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Prepared by:
Ron D. Talley
Hunter, Maclean, Exley & Dunn, P.C.
Post Office Box 9848
Savannah, Georgia 31412
Recording requested by, and after recording, return to:
General Electric Capital BAF Corporation
Attention: Franchise Finance Department
10900 Northeast Fourth Street, Suite 500
Bellevue, Washington 98004
Loan No. 0007365-001
MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS,
AND FIXTURE FILING
(Chicago, Cook County, Illinois)
THIS MORTGAGE (herein "Instrument"), made as of July 30, 2001, by
the Mortgagor, SPENCER FAMILY, LLC, a Massachusetts limited liability company,
whose address is 100 Charles Park Road, West Roxbury, Massachusetts 02132
(herein "Borrower"), in favor of the Mortgagee, GENERAL ELECTRIC CAPITAL
BUSINESS ASSET FUNDING CORPORATION, a Delaware corporation, whose address is
Franchise Finance Department, 10900 Northeast Fourth Street, Suite 500,
Bellevue, Washington98004 (herein "Mortgagee"),
W I T N E S S E T H :
THAT, WHEREAS, Borrower is justly indebted to Mortgagee in the
principal sum of $4,050,000.00, pursuant to a certain Promissory Note of even
date herewith, more particularly described below,
NOW, THEREFORE, in consideration of the indebtedness herein recited,
and for other Good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrower irrevocably gives, grants, bargains,
sells, conveys, warrants, assigns, sets over, and mortgages unto Mortgagee all
of Borrower's right, title and interest, now owned or hereafter acquired,
including any reversion
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or remainder interest, in the real property located in the City of Chicago,
County of Cook, State of Illinois, and more particularly described on EXHIBIT A
attached hereto and incorporated herein including all heretofore or hereafter
vacated alleys and streets abutting the property, and all easements, rights,
appurtenances, tenements, hereditaments, rents, royalties, mineral, oil and gas
rights and profits, water, water rights, and water stock appurtenant to the
property (collectively "Premises");
TOGETHER with all of Borrower's estate, right, title and interest,
now owned or hereafter acquired, in, under and to:
(a) all buildings, structures, improvements, parking areas,
landscaping, goods (including inventory, equipment and any accessions thereto),
fixtures and articles of property now or hereafter erected on, attached to, or
used or adapted for use in the operation of the Premises; including but without
being limited to, all heating, air conditioning and incinerating apparatus and
equipment; all boilers, engines, motors, dynamos, generating equipment, piping
and plumbing fixtures, water heaters, ranges, cooking apparatus and mechanical
kitchen equipment, refrigerators, freezers, cooling, ventilating, sprinkling and
vacuum cleaning systems, fire extinguishing apparatus, gas and electric
fixtures, carpeting, floor coverings, underpadding, elevators, escalators,
partitions, mantels, built-in mirrors, window shades, blinds, draperies,
screens, storm sash, awnings, signs, furnishings of public spaces, halls and
lobbies, and shrubbery and plants, and including also all interest of any owner
of the Premises in any of such items hereafter at any time acquired under
conditional sale contract, chattel mortgage or other title retaining or security
instrument, all of which property mentioned in this clause (a) shall be deemed
part of the realty covered by this Instrument and not severable wholly or in
part without material injury to the freehold of the Premises (all of the
foregoing together with replacements and additions thereto are referred to
herein as "Improvements");
(b) all compensation, awards, damages, rights of action and
proceeds, including interest thereon and/or the proceeds of any policies of
insurance therefor, arising out of or relating to a (i) taking or damaging of
the Premises or Improvements thereon by reason of any public or private
improvement, condemnation proceeding (including change of grade), sale or
transfer in lieu of condemnation, or fire, earthquake or other casualty, or (ii)
any injury to or decrease in the value of the Premises or the Improvements for
any reason whatsoever;
(c) return premiums or other payments upon any insurance any time
provided with respect to the Premises, Improvements, and other collateral
described herein for the benefit of or naming Mortgagee, and refunds or rebates
of taxes or assessments on the Premises;
(d) all written and oral leases and rental agreements (including
extensions, renewals and subleases; all of the foregoing shall be referred to
collectively herein as the "Leases") now or hereafter affecting the Premises
including, without limitation, all rents, issues, income, profits and other
revenues and income therefrom and from the renting, leasing or bailment of
Improvements and equipment ("Rents"), all guaranties of tenants' performance
under the Leases, and all rights and claims of any kind that Borrower may have
against any tenant under the Leases or in connection with the termination or
rejection of the Leases in a bankruptcy or insolvency proceeding;
(e) plans, specifications, contracts and agreements relating to the
design construction of the Improvements; Borrower's rights under any payment,
performance, or other bond in connection with the design or construction of the
Improvements; all landscaping and construction materials, supplies, and
equipment used or to be used or consumed in connection with construction of the
Improvements, whether stored on the Premises or at some other location; and
contracts, agreements, and purchase orders with contractors, subcontractors,
suppliers, and materialmen incidental to the design or construction of the
Improvements;
(f) all contracts, deposit accounts, accounts (including
health-care-insurance RECEIVABLES), INSTRUMENTS (INCLUDING PROMISSORY NOTES),
CHATTEL PAPER (WHETHER TANGIBLE OR INTANGIBLE), LETTER OF CREDIT RIGHTS,
COMMERCIAL TORT CLAIMS, SECURITIES AND ALL OTHER INVESTMENT PROPERTY, GENERAL
INTANGIBLES (INCLUDING PAYMENT INTANGIBLES AND SOFTWARE), rights, claims or
causes of action pertaining to or
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affecting the Premises or the Improvements, including, without limitation, all
supporting obligations and any and all proceeds thereof, all options or
contracts to acquire other property for use in connection with operation or
development of the Premises or Improvements, management contracts, service or
supply contracts, deposits, bank accounts, general intangibles (including
without limitation trademarks, trade names and symbols), permits, licenses,
franchises and certificates, and all commitments or agreements, now or hereafter
in existence, intended by the obligor thereof to provide Borrower with proceeds
to satisfy the loan evidenced hereby or improve the Premises or Improvements,
and the right to receive all proceeds due under such commitments or agreements
including refundable deposits and fees;
(g) all books, records, surveys, reports and other documents related
to the Premises, the Improvements, the Leases, or other items of collateral
described herein; and
(h) all additions, accessions, replacements, substitutions, proceeds
and products of the real and personal property, tangible and intangible,
described herein. All of the foregoing described collateral is exclusive of any
equipment, inventory, furniture, furnishings or trade fixtures owned and
supplied by tenants of the Premises. The Premises, the Improvements, the Leases
and all of the rest of the foregoing property are herein referred to as the
"Property."
TO HAVE AND TO HOLD the Property and all parts, rights, members and
appurtenances thereof to the use, benefit and behoof of Mortgagee and its
successors and assigns in fee simple forever.
TO SECURE TO Mortgagee (a) the repayment of the indebtedness
evidenced by Borrower's Promissory Note dated of even date herewith in the
principal sum of Four Million Fifty Thousand and no hundredths Dollars
($4,050,000.00), with interest thereon at the rate of 8.375% per annum as set
forth therein, and having a maturity date of August 1, 2021, and all renewals,
extensions and modifications thereof (herein "Note"); (b) the repayment of any
future advances, with interest thereon, made by Mortgagee to Borrower pursuant
to SECTION 28 hereof (herein "Future Advances"); (c) the payment of all other
sums, with interest thereon, advanced in accordance herewith to protect the
security of this Instrument or to fulfill any of Borrower's obligations
hereunder or under the other Loan Documents (as defined below); (d) the
performance of the covenants and agreements of Borrower contained herein or in
the other Loan Documents; and (e) the repayment of all sums now or hereafter
owing to Mortgagee by Borrower pursuant to any instrument which recites that it
is secured hereby, including, but not limited to, sums owing to Mortgagee by
Borrower pursuant to that certain loan documentation evidencing or securing Loan
No. 0007256-001. The indebtedness and obligations described in clauses (a)-(e)
above are collectively referred to herein as the "Indebtedness." The Note, this
Instrument, and all other documents evidencing, securing or guaranteeing the
Indebtedness (except the Environmental Indemnity Agreement Regarding Hazardous
Substances ("Indemnity")), as the same may be modified or amended from time to
time, are referred to herein as the "Loan Documents." The terms of the Note
secured hereby may provide that the interest rate or payment terms or balance
due may be indexed, adjusted, renewed, or renegotiated from time to time, and
this Instrument shall continue to secure the Note notwithstanding any such
indexing, adjustment, renewal or renegotiation.
PROVIDED, ALWAYS, that if Borrower shall pay unto Mortgagee the
Indebtedness and if Borrower shall duly, promptly and fully perform, discharge,
execute, effect, complete and comply with and abide by each and every of the
stipulations, agreements, conditions and covenants of the Note and this
Instrument, then this Instrument and all assignments contained herein and liens
created hereby shall cease and be null and void; otherwise to remain in full
force and effect.
Borrower represents and warrants that Borrower has good, marketable
and insurable title to, and has the right to mortgage an indefeasible fee simple
estate in, the Premises, Improvements, Rents, and Leases, and the right to
convey the other Property, that the Property is unencumbered except as disclosed
in writing to and approved by Mortgagee prior to the date hereof, and that
Borrower will warrant
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and forever defend the title to the Property against all claims and demands,
subject only to the permitted exceptions set forth in SCHEDULE 1 attached
hereto.
Borrower represents, warrants, covenants and agrees for the benefit
of Mortgagee as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall promptly pay
when Due the principal of and interest on the Indebtedness, any prepayment and
other charges provided in the Loan Documents and all other sums secured by this
Instrument.
2. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES. Except as is
hereinafter provided with respect to the impounding of such payments by
Mortgagee following the occurrence of an Event of Default, Borrower shall pay or
cause to be paid when due, prior to delinquency, all annual real estate taxes,
insurance premiums, assessments, water and sewer rates, ground rents and other
charges (herein "Impositions") payable with respect to the Property. Upon the
occurrence of an Event of Default (hereinafter defined), and at Mortgagee's sole
option at any time thereafter, Borrower shall pay in addition to each monthly
payment on the Note, one-twelfth of the annual Impositions (as estimated by
Mortgagee in its sole discretion), to be held by Mortgagee without interest to
Borrower, for the payment of such Impositions (such payments being referred to
herein as "Impounds").
Annually during the term of this Instrument, Mortgagee shall compare
the Impounds Collected to the Impositions paid or to be paid. If the amount of
such Impounds held by Mortgagee at such time shall exceed the amount deemed
necessary by Mortgagee to provide for the payment of Impositions as they fall
due, if no Event of Default shall have occurred and be continuing, such excess
shall be at Borrower's option, either repaid to Borrower or credited to Borrower
on the next monthly installment or installments of Impounds due. If at any time
the amount of the Impounds held by Mortgagee shall be less than the amount
deemed necessary by Mortgagee to pay Impositions as they fall due, Borrower
shall pay to Mortgagee any amount necessary to make up the deficiency within
thirty (30) days after notice from Mortgagee to Borrower requesting payment
thereof. Upon the occurrence of an Event of Default hereunder, Mortgagee may
apply, in any amount and in any order as Mortgagee shall determine in
Mortgagee's sole discretion, any Impounds held by Mortgagee at the time of
application (i) to pay Impositions which are now or will hereafter become due,
or (ii) as a credit against sums secured by this Instrument. Upon payment in
full of all sums secured by this Instrument, Mortgagee shall refund to Borrower
any Impounds then held by Mortgagee. If requested by Mortgagee, Borrower shall
promptly furnish to Mortgagee all notices of Impositions which become due, and
in the event Borrower shall make payment directly, Borrower shall promptly
furnish to Mortgagee receipts evidencing such payments.
2. APPLICATION OF PAYMENTS. Unless applicable law provides
otherwise, each complete installment payment received by Mortgagee from Borrower
under the Note or this Instrument shall be applied by Mortgagee first in payment
of amounts payable to Mortgagee by Borrower under SECTION 2 hereof, then to
interest payable on the Note, then to principal of the Note, and then to
interest and principal on any Future Advances in such order as Mortgagee, at
Mortgagee's sole discretion, shall determine. Upon the occurrence of an Event of
Default, Mortgagee may apply, in any amount and in any order as Mortgagee shall
determine in Mortgagee's sole discretion, any payments received by Mortgagee
under the Note or this Instrument. Any partial payment received by Mortgagee
shall, at Mortgagee's option, be held in a non-interest bearing account until
Mortgagee receives funds sufficient to equal a complete installment payment.
4. CHARGES, LIENS. Borrower shall promptly discharge or bond off any
lien which has, or may have, priority over or equality with, the lien of this
Instrument, and Borrower shall pay, when due, the claims of all persons
supplying labor or materials to or in connection with the Property. Without
Mortgagee's prior written permission and except as expressly permitted in those
certain Subordination, Nondisturbance, Attornment, and Lessee-Lessor Estoppel
Agreements ("SNDAs") executed by Mortgagee with regard to the Property, Borrower
shall not allow any lien inferior to this Instrument to be perfected against
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the Property. If any lien inferior to this Instrument is filed against the
Property (except as expressly permitted by the SNDAs) without Mortgagee's prior
written permission and without the consent of Borrower, Borrower shall, within
thirty (30) days after receiving notice of the filing of such lien, cause such
lien to be released of record or bonded off and deliver evidence of such release
or bonding to Mortgagee. Borrower may contest any such lien by appropriate
proceedings in good faith, timely filed, provided that enforcement of the lien
is stayed pending such contest. Mortgagee may require that Borrower post
security for payment of such lien.
5. INSURANCE. Borrower shall obtain and maintain the following types
of Insurance upon and relating to the Property:
(a) "All Risk" property and fire insurance (with extended coverage
endorsement including malicious mischief and vandalism) in an amount not less
than the full replacement value of the Property (with a deductible not to exceed
$5,000), naming Mortgagee under a lender's loss payable endorsement (form 438BFU
or equivalent) naming Mortgagee as mortgagee and loss payee and including agreed
amount, inflation guard, replacement cost and waiver of subrogation
endorsements;
(b) Commercial general liability insurance in an amount not less
than $2,000,000 per occurrence and on an occurrence basis, insuring against
personal injury, death and property damage and naming Mortgagee as additional
insured;
(c) Business interruption insurance or rent-loss insurance, as
applicable, covering Loss of rental or other income (including all expenses
payable by tenants) for up to twelve (12) months;
(d) Boiler and machinery coverage for mechanical and electrical
failure;
(e) Flood hazard insurance with respect to the Property in amounts
not less than the maximum limit of coverage then available with respect to the
Property or the amount of the Indebtedness, whichever is less if the Property is
located in an area designated by the Federal Emergency Management Act or is
hereafter designated or identified as an area having special flood hazards by
the Department of Housing and Urban Development or such other official as shall
from time to time be authorized by federal or state law to make such designation
pursuant to any national or state program of flood insurance; and
(f) Such other types of insurance or endorsements to existing
insurance as may be required from time to time by Mortgagee in accordance with
its standard commercial lending practices.
Upon the request of Mortgagee, Borrower shall increase the coverages
under any of the insurance policies required to be maintained hereunder or
otherwise modify such policies in accordance with Mortgagee's standard
commercial lending practices. All of the insurance policies required hereunder
shall be issued by corporate insurers licensed to do business in the state in
which the Property is located and rated A:X or better by A.M. Best Company, and
shall be in form acceptable to Mortgagee. Certificates of all insurance required
to be maintained hereunder shall be delivered to Mortgagee, along with evidence
of payment in full of all premiums required thereunder, contemporaneously with
Borrower's execution of this Instrument. All such certificates shall be in form
acceptable to Mortgagee and shall require the insurance company to give to
Mortgagee at least thirty (30) days' prior written notice before canceling the
policy for any reason or materially amending it. Certificates evidencing all
renewal and substitute policies of insurance shall be delivered to Mortgagee,
along with evidence of the payment in full of all premiums required thereunder,
at least fifteen (15) days before termination of the policies being renewed or
substituted. If any loss shall occur at any time when Borrower shall be in
default hereunder, Mortgagee shall be entitled to the benefit of all insurance
policies held or maintained by Borrower, to the same extent as if same had been
made payable to Mortgagee, and upon foreclosure hereunder, Mortgagee shall
become the owner thereof. If Borrower fails to procure and maintain any
insurance required under this Instrument, Mortgagee may (but shall not be
obligated to) procure and maintain such insurance, at Borrower's expense, in the
amounts provided above or in such lesser amounts as Mortgagee may deem
appropriate, in order to protect Mortgagee's interest in the Property. Such
insurance purchased by Mortgagee may, but need not, protect Borrower's interest
in the
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Property. Such insurance purchased by Mortgagee may not pay any claim that
Borrower makes or any claim that is made against Borrower in connection with the
Property. Borrower may later cancel any insurance purchased by Mortgagee, but
only after providing Mortgagee with evidence acceptable to Mortgagee that
Borrower has obtained and paid for such insurance as required under this
Instrument. If Mortgagee procures and maintains such insurance, Borrower shall
be responsible for the costs of such insurance, including interest as described
in SECTION 8 below and any other charges that Mortgagee may impose in connection
wit the placement of such insurance, until the effective date of the
cancellation or expiration of such insurance. All such costs, interest and
charges shall become immediately due and payable by Borrower and shall be
secured by this Instrument. Such costs may be more than the cost of insurance
Borrower may be able to obtain on its own.
If any act or occurrence of any kind or nature (including any
casualty for which insurance was not obtained or obtainable) shall result in
damage to or destruction of the Property (such event being called a "Loss"),
Borrower will give prompt written notice thereof to Mortgagee. All insurance
proceeds paid or payable in connection with any Loss shall be paid to Mortgagee.
If (i) no Event of Default has occurred and is continuing hereunder, (ii)
Borrower provides evidence satisfactory to Mortgagee of (A) its ability to pay
all amounts becoming due under the Note during the pendency of any restoration
or repairs to or replacement of the Property (which evidence may include
reference to rent-loss or business-interruption insurance), and (B) its ability
under applicable zoning requirements (including applicable variances and
non-conforming use permits) fully and completely to restore, repair, or replace
the Property to its value, condition, and character prior to such Loss (iii) the
available insurance proceeds (together with any deposit posted by Borrower to
augment any deficiency in such proceeds) are, in Mortgagee's judgment,
sufficient fully and completely to restore, repair or replace the Property, and
(iv) Borrower provides evidence satisfactory to Mortgagee that none of the
tenants of the Property will terminate its Lease as a result of either the Loss
or the repairs to or replacement of the Property, Borrower shall have the right
to apply all insurance proceeds received in connection with such Loss either (a)
to restore, repair, replace and rebuild the Property as nearly as possible to
its value, condition and character immediately prior to such Loss, or (b) to the
payment of the Indebtedness in such order as Mortgagee may elect. If an Event of
Default has occurred and is continuing hereunder at the time of such Loss, if
Mortgagee determines that Borrower will be unable to pay all amounts becoming
due under the Note during the pendency of any restoration or repairs to or
replacement of the Property, if the available insurance proceeds (together with
any deposit posted by Borrower in order to augment any deficiency in such
proceeds) are insufficient, in Mortgagee's judgment, to fully and completely
restore, repair or replace the Property or if Mortgagee has reason to believe
that one or more tenants of the Property will terminate its Lease as a result of
either the Loss or the repairs to or replacement of the Property, or if less
than six (6) months remain until the maturity of the Note, then all of the
insurance proceeds payable with respect to such Loss will be applied to the
payment of the Indebtedness, or at the option of Mortgagee, such insurance
proceeds shall be made available to Borrower and Borrower shall promptly, at
Borrower's sole cost and expense and regardless of whether the insurance
proceeds shall be sufficient, commence to restore, repair, replace and rebuild
the Property as nearly as possible to its value, condition, character
immediately prior to such Loss. Borrower shall diligently prosecute any
restoration, repairs or replacement of the Property undertaken by or on behalf
of Borrower pursuant to this SECTION 5. All such work shall be conducted
pursuant to written contracts approved by Mortgagee in writing, which approval
shall not be unreasonably withheld. Notwithstanding anything contained herein to
the contrary, in the event the insurance proceeds received by Mortgagee
following any Loss are insufficient in Mortgagee's judgment to fully and
completely restore, repair or replace the Property, and if Borrower has complied
with all of the other conditions described in this SECTION 5, Borrower may elect
to restore, repair or replace the Property if it first deposits with Mortgagee
such additional sums as Mortgagee determines are necessary in order to fully and
completely restore, repair or replace the Property. In the event any insurance
proceeds remain following the restoration, repair or replacement of the
Property, such proceeds shall be disbursed to Borrower, to the extent that no
Event of Default shall have occurred and be continuing and to the extent any
deposit was required to augment a shortfall in proceeds, and thereafter applied
to the Indebtedness in such order as Mortgagee may elect.
In the event that insurance proceeds shall be made available for the
repair, replacement, and/or reconstruction of the Property, Mortgagee may
require that such proceeds be disbursed through an
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escrow with a title insurance company acceptable to Mortgagee, against
Borrower's furnishing to Mortgagee such construction contracts, plans, building
permits, lien waivers, contractor's affidavits, endorsements to Mortgagee's
policy of title insurance, builder's risk insurance, and other documents,
instruments, and information as Mortgagee may reasonably require in accordance
with standard construction-lending practices.
Borrower waives any and all right to claim or recover against
Mortgagee or its officers, employees, agents and representatives, for loss of or
damage to Borrower, the Property, Borrower's property or the property of others
under Borrower's control from any cause insured against or required to be
insured against under this SECTION 5.
6. PRESERVATION AND MAINTENANCE OF PROPERTY. Borrower (a) shall not
commit waste or permit impairment or deterioration of the Property, (b) shall
not abandon the Property, (c) shall restore or repair promptly and in a good and
workmanlike manner all or any part of the Property to the equivalent of its
original condition, or such other condition as Mortgagee may approve in writing,
in the event of any damage, injury or loss thereto, whether or not insurance
proceeds are available to cover in whole or in part the costs of such
restoration or repair, (d) shall keep the Property, including all Improvements
thereon, in good repair and shall replace fixtures, equipment, machinery and
appliances on the Property when necessary to keep such items in good repair, (e)
shall comply with all laws, ordinances, regulations and requirements of any
governmental body applicable to the Property, (f) if all or part of the Property
is for rent or lease, then Mortgagee, at its option after the occurrence of an
Event of Default, may require Borrower to provide for professional management of
the Property by a property manager satisfactory to Mortgagee pursuant to a
contract approved by Mortgagee in writing, unless such requirement shall be
waived by Mortgagee in writing, and (g) shall give notice in writing to
Mortgagee of and, unless otherwise directed in writing by Mortgagee, appear in
and defend any action or proceeding purporting to affect the Property, the
security of this Instrument or the rights or powers of Mortgagee hereunder.
Neither Borrower nor any tenant or other person, without the written approval of
Mortgagee, shall remove, demolish or alter any Improvement now existing or
hereafter erected on the Premises or any Property, except when incident to the
replacement of fixtures, equipment, machinery and appliances with items of like
kind.
Borrower represents, warrants and covenants that the Property is and
shall be in substantial compliance with the Americans with Disabilities Act of
1990 and all of the regulations promulgated thereunder, as the same may be
amended from time to time.
7. USE OF PROPERTY. Unless required by applicable law or unless
Mortgagee has otherwise agreed in writing, Borrower shall not allow changes in
the use for which all or any part of the Property was intended at the time this
Instrument was executed. Borrower shall not, without Mortgagee's prior written
consent, (i) initiate or acquiesce in a change in the zoning classification
(including any variance under any existing zoning ordinance applicable to the
Property), (ii) permit the use of the Property to become a non-conforming use
under applicable zoning ordinances, (iii) file any subdivision or parcel map
affecting the Property, or (iv) amend, modify or consent to any easement or
covenants, conditions and restrictions pertaining to the Property.
8. PROTECTION OF MORTGAGEE'S SECURITY. If Borrower fails to perform
any of the covenants and agreements contained in this Instrument, or if any
action or proceeding is commenced which affects the Property or title thereto or
the interest of Mortgagee therein, including, but not limited to, eminent
domain, insolvency, code enforcement, or arrangements or proceedings involving a
bankrupt or decedent, then Mortgagee at Mortgagee's option may make such
appearances, disburse such sums and take such action as Mortgagee deems
necessary, in its sole discretion, to protect Mortgagee's interest, including,
but not limited to, (i) disbursement of attorneys' fees, (ii) entry upon the
Property to make repairs, and (iii) procurement of satisfactory insurance as
provided in SECTION 5 hereof.
Any amounts disbursed by Mortgagee pursuant to this SECTION 8, with
interest thereon, shall become additional Indebtedness of Borrower secured by
this Instrument. Unless Borrower and Mortgagee
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agree to other terms of payment, such amounts shall be immediately due and
payable and shall bear interest from the date of disbursement at the Default
Rate (as defined in the Note). Borrower hereby covenants and agrees that
Mortgagee shall be subrogated to the lien of any mortgage or other lien
discharged, in whole or in part, by the Indebtedness. Nothing contained in this
SECTION 8 shall require Mortgagee to incur any expense or take any action
hereunder.
9. INSPECTION. Mortgagee may make or cause to be made reasonable
entries upon the Property to inspect the interior and exterior thereof. Except
in case of emergency, such inspection shall be with reasonable prior notice and
shall in any case be with due regard to rights of tenants.
10. FINANCIAL DATA. Borrower will furnish to Mortgagee, and will
cause any guarantors of the Indebtedness ("Guarantors") to furnish to Mortgagee
on request, within forty-five (45) days following the and of each fiscal quarter
and again within ninety (90) days after the close of its fiscal year (i) annual
balance sheet and profit and loss statements prepared in accordance with
generally accepted accounting principles and practices consistently applied and,
if Mortgagee so requires following the occurrence of an Event of Default,
accompanied by the annual audit report of an independent certified public
accountant reasonably acceptable to Mortgagee, (ii) an annual operating
statement, together with a complete rent roll and other supporting data
reflecting all material information with respect to the operation of the
Property and Improvements, and (iii) all other financial information and reports
that Mortgagee may from time to time reasonably request, including, if Mortgagee
so requires, income tax returns of Borrower and any Guarantors and financial
statements of any tenants designated by Mortgagee
11. CONDEMNATION. If the Property, or any part thereof, shall be
condemned for any reason, including without limitation fire or earthquake
damage, or otherwise taken for public or quasi-public use under the power of
eminent domain, or be transferred in lieu thereof, all damages or other amounts
awarded for the taking of, or injury to, the Property shall be paid to Mortgagee
who shall have the right, in its sole and absolute discretion, to apply the
amounts so received against (a) the costs and expenses of Mortgagee, including
attorneys' fees incurred in connection with collection of such amounts, and (b)
the balance against the Indebtedness; provided, however, that if (i) no Event of
Default shall have occurred and be continuing hereunder, (ii) Borrower provides
evidence satisfactory to Mortgagee of its ability to pay all amounts becoming
due under the Note during the pendency of any restoration or repairs to or
replacement of the Property, (iii) Mortgagee determines, in its sole discretion,
that the proceeds of such award are sufficient to restore, repair, replace and
rebuild the Property as nearly as possible to its value, condition and character
immediately prior to such taking (or, if the proceeds of such award are
insufficient for such purpose, if Borrower provides additional sums to
Mortgagee's satisfaction so that the aggregate of such sums and the proceeds of
such award will be sufficient for such purpose), and (iv) Borrower provides
evidence satisfactory to Mortgagee that none of the tenants of the Property will
terminate its Lease as a result of either the condemnation or taking or the
repairs to or replacement of the Property, the proceeds of such award, together
with additional sums provided by Borrower, shall be placed in a separate account
for the benefit of Mortgagee and Borrower to be used to restore, repair, replace
and rebuild the Property as nearly as possible to its value, condition and
character immediately prior to such taking. All work to be performed in
connection therewith shall be pursuant to a written contract therefor, which
contract shall be subject to the prior approval of Mortgagee, which approval
shall not be unreasonably withheld. To the extent that any funds remain after
the Property has been so restored and repaired, the same shall be applied
against the Indebtedness in such order as Mortgagee may elect. To enforce its
rights hereunder, Mortgagee shall be entitled to participate in and, if an Event
of Default shall have occurred and be continuing, control any condemnation
proceedings and to be represented therein by counsel of its own choice, and
Borrower will deliver, or cause to be delivered to Mortgagee such instruments as
may be requested by it from time to time to permit such participation. In the
event Mortgagee, as a result of any such judgment, decree or award, has reason
to believe that the payment or performance of any of the Indebtedness is
impaired, Mortgagee may declare all of the Indebtedness immediately due and
payable.
12. BORROWER AND LIEN NOT RELEASED. From time to time, Mortgagee
may, at Mortgagee's option, without giving notice to or obtaining the consent of
Borrower, Borrower's successors or
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assigns or of any junior lienholder or guarantors, without liability on
Mortgagee's part and notwithstanding the occurrence of an Event of Default,
extend the time for payment of the Indebtedness or any part thereof, reduce the
payments thereon, release anyone liable on any of the Indebtedness, accept an
extension or modification or renewal note or notes therefor, modify the terms
and time of payment of the Indebtedness, release from the lien of this
Instrument any part of the Property, take or release other or additional
security, reconvey any part of the Property, consent to any map or plan of the
Property, consent to the granting of any easement, join in any extension or
subordination agreement, and agree in writing with Borrower to modify the rate
of interest or period of amortization of the Note or change the amount of the
monthly installments payable thereunder. Any actions taken by Mortgagee pursuant
to the terms of this SECTION 12 shall not affect the obligation of Borrower or
Borrower's successors or assigns to pay the sums secured by this Instrument and
to observe the covenants of Borrower contained herein, shall not affect the
guaranty of any person, corporation, partnership or other entity for payment of
the Indebtedness, and shall not affect the lien or priority of the lien hereof
on the Property. Borrower shall pay Mortgagee a service charge, together with
such title insurance premiums and attorneys' fees as may be incurred at
Mortgagee's option, for any such action if taken at Borrower's request.
13. FORBEARANCE BY MORTGAGEE NOT A WAIVER. Any forbearance by
Mortgagee in exercising any right or remedy hereunder, or otherwise afforded by
applicable law, shall not be a waiver of or preclude the exercise of any other
right or remedy. The acceptance by Mortgagee of payment of any sum secured by
this Instrument after the due date of such payment shall not be a waiver of
Mortgagee's right to either require prompt payment when due of all other sums so
secured or to declare a default for failure to make prompt payment. The
procurement of insurance or the payment of taxes or other liens or charges by
Mortgagee shall not be a waiver of Mortgagee's right to accelerate the maturity
of the Indebtedness secured by this Instrument, nor shall Mortgagee's receipt of
any awards, proceeds or damages under SECTIONS 5 AND 11 hereof operate to cure
or waive Borrower's default in payment of sums secured by this Instrument.
14. UNIFORM COMMERCIAL CODE SECURITY AGREEMENT. This Instrument is
intended to be a security agreement pursuant to the Uniform Commercial Code for
any of the items specified above as part of the Property which, under applicable
law, may be subject to a security interest pursuant to the Uniform Commercial
Code, and Borrower hereby grants and conveys to Mortgagee a first and prior
security interest in all of the Property that constitutes personalty
("Collateral", for purposes of this SECTION 14), whether now owned or hereafter
acquired. Borrower agrees that Mortgagee may file this Instrument, or a
reproduction thereof, in the real estate records or other appropriate index, as
a financing statement for any of the items specified above as part of the
Collateral. Any reproduction of this Instrument or of any other security
agreement or financing statement shall be sufficient as a financing statement.
In addition, Borrower shall execute and deliver to Mortgagee, upon Mortgagee's
request, any financing statements, as well as extensions, renewals and
amendments thereof, and reproductions of this Instrument in such form as
Mortgagee may require to perfect a security interest with respect to the
foregoing items. Borrower shall pay all costs of filing such financing
statements and any extensions, renewals, amendments and releases thereof, and
shall pay all costs and expenses of any record searches for financing statements
Mortgagee may require.
Borrower expressly warrants and covenants:
(a) Except for the security interest granted hereby, Borrower is
the owner of the Collateral free from any lien, security
interest or encumbrance. Borrower understands that any further
encumbrance of the Collateral is prohibited (except as
expressly permitted pursuant to the SNDAs). Borrower shall
defend the Collateral against all claims and demands of all
persons at any time claiming the same or any interest therein.
(b) The Collateral is used or bought primarily for use in the
business of Borrower and not for consumer purposes.
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(c) Borrower's business address is as stated above. The Collateral
is located at or On or is used or owned for or in connection
with the Premises and other Property.
(d) Borrower shall promptly notify Mortgagee of any change in the
location of the Collateral or any change in Borrower's
principal place of business.
(e) Borrower shall pay when due, prior to delinquency, all taxes
and assessments of every nature which may be levied or
assessed against the Collateral.
(f) Except for liens in favor of Mortgagee, without Mortgagee's
prior written consent, Borrower shall not permit or allow any
lien, security interest or encumbrance whatsoever upon the
Collateral (except as expressly permitted pursuant to the
SNDAs) and shall not permit the Collateral to be attached or
replevied. Mortgagee's consent to a junior lien by an entity
owned by, or under common control with, Mortgagee shall not be
unreasonably withheld.
(g) The Collateral is in good condition and Borrower shall keep
the Collateral in good condition (reasonable wear and tear
excepted) and from time to time, forthwith, replace and repair
all such parts of the Collateral as may be broken, worn out,
or damaged without allowing any lien to be created upon the
Collateral on account of such replacement or repairs.
Mortgagee may examine and inspect the Collateral at any time,
wherever located, subject to reasonable prior notice.
(h) Borrower will not use the Collateral in violation of any
applicable statutes, regulations or ordinances.
(i) Notwithstanding anything else contained herein to the
contrary, if any personal property for use on the Property
will be leased to Borrower, Mortgagee's interest therein shall
be subordinate to lessor's interest therein.
Until the occurrence of an Event of Default, Borrower may have
possession of the Collateral and use it in any lawful manner, and upon the
occurrence of an Event of Default Mortgagee shall have the immediate right to
the possession of the Collateral.
Upon the occurrence of an Event of Default, Mortgagee shall have the
remedies of a Secured party under the Uniform Commercial Code, and Mortgagee may
also invoke the remedies provided in SECTION 26 of this Instrument as to such
items. In exercising any of said remedies Mortgagee may proceed to the full
extent permitted by law against the items of real property and any items of
Collateral specified above separately or together and in any order whatsoever,
without in any way affecting the availability of Mortgagee's remedies under the
Uniform Commercial Code or of the remedies provided in SECTION 26 of this
Instrument. Within ten (10) days following any request therefor by Mortgagee,
Borrower shall prepare and deliver to Mortgagee a written inventory specifically
listing all of the Collateral covered by the security interest herein granted,
which inventory shall be certified by Borrower as being true, correct, and
complete.
ADDRESSES AND OTHER INFORMATION FOR FIXTURE FILING. The following
information is provided In order that this Instrument shall comply with the
requirements of the Uniform Commercial Code, as enacted in the State of
Illinois, for instruments to be filed as financing statements and with other
requirements of applicable law:
(a) Name of Borrower (Debtor): SPENCER FAMILY, LLC
Address of Borrower: 100 Charles Park Road,
Boston, Massachusetts 02132
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(b) Name of Mortgagee
(Secured Party): GENERAL ELECTRIC CAPITAL
BUSINESS ASSET FUNDING
CORPORATION
Address of Mortgagee: 10900 Northeast Fourth Street,
Suite 500
Bellevue, Washington 98004
Attention: Franchise Finance
Department
(c) Record Owner of Real Estate
Described on Exhibit A hereto: BORROWER
15. LEASES OF THE PROPERTY. Borrower shall comply with and observe
Borrower's obligations as landlord under all Leases of the Property or any part
thereof. All Leases now or hereafter entered into will be in form and substance
subject to the approval of Mortgagee. Borrower shall pay all attorneys' fees
incurred by Mortgagee in reviewing any Lease or proposed Lease. All Leases of
the Property shall specifically provide that such Leases are subordinate to this
Instrument; that the tenant attorns to Mortgagee, such attornment to be
effective upon Mortgagee's acquisition of title to the Property; that the tenant
agrees to execute such further evidences of attornment as Mortgagee may from
time to time request; that the attornment of the tenant shall not be terminated
by foreclosure; and that Mortgagee may, at Mortgagee's option, accept or reject
such attornments (except as to third-party credit tenants unrelated to Borrower,
as to which Mortgagee shall grant a non-disturbance provision). Except as
provided in the SNDAs, Borrower shall not, without Mortgagee's written consent,
request or consent to the subordination of any Lease of all or any part of the
Property to any lien subordinate to this Instrument. If Borrower becomes aware
that any tenant proposes to do, or is doing, any act or thing which may give
rise to any right of set-off against rent, Borrower shall (i) take such steps as
shall be reasonably calculated to prevent the accrual of any right to a set-off
against rent, (ii) immediately notify Mortgagee thereof in writing and of the
amount of said set-offs, and (iii) within ten (10) days after such accrual,
reimburse the tenant who shall have acquired such right to set-off or take such
other steps as shall effectively discharge such setoff and as shall assure that
Rents thereafter due shall continue to be payable without set-off or deduction.
Upon Mortgagee's receipt of notice of the occurrence of any default or violation
by Borrower of any of its obligations under the Leases, Mortgagee shall have the
immediate right, but not the duty or obligation, without prior written notice to
Borrower or to any third party, to enter upon the Property and to take such
actions as Mortgagee may deem necessary to cure the default or violation by
Borrower under the Leases. The costs incurred by Mortgagee in taking any such
actions pursuant to this paragraph shall become part of the Indebtedness, shall
bear interest at the rate provided in the Note, and shall be payable by Borrower
to Mortgagee on demand. Mortgagee shall have no liability to Borrower or to any
third party for any actions taken by Mortgagee or not taken pursuant to this
paragraph.
16. REMEDIES CUMULATIVE. Each remedy provided in this Instrument is
distinct and cumulative to all other rights or remedies under this Instrument or
afforded by law or equity, and may be exercised concurrently, independently, or
successively, in any order whatsoever.
17. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN BORROWER;
SUBORDINATE FINANCING PROHIBITED; ASSUMPTION. Mortgagee may, at its option,
declare all sums secured by this Instrument to be immediately due and payable,
and Mortgagee may invoke any remedies permitted by SECTION 26 of this
Instrument, if title to the Property is changed without the prior written
consent of Mortgagee, which consent shall be at Mortgagee's sole discretion. Any
transfer of any interest in the Property or in the income therefrom, by sale,
lease (except for Leases to tenants in the ordinary course of managing income
property which are approved by Mortgagee pursuant to SECTION 15 of this
Instrument), contract, mortgage, deed of trust, further encumbrance or otherwise
(including any such transfers as security for additional financing of the
Property), and any change in the ownership interests in Borrower (including any
transfer, pledge, assignment, or hypothecation of, or other change in, the
ownership interests in Borrower or any legal entities which comprise or control
Borrower), shall be considered a change of title, except transfers and changes
in ownership by devise or descent or those expressly permitted in the SNDAs.
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Leasehold mortgages and collateral assignments of any Lease of the Property
given by tenants of the Property are prohibited except as expressly permitted in
the SNDAs. Notwithstanding the foregoing, additional but subordinate deeds of
trust may be granted to Mortgagee and, subject to the prior written consent of
Mortgagee, which consent may be withheld in Mortgagee's sole discretion, may be
granted to entities owned by or under common control with Mortgagee.
Mortgagee shall have the right to condition its consent to any
proposed sale or transfer described in this SECTION 17 (except for such
transfers permitted in the SNDAs without Mortgagee's consent) upon, among other
things, Mortgagee's approval of the transferee's creditworthiness and management
ability and the transferee's execution, prior to the sale or transfer, of a
written assumption agreement containing such terms as Mortgagee may require,
including, if required by Mortgagee, the imposition of an assumption fee of one
percent (1%) of the then outstanding balance of the Indebtedness. Consent by
Mortgagee to one transfer of the Property shall not constitute consent to
subsequent transfers or waiver of the provisions of this SECTION 17. No transfer
by Borrower shall relieve Borrower of liability for payment of the Indebtedness,
unless Mortgagee shall otherwise agree in writing at the time of such transfer.
Borrower shall pay any recording tax, recording cost, title insurance premium,
attorneys' fees, or other third-party expenses incurred by Mortgagee in
connection with any transfer, whether or not consent is required.
Notwithstanding the foregoing, Mortgagee shall waive the aforesaid assumption
fee for one (1) transfer provided that such transfer is to Uno Restaurant
Corporation, a Delaware Corporation ("Uno"), with full assumption by such
transferee of all Loan Documents and the Indemnity and further provided that
such transfer occurs on or before December 31, 2001. Said transfer to Uno shall
not alter, diminish or otherwise impair the obligations of the initial guarantor
as set forth in the Loan Documents and the Indemnity.
The transfer to and assumption by an approved transferee of the
Borrower's obligations under the Loan shall not constitute a "prepayment" of the
Loan requiring payment of a "Prepayment Premium" (as defined in the Note).
18. NOTICE. Except for any notice required under applicable law to
be given in another manner, any and all notices, elections, demands, or requests
permitted or required to be made under this Instrument or under the Note shall
be in writing, signed by the party giving such notice, election, demand or
request, and shall be delivered personally, or sent by registered, certified, or
Express United States mail, postage prepaid, or by Federal Express or similar
service requiring a receipt, to the other party at the address stated above, or
to such other party and at such other address within the United States of
America as any party may designate in writing as provided herein. The date of
receipt of such notice, election, demand or request shall be the earliest of (i)
the date of actual receipt, (ii) three (3) business days after the date of
mailing by registered or certified mail, (iii) one (1) business day after the
date of mailing by Express Mail or the delivery (for redelivery) to Federal
Express or another similar service requiring a receipt, or (iv) the date of
personal delivery (or refusal upon presentation for delivery).
19. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY;
AGENTS; CAPTIONS. The covenants and agreements herein contained shall bind, and
the rights hereunder shall inure to, the respective heirs, successors and
assigns of Mortgagee and Borrower, subject to the provisions of SECTION 17
hereof. If Borrower is comprised of more than one person or entity, whether as
individuals, partners, partnerships, limited liability companies, or
corporations, each such person or entity shall be jointly and severally liable
for Borrower's obligations hereunder. In exercising any rights hereunder or
taking any actions provided for herein, Mortgagee may act through its employees,
agents or independent contractors as authorized by Mortgagee. The captions and
headings of the sections of this Instrument are for convenience only and are not
to be used to interpret or define the provisions hereof.
20. WAIVER OF STATUTE OF LIMITATIONS. Borrower hereby waives the
right to assert any statute of limitations as a bar to the enforcement of the
lien of this Instrument or to any action brought to enforce the Note or any
other obligation secured by this Instrument.
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21. WAIVER OF MARSHALLING. Notwithstanding the existence of any
other seurity interests in the Property held by Mortgagee or by any other party,
Mortgagee shall have the right to determine the order in which any or all of the
Property shall be subjected to the remedies provided herein. Mortgagee shall
have the right to determine the order in which any or all portions of the
Indebtedness secured hereby are satisfied from the proceeds realized upon the
exercise of the remedies provided herein. Borrower, any party who consents to
this Instrument and any party who now or hereafter acquires a security interest
in the Property and who has actual or constructive notice hereof hereby waives
any and all right to require the marshalling of assets in connection with the
exercise of any of the remedies permitted by applicable law or provided herein.
22. HAZARDOUS MATERIALS. Borrower has furnished to Mortgagee Phase I
Environmental Assessments for both properties dated April 26, 2001, prepared by
URF, and Environmental Questionnaires for both properties dated April 24, 2001
(collectively, the "Report"). Except as disclosed to Mortgagee in the Report,
Borrower has received no notification of any kind suggesting that the Property
or any adjacent property is or may be contaminated with any hazardous waste or
materials or is or may be required to be cleaned up in accordance with any
applicable law or regulation; and Borrower further represents and warrants that,
except as previously disclosed to Mortgagee in writing, to the best of its
knowledge as of the date hereof, there are no hazardous waste or materials
located in, on or under the Property or any adjacent property, or incorporated
in any Improvements, nor has the Property or any adjacent property ever been
used as a landfill or a waste disposal site, or a manufacturing, handling,
storage, distribution or disposal facility for hazardous waste or materials,
except for reasonable quantities of ordinary office supplies, cleaning supplies,
insecticides, pesticides, and paint used in the normal operation and maintenance
of the Real Property, provided that the same are used, stored, handled, and
disposed of in accordance with applicable laws. As used herein, the term
"hazardous waste or materials" includes any substance or material defined in or
designated as hazardous or toxic wastes, hazardous or toxic material, a
hazardous, toxic or radioactive substance, or other similar term, by any
federal, state or local statute, regulation or ordinance now or hereafter in
effect. Borrower shall promptly comply with all statutes, regulations and
ordinances, and with all orders, decrees or judgments of governmental
authorities or courts having jurisdiction, relating to the use, collection,
treatment, disposal, storage, control, removal or cleanup of hazardous waste or
materials in, on, under or emanating from the Property or any adjacent property,
or incorporated in any Improvements, at Borrower's expense. In the event that
Mortgagee at any time has reason to believe that the Property is not free of all
hazardous waste or materials (except as otherwise expressly permitted or
disclosed above) or that Borrower has violated any applicable environmental law
with respect to the Property, then immediately upon request by Mortgagee,
Borrower shall promptly order, diligently pursue obtaining and furnish to
Mortgagee, at Borrower's sole cost and expense, an environmental audit and
inspection of the Property from an expert reasonably satisfactory to Mortgagee.
In the event that Borrower fails to immediately commence and diligently pursue
the process of obtaining such audit or inspection, Mortgagee or its agents may
perform or obtain such audit or inspection at Borrower' s sole cost and expense.
Mortgagee may, but is not obligated to, enter upon the Property and take such
actions and incur such costs and expenses to effect such compliance as it deems
advisable to protect its interest in the Property; and whether or not Borrower
has actual knowledge of the existence of hazardous waste or materials on the
Property or any adjacent property as of the date hereof, Borrower shall
reimburse Mortgagee as provided in SECTION 23 below for the full amount of all
costs and expenses incurred by Mortgagee prior to Mortgagee acquiring title to
the Property through foreclosure or acceptance of a deed in lieu of foreclosure,
in connection with such compliance activities. Neither this provision nor any of
the other Loan Documents shall operate to put Mortgagee in the position of an
owner of the Property prior to any acquisition of the Property by Mortgagee. The
rights granted to Mortgagee herein and in the other Loan Documents are granted
solely for the protection of Mortgagee's lien and security interest covering the
Property, and do not grant to Mortgagee the right to control Borrower's actions,
decisions or policies regarding hazardous waste or materials.
23. ADVANCES, COSTS AND EXPENSES. Borrower shall pay within ten (10)
days after written demand from Mortgagee all sums advanced by Mortgagee and all
costs and expenses incurred by Mortgagee in taking any actions pursuant to the
Loan Documents including attorneys' fees and
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disbursements, accountants' fees, appraisal and inspection fees and the costs
for title reports and guaranties, together with interest thereon at the rate
applicable under the Note after an Event of Default from the date such costs
were advanced or incurred. All such costs and expenses incurred by Mortgagee,
and advances made, shall constitute advances under this Instrument to protect
the Property and shall be secured by and have the same priority as the lien of
this Instrument. If Borrower fails to pay any such advances, costs and expenses
and interest thereon, Mortgagee may apply any undisbursed loan proceeds to pay
the same, and, without foreclosing the lien of this Instrument, may at its
option commence an independent action against Borrower for the recovery of the
costs, expenses and/or advances, with interest, together with costs of suit,
costs of title reports and guaranty of title, disbursements of counsel and
reasonable attorneys' fees incurred therein or in any appeal therefrom.
24. ASSIGNMENT OF LEASES AND RENTS. Borrower, for good and valuable
consideration, the receipt of which is hereby acknowledged, to secure the
Indebtedness, does hereby absolutely and unconditionally grant, bargain, sell,
transfer, assign, convey, set over and deliver unto Mortgagee all right, title
and interest of Borrower in, to and under the Leases of the Property, whether
now in existence or hereafter entered into, and all guaranties, amendments,
extensions and renewals of said Leases and any of them, and all Rents which may
now or hereafter be or become due or owing under the Leases, and any of them, or
on account of the use of the Property.
Borrower represents, warrants, covenants and agrees with Mortgagee
as follows:
(a) The sole ownership of the entire lessor's interest in the Leases
is vested in Borrower, and Borrower has not, and shall not, perform any acts or
execute any other instruments which might prevent Mortgagee from fully
exercising its rights with respect to the Leases under any of the terms,
covenants and conditions of this Instrument.
(b) The Leases are and shall be valid and enforceable in accordance
with their terms and have not been and shall not be altered, modified, amended,
terminated, canceled, renewed or surrendered, except as provided in the SNDAs or
except as approved in writing by Mortgagee, which approval shall not be
unreasonably withheld.. The terms and conditions of the Leases have not been and
shall not be waived in any manner whatsoever except as approved in writing by
Mortgagee, which approval shall not be unreasonably withheld.
(c) Borrower shall not decrease the term or the amount of rent
payable under any Lease without prior written notice to Mortgagee and
Mortgagee's consent.
(d) There are no defaults now existing under any of the Leases and,
to the best of Borrower's knowledge, there exists no state of facts which, with
the giving of notice or lapse of time or both, would constitute a default under
any of the Leases.
(e) Borrower shall give prompt written notice to Mortgagee of any
notice received by Borrower claiming that a default has occurred under any of
the Leases on the part of Borrower, together with a complete copy of any such
notice.
(f) Each of the Leases shall remain in full force and effect
irrespective of any merger of the interest of lessor and any lessee under any of
the Leases.
(g) Borrower will not permit any Lease or approved sublease to
become subordinate to any lien other than the lien of this Instrument and such
liens expressly permitted in the SNDAs.
The assignment made hereunder is an absolute, present assignment
from Borrower to Mortgagee, effective immediately, and is not merely an
assignment for security purposes but is irrevocable by Borrower so long as the
Indebtedness remains outstanding. Notwithstanding the foregoing, until a notice
is sent to the Borrower in writing that an Event of Default (as defined below)
has occurred under the terms
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and conditions of the Note or any instrument constituting security for the Note
(which notice is hereafter called a "Notice"), Borrower is granted a license to
receive, collect and enjoy the Rents accruing from the Property.
If an Event of Default shall occur, Mortgagee may, at its option,
after service of a Notice, receive and collect all such Rents as they become
due, from the Property to the extent permitted under applicable law. Mortgagee
shall thereafter continue to receive and collect all such Rents, until Mortgagee
shall otherwise agree in writing. All sums received by Borrower after service of
such Notice shall be deemed received in trust and shall be immediately turned
over to Mortgagee.
Borrower hereby irrevocably appoints Mortgagee its true and lawful
attorney-in-fact with power of substitution and with full power for Mortgagee in
its own name and capacity or in the name and capacity of Borrower, from and
after service of Notice, to demand, collect, receive and give complete
acquittances for any and all Rents accruing from the Property, either in its own
name or in the name of Borrower or otherwise, which Mortgagee may deem necessary
or desirable in order to collect and enforce the payment of the Rents and to
demand, correct, receive, endorse, and deposit all checks, drafts, money orders
or notes given in payment of such Rents. Such appointment is coupled with an
interest and is irrevocable. Mortgagee shall not be liable for or prejudiced by
any loss of any note, checks, drafts, etc., unless such loss shall have been
found by a court of competent jurisdiction to have been due to the gross
negligence or willful misconduct of Mortgagee.
Mortgagee shall apply the Rents received from Borrower's lessees, to
accrued interest and principal under the Note. If no Event of Default remains
uncured, amounts received in excess of the aggregate monthly payment due under
the Note shall be remitted to Borrower in a timely manner. Nothing contained
herein shall be construed to constitute Mortgagee as a mortgagee-in-possession
in absence of its physically taking possession of the Property.
Borrower also hereby irrevocably appoints Mortgagee as its true and
lawful attorney-in-fact to appear in any state or federal bankruptcy,
insolvency, or reorganization proceeding in any state or federal court involving
any of the tenants of the Leases. Lessees of the Property are hereby expressly
authorized and directed, from and after service of a Notice to pay any and all
amounts due Borrower pursuant to the Leases to Mortgagee or such nominee as
Mortgagee may designate in writing delivered to and received by such lessees who
are expressly relieved of any and all duty, liability or obligation to Borrower
in respect of all payments so made.
If an Event of Default shall occur, to the extent permitted under
applicable law, Mortgagee is hereby vested with full power from and after
service of a Notice to use all measures, legal and equitable, deemed by it
necessary or proper to enforce the assignment granted hereunder and to collect
the Rents assigned hereunder, including the right of Mortgagee or its designee,
to enter upon the Property, or any part thereof, and take possession of all or
any part of the Property together with all personal property, fixtures,
documents, books, records, papers and accounts of Borrower relating thereto, and
may exclude the Borrower, its agents and servants, wholly therefrom, to the
extent permitted under applicable law. Borrower hereby grants full power and
authority to Mortgagee to exercise all rights, privileges and powers herein
granted at any and all times after service of a Notice, with full power to use
and apply all of the Rents and other income herein assigned to the payment of
the costs of managing and operating the Property and of any indebtedness or
liability of Borrower to Mortgagee, including but not limited to the payment of
taxes, special assessments, insurance premiums, damage claims, the costs of
maintaining, repairing, rebuilding and restoring the Improvements on the
Premises or of making the same rentable, reasonable attorneys' fees incurred in
connection with the enforcement of the assignment granted hereunder, and of
principal and interest payments due from Borrower to Mortgagee on the Note and
this Instrument, all in such order as Mortgagee may determine. Mortgagee shall
be under no obligation to exercise or prosecute any of the rights or claims
assigned to it hereunder or to perform or carry out any of the obligations of
the lessor under any of the Leases and does not assume any of the liabilities in
connection with or arising or growing out of the covenants and agreements of
Borrower in the leases. It is further understood that the assignment granted
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hereunder shall not operate to place responsibility for the control, care,
management or repair of the Property, or parts thereof, upon Mortgagee, nor
shall it operate to make Mortgagee liable for the performance of any of the
terms and conditions of any of the Leases, or for any waste of the Property by
any lessee under any of the Leases or any other person, or for any dangerous or
defective condition of the Property or for any negligence in the management,
upkeep, repair or control of the Property resulting in loss or injury or death
to any lessee, licensee, employee or stranger, unless the same shall have been
found by a court of competent jurisdiction to have been due to the gross
negligence or willful misconduct of Mortgagee.
25. DEFAULT. The following shall each constitute an event of default
("Event of Default"):
(a) The occurrence of an "Event of Default" under the Note.
(b) Failure of Borrower within the time required by this Instrument
to make any payment for taxes, insurance or for reserves for such payments, or
any other payment necessary to prevent filing of or discharge of any lien, and
such failure shall continue for a period of ten (10) days after written notice
is given to Borrower by Mortgagee specifying such failure.
(c) Failure by Borrower to observe or perform any obligations of
Borrower to Mortgagee on or with respect to any transactions, debts,
undertakings or agreements other than the transaction evidenced by the Note,
following the giving of any notice required thereunder and/or the expiration of
any applicable period of grace provided thereby.
(d) Failure of Borrower to make any payment or perform any
obligation under any superior liens or encumbrances on the Property, within the
time required thereunder, or commencement of any suit or other action to
foreclose any superior liens or encumbrances.
(e) Failure by Borrower to observe or perform any of its obligations
under any of the Leases, following the giving of any notice required thereunder
and/or the expiration of any applicable period of grace provided thereby.
(f) The Property is transferred or any agreement to transfer any
part or interest in the Property in any manner whatsoever is made or entered
into without the prior written consent of Mortgagee, except as specifically
allowed under this Instrument or the SNDAs, including without limitation
creating or allowing any subordinate liens on the Property or leasing any
portion of the Property.
(g) Filing by Borrower of a voluntary petition in bankruptcy or
filing by Borrower of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by Borrower in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
Borrower, any part of the Property, or any of the Rents of the Property, or the
making by Borrower of any general assignment for the benefit of creditors, or
the inability of or failure by Borrower to pay its debts generally as they
become due, or the insolvency on a balance sheet basis or business failure of
Borrower, or the making or suffering of a preference within the meaning of
federal bankruptcy law or the making of a fraudulent transfer under applicable
federal or state law, or concealment by Borrower of any of its property in fraud
of creditors, or the imposition of a lien upon any of the property of Borrower
which is not discharged in the manner permitted by SECTION 4 of this Instrument,
or the giving of notice by Borrower to any governmental body of insolvency or
suspension of operations.
(h) Filing of a petition against Borrower seeking any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief under any present or future federal, state or other law or regulation
relating to bankruptcy, insolvency or other relief for debts, or the appointment
of any trustee, receiver, custodian, conservator or liquidator of Borrower, of
any part of the Property or of any of the Rents
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of the Property, unless such petition shall be dismissed within sixty (60) days
after such filing, but in any event prior to the entry of an order, judgment or
decree approving such petition.
(i) The institution of any proceeding for the dissolution or
termination of Borrower voluntarily, involuntarily, or by operation of law,
unless such proceeding shall be dismissed within sixty (60) days after such
filing, but in any event prior to the entry of an order, judgment or decree for
relief.
(j) A material adverse change occurs in the assets, liabilities or
net worth of Borrower or any guarantors from the assets, liabilities or net
worth of Borrower or any of the guarantors of the indebtedness evidenced by the
Note previously disclosed to Mortgagee.
(k) Any warranty, representation or statement furnished to Mortgagee
by or on behalf of Borrower under the Note, this Instrument, any of the other
Loan Documents or the Indemnity, shall prove to have been false or misleading in
any material respect when made.
(l) Failure of Borrower to observe or perform any other covenant or
condition contained herein and such default shall continue for thirty (30) days
after notice is given to Borrower specifying the nature of the failure, or if
the default cannot be cured within such applicable cure period, Borrower fails
within such time to commence and pursue curative action with reasonable
diligence or fails at any time after expiration of such applicable cure period
to continue with reasonable diligence all necessary curative actions; provided,
however, that no notice of default and no opportunity to cure shall be required
with respect to defaults under SECTION 17 hereof or if during the prior twelve
(12) months Mortgagee has already sent a notice to Borrower concerning default
in performance of the same obligation.
(m) Failure of Borrower to observe or perform any other obligation
under any other Loan Document or the Indemnity when such observance or
performance is due, and such failure shall continue beyond the applicable cure
period set forth in such Loan Document, or if the default cannot be cured within
such applicable cure period, Borrower fails within such time to commence and
pursue curative action with reasonable diligence or fails at any time after
expiration of such applicable cure period to continue with reasonable diligence
all necessary curative actions. No notice of default and no opportunity to cure
shall be required if during the prior twelve (12) months Mortgagee has already
sent a notice to Borrower concerning default in performance of the same
obligation.
(n) Borrower's abandonment of the Property, or the termination
before the end of the stated term of those certain Leases of the Property (or
portions thereof) between Borrower and SLA Mail, Inc., a Massachusetts
corporation, dated July 30, 2001, or the occurrence of a material default by
the tenant thereunder.
(o) Any of the events specified in (g) - (j) above shall occur with
respect to any tenant of the Property, with respect to any guarantor of any of
Borrower's obligations in connection with the Indebtedness or with respect to
any guarantor of any tenant's obligations relating to the Property, or such
guarantor dies or becomes incompetent.
(p) The occurrence of any default under any of the documents
evidencing or securing Loan No. 0007256-001, following the giving of any notice
required thereunder and/or the expiration of any applicable period of grace
provided thereby.
(q) Failure of Borrower's Cash Flow (as herein defined) to equal or
exceed one hundred twenty percent (120%) of Borrower's aggregate debt service
(i.e., principal and interest) and capital lease payments paid in the applicable
fiscal year. Cash Flow is defined as the Borrower's net income before taxes,
plus interest expense, plus depreciation and amortization expense, plus or minus
other non-cash adjustments to net income (if any), less increases in officer or
shareholder loans receivable, less dividends or distributions not otherwise
expensed on the Borrower's income statement.
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26. RIGHTS AND REMEDIES ON DEFAULT.
26.1 REMEDIES. Upon the occurrence of any Event of Default and at
any time thereafter, Mortgagee may exercise any one or more of the following
rights and remedies:
(a) Mortgagee may declare all sums secured by this Instrument
immediately due and payable, including any prepayment premium which Borrower
would be required to pay.
(b) Mortgagee shall have the right to foreclose this Instrument in
accordance with applicable law.
(c) In the event of any foreclosure, to the extent permitted by
applicable law, Mortgagee will be entitled to a judgment which will provide that
if the foreclosure sale proceeds are insufficient to satisfy the judgment,
execution may issue for any amount by which the unpaid balance of the
obligations secured by this Instrument exceeds the net sale proceeds payable to
Mortgagee.
(d) With respect to all or any part of the Property that constitutes
personalty, Mortgagee shall have all rights and remedies of secured party under
the Uniform Commercial Code.
(e) Mortgagee shall have the right to have a receiver appointed to
take possession of any or all of the Property, with the power to protect and
preserve the Property, to operate the Property preceding foreclosure or sale, to
collect all the Rents from the Property and apply the proceeds, over and above
cost of the receivership, against the sums due under this Instrument, and to
exercise all of the rights with respect to the Property described in SECTION 24
above. The receiver may serve without bond if permitted by law. To the extent
permitted by law, Mortgagee's right to the appointment of a receiver shall exist
whether or not apparent value of the Property exceeds the sums due under this
Instrument by a substantial amount. Employment by Mortgagee shall not disqualify
a person from serving as a receiver.
(f) In the event Borrower remains in possession of the Property
after the Property is sold as provided above or Mortgagee otherwise becomes
entitled to possession of the Property upon default of Borrower, Borrower shall
become a tenant at will of Mortgagee or the purchaser of the Property and shall
pay a reasonable rental for use of the Property while in Borrower's possession.
(g) Mortgagee shall have any other right or remedy provided in this
Instrument, the Note, or any other Loan Document or instrument delivered by
Borrower in connection therewith, or available at law, in equity or otherwise.
(h) Mortgagee shall have all the rights and remedies set forth in
SECTIONS 23, 24 and 38-43.
26.2 SALE OF THE PROPERTY. In exercising its rights and remedies,
Mortgagee may, at Mortgagee's sole discretion, cause all or any part of the
Property to be sold as a whole or in parcels, and certain portions of the
Property may be sold without selling other portions. Mortgagee may bid at any
public sale on all or any portion of the Property.
26.3 NOTICE OF SALE. Mortgagee shall give Borrower reasonable notice
of the time and place of any public sale of any personal property or of the time
after which any private sale or other intended disposition of the personal
property is to be made. Reasonable notice shall mean notice given in accordance
with applicable law.
26.4 WAIVER; ELECTION OF REMEDIES. A waiver by either party of a
breach of a provision of this Instrument shall not constitute a waiver of or
prejudice the party's right otherwise to demand strict compliance with that
provision or any other provision. Election by Mortgagee to pursue any remedy
shall not
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exclude pursuit of any other remedy, and all remedies of Mortgagee under this
Instrument are cumulative and not exclusive. An election to make expenditures or
take action to perform an obligation of Borrower shall not affect Mortgagee's
right to declare a default and exercise its remedies under this Instrument.
27. SATISFACTION OF MORTGAGE. Upon payment of all sums secured by
this Instrument, Mortgagee shall execute a satisfaction (or at Borrower's
option, an assignment) of this Instrument and shall surrender this Instrument
and all notes evidencing Indebtedness secured by this Instrument to the person
or persons legally entitled thereto. Such person or persons shall pay
Mortgagee's costs incurred in connection with satisfaction or assignment of this
Instrument.
28. FUTURE ADVANCES. Upon request of Borrower, Mortgagee, at
Mortgagee's option so long as this Instrument secures Indebtedness held by
Mortgagee, may make Future Advances to Borrower. Such Future Advances, with
interest thereon, shall be secured by this Instrument when evidenced by
promissory notes stating that said notes are secured hereby; provided, however,
that the maximum amount secured hereby shall not exceed the amount referenced in
paragraph 43 hereof.
29. USE OF PROPERTY. The Property is not currently used for
residential, agricultural, farming, timber or grazing purposes. Borrower
warrants that this Instrument is and will at all times constitute a commercial
mortgage, as defined under appropriate state law.
30. IMPOSITION OF TAX BY STATE.
30.1 STATE TAXES COVERED. The following constitute state taxes to
which this SECTION applies:
(a) A specific tax upon mortgages or upon all or any part of the
indebtedness secured by a mortgage.
(b) A specific tax on a mortgagor which the taxpayer is authorized
or required to deduct from payments on the indebtedness secured by a mortgage.
(c) A tax on a mortgage chargeable against the mortgagee or the
holder of the note secured.
(d) A specific tax on all or any portion of the indebtedness or on
payments of principal and interest made by a mortgagor.
30.2 REMEDIES. If any state tax to which this SECTION applies is
enacted subsequent to the date of this Instrument, this shall have the same
effect as an Event of Default, and Mortgagee may exercise any or all of the
remedies available to it unless the following conditions are met:
(a) Borrower may lawfully pay the tax or charge imposed by state
tax, and
(b) Borrower pays the tax or charge within thirty (30) days after
notice from Mortgagee that the tax has been levied.
31. ATTORNEYS' FEES. In the event suit or action is instituted to
enforce or interpret any of the terms of this Instrument (including without
limitation efforts to modify or vacate any automatic stay or injunction), the
prevailing party shall be entitled to recover all expenses reasonably incurred
at, before and after trial and on appeal whether or not taxable as costs, or in
any bankruptcy proceeding including, without limitation, attorneys' fees,
witness fees (expert and otherwise), deposition costs, copying charges and other
expenses. Whether or not any court action is involved, all reasonable expenses,
including but not limited to the costs of searching records, obtaining title
reports, surveyor reports, and title insurance, incurred by Mortgagee that are
necessary at any time in Mortgagee's opinion for the protection of its interest
or
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enforcement of its rights shall become a part of the Indebtedness payable on
demand and shall bear interest from the date of expenditure until repaid at the
interest rate as provided in the Note. The term "attorneys' fees" as used in the
Loan Documents shall be deemed to mean such fees as are reasonable and are
actually incurred.
32. GOVERNING LAW; SEVERABILITY. This Instrument shall be governed
by the law of the State of Illinois applicable to contracts made and to be
performed therein (excluding choice-of-law principles). In the event that any
provision or clause of this Instrument or the Note conflicts with applicable
law, such conflict shall not affect other provisions of this Instrument or the
Note which can be given effect without the conflicting provision, and to this
end the provisions of this Instrument and the Note are declared to be severable.
33. TIME OF ESSENCE. Time is of the essence of this Instrument.
34. CHANGES IN WRITING. This Instrument and any of its terms may
only be changed, waived, discharged or terminated by an instrument in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought. Any agreement subsequently made by Borrower or
Mortgagee relating to this Instrument shall be superior to the rights of the
holder of any intervening lien or encumbrance.
35. NO OFFSET. Borrower's obligation to make payments and perform
all obligations, covenants and warranties under this Instrument and under the
Note shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation any setoff, counterclaim, abatement,
suspension, recoupment, deduction, defense or other right that Borrower or any
guarantor may have or claim against Mortgagee or any entity participating in
making the loan secured hereby. The foregoing provisions of this section,
however, do not constitute a waiver of any claim or demand which Borrower or any
guarantor may have in damages or otherwise against Mortgagee or any other
person, or preclude Borrower from maintaining a separate action thereon;
provided, however, that Borrower waives any right it may have at law or in
equity to consolidate such separate action with any action or proceeding brought
by Mortgagee.
36. WAIVER OF JURY TRIAL. THE BORROWER AND MORTGAGEE HEREBY
KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE ANY AND ALL RIGHTS THAT EACH
PARTY TO THIS INSTRUMENT MAY NOW OR HEREAFTER HAVE UNDER THE LAWS OF THE UNITED
STATES OF AMERICA OR THE STATE OF ILLINOIS, TO A TRIAL BY JURY OF ANY AND ALL
ISSUES ARISING DIRECTLY OR INDIRECTLY IN ANY ACTION OR PROCEEDING RELATING TO
THIS INSTRUMENT, THE LOAN DOCUMENTS OR ANY TRANSACTIONS CONTEMPLATED THEREBY OR
RELATED THERETO. IT IS INTENDED THAT THIS WAIVER SHALL APPLY TO ANY AND ALL
DEFENSES, RIGHTS, CLAIMS AND/OR COUNTERCLAIMS IN ANY SUCH ACTION OR PROCEEDING.
BORROWER UNDERSTANDS THAT THIS WAIVER IS A WAIVER OF A CONSTITUTIONAL
SAFEGUARD, AND EACH PARTY INDIVIDUALLY BELIEVES THAT THERE ARE SUFFICIENT
ALTERNATE PROCEDURAL AND SUBSTANTIVE SAFEGUARDS, INCLUDING, A TRIAL BY AN
IMPARTIAL JUDGE, THAT ADEQUATELY OFFSET THE WAIVER CONTAINED HEREIN.
37. MAXIMUM INTEREST CHARGES. Notwithstanding anything contained
herein or in any of the Loan Documents to the contrary, in no event shall
Mortgagee be entitled to receive interest on the loan secured by this Instrument
(the "Loan") in amounts which, when added to all of the other interest charged,
paid to or received by Mortgagee on the Loan, causes the rate of interest on the
Loan to exceed the highest lawful rate. Borrower and Mortgagee intend to comply
with the applicable law governing the highest lawful rate and the maximum amount
of interest payable on or in connection with the Loan. If the applicable law is
ever judicially interpreted so as to render usurious any amount called for Under
the Loan Documents, or contracted for, charged, taken, reserved or received with
respect to the Loan, or if acceleration of the final maturity date of the Loan
or if any prepayment by Borrower results in Borrower having paid or demand
having been made on Borrower to pay, any interest in excess of the amount
permitted by
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applicable law, then all excess amounts theretofore collected by Mortgagee shall
be credited on the principal balance of the Note (or, if the Note has been or
would thereby be paid in full, such excess amounts shall be refunded to
Borrower), and the provisions of the Note, this Instrument and any demand on
Borrower shall immediately be deemed reformed and the amounts thereafter
collectible thereunder and hereunder shall be reduced, without the necessity of
the execution of any new document, so as to comply with the applicable law, but
so as to permit the recovery of the fullest amount otherwise called for
thereunder and hereunder. The right to accelerate the final maturity date of the
Loan does not include the right to accelerate any interest which has not
otherwise accrued on the date of such acceleration, and Mortgagee does not
intend to collect any unearned interest in the event of acceleration. All sums
paid or agreed to be paid to Mortgagee for the use, forbearance or detention of
the Loan shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread through the full term of the Loan until payment
in full so that the rate or amount of interest on account of the Loan does not
exceed the applicable usury ceiling. By execution of this Instrument, Borrower
acknowledges that it believes the Loan to be nonusurious and agrees that if, at
any time, Borrower should have reason to believe that the Loan is in fact
usurious, it will give Mortgagee written notice of its belief and the reasons
why Borrower believes the Loan to be usurious, and Borrower agrees that
Mortgagee shall have ninety (90) days following its receipt of such written
notice in which to make appropriate refund or other adjustment in order to
correct such condition if it in fact exists.
38. BENEFITS OF ACT. (a) Mortgagor and Mortgagee shall have the
benefit of all the provisions of the Illinois Mortgage Foreclosure Law (735 ILCS
5/15-1101) (the "Act"), including all amendments thereto which may become
effective from time to time after the date hereof. If any provision of the Act
which is specifically referred to herein may be repealed, Mortgagee shall have
the benefit of such provision as most recently existing prior to such repeal, as
though the same were incorporated herein by express reference.
(b) Mortgagee shall have the right to foreclose the lien of
this Mortgage for the obligations secured hereby or part thereof and/or exercise
any right, power or remedy provided in this Mortgage or any of the other Loan
Documents in accordance with the Act. If any provision in this Mortgage shall be
inconsistent with any provision of the Act, and application of such Mortgage
provision would violate applicable Illinois law, provisions of the Act shall
take precedence over the provisions of this Mortgage and shall not invalidate or
render unenforceable any other provision of this Mortgage that can be construed
in a manner consistent with the Act. If any provision of this Mortgage shall
grant to Mortgagee (including Mortgagee acting as a mortgagee-in-possession) or
a receiver appointed pursuant to the terms hereof, any powers, rights or
remedies prior to, upon or following the occurrence of an event of default which
are more limited than the powers, rights or remedies that would otherwise be
vested in Mortgagee or in such receiver under the Act in the absence of said
provision, Mortgagee and such receiver shall be vested with the powers, rights
and remedies granted in the Act to the full extent permitted by law.
Without limiting the generality of the foregoing, all expenses
incurred by Mortgagee which are of the type referred to in Section 5/15-1510 or
5/15-1512 of the Act, whether incurred before or after any decree or judgment of
foreclosure, and whether or not enumerated elsewhere in this Mortgage, shall be
added to the obligations secured hereby and/or by the judgment of foreclosure.
39. INSURANCE. Wherever provision is made in the Mortgage for
insurance policies to bear mortgage clauses or other loss payable clauses or
endorsements in favor of Mortgagee, or to confer authority upon Mortgagee to
settle or participate in the settlement of losses under policies of insurance or
to hold and disburse or otherwise control use of insurance proceeds, from and
after the entry of judgment of foreclosure all such rights and power of the
Mortgagee shall continue in the Mortgagee as judgment creditor or mortgagee
until confirmation of sale.
40. PROTECTIVE ADVANCES. All advances, disbursements and
expenditures made by Mortgagee before and during a foreclosure, and before and
after judgment of foreclosure, and at any time prior to sale, and, where
applicable, after sale, and during the pendency of any related proceeding
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authorized, by the Mortgage or by the Act (collectively "Protective Advances"),
shall have the benefit of all applicable provisions of the Act.
40.1 All Protective Advances shall be so much additional
indebtedness secured by the Mortgage, and shall become immediately due and
payable without notice and with interest thereon from the date of the advance
until paid at the rate due and payable after a default under the terms of the
Note.
40.2 The Mortgage shall be a lien for all Protective Advances as to
subsequent purchasers and judgment creditors from the time the Mortgage is
recorded pursuant to Subsection (b)(1) of Section 5/15-1302 of the Act.
40.3 All Protective Advances shall, except to the extent, if any,
that any of the same is clearly contrary to or inconsistent with the provisions
of the Act, apply to and be included in:
(a) determination of the amount of indebtedness secured by the
Mortgage at any time;
(b) the indebtedness found due and owing to the Mortgagee in
the judgment of foreclosure and any subsequent supplemental
judgments, orders, adjudications or findings by the court of
any additional indebtedness becoming due after such entry of
judgment, it being agreed that in any foreclosure judgment,
the court may reserve jurisdiction for such purpose;
(c) if right of redemption has not been waived by the
Mortgagor in the Mortgage, computation of amount required to
redeem, pursuant to Subsections (d)(2) and (c) of Section
5/15-1603 of the Act;
(d) determination of amount deductible from sale proceeds
pursuant to Section 5/155-1512 of the Act;
(e) application of the income in the hands of any receiver or
Mortgagee in possession; and
(f) computation of any deficiency judgment pursuant to
Subsections (b)(2) and
(e) of Sections 5/15-1508 and Section 5/15-1511 of the Act.
41. MORTGAGEE IN POSSESSION. In addition to any provision of the
Mortgage authorizing the Mortgagee to take or to be placed in possession of the
Premises, or for the appointment of a receiver, Mortgagee shall have the right,
in accordance with Subsections 5/115-1701 and 5/15-1702 of the Act, to be placed
in possession of the Premises or at its request to have a receiver appointed,
and any such receiver, or Mortgagee, if and when placed in possession, shall
have, in addition to any other powers provided in the Mortgage, all powers,
immunities, and duties as provided for in Sections 5/15-1701 and 5/15-1703 of
the Act.
42. WAIVER OF REDEMPTION. Mortgagor acknowledges that the Premises
does not constitute agricultural real estate, as said term is defined in Section
5/15-1201 of the Act or residential real estate as defined in Section 5/15-1219
of the Act. Pursuant to Section 5/15-1601 (b) of the Act, Mortgagor hereby
waives any and all right to redemption.
43. AMOUNT SECURED HEREBY. At all times, regardless of whether any
Loan proceeds have been disbursed, this Mortgage secures (in addition to the
amounts secured hereby) the payment of any and all Loan commissions, services
charges, liquidated damages, expenses and advances due to or incurred by
Mortgagee in connection with the Loan, provided, however, that in no event shall
the total amount secured hereby exceed two hundred (200%) percent of the face
amount of the Notes.
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IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD
BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS
OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, Borrower has caused this Instrument to be
executed under seal by its duly authorized representative as of the day and year
first written above.
BORROWER:
SPENCER FAMILY, LLC,
a Massachusetts limited liability company
By: /s/ Aaron Spencer
---------------------------------------
Aaron Spencer
Title: Managing Member
[SEAL]
Exhibits:
Exhibit A - Description of Property
Schedule 1 - Permitted Exceptions
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STATE OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
This instrument was acknowledged before me, a notary public in and
for said state and county, on this 30th day of July, 2001, by Aaron Spencer,
as Managing Member of Spencer Family, LLC, a Massachusetts limited liability
company, on behalf of the limited liability company.
---------------------------------------
Notary Public
My commission expires
------------------
[SEAL]
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