RECORDING REQUESTED BY:
WHEN RECORDED MAIL TO:
Andrews & Kurth L.L.P.
601 S. Figueroa Street,
Suite 4200
Los Angeles, California 90017
Attention: Gregg J. Loubier
Loan No. 1700020098
Property: Old Orchard Shopping Center
Santa Clarita (Valencia), California
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING (as the same may from time to time be extended, renewed or
modified, the "Mortgage"), is made as of September 23, 1997, by CONCORD
MILESTONE PLUS, L.P., a Delaware limited partnership ("Mortgagor"), having its
principal place of business at 5200 Town Center Circle, 4th Floor, Boca Raton,
Florida 33486-1012, to FIRST AMERICAN TITLE INSURANCE COMPANY, as Trustee (the
"Trustee"), for the benefit of WESTCO REAL ESTATE FINANCE CORP., a California
corporation, as beneficiary ("Mortgagee"), having its principal place of
business at c/o Imperial Commercial Capital Corporation, 1 Park Plaza, Suite
430, Irvine, California 92614.
To secure:
A. (i) the payment of an indebtedness in the original principal sum of
EIGHT MILLION FOUR HUNDRED FORTY-FIVE THOUSAND AND NO/100 DOLLARS ($8,445,000),
lawful money of the United States of America, to be paid with interest according
to a certain note dated the date hereof made by Mortgagor to Mortgagee (the note
together with all extensions, renewals or modifications thereof being
hereinafter collectively called the "Note"), and all other sums, liabilities and
obligations constituting the Debt (as defined in the Note), (ii) the payment of
all sums advanced or incurred by Mortgagee contemplated hereby, and (iii) the
performance of the obligations and covenants herein contained or in any other
document or instrument evidencing or securing the Debt, (iv) the payment of any
and all additional advances made by Mortgagee to protect or preserve the
Mortgaged Property or the lien or security interest created hereby on the
Mortgaged Property, or for taxes, assessments or insurance premiums as
hereinafter provided or for performance of any of Mortgagor's obligations
hereunder or under the other Loan Documents (as defined in the Note) or for any
other purpose provided herein or in the other Loan Documents (whether or not the
original Mortgagor remains the owner of the Mortgaged Property at the time of
such advances), together with interest thereon at the Default Rate (as defined
in the Note), and (v) any and all other indebtedness now owing or which may
hereafter be owing by Borrower to Mortgagee, when
evidenced by a promissory note or notes reciting that they are secured by this
Mortgage, however and whenever incurred or evidenced, whether express or
implied, direct or indirect, absolute or contingent, or due or to become due,
and all renewals, modifications, consolidations, replacements and extensions
thereof;
B. (i) the payment of an indebtedness in the original principal sum of
TWO MILLION EIGHT HUNDRED SIXTY-FIVE THOUSAND AND NO/100 DOLLARS ($2,865,000),
lawful money of the United States of America, to be paid with interest according
to a certain note dated the date hereof made by Mortgagor to Mortgagee (the note
together with all extensions, renewals or modifications thereof being
hereinafter collectively called the "Arkansas Note"), and all other sums,
liabilities and obligations constituting the Debt (as defined in the Arkansas
Note), (ii) the payment of all sums advanced or incurred by Mortgagee
contemplated by the Mortgage (as defined in the Arkansas Note), and (iii) the
performance of the obligations and covenants contained in the Mortgage (as
defined in the Arkansas Note);
C. (i) the payment of an indebtedness in the original principal sum of
FIVE MILLION FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($5,400,000), lawful money
of the United States of America, to be paid with interest according to a certain
note dated the date hereof made by Mortgagor to Mortgagee (the note together
with all extensions, renewals or modifications thereof being hereinafter
collectively called the "Arizona Note"), and all other sums, liabilities and
obligations constituting the Debt (as defined in the Arizona Note), (ii) the
payment of all sums advanced or incurred by Mortgagee contemplated by the
Mortgage (as defined in the Arizona Note), and (iii) the performance of the
obligations and covenants contained in the Mortgage (as defined in the Arkansas
Note).
Mortgagor hereby irrevocably grants, transfers and assigns to Trustee,
in trust, with power of sale, and right of entry and possession, all of
Mortgagor's present and future estate, right, title and interest in and to the
real property described in Exhibit A attached hereto (the "Premises") and the
buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter located
thereon (the "Improvements");
TOGETHER WITH: all right, title, interest and estate of Mortgagor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements together with the
following property, rights, interests and estates being hereinafter described
are collectively referred to herein as the "Mortgaged Property"):
(a) all easements, rights-of-way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or pertaining to the
Premises and the Improvements and the reversion and reversions, remainder and
remainders, and all land lying in the bed of any street, road or avenue, opened
or proposed, in front of or adjoining the Premises, to the center line thereof
and all the estates, rights, titles, interests, dower and rights of dower,
curtesy and rights of curtesy, property, possession, claim and demand
whatsoever, both at law and in equity, of Mortgagor of, in and to the Premises
and the Improvements and every part and parcel thereof, with
the appurtenances thereto;
(b) all machinery, furnishings, equipment, fixtures (including, but not
limited to, all heating, air conditioning, plumbing, lighting, communications
and elevator fixtures) and other personal property of every kind and nature
(hereinafter collectively called the "Equipment"), whether tangible or
intangible, whatsoever owned by Mortgagor, or in which Mortgagor has or shall
have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, and usable in connection with the present
or future operation and occupancy of the Premises and the Improvements and all
building equipment, materials and supplies of any nature whatsoever owned by
Mortgagor, or in which Mortgagor has or shall have an interest, now or hereafter
located upon the Premises and the Improvements, or appurtenant thereto, or
usable in connection with the present or future operation, enjoyment and
occupancy of the Premises and the Improvements, including the proceeds of any
sale or transfer of the foregoing, and the right, title and interest of
Mortgagor in and to any of the Equipment which may be subject to any security
interests, as defined in the Uniform Commercial Code, as adopted and enacted by
the State or States where any of the Mortgaged Property is located (the "Uniform
Commercial Code") superior in lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Premises and the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of said rights), or for a change of grade, or for
any other injury to or decrease in the value of the Premises and Improvements;
(d) all leases, subleases and other agreements affecting the use,
enjoyment or occupancy of the Premises and the Improvements heretofore or
hereafter entered into (including, without limitation, any and all security
interests, contractual liens and security deposits) (the "Leases") and all
income, rents, issues, profits and revenues (including all oil and gas or other
mineral royalties and bonuses) from the Premises and the Improvements (the
"Rents") and all proceeds from the sale or other disposition of the Leases and
the right to receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance policies
covering the Mortgaged Property, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or settlements made
in lieu thereof, for damage to the Mortgaged Property;
(f) the right, in the name and on behalf of Mortgagor, to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to commence any action or proceeding to protect the interest of Mortgagee in
the Mortgaged Property;
(g) all accounts, escrows, documents, instruments, chattel paper,
claims, deposits and general intangibles, as the foregoing terms are defined in
the Uniform Commercial Code, and all contract rights, franchises, books,
records, plans, specifications, permits, licenses (to the extent assignable),
approvals, actions, and causes of action which now or hereafter relate to, are
derived from or are used in connection with the Premises, or the use, operation,
maintenance, occupancy or enjoyment thereof or the conduct of any business or
activities thereon (hereinafter collectively called
the "Intangibles"); and
(h) any and all proceeds and products of any of the foregoing and any
and all other security and collateral of any nature whatsoever, now or hereafter
given for the repayment of the Debt and the performance of Mortgagor's
obligations under the Loan Documents (as defined in the Note), including
(without limitation) the Tax and Insurance Escrow Fund (hereafter defined).
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the use and benefit of Trustee, and its successors and assigns;
PROVIDED, HOWEVER, if Borrower shall pay to Mortgagee the Debt at the
time and in the manner provided in the Note and this Mortgage and shall abide by
and comply with each and every covenant and condition set forth herein, in the
Note and in the other Loan Documents in a timely manner, then, upon written
request of Mortgagee stating that all indebtedness secured hereby has been paid,
and upon surrender of this Mortgage and the Note to Trustee for cancellation and
retention and upon payment by Borrower of Trustee's fees, Trustee shall reconvey
to Mortgagor, or the person or persons legally entitled thereto, without
warranty, any portion of the Mortgaged Property then held hereunder (the
recitals in such reconveyance of any matters or facts shall be conclusive proof
of the truthfulness thereof and the grantee in any reconveyance may be described
as "the person or persons legally entitled thereto").
AND Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Mortgagor will pay the Debt at the time and in the manner provided
in the Note and in this Mortgage. Mortgagor will duly and punctually perform all
of the covenants, conditions and agreements contained in the Note, this Mortgage
and the other Loan Documents all of which covenants, conditions and agreements
are hereby made a part of this Mortgage to the same extent and with the same
force as if fully set forth herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor is the sole
owner of and has good, legal, marketable and insurable fee simple title to the
Mortgaged Property and has the full power, authority and right to execute,
deliver and perform its obligations under this Mortgage and to encumber,
mortgage, give, grant, bargain, sell, alienate, enfeoff, convey, confirm,
pledge, assign and hypothecate the same and that Mortgagor possesses an
unencumbered fee estate in the Premises and the Improvements and that it owns
the Mortgaged Property free and clear of all liens, encumbrances and charges
whatsoever except for those exceptions shown in the title insurance policy
insuring the lien of this Mortgage and that this Mortgage is and will remain a
valid and enforceable first lien on and security interest in the Mortgaged
Property, subject only to said exceptions. Mortgagor shall forever warrant,
defend and preserve such title and the validity and priority of the lien of this
Mortgage and shall forever warrant and defend the same to Mortgagee and/or
Trustee against the claims of all persons whomsoever.
3. Insurance. Mortgagor, at its sole cost and expense, will keep the
Mortgaged Property
insured during the entire term of this Mortgage for the mutual benefit of
Mortgagor and Mortgagee against loss or damage by fire and against loss or
damage by other risks and hazards covered by a standard extended coverage
insurance policy and included within the classification "All Risks of Physical
Loss" including, but not limited to, riot and civil commotion, vandalism,
malicious mischief, burglary and theft on a replacement cost basis with an
Agreed Value Endorsement waiving co-insurance, all in an amount not less than
100 percent of the then full replacement cost of the Improvements and Equipment,
without deduction for physical depreciation.
(a) Mortgagor, at its sole cost and expense, for the mutual benefit of
Mortgagor and Mortgagee, shall also obtain and maintain during the entire term
of this Mortgage the following policies of insurance:
i) Flood insurance if any part of the Mortgaged Property now
(or subsequently determined to be) is located in an area identified by
the Federal Emergency Management Agency as an area having special flood
hazards and in which flood insurance has been made available under the
National Flood Insurance Act of 1968 (and any amendment or successor
act thereto) in an amount at least equal to the lesser of the full
replacement cost of the Improvements and the Equipment, the outstanding
principal amount of the Note or the maximum limit of coverage available
with respect to the Improvements and Equipment under said Act.
Mortgagor hereby agrees to pay Mortgagee such fees as may be permitted
under applicable law for the costs incurred by Mortgagee in
determining, from time to time, whether the Mortgaged Property is then
located within such area.
ii) Comprehensive General Liability insurance, including broad
form property damage, blanket contractual and personal injuries
(including death resulting therefrom) coverages and containing minimum
limits per occurrence of $1,000,000 for the Improvements and the
Premises with excess umbrella coverage in an amount of at least $1
million arising out of any one occurrence with aggregate coverage of
$3,000,000, except that if any buildings contain elevators, the
aggregate coverage shall be a minimum of $4,000,000.
iii) Rental loss insurance in an amount equal to the aggregate
annual amount of all Rents and additional Rents payable by all of the
tenants under the Leases (whether or not such Leases are terminable in
the event of a fire or casualty), and all other Rents, such rental loss
insurance to cover rental losses for a period of at least one year
after the date of the fire or casualty in question. The amount of such
rental loss insurance shall be reviewed annually and shall be increased
from time to time during the term of this Mortgage as and when rent
increases occur under Leases previously in place and as a result of new
Leases, and as renewal Leases are entered into in accordance with the
terms of this Mortgage, to reflect all increased rent and increased
additional rent payable by all of the tenants under all such Leases.
iv) Insurance against loss or damage from (1) leakage of
sprinkler systems, and (2) explosion of steam boilers, air conditioning
equipment, high pressure piping, machinery and equipment, pressure
vessels or similar apparatus now or hereafter installed in the
Improvements and including broad form boiler and machinery insurance
(without exclusion
for explosion) covering all boilers or other pressure vessels,
machinery and equipment located in, on, or about the Premises and the
Improvements. Coverage is required in an amount at least equal to the
full replacement cost of such equipment and the building or buildings
housing same. Coverage must extend to electrical equipment, sprinkler
systems, heating and air conditioning equipment, refrigeration
equipment and piping.
v) If the Mortgaged Property includes commercial property,
worker's compensation insurance with respect to any employees of
Mortgagor, as required by any governmental authority or legal
requirement.
vi) [If required by Mortgagee, Earthquake or sinkhole
insurance if available in the area where the Mortgaged Property is
located in an amount at least equal to the outstanding principal amount
of the Note or the maximum limit of coverage available, whichever is
less.]
vii) Such other insurance as may from time to time be
reasonably required by Mortgagee in order to protect its interests.
(b) All policies of insurance (the "Policies") required pursuant to
Section 3: (i) shall contain a standard noncontributory mortgagee clause naming
Mortgagee as the person to which all payments made by such insurance company
shall be paid, (ii) shall be maintained throughout the term of this Mortgage
without cost to Mortgagee, (iii) shall be assigned and delivered to Mortgagee,
(iv) shall contain such provisions as Mortgagee deems reasonably necessary or
desirable to protect its interest including, without limitation, endorsements
providing that neither Mortgagor, Mortgagee nor any other party shall be a
co-insurer under said Policies and that Mortgagee shall receive at least thirty
(30) days' prior written notice, of any modification, reduction or cancellation,
(v) shall be for a term of not less than one year, (vi) shall be issued by an
insurer licensed in the state in which the Mortgaged Property is located, (vii)
shall provide that Mortgagee may, but shall not be obligated to, make premium
payments to prevent any cancellation, endorsement, alteration or reissuance, and
such payments shall be accepted by the insurer to prevent same, (viii) shall be
satisfactory in form and substance to Mortgagee and shall be approved by
Mortgagee as to amounts, form, risk coverage, deductibles, loss payees and
insureds, and (ix) shall provide that all claims shall be allowable on events as
they occur. Upon demand therefor, Mortgagor shall reimburse Mortgagee for all of
Mortgagee's (or its servicer's) reasonable costs and expenses incurred in
obtaining any or all of the Policies or otherwise causing the compliance with
the terms and provisions of this Section 3, including (without limitation)
obtaining updated flood hazard certificates and replacement of any so-called
"forced placed" insurance coverages. All Policies required pursuant to
subsections 3(a) and 3(b) shall be issued by an insurer with a claims paying
ability rating of "A-" or better by Standard & Poor's Corporation or A:VIII or
better by A.M. Best as published in Best's Key Rating Guide. Mortgagor shall pay
the premiums for such Policies (the "Insurance Premiums") as the same become due
and payable (unless such Insurance Premiums have been paid by Mortgagee pursuant
to Paragraph 5 hereof). Not later than thirty (30) days prior to the expiration
date of each of the Policies, Mortgagor will deliver to Mortgagee satisfactory
evidence of the renewal of each Policy. If Mortgagor receives from any insurer
any written notification or threat of any actions or proceedings regarding the
non-compliance or non-conformity of the Mortgaged Property with any
insurance requirements, Mortgagor shall give prompt notice thereof to Mortgagee.
(c) In the event of the entry of a judgment of foreclosure, sale of the
Mortgaged Property by non-judicial foreclosure sale, or delivery of a deed in
lieu of foreclosure, Mortgagee hereby is authorized (without the consent of
Mortgagor) to assign any and all Policies to the purchaser or transferee
thereunder, or to take such other steps as Mortgagee may deem advisable to cause
the interest of such transferee or purchaser to be protected by any of the
Policies without credit or allowance to Mortgagor for prepaid premiums thereon.
(d) If the Mortgaged Property shall be damaged or destroyed, in whole
or in part, by fire or other casualty, Mortgagor shall give prompt notice
thereof to Mortgagee.
i) In case of loss covered by Policies, Mortgagee may either
(1) settle and adjust any claim in consultation with but without the
consent of Mortgagor, or (2) allow Mortgagor to agree with the
insurance company or companies on the amount to be paid upon the loss;
provided, that Mortgagor may adjust losses aggregating not in excess of
$100,000.00 if such adjustment is carried out in a competent and timely
manner, and provided that in any case Mortgagee shall and is hereby
authorized to collect and receipt for any such insurance proceeds; and
the reasonable expenses incurred by Mortgagee in the adjustment and
collection of insurance proceeds shall become part of the Debt and be
secured hereby and shall be reimbursed by Mortgagor to Mortgagee upon
demand (unless deducted by and reimbursed to Mortgagee from such
proceeds).
ii) In the event of any insured damage to or destruction of
the Mortgaged Property or any part thereof (herein called an "Insured
Casualty"), if (A) the loss is in an aggregate amount less than
twenty-five percent (25%) of the original principal balance of the
Note, and (B), in the reasonable judgment of Mortgagee, the Mortgaged
Property can be restored within six (6) months after insurance proceeds
are made available to an economic unit not less valuable (including an
assessment of the impact of the termination of any Leases due to such
Insured Casualty) and not less useful than the same was prior to the
Insured Casualty, and after such restoration will adequately secure the
outstanding balance of the Debt, and (C) no Event of Default
(hereinafter defined) shall have occurred and be then continuing, then
the proceeds of insurance shall be applied to reimburse Mortgagor for
the cost of restoring, repairing, replacing or rebuilding the Mortgaged
Property or part thereof subject to Insured Casualty, as provided for
below; and Mortgagor hereby covenants and agrees forthwith to commence
and diligently to prosecute such restoring, repairing, replacing or
rebuilding; provided, however, in any event Mortgagor shall pay all
costs (and if required by Mortgagee, Mortgagor shall deposit the total
thereof with Mortgagee in advance to be disbursed together with the
insurance proceeds) of such restoring, repairing, replacing or
rebuilding in excess of the net proceeds of insurance made available
pursuant to the terms hereof.
iii) Except as provided above, the proceeds of insurance
collected upon any Insured Casualty shall, at the option of Mortgagee
in its sole discretion, be applied to the payment of the Debt (subject
to any restrictions under applicable law) or applied to reimburse
Mortgagor for the cost of restoring, repairing, replacing or rebuilding
the Mortgaged Property or part thereof subject to the Insured Casualty,
in the manner set forth below. Any such application to the Debt shall
not be considered a voluntary prepayment requiring payment of the
prepayment consideration provided in the Note, and shall not reduce or
postpone any payments otherwise required pursuant to the Note, other
than the final payment on the Note.
iv) In the event that proceeds of insurance, if any, shall be
made available to Mortgagor for the restoring, repairing, replacing or
rebuilding of the Mortgaged Property, Mortgagor hereby covenants to
restore, repair, replace or rebuild the same to be of at least equal
value and of substantially the same character as prior to such damage
or destruction, all to be effected in accordance with applicable law
and plans and specifications approved in advance by Mortgagee.
v) In the event Mortgagor is entitled to reimbursement out of
insurance proceeds held by Mortgagee, such proceeds shall be disbursed
from time to time upon Mortgagee being furnished with (1) evidence
satisfactory to it (which evidence may include inspection[s] of the
work performed) that the restoration, repair, replacement and
rebuilding covered by the disbursement has been completed in accordance
with plans and specifications approved by Mortgagee, (2) evidence
satisfactory to it of the estimated cost of completion of the
restoration, repair, replacement and rebuilding, (3) funds, or, at
Mortgagee's option, assurances satisfactory to Mortgagee that such
funds are available, sufficient in addition to the proceeds of
insurance to complete the proposed restoration, repair, replacement and
rebuilding, and (4) such architect's certificates, waivers of lien,
contractor's sworn statements, title insurance endorsements, bonds,
plats of survey and such other evidences of cost, payment and
performance as Mortgagee may reasonably require and approve; and
Mortgagee may, in any event, require that all plans and specifications
for such restoration, repair, replacement and rebuilding be submitted
to and approved by Mortgagee prior to commencement of work. With
respect to disbursements to be made by Mortgagee: (A) no payment made
prior to the final completion of the restoration, repair, replacement
and rebuilding shall exceed ninety percent (90%) of the value of the
work performed from time to time; (B) funds other than proceeds of
insurance shall be disbursed prior to disbursement of such proceeds;
and (C) at all times, the undisbursed balance of such proceeds
remaining in the hands of Mortgagee, together with funds deposited for
that purpose or irrevocably committed to the satisfaction of Mortgagee
by or on behalf of Mortgagor for that purpose, shall be at least
sufficient in the reasonable judgment of Mortgagee to pay for the cost
of completion of the restoration, repair, replacement or rebuilding,
free and clear of all liens or claims for lien and the costs described
in subsection 3(d)(vi) below. Any surplus which may remain out of
insurance proceeds held by Mortgagee after payment of such costs of
restoration, repair, replacement or rebuilding shall be paid to any
party entitled thereto. In no event shall Mortgagee assume any duty or
obligation for the adequacy, form or content of any such plans and
specifications, nor for the performance, quality or workmanship of any
restoration, repair, replacement and rebuilding.
vi) Notwithstanding anything to the contrary contained herein,
the proceeds of insurance reimbursed to Mortgagor in accordance with
the terms and provisions of this
Mortgage shall be reduced by the reasonable costs (if any) incurred by
Mortgagee in the adjustment and collection thereof and in the
reasonable costs incurred by Mortgagee of paying out such proceeds
(including, without limitation, reasonable attorneys' fees and costs
paid to third parties for inspecting the restoration, repair,
replacement and rebuilding and reviewing the plans and specifications
therefor).
4. Payment of Other Charges. Mortgagor shall pay all assessments, water
rates and sewer rents, ground rents, maintenance charges, other governmental
impositions, and other charges, including without limitation vault charges and
license fees for the use of vaults, chutes and similar areas adjoining the
Premises, now or hereafter levied or assessed or imposed against the Mortgaged
Property or any part thereof (the "Other Charges") as the same become due and
payable. Mortgagor will deliver to Mortgagee evidence satisfactory to Mortgagee
that the Other Charges have been so paid or are not then delinquent no later
than thirty (30) days following the date on which the Other Charges would
otherwise be delinquent if not paid. Mortgagor shall not suffer and shall
promptly cause to be paid and discharged any lien or charge whatsoever which may
be or become a lien or charge against the Mortgaged Property, and shall promptly
pay for all utility services provided to the Mortgaged Property.
5. Tax and Insurance Escrow Fund. On the Closing Date, Mortgagor shall
make an initial deposit to the Tax and Insurance Escrow Fund, as hereinafter
defined, of an amount which, when added to the monthly amounts to be deposited
as specified below, will be sufficient in the estimation of Mortgagee to satisfy
the next due taxes, assessments, insurance premiums and other similar charges.
Mortgagor shall pay to Mortgagee on the first day of each calendar month (a)
one-twelfth of an amount which would be sufficient to pay all taxes, assessments
and other similar governmental impositions (the "Taxes") payable or estimated by
Mortgagee to be payable, during the next ensuing twelve (12) months, and (b)
unless otherwise waived by Mortgagee, one-twelfth of an amount which would be
sufficient to pay the Insurance Premiums due for the renewal of the coverage
afforded by the Policies upon the expiration thereof (said amounts in [a] and
[b] above hereinafter called the "Tax and Insurance Escrow Fund"). Mortgagee
may, in its sole discretion, retain a third party tax consultant to obtain tax
certificates or other evidence or estimates of tax due or to become due or to
verify the payment of taxes and Mortgagor will promptly reimburse Mortgagee for
the reasonable cost of retaining any such third parties or obtaining such
certificates. Any unpaid reimbursements for the aforesaid shall be added to the
Debt. The Tax and Insurance Escrow Fund and the payments of interest or
principal or both, payable pursuant to the Note, shall be added together and
shall be paid as an aggregate sum by Mortgagor to Mortgagee. Mortgagor hereby
pledges (and grants a lien and security interest) to Mortgagee any and all
monies now or hereafter deposited in the Tax and Insurance Escrow Fund as
additional security for the payment of the Debt. Mortgagee will apply the Tax
and Insurance Escrow Fund to payments of Taxes and Insurance Premiums required
to be made by Mortgagor pursuant to Sections 3 and 4 hereof. If the amount of
the Tax and Insurance Escrow Fund shall exceed the amounts due for Taxes and
Insurance Premiums pursuant to Sections 3 and 4 hereof, Mortgagee shall, in its
discretion, return any excess to Mortgagor or credit such excess against future
payments to be made to the Tax and Insurance Escrow Fund. In allocating such
excess, Mortgagee may deal with the person shown on the records of Mortgagee to
be the owner of the Mortgaged Property. If the Tax and Insurance Escrow Fund is
not sufficient to pay the items set forth in (a) and (b) above, Mortgagor shall
promptly pay to
Mortgagee, upon demand, an amount which Mortgagee shall estimate as sufficient
to make up the deficiency. Upon the occurrence of an Event of Default, Mortgagee
shall be entitled to exercise both the rights of setoff and banker's lien, if
applicable, against the interest of Mortgagor in the Tax and Insurance Escrow
Fund to the full extent of the outstanding balance of the Debt, application of
any such sums to the Debt to be in any order in its sole discretion. Until
expended or applied as above provided, any amounts in the Tax and Insurance
Escrow Fund shall constitute additional security for the Debt. The Tax and
Insurance Escrow Fund shall not constitute a trust fund and may be commingled
with other monies held by Mortgagee. Unless otherwise required by applicable
law, no earnings or interest on the Tax and Insurance Escrow Fund shall be
payable to Mortgagor even if the Mortgagee or its servicer is paid a fee and/or
receives interest or other income in connection with the deposit or placement of
such fund (in which event such income shall be reported under Mortgagee's or its
servicer's tax identification number, as applicable). Upon payment of the Debt
and performance by Mortgagor of all its obligations under this Mortgage and the
other Loan Documents, any amounts remaining in the Tax and Insurance Escrow Fund
shall be refunded to Mortgagor.
6. [Intentionally Deleted]
7. Condemnation. Mortgagor shall promptly give Mortgagee written notice
of the actual or threatened commencement of any condemnation or eminent domain
proceeding and shall deliver to Mortgagee copies of any and all papers served in
connection with such proceedings. Mortgagee is hereby irrevocably appointed as
Mortgagor's attorney-in-fact, coupled with an interest, with exclusive power to
collect, receive and retain any award or payment for said condemnation or
eminent domain and to make any compromise or settlement in connection with such
proceeding, subject to the provisions of this Mortgage. Notwithstanding any
taking by any public or quasi-public authority through eminent domain or
otherwise (including but not limited to any transfer made in lieu of or in
anticipation of the exercise of such taking), Mortgagor shall continue to pay
the Debt at the time and in the manner provided for its payment in the Note, in
this Mortgage and the other Loan Documents and the Debt shall not be reduced
until any award or payment therefor shall have been actually received after
expenses of collection and applied by Mortgagee to the discharge of the Debt.
Mortgagor shall cause the award or payment made in any condemnation or eminent
domain proceeding with respect to the Mortgaged Property, which is payable to
Mortgagor, to be paid directly to Mortgagee. Mortgagee may apply any such award
or payment to the reduction or discharge of the Debt whether or not then due and
payable (such application to be free from any prepayment consideration provided
in the Note, except that if an Event of Default, or an event which with notice
and/or the passage of time, or both, would constitute an Event of Default, has
occurred, then such application shall be subject to the full prepayment
consideration computed in accordance with the Note). If the Mortgaged Property
is sold, through foreclosure or otherwise, prior to the receipt by Mortgagee of
such award or payment, Mortgagee shall have the right, whether or not a
deficiency judgment on the Note shall have been sought, recovered or denied, to
receive said award or payment, or a portion thereof sufficient to pay the Debt.
8. Representations Concerning Loan. Mortgagor represents, warrants and
covenants as follows:
(a) Neither Mortgagor nor any guarantor of the Debt or any part thereof
(a "Guarantor") has any defense to the payment in full of the Debt that arises
from applicable local, state or federal laws, regulations or other requirements.
None of the Loan Documents are subject to any right of rescission, set-off,
abatement, diminution, counterclaim or defense, including the defense of usury,
nor will the operation of any of the terms of any such Loan Documents, or the
exercise of any right thereunder, render any Loan Documents unenforceable, in
whole or in part, or subject to any right of rescission, set-off, abatement,
diminution, counterclaim or defense, including the defense of usury, and no such
right of rescission, set-off, abatement, diminution, counterclaim or defense has
been, or will be, asserted with respect thereto.
(b) All certifications, permits and approvals, including, without
limitation, certificates of completion and occupancy permits required for the
legal use and occupancy of the Mortgaged Property, have been obtained and are in
full force and effect. The Mortgaged Property is in good repair, good order and
good condition and free and clear of any damage that would affect materially and
adversely the value of the Mortgaged Property as security for the Debt and the
Mortgaged Property has not been materially damaged by fire, wind or other
casualty or physical condition (including, without limitation, any soil or
geological condition), which damage has not been fully repaired. There are no
proceedings pending or threatened for the partial or total condemnation of the
Mortgaged Property.
(c) All of the Improvements which were included in determining the
appraised value of the Mortgaged Property lie wholly within the boundaries and
building restriction lines of the Mortgaged Property, and no improvements on
adjoining properties encroach upon the Mortgaged Property, and no easements or
other encumbrances upon the Premises encroach upon any of the Improvements, so
as to affect the value or marketability of the Mortgaged Property except for
immaterial encroachments which do not adversely affect the security intended to
be provided by this Mortgage or the use, enjoyment, value or marketability of
the Mortgaged Property. All of the Improvements comply with all material
requirements of any applicable zoning and subdivision laws and ordinances.
(d) The Mortgaged Property is not subject to any leases or operating
agreements other than the leases and the operating agreements, if any, described
in the rent roll delivered to Mortgagee in connection with this Mortgage, and
all such leases and agreements are in full force and effect. No person has any
possessory interest in the Mortgaged Property or right to occupy the same except
under and pursuant to the provisions of the leases and any such operating
agreements.
(e) All financial data, including, without limitation, statements of
cash flow and income and operating expenses, delivered to Mortgagee by, or on
behalf of Mortgagor are (i) true and correct in all material respects; (ii)
accurately represent the financial condition of Mortgagor or the Mortgaged
Property as of the date thereof in all material respects; and (iii) to the
extent reviewed by an independent certified public accounting firm, have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods covered.
(f) The survey of the Mortgaged Property delivered to Mortgagee in
connection with this Mortgage, has been performed by a duly licensed surveyor or
registered professional engineer in the
jurisdiction in which the Mortgaged Property is situated and, to the best of
Mortgagor's knowledge, does not fail to reflect any material matter affecting
the Mortgaged Property or the title thereto.
(g) The loan evidenced by the Loan Documents complies with, or is
exempt from, applicable state or federal laws, regulations and other
requirements pertaining to usury and any and all other requirements of any
federal, state or local law.
(h) The Mortgaged Property abuts upon a dedicated, all-weather road, or
is served and benefitted by an irrevocable easement permitting ingress and
egress which are adequate in relation to the premises and location on which the
Mortgaged Property is located.
(i) The Mortgaged Property is served by public utilities and services
in the surrounding community, including police and fire protection, public
transportation, refuse removal, public education, and enforcement of safety
codes which are adequate in relation to the premises and location on which the
Mortgaged Property is located.
(j) The Mortgaged Property is serviced by public water and sewer
systems which are adequate in relation to the premises and location on which the
Mortgaged Property is located.
(k) The Mortgaged Property has parking and other amenities necessary
for the operation of the business currently conducted thereon which are adequate
in relation to the premises and location on which the Mortgaged Property is
located.
(l) The Mortgaged Property is a contiguous parcel and a separate tax
parcel, and there are no delinquent Taxes or other outstanding charges adversely
affecting the Mortgaged Property.
(m) The Mortgaged Property is not relied upon by, and does not rely
upon, any building or improvement not part of the Mortgaged Property to fulfill
any zoning, building code or other governmental or municipal requirement for
structural support or the furnishing of any essential building systems or
utilities, except to the extent of any valid and existing reciprocal easement
agreements shown in the title insurance policy insuring the lien of this
Mortgage.
(n) No action, omission, misrepresentation, negligence, fraud or
similar occurrence has taken place on the part of any person that would
reasonably be expected to result in the failure or impairment of full and timely
coverage under any insurance policies providing coverage for the Mortgaged
Property.
(o) There are no defaults by Mortgagor beyond any applicable grace
period under any contract or agreement (other than this Mortgage and the other
Loan Documents) that binds Mortgagor and/or the Mortgaged Property, including
any management, service, supply, security, maintenance or similar contracts; and
Mortgagor has no knowledge of any such default for which notice has not yet been
given; and no such agreement is in effect with respect to the Mortgaged Property
that is not capable of being terminated by Mortgagor on less than thirty (30)
days notice except as previously disclosed to Mortgagee by a delivery of a copy
of all such agreements.
(p) The representations and warranties contained in the Closing
Certificate executed by Mortgagor in connection with the Note (which certificate
constitutes one of the Loan Documents) are true and correct and Mortgagor shall
observe the covenants contained therein.
(q) The management agreement with respect to the Mortgaged Property
(the "Management Agreement") between Mortgagor and Concord Assets Management,
Inc., a Delaware corporation ("Manager"), pursuant to which such property
manager operates the Mortgaged Property as an office building, is in full force
and effect and there is no default, breach or violation existing thereunder by
any party thereto and no event has occurred (other than payments due but not yet
delinquent) that, with the passage of time or the giving of notice, or both,
would constitute a default, breach or violation by any party thereunder.
9. Single Purpose Entity/Separateness. Mortgagor represents, warrants
and covenants as follows:
(a) Mortgagor does not own and will not own any asset or property other
than (i) the Mortgaged Property, the Mortgaged Property (as defined in the
Arkansas Note), and the Mortgaged Property (as defined in the Arizona Note)
(collectively, the "Security Property"), and (ii) incidental personal property
necessary for the ownership or operation of the Security Property.
(b) Mortgagor will not engage in any business other than the ownership,
management and operation of the Security Property and Mortgagor will conduct and
operate its business as presently conducted and operated.
(c) Mortgagor will not enter into any contract or agreement with any
Guarantor or any party which is directly or indirectly controlling, controlled
by or under common control with Mortgagor or Guarantor (an "Affiliate"), except
upon terms and conditions that are intrinsically fair and substantially similar
to those that would be available on an arms-length basis with third parties
other than any Guarantor or Affiliate.
(d) Mortgagor has not incurred and will not incur any indebtedness,
secured or unsecured, direct or indirect, absolute or contingent (including
guaranteeing any obligation), other than (i) the Debt, the Debt (as defined in
the Arkansas Note), and the Debt (as defined in the California Note
(collectively, the "Indebtedness"),and (ii) trade and operational debt incurred
in the ordinary course of business with trade creditors and in amounts as are
normal and reasonable under the circumstances. No indebtedness other than the
Indebtedness may be secured (subordinate or pari passu) by the Mortgaged
Property.
(e) Mortgagor has not made and will not make any loans or advances to
any third party, nor to Guarantor, any Affiliate or any constituent party of
Mortgagor.
(f) Mortgagor is and will remain solvent and Mortgagor will pay its
debts from its assets as the same shall become due.
(g) Mortgagor has done or caused to be done and will do all things
necessary, to preserve
its existence, and Mortgagor will not, nor will Mortgagor permit Guarantor to
amend, modify or otherwise change the partnership certificate, partnership
agreement, articles of incorporation and bylaws, trust or other organizational
documents of Mortgagor or Guarantor in a manner which would adversely affect the
Mortgagor's existence as a single-purpose entity.
(h) Mortgagor will maintain books and records and bank accounts
separate from those of its Affiliates and any constituent party of Mortgagor,
and Mortgagor will file its own tax returns.
(i) Mortgagor will be, and at all times will hold itself out to the
public as, a legal entity separate and distinct from any other entity (including
any Affiliate, any constituent party of Mortgagor or any Guarantor).
(j) Mortgagor will preserve and keep in full force and effect its
existence, good standing and qualification to do business in the state in which
the Mortgaged Property is located.
(k) Mortgagor will maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of
its contemplated business operations.
(l) Neither Mortgagor nor any constituent party of Mortgagor will seek
the dissolution or winding up, in whole or in part, of Mortgagor, nor will
Mortgagor merge with or be consolidated into any other entity.
(m) Mortgagor will not commingle the funds and other assets of
Mortgagor with those of any Affiliate, any Guarantor, any constituent party of
Mortgagor or any other person.
(n) Mortgagor has and will maintain its assets in such a manner that it
will not be costly or difficult to segregate, ascertain or identify its
individual assets from those of any constituent party of Mortgagor, Affiliate,
Guarantor or any other person.
(o) Mortgagor does not and will not hold itself out to be responsible
for the debts or obligations of any other person (provided, that the foregoing
shall not prevent Mortgagor from being and holding itself responsible for
expenses incurred or obligations undertaken by the property manager of the
Security Property in respect of its duties regarding the Security Property).
(p) Mortgagor shall obtain and maintain in full force and effect, and
abide by and satisfy the material terms and conditions of, all material permits,
licenses, registrations and other authorizations with or granted by any
governmental authorities that may be required from time to time with respect to
the performance of its obligations under this Mortgage.
(q) Since the formation of Mortgagor, Mortgagor has not owned any
asset, conducted any business or operation, or engaged in any business other
than the ownership and operation of the Security Property. The Mortgagor has no
debts or obligations other than normal trade accounts payable in the ordinary
course of business, and the Indebtedness. Any other indebtedness or obligation
of Mortgagor has been paid in full prior to or through application of proceeds
from
funding of the Loan.
10. Maintenance of Mortgaged Property. Mortgagor shall cause the
Mortgaged Property to be operated and maintained in a good and safe condition
and repair and in keeping with the condition and repair of properties of a
similar use, value, age, nature and construction. Mortgagor shall not use,
maintain or operate the Mortgaged Property in any manner which constitutes a
public or private nuisance or which makes void, voidable, or cancelable, or
increases the premium of, any insurance then in force with respect thereto. The
Improvements and the Equipment shall not be removed, demolished or materially
altered (except for normal replacement of the Equipment) without the consent of
Mortgagee. Mortgagor shall promptly comply with all laws, orders and ordinances
affecting the Mortgaged Property, or the use thereof. Mortgagor shall promptly
repair, replace or rebuild any part of the Mortgaged Property which may be
destroyed by any casualty, or become damaged, worn or dilapidated or which may
be affected by any proceeding of the character referred to in Section 7 hereof
and shall complete and pay for any structure at any time in the process of
construction or repair on the Premises.
11. Use of Mortgaged Property. Mortgagor shall not initiate, join in,
acquiesce in, or consent to any material change in any private restrictive
covenant, zoning law or other public or private restriction, limiting or
defining the uses which may be made of the Mortgaged Property or any part
thereof, nor shall Mortgagor initiate, join in, acquiesce in, or consent to any
zoning change or zoning matter affecting the Mortgaged Property. If under
applicable zoning provisions the use of all or any portion of the Mortgaged
Property is or shall become a nonconforming use, Mortgagor will not cause or
permit such nonconforming use to be discontinued or abandoned without the
express written consent of Mortgagee. Mortgagor shall not permit or suffer to
occur any waste on or to the Mortgaged Property or to any portion thereof and
shall not take any steps whatsoever to convert the Mortgaged Property, or any
portion thereof, to a condominium or cooperative form of management. Mortgagor
will not install or permit to be installed on the Premises any underground
storage tank or above-ground storage tank without the written consent of
Mortgagee.
12. Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor
acknowledges that Mortgagee has examined and relied on the creditworthiness and
experience of Mortgagor in owning and operating properties such as the Mortgaged
Property in agreeing to make the loan secured hereby, and that Mortgagee will
continue to rely on Mortgagor's ownership of the Mortgaged Property as a means
of maintaining the value of the Mortgaged Property as security for repayment of
the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in
maintaining the value of the Mortgaged Property so as to ensure that, should
Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt
by a sale of the Mortgaged Property. Mortgagor shall not, without the prior
written consent of Mortgagee, sell, convey, alienate, mortgage, encumber, pledge
or otherwise transfer the Mortgaged Property or any part thereof, or permit the
Mortgaged Property or any part thereof to be sold, conveyed, alienated,
mortgaged, encumbered, pledged or otherwise transferred; provided, however,
Mortgagee may, in its sole discretion, give such written consent (but shall have
no obligation to do so) to any such sale, conveyance, alienation, mortgage,
encumbrance, pledge or other transfer, and any such consent may be conditioned
upon the satisfaction of such conditions precedent as Mortgagee may require
(including, without limitation, the conditions precedent set forth in subsection
12[c] below). Notwithstanding any other provision of this
Section 12, Mortgagee will consent, subject to the conditions of subsection
12(c) and provided that no Event of Default under the Loan Documents has
occurred and is continuing, to one sale, conveyance, alienation, mortgage,
encumbrance, pledge or other transfer of the Mortgaged Property by the original
Mortgagor as set forth in this Mortgage.
(b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer within the meaning of this Section 12 shall not include (x) transfers
made by devise or descent or by operation of law upon the death of a joint
tenant, partner or shareholder, subject, however, to all the following
requirements: (1) written notice of any transfer under this subsection 12(b)(x),
whether by will, trust or other written instrument, operation of law or
otherwise, is provided to Mortgagee or its servicer, together with copies of
such documents relating to the transfer as Mortgagee or its servicer may
reasonably request, (2) control over the management and operation of the
Mortgaged Property is retained by persons who are acceptable in all respects to
Mortgagee in its sole and absolute discretion, and (3) no such transfer, death
or other event has any adverse effect either on the bankruptcy-remote status of
Mortgagor under the requirements of any national rating agency for the
Certificates (hereinafter defined) or on the status of Mortgagor as a continuing
legal entity liable for the payment of the Debt and the performance of all other
obligations secured hereby, or (y) transfers otherwise by operation of law in
the event of a bankruptcy, nor shall the meaning include a Lease, but shall be
deemed to include (i) an installment sales agreement wherein Mortgagor agrees to
sell the Mortgaged Property or any part thereof for a price to be paid in
installments; (ii) an agreement by Mortgagor leasing all or a substantial part
of the Mortgaged Property for other than actual occupancy by a space tenant
thereunder or a sale, assignment or other transfer of, or the grant of a
security interest in, Mortgagor's right, title and interest in and to any Leases
or any Rents; (iii) if Mortgagor, Guarantor, or any general partner of Mortgagor
or Guarantor is a corporation, any merger, consolidation or the voluntary or
involuntary sale, conveyance or transfer of such corporation's stock (or the
stock of any corporation directly or indirectly controlling such corporation by
operation of law or otherwise) or the creation or issuance of new stock in one
or a series of transactions by which an aggregate of more than 10% of such
corporation's stock shall be vested in a party or parties who are not now
stockholders (provided, however, in no event shall this subpart [iii] apply to
any Guarantor whose stock, shares or partnership interests are traded on a
nationally recognized stock exchange); (iv) if Mortgagor, Guarantor, or any
general partner of Mortgagor or Guarantor is a limited liability company or
limited partnership, the voluntary or involuntary sale, conveyance or transfer
by which an aggregate of more than fifty percent (50%) of the ownership interest
in such limited liability company or more than fifty percent (50%) of the
limited partnership interests in such limited partnership shall be vested in
parties not having an ownership interest as of the date of this Mortgage; and
(v) if Mortgagor, any Guarantor or any general partner of Mortgagor or any
Guarantor is a limited or general partnership or joint venture, the change,
removal or resignation of a general partner, managing partner or joint venturer
or the transfer of all or any portion of the partnership interest of any general
partner, managing partner or joint venturer.
(c) Notwithstanding the provisions of subsections 12(a) and (b) above,
Mortgagee will give its consent to a one time sale or transfer of Mortgaged
Property, provided that no Event of Default under the Loan Documents has
occurred and is continuing and (i) the grantee's or transferee's integrity,
reputation, character and management ability are satisfactory to Mortgagee in
its sole discretion, (ii) the grantee's or transferee's (and its sole general
partner's) single purpose and
bankruptcy remote character are satisfactory to Mortgagee in its sole
discretion, (iii) and any conditions relating to the sale or transfer imposed by
any national rating agency for the Certificates (as defined in Section 20) are
satisfied, (iv) Mortgagee has obtained such estoppels from any guarantors of the
Note or replacement guarantors and such other legal opinions, certificates and
similar matters as Mortgagee may require, (v) all of Mortgagee's costs and
expenses associated with the sale or transfer (including reasonable attorneys
fees) are paid by Mortgagor or the grantee or transferee, (vi) the payment of a
transfer fee not to exceed 1% of the outstanding principal balance of the loan
evidenced by the Note and secured hereby (excluding the Arkansas Note and the
Arizona Note) (the "Loan"), (vii) the grantee's execution of a written
assumption agreement and such modification to the Loan Documents containing such
terms as Mortgagee may require and delivery of such agreement to Mortgagee prior
to such sale or transfer (provided that in the event the Loan is included in a
REMIC and is a performing Loan, no modification to the terms and conditions
shall be made or permitted that would cause (A) any adverse tax consequences to
the REMIC or any holders of any Certificates, (B) the Mortgage to fail to be a
Qualifying Mortgage under applicable federal law relating to REMIC's, or (C)
result in a taxation of the income from the Loan to the REMIC or cause a loss of
REMIC status), (viii) the delivery to Mortgagee of an endorsement (at
Mortgagor's sole cost and expense) to the mortgagee policy of title insurance
then insuring the lien created by this Mortgage in form and substance acceptable
to Mortgagee in its sole judgment, (ix) the ratio of the original principal
amount of the Note to the greater of (A) the purchase price paid by the grantee
or (B) the then fair market value of the Mortgaged Property, shall not exceed 75
percent as reasonably determined by Mortgagee; and (x) the debt service coverage
ratio under the Note with respect to the Mortgaged Property as reasonably
determined by Mortgagee shall be equal to or greater than 1.25:1:00 at the time
of the transfer. Without limiting the foregoing, if Mortgagee shall consent to
any such transfer, the written assumption agreement described in subsection
12(c)(vii) above shall provide for the release of Mortgagor of personal
liability under the Note and other Loan Documents solely as to acts or events
occurring, or obligations arising, after the closing of such sale; provided,
however, in no event shall such sale operate to: (x) relieve Mortgagor of any
personal liability under the Note or any of the other Loan Documents for any
acts or events occurring, or obligations arising, prior to or simultaneously
with the closing of such sale (subject to the applicable recourse limitations
provided in the Note), and Mortgagor shall execute, without any cost or expense
to Mortgagee, such documents and agreements as Mortgagee shall reasonably
require to evidence and effectuate the ratification of such personal liability;
or (y) relieve any current guarantor or indemnitor, including Mortgagor, of its
obligations under any guaranty or indemnity agreement executed in connection
with the loan secured hereby (including, without limitation, the Environmental
Liabilities Agreement of even date herewith [the "Environmental Agreement"]),
and each such current guarantor and indemnitor shall execute, without any cost
or expense to Mortgagee, such documents and agreements as Mortgagee shall
reasonably require to evidence and effectuate the ratification of each such
guaranty and indemnity agreement. Notwithstanding (y) preceding, if the proposed
transferee and a party associated with the proposed transferee (the "Substitute
Guarantor") (1) is approved by Mortgagee in its sole discretion (including a
determination that the proposed transferee and Substitute Guarantor have
adequate financial resources), (2) assumes the obligations of the current
guarantor or indemnitor under its guaranty or indemnity agreement, and (3)
executes, without any cost or expense to Mortgagee, a new guaranty and/or
indemnity agreement, as applicable, in form and substance satisfactory to
Mortgagee, then Mortgagee may release the current guarantor or indemnitor from
all obligations arising under its guaranty or indemnity
agreement after the closing of such sale.
(d) Mortgagee may predicate its decision to grant or withhold consent
to any subsequent sale, conveyance, alienation, mortgage, encumbrance, pledge or
other transfer upon the satisfaction (in the sole determination of Mortgagee)
with such conditions as may be imposed by Mortgagee, which may include, but
shall not be limited to, the following matters: (i) the delivery to Mortgagee of
an endorsement (at Mortgagor's sole cost and expense) to the mortgagee policy of
title insurance then insuring the lien created by this Mortgage in a form and
substance acceptable to Mortgagee, in its sole judgment; (ii) the grantee's
integrity, reputation, character, creditworthiness and management ability being
satisfactory to Mortgagee, in its sole judgment; (iii) the grantee's single
purpose and bankruptcy remote character being satisfactory to Mortgagee, in its
sole judgment; (iv) the grantee executing (prior to such sale or transfer) a
written assumption agreement containing such terms as Mortgagee may require; (v)
subject to any restrictions described in Section 12(c) above relating to the
Loan being included in a REMIC, an adjustment to the term of the Note, a
principal paydown on the Note or an increase in the rate of interest payable on
the Note; (vi) payment by Mortgagor of a transfer and assumption fee not to
exceed one percent (1%) of the then unpaid principal balance of the Note
(excluding the Arizona Note and the Arkansas Note); (vii) payment by Mortgagor
of the expenses described in subsection 12(f) below; and (viii) the satisfaction
of any conditions imposed by any national rating agency for Certificates
(hereinafter defined), together with such modification(s) of the Loan Documents
and such legal opinions, certifications and similar matters that Mortgagee may
require. Mortgagee agrees not to unreasonably withhold its consent to a sale or
transfer of the Mortgaged Property upon the satisfaction (in the sole
determination of Mortgagee) of the conditions to its consent as set forth
herein; provided, however, in any event Mortgagee shall be deemed to be
reasonable in withholding its consent if a sale to the proposed transferee
receives unfavorable comment from a national rating agency for Certificates.
Mortgagee shall not be required to demonstrate any actual impairment of its
security or any increased risk of default hereunder in order to declare the Debt
immediately due and payable upon any sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer by Mortgagor of the Mortgaged Property without
Mortgagee's consent.
(e) Mortgagee's consent to one sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Mortgaged Property shall not be deemed to
be a waiver of Mortgagee's right to require such consent to any future
occurrence of same. Any sale, conveyance, alienation, mortgage, encumbrance,
pledge or transfer of the Mortgaged Property made in contravention of this
Section 12 shall be null and void and of no force and effect.
(f) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on
demand for all reasonable expenses (including, without limitation, all recording
costs, reasonable attorney's fees and disbursements and title search costs)
incurred by Mortgagee in connection with the review, approval and documentation
of any such sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer.
(g) In no event shall any of the terms and provisions of this Section
12 amend or modify the terms and provisions contained in Section 9 herein.
13. Estoppel Certificates and No Default Affidavits.
(a) After request by Mortgagee, Mortgagor shall within ten (10) days
furnish Mortgagee with a statement, duly acknowledged and certified, setting
forth (i) the amount of the original principal amount of the Note, (ii) the
unpaid principal amount of the Note, (iii) the rate of interest of the Note,
(iv) the date installments of interest and/or principal were last paid, (v) any
offsets or defenses to the payment of the Debt, if any, and (vi) that the Note,
this Mortgage and the other Loan Documents are valid, legal and binding
obligations and have not been modified or if modified, giving particulars of
such modification.
(b) After request by Mortgagee, Mortgagor shall within ten (10) days
furnish Mortgagee with a certificate reaffirming all representations and
warranties of Mortgagor set forth herein and in the other Loan Documents as of
the date requested by Mortgagee or, to the extent of any changes to any such
representations and warranties, so stating such changes.
(c) If the Mortgaged Property includes commercial property, Mortgagor
shall deliver to Mortgagee upon request subject to the applicable tenant lease
provisions, tenant estoppel certificates from each commercial tenant at the
Mortgaged Property in form and substance reasonably satisfactory to Mortgagee
provided that Mortgagor shall not be required to deliver such certificates more
frequently than two (2) times in any calendar year.
14. Changes in the Laws Regarding Taxation. If any law is amended,
enacted or adopted after the date of this Mortgage which deducts the Debt from
the value of the Mortgaged Property for the purpose of taxation or which imposes
a tax, either directly or indirectly, on the Debt or Mortgagee's interest in the
Mortgaged Property, Mortgagor will pay such tax, with interest and penalties
thereon, if any. In the event Mortgagee is advised by counsel chosen by it that
the payment of such tax or interest and penalties by Mortgagor would be unlawful
or taxable to Mortgagee or unenforceable or provide the basis for a defense of
usury, then in any such event, Mortgagee shall have the option, by written
notice of not less than forty-five (45) days, to declare the Debt immediately
due and payable.
15. No Credits on Account of the Debt. Mortgagor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes or Other Charges assessed against the Mortgaged Property, or
any part thereof, and no deduction shall otherwise be made or claimed from the
assessed value of the Mortgaged Property, or any part thereof, for real estate
tax purposes by reason of this Mortgage or the Debt. In the event such claim,
credit or deduction shall be required by law, Mortgagee shall have the option,
by written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
16. Documentary Stamps. If at any time the United States of America,
any State thereof or any subdivision of any such State shall require revenue or
other stamps to be affixed to the Note or this Mortgage, or impose any other tax
or charge on the same, Mortgagor will pay for the same, with interest and
penalties thereon, if any.
17. Usury Savings Clause. It is expressly stipulated and agreed to be
the intent of Mortgagor, Trustee and Mortgagee at all times to comply with
applicable state law or applicable United States federal law (to the extent that
it permits Mortgagee to contract for, charge, take, reserve, or receive a
greater amount of interest than under state law) and that this section shall
control every other covenant and agreement in this Mortgage and the other Loan
Documents. If the applicable law (state or federal) is ever judicially
interpreted so as to render usurious any amount called for under the Note or
under any of the other Loan Documents, or contracted for, charged, taken,
reserved, or received with respect to the Debt, or if Mortgagee's exercise of
the option to accelerate the maturity of the Note, or if any prepayment by
Mortgagor results in Mortgagor having paid any interest in excess of that
permitted by applicable law, then it is Mortgagor's, Trustee's and Mortgagee's
express intent that all excess amounts theretofore collected by Mortgagee shall
be credited on the principal balance of the Note and all other Debt (or, if the
Note and all other Debt have been or would thereby be paid in full, refunded to
Mortgagor), and the provisions of the Note and the other Loan Documents
immediately be deemed reformed and the amounts thereafter collectible hereunder
and thereunder reduced, without the necessity of the execution of any new
documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder. All
sums paid or agreed to be paid to Mortgagee for the use, forbearance, or
detention of the Debt shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Debt until payment in full so that the rate or amount of interest on account
of the Debt does not exceed the maximum rate permitted under applicable law from
time to time in effect and applicable to the Debt for so long as the Debt is
outstanding. Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, it is not the intention of Trustee and/or Mortgagee
to accelerate the maturity of any interest that has not accrued at the time of
such acceleration or to collect unearned interest at the time of such
acceleration.
18. Books and Records. Mortgagor will keep accurate books and records
in accordance with sound accounting principles in which full, true and correct
entries shall be promptly made with respect to the Mortgaged Property and the
operation thereof, and will permit all such books and records (including without
limitation all contracts, statements, invoices, bills and claims for labor,
materials and services supplied for the construction, repair or operation of the
Improvements) to be inspected or audited and copies made by Mortgagee and its
representatives during normal business hours and at any other reasonable times.
Mortgagor represents that its chief executive office is as set forth in the
introductory paragraph of this Mortgage and that all books and records
pertaining to the Mortgaged Property are maintained at such location. Mortgagor
will furnish, or cause to be furnished, to Mortgagee on or before forty-five
(45) days after March 31, June 30, September 30 and December 31 of each calendar
year the following items, each certified by Mortgagor as being true and correct,
in such format and in such detail as Mortgagee or its servicer may request: (a)
a written statement (rent roll) dated as of the last day of each such calendar
quarter identifying each of the Leases by the term, space occupied, rental
required to be paid, security deposit paid, any rental concessions, and
identifying any defaults or payment delinquencies thereunder; (b) quarterly and
year to date operating statements prepared for each calendar quarter during each
such reporting period; (c) a property balance sheet for each calendar quarter
during each such reporting period; and (d) a comparison of the budgeted income
and expenses and the actual income and expenses for each calendar quarter during
each such reporting period and year to date. Within ninety (90) days
following the end of each calendar year, Mortgagor shall furnish a statement of
the financial affairs and condition of the Mortgaged Property including a
statement of profit and loss for the Mortgaged Property in such format and in
such detail as Mortgagee or its servicer may request, and setting forth the
financial condition and the income and expenses for the Mortgaged Property for
the immediately preceding calendar year prepared by an independent certified
public accountant. Mortgagor shall deliver to Mortgagee copies of all income tax
returns, requests for extension and other similar items contemporaneously with
its delivery of same to the Internal Revenue Service. On or before November 30
of each calendar year, Mortgagor shall deliver to Mortgagee an itemized
operating budget and capital expenditure budget of the Mortgaged Property and a
management plan for the Mortgaged Property for the next succeeding calendar year
on a quarterly basis, in such format and in such detail as Mortgagee may
request. In the event Mortgagor fails to deliver such reports within the time
frames provided above, Mortgagor shall pay a late charge equal to two percent
(2%) of the monthly payment amount for each late submission of financial reports
to compensate Mortgagee or its servicer for the additional administrative
expense caused by such failure or delay whether or not Mortgagor is entitled to
any notice and opportunity to cure such failure prior to the exercise of any of
the remedies. Failure to provide quarterly or annual reports shall constitute an
Event of Default under Section 23 and entitle Mortgagee to audit or cause to be
audited Mortgagor's books and records. The late charge and the cost of such
audit shall be immediately payable from Mortgagor upon demand by Mortgagee and,
until paid, shall be added to and constitute a part of the Debt. At any time and
from time to time Mortgagor shall deliver to Mortgagee or its agents such other
financial data as Mortgagor prepares for its own use and which Mortgagee or its
agents shall request with respect to the ownership, maintenance, use and
operation of the Mortgaged Property, including, but not limited to, schedules of
gross sales for percentage rents under Leases. Mortgagor will permit
representatives appointed by Mortgagee, including independent accountants,
agents, attorneys, appraisers and any other persons, to visit and inspect during
its normal business hours and at any other reasonable times any of the Mortgaged
Property and to make photographs thereof, and to write down and record any
information such representatives obtain, and shall permit Mortgagee or its
representatives to investigate and verify the accuracy of the information
furnished to Mortgagee under or in connection with this Mortgage or any of the
other Loan Documents and to discuss all such matters with its officers,
employees and representatives. Mortgagor will furnish to Mortgagee at
Mortgagor's expense all evidence which Mortgagee may from time to time
reasonably request as to the accuracy and validity of or compliance with all
representations and warranties made by Mortgagor in the Loan Documents and
satisfaction of all conditions contained therein. Any inspection or audit of the
Mortgaged Property or the books and records of Mortgagor, or the procuring of
documents and financial and other information, by or on behalf of Mortgagee,
shall be for Mortgagee's protection only, and shall not constitute any
assumption of responsibility or liability by Mortgagee to Mortgagor or anyone
else with regard to the condition, construction, maintenance or operation of the
Mortgaged Property, nor Mortgagee's approval of any certification given to
Mortgagee nor relieve Mortgagor of any of Mortgagor's obligations.
19. Performance of Other Agreements. Mortgagor shall observe and
perform each and every term to be observed or performed by Mortgagor pursuant to
the terms of any agreement or recorded instrument affecting or pertaining to the
Mortgaged Property.
20. Further Acts, etc. Mortgagor will, at the cost of Mortgagor, and
without expense to
Mortgagee, do, execute, acknowledge and deliver all and every such further acts,
deeds, conveyances, mortgages, assignments, notices of assignment, Uniform
Commercial Code financing statements or continuation statements, transfers and
assurances as Mortgagee shall, from time to time, require, for the better
assuring, conveying, assigning, transferring, and confirming unto Mortgagee the
property and rights hereby mortgaged, given, granted, bargained, sold,
alienated, enfeoffed, conveyed, confirmed, pledged, assigned and hypothecated or
intended now or hereafter so to be, or which Mortgagor may be or may hereafter
become bound to convey or assign to Mortgagee, or for carrying out the intention
or facilitating the performance of the terms of this Mortgage or for filing,
registering or recording this Mortgage. Mortgagor, on demand, will execute and
deliver and hereby authorizes Mortgagee to execute in the name of Mortgagor or
without the signature of Mortgagor to the extent Mortgagee may lawfully do so,
one or more financing statements, chattel mortgages or other instruments, to
evidence more effectively the security interest of Mortgagee in the Mortgaged
Property. Mortgagor grants to Mortgagee an irrevocable power of attorney coupled
with an interest for the purpose of exercising and perfecting any and all rights
and remedies available to Mortgagee at law and in equity, including without
limitation such rights and remedies available to Mortgagee pursuant to this
paragraph.
(a) Mortgagee (and its mortgage servicer and their respective assigns)
shall have the right to disclose in confidence such financial information
regarding Mortgagor, Guarantor or the Mortgaged Property as may be necessary (i)
to complete any sale or attempted sale of the Note or participations in the loan
(or any transfer of the mortgage servicing thereof) evidenced by the Note and
the Loan Documents, (ii) to service the Note or (iii) to furnish information
concerning the payment status of the Note to the holder or beneficial owner
thereof, including, without limitation, all Loan Documents, financial
statements, projections, internal memoranda, audits, reports, payment history,
appraisals and any and all other information and documentation in the
Mortgagee's files (and such servicer's files) relating to the Mortgagor, any
Guarantor and the Mortgaged Property. This authorization shall be irrevocable in
favor of the Mortgagee (and its mortgage servicer and their respective assigns),
and Mortgagor and Guarantor waive any claims that they may have against the
Mortgagee, its mortgage servicer and their respective assigns or the party
receiving information from the Mortgagee pursuant hereto regarding disclosure of
information in such files and further waive any alleged damages which they may
suffer as a result of such disclosure.
(b) The Mortgagor acknowledges that the Mortgagee intends to sell the
loan evidenced by the Note and the Loan Documents or a participation interest
therein to a party who may pool the loan with a number of other loans and to
have the holder of such loans (most likely a special purpose REMIC) issue one or
more classes of Mortgage Backed Pass-Through Certificates (the "Certificates"),
which may be rated by one or more national rating agencies. Mortgagee (and its
mortgage servicer and their respective assigns) shall be permitted to share any
of the information referred to in subsection (b) above, whether obtained before
or after the date of the Note, with the holders or potential holders of the
Certificates, investment banking firms, rating agencies, accounting firms,
custodians, successor mortgage servicers, law firms and other third-party
advisory firms involved with the loan evidenced by the Note and the Loan
Documents or the Certificates. It is understood that the information provided by
the Mortgagor to the Mortgagee (or its mortgage servicer and their respective
assigns) or otherwise received by Mortgagee (or its mortgage servicer and their
respective assigns) in connection with the loan evidenced by the Loan Documents
may
ultimately be incorporated into the offering documents for the Certificates and
thus various prospective investors may also see some or all of the information.
The Mortgagee (and its mortgage servicer and their respective assigns) and all
of the aforesaid third-party advisors and professional firms shall be entitled
to rely on the information supplied by, or on behalf of, the Mortgagor.
21. Recording of Mortgage, etc. Upon the execution and delivery of this
Mortgage and thereafter, from time to time, Mortgagor will cause this Mortgage,
and any security instrument creating a lien or security interest or evidencing
the lien hereof upon the Mortgaged Property and each instrument of further
assurance to be filed, registered or recorded in such manner and in such places
as may be required by any present or future law in order to publish notice of
and fully to protect the lien or security interest hereof upon, and the interest
of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
registration or recording fees, and all expenses incident to the preparation,
execution and acknowledgment of this Mortgage, any mortgage supplemental hereto,
any security instrument with respect to the Mortgaged Property and any
instrument of further assurance, and all federal, state, county and municipal,
taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged Property or any
instrument of further assurance, except where prohibited by law so to do.
Mortgagor shall hold harmless and indemnify Mortgagee, its successors and
assigns, against any liability incurred by reason of the imposition of any tax
on the making and recording of this Mortgage.
22. Reporting Requirements. Mortgagor agrees to give prompt notice to
Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the death,
insolvency or bankruptcy filing of any Guarantor.
23. Events of Default. The term "Event of Default" as used herein shall
mean the occurrence or happening, at any time and from time to time, of any one
or more of the following:
(a) if any portion of the Debt is not paid within ten (10) days from the
date when the same is due;
(b) if the Policies are not kept in full force and effect, or if the
Policies are not delivered to Mortgagee upon request;
(c) if Mortgagor fails to timely provide any quarterly or annual
financial or accounting report;
(d) if Mortgagor sells, conveys, alienates, mortgages, encumbers,
pledges or otherwise transfers any portion of the Mortgaged Property or permits
the Mortgaged Property or any part thereof to be sold, conveyed, alienated,
mortgaged, encumbered, levied, pledged or otherwise transferred without
Mortgagee's prior written consent except as may be permitted in Section 12
above;
(e) if any representation or warranty of Mortgagor, or of any
Guarantor, made herein, in any Loan Document, any guaranty, or in any
certificate, report, financial statement or other
instrument or document furnished to Mortgagee shall have been false or
misleading in any material respect when made;
(f) if Mortgagor or any Guarantor shall make an assignment for the
benefit of creditors or if Mortgagor or any Guarantor shall admit in writing its
inability to pay, or Mortgagor's or any Guarantor's failure to pay, debts
generally as the debts become due;
(g) if a receiver, liquidator or trustee of Mortgagor or of any
Guarantor shall be appointed or if Mortgagor or any Guarantor shall be
adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by or against, consented to, or acquiesced
in by, Mortgagor or any Guarantor or if Mortgagor or any Guarantor shall admit
in writing its insolvency or bankruptcy or if any proceeding for the dissolution
or liquidation of Mortgagor or of any Guarantor shall be instituted; however, if
such appointment, adjudication, petition or proceeding was involuntary and not
consented to by Mortgagor or such Guarantor, upon the same not being discharged,
stayed or dismissed within sixty (60) days;
(h) subject to Mortgagor's right to contest as provided herein, if the
Mortgaged Property becomes subject to any mechanic's, materialman's, mortgage or
other lien except a lien for local real estate taxes and assessments not then
due and payable;
(i) if Mortgagor fails to cure properly any violations of laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property;
(j) except as permitted in this Mortgage, the actual or threatened
alteration, improvement, demolition or removal of any of the Improvements
without the prior consent of Mortgagee;
(k) damage to the Mortgaged Property in any manner which is not covered
by insurance solely as a result of Mortgagor's failure to maintain insurance
required in accordance with this Mortgage;
(l) if Mortgagor shall default under any term, covenant, or condition
of this Mortgage or any of the other Loan Documents other than as specified in
any of the above subparagraphs;
(m) if without Mortgagee's prior consent (i) the managing agent for the
Mortgaged Property resigns or is removed or (ii) the ownership, management or
control of such managing agent is transferred to a person or entity other than
the general partner or managing partner of the Mortgagor, or (iii) there is any
material change in the property management agreement of the Mortgaged Property;
(n) if all or a substantial part of Mortgagor's assets (other than the
Mortgaged Property) are attached, seized, subjected to a writ or distress
warrant or are levied upon (unless such attachment, seizure, writ, distress
warrant or levy is vacated within sixty [60] days following the date of the
same);
(o) entry of a judgment in excess of $100,000.00 and the expiration of
any appeal rights or the dismissal or final adjudication of appeals against
Mortgagor (unless such judgment is vacated within sixty [60] days following the
date of the same);
(p) the Mortgage shall cease to constitute a first-priority lien on the
Mortgaged Property (other than in accordance with its terms);
(q) seizure or forfeiture of the Mortgaged Property, or any portion
thereof, or Mortgagor's interest therein, resulting from criminal wrongdoing or
other unlawful action of Mortgagor, its affiliates, or any tenant in the
Mortgaged Property under any federal, state or local law;
(r) an Event of Default occurs under the Arizona Note or any one of the
other Loan Documents (as defined in the Arizona Note); and
(s) an Event of Default occurs under the Arkansas Note or any one of
the other Loan Documents (as defined in the Arkansas Note).
24. Notice and Cure. Notwithstanding the foregoing, Mortgagee agrees to
give to Mortgagor written notice as described below of (a) Mortgagor's failure
to pay any part of the Debt when due (a "Monetary Default"), (b) a default
referred to in subsection 23(p) above (a "First Lien Default") and (c) a default
referred to in subsections 23(c),(i) or (1) above (a "Nonmonetary Default").
Mortgagor shall have a period of ten (10) days from its receipt of notice in
which to cure a Monetary Default (which written notice period may run
concurrently with the ten [10] day period referred to in subsection 23[a]),
shall have a period of twenty (20) days from its receipt of notice to cure a
First Lien Default and shall have a period of twenty (20) days from its receipt
of notice in which to cure a Nonmonetary Default unless such Nonmonetary Default
is not susceptible to cure within such twenty (20) day period, in which case
Mortgagor shall commence to cure such Nonmonetary Default within twenty (20)
days following notice and diligently prosecute such cure to completion,
provided, however, that Mortgagor will provide Mortgagee with such information
as Mortgagee may reasonably request concerning the status of any attempted cure
of any such Nonmonetary Default and the cure of any such Nonmonetary Default
must be completed to the satisfaction of Mortgagee within sixty (60) days of
notice in any case. Notwithstanding the foregoing, Mortgagee may, but shall not
be required, to give notice of a Monetary Default or a recurrence of the same
Nonmonetary Default more frequently than two times in any calendar year. A
Monetary Default and/or First Lien Default and/or Nonmonetary Default shall
nevertheless be an Event of Default for all purposes under the Loan Documents
(including, without limitation, Mortgagee's right to collect Default Interest
and any other administrative charge set forth in the Note) except that the
acceleration of the Debt or other exercise of remedies shall not be prior to the
expiration of the applicable cure and/or grace periods provided in Section 23 or
in this section.
25. Remedies. Upon the occurrence of an Event of Default and subject to
any applicable cure period, Mortgagee may, at Mortgagee's option, and by or
through Trustee, by Mortgagee itself or otherwise, do any one or more of the
following:
(a) Right to Perform Mortgagor's Covenants. If Mortgagor has failed to keep
or perform
any covenant whatsoever contained in this Mortgage or the other Loan Documents,
Mortgagee may, but shall not be obligated to any person to do so, perform or
attempt to perform said covenant; and any payment made or expense incurred in
the performance or attempted performance of any such covenant, together with any
sum expended by Mortgagee that is chargeable to Mortgagor or subject to
reimbursement by Mortgagor under the Loan Documents, shall be and become a part
of the "Debt," and Mortgagor promises, upon demand, to pay to Mortgagee, at the
place where the Note is payable, all sums so incurred, paid or expended by
Mortgagee, with interest from the date when paid, incurred or expended by
Mortgagee at the Default Rate as specified in the Note.
(b) Right of Entry. Mortgagee may, prior or subsequent to the
institution of any foreclosure proceedings, enter upon the Mortgaged Property,
or any part thereof, and take exclusive possession of the Mortgaged Property and
of all books, records, and accounts relating thereto and to exercise without
interference from Mortgagor any and all rights which Mortgagor has with respect
to the management, possession, operation, protection, or preservation of the
Mortgaged Property, including without limitation the right to rent the same for
the account of Mortgagor and to deduct from such Rents all costs, expenses, and
liabilities of every character incurred by the Mortgagee in collecting such
Rents and in managing, operating, maintaining, protecting, or preserving the
Mortgaged Property and to apply the remainder of such Rents on the Debt in such
manner as Mortgagee may elect. All such costs, expenses, and liabilities
incurred by the Mortgagee in collecting such Rents and in managing, operating,
maintaining, protecting, or preserving the Mortgaged Property, if not paid out
of Rents as hereinabove provided, shall constitute a demand obligation owing by
Mortgagor and shall bear interest from the date of expenditure until paid at the
Default Rate as specified in the Note, all of which shall constitute a portion
of the Debt. If necessary to obtain the possession provided for above, the
Mortgagee may invoke any and all legal remedies to dispossess Mortgagor,
including specifically one or more actions for forcible entry and detainer,
trespass to try title, and restitution. In connection with any action taken by
the Mortgagee pursuant to this subparagraph, the Mortgagee shall not be liable
for any loss sustained by Mortgagor resulting from any failure to let the
Mortgaged Property, or any part thereof, or from any other act or omission of
the Mortgagee in managing the Mortgaged Property unless such loss is caused by
the willful misconduct of the Mortgagee, nor shall the Mortgagee be obligated to
perform or discharge any obligation, duty, or liability under any Lease or under
or by reason hereof or the exercise of rights or remedies hereunder. Mortgagor
shall and does hereby agree to indemnify the Mortgagee for, and to hold the
Mortgagee harmless from, any and all liability, loss, or damage, which may or
might be incurred by the Mortgagee under any such Lease or under or by reason
hereof or the exercise of rights or remedies hereunder, and from any and all
claims and demands whatsoever which may be asserted against the Mortgagee by
reason of any alleged obligations or undertakings on its part to perform or
discharge any of the terms, covenants, or agreements contained in any such
Lease. Should the Mortgagee incur any such liability, the amount thereof,
including without limitation costs, expenses, and reasonable attorneys' fees,
together with interest thereon from the date of expenditure until paid at the
Default Rate as specified in the Note, shall be secured hereby, and Mortgagor
shall reimburse the Mortgagee therefor immediately upon demand. Nothing in this
subsection shall impose any duty, obligation, or responsibility upon the
Mortgagee for the control, care, management, leasing, or repair of the Mortgaged
Property, nor for the carrying out of any of the terms and conditions of any
such Lease; nor shall it operate to make the Mortgagee responsible or liable for
any waste committed on the Mortgaged Property by the tenants or by any other
parties, or for any
hazardous substances or environmental conditions on or under the Mortgaged
Property, or for any dangerous or defective condition of the Mortgaged Property
or for any negligence in the management, leasing, upkeep, repair, or control of
the Mortgaged Property resulting in loss or injury or death to any tenant,
licensee, employee, or stranger. Mortgagor hereby assents to, ratifies, and
confirms any and all actions of the Mortgagee with respect to the Mortgaged
Property taken under this subparagraph.
(c) Right to Accelerate. Mortgagee may, without notice except as
provided in Section 24 above, demand, presentment, notice of nonpayment or
nonperformance, protest, notice of protest, notice of intent to accelerate,
notice of acceleration, or any other notice or any other action, all of which
are hereby waived by Mortgagor and all other parties obligated in any manner
whatsoever on the Debt, declare the entire unpaid balance of the Debt
immediately due and payable, and upon such declaration, the entire unpaid
balance of the Debt shall be immediately due and payable.
(d) Foreclosure-Power of Sale. Mortgagee may institute a proceeding or
proceedings, judicial, or nonjudicial, by advertisement or otherwise, for the
complete or partial foreclosure of this Mortgage or the complete or partial sale
of the Mortgaged Property under the power of sale contained herein or under any
applicable provision of law. Mortgagee may sell the Mortgaged Property, and all
estate, right, title, interest, claim and demand of Mortgagor therein, and all
rights of redemption thereof, at one or more sales, as an entirety or in
parcels, with such elements of real and/or personal property, and at such time
and place and upon such terms as it may deem expedient, or as may be required by
applicable law, and in the event of a sale, by foreclosure or otherwise, of less
than all of the Mortgaged Property, this Mortgage shall continue as a lien and
security interest on the remaining portion of the Mortgaged Property.
(e) Rights Pertaining to Sales. Subject to the requirements of
applicable law and except as otherwise provided herein, the following provisions
shall apply to any sale or sales of all or any portion of the Mortgaged Property
under or by virtue of subsection (d) above, whether made under the power of sale
herein granted or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale:
i) Should Mortgagee elect to foreclose by exercise of the
power of sale herein contained, Mortgagee shall notify Trustee and
shall deposit with Trustee this Deed of Trust and the Note and such
receipts and evidence of expenditures made and secured hereby as
Trustee may require. Upon receipt of such notice from Mortgagee,
Trustee shall cause to be recorded, published and delivered to
Mortgagor such Notice of Default (herein so called) and Election to
Sell (herein so called) as then required by law and by this Deed of
Trust. Trustee shall, without demand on Mortgagor, after lapse of such
time as may then be required by law and after recordation of such
Notice of Default and after Notice of Sale having been given as
required by law, sell the Mortgaged Property at the time and place of
sale fixed by it in said Notice of Sale, either as a whole, or in
separate lots or parcels or items as Trustee shall deem expedient, and
in such order as it may determine, at public auction to the highest
bidder for cash in lawful money of the United States payable at the
time of sale. Trustee shall deliver to such purchaser or purchasers
thereof its good and sufficient deed or deeds conveying the property so
sold, but without any covenant or warranty, express or implied.
The recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any person, including, without
limitation, Mortgagor, Trustee or Mortgagee, may purchase at such sale
and Mortgagor hereby covenants to warrant and defend the title of such
purchaser or purchasers. After deducting all costs, fees and expenses
of Trustee and of this Trust, including costs of evidence of title in
connection with sale, Trustee shall apply the proceeds of sale in the
following priority, to payment of: (A) first, all sums expended under
the terms hereof, not then repaid, with accrued interest at the Default
Rate; (B) second, all other sums then secured hereby; and (C) the
remainder, if any, to the person or persons legally entitled thereto.
Trustee or Mortgagee may conduct any number of sales from time to time.
The power of sale set forth above shall not be exhausted by any one or
more such sales as to any part of the Mortgaged Property which shall
not have been sold, nor by any sale which is not completed or is
defective in Mortgagee's opinion, until the Debt shall have been paid
in full.
ii) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or for such
postponed or adjourned sale without further notice.
iii) After each sale, Mortgagee, Trustee or an officer of any
court empowered to do so shall execute and deliver to the purchaser or
purchasers at such sale a good and sufficient instrument or instruments
granting, conveying, assigning and transferring all right, title and
interest of Mortgagor in and to the property and rights sold and shall
receive the proceeds of said sale or sales and apply the same as
specified in the Note. Each of Trustee and Mortgagee is hereby
appointed the true and lawful attorney-in-fact of Mortgagor, which
appointment is irrevocable and shall be deemed to be coupled with an
interest, in Mortgagor's name and stead, to make all necessary
conveyances, assignments, transfers and deliveries of the property and
rights so sold, Mortgagor hereby ratifying and confirming all that said
attorney or such substitute or substitutes shall lawfully do by virtue
thereof. Nevertheless, Mortgagor, if requested by Trustee or Mortgagee,
shall ratify and confirm any such sale or sales by executing and
delivering to Trustee, Mortgagee or such purchaser or purchasers all
such instruments as may be advisable, in Trustee's or Mortgagee's
judgment, for the purposes as may be designated in such request.
iv) Any and all statements of fact or other recitals made in
any of the instruments referred to in subparagraph (iii) of this
subsection (e) given by Trustee or Mortgagee shall be taken as
conclusive and binding against all persons as to evidence of the truth
of the facts so stated and recited.
v) Any such sale or sales shall operate to divest all of the
estate, right, title, interest, claim and demand whatsoever, whether at
law or in equity, of Mortgagor in and to the properties and rights so
sold, and shall be a perpetual bar both at law and in equity against
Mortgagor and any and all persons claiming or who may claim the same,
or any part thereof or any interest therein, by, through or under
Mortgagor to the fullest extent permitted by applicable law.
vi) Upon any such sale or sales, Mortgagee may bid for and
acquire the Mortgaged Property and, in lieu of paying cash therefor,
may make settlement for the purchase price by crediting against the
Debt the amount of the bid made therefor, after deducting therefrom the
expenses of the sale, the cost of any enforcement proceeding hereunder,
and any other sums which Trustee or Mortgagee is authorized to deduct
under the terms hereof, to the extent necessary to satisfy such bid.
vii) Upon any such sale, it shall not be necessary for
Trustee, Mortgagee or any public officer acting under execution or
order of court to have present or constructively in its possession any
of the Mortgaged Property.
(f) Mortgagee's Judicial Remedies. Mortgagee, or Trustee upon written
request of Mortgagee, may proceed by suit or suits, at law or in equity, to
enforce the payment of the Debt to foreclose the liens and security interests of
this Mortgage as against all or any part of the Mortgaged Property, and to have
all or any part of the Mortgaged Property sold under the judgment or decree of a
court of competent jurisdiction. This remedy shall be cumulative of any other
nonjudicial remedies available to the Mortgagee under this Mortgage or the other
Loan Documents. Proceeding with a request or receiving a judgment for legal
relief shall not be or be deemed to be an election of remedies or bar any
available nonjudicial remedy of the Mortgagee.
(g) Mortgagee's Right to Appointment of Receiver . Mortgagee, as a
matter of right and (i) without regard to the sufficiency of the security for
repayment of the Debt and without notice to Mortgagor, (ii) without any showing
of insolvency, fraud, or mismanagement on the part of Mortgagor, (iii) without
the necessity of filing any judicial or other proceeding other than the
proceeding for appointment of a receiver, and (iv) without regard to the then
value of the Mortgaged Property, shall be entitled to the appointment of a
receiver or receivers for the protection, possession, control, management and
operation of the Mortgaged Property, including (without limitation), the power
to collect the Rents, enforce this Mortgage and, in case of a sale and
deficiency, during the full statutory period of redemption (if any), whether
there be a redemption or not, as well as during any further times when
Mortgagor, except for the intervention of such receiver, would be entitled to
collection of such Rents. Mortgagor hereby irrevocably consents to the
appointment of a receiver or receivers. Any receiver appointed pursuant to the
provisions of this subsection shall have the usual powers and duties of
receivers in such matters.
(h) Mortgagee's Uniform Commercial Code Remedies. The Mortgagee may
exercise its rights of enforcement under the Uniform Commercial Code in effect
in the state in which the Mortgaged Property is located.
(i) Other Rights. Mortgagee (i) may surrender the Policies maintained
pursuant to this Mortgage or any part thereof, and upon receipt shall apply the
unearned premiums as a credit on the Debt, and, in connection therewith,
Mortgagor hereby appoints Mortgagee as agent and attorney-in-fact (which is
coupled with an interest and is therefore irrevocable) for Mortgagor to collect
such premiums; and (ii) may apply the Tax and Insurance Escrow Fund and any
other funds held by Mortgagee toward payment of the Debt; and (iii) shall have
and may exercise any and all other rights and remedies which Mortgagee may have
at law or in equity, or by virtue of any of the
Loan Documents, or otherwise.
(j) Discontinuance of Remedies. In case Mortgagee shall have proceeded
to invoke any right, remedy, or recourse permitted under the Loan Documents and
shall thereafter elect to discontinue or abandon same for any reason, Mortgagee
shall have the unqualified right so to do and, in such event, Mortgagor and
Mortgagee shall be restored to their former positions with respect to the Debt,
the Loan Documents, the Mortgaged Property or otherwise, and the rights,
remedies, recourses and powers of Mortgagee shall continue as if same had never
been invoked.
(k) Remedies Cumulative. All rights, remedies, and recourses of
Mortgagee granted in the Note, this Mortgage and the other Loan Documents, any
other pledge of collateral, or otherwise available at law or equity: (i) shall
be cumulative and concurrent; (ii) may be pursued separately, successively, or
concurrently against Mortgagor, the Mortgaged Property, or any one or more of
them, at the sole discretion of Mortgagee; (iii) may be exercised as often as
occasion therefor shall arise, it being agreed by Mortgagor that the exercise or
failure to exercise any of same shall in no event be construed as a waiver or
release thereof or of any other right, remedy, or recourse; (iv) shall be
nonexclusive; (v) shall not be conditioned upon Mortgagee exercising or pursuing
any remedy in relation to the Mortgaged Property prior to Mortgagee bringing
suit to recover the Debt; and (vi) in the event Mortgagee elects to bring suit
on the Debt and obtains a judgment against Mortgagor prior to exercising any
remedies in relation to the Mortgaged Property, all liens and security
interests, including the lien of this Mortgage, shall remain in full force and
effect and may be exercised thereafter at Mortgagee's option.
(l) Election of Remedies. Mortgagee may release, regardless of
consideration, any part of the Mortgaged Property without, as to the remainder,
in any way impairing, affecting, subordinating, or releasing the lien or
security interests evidenced by this Mortgage or the other Loan Documents or
affecting the obligations of Mortgagor or any other party to pay the Debt. For
payment of the Debt, Mortgagee may resort to any collateral securing the payment
of the Debt in such order and manner as Mortgagee may elect. No collateral taken
by Mortgagee shall in any manner impair or affect the lien or security interests
given pursuant to the Loan Documents, and all collateral shall be taken,
considered, and held as cumulative.
(m) Waivers. Mortgagor hereby irrevocably and unconditionally waives
and releases: (i) all benefits that might accrue to Mortgagor by virtue of any
present or future law exempting the Mortgaged Property from attachment, levy or
sale on execution or providing for any appraisement, valuation, stay of
execution, exemption from civil process, redemption, or extension of time for
payment; (ii) all notices of any Event of Default except as expressly provided
herein or of Trustee's exercise of any right, remedy, or recourse provided for
under the Loan Documents; and (iii) any right to a marshalling of assets, a sale
in inverse order of alienation or any other right to direct in any manner, the
order of sale of any of the Mortgaged Property.
(n) Statute of Limitations. To the extent permitted by applicable law,
Mortgagee's rights hereunder shall continue even to the extent that a suit for
collection of the Debt, or part thereof, is barred by a statute of limitations.
Mortgagor hereby expressly waives and releases to the fullest extent permitted
by law, the pleading of any statute of limitations as a defense to payment of
the
Debt.
(o) Waiver of Automatic or Supplemental Stay. In the event of the
filing of any voluntary or involuntary petition under the U.S. Bankruptcy Code
(the "Bankruptcy Code") by or against Mortgagor (other than an involuntary
petition filed by or joined in by Mortgagee), the Mortgagor shall not assert, or
request any other party to assert, that the automatic stay under ss. 362 of the
Bankruptcy Code shall operate or be interpreted to stay, interdict, condition,
reduce or inhibit the ability of Mortgagee to enforce any rights it has by
virtue of this Mortgage, or any other rights that Mortgagee has, whether now or
hereafter acquired, against any guarantor of the Debt. Further, Mortgagor shall
not seek a supplemental stay or any other relief, whether injunctive or
otherwise, pursuant to ss. 105 of the Bankruptcy Code or any other provision
therein to stay, interdict, condition, reduce or inhibit the ability of
Mortgagee to enforce any rights it has by virtue of this Mortgage against any
guarantor of the Debt. The waivers contained in this paragraph are a material
inducement to Mortgagee's willingness to enter into this Mortgage and Mortgagor
acknowledges and agrees that no grounds exist for equitable relief which would
bar, delay or impede the exercise by Mortgagee of Mortgagee's rights and
remedies against Mortgagor or any guarantor of the Debt.
(p) Bankruptcy Acknowledgment. In the event the Mortgaged Property or
any portion thereof or any interest therein becomes property of any bankruptcy
estate or subject to any state or federal insolvency proceeding, then Mortgagee
shall immediately become entitled, in addition to all other relief to which
Mortgagee may be entitled under this Mortgage, to obtain (i) an order from the
Bankruptcy Court or other appropriate court granting immediate relief from the
automatic stay pursuant to ss. 362 of the Bankruptcy Code so to permit Mortgagee
to pursue its rights and remedies against Mortgagor as provided under this
Mortgage and all other rights and remedies of Mortgagee at law and in equity
under applicable state law, and (ii) an order from the Bankruptcy Court
prohibiting Mortgagor's use of all "cash collateral" as defined under ss. 363 of
the Bankruptcy Code. In connection with such Bankruptcy Court orders, Mortgagor
shall not contend or allege in any pleading or petition filed in any court
proceeding that Mortgagee does not have sufficient grounds for relief from the
automatic stay. Any bankruptcy petition or other action taken by the Mortgagor
to stay, condition, or inhibit Mortgagee from exercising its remedies are hereby
admitted by Mortgagor to be in bad faith and Mortgagor further admits that
Mortgagee would have just cause for relief from the automatic stay in order to
take such actions authorized under state law.
(q) Application of Proceeds. The proceeds from any sale, lease, or
other disposition made pursuant to this Mortgage, or the proceeds from the
surrender of any insurance policies pursuant hereto, or any Rents collected by
Mortgagee from the Mortgaged Property, or the Tax and Insurance Escrow Fund or
sums received pursuant to Section 7 hereof, or proceeds from insurance which
Mortgagee elects to apply to the Debt pursuant to Section 3 hereof, shall be
applied by Trustee, or by Mortgagee, as the case may be, to the Debt in the
following order and priority: (1) to the payment of all expenses of advertising,
selling, and conveying the Mortgaged Property or part thereof, and/or
prosecuting or otherwise collecting Rents, proceeds, premiums or other sums
including reasonable attorneys' fees and a reasonable fee or commission to
Trustee, not to exceed five percent of the proceeds thereof or sums so received;
(2) to that portion, if any, of the Debt with respect to which no person or
entity has personal or entity liability for payment (the "Exculpated Portion"),
and with respect to the Exculpated Portion as follows: first, to accrued but
unpaid
interest, second, to matured principal, and third, to unmatured principal in
inverse order of maturity; (3) to the remainder of the Debt as follows: first,
to the remaining accrued but unpaid interest, second, to the matured portion of
principal of the Debt, and third, to prepayment of the unmatured portion, if
any, of principal of the Debt applied to installments of principal in inverse
order of maturity; (4) the balance, if any or to the extent applicable,
remaining after the full and final payment of the Debt to the holder or
beneficiary of any inferior liens covering the Mortgaged Property, if any, in
order of the priority of such inferior liens (Trustee and Mortgagee shall hereby
be entitled to rely exclusively on a commitment for title insurance issued to
determine such priority); and (5) the cash balance, if any, to the Mortgagor.
The application of proceeds of sale or other proceeds as otherwise provided
herein shall be deemed to be a payment of the Debt like any other payment. The
balance of the Debt remaining unpaid, if any, shall remain fully due and owing
in accordance with and subject to the terms of the Note and the other Loan
Documents.
(r) Occupancy After Foreclosure. In the event there is a
foreclosure sale hereunder and at the time of such sale, Mortgagor or
Mortgagor's representatives, successors or assigns, or any other persons
claiming any interest in the Mortgaged Property by, through or under Mortgagor
(except tenants of space in the Improvements subject to leases entered into
prior to the date hereof), are occupying or using the Mortgaged Property, or any
part thereof, then, to the extent not prohibited by applicable law, each and all
shall, at the option of Mortgagee or the purchaser at such sale, as the case may
be, immediately become the tenant of the purchaser at such sale, which tenancy
shall be a tenancy from day-to-day, terminable at the will of either Landlord or
tenant, at a reasonable rental per day based upon the value of the Mortgaged
Property occupied or used, such rental to be due daily to the purchaser.
Further, to the extent permitted by applicable law, in the event the tenant
fails to surrender possession of the Mortgaged Property upon the termination of
such tenancy, the purchaser shall be entitled to institute and maintain an
action for unlawful detainer of the Mortgaged Property in the appropriate court
of the county in which the Premises is located.
(s) Notice to Account Debtors. Mortgagee may, at any time
after a default hereunder, which default is not cured within any applicable
grace or cure period, notify the account debtors and obligors of any accounts,
chattel paper, negotiable instruments or other evidences of indebtedness to
Mortgagor included in the Mortgaged Property to pay Mortgagee directly.
Mortgagor shall at any time or from time to time upon the request of Mortgagee
provide to Mortgagee a current list of all such account debtors and obligors and
their addresses.
(t) Payment of Expenses. Mortgagor shall pay on demand all of
Mortgagee's expenses incurred in any efforts to enforce any terms of this Deed
of Trust, whether or not any lawsuit is filed and whether or not foreclosure is
commenced but not completed, including, but not limited to, legal fees and
disbursements, foreclosure costs and title charges, together with interest
thereon from and after the date incurred by Mortgagee until actually paid by
Mortgagor at the Default Rate, and the same shall be secured by this Deed of
Trust and by all of the other Loan Documents securing all or any part of the
indebtedness evidenced by the Note.
(u) Action for Breach of Contract. In accordance with
California Code of Civil Procedure Section 736, as such Section may be amended
from time to time, Mortgagee may bring an action for breach of contract against
Mortgagor for breach of any "environmental provision" (as
such term is defined in such Section) made by Mortgagor herein or in any other
Loan Document for the recovery of damages and/or for the enforcement of the
environmental provision.
(v) Waiver of Security. In accordance with California Code of
Civil Procedure Section 726.5, as such Section may be amended from time to time,
Mortgagee may waive the security of this Mortgage as to any parcel of the
Premises that is "environmentally impaired" or is an "affected parcel" (as such
terms are defined in such Section), and as to any personal property which is
Mortgaged Property attached to such parcel, and thereafter exercise against
Mortgagor, to the extent permitted by such Section 726.5, the rights and
remedies of an unsecured creditor, including reduction of Mortgagee's claim
against Mortgagor to judgment, and any other rights and remedies permitted by
law. In the event Mortgagee elects, in accordance with California Code of Civil
Procedure Section 726.5, to waive all or part of the security of this Mortgage
and proceed against Mortgagor on an unsecured basis, the valuation of the real
property, the determination of the environmentally impaired status of such
security and any cause of action for a money judgment, shall, at the request of
Mortgagee, be referred to a referee in accordance with California Code of Civil
Procedure Section 638 et seq. Such referee shall be an M.A.I. appraiser selected
by Mortgagee and approved by Mortgagor, which approval shall not be unreasonably
withheld or delayed. The decision of such referee shall be binding upon both
Mortgagor and Mortgagee, and judgment upon the award rendered by such referee
shall be entered in the court in which such proceeding was commenced in
accordance with California Code of Civil Procedure Sections 644 and 645.
Mortgagor shall pay all reasonable costs and expenses incurred by Mortgagee in
connection with any proceeding under California Code of Civil Procedure Section
726.5, as such Section may be amended from time to time.
26. Right of Inspection. Mortgagee and its agents shall have the right
to enter and inspect the Mortgaged Property during normal business hours upon
reasonable notice.
27. Security Agreement.
(a) This Mortgage is both a real property mortgage or deed of
trust and a "security agreement" within the meaning of the Uniform Commercial
Code. The Mortgaged Property includes both real and personal property and all
other rights and interests, whether tangible or intangible in nature, of
Mortgagor in the Mortgaged Property. Mortgagor by executing and delivering this
Mortgage has granted and hereby grants to Mortgagee, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this paragraph the "Collateral"). Mortgagor hereby agrees with Mortgagee to
execute and deliver to Mortgagee, in form and substance satisfactory to
Mortgagee, such financing statements and such further assurances as Mortgagee
may from time to time, reasonably consider necessary to create, perfect, and
preserve Mortgagee's security interest herein granted.
(b) The grant of a security interest to Mortgagee in the
granting clause of this Mortgage shall not be construed to derogate from or
impair the lien or provisions of or the rights of
Mortgagee under this Mortgage with respect to any property described therein
which is real property or which the parties have agreed to treat as real
property. The hereby stated intention of Mortgagor and Mortgagee is that
everything used in connection with the production of income from such real
property or adapted for use thereon is, and at all times and for all purposes
and in all proceedings, both legal and equitable, shall be regarded as real
property, irrespective of whether or not the same is physically attached to the
Premises and/or Improvements.
(c) This Mortgage shall also constitute a "fixture filing" for
the purposes of the Uniform Commercial Code. All or part of the Mortgaged
Property are or are to become fixtures. Information concerning the security
interest herein granted may be obtained from the parties at the addresses of the
parties set forth in the first paragraph of this Mortgage.
(d) If an Event of Default shall occur, Mortgagee, in addition
to any other rights and remedies which they may have, shall have and may
exercise immediately and without demand, any and all rights and remedies granted
to a secured party upon default under the Uniform Commercial Code, including,
without limiting the generality of the foregoing, the right to take possession
of the Collateral or any part thereof, and to take such other measures as
Mortgagee may deem necessary for the care, protection and preservation of the
Collateral. Upon request or demand of Mortgagee, Mortgagor shall at its expense
assemble the Collateral and make it available to Mortgagee at a convenient place
acceptable to Mortgagee. Mortgagor shall pay to Mortgagee on demand any and all
expenses, including legal expenses and attorneys' fees, incurred or paid by
Mortgagee in protecting the interest in the Collateral and in enforcing the
rights hereunder with respect to the Collateral. Any notice of sale, disposition
or other intended action by Mortgagee with respect to the Collateral sent to
Mortgagor in accordance with the provisions hereof at least five (5) days prior
to such action, shall constitute commercially reasonable notice to Mortgagor.
The proceeds of any disposition of the Collateral, or any part thereof, may be
applied by Mortgagee to the payment of the Debt in such priority and proportions
as Mortgagee in its discretion shall deem proper.
(e) In the event of any change in name, identity or structure
of any Mortgagor, such Mortgagor shall notify Mortgagee thereof and promptly
after request shall execute, file and record such Uniform Commercial Code forms
as are necessary to maintain the priority of Mortgagee's lien upon and security
interest in the Collateral, and shall pay all expenses and fees in connection
with the filing and recording thereof. If Mortgagee shall require the filing or
recording of additional Uniform Commercial Code forms or continuation
statements, Mortgagor shall, promptly after request, execute, file and record
such Uniform Commercial Code forms or continuation statements as Mortgagee shall
deem necessary, and shall pay all expenses and fees in connection with the
filing and recording thereof, it being understood and agreed, however, that no
such additional documents shall increase Mortgagor's obligations under the Note,
this Mortgage and the other Loan Documents. Mortgagor hereby irrevocably
appoints Mortgagee as its attorney-in-fact, coupled with an interest, to file
with the appropriate public office on its behalf any financing or other
statements signed only by Mortgagee, as Mortgagor's attorney-in-fact, in
connection with the Collateral covered by this Mortgage. Notwithstanding the
foregoing, Mortgagor shall appear and defend in any action or proceeding which
affects or purports to affect the Mortgaged Property and any interest or right
therein, whether such proceeding effects title or any other rights in the
Mortgaged Property (and in conjunction therewith, Mortgagor shall fully
cooperate with Mortgagee in the event Mortgagee is a party to such action or
proceeding).
28. Actions and Proceedings. Mortgagee has the right to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to bring any action or proceeding, in the name and on behalf of Mortgagor,
which Mortgagee, in its discretion, decides should be brought to protect their
interest in the Mortgaged Property. Mortgagee shall, at its option, be
subrogated to the lien of any mortgage or other security instrument discharged
in whole or in part by the Debt, and any such subrogation rights shall
constitute additional security for the payment of the Debt.
29. Waiver of Setoff and Counterclaim. All amounts due under this
Mortgage, the Note and the other Loan Documents shall be payable without setoff,
counterclaim or any deduction whatsoever. To the extent permitted by law,
Mortgagor hereby waives the right to assert a setoff, counterclaim or deduction
in any action or proceeding in which Mortgagee is a participant, or arising out
of or in any way connected with this Mortgage, the Note, any of the other Loan
Documents, or the Debt.
30. Contest of Certain Claims. Notwithstanding the provisions of
Sections 4 and 23(h) hereof, Mortgagor shall not be in default for failure to
pay or discharge Taxes, Other Charges or mechanic's or materialman's lien
asserted against the Mortgaged Property if, and so long as, (a) Mortgagor shall
have notified Mortgagee of same within ten (10) days of obtaining knowledge
thereof; (b) Mortgagor shall diligently and in good faith contest the same by
appropriate legal proceedings which shall operate to prevent the enforcement or
collection of the same and the sale of the Mortgaged Property or any part
thereof, to satisfy the same; (c) Mortgagor shall have furnished to Mortgagee a
cash deposit, or evidence of an indemnity bond satisfactory to Mortgagee and
otherwise in accordance with applicable law with a surety satisfactory to
Mortgagee, in the amount of the Taxes, Other Charges or mechanic's or
materialman's lien claim, plus a reasonable additional sum to pay all costs,
interest and penalties that may be imposed or incurred in connection therewith,
to assure payment of the matters under contest and to prevent any sale or
forfeiture of the Mortgaged Property or any part thereof; (d) Mortgagor shall
promptly upon final determination thereof pay the amount of any such Taxes,
Other Charges or claim so determined, together with all costs, interest and
penalties which may be payable in connection therewith; (e) the failure to pay
the Taxes, Other Charges or mechanic's or materialman's lien claim does not
constitute a default under any other deed of trust, mortgage or security
interest covering or affecting any part of the Mortgaged Property; and (f)
notwithstanding the foregoing, Mortgagor shall immediately upon request of
Mortgagee pay (and if Mortgagor shall fail so to do, Mortgagee may, but shall
not be required to, pay or cause to be discharged or bonded against) any such
Taxes, Other Charges or claim notwithstanding such contest, if in the reasonable
opinion of Mortgagee, the Mortgaged Property or any part thereof or interest
therein may be in danger of being sold, forfeited, foreclosed, terminated,
canceled or lost. Mortgagee may pay over any such cash deposit or part thereof
to the claimant entitled thereto at any time when, in the reasonable judgment of
Mortgagee, the entitlement of such claimant is established.
31. Recovery of Sums Required to Be Paid. Mortgagee shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same
become due, without regard to whether or not the balance of the Debt shall be
due, and without prejudice to the right of Mortgagee thereafter to bring an
action of foreclosure, or any other action, for a default or defaults by
Mortgagor existing at the time such earlier action was commenced.
32. Handicapped Access. Mortgagor agrees that the Mortgaged Property
shall at all times strictly comply to the extent applicable with the
requirements of the Americans with Disabilities Act of 1990, the Fair Housing
Amendments Act of 1988, all state and local laws and ordinances related to
handicapped access and all rules, regulations, and orders issued pursuant
thereto including, without limitation, the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (collectively "Access
Laws").
(a) Notwithstanding any provisions set forth herein or in any other
document regarding Mortgagee's approval of alterations of the Mortgaged
Property, Mortgagor shall not alter the Mortgaged Property in any manner which
would increase Mortgagor's responsibilities for compliance with the applicable
Access Laws without the prior written approval of Mortgagee. The foregoing shall
apply to tenant improvements constructed by Mortgagor or by any of its tenants.
Mortgagee may condition any such approval upon receipt of a certificate from an
architect, engineer, or other person acceptable to Mortgagee of compliance with
Access Laws.
(b) Mortgagor agrees to give prompt notice to Mortgagee of the receipt
by Mortgagor of any complaints related to violation of any Access Laws and of
the commencement of any proceedings or investigations which relate to compliance
with applicable Access Laws.
33. Indemnification. Subject to the recourse limitations contained in
the Note, in addition to any other indemnifications provided in any of the Loan
Documents, Mortgagor shall protect, defend, indemnify and save harmless
Mortgagee, its subsidiaries, affiliates, persons controlling or under common
control with Mortgagee, their agents, officers, directors, shareholders,
employees, servants, consultants, representatives and their respective
successors and assigns and Trustee (collectively, the "Indemnified Parties"),
from and against all liabilities, obligations, claims, demands, damages,
penalties, causes of action, losses, fines, costs and expenses (including
without limitation reasonable attorneys' fees and expenses), imposed upon or
incurred by or asserted against any of the Indemnified Parties by reason of (a)
ownership of this Mortgage, the Mortgaged Property or any interest therein or
receipt of any Rents; (b) any accident, injury to or death of persons or loss of
or damage to property occurring in, on or about the Mortgaged Property or any
part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways; (c) any use, nonuse or condition in, on or about
the Mortgaged Property or any part thereof or on adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways; (d) any failure on
the part of Mortgagor to perform or comply with any of the terms of this
Mortgage; (e) performance of any labor or services or the furnishing of any
materials or other property in respect of the Mortgaged Property or any part
thereof; (f) any failure of the Mortgaged Property to comply with any Access
Laws; (g) any representation or warranty made in the Note, this Mortgage or the
other Loan Documents being false or misleading in any respect as of the date
such representation or warranty was made; (h) any claim by brokers, finders or
similar persons claiming to be entitled to a commission in connection with any
Lease or other transaction involving the Mortgaged Property or any part thereof
under any legal requirement or any liability asserted against Mortgagee with
respect
thereto; and (i) the claims of any lessee to any portion of the Mortgaged
Property or any person acting through or under any lessee or otherwise arising
under or as a consequence of any Lease. Any amounts payable to any of the
Indemnified Parties by reason of the application of this paragraph shall be
secured by this Mortgage and shall become immediately due and payable and shall
bear interest at the Default Rate specified in the Note from the date loss or
damage is sustained by any of the Indemnified Parties until paid. The
obligations and liabilities of Mortgagor under this Section 33 (A) shall survive
for a period of one (1) year following any release of this Mortgage executed by
Mortgagee and satisfaction of the loan evidenced by the Loan Documents, and (B)
shall survive the transfer or assignment of this Mortgage, the entry of a
judgment of foreclosure, sale of the Mortgaged Property by nonjudicial
foreclosure sale, or delivery of a deed in lieu of foreclosure (including,
without limitation, any transfer by Mortgagor of any of its rights, title and
interest in and to the Mortgaged Property to any party, whether or not
affiliated with Mortgagor).
34. Trustee. Trustee may resign by the giving of notice of such
resignation in writing or verbally to Mortgagee. If Trustee shall die, resign,
or become disqualified from acting in the execution of this trust, or if, for
any reason, Mortgagee shall prefer to appoint a substitute trustee or multiple
substitute trustees, or successive substitute trustees or successive multiple
substitute trustees, to act instead of the aforenamed Trustee, Mortgagee shall
have full power to appoint a substitute trustee (or, if preferred, multiple
substitute trustees) in succession who shall succeed (and if multiple substitute
trustees are appointed, each of such multiple substitute trustees shall succeed)
to all the estates, rights, powers, and duties of the aforenamed Trustee. Such
appointment may be executed by any authorized agent of Mortgagee, and if such
Mortgagee be a corporation and such appointment be executed in its behalf by any
officer of such corporation, such appointment shall be conclusively presumed to
be executed with authority and shall be valid and sufficient without proof of
any action by the board of directors or any superior officer of the corporation.
Mortgagor hereby ratifies and confirms any and all acts which the aforenamed
Trustee, or his successor or successors in this trust, shall do lawfully by
virtue hereof. If multiple substitute Trustees are appointed, each of such
multiple substitute Trustees shall be empowered and authorized to act alone
without the necessity of the joinder of the other multiple substitute trustees,
whenever any action or undertaking of such substitute trustees is requested or
required under or pursuant to this Mortgage or applicable law. Any substitute
Trustee appointed pursuant to any of the provisions hereof shall, without any
further act, deed, or conveyance, become vested with all the estates,
properties, rights, powers, and trusts of its or his predecessor in the rights
hereunder with like effect as if originally named as Trustee herein; but
nevertheless, upon the written request of Mortgagee or of the substitute
Trustee, the Trustee ceasing to act shall execute and deliver any instrument
transferring to such substitute Trustee, upon the trusts herein expressed, all
the estates, properties, rights, powers, and trusts of the Trustee so ceasing to
act, and shall duly assign, transfer and deliver any of the property and moneys
held by such Trustee to the substitute Trustee so appointed in the Trustee's
place. No fees or expenses shall be payable to Trustee, except in connection
with a foreclosure of the Mortgaged Property or any part thereof or in
connection with the release of the Mortgaged Property following payment in full
of the Debt.
35. Notices. Unless oral notice is expressly permitted hereunder any
notice, demand, statement, request or consent made hereunder shall be in writing
and shall be deemed to be received by the addressee on the first (1st) business
day after such notice is tendered to a nationally-recognized overnight delivery
service or on the third (3rd) day following the day such notice is deposited
with the United States postal service first class certified mail, return receipt
requested, in either instance, addressed to the address, as set forth above, of
the party to whom such notice is to be given, or to such other address as
Mortgagor or Mortgagee, as the case may be, shall in like manner designate in
writing.
36. Authority. (a) Mortgagor (and the undersigned representative of
Mortgagor, if any) has full power, authority and right to execute, deliver and
perform its obligations pursuant to this Mortgage, and to mortgage, give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and
assign the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Mortgage on Mortgagor's part to be performed;
and (b) Mortgagor represents and warrants that Mortgagor is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended and the related Treasury Department regulations.
37. Waiver of Notice. Mortgagor shall not be entitled to any notices of
any nature whatsoever from Mortgagee except with respect to matters for which
this Mortgage specifically and expressly provides for the giving of notice by
Mortgagee to Mortgagor and except with respect to matters for which Mortgagee is
required by applicable law to give notice, and Mortgagor hereby expressly waives
the right to receive any notice from Mortgagee with respect to any matter for
which this Mortgage does not specifically and expressly provide for the giving
of notice by Mortgagee to Mortgagor.
38. Remedies of Mortgagor. In the event that a claim or adjudication is
made that Mortgagee has acted unreasonably or unreasonably delayed acting in any
case where by law or under the Note, this Mortgage or the other Loan Documents,
it has an obligation to act reasonably or promptly, Mortgagee shall not be
liable for any monetary damages, and Mortgagor's remedies shall be limited to
injunctive relief or declaratory judgment.
39. Sole Discretion of Mortgagee. Wherever pursuant to this Mortgage,
Mortgagee exercises any right given to it to approve or disapprove, or any
arrangement or term is to be satisfactory to Mortgagee, the decision of
Mortgagee to approve or disapprove or to decide that arrangements or terms are
satisfactory or not satisfactory shall be in the sole discretion of Mortgagee
and shall be final and conclusive, except as may be otherwise expressly and
specifically provided herein.
40. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations
hereunder by reason of (a) the failure of Mortgagee to comply with any request
of Mortgagor or Guarantor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of the Note or other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Debt or any
portion thereof, or (c) any agreement or stipulation by Mortgagee extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Mortgage, or the other Loan Documents. Mortgagee may resort for the payment
of the Debt to any
other security held by Mortgagee in such order and manner as Mortgagee, in its
discretion, may elect. Mortgagee may take action to recover the Debt, or any
portion thereof, or to enforce any covenant hereof without prejudice to the
right of Mortgagee thereafter to foreclosure this Mortgage. The rights and
remedies of Mortgagee under this Mortgage shall be separate, distinct and
cumulative and none shall be given effect to the exclusion of the others. No act
of Mortgagee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Mortgagee shall not be
limited exclusively to the rights and remedies herein stated but shall be
entitled to every right and remedy now or hereafter afforded at law or in
equity.
41. No Oral Change. This Mortgage may not be modified, amended, waived,
extended, changed, discharged or terminated orally or by any act or failure to
act on the part of Mortgagor or Mortgagee, but only by an agreement in writing
signed by the party against whom enforcement of any modification, amendment,
waiver, extension, change, discharge or termination is sought.
42. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Mortgagee's consent to any
transfer of the Mortgaged Property, this Mortgage shall be binding upon and
inure to the benefit of Mortgagor and Mortgagee and their respective successors
and assigns forever.
43. Inapplicable Provisions. If any term, covenant or condition of this
Mortgage is held to be invalid, illegal or unenforceable in any respect, this
Mortgage shall be construed without such provision.
44. Headings, etc. The headings and captions of various paragraphs of
this Mortgage are for convenience of reference only and are not to be construed
as defining or limiting, in any way, the scope or intent of the provisions
hereof.
45. Counterparts. This Mortgage may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
46. Definitions. Unless the context clearly indicates a contrary intent
or unless otherwise specifically provided herein, words used in this Mortgage
may be used interchangeably in singular or plural form and the word "Mortgagor"
shall mean "each Mortgagor and any subsequent owner or owners of the Mortgaged
Property or any part thereof or any interest therein," the word "Mortgagee"
shall mean "Mortgagee and any subsequent holder of the Note," the word "Debt"
shall mean "the Note and any other evidence of indebtedness secured by this
Mortgage," the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, and the words "Mortgaged Property" shall
include any portion of the Mortgaged Property and any interest therein and the
words "attorneys' fees" shall include any and all attorneys' fees, paralegal and
law clerk fees, including, but not limited to, fees at the pre-trial, trial and
appellate levels incurred or paid by Mortgagee in protecting its interest in the
Mortgaged Property and Collateral and enforcing its rights hereunder. Whenever
the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural and
vice versa.
47. Homestead. Mortgagor hereby waives and renounces all homestead and
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Premises as against the collection of the Debt,
or any part hereof.
48. Assignments. Mortgagee shall have the right to assign or transfer
its rights under this Mortgage and the other Loan Documents without limitation,
including, without limitation, the right to assign or transfer its rights to a
servicing agent. Any assignee or transferee shall be entitled to all the
benefits afforded Mortgagee under this Mortgage and the other Loan Documents.
49. Survival of Obligations; Survival of Warranties and
Representations. Each and all of the covenants and obligations of Mortgagor
(other than warranties and representations contained herein) shall survive the
execution and delivery of the Loan Documents and shall continue in full force
and effect until the Debt shall have been paid in full; provided, however, that
nothing contained in this paragraph shall limit the obligations of Mortgagor
except as otherwise set forth herein. In addition, any and all warranties and
representations of Mortgagor contained herein shall survive the execution and
delivery of the Loan Documents and (i) shall continue for a period of one (1)
year following any release of this Mortgage executed by Mortgagee and
satisfaction of the loan evidenced by the Loan Documents, and (ii) shall survive
the transfer or assignment of this Mortgage, the entry of a judgment of
foreclosure, sale of the Mortgaged Property by non-judicial foreclosure or deed
in lieu of foreclosure (including, without limitation, any transfer of the
Mortgage by Mortgagee of any of its rights, title and interest in and to the
Mortgaged Property to any party, whether or not affiliated with Mortgagee).
50. Covenants Running with the Land. All covenants, conditions,
warranties, representations and other obligations contained in this Mortgage and
the other Loan Documents are intended by Mortgagor, Mortgagee and Trustee to be,
and shall be construed as, covenants running with the Mortgaged Property until
the lien of this Mortgage has been fully released by Mortgagee.
51. Governing Law; Jurisdiction. THIS MORTGAGE AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED (WITHOUT REGARD TO ANY CONFLICT
OF LAWS PRINCIPLES) AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
MORTGAGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF
COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE MORTGAGED PROPERTY IS
LOCATED IN CONNECTION WITH ANY PROCEEDING OUT OF OR RELATING TO THIS MORTGAGE.
52. Time. Time is of the essence in this Mortgage and the other Loan
Documents.
53. No Third Party Beneficiaries. The provisions of this Mortgage and
the other Loan Documents are for the benefit of Mortgagor, Mortgagee and Trustee
and shall not inure to the benefit of any third party (other than any successor
or assignee of either Trustee or Mortgagee). This Mortgage and the other Loan
Documents shall not be construed as creating any rights, claims or
causes of action against Mortgagee or any of its officers, directors, agents or
employees in favor of any party other than Mortgagor including but not limited
to any claims to any sums held in the Tax and Insurance Escrow Fund.
54. Relationship of Parties. The relationship of Mortgagee and
Mortgagor is solely that of debtor and creditor, and Mortgagee has no fiduciary
or other special relationship with the Mortgagor, and no term or condition of
any of the Loan Documents shall be construed to be other than that of debtor and
creditor. Mortgagor represents and acknowledges that the Loan Documents do not
provide for any shared appreciation rights or other equity participation
interest.
55. Trustee Provisions. In the event that this Mortgage operates as a
mortgage, the provisions of this Mortgage which pertain to the Trustee shall be
of no force or effect.
56. Investigations. Any and all representations, warranties, covenants
and agreements made in this Mortgage (and/or in other Loan Documents) shall
survive any investigation or inspection made by or on behalf of Mortgagee.
57. Assignment of Rents and Leases. Mortgagor does hereby irrevocably,
absolutely and unconditionally grant, sell, convey, assign, pledge, transfer,
set over and deliver to Mortgagee:
(a) all of Mortgagor's interest in and to all current and
future leases and other agreements affecting the use, enjoyment, or occupancy of
all or any part of the Mortgaged Property, and all other leases and other
agreements affecting the use, enjoyment or occupancy of any part of the
Mortgaged Property now or hereafter made affecting the Mortgaged Property or any
portion thereof, together with any guaranty, extensions, renewals, replacements
or modifications of the same (all of the leases and other agreements described
above together with all other present and future leases and present and future
agreements and any guaranty, extension, renewal, replacement or modification of
the same are hereinafter collectively referred to as the "Leases"); and
(b) all rents, income, issues, revenues and profits arising
from the Leases and renewals thereof and together with all rents, income, issues
and profits from the use, enjoyment and occupancy of the Mortgaged Property
(including, but not limited to, minimum rents, additional rents, percentage
rents, deficiency rents, security deposits and liquidated damages following
default under any Leases, all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by damage to any
part of the Mortgaged Property, all of Mortgagor's rights to recover monetary
amounts from any Lessee (as hereinafter defined) in bankruptcy including,
without limitation, rights of recovery for use and occupancy and damage claims
arising out of Lease defaults, including rejection of a Lease, together with any
sums of money that may now or at any time hereafter be or become due and payable
to Mortgagor by virtue of any and all royalties, overriding royalties, bonuses,
delay rentals and any other amount of any kind or character arising under any
and all present and all future oil, gas and mining Leases covering the Mortgaged
Property or any part thereof, and all proceeds and other amounts paid or owing
to Mortgagor under or pursuant to any and all contracts and bonds relating to
the construction, erection or renovation of the Mortgaged Property) (all of the
rights described above hereinafter collectively referred to as the "Rents").
(c) Mortgagor does hereby irrevocably, absolutely and
unconditionally assign to Mortgagee all of Mortgagor's right, title and interest
in all current and future Leases and Rents, it being intended by Mortgagor that
this assignment shall constitute a present, absolute assignment and not an
assignment for additional security only. 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 of the Leases or otherwise to impose
any obligation upon Mortgagee. Mortgagor agrees to execute and deliver to
Mortgagee such additional instruments, in form and substance satisfactory to
Mortgagee, as may hereinafter be requested by Mortgagee to further evidence and
confirm said assignment. Mortgagee is hereby granted and assigned by Mortgagor
the right to enter the Mortgaged Property for the purpose of enforcing its
interest in the Leases and the Rents, this Assignment constituting a present,
absolute and unconditional assignment of the Leases and Rents. Nevertheless,
subject to the terms of this paragraph, Mortgagee grants to Mortgagor a
revocable license to operate and manage the Mortgaged Property and to collect
and to hold the Rents, or a portion thereof sufficient to discharge all current
sums due on the Debt for use in the payment of such sums. Upon an Event of
Default, the license granted to Mortgagor herein shall automatically terminate
without notice to Mortgagor and Mortgagee shall immediately be entitled to
receive and apply all Rents, whether or not Mortgagee enters upon and takes
control of the Mortgaged Property. Any Rents collected by Mortgagor after the
termination of the license granted to Mortgagor hereunder shall be held in trust
for Mortgagee and shall be paid to Mortgagee within one day after receipt by
Mortgagor. Mortgagor hereby grants and assigns to Mortgagee the right, at its
option, upon the revocation of the license granted herein to enter upon the
Mortgaged Property in person, by agent or by court-appointed receiver to collect
the Rents. Any Rents collected after the revocation of the license herein
granted may be applied toward the expenses of holding, operating, managing or
repairing the Mortgaged Property, or toward payment of the Debt, in such
priority and proportion as Mortgagee, in its discretion, shall deem proper.
(d) Upon or at any time after an Event of Default, Mortgagee
may, at its option, without waiving such Event of Default, without notice and
without regard to the adequacy of the security for the Debt, either in person or
by agent, with or without bringing any action or proceeding, or by a receiver
appointed by a court, take possession of the Mortgaged Property and have, hold,
manage, lease and operate the Mortgaged Property on such terms and for such
period of time as Mortgagee may deem proper and either with or without taking
possession of the Mortgaged Property in its own name, demand, sue for or
otherwise collect and receive all Rents, including those past due and unpaid
with full power to make from time to time all alterations, renovations, repairs
or replacements thereto or thereof as may seem proper to Mortgagee and may apply
the Rents to the payment of the following in such order and proportion as
Mortgagee in its sole discretion may determine, any law, custom or use to the
contrary notwithstanding: (a) all expenses of managing and securing the
Mortgaged Property, including, without being limited thereto, the salaries, fees
and wages of a managing agent and such other employees or agents as Mortgagee
may deem necessary or desirable and all expenses of operating and maintaining
the Mortgaged Property, including, without being limited thereto, all taxes,
charges, claims, assessments, water charges, sewer rents and any other liens,
and premiums for all insurance which Mortgagee may deem necessary or desirable,
and the cost of all alterations, renovations, repairs or replacements, and all
expenses incident to taking and retaining possession of the Mortgaged Property;
and (b) the Debt, (including all costs and attorneys' fees). In addition to the
rights which Mortgagee may have herein, upon the occurrence of
an Event of Default, Mortgagee at its option may require Mortgagor to vacate and
surrender possession of the Mortgaged Property to Mortgagee or to such receiver
and, in default thereof, Mortgagor may be evicted by summary proceedings or
otherwise. Additionally, upon such Event of Default, Mortgagee shall have the
right to establish a lock box for the deposit of all Rents and other receivables
of Mortgagor relating to the Mortgaged Property. Mortgagor shall pay any and all
costs and expenses for such lock box. For purposes of subsections (a), (b), (c)
and (d), Mortgagor grants to Mortgagee its irrevocable power of attorney,
coupled with an interest, to take any and all of the aforementioned actions and
any or all other actions designated by Mortgagee for the proper management and
preservation of the Mortgaged Property. The exercise by Mortgagee of the option
granted it in this paragraph and the collection of the Rents and the application
thereof as herein provided shall not be considered a waiver of any Event of
Default under any of the Loan Documents.
58. Independent Management. In the event Mortgagee determines in its
reasonable and absolute discretion that the quality of management for the
Mortgaged Property has deteriorated, Mortgagor shall engage an independent
management company unaffiliated with Mortgagor which is satisfactory to
Mortgagee within 45 days after Mortgagor's receipt of written notice thereof,
pursuant to a management agreement satisfactory to Mortgagee, and cause such
management company to execute and deliver to Mortgagee within such 45-day period
an Acknowledgment of Property Manager substantially in the form executed by
Manager in connection herewith.
59. Mortgagor's Release Option. Notwithstanding that this Mortgage
secures the Note, the Arkansas Note and the Arizona Note, Mortgagee shall
release the Mortgaged Property from the lien of this Mortgage (a "Release") upon
the satisfaction of each and every one of the following conditions precedent at
the time of such Release (singularly and collectively referred to as a "Release
Condition"):
(a) Any and all sums then due and payable to Mortgagee under
the Note and the Loan Documents as defined therein shall be fully paid
(including, without limitation, principal and interest under the Note and all
sums constituting the Tax and Insurance Escrow Fund, and any other escrow
required under the Loan Documents), and no Event of Default shall exist and be
continuing, nor shall Mortgagee have given Mortgagor notice of any event or
condition which, with the passage of time or the giving of notice or both, could
result in an Event of Default if not cured by Mortgagor.
(b) In no event shall a Release affect any of Mortgagor's
obligations under the Loan Documents (as defined in the Arkansas Note) or the
Loan Documents (as defined in the Arizona Note).
(c) All reasonable costs and expenses incurred by Mortgagee
(and any servicer of the Loan) in connection with the review, approval and
execution of any Release shall be paid by Mortgagor prior to and as a condition
of any Release, including, but not limited to, reasonable attorneys' fees.
60. Mortgagee's Option to Release Cross-Collateralization and
Cross-Default. Mortgagor shall consent to, execute and otherwise cooperate in a
modification of this Mortgage and the other Loan Documents providing that this
Mortgage shall no longer secure the Arkansas Note and/or the
Arizona Note and that an Event of Default under the Arkansas Note (and the
related Loan Documents, as defined in such Note) and/or the Arizona Note (and
the related Loan Document, as defined in such Note) (collectively, the "Related
Documents") shall no longer constitute an Event of Default hereunder. Such a
modification shall automatically render ineffective any provisions in the
Related Loan Documents providing for cross-collateralization or cross-default
with this Mortgage. Such a modification shall be made at Mortgagee's sole cost
and expense, and Mortgagee shall reimburse Mortgagor for its costs and expenses
(including, without limitation, its reasonable attorneys' fees and costs)
related thereto.
Mortgagor has executed this instrument the day and year first above
written.
MORTGAGOR:
CONCORD MILESTONE PLUS, L.P.,
a Delaware limited partnership
By: CM PLUS CORPORATION,
a Delaware corporation,
Its General Partner
By:
Name:
Title:
STATE OF ________________ ss.
ss. ss.
COUNTY OF ______________ ss.
On ___________________, before me, _____________________________, a
Notary Public for said state, personally appeared
________________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
---------------------------------------
Notary Public
(SEAL)
STATE OF ________________ ss.
ss. ss.
COUNTY OF ______________ ss.
On ___________________, before me, _____________________________, a
Notary Public for said state, personally appeared
________________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
---------------------------------------
Notary Public
(SEAL)
STATE OF ________________ ss.
ss. ss.
COUNTY OF ______________ ss.
On ___________________, before me, _____________________________, a
Notary Public for said state, personally appeared
________________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in
his/her authorized capacity, and that by his/her signature on the instrument the
person or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
---------------------------------------
Notary Public
(SEAL)
EXHIBIT A
(Legal Description)
THE LAND SITUATED IN LOS ANGELES COUNTY, STATE OF CALIFORNIA, AND DESCRIBED AS
FOLLOWS:
PARCELS 1 TO 6 INCLUSIVE AS SHOWN ON PARCEL MAP 1526, AS PER MAP FILED IN BOOK
24 PAGE 81 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
WHICH SAID PARCEL MAP RECITES "DIVISION OF LAND FOR LEASE PURPOSES ONLY."
EXCEPT THEREFROM ALL RIGHTS TO MINERALS, OIL, GAS, TARS, HYDROCARBONS AND
METALLIFEROUS SUBSTANCES OF EVERY KIND, TOGETHER WITH THE RIGHT TO DRILL OR MINE
FOR THE SAME, WITHOUT, HOWEVER, THE RIGHT TO DRILL OR MINE THROUGH THE SURFACE
OR THE UPPER 500 FEET OF THE SUBSURFACE OF SAID LAND, AS RESERVED BY THE NEWHALL
LAND AND FARMING COMPANY, A DELAWARE CORPORATION RECORDED MARCH 24, 1983 AS
INSTRUMENT NO. 83- 323387 AND RE-RECORDED FEBRUARY 21, 1985 AS INSTRUMENT NO.
85-196474.
Property Address: Old Orchard Shopping Center
23047-23453 Orchard Village Road
Santa Clarita (Valencia), California 91355