request. Mortgagor further agrees to pay the charges of Mortgagee
for any service rendered Mortgagor, or on its behalf, connected with this
Mortgage or the indebtedness secured hereby, including, without limitation, the
delivery to an escrow holder of a request for full or partial release or
reconveyance
of this Mortgage, transmittal to an escrow holder of moneys secured hereby,
changing its records pertaining to this Mortgage and indebtedness secured hereby
to show a new owner of the Property, and replacing an existing policy of
insurance held hereunder with another such policy.
(B) Mortgagor agrees to indemnify and hold Mortgagee harmless from any
responsibility and/or liability for the payment of any commission charge or
brokerage fees to anyone which may be payable in connection with the funding of
the loan evidenced by the Note and this Mortgage or refinancing of any prior
indebtedness, if applicable, based upon any action taken by Mortgagor. It is
understood that any such commission charge or brokerage fees shall be paid
directly by Mortgagor to the entitled parties.
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4.03 NOTICES
(A) All notices expressly provided hereunder to be given by Mortgagee to
Mortgagor and all notices, demands and other communications of any kind or
nature whatever which Mortgagor may be required or may desire to give to or
serve on Mortgagee shall be in writing and shall be (i) hand-delivered,
effective upon receipt, (ii) sent by United States Express Mail or by private
overnight courier, effective upon receipt, or (iii) served by certified mail, to
the appropriate address set forth below, or at such other place as Mortgagor or
Mortgagee as the case may be, may from time to time designate in writing by ten
(10) days prior written notice thereof. Any such notice or demand served by
certified mail, return receipt requested, shall be deposited in the United
States mail, with postage thereon fully prepaid and addressed to the party so to
be served at its address stated below or at such other address of which said
party shall have theretofore notified in writing, as provided above, the party
giving such notice. Service of any such notice or demand so made shall be deemed
effective on the day of actual delivery as shown by the addressee's return
receipt or the expiration of three (3) business days after the date of mailing,
whichever is the earlier in time. Any notice required to be given by Mortgagee
shall be equally effective if given by Mortgagee's agent, if any.
(B) Mortgagor hereby requests that any notice, demand, request or other
communication (including any notice of an Event of Default and notice of sale as
may be required by law) desired to be given or required pursuant to the terms
hereof be addressed to Mortgagor as follows:
Great Lakes REIT, L.P.
c/o Great Lakes REIT
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
With a copy to:
Great Lakes REIT
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
All notices and other communications to Mortgagee shall be addressed as follows:
Allstate Life Insurance Company
Xxxxxxxx Xxxxx Xxxxx, Xxxxx X0X
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Commercial Mortgage Loan
Servicing Manager
With a copy to:
Allstate Insurance Company
Investment Law Division
Xxxxxxxx Xxxxx Xxxxx, Xxxxx X0X
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
4.04 MORTGAGOR NOT RELEASED
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(A) Extension of the time for payment or modification of the terms of
payment of any sums secured by this Mortgage granted by Mortgagee to any
successor in interest of Mortgagor shall not operate to release, in any manner,
the liability of Mortgagor. Mortgagee shall not be required to: commence
proceedings against such successor or refuse to extend time for payment or
otherwise modify the terms of payment of the sums secured by this Mortgage, by
reason of any demand made by Mortgagor. Without affecting the liability of any
person, including Mortgagor, but subject to the terms and provisions of section
3.11, for the payment of any indebtedness secured hereby, or the legal operation
and effect of this Mortgage on the remainder of the Property for the full amount
of any such indebtedness and liability unpaid, Mortgagee empowered as follows:
Mortgagee may from time to time and without notice (i) release any person liable
for the payment of any of the indebtedness; (ii) extend the time or otherwise
alter the terms of payment of any of the indebtedness; (iii) accept additional
real or personal property of any kind as security therefor, whether evidenced by
mortgages, security agreements or any other instruments of security; or (iv)
alter, substitute or release any property securing the indebtedness.
(B) Mortgagee may, at any time, and from time to time (i) consent to the
making of any map or plan of the Property or any part thereof; (ii) join in
granting any easement or creating any restriction thereon; (iii) join in any
subordination or other agreement affecting this Mortgage or the legal operation
and effect or charge hereof; or (iv) release or reconvey, without any warranty,
all or part of the Property from the lien of this Mortgage.
4.05 INSPECTION Upon reasonable prior notice and subject to the rights of
tenants under the Leases, Mortgagee may at any reasonable time make or cause to
be made entry upon and make inspections, reappraisals, surveys, construction and
environmental testing of the Property or any part thereof in person or by agent,
and if Mortgagee has a reasonable basis to believe that Mortgagor is in breach
of any covenant of this Mortgage in regard to the Property, the cost of any such
inspection shall be borne by Mortgagor.
4.06 RELEASE OR RECONVEYANCE OR CANCELLATION Upon the payment in full of all
sums secured by this Mortgage, Mortgagee shall release this Mortgage or reconvey
the Property and shall surrender this Mortgage and all notes evidencing
indebtedness secured by this Mortgage to Mortgagor. The duly recorded release or
reconveyance of the Property shall constitute a reassignment of the Leases by
Mortgagee to Mortgagor. Mortgagor shall pay all fees of Mortgagee and costs of
recordation and any of Mortgagee's actual out of pocket costs in connection with
the release, if any. The recitals in such release or reconveyance of any matters
or facts shall be conclusive proof of the truthfulness thereof.
4.07 STATUTE OF LIMITATIONS Mortgagor hereby expressly waives and releases to
the fullest extent permitted by law, the pleading of any statute of limitations
as a defense to any and all obligations secured by this Mortgage.
4.08 INTERPRETATION Wherever used in this Mortgage, unless the context
otherwise indicates a contrary intent, or unless otherwise specifically provided
herein, the word "Mortgagor" shall mean and include both Mortgagor and any
subsequent owner or owners of the Property, and the word "Mortgagee" shall mean
and include not only the original Mortgagee hereunder but also any future owner
and holder, including pledgees, of the Note or other obligations secured hereby.
In this Mortgage, the Note and the Related Agreements, whenever the context so
requires, the masculine gender includes the feminine and/or neuter, and the
neuter includes the feminine and/or masculine, and the singular number includes
the plural. In this Mortgage, the Note and the Related Agreements, the use of
the word "including" shall not be deemed to limit the generality of the term or
clause to which it has reference, whether or not non-limiting language (such as
"without limitation," or "but not limited to," or words of similar import) is
used with reference thereto.
4.09 CAPTIONS The captions and headings of the Articles and sections of this
Mortgage, the Note and the Related Agreements are for convenience only and are
not to be used to interpret, define or limit the provisions hereof.
4.10 CONSENT The granting or withholding of consent by Mortgagee to any
transaction as required by the terms hereof shall not be deemed a waiver of the
right to require consent to future or successive transactions. Mortgagor
covenants and agrees to reimburse Mortgagee promptly on demand for all legal and
other expenses incurred by Mortgagee or its servicing agent in connection with
all requests by Mortgagor for consent or approval under this
47
Mortgage, provided, however, Mortgagee will not charge for review of Leases
submitted on the form lease most recently approved by Mortgagee.
4.11 DELEGATION TO SUBAGENTS Wherever a power of attorney is conferred upon
Mortgagee hereunder, it is understood and agreed that such power is conferred
with full power of substitution, and Mortgagee may elect in its sole discretion
to exercise such power itself or to delegate such power, or any part thereof, to
one or more subagents.
4.12 SUCCESSORS AND ASSIGNS All of the grants, obligations, covenants,
agreements, terms, provisions and conditions herein shall run with the land and
shall apply to, bind and inure to the benefit of, the heirs, administrators,
executors, legal representatives, successors and assigns of Mortgagor (but this
shall not permit any assignment prohibited hereby) and the successors,
endorsees, transferees, successors and assigns of Mortgagee. In the event
Mortgagor is composed of more than one party, the obligations, covenants,
agreements, and warranties contained herein and in the Related Agreements as
well as the obligations arising therefrom are and shall be joint and several as
to each such party.
4.13 GOVERNING LAW THIS MORTGAGE AND THE RELATED AGREEMENTS ARE INTENDED TO BE
GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED. MORTGAGOR HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY.
4.14 ILLINOIS MORTGAGE FORECLOSURE LAW
(a) In the event that any provisions in this Mortgage shall be
inconsistent with any provision of the Act, the provisions of the Act shall take
precedence over the provisions of this Mortgage, but shall not invalidate or
render unenforceable any other provision of this Mortgage that can be construed
in a manner consistent with Act.
(b) If any provision of this Mortgage shall grant to Mortgagee any rights
or remedies upon default of Mortgagor which are more limited than the rights
that would otherwise be vested in Mortgagee under the Act in the absence of said
provision, Mortgagee shall be vested with the rights granted in the Act to the
full extent permitted by law.
4.15 CHANGES IN TAXATION If, after the date of this Mortgage, any law is passed
by the state in which the Property is located or by any other governing entity,
imposing upon Mortgagee any tax against the Property, or changing in any way the
laws for the taxation of mortgages or deeds of trust or debts secured by
mortgages or deeds of trust so that an additional or substitute tax is imposed
on Mortgagee or the holder of the Note, Mortgagor shall reimburse Mortgagee for
the amount of such taxes immediately upon receipt of written notice from
Mortgagee. Provided, however, that such requirement of payment shall be
ineffective if Mortgagor is permitted by law to pay the whole of such tax in
addition to all other payments required hereunder, without any penalty or charge
thereby accruing to Mortgagee and if Mortgagor in fact pays such tax prior to
the date upon which payment is required by such notice.
4.16 MAXIMUM INTEREST RATE No provision of this Mortgage or of the Note or of
any note evidencing a Future Advance shall require the payment or permit the
collection of interest in excess of the maximum non-usurious rate permitted by
applicable law. In the event such interest does exceed the maximum legal rate,
it shall be canceled automatically to the extent that such interest exceeds the
maximum legal rate and if theretofore paid, credited on the principal
amount of the Note or, if the Note has been prepaid, then such excess shall be
rebated to Mortgagor.
4.17 TIME OF ESSENCE Time is of the essence of the obligations of Mortgagor in
this Mortgage and Related Agreements and each and every term, covenant and
condition made herein or therein by or applicable to Mortgagor.
4.18 REPRODUCTION OF DOCUMENTS This Mortgage and all documents relating
thereto, specifically excluding the Note but including, without limitation,
consents, waivers and modifications which may hereafter be executed, financial
and operating statements, certificates and other information previously or
hereafter furnished to Mortgagee, may be reproduced by Mortgagee by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process and Mortgagee may destroy any original document ("Master")
so reproduced. Mortgagor agrees and stipulates that any such reproduction is an
original and shall be admissible in evidence as the Master in
48
any judicial or administrative proceeding (whether or not the Master is in
existence and whether or not such reproduction was made or preserved by
Mortgagee in the regular course of business) and any enlargement, facsimile or
further reproduction of such a reproduction shall be no less admissible.
4.19 NO ORAL MODIFICATIONS This Mortgage may not be amended or modified orally,
but only by an agreement in writing signed by the party against whom enforcement
of any amendment or modification is sought.
4.20 MAXIMUM AMOUNT SECURED Notwithstanding any other provision of this
Mortgage, in no event shall this Mortgage secure more than Twelve Million Five
Hundred Thousand Dollars ($12,500,000).
4.21 ILLINOIS COLLATERAL PROTECTION ACT THIS IS A NOTICE GIVEN PURSUANT TO THE
ILLINOIS COLLATERAL PROTECTION ACT 815 ILCS Section 180/1 ET SEQ:
Unless you provide us with evidence of the insurance coverage required by your
agreement with us, we may purchase insurance at your expense to protect our
interest in your collateral. This insurance may, but need not, protect your
interests. The coverage that we purchase may not pay any claim that you make or
any claim that is made against you in connection with the collateral. You may
later cancel any insurance purchased by us, but only after providing us with
evidence that you have obtained insurance as required by our agreement. If we
purchase insurance for the collateral, you will be responsible for the costs of
that insurance, including interest and any other charges we may impose in
connection with the placement of the insurance, until the effective date of the
cancellation or expiration of the insurance. The costs of the insurance may be
added to your total outstanding balance or obligation. The costs of the
insurance may be more than the cost of insurance you may be able to obtain on
your own.
IN WITNESS WHEREOF, the undersigned has executed this Mortgage as of the day and
year first hereinabove written.
GREAT LAKES REIT, L.P., a Delaware limited partnership
By: GREAT LAKES REIT, a Maryland real
estate investment trust, its sole general partner
By:
--------------------------------------
49
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
I, _________________________, Notary Public in and for said county in the State
aforesaid, DO HEREBY CERTIFY THAT ___________________________________, known to
me to be the ____________________________________ of Great Lakes REIT, a
Maryland real estate investment trust, the sole general partner of Great Lakes
REIT, L.P., a Delaware limited partnership and personally known to me to be the
person whose name is subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged that he/she signed and delivered the said
instrument, pursuant to due authority as his/her free and voluntary act, and as
the free and voluntary act of said entities, for the uses and purposes set forth
therein.
GIVEN under my hand and notarial seal this _____ day of December, 2001.
-------------------------------
Notary Public
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EXHIBIT "A"
(PROPERTY DESCRIPTION)
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EXHIBIT "B"
(FIXTURE FILING)
Pursuant to the security agreement contained in this Mortgage ("Security
Agreement") and the appropriate Uniform Commercial Code ("UCC") sections in the
State in which the Fixtures are located, as amended and recodified from time to
time, this Mortgage shall constitute a Fixture Filing.
1. DESCRIPTION OF FIXTURES "Fixtures" shall include all articles of personal
property now or hereafter attached to, placed upon for an indefinite term or
used in connection with said real property, appurtenances and improvements
together with all goods and other property which are or at any time become so
related to the Property that an interest in them arises under real estate law.
2. DESCRIPTION OF COLLATERAL The Collateral, as defined in the Security
Agreement, includes, without limitation, the following items and types of
Collateral as well as certain other items and types of Collateral:
All equipment, fixtures, goods, inventory and all present and future accessions
and products thereof and thereto as defined in the UCC, now or at any time
acquired, used, or to be used for or in connection with the construction, use or
enjoyment of the Property by Mortgagor, whether in the possession of Mortgagor,
warehousemen, bailees or any other person and whether located at the Property or
elsewhere, including without limitation:
(A) all building, maintenance or service equipment; building, maintenance
or raw materials or supplies; component parts or work in process; appliances;
furnishings; machinery; and tools; and
(B) all goods and property covered by any warehouse receipts, bills of
lading and other documents evidencing any goods or other tangible personal
property of any kind (including any Collateral) in which Mortgagor now or at any
time hereafter has any interest in connection with any or all of the Property or
Collateral; and
(C) any and all products of any accessions to any such Collateral which
may exist at any time.
Part of the above described goods are or are to become Fixtures on the Property.
As used in this Exhibit to qualify the scope of Mortgagee's security interest in
any of the Collateral, the phrase "in connection with any or all of the Property
or Collateral" shall be used in its broadest and most comprehensive sense and
shall include without limitation property used or acquired (or to be used or
acquired) in connection with the improvement, development, construction, repair
or remodeling of any or all of the Property, property arising from or in
connection with the operation, use, maintenance, occupancy, sale, lease or
disposition of any or all of the Property or Collateral, property used or
acquired (or to be used or acquired) in connection with Mortgagor's performance
of any of its obligations to Mortgagee, and property acquired with any loan
proceeds. If any property is used (or to be used) for multiple or different
purposes, and one such purpose relates to any aspect of the Property or
collateral, such property shall constitute Collateral hereunder, unless
Mortgagee shall release such property from this Fixture Filing and Mortgagee's
security interest in a duly executed written instrument.
3. RELATION OF FIXTURE FILING TO MORTGAGE: Some or all of the Collateral
described in section 2 above may be or become Fixtures in which Mortgagee has a
security interest under the Security Agreement. However, nothing herein shall be
deemed to create any lien or interest in favor of the Trustee under this
Mortgage in any such Collateral which is not a fixture, and the purpose of this
Exhibit B is to create a fixture filing under the appropriate Uniform Commercial
Code sections in the State in which the Fixtures are located, as amended or
recodified from time to time. The rights, remedies and interests of Mortgagee
under this Mortgage are independent and cumulative, and there shall be no merger
of any lien hereunder with any security interest created by the Security
Agreement. Mortgagee may elect to exercise or enforce any of its rights,
remedies, or interests under this Mortgage as Mortgagee may from time to time
deem appropriate.
4. NAME AND ADDRESS OF MORTGAGEE:
Allstate Life Insurance Company
Xxxxxxxx Xxxxx Xxxxx, Xxxxx X0X
00
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Commercial Mortgage Loan Servicing Manager
5. OTHER FIXTURE FINANCING AND REMOVAL OF FIXTURES
(A) Mortgagee has not consented to any other security interest of any
other person in any Fixtures and has not disclaimed any interest in any
Fixtures; and
(B) Mortgagee has not agreed or consented to the removal of any Fixtures
from the Property, and any such consent by Mortgagor shall not be binding on
Mortgagee. Mortgagee reserves the right to prohibit the removal of any Fixtures
by any person with the legal right to remove any Fixtures from the Property
unless and until such person makes arrangements with (and satisfactory to)
Mortgagee for the payment to Mortgagee of all costs of repairing any physical
injury to the Property which may be caused by the removal of such Fixtures. Any
such payment shall be made directly to Mortgagee at its request, and Mortgagee
may hold such payment as additional collateral under this Mortgage. Failure by
Mortgagor to cause the delivery to Mortgagee of any such payment shall
constitute both: (i) waste under (and breach of) this Mortgage; and (ii)
conversion of Collateral under (and a breach of) the Security Agreement.
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