LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING (as modified and supplemented and in
effect from time to time, this "Mortgage") is made as of the 4th
day of March, 1997 by MARK NORTHWOOD ASSOCIATES, LIMITED
PARTNERSHIP, a Florida limited partnership, having an address at
c/o Mark Centers Limited Partnership, 600 Third Avenue, Kingston,
Pennsylvania 18704-1679, Attention: Joshua Kane, Telefax Number
(717) 288-1028 (the "Mortgagor"), in favor of NOMURA ASSET CAPITAL
CORPORATION, a Delaware corporation having an address at Two World
Financial Center, Building B, New York, New York 10281-1195,
Attention: Christopher Tierney, Telefax Number (212) 667-1666
(together with its successors and assigns, the "Mortgagee").
W I T N E S E T H:
WHEREAS, the Mortgagor and the Mortgagee are parties to a Loan
Agreement of even date herewith (said Loan Agreement, as modified
and supplemented and in effect from time to time, the "Loan
Agreement"), which Loan Agreement provides for a loan (the "Loan")
in the principal amount of $23,000,000 to be made by the Mortgagee
to the Mortgagor. The maturity date of the Loan is March 11, 2022.
The Loan is to be evidenced by, and repayable with interest
thereon, Default Rate interest, and Late Charges, together with the
Yield Maintenance Premium, if any, in accordance with a promissory
note executed and delivered to the order of the Mortgagee in the
form attached hereto as Exhibit C (such note, as modified and
supplemented and in effect from time to time, the "Note");
WHEREAS, Mortgagor contemplates that Mortgagee's interest in
and to, inter alia, the Loan (or a portion thereof), the Note, this
Mortgage and the Loan Documents may be assigned by Mortgagee to
another Person, including without limitation to a trustee on behalf
of security holders in connection with a Securitization;
WHEREAS, the Mortgagor is the owner of a leasehold interest in
certain land (the "Land") located as more particularly described on
Exhibit A attached hereto and made a part hereof (such leasehold
interest in the Land, the "Leasehold Estate") and all buildings and
improvements constructed thereon pursuant to the ground lease more
particularly described on Exhibit B attached hereto and made a part
hereof (as amended, the "Ground Lease");
WHEREAS, it is a condition to the obligation of the Mortgagee
to extend credit to the Mortgagor pursuant to the Loan Agreement
that the Mortgagor execute and deliver this Mortgage;
NOW, THEREFORE, in consideration of the making of the Loan by
the Mortgagee to the Mortgagor and the covenants, agreements,
representations and warranties set forth in the Loan Documents, and
for the purpose of securing the following (collectively, the "Loan
Obligations"):
(a) all principal (including, without limitation, any advance
to the Mortgagor now or hereafter made), interest, Default Rate
interest, Late Charges, the Yield Maintenance Premium, if any,
owing from time to time under the Note, and all obligations owing
by the Mortgagor under the Loan Documents and amendments,
modifications, extensions, substitutions, exchanges and renewals of
the Loan Documents (each of which amendment, modification,
extension, substitution, exchange and renewal shall enjoy the same
priority as the advance made on the Closing Date as evidenced by
the Note), and all amounts from time to time owing by the Mortgagor
under this Mortgage or any of the other Loan Documents; and
(b) all covenants, agreements and other obligations of
Mortgagor under the Loan Documents;
the Mortgagor hereby irrevocably grants, bargains, sells, releases,
conveys, warrants, assigns, transfers, mortgages, pledges, sets
over and confirms unto the Mortgagee, its successors and assigns,
to have and to hold forever, subject to all of the terms,
conditions, covenants and agreements herein set forth, for the
security and benefit of Mortgagee and its respective successors and
assigns, all Mortgagor's interest now owned or hereafter acquired
in the following described land, real estate, leasehold estate,
buildings, improvements, equipment, fixtures, furniture, and other
personal property (which together with the Security Interest
Property and any additional such property and interests hereafter
acquired by the Mortgagor and subjected to the lien of this
Mortgage, or intended to be so, as the same may be from time to
time constituted, is hereafter referred to as the "Mortgaged
Estate") to-wit:
(a) the Leasehold Estate and all right, title and
interest of Mortgagor in, to and under the Ground Lease, together
with all rights of use, occupancy and enjoyment and in and to all
rents, income and profits arising from or pursuant to the Ground
Lease together with all amendments, extensions, renewals or
modifications thereof and all credits, deposits, options, claims,
rights and privileges of Mortgagor as tenant under the Ground
Lease, including, without limitation, all rights, interests and
claims to any and all insurance proceeds and condemnation proceeds
and the right to renew or extend the Ground Lease for a succeeding
term or terms and all rights of Mortgagor as tenant under the
Ground Lease in connection with any bankruptcy or insolvency
proceeding of the Fee Owner;
(b) All Improvements and Equipment (the Leasehold
Estate, Improvements and Equipment collectively, the
"Facility");
(c) All Appurtenant Rights;
(d) All Rents;
(e) All Accounts, Account Collateral, General
Intangibles, Instruments, Inventory, goods, money Leases,
Money, Permitted Investments, investment properties, the
rights to proceeds of written letters of credit, and Permits;
(f) All insurance proceeds, including Insurance
Proceeds, and all condemnation proceeds, including Condemnation
Proceeds; and
(g) All products and Proceeds.
AND, as additional security, Mortgagor, as debtor, hereby
grants to Mortgagee a continuing security interest in the foregoing
property and in the Accounts, the Account Collateral, the
Equipment, the General Intangibles, the Instruments, the Inventory,
the goods, the Leases, the Money, the Permitted Investments, the
investment properties, the rights to proceeds of written letters of
credit, the Permits, the Rents, and all products and Proceeds, and
in any property as to which a security interest can be created or
perfected, now existing or hereafter coming into existence, and all
substitutions replacements, renewals and additions to the foregoing
(collectively, the "Security Interest Property"). This Mortgage
shall be effective as a security agreement pursuant to the UCC.
TO HAVE AND TO HOLD the Mortgaged Estate and all parts thereof
unto the Mortgagee, its successors and assigns forever, subject
however to the Permitted Encumbrances and the terms and conditions
herein;
PROVIDED, HOWEVER, that these presents are upon the condition
that, if the Mortgagor (i) shall pay or cause to be paid to the
Mortgagee the principal, interest, Default Rate interest, Late
Charges, and the Yield Maintenance Premium, if any, payable in
respect to the Note, at the times and in the manner stipulated
therein and herein, all without any deduction or credit for taxes
or other similar charges paid by the Mortgagor, and shall keep,
perform, and observe all and singular the covenants and promises in
each of the Loan Documents and in the Loan Agreement expressed to
be kept, performed, and observed by and on the part of the
Mortgagor, all without fraud or delay or (ii) shall comply with the
provisions of Section 2.11 of the Loan Agreement, then this
Mortgage, and all the properties, interests, and rights hereby
granted, bargained, and sold shall cease, terminate and be void.
TO PROTECT THE SECURITY OF THIS MORTGAGE, THE MORTGAGOR HEREBY
COVENANTS AND AGREES AS FOLLOWS:
ARTICLE I
Definitions
Section 1.01. Certain Defined Terms. For all purposes of this
Mortgage all capitalized terms shall have the meaning ascribed
thereto in the Loan Agreement unless defined herein, and:
"Accounts" means all of Mortgagor's "accounts," as such term
is defined in the UCC, and to the extent not included in such
definition, any of Mortgagor's rights to payment for goods sold or
leased or for services rendered arising from the ownership or
operation of the Facility and not evidenced by an Instrument,
including, without limitation, all accounts and accounts receivable
arising from the ownership or operation of the Facility, now
existing or hereafter coming into existence, and all proceeds
thereof (whether cash or non cash, movable or immovable, tangible
or intangible) received from the sale, exchange, transfer,
collection or other disposition or substitution thereof.
"Appurtenant Rights" means all easements, rights-of-way,
strips and gores of land, vaults, streets, ways, alleys, passages,
sewer rights, waters, water courses, water rights, air rights,
development rights and powers, and, to the extent now or hereafter
owned by the Mortgagor, all minerals, flowers, shrubs, crops,
trees, timber and other emblements now or hereafter appurtenant to,
or used in connection with, or located on, under or above the
Leasehold Estate and or any part or parcel thereof, and all ground
leases, subleases, estates, rights, titles, interests, privileges,
liberties, tenements, hereditaments and appurtenances, reversions,
and remainders whatsoever, in any way belonging, relating or
appertaining to the Leasehold Estate or any part thereof.
"Collateral" shall have the meaning set forth in the Loan
Agreement to the extent such Collateral relates to the Facility.
"Condemnation Proceeds" shall have the meaning set forth in
the Loan Agreement.
"Equipment" means all of Mortgagor's "equipment," as such term
is defined in the UCC, and to the extent not included in such
definition, all fixtures, appliances, machinery, furniture,
furnishings, decorations, tools and supplies, now owned or
hereafter acquired by Mortgagor, including but not limited to, all
beds, linens, radios, televisions, carpeting, telephones, cash
registers, computers, lamps, glassware, restaurant and kitchen
equipment, and building equipment, including but not limited to,
all heating, lighting, incinerating, waste removal and power
equipment, engines, pipes, tanks, motors, conduits, switchboards,
security and alarm systems, plumbing, lifting, cleaning, fire
prevention, fire extinguishing, refrigeration, washing machines,
dryers, stoves, refrigerators, ventilating, and communications
apparatus, air cooling and air conditioning apparatus, escalators,
elevators, ducts, and compressors, materials and supplies, and all
other machinery, apparatus, equipment, fixtures and fittings now
owned or hereafter acquired by Mortgagor, any portion thereof or
any appurtenances thereto, together with all additions,
replacements, parts, fittings, accessions, attachments,
accessories, modifications and alterations of any of the foregoing.
"Equity Interests means (a) if Mortgagor is a limited
partnership, limited partnership interests in Mortgagor or (b) if
Mortgagor is a limited liability company, membership interests in
Mortgagor; provided, however, that Equity Interests shall not
include any direct or indirect legal or beneficial ownership
interest, or any other interest of any nature or kind whatsoever,
of the SPE Equity Owner in Mortgagor.
"Event of Default" has the meaning provided in Section 5.01.
"Facility" has the meaning provided in the recitals of this
Mortgage.
"Fee Owner" has the meaning set forth in Exhibit B to this
Mortgage.
"General Intangibles" means all of Mortgagor's "general
intangibles," as such term is defined in the UCC, and to the extent
not included in such definition, any intangible personal property
of Mortgagor (other than Accounts, Rents, Instruments, Inventory,
Money and Permits), including, without limitation, things in
action, settlements, judgments, contract rights, rights to
performance (including, without limitation, rights under
warranties) refunds of real estate taxes and assessments and other
rights to payment of Money, copyrights, trademarks, trade names and
patents now existing or hereafter in existence.
"Ground Lease" has the meaning provided in the recitals to
this Mortgage.
"Improvements" means all buildings, structures and
improvements of every nature whatsoever situated on the Leasehold
Estate and/or Land on the Closing Date or thereafter, including,
but not limited to, to the extent of Mortgagor's right, title or
interest therein or thereto, all gas and electric fixtures,
radiators, heaters, washing machines, dryers, refrigerators, ovens,
engines and machinery, boilers, ranges, elevators and motors,
plumbing and heating fixtures, antennas, carpeting and other floor
coverings, water heaters, awnings and storm sashes, and cleaning
apparatus which are or shall be attached to the Leasehold Estate
and/or Land or said buildings, structures or improvements.
"Instruments" means all of Mortgagor's "instruments," as such
term is defined in the UCC and, to the extent not included in such
definition, any of Mortgagor's rights in instruments, chattel
paper, documents or other writings obtained by Mortgagor from or in
connection with the ownership or operation of the Facility
evidencing a right to the payment of Money, including, without
limitation, all notes, drafts, acceptances, documents of title, and
policies and certificates of insurance, including but not limited
to, liability, hazard, rental and credit insurance, guarantees and
securities, now or hereafter received by Mortgagor or in which
Mortgagor has or acquires an interest pertaining to the foregoing.
"Insurance Proceeds" shall have the meaning set forth in the
Loan Agreement to the extent such Insurance Proceeds relate to the
Facility.
"Inventory" means all of Mortgagor's "inventory," as such term
is defined in the UCC, and to the extent not included in such
definition, any of Mortgagor's rights in goods now owned or
hereafter acquired by Mortgagor intended for sale or lease, or to
be furnished under contracts of service by such Mortgagor in
connection with the Facility, including without limitation, all
inventories held by Mortgagor for sale or use at or from the
Facility, and all other such goods, wares, merchandise, and
materials and supplies of every nature owned by Mortgagor and all
such other goods returned to or repossessed by Mortgagor.
"Land" has the meaning provided in the recitals to this
Mortgage.
"Leasehold Estate" has the meaning provided in the recitals to
this Mortgage.
"Leases" means all leases and other agreements or arrangements
affecting the use or occupancy of all or any portion of the
Facility (other than the Ground Lease) now in effect or hereafter
entered into (including, without limitation, all lettings,
subleases, licenses, concessions, tenancies and other occupancy
agreements covering or encumbering all or any portion of the
Facility), together with any guarantees, supplements, amendments,
modifications, extensions and renewals of the same, and all
additional remainders, reversions, and other rights and estates
appurtenant thereto.
"Loan" has the meaning provided in the recitals to this
Mortgage.
"Loan Agreement" has the meaning provided in the recitals to
this Mortgage.
"Loan Obligations" has the meaning provided in the recitals to
this Mortgage.
"Material Lease" means all Leases except those Leases of space
for less than 20,000 gross square feet.
"Money" means all moneys, cash, rights to deposit or savings
accounts, credit card receipts, rents or other items of legal
tender obtained from or for the use in connection with the
ownership or operation of the Facility.
"Mortgaged Estate" has the meaning provided in the recitals to
this Mortgage.
"Mortgagee" has the meaning provided in the heading of this
Mortgage.
"Mortgagor" has the meaning provided in the heading of this
Mortgage.
"Note" has the meaning provided in the recitals to this
Mortgage.
"Permitted Encumbrances" means, with respect to the Facility,
collectively, (i) the Lien created by this Mortgage or the other
Loan Documents of record, (ii) all Liens and other matters
disclosed in the Title Insurance Policy concerning the Facility, or
any part thereof which have been approved by Mortgagee in
Mortgagee's sole discretion, (iii) Liens, if any, for Impositions
imposed by any Governmental Authority not yet due or delinquent or
being contested in good faith and by appropriate proceedings in
accordance with this Mortgage (iv) without limiting the foregoing,
any and all governmental, public utility and private restrictions,
covenants, reservations, easements, licenses or other agreements of
an immaterial nature which may be granted by Mortgagor after the
Closing Date and which do not materially and adversely affect (A)
the ability of Mortgagor to pay any of its obligations to any
Person as and when due, (B) the marketability of title to the
Facility, (C) the fair market value of the Facility, or (D) the use
or operation of the Facility as of the Closing Date and thereafter.
"Permitted Transfers" shall mean provided that no Event of
Default has occurred (i) Permitted Encumbrances; (ii) all transfers
of worn out or obsolete furnishings, fixtures or equipment that are
replaced with equivalent property; (iii) all Leases which are not
Material Leases; (iv) all Material Leases which have been approved
by Mortgagee in accordance with Section 2.13(d) hereof; (v)
transfers of Equity Interests in Mortgagor which in the aggregate
during the term of the Loan (a) do not exceed 49% of the total
interests in Mortgagor and (b) do not result in any partner's,
member's or other Person's interest in Mortgagor exceeding 49% of
the total interests in Mortgagor and (vi) any other transfer of
Equity Interests provided that (a) prior to any Securitization,
Mortgagee shall have consented to such transfer or transfers, (b)
after any Securitization, Mortgagee shall have consented to such
transfer or transfers and the Rating Agencies shall have confirmed
in writing that such transfer or transfers shall not result in a
downgrade, withdrawal or qualification of any securities issued in
connection with such Securitization, (c) acceptable opinions
relating to such transfer or transfers shall have been delivered by
Mortgagor to Mortgagee and the Rating Agencies (including without
limitation tax and bankruptcy opinions) and (d) Mortgagor pays all
reasonable expenses incurred by Mortgagee in connection with such
transfer or transfers and (vii) a transfer of the Facility to a
single purchaser not more than one time during the term of the
Loan, provided that prior to such transfer (a) intentionally
omitted, (b) prior to a Securitization, Mortgagee shall have
consented to such transfer, (c) after a Securitization, (i)
Mortgagee shall have consented to such transfer and (ii) the Rating
Agencies shall have confirmed in writing that such transfer shall
not result in a downgrade, withdrawal or qualification of any
securities issued in connection with such Securitization, (d)
acceptable opinions relating to such transfer shall have been
delivered by Mortgagor to Mortgagee and to the Rating Agencies
(including without limitation tax and bankruptcy opinions), (e) the
transferee assumes in writing all obligations of the transferor
under the Loan Documents and executes and delivers such other
documentation as may be required by Mortgagee or the Rating
Agencies and (f) Mortgagor pays all reasonable expenses incurred by
Mortgagee in connection with such transfer (not to exceed 0.10% of
the Loan Amount); (viii) a Transfer in connection with a Taking
(provided, however, that the disbursement and use of any
Condemnation Proceeds received in connection with such Taking shall
be governed by the terms of the Loan Agreement and this Mortgage).
"Permits" means all licenses, registrations, permits,
allocations, filings, authorizations, approvals and certificates
used in connection with the ownership, operation, construction,
renovation, use or occupancy of the Facility, including, without
limitation, building permits, business licenses, state health
department licenses, food service licenses, liquor licenses,
licenses to conduct business and all such other permits, licenses
and rights, obtained from any Governmental Authority or private
Person concerning the ownership, construction, operation,
renovation, use or occupancy of the Facility.
"Proceeds" means all of Mortgagor's "proceeds," as such term
is defined in the UCC, and, to the extent not included in such
definition, all proceeds, whether cash or non-cash, movable or
immovable, tangible or intangible (including Insurance Proceeds and
Condemnation Proceeds), from the Collateral, including, without
limitation, those from the sale, exchange, transfer, collection,
loss, damage, disposition, substitution or replacement of any of
the Collateral and all income, gain, credit, distributions and
similar items from or with respect to the Collateral.
"Rating Agencies" means Fitch Investors Service, Inc., Moody's
Investors Service, Inc., Duff & Phelps Credit Rating Co. and S&P,
or any successor thereto, and any other nationally recognized
statistical rating organization to the extent that any of the
foregoing have been or will be engaged by Mortgagee or its
designees in connection with a Securitization (each, individually,
a "Rating Agency").
"Rents" means, with respect to the Facility, all receipts,
rents, (whether denoted as advance rent, minimum rent, percentage
rent, additional rent or otherwise), issues, income, royalties,
profits, revenues, proceeds, bonuses, deposits (whether denoted as
security deposits or otherwise), lease termination fees or
payments, rejection damages, buy-out fees and any other fees made
or to be made in lieu of rent, any award made hereafter to
Mortgagor in any court proceeding involving any tenant, lessee,
licensee or concessionaire under any of the Leases in any
bankruptcy, insolvency or reorganization proceedings in any state
or federal court, and all other payments, rights and benefits of
whatever nature from time to time due under any of the Leases,
including, without limitation, (i) rights to payment earned under
any of the Leases for space in the Improvements for the operation
of ongoing businesses and (ii) all other income, consideration,
issues, accounts, profits or benefits of any nature arising from
the ownership, possession, use or operation of the Facility.
"S&P" means Standard and Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc.
"SPE Equity Owner" means Mark Northwood Realty, Inc., a
Florida corporation.
"Transfer" means any conveyance, transfer (including, without
limitation, any transfer of any direct or indirect legal or
beneficial interest in Mortgagor or the SPE Equity Owner), sale,
Lease (including, without limitation, any amendment, extension,
modification, waiver or renewal thereof) or Lien, whether by law or
otherwise, of, on or affecting any Collateral, Mortgagor or the SPE
Equity Owner, other than a Permitted Transfer.
"UCC" means the Uniform Commercial Code in effect in the
jurisdiction in which the Facility is located.
Section 1.02. Interpretation of Defined Terms.
Singular terms shall include the plural forms and vice versa,
as applicable, of the terms defined.
All references to other documents or instruments shall be
deemed to refer to such documents or instruments as they may
hereafter be extended, renewed, modified or amended, and all
replacements and substitutions therefor.
ARTICLE II
Particular Covenants and Agreements of the Mortgagor
Section 2.01. Payment of Secured Loan Obligations. The
Mortgagor shall pay when due the principal, the interest, Default
Rate interest, Late Charges, and the Yield Maintenance Premium, if
any, owing from time to time under the Note and all charges, fees
and other Loan Obligations as provided in the Loan Documents.
Section 2.02. Title, etc.
(a) The Mortgagor represents and warrants that it has good,
marketable and insurable leasehold title in and to the Leasehold
Estate, free and clear of all covenants, liens, encumbrances,
restrictions, easements and other matters affecting title other
than the Permitted Encumbrances. There are no outstanding options
to purchase or rights of first refusal affecting the Leasehold
Estate.
(b) The Mortgagor represents and warrants that it has good
and absolute title to all existing personal property and fixtures
hereby mortgaged, subject to the Permitted Encumbrances. The
personal property and fixtures hereby mortgaged are free and clear
of all liens, charges and encumbrances whatsoever, including
conditional sales contracts, chattel mortgages, security
agreements, financing statements and everything of a similar nature
other than the Permitted Encumbrances.
(c) The Mortgagor represents and warrants that it has the
full power and lawful authority to grant, bargain, sell, release,
convey, warrant, assign, transfer, mortgage, pledge, set over and
confirm unto the Mortgagee the Mortgaged Estate as hereinabove
provided and warrants that it will forever defend the title to the
Mortgaged Estate and the validity and priority of the lien or
estate hereof against the claims and demands of all Persons
whomsoever.
Section 2.03. Further Assurances; Filing; Re-Filing;
etc.
(a) The Mortgagor shall execute, acknowledge and deliver,
from time to time, such further instruments as Mortgagee may
reasonably require to accomplish the purposes of this Mortgage.
(b) The Mortgagor, immediately upon the execution and
delivery of this Mortgage, and thereafter from time to time, shall
cause this Mortgage, any security agreement or mortgage
supplemental hereto and each instrument of further assurance to be
filed, registered or recorded and refiled, re-registered or
re-recorded in such manner and in such places as may be required by
any present or future law in order to publish notice of and perfect
the lien or estate of this Mortgage upon the Mortgaged Estate.
(c) The Mortgagor shall pay all documentary stamp taxes,
intangible personal property taxes, recording taxes, filing,
registration and recording fees, all refiling, re-registration and
re-recording fees, and all expenses incident to the execution,
filing, recording and acknowledgment of this Mortgage, any security
agreement or mortgage supplemental hereto and any instrument of
further assurance, and all federal, state, county and municipal
stamp taxes and other taxes, duties, imposts, assessments and
charges arising out of the execution, delivery, filing,
registration and recording of the Note, this Mortgage or any of the
other Loan Documents, any security agreement or mortgage
supplemental hereto or any instruments of further assurance.
(d) In the event of the passage of any state, federal,
municipal or other governmental law, order, rule or regulation,
subsequent to the date hereof, in any manner changing or modifying
the laws now in force governing the taxation of mortgages or
security agreements or debts secured thereby or the manner of
collecting such taxes so as to adversely affect the Mortgagee, the
Mortgagor will pay any such tax on or before the due date thereof.
If the Mortgagor fails to make such prompt payment or if, in the
reasonable opinion of the Mortgagee, any such state, federal,
municipal, or other governmental law, order, rule or regulation
prohibits the Mortgagor from making such payment or would penalize
the Mortgagee if the Mortgagor makes such payment or if, in the
opinion of the Mortgagee, the making of such payment might result
in the imposition of interest beyond the Maximum Amount, then the
entire balance of the Loan Obligations shall, at the option of the
Mortgagee, become due and payable on the date that is one hundred
and twenty (120) days after the passage of such law, order, rule or
regulation.
(e) The Mortgagor hereby indemnifies and holds the Mortgagee
harmless from any sales or use tax that may be imposed on the
Mortgagee by virtue of the Loan from the Mortgagee to the Mortgagor
other than taxes imposed on the income, stock or assets of the
Mortgagee.
Section 2.04. Liens. Without limiting the obligations
of the Mortgagor under Section 2.06, the Mortgagor shall not create
or suffer to be created any mortgage, deed of trust, lien, security
interest, charge or encumbrance upon the Mortgaged Estate prior to,
on a parity with, or subordinate to the lien of this Mortgage other
than a Permitted Encumbrance. The Mortgagor shall pay and promptly
discharge at the Mortgagor's cost and expense, any such mortgages,
deeds of trust, liens, security interests, charges or encumbrances
upon the Mortgaged Estate or any portion thereof or interest
therein.
Section 2.05. Insurance and Casualty Events.
(a) At all times while the Mortgagor is indebted to the
Mortgagee, the Mortgagor shall maintain the following insurance:
(i) During any period of repair or restoration,
builder's "all risk" insurance in an amount equal to not less than
the full insurable value of the Facility and Equipment against such
risks (including, without limitation, fire and extended coverage
and collapse of the Improvements to agreed limits) as Mortgagee may
request, in form and substance acceptable to Mortgagee.
(ii) Insurance with respect to the Improvements,
Equipment and Inventory against any peril included within the
classification "All Risks of Physical Loss" with extended coverage
in amounts at all times sufficient to prevent the Mortgagor from
becoming a co-insurer within the terms of the applicable policies,
but in any event such insurance shall be maintained in an amount
equal to the full insurable value of the Improvements, Equipment
and Inventory located on the Facility, the term "full insurable
value" to mean the actual replacement cost of the Improvements,
Equipment and Inventory (without taking into account any
depreciation), determined annually by an insurer or by the
Mortgagor or, at the request of the Mortgagee, by an independent
insurance broker (subject to the Mortgagee's reasonable approval)
including an endorsement covering acts of municipal authorities
including increased cost of construction and demolition;
(iii) Comprehensive general liability insurance,
including contractual injury, bodily injury, broad form death and
property damage liability, and umbrella liability insurance against
any and all claims, including all legal liability to the extent
insurable imposed upon the Mortgagor and all court costs and
attorneys' fees and expenses, arising out of or connected with the
possession, use, leasing, operation, maintenance or condition of
the Facility in such amounts as are generally required by
institutional lenders for properties comparable to the Facility but
in no event with limits for the Facility of less than $1,000,000
per occurrence with combined single limit coverage for bodily
injury or property damage and excess (umbrella) liability coverage
for the Facility of no less than $30,000,000 per occurrence;
(iv) Statutory workers' compensation insurance (to the
extent the risks to be covered thereby are not already covered by
other policies of insurance maintained by the Mortgagor), with
respect to any work on or about the Facility;
(v) Business interruption and/or loss of "rental value"
insurance for the Facility in an amount equal to not less than
eighteen (18) months estimated Gross Revenue attributable to the
Facility and based on the Gross Revenue for the immediately
preceding year and otherwise sufficient to avoid any co-insurance
penalty;
(vi) If all or any portion of the Improvements, or any
portion of the Leasehold Estate is located within a federally
designated flood hazard zone, flood insurance in an amount equal to
the lesser of the full insurable value of the Facility or the
maximum amount available;
(vii) Insurance against loss or damage from (A) leakage
of sprinkler systems and (B) explosion of steam boilers, air
conditioning equipment, pressure vessels or similar apparatus now
or hereafter installed at the Facility, in such amounts as the
Mortgagee may from time to time require and which are customarily
required by institutional mortgagees with respect to similar
properties similarly situated; and
(viii) Such other insurance with respect to the
Improvements, Equipment and Inventory located on the Facility
against loss or damage as is requested by the Mortgagee (including
without limitation liquor/dram insurance and earthquake insurance)
provided such insurance is of the kind from time to time
customarily insured against and in such amounts as are generally
required by institutional lenders for properties comparable to the
Facility or which Mortgagee may deem necessary in its reasonable
discretion.
(b) The Mortgagor will maintain the insurance coverage
described in Section 2.05 with companies acceptable to Mortgagee
and with a claims paying ability of not less than "AA" by S&P and
AA or its equivalent by any one of the other Rating Agencies. All
insurers providing insurance required by this Mortgage shall be
authorized to issue insurance in the state where the Facility is
located.
The insurance coverage required under Section 2.05(a) may be
effected under a blanket policy or policies covering the Mortgaged
Estate and other property and assets not constituting a part of the
Mortgaged Estate; provided that any such blanket policy shall
specify, except in the case of public liability insurance, the
portion of the total coverage of such policy that is allocated to
the Facility and Equipment and Inventory located thereon, and any
sublimits in such blanket policy applicable to the Mortgaged
Estate, which amounts shall not be less than the amounts required
pursuant to Section 2.05(a) and which shall in any case comply in
all other respects with the requirements of this Section 2.05.
(c) All insurance policies shall be in such form and with
such endorsements and in such amounts as shall be satisfactory to
Mortgagee (and Mortgagee shall be entitled to approve amounts,
form, risk coverage, deductibles, loss payees and insureds). The
policy referred to in Section 2.05(a)(ii) shall contain a
replacement cost endorsement and a waiver of depreciation.
Certified copies of all of the above-mentioned insurance policies
have been delivered to and shall be held by the Mortgagee. All
such policies shall name the Mortgagee as an additional
insured/loss payee, shall provide that all Insurance Proceeds be
payable to the Mortgagee as set forth in Section 2.05(d), and shall
contain: (i) "Non Contributory Standard Lender Clause" and a
Lender's Loss Payable Endorsement (Form 438 BFUNS) or their
equivalents naming Mortgagee as the person to which all payments
shall be paid and a provision that payment of Insurance Proceeds in
excess of $400,000 shall be made by a check payable only to
Mortgagee; (ii) a waiver of subrogation endorsement as to the
Mortgagee and its assigns providing that no policy shall be
impaired or invalidated by virtue of any act, failure to act,
negligence of, or violation of declarations, warranties or
conditions contained in such policy by the Mortgagor, the Mortgagee
or any other named insured, additional insured or loss payee,
except for the willful misconduct of the Mortgagee knowingly in
violation of the conditions of such policy; (iii) an endorsement
indicating that neither the Mortgagee nor the Mortgagor shall be or
be deemed to be a co-insurer with respect to any risk insured by
such policies and shall provide for a deductible per loss not in
excess of five percent (5%) of replacement cost of the Facility;
(iv) a provision that such policies shall not be canceled or
amended, including, without limitation, any amendment reducing the
scope or limits of coverage, without at least thirty (30) days'
prior written notice to the Mortgagee in each instance; and (v)
include effective waivers by the insurer of all claims for
insurance premiums against any loss payees, additional insureds and
named insureds (other than the Mortgagor). Certificates of
insurance with respect to all renewal and replacement policies
shall be delivered to the Mortgagee not less than ten (10) days
prior to the expiration date of any of the insurance policies
required to be maintained hereunder which certificates shall bear
notations evidencing payment of applicable premiums and certified
copies of such insurance policies shall be delivered to the
Mortgagee promptly after the Mortgagor's receipt thereof. If the
Mortgagor fails to maintain and deliver to the Mortgagee the
certified copies of the original policies or certificates of
insurance required by this Mortgage, the Mortgagee may, at its
option, after written notice to Mortgagor, procure such insurance,
and the Mortgagor shall reimburse the Mortgagee for the amount of
all premiums paid by the Mortgagee thereon promptly, after demand
by the Mortgagee, with interest thereon at the Default Rate from
the date paid by the Mortgagee to the date of repayment, and such
sum shall be a part of the Loan Obligations secured by this
Mortgage.
The Mortgagee shall not by the fact of approving,
disapproving, accepting, preventing, obtaining or failing to obtain
any insurance, incur any liability for or with respect to the
amount of insurance carried, the form or legal sufficiency of
insurance contracts, solvency of insurance companies, or the
carriers' or the Mortgagor's payment or defense of lawsuits, and
the Mortgagor hereby expressly assumes full responsibility therefor
and all liability, if any, with respect thereto.
(d) The Mortgagee shall be entitled to receive and collect all
Insurance Proceeds and all of the Insurance Proceeds are hereby
assigned to the Mortgagee. The Mortgagor shall execute such
further assignments of the Insurance Proceeds as the Mortgagee may
from time to time reasonably require. Without limiting the
generality of the foregoing, following the occurrence of any
casualty or damage involving the Mortgaged Estate or any part
thereof, the Mortgagor shall give prompt notice thereof to the
Mortgagee and shall cause all Insurance Proceeds payable as a
result of such casualty or damage to be paid to the Mortgagee as
additional collateral security hereunder subject to the lien of
this Mortgage, to be applied by Mortgagee to the Loan Obligations.
(e) Notwithstanding anything to the contrary set forth in
Section 2.05(d), the Mortgagee agrees that the Mortgagee shall make
the Insurance Proceeds (other than business interruption insurance
proceeds, which shall be held and disbursed as provided in Section
2.12(h) of the Loan Agreement), available to the Mortgagor for the
Mortgagor's repair, restoration and replacement of the
Improvements, Equipment and Inventory damaged or taken on the
following terms and subject to the Mortgagor's satisfaction of the
following conditions:
(i) At the time of such loss or damage and at all times
thereafter while the Mortgagee is holding any portion of such
Insurance Proceeds, there shall exist no Default or Event of
Default;
(ii) The Improvements, Equipment and Inventory for which
loss or damage has resulted shall be capable of being restored
(including replacements) to their pre-existing condition and
utility as existed immediately prior to the occurrence of the loss
or damage then in question in all material respects with a value
equal to or greater than prior to such loss or damage and shall be
capable of being completed six months prior to the Maturity Date
and prior to the expiration of business interruption insurance;
(iii) The Mortgagor shall demonstrate to the Mortgagee's
reasonable satisfaction the Mortgagor's ability to pay the Loan
Obligations relating to the Facility coming due during such
restoration period;
(iv) Within 30 days from the date of such loss or damage
the Mortgagor shall have given the Mortgagee a written notice
electing to have the Insurance Proceeds applied for such purpose;
(v) Within 60 days following the date of notice under
the preceding subparagraph (iv) and prior to any Insurance Proceeds
being disbursed to the Mortgagor, the Mortgagor shall have provided
to the Mortgagee all of the following:
(1) if loss or damage exceeds $400,000, complete
plans and specifications for restoration, repair and replacement of
the Improvements, Equipment and Inventory damaged to the condition,
utility and value required by the preceding subparagraph (ii),
(2) if loss or damage exceeds $400,000, fixed-price
or guaranteed maximum cost construction contracts for completion of
the repair and restoration work in accordance with such plans and
specifications,
(3) if loss or damage exceeds $400,000, builder's
risk insurance for the full cost of construction with the Mortgagee
named under a standard mortgagee loss-payable clause,
(4) if loss or damage exceeds $400,000 such
additional funds (if any) as in the Mortgagee's reasonable opinion
are necessary to complete the repair, restoration and replacement,
and
(5) if loss or damage exceeds $400,000, copies of
all permits and licenses necessary to complete the work in
accordance with the plans and specifications;
(vi) If loss or damage exceeds $400,000, the Mortgagee
may, at the Mortgagor's expense to the extent such expenses and
fees are reasonable, retain an independent inspector to review and
approve plans and specifications and completed construction and to
approve all requests for disbursement, which approvals shall be
conditions precedent to release of the Insurance Proceeds as work
progresses;
(vii) The Mortgagor shall commence such work within 120
days after such loss or damage and shall diligently pursue such
work to completion;
(viii) If loss or damage exceeds $400,000, each
disbursement by the Mortgagee of such Insurance Proceeds shall be
funded subject to conditions and in accordance with disbursement
procedures which a commercial construction lender would typically
establish in the exercise of sound banking practices and shall be
made only upon receipt of disbursement requests on an AIA G702/703
form (or similar form approved by the Mortgagee) signed and
certified by the Mortgagor and its architect and general contractor
with appropriate invoices, lien waivers and any other documents,
instruments or items which may be required by the Mortgagee; and
(ix) The Mortgagee shall have a first lien and security
interest in all building materials and completed repair and
restoration work and in all fixtures and equipment acquired with
such Insurance Proceeds, and the Mortgagor shall execute and
deliver such mortgages, deeds of trust, security agreements,
financing statements and other instruments as the Mortgagee shall
reasonably request to create, evidence, or perfect such lien and
security interest.
(f) In the event and to the extent such Insurance Proceeds
are not required to be made available to Mortgagor to be used for
the repair, restoration and replacement of the Improvements,
Equipment and Inventory for which a loss or damage has occurred, or
in the event the Mortgagor fails to timely make such election or
having made such election fails to timely comply with or is
otherwise unable to satisfy the terms and conditions set forth
herein, upon five Business Days prior notice to the Mortgagor, the
Mortgagee shall be entitled without consent from the Mortgagor to
apply such Insurance Proceeds, or the balance thereof, at the
Mortgagee's option either (x) to the full or partial payment or
prepayment of the Loan Obligations in accordance with Section 2.7
of the Loan Agreement, or (y) to the repair, restoration and/or
replacement of all or any part of such Improvements, Equipment and
Inventory for which a loss or damage has occurred.
(g) Subject to Mortgagee's rights under Section 2.05(f),
provided no Event of Default then exists, and so long as all
repairs, restorations and replacements to the Facility have been
completed in accordance with this Mortgage, any Insurance Proceeds
available to Mortgagor for replacement, restoration or repair, to
the extent not used by Mortgagor in connection with, or to the
extent they exceed the cost of such replacement, restoration or
repair shall be paid to Mortgagor.
(h) The Mortgagor appoints the Mortgagee to act after the
occurrence of an Event of Default as the Mortgagor's
attorney-in-fact, coupled with an interest, to cause the issuance
of or an endorsement of any policy to bring the Mortgagor into
compliance herewith and, as limited above, at the Mortgagee's sole
option, to make any claim for, receive payment for, and execute and
endorse any documents, checks or other instruments in payment for
loss, theft, or damage covered under any such insurance policy;
however, in no event will the Mortgagee be liable for failure to
collect any amounts payable under any insurance policy.
(i) The Mortgagee shall be entitled at its option to
participate in any compromise, adjustment or settlement in
connection with any claims for loss, damage or destruction under
any policy or policies of insurance, in excess of $400,000, and the
Mortgagor shall within ten Business Days after request therefor
reimburse the Mortgagee for all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and disbursements) incurred
by the Mortgagee in connection with such participation. The
Mortgagor shall not make any compromise, adjustment or settlement
in connection with any such claim in excess of $400,000, without
the prior written approval of the Mortgagee.
(j) In the event of foreclosure of the lien of this Mortgage
or other transfer of title or assignment of the Mortgaged Estate in
extinguishment, in whole or in part, of the Loan Obligations, all
right, title and interest of the Mortgagor in and to all policies
of casualty insurance covering all or any part of the Mortgaged
Estate shall inure to the benefit of and pass to the successors in
interest to the Mortgagee or the purchaser or grantee of the
Mortgaged Estate or any part thereof.
Section 2.06. Impositions.
(a) The Mortgagor shall pay or cause to be paid, before any
fine, penalty, interest or cost attaches thereto, all of the Ground
Rents and Impositions, including, without limitation, any sales tax
due in connection with the Ground Rents, as well as all claims for
labor, materials or supplies that, if unpaid, might by law become
a lien on the Mortgaged Estate, and shall submit to Mortgagee such
evidence of the due and punctual payment of all such Impositions
and claims as may be required by law; provided, however, that if by
law any such Imposition may be paid in installments (whether or not
interest shall accrue on the unpaid balance thereof), the Mortgagor
may pay the same in installments (together with accrued interest on
the unpaid balance thereof) as the same respectively become due,
before any fine, penalty, interest or cost attaches thereto.
(b) The Mortgagor at its expense may, after prior notice to
the Mortgagee, contest by appropriate legal, administrative or
other proceedings conducted in good faith and with due diligence,
the amount or validity or application, in whole or in part, of any
Imposition or lien therefor or any claims of mechanics,
materialmen, suppliers or vendors or liens thereof, and may
withhold payment of the same pending such proceedings if permitted
by law, as long as (i) in the case of any Impositions or lien
therefor or any claims of mechanics, materialmen, suppliers or
vendors or liens thereof, such proceedings shall suspend the
collection thereof from the Mortgaged Estate, (ii) neither the
Mortgaged Estate nor any part thereof or interest therein will be
sold, forfeited or lost if the Mortgagor pays the amount or
satisfies the condition being contested, and the Mortgagor would
have the opportunity to do so, in the event of the Mortgagor's
failure to prevail in the contest, (iii) the Mortgagee would not,
by virtue of such permitted contest, be exposed to any risk of any
civil liability for which the Mortgagor has not furnished
additional security as provided in clause (iv) below, or to any
risk of criminal liability, and neither the Mortgaged Estate nor
any interest therein would be subject to the imposition of any lien
for which the Mortgagor has not furnished additional security as
provided in clause (iv) below, as a result of the failure to comply
with such law or of such proceeding and (iv) the Mortgagor shall
have furnished to the Mortgagee additional security in respect of
the claim being contested or the loss or damage that may result
from the Mortgagor's failure to prevail in such contest in such
amount as may be reasonably requested by the Mortgagee, but in no
event less than one hundred and twenty five percent (125%) of the
amount of such claim.
(c) The Mortgagor shall fund the Ground Rents Sub-Account and
the Basic Carrying Costs Sub-Account to the extent required
pursuant to the Loan Agreement and the real property taxes and
assessments applicable to the Facility shall be paid from the
relevant Basic Carrying Costs Sub-Account and the Ground Rents
shall be paid from the Ground Rents Sub-Account, all in accordance
with the Loan Agreement.
Section 2.07. Maintenance of the Improvements and
Equipment. The Mortgagor shall not permit the Improvements or
Equipment to be removed or demolished or otherwise altered
(provided, however, that, the Mortgagor may remove, demolish or
alter such Improvements and Equipment that become obsolete in the
usual conduct of the Mortgagor's business and the removal or
alteration of which do not materially detract from the operation of
the Mortgagor's business); shall maintain the Mortgaged Estate in
good repair, working order and condition, except for reasonable
wear and use; shall not commit or suffer any waste; shall not do or
suffer to be done anything which would or could increase the risk
of fire or other hazard to the Mortgaged Estate or which would or
could result in the cancellation of any insurance policy carried
with respect to the Mortgaged Estate; and shall, subject to receipt
of the Insurance Proceeds or the Condemnation Proceeds, restore and
repair the Improvements and Equipment or any part thereof now or
hereafter damaged or destroyed by any fire or other casualty or
affected by any Taking; provided, however, that if the fire or
other casualty is not insured against or insurable, the Mortgagor
shall so restore and repair even though no Insurance Proceeds are
received.
Section 2.08. Compliance With Laws.
(a) The Mortgagor represents and warrants that the Facility
and the Mortgagor's operations at and use of the Facility currently
comply in all material respects with all Legal Requirements,
including but not limited to, the Americans with Disabilities Act,
and the orders, rules and regulations of the American Insurance
Association or any other body now constituted exercising similar
functions. The Mortgagor shall maintain the Facility in compliance
with all future Legal Requirements.
(b) The Mortgagor hereby confirms the representations,
warranties and covenants set forth in Section 4.1(b)(U) and Section
5.1(D) through (I) of the Loan Agreement (relating to liabilities
of the Mortgagor under applicable Environmental Laws) insofar as
such representations, warranties and covenants apply to the
Mortgaged Estate.
(c) The Mortgagor shall notify the Mortgagee promptly of any
written notice or order that the Mortgagor receives from any
Governmental Authority with respect to the Mortgagor's compliance
with any Legal Requirements, including, without limitation, the
Americans with Disabilities Act and the Environmental Laws,
relating to the Facility and promptly take any and all actions
necessary to bring its operations at the Facility into compliance
with such Legal Requirements, including, without limitation, the
Americans with Disabilities Act and the Environmental Laws, (and
shall fully comply with the requirements of such Legal
Requirements, including, without limitation, the Americans with
Disabilities Act and the Environmental Laws, that at any time are
applicable to its operations at the Facility) all to the extent
required under the applicable provisions of the Loan Agreement;
provided, that, subject to Section 5.1 (D) of the Loan Agreement,
the Mortgagor at its expense may, after prior notice to the
Mortgagee, contest by appropriate legal, administrative or other
proceedings conducted in good faith and with due diligence, the
validity or application, in whole or in part, of any such Legal
Requirements, including, without limitation, Environmental Laws, as
long as (i) neither the Mortgaged Estate nor any part thereof or
any interest therein, will be sold, forfeited or lost if the
Mortgagor pays the amount or satisfies the condition being
contested, and the Mortgagor would have the opportunity to do so,
in the event of the Mortgagor's failure to prevail in the contest,
(ii) the Mortgagee would not, by virtue of such permitted contest,
be exposed to any risk of any civil liability for which the
Mortgagor has not furnished additional security as provided in
clause (iii) below, or to any risk of criminal liability, and
neither the Mortgaged Estate nor any interest therein would be
subject to the imposition of any lien for which the Mortgagor has
not furnished additional security as provided in clause (iii) below
as a result of the failure to comply with such Legal Requirement or
Environmental Law or the Americans with Disabilities Act or of such
proceeding and (iii) the Mortgagor shall have furnished to the
Mortgagee additional security in respect of the claim being
contested or the loss or damage that may result from the
Mortgagor's failure to prevail in such contest in such amount as
may be reasonably requested by the Mortgagee in light of the risk
attendant to such contest, but in no event less than one hundred
and twenty five percent (125%) of the amount of such claim.
(d) After 30 days' prior written notice (except in the case
of a bona fide emergency in which no such prior written notice
shall be required, but in which event notice shall be given as soon
as practicable) and the Mortgagor's failure to so comply, but
subject to subparagraph (c) above, the Mortgagee, at its election
and in its sole discretion may (but shall not be obligated to) cure
any failure on the part of the Mortgagor to comply with any Legal
Requirements, including Environmental Laws, and without limitation,
may take any of the following actions:
(i) arrange for the prevention of any Release or threat
of Release of Hazardous Substances at the Facility in violation of,
or potentially requiring clean up under, Environmental Laws, and
pay any costs associated with such prevention;
(ii) arrange for the removal or remediation of Hazardous
Substances that may be Released or result from a Release at the
Facility in violation of, or potentially requiring clean up under,
Environmental Laws, and pay any costs associated with such removal
and/or remediation;
(iii) pay, on behalf of the Mortgagor, any costs, fines
or penalties imposed on the Mortgagor by any Governmental Authority
in connection with such Release or threat of Release of Hazardous
Substances in violation of, or potentially requiring clean up
under, Environmental Laws; or
(iv) make any other payment or perform any other act
intended to prevent a lien in favor of any Governmental Authority
from attaching to the Mortgaged Estate.
Any partial exercise by the Mortgagee of the remedies hereinafter
set forth, or any partial undertaking on the part of the Mortgagee
to cure the Mortgagor's failure to comply with such Legal
Requirements, including Environmental Laws, shall not obligate the
Mortgagee to complete the actions taken or require the Mortgagee to
expend further sums to cure the Mortgagor's noncompliance; nor
shall the exercise of any such remedies operate to place upon the
Mortgagee any responsibility for the operation, control, care,
management or repair of the Facility or make the Mortgagee the
"operator" of the Facility within the meaning of any Environmental
Laws. Any amount paid or costs incurred by the Mortgagee as a
result of the exercise by the Mortgagee of any of the rights
hereinabove set forth, together with interest thereon at the
Default Rate from the date paid by the Mortgagee, shall be due and
payable by the Mortgagor to the Mortgagee within ten (10) days
after demand therefor, and until paid shall be added to and become
a part of the Loan Obligations secured hereby; and the Mortgagee,
by making any such payment or incurring any such costs, shall be
subrogated to any rights of the Mortgagor to seek reimbursement
from any third parties, including, without limitation, a
predecessor-in-interest to the Mortgagor's title who may be a
"responsible party" or otherwise liable under any Environmental Law
in connection with any such Release or threat of Release of
Hazardous Substances.
(e) If the Mortgagee suspects that Remedial Work may be
required, the Mortgagee may request that an environmental survey
and risk assessment with respect to the Mortgaged Estate be
prepared and the Mortgagor agrees to supply, at its cost, such a
survey and risk assessment by an independent engineering firm
selected by the Mortgagor and satisfactory to the Mortgagee, in
form and detail satisfactory to the Mortgagee (including, if the
Mortgagee reasonably suspects that Remedial Work may be required,
test borings of the ground and chemical analyses of air, water and
waste discharges), estimating current liabilities and assessing
potential sources of future liabilities of the Mortgagor or any
other owner or operator of the Facility under applicable
Environmental Laws.
(f) The Mortgagor agrees to indemnify, reimburse, defend
(with counsel satisfactory to Mortgagee at Mortgagee's election),
and hold harmless the Mortgagee for, from, and against all demands,
claims, actions or causes of action, assessments, losses, damages,
liabilities, costs and expenses, including, without limitation,
interest, penalties, consequential damages, attorneys' fees,
disbursements and expenses, and consultants' fees, disbursements
and expenses, including costs of Remedial Work, asserted against,
resulting to, imposed on, or incurred by the Mortgagee, directly or
indirectly, in connection with any of the following:
(i) events, circumstances, or conditions which are
alleged to, or do, form the basis for an Environmental Claim;
(ii) the presence, Use or Release of Hazardous Substances
at, on, in, under or from any Facility which presence, Use or
Release requires or could require Remedial Work;
(iii) any Environmental Claim against Mortgagor,
Mortgagee or any Person whose liability for such Environmental
Claim the Mortgagor has or may have assumed or retained either
contractually or by operation of law; or
(iv) the breach of any representation, warranty or
covenant set forth in Section 4.1(b)(U) and Sections 5.1(D) through
5.1(I), inclusive, of the Loan Agreement.
The indemnity provided in this Section 2.08(f) shall not be
included in any exculpation of the Mortgagor or its partners,
members, shareholders or any other Person from personal liability
provided in this Mortgage or in any of the other Loan Documents.
Further, Mortgagor's obligations under this Section 2.08(f) shall
survive (in perpetuity) the closing and disbursement of the funds
evidenced by the Note, payment of the Note, payment and performance
of the Loan Obligations, any release, reconveyance, discharge or
foreclosure of this Mortgage, conveyance by deed in lieu of
foreclosure, and any subsequent conveyance of the Mortgaged Estate.
Nothing in this Section 2.08(f) shall be deemed to deprive the
Mortgagee of any rights or remedies provided to it elsewhere in
this Mortgage or the other Loan Documents or otherwise available to
it under law. Mortgagor waives and releases Mortgagee from any
rights or defenses Mortgagor may have under common law or
Environmental Laws for liability arising or resulting from the
presence, Use or Release of Hazardous Substances except to the
extent directly and solely caused by the fraud or willful
misconduct of Mortgagee.
Section 2.09. Limitations of Use. The Facility is used
exclusively as set forth in Section 3.1(S) of the Loan Agreement
and uses ancillary thereto. The Mortgagor shall not, without the
prior written consent of the Mortgagee (a) materially change the
use of the Facility or (b) initiate, join in or consent to any
change in any private restrictive covenant, zoning ordinance or
other public or private restrictions limiting or defining the uses
that may be made of the Facility or any part thereof, except as may
be necessary in connection with the uses permitted pursuant to this
Section 2.09. The Mortgagor shall comply with the provisions of
all Leases, licenses, agreements and private covenants, conditions
and restrictions that at any time are applicable to the Facility.
Section 2.10. Inspection of the Property. The Mortgagor
shall keep adequate records, accounts and books in accordance with
GAAP and shall permit the Mortgagee and its authorized
representatives to enter the Facility and inspect the Mortgaged
Estate and examine the records, accounts and books of the Mortgagor
with respect thereto and make copies or extracts thereof, at
Mortgagee's cost and expense, all upon reasonable advance notice
and at such reasonable times as may be requested by the Mortgagee,
subject, however, to the rights of the tenants or occupants of the
Facility. Notwithstanding the foregoing, after the occurrence and
continuation of an Event of Default, Mortgagor shall pay any costs
and expenses incurred by Mortgagee to examine Mortgagor's records,
and accounts relating to the Mortgaged Estate as Mortgagee shall
determine to be necessary or appropriate in the protection of
Mortgagee's interest.
Section 2.11. Actions to Protect Mortgaged Estate. If
the Mortgagor shall fail to (a) effect the insurance required by
Section 2.05, or (b) make the payments required by Section 2.06,
the Mortgagee may, without obligation to do so, and upon notice to
the Mortgagor (except in an emergency) effect or pay the same. If
the Mortgagor shall fail to perform or observe any of its other
covenants or agreements hereunder, the Mortgagee may, without
obligation to do so, and upon 30 days' prior written notice to the
Mortgagor (except in an emergency) effect the same. To the maximum
extent permitted by law, all sums, including reasonable attorneys'
fees and disbursements, so expended or expended to sustain the lien
or estate of this Mortgage or its priority, or to protect or
enforce any of the rights hereunder, or to recover any of the Loan
Obligations, shall be a lien on the Mortgaged Estate, shall be
deemed to be added to the Loan Obligations secured hereby, and
shall be paid by the Mortgagor within ten days after demand
therefor, together with interest thereon at the Default Rate.
Section 2.12. Condemnation.
(a) Should the Mortgaged Estate or any part thereof be taken
or damaged by reason of a Taking, or should the Mortgagor receive
any written notice regarding any such proceeding, the Mortgagor
shall give prompt notice thereof to the Mortgagee.
(b) The Mortgagee shall be entitled to receive and collect
all Condemnation Proceeds, and all such compensation, awards,
damages and other payments or relief, together with all rights and
causes of action relating thereto or arising out of any Taking, are
hereby assigned to the Mortgagee. The Mortgagor shall execute such
further assignments of the Condemnation Proceeds as the Mortgagee
may from time to time require. Without limiting the generality of
the foregoing, following the occurrence of any Taking involving the
Mortgaged Estate or any part thereof, the Mortgagor shall give
prompt notice thereof to the Mortgagee and shall cause all
Condemnation Proceeds payable as a result of such Taking to be paid
to the Mortgagee as additional collateral security hereunder
subject to the lien of this Mortgage and applied in accordance with
Section 2.12(c).
(c) Notwithstanding anything to the contrary in subparagraph
(b) above, the Mortgagee agrees that the Mortgagee shall make the
Condemnation Proceeds (other than Condemnation Proceeds in respect
of a temporary Taking, which shall be held and disbursed in
accordance with Section 2.12(h) of the Loan Agreement) available to
the Mortgagor for the Mortgagor's repair, restoration and
replacement of the Improvements, Equipment and Inventory affected
by the Taking on the following terms and subject to the Mortgagor's
satisfaction of the following conditions:
(i) At the time of such Taking and at all times
thereafter while the Mortgagee is holding any portion of such
Condemnation Proceeds, there shall exist no continuing Default or
Event of Default;
(ii) The Improvements, Equipment and Inventory
affected by the Taking shall be capable of being restored to their
pre-existing condition and utility in all material respects with a
value equal to or greater than prior to such Taking and shall be
capable of being completed six months prior to the Maturity Date
and prior to the expiration of business interruption insurance;
(iii) The Mortgagor shall demonstrate to the
Mortgagee's reasonable satisfaction the Mortgagor's ability to pay
the Loan Obligations relating to the Facility coming due during
such restoration period;
(iv) Within 30 days from the date of such Taking
the Mortgagor shall have given the Mortgagee a written notice
electing to have the Condemnation Proceeds applied for such
purpose;
(v) Within 60 days following the date of notice
under the preceding subparagraph (iv) and prior to any Condemnation
Proceeds being disbursed to the Mortgagor, the Mortgagor shall have
provided to the Mortgagee all of the following:
(1) if loss or damage exceeds $400,000,
complete plans and specifications for restoration, repair and
replacement of the Improvements, Equipment and Inventory damaged to
the condition, utility and value required by the preceding
subparagraph (ii),
(2) if loss or damage exceeds $400,000,
fixed-price or guaranteed maximum cost construction contracts for
completion of the repair and restoration work in accordance with
such plans and specifications,
(3) if loss or damage exceeds $400,000,
builder's risk insurance for the full cost of construction with the
Mortgagee named under a standard mortgagee loss-payable clause,
(4) if loss or damage exceeds $400,000 such
additional funds (if any) as in the Mortgagee's reasonable opinion
are necessary to complete the repair, restoration and replacement,
and
(5) if loss or damage exceeds $400,000, copies
of all permits and licenses (if any) necessary to complete the work
in accordance with the plans and specifications;
(vi) If loss or damage exceeds $400,000, the
Mortgagee may, at the Mortgagor's expense to the extent such
expenses and fees are reasonable, retain an independent inspector
to review and approve plans and specifications and completed
construction and to approve all requests for disbursement, which
approvals shall be conditions precedent to release of the
Condemnation Proceeds as work progresses;
(vii) The Mortgagor shall commence such work within
120 days after such Taking and shall diligently pursue such work to
completion;
(viii) If loss or damage exceeds $400,000, each
disbursement by the Mortgagee of such Condemnation Proceeds shall
be funded subject to conditions and in accordance with disbursement
procedures which a commercial construction lender would typically
establish in the exercise of sound banking practices and shall be
made only upon receipt of disbursement requests on an AIA G702/703
form (or similar form reasonably approved by the Mortgagee) signed
and certified by the Mortgagor and its architect and general
contractor with appropriate invoices, lien waivers and any other
documents, instruments and items as may be required by the
Mortgagee; and
(ix) The Mortgagee shall have a first lien and
security interest in all building materials and completed repair
and restoration work and in all fixtures and equipment acquired
with such Condemnation Proceeds, and the Mortgagor shall execute
and deliver such mortgages, deeds of trust, security agreements,
financing statements and other instruments as the Mortgagee shall
reasonably request to create, evidence, or perfect such lien and
security interest.
(d) In the event and to the extent such Condemnation Proceeds
are not required to be made available to Mortgagor to be used for
the repair, restoration and replacement of the Improvements,
Equipment and Inventory affected by the Taking or in the event the
Mortgagor fails to timely make such election or having made such
election fails to timely comply with or is otherwise unable to
satisfy the terms and conditions set forth herein, upon five
Business Days prior notice to the Mortgagor, the Mortgagee shall be
entitled without consent from the Mortgagor to apply such
Condemnation Proceeds, or the balance thereof, at the Mortgagee's
option either (x) to the full or partial payment or prepayment of
the Loan Obligations in accordance with Section 2.7 of the Loan
Agreement, or (y) to the repair, restoration and/or replacement of
all or any part of such Improvements, Equipment and Inventory
affected by the Taking.
(e) Subject to Mortgagee's rights under Section 2.12(d),
provided no Event of Default has occurred and the replacement,
restoration or repair has been completed in accordance with this
Mortgage, any Condemnation Proceeds, available to Mortgagor for
replacement, restoration or repair, to the extent not used by
Mortgagor in connection with, or to the extent they exceed the cost
of, such replacement, restoration or repair, shall be paid to the
Mortgagor.
(f) The Mortgagee shall be entitled at its option to
participate in any compromise, adjustment or settlement in
connection with any Taking involving an amount in controversy in
excess of $400,000, and the Mortgagor shall within ten Business
Days after request therefor reimburse the Mortgagee for all
reasonable out-of-pocket expenses (including reasonable attorneys'
fees and disbursements) incurred by the Mortgagee in connection
with such participation. The Mortgagor shall not make any
compromise, adjustment or settlement in connection with any such
claim in excess of $400,000 without the prior written approval of
the Mortgagee.
Section 2.13. Leases; Management Agreements. (a)
Mortgagor shall timely perform all of its obligations under the
terms and conditions of any Leases (including ground leases) and
shall not accept rent therefor in advance for a period of more than
one (1) month. Mortgagor represents that there are no Leases or
agreements to lease all or any part of the Mortgaged Estate now in
effect, except those specifically assigned to Mortgagee by, the
Assignment of Leases. There is no assignment or pledge of any
Rents now in effect, except pursuant to the Assignment of Leases.
Mortgagor shall not make any assignment or pledge thereof to anyone
other than Mortgagee until the Loan Obligations are paid in full.
(b) Mortgagor shall not enter into any Lease after the date
hereof that does not contain terms to the effect as follows:
(i) such Lease and the rights of the tenant
thereunder (including, without limitation, any options to purchase
or rights of first offer or refusal) shall be subject and
subordinate to the rights of Mortgagee under and the Lien of this
Mortgage and Mortgagee's rights under all Loan Documents, and any
renewals, modifications and amendments thereto and thereof;
(ii) such Lease has been assigned as collateral
security by Mortgagor as landlord thereunder to Mortgagee under
this Mortgage;
(iii) in the case of any foreclosure hereunder
or the giving or granting of a deed in lieu thereof, the rights and
remedies of the tenant in respect of any obligations of any
successor landlord thereunder shall be limited to the equity
interest of such successor landlord in the Trust Estate and any
successor landlord shall in no event and to no extent (1) be liable
for any act, omission or default of any prior landlord under the
Lease or (2) be required to make or complete any tenant
improvements or capital improvements or repair, restore, rebuild or
replace the demised premises or any part thereof in the event of
damage, casualty or condemnation or (3) be required to pay any
amounts to tenant arising under the Lease prior to such successor
landlord taking possession;
(iv) the tenant's obligation to pay rent and any
additional rent shall not be subject to any abatement, deduction,
counterclaim or setoff as against any mortgagee or purchaser upon
the foreclosure of any of the Mortgaged Estate or the giving or
granting of a deed in lieu thereof by reason of a landlord default
occurring prior to such foreclosure and such mortgagee or purchaser
will not be bound by any advance payments of rent in excess of one
month or any security deposit unless such security deposit was
actually received (or in the case of a letter of credit, was
properly transferred in negotiable form);
(v) the tenant agrees to attorn to Mortgagee or any
purchaser of the Mortgaged Estate upon a foreclosure of the
Mortgaged Estate or the giving or granting of a deed in lieu
thereof, at the option of Mortgagee or such purchaser;
(vi) the tenant agrees to give notice to Mortgagee
of any default by landlord under the Lease and Mortgagee shall have
a reasonable time to cure, should Mortgagee so elect, any default
of landlord prior to tenant exercising any rights of tenant to
terminate or cancel such Lease; and
(vii) all lease payments shall be due on or
before the fifth day of each calendar month.
(c) The Mortgagor shall not, without the prior consent
of the Mortgagee enter into, amend or terminate any management
agreements. The Mortgagor shall diligently perform all terms and
covenants of any and all Management Agreements.
(d) The Mortgagor shall not enter into any Material
Leases unless (i) Mortgagor has requested in writing Mortgagee's
consent to such Material Lease and has provided with such request
a written term sheet describing the material terms of such proposed
Material Lease including, but not limited to, the name of the
proposed tenant, the use to be made of the premises to be covered
by the proposed Material Lease, the rental payable under the
proposed Material Lease, the term of the proposed Material Lease
and any material changes from the Mortgagor's standard form Lease,
together with such information regarding the proposed tenant as
Mortgagee reasonably requests, and (ii) Mortgagee has consented in
writing to such proposed Material Lease, such consent not to be
unreasonably withheld; provided, however, if Mortgagee fails either
to consent in writing or to reject in writing such proposed
Material Lease within ten (10) days of Mortgagee's receipt of such
written request, Mortgagee shall be deemed to have consented to
such Material Lease.
Section 2.14. Mortgagee Reliance. Mortgagor
acknowledges that Mortgagee has examined and relied on the
experience of Mortgagor and its partners, shareholders and members
(including, without limitation, the direct and indirect legal and
beneficial owners of Mortgagor), in owning and operating properties
such as the Facility in agreeing to make the Loan, and will
continue to rely on Mortgagor and such experience of such persons
as a means of maintaining the value of the Facility as security for
repayment of the Loan and performance of all of Mortgagor's
obligations under the Loan Documents. Mortgagor acknowledges that
Mortgagee has a valid interest in maintaining the value of the
Facility so as to insure that, should Mortgagor allow a Transfer to
occur without Mortgagee's prior written consent, Mortgagee may
exercise all of its rights hereunder.
Section 2.15. No Transfer. Mortgagor shall not and
shall not cause, allow, or permit, and shall prevent from
occurring, a Transfer, without the prior written consent of
Mortgagee, which consent may be withheld or conditioned in
Mortgagee's sole and absolute discretion. Consent to any such
Transfer by Mortgagee shall not be deemed a waiver of Mortgagee's
right to require such consent to any further or future Transfers.
In the event of any violation of this Section 2.15, Mortgagee may,
at its option, accelerate and declare the outstanding principal
amount, unpaid interest (including without limitation Default Rate
interest), Late Charges, Yield Maintenance Premium and any other
amounts owing by Mortgagor to be immediately due and payable),
without notice or demand, whether or not all or any portion of the
Indebtedness shall be declared due and payable, and whether or not
Mortgagee shall have commenced any foreclosure proceeding or other
action for the enforcement of its rights and remedies under any of
the Loan Documents with respect to any Facility or all or any
portion of the Collateral.
ARTICLE III
Assignment of Rents, Issues and Profits
Section 3.01. Assignment of Rents, Issues and Profits. The
Mortgagor does hereby absolutely and unconditionally assign to the
Mortgagee the Mortgagor's right, title and interest in all current
and future Leases and Rents, it being intended by the Mortgagor
that this assignment constitutes a present, absolute assignment and
not an assignment for additional security only. This Section 3.01
presently gives Mortgagee the right to collect the Rents and to
apply the Rents in partial payment of the Note and Loan
Obligations. Mortgagor intends that the Rents and Leases be
absolutely assigned as provided in this Section 3.01 and that they
no longer be, during the term of this Section, property of the
Mortgagor or property of the estate of Mortgagor, as defined by 11
U.S.C. subsection 541. If any law exists requiring Mortgagee to
take actual possession of the Mortgaged Estate (or some action
equivalent to taking possession of the Mortgaged Estate, such as
securing the appointment of a receiver) in order for Mortgagee to
"perfect" or "activate" the rights and remedies of Mortgagee as
provided in this Section, Mortgagor waives the benefit of such law.
Such assignment to the Mortgagee shall not be construed to bind the
Mortgagee to the performance of any of the covenants, conditions or
provisions contained in any such Leases or otherwise impose any
obligation upon the Mortgagee and notwithstanding the assignment,
Mortgagor shall remain liable for any obligations undertaken by
Mortgagor pursuant to any Lease. Mortgagor agrees that, further to
evidence and reflect the assignment granted herein, Mortgagor shall
execute, acknowledge and deliver to Mortgagee such additional
instruments in form and substance reasonably satisfactory to
Mortgagee as may hereafter be requested by Mortgagee and shall
record such leases or memoranda thereof, and all assignments
thereof, all at Mortgagor's expense. Subject to the terms of this
Section 3.01 and the Loan Agreement, the Mortgagee grants to the
Mortgagor a license, revocable as hereinafter provided, to operate
and manage the Mortgaged Estate and to collect and use the Rents
subject to the requirements of the Loan Agreement. Upon the
occurrence of an Event of Default, the license granted to Mortgagor
herein shall, at Mortgagee's election, be revoked by the Mortgagee,
and the Mortgagee shall immediately be entitled to possession of
all Rents then or thereafter in the Collection Account and in the
Cash Collateral Account or wherever they may be and all Rents
collected thereafter (including Rents past due and unpaid), whether
or not the Mortgagee enters upon or takes control of the Mortgaged
Estate. Upon such a revocation of the license granted herein,
Mortgagee shall provide Mortgagor with written notice of same. Any
Rents collected by the Mortgagor from and after the date on which
an Event of Default occurred shall be held by Mortgagor in trust
for Mortgagee. The Mortgagee is hereby granted and assigned by the
Mortgagor the right, at its option, upon revocation of the license
granted herein, to enter upon the Mortgaged Estate in person, by
agent or by court appointed receiver to collect Rents with or
without taking the actual possession of the Mortgaged Estate or any
equivalent action. Any Rents collected after the revocation of the
license may be applied by Mortgagee in its sole and absolute
discretion toward payment of the Loan Obligations in accordance
with Section 2.8 of the Loan Agreement.
ARTICLE IV
Security Agreement
Section 4.01. Security Agreement. This Mortgage creates
a lien on and a security interest in the Security Interest
Property, and shall constitute a security agreement and "fixture
filing" under the UCC or other law applicable to the creation of
liens on and security interests in personal property and fixtures.
As further security for the payment and performance of the Loan
Obligations, this Mortgage shall constitute a financing statement
under the UCC with the Mortgagor as the "debtor" and the Mortgagee
as the "secured party". To the extent permitted by law, Mortgagor
hereby authorizes Mortgagee to file financing and continuation
statements necessary to continue the lien of and security interest
evidenced by this Mortgage with respect to the Security Interest
Property without the signature of Mortgagor, and Mortgagor hereby
irrevocably appoints Mortgagee as attorney-in-fact (which
appointment shall be deemed coupled with an interest) for the
purposes of executing and filing such financing and continuation
statements.
Section 4.02. Rights Upon Default. If an Event of
Default occurs, the Mortgagee, in addition to the rights and
remedies granted to the Mortgagee by applicable law and this
Mortgage, shall have all rights and remedies of a secured party
under the UCC. Any notice of sale, disposition or other intended
action by the Mortgagee with respect to the Mortgagee's rights
under the UCC sent to the Mortgagor in accordance with the notice
provision hereof at least ten days prior to such action shall
constitute reasonable notice to the Mortgagor. The proceeds of any
such sale or disposition, or any part thereof, may be applied by
the Mortgagee to the payment of the Loan Obligations in accordance
with Section 2.8 of the Loan Agreement.
Section 4.03. Warranties, Representations and Covenants.
The Mortgagor hereby warrants, represents and covenants that: (a)
the Equipment and Inventory will be kept on or at the Facility and
the Mortgagor will not remove any Equipment or Inventory from the
Facility, except such portions or items of the Equipment or
Inventory that are consumed or worn out in ordinary usage, all of
which shall be promptly replaced by the Mortgagor, except as
otherwise expressly provided in Section 2.07 with respect to
Equipment, (b) all covenants and obligations of the Mortgagor
contained herein relating to the Mortgaged Estate shall be deemed
to apply to the Equipment and Inventory whether or not expressly
referred to herein and (c) this Mortgage constitutes a security
agreement and "fixture filing" as those terms are used in the UCC.
Information relative to the security interest created hereby may be
obtained by application to the Mortgagee (secured party). The
mailing addresses of the Mortgagor and the Mortgagee are set forth
on Page 1.
ARTICLE V
Events of Default; Remedies
Section 5.01. Events of Default. The term "Event of
Default" wherever used in this Mortgage, shall mean any one of the
following events: (a) if Mortgagor fails to pay any amount payable
hereunder when due and payable; (b) if any representation or
warranty made herein shall be false in any material respect as of
the date such representation or warranty was made or remade; (c)
the occurrence of a default on the part of Mortgagor under any
Lease (subject, however, to any applicable notice and cure periods
required under the applicable Lease) provided that such default
adversely affects the value of the Mortgaged Estate or in any way
impairs Mortgagor's ability to perform its obligations under the
Loan Documents; (d) the failure of Mortgagor to maintain the
insurance required in this Mortgage; (e) if a Transfer shall occur
without Mortgagee's prior written consent, which consent may be
withheld in Mortgagee's sole and absolute discretion; (f) the
occurrence of any "Event of Default" under any of the Loan
Documents, including, without limitation, the Loan Agreement; or
(g) if Mortgagor shall be in default under any of the other
obligations, agreements, undertakings, terms, covenants, provisions
or conditions or this Mortgage, not otherwise referred to in this
Section 5.01, for ten (10) days after written notice to Mortgagor
from Mortgagee, in the case of any default which can be cured by
the payment of a sum of money or for thirty (30) days after written
notice from Mortgagee, in the case of any other default (unless
otherwise provided herein); provided, however, that if such non-
monetary default is susceptible of cure but cannot reasonably be
cured within such thirty (30) day period and provided further that
Mortgagor shall have commenced to cure such default within such
thirty (30) day period and thereafter diligently and expeditiously
proceeds to cure the same, such thirty (30) day period shall be
extended for such time as is reasonably necessary for Mortgagor in
the exercise of due diligence to cure such default but in no event
shall such period exceed ninety (90) days after the original notice
from Mortgagee.
Section 5.02. Acceleration of Maturity. If an Event of
Default shall have occurred, then the entire principal amount of
the indebtedness secured hereby with interest accrued thereon
shall, at the option of the Mortgagee, become immediately due and
payable without notice or demand, time being of the essence; and
any omission on the part of the Mortgagee to exercise such option
when entitled to do so shall not be considered as a waiver of such
right. Mortgagor hereby expressly waives presentment, demand for
payment, notice of protest, notice of dishonor, notice of intent to
accelerate the maturity of the indebtedness secured hereby and
notice of acceleration of the maturity of the indebtedness secured
hereby. Notwithstanding anything contained to the contrary herein,
the outstanding principal amount, unpaid interest, Default Rate
interest, Late Charges, Yield Maintenance Premium and any other
amounts owing by Mortgagor shall be accelerated and immediately due
and payable, without any election by Mortgagee upon the occurrence
of an Event of Default described in Section 7.1(x) or Section 7.1
(xi) of the Loan Agreement.
Section 5.03. Default Remedies.
(a) If an Event of Default shall have occurred and be
continuing, this Mortgage may, to the maximum extent permitted by
law, be enforced, and the Mortgagee may exercise any right, power
or remedy permitted to it hereunder, under the Loan Agreement or
under any of the other Loan Documents or by law or in equity, and,
without limiting the generality of the foregoing, the Mortgagee
may, personally or by its agents or by court appointed receiver, to
the maximum extent permitted by law:
(i) enter into and take possession of the Mortgaged
Estate or any part thereof, exclude the Mortgagor and all Persons
claiming under the Mortgagor whose claims are junior to this
Mortgage, wholly or partly therefrom, and use, operate, manage and
control the same either in the name of the Mortgagor or otherwise
as the Mortgagee shall deem best, and upon such entry, from time to
time at the expense of the Mortgagor and the Mortgaged Estate, make
all such repairs, replacements, alterations, additions or
improvements to the Facility or any part thereof as the Mortgagee
may deem proper and, whether or not the Mortgagee has so entered
and taken possession of the Mortgaged Estate or any part thereof,
collect and receive all Rents and apply the same to the payment of
all expenses that the Mortgagee may be authorized to make under
this Mortgage, the remainder to be applied to the payment of the
Loan Obligations until the same shall have been repaid in full; if
the Mortgagee demands or attempts to take possession of the
Mortgaged Estate or any portion thereof in the exercise of any
rights hereunder, the Mortgagor shall promptly turn over and
deliver complete possession thereof to the Mortgagee; and
(ii) personally or by agents, with or without entry, if
the Mortgagee shall deem it advisable:
(x) pursuant to the procedures prescribed by law as
a result thereof, sell the Mortgaged Estate or cause the Mortgaged
Estate to be sold at a sale or sales held at such place or places
and time or times and upon such notice and otherwise in such manner
and in such order as may be required by law, or, in the absence of
any such requirements, as the Mortgagee may deem appropriate and
from time to time adjourn any such sale by announcement at the time
and place specified for such sale or for such adjourned sale
without further notice, except such as may be required by law;
(y) proceed to protect and enforce its rights under
this Mortgage, by suit for specific performance of any covenant
contained herein or in the Loan Documents or in aid of the
execution of any power granted herein or in the Loan Documents, or
for the foreclosure of this Mortgage (as a mortgage or otherwise)
and the sale of the Mortgaged Estate under the judgment or decree
of a court of competent jurisdiction, or for the enforcement of any
other right as the Mortgagee shall deem most effectual for such
purpose, provided, that in the event of a sale, by foreclosure or
otherwise, of less than all of the Mortgaged Estate, this Mortgage
shall continue as a lien on, and security interest in, the
remaining portion of the Mortgaged Estate; or
(z) exercise any or all of the remedies available
to a secured party under the UCC, including, without limitation:
(1) either personally or by means of a court
appointed receiver, take possession of all or any of the Security
Interest Property and exclude therefrom the Mortgagor and all
Persons claiming under the Mortgagor, and thereafter hold, store,
use, operate, manage, maintain and control, make repairs,
replacements, alterations, additions and improvements to and
exercise all rights and powers of the Mortgagor in respect of the
Security Interest Property, or any part thereof; if the Mortgagee
demands or attempts to take possession of the Security Interest
Property in the exercise of any rights hereunder, the Mortgagor
shall promptly turn over and deliver complete possession thereof to
the Mortgagee;
(2) without further notice to or demand upon
the Mortgagor (except those otherwise required hereby or by the
Loan Agreement), make such payments and do such acts as the
Mortgagee may deem necessary to protect its security interest in
the Security Interest Property, including, without limitation,
paying, purchasing, contesting or compromising any encumbrance that
is prior to or superior to the security interest granted hereunder,
and in exercising any such powers or authority paying all expenses
incurred in connection therewith;
(3) require the Mortgagor to assemble the
Security Interest Property or any portion thereof, at a place
designated by the Mortgagee and reasonably convenient to both
parties, and promptly to deliver the Security Interest Property to
the Mortgagee, or an agent or representative designated by the
Mortgagee, and its agents and representatives, shall have the right
to enter upon the premises and property of the Mortgagor to
exercise the Mortgagee's rights hereunder;
(4) sell, lease or otherwise dispose of the
Security Interest Property, with or without having the Security
Interest Property at the place of sale, and upon such terms and in
such manner as the Mortgagee may determine (and the Mortgagee may
be a purchaser at any such sale, provided, however, that Mortgagee
may dispose of the Security Interest Property in accordance with
the Mortgagee's rights and remedies in respect of the Mortgaged
Estate pursuant to the provisions of this Mortgage in lieu of
proceeding under the UCC); and
(5) unless the Security Interest Property is
perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Mortgagee, as the
case may be, shall give the Mortgagor at least ten days' prior
notice of the time and place of any sale of the Security Interest
Property or other intended disposition thereof.
(b) If an Event of Default shall have occurred, the
Mortgagee, to the maximum extent permitted by law, shall be
entitled, as a matter of right, to the appointment of a receiver of
the Mortgaged Estate, without notice or demand, and without regard
to the adequacy of the security for the Loan Obligations or the
solvency of the Mortgagor. The Mortgagor hereby irrevocably
consents to such appointment and waives notice of any application
therefor. Any such receiver or receivers shall have all the usual
powers and duties of receivers in like or similar cases and all the
powers and duties of the Mortgagee in case of entry and shall
continue as such and exercise all such powers until the date of
confirmation of sale of the Mortgaged Estate, unless such
receivership is sooner terminated.
(c) In any sale under any provision of this Mortgage or
pursuant to any judgment or decree of court, the Mortgaged Estate,
to the maximum extent permitted by law, may be sold in one or more
parcels or as an entirety and in such order as the Mortgagee may
elect, without regard to the right of the Mortgagor or any Person
claiming under the Mortgagor to the marshalling of assets. The
purchaser at any such sale shall take title to the Mortgaged Estate
or the part thereof so sold free and discharged of the estate of
the Mortgagor therein, the purchaser being hereby discharged from
all liability to see to the application of the purchase money.
Upon the completion of any such sale by virtue of this Section 5.03
the Mortgagee shall execute and deliver to the purchaser an
appropriate instrument that shall effectively transfer all of the
Mortgagor's estate, right, title, interest, property, claim and
demand in and to the Mortgaged Estate or portion thereof so sold,
but without any covenant or warranty, express or implied. The
Mortgagee is hereby irrevocably appointed the attorney-in-fact of
the Mortgagor in its name and stead to make all appropriate
transfers and deliveries of the Mortgaged Estate or any portions
thereof so sold and, for that purpose, the Mortgagee may execute
all appropriate instruments of transfer, and may substitute one or
more Persons with like power, the Mortgagor hereby ratifying and
confirming all that said attorneys or such substitute or
substitutes shall lawfully do by virtue hereof. Nevertheless, the
Mortgagor shall ratify and confirm, or cause to be ratified and
confirmed, any such sale or sales by executing and delivering, or
by causing to be executed and delivered to the Mortgagee or to such
purchaser or purchasers all such instruments as may be advisable,
in the judgment of the Mortgagee, for such purpose, and as may be
designated in such request. Any sale or sales made under or by
virtue of this Mortgage, to the extent not prohibited by law, shall
operate to divest all the estate, right, title, interest, property,
claim and demand whatsoever, whether at law or in equity, of the
Mortgagor in, to and under the Mortgaged Estate, or any portions
thereof so sold, and shall be a perpetual bar both at law and in
equity against the Mortgagor and against any and all Persons
claiming or who may claim the same, or any part thereof, by,
through or under the Mortgagor. The powers and agency herein
granted are coupled with an interest and are irrevocable.
(d) All rights of action under the Loan Documents and this
Mortgage may be enforced by the Mortgagee without the possession of
the original Loan Documents and without the production thereof at
any trial or other proceeding relative thereto.
Section 5.04. Application of Proceeds.
Prior to the occurrence and continuance of an Event of Default, any
amounts received or collected by Mortgagee under this Mortgage
shall be applied in accordance with Section 2.8 of the Loan
Agreement. After the occurrence and continuance of an Event of
Default, any amounts received or collected by the Mortgagee under
this Mortgage may be applied to any one or more of the following in
such order and in such amounts as the Mortgagee may elect in its
sole discretion:
(i) To the payment of all costs, expenses and advances
incurred by the Mortgagee, or made by the Mortgagee, in the
enforcement of this Mortgage or any of the other Loan Documents,
the protection of the Lien and security afforded thereby, and the
preservation of the Mortgaged Estate, including, without
limitation, all expenses of managing the Facility, including,
without limitation, the salaries, fees and wages of any managing
agent and such other employees as Mortgagee may deem necessary and
all expenses of operating and maintaining the Facility, including,
without limitation, all taxes, charges, claims, assessments, water
rents, sewer rents and any other liens, and premiums for all
insurance which are due and payable and the cost of all
alterations, renovations, repairs or replacements, and all costs
and expenses incident to taking and retaining possession of the
Facility and the enforcement of any of Mortgagee's rights and
remedies hereunder; and
(ii) To the payment of the Loan Obligations.
(b) No sale or other disposition of all or any part of the
Mortgaged Estate pursuant to Section 5.03 shall be deemed to
relieve the Mortgagor of its obligations under the Loan Agreement
or any other Loan Document except to the extent the proceeds
thereof are applied to the payment of such obligations. If the
proceeds of sale, collection or other realization of or upon the
Mortgaged Estate are insufficient to cover the costs and expenses
of such realization and the payment in full of the Loan
Obligations, the Mortgagor shall remain liable for any deficiency
subject to Section 7.14 hereof.
(c) Intentionally deleted.
Section 5.05. Right to Sue. Subject to Section 7.14,
the Mortgagee each shall have the right from time to time to sue
for any sums required to be paid by the Mortgagor under the terms
of this Mortgage as the same become due, without regard to whether
or not the Loan Obligations shall be, or have become, due and
without prejudice to the right of the Mortgagee thereafter to bring
any action or proceeding of foreclosure or any other action upon
the occurrence and continuance of any Event of Default existing at
the time such earlier action was commenced.
Section 5.06. Powers of the Mortgagee. The Mortgagee
may at any time or from time to time renew or extend this Mortgage
or (with the agreement of the Mortgagor) alter or modify the same
in any way, or waive any of the terms, covenants or conditions
hereof or thereof, in whole or in part, and may release or reconvey
any portion of the Mortgaged Estate or any other security, and
grant such extensions and indulgences in relation to the Loan
Obligations, or release any Person liable therefor as the Mortgagee
may determine without the consent of any junior lienor or
encumbrancer, without any obligation to give notice of any kind
thereto, without in any manner affecting the priority of the lien
and estate of this Mortgage on or in any part of the Mortgaged
Estate, and without affecting the liability of any other Person
liable for any of the Loan Obligations.
Section 5.07. Remedies Cumulative.
(a) No right or remedy herein conferred upon or reserved to
the Mortgagee is intended to be exclusive of any other right or
remedy, and each and every right and remedy shall be cumulative and
in addition to any other right or remedy under this Mortgage, or
under applicable law, whether now or hereafter existing; the
failure of the Mortgagee to insist at any time upon the strict
observance or performance of any of the provisions of this Mortgage
or to exercise any right or remedy provided for herein or under
applicable law, shall not impair any such right or remedy nor be
construed as a waiver or relinquishment thereof.
(b) To the fullest extent permitted by applicable law, the
Mortgagee shall each be entitled to enforce payment and performance
of any of the obligations of the Mortgagor and to exercise all
rights and powers under this Mortgage or under any Loan Document or
any laws now or hereafter in force, notwithstanding that some or
all of the Loan Obligations may now or hereafter be otherwise
secured, whether by mortgage, deed of trust, pledge, lien,
assignment or otherwise; neither the acceptance of this Mortgage
nor its enforcement, whether by court action or pursuant to the
power of sale or other powers herein contained, shall prejudice or
in any manner affect the Mortgagee's right to realize upon or
enforce any other security now or hereafter held by the Mortgagee,
it being stipulated that the Mortgagee shall be entitled to enforce
this Mortgage and any other security now or hereafter held by the
Mortgagee in such order and manner as the Mortgagee, in its sole
discretion, may determine; every power or remedy given by the Loan
Agreement, this Mortgage or any of the other Loan Documents to the
Mortgagee, or to which the Mortgagee is otherwise entitled, may be
exercised, concurrently or independently, from time to time and as
often as may be deemed expedient by the Mortgagee, and the
Mortgagee may pursue inconsistent remedies.
Section 5.08. Waiver of Stay, Extension, Moratorium
Laws; Equity of Redemption. To the maximum extent permitted by
law, the Mortgagor shall not at any time insist upon, or plead, or
in any manner whatever claim or take any benefit or advantage of
any applicable present or future stay, extension or moratorium law,
that may affect observance or performance of the provisions of this
Mortgage; nor claim, take or insist upon any benefit or advantage
of any present or future law providing for the valuation or
appraisal of the Mortgaged Estate or any portion thereof prior to
any sale or sales thereof that may be made under or by virtue of
Section 5.03; and the Mortgagor, to the extent that it lawfully
may, hereby waives all benefit or advantage of any such law or
laws. The Mortgagor, for itself and all who may claim under it,
hereby waives, to the maximum extent permitted by applicable law,
any and all rights and equities of redemption from sale under the
power of sale created hereunder or from sale under any foreclosure
of this Mortgage and (if an Event of Default shall have occurred)
all notice or notices of seizure, and all right to have the
Mortgaged Estate marshalled upon any foreclosure hereof. The
Mortgagee shall not be obligated to pursue or exhaust its rights or
remedies as against any other part of the Mortgaged Estate and the
Mortgagor hereby waives any right or claim of right to have the
Mortgagee proceed in any particular order.
Section 5.09. Waiver of Homestead. The Mortgagor hereby
waives and renounces all homestead and exemption rights provided
for by the Constitution and the laws of the United States and of
any state, in and to the Mortgaged Estate as against the collection
of the Loan Obligations, or any part thereof.
Section 5.10. Discontinuance of Proceedings. In case
the Mortgagee shall have proceeded to enforce any right, power or
remedy under this Mortgage by foreclosure, power of sale, entry or
otherwise, and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely
to the Mortgagee, then in every such case, the Mortgagor and the
Mortgagee shall be restored to their former positions and rights
hereunder, and all rights, powers and remedies of the Mortgagee
shall continue as if no such proceedings had occurred.
ARTICLE VI
Ground Lease
Section 6.1. Representations and Warranties. The
Mortgagor hereby represents and warrants as follows: (i) the
Ground Lease is in full force and effect in accordance with its
terms, unmodified by any writing or otherwise except as
specifically set forth herein; (ii) all base rent, additional rent
(if any) and other charges reserved in or payable under the Ground
Lease have been paid in full to the extent that they are payable to
the date hereof; (iii) the Mortgagor is the owner of the Leasehold
Estate and the Mortgagor enjoys the quiet, peaceful and undisturbed
possession of such Leasehold Estate; (iv) neither the Mortgagor
nor the Fee Owner is in default under any of the terms of the
Ground Lease and there are no circumstances that with the passage
of time, the giving of notice, or both, would constitute a default
by either party thereunder; (v) the Leasehold Estate is not subject
to any encumbrances or other matters except for the Permitted
Encumbrances; (vi) this Mortgage is and shall remain a valid and
enforceable first lien on the Leasehold Estate subject only to the
Permitted Encumbrances; (vii) the Mortgagor has full power and
authority to encumber the Leasehold Estate in the manner and form
herein provided or intended hereafter to be provided; and (viii)
the Mortgagor has delivered to the Mortgagee a true, accurate and
complete copy of the Ground Lease.
Section 6.2. Covenants. The Mortgagor covenants and
agrees as follows: (i) to promptly and faithfully observe, perform
and comply with all of the terms, covenants and provisions of the
Ground Lease; (ii) to refrain from doing anything, as a result of
which, there could likely be a default under or breach of any of
the terms of the Ground Lease; (iii) not to do or permit any act,
event or omission, as a result of which, there is likely to occur
a default or breach under the Ground Lease; (iv) to immediately
give the Mortgagee notice of any default by any party under the
Ground Lease upon learning of such default and immediately deliver
to the Mortgagee a copy of each notice of default and all responses
to such notice of default and all other such instruments, notices
or demands received or delivered by Mortgagor under or in
connection with the Ground Lease; (v) to immediately notify the
Mortgagee in writing in the event of the initiation of any
litigation or arbitration proceeding under or in connection with
the Ground Lease upon learning of same; (vi) to furnish to the
Mortgagee copies of such information and such other evidence as the
Mortgagee may reasonably request from time to time concerning the
Mortgagor's due observance, performance and compliance with the
terms, covenants and provisions of the Ground Lease; and (vii) the
occurrence of a default on the part of the Mortgagor as tenant
under the Ground Lease, which default is continuing beyond the
expiration of any cure period applicable thereto under such Ground
Lease, shall constitute an immediate Event of Default by the
Mortgagor under this Mortgage.
Section 6.3. Additional Covenants. The Mortgagor
further covenants and agrees that it will not voluntarily or
involuntarily, directly or indirectly, assign, transfer or convey
the Leasehold Estate, nor surrender, terminate or cancel the Ground
Lease nor, without the prior written consent of the Mortgagee, fail
to exercise in a timely manner any renewal option(s) contained in
the Ground Lease nor, without the prior written consent of
Mortgagee, modify, alter or amend the Ground Lease either orally or
in writing. Any assignment, transfer, conveyance, surrender,
termination, cancellation, modification, alteration or amendment of
the Ground Lease in contravention of the foregoing sentence shall
be an Event of Default hereunder.
Section 6.4. No Release. The Mortgagor acknowledges
and agrees that no release or forbearance of any of the Mortgagor's
obligations under the Ground Lease or otherwise shall release the
Mortgagor from any of its obligations under this Mortgage,
including without limitation the performance of all of the terms,
provisions, covenants, conditions and agreements contained in the
Ground Lease, to be kept, performed and complied with by the
Mortgagor therein.
Section 6.5. Defaults. In the event of a default by
the Mortgagor under the Ground Lease or the occurrence of an event
that, with the giving of notice, the passage of time, or both,
would constitute a default by the Mortgagor under the Ground Lease
(including, without limitation, any default in the payment of any
sums payable thereunder) then, in each and every such case, the
Mortgagee may (but shall not be obligated to), in its sole
discretion, cause such default or defaults by the Mortgagor to be
remedied and otherwise take or perform such other actions as the
Mortgagee may deem necessary or desirable as a result thereof of or
in connection therewith. The Mortgagor shall, on demand, reimburse
the Mortgagee for all advances made and expenses incurred by the
Mortgagee in curing any such default(s) (including, without
limitation, reasonable attorneys' fees), together with interest
thereon from the date the same is paid in full to the Mortgagee and
all such sums so advanced shall be secured hereby. The provisions
of this subsection are in addition to any other right or remedy
given to or allowed the Mortgagee under the Ground Lease or
otherwise.
Section 6.6. Cancellation or Termination. If the
Ground Lease is cancelled or terminated and the Mortgagee or its
nominee shall acquire an interest in any new lease of the Facility,
the Mortgagor shall have no right, title or interest in or to the
new lease or the leasehold estate created by such new lease.
Section 6.7. Estoppel Certificate. Subject to the fact
that the Fee Owner under the Ground Lease may not have an
obligation to deliver an estoppel certificate, the Mortgagor shall,
from time to time, use reasonable efforts to obtain and deliver (or
cause to be delivered) to the Mortgagee, within fifteen (15) days
after written demand therefor by the Mortgagee, an estoppel
certificate from the Fee Owner certifying to such matters as the
Mortgagee may require, including without limitation, the following:
(1) the name of the tenant entitled to possession of the Leasehold
Estate under the Ground Lease; (2) that the Ground Lease is in full
force and effect and has not been modified or, if it has been
modified, the date of each such modification (together with copies
of each modification); (3) the date to which the fixed (or base)
rent has been paid under the Ground Lease, (4) the dates to which
all other fees or charges have been paid under the Ground Lease;
(5) whether any notice of default has been sent to the Mortgagor,
as tenant, under the Ground Lease which has not been cured, and if
such notice has been sent, the date it was sent and the nature of
the default; (6) to the best of the Fee Owner's knowledge, whether
the Mortgagor, as tenant, under the Ground Lease is in default in
keeping, observing or performing any term, covenant, agreement,
provision, condition or limitation contained in the Ground Lease
and (7) if the Mortgagor, as tenant, under the Ground Lease shall
be in default, the nature of the default in reasonable detail.
Section 6.8. No Liability. Notwithstanding anything
contained herein or otherwise to the contrary, the Mortgagee shall
not have any liability or obligation under the Ground Lease by
virtue of its acceptance of this Mortgage. The Mortgagor
acknowledges and agrees that the Mortgagee shall be liable for the
obligations of the tenant arising under the Ground Lease for only
that period of time, if any, during which the Mortgagee is in
possession of the Leasehold Estate or has acquired, by foreclosure,
or otherwise, and is holding, all of the Mortgagor's right, title
and interest as tenant therein.
Section 6.9. Bankruptcy. Notwithstanding anything
contained herein or otherwise to the contrary, the Mortgagor hereby
assigns, transfers and sets over to the Mortgagee any and all
rights and interests that may arise in favor of the Mortgagor in
connection with or as a result of the bankruptcy or insolvency of
the Fee Owner, including, without limitation, all of the
Mortgagor's right, title and interest in, to and under section 365
of the Bankruptcy Code (11 U.S.C. section 365), as the same may be
amended, supplemented or modified from time to time.
Section 6.10. No Merger. It is hereby agreed by the
parties that the fee title currently vested in the Fee Owner and
the Leasehold Estate currently held by the Mortgagor shall not
merge but shall always be kept separate and distinct,
notwithstanding the union of such estates in either the Fee Owner
(or its successors and assigns), the Mortgagor or a third party,
whether by purchase or otherwise. If the Mortgagor acquires such
fee title or any other estate, title or interest in such property,
or any part thereof, the lien of this Mortgage shall automatically
spread and attach to, cover and be a first lien upon such acquired
estate, title or interest and the same shall thereupon and
thereafter be and become a part of the premises encumbered hereby
with the same force and effect as if specifically encumbered
herein. The Mortgagor agrees to execute all instruments and
documents which the Mortgagee may reasonably require to ratify,
confirm and further evidence the Mortgagee's first lien on the
acquired estate, title or interest. Furthermore, the Mortgagor
hereby appoints the Mortgagee its true and lawful attorney-in-fact
to execute and deliver all such instruments and documents in the
name and on behalf of the Mortgagor. This power, being coupled
with an interest, shall be irrevocable as long as the indebtedness
secured hereby remains unpaid.
Section 6.11. Taxes. In the event that it is claimed by
any governmental agency, authority or subdivision that any tax or
governmental charge or imposition is due, unpaid or payable by the
Mortgagor or the Mortgagee upon or in connection with the
obligations secured hereby or the Ground Lease, the Mortgagor shall
promptly either (i) pay such tax, charge or imposition when due and
deliver to the Mortgagee satisfactory proof of payment thereof or
(ii) deposit with the Mortgagee the amount of such claimed tax,
together with interest and penalties thereon, pending an
application for a review of the claim for such tax, and within a
reasonable time, deliver to the Mortgagee either (a) evidence
satisfactory to the Mortgagee that such claim of taxability has
been withdrawn or defeated, in which event any such deposit shall
be returned to the Mortgagor or (b) a direction from the Mortgagor
to the Mortgagee to pay the same out of the deposit above
mentioned, any excess due over the amount of said deposit to be
paid by the Mortgagor directly to the taxing authority and any
excess of such deposit over such payment by the Mortgagee to be
returned to the Mortgagor. If liability for such tax is asserted
against the Mortgagee, the Mortgagee will give to the Mortgagor
prompt notice of such claim, and the Mortgagor, upon complying with
the provisions of this subsection shall have full right and
authority to contest such claim of taxability.
ARTICLE VII
Miscellaneous
Section 7.01. Reconveyance by Mortgagee. Upon payment
in full of the Loan Obligations or a complete defeasance with
respect to the Mortgaged Estate which complies with the Loan
Agreement (if the Loan Agreement provides for defeasance), the
Mortgagee shall release the lien of this Mortgage, or upon the
request of the Mortgagor, and at the Mortgagor's expense, assign
this Mortgage without recourse to the Mortgagor's designee, or to
the Person or Persons legally entitled thereto, by an instrument
duly acknowledged in form for recording.
Section 7.02. Notices. All notices, demands, consents,
requests or other communications that are permitted or required to
be given by any party to the other hereunder shall be in writing
and given in the manner specified in Section 8.06 of the Loan
Agreement.
Section 7.03. Amendments; Waivers; etc. This Mortgage
cannot be modified, changed or discharged except by an agreement in
writing, duly acknowledged in form for recording, signed by the
Mortgagor and the Mortgagee.
Section 7.04. Successors and Assigns. This Mortgage
applies to, inures to the benefit of and binds the Mortgagor, the
Mortgagee and the Mortgagee and their respective successors and
assigns and shall run with the Land.
Section 7.05. Captions. The captions or headings at the
beginning of each Article and Section hereof are for the
convenience of the parties hereto and are not a part of this
Mortgage.
Section 7.06. Severability. If any term or provision of
this Mortgage or the application thereof to any Person or
circumstance shall to any extent be invalid or unenforceable, the
remainder of this Mortgage, or the application of such term or
provision to Persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Mortgage shall be valid and
enforceable to the maximum extent permitted by law. If any portion
of the Loan Obligations shall for any reason not be secured by a
valid and enforceable lien upon any part of the Mortgaged Estate,
then any payments made in respect of the Loan Obligations (whether
voluntary or under foreclosure or other enforcement action or
procedure or otherwise) shall, for purposes of this Mortgage
(except to the extent otherwise required by applicable law) be
deemed to be made (a) first, in respect of the portion of the Loan
Obligations not secured by the lien of this Mortgage, (b) second,
in respect of the portion of the Loan Obligations secured by the
lien of this Mortgage, but which lien is on less than all of the
Mortgaged Estate, and (c) last, to the portion of the Loan
Obligations secured by the lien of this Mortgage, and which lien is
on all of the Mortgaged Estate.
Section 7.07. Indemnity; Expenses. Except for actions
by the Mortgagor against the Mortgagee where the Mortgagor is the
successful party, the Mortgagor will pay or reimburse the Mortgagee
for all reasonable attorneys' fees, costs and expenses incurred by
the Mortgagee in any suit, action, legal proceeding or dispute of
any kind in which the Mortgagee is made a party or appears as party
plaintiff or defendant, affecting the Loan Obligations, this
Mortgage or the interest created herein, or the Mortgaged Estate,
or any appeal thereof, including, but not limited to, activities
related to enforcement of the remedies of Mortgagee, activities
related to protection of Mortgagee's collateral, any foreclosure
action or exercise of the power of sale, any action commenced under
Section 5.03(a)(iii), any condemnation action involving the
Mortgaged Estate or any action to protect the security hereof, any
bankruptcy or other insolvency proceeding commenced by or against
the Mortgagor, or any lessee of the Mortgaged Estate (or any part
thereof), and any such amounts paid or incurred by the Mortgagee
shall be added to the Loan Obligations and shall be secured by this
Mortgage. The Mortgagor will indemnify, defend and hold each of the
Mortgagee harmless from and against all claims, damages, and
expenses, including reasonable attorneys' fees and court costs,
resulting from any action by a third party against the Mortgagee
relating to this Mortgage or the interest created herein, or the
Mortgaged Estate, including, but not limited to, any action or
proceeding claiming loss, damage or injury to person or property,
or any action or proceeding claiming a violation of or liability
under any Legal Requirements, including applicable Environmental
Laws, provided the Mortgagor shall not be required to indemnify the
Mortgagee for matters to the extent caused by willful misconduct or
fraud by either of them, respectively. The Mortgagor acknowledges
that it has undertaken the obligation to pay all intangibles taxes
and documentary taxes now or hereafter due in connection with the
Loan Obligations and the Loan Documents, and the Mortgagor agrees
to indemnify and hold the Mortgagee harmless from any intangibles
taxes and documentary stamp taxes, and any interest or penalties,
which the Mortgagee may hereafter be required to pay in connection
with the Loan Obligations or Loan Documents. The agreements of
this Section 7.07 shall expressly survive in perpetuity
satisfaction of this Mortgage and repayment of the Loan
Obligations, any release, reconveyance, discharge or foreclosure of
this Mortgage, conveyance by deed in lieu of foreclosure, sale, and
any subsequent transfer by Mortgagee's conveyance of the Mortgaged
Estate.
Section 7.08. Estoppel Certificates. The Mortgagor and
the Mortgagee each hereby agree at any time and from time to time
upon not less than fifteen (15) days prior written notice from the
other party to execute, acknowledge and deliver to the party
specified in such notice, a statement, in writing, certifying that
this Mortgage is unmodified and in full force and effect (or if
there have been modifications, that the same, as modified, is in
full force and effect and stating the modifications hereto), and
stating whether or not, to the best knowledge of such certifying
party, any Default or Event of Default has occurred, and, if so,
specifying each such Default or Event of Default; provided,
however, that it shall be a condition precedent to the Mortgagee's
obligation to deliver the statement pursuant to this Section 7.08,
that the Mortgagee shall have received, together with the
Mortgagor's request for such statement, an Officer's Certificate
stating that no Default or Event of Default exists as of the date
of such certificate (or specifying such Default or Event of
Default).
Section 7.09. Applicable Law. This Mortgage shall be
governed by and construed in accordance with the laws of the State
in which the Facility is located.
Section 7.10. Limitation of Interest. It is the
intention of Mortgagor and Mortgagee to conform strictly to
applicable usury laws. Accordingly, if the transactions
contemplated hereby would be usurious under applicable law, then,
in that event, notwithstanding anything to the contrary in any Loan
Document, it is agreed as follows: (i) the aggregate of all
consideration which constitutes interest under applicable law that
is taken, reserved, contracted for, charged or received under any
Loan Document or otherwise in connection with the Loan shall under
no circumstances exceed the maximum amount of interest allowed by
applicable law, and any excess shall be credited to principal by
Mortgagee (or if the Loan shall have been paid in full, refunded to
Mortgagor); and (ii) in the event that maturity of the Loan is
accelerated by reason of an election by Mortgagee resulting from
any default hereunder or otherwise, or in the event of any required
or permitted prepayment, then such consideration that constitutes
interest may never include more than the maximum amount of interest
allowed by applicable law, and any interest in excess of the
maximum amount of interest allowed by applicable law, if any,
provided for in the Loan Documents or otherwise shall be cancelled
automatically as of the date of such acceleration or prepayment
and, if theretofore prepaid, shall be credited to principal (or if
the principal portion of the Loan and any other amounts not
constituting interest shall have been paid in full, refunded to
Mortgagor.)
In determining whether or not the interest paid or
payable under any specific contingency exceeds the maximum amount
allowed by applicable law, Mortgagee shall, to the maximum extent
permitted under applicable law (a) exclude voluntary prepayments
and the effects thereof, and (b) amortize, prorate, allocate and
spread, in equal parts, the total amount of interest throughout the
entire contemplated term of the Loan so that the interest rate is
uniform throughout the entire term of the Loan; provided, that if
the Loan is paid and performed in full prior to the end of the full
contemplated term hereof, and if the interest received for the
actual period of existence thereof exceeds the maximum amount
allowed by applicable law, Mortgagee shall refund to Mortgagor the
amount of such excess, and in such event, Mortgagee shall not be
subject to any penalties provided by any laws for contracting for,
charging or receiving interest in excess of the maximum amount
allowed by applicable law.
Section 7.11. Assignment. The Mortgagee shall have the
right to assign this Mortgage and the obligations hereunder to any
Person in accordance with the Loan Agreement. The parties hereto
acknowledge that following the execution and delivery of this
Mortgage, the Mortgagee may sell, transfer and assign this Mortgage
and all or any of the other Loan Documents to the trustee or
servicer in connection with a Securitization. All references to
"Mortgagee" hereunder shall be deemed to include the assigns of the
Mortgagee including the trustee or servicer in any Securitization.
Section 7.12. Time of the Essence. Time is of the
essence with respect to each and every covenant, agreement and
obligation of the Mortgagor under this Mortgage, the Note and all
other Loan Documents.
SECTION 7.13. WAIVER OF JURY TRIAL. THE MORTGAGOR AND
MORTGAGEE HEREBY WAIVE ANY RIGHT THAT EITHER OF THEM MAY HAVE TO A
TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR
CAUSE OF ACTION (A) ARISING OUT OF OR IN EITHER WAY RELATED TO THIS
MORTGAGE OR THE LOAN, OR (B) IN ANY WAY CONNECTED WITH OR
PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF MORTGAGOR
AND/OR THE MORTGAGEE WITH RESPECT TO THE LOAN DOCUMENTS OR IN
CONNECTION WITH THIS MORTGAGE OR THE EXERCISE OF ANY PARTY'S RIGHTS
AND REMEDIES UNDER THIS MORTGAGE OR OTHERWISE, OR THE CONDUCT OR
THE RELATIONSHIP OF THE PARTIES HERETO, IN ALL OF THE FOREGOING
CASES WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH OF THE MORTGAGOR AND
THE MORTGAGEE AGREE THAT THE OTHER MAY FILE A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING,
VOLUNTARY, AND BARGAINED AGREEMENT OF THE MORTGAGOR AND MORTGAGEE
IRREVOCABLY TO WAIVE ITS RIGHTS TO TRIAL BY JURY AS AN INDUCEMENT
OF THE MORTGAGEE TO MAKE THE LOAN, AND THAT, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER
(WHETHER OR NOT MODIFIED HEREIN) BETWEEN THE MORTGAGOR AND THE
MORTGAGEE SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
Section 7.14. Exculpation. This Mortgage and the
obligations of Mortgagor hereunder are and shall be subject to and
limited by the exculpation provisions of Section 8.14 of the Loan
Agreement.
Section 7.15. Exhibits. The information set forth on
the cover, heading and recitals hereof, and the Exhibits attached
hereto, are hereby incorporated herein as a part of this Mortgage
with the same effect as if set forth in the body hereof.
Section 7.16. Future Advances. This Mortgage is given
to secure not only the existing Loan Obligations, but such future
advances, whether such advances are obligatory or are made at the
option of Mortgagee, or otherwise, as are made within twenty (20)
years from the date hereof, to the same extent as if such future
advances were made on the date of the execution of this Mortgage.
The total amount of indebtedness that may be so secured hereunder
may decrease or increase from time to time, but the maximum
possible principal indebtedness so secured at any one time shall
not exceed one and one-half times the face amount of the Note, plus
interest thereon, and any disbursements made for the payment of
taxes, levies or insurance on the Mortgaged Estate, with interest
on such disbursements at the Default Rate of interest under the
Note. An Event of Default under the Mortgage shall automatically
exist (i) if Mortgagor executes any instrument which purports to
have or would have the effect of impairing the priority of or
limiting any future advance which might ever be made under this
Mortgage, or (ii) if Mortgagor takes, suffers or permits any action
or occurrence which would adversely affect the priority of any
future advance which might ever be made under this Mortgage.
[Signatures on following two pages]
IN WITNESS WHEREOF, this Mortgage has been duly executed by
the Mortgagor as of the day and year first above written.
Signed, sealed and delivered Mortgagor
in the presence of:
/s/Marvin J. Levine MARK NORTHWOOD ASSOCIATES,
Signature LIMITED PARTNERSHIP, a Florida
limited partnership
Marvin J. Levine By: Mark Northwood Realty, Inc., a
Printed Signature Florida corporation, its general
partner
By: /s/Joshua Kane
/s/Richard A. Bendit Joshua Kane
Signature Senior Vice President
[SEAL]
Richard A. Bendit Address: 600 Third Avenue
Printed Signature Kingston, Pennsylvania 18704-1679
[Signatures continue on the following page]
INTENDING TO BE LEGALLY BOUND HEREBY, the undersigned, MARK CENTERS
LIMITED PARTNERSHIP, a Delaware limited partnership (the "Fee
Owner"), as fee owner of the Mortgaged Property (as defined in the
Mortgage) hereby joins in the Mortgage and hereby (a) consents to
the creation of the Mortgage, (b) submits and subordinates such fee
interest to the lien of the Mortgage, and (c) agrees that a
foreclosure under the Mortgage shall divest the Fee Owner of the
Fee Owner's fee interest in the Mortgaged Property.
Signed, sealed and delivered
in the presence of: MARK CENTERS LIMITED PARTNERSHIP,
a Delaware limited partnership
/s/Marvin J. Levine By: Mark Centers Trust, a Maryland
Signature real estate investment trust, its
general partner
Marvin J. Levine
Printed Signature
/s/Richard A. Bendit By: /s/Joshua Kane
Signature Joshua Kane
Senior Vice President
Richard A. Bendit
Printed Signature
[SEAL]
Address: 600 Third Avenue
Kingston, Pennsylvania
18704-1679
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
I HEREBY CERTIFY that on this day, before
me, an officer duly authorized in the State aforesaid and in the
County aforesaid to take acknowledgments, the foregoing instrument
was acknowledged before me by Joshua Kane the Senior Vice President
of MARK NORTHWOOD REALTY, INC., a Florida corporation as the
general partner of MARK NORTHWOOD ASSOCIATES, LIMITED PARTNERSHIP,
a Florida limited partnership, freely and voluntarily under
authority duly vested in him/her by said corporation on behalf of
said limited partnership. He/She is personally known to me or who
has produced driver's license as identification.
WITNESS my hand and official seal in the
County and State last aforesaid this 4th day of March, 1997.
/s/Grace M. Selkow
Grace M. Selkow
Notary Public
Grace M. Selkow
Typed, printed or stamped
name of Notary Public
My Commission Expires: 5/31/98
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
I HEREBY CERTIFY that on this day, before
me, an officer duly authorized in the State aforesaid and in the
County aforesaid to take acknowledgments, the foregoing instrument
was acknowledged before me by Joshua Kane the Senior Vice President
of MARK CENTERS TRUST, a Maryland real estate trust, as the general
partner of MARK CENTERS LIMITED PARTNERSHIP, a Delaware limited
partnership, freely and voluntarily under authority duly vested in
him/her by said corporation on behalf of said limited partnership.
He/She is personally known to me or who has produced driver's
license as identification.
WITNESS my hand and official seal in the
County and State last aforesaid this 4th day of March, 1997.
/s/Grace M. Selkow
Grace M. Selkow
Notary Public
Grace M. Selkow
Typed, printed or stamped
name of Notary Public
My Commission Expires: 5/31/98
Exhibit A
DESCRIPTION OF LAND
SCHEDULE A - LEGAL DESCRIPTION
Parcel No. 1:
Commence at the Southeast corner of the Southwest Quarter of
Section 24, Township 1 North, Range 1 West, Leon County, Florida,
and run North 02 degrees 40 minutes West 40.04 feet to a point on
the North right-of-way boundary of Tharpe Street as shown on the
plat of Parkview Estates Unit No.1 as recorded in Plat Book 3, page
10 of the Public Records of Leon County, Florida, thence South 89
degrees 54 minutes West 647.08 feet to an iron pin, thence North 00
degrees 06 minutes West 0.62 feet to an iron pin, thence North 89
degrees 54 minutes East 2.0 feet to an iron pin, thence North 00
degrees 00 minutes 22 seconds East 29.38 feet to an iron pin for
the Point of Beginning. From said point of beginning continue
North 00 degrees 00 minutes 22 seconds East 444.38 feet to a point
in a concrete power pole, thence South 89 degrees 58 minutes 26
West 352.75 feet to a concrete monument, thence North 02 degrees 35
minutes 36 seconds West 408.39 feet to a concrete monument, thence
North 70 degrees 39 minutes 36 seconds East 639.44 feet to a nail
and cap, thence North 46 degrees 49 minutes 36 seconds East 162.60
feet to a concrete monument lying on a curve concave to the
Southwesterly on the Southwesterly right of way boundary of North
Monroe Street (State Road No. 63), thence from a tangent bearing of
South 45 degrees 12 minutes 49 seconds East run Southeasterly along
said right of way curve with a radius of 5708.21 feet, through a
central angle of 03 degrees 32 minutes 27 seconds, for an arc
distance of 352.77 feet to a concrete monument marking the
Southeast corner of property described in Official Records Book
363, pages 276 and 277 of the Public Records of Leon County,
Florida, thence North 89 degrees 31 minutes 25 seconds West along
the South boundary of said property 107.15 feet to a concrete
monument on the Northwesterly boundary of Lot 6, Block "F" of said
Parkview Estates Unit No. 1, thence South 49 degrees 08 minutes 11
seconds West along the Northwesterly boundary of said Lot 6 and a
projection thereof a distance of 171.52 feet to a concrete
monument, thence South 40 degrees 51 minutes 49 seconds East 559.57
feet to an iron pin, thence South 56 degrees 50 minutes 42 seconds
West 10.08 feet to a concrete monument, thence South 41 degrees 08
minutes 37 seconds East 51.05 feet to a concrete monument on the
Northwesterly right of way boundary of Martin Luther King, Jr.
Boulevard (formerly Boulevard Street)(80 feet right of way), thence
South 56 degrees 50 minutes 42 seconds West along said right of way
boundary 79.88 feet to a concrete monument lying on a curve concave
to the Southeasterly, thence from a tangent bearing of South 56
degrees 36 minutes 58 seconds West run Southwesterly along said
right of way curve with a radius of 340.00 feet, through a central
angle of 56 degrees 16 minutes 32 seconds, for an arc distance of
333.94 feet to a concrete monument, thence South 00 degrees 02
minutes 00 seconds East (bearing base) along said right of way
boundary of said Tharpe Street as described in Official Records
Book 333, pages 238-240 of the Public Records of Leon County,
Florida, thence South 89 degrees 54 minutes 00 seconds West along
said North right of way boundary 606.52 feet to the Point of
Beginning.
Less and Except right of way described in Official Records Book
264, page 477 of the Public Records of Leon County, Florida.
Also Less and Excepting that part thereof described in Official
Records Book 1644, page 1613 of the Public Records of Leon County,
Florida.
Also Less and Excepting that part thereof described in Official
Records Book 1344, page 737 of the Public Records of Leon County,
Florida.
Parcel No. 2:
Commence at the Southeast corner of the Southwest Quarter of the
Southwest Quarter of the Southeast Quarter of Section 24, Township
1 North, Range 1 West, Leon County, Florida, and run North 00
degrees 41 minutes West 40.0 feet, thence South 89 degrees 54
minutes West 621.48 feet to a point on the South boundary of
Parkview Estates Unit No. 1 as recorded in Plat Book 3, page 10 of
the Public Records of Leon County, Florida, thence North 00 degrees
06 minutes West 3.29 feet to the intersection of the North right of
way boundary of Tharpe Street with the East right of way boundary
of old right of way of Boulevard Street, said Intersection being
36.7 feet West of the West boundary of Lot 17, Block "C" of said
Parkview Estates Unit No. 1, thence North 00 degrees 02 minutes 00
seconds West (bearing base) (along the Easterly right of way
boundary of Boulevard Street) 24.00 feet to the existing North
right of way boundary of Tharpe Street as described in Official
Book 351, pages 16 and 17 of the Public Records of Leon County,
Florida, thence continue North 00 degrees 02 minutes 00 seconds
West along the East right of way boundary of Martin Luther King,
Jr., Boulevard (formerly Boulevard Street) (80 foot right of way)
a distance of 175.00 feet to a concrete monument marking the
Northwest corner of property deeded to Standard Oil Company and
recorded in Official Records Book 356, pages 287 and 288 of the
Public Records of Leon County, Florida, for the Point of Beginning.
From said Point of Beginning continue thence North 00 degrees 02
minutes 00 seconds West along said East right of way boundary 50.93
feet to a concrete monument, thence South 89 degrees 58 minutes 14
seconds East 350.16 feet to a concrete monument (formerly a 1/2"
rebar), thence North 00 degrees 03 minutes 27 seconds East 200.00
feet to a concrete monument, thence North 89 degrees 58 minutes 14
seconds West 350.48 feet to a concrete monument on the Easterly
right of way boundary of said Martin Luther King, Jr., Boulevard
(formerly Boulevard Street) (80 foot right of way), said point
lying on a curve concave to the Easterly, thence from a tangent
bearing of North 00 degrees 18 minutes 57 seconds East run
Northerly along said right of way curve with a radius of 260.00
feet, through a central angle of 11 degrees 11 minutes 46 seconds,
for an arc distance of 50.81 feet to a nail and cap set in an iron
pipe marking the Southwest corner of property described in Official
Records Book 506, page 748 and 750 of the Public Records of Leon
County, Florida, thence South 89 degrees 53 minutes 38 seconds East
along the South boundary of said property 345.31 feet to a concrete
monument marking the Southeast corner of said property, thence
North 00 degrees 02 minutes 00 seconds West along the East boundary
of said property 87.08 feet to a concrete monument on the
Southwesterly boundary of a 30 foot driveway adjacent to the Block
"E" of said Parkview Estates Unit No. 1, thence South 39 degrees 21
minutes 30 seconds East along the Southwesterly boundary of said
drive 161.37 feet to a concrete monument, thence North 56 degrees
22 minutes 21 seconds East along the Southeasterly boundary of a 15
foot drive adjacent to said Block "E" a distance of 157.63 feet to
an iron pin lying on a curve concave to the Southwesterly on the
Southwesterly right of way boundary of North Monroe Street (State
Road No. 63), thence from a tangent bearing of South 31 degrees 35
minutes 18 seconds East run Southeasterly along said right of way
curve with a radius of 5708.21 feet, through a central angle of 00
degrees 03 minutes 01 seconds, for an arc distance of 5.00 feet to
an iron pin on the Southeasterly boundary of said Parkview Estates
Unit No. 1, thence South 56 degrees 22 minutes 21 seconds West
along said Southeasterly boundary 166.93 feet to a concrete
monument, thence South 00 degrees 08 minutes 21 seconds West along
the Easterly boundary of said Parkview Estates Unit No. 1 a
distance of 432.24 feet to a concrete monument of the Northerly
right of way boundary of Tharpe Street as described in Official
Records Book 351, pages 16 and 17, thence North 89 degrees 07
minutes 11 seconds West along said Northerly right of way boundary
271.42 feet to a concrete monument marking the Southeast corner of
said property deeded to Standard Oil Company, thence North 00
degrees 02 minutes 00 seconds West along the East boundary of said
property 175.00 feet to a concrete monument, thence South 89
degrees 48 minutes 40 seconds West along the North boundary of said
property 175.00 feet to the Point of Beginning.
LESS AND EXCEPT that portion of the above described property set
forth in that Special Warranty Deed recorded in Official Records
Book 1784, Page 2368.
Parcel No. 3:
Begin at the Westerly corner of Lot 6, Block "F" of Parkview
Estates Unit No. 1 as per plat recorded in Plat Book 3, page 10 of
the Public Records of Leon County, Florida, thence South 50 degrees
50 minutes 46 seconds West 50.00 feet to the most Westerly corner
of that parcel of property described in Official Records Book 359,
pages 288-289 of the Public Records of Leon County, Florida ,
thence South 39 degrees 10 minutes 54 seconds East along the
Southwesterly boundary of said parcel 252.62 feet to the Westerly
right of way boundary of the proposed Martin Luther King Boulevard
Extension (100 foot right of way), said point also being a point on
a curve concave to the Southeasterly with a radius of 425.00 feet,
thence Northeasterly along said curve an arc distance of 240.63
feet, through a central angle of 32 degrees 26 minutes 25 seconds
(the chord of said arc bears North 24 degrees 26 minutes 27 seconds
East with a length of 237.43 feet) to a point of reverse curve
concave to the West having a radius of 30.00 feet, thence Northerly
along said curve an arc distance of 41.99 feet, through a central
angle of 80 degrees 11 minutes 13 seconds (the chord of said arc
bears North 00 degrees 34 minutes 03 seconds East with a length of
38.64 feet) to a point on a curve concave to the Southwesterly with
a radius of 5693.21 feet, said point also being on the proposed
South boundary of State Road No. 63 (U.S. 27, North Monroe Street),
thence Northwesterly along said curve an arc distance of 59.94
feet, through a central angle of 00 degrees 36 minutes 12 seconds
(the chord os said curve bears North 39 degrees 49 minutes 40
seconds West with a length of 59.94 feet) to a point on the
Southerly boundary of that parcel of property recorded in Official
Records Book 363, page 276 of said Public Records, thence North 87
degrees 51 minutes 08 seconds West along said Southerly boundary
86.94 feet to the Northwesterly boundary of said Lot 6, thence
South 50 degrees 50 minutes 46 seconds West along Said Northerly
boundary 121.52 feet to the Point of Beginning.
The above parcel is also described as:
Begin at a concrete monument #1254 marking the most Westerly corner
of that parcel of land described in Official Records Book 1210,
page 1457 of the Public Records of Leon County , Florida, and run
thence North 49 degrees 08 minutes 11 seconds East along the
Northerly boundary of Lot 6 and the projection thereof Block "F" of
Parkview Estates Unit No. 1, a subdivision as per map or plat
thereof recorded in Plat Book 3, page 10 of the Public Records of
Leon County, Florida, a distance of 171.52 feet to a concrete
monument, thence South 89 degrees 31 minutes 25 seconds East 86.90
feet to a City of Tallahassee iron pin on the proposed
Southwesterly right of way boundary of State Road No. 63 (North
Monroe Street - U.S. Highway No. 27), said iron pin lying on a
curve concave to the Southwesterly, thence Southeasterly along said
proposed right of way boundary and said curve with a radius of
5693.21 feet, through a central angle of 00 degrees 36 minutes 13
seconds, for an arc distance of 59.97 feet (the chord of said arc
being South 41 degrees 47 minutes 57 seconds East 59.97 feet) to a
City of Tallahassee iron pin marking a point of compound curve on
the Northwesterly right of way boundary of the proposed relocation
of Martin Luther King Boulevard, thence Southerly and Southwesterly
along said right of way boundary and said curve with a radius of
30.00 feet, through a central angle of 80 degrees 11 minutes 17
seconds, for an arc distance of 41.99 feet (the chord of said arc
being South 01 degree 06 minutes 45 seconds East 38.64 feet) to a
City of Tallahassee iron pin marking a point of reverse curve,
thence Southwesterly along said right of way boundary and said
curve with a radius of 425.00 feet, through a central angle of 32
degrees 26 minutes 33 seconds, for an arc distance of 240.65 feet
to a City of Tallahassee iron pin, thence North 40 degrees 51
minutes 49 seconds West along the Southwesterly boundary of
property described in Official Records Book 1210, page 1457 of said
Public Records of Leon County, Florida, a distance of 252.50 feet
to the Point of Beginning.
Less and Excepting the following parcel:
Commence at the Westerly corner of Lot 6, Block "F" of Parkview
Estates Unit No. 1 as per plat recorded in Plat Book 3, page 10 of
the Public Records of Leon County, Florida, thence South 50 degrees
50 minutes 46 seconds West 50.00 feet to the most Northwesterly
corner, also the most Westerly corner of that parcel of property
described in Official Records Book 359, pages 288-289 of said
Public Records, thence leaving said Northwesterly corner South 39
degrees 10 minutes 54 seconds East along the Southwesterly boundary
of said parcel 252.62 feet to the Point of Beginning; said point
also being on the Westerly right of way boundary of the proposed
Martin Luther King Boulevard Extension (100 foot right of way).
From said Point of Beginning continue South 39 degrees 10 minutes
54 seconds East along the Southwesterly boundary of said parcel
306.95 feet, thence South 58 degrees 45 minutes 18 seconds West
10.08 feet; thence South 39 degrees 10 minutes 56 seconds East
51.05 feet to a point on the Northwesterly right of way boundary of
the existing Martin Luther King Boulevard, thence along the
Northwesterly right of way boundary of the existing Martin Luther
King Boulevard, South 58 degrees 44 minutes 27 seconds West 80.82
feet to the beginning of a curve concave to the Southeasterly with
a radius of 340.00 feet, thence Southwesterly 334.22 feet along
said curve, through a central angle of 56 degrees 10 minutes 18
seconds (the chord of said arc bears South 29 degrees 50 minutes 45
seconds West with a length of 320.92 feet), thence leaving said
Northwesterly right of way boundary North 88 degrees 18 minutes 54
seconds 9.72 feet to a point on the Westerly right of way boundary
of said proposed right of way boundary, thence North 01 degree 43
minutes 18 seconds East along said proposed right of way boundary
554.91 feet to a point on a curve concave to the Southeasterly with
a radius of 425.00 feet, thence Northeasterly 48.21 feet along said
curve, through a central angle of 06 degrees 29 minutes 56 seconds
(the chord of said arc being North 04 degrees 48 minutes 17 seconds
East with a length of 48.18 feet) to the Point of Beginning.
The above parcel is also described as follows:
Commence at a concrete monument #1254 marking the most Westerly
corner of that parcel of property described in Official Records
Book 1210, page 1457 of the Public Records of Leon County, Florida,
and run thence South 40 degrees 51 minutes 49 seconds East 252.50
feet to a City of Tallahassee iron pin for the Point of Beginning.
From said Point of Beginning continue South 40 degrees 51 minutes
49 seconds East 307.07 feet to an iron pin with a cap, thence South
56 degrees 50 minutes 42 seconds West 10.08 feet to a concrete
monument, thence South 41 degrees 08 minutes 37 seconds East 51.05
feet to a concrete monument on the Northwesterly right of way
boundary of the existing 80 foot right of way boundary of Martin
Luther King Boulevard, thence South 56 degrees 50 minutes 42
seconds West along said Northwesterly right of way boundary 79.88
feet to a concrete monument on a curve concave to the
Southeasterly, thence Southwesterly along said right of way
boundary and said curve with a radius of 340.00 feet, through a
central angle of 56 degrees 16 minutes 32 seconds, for an arc
distance of 333.94 feet (the chord of said arc being South 28
degrees, 28 minutes 42 seconds West 320.68 feet) to a concrete
monument, thence South 82 degrees 13 minutes 06 seconds West 9.58
to a City of Tallahassee iron pin on the Westerly right of way
boundary of a proposed 80 foot right of way of a proposed relocated
Martin Luther King Boulevard, thence North 00 degree 02 minutes 50
seconds East along said Westerly right of way boundary 554.92 feet
to a City of Tallahassee iron pin with a cap and a point of curve
to the right, thence Northeasterly along said right of way boundary
and said curve with a radius of 425.00 feet, through a central
angle of 06 degrees 30 minutes 10 seconds, for an arc distance of
48.23 feet (the chord of said arc being North 03 degrees 17 minutes
16 seconds East 48.21 feet) to the Point of Beginning.
Parcel No. 4:
A tract of land located in Section 24, Township 1 North, Range 1
West, Leon County, Florida, more particularly described as follows:
Commence at the Northwest corner of Lot 16, Block "L" of the
Parkside Unit No. 4, a subdivision recorded in Plat Book 3, page
126 of the Public Records of Leon County, Florida, and run South 35
degrees 21 minutes 20 seconds East 452.39 feet, thence run North 40
degrees 14 minutes 40 seconds East 260.69 feet to a concrete
monument on the Northeasterly right of way of Boone Boulevard,
thence run along said right of way Southeasterly along a curve
concave to the Southwest with a radius of 1728.26 feet, through a
central angle of 06 degrees 24 minutes 20 seconds, for an arc
distance of 193.22 feet (the chord bears South 37 degrees 54
minutes 10 seconds East 193.12 feet), thence continue along said
right of way South 34 degrees 42 minutes 00 seconds East 630.19
feet, thence Southeasterly along a curve concave to the
Northeasterly with a radius of 108.60 feet, through a central angle
of 44 degrees 32 minutes 00 seconds, for an arc distance of 84.41
feet (the chord bearing South 56 degrees 58 minutes 00 seconds East
82.30 feet), thence South 79 degrees 14 minutes 00 seconds East
157.14 feet, thence leaving said right of way run North 09 degrees
55 minutes 40 seconds East 50.00 feet, thence run North 70 degrees
02 minutes 45 seconds East 49.25 feet to the Point of Beginning.
From said Point of Beginning continue North 70 degrees 02 minutes
45 seconds East 566.30 feet, thence run North 47 degrees 08 minutes
37 seconds West 170.79 feet, thence run South 39 degrees 03 minutes
46 seconds West 202.18 feet, thence run North 49 degrees 42 minutes
20 seconds West 632.12 feet to the Southeasterly right of way of
Universal Drive, thence run along said right of way Southwesterly
along a curve concave to the Northwest with a radius of 530.96
feet, through a central angle of 15 degrees 00 minutes 20 seconds,
for an arc distance of 139.06 feet (the chord bears South 47
degrees 47 minutes 50 seconds West 138.66 feet), thence continue
along said right of way South 55 degrees 18 minutes 00 seconds West
15.60 feet, thence leaving said right of way run South 34 degrees
42 minutes 00 seconds East along the Northeasterly boundary of the
property recorded in Official Records Book 1344, pages 737-740 of
the Public Records of Leon County, Florida, for 558.56 feet to the
Point of Beginning.
Exhibit B
Lease Agreement dated as of March 1, 1997 between Mark Centers
Limited Partnership (the "Fee Owner") and Mark Northwood
Associates, Limited Partnership, a memorandum of which was recorded
immediately prior to the recordation of this Mortgage.
EXHIBIT C
Attach copy of Note