EXHIBIT 10.66
MORTGAGE
THIS MORTGAGE (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 __________ 2004, by RAMCO AUBURN CROSSROADS SPE LLC, a
Delaware limited liability company, having its principal place of business at
c/o Ramco-Gershenson, Inc., 27600 Northwestern Highway, Suite 200, Southfield,
Michigan 48034 ("Mortgagor"), to and for the benefit of CITIGROUP GLOBAL MARKETS
REALTY CORP., a New York corporation, its successors or assigns, having its
place of business at 388 Greenwich Street, 11th Floor, New York, New York, 10013
("Mortgagee").
W I T N E S S E T H:
To secure (A) the payment of an indebtedness in the principal sum of SEVEN
MILLION SEVEN HUNDRED FORTY THOUSAND AND NO/100 DOLLARS ($7,740,000), lawful
money of the United States of America, to be paid with interest according to
that certain promissory note dated of even 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 such term is 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"), and (B) the payment of an indebtedness in the
aggregate principal sum of TWENTY-SIX MILLION NINE HUNDRED SIXTY THOUSAND AND
NO/100 DOLLARS ($26,960,000), in lawful money of the United States of America,
to be paid with interest according to the Crossed Note (as defined in Schedule 1
hereto) that evidences the Crossed Loan (as defined in Schedule 1 hereto) made
contemporaneously herewith by Mortgagee to the Mortgagor, and which Crossed Note
is secured by, among other things, the Crossed Mortgage (as defined in Schedule
1 hereto) encumbering the Crossed Property (as defined in Schedule 1 hereto),
and all other sums otherwise due under the Crossed Loan Documents (as defined in
Schedule 1 hereto); said Crossed Loan and other indebtedness and all other sums
due under the Crossed Note and the Crossed Loan Documents being herein referred
to as the "Crossed Debt", Mortgagor has mortgaged, given, granted, bargained,
sold, alienated, infeft, conveyed, confirmed, pledged, assigned, and
hypothecated and by these presents does hereby MORTGAGE, WARRANT, GIVE, GRANT,
BARGAIN, SELL, 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"; which Mortgaged
Property has been subjected to condominium ownership pursuant to (a) that
certain Master Deed, Auburn Outlot Condominium, Oakland County Condominium,
Subdivision Plan No. 1519 dated February 17th, 2003 by Ramco-Gershenson
Properties, L.P., a Delaware limited partnership, and (b) that certain Master
Deed, Auburn Mile Condominium, Oakland County Condominium, Subdivision Plan No.
1353 dated April 18, 2001 by Ramco-Gershenson Properties, L.P. (collectively,
the "Condominium Documents"):
(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 "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;
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(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") 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;
(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;
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(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 any 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, in fee simple forever;
PROVIDED, HOWEVER, these presents are upon the express condition that, if
Mortgagor shall well and truly pay to Mortgagee the Debt and the Crossed Debt at
the time and in the manner provided in the Note, the Crossed Note, this Mortgage
and the Crossed Mortgage, and shall well and truly abide by and comply with each
and every covenant and condition set forth herein and in the Note, the Crossed
Note, the Loan Documents and the Crossed Loan Documents 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 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
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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 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 $2 million in the aggregate, 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.
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(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 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.
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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 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. 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
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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 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
$200,000, 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
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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 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 or the Crossed Debt shall
not be considered a voluntary prepayment requiring payment of the
Prepayment Consideration (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
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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 prepayment requiring payment of the Prepayment
Consideration) 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. 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.
5. Intentionally Deleted.
6. Intentionally Deleted.
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
10
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 in such order and manner as Mortgagee determines (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.
(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. Any
surplus which may remain out of condemnation 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 in such order and manner as Mortgagee
determines (such application to the Debt shall not be considered a voluntary
prepayment requiring payment of the Prepayment Consideration) or paid to
Mortgagor.
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.
11
(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, and the Nonconsolidation Opinion (as defined
below). None of the assumptions set forth in such opinions are incorrect.
(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.
(g) Mortgagor shall cause the law firm of Richards, Layton &
Finger, or other reputable Delaware counsel acceptable to Mortgagee (the "Law
Firm") to deliver to Mortgagee an opinion letter reasonably satisfactory to
Mortgagee, whereby the Law Firm opines (which opinion may be subject to standard
assumptions, qualifications, limitations and exceptions acceptable to
Mortgagee), among other requirements of Mortgagee, that: (1) the unanimous
consent of the Single Member and the Independent Director is required in order
for the Mortgagor to file a voluntary bankruptcy petition; (2) the provision in
the Mortgagor's organizational documents that requires unanimous consent as a
condition to filing a voluntary bankruptcy petition is enforceable against the
Single Member; (3) the bankruptcy of the Single Member will not cause Mortgagor
to be dissolved; (4) no creditor of the Single Member shall have the right to
obtain possession of, or otherwise exercise legal or equitable remedies with
respect to, Mortgagor's property; and (5) Delaware law,
12
not federal law governs the determination of what persons or entities have the
authority to file a voluntary bankruptcy petition on behalf of Mortgagor.
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 the Crossed Property, and (ii)
incidental personal property necessary for the ownership or operation of the
Mortgaged Property and the Crossed Property.
(b) Mortgagor has not engaged and shall not engage in any business
or activity other than the ownership, management and operation of the Mortgaged
Property and the Crossed 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. Mortgagor will
appropriately document and accurately record on its books and records all
contracts, business transactions and transfers between Mortgagor, on the one
hand, and any of Ramco-Gershenson Properties, L.P., a Delaware limited
partnership (the "Partnership"), Ramco-Gershenson, Inc., a Michigan corporation
("RG, Inc."), and/or the REIT (as defined in Section 12 below), on the other.
(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 (A) the original loan amount evidenced by the Note with
respect to trade and operational debt incurred with respect to the Mortgaged
Property and (B) the Crossed Loan amount with respect to trade and operational
debt incurred with respect to the Crossed Property, 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 the Partnership, provided that such
loan or loans are made for the sole purpose of funding, and are used by
Mortgagor solely for, working capital and/or otherwise to improve, alter and
remodel the Mortgaged Property and provided that Mortgagee consents to such
improvement, alteration or remodeling, as applicable, such consent not to be
unreasonably withheld; provided, however, 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
13
payments by Mortgagor from excess cash flow from the Mortgaged Property may be
permitted so long as no Event of Default 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 $10,100,000 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 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.
(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, if any, as may be required under applicable law, or if
part of a consolidated group filing, the Mortgagor is shown as a separate member
of such group. 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
14
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
sought 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).
(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.
15
(s) Mortgagor shall be a limited liability company formed under
the laws of the State of Delaware with one (1) member (the "Single Member"),
whose certificate of formation and operating agreement ("Mortgagor's
Organizational Documents") shall be in form and substance reasonably
satisfactory to Mortgagee.
(t) Mortgagor's Organizational Documents shall contain each of the
representations, covenants and warranties set forth in this Section 9 and shall
require Mortgagor to at all times cause there to be at least one (1) duly
appointed member of the board of directors (each an "Independent Director") of
Mortgagor who shall be an individual, natural person and whose vote will be
required in connection with the voluntary filing for protection under the
Bankruptcy Code or similar action by Mortgagor and who is not at the time of
initial appointment, and may not have been at any time during the preceding five
years, a shareholder of (other than as a shareholder of the REIT, so long as
such person has not been a shareholder of the REIT within the last 2 years), or
an officer, director (other than an Independent Director), partner, paid
consultant or employee of, Mortgagor or any of its shareholders, subsidiaries or
affiliates, a customer of, or supplier to, Mortgagor or any of its shareholders,
subsidiaries or affiliates, a person or other entity controlling or under common
control with any such shareholder, partner, supplier or customer, or a member of
the immediate family of any such shareholder, officer, director, partner,
employee, supplier or customer of Mortgagor. As used herein, the term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a person or entity, whether
through ownership of voting securities, by contract or otherwise. Mortgagor's
Organizational Documents shall further require that upon the occurrence of any
event that causes the Single Member to cease to be a member in Mortgagor, the
Independent Director shall, without action of any person and simultaneously with
the Single Member ceasing to be a member of Mortgagor, automatically be admitted
to Mortgagor as a member and shall continue the Mortgagor without dissolution.
(u) Intentionally Deleted.
(v) Mortgagor shall not cause or permit the board of directors of
Mortgagor to take any action which, under the terms of any certificate of
incorporation, by-laws or any voting trust agreement with respect to any common
stock, requires the vote of the board of directors of Mortgagor unless at the
time of such action there shall be at least one (1) member who is an Independent
Director.
(w) Mortgagor has conducted and shall conduct its business so that
the assumptions made with respect to Mortgagor in that certain opinion letter
dated of even date herewith (the "Nonconsolidation Opinion") delivered by
Honigman Miller Schwartz and Cohn LLP in connection with the Loan shall be true
and correct in all respects.
10. Maintenance of the 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
16
which constitutes a public or private nuisance or which makes void, voidable, or
cancelable, or increases the premium of, any insurance then in force with
respect thereto. The Improvements and the Equipment shall not be removed,
demolished or materially altered (except for normal replacement of the
Equipment) without the consent of Mortgagee. Mortgagor shall promptly comply
with all laws, orders and ordinances affecting the Mortgaged Property, or the
use thereof. Mortgagor shall promptly repair, replace or rebuild any part of the
Mortgaged Property which may be destroyed by any casualty, or become damaged,
worn or dilapidated or which may be affected by any proceeding of the character
referred to in Section 7 hereof and shall complete and pay for any structure at
any time in the process of construction or repair on the Premises.
11. Use of the 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 has examined and relied on the creditworthiness and
experience of Mortgagor in owning and operating properties such as the Mortgaged
Property in agreeing to make the loan secured hereby, and that Mortgagee will
continue to rely on Mortgagor's ownership of the Mortgaged Property as a means
of maintaining the value of the Mortgaged Property as security for repayment of
the Debt. Mortgagor acknowledges that Mortgagee has a valid interest in
maintaining the value of the Mortgaged Property so as to ensure that, should
Mortgagor default in the repayment of the Debt, Mortgagee can recover the Debt
by a sale of the Mortgaged Property. 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
17
(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 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 the Partnership 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 the Partnership and continues to maintain not less
than a 50% partnership interest in the Partnership, 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
18
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 the Partnership 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 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 the
Partnership and continues to maintain not less than a 50% partnership interest
in the Partnership.
(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
19
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:
(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 the Partnership or shall be an affiliate of the
Partnership in which the Partnership 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) unless otherwise waived by Mortgagee based on applicable
guidelines of the Rating Agencies (as hereinafter defined),
Mortgagee shall have recommendations in writing from the Rating
Agencies 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. The
term "Rating Agencies" as used herein shall mean each of Standard &
Poor's Ratings Services, a division of McGraw-Hill Companies, Inc.,
Moody's Investors Service, Inc., and Fitch Ratings (or its
affiliates), or any other nationally-recognized statistical rating
agency which is or may be designated by Mortgagee;
(v) either the 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;
(vi) 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 the Partnership or shall be an affiliate of the Partnership
in which the Partnership shall own, directly or indirectly, at least
a
20
25% beneficial ownership and economic interest, the 1% assumption
fee shall be waived;
(vii) the Crossed Property is sold or transferred to (and the
related Crossed Loan is assumed by) the Transferee simultaneously
with the transfer of the Mortgaged Property to the Transferee, in
accordance with the terms of the Crossed Mortgage, and all the
conditions to such transfers set forth in the Crossed Mortgage are
satisfied; and
(viii) as a result of the transfer or proposed transfer of the
Mortgaged Property, no other party other than Transferee will have
any right or option to purchase the Mortgaged Property, or, if any
other party has such right or option, such right or option has been
waived by such party.
(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, 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 (i) deducting the
Loan from the value of the Mortgaged Property for the purpose of taxation, (ii)
affecting any lien on the Mortgaged Property, or (iii) changing existing laws of
taxation of mortgages, deeds of trust,
21
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.
(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
22
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 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 subsections 17(b)(ii)(A), (B) and (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
23
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.
(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, 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.
(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 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,
24
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 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
25
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.
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;
26
(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;
(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
27
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);
(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; or
(t) there shall occur an "Event of Default" (as such term is defined
in the Crossed Mortgage) under the Crossed Mortgage or the other Crossed Loan
Documents.
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 Subsections
22(c),(h),(j),(l),(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
28
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, 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
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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 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. At the option of Mortgagee, this
Mortgage may be foreclosed upon by Mortgagee using any method permitted by the
laws of the State of Michigan in effect on the date that foreclosure is
commenced. Mortgagee shall be entitled to collect from Mortgagor all costs and
expenses incurred in pursuing foreclosure, including, but not limited to,
attorneys' fees and costs of environmental reports, appraisals, documentary
evidence, abstracts, and title reports. Mortgagee shall deliver to the purchaser
a deed conveying the Mortgaged Property sold as a result of such foreclosure
without any covenant or warranty, expressed or implied. The recitals in the deed
shall apply the proceeds of such sale in the following order: (a) to all costs
and expenses of the sale, including, but not limited to, reasonable attorneys'
fees and costs of title evidence, (b) to all sums secured by this Mortgage in
such order as Mortgagee, in Mortgagee's sole discretion directs, and (c) the
excess, if any, to the person or persons legally entitled thereto.
Anything to the contrary herein or elsewhere notwithstanding,
Mortgagee may cease or suspend any and all performance required of Mortgagee
under the Loan Documents upon and during the continuance of any breach or
default under any of the Loan Documents.
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(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 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 24(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
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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, 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 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
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to the Debt, the Loan Documents, the Mortgaged Property or otherwise, and the
rights, remedies, recourses and powers of Mortgagee shall continue as if same
had never been invoked.
(k) Remedies Cumulative. All rights, remedies, and recourses of
Mortgagee granted in the Note, this Mortgage and the other Loan Documents, any
other pledge of collateral, or otherwise available at law or equity: (i) shall
be cumulative and concurrent; (ii) may be pursued separately, successively, or
concurrently against Mortgagor, the Mortgaged Property, or any one or more of
them, at the sole discretion of Mortgagee; (iii) may be exercised as often as
occasion therefor shall arise, it being agreed by Mortgagor that the exercise or
failure to exercise any of same shall in no event be construed as a waiver or
release thereof or of any other right, remedy, or recourse; (iv) shall be
nonexclusive; (v) shall not be conditioned upon Mortgagee exercising or pursuing
any remedy in relation to the Mortgaged Property prior to Mortgagee bringing
suit to recover the Debt; and (vi) in the event Mortgagee elects to bring suit
on the Debt and obtains a judgment against Mortgagor prior to exercising any
remedies in relation to the Mortgaged Property, all liens and security
interests, including the lien of this Mortgage, shall remain in full force and
effect and may be exercised thereafter at Mortgagee's option.
(l) Election of Remedies. Mortgagee may release, regardless of
consideration, any part of the Mortgaged Property without, as to the remainder,
in any way impairing, affecting, subordinating, or releasing the lien or
security interests evidenced by this Mortgage or the other Loan Documents or
affecting the obligations of Mortgagor or any other party to pay the Debt. For
payment of the Debt, Mortgagee may resort to any collateral securing the payment
of the Debt in such order and manner as Mortgagee may elect. No collateral taken
by Mortgagee shall in any manner impair or affect the lien or security interests
given pursuant to the Loan Documents, and all collateral shall be taken,
considered, and held as cumulative.
(m) 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
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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 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
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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 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.
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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 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
36
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 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.
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(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.
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 to,
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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:
(A) Equity interests in Mortgagor are publicly offered
securities, within the meaning of 29 C.F.R. Section
2510.3-101(b)(2);
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(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 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
40
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 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.
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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 employees in favor of any party
other than Mortgagor.
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.
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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 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
43
(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
investor, 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 it in the market, and after lengthy
negotiations in which it has been represented by legal counsel of its 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.
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. 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.
64. Special Michigan Provisions. The following provisions shall also
constitute an integral part of this Mortgage. Furthermore, in the event that any
prior provisions of this Mortgage
44
conflict with the following provisions of this Section, the provisions of this
Section shall control and shall be deemed a modification of or amendment to the
section or provision at issue.
(a) Additional Provisions Regarding Foreclosure by Power of Sale.
Mortgagor acknowledges that, after the occurrence and during the continuance of
an Event of Default, Mortgagee is authorized and empowered to sell the Mortgaged
Property or to cause the same to be sold, and to convey the same to the
purchaser in any lawful manner, including that provided by Chapter 32 of the
Revised Judicature Act of Michigan, entitled "Foreclosure of Mortgages by
Advertisement," which permits Mortgagee to sell the Mortgaged Property without
affording Mortgagor a hearing or giving Mortgagor actual personal notice. The
only notice required under such Chapter 32 is to publish notice in a local
newspaper and to post a copy of the notice at the Mortgaged Property. Mortgagor
hereby acknowledges that this Mortgage contains a POWER OF SALE and that if
Mortgagee elects to foreclose by advertisement pursuant to the POWER OF SALE, in
accordance with MCLA 600.3201 et seq., MORTGAGOR EXPRESSLY WAIVES NOTICE THEREOF
(EXCEPT ANY NOTICE REQUIRED UNDER THE AFORESAID STATUTE), A HEARING PRIOR TO
SALE AND ANY RIGHT, CONSTITUTIONAL OR OTHERWISE, THAT MORTGAGOR MIGHT OTHERWISE
HAVE TO REQUIRE A JUDICIAL FORECLOSURE.
(b) Mortgagee's Statutory Rights Regarding Leases and Rents.
Mortgagor, pursuant to Act No. 210 of Michigan Public Acts of 1953, as amended
(MCLA 554.231 et seq.), does hereby sell, assign, transfer, and set over to
Mortgagee all of its right, title, and interest in and to all rents payable
under any leases of any portion of the Mortgaged Property and all lease, rental,
use, sale, or license agreements (hereinafter collectively referred to as the
"leases"), existing as of the date hereof, if any, or hereinafter executed
covering the Mortgaged Property, together with any and all extensions and
renewals of any of said leases, along with the rents, accounts, issues, income,
profits, proceeds, security deposits, and other payments now owing or which
shall hereafter become owing by virtue of all of said leases and all extensions,
amendments, and renewals thereof, to have and to hold unto Mortgagee as
additional security for the indebtedness secured hereby. Mortgagee shall have
all rights and remedies available to an assignee under Act No. 210 of Michigan
Public Acts of 1953, as amended.
(c) Construction Liens. All references in this Mortgage or in any of
the other Loan Documents to mechanic's liens, or materialman's liens, or similar
liens shall be deemed to include "construction liens" as defined in MCL
570.1103(3).
(d) Future Advance Mortgage. This Mortgage secures future advances
and is a future advance mortgage under Act No. 348 of the Michigan Public Acts
of 1990 (MCL 565.901 et. seq.). All future advances under the Note, this
Mortgage and the other Loan Documents shall have the same priority as if the
future advance was made on the date that this Mortgage was recorded.
65. Release of Cross Default/Cross Collateralization. Notwithstanding
anything to the contrary set forth in this Mortgage, Mortgagee may, at its sole
option and in its sole discretion deliver written notice to Mortgagor stating
that this Mortgage and the other Loan Documents shall
45
no longer secure the Crossed Loan (a "Release Notice"), whereupon (i) this
Mortgage and the other Loan Documents shall no longer secure the Crossed Loan,
and (ii) each reference herein and in the other Loan Documents to the "Crossed
Loan", the "Crossed Debt", the "Crossed Note", the "Crossed Mortgage", the
"Crossed Loan Documents" and the "Crossed Property" shall be deemed of no
further force or effect. In addition to and without limiting the foregoing,
Mortgagor hereby agrees to fully cooperate with Mortgagee if Mortgagee is
considering the termination of the cross collateralization and cross default of
this Mortgage with the Crossed Loan, including, but not limited to (x) amending
this Mortgage and the other Loan Documents as may be required by Mortgagee to
effectuate such termination of the cross collateralization and cross default
provisions thereof, (y) updating and/or endorsing the title insurance policies
(at Mortgagee's cost as to additional premium charges, if any) to reflect the
continuation of the first priority lien of this Mortgage, and (z) forming a
special-purpose bankruptcy remote entity, which shall be an affiliate of
Mortgagor, to be the borrower (the "Successor Borrower") under the Loan,
assigning the Loan Documents from Mortgagor to the Successor Borrower,
transferring the Mortgaged Property to the Successor Borrower, and obtaining
such legal opinions as may be reasonable required by Mortgagee. Notwithstanding
the foregoing, Mortgagor shall not be compelled to take any action under this
Section 65 which would impose an out of pocket cost on Mortgagor in excess of
$1,000, unless Mortgagee undertakes to pay such cost.
66. Partial Release. Reference is hereby made to the following two tenant
purchase options (the purchase option described in clause (i) below is herein
referred to as the "Staples Option" and the purchase option in clause (ii) below
is herein referred to as the "Olive Garden Option"; the leased premises subject
to the Staples Option is described on Exhibit B hereto and is herein referred to
as the "Staples Parcel", and the leased premises subject to the Olive Garden
Option is described on Exhibit C hereto and is herein referred to as the "Olive
Garden Parcel"; the Staples Parcel and Olive Garden Parcel are herein each
sometimes referred to as a "Partial Release Parcel"):
(i) The Staples Option is set forth in Article XXVII of the Ground
Lease (the "Staples Lease") dated November 14, 2002 by and between
CJM-Auburn Stpl, LLC, as tenant ("Staples Tenant"), and Ramco-Gershenson
Properties, L.P., as landlord, whereby the Staples Tenant is granted the
option to purchase the Staples Parcel for an amount equal to $1,275,600
(the "Staples Purchase Price") during a time period which commences more
than five years after the scheduled maturity of the Debt, except that the
Staples Tenant may exercise the Staples Option prior to such time period
in the event of an uninsured casualty, as described in Section 15.01 of
the Staples Lease, or in the event that Mortgagor terminates the Staples
Lease as a result of a casualty that materially damages more than fifteen
percent (15%) of the floor area of the building on the Staples Parcel and
occurs during the last two years of the original term or the last two
years of any extension period of the term of the Staples Lease, as
provided in Section 15.02 of the Staples Lease; and
(ii) The Olive Garden Option is set forth in Section III(39) of and
Exhibit E to the Net Ground Lease (the "Olive Garden Lease") dated
December 29, 2000 by and between GMRI, Inc., as tenant (the "Olive Garden
Tenant"), and Ramco-Gershenson
46
Properties, L.P., as landlord, whereby the Olive Garden Tenant is granted
the option to purchase the Olive Garden Parcel for an amount equal to
$968,000 (the "Olive Garden Purchase Price") not earlier than the first
day of the sixth lease year (which shall occur prior to the scheduled
maturity of the Debt) and not later than the date six months prior to the
last day of the sixth lease year of the term of the Olive Garden Lease,
and then only if the Olive Garden Tenant is not in default under the Olive
Garden Lease and delivers to Mortgagor and the City of Auburn Hills a
certification that its net worth exceeds $5,000,000.
Mortgagor shall not under any circumstance, without Mortgagee's prior
written consent, amend or modify either of the Olive Garden Lease or the Staples
Lease (each an "Option Lease") or take any other action which in any manner
accelerates or permits an earlier exercise, or removes conditions to the
exercise by the Olive Garden Tenant or the Staples Tenant (each an "Option
Tenant"), of either the Olive Garden Option or the Staples Option (each a
"Purchase Option"). Mortgagor shall, within five (5) Business Days of receiving
notice of the exercise by an Option Tenant of its Purchase Option provide a copy
of such notice to Mortgagee. If an Option Tenant is entitled to and does
exercise its Purchase Option under its Option Lease to acquire its related
Partial Release Parcel and satisfies all conditions of its Option Leases to the
exercise of such Purchase Option, including without limitation the payment of
the Staples Purchase Price or the Olive Garden Purchase Price, as applicable
(the "Option Price"), Mortgagee agrees to issue a partial release of the
applicable Partial Release Parcel from the lien of this Mortgage (such partial
release thereof being herein referred to as the "Partial Release"), provided
that all of the following conditions precedent have been satisfied:
(a) Option Tenant satisfies all the conditions in the Option Lease to its
completion of the purchase of the Partial Release Parcel, and in a closing
transaction (which closing will be conducted through a customary closing escrow
with a reasonably acceptable title company or other escrow agent pursuant to
reasonable and customary closing instructions) completes the purchase of the
Partial Release Parcel simultaneously with the Partial Release, with the Option
Price paid into escrow and released to Mortgagee (for application as provided
below with respect to the Option Proceeds Reserve, as described below);
(b) appropriate agreements or instruments shall have been delivered to
Mortgagee providing for the transfer of title to the Partial Release Parcel, and
upon completion of the Partial Release, title to the Partial Release shall be
transferred and no longer owned by Mortgagor;
(c) Mortgagor shall have executed and delivered to Mortgagee all documents
and instruments necessary or appropriate to effectuate the Partial Release; and
(d) Mortgagor shall have paid Mortgagee's reasonable costs and expenses in
connection with the Partial Release, as set forth below.
Mortgagor further represents, warrants, covenants and agrees, with respect
to any Partial Release and Partial Release Parcel, as follows:
47
(1) the Partial Release Parcel is not, or will not be upon completion of
the Partial Release, necessary for access, utilities or parking for the
remainder of the Mortgaged Property (the "Remaining Mortgaged Property"), except
for those portions of the Partial Release Parcel which are currently subject to
easements for access, utilities or parking, which easements will remain in place
and in full force and effect following the conveyance of the Partial Release
Property to the Option Tenant and may not be terminated by the Option Tenant;
(2) upon completion of the Partial Release, either (x) the Remaining
Mortgaged Property shall have been (or will be, upon the completion of the
Partial Release) legally subdivided pursuant to a properly recorded subdivision
map which has been approved by all appropriate governmental offices providing
that the Remaining Mortgaged Property and the Partial Release Parcel are
separate and distinct legally subdivided parcels or (y) Mortgagor shall have
delivered to Mortgagee satisfactory evidence that a subdivision is not required
by applicable law;
(3) upon completion of the Partial Release, the Partial Release Parcel
shall either (x) have a tax identification number or assessor's parcel number
separate from the Remaining Mortgaged Property, such that no part of the
Remaining Mortgaged Property is part of a tax lot affecting any portion of the
Partial Release Parcel, or (y) have or will promptly make all necessary tax
filings and applications required in order for the Partial Release Parcel to be
separated from the Remaining Mortgaged Property as such a separate tax parcel
for the next tax year, and shall make such deposits with Mortgagee may
reasonably require in order to provide assurance that the taxes and assessments
with respect to the Partial Release Parcel shall be paid when due until such
time as the Partial Release Parcel is a separate tax parcel from the Remaining
Mortgaged Property;
(4) upon completion of the Partial Release, the Remaining Mortgaged
Property shall fully complies with all applicable zoning laws and ordinances,
and no reduction in parking, landscaping or other amenities shall result from
the Partial Release; and
(5) Mortgagor shall provide to Mortgagee at the closing of the release of
the Partial Release Parcel an endorsement to Mortgagee's title insurance policy
covering the Mortgaged Property, insuring Mortgagee that the lien of this
Mortgage is and remains a first lien against the Remaining Mortgaged Property
and is not and will not be impaired or affected by reason of the release, and
such other endorsements as Mortgagee may reasonably require; and
(6) All costs and expenses incurred by Mortgagee in connection with such
Partial Release, including, but not limited to, the preparation, negotiation and
review of any and all materials required to be provided in connection therewith
(including Mortgagee's reasonable attorneys' fees and expenses) shall be
reimbursed by Mortgagor promptly upon demand.
The Option Price paid pursuant to the exercise of a Purchase Option
shall be paid to Mortgagee and deposited into an interest bearing account which
shall meet the standards for custodial accounts as required by Mortgagee from
time to time (such Option Price so deposited, together with any interest accrued
thereon, are referred to collectively as the "Option Proceeds Reserve"). The
Option Proceeds Reserve may be commingled with Mortgagee's or its servicer's or
representative's other funds, or funds held by them in trust for others or as
security for other obligations under the Loan Documents or otherwise, and may be
maintained as a subaccount under
48
Mortgagee's or its servicer's or representative's internal accounting
methodology for accounts holding funds in addition to and other than the Option
Proceeds Reserve. Mortgagee or its designated servicer or representative shall
have the sole right to make withdrawals from the Option Proceeds Reserve.
Mortgagor hereby pledges, assigns and grants to Mortgagee a continuing perfected
security interest in and to and a first lien upon the Option Proceeds Reserve as
additional security for the Debt and the Crossed Debt. The Option Proceeds
Reserve shall, provided no Event of Default exists, be held as additional
collateral for the Debt and shall be disbursed to Mortgagor only when the Debt
and Crossed Debt have been paid in full and this Mortgage and the Crossed
Mortgage satisfied. Upon the occurrence and during the continuance of Event of
Default, Mortgagee may in its sole and absolute discretion, use the funds in the
Option Proceeds Reserve (or any portion thereof) for application to any of the
Debt or Crossed Debt, including, without limitation, payments or partial
payments of principal, interest, enforcement costs (including without limitation
reasonable legal fees and expenses) and other amounts expended in exercising all
rights and remedies available to Mortgagee at law or in equity or under this
Mortgage or under any of the other Loan Documents or any of the Crossed Loan
Documents.
In the event the Option Proceeds Reserve is established and
maintained, and provided no Event of Default exists, Mortgagor may, at
Mortgagor's option, cause to be executed and delivered to Mortgagee, as
beneficiary, an unconditional, irrevocable, fully assignable standby letter of
credit in the amount of the balance of the Option Proceeds Reserve (the
"Required Amount") issued by a bank having a long-term unsecured debt rating of
at least "A" by Standard & Poor's Rating Services, a division of The McGraw-Hill
Companies, Inc. ("S&P")(and the equivalent by the other Rating Agencies) and a
short-term unsecured debt rating of not less than "A-1" by S&P (and the
equivalent by the other Rating Agencies), or any other nationally recognized
financial institution satisfactory to Mortgagee (an "Approved Bank"), having an
expiration date not less than twelve months after its date of issuance,
extension or renewal, whichever is later, and providing that the Mortgagee or
its successors and assigns may draw the full amount thereof at any time upon
demand (and subject to no other drawing requirements or conditions), and
substantially in the form of Exhibit D attached hereto (the "Initial Letter of
Credit"). Upon receipt of the Initial Letter of Credit, and provided no Event of
Default has occurred and is continuing, Mortgagee shall release the Option
Proceeds Reserve to Mortgagor. The Initial Letter of Credit (as the same may be
extended, renewed or replaced pursuant hereto) shall be either (i) extended or
renewed, in each case for the full Required Amount and for a period of not less
than twelve months, by means of an instrument delivered to Mortgagee and
satisfactory to Mortgagee, or (ii) replaced by a letter of credit in the amount
of the full Required Amount delivered to Mortgagee having an expiration date not
less than one year after its date of issuance, issued by an Approved Bank in the
same form as the Initial Letter of Credit, or such other form as is satisfactory
to Mortgagee in its sole and absolute discretion (a "Replacement Letter of
Credit"), in each case not less than sixty (60) days prior to the expiration
date of the Initial Letter of Credit (as the same may have been previously
extended or renewed in a manner acceptable to Mortgagee as required above) or
the expiration date of any Replacement Letter of Credit previously provided to
Mortgagee in conformity with the above requirements. If the Initial Letter of
Credit or any Replacement Letter of Credit provided to Mortgagee in conformity
with the above requirements (each, a "Letter of Credit") is not extended,
renewed or replaced in a manner acceptable to Mortgagee as required above not
less than sixty (60) days prior to the expiration date of the Letter of Credit,
such failure to extend, replace or renew the Letter of Credit shall constitute
49
an Event of Default hereunder and under the other Loan Documents; provided,
however, that Mortgagor may replace a Letter of Credit (not less than sixty (60)
days prior to the expiration date of the Letter of Credit) by depositing with
Mortgagee a cash sum equal to the Required Amount, and said cash sum shall be
deemed the re-established Option Proceeds Reserve and shall be held and applied
in accordance with the terms of this Mortgage. Notwithstanding the foregoing,
under no circumstance may the Mortgagor be obligated to the issuer of any Letter
of Credit, or to the Letter of Credit applicant or any other person or entity
for the payment of the amount of the Letter of Credit or the reimbursement of
the issuer of the Letter of Credit or any other such person or entity upon the
occurrence of any draw upon the Letter of Credit (by virtue of subrogation or
otherwise), and satisfaction of this requirement shall be a condition to the
permitted use by Mortgagor of a Letter of Credit hereunder. Upon the occurrence
of any Event of Default, Mortgagee may draw upon the Letter of Credit and either
(1) apply all or part of the proceeds of such draw (collectively, including any
interest earned thereon in the event the proceeds are held prior to application
in the Draw Proceeds Account referred to below, the "Draw Proceeds") for
application, in such order and manner as Mortgagee shall determine in its sole
and absolute discretion, to any of the Debt or Crossed Debt, including, without
limitation, payments or partial payments of principal, interest, enforcement
costs (including without limitation reasonable legal fees and expenses) and
other amounts expended in exercising all rights and remedies available to
Mortgagee at law or in equity or under this Mortgage or under any of the other
Loan Documents or any of the Crossed Loan Documents, or (2) deposit all or part
of the Draw Proceeds in any interest bearing account, subaccount or other
repository of funds selected by Mortgagee from time to time (the "Draw Proceeds
Account"), and hold such funds during the pendency of such Event of Default or,
at Mortgagee's sole and absolute discretion, apply any of such Draw Proceeds in
the manner set forth in clause (2) above, it being understood and agreed that
any Draw Proceeds shall be Mortgagee's sole property and Mortgagor shall have no
right, title or interest therein. Without limiting the foregoing, the Draw
Proceeds may be commingled with Mortgagee's or its representative's other funds,
or funds held by them in trust for others or as security for other obligations
under the Loan Documents or otherwise. Without in any way implying that
Mortgagor shall have any right, title or interest in any Draw Proceeds,
Mortgagor hereby pledges, assigns and grants to Mortgagee a continuing perfected
security interest in and to and a first lien and right of offset upon any right,
title or interest Mortgagor may under any circumstance be deemed or determined
to have in or with respect to the Draw Proceeds and the Draw Proceeds Account,
as additional security for all the Mortgagor's obligations under the Loan
Documents. In the event Mortgagee transfers any Letter of Credit to any
successor or assignee of Mortgagee, Mortgagor shall pay or reimburse Mortgagee
for any transfer fee charged by the issuer of the Letter of Credit. After
payment in full of the Obligations, the Letter of Credit shall be promptly
returned by Mortgagee to Mortgagor.
[67. Condominium Provisions.
(a) Mortgagor shall not (i) modify or amend any material terms and
provisions of (A) the Condominium Documents (except for minor, nonsubstantial
changes to cure an ambiguity or correct a scrivener's error), or (B) terminate
any of the Condominium Documents, in each case, without the prior written
consent of Mortgagee, which consent shall not be unreasonably withheld, (ii)
make any election regarding material matters without the prior written consent
of Mortgagee, which consent shall not be unreasonably withheld, or (iii) fail to
follow the directions of Mortgagee
50
(A) with respect to a proposed modification or amendment described in clause (i)
above or (B) in connection with an election described in clause (ii) above.
(b) Mortgagor shall fully and faithfully pay when due and payable
all assessments, common charges and other charges payable by Mortgagor under the
Condominium Documents and shall perform as and when due each of its obligations
under the Condominium Documents in accordance with their respective terms, and
shall not cause or suffer to occur any breach or default in any of such
obligations. Mortgagor shall keep and maintain each of the Condominium Documents
in full force and effect.
(c) Mortgagor hereby assigns, conveys and mortgages to Mortgagee, as
further and additional security for the Debt and Mortgagor's obligations under
this Mortgage, all of the rights and benefits accruing to Mortgagor under the
Condominium Documents with respect to the Mortgaged Property, including, without
limitation, (i) any right of Mortgagor to amend, modify or terminate any of the
Condominium Documents, (ii) any right of Mortgagor to terminate the condominium
regime, including, without limitation, as a result of condemnation or casualty,
(iii) any rights and powers delegated to Mortgagor by any association or
administrator established pursuant to the Condominium Documents (the
"Association"), and (iv) any right of Mortgagor to determine whether or not the
improvements will be restored or repaired following a fire or other casualty. If
Mortgagee, its nominee, designee, successor, or assignee acquires title to one
or more of the condominium units which comprise the Mortgaged Property by reason
of foreclosure of this Mortgage, deed-in-lieu of foreclosure or otherwise,
Mortgagee, its nominee, designee, successor, assign or such purchaser, shall (x)
succeed to all of the rights of and benefits accruing to Mortgagor under the
Condominium Documents with respect to the Mortgaged Property, (y) be entitled to
exercise all of the rights and benefits accruing to Mortgagor under the
Condominium Documents with respect to the Mortgaged Property, and (z) have the
immediate right to remove any and all managers, members, directors, trustees
and/or officers of the condominium association appointed by Mortgagor, anything
in the Condominium Documents to the contrary notwithstanding, and thereupon
Mortgagee, its nominee, designee, successor or assignee shall have the right to
appoint managers, members, directors, trustees and/or officers of the
condominium association, in replacement for those managers, trustees, members,
directors and/or officers so removed. At such time as Mortgagee shall request,
Mortgagor agrees to execute and deliver to Mortgagee such documents as Mortgagee
and its counsel may require in order to insure that the provisions of this
Section [66] will be validly and legally enforceable and effective against
Mortgagor and all parties claiming by, through, under or against Mortgagor.
Mortgagor hereby absolutely and irrevocably appoints Mortgagee as its true and
lawful attorney, coupled with any interest, in its name and stead to make and
execute on behalf of Mortgagor any documents necessary to validly and legally
carry out the rights granted to Mortgagee under the terms of this paragraph,
Mortgagor ratifying all that its said attorney shall do by virtue thereof. In
addition, Mortgagor covenants and agrees to give to Mortgagee prompt notice of
any notice of special assessment relating to any of the condominium units which
comprise the Mortgaged Property received by Mortgagor. Mortgagor hereby assigns
to Mortgagee, as further and additional security for the Debt and Mortgagor's
obligations hereunder, all of Mortgagor's right to make rules and regulations
for the condominium association and Mortgagor hereby covenants and agrees not to
make or cause to be made any rules or regulations,
51
and not to suffer or permit any rules and regulations to be made, without in all
cases first obtaining the prior written consent of Mortgagee thereto which shall
not be unreasonably withheld or delayed.
(d) The provisions of this Mortgage with respect to the application
of insurance proceeds and condemnation awards shall apply to the Mortgaged
Property as provided herein, notwithstanding the submission of the Mortgaged
Property to the Condominium Law. Without limiting the generality of the
foregoing, Mortgagor, for and on behalf of itself and its direct and indirect
successors and assigns and assigns as owner(s) of the condominium units which
comprise the Mortgaged Property in the condominium regime, (i) irrevocably
waives, to the extent permitted by law, any applicable law which grants to the
trustees or managers of the condominium association and/or the owners of the
condominium units rights in the event of a casualty or a condemnation which are
inconsistent with the provisions of this Mortgage and (ii) expressly agrees to
the application of the insurance proceeds and condemnation awards in accordance
with the provisions of this Mortgage.
(e) If any Condominium Default (as hereinafter defined) shall occur
and be continuing, or if any party to any Condominium Document asserts that a
Condominium Default has occurred (whether or not Mortgagor questions or denies
such assertion), then, in the event that Mortgagor fails to remedy such
Condominium Default within a period of fifteen (15) days following the earlier
to occur of (i) receipt of written notice from Mortgagee of such Condominium
Default or (ii) the date Mortgagor obtains knowledge of such Condominium
Default, and subject to the terms and conditions of the applicable Condominium
Documents, Mortgagee may (but shall not be obligated to) take any action that
Mortgagee deems reasonably necessary to cure such Condominium Default,
including, without limitation, (w) performance or attempted performance of
Mortgagor's obligations under the applicable Condominium Documents, (x) curing
or attempting to cure any actual or purported Condominium Default, (y)
mitigating or attempting to mitigate any damages or consequences of the same and
(z) entry upon the Mortgaged Property for any or all of such purposes. Upon
Mortgagee's request, Mortgagor shall submit satisfactory evidence of payment or
performance of any of its obligations under each of the Condominium Documents.
Mortgagee may pay and expend such sums of money as Mortgagee in its sole
discretion deems necessary or desirable for any such purpose, and Mortgagor
shall pay to Mortgagee within five (5) business days after the written demand of
Mortgagee all such sums so paid or expended by Mortgagee pursuant to this
Section [66], together with interest thereon from the date of expenditure at the
Default Rate.
(f) Mortgagor will do all things necessary to preserve and to keep
unimpaired its material rights, powers and privileges under the Condominium
Documents and to prevent the termination or expiration of the Condominium
Documents, or the withdrawal of the Mortgaged Property from a condominium form
of ownership under applicable law, to the end that Mortgagor may enjoy all of
the material rights granted to it as a party to the Condominium Documents.
(g) Mortgagor will (i) promptly notify Mortgagee of the receipt by
Mortgagor of any notice from the Association or the owner of any other unit in
the condominium, covering the Mortgaged Property, asserting or claiming a
default by Mortgagor thereunder or lack of compliance by Mortgagor with the
Condominium Documents, (ii) promptly notify Mortgagee of the receipt by
Mortgagor of any notice or request from the Association or owner of any unit of
the termination or
52
purported termination of the Condominium Documents or to withdraw the Mortgaged
Property from condominium ownership pursuant to applicable law or to seek any
action for partition, (iii) promptly notify Mortgagee of the receipt by
Mortgagor of any notice or request from the Association or owner of any unit of
the material modification or change or proposed material modification or change
of the Condominium Documents and (iv) promptly cause a copy of each such notice
of request received by Mortgagor from the Association or any unit owner, or from
a Mortgagee of a mortgage on such other unit, to be delivered to Mortgagee.
Mortgagor will permit Mortgagee to participate in any such partition or
withdrawal proceeding to the extent permitted by law and the Condominium
Documents (but Mortgagee shall not be obligated so to do). Mortgagor will
promptly deliver to Mortgagee a copy of each notice, pleading, brief and
preliminary, interim and final determination or decision and other papers
received by it in each such partition or withdrawal proceeding.
(h) Mortgagor will, within twenty (20) days after demand from
Mortgagee, obtain, if and to the extent that Mortgagor is entitled to the same
under the Condominium Documents, and otherwise request from and make good faith
efforts to obtain, from the Association and deliver to Mortgagee a duly signed
and acknowledged certificate (signed also by Mortgagor) that the Condominium
Documents are unmodified and in full force and effect (or, if the same have been
modified in compliance with this Mortgage, that the Condominium Documents are in
full force and effect as to modified and that there have been no other
modifications), stating the dates to which the assessments, common charges and
other charges payable under the Condominium Documents have been paid and stating
whether to the certifying party's and Mortgagor's knowledge, Mortgagor is in
compliance with the Condominium Documents, or, if not, specifying each default
or failure of compliance of which the certifying party has knowledge. Mortgagor
will, promptly upon receipt thereof, furnish Mortgagee with a copy of all
notices and statements, however characterized, issued by the Association or
relating to the Condominium Documents, including without limitation, financial
statements and projected budgets.
(i) Mortgagor will, prior to the date of the closing of the Loan,
deliver or cause to be delivered to Mortgagee an estoppel and agreement of the
Association in form and substance reasonably acceptable to Mortgagee.
(j) Mortgagor hereby represents and warrants to Mortgagee as
follows:
(i) Mortgagor has delivered true, complete and correct copies
of each of the Condominium Documents to Mortgagee and the same have not
been modified, amended or assigned, and to Mortgagor's knowledge, there
are no other material condominium-related agreements or documents
affecting Mortgagor's interest in the Mortgaged Property; and
(ii) Each of the Condominium Documents is in full force and
effect and, to Mortgagor's knowledge, no Condominium Default exists or has
occurred on the part of Mortgagor or on the part of any other party to any
of the Condominium Documents.
(k) The occurrence of one or more of the following events (each such
event, a "Condominium Default") shall constitute an Event of Default hereunder:
(i) Any breach by Mortgagor of Section [66](a) above;
53
(ii) If Mortgagor shall fail to pay, when due and payable, all
assessments, common charges and expenses made against the Mortgaged
Property pursuant to the Condominium Documents;
(iii) If Mortgagor fails to comply with any of the applicable
terms, covenants and conditions on Mortgagor's part to be complied with
pursuant to the Condominium Documents;
(iv) If any provision of the applicable statutes pursuant to
which the Condominium was established or any section, sentence, clause,
phrase or word or the application thereof in any circumstance, is held
invalid and such invalidity shall affect the lien of this Mortgage or the
rights of Mortgagee under the Note, this Mortgage or any of the other Loan
Documents;
(v) If the Condominium shall become subject to any action for
partition commenced by any unit owner and said action has not been
dismissed within thirty (30) days after commencement thereof unless
Mortgagor, at its own expense, promptly and in good faith with due
diligence works to dismiss said action, in which case Mortgagor shall have
a period not to exceed sixty (60) days to dismiss said action;
(vi) If the Association (or, if such rights and powers have
been delegated by the Association, the party(ies) to which such rights and
powers have been delegated by the Association) continues to fail (A) to
maintain the Condominium, including the Mortgaged Property, in good
condition and repair, (B) to promptly comply with all laws, orders, and
ordinances affecting the Condominium, including the Mortgaged Property, or
the use thereof, (C) to promptly repair, replace or rebuild any part of
the Mortgaged Property and the Common Elements, which may be damaged or
destroyed by any casualty or which may be affected by any condemnation or
similar proceeding, or (D) to complete and pay for, within a reasonable
time, any structural improvements or other structure that constitutes a
portion of the Mortgaged Property and Common Elements at any time in the
process of construction or repair (to the extent that the Association is
authorized to so maintain, repair, replace, rebuild and complete the
Condominium, including the Mortgaged Property, by the Condominium
Documents), and such failure shall continue for a period of sixty (60)
days after written notice from Mortgagor thereof is delivered to the
Association specifying such failure and requiring the same to be remedied;
(vii) If (A) Mortgagor fails to maintain the Mortgaged
Property as a condominium under the provisions of the Condominium Act, or
(B) 75% or more of the buildings and improvements which comprise a portion
of the Condominium are destroyed or substantially damaged and 75% or more
of the owners of units comprising the Condominium do not duly and promptly
resolve to proceed with the repair or restoration thereof; or
(viii) If the Condominium regime is terminated for any reason.
As used herein, the term "Condominium Act" shall mean Act 59 of the Public
Acts of Michigan of 1978, as amended; the term "Common Elements" shall having
the meaning set forth
54
in the Condominium Documents; and the term "Condominium" shall mean any
condominium that includes the Mortgaged Property as a part thereof and that was
created pursuant to the Condominium Act.]
[SIGNATURE PAGE FOLLOWS]
55
IN WITNESS WHEREOF, Mortgagor has executed this instrument the day and
year first above written.
MORTGAGOR:
RAMCO AUBURN CROSSROADS SPE LLC
A DELAWARE LIMITED LIABILITY COMPANY
By: _______________________________
Dennis Gershenson, President
WITNESSES:
_______________________
Name:__________________
_______________________
Name:__________________
STATE OF ______________ )
) ss:
COUNTY OF _____________ )
The foregoing instrument was acknowledged before me this ____ day of
______________, 2004 by Dennis Gershenson, the President of Ramco Auburn
Crossroads SPE LLC, a Delaware limited liability company.
_______________________________
Notary Public
This instrument was prepared by
and return when recorded to:
Laura E. Smith
Sidley Austin Brown & Wood LLP
Bank One Plaza
10 South Dearborn Street
Chicago, IL 60603
Auburn Mortgage
EXHIBIT A
Legal Description
SCHEDULE 1
DESCRIPTION OF CROSSED LOAN, CROSSED NOTE, CROSSED MORTGAGE AND
CROSSED PROPERTY
As used herein and in the instrument to which this Schedule is attached,
the following terms shall have the following meanings:
"Crossed Loan" shall mean the loan in the amount of $26,960,000 made by
Mortgagee to the Mortgagor, and evidenced and secured by the Crossed Note, the
Crossed Mortgage and the Crossed Loan Documents.
"Crossed Loan Documents" shall mean the "Loan Documents" as defined and
referred to in the Crossed Mortgage, as the same may be amended, modified,
supplemented, extended or restated from time to time.
"Crossed Note" shall mean that certain promissory note in the initial
principal amount of the Loan dated as of (or about) the date of the instrument
to which this Schedule is attached, made and given by the Mortgagor in favor of
Mortgagee, as the same may be amended, modified, supplemented, extended or
restated from time to time.
"Crossed Mortgage" shall mean that certain Mortgage, Assignment of Leases
and Rents, Security Agreement and Fixture Filing dated as of (or about) the date
of the instrument to which this Schedule is attached, made and given by the
Mortgagor in favor of Mortgagee, as the same may be amended, modified,
supplemented, extended or restated from time to time.
"Crossed Property" shall mean the "Mortgaged Property" as defined and
referred to in the Crossed Mortgage, located in city of Rossford, county of
Wood, State of Ohio, as more particularly described in the Crossed Mortgage.
EXHIBIT D
FORM OF LETTER OF CREDIT
[Letterhead of Bank]
[Insert Date of Issuance]
Irrevocable Letter
of Credit No.: ____
_______________________
_______________________
_______________________
_______________________
Ladies and Gentlemen:
The undersigned, ____________ (the "Issuer") hereby establishes, at
the requests of and for the account of _____________ ("Applicant") in favor of
Salomon Brothers Realty Corp., a New York corporation, and its successors and
assigns ("Beneficiary"), this Irrevocable Letter of Credit, numbered as
indicated above (the "Letter of Credit"), in the aggregate amount of $__________
(as such amount may be reduced as set forth below).
This Letter of Credit is effective immediately and expires on
______________________ (the "Stated Expiry Date"), but will be automatically
extended without amendment for successive twelve month periods from the Stated
Expiry Date and any future expiration date unless at least 60 days prior to the
then applicable expiration date (the "Expiration Date") the Beneficiary receives
notice ("Termination Notice") from the Issuer that the Issuer elects, in its
sole discretion, not to renew for such additional twelve month periods. For
purposes of this Letter of Credit, the Termination Notice shall be deemed to
have been received by the Beneficiary when delivered by messenger or courier to
the Beneficiary's address specified above, unless this Letter of Credit is
transferred, in which case the Termination Notice shall be delivered to the
transferee's address set forth in the "Transfer Instruction" (as defined below)
received by the Issuer.
This Letter of Credit is irrevocable, unconditional, transferable in
accordance with the terms hereof and effective immediately and until expiration.
This Letter of Credit may be transferred without charge to the Beneficiary or
its transferee one or more times upon receipt of written instructions (the
"Transfer Instruction"), submitted substantially in the form of Annex A attached
hereto. Each such transfer shall be effective upon Issuer's receipt of the
Transfer Instruction at its address stated above. The Issuer shall be deemed to
have received any such Transfer Instruction when delivered by messenger or
courier to the Issuer's address set forth
above. At the option of the transferee, and if the Transfer Instruction so
indicates, the Issuer shall, upon presentation to it of this Letter of Credit
accompanied by the Transfer Instruction, [either (whichever is the Issuer's
standard practice)] [issue an amendment to this Letter of Credit, reasonable
acceptable to the transferee, which replaces the Beneficiary named above with
the transferee as the beneficiary of this Letter of Credit] [or] [issue to the
transferee a replacement letter of credit with provisions identical to this
Letter of Credit, except that the beneficiary thereunder shall be the
transferee, and its address, telephone number and contact person shall be named
and used instead of those of the Beneficiary named above].
The Issuer hereby irrevocably authorizes the Beneficiary to draw
under this Letter of Credit, in accordance with the terms and conditions
hereinafter set forth, in one or more drawings, by the Beneficiary's sight draft
in the form of Annex B attached hereto with the blanks and bracketed information
appropriately completed and signed by the Beneficiary's authorized signatory,
drawn on the Issuer at the Issuer's office at __________________________ payable
at sight on a Banking Day (as defined below). Such draft shall be dated the date
of presentation, and shall be presented to the Issuer at the Issuer's office set
forth above on a Banking Day. If the Issuer receives such draft (hereinafter
referred to as a "Demand") at such office, all in conformity with the terms and
conditions of this Letter of Credit, prior to 12:00 noon (New York time) on a
Banking Day prior to the Expiration Date, the Issuer will make funds available
to the Beneficiary in immediately available funds in accordance with the
Beneficiary's payment or wire-transfer instructions on the Banking Day next
succeeding the Banking Day on which the Issuer shall have received such Demand.
If the Issuer receives a Demand at such office, all in conformity with the terms
and conditions of this Letter of Credit, on or after 12:00 noon (New York time)
on a Banking Day prior to the Expiration Date, the Issuer will make funds
available to the Beneficiary in immediately available funds in accordance with
the Beneficiary's payment or wire-transfer instructions on the second Banking
Day immediately following the Banking Day on which the Issuer received such
Demand. "Banking Day" means a day of the year on which banks are not required or
authorized to close in New York, New York.
If a Demand made by the Beneficiary hereunder does not, in any
instance, conform to the terms and conditions of this Letter of Credit, the
Issuer shall promptly use reasonable efforts to give the Beneficiary telephonic
notice that the purported Demand was not effected in accordance with the terms
and conditions of this Letter of Credit and stating the reasons therefor. Upon
being notified that the purported Demand for payment was not effected in
accordance with this Letter of Credit, the Beneficiary may attempt to correct
any such nonconforming Demand for payment if, and to the extent that, the
Beneficiary is able to do so prior to the Expiration Date.
Any inquiry of the Beneficiary and any notice of a non-conforming
Demand shall be directed to ______________________, or, if this Letter of Credit
is transferred, to the person at the phone number designated in the Transfer
Instruction. Each drawing honored by the Issuer hereunder shall pro tanto reduce
the Stated Amount of this Letter of Credit. The "Stated Amount" means, initially
$______________, as the same may be reduced automatically upon and by the amount
of each drawing hereunder.
60
This Letter of Credit shall be governed by the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 ("UCP") or the successor version in effect at the
time the Demand is presented. This Letter of Credit shall be deemed to be a
contract made under the laws of the State of ____ and shall, as to matters not
governed by the UCP, be governed by and construed in accordance with the
internal laws of the State of New York, without regard to principles of
conflicts of law.
This Letter of Credit sets forth in full the Issuer's undertaking,
and such undertaking shall not in any way be modified, amended, amplified or
limited by reference to any document, instrument or agreement referred to
herein, except only Reduction Notices, Transfer Instructions and Demands and the
UCP referred to herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement except
such Reduction Notices, Transfer Instructions, Demands and the UCP.
The Issuer hereby agrees that all drafts drawn under and in
compliance with the terms of this Letter of Credit will be duly honored by the
Issuer upon delivery of such drafts as herein specified if presented at the
Issuer's office on or before the Expiration Date hereof.
_________________________________
By:______________________________
Its:_____________________________
61
ANNEX A
TRANSFER INSTRUCTION
The undersigned, a duly authorized signatory of the undersigned
beneficiary of Irrevocable Letter of Credit No. ____ (the "Letter of Credit"),
irrevocably instructs _______________________________________, as issuer of the
Letter of Credit, as follows:
1. For value received, the undersigned beneficiary irrevocably transfers
to
_____________________________
[name of transferee]
_____________________________
_____________________________
_____________________________
_____________________________
[address]
All rights of the undersigned beneficiary under the Letter of Credit. Any
inquiry of the transferee and any notice of a non-conforming Demand under the
Letter of Credit shall be directed to _________________ at the following
telephone number:________________.
2. By this transfer, all rights of the undersigned beneficiary in the
Letter of Credit are transferred to the transferee, and the transferee shall
from the date of this Instruction have sole rights as beneficiary of the Letter
of Credit.
3. [The Letter of Credit is returned with this Instruction, and in] [In]
accordance with the Letter of Credit the undersigned directs that this transfer
be effective and that you transfer the same to the transferee [and that you
issue without charge to us or the transferee a new irrevocable letter of credit
with provisions identical to the Letter of Credit, except that the beneficiary
thereunder shall be the transferee, and its address, telephone number and
contact person shall be named and used instead of those of the undersigned].
[Bracketed language to be included at the option of the transferee.]
Dated: ______________
_____________________________
By __________________________
Its _________________________
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ANNEX B
SIGHT DRAFT
DATE:______________________
DRAWN UNDER IRREVOCABLE LETTER OF CREDIT NO. ________________
TO THE ORDER OF THE UNDERSIGNED (the "BENEFICIARY"),
PAY $_________________
AT SIGHT, FOR VALUE RECEIVED UNDER IRREVOCABLE LETTER OF CREDIT NO.
______________
TO: [insert Issuer name and address]
BENEFICIARY:
___________________________ [, or, if the
Letter of Credit has been transferred, the transferee]
By:____________________________
Title:_________________________
63