EXHIBIT 10.46
RETURN TO:
Joshua A. Gunn, Esq.
Sidley Austin Brown & Wood
Bank One Plaza
10 S. Dearborn Street
Chicago, Illinois 60603
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (as the same may be amended, restated, extended, supplemented or
otherwise modified from time to time, the "Mortgage"), is made as of the ___ day
of July, 2002, by RAMCO/CROSSROADS AT ROYAL PALM, LLC, a Michigan limited
liability company, having its principal place of business at 27600 Northwestern
Highway, #200, Southfield, Michigan 48034 ("Mortgagor"), to and for the benefit
of SALOMON BROTHERS REALTY CORP., a New York corporation, having its place of
business at 388 Greenwich Street, 11th Floor, New York, New York 10013
("Mortgagee").
FLORIDA DOCUMENTARY STAMP TAXES AND INTANGIBLE PERSONAL
PROPERTY TAXES HAVE BEEN PAID IN ACCORDANCE WITH THE
PROVISIONS OF PARAGRAPHS 66 AND 67 HEREIN
W I T N E S S E T H:
To secure the payment of an indebtedness in the principal sum of TWELVE
MILLION THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($12,300,000),
lawful money of the United States of America, to be paid with interest according
to a certain note dated the date hereof made by Mortgagor to Mortgagee (the note
together with all extensions, renewals or modifications thereof being
hereinafter collectively called the "Note") and all other sums due hereunder, or
otherwise due under the Loan Documents (as defined in the Note) (said
indebtedness, interest and all sums due hereunder and under the Note and any
other Loan Documents being collectively called the "Debt"), and all of the
agreements, covenants, conditions, warranties, representations and other
obligations (other than to repay the Debt) made or undertaken by Mortgagor or
any other person or entity to Mortgagee or others as set forth in the Loan
Documents (the "Obligations"), Mortgagor has mortgaged, given, granted,
bargained, sold, alienated, infeft, conveyed, confirmed, pledged, assigned, and
hypothecated and by these presents does hereby mortgage, give, grant, bargain,
sell, alien, enfeoff, convey, confirm, pledge, assign and hypothecate unto
Mortgagee the real property described in Exhibit A attached hereto (the
"Premises") and the buildings, structures, fixtures, additions, enlargements,
extensions, modifications, repairs, replacements and improvements now or
hereafter located thereon (the "Improvements");
TOGETHER WITH: all right, title, interest and estate of Mortgagor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements together with the
following property, rights, interests and estates being hereinafter described
are collectively referred to herein as the "Mortgaged Property"):
(a) all easements, rights-of-way, strips and gores of land, streets, ways,
alleys, passages, sewer rights, water, water courses, water rights and powers,
air rights and development rights, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments and appurtenances of any nature
whatsoever, in any way belonging, relating or pertaining to the Premises and the
Improvements and the reversion and reversions, remainder and remainders, and all
land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Premises, to the center line thereof and all the
estates, rights, titles, interests, dower and rights of dower, courtesy and
rights of courtesy, property, possession, claim and demand whatsoever, both at
law and in equity, of Mortgagor of, in and to the Premises and the Improvements
and every part and parcel thereof, with the appurtenances thereto;
(b) all machinery, equipment, fixtures (including but not limited to all
heating, ventilation, air conditioning, plumbing, lighting, communications and
elevator fixtures) and other property of every kind and nature, whether tangible
or intangible, whatsoever owned by Mortgagor, or in which Mortgagor has or shall
have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, and usable in connection with the present
or future operation and occupancy of the Premises and the Improvements and all
building equipment, materials and supplies of any nature whatsoever owned by
Mortgagor, or in which Mortgagor has or shall have an interest, now or hereafter
located upon the Premises and the Improvements, or appurtenant thereto, or
usable in connection with the present or future operation, enjoyment and
occupancy of the Premises and the Improvements (hereinafter collectively called
the
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"Equipment"), including the proceeds of any sale or transfer of the foregoing,
and the right, title and interest of Mortgagor in and to any of the Equipment
which may be subject to any security interests, as defined in the Uniform
Commercial Code, as adopted and enacted by the state or states where any of the
Mortgaged Property is located (the "Uniform Commercial Code") superior in lien
to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Mortgaged Property, whether
from the exercise of the right of eminent domain or condemnation (including but
not limited to any transfer made in lieu of or in anticipation of the exercise
of said rights), or for a change of grade, or for any other injury to or
decrease in the value of the Mortgaged Property;
(d) all leases and subleases (including, without limitation, all
guarantees, letter of credit rights and other supporting obligations in respect
thereof) and other agreements or arrangements heretofore or hereafter entered
into affecting the use, enjoyment or occupancy of, or the conduct of any
activity upon or in, the Premises and the Improvements, including any
extensions, renewals, modifications or amendments thereof (the "Leases"),
including (i) that certain Lease dated October 16, 1987 between Royal Palm
Associates, Ltd., a Florida general partnership, predecessor in interest to
Mortgagor, as landlord, and Walgreen Co., an Illinois corporation ("Walgreens"),
as tenant, (together will all modifications and amendments thereto, the
"Walgreens Lease") for space at the Mortgaged Property described therein (the
"Walgreens Space") and (ii) that certain Lease Agreement dated October 12, 1987
between Royal Palm Associates, Ltd., a Florida limited partnership, predecessor
in interest to Mortgagor, as landlord, and Publix Super Markets, Inc., a Florida
corporation ("Publix"), as tenant, (together with all modifications and
amendments thereto, the "Publix Lease") for space at the Mortgaged Property
described therein (the "Publix Space"), and all rents, rent equivalents
(including room revenues, if applicable), moneys payable as damages or in lieu
of rent or rent equivalents, royalties (including, without limitation, all oil
and gas or other mineral royalties and bonuses), income, receivables, receipts,
revenues, deposits (including, without limitation, security, utility and other
deposits), accounts (including deposit accounts), cash, issues, profits, charges
for services rendered, and other consideration of whatever form or nature
received by or paid to or for the account of or benefit of Mortgagor or its
agents or employees from any and all sources arising from or attributable to the
Premises and the Improvements (the "Rents"), together with all proceeds from the
sale or other disposition of the Leases and the right to receive and apply the
Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance policies
covering the Mortgaged Property, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or settlements made
in lieu thereof, for damage to the Mortgaged Property or any part thereof;
(f) the right, in the name and on behalf of Mortgagor, to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to commence any action or proceeding to protect the interest of Mortgagee in
the Mortgaged Property or any part thereof;
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(g) all accounts, escrows, reserves, documents, records, instruments,
chattel paper (including both tangible chattel paper and electronic chattel
paper), claims, financial assets, investment property, letter of credit rights,
supporting obligations, deposits and general intangibles (including payment
intangibles and software), as the foregoing terms are defined in the Uniform
Commercial Code, and all franchises, trade names, trademarks, symbols, service
marks, books, records, plans, specifications, designs, drawings, permits,
consents, licenses, franchises, management agreements, contracts, contract
rights (including, without limitation, any contract with any architect or
engineer or with any other provider of goods or services for or in connection
with any construction, repair, or other work upon the Mortgaged Property),
approvals, actions, refunds or real estate taxes and assessments (and any other
governmental impositions related to the Mortgaged Property), and causes of
action that now or hereafter relate to, are derived from or are used in
connection with the Mortgaged Property, or the use, operation, management,
improvement, alteration, repair, maintenance, occupancy or enjoyment thereof or
the conduct of any business or activities thereon owned by Mortgagor;
(h) any and all proceeds and products of any of the foregoing and any and
all other security and collateral of any nature whatsoever, now or hereafter
given for the repayment of the Debt and the performance of Mortgagor's
obligations under the Loan Documents, including (without limitation) the Tax and
Insurance Escrow Fund (hereafter defined) the Replacement Reserve Fund
(hereafter defined), and any other escrows set forth in the Loan Documents;
(i) all accounts receivable, contract rights, interests, estates or other
claims, both in law and in equity, which Mortgagor now has or may hereafter
acquire in the Mortgaged Property or any part thereof; and
(j) all rights which Mortgagor now has or may hereafter acquire, to be
indemnified and/or held harmless from any liability, loss, damage, cost or
expense (including, without limitation, attorneys' and paralegals' fees and
disbursements) relating to the Mortgaged Property or any part thereof.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the use and benefit of Mortgagee, and the successors and assigns of
Mortgagee, forever;
PROVIDED, HOWEVER, these presents are upon the express condition that, if
Mortgagor shall well and truly pay to Mortgagee the Debt at the time and in the
manner provided in the Note and this Mortgage and shall well and truly abide by
and comply with each and every covenant and condition set forth herein and in
the Note in a timely manner, these presents and the estate hereby granted shall
cease, terminate and be void;
AND Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Mortgagor shall pay the Debt at the time and in the manner provided
in the
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Note and in this Mortgage. Mortgagor will duly and punctually perform all of the
covenants, conditions and agreements contained in the Note, this Mortgage and
the other Loan Documents all of which covenants, conditions and agreements are
hereby made a part of this Mortgage to the same extent and with the same force
as if fully set forth herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor has good,
marketable and insurable title to the Mortgaged Property and has the right to
mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm, pledge,
assign and hypothecate the same and that Mortgagor possesses an unencumbered fee
estate in the Premises and the Improvements and that it owns the Mortgaged
Property free and clear of all liens, encumbrances and charges whatsoever except
for those exceptions shown in the title insurance policy insuring the lien of
this Mortgage ("Permitted Encumbrances"). Mortgagor represents and warrants that
none of the Permitted Encumbrances will materially and adversely affect (a)
Mortgagor's ability to pay in full the Debt, (b) the use of the Mortgaged
Property for the use currently being made thereof, (c) the operation of the
Mortgaged Property, or (d) the value of the Mortgaged Property. Mortgagor shall
forever warrant, defend and preserve such title and the validity and priority of
the lien of this Mortgage and shall forever warrant and defend the same to
Mortgagee against the claims of all persons whomsoever.
3. Insurance. (a) Mortgagor, at its sole cost and expense, will keep the
Mortgaged Property insured during the entire term of this Mortgage for the
mutual benefit of Mortgagor and Mortgagee against loss or damage by fire,
lightning, wind and such other perils as are included in a standard "all-risk"
or "special causes of loss" form and against loss or damage by all other risks
and hazards covered by a standard extended coverage insurance policy including,
without limitation, riot and civil commotion, vandalism, malicious mischief,
burglary and theft. Such insurance shall be in an amount equal to the greatest
of (i) the then full replacement cost of the Improvements and Equipment, without
deduction for physical depreciation and (ii) such amount that the insurer would
not deem Mortgagor a co-insurer under said policies. The policies of insurance
carried in accordance with this section shall be paid annually in advance and
shall contain a "Replacement Cost Endorsement" with a waiver of depreciation and
an "Agreed Amount Endorsement". The policies shall have a deductible no greater
than $25,000 unless agreed to by Mortgagee.
(b) Mortgagor, at its sole cost and expense, for the mutual benefit
of Mortgagor and Mortgagee, shall also obtain and maintain, or cause to be
obtained and maintained, during the entire term of this Mortgage the following
policies (collectively, with the other policies required by this Section, the
"Policies" and each a "Policy"):
(i) Flood insurance if any part of the Mortgaged Property is
located in an area identified by the Federal Emergency Management
Agency as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance
Act of 1968, the Flood Disaster Protection Act of 1973 or the
National Flood Insurance Reform Act of 1994 (and any amendment or
successor act
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thereto) in an amount at least equal to the lesser of (A) the full
replacement cost of the Improvements and the Equipment within the
parts of the Mortgaged Property so affected, (B) the outstanding
principal amount of the Note or (C) the maximum limit of coverage
available with respect to the Improvements and Equipment under said
Act.
(ii) Comprehensive General Liability or Commercial General
Liability insurance, including a broad form comprehensive general
liability endorsement and coverage for broad form property damage,
contractual damages, personal injuries (including death resulting
therefrom) and a liquor liability endorsement if liquor is sold on
the Mortgaged Property, containing minimum limits of liability of $2
million for both injury to or death of a person and for property
damage per occurrence, and such other liability insurance reasonably
requested by Mortgagee. In addition, at least $3 million excess
and/or umbrella liability insurance shall be obtained and maintained
for any and all claims, including all legal liability imposed upon
Mortgagor and all court costs and attorneys' fees incurred in
connection with the ownership, operation and maintenance of the
Mortgaged Property.
(iii) Rental loss and/or business interruption insurance for a
period of 12 months in an amount equal to the estimated gross
revenues from the operations of the Mortgaged Property over 12
months. The amount of such rental loss insurance shall be increased
from time to time during the term of this Mortgage as and when new
Leases and renewal Leases are entered into in accordance with the
terms of this Mortgage, to reflect all increased rent and increased
additional rent payable by all of the tenants under such Leases.
(iv) Insurance against loss or damage from explosion of steam
boilers, air conditioning equipment, high pressure piping, machinery
and equipment, pressure vessels or similar apparatus now or
hereafter installed in the Improvements and including broad form
boiler and machinery insurance (without exclusion for explosion)
covering all boilers or other pressure vessels, machinery and
equipment located in, on, or about the Premises and the
Improvements. Coverage is required in an amount at least equal to
the full replacement cost of such equipment. Coverage must extend to
electrical equipment, sprinkler systems, heating and air
conditioning equipment, refrigeration equipment and piping.
(v) If the Mortgaged Property includes commercial property,
worker's compensation insurance with respect to any employees of
Mortgagor, as required by any governmental authority or legal
requirement.
(vi) During any period of repair or restoration, builder's
"all risk" insurance in an amount equal to not less than the full
insurable value
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of the Mortgaged Property against such risks (including, without
limitation, fire and extended coverage and collapse of the
Improvements to agreed limits) as Mortgagee may request, in form and
substance reasonably acceptable to Mortgagee.
(vii) Ordinance or law coverage to compensate for the cost of
demolition, increased cost of construction, and loss to any
undamaged portions of the Improvements, if the current use of the
Mortgaged Property or the Improvements themselves are or become
"nonconforming" pursuant to the applicable zoning regulations, or
full rebuildability following casualty is otherwise not permitted
under such zoning regulations.
(viii) Windstorm insurance in an amount equal to the lesser of
the original principal balance of the Loan and the maximum amount
permitted by law.
(ix) Such other insurance as may from time to time be
reasonably required by Mortgagee in order to protect its interests
and which is then customarily required by institutional lenders for
similar properties similarly situated, against other insurable
hazards, which at the time are commonly insured against and
generally available at commercially reasonable premiums in the case
of properties similarly situated, due regard to be given to the size
and type of the Premises, Improvements and Equipment and their
location, construction and use.
The insurance policies required under subsections 3(a) and 3(b)(iii) above
shall be required to cover perils of terrorism and acts of terrorism so long as
such insurance coverage is available at commercially reasonable rates (as
determined by Mortgagee in its sole discretion); provided however, if a Rating
Agency in connection with a Secondary Market Transaction (as hereinafter
defined) or in connection with its rating surveillance of the certificates
issued pursuant to a Secondary Market Transaction would not provide or maintain
a rating (including, without limitation, any so-called "shadow" rating) for any
portion of such certificates or the Loan which would otherwise be available but
for the failure to maintain terrorism insurance with respect to the Loan (or the
Loan among other loans included in the Secondary Market Transaction), Mortgagor
will so maintain such insurance if obtainable from any insurer or any
governmental authority (for the maximum amount obtainable up to the amounts set
forth in subsections 3(a) and 3(b)(iii) above and with deductibles no greater
than those provided in subsection 3(a) above).
(c) All Policies (i) shall be issued by companies approved by
Mortgagee and licensed to do business in the state where the Mortgaged Property
is located, with a claims paying ability rating of "A:VIII" or better in the
current Best's Insurance Reports; (ii) shall be maintained throughout the term
of this Mortgage without cost to Mortgagee; (iii) shall contain a
Non-Contributory Standard Mortgagee Clause and a Lender's Loss Payable
Endorsement, or their equivalents, naming Mortgagee as the person to which all
payments made by such insurance company shall be paid; (iv) shall contain a
waiver of subrogation against Mortgagee; (v) shall be maintained throughout
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the term of the Mortgage without cost to Mortgagee; (vi) shall be delivered to
Mortgagee in the form of certified copies of the Policies in effect on the date
hereof; (vii) shall contain such provisions as Mortgagee deems reasonably
necessary or desirable to protect its interest including, without limitation,
endorsements providing that neither Mortgagor, Mortgagee nor any other party
shall be a co-insurer under said Policies and that Mortgagee shall receive at
least thirty (30) days prior written notice of any modification or cancellation;
(viii) shall be for a term of not less than one year, (ix) shall be issued by an
insurer licensed in the state in which the Mortgaged Property is located, (x)
shall provide that Mortgagee may, but shall not be obligated to, make premium
payments to prevent any cancellation, endorsement, alteration or reissuance, and
such payments shall be accepted by the insurer to prevent same, (xii) shall be
reasonably satisfactory in form and substance to Mortgagee and shall be
reasonably approved by Mortgagee as to amounts, form, risk coverage,
deductibles, loss payees and insureds; and (xiii) shall provide that all claims
shall be allowable on an occurrence basis. Policies may also be so-called
"blanket" policies, subject to Mortgagee's reasonable approval, so long as the
required coverages are provided and are not reduced in amount or quality by
virtue of the pooling effect of such "blanket" policies. Upon demand therefor,
Mortgagor shall reimburse Mortgagee for all of Mortgagee's (or its servicer's)
reasonable costs and expenses incurred in obtaining any or all of the Policies
or otherwise causing the compliance with the terms and provisions of this
Section 3, including (without limitation) obtaining updated flood hazard
certificates and replacement of any so-called "forced placed" insurance
coverages. Mortgagor shall pay the premiums for such Policies (the "Insurance
Premiums") as the same become due and payable and shall furnish to Mortgagee
evidence of the renewal of each of the Policies with receipts for the payment of
the Insurance Premiums or other evidence of such payment reasonably satisfactory
to Mortgagee (provided, however, that Mortgagor is not required to furnish such
evidence of payment to Mortgagee in the event that such Insurance Premiums have
been paid by Mortgagee pursuant to Section 5 hereof). Subject to the immediately
preceding parenthetical, if Mortgagor does not furnish such evidence and
receipts at least thirty (30) days prior to the expiration of any expiring
Policy, then Mortgagee may procure, but shall not be obligated to procure, such
insurance and pay the Insurance Premiums therefor, and Mortgagor agrees to
reimburse Mortgagee for the cost of such Insurance Premiums promptly on demand.
Within thirty (30) days after request by Mortgagee, Mortgagor shall obtain such
increases in the amounts of coverage required hereunder as may be reasonably
requested by Mortgagee, taking into consideration changes in the value of money
over time, changes in liability laws, changes in prudent customs and practices,
and the like. Mortgagor shall give Mortgagee prompt written notice if Mortgagor
receives from any insurer any written notification or threat of any actions or
proceedings regarding the non-compliance or non-conformity of the Mortgaged
Property with any insurance requirements. For purposes hereof, references to
"Mortgagee" shall also be deemed to include, without limitation, Mortgagee's
successors, assigns or other designees.
(d) Intentionally omitted.
(e) If the Mortgaged Property shall be damaged or destroyed, in
whole or in part, by fire or other casualty (an "Insured Casualty"), the
Mortgagor shall
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give prompt notice thereof to the Mortgagee and, provided Mortgagee makes the
insurance proceeds available to Mortgagor, Mortgagor shall promptly repair the
Mortgaged Property to be at least equal value and of substantially the same
character as prior to such damage, all to be effected in accordance with
applicable law and plans and specifications reasonably approved in advance by
Mortgagee. The expenses incurred by Mortgagee in the adjustment and collection
of insurance proceeds shall become part of the Debt and be secured hereby and
shall be reimbursed by Mortgagor to Mortgagee upon demand.
(f) In case of loss or damages covered by any of the Policies, the
following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed
$500,000, Mortgagor may settle and adjust any claim without the
consent of Mortgagee and agree with the insurance company or
companies on the amount to be paid upon the loss; provided that such
adjustment is carried out in a competent and timely manner. In such
case, Mortgagor is hereby authorized to collect and receipt for any
such insurance proceeds.
(ii) In the event an Insured Casualty shall exceed $500,000,
then and in that event, Mortgagee, with the reasonable approval of
Mortgagor in the absence of an Event of Default, and without the
consent of Mortgagor if any Event of Default has occurred and is
continuing, may settle and adjust any claim without the consent of
Mortgagor and agree with the insurance company or companies on the
amount to be paid on the loss and the proceeds of any such policy
shall be due and payable solely to Mortgagee and held in escrow by
Mortgagee in accordance with the terms of this Mortgage.
(iii) In the event of any Insured Casualty, if (A) the loss is
in an aggregate amount less than twenty percent (20%) of the
original principal balance of the Note, and (B), in the reasonable
judgment of Mortgagee, the Mortgaged Property can be restored within
twelve (12) months after insurance proceeds are made available to an
economic unit not less valuable (including an assessment of the
impact of the termination of any Leases due to such Insured
Casualty) and not less useful than the same was prior to the Insured
Casualty, and after such restoration will adequately secure the
outstanding balance of the Debt, and such restoration can be
completed on or before six (6) months prior to the Maturity Date of
the Loan, and (C) no Event of Default (hereinafter defined) shall
have occurred and be then continuing, then the proceeds of insurance
shall be applied to reimburse Mortgagor for the cost of restoring,
repairing, replacing or rebuilding the Mortgaged Property or part
thereof subject to Insured Casualty, as provided for below; and
Mortgagor hereby covenants and agrees forthwith to commence and
diligently to prosecute such restoring, repairing, replacing or
rebuilding; provided, however, that if such proceeds are so made
available to Mortgagor pursuant to the terms hereof, Mortgagor shall
in any event pay all costs (and if required by
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Mortgagee, Mortgagor shall deposit the total thereof with Mortgagee
in advance) of such restoring, repairing, replacing or rebuilding in
excess of the net proceeds of insurance made available pursuant to
the terms hereof.
(iv) Except as provided above, the proceeds of insurance
collected upon any Insured Casualty shall, at the option of
Mortgagee in its sole discretion, be applied to the payment of the
Debt or applied to reimburse Mortgagor for the cost of restoring,
repairing, replacing or rebuilding the Mortgaged Property or part
thereof subject to the Insured Casualty, in the manner set forth
below. Any such application to the Debt shall not be considered a
voluntary prepayment requiring payment of the the Yield Maintenance
Premium (as such term is defined in the Note).
(v) In the event Mortgagor is entitled to reimbursement out of
insurance proceeds held by Mortgagee, such proceeds shall be
disbursed from time to time upon Mortgagee being furnished with (A)
evidence reasonably satisfactory to it that the restoration, repair,
replacement and rebuilding covered by the disbursement has been
completed in accordance with plans and specifications approved by
Mortgagee, (B) evidence reasonably satisfactory to it of the
estimated cost of completion of the restoration, repair, replacement
and rebuilding, (C) funds, or, at Mortgagee's option, assurances
satisfactory to Mortgagee that such funds are available, sufficient
in addition to the proceeds of insurance to complete the proposed
restoration, repair, replacement and rebuilding, and (D) such
architect's certificates, waivers of lien, contractor's sworn
statements, title insurance endorsements, bonds, plats of survey and
such other evidences of cost, payment and performance as Mortgagee
may reasonably require and approve; and Mortgagee may, in any event,
require that all plans and specifications for such restoration,
repair, replacement and rebuilding be submitted to and approved by
Mortgagee prior to commencement of work. With respect to
disbursements to be made by Mortgagee: (A) no payment made prior to
the final completion of the restoration, repair, replacement and
rebuilding shall exceed ninety percent (90%) of the value of the
work performed from time to time; (B) funds other than proceeds of
insurance shall be disbursed prior to disbursement of such proceeds;
and (C) at all times, the undisbursed balance of such proceeds
remaining in the hands of Mortgagee, together with funds deposited
for that purpose or irrevocably committed to the satisfaction of
Mortgagee by or on behalf of Mortgagor for that purpose, shall be at
least sufficient in the reasonable judgment of Mortgagee to pay for
the cost of completion of the restoration, repair, replacement or
rebuilding, free and clear of all liens or claims for lien and the
costs described in Subsection (vi) below. Any surplus which may
remain out of insurance proceeds held by Mortgagee after payment of
such costs of restoration, repair, replacement or rebuilding shall
at Mortgagee's option be applied to the Debt (such application to
the Debt shall not be considered a voluntary
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prepayment requiring payment of the Yield Maintenance Premium) or
paid to Mortgagor. In no event shall Mortgagee assume any duty or
obligation for the adequacy, form or content of any such plans and
specifications, nor for the performance, quality or workmanship of
any restoration, repair, replacement and rebuilding.
(vi) Notwithstanding anything to the contrary contained
herein, the proceeds of insurance reimbursed to Mortgagor in
accordance with the terms and provisions of this Mortgage shall be
reduced by the reasonable costs (if any) incurred by Mortgagee in
the adjustment and collection thereof and by the reasonable costs
incurred by Mortgagee of paying out such proceeds (including,
without limitation, reasonable attorneys' fees and costs paid to
third parties for inspecting the restoration, repair, replacement
and rebuilding and reviewing the plans and specifications therefor).
4. Payment of Taxes and Other Charges. Subject to the provisions of
Section 5 below, Mortgagor shall pay all taxes, assessments, water rates and
sewer rents, now or hereafter levied or assessed or imposed against the
Mortgaged Property or any part thereof (the "Taxes") and all ground rents,
maintenance charges, other governmental impositions, and other charges,
including without limitation vault charges and license fees for the use of
vaults, chutes and similar areas adjoining the Premises, now or hereafter levied
or assessed or imposed against the Mortgaged Property or any part thereof (the
"Other Charges") as the same become due and payable. Mortgagor will deliver to
Mortgagee, promptly upon Mortgagee's request, evidence satisfactory to Mortgagee
that the Taxes and Other Charges have been so paid or are not then delinquent.
Mortgagor shall not suffer and shall promptly cause to be paid and discharged
any lien or charge whatsoever which may be or become a lien or charge against
the Mortgaged Property, and shall promptly pay for all utility services provided
to the Mortgaged Property. Mortgagor shall furnish to Mortgagee or its designee
receipts for the payment of the Taxes, Other Charges and said utility services
prior to the date the same shall become delinquent (provided, however, that
Mortgagor is not required to furnish such receipts for payment of Taxes in the
event that such Taxes have been paid by Mortgagee pursuant to Section 5 hereof)
5. Tax and Insurance Escrow Fund. Notwithstanding Sections 3 and 4 above,
on the Closing Date, Mortgagor shall make an initial deposit to the Tax and
Insurance Escrow Fund, as hereinafter defined, in an amount which, when added to
the monthly amounts to be deposited as specified below, will be sufficient in
the estimation of Mortgagee to satisfy the next due taxes, assessments,
insurance premiums and other similar charges, plus an additional amount equal to
one (1) monthly installment for each. Beginning on the date the first constant
monthly payment is due under the Note, and on the first day of each calendar
month thereafter, Mortgagor shall, at the option of Mortgagee or its designee,
pay to Mortgagee (a) one-twelfth of an amount which would be sufficient to pay
the Taxes payable, or estimated by Mortgagee to be payable, during the next
ensuing twelve (12) months, and (b) one-twelfth of an amount which would be
11
sufficient to pay the Insurance Premiums due for the renewal of the coverage
afforded by the Policies upon the expiration thereof (said amounts in (a) and
(b) above hereinafter called the "Tax and Insurance Escrow Fund"); provided,
however, that so long as no Event of Default exists and is continuing and funds
on account of Taxes are in all cases deposited into the Tax and Insurance Escrow
Fund to satisfy the next due Taxes not less than thirty (30) days prior to the
date such Taxes are due and payable (without interest or penalty), the Mortgagor
may delay making deposits on those portions of the Taxes for which Mortgagor is
entitled to payment or reimbursements from the anchor tenants at the Mortgaged
Property known as "Publix" and "Walgreens", or any anchor tenants which replace
such anchor tenants under leases approved in writing by Mortgagee covering, in
all cases, substantially all the space occupied by the initial anchor tenant,
until the dates upon which such payments or reimbursements are due and payable
from such tenants under their respective Leases (as currently in effect, or as
renewed or modified without any modification which further extends the time
period for the payment of tax contributions or pass-throughs), but only so long
as such tenants are not in default under their Leases, and further provided (x)
that the foregoing proviso affects only the timing of certain of Mortgagor's
deposits into the Tax and Insurance Fund, and in no event shall Mortgagor be
excused from or allowed to further delay such deposits if such tenants fail or
refuse, for any reason or for no reason, to make any payments under their Leases
when due, on account of Taxes or otherwise, and (y) the permitted delay in the
Mortgagor's deposits hereunder shall be allowed only upon Mortgagor providing a
schedule (which Mortgagor may modify from time to time as appropriate) of the
proposed amount and time of such delayed deposits, and Mortgagee's review and
approval of such schedule, or any modification thereto. Mortgagee may, in its
sole discretion, retain a third party tax consultant to obtain tax certificates
or other evidence or estimates of tax due or to become due or to verify the
payment of taxes and Mortgagor will promptly reimburse Mortgagee for the
reasonable cost (not in excess of $500.00 in the aggregate so long as no Event
of Default exists) of retaining any such third parties or obtaining such
certificates. Any unpaid reimbursements for the aforesaid shall be added to the
Debt. The Tax and Insurance Escrow Fund and the payments of interest or
principal or both, payable pursuant to the Note, shall be added together and
shall be paid as an aggregate sum by Mortgagor to Mortgagee. Mortgagor hereby
pledges to Mortgagee any and all monies now or hereafter deposited in the Tax
and Insurance Escrow Fund as additional security for the payment of the Debt.
Mortgagee will apply the Tax and Insurance Escrow Fund to payments of Taxes and
Insurance Premiums required to be made by Mortgagor pursuant to Sections 3 and 4
hereof. In making any payment relating to the Tax and Insurance Escrow Fund,
Mortgagee may do so according to any bill, statement or estimate procured from
the appropriate public office (with respect to Taxes) or insurer or agent (with
respect to Insurance Premiums), without inquiry into the accuracy of such bill,
statement or estimate or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof. If the amount of the Tax and
Insurance Escrow Fund shall exceed the amounts due for Taxes and Insurance
Premiums pursuant to Sections 3 and 4 hereof, Mortgagee shall, in its
discretion, credit such excess against future payments to be made to the Tax and
Insurance Escrow Fund. In allocating such excess, Mortgagee may deal with the
person shown on the records of Mortgagee to be the owner of the Mortgaged
Property. If at any time Mortgagee determines that the Tax and Insurance Escrow
Fund is
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not or will not be sufficient to pay the items set forth in (a) and (b) above,
Mortgagee shall notify Mortgagor of such determination and Mortgagor shall
increase its monthly payments to Mortgagee by the amount that Mortgagee
estimates is sufficient to make up the deficiency at least thirty (30) days
prior to delinquency of the Taxes and/or expiration of the Policies, as the case
may be. Upon the occurrence of an Event of Default, Mortgagee may apply any sums
then present in the Tax and Insurance Escrow Fund to the payment of the
following items in any order in its sole discretion. Until expended or applied
as above provided, any amounts in the Tax and Insurance Escrow Fund shall
constitute additional security for the Debt. The Tax and Insurance Escrow Fund
shall not constitute a trust fund, shall be held in an interest-bearing account
and may be commingled with other monies held by Mortgagee. Interest earned on
the Tax and Insurance Escrow Fund shall become part of the Tax and Insurance
Escrow Fund, and such income shall be reported under Mortgagor's tax
identification number. Upon payment of the Debt and performance by Mortgagor of
all its obligations under this Mortgage and the other Loan Documents, any
amounts remaining in the Tax and Insurance Escrow Fund shall be promptly
thereafter refunded to Mortgagor.
6. Replacement Reserve Fund. Beginning on the date the first constant
monthly payment is due under the Note, and on the first day of each calendar
month thereafter, Mortgagor shall pay to Mortgagee an amount equal to
one-twelfth of $22,969.00, the amount estimated by Mortgagee in its sole
discretion to be due for replacements and repairs required to be made to the
Mortgaged Property during the calendar year for the replacements and repairs
deemed reasonably necessary by Mortgagee (the "Replacement Reserve Fund").
Mortgagor hereby pledges (and grants a lien and security interest) to Mortgagee
any and all monies now or hereafter deposited in the Replacement Reserve Fund as
additional security for the payment of the Debt. As required in Section 17
below, Mortgagor shall deliver to Mortgagee for Mortgagee's review and approval,
a capital expenditure budget (the "Budget") itemizing the replacements and
capital repairs which are anticipated to be made to the Mortgaged Property
during the next immediately succeeding calendar year. Provided that no Event of
Default shall exist and remain uncured, Mortgagee shall make disbursements from
the Replacement Reserve Fund as requested, in writing, by Mortgagor, and
approved by Mortgagee in its sole discretion, on a monthly basis in increments
of no less than $2,500 upon delivery by Mortgagor of copies of paid invoices (or
with respect to requests in excess of $10,000, unpaid invoices) for the amounts
requested, a certification from Mortgagor stating: (a) the nature and type of
the related replacement or repair, (b) that the related replacement or repair
has been completed in a good and workmanlike manner and (c) that the related
replacement or repair has been paid for in full (or, with respect to requests in
excess of $10,000, will be paid for in full from the requested disbursement)
and, if required by Mortgagee, lien waivers and releases from all parties
furnishing materials and/or services in connection with the requested payment.
Any disbursement by Mortgagee hereunder for a capital item in excess of $10,000
and not already paid for by Mortgagor, shall be made by joint check, payable to
Mortgagor and the applicable contractor, supplier, materialman, mechanic,
subcontractor or other party to whom payment is due in connection with such
capital item. Mortgagee may require an inspection of the Mortgaged Property at
Mortgagor's expense prior to making a
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disbursement in order to verify completion of replacements and repairs for which
reimbursement is sought. The Replacement Reserve Fund is solely for the
protection of Mortgagee and entails no responsibility or obligation on
Mortgagee's part beyond the payment of the costs and expenses described in this
section in accordance with the terms hereof and beyond the allowing of due
credit for the sums actually received. The Replacement Reserve Fund shall be
held in an interest bearing account in Mortgagee's name at a financial
institution selected by Mortgagee in its sole discretion. All earnings or
interest on the Replacement Reserve Fund shall be and become part of such
Replacement Reserve Fund and shall be disbursed as provided in this Section 6.
Upon the occurrence of an Event of Default, Mortgagee may apply any sums then
present in the Replacement Reserve Fund to the payment of the Debt in any order
in its sole discretion. Upon payment of the Debt and performance by Mortgagor of
all its obligations under this Mortgage and the other Loan Documents, any
amounts remaining in the Replacement Reserve Fund shall be promptly thereafter
refunded to Mortgagor. The Replacement Reserve Fund shall not constitute a trust
fund and may be commingled with other monies held by Mortgagee.
7. Condemnation. (a) Mortgagor shall promptly give Mortgagee written
notice of the actual or threatened commencement of any condemnation or eminent
domain proceeding and shall deliver to Mortgagee copies of any and all papers
served in connection with such proceedings. Mortgagee is hereby irrevocably
appointed as Mortgagor's attorney-in-fact, coupled with an interest, with
exclusive power to collect, receive and retain any award or payment for said
condemnation or eminent domain and to make any compromise or settlement in
connection with such proceeding, subject to the provisions of this Mortgage.
Notwithstanding any taking by any public or quasi-public authority through
eminent domain or otherwise (including but not limited to any transfer made in
lieu of or in anticipation of the exercise of such taking), Mortgagor shall
continue to pay the Debt at the time and in the manner provided for its payment
in the Note, in this Mortgage and the other Loan Documents and the Debt shall
not be reduced until any award or payment therefor shall have been actually
received after expenses of collection and applied by Mortgagee to the discharge
of the Debt. Mortgagee shall not be limited to the interest paid on the award by
the condemning authority but shall be entitled to receive out of the award
interest at the rate or rates provided herein and in the Note. Mortgagor shall
cause the award or payment made in any condemnation or eminent domain
proceeding, which is payable to Mortgagor, to be paid directly to Mortgagee.
Mortgagee may apply any such award or payment to the reduction or discharge of
the Debt whether or not then due and payable (such application to be without any
prepayment consideration, except that if an Event of Default, or an event with
notice and/or the passage of time, or both, would constitute an Event of
Default, has occurred, then such application shall be subject to the prepayment
consideration computed in accordance with the Note). If the Mortgaged Property
is sold, through foreclosure or otherwise, prior to the receipt by Mortgagee of
such award or payment, Mortgagee shall have the right, whether or not a
deficiency judgment on the Note shall have been sought, recovered or denied, to
receive said award or payment, or a portion thereof sufficient to pay the Debt.
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(b) Notwithstanding the provisions of Subsection (a) above, in the
event of a condemnation of less than all of the Mortgaged Property where: (i) no
Event of Default shall have occurred and be continuing; (ii) the condemnation
will not, in Mortgagee's sole discretion, result in a material adverse effect to
the use or operation of the Mortgaged Property, Mortgagor's ability to make
payments hereunder, or the operating income from the Mortgaged Property; and
(iii) the amount of any award or payment that is uncontested shall have been
paid to Mortgagee, then Mortgagee and Mortgagor shall jointly make any such
compromise or settlement hereunder, or otherwise adjudicate such claim, and such
award or payment (less amounts payable to Mortgagee for its costs and expenses
incurred in connection therewith) shall be paid by Mortgagee to Mortgagor in the
same manner as provided by Subsection 3(f)(v) above to restore the Mortgaged
Property to an architecturally and functionally compatible condition.
8. Representations and Covenants Concerning Loan. Mortgagor represents,
warrants and covenants as follows:
(a) Mortgagor shall comply with all of the recommendations
concerning the maintenance and repair of the Mortgaged Property which are
contained in the inspection and engineering report which was delivered to
Mortgagee in connection with the origination of the Loan.
(b) In the event Mortgagor decides to engage a third party
management company to manage the Mortgaged Property, Mortgagor agrees to engage
a management company satisfactory to Mortgagee, pursuant to a management
agreement satisfactory to Mortgagee, and to cause such management company to
execute the Acknowledgment of Property Manager in form and substance as executed
by the existing manager of the Mortgaged Property in connection with the Loan,
and to deliver to Mortgagee promptly upon such engagement, a fully-executed copy
of the management agreement, together with the Acknowledgment of Property
Manager signed by such manager.
(c) In the event Mortgagee determines in its sole and reasonable
discretion that the quality of management for the Mortgaged Property has
deteriorated, Mortgagor agrees to engage a management company satisfactory to
Mortgagee within forty-five (45) days after Mortgagor's receipt of written
notice of Mortgagee's determination of the deterioration of the quality of
management, pursuant to a management agreement satisfactory to Mortgagee, and to
cause such management company to execute the Acknowledgment of Property Manager
in form and substance as executed by the existing manager of the Mortgaged
Property in connection with the Loan, and to deliver to Mortgagee promptly upon
such engagement, a fully-executed copy of the management agreement, together
with the Acknowledgment of Property Manager signed by such manager.
(d) Mortgagor has reviewed and is familiar with all opinions of
legal counsel to Mortgagor and any Guarantor or Affiliate (as hereinafter
defined) to be delivered in connection with the Loan, including those respecting
enforceability and authority. None of the assumptions set forth in such opinions
are incorrect.
15
(e) Neither Mortgagor, nor any Guarantor nor any Affiliate is or has
been a debtor, and no property of any of them (including the Mortgaged Property)
is property of the estate, in any voluntary or involuntary case under the
Bankruptcy Code or under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect. No such party and no property of any of them is
or has been under the possession or control of a receiver, trustee or other
custodian. Neither Mortgagor, any Guarantor or any Affiliate has made or will
make any assignment for the benefit of creditors. No such assignment or
bankruptcy or similar case or proceeding is now contemplated.
(f) The representations and warranties contained in the Closing
Certificate executed by Mortgagor in connection with the Note (which certificate
constitutes one of the Loan Documents) are true and correct and Mortgagor shall
observe the covenants contained therein.
9. Single Purpose Entity/Separateness. Mortgagor represents, warrants and
covenants as follows:
(a) Mortgagor has not and shall not own any asset or property other
than (i) the Mortgaged Property, and (ii) incidental personal property necessary
for the ownership or operation of the Mortgaged Property.
(b) Mortgagor has not and shall not engage in any business or
activity other than the acquisition, ownership, management and operation of the
Mortgaged Property and such activities as are necessary, incidental or
appropriate in connection therewith, and Mortgagor will conduct and operate its
business as presently conducted and operated.
(c) Mortgagor has not and shall not enter into or be a party to any
transaction, contract or agreement with any guarantor of the Debt or any part
thereof (a "Guarantor") or any party which is directly or indirectly
controlling, controlled by or under common control with Mortgagor or Guarantor
(an "Affiliate"), except upon terms and conditions that are intrinsically fair
and substantially similar to those that would be available on an arms-length
basis with third parties other than any Guarantor or Affiliate.
(d) Other than debt owed which shall be discharged and paid upon
funding of the loan secured hereby, Mortgagor has not incurred and shall not
incur any indebtedness, secured or unsecured, direct or indirect, absolute or
contingent (including guaranteeing any obligation), other than (i) the Debt,
(ii) trade and operational debt incurred in the ordinary course of business with
trade creditors in connection with owning, operating and maintaining the
Mortgaged Property, in such amounts as are normal and reasonable under the
circumstances, provided such debt is not evidenced by a promissory note or other
security instrument and is not at any time in an aggregate amount in excess of
two percent (2%) of the original loan amount evidenced by the Note, and further
provided that all such trade debts are paid within thirty (30) days after the
same are incurred and (iii) unsecured subordinated loans to Mortgagor (the
"Subordinated Loans", each a "Subordinated Loan") made by Ramco-Gershenson
Properties, L.P., a Delaware limited partnership (the "Partnership"), provided
that such loan or loans are
16
made for the sole purpose of funding, and are used by Mortgagor solely for,
working capital and/or the expansion or relocation of the Walgreens Space and/or
the expansion of the Publix Space and/or otherwise to improve, alter and remodel
the Mortgaged Property and provided that Mortgagee consents to such expansion,
relocation, improvement, alteration or remodeling, as applicable, such consent
not to be unreasonably withheld; provided, that Subordinated Loans shall be
permitted only if and so long as each of the following conditions are satisfied:
(1) the payment terms of each Subordinate Loan shall not require payments to be
made or payments to become due unless and until the Loan (or any refinancing
loan the proceeds of which are used to repay the Loan) is fully paid and
satisfied, except that voluntary payments by Mortgagor from excess cash flow
from the Mortgaged Property may be permitted so long as no (x) Event of Default
or (y) Cash Management Event (as hereinafter defined) has occurred and is
continuing, (2) the aggregate outstanding balance of the Subordinated Loans and
interest accrued and unpaid thereon together with the Debt (the "Total Debt
Amount") shall not exceed 80% of the value of the Mortgaged Property (such value
to be determined at the time each such Subordinated Loan is made and to be
determined based on an appraisal similar to the appraisal obtained at loan
origination and otherwise in form and substance reasonably acceptable to
Mortgagee, such appraisal also to take account of any increase in value created
by any related expansion or remodeling; provided, however, that if the Total
Debt Amount does not exceed 80% of $18,650,000.00, a new appraisal will not be
required) and (3) the Partnership shall, prior to making any Subordinate Loan
advance, execute and deliver to and for the benefit of Mortgagee a subordination
and standstill agreement in the form of Exhibit E attached to that certain
Closing Certificate dated as of the date hereof, executed by Mortgagor for the
benefit of Mortgagee (the "Closing Certificate"), and (4) all reasonable costs
and expenses incurred by Mortgagee in connection with such Subordinated Loans,
including, but not limited to, the review of any and all materials required to
be provided in connection therewith (including Mortgagee's reasonable attorney's
fees and expenses) shall be at the expense of Mortgagor and shall be paid by
Mortgagor to Mortgagee upon demand. No indebtedness other than the Debt may be
secured (senior, subordinate or pari passu) by the Mortgaged Property.
(e) Mortgagor has not made and shall not make any loans or advances
to any third party, nor to Guarantor, any Affiliate or any constituent party of
Mortgagor.
(f) Without intending to modify or diminish any limitations on
recourse benefiting Mortgagor under this Mortgage or the other Loan Documents,
Mortgagor is and will remain solvent and Mortgagor will pay its debts from its
assets as the same shall become due.
(g) Mortgagor has done or caused to be done and shall do all things
necessary, to preserve its existence, and Mortgagor will not, nor will Mortgagor
permit Guarantor to amend, modify or otherwise change the partnership
certificate, partnership agreement, articles of incorporation and bylaws,
certificate of formation, operating agreement, trust or other organizational
documents of Mortgagor or Guarantor in a manner which would adversely affect
Mortgagor's existence as a single-purpose entity, without the prior written
consent of Mortgagee.
17
(h) Mortgagor has maintained and shall maintain financial
statements, accounting records, books and records, bank accounts and other
entity documents separate from those of its Affiliates and any constituent party
of Mortgagor or any other person or entity, and Mortgagor has filed and shall
file its own tax returns. Mortgagor has maintained and shall maintain its books,
records, resolutions and agreements as official records.
(i) Mortgagor has been and will be, and at all times will hold
itself out to the public as, a legal entity separate and distinct from any other
entity (including any Affiliate, any constituent party of Mortgagor or any
Guarantor), shall correct any known misunderstanding regarding its status as a
separate entity, shall conduct business in its own name, shall not identify
itself or any of its Affiliates as a division or part of the other and shall
maintain and utilize separate stationery, invoices and checks. Mortgagor has
allocated and shall allocate fairly and reasonably any overhead for shared
office space.
(j) Mortgagor has preserved and kept and shall preserve and keep in
full force and effect its existence, good standing and qualification to do
business in the state in which the Mortgaged Property is located and Mortgagor
has observed and will observe all partnership, corporate or limited liability
company formalities, as applicable.
(k) Mortgagor has maintained and shall maintain adequate capital and
a sufficient number of employees, if any, for the normal obligations reasonably
foreseeable in a business of its size and character and in light of its
contemplated business operations. Mortgagor will pay the salaries of its own
employees.
(l) Neither Mortgagor nor any constituent party of Mortgagor has or
shall seek or consent to the dissolution or winding up, in whole or in part, of
Mortgagor, nor will Mortgagor merge with or be consolidated into any other
entity or acquire by purchase or otherwise all or substantially all of the
business assets of, or any stock of beneficial ownership of, any entity.
(m) Mortgagor has not and shall not commingle the funds and other
assets of Mortgagor with those of any Affiliate, any Guarantor, any constituent
party of Mortgagor or any other person, and Mortgagor will pay its own
liabilities out of its own funds and assets.
(n) Mortgagor has maintained and shall maintain its assets in such a
manner that it will not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any constituent party of Mortgagor,
Affiliate, Guarantor or any other person.
(o) Mortgagor has not and shall not assume, guarantee, become
obligated for or hold itself out to be responsible for the debts or obligations
of any other person (provided, that the foregoing shall not prevent Mortgagor
from being and holding itself responsible for expenses incurred or obligations
undertaken by the property manager of the Mortgaged Property in respect of its
duties regarding the Mortgaged Property).
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(p) Mortgagor shall obtain and maintain in full force and effect,
and abide by and satisfy the material terms and conditions of, all material
permits, licenses, registrations and other authorizations with or granted by any
governmental authorities that may be required from time to time with respect to
the performance of its obligations under this Mortgage.
(q) Mortgagor does not and shall not own any subsidiary, or make any
investment in any person or entity.
(r) Mortgagor has not and shall not without the unanimous consent of
all its general partners, directors or members, as applicable, file or consent
to the filing of any petition, either voluntary or involuntary, to take
advantage of any applicable insolvency, bankruptcy, liquidation or
reorganization statute, or make an assignment for the benefit of creditors.
(s) If Mortgagor is a limited partnership with more than one general
partner, its limited partnership agreement requires the remaining partners to
continue the partnership as long as one solvent general partner exists.
(t) If Mortgagor is a limited partnership or a limited liability
company, each general partner or managing member (each, an "SPC Party") shall be
a corporation or a limited liability company whose sole asset is its interest in
Mortgagor and each such SPC Party will at all times comply, and will cause
Mortgagor to comply, with each of the representations, warranties, and covenants
contained in this Section 9 as if such representation, warranty or covenant was
made directly by such SPC Party. The articles of incorporation and the bylaws,
or the articles of formation and the operating agreement, as may be applicable,
of each such SPC Party shall require that the directors or managers of such SPC
Party consider the interests of the creditors of such SPC Party in connection
with all corporate decisions and actions.
10. Maintenance of Mortgaged Property. Mortgagor shall cause the Mortgaged
Property to be operated and maintained in a good and safe condition and repair
and in keeping with the condition and repair of properties of a similar use,
value, age, nature and construction. Mortgagor shall not use, maintain or
operate the Mortgaged Property in any manner which constitutes a public or
private nuisance or which makes void, voidable, or cancelable, or increases the
premium of, any insurance then in force with respect thereto. The Improvements
and the Equipment shall not be removed, demolished or materially altered (except
for normal replacement of the Equipment) without the consent of Mortgagee.
Mortgagor shall promptly comply with all laws, orders and ordinances affecting
the Mortgaged Property, or the use thereof. Mortgagor shall promptly repair,
replace or rebuild any part of the Mortgaged Property which may be destroyed by
any casualty, or become damaged, worn or dilapidated or which may be affected by
any proceeding of the character referred to in Section 7 hereof and shall
complete and pay for any structure at any time in the process of construction or
repair on the Premises.
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11. Use of Mortgaged Property. Mortgagor shall not initiate, join in,
acquiesce in, or consent to any change in any private restrictive covenant,
zoning law, land use designation or other public or private restriction,
limiting or defining the uses which may be made of the Mortgaged Property or any
part thereof, nor shall Mortgagor initiate, join in, acquiesce in, or consent to
any land use change, zoning change or zoning matter affecting the Mortgaged
Property. If under applicable zoning provisions the use of all or any portion of
the Mortgaged Property is or shall become a nonconforming use, Mortgagor will
not cause or permit such nonconforming use to be discontinued or abandoned
without the express written consent of Mortgagee. Mortgagor shall not permit or
suffer to occur any waste on or to the Mortgaged Property or to any portion
thereof and shall not take any steps whatsoever to convert the Mortgaged
Property, or any portion thereof, to a condominium or cooperative form of
management. Mortgagor will not install or permit to be installed on the Premises
any underground storage tank or above-ground storage tank without the written
consent of Mortgagee.
12. Transfer or Encumbrance of the Mortgaged Property. (a) Mortgagor
acknowledges that Mortgagee will continue to rely on Mortgagor's ownership of
the Mortgaged Property as a means of maintaining the value of the Mortgaged
Property as security for repayment of the Debt. Mortgagor acknowledges that
Mortgagee has a valid interest in maintaining the value of the Mortgaged
Property so as to ensure that, should Mortgagor default in the repayment of the
Debt, Mortgagee can recover the Debt by a sale of the Mortgaged Property.
Subject to the provisions of Section 12(b) below, without the prior written
consent of Mortgagee:
(i) neither Mortgagor nor any other Person shall, directly or
indirectly, voluntarily or involuntarily, by operation of law or
otherwise, sell, transfer, convey, mortgage, pledge, or assign any
interest in, or encumber, alienate, grant a Lien in or against, or grant
or enter into any easement, covenant or other agreement granting rights in
or restricting the use or development of, (A) the Mortgaged Property or
any part thereof, or (B) any partnership interest, membership interest,
shares of stock, beneficial interest or any other ownership interest (in
whole or in part) in Mortgagor or in any partner, member, shareholder,
beneficiary or other direct or indirect holder or any interest therein,
through each tier of ownership with the intention that the foregoing
restrictions shall not be avoided by the use of multiple tiers of
ownership of direct or indirect interests in Mortgagor; and
(ii) no new partner, member, shareholder, beneficiary or other legal
or equitable owner shall be admitted to or created in Mortgagor or in any
partner, member, shareholder, beneficiary or other direct or indirect
holder of any interest therein, through each tier of ownership with the
intention that the foregoing restrictions shall not be avoided by the use
of multiple tiers of ownership of direct or indirect interests in
Mortgagor, (nor shall any existing general partner or member or
controlling limited partner withdraw from Mortgagor);
(iii) there shall be permitted no change in the organizational
documents of, nor any withdrawal, resignation, removal or other change of
status on the part
20
of any partner, member, officer, director, manager or other Person from or
with respect to his, her or its position of authority or control in, any
of Mortgagor or any partner, member, shareholder, beneficiary or other
legal or equitable owner of Mortgagor, or any partner, member,
shareholder, beneficiary or other direct or indirect holder of any
interest therein (through each tier of ownership with the intention that
these restrictions shall not be avoided by the use of multiple tiers of
ownership of direct or indirect interests in Mortgagor), if any such
occurrence shall result in a change in control of the Mortgaged Property,
Mortgagor or Mortgagor's affairs.
As used in this Section 12, "transfer" shall include, without limitation,
(1) an installment sales agreement wherein Mortgagor agrees to sell the
Mortgaged Property or any part thereof for a price to be paid in installments;
and (ii) an agreement by Mortgagor leasing all or a substantial part of the
Mortgaged Property for other than actual occupancy by a space tenant thereunder
or a sale, assignment or other transfer of, or the grant of a security interest
in, Mortgagor's right, title and interest in and to any Leases or any Rents.
(b) Notwithstanding the foregoing, the following shall not
constitute a violation of the provisions of Section 12(a) above: (A) the leasing
of individual units within the Mortgaged Property so long as Mortgagor complies
with the provisions of the Loan Documents relating to such leasing activity; (B)
a sale or other disposition of obsolete or worn-out personal property which is
contemporaneously replaced by comparable personal property of equal or greater
value which is free and clear of liens, encumbrances and security interests
other than those created by the Loan Documents; (C) the grant of an easement, if
prior to the granting of the easement Mortgagor causes to be submitted to
Mortgagee all information required by Mortgagee to evaluate the easement, and if
Mortgagee determines that the easement will not materially affect the operation
of the Mortgaged Property or Mortgagee's interest in the Mortgaged Property and
Mortgagor pays to Mortgagee, on demand, all cost and expense incurred by
Mortgagee in connection with reviewing Mortgagor's request; (D) transfers of
non-managing membership interests in Mortgagor, or of indirect interests in the
non-managing members in Mortgagor, provided, that (1) following any such
transfer Ramco-Gershenson Properties, L.P., a Delaware limited partnership
("RGPLP"), continues to own, directly or indirectly, at least a 25% beneficial
interest in Mortgagor and continues to control Mortgagor, either directly or
indirectly through subsidiary entities, (2) Ramco-Gershenson Properties Trust, a
Maryland real estate investment trust (the "REIT"), remains the sole general
partner of RGPLP and continues to maintain not less than a 50% partnership
interest in RGPLP, and (3) if such transfer or series of transfers would result
in (a) a transfer in the aggregate of more than 75% of the direct or indirect
interests in Mortgagor as of the date hereof or (b) the proposed transferee,
together with his, her or its Affiliates and immediate family members, owning in
the aggregate, directly or indirectly (whether by means of beneficial ownership
or ownership interests in entities which in turn directly or indirectly, through
multiple ownership tiers or otherwise, own interests in Mortgagor or otherwise),
more than 75% of the ownership or beneficial ownership interest in Mortgagor
(unless such Transferee is RGLP or a subsidiary thereof), then such transfer or
series of transfers shall require the consent of Mortgagee and, at the sole
option of Mortgagee, recommendations
21
in writing from the Rating Agencies (as defined hereinafter) to the effect that
such transfer will not result in a re-qualification, reduction or withdrawal of
any rating initially assigned or to be assigned in a Secondary Market
Transaction or (E) the merger of REIT with another publicly traded real estate
investment trust so long as the newly-formed entity remains the sole general
partner of RGPLP and continues to maintain not less than a 50% partnership
interest in RGPLP.
(c) The occurrence of any of the foregoing transfers or other
occurrences described in the foregoing Section 12(a) shall, unless permitted
under Section 12(b) above or otherwise approved in writing by Mortgagee,
constitute an Event of Default (as defined below) hereunder, regardless of
whether any such transfer or occurrence was caused or instituted by Mortgagor or
any other Person, whereupon Mortgagee at its option, without being required to
demonstrate any actual impairment of its security or any increased risk of
default hereunder, declare the Debt immediately due and payable. This provision
shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge
or transfer of the Mortgaged Property or other occurrence described in Section
12(a) above (unless permitted under Section 12(b) above), regardless of whether
voluntary or not, or whether or not Mortgagee has consented to any previous
sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property or other occurrence described in Section 12(a) above.
(d) Mortgagor agrees to bear and shall pay or reimburse Mortgagee on
demand for all reasonable expenses (including, without limitation, reasonable
attorneys' fees and disbursements, title search costs and title insurance
endorsement premiums) incurred by Mortgagee in connection with the review,
approval and documentation of any sale, conveyance, alienation, mortgage,
encumbrance, pledge, transfer or other transaction or event described in Section
12(a) above. In addition, prior to the effectiveness of any direct or indirect
transfer of the Mortgaged Property (including any transfer of the direct or
indirect ownership interests in Mortgagor, other than as permitted under Section
12(b) above), Mortgagee shall receive an assumption fee equal to one percent
(1%) of the then unpaid principal balance of the Note, together with any review
fee required by Mortgagee; provided, however, with respect to the one-time sale
or transfer of the Mortgaged Property described in Section 12(f) below,
Mortgagee shall not be obligated to pay an assumption fee.
(e) Mortgagee's consent to one sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property or any part
thereof or any other transaction or event described in Section 12(a) above shall
not be deemed to be a waiver of Mortgagee's right to require such consent to any
future occurrence of same. Any attempted or purported sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property
or of any direct or indirect interest in Mortgagor, and any other transfer
described in Section 12(a) above, if made in contravention of this Section 12,
shall be null and void and of no force and effect.
(f) Notwithstanding the foregoing provisions of Section 12(a) above,
a one-time sale or transfer of the Mortgaged Property will be permitted,
provided that:
22
(i) no Event of Default or event which with the giving of
notice or the passage of time would constitute an Event of Default
shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be either
(A) wholly owned by RGPLP or shall be an affiliate of RGPLP in which
RGPLP shall own, directly or indirectly, at least a 25% beneficial
ownership and economic interest, or (B) a reputable entity or person
of good character, creditworthy, with sufficient financial worth
considering the obligations assumed and undertaken, which Transferee
and its property manager shall have sufficient experience in the
ownership and management of properties similar to the Mortgaged
Property, as evidenced by financial statements, resumes and other
information reasonably requested by Mortgagee (and Mortgagee
reserves the right to approve the Transferee without approving the
substitution of the property manager);
(iii) the Transferee shall have executed and delivered to
Mortgagee an assumption agreement in form and substance acceptable
to Mortgagee, evidencing such Transferee's agreement to abide and be
bound by the terms of the Note, this Mortgage and the other Loan
Documents together with such legal opinions and title insurance
endorsements as may be reasonably requested by Mortgagee;
(iv) either Ramco-Gershenson Properties, L.P., a Delaware
limited partnership, shall have reaffirmed its obligations under the
Guaranty with respect to the transfer of the Mortgaged Property to
Transferee or replacement guarantor(s), satisfactory to Mortgagee in
Mortgagee's sole discretion, shall have executed a new guaranty on
Mortgagee's then current form; and
(v) Mortgagor shall have paid and Mortgagee shall have
received the payments, fees, and reimbursements required under
Section 12(d) hereof, provided that if the Transferee is wholly
owned by RGPLP or shall be an affiliate of RGPLP in which RGPLP
shall own, directly or indirectly, at least a 25% beneficial
ownership and economic interest, the 1% assumption fee shall be
waived.
(g) Upon any sale or transfer and assumption approved by Mortgagee
with replacement guarantors approved by Mortgagee and Mortgagee's determination
that no actual pending or threatened actions or claims then exist against
Mortgagee, Mortgagor or the Mortgaged Property, Mortgagor and any original
guarantors shall be released from liability under the Note and Guaranty (except
for indemnification obligations pertaining to occurrences prior to Mortgagor's
sale or transfer of its interest in the Mortgaged Property).
13. Estoppel Certificates and No Default Affidavits. (a) After request by
Mortgagee, Mortgagor shall within ten (10) days furnish Mortgagee with a
statement,
23
duly acknowledged and certified, setting forth (i) the amount of the original
principal amount of the Note, (ii) the unpaid principal amount of the Note,
(iii) the rate of interest of the Note, (iv) the date installments of interest
and/or principal were last paid, (v) any offsets or defenses to the payment of
the Debt, if any, and (vi) that the Note, this Mortgage and the other Loan
Documents are valid, legal and binding obligations and have not been modified or
if modified, giving particulars of such modification.
(b) After request by Mortgagee, Mortgagor shall within ten (10) days
furnish Mortgagee with a certificate reaffirming all representations and
warranties of Mortgagor set forth herein and in the other Loan Documents as of
the date requested by Mortgagee or, to the extent of any changes to any such
representations and warranties, so stating such changes.
(c) If the Mortgaged Property includes commercial property,
Mortgagor shall deliver to Mortgagee upon request, tenant estoppel certificates
from each commercial tenant at the Mortgaged Property in form and substance
reasonably satisfactory to Mortgagee provided that Mortgagor shall not be
required to deliver such certificates more frequently than one (1) time in any
calendar year.
14. Taxes on Security; Documentary Stamps; Intangibles Tax. (a) Mortgagor
shall pay all taxes, charges, filing, registration and recording fees, excises
and levies payable with respect to the Note or the liens created or secured by
the Loan Documents, other than income, franchise and doing business taxes
imposed on Mortgagee. If there shall be enacted any law (a) deducting the Loan
from the value of the Mortgaged Property for the purpose of taxation, (b)
affecting any lien on the Mortgaged Property, or (c) changing existing laws of
taxation of mortgages, deeds of trust, security deeds, or debts secured by real
property, or changing the manner of collecting any such taxes, Mortgagor shall
promptly pay to Mortgagee, on demand, all taxes, costs and charges for which
Mortgagee is or may be liable as a result thereof; however, if such payment
would be prohibited by law or would render the Loan usurious, then instead of
collecting such payment, Mortgagee may declare all amounts owing under the Loan
Documents to be immediately due and payable. No prepayment consideration shall
be imposed on any such payment.
(b) If at any time the United States of America, any State thereof or any
subdivision of any such State shall require revenue or other stamps to be
affixed to the Note or this Mortgage, or impose any other tax or charge on the
same, Mortgagor will pay for the same, with interest and penalties thereon, if
any. Mortgagor hereby agrees that, in the event that it is determined that
additional documentary stamp tax or intangible tax is due hereon or any mortgage
or promissory note executed in connection herewith (including, without
limitation, the Note), Mortgagor shall indemnify and hold harmless Mortgagee for
all such documentary stamp tax and/or intangible tax, including all penalties
and interest assessed or charged in connection therewith. Mortgagor shall pay
same within ten (10) days after demand of payment from Mortgagee and the payment
of such sums shall be secured by this Mortgage and such sums shall bear interest
at the Default Rate (as defined in the Note) until paid in full.
24
(c) Mortgagor shall hold harmless and indemnify Mortgagee, its
successors and assigns, against any liability incurred by reason of the
imposition of any tax on the making and recording of this Mortgage.
15. No Credits on Account of the Debt. Mortgagor will not claim or demand
or be entitled to any credit or credits on account of the Debt for any part of
the Taxes or Other Charges assessed against the Mortgaged Property, or any part
thereof, and no deduction shall otherwise be made or claimed from the assessed
value of the Mortgaged Property, or any part thereof, for real estate tax
purposes by reason of this Mortgage or the Debt. In the event such claim, credit
or deduction shall be required by law, Mortgagee shall have the option, by
written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
16. Controlling Agreement. It is expressly stipulated and agreed to be the
intent of Mortgagor and Mortgagee at all times to comply with applicable state
law or applicable United States federal law (to the extent that it permits
Mortgagee to contract for, charge, take, reserve, or receive a greater amount of
interest than under state law) and that this section shall control every other
covenant and agreement in this Mortgage and the other Loan Documents. If the
applicable law (state or federal) is ever judicially interpreted so as to render
usurious any amount called for under the Note or under any of the other Loan
Documents, or contracted for, charged, taken, reserved, or received with respect
to the Debt, or if Mortgagee's exercise of the option to accelerate the maturity
of the Note, or if any prepayment by Mortgagor results in Mortgagor having paid
any interest in excess of that permitted by applicable law, then it is
Mortgagor's and Mortgagee's express intent that all excess amounts theretofore
collected by Mortgagee shall be credited on the principal balance of the Note
and all other Debt (or, if the Note and all other Debt have been or would
thereby be paid in full, refunded to Mortgagor), and the provisions of the Note
and the other Loan Documents immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without the necessity
of the execution of any new documents, so as to comply with the applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder or thereunder. All sums paid or agreed to be paid to Mortgagee for the
use, forbearance, or detention of the Debt shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of the Debt until payment in full so that the rate or amount of
interest on account of the Debt does not exceed the maximum rate permitted under
applicable law from time to time in effect and applicable to the Debt for so
long as the Debt is outstanding. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Mortgagee to accelerate the maturity of any interest that has not accrued at
the time of such acceleration or to collect unearned interest at the time of
such acceleration.
17. Financial Statements. (a) The financial statements heretofore
furnished to Mortgagee are, as of the dates specified therein, complete and
correct and fairly present the financial condition of Mortgagor and any other
persons or entities that are the subject of such financial statements, and are
prepared in accordance with generally accepted
25
accounting principles in the United States of America consistently applied (or
such other accounting basis reasonably acceptable to Mortgagee). Mortgagor does
not have any contingent liabilities, liabilities for taxes, unusual forward or
long-term commitments or unrealized or anticipated losses from any unfavorable
commitments that are known to Mortgagor and reasonably likely to have a
materially adverse effect on the Mortgaged Property or the operation thereof for
its current use, except as referred to or reflected in said financial
statements. Since the date of such financial statements, there has been no
materially adverse change in the financial condition, operation or business of
Mortgagor or any other persons or entities that are the subject of such
financial statements from that set forth in said financial statements.
(b) Mortgagor will maintain full and accurate books of accounts and
other records reflecting the results of the operations of the Mortgaged Property
and will furnish to Mortgagee the following items, each certified by Mortgagor
as being true and correct and presented in such format as Mortgagee or its
designee may request, as follows:
(i) Until the earlier to occur of (A) eighteen (18) months
following the date hereof, or (B) a Secondary Market Transaction
(hereinafter defined), Mortgagor shall furnish monthly each of the
items listed in subsection (ii)(A), (ii)(B) and (ii) (C) below, but
dated as of the last day of each such month (collectively, the
"Pre-Securitization Financials") within twenty (20) days after the
end of such month.
(ii) On or before fifty (50) days after the end of each
calendar quarter: (A) a written statement (rent roll) dated as of
the last day of each such calendar quarter identifying each of the
Leases by the term, renewal options (including rental base), space
occupied, rental and other charges required to be paid, security
deposit paid, real estate taxes paid by tenants, common area charges
paid by tenants, tenant pass-throughs, any rental concessions or
special provisions or inducements, tenant sales (if the tenant is
required to report sales to Mortgagor), rent delinquencies, rent
escalations, amounts taken in settlement of outstanding arrears,
collections of rent for more than one (1) month in advance,
continuous operation obligations, cancellation or "go dark"
provisions, "non-competition" provisions (restricting Mortgagor or
any tenant), any defaults thereunder and any other information
reasonably required by Mortgagee; (B) monthly and year to date
operating statements prepared for each calendar month during each
such calendar quarter, each of which shall include an itemization of
actual (not pro forma) capital expenditures during the applicable
period; (C) a property balance sheet for such month; and (D) a
comparison of the budgeted income and expenses with the actual
income and expenses for such month and year to date, together with a
detailed explanation of any variances between budgeted and actual
amounts that are in excess of the greater of: (1) $1,000, or (2)
five percent (5%) or more for each line item therein.
26
(iii) Within one hundred (100) days following the end of each
calendar year: (A) a written statement (rent roll) dated as of the
last day of each such calendar year identifying each of the Leases
by the term, space occupied, rental required to be paid, security
deposit paid, any rental concessions, and identifying any defaults
or payment delinquencies thereunder; (B) annual operating statements
prepared for such calendar year, which shall include an itemization
of actual (not pro forma) capital expenditures during the applicable
period, total revenues received, total expenses incurred, total debt
service and total cash flow; (C) an annual balance sheet and profit
and loss statement of Mortgagor, in the form required by Mortgagee,
prepared and certified by Mortgagor, or if available, audited
financial statements prepared by an independent certified public
accountant acceptable to Mortgagee; and (D) any financial statements
required under the Guaranty.
(iv) On or before December 1 of the year preceding the year to
which such budget pertains, Mortgagor shall furnish an annual budget
of the operation of the Mortgaged Property (the "Annual Budget"), in
form satisfactory to Mortgagee, setting forth in reasonable detail
budgeted monthly operating income and monthly operating capital and
other expenses for the Mortgaged Property. Each Annual Budget shall
contain, among other things, limitations on management fees, third
party service fees and other expenses as Mortgagee may reasonably
determine. In the event a Mortgagor is required to enter into a Cash
Management Agreement (as defined hereinafter), Mortgagee shall
thereafter have the right to approve each Annual Budget (including
the Annual Budget for the current year), and each such Annual Budget
approved by Mortgagee in accordance with the terms hereof shall
hereinafter be referred to as an "Approved Annual Budget." Until
such time that Mortgagee approves a proposed Annual Budget, the most
recently Approved Annual Budget shall apply; provided, however, that
such Approved Annual Budget shall be adjusted to reflect actual
increases in real estate taxes, insurance premiums and utilities
expenses.
(c) In the event that Mortgagor fails to provide to Mortgagee or its
designee any of the financial statements, certificates, reports or information
(the "Required Records") required by this Section 17 within thirty (30) days
after the date upon which such Required Record is due, Mortgagor shall pay to
Mortgagee, at Mortgagee's option and in its sole discretion, an amount equal to
$2,500 if the Required Records are not so delivered; provided that, Mortgagee
has given at least ten (10) days prior written notice to Mortgagor of such
failure by Mortgagor to timely submit the applicable Required Records.
18. Performance of Other Agreements. Mortgagor shall duly and punctually
observe and perform each and every term, provision, condition, and covenant to
be observed or performed by Mortgagor pursuant to the terms of any agreement or
recorded
27
instrument (including all instruments comprising the Permitted Encumbrances)
affecting or pertaining to the Mortgaged Property, and will not suffer or permit
any default or event of default (giving effect to any applicable notice
requirements and cure periods) to exist under any of the foregoing.
19. Further Acts, Etc. (a) Mortgagor will, at the cost of Mortgagor, and
without expense to Mortgagee, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, Uniform Commercial Code financing statements or continuation
statements, transfers and assurances as Mortgagee shall, from time to time,
require, for the better assuring, conveying, assigning, transferring, and
confirming unto Mortgagee the property and rights hereby mortgaged, given,
granted, bargained, sold, alienated, infeft, conveyed, confirmed, pledged,
assigned and hypothecated or intended now or hereafter so to be, or which
Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee,
or for carrying out the intention or facilitating the performance of the terms
of this Mortgage or for filing, registering or recording this Mortgage or for
facilitating the sale of the Loan and the Loan Documents as described in
Subsection 19(b) below. Mortgagor, on demand, will execute and deliver and
hereby authorizes Mortgagee to execute in the name of Mortgagor or without the
signature of Mortgagor to the extent Mortgagee may lawfully do so, one or more
financing statements, chattel mortgages or other instruments, to evidence more
effectively the security interest of Mortgagee in the Mortgaged Property. Upon
foreclosure, the appointment of a receiver or any other relevant action,
Mortgagor will, at the cost of Mortgagor and without expense to Mortgagee,
cooperate fully and completely to effect the assignment or transfer of any
license, permit, agreement or any other right necessary or useful to the
operation of the Mortgaged Property. Mortgagor grants to Mortgagee an
irrevocable power of attorney coupled with an interest for the purpose of
exercising and perfecting any and all rights and remedies available to Mortgagee
at law and in equity, including, without limitation, such rights and remedies
available to Mortgagee pursuant to this section.
(b) Mortgagor acknowledges that Mortgagee and its successors and
assigns may (i) sell this Mortgage, the Note and other Loan Documents to one or
more investors as a whole loan, (ii) participate the Loan secured by this
Mortgage to one or more investors, (iii) deposit this Mortgage, the Note and
other Loan Documents with a trust, which trust may sell certificates to
investors evidencing an ownership interest in the trust assets, or (iv)
otherwise sell the Loan or interest therein to investors (the transactions
referred to in clauses (i) through (iv) are hereinafter each referred to as a
"Secondary Market Transaction"). Mortgagor shall cooperate with Mortgagee in
effecting any such Secondary Market Transaction and shall cooperate to implement
all requirements imposed by any Rating Agency involved in any Secondary Market
Transaction, including but not limited to, (a) providing Mortgagee an estoppel
certificate and such information, legal opinions and documents relating to
Mortgagor, Guarantor, if any, the Mortgaged Property and any tenants of the
Mortgaged Property as Mortgagee or the Rating Agencies may reasonably request in
connection with such Secondary Market Transaction, (b) amending the Loan
Documents and organizational documents of Mortgagor, and updating and/or
restating officer's certificates, title insurance and other closing items, as
may be
28
required by the Rating Agencies, (c) participating in bank, investors and Rating
Agencies' meetings if requested by Mortgagee, (d) upon Mortgagee's request
amending the Loan Documents (and updating and/or restating officer's
certificates, title insurance and other closing items in connection therewith)
to divide the Loan into two or more separate or component notes, which notes may
be included in separate transactions (and thus may have separate REMIC "start up
dates") and have different interest rates and amortization schedules (but with
aggregated financial terms which are equivalent to that of the Loan prior to
such separation) and (e) reviewing the offering documents relating to any
Secondary Market Transaction to ensure that all information concerning
Mortgagor, the Mortgaged Property, and the Loan is correct, and certifying to
the accuracy thereof. Mortgagee shall be permitted to share all such information
with the investment banking firms, Rating Agencies, accounting firms, law firms
and other third-party advisory firms and investors involved with the Loan and
the Loan Documents or the applicable Secondary Market Transaction. Mortgagee and
all of the aforesaid third-party advisors and professional firms shall be
entitled to rely on the information supplied by, or on behalf of, Mortgagor and
Mortgagor indemnifies Mortgagee, its successors, assigns and their respective
shareholders, employees, directors, officers, and agents (each an "Indemnified
Party" and, collectively, the "Indemnified Parties") as to any losses, claims,
damages or liabilities that arise out of or are based upon any untrue statement
of any material fact contained in such information or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated in such information or necessary in order to make the statements in
such information, or in light of the circumstances under which they were made,
not misleading. Mortgagee may publicize the existence of the Loan in connection
with its marketing for a Secondary Market Transaction or otherwise as part of
its business development.
20. Recording of Mortgage, Etc. Upon the execution and delivery of this
Mortgage and thereafter, from time to time, Mortgagor will cause this Mortgage,
and any security instrument creating a lien or security interest or evidencing
the lien hereof upon the Mortgaged Property and each instrument of further
assurance to be filed, registered or recorded in such manner and in such places
as may be required by any present or future law in order to publish notice of
and fully to protect the lien or security interest hereof upon, and the interest
of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
registration or recording fees, and all expenses incident to the preparation,
execution and acknowledgment of this Mortgage, any mortgage supplemental hereto,
any security instrument with respect to the Mortgaged Property and any
instrument of further assurance, and all federal, state, county and municipal,
taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged Property or any
instrument of further assurance, except where prohibited by law so to do.
21. Reporting Requirements. Mortgagor agrees to give prompt notice to
Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the death,
insolvency or bankruptcy filing of any Guarantor.
29
22. Events of Default. Subject to the notice and cure periods in Section
23, the term "Event of Default" as used herein shall mean the occurrence or
happening, at any time and from time to time, of any one or more of the
following:
(a) if any portion of the Debt is not paid within five (5) days from
the date when the same is due;
(b) if the Policies are not kept in full force and effect, or if the
Policies are not delivered to Mortgagee upon request;
(c) if Mortgagor fails to timely provide any financial or accounting
report;
(d) if Mortgagor suffers or permits the transfer or encumbrance of
any portion of the Mortgaged Property in violation of Section 12 of this
Mortgage, or any other violation of Section 12(a), or any violation of Section 9
of this Mortgage;
(e) if any representation or warranty of Mortgagor, or of any
Guarantor, made herein or in any other Loan Document or in any certificate,
report, financial statement or other instrument or document furnished to
Mortgagee shall have been false or misleading in any material respect when made;
(f) if Mortgagor or any Guarantor shall make an assignment for the
benefit of creditors or if Mortgagor shall generally not be paying its debts as
they become due;
(g) if a receiver, liquidator or trustee of Mortgagor or of any
Guarantor shall be appointed or if Mortgagor or any Guarantor shall be
adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by or against, consented to, or acquiesced
in by, Mortgagor or any Guarantor or if any proceeding for the dissolution or
liquidation of Mortgagor or of any Guarantor shall be instituted; however, if
such appointment, adjudication, petition or proceeding was involuntary and not
consented to by Mortgagor or such Guarantor, upon the same not being discharged,
stayed or dismissed within sixty (60) days;
(h) if Mortgagor shall be in default under any other mortgage or
security agreement covering any part of the Mortgaged Property and otherwise
permitted hereunder;
(i) subject to Mortgagor's right to contest as provided herein, if
the Mortgaged Property becomes subject to any mechanic's, materialman's,
mortgage or other lien except a lien for local real estate taxes and assessments
not then due and payable;
(j) if Mortgagor fails to cure properly any violations of laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property;
30
(k) except as permitted in this Mortgage, the alteration,
improvement, demolition or removal of any of the Improvements without the prior
consent of Mortgagee;
(l) damage to the Mortgaged Property in any manner which is not
covered by insurance solely as a result of Mortgagor's failure to maintain
insurance required in accordance with this Mortgage;
(m) if Mortgagor shall continue to be in default under any term,
covenant, or provision of the Note or any of the other Loan Documents, beyond
applicable cure periods contained therein;
(n) if without Mortgagee's prior consent (i) the manager of the
Mortgaged Property is transferred or is removed by Mortgagor, or (ii) the
manager for the Mortgaged Property approved by Mortgagee resigns and is not
replaced within sixty (60) days by Mortgagor with a manager satisfactory to
Mortgagee, (iii) the manager ceases to be controlled by REIT, (iv) there is any
material change in any management agreement of the Mortgaged Property, or (v)
the manager engaged by Mortgagor and approved by Mortgagee fails to execute the
Acknowledgment of Property Manager;
(o) entry of a judgment in excess of $100,000, unless insured
against and paid within thirty (30) days of the expiration of any appeal rights
or the dismissal or final adjudication of appeals against Mortgagor;
(p) the Mortgage shall cease to constitute a first-priority lien on
the Mortgaged Property (other than in accordance with its terms);
(q) seizure or forfeiture of the Mortgaged Property, or any portion
thereof, or Mortgagor's interest therein, resulting from criminal wrongdoing or
other unlawful action of Mortgagor or its affiliates under any federal, state or
local law;
(r) if, without Mortgagee's prior written consent, Mortgagor ceases
to continuously operate the Mortgaged Property or any material portion thereof
as the same use that is currently permitted under applicable zoning or other
local laws for any reason whatsoever (other than temporary cessation in
connection with any repair or renovation thereof undertaken with the consent of
Mortgagee); or
(s) Mortgagor shall fail to deliver any item described in an
undelivered items letter or other post-closing letter on or before the date set
forth in such letter for the delivery of such item.
23. Notice and Cure. Notwithstanding the foregoing, Mortgagee agrees to
give to Mortgagor written notice as described below of (a) Mortgagor's failure
to pay any part of the Debt when due, other than a regularly scheduled monthly
payment of principal, interest revenues, escrows or other amounts, required
under the Note, this Mortgage, or any other Loan Document (a "Noticed Monetary
Default"), (b) a default referred to in subsection 22(p) above (a "First Lien
Default") and (c) a default referred to in
31
Subsections 22(c),(h),(j),(1),(m),(q) or (r) above which is not a Noticed
Monetary Default (a "Noticed Nonmonetary Default"). Without limiting Mortgagee's
rights to impose a late charge for Mortgagor's nonpayment as provided in the
Note, Mortgagor shall have a period of ten (10) days from its receipt of notice
in which to cure a Noticed Monetary Default which written notice period may run
concurrently with the five (5) day period referred to in Subsection 22(a), shall
have a period of twenty (20) days from its receipt of notice to cure a First
Lien Default and shall have a period of thirty (30) days from its receipt of
notice in which to cure a Noticed Nonmonetary Default, provided, however, that
if such Noticed Nonmonetary Default is reasonably susceptible of cure, but not
within such thirty (30) day period, then Mortgagor may be permitted up to an
additional sixty (60) days to cure such default provided that Mortgagor
diligently and continuously pursues such cure. Notwithstanding the foregoing,
Mortgagee may, but shall not be required, to give notice of a Noticed Monetary
Default or a recurrence of the same Noticed Nonmonetary Default more frequently
than two times in any twelve-month period. A Noticed Monetary Default and/or
First Lien Default and/or Noticed Nonmonetary Default shall nevertheless be an
Event of Default for all purposes under the Loan Documents (including, without
limitation, Mortgagee's right to collect Default Interest and any other
administrative charge set forth in the Note) except that the acceleration of the
Debt or other exercise of remedies shall not be prior to the expiration of the
applicable cure and/or grace periods provided in Section 22 or in this section.
24. Remedies. Upon the occurrence of an Event of Default and during the
continuance thereof, and subject to any applicable cure period, Mortgagee may,
at Mortgagee's option, do any one or more of the following:
(a) Right to Perform Mortgagor's Covenants. If Mortgagor has failed
to keep or perform any covenant whatsoever contained in this Mortgage or the
other Loan Documents, Mortgagee may, but shall not be obligated to any person to
do so, perform or attempt to perform said covenant; and any payment made or
expense incurred in the performance or attempted performance of any such
covenant, together with any sum expended by Mortgagee that is chargeable to
Mortgagor or subject to reimbursement by Mortgagor under the Loan Documents,
shall be and become a part of the Debt, and Mortgagor promises, upon demand, to
pay to Mortgagee, at the place where the Note is payable, all sums so incurred,
paid or expended by Mortgagee, with interest from the date when paid, incurred
or expended by Mortgagee at the Default Rate (as defined and otherwise specified
in the Note).
(b) Right of Entry. Mortgagee may, prior or subsequent to the
institution of any foreclosure proceedings, enter upon the Mortgaged Property,
or any part thereof, and take exclusive possession of the Mortgaged Property and
of all books, records, and accounts relating thereto and to exercise without
interference from Mortgagor any and all rights which Mortgagor has with respect
to the management, possession, operation, protection, or preservation of the
Mortgaged Property, including without limitation the right to rent the same for
the account of Mortgagor and to deduct from such Rents all costs, expenses, and
liabilities of every character incurred by Mortgagee in collecting such Rents
and in managing, operating, maintaining, protecting,
32
or preserving the Mortgaged Property and to apply the remainder of such Rents on
the Debt in such manner as Mortgagee may elect. All such costs, expenses, and
liabilities incurred by Mortgagee in collecting such Rents and in managing,
operating, maintaining, protecting, or preserving the Mortgaged Property, if not
paid out of Rents as hereinabove provided, shall constitute a demand obligation
owing by Mortgagor and shall bear interest from the date of expenditure until
paid at the Default Rate as specified in the Note, all of which shall constitute
a portion of the Debt. If necessary to obtain the possession provided for above,
Mortgagee may invoke any and all legal remedies to dispossess Mortgagor,
including specifically one or more actions for forcible entry and detainer,
trespass to try title, and restitution. In connection with any action taken by
Mortgagee pursuant to this subsection, Mortgagee shall not be liable for any
loss sustained by Mortgagor resulting from any failure to let the Mortgaged
Property, or any part thereof, or from any other act or omission of Mortgagee in
managing the Mortgaged Property unless such loss is caused by the willful
misconduct of Mortgagee, nor shall Mortgagee be obligated to perform or
discharge any obligation, duty, or liability under any Lease or under or by
reason hereof or the exercise of rights or remedies hereunder. Mortgagor shall
and does hereby agree to indemnify the Indemnified Parties for, and to hold the
Indemnified Parties harmless from, any and all liability, loss, or damage, which
may or might be incurred by any Indemnified Party under any such Lease or under
or by reason hereof or the exercise of rights or remedies hereunder, and from
any and all claims and demands whatsoever which may be asserted against any
Indemnified Party by reason of any alleged obligations or undertakings on its
part to perform or discharge any of the terms, covenants, or agreements
contained in any such Lease, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY, LOSS,
DAMAGE, OR CLAIM CAUSED BY OR RESULTING FROM THE ORDINARY NEGLIGENCE OF ANY
INDEMNIFIED PARTY. Should any Indemnified Party incur any such liability, the
amount thereof, including without limitation costs, expenses, and reasonable
attorneys' fees, together with interest thereon from the date of expenditure
until paid at the Default Rate as specified in the Note, shall be secured
hereby, and Mortgagor shall reimburse such Indemnified Party therefor
immediately upon demand. Nothing in this subsection shall impose any duty,
obligation, or responsibility upon any Indemnified Party for the control, care,
management, leasing, or repair of the Mortgaged Property, nor for the carrying
out of any of the terms and conditions of any such Lease; nor shall it operate
to make any Indemnified Party responsible or liable for any waste committed on
the Mortgaged Property by the tenants or by any other parties, or for any
hazardous substances or environmental conditions on or under the Mortgaged
Property, or for any dangerous or defective condition of the Mortgaged Property
or for any negligence in the management, leasing, upkeep, repair, or control of
the Mortgaged Property resulting in loss or injury or death to any tenant,
licensee, employee, or stranger. Mortgagor hereby assents to, ratifies, and
confirms any and all actions of Mortgagee with respect to the Mortgaged Property
taken under this subsection.
(c) Right to Accelerate. Mortgagee may, without notice except as
provided in Section 23 above, demand, presentment, notice of nonpayment or
nonperformance, protest, notice of protest, notice of intent to accelerate,
notice of acceleration, or any other notice or any other action, all of which
are hereby waived by
33
Mortgagor and all other parties obligated in any manner whatsoever on the Debt,
declare the entire unpaid balance of the Debt immediately due and payable, and
upon such declaration, the entire unpaid balance of the Debt shall be
immediately due and payable.
(d) Foreclosure-Power of Sale. Mortgagee may institute a proceeding
or proceedings, judicial, or nonjudicial, by advertisement or otherwise, for the
complete or partial foreclosure of this Mortgage or the complete or partial sale
of the Mortgaged Property under the power of sale contained herein or under any
applicable provision of law. Mortgagee may sell the Mortgaged Property, and all
estate, right, title, interest, claim and demand of Mortgagor therein, and all
rights of redemption thereof, at one or more sales, as an entirety or in
parcels, with such elements of real and/or personal property, and at such time
and place and upon such terms as it may deem expedient, or as may be required by
applicable law, and in the event of a sale, by foreclosure or otherwise, of less
than all of the Mortgaged Property, this Mortgage shall continue as a lien and
security interest on the remaining portion of the Mortgaged Property.
(e) Rights Pertaining to Sales. Subject to the requirements of
applicable law and except as otherwise provided herein, the following provisions
shall apply to any sale or sales of all or any portion of the Mortgaged Property
under or by virtue of Subsection (d) above, whether made under the power of sale
herein granted or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale:
(i) Mortgagee may conduct any number of sales from time to
time. The power of sale set forth above shall not be exhausted by
any one or more such sales as to any part of the Mortgaged Property
which shall not have been sold, nor by any sale which is not
completed or is defective in Mortgagee's opinion, until the Debt
shall have been paid in full.
(ii) Any sale may be postponed or adjourned by public
announcement at the time and place appointed for such sale or for
such postponed or adjourned sale without further notice.
(iii) After each sale, Mortgagee or an officer of any court
empowered to do so shall execute and deliver to the purchaser or
purchasers at such sale a good and sufficient instrument or
instruments granting, conveying, assigning and transferring all
right, title and interest of Mortgagor in and to the property and
rights sold and shall receive the proceeds of said sale or sales and
apply the same as specified in the Note. Mortgagee is hereby
appointed the true and lawful attorney-in-fact of Mortgagor, which
appointment is irrevocable and shall be deemed to be coupled with an
interest, in Mortgagor's name and stead, to make all necessary
conveyances, assignments, transfers and deliveries of the property
and rights so sold, Mortgagor hereby ratifying and confirming all
that said attorney or such substitute or substitutes shall lawfully
do by virtue thereof. Nevertheless, Mortgagor, if requested by
Mortgagee, shall ratify and confirm any such sale or sales by
executing and delivering to Mortgagee or such purchaser or
purchasers all such instruments as may be
34
advisable, in Mortgagee's judgment, for the purposes as may be
designated in such request.
(iv) Any and all statements of fact or other recitals made in
any of the instruments referred to in Subsection (e)(iii) above
given by Mortgagee shall be taken as conclusive and binding against
all persons as to evidence of the truth of the facts so stated and
recited.
(v) Any such sale or sales shall operate to divest all of the
estate, right, title, interest, claim and demand whatsoever, whether
at law or in equity, of Mortgagor in and to the properties and
rights so sold, and shall be a perpetual bar both at law and in
equity against Mortgagor and any and all persons claiming or who may
claim the same, or any part thereof or any interest therein, by,
through or under Mortgagor to the fullest extent permitted by
applicable law.
(vi) Upon any such sale or sales, Mortgagee may bid for and
acquire the Mortgaged Property and, in lieu of paying cash therefor,
may make settlement for the purchase price by crediting against the
Debt the amount of the bid made therefor, after deducting therefrom
the expenses of the sale, the cost of any enforcement proceeding
hereunder, and any other sums which Mortgagee is authorized to
deduct under the terms hereof, to the extent necessary to satisfy
such bid.
(vii) Upon any such sale, it shall not be necessary for
Mortgagee or any public officer acting under execution or order of
court to have present or constructively in its possession any of the
Mortgaged Property.
(f) Mortgagee's Judicial Remedies. Mortgagee may proceed by suit or
suits, at law or in equity, to enforce the payment of the Debt to foreclose the
liens and security interests of this Mortgage as against all or any part of the
Mortgaged Property, and to have all or any part of the Mortgaged Property sold
under the judgment or decree of a court of competent jurisdiction. This remedy
shall be cumulative of any other nonjudicial remedies available to Mortgagee
under this Mortgage or the other Loan Documents. Proceeding with a request or
receiving a judgment for legal relief shall not be or be deemed to be an
election of remedies or bar any available nonjudicial remedy of Mortgagee.
(g) Mortgagee's Right to Appointment of Receiver. Mortgagee, as a
matter of right and (i) without regard to the sufficiency of the security for
repayment of the Debt and without notice to Mortgagor, (ii) without any showing
of insolvency, fraud, or mismanagement on the part of Mortgagor, (iii) without
the necessity of filing any judicial or other proceeding other than the
proceeding for appointment of a receiver, and (iv) without regard to the then
value of the Mortgaged Property, shall be entitled to the appointment of a
receiver or receivers for the protection, possession, control, management and
operation of the Mortgaged Property, including (without limitation), the power
to collect the Rents, enforce this Mortgage and, in case of a sale and
deficiency,
35
during the full statutory period of redemption (if any), whether there be a
redemption or not, as well as during any further times when Mortgagor, except
for the intervention of such receiver, would be entitled to collection of such
Rents. Mortgagor hereby irrevocably consents to the appointment of a receiver or
receivers. Any receiver appointed pursuant to the provisions of this subsection
shall have the usual powers and duties of receivers in such matters.
(h) Mortgagee's Uniform Commercial Code Remedies. The Mortgagee may
exercise its rights of enforcement under the Uniform Commercial Code in effect
in the state in which the Mortgaged Property is located.
(i) Other Rights. Mortgagee (i) may surrender the Policies
maintained pursuant to this Mortgage or any part thereof, and upon receipt shall
apply the unearned premiums as a credit on the Debt, and, in connection
therewith, Mortgagor hereby appoints Mortgagee as agent and attorney-in-fact
(which is coupled with an interest and is therefore irrevocable) for Mortgagor
to collect such premiums; and (ii) may apply the Tax and Insurance Escrow Fund
and/or the Replacement Reserve Fund and any other funds held by Mortgagee toward
payment of the Debt; and (iii) shall have and may exercise any and all other
rights and remedies which Mortgagee may have at law or in equity, or by virtue
of any of the Loan Documents, or otherwise.
(j) Discontinuance of Remedies. In case Mortgagee shall have
proceeded to invoke any right, remedy, or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon same for any
reason, Mortgagee shall have the unqualified right so to do and, in such event,
Mortgagor and Mortgagee shall be restored to their former positions with respect
to the Debt, the Loan Documents, the Mortgaged Property or otherwise, and the
rights, remedies, recourses and powers of Mortgagee shall continue as if same
had never been invoked.
(k) Remedies Cumulative. All rights, remedies, and recourses of
Mortgagee granted in the Note, this Mortgage and the other Loan Documents, any
other pledge of collateral, or otherwise available at law or equity: (i) shall
be cumulative and concurrent; (ii) may be pursued separately, successively, or
concurrently against Mortgagor, the Mortgaged Property, or any one or more of
them, at the sole discretion of Mortgagee; (iii) may be exercised as often as
occasion therefor shall arise, it being agreed by Mortgagor that the exercise or
failure to exercise any of same shall in no event be construed as a waiver or
release thereof or of any other right, remedy, or recourse; (iv) shall be
nonexclusive; (v) shall not be conditioned upon Mortgagee exercising or pursuing
any remedy in relation to the Mortgaged Property prior to Mortgagee bringing
suit to recover the Debt; and (vi) in the event Mortgagee elects to bring suit
on the Debt and obtains a judgment against Mortgagor prior to exercising any
remedies in relation to the Mortgaged Property, all liens and security
interests, including the lien of this Mortgage, shall remain in full force and
effect and may be exercised thereafter at Mortgagee's option.
(l) Election of Remedies. Mortgagee may release, regardless of
consideration, any part of the Mortgaged Property without, as to the remainder,
in any
36
way impairing, affecting, subordinating, or releasing the lien or security
interests evidenced by this Mortgage or the other Loan Documents or affecting
the obligations of Mortgagor or any other party to pay the Debt. For payment of
the Debt, Mortgagee may resort to any collateral securing the payment of the
Debt in such order and manner as Mortgagee may elect. No collateral taken by
Mortgagee shall in any manner impair or affect the lien or security interests
given pursuant to the Loan Documents, and all collateral shall be taken,
considered, and held as cumulative.
(m) Bankruptcy Acknowledgment. In the event the Mortgaged Property
or any portion thereof or any interest therein becomes property of any
bankruptcy estate or subject to any state or federal insolvency proceeding, then
Mortgagee shall immediately become entitled, in addition to all other relief to
which Mortgagee may be entitled under this Mortgage, to obtain (i) an order from
the Bankruptcy Court or other appropriate court granting immediate relief from
the automatic stay pursuant to Section 362 of the Bankruptcy Code so to permit
Mortgagee to pursue its rights and remedies against Mortgagor as provided under
this Mortgage and all other rights and remedies of Mortgagee at law and in
equity under applicable state law, and (ii) an order from the Bankruptcy Court
prohibiting Mortgagor's use of all "cash collateral" as defined under Section
363 of the Bankruptcy Code. In connection with such Bankruptcy Court orders,
Mortgagor shall not contend or allege in any pleading or petition filed in any
court proceeding that Mortgagee does not have sufficient grounds for relief from
the automatic stay. Any bankruptcy petition or other action taken by Mortgagor
to stay, condition, or inhibit Mortgagee from exercising its remedies are hereby
admitted by Mortgagor to be in bad faith and Mortgagor further admits that
Mortgagee would have just cause for relief from the automatic stay in order to
take such actions authorized under state law.
(n) Application of Proceeds. The proceeds from any sale, lease, or
other disposition made pursuant to this Mortgage, or the proceeds from the
surrender of any insurance policies pursuant hereto, or any Rents collected by
Mortgagee from the Mortgaged Property, or the Tax and Insurance Escrow Fund or
the Replacement Reserve Fund or sums received pursuant to Section 7 hereof, or
proceeds from insurance which Mortgagee elects to apply to the Debt pursuant to
Section 3 hereof, shall be applied by Mortgagee, as the case may be, to the Debt
in the following order and priority: (i) to the payment of all expenses of
advertising, selling, and conveying the Mortgaged Property or part thereof,
and/or prosecuting or otherwise collecting Rents, proceeds, premiums or other
sums including reasonable attorneys' fees; (ii) to that portion, if any, of the
Debt with respect to which no person or entity has personal or entity liability
for payment (the "Exculpated Portion"), and with respect to the Exculpated
Portion as follows: first, to accrued but unpaid interest, second, to matured
principal, and third, to unmatured principal in inverse order of maturity; (iii)
to the remainder of the Debt as follows: first, to the remaining accrued but
unpaid interest, second, to the matured portion of principal of the Debt, and
third, to prepayment of the unmatured portion, if any, of principal of the Debt
applied to installments of principal in inverse order of maturity; (iv) the
balance, if any or to the extent applicable, remaining after the full and final
payment of the Debt to the holder or beneficiary of any inferior liens covering
the Mortgaged Property, if any, in order of the priority of such inferior liens
(Mortgagee shall hereby be entitled to rely
37
exclusively on a commitment for title insurance issued to determine such
priority); and (v) the cash balance, if any, to Mortgagor. The application of
proceeds of sale or other proceeds as otherwise provided herein shall be deemed
to be a payment of the Debt like any other payment. The balance of the Debt
remaining unpaid, if any, shall remain fully due and owing in accordance with
the terms of the Note and the other Loan Documents.
25. Security Agreement. This Mortgage is both a real property mortgage or
deed of trust and a "security agreement" within the meaning of the Uniform
Commercial Code. The Mortgaged Property includes both real and personal property
and all other rights and interests, whether tangible or intangible in nature, of
Mortgagor in the Mortgaged Property. Mortgagor by executing and delivering this
Mortgage has granted and hereby grants to Mortgagee, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this section the "Collateral"). Mortgagor hereby agrees with Mortgagee to
execute and deliver to Mortgagee, in form and substance satisfactory to
Mortgagee, such financing statements and such further assurances as Mortgagee
may from time to time, reasonably consider necessary to create, perfect, and
preserve Mortgagee's security interest herein granted. This Mortgage shall also
constitute a "fixture filing" for the purposes of the Uniform Commercial Code.
All or part of the Mortgaged Property are or are to become fixtures. Information
concerning the security interest herein granted may be obtained from the parties
at the addresses of the parties set forth in the first paragraph of this
Mortgage. If an Event of Default shall occur, Mortgagee, in addition to any
other rights and remedies which it may have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing, the right to take possession of the
Collateral or any part thereof, and to take such other measures as Mortgagee may
deem necessary for the care, protection and preservation of the Collateral. Upon
request or demand of Mortgagee, Mortgagor shall at its expense assemble the
Collateral and make it available to Mortgagee at a convenient place acceptable
to Mortgagee. Mortgagor shall pay to Mortgagee on demand any and all expenses,
including legal expenses and attorneys' fees, incurred or paid by Mortgagee in
protecting the interest in the Collateral and in enforcing the rights hereunder
with respect to the Collateral. Any notice of sale, disposition or other
intended action by Mortgagee with respect to the Collateral sent to Mortgagor in
accordance with the provisions hereof at least five (5) days prior to such
action, shall constitute commercially reasonable notice to Mortgagor. The
proceeds of any disposition of the Collateral, or any part thereof, may be
applied by Mortgagee to the payment of the Debt in such priority and proportions
as Mortgagee in its discretion shall deem proper. In the event of any change in
name, identity or structure of any Mortgagor, such Mortgagor shall notify
Mortgagee thereof and promptly after request shall execute, file and record such
Uniform Commercial Code forms as are necessary to maintain the priority of
Mortgagee's lien upon and security interest in the Collateral, and shall pay all
expenses and fees in connection with the filing and recording thereof. If
Mortgagee shall require the filing or recording of additional Uniform Commercial
Code forms or continuation statements, Mortgagor shall, promptly after request,
execute, file and record such
38
Uniform Commercial Code forms or continuation statements as Mortgagee shall deem
necessary, and shall pay all expenses and fees in connection with the filing and
recording thereof, it being understood and agreed, however, that no such
additional documents shall increase Mortgagor's obligations under the Note, this
Mortgage and the other Loan Documents. Mortgagor hereby irrevocably appoints
Mortgagee as its attorney-in-fact, coupled with an interest, to file with the
appropriate public office on its behalf any financing or other statements signed
only by Mortgagee, as Mortgagor's attorney-in-fact, in connection with the
Collateral covered by this Mortgage. Notwithstanding the foregoing, Mortgagor
shall appear and defend in any action or proceeding which affects or purports to
affect the Mortgaged Property and any interest or right therein, whether such
proceeding affects title or any other rights in the Mortgaged Property (and in
conjunction therewith, Mortgagor shall fully cooperate with Mortgagee in the
event Mortgagee is a party to such action or proceeding).
26. Right of Entry. In addition to any other rights or remedies granted
under this Mortgage, Mortgagee and its agents shall have the right to enter and
inspect the Mortgaged Property and Mortgagor's place of business, including its
financial and accounting records, and to make copies and take extracts
therefrom, and to discuss its affairs, finances and business with its officers
and independent public accountants (with such Mortgagor's representative(s)
present) at any reasonable time during the term of the Loan and as often as may
be reasonably requested. The cost of such inspections or audits shall be borne
by Mortgagor should Mortgagee determine that an Event of Default exists and is
not cured within applicable grace periods, including the cost of all follow up
or additional investigations or inquiries deemed reasonably necessary by
Mortgagee. The cost of such inspections, if not paid for by Mortgagor following
demand, may be added to the principal balance of the sums due under the Note and
this Mortgage and shall bear interest thereafter until paid at the Default Rate.
27. Actions and Proceedings. Mortgagee has the right to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to bring any action or proceeding, in the name and on behalf of Mortgagor,
which Mortgagee, in its discretion, decides should be brought to protect its
interest in the Mortgaged Property. Mortgagee shall, at its option, be
subrogated to the lien of any mortgage or other security instrument discharged
in whole or in part by the Debt, and any such subrogation rights shall
constitute additional security for the payment of the Debt.
28. Waiver of Setoff and Counterclaim, Marshalling, Statute of
Limitations, Automatic or Supplemental Stay, Etc. (a) All amounts due under this
Mortgage, the Note and the other Loan Documents shall be payable without setoff,
counterclaim or any deduction whatsoever. Mortgagor hereby waives the right to
assert a setoff, counterclaim or deduction in any action or proceeding in which
Mortgagee is a participant, or arising out of or in any way connected with this
Mortgage, the Note, any of the other Loan Documents, or the Debt.
(b) Mortgagor hereby expressly, irrevocably, and unconditionally
waives and releases, to the extent permitted by law (i) the benefit of all
appraisement, valuation, stay, extension, reinstatement and redemption laws now
or hereafter in force
39
and all rights of marshalling, sale in the inverse order of alienation, or any
other right to direct in any manner the order or sale of any of the Mortgaged
Property in the event of any sale hereunder of the Mortgaged Property or any
part thereof or any interest therein; (ii) any and all rights of redemption from
sale under any order or decree of foreclosure of this Mortgage on behalf of
Mortgagor, and on behalf of each and every person acquiring any interest in or
title to the Mortgaged Property subsequent to the date of this Mortgage and on
behalf of all persons to the extent permitted by applicable law; (iii) all
benefits that might accrue to Mortgagor by virtue of any present or future law
exempting the Mortgaged Property from attachment, levy or sale on execution or
providing for any appraisement, valuation, stay of execution, exemption from
civil process, redemption, or extension of time for payment; and (iv) all
notices of any Event of Default except as expressly provided herein or of
Mortgagee's exercise of any right, remedy, or recourse provided for under the
Loan Documents.
(c) To the extent permitted by applicable law, Mortgagee's rights
hereunder shall continue even to the extent that a suit for collection of the
Debt, or part thereof, is barred by a statute of limitations. Mortgagor hereby
expressly waives and releases to the fullest extent permitted by law, the
pleading of any statute of limitations as a defense to payment of the Debt.
(d) In the event of the filing of any voluntary or involuntary
petition under the U.S. Bankruptcy Code (the "Bankruptcy Code") by or against
Mortgagor (other than an involuntary petition filed by or joined in by
Mortgagee), Mortgagor shall not assert, or request any other party to assert,
that the automatic stay under Section 362 of the Bankruptcy Code shall operate
or be interpreted to stay, interdict, condition, reduce or inhibit the ability
of Mortgagee to enforce any rights it has by virtue of this Mortgage, or any
other rights that Mortgagee has, whether now or hereafter acquired, against any
guarantor of the Debt. Further, Mortgagor shall not seek a supplemental stay or
any other relief, whether injunctive or otherwise, pursuant to Section 105 of
the Bankruptcy Code or any other provision therein to stay, interdict,
condition, reduce or inhibit the ability of Mortgagee to enforce any rights it
has by virtue of this Mortgage against any guarantor of the Debt. The waivers
contained in this section are a material inducement to Mortgagee's willingness
to enter into this Mortgage and Mortgagor acknowledges and agrees that no
grounds exist for equitable relief which would bar, delay or impede the exercise
by Mortgagee of Mortgagee's rights and remedies against Mortgagor or any
guarantor of the Debt.
29. Contest of Certain Claims. Notwithstanding the provisions of Section 4
and Subsection 22(i) hereof, Mortgagor shall not be in default for failure to
pay or discharge Taxes, Other Charges or mechanic's or materialman's liens
asserted against the Mortgaged Property if, and so long as, (a) Mortgagor shall
have notified Mortgagee of same within five (5) days of obtaining knowledge
thereof; (b) Mortgagor shall diligently and in good faith contest the same by
appropriate legal proceedings which shall operate to prevent the enforcement or
collection of the same and the sale of the Mortgaged Property or any part
thereof, to satisfy the same; (c) Mortgagor shall have furnished to Mortgagee a
cash deposit, or an indemnity bond satisfactory to Mortgagee with a surety
satisfactory to
40
Mortgagee, in the amount of the Taxes, Other Charges or mechanic's or
materialman's lien claim, plus a reasonable additional sum to pay all costs,
interest and penalties that may be imposed or incurred in connection therewith,
to assure payment of the matters under contest and to prevent any sale or
forfeiture of the Mortgaged Property or any part thereof; (d) Mortgagor shall
promptly upon final determination thereof pay the amount of any such Taxes,
Other Charges or claim so determined, together with all costs, interest and
penalties which may be payable in connection therewith; (e) the failure to pay
the Taxes, Other Charges or mechanic's or materialman's lien claim does not
constitute a default under any other deed of trust, mortgage or security
interest covering or affecting any part of the Mortgaged Property; and (f)
notwithstanding the foregoing, Mortgagor shall immediately upon request of
Mortgagee pay (and if Mortgagor shall fail so to do, Mortgagee may, but shall
not be required to, pay or cause to be discharged or bonded against) any such
Taxes, Other Charges or claim notwithstanding such contest, if in the opinion of
Mortgagee, the Mortgaged Property or any part thereof or interest therein may be
in danger of being sold, forfeited, foreclosed, terminated, canceled or lost.
Mortgagee may pay over any such cash deposit or part thereof to the claimant
entitled thereto at any time when, in the judgment of Mortgagee, the entitlement
of such claimant is established.
30. Recovery of Sums Required to Be Paid. Mortgagee shall have the right
from time to time to take action to recover any sum or sums which constitute a
part of the Debt as the same become due, without regard to whether or not the
balance of the Debt shall be due, and without prejudice to the right of
Mortgagee thereafter to bring an action of foreclosure, or any other action, for
a default or defaults by Mortgagor existing at the time such earlier action was
commenced.
31. Handicapped Access. (a) Mortgagor agrees that the Mortgaged Property
shall at all times comply in all material respects with applicable requirements
of the Americans with Disabilities Act of 1990, the Fair Housing Amendments Act
of 1988, all state and local laws and ordinances related to handicapped access
and all rules, regulations, and orders issued pursuant thereto including,
without limitation, the Americans with Disabilities Act Accessibility Guidelines
for Buildings and Facilities (collectively "Access Laws").
(b) Notwithstanding any provisions set forth herein or in any other
document regarding Mortgagee's approval of alterations of the Mortgaged
Property, Mortgagor shall not alter the Mortgaged Property in any manner which
would materially increase Mortgagor's responsibilities for compliance with the
applicable Access Laws without the prior written approval of Mortgagee. The
foregoing shall apply to tenant improvements constructed by Mortgagor or by any
of its tenants. Mortgagee may condition any such approval upon receipt of a
certificate from an architect, engineer, or other person acceptable to Mortgagee
of compliance with Access Laws.
(c) Mortgagor agrees to give prompt notice to Mortgagee of the
receipt by Mortgagor of any complaints related to violation of any Access Laws
and of the commencement of any proceedings or investigations which relate to
compliance with applicable Access Laws.
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32. Indemnification; Limitation of Liability. (a) Unless caused solely by
an Indemnified Party's gross negligence or willful misconduct AND REGARDLESS OF
WHETHER CAUSED BY AN INDEMNIFIED PARTY'S ORDINARY NEGLIGENCE, Mortgagor shall
protect, defend, indemnify and save harmless the Indemnified Parties from and
against all actual liabilities, obligations, claims, damages, penalties, causes
of action, costs and expenses (including without limitation reasonable
attorneys' fees and expenses (of counsel engaged by Mortgagee, rather than of
all counsel engaged by all such Indemnified Parties)) imposed upon or incurred
by or asserted against any Indemnified Party by reason of (a) ownership of the
Mortgage, the Mortgaged Property or any interest therein or receipt of any
rents; (b) any accident, injury to or death of persons or loss of or damage to
property occurring in, on or about the Mortgaged Property or any part thereof or
on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (c) any use, nonuse or condition in, on or about the Mortgaged
Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (d) performance of any
labor or services or the furnishing of any materials or other property in
respect of the Mortgaged Property or any part thereof; (e) any actions taken by
any Indemnified Party in the enforcement of this Mortgage and the other Loan
Documents; (f) any failure to act on the part of any Indemnified Party
hereunder; (g) the payment or nonpayment of any brokerage commissions to any
party in connection with the transaction contemplated hereby; and (h) the
failure of Mortgagor to file timely with the Internal Revenue Service an
accurate Form 1099-B, Statement for Recipients of Proceeds from Real Estate,
Broker and Barter Exchange Transactions, which may be required in connection
with this Mortgage, or to supply a copy thereof in a timely fashion to the
recipient of the proceeds of the transaction in connection with which this
Mortgage is made; provided, that the foregoing indemnification shall not include
punitive damages as may be charged to the Indemnified Parties (as opposed to
being claimed by the Indemnified Parties against the Mortgagor). Any amounts
payable to an Indemnified Party by reason of the application of this section
shall become immediately due and payable and shall bear interest at the Default
Rate from the date loss or damage is sustained by such Indemnified Party until
paid. The provisions of this Section 32 shall survive any termination,
satisfaction or assignments of the Loan Documents or the entry of a judgment of
foreclosure, sale of the Mortgaged Property by nonjudicial foreclosure sale,
delivery of a deed in lieu of foreclosure or the exercise by Mortgagee of any of
its other rights and remedies under this Mortgage or the other Loan Documents.
(b) Neither Mortgagee, nor any affiliate, officer, director,
employee, attorney, or agent of Mortgagee, shall have any liability with respect
to, and Mortgagor hereby waives, releases, and agrees not to sue any of them
upon, any claim for any special, indirect, incidental, or consequential damages
suffered or incurred by Mortgagor in connection with, arising out of, or in any
way related to, this Mortgage or any of the other Loan Documents, or any of the
transactions contemplated by this Mortgage or any of the other Loan Documents,
other than the gross negligence or willful misconduct of a Mortgagee. Mortgagor
hereby waives, releases, and agrees not to sue Mortgagee or any of Mortgagee's
affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related
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to, this Mortgage or any of the other Loan Documents, or any of the transactions
contemplated by this Mortgage or any of the transactions contemplated hereby
except to the extent same is caused by the gross negligence or willful
misconduct of a Mortgagee.
33. Intentionally omitted.
34. Notices. Any notice, demand, statement, request or consent made
hereunder shall be in writing, addressed to the address, as set forth above, of
the party to whom such notice is to be given, or to such other address as
Mortgagor or Mortgagee, as the case may be, shall designate in writing, and
shall be deemed to be received by the addressee on (i) the day such notice is
personally delivered to such addressee, (ii) the third (3rd) day following the
day such notice is deposited with the United States postal service first class
certified mail, return receipt requested, (iii) the day following the day on
which such notice is delivered to a nationally recognized overnight courier
delivery service, or (iv) the day facsimile transmission is confirmed after
transmission of such notice by telecopy to such telecopier number as Mortgagor
or Mortgagee, as the case may be, shall have previously designated in writing.
35. Authority. (a) Mortgagor (and the undersigned representative of
Mortgagor, if any) has full power, authority and right to execute, deliver and
perform its obligations pursuant to this Mortgage, and to mortgage, give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and
assign the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Mortgage on Mortgagor's part to be performed;
and (b) Mortgagor represents and warrants that Mortgagor is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended and the related Treasury Department regulations.
36. ERISA. (a) As of the date hereof and throughout the term of the Loan,
Mortgagor represents and covenants that (i) it is not and will not be an
"employee benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA, and (ii) the assets of Mortgagor do not and will not constitute "plan
assets" of one or more such plans for purposes of Title I of ERISA.
(b) As of the date hereof and throughout the term of the Loan,
Mortgagor represents and covenants that (i) it is not and will not be a
"governmental plan" within the meaning of Section 3(3) of ERISA and (ii)
transactions by or with Mortgagor are not and will not be subject to state
statutes applicable to Mortgagor regulating investments of and fiduciary
obligations with respect to governmental plans.
(c) As of the date hereof and throughout the term of the Loan,
Mortgagor represents and covenants that (i) it is not and will not be subject to
state statutes regulating investments and fiduciary obligations with respect to
governmental plans; and (ii) one or more of the following circumstances is and
will continue through the term of the Loan to be true:
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(A) Equity interests in Mortgagor are publicly offered
securities, within the meaning of 29 C.F.R. Section
2510.3-101(b)(2);
(B) Less than twenty-five percent (25%) of each outstanding
class of equity interests in Mortgagor are held by "benefit plan
investors" within the meaning of 29 C.F.R. Section 2510.3-101(f)(2);
or
(C) Mortgagor qualifies as an "operating company" or a "real
estate operating company" within the meaning of 29 C.F.R. Section
2510.3-101(c) or (e), or an investment company registered under The
Investment Company Act of 1940.
37. Waiver of Notice. Mortgagor shall not be entitled to any notices of
any nature whatsoever from Mortgagee except with respect to matters for which
this Mortgage specifically and expressly provides for the giving of notice by
Mortgagee to Mortgagor and except with respect to matters for which Mortgagee is
required by applicable law to give notice, and Mortgagor hereby expressly waives
the right to receive any notice from Mortgagee with respect to any matter for
which this Mortgage does not specifically and expressly provide for the giving
of notice by Mortgagee to Mortgagor.
38. Remedies of Mortgagor. In the event that a claim or adjudication is
made that Mortgagee has acted unreasonably or unreasonably delayed acting in any
case where by law or under the Note, this Mortgage or the other Loan Documents,
it has an obligation to act reasonably or promptly, Mortgagee shall not be
liable for any monetary damages, and Mortgagor's remedies shall be limited to
injunctive relief or declaratory judgment.
39. Sole Discretion of Mortgagee. Whenever pursuant to this Mortgage or
the other Loan Documents, Mortgagee exercises any right given to it to consent,
approve or disapprove, or any arrangement or term is to be satisfactory to
Mortgagee, the decision of Mortgagee to consent, approve or disapprove, or to
decide that arrangements or terms are satisfactory or not satisfactory shall be
in the sole discretion of Mortgagee and shall be final and conclusive, except as
may be otherwise expressly and specifically provided herein. Notwithstanding
anything to the contrary contained herein, it shall be understood and agreed
that any such consent, approval, or disapproval may be conditioned, among other
things, upon Mortgagee obtaining confirmation by the Rating Agencies that the
action or other matter subject to Mortgagee's consent, approval, or disapproval
shall not adversely affect the rating of any securities issued or to be issued
in connection with any Secondary Market Transaction, notwithstanding that such
condition may not be expressly set forth in the provision or provisions of the
Loan Documents which require that Mortgagee's consent be obtained.
40. Non-Waiver. The failure of Mortgagee to insist upon strict performance
of any term hereof shall not be deemed to be a waiver of any term of this
Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations hereunder
by reason of (a) the failure of Mortgagee to comply with any request of
Mortgagor or Guarantor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of
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the Note or other Loan Documents, (b) the release, regardless of consideration,
of the whole or any part of the Mortgaged Property, or of any person liable for
the Debt or any portion thereof, or (c) any agreement or stipulation by
Mortgagee extending the time of payment or otherwise modifying or supplementing
the terms of the Note, this Mortgage, or the other Loan Documents. Mortgagee may
resort for the payment of the Debt to any other security held by Mortgagee in
such order and manner as Mortgagee, in its discretion, may elect. Mortgagee may
take action to recover the Debt, or any portion thereof, or to enforce any
covenant hereof without prejudice to the right of Mortgagee thereafter to
foreclosure this Mortgage. The rights and remedies of Mortgagee under this
Mortgage shall be separate, distinct and cumulative and none shall be given
effect to the exclusion of the others. No act of Mortgagee shall be construed as
an election to proceed under any one provision herein to the exclusion of any
other provision. Mortgagee shall not be limited exclusively to the rights and
remedies herein stated but shall be entitled to every right and remedy now or
hereafter afforded at law or in equity.
41. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Mortgagee's consent to any
transfer of the Mortgaged Property, this Mortgage shall be binding upon and
inure to the benefit of Mortgagor and Mortgagee and their respective successors
and assigns forever.
42. Inapplicable Provisions. If any term, covenant or condition of this
Mortgage is held to be invalid, illegal or unenforceable in any respect, this
Mortgage shall be construed without such provision.
43. Headings, Etc. The headings and captions of various sections of this
Mortgage are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
44. Counterparts. This Mortgage may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
45. Definitions. Unless the context clearly indicates a contrary intent or
unless otherwise specifically provided herein, words used in this Mortgage may
be used interchangeably in singular or plural form and the word "Mortgagor"
shall mean "each Mortgagor and any subsequent owner or owners of the Mortgaged
Property or any part thereof or any interest therein," the word "Mortgagee"
shall mean "Mortgagee and any subsequent holder of the Note," the word "Debt"
shall mean "the Note and any other evidence of indebtedness secured by this
Mortgage," the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, and the words "Mortgaged Property" shall
include any portion of the Mortgaged Property and any interest therein and the
words "attorneys' fees" shall include any and all attorneys' fees, paralegal and
law clerk fees, including, but not limited to, fees at the pre-trial, trial and
appellate levels incurred or paid by Mortgagee in protecting its interest in the
Mortgaged Property and Collateral and enforcing its rights hereunder. Whenever
the context may require, any pronouns used
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herein shall include the corresponding masculine, feminine or neuter forms, and
the singular form of nouns and pronouns shall include the plural and vice versa.
46. Homestead. Mortgagor hereby waives and renounces all homestead and
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Premises as against the collection of the Debt,
or any part hereof.
47. Assignments. Mortgagee shall have the right to assign or transfer its
rights under this Mortgage and the other Loan Documents without limitation,
including, without limitation, the right to assign or transfer its rights to a
servicing agent. Any assignee or transferee shall be entitled to all the
benefits afforded Mortgagee under this Mortgage and the other Loan Documents.
48. Survival of Obligations; Survival of Warranties and Representations.
Each and all of the covenants, obligations, representations and warranties of
Mortgagor shall survive the execution and delivery of the Loan Documents and the
transfer or assignment of this Mortgage (including, without limitation, any
transfer of the Mortgage by Mortgagee of any of its rights, title and interest
in and to the Mortgaged Property to any party, whether or not affiliated with
Mortgagee), and shall also survive the entry of a judgment of foreclosure, sale
of the Mortgaged Property by non-judicial foreclosure or deed in lieu of
foreclosure and satisfaction of the Debt.
49. Covenants Running with the Land. All covenants, conditions,
warranties, representations and other obligations contained in this Mortgage and
the other Loan Documents are intended by Mortgagor and Mortgagee to be, and
shall be construed as, covenants running with the Mortgaged Property until the
lien of this Mortgage has been fully released by Mortgagee.
50. Governing Law; Jurisdiction. THIS MORTGAGE AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED (WITHOUT REGARD TO ANY CONFLICT
OF LAWS PRINCIPLES) AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
MORTGAGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF
COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE MORTGAGED PROPERTY IS
LOCATED IN CONNECTION WITH ANY PROCEEDING OUT OF OR RELATING TO THIS MORTGAGE.
51. Time. Time is of the essence in this Mortgage and the other Loan
Documents.
52. No Third-Party Beneficiaries. The provisions of this Mortgage and the
other Loan Documents are for the benefit of Mortgagor and Mortgagee and shall
not inure to the benefit of any third party (other than any successor or
assignee of Mortgagee). This Mortgage and the other Loan Documents shall not be
construed as creating any rights, claims or causes of action against Mortgagee
or any of its officers, directors, agents or
46
employees in favor of any party other than Mortgagor including but not limited
to any claims to any sums held in the Tax and Insurance Escrow Fund or the
Replacement Reserve Fund.
53. Relationship of Parties. The relationship of Mortgagee and Mortgagor
is solely that of debtor and creditor, and Mortgagee has no fiduciary or other
special relationship with Mortgagor, and no term or condition of any of the Loan
Documents shall be construed to be other than that of debtor and creditor.
Mortgagor represents and acknowledges that the Loan Documents do not provide for
any shared appreciation rights or other equity participation interest.
54. Intentionally omitted.
55. Investigations. Any and all representations, warranties, covenants and
agreements made in this Mortgage (and/or in other Loan Documents) shall survive
any investigation or inspection made by or on behalf of Mortgagee.
56. Assignment of Leases and Rents. (a) Mortgagor acknowledges and
confirms that it has executed and delivered to Mortgagee an Assignment of Leases
and Rents of even date (as the same may be amended, restated, supplemented, or
otherwise modified from time to time, the "Assignment of Leases and Rents"),
intending that such instrument create a present, absolute assignment to
Mortgagee of the Leases and Rents. Without limiting the intended benefits or the
remedies provided under the Assignment of Leases and Rents, Mortgagor hereby
assigns to Mortgagee, as further security for the Debt and the Obligations, the
Leases and Rents. Subject to the expiration of applicable cure periods, while
any Event of Default exists, Mortgagee shall be entitled to exercise any or all
of the remedies provided in the Assignment of Leases and Rents and in Section 24
hereof, including, without limitation, the right to have a receiver appointed.
If any conflict or inconsistency exists between the assignment of the Leases and
the Rents in this Mortgage and the absolute assignment of the Leases and the
Rents in the Assignment of Leases and Rents, the terms of the Assignment of
Leases and Rents shall control.
(b) So long as any part of the Debt and the Obligations secured
hereby remain unpaid and undischarged, the fee and leasehold estates to the
Mortgaged Property shall not merge, but shall remain separate and distinct,
notwithstanding the union of such estates either in Mortgagor, Mortgagee, any
lessee or any third party by purchase or otherwise.
57. Waiver of Right to Trial by Jury. MORTGAGOR HEREBY AGREES NOT TO ELECT
A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO
TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER
EXIST WITH REGARD TO THIS MORTGAGE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM,
COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF
RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY MORTGAGOR, AND IS
INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE
RIGHT
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TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. MORTGAGEE IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS
WAIVER BY MORTGAGOR.
58. Expenses and Attorneys' Fees. Mortgagor agrees to promptly pay all
reasonable fees, costs and expenses incurred by Mortgagee in connection with any
matters contemplated by or arising out of this Mortgage and the Loan Documents,
including the following, and all such fees, costs and expenses shall be part of
the Debt, payable on demand: (i) reasonable fees, costs and expenses (including
reasonable attorneys' fees, and other professionals retained by Mortgagee)
incurred in connection with the examination, review, due diligence
investigation, documentation and closing of the financing arrangements evidenced
by the Loan Documents; (ii) reasonable fees, costs and expenses (including
reasonable attorneys' fees and other professionals retained by Mortgagee)
incurred in connection with the administration of the Loan Documents and the
loan and any amendments, modifications and waivers relating thereto; (iii)
reasonable fees, costs and expenses (including reasonable attorneys' fees)
incurred in connection with the review, documentation, negotiation, closing and
administration of any subordination or intercreditor agreements; and (iv)
reasonable fees, costs and expenses (including attorneys' fees and fees of other
professionals retained by Mortgagee) incurred in any action to enforce this
Mortgage or the other Loan Documents or to collect any payments due from
Mortgagor under this Mortgage, the Note or any other Loan Document or incurred
in connection with any refinancing or restructuring of the credit arrangements
provided under this Mortgage, whether in the nature of a "workout" or in
connection with any insolvency or bankruptcy proceedings or otherwise.
59. Amendments and Waivers. Except as otherwise provided herein, no
amendment, modification, termination or waiver of any provision of this
Mortgage, the Note or any other Loan Document, or consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Mortgagee and any other party to be charged. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on Mortgagor in any case shall entitle Mortgagor to any other or further
notice or demand in similar or other circumstances.
60. Sophisticated Parties; Reasonable Terms. Mortgagor represents,
warrants and acknowledges that (i) Mortgagor is a sophisticated real estate
investors, familiar with transactions of this kind, and (ii) Mortgagor has
entered into this Mortgage and the other Loan Documents after conducting its own
assessment of the alternatives available to them in the market, and after
lengthy negotiations in which they have been represented by legal counsel of
their choice. Mortgagor also acknowledges and agrees that the rights of
Mortgagee under this Mortgage and the other Loan Documents are reasonable and
appropriate, taking into consideration all of the facts and circumstances
including without limitation the quantity of the loan secured by this Mortgage,
the nature of the Mortgaged Property, and the risks incurred by Mortgagee in
this transaction.
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61. Servicer. Mortgagee shall have the right at any time throughout the
term of the loan to designate a loan servicer to administer this Mortgage and
the other Loan Documents. All of Mortgagee's rights under this Mortgage and the
Loan Documents may be exercised by any such servicer designated by Mortgagee.
Any such servicer shall be entitled to the benefit of all obligations of
Mortgagor in favor of Mortgagee.
62. No Duty. All loan servicers, attorneys, accountants, appraisers, and
other professionals and consultants retained by Mortgagee or any such loan
servicers shall have the right to act exclusively in the interest of Mortgagee
and shall have no duty of disclosure, duty of loyalty, duty of care, or other
duty or obligation of any type or nature whatsoever to Mortgagor, any Guarantor
or Affiliate.
63. Future Advances. It is agreed that this Mortgage shall also secure
such future or additional advances as may be made by Mortgagee at its option to
the Mortgagor, or its successor in title, for any purposes, provided that all
those advances are to be made within twenty (20) years from the date of this
Mortgage, or with such lesser period of time as may be provided hereafter by law
as a prerequisite for the sufficiency of actual notice or record notice of the
optional future or additional advances as against the rights of creditors or
subsequent purchasers for valuable consideration. The total amount of
indebtedness secured by this Mortgage may decrease or increase from time to
time, but the total unpaid balance so secured at any one time shall not exceed
the maximum principal amount of TWELVE MILLION THREE HUNDRED THOUSAND AND NO/100
DOLLARS ($12,300,000), plus interest, and any disbursements made for the payment
of taxes, levies or insurance on the Mortgaged Property with interest on those
disbursements. If pursuant to Florida Statutes 697.04, Mortgagor files a notice
specifying the dollar limit beyond which future advances made pursuant to this
Mortgage will not be secured by this Mortgage, then Mortgagor shall, within one
(1) day of filing of such notice, notify Mortgagee and its counsel by certified
mail pursuant to Section 34 of this Mortgage. In addition, such a filing shall
constitute a default hereunder.
64. Cash Management. (a) In the event that Publix fails to exercise its
option to extend the term of the Publix Lease for an additional five (5) year
period on or before January 31, 2008 ("Cash Management Trigger Event"), then
Mortgagor shall immediately enter into one or more clearing and deposit
agreements, in a form provided by Mortgagee, by and among Mortgagor, Mortgagee
and one or more financial institutions (which may be Mortgagee or an affiliate
or subsidiary of Mortgagee) selected by Mortgagee (together with any
modification, amendment, substitution or replacement thereof, herein
collectively referred to as the "Cash Management Agreement"), and shall deliver
letters of direction in the form provided by Mortgagee and required under the
Cash Management Agreement (the "Letters of Direction") to all tenants under all
Leases, directing all such tenants to at all times thereafter deposit all Rents
directly into an interest-bearing account (the "Collection Account") to be
established in connection with such Cash Management Agreement; any failure of
Mortgagor to enter into such Cash Management Agreement, establish such
Collection Account and deliver such Letters of Direction to all tenants before
the date upon which the second consecutive Constant Payment (as defined in the
49
Note) is due following the occurrence of a Cash Management Trigger Event shall
constitute an Event of Default.
(b) The Cash Management Agreement shall, among other things, provide
that all Rents and other sums collected from, or arising with respect to, the
Mortgaged Property shall (1) be deposited directly by the tenants under the
Leases, and otherwise by Mortgagor, in the Collection Account established in
connection with the Cash Management Agreement, and (2) be disbursed in the
manner described in Section 64(c) hereof or in such other manner as is set forth
in the Cash Management Agreement. Mortgagor shall not have a right of withdrawal
in respect to the Collection Account, which shall be under the sole dominion and
control of Mortgagee. Mortgagor shall, pursuant to the Cash Management
Agreement, grant a first priority lien and security interest in and to the
Collection Account, any subaccounts or other accounts established under the Cash
Management Agreement and any funds and deposits therein and any proceeds
thereof. Mortgagor shall pay all reasonable costs and expenses required under
the Cash Management Agreement and in connection with the Collection Account and
all of Mortgagee's reasonable out-of-pocket costs and expenses (including
attorneys' fees) in connection with the preparation and negotiation of the Cash
Management Agreement.
(c) Prior to the occurrence of an Event of Default (and thereafter
during its continuance from time to time if Payee elects in its sole discretion
from time to time), and subject to the provisions of Section 64(e) below,
Mortgagor shall be obligated to pay, and Mortgagee shall collect from the
Collection Account to the extent of funds on deposit in such account, on the
first day of each calendar month, or if the first day of a calendar month is not
a business day, then the first business day following the first day of said
calendar month, (the "Distribution Date") (or at any time, at Mortgagee's
election in its sole discretion, after the occurrence of an Event of Default),
the following payments in the listed order of priority (or such other order as
Mortgagee may determine in its sole discretion upon the occurrence and
continuance of an Event of Default):
(i) First, to the payment of the monthly installments of
principal and/or interest due hereunder in the amount of the
Constant Payment (as defined in the Note);
(ii) Second, to the Tax and Insurance Escrow Fund in
accordance with the terms of Section 5;
(iii) Third, to the Replacement Reserve Fund in accordance
with the terms and conditions of Section 6;
(iv) Fourth, to the Reserve Fund (as defined in the Tenant
Improvement and Leasing Commissions Reserve Agreement dated as the
date hereof between Mortgagor and Mortgagee (the "TILC Agreement")),
in an amount equal to the monthly deposit required under the TILC
Agreement;
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(v) Fifth, to a reserve account established with Mortgagee for
the payment of actual costs incurred and paid or payable by
Mortgagor with respect to the operating expenses of the Mortgaged
Property in an amount equal to the applicable monthly operating
expenses (other than repairs, replacements and capital expenditures)
provided in the Approved Annual Budget or such other amount as shall
be approved by Payee;
(vi) Sixth, to the payment of any other amounts then due under
the Loan Documents; and
(vii) Seventh, any remaining funds in the Collection Account
after distribution to the subaccounts provided in clauses (i)
through (vi) above (the "Remaining Available Cash") shall be
distributed in accordance with the following conditions: the
Remaining Available Cash shall be transferred to the Publix Reserve
Fund (as defined below) for distribution in accordance with the
Publix Tenant Improvement and Leasing Commissions Reserve (as
defined below) until (1) the execution of one or more leases between
one or more tenants ("New Tenants") approved in writing by Mortgagee
in its sole and absolute discretion, which tenants shall be
unaffiliated with Mortgagor, any principal of Mortgagor, any
property manager or leasing broker or any guarantor and pursuant
thereto shall have leased the Publix Space upon terms (including,
but not limited to, the rental rate) satisfactory to Mortgagee and
(2) Mortgagor shall have provided evidence satisfactory to Mortgagee
in Mortgagee's sole and absolute discretion that the Mortgaged
Property maintains a Debt Service Coverage Ratio (as defined below)
of at least 1.40 to 1.0 (collectively "Publix Stop").
(d) Upon the occurrence of an Event of Default and during its
continuance, all funds and proceeds on deposit or to be deposited or held from
time to time in the Collection Account or any subaccounts or other accounts
established pursuant to the Cash Management Agreement may be applied by
Mortgagee in Mortgagee's sole and absolute discretion to the Debt, to
expenditures associated with the Mortgaged Property or to other costs and
expenses (including attorneys' fees and court costs) or to other amounts due
under the Loan Documents from time to time.
(e) In the event of a Cash Management Trigger Event, Mortgagor
shall, immediately, but in no event later than the date upon which the second
consecutive Constant Payment is due following the occurrence of the Cash
Management Trigger Event, enter into a tenant improvement and leasing commission
reserve agreement with Mortgagee, in Mortgagee's then current form (the "Publix
Tenant Improvement and Leasing Commissions Reserve Fund"), which Publix Tenant
Improvement and Leasing Commission Reserve shall establish an interest-bearing
reserve account for the deposit of the Remaining Available Cash in accordance
with the terms of the Cash Management Agreement (the "Publix Reserve Fund") and
provide for the release of the funds deposited into the Publix Reserve Fund to
reimburse Mortgagor for the cost of providing tenant improvements and leasing
commissions incurred by Mortgagor in connection with
51
the Publix Space. The Publix Reserve Fund shall be under the sole dominion and
control of Mortgagor. Any failure of Mortgagor to enter into the Publix Tenant
Improvement and Leasing Commissions Reserve within the time periods described in
this Section 64(e) shall be an Event of Default. Mortgagor shall pay all
reasonable costs and expenses required under the Publix Tenant Improvement and
Leasing Commissions Reserve and in connection with the Publix Reserve Fund and
all of Mortgagee's reasonable out-of-pocket costs and expenses (including
attorneys' fees) in connection with the preparation and negotiation of the
Publix Tenant Improvement and Leasing Commissions Reserve.
(f) Intentionally omitted.
(g) In the event of a Cash Management Trigger Event, provided no
Event of Default exists, Mortgagor shall be released from the requirements of
the Cash Management Agreement upon the occurrence of the Publix Stop.
(h) The "Debt Service Coverage Ratio" as of any date of
determination thereof or any period means the ratio of (1) annualized Property
Net Cash Flow (as defined below), to (2) annualized Adjusted Debt Service.
(i) the "Property Net Cash Flow" will be determined by
Mortgagee on an annualized basis based on income from the Property
(calculated as the sum of (i) base rents and monthly recoveries on
bona fide leases (with tenants unaffiliated with the Mortgagor, any
principal of the Mortgagor, any property manager or leasing broker,
or any guarantor) in place at the Property for the next twelve
months taken on a pro forma basis using leases at the Property with
tenants then in occupancy, but not on a month-to-month basis, open
for business and paying rent, and who have not given notice verbally
or in writing that they intend to go dark, and (ii) any other income
deemed recurring by Mortgagee based on trailing twelve month data)
minus Property expenses (based on the greater of actual expenses or
the amounts in the Mortgagor's budget), after Mortgagee makes
adjustments for (1) a credit loss/vacancy allowance equal to the
greatest of 8%, actual vacancy or market vacancy, (2) reduction of
above-market rents to market as determined by Mortgagee, (3)
increases in expenses from amounts set forth in the Mortgagor's
budget as determined by Mortgagee, (4) management fees equal to the
greater of actual management fees and 4% of total revenues from the
Property, (5) material increases in future operating expenses as
determined by Mortgagee, (6) an annual minimum replacement reserve
(not less than $0.21 per square foot per year) and annual reserve
for tenant improvement/leasing costs (not less than $0.36 per square
foot per year), and (7) impending vacancies and other adjustments as
Mortgagee shall deem necessary; and
(ii) "Adjusted Debt Service" will be equal to the product of
the monthly principal and interest payment due under the Note,
multiplied by twelve (12).
52
66. Documentary Stamp Taxes. Florida documentary obligation-to-pay stamp
taxes have been paid as noted hereon. The taxes due upon the recordation of this
Mortgage were computed on a documentary tax base of $12,300,000.00, which is the
maximum amount of indebtedness which may be secured hereby at any one time
67. Intangible Personal Property Taxes. Florida nonrecurring intangible
personal property taxes have been paid as noted hereon. The taxes due upon the
recordation of this mortgage were computed on an intangible tax base of
$12,300,000.00, which is the maximum amount of indebtedness which may be secured
hereby at any one time, although such amount may not yet have been advanced to
the Mortgagor.
68. Limitation on Liability. This Mortgage is a Loan Document, as defined
in the Note, to which the provisions of Section 12 of the Note apply and are
hereby incorporated in full herein by this reference, including those provisions
providing for the limitation on the personal liability of the Mortgagor and
other persons under the Loan Documents.
53
IN WITNESS WHEREOF, Mortgagor has executed this instrument the day and
year first above written.
MORTGAGOR:
RAMCO/CROSSROADS AT ROYAL PALM, LLC,
a Michigan limited liability company
By: RAMCO/CROSSROADS AT ROYAL PALM MANAGER, LLC,
a Michigan limited liability company,
its manager
By: RAMCO-GERSHENSON PROPERTIES, L.P.,
a Delaware limited partnership,
its sole member
By: RAMCO-GERSHENSON PROPERTIES TRUST,
a Maryland Real Estate Investment Trust,
its general partner
By: _______________________________
Name: _______________________________
Title: _______________________________
WITNESSES:
__________________________________
Name: ____________________________
__________________________________
Name: ____________________________
STATE OF )
) SS
COUNTY OF )
The foregoing instrument was acknowledged before me this __ day of
July, 2002, by _____________, as ___________ of Ramco-Gershenson Properties
Trust, a Maryland real estate investment trust, the general partner of
Ramco-Gershenson Properties, L.P., a Delaware limited partnership, the managing
member of Ramco/Crossroads at Royal Palm Manager, LLC, a Michigan limited
liability company, the manager of Ramco/Crossroads at Royal Palm, LLC, a
Michigan limited liability company, on behalf of the limited liability company.
He is personally known to me or has produced ________________ as identification
and did not take an oath.
________________________________________
Notary Public State at Large
Printed Name: _____________________
My Commission Expires: ____________
EXHIBIT A
Legal Description
PARCEL 1, PARCEL 2, PARCEL 3 AND PARCEL 4 AS FOLLOWS:
PARCEL 1
A PARCEL OF LAND LYING WITHIN THE SOUTHWEST ONE-QUARTER (SW 1/4) OF SECTION 23,
TOWNSHIP 43 SOUTH, RANGE 41 EAST, LYING AND BEING I N PALM BEACH COUNTY,
FLORIDA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF ROYAL PALM BEACH BOULEVARD AND OKEECHOBEE ROAD
AS RECORDED IN THE HAWTHORN II SUBDIVISION, IN PLAT BOOK 31, PAGE 34, RUN NORTH
88 DEGREES 10 MINUTES 42 SECONDS EAST ALONG THE CENTERLINE OF OKEECHOBEE ROAD
FOR A DISTANCE OF 1061.51 FEET TO A POINT; THENCE RUN NORTH 01 DEGREES 49
MINUTES 18 SECONDS WEST FOR A DISTANCE OF 53.00 FEET TO A POINT ON THE NORTHERLY
RIGHT-OF-WAY LINE OF OKEECHOBEE ROAD ACCORDING TO THE PLAT THEREOF, AS RECORDED
IN ROAD PLAT BOOK 4, PAGES 19 THROUGH 24, PALM BEACH COUNTY, FLORIDA, PUBLIC
RECORDS; THENCE RUN NORTH 16 DEGREES 53 MINUTES 44 SECONDS WEST FOR A DISTANCE
OF 7.25 FEET TO A POINT, SAID POINT BEING THE POINT OF BEGINNING.
FROM THE POINT OF BEGINNING RUN NORTH 16 DEGREES 53 MINUTES 44 SECONDS WEST FOR
A DISTANCE OF 1101.83 FEET TO A POINT; THENCE RUN SOUTH 73 DEGREES 06 MINUTES 16
SECONDS WEST FOR A DISTANCE OF 138.00 FEET; THENCE RUN NORTH 88 DEGREES 23
MINUTES 14 SECONDS WEST ALONG A LINE PERPENDICULAR TO THE EASTERLY RIGHT-OF-WAY
OF ROYAL PALM BEACH BOULEVARD, FOR A DISTANCE OF 520.49 FEET TO A POINT ON THE
EASTERLY RIGHT-OF-WAY OF ROYAL PALM BEACH BOULEVARD; THENCE RUN SOUTH 01 DEGREES
36 MINUTES 46 SECONDS WEST ALONG SAID RIGHT OF WAY, FOR A DISTANCE OF 1004.61
FEET TO A POINT; THENCE RUN SOUTH 45 DEGREES 06 MINUTES 18 SECONDS EAST ALONG
THE NORTHERLY RIGHT-OF-WAY LINE OF OKEECHOBEE ROAD AS EXPANDED BY THAT CERTAIN
RIGHT-OF-WAY DEED RECORDED IN OFFICIAL RECORDS BOOK 6324, PAGE 1765, PALM BEACH
COUNTY, FLORIDA, PUBLIC RECORDS FOR A DISTANCE OF 58.25 FEET, MORE OR LESS, TO A
PONT ON THE NORTH LINE OF THE SOUTH 74.00 FEET OF SAID SOUTHWEST ONE-QUARTER (SW
1/4) OF SECTION 23; THENCE RUN NORTH 88 DEGREES 10 MINUTES 42 SECONDS EAST ALONG
THE NORTH LINE OF THE SOUTH 74.00 FEET OF SAID SOUTHWEST ONE-QUARTER (SW 1/4) OF
SECTION 23 AND ALONG SAID EXPANDED NORTHERLY RIGHT-OF-WAY LINE FOR A DISTANCE OF
328.04 FEET; THENCE RUN SOUTH 88 DEGREES 37 MINUTES 00 SECONDS EAST ALONG SAID
EXPANDED NORTHERLY RIGHT-OF-WAY LINE FOR A DISTANCE OF 250.39 FEET, MORE OR
LESS, TO A POINT ON THE NORTH LINE OF THE SOUTH 60.00 FEET OF SAID SOUTHWEST
ONE-QUARTER (SW 1/4) OF SECTION 23; THENCE RUN NORTH 88 DEGREES 10 MINUTES 42
SECONDS EAST ALONG THE NORTH LINE OF THE SOUTH 60.00 FEET OF SAID SOUTHWEST
ONE-QUARTER (SW 1/4) OF SECTION 23 ALONG SAID EXPANDED NORTHERLY RIGHT-OF-WAY
LINE FOR A DISTANCE OF 381.57 FEET, MORE OR LESS, TO A POINT ON THE WESTERLY
LINE OF THE TRAILS AT ROYAL PALM BEACH, A CONDOMINIUM, THE DECLARATION OF WHICH
IS RECORDED IN OFFICIAL RECORDS BOOK 3714, PAGES 1156 THROUGH 1245, INCLUSIVE,
OF THE PUBLIC RECORDS OF PALM BEACH COUNTY, FLORIDA, SAID POINT BEING THE POINT
OF BEGINNING, LYING AND BEING IN PALM BEACH COUNTY, FLORIDA.
LESS AND EXCEPT THE FOLLOWING FROM PARCEL 1
COMMENCING at the intersection of the centerline of Royal Palm Beach Boulevard
with the centerline of Okeechobee Road, as shown on the Plat of HAWTHORN II, as
recorded in Plat Book 31, Pages 26 through 35, of the Public Records of Palm
Beach County, Florida; thence run North 88 10' 42" East along the centerline of
Okeechobee Road, for a distance of 1,061.51 feet; thence run North 01 49' 18"
West for a distance of 53.0 feet to the intersection with a line 53.0 feet North
of and parallel with said centerline of Okeechobee Road; thence run North 16 53'
44" West for a distance of 1,062.88 feet; thence run North 88 23' 14" West for a
distance of 323.49 feet; thence run South 01 36' 46" West for a distance of 55.0
feet to the POINT OF BEGINNING; thence continue South 01 36' 46" West along a
line 342.53 feet Easterly of and parallel with the East right-of-way line of
said Royal Palm Beach Boulevard and East limits of said HAWTHRON II, for a
distance of 90.0 feet; thence run North 88 23' 14" West for a distance of 130.00
feet to the intersection with a line 212.53 feet Easterly of and parallel with
the East right-of-way line of said Royal Palm Beach Boulevard and East limits of
said HAWTHORN II; thence run North 01 36' 46" East along said parallel line for
a distance of 90.0 feet; thence run South 88 23' 14" East for a distance of
130.0 feet to the POINT OF BEGINNING.
AND FURTHER LESS AND EXCEPT THE FOLLOWING FROM PARCEL 1:
That parcel of land set forth in that Special Warranty Deed from Crossroads At
Royal Palm Joint Venture, a Texas general partnership to Mobile Oil Corporation,
a New York corporation, dated June 15, 2000, recorded July 3, 2000 in Official
Records Book 11871, Page 1634, being more particularly described as follows:
A parcel of land in Section 23, Township 43 South, Range 41 East, Palm Beach
County, Florida, described as follows:
COMMENCING at the intersection of the centerline of Royal Palm Beach Boulevard
with the centerline of Okeechobee Road, as shown on the Plat of HAWTHORN II, as
recorded in Plat Book 31, Pages 26 through 35, of the Public Records of Palm
Beach County, Florida; thence North 88 10' 42" East, along the centerline of
Okeechobee Road, a distance of 1,061.51 feet; thence North 01 49' 18" West, a
distance of 53.0 feet to the North right of way line of said Okeechobee Road;
thence North 16 53' 44' West, a distance of 1,062.88 feet; thence North 88 23'
14" West along a line perpendicular to the East right of way line of Royal Palm
Beach Boulevard, a distance of 666.02 feet to said East right of way line of
Royal Palm Beach Boulevard; thence South 01 36' 46" West along said East right
of way line and East limits of said HAWTHORN II, a distance of 524.50 feet to
the POINT OF BEGINNING; thence continue South 01 36' 46" West along said East
right of way line and East limits of said HAWTHORN II, a distance of 210.50
feet; thence South 88 23' 14" East along a line perpendicular to said East right
of way line and East limits of said HAWTHRON II, a distance of 190.00 feet to
the intersection with a line 190.00 feet Easterly of and parallel with said East
right of way line and East limits of said HAWTHORN II; thence North 01 36' 46"
East along said parallel line, a distance of 210.50 feet; thence North 88 23'
14" West along a line perpendicular to said East right of way line and East
limits of said HAWTHORN II, a distance of 190.00 feet to the POINT OF BEGINNING.
PARCEL 2
Non-Exclusive easement for the benefit of Parcel 1 for the purposes of
maintaining, repairing and replacing drainage pipes, as defined in that Drainage
Easement dated September 10, 1990, recorded September 12, 1990 in Official
Records Book 6577, Page 1763, as amended by Amendment To Drainage Easement
recorded August 22, 1998 in Official Records Book 9407, Page 357.
PARCEL 3
Non-Exclusive easement for the benefit of Parcel 1 for ingress and egress as
defined in that Cross Easement Agreement, by and between Randy Rieger,
individually and as Trustee, and Royal Palm Associates, Ltd., dated September 6,
1990, recorded September 12, 1990 in Official Records Book 6577, Page 1758, of
the Public Records of Palm Beach County, Florida, as said driveways are
constructed from time to time.
PARCEL 4
Non-Exclusive easement for the benefit of Parcel 1 set forth in Cross Parking
and Easement Agreement, recorded December 7, 1987 in Official Records Book 5505,
Page 1306, of the Public Records of Palm Beach County, Florida, as affected by
Agreement recorded January 11, 1989 in Official Records Book 5933, Page 1269, as
amended by Corrective Agreement recorded April 3, 1990 in Official Records Book
6406, Page 551.