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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) December 31, 1997
(December 18, 1997)
GLIMCHER REALTY TRUST
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Maryland 1-12482 31-1578002
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(STATE OR OTHER JURISDICTION OF (COMMISSION (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) FILE NUMBER) IDENTIFICATION NO.)
20 South Third Street, Columbus, Ohio 43215
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code (614) 621-9000
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On December 18, 1997, Glimcher University Mall Limited Partnership,
a Delaware limited partnership of which the corporate general partner is a
wholly owned subsidiary of Glimcher Realty Trust (the "Company") and of which
the sole limited partner is Glimcher Properties Limited Partnership, acquired
University Mall (the "Property") from University Square Partners. The Property
is located in Tampa, Florida and contains approximately 1.3 million square feet
of gross leasable area. The purchase price for the Property was $121.0 million
and was paid in cash. The funds to pay the purchase price were obtained from the
proceeds of (i) a loan of approximately $64.9 million made by Nomura Asset
Capital Corporation secured by a first mortgage lien on the Property having an
interest rate on the borrowing of approximately 8.23% with a maturity in
December, 2025 (ii) a buy up payment from Nomura of $6.5 million which reduces
the effective interest rate on the borrowing to 7.09% and (iii) the borrowing of
approximately $49.6 million under the Operating Partnership's credit facility
which currently bears interest at a rate of LIBOR plus 170 basis points per
annum.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) and (b) Financial Statements of Businesses Acquired and Pro Forma Financial
Information
The purchase price for the Property exceeds ten percent (10%) of
the assets of the Company. Audited financial statements relative to the Property
and pro forma condensed financial information reflecting the acquisition of the
Property will be filed by the Company under cover of Form 8-K/A as soon as
practicable, but not later than February 27, 1998.
(c) Exhibits.
10.1 Promissory Note dated as of December 17, 1997 issued by Glimcher
University Mall Limited Partnership in the amount of sixty four million eight
hundred ninety eight thousand five hundred forty six dollars ($64,898,546.00).
10.2 Mortgage, assignment of rents, security agreement and fixture
filing by Glimcher University Mall Limited Partnership to Nomura Asset Capital
Corporation dated as of December 17, 1997.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date: December 31, 1997
GLIMCHER REALTY TRUST
By: /s/ William G. Cornely
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William G. Cornely,
Senior Vice President and
Chief Financial Officer
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GLIMCHER REALTY TRUST
INDEX TO EXHIBITS
EXHIBITS
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10.1 Promissory Note dated as of December 17, 1997 issued by Glimcher
University Mall Limited Partnership in the amount of sixty four million eight
hundred ninety eight thousand five hundred forty six dollars ($64,898,546.00).
10.2 Mortgage, assignment of rents, security agreement and fixture
filing by Glimcher University Mall Limited Partnership to Nomura Asset Capital
Corporation dated as of December 17, 1997.
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Exhibit 10.1
PROMISSORY NOTE
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$64,898,546.00 December 17, 1997
FOR VALUE RECEIVED, the undersigned, GLIMCHER UNIVERSITY MALL
LIMITED PARTNERSHIP, a Delaware limited partnership, with an address of 20 South
Third Street, Columbus, Ohio 43215, Attention: George A. Schmidt, Esquire,
Senior Vice President and General Counsel, Telefax Number (614) 621-9311
("MAKER"), promises to pay to the order of NOMURA ASSET CAPITAL CORPORATION, a
Delaware corporation (together with any subsequent holder of this Note, and
their respective successors and assigns, "HOLDER") at its office located at Two
World Financial Center, Building B, 21st Floor, New York, New York, 10281,
Attention: Stuart Silberberg, Vice President, Telefax Number (212) 667-1666, or
at such other address as Holder may from time to time designate in writing, the
principal sum of SIXTY-FOUR MILLION EIGHT HUNDRED NINETY-EIGHT THOUSAND FIVE
HUNDRED FORTY-SIX DOLLARS ($64,898,546.00) together with interest thereon,
Default Rate interest, Yield Maintenance Premium, if any, the Event of Default
Return-of-Fee Amount, if any, and all other sums due under and secured by the
Mortgage or by any other Loan Documents; such principal, interest, Default Rate
interest, Yield Maintenance Premium, if any, the Event of Default Return-of-Fee
Amount, if any, and other sums to be calculated and payable as provided in that
certain Loan Agreement of even date herewith between Maker and Holder (as
amended, modified and supplemented and in effect from time to time, the "LOAN
AGREEMENT"). Capitalized terms used herein without definition shall have the
meanings ascribed to such terms in the Loan Agreement.
All payments made hereunder shall be applied as provided in
SECTION 2.7 of the Loan Agreement.
The Loan Agreement provides for, among other things:
(1) a payment of interest only for the first Interest Accrual
Period on the date hereof;
(2) a monthly constant payment of $486,785.71 (which payment
is calculated by using the Initial Interest Rate and an amortization schedule of
three hundred sixty (360) months) to be made beginning on January 11, 1998, and
on the eleventh (11th) day of each and every calendar month thereafter;
PROVIDED, HOWEVER, that for purposes of making such payments hereunder, but not
for purposes of calculating interest accrual periods, if the eleventh (11th) day
of a given month is not a Business Day then the Payment Date for such month
shall be the next Business Day;
(3) a maturity date of January 11, 2028;
(4) an Initial Interest Rate of 8.233% per annum;
(5) a Revised Interest Rate equal to the greater of (x) the
sum of the Initial
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Interest Rate plus four hundred (400) basis points, or (y) as of the Optional
Prepayment Date, the sum of the Optional Prepayment Date Treasury Rate plus five
hundred twenty-five (525) basis points, such Revised Interest Rate not to exceed
the Maximum Amount;
(6) an Optional Prepayment Date of January 11, 2013;
(7) a Default Rate equal to the lesser of (i) the Maximum
Amount or (ii) the Interest Rate plus four percent (4%);
(8) the Loan cannot be voluntarily prepaid prior to the
Optional Prepayment Date; on and after the Optional Prepayment Date, (a) the
Loan may be prepaid in whole or in part and (b) SECTION 2.6 of the Loan
Agreement requires mandatory prepayment of all Excess Cash Flow;
(9) interest shall accrue on the outstanding principal balance
of the Loan and all other amounts due to Holder under the Loan Documents
commencing on the Closing Date, and such interest shall accrue (a) before the
Optional Prepayment Date, at the Initial Interest Rate and (b) on and after the
Optional Prepayment Date, at the Revised Interest Rate. Interest shall be
computed on the actual number of days elapsed in each year over a 360-day year;
and
(10) assuming that payments in the exact Base Payment amount
are made on each and every Payment Date during the term of the Loan including,
without limitation, the Base Payment that is due and payable on the Optional
Prepayment Date, the amount of principal oustanding on the Optional Prepayment
Date will be $52,357,986.
The obligations of Maker under this Note are secured by, among
other things, the following:
(1) the Mortgage; and
(2) the other Loan Documents, and Liens granted in favor of
Holder by Maker and/or encumbering or affecting the Facility.
The principal sum evidenced by this Note, together with
accrued interest, Default Rate interest, and Yield Maintenance Premium, if any,
the Event of Default Return-of-Fee Amount, if any, and all other sums due under
and secured by the Mortgage or by any other Loan Document shall become
immediately due and payable at the option of Holder upon the occurrence of any
Event of Default.
If Maker fails to make (i) the payment due on the Maturity
Date or (ii) any other payment of principal or interest, the Yield Maintenance
Premium, if any, the Event of Default Return-of-Fee Amount, if any, or other sum
due on any date on which such payment is due, all amounts due hereunder
thereafter will bear interest at the Default Rate. Maker will also pay to
Holder, after the occurrence of an Event of Default, in addition to the amount
due, all reasonable costs of collecting, securing, or attempting to collect or
secure this Note or any other Loan Document, including, without limitation,
court costs and reasonable attorneys' fees (including
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reasonable attorneys' fees on any appeal by either Maker or Holder and in any
bankruptcy proceedings).
With respect to the amounts due pursuant to this Note, Maker
waives the following:
(1) All rights of exemption of property from levy or sale
under execution or other process for the collection of debts under the
Constitution or laws of the United States or any State thereof;
(2) Demand, presentment, protest, notice of dishonor, notice
of nonpayment, notice of protest, notice of intent to accelerate, notice of
acceleration, suit against any party, diligence in collection of this Note and
in the handling of securities at any time existing in connection herewith, and
all other requirements necessary to enforce this Note except for notices
required by Governmental Authorities and notices required by the Loan Agreement;
and
(3) Any further receipt by Holder or acknowledgement by Holder
of any collateral now or hereafter deposited as security for the Loan.
It is the intention of Maker and Holder to conform strictly to
applicable usury laws. Accordingly, if the transactions contemplated hereby
would be usurious under applicable law then, in that event, notwithstanding
anything to the contrary in any agreement entered into in connection with or as
security for this Note, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under applicable law that is taken,
reserved, contracted for, charged or received under this Note or under any of
the other aforesaid agreements or otherwise in connection with this Note shall
under no circumstances exceed the maximum amount of interest allowed by
applicable law, and any excess shall be credited on account of this Note by the
holder hereof (or if this Note shall have been paid in full, refunded to Maker)
in accordance with the Loan Agreement; and (ii) in the event that maturity of
this Note is accelerated by reason of an election by the Holder resulting from
any default hereunder or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may never include
more than the maximum amount of interest allowed by applicable law, and any
interest in excess of the maximum amount of interest allowed by applicable law,
if any, provided for in this Note or otherwise shall be cancelled automatically
as of the date of such acceleration or prepayment and, if theretofore prepaid,
shall be credited on account of this Note (or if this Note shall have been paid
in full, refunded to Maker).
In determining whether or not the interest paid or payable
under any specific contingency exceeds the maximum amount allowed by applicable
law, the Holder shall, to the maximum extent permitted under applicable law (a)
exclude voluntary prepayments and the effects thereof, and (b) amortize,
prorate, allocate and spread, in equal parts, the total amount of interest
throughout the entire contemplated term of this Note so that the interest rate
is uniform throughout the entire term of this Note; provided, that if this Note
is paid and performed in full prior to the end of the full contemplated term
hereof, and if the interest received for the actual period of existence thereof
exceeds the maximum amount allowed by applicable law, Holder shall refund to
Maker the amount of such excess, and in such event, Holder shall not be subject
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to any penalties provided by any laws for contracting for, charging or receiving
interest in excess of the maximum amount allowed by applicable law.
Holder shall not by any act, delay, omission or otherwise be
deemed to have modified, amended, waived, extended, discharged or terminated any
of its rights or remedies, and no modification, amendment, waiver, extension,
discharge or termination of any kind shall be valid unless in writing and signed
by Holder and Maker. All rights and remedies of Holder under the terms of this
Note and applicable statutes or rules of law shall be cumulative, and may be
exercised successively or concurrently. Maker agrees that there are no defenses,
equities or setoffs with respect to the obligations set forth herein, and to the
extent any such defenses, equities, or setoffs may exist, the same are hereby
expressly released, forgiven, waived and forever discharged.
Wherever possible, each provision of this Note shall be
interpreted in such manner as to be effective and valid under applicable Legal
Requirements, but if any provision of this Note shall be prohibited by or
invalid under applicable Legal Requirements, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Note.
Holder may, at its option, release any Collateral given to
secure the indebtedness evidenced hereby, and no such release shall impair the
obligations of Maker to Holder.
The proceeds of this Note were disbursed from the State of New
York, which State the parties agree has a substantial relationship to the
parties and to the underlying transaction embodied hereby, and in all respects,
including, without limitation, matters of construction, validity and
performance, this Note and the obligations arising hereunder shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to contracts made and performed in such State and any applicable law
of the United States of America. To the fullest extent permitted by law, Maker
hereby unconditionally and irrevocably waives any claim to assert that the law
of any other jurisdiction governs this Note, and this Note shall be governed by
and construed in accordance with the laws of the State of New York pursuant to
ss. 5-1401 of the New York General Obligations Law.
Any legal suit, action or proceeding against Holder or Maker
arising out of or relating to this Note shall be instituted in any federal or
state court in New York, New York, pursuant to ss. 5-1402 of the New York
General Obligations Law, or in any federal or state court in the jurisdiction in
which any Collateral is located, and Maker waives any objection which it may now
or hereafter have to the laying of venue of any such suit, action or proceeding,
and Maker hereby irrevocably submits to the jurisdiction of any such court in
any suit, action or proceeding. Maker does hereby designate and appoint CT
Corporation, 1633 Broadway, New York, NY 10019 as its authorized agent to accept
and acknowledge on its behalf service of any and all process which may be served
in any such suit, action or proceeding in any such federal or state court, and
agrees that service of process upon said agent at said address (or at such other
office in New York, New York as may be designated by such agent in accordance
with the terms hereof) with copies to Maker at the address set forth in the
first paragraph of this Note and to Frost & Jacobs LLP, One Columbus, Suite
1000, 10 West Broad Street, Columbus, Ohio 43215-
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3467, Attention: John I. Cadwallader, Esquire, and written notice of said
service of Maker mailed or delivered to Maker in the manner provided in the Loan
Agreement shall be deemed in every respect effective service of process upon
Maker, in any such suit, action or proceeding. Maker (i) shall give prompt
notice to Holder of any changed address of its authorized agent hereunder, (ii)
may at any time and from time to time designate a substitute authorized agent
(which office shall be designated as the address for service of process), and
(iii) shall promptly designate such a substitute if its authorized agent ceases
to have an office or is dissolved without leaving a successor.
MAKER AND HOLDER TO THE FULLEST EXTENT THAT THEY MAY LAWFULLY
DO SO, WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY TORT ACTION, BROUGHT BY ANY PARTY HERETO WITH RESPECT TO THIS
NOTE OR THE OTHER LOAN DOCUMENTS. EACH OF MAKER AND HOLDER AGREES THAT THE OTHER
MAY FILE A COPY OF THIS WAIVER WITH ANY COURT AS WRITTEN EVIDENCE OF THE
KNOWING, VOLUNTARY AND BARGAINED AGREEMENT OF THE OTHER IRREVOCABLY TO WAIVE ITS
RIGHT TO TRIAL BY JURY, AND THAT, TO THE FULLEST EXTENT THAT IT MAY LAWFULLY DO
SO, ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN MAKER AND HOLDER SHALL INSTEAD
BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
Holder may assign all or part of its right, title and interest
in and to this Note to another Person, including without limitation, to a
trustee or servicer before or after a Securitization, and such Person shall be
entitled to exercise all or any portion of Holder's rights hereunder.
The proper amount of Florida Documentary Stamp Taxes and
Intangible Taxes have been paid in connection with the recordation of the
Mortgage.
Without limiting the applicability of the terms of any Loan
Document to this Note, this Note is and shall be subject to the exculpation
provisions of SECTION 8.14 of the Loan Agreement.
[Signature on the following page]
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IN WITNESS WHEREOF, intending to be legally bound, Maker has
caused this Promissory Note to be properly executed as of the date first above
written and has authorized this Promissory Note to be dated as of the day and
year first above written.
MAKER:
GLIMCHER UNIVERSITY MALL
LIMITED PARTNERSHIP, a
Delaware limited partnership
By: Glimcher Tampa, Inc., a
Delaware corporation,
its general partner
By: /s/ George A. Schmidt
--------------------------------
George A. Schmidt
Senior Vice President
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Pay to the order of ________________________________________________________,
a_____________________________________________________, having an address of
____________________________________________________________________________
____________________________________________________________________________
without recourse, representation or warranty.
NOMURA ASSET CAPITAL CORPORATION, a
Delaware corporation
Date: By:
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Name:
Title:
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Exhibit 10.2
THIS INSTRUMENT PREPARED BY
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Attention: Joseph B. Heil, Esquire
_________________________________________________________ SPACE ABOVE THIS LINE
FOR RECORDER'S USE
MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
by
GLIMCHER UNIVERSITY MALL LIMITED PARTNERSHIP
a Delaware limited partnership
having an address of
20 South Third Street
Columbus, Ohio 43215
(as Mortgagor)
to
NOMURA ASSET CAPITAL CORPORATION
having an address at
Two World Financial Center
Building B, 21st Floor
New York, New York 10281
(as Mortgagee)
Property: University Mall
Tampa
Hillsborough County, Florida
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MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
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THIS MORTGAGE, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE
FILING (this "MORTGAGE") is made as of December 17, 1997 by GLIMCHER UNIVERSITY
MALL LIMITED PARTNERSHIP, a Delaware limited partnership, having an address of
20 South Third Street, Columbus, Ohio 43215, Attention: George A. Schmidt,
Esquire, Senior Vice President and General Counsel, Telefax Number (614)
621-9311 ("MORTGAGOR"), in favor of NOMURA ASSET CAPITAL CORPORATION, a Delaware
corporation having an address at Two World Financial Center, Building B, 21st
Floor, New York, New York, 10281, Attention: Stuart Silberberg, Vice President,
Telefax Number (212) 667-1666 (together with its successors and assigns,
"MORTGAGEE").
RECITALS
WHEREAS, Mortgagor and Mortgagee are parties to a Loan Agreement of
even date herewith (said Loan Agreement, as modified and supplemented and in
effect from time to time, the "LOAN AGREEMENT"), which Loan Agreement provides
for a loan (the "LOAN") to be made by Mortgagee to Mortgagor. The Loan is to be
evidenced by, and repayable with interest thereon, Default Rate interest,
together with the Yield Maintenance Premium, if any, in accordance with a
promissory note, in the principal amount of $64,898,546.00 and with a maturity
date of January 11, 2028, executed and delivered to the order of Mortgagee (such
note, as modified and supplemented and in effect from time to time, the "NOTE")
and is further evidenced by the Loan Agreement which obligates Borrower to pay
the Note and to pay to Lender the Buy-Up Payment which, together with the Note
aggregate $71,375,735.00;
WHEREAS, Mortgagor contemplates that Mortgagee's interest in and to,
INTER ALIA, the Loan (or a portion thereof), the Note, this Mortgage and the
Loan Documents may be assigned by Mortgagee to another Person, including without
limitation to a trustee on behalf of security holders in connection with a
Securitization;
WHEREAS, it is a condition to the obligation of Mortgagee to extend
credit to Mortgagor pursuant to the Loan Agreement that Mortgagor execute and
deliver this Mortgage;
NOW, THEREFORE, in consideration of the making of the Loan by Mortgagee
to Mortgagor and the covenants, agreements, representations and warranties set
forth in the Loan Documents, and for the purpose of securing the following
(collectively, the "LOAN OBLIGATIONS"):
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(a) all principal (including, without limitation, any advance to
Mortgagor now or hereafter made), interest, Default Rate interest, the Yield
Maintenance Premium, if any, owing from time to time under the Note, and all
obligations owing by Mortgagor under the Loan Documents and amendments,
modifications, extensions, substitutions, exchanges and renewals of the Loan
Documents (each of which amendment, modification, extension, substitution,
exchange and renewal shall enjoy the same priority as the advance made on the
Closing Date as evidenced by the Note) and all amounts from time to time owing
by Mortgagor under this Mortgage or any of the other Loan Documents; and
(b) all covenants, agreements and other obligations of Mortgagor under
the Loan Documents;
Mortgagor hereby irrevocably grants, bargains, sells, releases, conveys,
warrants, assigns, transfers, mortgages, pledges, grants a security interest in,
sets over and confirms unto Mortgagee, its successors and assigns, to have and
to hold forever with mortgage covenants, subject to all of the terms,
conditions, covenants and agreements herein set forth, for the security and
benefit of Mortgagee and its respective successors and assigns, all Mortgagor's
interest now owned or hereafter acquired in the following described land, real
estate, leasehold estate, buildings, improvements, equipment, fixtures,
furniture, and other personal property (which together with the Security
Interest Property (as hereinafter defined) and any additional such property and
interests hereafter acquired by Mortgagor and subjected to the lien of this
Mortgage, or intended to be so, as the same may be from time to time
constituted, is hereafter referred to as the "MORTGAGED PROPERTY") to-wit:
(a) All the land located in the County and State identified in EXHIBIT
A attached hereto, as more particularly described in such EXHIBIT A (the
"LAND"), subject, however, to the Permitted Encumbrances;
(b) [Reserved]
(c) All Improvements and Equipment (the Land, Improvements and
Equipment collectively, the "FACILITY");
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(d) All Appurtenant Rights;
(e) All Rents;
(f) All Collateral; and
(g) All products and Proceeds of any of the foregoing.
AND, as additional security, Mortgagor, as debtor, hereby grants to
Mortgagee a continuing security interest in the foregoing property and in the
Collateral, and in any property as to which a security interest can be created
or perfected, now existing or hereafter coming into existence, and all
substitutions replacements, renewals and additions to and all products and
Proceeds of the foregoing (collectively, the "SECURITY INTEREST PROPERTY"). This
Mortgage is intended to be and shall be effective as a security agreement
pursuant to the UCC.
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto
Mortgagee, its successors and assigns forever, subject however to the Permitted
Encumbrances and the terms and conditions herein;
PROVIDED, HOWEVER, that these presents are upon the express condition
that, if Mortgagor shall (i) pay or cause to be paid to Mortgagee the principal,
interest, Default Rate interest, and the Yield Maintenance Premium, if any,
payable in respect to the Note, at the times and in the manner stipulated
therein and herein, all without any deduction or credit for taxes or other
similar charges paid by Mortgagor, and shall keep, perform, and observe all and
singular the covenants and promises in each of the Loan Documents and in the
Loan Agreement expressed to be kept, performed, and observed by and on the part
of Mortgagor, all without fraud or delay and (ii) comply with the provisions of
SECTION 2.11 of the Loan Agreement, then this Mortgage, and all the properties,
interests, and rights hereby granted, bargained, and sold shall cease, terminate
and be void; otherwise the same shall remain in full force and effect.
TO PROTECT THE SECURITY OF THIS MORTGAGE, MORTGAGOR HEREBY COVENANTS
AND AGREES AS FOLLOWS:
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[PAGE INTENTIONALLY LEFT BLANK]
ARTICLE I
DEFINITIONS
Section 1.1. CERTAIN DEFINED TERMS. For all purposes of this Mortgage
all capitalized terms shall have the meaning ascribed thereto in the Loan
Agreement unless defined herein, and:
"ACCOUNTS" means all of Mortgagor's "accounts," as such term is defined
in the UCC, and, to the extent not included in such definition, all rights to
payment for goods sold or leased or for services rendered arising from the
ownership or operation of the Facility and not evidenced by an Instrument,
including, without limitation, all accounts and accounts receivable arising from
the ownership or operation of the Facility, now existing or hereafter coming
into existence, and all proceeds thereof (whether cash or non cash, movable or
immovable, tangible or intangible) received from the sale, exchange, transfer,
collection or other disposition or substitution thereof.
"APPURTENANT RIGHTS" means all easements, rights-of-way, strips and
gores of land, vaults, streets, ways, alleys, passages, sewer rights, waters,
water courses, water rights, air rights, development rights and powers, and, to
the extent now or hereafter owned by Mortgagor, all minerals, flowers, shrubs,
crops, trees, timber and other emblements now or hereafter appurtenant to, or
used in connection with, or located on, under or above the Land or any part or
parcel thereof, and all ground leases, subleases, estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances,
reversions, and remainders whatsoever, in any way belonging, relating or
appertaining to the Land or any part thereof.
"COLLATERAL" means, collectively, the Accounts, Account Collateral,
Appurtenant Rights, Equipment, General Intangibles, goods, Improvements,
Instruments, Inventory, Leases, Land, Money, Permitted Investments, Permits (to
the full extent assignable), Rents, investment properties, and letters of
credit, and all Proceeds and products of any of the foregoing, all whether now
owned or hereafter acquired, and all other property which is or hereafter may
become subject to a Lien in favor of Mortgagee.
"CONDEMNATION PROCEEDS" means any and all awards, compensation
reimbursement and proceeds paid or to be paid in connection with a Taking.
"EQUIPMENT" means all of Mortgagor's "equipment," as such term is
defined in the UCC, and, to the extent not included in such definition, all
fixtures, appliances, machinery, furniture, furnishings, decorations, tools and
supplies, now owned or
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hereafter acquired by Mortgagor, including without limitation, all beds, linens,
radios, televisions, carpeting, telephones, cash registers, computers, lamps,
glassware, restaurant and kitchen equipment, and building equipment, including,
without limitation, all heating, lighting, incinerating, waste removal and power
equipment, engines, pipes, tanks, motors, conduits, switchboards, security and
alarm systems, plumbing, lifting, cleaning, fire prevention, fire extinguishing,
refrigeration, washing machines, dryers, stoves, refrigerators, ventilating, and
communications apparatus, air cooling and air conditioning apparatus,
escalators, elevators, ducts, and compressors, materials and supplies, and all
other machinery, apparatus, equipment, fixtures and fittings now owned or
hereafter acquired by Mortgagor wherever located, any portion thereof or any
appurtenances thereto, together with all additions, replacements, parts,
fittings, accessions, attachments, accessories, modifications and alterations of
any of the foregoing.
"EVENT OF DEFAULT" has the meaning provided in SECTION 5.1.
"FACILITY" has the meaning provided in the Recitals to this Mortgage.
"FEE OWNER" has the meaning set forth in Exhibit C to this Mortgage.
"GENERAL INTANGIBLES" means all of Mortgagor's "general intangibles,"
as such term is defined in the UCC, and, to the extent not included in such
definition, all intangible personal property of Mortgagor (other than Accounts,
Rents, Instruments, Inventory, Money and Permits), including, without
limitation, choses in action, settlements, judgments, contract rights, rights to
performance (including, without limitation, rights under warranties) refunds of
real estate taxes and assessments and other rights to payment of Money,
copyrights, trademarks, trade names, service marks, trade secrets, and patents,
the goodwill associated with any of the foregoing, and all applications for any
of the foregoing, in each case whether now existing or hereafter in existence.
"IMPOSITIONS" means all ground rents and all taxes (including, without
limitation, all real estate, ad valorem or value added, sales (including those
imposed on lease rentals), use, single business, gross receipts, value added,
intangible transaction privilege, privilege, license or similar taxes),
assessments (including, without limitation, to the extent not discharged prior
to the Closing Date, all assessments for public improvements or benefits,
whether or not commenced or completed within the term of this Mortgage), water,
sewer or other rents and charges, excises, levies, fees (including, without
limitation, license, permit, inspection, authorization and similar fees), and
all other governmental charges, in each case whether general or special,
ordinary or extraordinary, foreseen or unforeseen, of every character in respect
of the Facility, (including all interest and penalties thereon), which at any
time prior to, during or in
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respect of the term hereof may be assessed or imposed on or in respect of or be
a Lien upon (i) Mortgagor (including, without limitation, all income, franchise,
single business or other taxes imposed on Mortgagor for the privilege of doing
business in the jurisdiction in which the Facility, or any other Security
Interest Property is located) or Mortgagee, (ii) the Facility, or any other
Security Interest Property or any part thereof, or (iii) any occupancy,
operation, use or possession of, or sales from, or activity conducted on, or in
connection with the Facility or the leasing or use of the Facility or any part
thereof, or the acquisition or financing of the acquisition of the Facility by
Mortgagor.
"IMPROVEMENTS" means all buildings, structures and improvements of
every nature whatsoever situated on the Land on the Closing Date or thereafter,
including, without limitation, to the extent of Mortgagor's right, title or
interest therein or thereto, all gas and electric fixtures, radiators, heaters,
washing machines, dryers, refrigerators, ovens, engines and machinery, boilers,
ranges, elevators and motors, plumbing and heating fixtures, antennas, carpeting
and other floor coverings, water heaters, awnings and storm sashes, and cleaning
apparatus which are or shall be attached to the Land or said buildings,
structures or improvements.
"INSTRUMENTS" means all of Mortgagor's "instruments," as such term is
defined in the UCC, and, to the extent not included in such definition, all
instruments, chattel paper, documents or other writings obtained by Mortgagor
from or in connection with the ownership or operation of the Facility evidencing
a right to the payment of Money, including, without limitation, all notes,
drafts, acceptances, documents of title, and policies and certificates of
insurance, including but not limited to, liability, hazard, rental and credit
insurance, guarantees and securities, now or hereafter received by Mortgagor or
in which Mortgagor has or acquires an interest pertaining to the foregoing.
"INSURANCE PROCEEDS" means any and all Proceeds of any policy of
insurance required by this Mortgage to be obtained and maintained by Mortgagor.
"INSURANCE REQUIREMENTS" means all material terms of any insurance
policy required pursuant to this Mortgage and all material regulations and any
use or condition thereof, which may, at any time, be recommended by the Board of
Fire Underwriters, if any, having jurisdiction over the Mortgaged Property, or
such other body exercising similar function.
"INVENTORY" means all of Mortgagor's "inventory," as such term is
defined in the UCC, and, to the extent not included in such definition, all
goods now owned or hereafter acquired by Mortgagor intended for sale or lease,
or to be furnished under contracts of service by such Mortgagor in connection
with the Facility, including,
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without limitation, all inventories held by Mortgagor for sale or use at or from
the Facility, and all other such goods, wares, merchandise, and materials and
supplies of every nature owned by Mortgagor and all such other goods returned to
or repossessed by Mortgagor.
"LAND" has the meaning provided in the Recitals to this Mortgage.
"LEASES" means all leases and other agreements or arrangements
affecting the use or occupancy of all or any portion of the Facility now in
effect or hereafter entered into (including, without limitation, all lettings,
subleases, licenses, concessions, tenancies and other occupancy agreements
covering or encumbering all or any portion of the Facility), together with any
guarantees, supplements, amendments, modifications, extensions and renewals of
the same, and all additional remainders, reversions, and other rights and
estates appurtenant thereto.
"LOAN" has the meaning provided in the Recitals to this Mortgage.
"LOAN AGREEMENT" has the meaning provided in the Recitals to this
Mortgage.
"LOAN OBLIGATIONS" has the meaning provided in the Recitals to this
Mortgage.
"MATERIAL LEASE" means all Leases except Leases which provide for the
lease of less than twenty thousand (20,000) square feet of space in the
Facility; PROVIDED, HOWEVER, any Lease not executed on Mortgagor's standard form
of lease agreement previously approved in writing by Mortgagee in Mortgagee's
discretion, shall be a Material Lease regardless of whether such Lease provides
for the lease of less than twenty thousand (20,000) square feet of space in the
Facility
"MONEY" means all moneys, cash, rights to deposit or savings accounts,
credit card receipts, rents or other items of legal tender obtained from or for
the use in connection with the ownership or operation of the Facility.
"MORTGAGED PROPERTY" has the meaning provided in the Recitals to this
Mortgage.
"MORTGAGEE" has the meaning provided in the Recitals to this Mortgage.
"MORTGAGOR" has the meaning provided in the Recitals to this Mortgage.
"NOTE" has the meaning provided in the Recitals to this Mortgage.
"PERMITTED ENCUMBRANCES" means, with respect to the Facility,
collectively, (i) the Lien created by this Mortgage or the other Loan Documents
of record; (ii) all Liens and
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other matters disclosed in the Title Insurance Policy concerning the Facility,
or any part thereof which have been approved by Mortgagee in Mortgagee's sole
discretion; (iii) Liens, if any, for Impositions imposed by any Governmental
Authority not yet due or delinquent or being contested in good faith and by
appropriate proceedings in accordance with this Mortgage; and (iv) without
limiting the foregoing, any and all governmental, public utility and private
restrictions, covenants, reservations, easements, licenses or other agreements
of an immaterial nature which may be granted by Mortgagor after the Closing Date
and which do not materially and adversely affect (a) the ability of Mortgagor to
pay any of its obligations to any Person as and when due, (b) the marketability
of title to the Facility, (c) the fair market value of the Facility, or (d) the
use or operation of the Facility as of the Closing Date and thereafter.
"PERMITTED TRANSFERS" shall mean provided that no Event of Default has
occurred, (i) Permitted Encumbrances; (ii) all transfers of worn out or obsolete
furnishings, fixtures or equipment that are promptly replaced with property of
equivalent value and functionality; (iii) all Leases which are not Material
Leases; (iv) all Material Leases which have been approved by Mortgagee in
writing in Mortgagee's discretion; (v) transfers of Equity Interests in
Mortgagor which in the aggregate during the term of the Loan (a) do not exceed
forty-nine percent (49%) of the total interests in Mortgagor and (b) do not
result in any partner's, member's or other Person's interest in Mortgagor
exceeding forty-nine percent (49%) of the total interests in Mortgagor; and (vi)
any other transfer of Equity Interests provided that (a) prior to any
Securitization, Mortgagee shall have consented to such transfer or transfers,
after any Securitization, (i) Mortgagee shall have consented to such
transfer or transfers and (ii) the Rating Agencies shall have confirmed in
writing that such transfer or transfers shall not result in a downgrade,
withdrawal or qualification of any securities issued in connection with such
Securitization, (c) acceptable opinions relating to such transfer or transfers
shall have been delivered by Mortgagor to Mortgagee and the Rating Agencies
(including without limitation, tax and bankruptcy opinions) and (d) Mortgagor
pays all reasonable expenses incurred by Mortgagee in connection with such
transfer or transfers, limited to one percent (1.0%) of the outstanding
principal balance of the Loan, and (vii) a transfer of the Facility, provided
that prior to such transfer (a) prior to a Securitization, Mortgagee shall have
consented to such transfer, (b) after a Securitization, (i) Mortgagee shall have
consented to such transfer and (ii) the Rating Agencies shall have confirmed in
writing that such transfer shall not result in a downgrade, withdrawal or
qualification of any securities issued in connection with such Securitization,
(c) acceptable opinions relating to such transfer shall have been delivered by
Mortgagor to Mortgagee and to the Rating Agencies (including without limitation,
tax and bankruptcy opinions) then rating any securities issued in connection
with a Securitization, (d) the transferee assumes in writing all obligations of
the transferor under the Loan Documents and executes and delivers such other
documentation as may be required by Mortgagee or the Rating Agencies and (g)
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Mortgagor pays all reasonable expenses incurred by Mortgagee in connection with
such transfer, limited to one percent (1.0%) of the outstanding principal
balance of the Loan
"PERMITS" means all licenses, registrations, permits, allocations,
filings, authorizations, approvals and certificates used in connection with the
ownership, operation, construction, renovation, use or occupancy of the
Facility, including, without limitation, building permits, business licenses,
state health department licenses, food service licenses, liquor licenses,
licenses to conduct business and all such other permits, licenses and rights,
obtained from any Governmental Authority or private Person concerning the
ownership, construction, operation, renovation, use or occupancy of the
Facility.
"PROCEEDS" means all of Mortgagor's "proceeds" as such term is defined
in the UCC and, to the extent not included in such definition, all proceeds,
whether cash or non-cash, movable or immovable, tangible or intangible
(including Insurance Proceeds, Condemnation Proceeds, and proceeds of proceeds),
from the Security Interest Property, including, without limitation, those from
the sale, exchange, transfer, collection, loss, damage, disposition,
substitution or replacement of any of the Security Interest Property and all
income, gain, credit, distributions and similar items from or with respect to
the Security Interest Property.
"RENTS" means, with respect to the Facility, all rents, (whether
denoted as advance rent, minimum rent, percentage rent, additional rent or
otherwise), receipts, issues, income, royalties, profits, revenues, proceeds,
bonuses, deposits (whether denoted as security deposits or otherwise), lease
termination fees or payments, rejection damages, buy-out fees and any other fees
made or to be made in lieu of rent, any award made hereafter to Mortgagor in any
court proceeding involving any tenant, lessee, licensee or concessionaire under
any of the Leases in any bankruptcy, insolvency or reorganization proceedings in
any state or federal court, and all other payments, rights and benefits of
whatever nature from time to time due under the Leases, including, without
limitation, (i) rights to payment earned under the Leases for space in the
Improvements for the operation of ongoing businesses, such as restaurants, news
stands, barber shops, beauty shops and pharmacies, and (ii) all other income,
consideration, issues, accounts, profits or benefits of any nature arising from
the ownership, possession, use or operation of the Facility, including, without
limitation, all revenues, receipts, income, receivables and accounts relating to
or arising from rentals, rent equivalent income, income and profits from guest
rooms, meeting rooms, food and beverage facilities, vending machines, telephone
and television systems, guest laundry, and the provision or sale of other goods
and services, as well as all room rents, accounts, accounts receivable and hotel
receivables and all other payments and rights to payment of any nature
whatsoever made for or with respect to hotel room occupancy by any person, which
includes any payment or monies received or to be received in
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whole or in part, whether actual or deemed to be, for the sale of services or
products in connection with such occupancy, advance registration fees by hotel
guests, tour or junket proceeds or deposits, deposits for convention and/or
party reservations, and other benefits, and all rights to payment with respect
to conference facilities, dining or bar facilities or other facilities in any
way connected with the Facility, all rights to payment from any consumer credit
charge card organization or entity including, without limitation, payments
arising from the use of the American Express Card, Discover Card, the Visa Card,
the Carte Blanche Card, the MasterCard or any other credit card, including those
now existing or hereafter created, substitutions therefor, and proceeds thereof
(whether cash or non-cash, movable or immovable, tangible or intangible)
received from the sale, exchange, transfer, collection or other disposition or
substitution thereof, and any other items of revenue, receipts or other income
as identified in the Uniform System of Accounts for Hotels, 8th Edition,
International Association of Hospitality Accountants (1986), as amended from
time to time.
"TAKING" means a temporary or permanent taking or voluntary conveyance
of all or part of the Facility, or any interest therein or right accruing
thereto or use thereof, as the result of, or in settlement of, any condemnation
or other eminent domain proceeding by any Governmental Authority affecting the
Facility or any portion thereof whether or not the same shall have actually been
commenced.
"TRANSFER" means any conveyance, transfer (including, without
limitation, any transfer of any direct or indirect legal or beneficial interest
(including, without limitation, any profit interest) in Mortgagor or any SPE
Equity Owner), sale, Lease (including, without limitation, any amendment,
extension, modification, waiver or renewal thereof) or Lien, whether by law or
otherwise, of, on or affecting any Security Interest Property, Mortgagor or any
SPE Equity Owner, other than a Permitted Transfer.
"UCC" means the Uniform Commercial Code in effect in the jurisdiction
in which the Facility or any of the Security Interest Property is located, as
applicable.
Section 1.2. INTERPRETATION OF DEFINED TERMS.
Singular terms shall include the plural forms and vice versa, as
applicable, of the terms defined.
All references to other documents or instruments shall be deemed to
refer to such documents or instruments as they may hereafter be extended,
renewed, modified or amended, and all replacements and substitutions therefor.
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ARTICLE II
Covenants and Agreements Of Mortgagor
-------------------------------------
Section 2.1. PAYMENT OF SECURED LOAN OBLIGATIONS. Mortgagor shall pay
when due the principal, the interest, Default Rate interest, and the Yield
Maintenance Premium, if any, owing from time to time under the Note and all
charges, fees and other Loan Obligations as provided in and strictly in
accordance with the Loan Agreement, this Mortgage and the other Loan Documents.
Section 2.2. TITLE; ETC.
(a) Mortgagor represents and warrants that (i) Mortgagor owns and has
good, marketable and insurable fee simple title in and to the Facility, free and
clear of all covenants, liens, encumbrances, restrictions, easements and other
matters affecting title other than the Permitted Encumbrances, and (ii) there
are no outstanding options to purchase or rights of first refusal affecting the
Facility.
(b) Mortgagor represents and warrants that Mortgagor owns and has good
and absolute title to all existing personal property and fixtures hereby
mortgaged, or in which Mortgagor is hereby granting to Mortgagee a security
interest, subject only to the Permitted Encumbrances. The personal property and
fixtures hereby mortgaged or in which Mortgagor is hereby granting to Mortgagee
a security interest, are free and clear of all liens, charges and encumbrances
whatsoever, including, without limitation, conditional sales contracts, chattel
mortgages, security agreements, financing statements and everything of a similar
nature other than the Permitted Encumbrances.
(c) Mortgagor represents and warrants that it has the full power and
lawful authority to grant, bargain, sell, release, convey, warrant, assign,
transfer, mortgage, pledge, grant a security interest in, set over and confirm
unto Mortgagee the Mortgaged Property as hereinabove provided, and (ii) that
Mortgagor will forever defend the title to the Mortgaged Property and the
validity and priority of the lien or estate hereof against the claims and
demands of all Persons whomsoever.
Section 2.3. FURTHER ASSURANCES; FILING; RE-FILING; ETC.
(a) Mortgagor shall execute, acknowledge and deliver, from time to
time, such further instruments as Mortgagee may reasonably require to accomplish
the purposes of this Mortgage.
(b) Mortgagor, immediately upon the execution and delivery of this
Mortgage, and thereafter from time to time, shall cause this Mortgage, any
security agreement,
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mortgage, modification or amendment supplemental hereto and each document,
instrument and agreement of further assurance, to be filed, registered or
recorded and refiled, re-registered or re-recorded in such manner and in such
places as may be required by any present or future law in order to publish
notice of and perfect the lien or estate of this Mortgage upon the Mortgaged
Property and to accomplish the purposes of this Mortgage.
(c) Mortgagor shall pay all documentary stamp taxes, intangible taxes,
recording taxes, filing, registration and recording fees, all refiling,
re-registration and re-recording fees, and all expenses incident to the
execution, filing, recording and acknowledgment of this Mortgage, any security
agreement, mortgage, modification or amendment supplemental hereto and any
document, instrument and agreement of further assurance, and all federal, state,
county and municipal stamp taxes and other taxes, duties, imposts, assessments
and charges arising out of the execution, delivery, filing, registration and
recording of the Note, this Mortgage or any of the other Loan Documents, any
security agreement or mortgage supplemental hereto or any document instrument or
agreement of further assurance.
(d) In the event of the passage of any state, federal, municipal or
other governmental law, order, rule or regulation, subsequent to the date
hereof, in any manner changing or modifying the laws now in force governing the
taxation of mortgages or security agreements or debts secured thereby or the
manner of collecting such taxes so as to adversely affect Mortgagee, this
Mortgage or the lien hereof, Mortgagor will pay any such tax on or before the
due date thereof. If Mortgagor fails to make such prompt payment or if, in the
reasonable opinion of Mortgagee, any such state, federal, municipal, or other
governmental law, order, rule or regulation prohibits Mortgagor from making such
payment or would penalize Mortgagee if Mortgagor makes such payment or if, in
the opinion of Mortgagee, the making of such payment might result in the
imposition of interest beyond the Maximum Amount, then the entire balance of the
Loan Obligations shall, at the option of Mortgagee, become due and payable on
the date that is one hundred twenty (120) days after the passage of such law,
order, rule or regulation.
(e) Mortgagor hereby indemnifies and holds Mortgagee harmless from any
sales or use tax that may be imposed on Mortgagee by virtue of the Loan from
Mortgagee to Mortgagor other than taxes imposed on the income, stock or assets
of Mortgagee.
Section 2.4. LIENS. Without limiting the obligations of Mortgagor under
SECTION 2.6, Mortgagor shall not create or suffer to be created any mortgage,
deed of trust, lien, security interest, charge or encumbrance upon the Mortgaged
Property or any portion thereof, prior to, on a parity with, or subordinate to
the lien of this Mortgage other than a Permitted Encumbrance. Mortgagor shall
pay and promptly
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<PAGE> 14
discharge at Mortgagor's cost and expense, any such mortgages, deeds of trust,
liens, security interests, charges or encumbrances upon the Mortgaged Property
or any portion thereof or interest therein.
Section 2.5. INSURANCE; CASUALTY EVENTS.
(a) At all times while Mortgagor is indebted to Mortgagee, Mortgagor
shall maintain the following insurance:
(i) During any period of repair or restoration including,
without limitation, during any period of repair or restoration
necessitated by a casualty loss or a Taking, builder's "all risk"
insurance in an amount equal to not less than the full insurable value
of the Facility against such risks (including, without limitation, fire
and extended coverage and collapse of the Improvements to agreed
limits) as Mortgagee may request, in form and substance acceptable to
Mortgagee.
(ii) Insurance with respect to the Improvements, Equipment and
Inventory against any peril included within the classification "All
Risks of Physical Loss" with extended coverage in amounts at all times
sufficient to prevent Mortgagor from becoming a co-insurer within the
terms of the applicable policies, but in any event such insurance shall
be maintained in an amount equal to the full insurable value of the
Improvements, Equipment and Inventory located on the Facility. As used
herein, "full insurable value" means the actual replacement cost of the
Improvements, Equipment and Inventory (without taking into account any
depreciation), determined annually by an insurer or by Mortgagor or, at
the request of Mortgagee, by an Independent insurance broker (subject
to Mortgagee's reasonable approval) including an endorsement covering
acts of municipal authorities including increased cost of construction
and demolition;
(iii) Comprehensive general liability insurance, including
contractual injury, bodily injury, broad form death and property damage
liability, and umbrella liability insurance against any and all claims,
including all legal liability to the extent insurable imposed upon
Mortgagor and all court costs and attorneys' fees and expenses, arising
out of or connected with the possession, use, leasing, operation,
maintenance or condition of the Facility in such amounts as are
generally required by institutional lenders for properties comparable
to the Facility but in no event with limits for the Facility of less
than $1,000,000 per occurrence with combined single limit coverage for
bodily injury or property damage and excess (umbrella) liability
coverage for the Facility of no less than $30,000,000 per occurrence;
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<PAGE> 15
(iv) Statutory workers' compensation insurance;
(v) Business interruption and/or loss of "rental value"
insurance for the Facility in an amount equal to twelve (12) months
estimated Gross Revenue attributable to the Facility and based on the
Gross Revenue for the immediately preceding year and otherwise
sufficient to avoid any co-insurance penalty;
(vi) If all or any portion of the Improvements, or any portion
of the Land is located within a federally designated flood hazard zone,
flood insurance in an amount equal to the lesser of the full insurable
value of the Facility or the maximum amount of flood insurance
available;
(vii) Insurance against loss or damage from (A) leakage of
sprinkler systems and (B) explosion of steam boilers, air conditioning
equipment, pressure vessels or similar apparatus now or hereafter
installed at the Facility, in such amounts as Mortgagee may from time
to time require and which are customarily required by institutional
mortgagees with respect to similar properties similarly situated; and
(viii) Such other insurance with respect to the Improvements,
Equipment and Inventory located on the Facility against loss or damage
as requested by Mortgagee (including, without limitation,
liquor/dramshop, hurricane and earthquake insurance) provided such
insurance is of the kind for risks from time to time customarily
insured against and in such amounts as are generally required by
institutional lenders for properties comparable to the Facility or
which Mortgagee may deem necessary in its reasonable discretion.
(b) Mortgagor will maintain the insurance coverage described in SECTION
2.5 with companies acceptable to Mortgagee and with a claims paying ability of
not less than "AA" by S&P and AA or its equivalent by any one of the other
Rating Agencies. All insurers providing insurance required by this Mortgage
shall be authorized to issue insurance in the state where the Facility is
located.
The insurance coverage required under SECTION 2.5(a) may be effected
under a blanket policy or policies covering the Mortgaged Property and other
property and assets not constituting a part of the Mortgaged Property; provided
that any such blanket policy shall specify, except in the case of public
liability insurance, the portion of the total coverage of such policy that is
allocated to the Facility and the Inventory located thereon, and any sublimits
in such blanket policy applicable to the Mortgaged Property, which amounts shall
not be less than the amounts required pursuant to SECTION 2.5(a) and which shall
in any case comply in all other respects with the
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<PAGE> 16
requirements of this SECTION 2.5.
(c) All insurance policies shall be in such form and with such
endorsements and in such amounts as shall be satisfactory to Mortgagee (and
Mortgagee shall be entitled to approve amounts, form, risk coverage, loss payees
and insureds). The policy referred to in SECTION 2.5(a)(ii) shall contain a
replacement cost endorsement and a waiver of depreciation. Certified copies of
all of the above-mentioned insurance policies have been delivered to and shall
be held by Mortgagee. All such policies shall name Mortgagee as an additional
insured/loss payee, shall provide that all Insurance Proceeds be payable to
Mortgagee as set forth in SECTION 2.5(d), and shall contain: (i) "Non
Contributory Standard Lender Clause" and a Lender's Loss Payable Endorsement
(Form 438 BFUNS) or their equivalents naming Mortgagee as the person to whom all
payments shall be paid and a provision that payment of Insurance Proceeds in
excess of One Million Dollars ($1,000,000) shall be made by a check payable only
to Mortgagee (PROVIDED, HOWEVER, that nothing in this sentence shall affect the
application of such Insurance Proceeds as required by this Mortgage); (ii) a
waiver of subrogation endorsement as to Mortgagee and its assigns providing that
no policy shall be impaired or invalidated by virtue of any act, failure to act,
negligence of, or violation of declarations, warranties or conditions contained
in such policy by Mortgagor, Mortgagee or any other named insured, additional
insured or loss payee, except for the willful misconduct of Mortgagee knowingly
in violation of the conditions of such policy; (iii) an endorsement indicating
that neither Mortgagee nor Mortgagor shall be or be deemed to be a co-insurer
with respect to any risk insured by such policies and shall provide for an
aggregate deductible per loss for all policies of an amount not more than that
which is customarily maintained by prudent owners of property of the same type
and quality as the Facility, but in no event in excess of five percent (5%) of
Adjusted Net Operating Income; (iv) a provision that such policies shall not be
canceled or amended, including, without limitation, any amendment reducing the
scope or limits of coverage, without at least thirty (30) days prior written
notice to Mortgagee in each instance; and (v) effective waivers by the insurer
of all claims for insurance premiums against any loss payees, additional
insureds and named insureds (other than Mortgagor). Certificates of insurance
with respect to all renewal and replacement policies shall be delivered to
Mortgagee not less than ten (10) days prior to the expiration date of any of the
insurance policies required to be maintained hereunder which certificates shall
bear notations evidencing payment of applicable premiums and certified copies of
such insurance policies shall be delivered to Mortgagee promptly after
Mortgagor's receipt thereof. If Mortgagor fails to maintain and deliver to
Mortgagee the certified copies of the original policies or certificates of
insurance required by this Mortgage, Mortgagee may, at its option, after written
notice to Mortgagor, procure such insurance, and Mortgagor shall reimburse
Mortgagee for the amount of all premiums paid by Mortgagee thereon promptly,
after demand by Mortgagee, with interest thereon at the Default Rate from the
date paid by Mortgagee to the date of repayment, and such sum
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shall be a part of the Loan Obligations secured by this Mortgage.
Mortgagee shall not by the fact of approving, disapproving, accepting,
preventing, obtaining or 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 the
carriers' or Mortgagor's payment or defense of lawsuits, and Mortgagor hereby
expressly assumes full responsibility therefor and all liability, if any, with
respect thereto.
Mortgagor shall instruct and cause the issuer of each policy of
insurance described herein to deliver to Mortgagee all Insurance Proceeds.
(d) Mortgagee shall be entitled to receive and collect all Insurance
Proceeds in excess of One Million Dollars ($1,000,000) and all of the Insurance
Proceeds are hereby assigned to Mortgagee, and Mortgagor shall instruct and
cause the issuer of each policy of insurance described herein to deliver to
Mortgagee all Insurance Proceeds. Mortgagor shall execute such further
assignments of the Insurance Proceeds as Mortgagee may from time to time
reasonably require. Without limiting the generality of the foregoing, following
the occurrence of any casualty or damage involving the Mortgaged Property or any
part thereof, Mortgagor shall give prompt notice thereof to Mortgagee and shall
cause all Insurance Proceeds payable as a result of such casualty or damage to
be paid to Mortgagee as additional collateral security hereunder subject to the
lien of this Mortgage, to be applied by Mortgagee to the Loan Obligations.
(e) In the event of damage, destruction or a casualty with respect to
the Facility, except as provided in SECTION 2.5(F) below, Mortgagor shall cause
all Insurance Proceeds to be paid to the Mortgagee, which shall apply such
Insurance Proceeds to reduce the Indebtedness in accordance with SECTION 2.7 and
SECTION 2.8 of the Loan Agreement. All Insurance Proceeds received by Mortgagor
or Mortgagee in respect of business interruption coverage shall be deposited and
maintained in the Cash Collateral Account, to be applied by Mortgagee in the
same manner as Rents (other than security deposits); PROVIDED, HOWEVER, that if
the Insurance Proceeds of any such business interruption insurance policy are
paid in a lump sum in advance, Mortgagee shall hold such Insurance Proceeds or
Condemnation Proceeds in a segregated interest-bearing escrow account at the
Cash Collateral Account Bank, and Mortgagee shall estimate the number of months
required for Mortgagor to restore the damage caused by the casualty to the
Facility, shall divide the aggregate business interruption Insurance Proceeds in
connection with such casualty by such number of months, and shall disburse from
such escrow account into the Cash Collateral Account each month during the
performance of such restoration such monthly installment of said Insurance
Proceeds. Any Insurance Proceeds made available to Mortgagor for restoration or
repair in accordance herewith, to the extent not used by Mortgagor in connection
with, or to the extent they exceed the
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<PAGE> 18
cost of, such restoration, shall be paid to Mortgagor.
(f) Notwithstanding anything to the contrary set forth in SECTION
2.5(d) above, Mortgagee agrees that Mortgagee shall make the Insurance Proceeds
(other than business interruption insurance proceeds, which shall be held and
disbursed as provided in SECTION 2.5(e)), and any Casualty Prepayment Amount and
any Casualty Return-of-Fee Amount which Mortgage shall be entitled to retain,
available to Mortgagor for Mortgagor's repair, restoration or replacement of the
Improvements, Equipment and Inventory damaged or taken, on the following terms
and subject to Mortgagor's satisfaction of the following conditions:
(i) At the time of such loss or damage and at all times
thereafter there shall exist no Default or Event of Default;
(ii) The Improvements, Equipment and Inventory for which loss
or damage has resulted shall be capable of being restored (including
replacements) to their pre-existing condition and utility, as existed
immediately prior to the occurrence of the loss or damage then in
question, in all material respects with a value equal to or greater
than prior to such loss or damage and shall be capable of being
completed six (6) months prior to the Maturity Date and prior to the
expiration of business interruption insurance;
(iii) Mortgagor shall demonstrate to Mortgagee's reasonable
satisfaction Mortgagor's ability to pay the Loan Obligations coming due
during such repair or restoration period;
(iv) Within thirty (30) days from the date of such loss or
damage Mortgagor shall have given Mortgagee a written notice electing
to have the Insurance Proceeds applied for repair, restoration or
replacement of the Improvements, Equipment or Inventory, as applicable;
(v) Within sixty (60) days following the date of notice under
the preceding SUBPARAGRAPH (IV) and prior to any Insurance Proceeds
being disbursed to Mortgagor, Mortgagor shall have provided to
Mortgagee all of the following:
(1) if loss or damage exceeds One Million Dollars
($1,000,000), complete plans and specifications for
restoration, repair and replacement of the Improvements,
Equipment and Inventory lost or damaged to the condition,
utility and value required by the preceding SUBPARAGRAPH (II),
(2) if loss or damage exceeds One Million Dollars
($1,000,000),
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<PAGE> 19
fixed-price or guaranteed maximum cost construction contracts
for completion of the repair, restoration and replacement work
in accordance with the aforementioned plans and
specifications;
(3) such additional funds (if any) as in Mortgagee's
reasonable opinion are necessary to complete the repair,
restoration and replacement; and
(4) if loss or damage exceeds One Million Dollars
($1,000,000), copies of all permits and licenses necessary to
complete the work in accordance with the plans and
specifications and applicable law;
(vi) If loss or damage exceeds One Million Dollars
($1,000,000), Mortgagee may, at Mortgagor's expense, retain an
independent inspector to review and approve plans and specifications
and completed construction and to approve all requests for
disbursement, which approvals shall be conditions precedent to release
of the Insurance Proceeds as work progresses;
(vii) Mortgagor shall commence such work within one hundred
eighty (180) days after such loss or damage (assuming the Insurance
Proceeds have been made available to the Mortgagor within such period
of time) and shall diligently pursue such work to completion;
(viii) If loss or damage exceeds One Million Dollars
($1,000,000), each disbursement by Mortgagee of such Insurance Proceeds
shall be funded subject to conditions and in accordance with
disbursement procedures which a commercial construction lender would
typically establish in the exercise of sound banking practices and
shall be made only upon receipt of disbursement requests on an AIA
G702/703 form (or similar form approved by Mortgagee) signed and
certified by Mortgagor and its architect and general contractor with
appropriate invoices, lien waivers and any other documents, instruments
or items which may be required by Mortgagee in Mortgagee's discretion;
and
(ix) Mortgagee shall have a first lien and security interest
in all building materials and completed repair and restoration work and
in all fixtures and equipment acquired with such Insurance Proceeds,
and Mortgagor shall execute and deliver such mortgages, deeds of trust,
security agreements, financing statements and other instruments as
Mortgagee shall request to create, evidence, or perfect such lien and
security interest.
(g) If and to the extent such Insurance Proceeds are not required to be
made available to Mortgagor to be used for the repair, restoration and
replacement of the
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<PAGE> 20
Improvements, Equipment and Inventory for which a loss or damage has occurred,
or if Mortgagor fails to timely make such election or having made such election
fails to timely comply with or is otherwise unable to satisfy the terms and
conditions set forth herein, upon five (5) Business Days prior notice to
Mortgagor, Mortgagee shall be entitled to the payment of Insurance Proceeds
(including, without limitation, any Casualty Prepayment Amount and any Casualty
Return-of-Fee Amount) and, without Mortgagor's consent, to apply such Insurance
Proceeds, or the balance thereof, at Mortgagee's option either (x) to pay the
Casualty Prepayment Amount and/or the Casualty Return-of-Fee Amount, (y) to the
full or partial payment or prepayment of the Loan Obligations in accordance with
SECTION 2.7 and SECTION 2.8 of the Loan Agreement, or (z) to the repair,
restoration and/or replacement of all or any part of such Improvements,
Equipment and Inventory for which a loss or damage has occurred.
(h) Subject to Mortgagee's rights under SECTION 2.5(G), provided no
Default or Event of Default has occurred and the replacement, restoration or
repair has been completed in accordance with this Mortgage, any Insurance
Proceeds available to Mortgagor for replacement, restoration or repair, to the
extent not used by Mortgagor in connection with, or to the extent they exceed
the cost of such replacement, restoration or repair shall be paid to Mortgagor.
(i) Mortgagor appoints Mortgagee to act after the occurrence of an
Event of Default as Mortgagor's attorney-in-fact, coupled with an interest, to
cause the issuance of or an endorsement of any policy to bring Mortgagor into
compliance herewith and, as limited above, at Mortgagee's sole option, to make
any claim for, receive payment for, and execute and endorse any documents,
checks or other instruments in payment for loss, theft, or damage covered under
any such insurance policy; however, in no event will Mortgagee be liable for
failure to collect any amounts payable under any insurance policy.
(j) Mortgagee shall be entitled at its option to participate in any
compromise, adjustment or settlement in connection with any claims for loss,
damage or destruction under any policy or policies of insurance, in excess of
One Million Dollars ($1,000,000), and Mortgagor shall within ten (10) Business
Days after request therefor reimburse Mortgagee for all reasonable out-of-pocket
expenses (including reasonable attorneys' fees and disbursements) incurred by
Mortgagee in connection with such participation. Mortgagor shall not make any
compromise, adjustment or settlement in connection with any such claim in excess
of One Million Dollars ($1,000,000), without the prior written approval of
Mortgagee.
(k) In the event of foreclosure of the lien of this Mortgage or other
transfer of title or assignment of the Mortgaged Property in extinguishment, in
whole or in part, of the Loan Obligations, all right, title and interest of
Mortgagor in and to all policies of
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<PAGE> 21
casualty insurance covering all or any part of the Mortgaged Property shall
inure to the benefit of and pass to the successors in interest to Mortgagee or
the purchaser or grantee of the Mortgaged Property or any part thereof.
(l) Mortgagor shall not obtain or maintain any policy of insurance with
respect to Mortgagor, the Mortgaged Property or any part thereof which does not
satisfy each of the requirements of this SECTION.
Section 2.6. IMPOSITIONS.
(a) Mortgagor shall pay or cause to be paid, before any fine, penalty,
interest or cost attaches thereto, all of the ground rents and Impositions,
including, without limitation, any sales tax due in connection with the ground
rents, as well as all claims for labor, materials or supplies that, if unpaid,
might by law become a lien on the Mortgaged Property, and shall submit to
Mortgagee such evidence of the due and punctual payment of all such Impositions
and claims as may be required by law; PROVIDED, HOWEVER, that if by law any such
Imposition may be paid in installments (whether or not interest shall accrue on
the unpaid balance thereof), Mortgagor may pay the same in installments
(together with accrued interest on the unpaid balance thereof) as the same
respectively become due, before any fine, penalty, interest or cost attaches
thereto.
(b) Mortgagor at its expense may, after prior notice to Mortgagee,
contest by appropriate legal, administrative or other proceedings conducted in
good faith and with due diligence, the amount or validity or application, in
whole or in part, of any Imposition or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or liens thereof, and may withhold payment of
the same pending such proceedings if permitted by law, as long as (i) in the
case of any Impositions or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or liens thereof, such proceedings shall
suspend the collection thereof from the Mortgaged Property, (ii) neither the
Mortgaged Property nor any part thereof or interest therein will be sold,
forfeited or lost if Mortgagor pays the amount or satisfies the condition being
contested, and Mortgagor would have the opportunity to do so, in the event of
Mortgagor's failure to prevail in the contest, (iii) Mortgagee would not, by
virtue of such permitted contest, be exposed to any risk of any civil liability
for which Mortgagor has not furnished additional security as provided in CLAUSE
(iv) below, or to any risk of criminal liability, and neither the Mortgaged
Property nor any interest therein would be subject to the imposition of any lien
for which Mortgagor has not furnished additional security as provided in CLAUSE
(iv) below, as a result of the failure to comply with such law or of such
proceeding and (iv) Mortgagor shall have furnished to Mortgagee additional
security in respect of the claim being contested or the loss or damage that may
result from Mortgagor's failure to prevail in such contest in such amount as may
be
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<PAGE> 22
reasonably requested by Mortgagee, but in no event less than one hundred
twenty-five percent (125%) of the amount of such claim.
Section 2.7. MAINTENANCE OF THE IMPROVEMENTS AND EQUIPMENT. Mortgagor
shall not permit the Improvements or Equipment to be removed or demolished or
otherwise altered (PROVIDED, HOWEVER, Mortgagor may remove, demolish or alter
such Improvements and Equipment that become obsolete in the usual conduct of
Mortgagor's business and the removal or alteration of which do not materially
detract from the operation of Mortgagor's business and Mortgagor promptly
replaces the same with Improvements or Equipment, as applicable, of equivalent
value and functionality); shall maintain the Mortgaged Property in good repair,
working order and condition, except for reasonable wear and use; shall not
commit or suffer any waste; shall not do or suffer to be done anything which
would or could increase the risk of fire or other hazard to the Mortgaged
Property or which would or could result in the cancellation of any insurance
policy carried with respect to the Mortgaged Property; and shall restore and
repair the Improvements and Equipment or any part thereof now or hereafter
damaged or destroyed by any fire or other casualty or affected by any Taking.
Section 2.8. COMPLIANCE WITH LAWS.
(a) Mortgagor represents and warrants that the Facility and Mortgagor's
operations at and use of the Facility currently comply in all material respects
with all Legal Requirements, including, without limitation, the Americans with
Disabilities Act, and the orders, rules and regulations of the American
Insurance Association or any other body now or hereafter constituted exercising
similar functions. Mortgagor shall maintain the Facility in compliance with all
future Legal Requirements.
(b) Mortgagor hereby confirms the representations, warranties and
covenants set forth in SECTION 4.1(V) and SECTIONS 5.1(D) through (I),
inclusive, of the Loan Agreement (relating to liabilities of Mortgagor under
applicable Environmental Laws) insofar as such representations, warranties and
covenants apply to the Mortgaged Property.
(c) Mortgagor shall notify Mortgagee promptly of any written notice or
order that Mortgagor receives from any Governmental Authority with respect to
Mortgagor's compliance with any Legal Requirements, including, without
limitation, the Americans with Disabilities Act and the Environmental Laws,
relating to the Facility and promptly take any and all actions necessary to
bring its operations at the Facility into compliance with such Legal
Requirements, including, without limitation, the Americans with Disabilities Act
and the Environmental Laws, and shall fully comply with the requirements of such
Legal Requirements, including, without limitation, the Americans with
Disabilities Act and the Environmental Laws, that at any time are applicable to
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<PAGE> 23
Mortgagor's operations at the Facility, all to the extent required under the
applicable provisions of the Loan Agreement; provided, that, subject to SECTION
5.1(D) of the Loan Agreement, Mortgagor at its expense may, after prior notice
to Mortgagee, contest by appropriate legal, administrative or other proceedings
conducted in good faith and with due diligence, the validity or application, in
whole or in part, of any such Legal Requirements, including, without limitation,
Environmental Laws, as long as (i) neither the Mortgaged Property nor any part
thereof or any interest therein, will be sold, forfeited or lost if Mortgagor
pays the amount or satisfies the condition being contested, and Mortgagor would
have the opportunity to do so, in the event of Mortgagor's failure to prevail in
the contest, (ii) Mortgagee would, by virtue of such permitted contest, be
exposed to any risk of any civil liability for which Mortgagor has not furnished
additional security as provided in CLAUSE (iii) below, or to any risk of
criminal liability, and neither the Mortgaged Property nor any interest therein
would be subject to the imposition of any lien for which Mortgagor has not
furnished additional security as provided in CLAUSE (iii) below as a result of
the failure to comply with such Legal Requirement or Environmental Law or the
Americans with Disabilities Act or of such proceeding and (iii) Mortgagor shall
have furnished to Mortgagee additional security in respect of the claim being
contested or the loss or damage that may result from Mortgagor's failure to
prevail in such contest in such amount as may be reasonably requested by
Mortgagee in light of the risk attendant to such contest, but in no event less
than one hundred twenty-five percent (125%) of the amount of such claim.
(d) After thirty (30) days prior written notice (except in the case of
a bona fide emergency in which no such prior written notice shall be required,
but in which event notice shall be given as soon as practicable) and Mortgagor's
failure to so comply, but subject to SUBPARAGRAPH (C) above, Mortgagee, at its
election and in its sole discretion may (but shall not be obligated to) cure any
failure on the part of Mortgagor to comply with any Legal Requirements,
including Environmental Laws, and without limitation, may take any of the
following actions:
(i) arrange for the prevention of any Release or threat of
Release of Hazardous Substances at the Facility in violation of, or
potentially requiring clean-up, removal or remediation under,
Environmental Laws, and pay any costs associated with such prevention;
(ii) arrange for the removal or remediation of Hazardous
Substances that may be Released or result from a Release at the
Facility in violation of, or potentially requiring clean-up, removal or
remediation under, Environmental Laws, and pay any costs associated
with such removal and/or remediation;
(iii) pay, on behalf of Mortgagor, any costs, fines or
penalties imposed on Mortgagor by any Governmental Authority in
connection with such Release or
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<PAGE> 24
threat of Release of Hazardous Substances in violation of, or
potentially requiring clean-up, removal or remediation under,
Environmental Laws; or
(iv) make any other payment or perform any other act intended
to prevent a lien in favor of any Governmental Authority from attaching
to the Mortgaged Property.
Any partial exercise by Mortgagee of the remedies hereinafter set forth, or any
partial undertaking on the part of Mortgagee to cure Mortgagor's failure to
comply with such Legal Requirements, including Environmental Laws, shall not
obligate Mortgagee to complete the actions taken or require Mortgagee to expend
further sums to cure Mortgagor's noncompliance; nor shall the exercise of any
such remedies operate to place upon Mortgagee any responsibility for the
operation, control, care, management or repair of the Facility or make Mortgagee
the "operator" of the Facility within the meaning of any Environmental Laws. Any
amount paid or costs incurred by Mortgagee as a result of the exercise by
Mortgagee of any of the rights hereinabove set forth, together with interest
thereon at the Default Rate from the date paid by Mortgagee, shall be due and
payable by Mortgagor to Mortgagee within ten (10) days after demand therefor,
and until paid shall be added to and become a part of the Loan Obligations
secured hereby; and Mortgagee, by making any such payment or incurring any such
costs, shall be subrogated to any rights of Mortgagor to seek reimbursement from
any third parties, including, without limitation, a predecessor-in-interest to
Mortgagor's title who may be a "responsible party" or otherwise liable under any
Environmental Law in connection with any such Release or threat of Release of
Hazardous Substances.
(e) If Mortgagee suspects that Remedial Work may be required, Mortgagee
may request that an environmental survey and risk assessment with respect to the
Mortgaged Property be prepared and Mortgagor agrees to supply, at its cost, such
a survey and risk assessment by an Independent Engineer selected by Mortgagor
and satisfactory to Mortgagee, in form and detail satisfactory to Mortgagee
(including, if Mortgagee reasonably suspects that Remedial Work may be required,
test borings of the ground and chemical analyses of air, water and waste
discharges), estimating current liabilities and assessing potential sources of
future liabilities of Mortgagor or any other owner or operator of the Facility
under applicable Environmental Laws.
(f) Mortgagor agrees to indemnify, reimburse, defend (with counsel
satisfactory to Mortgagee at Mortgagee's election), and hold harmless Mortgagee
for, from, and against all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs and expenses, including,
without limitation, interest, penalties, consequential damages, attorneys' fees,
disbursements and expenses, and consultants' fees, disbursements and expenses,
including costs of Remedial Work, asserted against,
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<PAGE> 25
resulting to, imposed on, or incurred by Mortgagee, directly or indirectly, in
connection with any of the following:
(i) events, circumstances, or conditions which are alleged to,
or do, form the basis for an Environmental Claim;
(ii) the presence, Use or Release of Hazardous Substances at,
on, in, under or from any Facility which presence, Use or Release
requires or could require Remedial Work;
(iii) any Environmental Claim against Mortgagor, Mortgagee or
any Person whose liability for such Environmental Claim Mortgagor has
or may have assumed or retained either contractually or by operation of
law;
(iv) the breach of any representation, warranty or covenant
set forth in SECTION 4.1(V) and SECTIONS 5.1(D) through 5.1(I),
inclusive, of the Loan Agreement; or
(v) any failure by Mortgagor to fulfill each and every
obligation undertaken pursuant to this SECTION 2.8(f).
The indemnity provided in this SECTION 2.8(f) shall not be included in
any exculpation of Mortgagor or its partners, members, shareholders or any other
Person from personal liability provided in this Mortgage or in any of the other
Loan Documents. Further, Mortgagor's obligations under this SECTION 2.8(f) shall
survive (in perpetuity) the closing and disbursement of the funds evidenced by
the Note, payment of the Note, payment and performance of the Loan Obligations,
any release, reconveyance, discharge or foreclosure of this Mortgage, conveyance
by deed in lieu of foreclosure, and any subsequent conveyance of the Mortgaged
Property. Nothing in this SECTION 2.8(F) shall be deemed to deprive Mortgagee of
any rights or remedies provided to it elsewhere in this Mortgage or the other
Loan Documents or otherwise available to it under law. Mortgagor waives and
releases Mortgagee from any rights or defenses Mortgagor may have under common
law or Environmental Laws for liability arising or resulting from the presence,
Use or Release of Hazardous Substances except to the extent directly and solely
caused by the fraud or willful misconduct of Mortgagee.
Section 2.9. LIMITATIONS OF USE. The Facility is and shall be used
exclusively as set forth in SECTION 3.1(R) of the Loan Agreement. Mortgagor
shall not, without the prior written consent of Mortgagee (a) materially change
the use of the Facility or (b) initiate, join in or consent to any change in any
private restrictive covenant, zoning ordinance or other public or private
restrictions limiting or defining the uses that may
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<PAGE> 26
be made of the Facility or any part thereof, except as may be necessary in
connection with the uses permitted pursuant to the first sentence of this
SECTION 2.9. Mortgagor shall comply with the provisions of all Leases, licenses,
agreements and private covenants, conditions and restrictions that at any time
are applicable to the Facility.
Section 2.10. INSPECTION OF THE PROPERTY. Mortgagor shall keep adequate
records, accounts and books in accordance with GAAP and shall permit Mortgagee
and its authorized representatives to enter the Facility and inspect the
Mortgaged Property and examine the records, accounts and books of Mortgagor with
respect thereto and make copies or extracts thereof, at Mortgagee's cost and
expense, all upon reasonable advance notice and at such reasonable times as may
be requested by Mortgagee, subject, however, to the rights of the tenants or
occupants of the Facility. Notwithstanding the foregoing, after the occurrence
and continuation of an Event of Default, Mortgagor shall pay any costs and
expenses incurred by Mortgagee to examine Mortgagor's records, and accounts
relating to the Mortgaged Property as Mortgagee shall determine to be necessary
or appropriate in the protection of Mortgagee's interest.
Section 2.11. ACTIONS TO PROTECT MORTGAGED PROPERTY. If Mortgagor shall
fail to (a) effect the insurance required by SECTION 2.5, or (b) make the
payments required by SECTION 2.6, Mortgagee may, without obligation to do so,
and upon notice to Mortgagor (except in an emergency) effect or pay the same. If
Mortgagor shall fail to perform or observe any of its other covenants or
agreements hereunder, Mortgagee may, without obligation to do so, and upon
thirty (30) days prior written notice to Mortgagor (except in an emergency)
effect the same. To the maximum extent permitted by law, all sums, including
reasonable attorneys' fees and disbursements, so expended or expended to sustain
the lien or estate of this Mortgage or its priority, or to protect or enforce
any of the rights hereunder, or to recover any of the Loan Obligations, shall be
a lien on the Mortgaged Property, shall be deemed to be added to the Loan
Obligations secured hereby, and shall be paid by Mortgagor within ten days after
demand therefor, together with interest thereon at the Default Rate.
Section 2.12. CONDEMNATION.
(a) Mortgagee shall be entitled to receive and collect all
Condemnation Proceeds (including, without limitation, any Condemnation
Prepayment Amount and any Condemnation Return-of-Fee Amount), and all such
compensation, awards, damages and other payments or relief, together with all
rights and causes of action relating thereto or arising out of any Taking, are
hereby assigned to Mortgagee. Mortgagor shall execute such further assignments
of the Condemnation Proceeds as Mortgagee may from time to time require. Without
limiting the generality of the foregoing, following the occurrence of any Taking
(including, without limitation, any Condemnation Prepayment Amount and any
Condemnation Return-of-Fee Amount),
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<PAGE> 27
involving the Mortgaged Property or any part thereof, Mortgagor shall give
prompt notice thereof to Mortgagee and shall cause all Condemnation Proceeds
payable as a result of such Taking to be paid to Mortgagee as additional
collateral security hereunder subject to the lien of this Mortgage and applied
in accordance with SECTION 2.12(b) below.
(b) In the event of a Taking, Mortgagor shall cause all the
Condemnation Proceeds in respect of such Taking to be paid to Mortgagee which
shall, except as provided in SECTION 2.12(c) below, apply such Condemnation
Proceeds to reduce the Indebtedness in accordance with SECTION 2.7 and SECTION
2.8 of the Loan Agreement. All Condemnation Proceeds received in respect of a
temporary Taking shall be deposited and maintained in the Cash Collateral
Account, to be applied by Mortgagee in the same manner as Rents (other than
security deposits) received from Mortgagor with respect to the operation of the
Facility; PROVIDED, HOWEVER, that if the Condemnation Proceeds of such temporary
Taking are paid in a lump sum in advance, Mortgagee shall hold such Condemnation
Proceeds in a segregated interest-bearing escrow account at the Cash Collateral
Account Bank, and Mortgagee shall estimate the number of months required for
Mortgagor to restore the damage caused by the casualty to the Facility or that
the Facility will be affected by such temporary Taking, as the case may be,
shall divide the aggregate Condemnation Proceeds in connection with such
casualty or temporary Taking by such number of months, and shall disburse from
such escrow account into the Cash Collateral Account each month during the
performance of such restoration or pendency of such temporary Taking such
monthly installment of Condemnation Proceeds. Any Condemnation Proceeds made
available to Mortgagor for restoration or repair in accordance herewith, to the
extent not used by Mortgagor in connection with, or to the extent they exceed
the cost of, such restoration, shall be paid to Mortgagor.
(c) Notwithstanding anything to the contrary in SECTION 2.12(b) above,
Mortgagee agrees that Mortgagee shall make the Condemnation Proceeds (other than
Condemnation Proceeds in respect of a temporary Taking, which shall be held and
disbursed in accordance with SECTION 2.12(b) above and any Condemnation
Prepayment Amount and any Condemnation Return-of-Fee Amount which Mortgagee
shall be entitled to retain), available to Mortgagor for Mortgagor's repair,
restoration or replacement of the Improvements, Equipment or Inventory affected
by the Taking on the following terms and subject to Mortgagor's satisfaction of
the following conditions:
(i) At the time of such Taking and at all times
thereafter there shall exist no Default or Event of Default;
(ii) The Improvements, Equipment and Inventory
affected by the Taking shall be capable of being restored to
their pre-existing condition and utility as existed
immediately prior to the Taking, in all material
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<PAGE> 28
respects with a value equal to or greater than prior to such
Taking and shall be capable of being completed six (6) months
prior to the Maturity Date and prior to the expiration of
business interruption insurance;
(iii) Mortgagor shall demonstrate to Mortgagee's
reasonable satisfaction Mortgagor's ability to pay the Loan
Obligations coming due during such restoration period;
(iv) Within thirty (30) days from the date of such
Taking Mortgagor shall have given Mortgagee a written notice
electing to have the Condemnation Proceeds applied for such
repair, restoration or replacement of the Improvements,
Equipment or Inventory, as applicable;
(v) Within sixty (60) days following the date of
notice under the preceding SUBPARAGRAPH (iv) and prior to any
Condemnation Proceeds being disbursed to Mortgagor, Mortgagor
shall have provided to Mortgagee all of the following:
(1) if loss or damage exceeds One Million
Dollars ($1,000,000), complete plans and
specifications for restoration, repair and
replacement of the Improvements, Equipment and
Inventory lost or damaged to the condition, utility
and value required by the preceding SUBPARAGRAPH
(ii),
(2) if loss or damage exceeds One Million
Dollars ($1,000,000), fixed-price or guaranteed
maximum cost construction contracts for completion of
the repair, restoration and replacement work in
accordance with the aforementioned plans and
specifications,
(3) such additional funds (if any) as in
Mortgagee's reasonable opinion are necessary to
complete the repair, restoration and replacement, and
(4) if loss or damage exceeds One Million
Dollars ($1,000,000), copies of all permits and
licenses (if any) necessary to complete the work in
accordance with the plans and specifications and
applicable law;
(vi) If loss or damage exceeds One Million Dollars
($1,000,000), Mortgagee may, at Mortgagor's expense, retain an
independent inspector to review and approve plans and
specifications and completed
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<PAGE> 29
construction and to approve all requests for disbursement,
which approvals shall be conditions precedent to release of
the Condemnation Proceeds as work progresses;
(vii) Mortgagor shall commence such work within one
hundred eighty (180) days after such Taking (assuming the
Insurance Proceeds have been made available to the Mortgagor
within such period of time) and shall diligently pursue such
work to completion;
(viii) If loss or damage exceeds One Million Dollars
($1,000,000), each disbursement by Mortgagee of such
Condemnation Proceeds shall be funded subject to conditions
and in accordance with disbursement procedures which a
commercial construction lender would typically establish in
the exercise of sound banking practices and shall be made only
upon receipt of disbursement requests on an AIA G702/703 form
(or similar form reasonably approved by Mortgagee) signed and
certified by Mortgagor and its architect and general
contractor with appropriate invoices, lien waivers, notice of
commencement and any other documents, instruments and items as
may be required by Mortgagee in Mortgagee's discretion; and
(ix) Mortgagee shall have a first lien and security
interest in all building materials and completed repair and
restoration work and in all fixtures and equipment acquired
with such Condemnation Proceeds, and Mortgagor shall execute
and deliver such mortgages, deeds of trust, security
agreements, financing statements and other instruments as
Mortgagee shall reasonably request to create, evidence, or
perfect such lien and security interest.
(d) If and to the extent such Condemnation Proceeds are not required to
be made available to Mortgagor to be used for the repair, restoration and
replacement of the Improvements, Equipment and Inventory affected by the Taking
or if Mortgagor fails to timely make such election or having made such election
fails to timely comply with or is otherwise unable to satisfy the terms and
conditions set forth herein, upon five Business Days prior notice to Mortgagor,
Mortgagee shall be entitled to the payment of the Condemnation Proceeds
(including, without limitation, any Condemnation Prepayment Amount and any
Condemnation Return-of-Fee Amount) and without Mortgagor's consent, to apply
such Condemnation Proceeds, or the balance thereof, at Mortgagee's option either
(x) to pay the Condemnation Prepayment Amount and/or the Condemnation
Return-of-Fee Amount), (y) to the full or partial payment or prepayment of the
Loan Obligations in accordance with SECTION 2.7 of the Loan Agreement, or (z) to
the repair, restoration and/or replacement of all or any part
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of such Improvements, Equipment and Inventory affected by the Taking.
(e) Subject to Mortgagee's rights under SECTION 2.12(d), provided no
Default or Event of Default has occurred and the replacement, restoration or
repair has been completed in accordance with this Mortgage, any Condemnation
Proceeds, available to Mortgagor for replacement, restoration or repair, to the
extent not used by Mortgagor in connection with, or to the extent they exceed
the cost of, such replacement, restoration or repair, shall be paid to
Mortgagor.
(f) Mortgagee shall be entitled at its option to participate in any
compromise, adjustment or settlement in connection with any Taking involving an
amount in controversy in excess of One Million Dollars ($1,000,000), and
Mortgagor shall within ten (10) Business Days after request therefor reimburse
Mortgagee for all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and disbursements) incurred by Mortgagee in connection with such
participation. Mortgagor shall not make any compromise, adjustment or settlement
in connection with any such claim in excess of One Million Dollars ($1,000,000),
without the prior written approval of Mortgagee.
Section 2.13. LEASES; MANAGEMENT AGREEMENTS; AGREEMENTS AFFECTING REAL
ESTATE.
(a) Mortgagor represents that there are no Leases or agreements to
lease all or any part of the Mortgaged Property now in effect except those
specifically assigned to Mortgagee by the Assignment of Leases. There is no
assignment or pledge of any Rents now in effect, except pursuant to the
Assignment of Leases. Mortgagor shall not make any assignment or pledge thereof
to anyone other than Mortgagee until the Loan Obligations are paid in full.
(b) Mortgagor shall not enter into any Lease after the date hereof that
does not contain terms to the effect as follows:
(i) such Lease and the rights of the tenant
thereunder (including, without limitation, any options to
purchase or rights of first offer or refusal) shall be subject
and subordinate to the rights of Mortgagee under and the Lien
of this Mortgage and Mortgagee's rights under all Loan
Documents, and any renewals, modifications and amendments
thereto and thereof;
(ii) such Lease has been assigned as collateral
security by Mortgagor as landlord thereunder to Mortgagee
under this Mortgage;
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(iii) in the case of any foreclosure hereunder or the
giving or granting of a deed in lieu thereof, the rights and
remedies of the tenant in respect of any obligations of any
successor landlord thereunder shall be limited to the equity
interest of such successor landlord in the Mortgaged Property
and any successor landlord shall in no event and to no extent
(1) be liable for any act, omission or default of any prior
landlord under the Lease or (2) be required to make or
complete any tenant improvements or capital improvements or
repair, restore, rebuild or replace the demised premises or
any part thereof in the event of damage, casualty or
condemnation or (3) be required to pay any amounts to tenant
arising under the Lease prior to such successor landlord
taking possession;
(iv) the tenant's obligation to pay rent and any
additional rent shall not be subject to any abatement,
deduction, counterclaim or setoff as against any mortgagee or
purchaser upon the foreclosure of any of the Mortgaged
Property or the giving or granting of a deed in lieu thereof
by reason of a landlord default occurring prior to such
foreclosure and such mortgagee or purchaser will not be bound
by any advance payments of rent in excess of one month or any
security deposit unless such security deposit was actually
received (or in the case of a letter of credit, was properly
transferred in negotiable form);
(v) the tenant agrees to attorn to Mortgagee or any
purchaser of the Mortgaged Property upon a foreclosure of the
Mortgaged Property or the giving or granting of a deed in lieu
thereof, at the option of Mortgagee or such purchaser;
(vi) the tenant agrees to give notice to Mortgagee of
any default by landlord under the Lease and Mortgagee shall
have a reasonable time to cure, should Mortgagee so elect, any
default of landlord prior to tenant exercising any rights of
tenant to terminate or cancel such Lease; and
(vii) all lease payments shall be due on or before
the fifth (5th) day of each calendar month.
(c) Mortgagor shall not enter into, amend or terminate any
management agreements or franchise agreements. Mortgagor shall diligently
perform all terms and covenants of any and all Management Agreements.
(d) Mortgagor shall not create, or permit the Mortgaged
Property or any part thereof to become subject to, any easement, license or
restrictive covenant, other than a Permitted Encumbrance. Without limiting the
generality of the immediately
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preceding sentence, Mortgagor shall not enter into, consent to, grant, amend,
modify, restate or supplement any document, instrument or agreement affecting,
related to or impacting upon the Mortgaged Property, the title thereto or any
portion or aspect thereof, including, without limitation, any easement,
reciprocal easement agreement, or any declaration of easements or covenants.
Section 2.14. MORTGAGEE RELIANCE. Mortgagor acknowledges that
Mortgagee has examined and relied on the experience of Mortgagor and its
partners, shareholders and members (including, without limitation, the direct
and indirect legal and beneficial owners of Mortgagor), in owning and operating
properties such as the Facility in agreeing to make the Loan, and will continue
to rely on Mortgagor and such experience of such persons as a means of
maintaining the value of the Facility as security for repayment of the Loan and
performance of all of Mortgagor's obligations under the Loan Documents.
Mortgagor acknowledges that Mortgagee has a valid interest in maintaining the
value of the Facility so as to insure that, should Mortgagor allow a Transfer to
occur without Mortgagee's prior written consent, Mortgagee may exercise all of
its rights hereunder.
Section 2.15. NO TRANSFER. Mortgagor shall not and shall not
cause, allow, or permit, and shall prevent from occurring, a Transfer, without
the prior written consent of Mortgagee, which consent may be withheld or
conditioned in Mortgagee's discretion. Consent to any such Transfer by Mortgagee
shall not be deemed a waiver of Mortgagee's right to require such consent to any
further or future Transfers. In the event of any violation of this SECTION,
Mortgagee may, at its option, accelerate and declare the outstanding principal
amount, unpaid interest, Default Rate interest, Yield Maintenance Premium and
any other amounts owing by Mortgagor to be immediately due and payable, without
notice or demand, and whether or not Mortgagee shall have commenced any
foreclosure proceeding or other action for the enforcement of its rights and
remedies under any of the Loan Documents with respect to any Facility or all or
any portion of the Security Interest Property.
ARTICLE III
Assignment of Rents, Issues and Profits
---------------------------------------
Section 3.1. ASSIGNMENT OF RENTS, ISSUES AND PROFITS. Mortgagor does
hereby absolutely and unconditionally assign to Mortgagee Mortgagor's right,
title and interest in all current and future Leases and Rents, it being intended
by Mortgagor that this assignment constitutes a present, absolute assignment and
not an assignment for additional security only. This SECTION presently gives
Mortgagee the right to collect the Rents and to apply the Rents in partial
payment of the Note and Loan Obligations and otherwise in accordance with the
terms of the Loan Agreement. Mortgagor intends that
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the Rents and Leases be absolutely assigned as provided in this SECTION and that
they no longer be, during the term of this Section, property of Mortgagor or
property of the estate of Mortgagor, as defined by 11 U.S.C. ss.541. If any law
exists requiring Mortgagee to take actual possession of the Mortgaged Property
(or some action equivalent to taking possession of the Mortgaged Property, such
as securing the appointment of a receiver) in order for Mortgagee to "perfect"
or "activate" the rights and remedies of Mortgagee as provided in this Section,
Mortgagor waives the benefit of such law. Such assignment to Mortgagee shall not
be construed to bind Mortgagee to the performance of any of the covenants,
conditions or provisions contained in any such Leases or otherwise impose any
obligation upon Mortgagee and notwithstanding the assignment, Mortgagor shall
remain liable for any obligations undertaken by Mortgagor pursuant to any Lease.
Mortgagor agrees that, further to evidence and reflect the assignment granted
herein, Mortgagor shall execute, acknowledge and deliver to Mortgagee such
additional instruments in form and substance reasonably satisfactory to
Mortgagee as may hereafter be requested by Mortgagee and shall record such
leases or memoranda thereof, and all assignments thereof, all at Mortgagor's
expense. Subject to the terms of this SECTION and the Loan Agreement, Mortgagee
grants to Mortgagor a license, revocable as hereinafter provided, to operate and
manage the Mortgaged Property and to collect and use the Rents subject to the
requirements of the Loan Agreement. Upon the occurrence of an Event of Default
(except an Event of Default set forth in SECTION 7.1(x), (xi), OR (xii) of the
Loan Agreement, in which event the revocation hereinafter described shall be
automatic and simultaneous with the occurrence of such Event of Default), the
license granted to Mortgagor herein shall, at Mortgagee's election, be revoked
by Mortgagee, and Mortgagee shall immediately be entitled to possession of all
Rents then or thereafter in the Collection Account and in the Cash Collateral
Account or wherever they may be and all Rents collected thereafter (including
Rents past due and unpaid), whether or not Mortgagee enters upon or takes
control of the Mortgaged Property. Upon such a revocation of the license granted
herein, Mortgagee shall provide Mortgagor with written notice of same. Any Rents
collected by Mortgagor from and after the date on which an Event of Default
occurred shall be held by Mortgagor in trust for Mortgagee. Mortgagee is hereby
granted and assigned by Mortgagor the right, at its option, upon revocation of
the license granted herein, to enter upon the Mortgaged Property in person, by
agent or by court appointed receiver to collect Rents with or without taking the
actual possession of the Mortgaged Property or any equivalent action. Any Rents
collected after the revocation of the license may be applied by Mortgagee in its
sole and absolute discretion toward payment of the Loan Obligations in
accordance with SECTION 2.8 of the Loan Agreement.
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ARTICLE IV
Security Agreement
------------------
Section 4.1. SECURITY AGREEMENT. This Mortgage creates a lien on and a
security interest in the Security Interest Property, and shall constitute a
security agreement and "fixture filing" under the UCC or other law applicable to
the creation of liens on and security interests in personal property and
fixtures. As further security for the payment and performance of the Loan
Obligations, this Mortgage shall constitute a financing statement under the UCC
with Mortgagor as the "debtor" and Mortgagee as the "secured party". To the
extent permitted by law, Mortgagor hereby authorizes Mortgagee to file financing
and continuation statements necessary to continue the lien of and security
interest evidenced by this Mortgage with respect to the Security Interest
Property without the signature of Mortgagor, and Mortgagor hereby irrevocably
appoints Mortgagee as attorney-in-fact (which appointment shall be deemed
coupled with an interest) for the purposes of executing and filing such
financing and continuation statements.
Section 4.2. RIGHTS UPON DEFAULT. If an Event of Default occurs,
Mortgagee, in addition to the rights and remedies granted to Mortgagee by
applicable law and this Mortgage, shall have all rights and remedies of a
secured party under the UCC. Any notice of sale, disposition or other intended
action by Mortgagee with respect to Mortgagee's rights under the UCC sent to
Mortgagor in accordance with the notice provision hereof at least ten (10) days
prior to such action shall constitute commercially reasonable notice to
Mortgagor. The proceeds of any such sale or disposition, or any part thereof,
may be applied by Mortgagee to the payment of the Loan Obligations in accordance
with SECTION 2.7 of the Loan Agreement.
Section 4.3. WARRANTIES, REPRESENTATIONS AND COVENANTS. Mortgagor
hereby warrants, represents and covenants that: (a) the Equipment and Inventory
will be kept on or at the Facility and Mortgagor will not remove any Equipment
or Inventory from the Facility, except such portions or items of the Equipment
or Inventory that are consumed or worn out in ordinary usage, all of which shall
be promptly replaced by Mortgagor with Equipment or Inventory, as applicable, of
equivalent value and functionality, except as otherwise expressly provided in
SECTION 2.7 with respect to Equipment (b) all covenants and obligations of
Mortgagor contained herein relating to the Mortgaged Property shall be deemed to
apply to the Equipment and Inventory whether or not expressly referred to herein
and (c) this Mortgage constitutes a security agreement and "fixture filing" as
those terms are used in the UCC. Information relative to the security interest
created hereby may be obtained by application to Mortgagee (secured party). The
mailing addresses of Mortgagor and Mortgagee are set forth on PAGE 1.
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ARTICLE V
Events of Default; Remedies
---------------------------
Section 5.1. EVENTS OF DEFAULT. The term "EVENT OF DEFAULT" wherever
used in this Mortgage, shall mean any one of the following events subject to any
applicable notice and grace periods set forth in the Loan Agreement: (a) if
Mortgagor fails to pay any amount payable hereunder when due and payable; (b) if
any representation or warranty made herein shall be false in any material
respect as of the date such representation or warranty was made or remade; (c)
the occurrence of a default on the part of Mortgagor under any Lease (subject,
however, to any applicable notice and cure periods required under the applicable
Lease) provided that such default adversely affects the value of the Mortgaged
Property or in any way impairs Mortgagor's ability to perform its obligations
under the Loan Documents; (d) the failure of Mortgagor to maintain the insurance
required in this Mortgage; (e) if a Transfer shall occur without Mortgagee's
prior written consent, which consent may be withheld in Mortgagee's discretion;
(f) the occurrence of any "Event of Default" under any of the Loan Documents,
including, without limitation, the Loan Agreement; or (g) if Mortgagor shall be
in default under any of the other obligations, agreements, undertakings, terms,
covenants, provisions or conditions of this Mortgage, not otherwise referred to
in this SECTION 5.1, for ten (10) days after written notice to Mortgagor from
Mortgagee, in the case of any default which can be cured by the payment of a sum
of money or for thirty (30) days after written notice from Mortgagee, in the
case of any other default (unless otherwise provided herein); PROVIDED, HOWEVER,
that if such non-monetary default is susceptible of cure but cannot reasonably
be cured within such thirty (30) day period and provided further that Mortgagor
shall have commenced to cure such default within such thirty (30) day period and
thereafter diligently and expeditiously proceeds to cure the same, such thirty
(30) day period shall be extended for such time as is reasonably necessary for
Mortgagor in the exercise of due diligence to cure such default, but in no event
shall such period exceed ninety (90) days after the original notice from
Mortgagee.
Section 5.2. ACCELERATION OF MATURITY. If an Event of Default shall
have occurred, then the entire principal amount of the indebtedness secured
hereby with interest accrued thereon and all other Loan Obligations shall, at
the option of Mortgagee, become due and payable without notice or demand, time
being of the essence; and any omission on the part of Mortgagee to exercise such
option when entitled to do so shall not be considered as a waiver of such right.
Mortgagor hereby expressly waives presentment, demand for payment, notice of
protest, notice of dishonor, notice of intent to accelerate the maturity of the
indebtedness secured hereby and notice of acceleration of the maturity of the
indebtedness secured hereby.
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Notwithstanding anything contained to the contrary herein, the outstanding
principal amount, unpaid interest, Default Rate interest, Yield Maintenance
Premium and any other amounts owing by Mortgagor shall be accelerated and
immediately due and payable, without any election by Mortgagee, upon the
occurrence of an Event of Default described in SECTION 7.1(x), (xi), OR (xii) of
the Loan Agreement.
Section 5.3. DEFAULT REMEDIES.
(a) If an Event of Default shall have occurred and be continuing, this
Mortgage may, to the maximum extent permitted by law, be enforced, and Mortgagee
may exercise any right, power or remedy of Mortgagee hereunder, under the Loan
Agreement or under any of the other Loan Documents or at law or in equity, and,
without limiting the generality of the foregoing, Mortgagee may, personally or
by its agents, or by a court-appointed receiver, to the maximum extent permitted
by law:
(i) enter into and take possession of the Mortgaged Property
or any part thereof, exclude Mortgagor and all Persons claiming under
Mortgagor whose claims are junior to this Mortgage, wholly or partly
therefrom, and use, operate, manage and control the Mortgaged Property
or any part thereof either in the name of Mortgagor or otherwise as
Mortgagee shall deem best, and upon such entry, from time to time at
the expense of Mortgagor and the Mortgaged Property, make all such
repairs, replacements, alterations, additions or improvements to the
Facility or any part thereof as Mortgagee may deem proper and, whether
or not Mortgagee has so entered and taken possession of the Mortgaged
Property or any part thereof, collect and receive all Rents and apply
the same to the payment of all expenses that Mortgagee may be
authorized to make under this Mortgage, the remainder to be applied to
the payment of the Loan Obligations until the same shall have been
repaid in full; if Mortgagee demands or attempts to take possession of
the Mortgaged Property or any part thereof in the exercise of any
rights hereunder, Mortgagor shall promptly turn over and deliver
complete possession thereof to Mortgagee; and
(ii) personally or by agents, or by a court-appointed
receiver, with or without entry:
(x) sell the Mortgaged Property at a sale or sales
held at such place or places and time or times and upon such
notice and otherwise in such manner and in such order as may
be required by law, or, in the absence of any such
requirements, as Mortgagee may deem appropriate and from time
to time adjourn any such sale by announcement at the time and
place specified for such sale or for such adjourned sale
without further notice, except such as may be required by law;
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(y) proceed to protect and enforce Mortgagee's rights
under this Mortgage, by suit for specific performance of any
covenant contained herein or in the Loan Documents or in aid
of the execution of any power granted herein or in the Loan
Documents, or for the foreclosure of this Mortgage (as a
mortgage or otherwise) and the sale of the Mortgaged Property
or any part thereof under the judgment or decree of a court of
competent jurisdiction, or for the enforcement of any other
right as Mortgagee shall elect, provided, that in the event of
a sale, by foreclosure or otherwise, of less than all of the
Mortgaged Property, this Mortgage shall continue as a lien on,
and security interest in, the remaining portion of the
Mortgaged Property; or
(z) exercise any or all of the remedies available to
a secured party under the UCC, including, without limitation:
(1) either personally or by means of a court
appointed receiver, take possession of all or any of
the Security Interest Property and exclude therefrom
Mortgagor and all Persons claiming under Mortgagor,
and thereafter hold, store, use, operate, manage,
maintain and control, make repairs, replacements,
alterations, additions and improvements to and
exercise all rights and powers of Mortgagor in
respect of the Security Interest Property, or any
part thereof; if Mortgagee demands or attempts to
take possession of the Security Interest Property in
the exercise of any rights hereunder, Mortgagor shall
promptly turn over and deliver complete possession
thereof to Mortgagee;
(2) without further notice to or demand upon
Mortgagor (except those otherwise required hereby or
by the Loan Agreement), make such payments and do
such acts as Mortgagee may deem necessary to protect
its security interest in the Security Interest
Property, including, without limitation, paying,
purchasing, contesting or compromising any
encumbrance that is prior to or superior to the
security interest granted hereunder, and in
exercising any such powers or authority paying all
expenses incurred in connection therewith, which
expenses shall thereafter become part of the Loan
Obligations secured by the lien of this Mortgage;
(3) require Mortgagor to assemble the
Security Interest Property or any portion thereof, at
a place designated by
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Mortgagee and reasonably convenient to both parties,
and promptly to deliver the Security Interest
Property to Mortgagee, or an agent or representative
designated by Mortgagee, and its agents and
representatives, shall have the right to enter upon
the premises and property of Mortgagor to exercise
Mortgagee's rights hereunder;
(4) sell, lease or otherwise dispose of the
Security Interest Property, with or without having
the Security Interest Property at the place of sale,
and upon such terms and in such manner as Mortgagee
may determine (and Mortgagee may be a purchaser at
any such sale, PROVIDED, HOWEVER, that Mortgagee may
dispose of the Security Interest Property in
accordance with Mortgagee's rights and remedies in
respect of the Mortgaged Property pursuant to the
provisions of this Mortgage in lieu of proceeding
under the UCC; and
(5) unless the Security Interest Property is
perishable or threatens to decline speedily in value
or is of a type customarily sold on a recognized
market, Mortgagee, as the case may be, shall give
Mortgagor at least ten (10) days prior notice of the
time and place of any sale of the Security Interest
Property or other intended disposition thereof, which
notice Mortgagor agrees is commercially reasonable.
(b) If an Event of Default shall have occurred, Mortgagee, to the
maximum extent permitted by law, shall be entitled, as a matter of right, to the
appointment of a receiver of the Mortgaged Property, without notice or demand,
and without regard to the adequacy of the security for the Loan Obligations or
the solvency of Mortgagor. Mortgagor hereby irrevocably consents to such
appointment and waives notice of any application therefor. Any such receiver or
receivers shall have all the usual powers and duties of receivers in like or
similar cases and all the powers and duties of Mortgagee in case of entry and
shall continue as such and exercise all such powers until the date of
confirmation of sale of the Mortgaged Property, unless such receivership is
sooner terminated.
(c) In any sale under any provision of this Mortgage or pursuant to any
judgment or decree of court, the Mortgaged Property, to the maximum extent
permitted by law, may be sold in one or more parcels or as an entirety and in
such order as Mortgagee may elect, without regard to the right of Mortgagor or
any Person claiming under Mortgagor to the marshalling of assets. The purchaser
at any such sale shall take title to the Mortgaged Property or the part thereof
so sold free and discharged of the
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estate of Mortgagor therein, the purchaser being hereby discharged from all
liability to see to the application of the purchase money. If permitted by
applicable law, upon the completion of any such sale by virtue of this SECTION
5.3(c) Mortgagee shall execute and deliver to the purchaser an appropriate
instrument that shall effectively transfer all of Mortgagor's estate, right,
title, interest, property, claim and demand in and to the Mortgaged Property or
portion thereof so sold, but without any covenant or warranty, express or
implied. Mortgagee is hereby irrevocably appointed the attorney-in-fact of
Mortgagor, coupled with an interest, in its name and stead to make all
appropriate transfers and deliveries of the Mortgaged Property or any portions
thereof so sold and, for that purpose, Mortgagee may execute all appropriate
documents, instruments and agreements of transfer, and may substitute one or
more Persons with like power, Mortgagor hereby ratifying and confirming all that
said attorneys or such substitute or substitutes shall lawfully do by virtue
hereof. Nevertheless, Mortgagor shall ratify and confirm, or cause to be
ratified and confirmed, any such sale or sales by executing and delivering, or
by causing to be executed and delivered to Mortgagee or to such purchaser or
purchasers all such instruments as may be advisable, in the judgment of
Mortgagee, for such purpose, and as may be designated in such request. Any sale
or sales made under or by virtue of this Mortgage, to the extent not prohibited
by law, shall operate to divest all the estate, right, title, interest,
property, claim and demand whatsoever, whether at law or in equity, of Mortgagor
in, to and under the Mortgaged Property, or any portions thereof so sold, and
shall be a perpetual bar both at law and in equity against Mortgagor and against
any and all Persons claiming or who may claim the same, or any part thereof, by,
through or under Mortgagor. The powers and agency herein granted are coupled
with an interest and are irrevocable. Mortgagee may be a purchaser at any such
sale, and if Mortgagee is the highest bidder, Mortgagee may credit the portion
of the purchase price that would be distributed to Mortgagee against all amounts
due it by Mortgagor in lieu of paying cash.
(d) All rights of action under the Loan Documents and this Mortgage may
be enforced by Mortgagee without the possession of the original Loan Documents
and without the production thereof at any trial or other proceeding relative
thereto.
Section 5.4. APPLICATION OF PROCEEDS.
(a) Prior to the occurrence and continuance of a Default or an Event of
Default, any amounts received or collected by Mortgagee under this Mortgage
shall be applied in accordance with SECTION 2.8 of the Loan Agreement. After the
occurrence of a Default or an Event of Default, any amounts received or
collected by Mortgagee under this Mortgage or any other Loan Document may be
applied to any one or more of the following in such order and in such amounts as
Mortgagee may elect in its discretion:
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(i) To the payment of all costs, expenses and advances
incurred by Mortgagee, or made by Mortgagee, in the enforcement of this
Mortgage or any of the other Loan Documents, the protection of the lien
and security afforded thereby, and the preservation of the Mortgaged
Property, including, without limitation, all expenses of managing the
Facility, including, without limitation, the salaries, fees and wages
of any managing agent and such other employees as Mortgagee may deem
necessary and all expenses of operating and maintaining the Facility,
including, without limitation, all taxes, charges, claims, assessments,
water rents, sewer rents and any other liens, and premiums for all
insurance which are due and payable and the cost of all alterations,
renovations, repairs or replacements, and all costs and expenses
incident to taking and retaining possession of the Facility and the
enforcement of any of Mortgagee's rights and remedies hereunder; and
(ii) To the payment of the Loan Obligations in accordance with
the Loan Agreement, this Mortgage and the other Loan Documents.
(b) No sale or other disposition of all or any part of the Mortgaged
Property pursuant to SECTION 5.3 shall be deemed to relieve Mortgagor of its
obligations under the Loan Agreement or any other Loan Document except to the
extent the proceeds thereof are applied to the payment of such obligations. If
the proceeds of sale, collection or other realization of or upon the Mortgaged
Property are insufficient to cover the costs and expenses of such realization
and the payment in full of the Loan Obligations, Mortgagor shall remain liable
for any deficiency subject to SECTION 6.14 hereof.
(c) Upon any sale made under the powers of sale herein granted and
conferred, the receipt given by Mortgagee will be sufficient discharge to the
purchaser or purchasers at any sale for the purchase money, and such purchaser
or purchasers and their heirs, devisees, personal representatives, successors
and assigns thereof will not, after paying such purchase money and receiving
such receipt of Mortgagee, be obligated to see to the application thereof or be
in any way answerable for any loss, misapplication or non-application thereof.
Section 5.5. RIGHT TO SUE. Subject to SECTION 6.14 below, Mortgagee
shall have the right from time to time to sue for any sums required to be paid
by Mortgagor under the terms of this Mortgage as the same become due, without
regard to whether or not the entire Loan Obligations shall be, or have become,
due and without prejudice to the right of Mortgagee thereafter to bring any
action or proceeding of foreclosure or any other action upon the occurrence and
continuance of any Event of Default existing at the time such earlier action was
commenced.
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Section 5.6. POWERS OF MORTGAGEE. Mortgagee may at any time or from
time to time renew or extend this Mortgage or (with the agreement of Mortgagor)
alter or modify the same in any way, or waive any of the terms, covenants or
conditions hereof or thereof, in whole or in part, and may release or reconvey
any portion of the Mortgaged Property or any other security, and grant such
extensions and indulgences in relation to the Loan Obligations, or release any
Person liable therefor as Mortgagee may determine without the consent of any
junior lienor or encumbrancer, without any obligation to give notice of any kind
thereto, without in any manner affecting the priority of the lien and estate of
this Mortgage on or in any part of the Mortgaged Property, and without affecting
the liability of any other Person liable for any of the Loan Obligations.
Section 5.7. REMEDIES CUMULATIVE.
(a) No right or remedy herein conferred upon or reserved to Mortgagee
is intended to be exclusive of any other right or remedy, and each and every
right and remedy shall be cumulative and in addition to any other right or
remedy under this Mortgage, or under applicable law, whether now or hereafter
existing; the failure of Mortgagee to insist at any time upon the strict
observance or performance of any of the provisions of this Mortgage or to
exercise any right or remedy provided for herein or under applicable law, shall
not impair any such right or remedy nor be construed as a waiver or
relinquishment thereof.
(b) To the fullest extent permitted by applicable law, Mortgagee shall
each be entitled to enforce payment and performance of any of the obligations of
Mortgagor and to exercise all rights and powers under this Mortgage or under any
Loan Document or any laws now or hereafter in force, notwithstanding that some
or all of the Loan Obligations may now or hereafter be otherwise secured,
whether by mortgage, deed of trust, pledge, lien, assignment or otherwise;
neither the acceptance of this Mortgage nor its enforcement, whether by court
action or pursuant to the power of sale or other powers herein contained, shall
prejudice or in any manner affect Mortgagee's right to realize upon or enforce
any other security now or hereafter held by Mortgagee, it being stipulated that
Mortgagee shall be entitled to enforce this Mortgage and any other security now
or hereafter held by Mortgagee in such order and manner as Mortgagee, in its
discretion, may determine; every power or remedy given by the Loan Agreement,
this Mortgage or any of the other Loan Documents to Mortgagee, or to which
Mortgagee is otherwise entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed expedient by
Mortgagee, and Mortgagee may pursue inconsistent remedies.
Section 5.8. WAIVER OF STAY, EXTENSION, MORATORIUM LAWS; EQUITY OF
REDEMPTION. To the maximum extent permitted by law, Mortgagor shall not at any
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<PAGE> 42
time insist upon, or plead, or in any manner whatever claim or take any benefit
or advantage of any applicable present or future stay, extension or moratorium
law, that may affect observance or performance of the provisions of this
Mortgage; nor claim, take or insist upon any benefit or advantage of any present
or future law providing for the valuation or appraisal of the Mortgaged Property
or any portion thereof prior to any sale or sales thereof that may be made under
or by virtue of SECTION 5.3; and Mortgagor, to the extent that it lawfully may,
hereby waives all benefit or advantage of any such law or laws. Mortgagor, for
itself and all who may claim under it, hereby waives, to the maximum extent
permitted by applicable law, any and all rights and equities of redemption from
sale under the power of sale created hereunder or from sale under any
foreclosure of this Mortgage and (if an Event of Default shall have occurred)
all notice or notices of seizure, and all right to have the Mortgaged Property
marshalled upon any foreclosure hereof. Mortgagee shall not be obligated to
pursue or exhaust its rights or remedies as against any other part of the
Mortgaged Property and Mortgagor hereby waives any right or claim of right to
have Mortgagee proceed in any particular order.
Section 5.9. WAIVER OF HOMESTEAD. Mortgagor hereby waives and renounces
all homestead and exemption rights provided for by the Constitution and the laws
of the United States and of any state, in and to the Mortgaged Property as
against the collection of the Loan Obligations, or any part thereof.
Section 5.10. DISCONTINUANCE OF PROCEEDINGS. If Mortgagee shall have
proceeded to enforce any right, power or remedy under this Mortgage by
foreclosure, power of sale, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to Mortgagee, then in every such case, Mortgagor and Mortgagee shall
be restored to their former positions and rights hereunder, and all rights,
powers and remedies of Mortgagee shall continue as if no such proceedings had
occurred.
ARTICLE VI
[Reserved]
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<PAGE> 43
ARTICLE VII
Miscellaneous
-------------
Section 7.1. RECONVEYANCE BY MORTGAGEE. Upon payment in full of the
Loan Obligations or a complete defeasance with respect to the Mortgaged Property
which complies with the Loan Agreement (if the Loan Agreement provides for
defeasance), Mortgagee shall release the lien of this Mortgage, or upon the
request of Mortgagor, and at Mortgagor's expense, assign this Mortgage without
recourse to Mortgagor's designee, or to the Person or Persons legally entitled
thereto, by an instrument duly acknowledged in form for recording.
Section 7.2. MORTGAGEE'S DISCRETION. Whenever pursuant to this
Mortgage, Mortgagee exercises any right, option or election given to Mortgagee
to approve or disapprove, or to consent to or withhold consent, or any
arrangement or term is to be satisfactory to Mortgagee or is to be in
Mortgagee's discretion, the decision of Mortgagee to approve or disapprove,
consent or withhold consent, or to decide whether arrangements or terms are
satisfactory or not satisfactory, or acceptable or not acceptable to Mortgagee
in Mortgagee's discretion, shall (except as is otherwise specifically herein
provided) be in the sole and absolute discretion of Mortgagee.
Section 7.3. NOTICES. All notices, demands, consents, requests or other
communications that are permitted or required to be given by any party to the
other hereunder shall be in writing and given in the manner specified in SECTION
8.6 of the Loan Agreement.
Section 7.4. AMENDMENTS; WAIVERS; ETC. This Mortgage cannot be
modified, changed or discharged except by an agreement in writing, duly
acknowledged in form for recording, signed by Mortgagor and Mortgagee.
Section 7.5. SUCCESSORS AND ASSIGNS. This Mortgage applies to, inures
to the benefit of and binds Mortgagor, Mortgagee and Mortgagee and their
respective successors and assigns, and shall run with the Land.
Section 7.6. CAPTIONS. The captions or headings at the beginning of
each Article and Section hereof are for the convenience of the parties hereto
and are not a part of this Mortgage.
Section 7.7. SEVERABILITY. If any term or provision of this Mortgage or
the application thereof to any Person or circumstance shall to any extent be
invalid or unenforceable, the remainder of this Mortgage, or the application of
such term or
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<PAGE> 44
provision to Persons or circumstances other than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each term and provision of
this Mortgage shall be valid and enforceable to the maximum extent permitted by
law. If any portion of the Loan Obligations shall for any reason not be secured
by a valid and enforceable lien upon any part of the Mortgaged Property, then
any payments made in respect of the Loan Obligations (whether voluntary or under
foreclosure or other enforcement action or procedure or otherwise) shall, for
purposes of this Mortgage (except to the extent otherwise required by applicable
law) be deemed to be made (a) first, in respect of the portion of the Loan
Obligations not secured by the lien of this Mortgage, (b) second, in respect of
the portion of the Loan Obligations secured by the lien of this Mortgage, but
which lien is on less than all of the Mortgaged Property, and (c) last, to the
portion of the Loan Obligations secured by the lien of this Mortgage, and which
lien is on all of the Mortgaged Property.
Section 7.8. INDEMNITY; EXPENSES. Except for actions by Mortgagor
against Mortgagee where Mortgagor is the prevailing party, Mortgagor will pay or
reimburse Mortgagee for all reasonable attorneys' fees, costs and expenses
incurred by Mortgagee in any suit, action, legal proceeding or dispute of any
kind in which Mortgagee is made a party or appears as party plaintiff or
defendant, affecting the Loan Obligations, this Mortgage or the interest created
herein, or the Mortgaged Property, or any appeal thereof, including, without
limitation, activities related to enforcement of the remedies of Mortgagee,
activities related to protection of Mortgagee's collateral, any foreclosure
action or exercise of the power of sale, any action commenced under SECTION
5.3(a), any condemnation action involving the Mortgaged Property or any action
to protect the security hereof, any bankruptcy or other insolvency proceeding
commenced by or against Mortgagor, or any lessee of the Mortgaged Property (or
any part thereof), and any such amounts paid or incurred by Mortgagee shall be
added to the Loan Obligations and shall be secured by this Mortgage. Mortgagor
will indemnify, defend and hold Mortgagee harmless from and against all claims,
damages, and expenses, including reasonable attorneys' fees and court costs,
resulting from any action by a third party against Mortgagee relating to this
Mortgage or the interest created herein, or the Mortgaged Property, including,
without limitation, any action or proceeding claiming loss, damage or injury to
person or property, or any action or proceeding claiming a violation of or
liability under any Legal Requirements, including applicable Environmental Laws,
provided Mortgagor shall not be required to indemnify Mortgagee for matters to
the extent caused by Mortgagee's willful misconduct or fraud. Mortgagor
acknowledges that it has undertaken the obligation to pay all intangibles taxes
and documentary taxes now or hereafter due in connection with the Loan
Obligations and the Loan Documents, and Mortgagor agrees to indemnify and hold
Mortgagee harmless from any intangibles taxes and documentary stamp taxes, and
any interest or penalties, which Mortgagee may hereafter be required to pay in
connection with the Loan Obligations or Loan Documents. The agreements of this
SECTION 7.8 shall
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<PAGE> 45
expressly survive, in perpetuity, satisfaction of this Mortgage and repayment of
the Loan Obligations, any release, reconveyance, discharge or foreclosure of
this Mortgage, conveyance by deed in lieu of foreclosure, sale, and any
subsequent transfer by Mortgagee's conveyance of the Mortgaged Property. The
indemnification by Mortgagor of Mortgagee does not and shall not be deemed to
limit or modify Mortgagor's insurance or other obligations under the Loan
Documents and, Mortgagor's compliance with the insurance requirements under the
Loan Documents shall not limit or modify Mortgagor's indemnification obligations
under the Loan Documents. Mortgagor's duty to defend is independent of
Mortgagor's duty to indemnify, and shall be applicable regardless of mortgagor's
independent liability for such claims, claims based on Mortgagee's strict
liability or liability without fault, or Mortgagee's lack of detriment or
payment of claims. At any stage in the claim or suit against Mortgagee,
Mortgagee is entitled to obtain summary adjudication regarding Mortgagor's duty
to defend.
Section 7.9. ESTOPPEL CERTIFICATES. Mortgagor and Mortgagee each hereby
agree at any time and from time to time upon not less than fifteen (15) days
prior written notice from the other party to execute, acknowledge and deliver to
the party specified in such notice, a statement, in writing, certifying that
this Mortgage is unmodified and in full force and effect (or if there have been
modifications, that the same, as modified, is in full force and effect and
stating the modifications hereto), and stating whether or not, to the best
knowledge of such certifying party, any Default or Event of Default has
occurred, and, if so, specifying each such Default or Event of Default;
provided, however, that it shall be a condition precedent to Mortgagee's
obligation to deliver the statement pursuant to this SECTION 7.9, that Mortgagee
shall have received, together with Mortgagor's request for such statement, an
Officer's Certificate stating that no Default or Event of Default exists as of
the date of such certificate (or specifying such Default or Event of Default).
Section 7.10. APPLICABLE LAW. This Mortgage shall be governed by and
construed in accordance with the laws of the State in which the Facility is
located.
Section 7.11. LIMITATION OF INTEREST. It is the intention of Mortgagor
and Mortgagee to conform strictly to applicable usury laws. Accordingly, if the
transactions contemplated hereby would be usurious under applicable law, then,
in that event, notwithstanding anything to the contrary in any Loan Document, it
is agreed as follows: (i) the aggregate of all consideration which constitutes
interest under applicable law that is taken, reserved, contracted for, charged
or received under any Loan Document or otherwise in connection with the Loan
shall under no circumstances exceed the maximum amount of interest allowed by
applicable law, and any excess shall be credited to principal by Mortgagee (or
if the Loan shall have been paid in full, refunded to Mortgagor); and (ii) in
the event that maturity of the Loan is accelerated by
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<PAGE> 46
reason of an election by Mortgagee resulting from any default hereunder or
otherwise, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more than the maximum
amount of interest allowed by applicable law, and any interest in excess of the
maximum amount of interest allowed by applicable law, if any, provided for in
the Loan Documents or otherwise shall be cancelled automatically as of the date
of such acceleration or prepayment and, if theretofore prepaid, shall be
credited to principal (or if the principal portion of the Loan and any other
amounts not constituting interest shall have been paid in full, refunded to
Mortgagor.)
In determining whether or not the interest paid or payable
under any specific contingency exceeds the maximum amount allowed by applicable
law, Mortgagee shall, to the maximum extent permitted under applicable law (a)
exclude voluntary prepayments and the effects thereof, and (b) amortize,
prorate, allocate and spread, in equal parts, the total amount of interest
throughout the entire contemplated term of the Loan so that the interest rate is
uniform throughout the entire term of the Loan; provided, that if the Loan is
paid and performed in full prior to the end of the full contemplated term
hereof, and if the interest received for the actual period of existence thereof
exceeds the maximum amount allowed by applicable law, Mortgagee shall refund to
Mortgagor the amount of such excess, and in such event, Mortgagee shall not be
subject to any penalties provided by any laws for contracting for, charging or
receiving interest in excess of the maximum amount allowed by applicable law.
Section 7.12. ASSIGNMENT. Mortgagee shall have the right to assign this
Mortgage and the obligations hereunder to any Person in accordance with the Loan
Agreement. The parties hereto acknowledge that following the execution and
delivery of this Mortgage, Mortgagee may sell, transfer and assign this Mortgage
and all or any of the other Loan Documents to the trustee or servicer in
connection with a Securitization. All references to "Mortgagee" hereunder shall
be deemed to include the assigns of Mortgagee including the trustee or servicer
in any Securitization.
Section 7.13. TIME OF THE ESSENCE. Time is of the essence with respect
to each and every covenant, agreement and obligation of Mortgagor under this
Mortgage, the Note and all other Loan Documents.
SECTION 7.14. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE HEREBY
WAIVE ANY RIGHT THAT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY ON ANY CLAIM,
COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN
ANY WAY RELATED TO THIS MORTGAGE OR THE LOAN, OR (B) IN ANY WAY CONNECTED WITH
OR PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF MORTGAGOR AND/OR
MORTGAGEE WITH RESPECT TO THE LOAN
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<PAGE> 47
DOCUMENTS OR IN CONNECTION WITH THIS MORTGAGE OR THE EXERCISE OF ANY PARTY'S
RIGHTS AND REMEDIES UNDER THIS MORTGAGE OR OTHERWISE, OR THE CONDUCT OR THE
RELATIONSHIP OF THE PARTIES HERETO, IN ALL OF THE FOREGOING CASES WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. EACH OF MORTGAGOR AND MORTGAGEE AGREE THAT THE OTHER MAY FILE A COPY
OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY,
AND BARGAINED AGREEMENT OF MORTGAGOR AND MORTGAGEE IRREVOCABLY TO WAIVE ITS
RIGHTS TO TRIAL BY JURY AS AN INDUCEMENT OF MORTGAGEE TO MAKE THE LOAN, AND
THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY
WHATSOEVER (WHETHER OR NOT MODIFIED HEREIN) BETWEEN MORTGAGOR AND MORTGAGEE
SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING
WITHOUT A JURY.
Section 7.15 EXCULPATION. This Mortgage and the obligations of
Mortgagor hereunder are and shall be subject to and limited by the exculpation
provisions of SECTION 8.14 of the Loan Agreement.
Section 7.16. EXHIBITS. The information set forth on the cover, heading
and recitals hereof, and the Exhibits attached hereto, are hereby incorporated
herein as a part of this Mortgage with the same effect as if set forth in the
body hereof.
Section 7.17. FUTURE ADVANCES. This Mortgage is given to secure not
only the existing Loan Obligations, but such future advances, whether such
advances are obligatory or are made at the option of Mortgagee, or otherwise, as
are made within twenty (20) years from the date hereof, to the same extent as if
such future advances were made on the date of the execution of this Mortgage.
The total amount of indebtedness that may be so secured hereunder may decrease
or increase from time to time, but the maximum possible principal indebtedness
so secured at one time shall not exceed one and one-half times the face amount
of the Note, plus interest thereon, and any disbursements made for the payment
of taxes, levies or insurance on the Mortgaged Estate, with interest on such
disbursements at the Default Rate of interest under the Note. An Event of
Default under the Mortgage shall automatically exist (i) if Mortgagor executes
any instrument which purports to have or would have the effect of impairing the
priority of or limiting any future advance which might ever be made under this
Mortgage or (ii) if Mortgagor takes, suffers, or permits any action or
occurrence which would adversely affect the priority of any future advance which
might ever be made under this Mortgage.
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<PAGE> 48
[Signatures commence on next page]
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<PAGE> 49
IN WITNESS WHEREOF, this Mortgage has been duly executed by Mortgagor
indenting to be legally bound as of the day and year first above written.
Witnesses: Mortgagor
---------
GLIMCHER UNIVERSITY MALL LIMITED
Monica Violante PARTNERSHIP, a Delaware limited
- ---------------------------------- partnership
Printed Name: Monica Violante
--------------------
By: Glimcher Tampa, Inc., a Delaware
Alan Shapiro corporation, its general partner
- ----------------------------------
Printed Name: ALAN SHAPIRO
By: /s/ George A. Schmidt
-------------------------------
George A. Schmidt
Senior Vice President
Address: 20 South Third Street
Columbus, Ohio 43215
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<PAGE> 50
STATE OF PENNSYLVANIA )
)SS:
COUNTY OF PHILADELPHIA )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by GEORGE
A. SCHMIDT, the Senior Vice President of GLIMCHER TAMPA, INC., a Delaware
corporation, as the general partner of GLIMCHER UNIVERSITY MALL LIMITED
PARTNERSHIP, a Delaware limited partnership, freely and voluntarily under
authority duly vested in him by said corporation on behalf of the limited
partnership, and that the seal affixed thereto is the true corporate seal of
said corporation. He is personally known to me or who has produced ____________
as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 17th day of December, 1997.
/s/ Janice K. Wright
-----------------------------------------
Janice K. Wright
Notary Public
-----------------------------------------
Typed, printed or stamped name of Notary
Public
My Commission Expires:
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<PAGE> 51
Exhibit A
---------
DESCRIPTION OF PROPERTY
-----------------------
-51-
<PAGE> 52
OP 002 University Square
OWNERS POLICY
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL I (TRACT 1)
A parcel consisting of part of the Southeast Quarter of Section 7 and part of
the Southwest Quarter of Section 8, Township 28 South, Range 19 East,
Hillsborough County, Florida, described as follows:
From the Southeast corner of said Section 7, run North 00(degrees) 08' 00" East
along the East boundary of said Southeast Quarter of Section 7 for a distance of
71.28 feet to a point, which point is on the North right-of-way line of State
Road 582; thence run North 89(degrees) 46' 02" West along said North
right-of-way line for a distance of 250.40 feet; thence run South 00(degrees)
13' 58" West along said right-of-way line for a distance of 10.00 feet; thence
run North 89(degrees) 46' 02" West along said right-of-way line for a distance
of 167.33 feet to the principal point and place of beginning of the following
description; thence continuing along said North line 89(degrees) 46' 02" West
for a distance of 15.56 feet to a point; thence North 00(degrees) 10' 49" East a
distance of 186.22 feet to a point; thence North 89(degrees) 39' 28" West for a
distance of 248.16 feet to a point; thence South 00(degrees) 22' 13" West for a
distance of 186.70 feet to a point on the North right-of-way line of Fowler
Avenue (State Route 582); thence run with said right-of-way North 89(degrees)
46' 02" West for a distance of 622.12 feet to a point which is 30.00 feet East
of the West boundary of the Southeast Quarter of the Southeast Quarter of
Section 7; thence run North 00(degrees) 09' 30" East parallel to said West
boundary of the Southeast Quarter of the Southeast Quarter of Section 7 for a
distance of 408.94 feet; thence North 89(degrees) 46' 02" West for a distance of
30.00 feet to a point on the West boundary of the Southeast Quarter of the
Southeast Quarter of Section 7; thence run North 00(degrees) 09' 80" East along
said west boundary of the Southeast Quarter of the Southeast Quarter of
Section 7 for a distance of 844.91 feet to a point which is 25.00 feet South of
the North boundary of said Southeast Quarter of the Southeast Quarter of Section
7; thence run South 89(degrees) 34' 59" East parallel to said North boundary of
the Southeast Quarter of the Southeast Quarter of Section 7 for a distance of
399.99 feet; thence run Northeasterly along the arc of a curve to the left
(radius - 310.00 feet) for a distance of 162.32 feet (chord - 160.47 feet, chord
bearing North 75(degrees) 25' 01" East); thence run North 60(degrees) 25' 01"
East for a distance of 363.00 feet; thence 97.33 feet along an arc to the right
having a radius of 410.00 feet and a chord of 97.11 feet bearing North
67(degrees) 13' 05" East; thence run North 00(degrees) 13' 58"
continued...
<PAGE> 53
OP 002 University Square
OWNERS POLICY
EXHIBIT "A"
LEGAL DESCRIPTION, CONTINUED...
PARCEL I (TRACT 1), Continued...
East for a distance of 88.72 feet to a point; thence run South 89(degrees)
84' 59" East for a distance of 33.88 feet to a point; thence run North
00(degrees) 07' 35" East for a distance of 482.33 feet to a point; thence run
South 89(degrees) 46' 02" East for a distance of 1035.23 feet to a point; thence
run South 00(degrees) 03' 54" East for a distance of 114.46 feet; thence run
South 89(degrees) 56' 57" West for a distance of 140.01 feet; thence run
South 42(degrees) 55' 38" West for a distance of 20.01 feet; thence run North
89(degrees) 45' 51" West for a distance of 494.43 feet; thence run South
00(degrees) 07' 46" West for a distance of 26.25 feet; thence run South
48(degrees) 15' 06" East for a distance of 46.72 feet; thence run South
89(degrees) 45' 51" East for a distance of 174.51 feet; thence run South
00(degrees) 03' 65" East for a distance of 276.97 feet; thence run North
89(degrees) 46' 02" West for a distance of 82.84 feet to a point; thence run
North 00(degrees) 13' 58" East for a distance of 9.00 feet to a point; thence
run North 89(degrees) 46' 02" West for a distance of 94.50 feet to a point;
thence run South 00(degrees) 13' 58" West for a distance of 9.00 feet to a
point; thence run North 89(degrees) 46' 02" West for a distance of 407.49 feet
to a point; thence run South 00(degrees) 13' 58" West for a distance of
194.48 feet to a point; thence run North 89(degrees) 51' 48" West for a distance
of 83.49 feet; thence run South 00(degrees) 08' 12" West for a distance of
202.71 feet; thence run South 89(degrees) 51' 48" East for a distance of
18.00 feet; thence run South 00(degrees) 08' 12" West for a distance of
86.00 feet; thence run South 89(degrees) 51' 48" East for a distance of
42.25 feet; thence run South 00(degrees) 08' 12" West for a distance of
4.72 feet; thence run South 89(degrees) 46' 02" East for a distance of
281.88 feet to a point; thence run North 00(degrees) 13' 58" East for a distance
of 89.65 feet to a point; thence run South 89(degrees) 46' 02" East for a
distance of 21.00 feet to a point; thence run South 00(degrees) 13' 58" West for
a distance of 34.64 feet to a point; thence run South 89(degrees) 46' 02" East
for a distance of 278.97 feet to a point; thence run South 00(degrees) 13' 58"
West for a distance of 179.74 feet to a point; thence run South 89(degrees)
46' 02" East for a distance of 50.00 feet to a point; thence run North
00(degrees) 13' 58" East for a distance of 17.50 feet to a point; thence run
South 89(degrees) 46' 02" East for a distance of 77.66 feet to a point; thence
run South 48(degrees) 57' 07.7" East for a distance of 72.67 feet to a point;
thence run South 89(degrees) 46' 02" East for a distance of 267.00 feet to a
point; thence run North 21(degrees) 26' 85" East for a distance of 134.08 feet
to a point; thence North 00(degrees) 18' 58" East for a distance of 423.83 feet
to a point; thence run South 45(degrees) 01' 08" East for a distance of
108.85 feet to a point; thence run 288.60 feet along an arc to the right having
a radius
continued...
<PAGE> 54
OP 002 University Square
OWNERS POLICY
EXHIBIT "A"
LEGAL DESCRIPTION, CONTINUED...
PARCEL I (TRACT 1), Continued...
of 1080.00 feet and a chord of 287.74 feet bearing South 67(degrees) 27' 6"
East; thence run South 60(degrees) 01' 08" East for a distance of 266.78 feet to
a point which is 25.00 feet South of the North boundary of said Southwest
Quarter of the Southwest Quarter of Section 8; thence run North 89(degrees)
58' 52" East, parallel to said North Boundary of the Southwest Quarter of the
Southwest Quarter of Section 8, for a distance of 60.00 feet to a point on the
East boundary of said Southwest Quarter of the Southwest Quarter of Section 8;
thence run South 00(degrees) 08' 05" West along said East boundary of the
Southwest Quarter of the Southwest Quarter of Section 8, for a distance of
1219.92 feet to a point on said North right-of-way line; thence run North
89(degrees) 47' 00" West along said North right-of-way line for a distance of
60.00 feet; thence run North 00(degrees) 08' 05" East, parallel to said East
boundary of the Southwest Quarter of the Southwest Quarter of Section 8, for a
distance of 1197.21 feet; thence run North 60(degrees) 01' 08" West for distance
of 261.14 feet to a point; thence run North 65(degrees) 01' 08" West for a
distance of 208.07 feet to a point; thence run North 75(degrees) 01' 08" West
for a distance of 142.66 feet to a point; thence run South 00(degrees) 13' 58"
West for a distance of 252.59 feet to a point; thence run North 89(degrees)
46' 02" West for a distance of 14.66 feet to a point; thence run South
00(degrees) 13' 58" West for a distance of 975.78 feet to a point; thence run
South 89(degrees) 46' 00" East for a distance of 43.42 feet to a point; thence
run South 24(degrees) 02' 00" East for a distance of 57.75 feet to a point;
thence run South 00(degrees) 13' 00" West for a distance of 167.25 feet to a
point on the North right-of-way line of Fowler Avenue (State Route 582); thence
run North 89(degrees) 47' 00" West along said North line for a distance of
225.70 feet to a point; thence run North 00(degrees) 08' 00" East for a distance
of 184.62 feet to a point; thence run North 89(degrees) 39' 54" West for a
distance of 182.29 feet to a point; thence run South 00(degrees) 08' 00" West
for a distance of 10.00 feet; thence run North 89(degrees) 47' 00" West for a
distance of 335.00 feet to a point; thence South 00(degrees) 08' 00" West for a
distance of 175.00 feet to a point on the aforementioned North right-of-way
line; thence run North 89(degrees) 47' 00" West along said North line for a
distance of 30.00 feet to a point; thence run North 00(degrees) 08' 00" East for
a distance of 199.07 feet to a point; thence run South 89(degrees) 47' 00" East
for a distance of 350.07 feet to a point; thence run North 00(degrees) 13' 00"
East for a distance of 350.00 feet to a point; thence run North 89(degrees)
46' 02" West for a distance of 241.99 feet to a point; thence run North
00(degrees) 13' 58" East for a distance of 88.00 feet to a point;
continued...
<PAGE> 55
OP 002 University Square
OWNERS POLICY
EXHIBIT "A"
LEGAL DESCRIPTION, CONTINUED...
PARCEL I (TRACT 1), Continued...
thence run North 89(degrees) 46' 02" West for a distance of 15.00 feet to a
point; thence run North 00(degrees) 13' 58" East for a distance of 95.16 feet to
a point; thence run North 89(degrees) 46' 02" West for a distance of 75.00 feet
to a point; thence run North 00(degrees) 13' 58" East for a distance of
50.00 feet to a point; thence run North 89(degrees) 46' 02" West for a distance
of 127.00 feet to a point; thence run South 00(degrees) 13' 58" West for a
distance of 50.00 feet to a point; thence run North 89(degrees) 46' 02" West for
a distance of 100.00 feet to a point; thence run South 00(degrees) 13' 58" West
for a distance of 70.00 feet to a point; thence run North 89(degrees) 46' 02"
West for a distance of 100.00 feet to a point; thence run South 00(degrees)
13' 58" West for a distance of 76.16 feet to a point; thence run North
89(degrees) 46' 02" West for a distance of 108.38 feet to a point; thence run
South 00(degrees) 13' 58" West for a distance of 586.17 feet to the POINT OF
BEGINNING.
Containing 64.230 acres, more or less. (All acreage referred to herein is for
information purposes only)
Bearings are based on the East Line of the Southeast Quarter of Section 7,
Township 21 South, Range 19 East, as being North 00(degrees) 08' 00" East, per
Official Record Book 2795, Page 119, of the Public Records of Hillsborough
County, Florida.
PARCEL II (TRACT 3)
A parcel consisting of part of the Southwest Quarter of Section 8, Township
28 South, Range 19 East, Hillsborough County, Florida, described as follows:
Commence at the Southwest corner of Section 8, Township 28 South, Range 19 East,
thence run North 00(degrees) 08' 00" East for a distance of 61.28 feet to a
point in the right-of-way of said Fowler Avenue; thence with said right-of-way,
run South 89(degrees) 47' 00" East for a distance of 365.00 feet to the POINT OF
BEGINNING; thence run North 00(degrees) 08' 00" East for a distance of
175.00 feet to a point; thence run North 00(degrees) 08' 00" East for
continued...
<PAGE> 56
OP 002 University Square
OWNERS POLICY
EXHIBIT "A"
LEGAL DESCRIPTION, CONTINUED...
PARCEL II (TRACT 3), Continued...
a distance of 10.00 feet to a point; thence run South 89(degrees) 39' 54" East
for a distance of 182.29 feet to a point; thence run South 00(degrees) 08' 00"
West for a distance of 184.62 feet to a point in the said right-of-way of Fowler
Avenue; thence, with said right-of-way, run North 89(degrees) 47' 00" West for a
distance of 182.30 feet to the POINT OF BEGINNING.
Containing 0.773 acres, more or less. (All acreage referenced herein is for
information purposes only)
Bearings are based on the East Line of the Southeast Quarter of Section 7,
Township 28 South, Range 19 East, as being North 00(degrees) 08' 00" East, per
Official Record Book 2795, Page 119, of the Public Records of Hillsborough
County, Florida.
PARCEL III (TRACT 4)
A parcel consisting of part of the Southeast Quarter of Section 7, Township 28
South, Range 19 East, Hillsborough County, Florida, described as follows:
From the Southeast corner of said Section 7, run North 00(degrees) 08' 00" East
along the East boundary of said Southeast Quarter of Section 7, a distance of
71.28 feet to a point, which point is on the North right-of-way line of State
Road 582; run thence North 89(degrees) 46' 02" West along said North
right-of-way line a distance of 250.40 feet; run thence South 00(degrees)
13' 58" West along said right-of-way line a distance of 10.00 feet; run thence
North 89(degrees) 46' 02" West along said right-of-way line a distance of
1053.78 feet to the principal point and place of beginning of the following
description: Thence continuing along said North line North 89(degrees) 46' 02"
West a distance of 30.00 feet to the West boundary of the Southeast Quarter of
the Southeast Quarter of said Section 7; run thence North 00(degrees) 09' 30"
East along the West boundary of the Southeast Quarter of the Southeast Quarter
of Section 7 a distance of 138.72 feet to a point; run thence South 89(degrees)
46' 02" East a distance of 30.00 feet to a point; run thence South 00(degrees)
09' 30" West parallel with said West boundary of the Southeast Quarter of the
Southeast Quarter
continued...
<PAGE> 57
OP 002 University Square
OWNERS POLICY
EXHIBIT "A"
LEGAL DESCRIPTION, CONTINUED...
PARCEL III (TRACT 4), Continued...
of Section 7 a distance of 138.72 feet to the POINT OF BEGINNING.
Containing 0.096 acres of land, more or less. (All reference to acreage is for
informational purposes only)
Bearings are based on the East Line of the Southeast Quarter of Section 7,
Township 28 South, Rand 19 East, as being North 00(degrees) 08' 00" East, per
Official Record Book 2795, Page 119, of the Public Records of Hillsborough
County, Florida.
PARCEL IV (TRACT 5)
A parcel consisting of part of the Southeast Quarter of Section 7, Township 28
South, Range 19 East, Hillsborough County, Florida, described as follows:
From the Southeast corner of said Section 7, run North 00(degrees) 08' 00" East
along the East boundary of said Southeast Quarter of Section 7 a distance of
71.28 feet to a point, which point is on the North right-of-way line of State
Road 582; run thence North 89(degrees) 46' 02" West along said North
right-of-way line a distance of 250.40 feet; run thence South 00(degrees)
13' 58" West along said right-of-way line a distance of 10.00 feet; run thence
North 89(degrees) 46' 02" West along said right-of-way line a distance of
1053.78 feet to a point; thence continuing along said North line North
89(degrees) 46' 02" West a distance of 30.00 feet to the West boundary of the
Southeast Quarter of the Southeast Quarter of said Section 7; run thence North
00(degrees) 09' 80" East along the West boundary of the Southeast Quarter of the
Southeast Quarter of Section 7 a distance of 138.72 feet to the principal point
and place of beginning of the following description; Thence continue North
00(degrees) 09' 30" East along said West boundary of the Southeast Quarter of
the Southeast Quarter a distance of 265.22 feet to a point; thence run South
89(degrees) 46' 02" East a distance of 30.00 feet to a point; run thence South
00(degrees) 09' 30" West parallel with said West boundary of the Southeast
Quarter of the Southeast Quarter of Section 7 a distance of 265.22 feet to a
point; thence run North 89(degrees) 02" West a distance of 30.00 feet to the
POINT OF BEGINNING.
continued....
<PAGE> 58
OP 002 University Square
OWNERS POLICY
EXHIBIT "A"
LEGAL DESCRIPTION, CONTINUED...
PARCEL IV (TRACT 5), CONTINUED...
Containing 0.183 acres of land, more or less, but subject to all legal highways
and easements of record. (All references to acreage is for informational
purposes only)
Bearings are based on the East line of the Southeast Quarter of Section 7,
Township 28 South, Range 19 East, as being North 00(degrees) 08' 00" East, per
Official Record Book 2795, Page 119, of the Public Records of Hillsborough
County, Florida.
PARCEL V
An Access Easement for the benefit of Parcel I, for purposes of ingress and
egress as set forth in instrument recorded July 23, 1982 in Official Record
Book 2975, page 1882, {SEE TAB 38}, of the Public records of Hillsborough
County, Florida, described as follows:
A parcel consisting of part of the Southeast 1/4 of Section 7, and part of the
Southwest 1/4 of Section 8, Township 28 South, Range 19 East, Hillsborough
County, Florida, described as follows: From the Northeast corner of the
Northwest 1/4 of the Southwest 1/4 of said Section 8, thence North 89(degrees)
56' 41" West along the North line of the Northwest 1/4 of the Southwest 1/4 of
said Section 8 a distance of 1331.73 feet to the Northeast corner of the
Northeast 1/4 of the Southeast 1/4 of Section 7, said point also being the
principal point and place of beginning of the following description:
Thence South 89(degrees) 56' 41" East along the North line of the Northwest 1/4
of the Southwest 1/4 of said Section 8, a distance of 30.00 feet to a point;
thence South 0(degrees) 07' 35" West a distance of 528.92 feet to a point,
thence North 89(degrees) 46' 02" West a distance of 60.00 feet to a point;
thence North 0(degrees) 07' 35" East a distance of 523.74 feet to a point on
the North line of the Northeast 1/4 of the Southeast 1/4 of Section 7; thence
South 89(degrees) 41' 16" East along said North line a distance of 30.00 feet
to the Point of Beginning.
Containing 0.72 acres of land, more or less, but subject to all legal highways
and easements of record. (All reference to acreage is for informational
purposes only)
continued...
<PAGE> 59
OP 002 University Square
OWNER'S POLICY
EXHIBIT "A"
LEGAL DESCRIPTION, CONTINUED...
PARCEL VI
Easements for use of common areas as set forth in Article 24 of the Amended and
Restated Operating Agreement by and among University Square Partners, Allied
Stores General Real Estate Company, Sears, Roebuck & Co., Dillard Department
Stores, Inc., Construction Developers, Incorporated, and Montgomery Ward Land
Corporation dated September 5, 1995 and recorded December 2, 1996 in Official
Record Book 8271, Page 635 {SEE TAB 18}, of the Public Records of Hillsborough
County, Florida.
PARCEL VII
Non-Exclusive Easement for ingress and egress created by that certain
Memorandum of Agreement between University Square Associates and G.A.
Investments, Inc., dated February 4, 1980 and recorded in Official Record book
8627, page 899 {SEE TAB 31}, as corrected by Corrective Agreement, dated March
17, 1981 and recorded in Official Record Book 3807, Page 713 {SEE TAB 82}, both
of the Public records of Hillsborough County, Florida, over and across the
following described parcel of land;
A tract of land in the Southwest 1/4 of Section 8, Township 28 South, Range 19
East, Hillsborough County, Florida, being described as follows:
For a point of reference commence at the Southwest corner of Section 8,
Township 28 South, Range 19 East; run thence with the West boundary of Section
8, North 00(degrees) 08' 00" East, 61.28 feet to a point on the North
right-of-way line of Fowler Avenue as established on September 27, 1967;
thence with said right-of-way line South 89(degrees) 47' 00" East, 205.00 feet
for a point of beginning
Thence North 00(degrees) 08' 00" East, 175.00 feet; thence South 89(degrees)
47' 00" East, 30.00 feet; thence South 00(degrees) 08' 00" West, 175.00 feet to
the North right-of-way line of Fowler Avenue; thence with said right-of-way
line North 89(degrees) 47' 00" West, 30.00 feet to the point of beginning.
