EXHIBIT 10.20
Recording Requested by
and when recorded return to:
WELLS FARGO BANK, N.A.
Commercial Mortgage Origination
MAC AO194-093
45 Fremont Street, 9th Floor
San Francisco, California 94105
Attention: CMO Loan Admin.
Loan No.: 31-0901388
Commonly Known Address:
Devonshire Corporate Center II Office Complex,
2301, 2215, 2201, 2109 and 2101 Fox Drive
Champaign, Illinois 61820
Parcel Identification No.: 45-20-24-326-020;
45-20-24-326-011; 45-20-24-326-012;
45-20-24-326-013; 45-20-24-326-016
MORTGAGE
AND
ABSOLUTE ASSIGNMENT OF RENTS
AND LEASES
AND
SECURITY AGREEMENT
(AND FIXTURE FILING)
The parties to this MORTGAGE AND ABSOLUTE ASSIGNMENT OF RENTS AND LEASES AND
SECURITY AGREEMENT (AND FIXTURE FILING) ("Mortgage"), dated as of November 21,
2003 are STONEWATER DOX FUNDING LLC, a Delaware limited liability company
("Mortgagor"), whose principal place of business is located at c/o Stonewater
Partners, 22 Deer Creek Lane, Mt. Kisco, New York 10549, and WELLS FARGO BANK,
NATIONAL ASSOCIATION ("Mortgagee"), with a mailing address at 1320 Willow Pass
Road, Suite 205, Concord, California 94520.
RECITALS
A. Mortgagor proposes to borrow from Mortgagee, and Mortgagee proposes to lend
to Mortgagor the principal sum of TEN MILLION AND NO/100THS DOLLARS
($10,000,000.00) ("Loan"). The Loan is evidenced by a promissory note
("Note") executed by Mortgagor, dated the date of this Mortgage, payable to
the order of Mortgagee in the principal amount of the Loan. The maturity
date of the Loan is December 1, 2013.
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B. The loan documents include this Mortgage, the Note and the other documents
described in the Note as Loan Documents ("Loan Documents").
ARTICLE 1. MORTGAGE
1.1. GRANT. For the purposes of and upon the terms and conditions of this
Mortgage, Mortgagor irrevocably grants, conveys, mortgages, warrants and
assigns to Mortgagee, all estate, right, title and interest which Mortgagor
now has or may hereafter acquire in, to, under or derived from any or all
of the following:
a. That real property ("Land") located in Champaign, county of Champaign,
state of Illinois, and more particularly described on Exhibit A
attached hereto;
b. All appurtenances, easements, rights of way, water and water rights,
pumps, pipes, flumes and ditches and ditch rights, water stock, ditch
and/or reservoir stock or interests, royalties, development rights and
credits, air rights, minerals, oil rights, and gas rights, now or
later used or useful in connection with, appurtenant to or related to
the Land;
c. All buildings, structures, facilities, other improvements and
fixtures now or hereafter located on the Land;
d. All apparatus, equipment, machinery and appliances and all accessions
thereto and renewals and replacements thereof and substitutions
therefor used in the operation or occupancy of the Land and which are
not owned by any tenant, it being intended by the parties that all
such items shall be conclusively considered to be a part of the Land,
whether or not attached or affixed to the Land;
e. All land lying in the right-of-way of any street, road, avenue, alley
or right-of-way opened, proposed or vacated, and all sidewalks, strips
and gores of land adjacent to or used in connection with the Land;
f. All additions and accretions to the property described above;
g. All licenses, authorizations, certificates, variances, consents,
approvals and other permits now or hereafter pertaining to the Land
and all estate, right, title and interest of Mortgagor in, to, under
or derived from all tradenames or business names relating to the Land
or the present or future development, construction, operation or use
of the Land;
h. All Accounts (as defined in the Cash Management Agreement) and the
Letters of Credit (as defined in the Note); and
i. All proceeds of any of the foregoing.
All of the property described above is hereinafter collectively defined as
the "Property". The listing of specific rights or property shall not be
interpreted as a limitation of general terms.
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ARTICLE 2. OBLIGATIONS SECURED
2.1. OBLIGATIONS SECURED. Mortgagor makes the foregoing grant and assignment for
the purpose of securing the following obligations ("Secured Obligations"):
a. Full and punctual payment to Mortgagee of all sums at any time owing
under the Note;
b. Payment and performance of all covenants and obligations of Mortgagor
under this Mortgage including, without limitation, indemnification
obligations and advances made to protect the Property;
c. Payment and performance of all additional covenants and obligations of
Mortgagor under the Loan Documents;
d. Payment and performance of all covenants and obligations, if any,
which any rider attached as an exhibit to this Mortgage recites are
secured hereby;
e. Payment and performance of all future advances and other obligations
that the then record owner of all or part of the Property may agree to
pay and/or perform (whether as principal, surety or guarantor) for the
benefit of Mortgagee, when the obligation is evidenced by a writing
which recites that it is secured by this Mortgage;
f. All interest and charges on all obligations secured hereby including,
without limitation, prepayment charges, late charges and loan fees, if
any;
g. All modifications, extensions and renewals of any of the obligations
secured hereby, however evidenced, including, without limitation: (i)
modifications of the required principal payment dates or interest
payment dates or both, as the case may be, deferring or accelerating
payment dates wholly or partly; and (ii) modifications, extensions or
renewals at a different rate of interest whether or not any such
modification, extension or renewal is evidenced by a new or additional
promissory note or notes; and
h. Payment and performance of any other obligations which are defined as
"Secured Obligations" in the Note.
2.2. OBLIGATIONS. The term "obligations" is used herein in its broadest and most
comprehensive sense and shall be deemed to include, without limitation, all
interest and charges, prepayment charges, late charges and loan fees, if
any, at any time accruing or assessed on any of the Secured Obligations.
The maximum amount secured by this Mortgage (excluding interest, costs,
expenses, charges, fees, protective advances and indemnification
obligations, all of any type or nature) is $10,000,000.00.
2.3. INCORPORATION. All terms and conditions of the documents which evidence any
of the Secured Obligations are incorporated herein by this reference. All
persons who may have or acquire an interest in the Property shall be deemed
to have notice of the terms of
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the Secured Obligations and to have notice that the rate of interest on one
or more Secured Obligation may vary from time to time.
ARTICLE 3. ASSIGNMENT OF RENTS AND LEASES
3.1. ASSIGNMENT. Mortgagor irrevocably assigns to Mortgagee all of Mortgagor's
right, title and interest in, to and under: (a) all present and future
leases of the Property or any portion thereof, all licenses and agreements
relating to the management, leasing or operation of the Property or any
portion thereof, and all other agreements of any kind relating to the use
or occupancy of the Property or any portion thereof, whether such leases,
licenses and agreements are now existing or entered into after the date
hereof ("Leases"); and (b) the rents, issues, deposits and profits of the
Property, including, without limitation, all amounts payable and all rights
and benefits accruing to Mortgagor under the Leases ("Payments"). The term
"Leases" shall also include all guarantees of and security for the tenants'
performance thereunder, and all amendments, extensions, renewals or
modifications thereto which are permitted hereunder. This is a present and
absolute assignment, not an assignment for security purposes only, and
Mortgagee's right to the Leases and Payments is not contingent upon, and
may be exercised without possession of, the Property.
3.2. GRANT OF LICENSE. Mortgagee confers upon Mortgagor a revocable license
("License") to collect and retain the Payments as they become due and
payable, until the occurrence and during the continuance of a Default (as
hereinafter defined). Upon and during the continuance of a Default, the
License shall be automatically revoked and Mortgagee may collect and apply
the Payments pursuant to the terms hereof without notice and without taking
possession of the Property. All Payments thereafter collected by Mortgagor
shall be held by Mortgagor as trustee under a constructive trust for the
benefit of Mortgagee. Subject to the terms and conditions of the Cash
Management Agreement dated the date hereof, Mortgagor hereby irrevocably
authorizes and directs the tenants under the Leases to rely upon and comply
with any notice or demand given by Mortgagee during the continuance of a
Default for the payment to Mortgagee of any rental or other sums which may
at any time become due under the Leases, or for the performance of any of
the tenants' undertakings under the Leases, and the tenants shall have no
right or duty to inquire as to whether any Default has actually occurred or
is then existing. Mortgagor hereby relieves the tenants from any liability
to Mortgagor by reason of relying upon and complying with any such notice
or demand by Mortgagee. Mortgagee may apply, in its sole discretion, any
Payments so collected by Mortgagee against any Secured Obligation or any
other obligation of Mortgagor or any other person or entity, under any
document or instrument related to or executed in connection with the Loan
Documents, whether existing on the date hereof or hereafter arising.
Collection of any Payments by Mortgagee shall not cure or waive any Default
or notice of Default or invalidate any acts done pursuant to such notice.
If and when no Default exists, Mortgagee shall re-confer the License upon
Mortgagor until the occurrence of another Default.
3.3. EFFECT OF ASSIGNMENT. The foregoing irrevocable assignment shall not cause
Mortgagee to be: (a) a mortgagee in possession; (b) responsible or liable
for the control,
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care, management or repair of the Property or for performing any of the
terms, agreements, undertakings, obligations, representations, warranties,
covenants and conditions of the Leases; (c) responsible or liable for any
waste committed on the Property by the tenants under any of the Leases or
by any other parties; for any dangerous or defective condition of the
Property; or for any negligence in the management, upkeep, repair or
control of the Property resulting in loss or injury or death to any tenant,
licensee, employee, invitee or other person; or (d) responsible for or
impose upon Mortgagee any duty to produce rents or profits. Unless such
liability arises from the gross negligence or willful misconduct of
Mortgagee, its agents, contractors and employees, Mortgagee shall not
directly or indirectly be liable to Mortgagor or any other person as a
consequence of: (e) the exercise or failure to exercise any of the rights,
remedies or powers granted to Mortgagee hereunder; or (f) the failure or
refusal of Mortgagee to perform or discharge any obligation, duty or
liability of Mortgagor arising under the Leases.
3.4 COVENANTS-LONG TERM LEASES.
a. ALL LEASES. Mortgagor shall, at Mortgagor's sole cost and expense:
(i) perform all material obligations of the landlord under the Leases
and use reasonable efforts to enforce performance by the tenants
of all material obligations of the tenants under the Leases;
(ii) use reasonable efforts to keep the Property leased at all times
to tenants which Mortgagor reasonably and in good faith believes
are creditworthy at rents not less than the fair market rental
value (including, but not limited to, free or discounted rents to
the extent the market so requires);
(iii) promptly upon Mortgagee's request, deliver to Mortgagee a copy
of each requested Lease (not previously delivered to Mortgagee)
and all amendments thereto and waivers thereof; and
(iv) promptly upon Mortgagee's request, execute and record any
additional assignments of landlord's interest under any Lease to
Mortgagee and use reasonable efforts to cause any tenant to
execute specific subordinations of any Lease to this Mortgage, in
form and substance reasonably satisfactory to Mortgagee.
Unless consented to in writing by Mortgagee or otherwise permitted
under any other provision of the Loan Documents, Mortgagor shall not:
(v) grant any tenant under any Lease any option, right of first
refusal or other right to purchase all or any portion of the
Property under any circumstances;
(vi) grant any tenant under any Lease any right to prepay rent more
than 1 month in advance;
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(vii) except upon Mortgagee's request, execute any assignment of
landlord's interest in any Lease; or
(viii) collect rent or other sums due under any Lease in advance,
other than to collect rent 1 month in advance of the time when it
becomes due (other than rental escalations required by the terms
of any existing lease to be paid in advance, provided no fixed or
base rent should be paid more than one (1) month in advance.
Any such attempted action in violation of the provisions of this
Section shall be null and void.
Mortgagor shall deposit with Mortgagee any sums received by Mortgagor
in consideration of any termination, modification or amendment of any
Lease or any release or discharge of any tenant under any Lease from
any obligation thereunder (including, without limitation, the
termination fee payable pursuant to the terms of that certain lease
dated February 25, 1999 (the "Parking Lease")) and any such sums
received by Mortgagor shall be held in trust by Mortgagor for such
purpose. Notwithstanding the foregoing, so long as no Default exists,
the portion of any such sum received by Mortgagor with respect to any
Lease which is less than $50,000 shall be payable to Mortgagor. All
such sums received by Mortgagee with respect to any Lease shall be
deemed "Impounds" (as defined in Section 6.12(b)) and shall be
deposited by Mortgagee into a pledged account in accordance with
Section 6.12(b). If no Default exists, Mortgagee shall release such
Impounds to Mortgagor from time to time as necessary to pay or
reimburse Mortgagor for such tenant improvements, brokerage
commissions and other leasing costs as may be required to re-tenant
the affected space; provided, however, Mortgagee shall have received
and approved each of the following for each tenant for which such
costs were incurred; (1) Mortgagor's, written request for such
release, including the name of the proposed tenant, the location and
net rentable area of the space and a description and cost breakdown of
the tenant improvements or other leasing costs covered by the request;
(2) Mortgagor's certification that any tenant improvements completed
as of the date of the request have been completed lien-free and in a
workmanlike manner, other than liens being contested in good faith in
accordance with Section 8.4 hereof; (3) a fully executed Lease, or
extension or renewal of the- current Lease; (4) prior to the last
release of Impounds for each space, an estoppel certificate executed
by the tenant including its acknowledgement that all tenant
improvements have been satisfactorily completed; and (5) such other
information with respect to such costs as Mortgagee may reasonably
require. Following the re-tenanting of all affected space (including,
without limitation, the completion of all tenant improvements), and
provided no Default exists, Mortgagee shall release any remaining
Impounds relating to the affected space to Mortgagor. Mortgagor shall
construct or cause to be constructed all tenant improvements in a
workmanlike manner and in accordance with all applicable laws,
ordinances, rules and regulations.
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(b) MAJOR LEASES. Mortgagor shall, at Mortgagor's sole cost and expense,
give Mortgagee written notice of any material default by landlord or
tenant under any Major Lease (as defined below) promptly after
becoming aware of same. Unless consented to in writing by Mortgagee
within 30 days after written notice or otherwise permitted under any
other provision of the Loan Documents, Mortgagor shall not:
(i) enter into any Major Lease after the date hereof which (aa) is
not on then prevailing market terms (which terms may include free
or discounted rent to the extent the market so requires); (bb)
does not contain a provision requiring the tenant to execute and
deliver to the landlord an estoppel certificate in form and
substance reasonably satisfactory to the landlord promptly upon
the landlord's request; or (cc) allows the tenant to assign or
sublet the demised premises without the landlord's consent, not
to be unreasonably withheld, conditioned or delayed; provided,
however, the Major Lease may allow tenant to assign or sublet the
demised premises to tenant's affiliates or a merged entity
resulting from a merger involving tenant, provided the tenant's
affiliate or the surviving merged entity (A) has a rating of at
least BBB- or better by the rating agencies which have assigned a
rating to the Loan in connection with a securitization, (B)
occupies and uses the demised premises, (C) has a net worth equal
to or greater than existing tenant's net worth as reported on
tenant's most recently filed financial statements with the SEC
prior to the date hereof, (D) has not been, within the last ten
(10) years, (I) subject to any material, uncured event of default
in connection with a loan financing which resulted in litigation
or an acceleration of an indebtedness held by Mortgagee or any
other secondary market or institutional lender or (II) the
subject of any action or proceeding under Creditor's Rights Laws,
and (E) has not ever been convicted of a felony;
(ii) reduce any rent or other sums due from the tenant under any Major
Lease;
(iii) terminate or materially modify or amend any Major Lease (except
in connection with the release of the Parking Parcel (as defined
in the Note) as long as Borrower complies with the provisions
contained in Section 6 of Exhibit A of the Note); or
(iv) release or discharge the tenant or any guarantor, under any Major
Lease from any material obligation thereunder except in
connection with a permitted termination, cancellation or
surrender of the applicable Major Lease, approved by Mortgagee or
not requiring Mortgagor approval.
Any such attempted action in violation of the provisions of this
Section shall be null and void.
Notwithstanding anything to the contrary contained herein, to the
extent Mortgagee's prior approval is required for any leasing matters
set forth in this
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Section 3, Mortgagee shall have thirty (30) days from receipt of
written request and all required information and documentation
relating thereto in which to approve or disapprove such matter,
provided that such request to Lender is marked in bold lettering with
the following language: "MORTGAGEE'S RESPONSE IS REQUIRED WITHIN
THIRTY (30) DAYS OF RECEIPT OF THIS NOTICE PURSUANT TO THE TERMS OF A
MORTGAGE BETWEEN THE UNDERSIGNED AND MORTGAGEE" and the envelope
containing the request must be marked "PRIORITY". In the event that
Mortgagee fails to respond to the leasing matter in question within
such time, Mortgagee's approval shall be deemed given for all
purposes. Mortgagor shall provide Mortgagee with such information and
documentation as may be reasonably required by Mortgagee.
"Major Lease", as used herein, shall mean any Lease, which is, at any
time: (1) a Lease of more than 20% of the total rentable area of the
Property; or (2) a Lease which generates a gross base monthly rent
exceeding 20% of the total gross base monthly rent generated by all
Leases (excluding all Leases under which the tenant is then in
default). Mortgagor's obligations with respect to Major Leases shall
be governed by the provisions of Section 3.4a a as well as by the
provisions of this Section.
c. FAILURE TO DENY REQUEST Mortgagee's failure to deny any written
request by Mortgagor for Mortgagee's consent under the provisions of
Sections 3.4a or 3.4b within 10 Business Days after Mortgagee's
receipt of such request (and all documents and information reasonably
related thereto) shall be deemed to constitute Mortgagee's consent to
such request.
3.5. ESTOPPEL CERTIFICATES. Within 30 days after request by Mortgagee, Mortgagor
shall deliver to Mortgagee and to any party designated by Mortgagee, estoppel
certificates relating to the Leases executed by Mortgagor and by each of the
tenants, in the form required by the Lease, or if none provided for in the
applicable Lease, form and substance reasonably acceptable to Mortgagee;
provided, however, if any tenant shall fail or refuse to so execute and deliver
any such estoppel certificate upon request, Mortgagor shall use reasonable
efforts to cause such tenant to execute and deliver such estoppel certificate
but such tenant's continued failure or refusal to do so, despite Mortgagor's
reasonable efforts, shall not constitute a default by Mortgagor under this
Mortgage.
3.6. RIGHT OF SUBORDINATION. Mortgagee may at any time and from time to time by
specific written instrument intended for the purpose unilaterally subordinate
the lien of this Mortgage to any Lease, without joinder or consent of, or notice
to, Mortgagor, any tenant or any other person. Notice is hereby given to each
tenant under a Lease of such right to subordinate. No subordination referred to
in this Section shall constitute a subordination to any lien or other
encumbrance, whenever arising, or improve the right of any junior lienholder.
Nothing herein shall be construed as subordinating this Mortgage to any Lease.
ARTICLE 4. SECURITY AGREEMENT AND FIXTURE FILING
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4.1. SECURITY INTEREST. Mortgagor grants and assigns to Mortgagee a security
interest to secure payment and performance of all of the Secured
Obligations, in all of Mortgagor's right, title and interest in all of the
following described personal property in which Mortgagor now or at any time
hereafter has any interest ("Collateral"):
All goods, building and other materials, supplies, work in process,
equipment, machinery, fixtures, furniture, furnishings, signs and
other personal property, wherever situated, which are or are to be
incorporated into, used in connection with or appropriated for use on
the Property; all rents, issues, deposits and profits of the Property
(to the extent, if any, they are not subject to the Absolute
Assignment of Rents and Leases); all inventory, accounts, cash
receipts, deposit accounts, impounds, accounts receivable, contract
rights, general intangibles, software, chattel paper, instruments,
documents, promissory notes, drafts, letters of credit, letter of
credit rights, supporting obligations, insurance policies, insurance
and condemnation awards and proceeds, any other rights to the payment
of money, trade names, trademarks and service marks arising from or
related to the Property or any business now or hereafter conducted
thereon by Mortgagor; all permits, consents, approvals, licenses,
authorizations and other rights granted by, given by or obtained from,
any governmental entity with respect to the Property; all deposits or
other security now or hereafter made with or given to * utility
companies by Mortgagor with respect to the Property; all advance
payments of insurance premiums made by Mortgagor with respect to the
Property; all plans, drawings and specifications relating to the
Property; all loan funds held by Mortgagee, whether or not disbursed;
all funds deposited with Mortgagee pursuant to any Loan Document, all
reserves, deferred payments, deposits, accounts, refunds, cost savings
and payments of any kind related to the Property or any portion
thereof, including, without limitation, all "Impounds" a's defined
herein; together with all replacements and proceeds of, and additions
ancf accessions to, any of the foregoing, and all books, records and
files relating to any of the foregoing.
As to all of the above-described personal property which is or which
hereafter becomes a "fixture" under applicable law this Mortgage
constitutes a fixture filing under the Illinois Uniform Commercial Code, as
amended or recodified from time to time ("UCC").
4.2. COVENANTS. Mortgagor agrees: (a) to execute and deliver such documents as
Mortgagee deems reasonably necessary to create, perfect and continue the
security interests contemplated hereby; (b) not to change its name, and, as
applicable, its chief executive offices, its principal residence or the
jurisdiction in which it is organized without giving Mortgagee at least 30
days' prior written notice thereof; and (c) to reasonably cooperate with
Mortgagee in perfecting all security interests granted herein and in
obtaining such agreements from third parties as Mortgagee deems reasonably
necessary, proper or convenient in connection with the preservation,
perfection or enforcement of any of Mortgagee's rights hereunder.
4.3. RIGHTS OF MORTGAGEE. In addition to Mortgagee's rights as a "Secured Party"
under the UCC, Mortgagee may, but shall not be obligated to, at any time
without notice
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and at the expense of Mortgagor upon the occurrence and continuance of a
Default: (a) give notice to any person of Mortgagee's rights hereunder and
enforce such rights at law or in equity; (b) insure, protect, defend and
preserve the Collateral or any rights or interests of Mortgagee therein;
and (c) inspect the Collateral; Notwithstanding the above, in no event
shall Mortgagee be deemed to have accepted any property other than cash in
satisfaction of any obligation of Mortgagor to Mortgagee unless Mortgagee
shall make an express written election of said remedy under the UCC or
other applicable law.
4.4. RIGHTS OF MORTGAGEE UPON DEFAULT. Upon the occurrence of a Default, then in
addition to all of Mortgagee's rights as a "Secured Party" under the UCC or
otherwise at law:
a. DISPOSITION OF COLLATERAL. Mortgagee may: (i) upon written notice,
require Mortgagor to assemble any or all of the Collateral and make it
available to Mortgagee at a place designated by Mortgagee; (ii)
without prior notice, to the extent permitted by applicable law, enter
upon the Property, subject to the rights of tenants under the
applicable Leases, or other place where the Collateral may be located
and take possession of, collect, sell, lease, license and otherwise
dispose of the Collateral, and store the same at locations acceptable
to Mortgagee at Mortgagor's expense; or (iii) sell, assign and deliver
the Collateral at any place or in any lawful manner and bid and become
purchaser at any such sales; and
b. OTHER RIGHTS. Mortgagee may, for the account of Mortgagor and at
Mortgagor's expense: (i) operate, use, consume, sell, lease, license
or otherwise dispose of the Collateral as Mortgagee deems appropriate
for the purpose of performing any or all of the Secured Obligations;
(ii) enter into any agreement, compromise or settlement including
insurance claims, which Mortgagee may deem desirable or proper with
respect to the Collateral; and (iii) endorse and deliver evidences of
title for, and receive, enforce and collect by legal action or
otherwise, all indebtedness and obligations now or hereafter owing to
Mortgagor in connection with or on account of the Collateral.
Mortgagor acknowledges and agrees that 10 days' prior notice of the time
and place of any public sale or other intended disposition is commercially
reasonable notice. Mortgagee shall have no obligation to process or prepare
the Collateral for sale or other disposition. In disposing of the
Collateral, Mortgagee may disclaim all warranties of title, possession,
quiet enjoyment and the like. Any proceeds of any sale or other disposition
of the Collateral may be applied by Mortgagee first to the reasonable
expenses incurred by Mortgagee in connection therewith, including, without
limitations, reasonable attorneys' fees and disbursements, and then to the
payment of the Secured Obligations, in such order of application as
Mortgagee may from time to time elect.
4.5. POWER OF ATTORNEY. Mortgagor hereby irrevocably appoints Mortgagee as
Mortgagor's attorney-in-fact (such agency being coupled with an interest),
and as such attorney-in-fact, Mortgagee may, without the obligation to do
so, in Mortgagee's name or in the name of Mortgagor, prepare, execute, file
and record financing statements, continuation statements, applications for
registration and like papers necessary to create,
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perfect or preserve any of Mortgagee's security interests and rights in or
to the Collateral, and during the continuance of a Default, take any other
action required of Mortgagor; provided, however, that Mortgagee as such
attorney-in-fact shall (i) be accountable only for such funds as are
actually received by Mortgagee, and (ii) only be exercised after
Mortgagor's failure to take required action within ten (10) business days
after request.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
5.1. REPRESENTATIONS AND WARRANTIES. Mortgagor represents and warrants to
Mortgagee that, to Mortgagor's current actual knowledge ("actual knowledge"
means, with respect to all representations and warranties based solely on
the representations, warranties and other information set forth in the
purchase and sale agreement, dated October 3, 2003 between Par 3
Development, L.L.C., as seller, and Mortgagor, as purchaser, and/or
conveyance documents delivered pursuant thereto and Mortgagor's good faith
due diligence investigation in connection with the acquisition of the
Property), the following statements are true and correct as of the
Effective Date:
a. Legal Status. Mortgagor is duly organized and existing and in good
standing under the laws of the state(s) in which Mortgagor is
organized. Mortgagor is qualified or licensed to do business in all
jurisdictions in which such qualification or licensing is required.
b. PERMITS. Mortgagor possesses all permits, franchises and licenses and
all rights to all trademarks, trade names, patents and fictitious
names, if any, necessary to enable Mortgagor to conduct the
business(es) in which Mortgagor is now engaged in compliance with
applicable law.
c. AUTHORIZATION AND VALIDITY. The execution and delivery of the Loan
Documents have been duly authorized and the Loan Documents constitute
valid and binding obligations of Mortgagor or the party which executed
the same, enforceable in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy, insolvency,
moratorium or other laws affecting the enforcement of creditors'
rights, or by the application of rules of equity.
d. VIOLATIONS. The execution, delivery and performance by Mortgagor of
each of the Loan Documents do not violate any provision of any law or
regulation, or result in any breach or default under any contract,
obligation, indenture or other instrument to which Mortgagor is a
party or by which Mortgagor is bound.
e. LITIGATION. There are no pending or threatened (in writing) actions,
claims, investigations, suits or proceedings before any governmental
authority, court or administrative agency which are reasonably likely
to materially adversely affect the financial condition or operations
of Mortgagor other than those previously disclosed in writing by
Mortgagor to Mortgagee.
f. FINANCIAL STATEMENTS. The financial statements of Mortgagor, of each
general partner (if Mortgagor is a partnership), of each member (if
Mortgagor is a limited liability company) and of each guarantor, if
any, previously delivered by
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Mortgagor to Mortgagee are: (i) materially complete and correct; (ii)
present fairly the financial condition of such party; and (iii) have
been prepared in accordance with the same accounting standard used by
Mortgagor to prepare the financial statements delivered to and
approved by Mortgagee in connection with the making of the Loan, or
other accounting standards approved by Mortgagee. Since the date of
such financial statements, there has been no material adverse change
in such financial condition, nor have any assets or properties
reflected on such financial statements been sold, transferred,
assigned, mortgaged, pledged or encumbered except as previously
disclosed in writing by Mortgagor to Mortgagee and approved in writing
by Mortgagee.
g. REPORTS. All reports, documents, instruments and information delivered
to Mortgagee in connection with the Loan: (i) are correct in all
material respects and sufficiently complete to give Mortgagee accurate
knowledge of their subject matter; and (ii) do not contain any
misrepresentation of a material fact or omission of a material fact
which omission makes the provided information misleading.
h. INCOME TAXES. There are no pending assessments or adjustments of
Mortgagor's income tax payable with respect to any year.
i. SUBORDINATION. There is no agreement or instrument to which Mortgagor
is a party or by which Mortgagor is bound that would require the
subordination in right of payment of any of Mortgagor's obligations
under the Note to an obligation owed to another party.
j. TITLE. Mortgagor lawfully holds and possesses fee simple title to the
Property, without limitation on the right to encumber same. This
Mortgage is a first lien on the Property prior and superior to all
other liens and encumbrances on the Property except: (i) liens for
real estate taxes and assessments not yet due and payable; (ii)
exceptions shown in the title insurance policy insuring the lien of
this Mortgage accepted by Mortgagee; and (iii) other matters, if any,
previously disclosed to Mortgagee by Mortgagor in a
writing specifically referring to this representation and warranty.
k. MECHANICS' LIENS. There are no mechanics' or similar liens or claims
which have been filed for work, labor or material (and to Mortgagor's
actual knowledge without investigation (other than its review of the
title policy) no rights are outstanding that under law could give rise
to any such liens) affecting the Property which are or may be prior to
or equal to the lien of this Mortgage.
l. ENCROACHMENTS. Except as shown in the survey, if any, previously
delivered to Mortgagee, none of the buildings or other improvements
which were included for the purpose of determining the appraised value
of the Property lies outside of the boundaries or building restriction
lines of the Property and no buildings or other improvements located
on adjoining properties encroach upon the Property.
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m. LEASES. All existing Leases are in full force and effect and are
enforceable in accordance with their respective terms. Except as may
be disclosed in the tenant estoppel certificates delivered to
Mortgagee in connection with the Loan, no material breach or default
by any party, or event which would constitute a material breach or
default by any party after notice or the passage of time, or both,
exists under any existing Lease. None of the landlord's interests
under any of the Leases, including, but not limited to, rents,
additional rents, charges, issues or profits, has been transferred or
assigned, except to Mortgagee in connection with this Loan. No rent or
other payment under any existing Lease has been paid by any tenant for
more than 1 month in advance.
n. COLLATERAL. Mortgagor has good title to the existing Collateral, free
and clear of all liens and encumbrances except the prior lien of this
Mortgage and those, if any, previously disclosed to Mortgagee by
Mortgagor in writing specifically referring to this representation and
warranty. Mortgagor's chief executive office (or principal residence,
if applicable) is located at the address shown on page one of this
Mortgage. Mortgagor is an organization organized solely under the laws
of the State of Delaware. Mortgagor has delivered to Mortgagee correct
and complete copies of its organizational documents. Mortgagor's legal
name is exactly as shown on page one of this Mortgage.
o. CONDITION OF PROPERTY. Except as shown in the property condition
survey or other engineering reports, if any, previously delivered to
or obtained by Mortgagee, the Property is in good condition and repair
and is free from any damage that would materially and adversely affect
the value of the Property as security for the Loan or the intended use
of the Property.
p. HAZARDOUS MATERIALS. Except as shown in the environmental assessment
report(s), if any, previously delivered to or obtained by Mortgagee,
the Property is not and has not been a site for the use, generation,
manufacture, storage, treatment, release, threatened release,
discharge, disposal, transportation or presence of Hazardous Materials
(as hereinafter defined) except as otherwise previously disclosed in
writing by Mortgagor to Mortgagee.
q. HAZARDOUS MATERIALS LAWS. The Property complies with all Hazardous
Materials Laws (as hereinafter defined).
r. HAZARDOUS MATERIALS CLAIMS. There are no pending or threatened
Hazardous Materials Claims (as hereinafter defined).
s. WETLANDS. Except as may be shown on the survey or property condition
report, if any, previously delivered to Mortgagee, no part of the
Property consists of or is classified as wetlands, tidelands or swamp
and overflow lands.
t. COMPLIANCE WITH LAWS. The Property complies in all material respects
with all federal, state and local laws, rules and regulations
applicable to the Property, including, without limitation, all zoning
and building requirements and all
13
requirements of the Americans With Disabilities Act of 1990, as
amended from time to time (42 U. S. C. Section 12101 et seq.).
Mortgagor is in possession of all certificates of occupancy and all
other material licenses, permits and other authorizations required by
applicable law for the existing use of the Property. All such
certificates of occupancy and other licenses, permits and
authorizations are valid and in full force and effect.
u. PROPERTY TAXES AND OTHER LIABILITIES. All taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges,
and ground rents, if any, which previously became due and owing in
respect of the Property have been paid.
v. CONDEMNATION. There is no proceeding pending or threatened (in
writing) for the total or partial condemnation of the Property.
w. HOMESTEAD. There is no homestead or other exemption available to
Mortgagor which would materially interfere with the right to sell the
Property at a trustee's sale or the right to foreclose this Mortgage.
x. IRPTA. The execution and delivery of the Loan Documents is not a
transfer of "real property", as "real property" is defined in the
Illinois Responsible Property Transfer Act of 1988 (765 ILCS 90/1 et
seq.), as amended from time to time.
y. SOLVENCY. None of the transactions contemplated by the Loan will be or
have been made with an actual intent to hinder, delay or defraud any
present or future creditors of Mortgagor, and Mortgagor, on the
Effective Date, will have received fair and reasonably equivalent
value in good faith for the grant of the liens or security interests
effected by the Loan Documents. On the Effective Date, Mortgagor will
be solvent and will not be rendered insolvent by the transactions
contemplated by the Loan Documents. On the Effective Date, Mortgagor
is able to pay its debts as generally they become due.
z. SEPARATE TAX PARCEL(S). Except as may be disclosed in the title
insurance policy approved by Mortgagee, the Property is assessed for
real estate tax purposes as one or more wholly independent tax
parcels, separate from any other real property, and no other real
property is assessed and taxed together with the Property or any
portion thereof.
aa. UTILITIES; WATER; SEWER. The Property is served by all utilities
required for the current or contemplated use thereof. All utility
service is provided by public utilities and the Property has accepted
or is equipped to accept such utility service. The Property is served
by public water and sewer systems.
bb. ERISA MATTERS. Mortgagor is not 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, nor a plan
as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986,
as amended (each of the foregoing hereinafter referred to collectively
as "Plan"). Mortgagor's assets
14
do not constitute "plan assets" of one or more such Plans within the
meaning of Department of Labor Regulation Section 2510.3-101.
Mortgagor will not transfer or convey the Property to a Plan or to a
person or entity whose assets constitute such "plan assets", and
Mortgagor will not be reconstituted as a Plan or as an entity whose
assets constitute "plan assets". No Tenant under any Lease is a Plan
or an entity whose assets constitute such "plan assets", and Mortgagor
will not knowingly enter into any Lease where the tenant thereunder is
a Plan or an entity whose assets constitute such "plan assets." With
respect to the Loan, Mortgagor is acting on its own behalf and not on
account of or for the benefit of any Plan.
5.2 REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING STATUS (LEVEL II SPE).
Mortgagor hereby represents, warrants and covenants to Mortgagee as
follows:
(a) such entity was organized solely for the purpose of owning the
Property;
(b) such entity has not and will not engage in any business unrelated to
the ownership of the Property;
(c) such entity has not and will not have any assets other than the
Property (and personal property incidental to the ownership and
operation of the Property);
(d) such entity has not and will not engage in, seek or consent to any
dissolution, winding up, liquidation, consolidation, merger, asset
sale, or amendment of its articles of incorporation, articles of
organization, certificate of formation, operating agreement or
partnership agreement, as applicable, relating to the representations,
warranties and covenants set forth in this Section 5.2;
(e) such entity, without the unanimous consent of all of its directors,
general partners or members, as applicable, shall not file or consent
to the filing of any bankruptcy or insolvency petition or otherwise
institute insolvency proceedings;
(f) such entity has no indebtedness (and will have no indebtedness) other
than (i) the Loan; and (ii) unsecured trade debt not to exceed
$400,000.00 in the aggregate, which is not evidenced by a note and is
incurred in the ordinary course of its business in connection with
owning, operating and maintaining the Property and is paid within 60
days from the date incurred;
(g) such entity has not and will not fail to correct any known
misunderstanding regarding the separate identity of such entity;
(h) such entity has maintained and will maintain its accounts, books and
records separate from any other person or entity;
(i) such entity has maintained and will maintain its books, records,
resolutions and agreements as official records;
15
(j) such entity (i) has not and will not commingle its funds or assets
with those of any other entity; and (ii) has held and will hold its
assets in its own name;
(k) such entity has conducted and will conduct its business in its own
name;
(l) such entity has maintained and will maintain its accounting records
and other entity documents separate from any other person or entity;
(m) such entity has prepared and will prepare separate tax returns and
financial statements, or if part of a consolidated group, is shown as
a separate member of such group;
(n) such entity has paid and will pay its own liabilities and expenses out
of its own funds and assets;
(o) such entity has held and will hold regular meetings, as appropriate,
to conducts its business and has observed and will observe all
corporate, partnership or limited liability company formalities and
record keeping, as applicable;
(p) such entity has not and will not assume or guarantee or become
obligated for the debts of any other entity or hold out its credit as
being available to satisfy the obligations of any other entity;
(q) such entity has not and will not acquire obligations or securities of
its shareholders, partners or members, as applicable;
(r) such entity has allocated and will allocate fairly and reasonably the
costs associated with common employees and any overhead for shared
office space and such entity has used and will use separate
stationery, invoices and checks;
(s) such entity has not and will not pledge its assets for the benefit of
any other person or entity;
(t) such entity has held and identified itself and will hold itself out
and identify itself as a separate and distinct entity under its own
name and not as a division or part of any other person or entity;
(u) such entity has not made and will not make loans to any person or
entity;
(v) such entity has not and will not identify its shareholders, partners
or members, as applicable, or any affiliates of any of the foregoing,
as a division or part of it;
(w) such entity has not entered into and will not enter into or be a party
to, any transaction with its shareholders, partners or members, as
applicable, or any affiliates of any of the foregoing, except in the
ordinary course of its business pursuant to written agreements and on
terms which are intrinsically fair and are no less favorable to it
than would be obtained in a comparable arm's-length transaction with
an unrelated third party;
16
(x) if such entity is a corporation, the directors of such entity shall
consider the interests of the creditors of such entity in connection
with all corporate action;
(y) such entity has paid and will pay the salaries of its own employees
out of its own funds and has maintained and will maintain a sufficient
number of employees in light of its contemplated business operations;
(z) such entity has maintained and will maintain adequate capital in light
of its contemplated business operations;
(aa) if such entity is a partnership with more than one general partner,
its partnership agreement requires the remaining partners to continue
the partnership as long as one solvent general partner exists; and
(bb) if such entity is a limited liability company, its operating
agreement, if any such entity is a partnership, its partnership
agreement and if such entity is a corporation, to the fullest extent
permitted by applicable law, its articles of incorporation, contain
the provisions set forth in this Section 5.2 and such entity shall
conduct its business and operations in strict compliance with the
terms contained therein.
ARTICLE 6. RIGHTS AND DUTIES OF THE PARTIES
6.1. MAINTENANCE AND PRESERVATION OF THE PROPERTY. Mortgagor shall: (a) keep or
cause the Property to be kept in good condition and repair; (b) restore
promptly and in workmanlike manner the Property or any part thereof which
may be damaged or destroyed by fire or other casualty, whether or not
Mortgagee makes any Proceeds (defined below) available pursuant to Section
6.11, unless all of the conditions for releasing Proceeds set forth in
Section 6.1l(b)(iii) (other than the conditions set forth in subsections
(b)(iii)(aa), (cc)(5), (6) and (7) thereof) have been satisfied and
Mortgagee fails to make Proceeds available to Mortgagor, in which case
Mortgagor shall have no obligation to restore of such Property, provided,
however, Mortgagor shall be obligated to repair the applicable Property to
the extent necessary (i) to protect life and safety at such Property and
(ii) return such Property to a condition where the subject Property is
deemed an architectural whole whereby access to any portion of such
Property is not impaired and the shell of the applicable Improvements is
fully complete and closed; (c) comply and cause the Property to comply with
(i) all laws, ordinances, regulations and standards, (ii) all covenants,
conditions, restrictions and equitable servitudes, whether public or
private, of every kind and character and (iii) all requirements of
insurance companies and any bureau or agency which establishes standards of
insurability, in each case, to the extent such laws, covenants or
requirements affect the Property and pertain to acts committed or
conditions existing thereon, including, without limitation, any work of
alteration, improvement or demolition as such laws, covenants or
requirements mandate; (d) operate and manage the Property or cause the
Property to be operated and managed at all times in a professional manner
and do all other acts which from the character or use of the Property may
be reasonably necessary to maintain and preserve its value; (e) promptly
after execution, deliver to Mortgagee a copy of any management agreement
17
concerning the Property and all amendments thereto and waivers thereof; and
(f) execute and acknowledge all further documents, instruments and other
papers as Mortgagee reasonably deems necessary or appropriate to preserve,
continue, perfect and enjoy the benefits of this Mortgage and perform
Mortgagor's obligations, including, without limitation, statements of the
outstanding principal balance of the Loan amount and statements of no
offset. Mortgagor shall not: (g) remove or demolish all or any material
part of the Property; (h) alter either (i) the exterior of the Improvements
in a manner which materially and adversely affects the value of the
Property or (ii) the roof or other structural elements of the Improvements
in a manner which requires a building permit except for tenant improvements
required under the Leases or as Mortgagor is required to in accordance with
the casualty and condemnation provisions hereof, (i) initiate or acquiesce
in any change in any zoning or other land classification which affects the
Property; (j) materially alter the type of occupancy or use of all or any
part of the Property; or (k) commit or permit material physical waste of
the Property.
6.2. HAZARDOUS MATERIALS. Without limiting any other provision of this Mortgage,
Mortgagor agrees as follows:
a. PROHIBITED ACTIVITIES. Mortgagor shall not cause or permit the
Property to be used as a site for the use, generation, manufacture,
storage, treatment, release, discharge, disposal, transportation or
presence of any oil or other petroleum products, flammable explosives,
asbestos, urea formaldehyde insulation, radioactive materials,
hazardous wastes, toxic or contaminated substances or similar
materials, including, without limitation, any substances which are
"hazardous substances," "hazardous wastes," "hazardous materials" or
"toxic substances" under the Hazardous Materials Laws (defined below)
and/or other applicable environmental laws, ordinances or regulations
("Hazardous Materials") in violation of Hazardous Materials Laws.
The foregoing to the contrary notwithstanding, (i) Mortgagor may
store, maintain and use on the Property janitorial and maintenance
supplies, paint and other Hazardous Materials of a type and in a
quantity readily available for purchase by the general public and
normally stored, maintained and used by owners and managers of
properties of a type similar to the Property; (ii) tenants of the
Property may store, maintain and use on the Property (and, if any
tenant is a retail business, hold in inventory and sell in the
ordinary course of such tenant's business) Hazardous Materials of a
type and quantity readily available for purchase by the general public
and normally stored, maintained and used (and, if tenant is a retail
business, sold) by tenants in similar lines of business on properties
similar to the Property; and (iii) the tenant under the 2301 Fox Drive
Lease (defined below) may use and maintain the storage tank in
accordance with the 2301 Fox Drive Lease, provided such use is in
accordance with Hazardous Materials Laws. "2301 Fox Drive Lease" shall
mean that certain lease, dated December 22, 2000, as amended, by and
between Par 3 Development, L.L.C. and Amdocs Champaign, Inc. f/k/a
ITDS Intellicom Services, Inc.
18
b. HAZARDOUS MATERIALS LAWS. Mortgagor shall comply and cause the
Property to comply with all federal, state and local laws, ordinances
and regulations relating to Hazardous Materials ("Hazardous Materials
Laws"), including, without limitation: the Clean Air Act, as amended,
42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control
Act, as amended, 33 U.S.C. Section 1251 et seq.: the Resource
Conservation and Recovery Act of 1976, as amended, 42 U.S.C. Section
6901 et seq.; the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended (including the Superfund
Amendments and Reauthorization Act of 1986, "CERCLA"), 42 U.S.C.
Section 9601 et seq.: the Toxic Substances Control Act, as amended, 15
U.S.C. Section 2601 et seq.: the Occupational Safety and Health Act,
as amended, 29 U.S.C. Section 651; the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.:
the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section
801 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f et
seq.; and all comparable state and local laws, laws of other
jurisdictions or orders and regulations.
c. NOTICES. Mortgagor shall promptly upon obtaining knowledge thereof
notify Mortgagee in writing of: (i) the discovery of any Hazardous
Materials on, under or about the Property (other than Hazardous
Materials permitted under Section 6.2a); (ii) any knowledge by
Mortgagor that the Property does not comply with any Hazardous
Materials Laws; (iii) any claims or actions ("Hazardous Materials
Claims") pending or threatened (in writing) against Mortgagor or the
Property by any governmental entity or agency or any other person or
entity relating to Hazardous Materials or pursuant to the Hazardous
Materials Laws; and (iv) the discovery of any occurrence or condition
on any real property adjoining or in the immediate vicinity of the
Property that reasonably could be expected to cause the Property or
any part thereof to become contaminated with Hazardous Materials.
d. REMEDIAL ACTION. In response to the presence of any Hazardous
Materials on, under or about the Property in violation of Hazardous
Materials Laws, Mortgagor shall promptly take or cause to be taken, at
Mortgagor's sole expense, all remedial action required by any
Hazardous Materials Laws or any judgment, consent decree, settlement
or compromise in respect to any Hazardous Materials Claims.
e. INSPECTION BY MORTGAGEE. Upon reasonable prior notice to Mortgagor,
Mortgagee, its employees and agents (using reasonable efforts not to
disturb tenants with Leases at the Property), may from time to time
during normal business hours (whether before or after the commencement
of a nonjudicial or judicial foreclosure proceeding), enter and
inspect the Property for the purpose of determining the existence,
location, nature and magnitude of any past or present release or
threatened release of any Hazardous Materials into, onto, beneath or
from the Property.
f. INTENTIONALLY DELETED.
19
6.3. COMPLIANCE WITH LAWS. Mortgagor shall comply or cause the tenants under
Leases relating to the Property to comply in all material respects with all
federal, state and local laws, rules and regulations applicable to the
Property, including, without limitation, all zoning and building
requirements and all requirements of the Americans With Disabilities Act of
1990 (42 U.S.C. Section 12101 et seq.), as amended from time to time.
Mortgagor shall possess and maintain in full force and effect at all times
(a) all certificates of occupancy and other material licenses, permits and
authorizations required by applicable law for the existing use of the
Property and (b) all permits, franchises and licenses and all rights to all
trademarks, trade names, patents and fictitious names, if any, required by
applicable law for Mortgagor to conduct the business(es) in which Mortgagor
is now engaged.
6.4. LITIGATION. Mortgagor shall promptly after obtaining knowledge of same
notify Mortgagee in writing of any litigation pending or threatened (in
writing) against Mortgagor claiming damages in excess of $50,000 and of all
pending or threatened (in writing) litigation against Mortgagor if the
aggregate damage claims against Mortgagor exceed $100,000.
6.5. MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Mortgagor shall not: (a) merge
or consolidate with any other entity; (b) make any substantial change in
the nature of Mortgagor's business or structure; (c) acquire all or
substantially all of the assets of any other entity; or (d) sell, lease,
assign, transfer or otherwise dispose of a material part of Mortgagor's
assets except in the ordinary course of business.
6.6. ACCOUNTING RECORDS. Mortgagor shall maintain adequate books and records in
accordance with the same accounting standard used by Mortgagor to prepare
the financial statements delivered to and approved by Mortgagee in
connection with the making of the Loan or other accounting standards
reasonably approved by Mortgagee. Mortgagor shall permit any representative
of Mortgagee, upon reasonable prior notice, at any reasonable time and from
time to time, to inspect, audit and examine such books and records and make
copies of same; provided, however, unless subsequent to a Default,
Mortgagor's right to audit the same may be exercised no more than two times
per year.
6.7. COSTS, EXPENSES AND ATTORNEYS' FEES. Mortgagor shall pay to Mortgagee the
full amount of all reasonable out of pocket costs and expenses, including,
without limitation, reasonable attorneys' fees and expenses of Mortgagee's
in-house or outside counsel, actually incurred by Mortgagee in connection
with: (a) appraisals and inspections of the Property or Collateral
reasonably required by Mortgagee as a result of (i) a Transfer or proposed
Transfer (as defined below), or (ii) a Default; (b) appraisals and
inspections of the Property or Collateral required by applicable law,
including, without limitation, federal or state regulatory reporting
requirements; and (c) any acts performed by Mortgagee at Mortgagor's
request or wholly or partially for the benefit of Mortgagor (including,
without limitation, the preparation or review of amendments, assumptions,
waivers, releases, reconveyances, estoppel certificates or statements of
amounts owing under any Secured Obligation). In connection with appraisals
and inspections required by the Mortgage or other Loan Documents, Mortgagor
specifically (but not by way of limitation) acknowledges that: (aa) a
formal written appraisal of the Property by a state
20
certified or licensed appraiser may be required by federal regulatory
reporting requirements on an annual or more frequent basis; and (bb)
Mortgagee may require inspection of the Property by an independent
supervising architect, a cost engineering specialist, or both. Mortgagor
shall pay all reasonable out-of-pocket costs arising under this Section
within ten (10) business days of demand by Mortgagee together with interest
thereon if not paid within ten (10) business days following such demand at
the rate of interest then applicable to the principal balance of the Note
as specified therein.
6.8. LIENS, ENCUMBRANCES AND CHARGES. Mortgagor shall within thirty (30) days of
notice (from any source whatsoever) discharge or bond any lien, charge or
other encumbrance which attaches to the Property in violation of Section
6.15. Subject to Mortgagor's right to contest such matters under this
Mortgage or as expressly permitted in the Loan Documents, Mortgagor shall
pay when due all obligations secured by or reducible to liens and
encumbrances which shall now or hereafter encumber or appear to encumber
all or any part of the Property or any interest therein, whether senior or
subordinate hereto, including, without limitation, all claims for work or
labor performed, or materials or supplies furnished, in connection with any
work of demolition, alteration, repair, improvement or construction of or
upon the Property, except such as Mortgagor may in good faith contest or as
to which a bona fide dispute may arise (provided provision is made to the
reasonable satisfaction of Mortgagee for eventual payment thereof in the
event that Mortgagor is obligated to make such payment and that any
recorded claim of lien, charge or other encumbrance against the Property is
discharged or bonded within thirty (30) days as provided for herein).
6.9. TAXES AND OTHER LIABILITIES. Mortgagor shall pay and discharge prior to
delinquency any and all indebtedness, obligations, assessments and taxes,
both real and personal and including federal and state income taxes and
state and local property taxes and assessments other than those being
contested in good faith in accordance with Section 8.4 hereof. Mortgagor
shall promptly provide to Mortgagee copies of all tax and assessment
notices pertaining to the Property. Mortgagor hereby authorizes Mortgagee
to obtain, at Mortgagor's expense, a tax service contract which shall
provide tax information on the Property to Mortgagee for the term of the
Loan and any extensions or renewals of the Loan.
6.10. INSURANCE COVERAGE. Mortgagor shall obtain and maintain all insurance
coverage required pursuant to that certain Agreement Regarding Required
Insurance dated as of the date hereof by and between Mortgagor and
Mortgagee.
6.11. CONDEMNATION AND INSURANCE PROCEEDS.
a. ASSIGNMENT OF CLAIMS. Subject to the terms of this Section 6.11 (a),
Mortgagor absolutely and irrevocably assigns to Mortgagee all of
Mortgagee's right, title and interest in the following rights, claims
and amounts (collectively, "Claims"), all of which shall be paid to
Mortgagee: (i) all awards of damages and all other compensation
payable directly or indirectly by reason of a condemnation or proposed
condemnation for public or private use affecting all or any part of,
or any interest in, the Property; (ii) all other claims and awards for
damages to or
21
decrease in value of all or any part of, or any interest in, the
Property; (iii) all proceeds of any insurance policies payable by
reason of loss sustained to all or any part of the Property; and (iv)
all interest, if any, which may accrue on any of the foregoing.
Mortgagor shall give Mortgagee prompt written notice of the occurrence
of any casualty affecting, or the institution of any proceedings for
eminent domain or for the condemnation of, the Property or any portion
thereof, in each case, promptly after detaining knowledge of same. So
long as no Default has occurred and is continuing at the time, (i)
Mortgagor shall have the right to adjust, compromise and settle any
Claim or group of related Claims of $500,000 or less without the
participation or consent of Mortgagee, (ii) Mortgagee shall have the
right to participate in and consent to any adjustment, compromise or
settlement of any Claim or group of related Claims exceeding $500,000
and (iii) if the Proceeds shall be less than $500,000 and the costs of
completing the restoration shall be less than $500,000, the Proceeds
will be disbursed by Mortgagee to Mortgagor upon receipt, provided
that all of the conditions set forth in Section 6.11(b) are met and
Mortgagor delivers to Mortgagee a written undertaking to expeditiously
commence and to satisfactorily complete with due diligence the
restoration in accordance with the terms of this Agreement. If a
Default has occurred and is continuing at the time, Mortgagor hereby
irrevocably empowers Mortgagee, in the name of Mortgagor, as
Mortgagor's true and lawful attorney in fact, to commence, appear in,
defend, prosecute, adjust, compromise and settle all Claims; provided,
however, Mortgagee shall not be responsible for any failure to
undertake any or all of such actions regardless of the cause of the
failure. All awards, proceeds and other sums described herein shall,
in all cases, be payable to Mortgagee. All proceeds payable to
Mortgagee under a business interruption insurance policy or loss of
rents shall be held by Mortgagee and shall be applied to the
obligations secured by the Loan Documents from time to time due and
payable hereunder and under the Note; provided, however, that nothing
herein contained shall be deemed to relieve Mortgagor of its
obligations to pay the obligations secured by the Loan Documents on
the respective dates of payment provided for in the Note, this
Mortgage and the other Loan Documents except to the extent such
amounts are actually paid out of the proceeds of such loss of rents or
business income insurance, as applicable;
b. APPLICATION OF PROCEEDS; NO DEFAULT. So long as no Default has
occurred and is continuing at the time of Mortgagee's receipt of the
proceeds of the Claims ("Proceeds") and no Default occurs and
continues thereafter, the following provisions shall apply:
(i) Condemnation. If the Proceeds are the result of Claims described
in clauses 6.11.a (i) or (ii) above, or interest accrued thereon,
Mortgagee shall apply the Proceeds in the following order of
priority: First, to Mortgagee's reasonable expenses in settling,
prosecuting or defending the Claims; Second, to the repair or
restoration of the portion of the Property, if any, not condemned
or proposed for condemnation and not otherwise the subject of a
claim or award; and Third, to the Secured Obligations in
22
any order without suspending, extending or reducing any
obligation of Mortgagor to make installment payments.
(ii) Insurance. If the Proceeds are the result of Claims described in
clause 6.11.a (iii) above or interest accrued thereon, Mortgagee
shall apply the Proceeds in the following order of priority:
First, to Mortgagee 's expenses in settling, prosecuting or
defending the Claims; Second, to the repair or restoration of the
Property; and Third, (aa) if the repair or restoration of the
Property has been completed and all costs incurred in connection
with the repair or restoration have been paid in full, to
Mortgagor or (bb) in all other circumstances, to the Secured
Obligations in any order without suspending, extending or
reducing any obligation of Mortgagor to make installment
payments.
(iii) Restoration. Notwithstanding the foregoing Sections 6.11.b (i)
and (ii), Mortgagee shall have no obligation to make any Proceeds
available for the repair or restoration of all or any portion of
the Property unless and until all the following conditions have
been satisfied: (aa) delivery to Mortgagee of the Proceeds plus
any additional amount which is needed to pay all costs of the
repair or restoration (including, without limitation, taxes,
financing charges, insurance and rent during the repair period);
(bb) establishment of an arrangement for lien releases and
disbursement of funds acceptable to Mortgagee; (cc) delivery to
Mortgagee in form and content reasonably acceptable to Mortgagee
of all of the following: (1) plans and specifications for the
work; (2) a contract for the work, signed by a contractor
reasonably acceptable to Mortgagee, provided the amount of
contract exceeds $250,000; (3) a cost breakdown for the work; (4)
if required by Mortgagee, a payment and performance bond for the
work; (5) unless consented to in writing by Mortgagee in the
event the Proceeds are insurance proceeds, less than thirty-five
percent (35%) of each of (i) fair market value of the Property as
reasonably determined by Mortgagee, and (ii) the rentable area of
the Improvements on the applicable Property has been damaged,
destroyed or rendered unusable as a result of a casualty and
Leases covering in the aggregate at least sixty-five percent
(65%) of the total rentable space in the applicable Property
which has been demised under executed and delivered Leases inr
effect as of the date of the occurrence of such casualty shall
remain in full force and effect during and after the completion
of restoration; (6) evidence that, upon completion of the work,
value, and income coverage ratios for the Property will be at
least as great as those which existed immediately before the
damage or condemnation occurred; (7) evidence that the work can
reasonably be completed on or before that date which is 6 months
prior to the Maturity Date; and (8) evidence of the satisfaction
of any additional conditions that Mortgagee may reasonably
establish to protect Mortgagee's security. Mortgagor acknowledges
that the specific conditions described above are reasonable.
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c. APPLICATION OF PROCEEDS; DEFAULT. If a Default has occurred and is
continuing at the time of Mortgagee's receipt of the Proceeds or if a
Default occurs at any time thereafter, Mortgagee may, at Mortgagee's
absolute discretion and regardless of any impairment of security or
lack of impairment of security, but subject to applicable law
governing use of the Proceeds, if any, apply all or any of the
Proceeds to Mortgagee's reasonable expenses in settling, prosecuting
or defending the Claims and then apply the balance to the Secured
Obligations in any order without suspending, extending or reducing any
obligation of Mortgagor to make installment payments, and may release
all or any part of the Proceeds to Mortgagor upon any conditions
Mortgagee chooses.
6.12. IMPOUNDS.
a. POST-DEFAULT IMPOUNDS. If required by Mortgagee at any time after a
Default occurs and is continuing, Mortgagor shall deposit with
Mortgagee such amounts ("Post-Default Impounds") on such dates
(determined by Mortgagee as provided below) as will be sufficient to
pay any or all "Costs" (as defined below) specified by Mortgagee.
Mortgagee in its reasonable discretion shall estimate the amount of
such Costs that will be payable or required during any period selected
by Mortgagee not exceeding 1 year and shall determine the fractional
portion thereof that Mortgagor shall deposit with Mortgagee on each
date specified by Mortgagee during such period. If the Post-Default
Impounds paid by Mortgagor are not sufficient to pay the related
Costs, Mortgagor shall deposit with Mortgagee within 10 days after
demand an amount equal to the deficiency. All Post-Default Impounds
shall be payable by Mortgagor in addition to (but without duplication
of) any other Impounds (as defined below).
b. ALL IMPOUNDS. Post-Default Impounds and any other impounds that may be
payable by Mortgagor under the Note are collectively called
"Impounds". All Impounds shall be deposited into one or more
segregated or commingled accounts maintained by Mortgagee or its
servicing agent. Such account(s) shall bear interest as provided for
in the Note. Mortgagee shall not be a trustee, special depository or
other fiduciary for Mortgagor with respect to such account, and the
existence of such account shall not limit Mortgagee's rights under
this Mortgage, any other agreement or any provision of law. If no
Default exists, Mortgagee shall apply all Impounds to the payment of
the related Costs, or in Mortgagee's sole discretion may release any
or all Impounds to Mortgagor for application to and payment of such
Costs. If a Default exists, Mortgagee may apply any or all Impounds to
any Secured Obligation and/or to cure such Default, whereupon
Mortgagor shall restore all Impounds so applied and cure all Defaults
not cured by such application. The obligations of Mortgagor hereunder
shall not be diminished by deposits of Impounds made by Mortgagor,
except to the extent that such obligations have actually been met by
application of such Impounds. Upon any assignment of this Mortgage,
Mortgagee may assign all Impounds in its possession to Mortgagee's
assignee, whereupon Mortgagee shall be released from all liability
with respect to such Impounds. Within 30 days following full repayment
of the Secured Obligations (other than as a consequence of foreclosure
24
or conveyance in lieu of foreclosure) or at such earlier time as
Mortgagee may elect, Mortgagee shall pay to Mortgagor all Impounds in
its possession, and no other party shall have any right or claim
thereto. "Costs" means (i) all taxes and other liabilities payable by
Mortgagor under Section 6.9 (excluding federal and state income
taxes), (ii) all insurance premiums payable by Mortgagor under
Section'6.10, (iii) all other costs and expenses for which Impounds
are required under the Note, and/or (iv) all other amounts that will
be required to preserve the value of the Property. Mortgagor shall
deliver to Mortgagee, promptly upon receipt, all bills for Costs for
which Mortgagee has required Post-Default Impounds.
6.13. DEFENSE AND NOTICE OF LOSSES, CLAIMS AND ACTIONS. Mortgagor shall protect,
preserve and defend the Property and title to and right of possession of
the Property, the security of this Mortgage and the rights and powers of
Mortgagee hereunder at Mortgagor's sole expense against all adverse claims,
whether the claim: (a) is against a possessory or non-possessory interest;
(b) arose prior or subsequent to the Effective Date; or (c) is senior or
junior to Mortgagor's or Mortgagee's rights. Promptly upon obtaining
knowledge, Mortgagor shall give Mortgagee notice in writing of the
assertion of any claim, of the filing of any action or proceeding, of the
occurrence of any damage to the Property and of any condemnation offer or
action.
6.14. RIGHT OF INSPECTION. Mortgagee and its independent contractors, agents and
employees may enter the Property from time to time upon prior written
notice during normal business hours at any reasonable time for the purpose
of inspecting the Property and ascertaining Mortgagor's compliance with the
terms of this Mortgage. Mortgagee shall use reasonable efforts to assure
that Mortgagee's entry upon and inspection of the Property shall not
materially and unreasonably interfere with the business or operations of
Mortgagor or Mortgagor's tenants on the Property.
6.15. DUE ON SALE/ENCUMBRANCE.
a. DEFINITIONS. The following terms shall have the meanings indicated:
"Restricted Party" shall mean each of (i) Mortgagor, (ii) any entity
obligated under any guaranty or indemnity made in favor of Mortgagee
in connection with the Loan and (iii) any shareholder, partner, member
or non-member manager, or any direct or indirect legal or beneficial
owner of Mortgagor or any entity obligated under a guaranty or
indemnity made in favor of Mortgagee in connection with the Loan.
"Transfer" shall mean any sale, installment sale, exchange, mortgage,
pledge, hypothecation, assignment, encumbrance or other transfer,
conveyance or disposition, whether voluntarily, involuntarily or by
operation of law or otherwise.
b. PROPERTY TRANSFERS.
25
(i) Prohibited Property Transfers. Except as hereinafter provided,
Mortgagor shall not, without Mortgagee's prior written consent,
cause or permit any Transfer of all or any part of or any direct
or indirect legal or beneficial interest in the Property or the
Collateral (collectively, a "Prohibited Property Transfer"),
including, without limitation, (A) a Lease of all or a material
part of the Property for any purpose other than actual occupancy
by a space tenant; and (B) the Transfer of all or any part of
Mortgagor's right, title and interest in and to any Leases or
Payments.
(ii) Permitted Property Transfers. Except as hereinafter provided,
notwithstanding the foregoing, none of the following Transfers
shall be deemed to be a Prohibited Property Transfer: (A) a
Transfer which is expressly permitted under the Note; (B) a Lease
which is permitted under Article 3; (C) the sale of inventory in
the ordinary course of business; and (D) the replacement of
obsolete equipment in accordance with this Mortgage. No transfer
fee will be required for such Permitted Property Transfers.
c. EQUITY TRANSFERS.
(i) Prohibited Equity Transfers. Mortgagor shall not cause or permit
any Transfer of any direct or indirect legal or beneficial
interest in a Restricted Party (collectively, a "Prohibited
Equity Transfer"), including without limitation, (A) if a
Restricted Party is a corporation, any merger, consolidation or
other Transfer of such corporation's stock or the creation or
issuance of new stock in one or a series of transactions; (B) if
a Restricted Party is a limited partnership, limited liability
partnership, general partnership or joint venture, any merger or
consolidation or the change, removal, resignation or addition of
a general partner or the Transfer of the partnership interest of
any general or limited partner or any profits or proceeds
relating to such partnership interests or the creation or
issuance of new limited partnership interests; (C) if a
Restricted Party is a limited liability" company, any merger or
consolidation or the change, removal, resignation or addition of
a managing member or non-member manager (or if no managing
member, any member) or any profits or proceeds relating to such
membership interest, or the Transfer of a non-managing
membership interest or the creation or issuance of new
nonmanaging membership interests; or (D) if a Restricted Party is
a trust, any merger, consolidation or other Transfer of any legal
or beneficial interest in such Restricted Party or the creation
or issuance of new legal or beneficial interests.
(ii) Permitted Equity Transfers. Notwithstanding the foregoing, none
of the following Transfers shall be deemed to be a Prohibited
Equity Transfer: (A) a Transfer by a natural person who is a
member, partner or shareholder of a Restricted Party to a
revocable inter vivos trust having such natural person as trustor
of such trust and one or more immediate
26
family members of such natural person as the sole beneficiaries
of such trust ("Revocable Family Trust"); (B) a Transfer by
devise or descent or by operation of law upon the death of a
member, partner or shareholder of a Restricted Party where such
Transfer does not result in a Default under Section 7.1(a)(vi)
below; and (C) a Transfer, in one or a series of transactions, of
not more than 49% of the stock, limited partnership interests or
non-managing membership interests (as the case may be) in a
Restricted Party; provided, however, no such Transfers result in
a change of control in the Mortgagor. Notwithstanding anything to
the contrary contained in this Section 6.15, Lender and rating
agency prior consent shall not be required (provided Mortgagor
pays all the reasonable out-of-pocket costs in connection with
such transfer) with respect to transfers of direct and/or
indirect interests in the Mortgagor to third parties or to other
direct or indirect equity owners of Mortgagor, so long as (1) a
qualified institutional investment fund managed by Fortress
Investment Group LLC, with assets in excess of six hundred
million and 00/100 dollars ($600,000,000.00) (the "Fortress
Fund") or a Qualified Transferee, continues to own at all times,
directly or indirectly, at least a fifty-one percent (51%)
interest in Mortgagor, (2) the Fortress Fund or a Qualified
Transferee (defined below) shall control Mortgagor and the
day-to-day operations of the Property, (3) the Property shall be
managed by a Qualified Manager (defined below) and (4) Mortgagor
and its general partner or managing member, as applicable,
continue to comply with the provisions set forth in Section 5.2
of this Mortgage.
(iii) No transfer fee will be required for (1) any Permitted Equity
Transfers in clause (ii) (A), (B) or (C) above or (2) a transfer
in accordance with the last sentence of clause (ii) (other than a
transfer or a series of transfers by Drawbridge Special
Opportunities Fund LP to a Qualified Transferee which results in
such Qualified Transferee owning more than a 88% membership
interest in the Borrower, in which case a transfer fee equal to
1% of the outstanding principal amount of the Loan is due and
payable but in no event less than $15,000).
"Qualified Transferee" means one or more of the following:
(A) a real estate investment trust, bank, saving and loan
association, investment bank, insurance company, trust company,
commercial credit corporation, pension plan, pension fund or
pension advisory firm, mutual fund, government entity or plan,
provided that any such Person referred to in this clause (A)
satisfies the Eligibility Requirements;
(B) an investment company, money management firm or "qualified
institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, or an institutional
"accredited investor" within the meaning of Regulation D under
the Securities Act of 1933, as
27
amended, provided that any such Person referred to in this clause
(B) satisfies the Eligibility Requirements;
(C) an institution substantially similar to any of the foregoing
entities described in clauses (A) or (B) that satisfies the
Eligibility Requirements;
(D) any entity Controlled by any of the entities described in
clause (i) or clauses (A) or (C) above;
(E) a Qualified Trustee in connection with a securitization of,
the creation of collateralized debt obligations ("CDO") secured
by or financing through an "owner trust" of, the Loan
(collectively, "Securitization Vehicles"), so long as (A) the
special servicer or manager of such Securitization Vehicle has
the Required Special Servicer Rating (defined below) and (B) the
entire "controlling class" of such Securitization Vehicle, other
than with respect to a CDO Securitization Vehicle, is held by one
or more entities that are otherwise Qualified Transferees under
clauses (A), (B), (C) or (D) of this definition; provided that
the operative documents of the related Securitization Vehicle
require that (1) in the case of a CDO Securitization Vehicle, the
"equity interest" in such Securitization Vehicle is owned by one
or more entities that are Qualified Transferees under clauses
(A), (B), (C) or (D) of this definition and (2) if any of the
relevant trustee, special servicer, manager fails to meet the
requirements of this clause (E), such Person must be replaced by
a Person meeting the requirements of this clause (E) within
thirty (30) days;
(F) an investment fund, limited liability company, limited
partnership or general partnership where an entity that is
otherwise a Qualified Transferee under clauses (A), (B), (C) or
(D) of this definition acts as the general partner, managing
member or fund manager and at least 50% of the equity interests
in such investment vehicle are owned, directly or indirectly, by
one or more entities that are otherwise Qualified Transferees
under clauses (A), (B), (C) or (D) of this definition; or
(G) Stonewater Partners Inc., provided it has total assets (in
name or under management) in excess of $300,000,000.00 and
capital/statutory surplus or shareholder's equity of
$125,000,000.00.
"Eligibility Requirements" means, with respect to any Person,
that such Person (i) has total assets (in name or under
management) in excess of $600,000,000.00 and (except with respect
to a pension advisory firm or similar fiduciary)
capital/statutory surplus or shareholder's equity of
$250,000,000.00 and (ii) is regularly engaged in the business of
making or owning commercial real estate loans or operating
commercial mortgage properties.
28
"Qualified Manager" shall mean Fox Development Corporation,
Stonewater Management LLC or a reputable and experienced
professional management organization (a) which manages, together
with its affiliates, at least five (5) first class office
buildings totaling at least 1,000,000 square feet of gross
leasable area, exclusive of the Property and (b) approved by
Lender, which approval shall not be unreasonably withheld or
delayed and for which Lender shall have received written
confirmation from the Rating Agencies that the employment of such
manager will not result in a downgrade, withdrawal or
qualification of the initial, or if higher, then current ratings
issued in connection with a Securitization, or if a
Securitization has not occurred, any ratings to be assigned in
connection with a Securitization.
"Required Special Servicer Rating" means (i) a rating of "CSS1"
in the case of Fitch, (ii) on the S&P list of approved special
servicers in the case of S&P and (iii) in the case of Moody's,
such special servicer is acting as special servicer in a
commercial mortgage loan Securitization that was rated by Moody's
within the twelve (12) month period prior to the date of
determination, and Moody's has not downgraded or withdrawn the
thencurrent rating on any class of commercial mortgage securities
or placed any class of commercial mortgage securities on watch
citing the continuation of such special servicer as special
servicer of such commercial mortgage securities.
(iv) SPE Status. Nothing contained in this Section 6.15(c) shall be
construed to permit any Transfer which would result in a breach
of any representation, warranty or covenant of Mortgagor under
Section 5.2 above. Notwithstanding anything to the contrary
contained in this Section 6.15(c), if a nonconsolidation opinion
was required as a condition to closing of the Loan, (A) Mortgagor
shall deliver to Mortgagee at least 60 days' prior written notice
of any Transfer under Section 6.15(c) above (other than the
Transfer referenced in 6.15(c)(ii)(B)), (B) if required by
Mortgagee, it shall be a condition precedent to any Transfer
under Section 6.15(c) above (other than the Transfer referenced
in 6.15(c)(ii)(B)) that Mortgagor deliver to Mortgagee a current
nonconsolidation opinion in form and content and rendered by
counsel reasonably satisfactory to Mortgagee in its sole and
absolute discretion and (C) such a nonconsolidation opinion shall
be delivered to Mortgagee, not more than 60 days' following any
Transfer under Section 6.15c(ii)(B) above.
D. CERTIFICATES OF OWNERSHIP. Mortgagor shall deliver to Mortgagee, at
any time and from time to time, not more than 5 days after Mortgagee's
written request therefor, a certificate, in form acceptable to
Mortgagee, signed and dated by Mortgagor, listing the names of all
persons and entities (except the partners that make up Drawbridge
Special Opportunities Fund LP) holding direct or indirect legal or
beneficial interests in the Mortgagor or the Property and the type and
amount of each such interest.
29
6.16. INTENTIONALLY OMITTED.
6.17. INTENTIONALLY OMITTED.
6.18. EXCULPATION. Mortgagee shall not directly or indirectly be liable to
Mortgagor or any other person as a consequence of: (a) the exercise of the
rights, remedies or powers granted to Mortgagee in this Mortgage; (b) the
failure or refusal of Mortgagee to perform or discharge any obligation or
liability of Mortgagor under any agreement related to the Property or under
this Mortgage; or (c) any loss sustained by Mortgagor or any third party
resulting from Mortgagee's failure to lease the Property after a Default
(hereafter defined) or from any other act or omission of Mortgagee in
managing the Property after a Default unless the loss is caused by the
gross negligence, willful misconduct and/or bad faith of Mortgagee and no
such liability shall be asserted or enforced against Mortgagee, all such
liability being expressly waived and released by Mortgagor.
6.19. INDEMNITY. Without in any way limiting any other indemnity contained in
this Mortgage, Mortgagor agrees to defend, indemnify and hold harmless
Mortgagee and the Mortgagee Group from and against any claim, any actual
loss, damage, cost, expense or liability directly or indirectly arising out
of: (a) the making of the Loan, except for violations of banking laws or
regulations by the Mortgagee Group; (b) this Mortgage; (c) the execution of
this Mortgage or the performaace of any act required or permitted hereunder
or by law; (d) any failure of Mortgagor to perform Mortgagor's obligations
under this Mortgage or the other Loan Documents; (e) any alleged obligation
or undertaking on the Mortgagee Group's part to perform or discharge any of
the representations, warranties, conditions, covenants or other obligations
contained in any other document related to the Property; (f) any act or
omission by Mortgagor or any contractor, agent, employee or representative
of Mortgagor with respect to the Property; or (g) any claim, loss, damage,
cost, expense or liability directly or indirectly arising out of: (i) the
use, generation, manufacture, storage, treatment, release, threatened
release, discharge, disposal, transportation or presence of any Hazardous
Materials which are found in, on, under or about the Property (including,
without limitation, underground contamination in violation of applicable
Hazardous Materials Laws); or (ii) the breach of any covenant,
representation or warranty of Mortgagor under Sections 5.1.p, 5.l.q,
5.l.r, or 6.2 above. The foregoing to the contrary notwithstanding, this
indemnity shall not include any claim, loss, damage, cost, expense or
liability directly or indirectly arising out of the gross negligence or
willful misconduct of any member of the Mortgagee Group or Mortgagee, or
any claim, loss, damage, cost, expense or liability incurred by the
Mortgagee Group or Mortgagee arising from any act or incident on the
Property occurring after the full reconveyance and release of the lien of
this Mortgage on the Property, or with respect to the matters set forth in
clause (g) above, any claim, loss, damage, cost, expense or liability
incurred by the Mortgagee Group resulting from the introduction and initial
release of Hazardous Materials on the Property occurring after the transfer
of title to the Property at a foreclosure sale under this Mortgage, either
pursuant to judicial decree or the power of sale, or by deed in lieu of
such foreclosure. This indemnity shall include, without limitation: (aa)
all consequential damages (including, without limitation, any third party
tort claims or governmental claims, fines or penalties against Mortgagee or
the Mortgagee Group); (bb) all court costs and reasonable
30
attorneys' fees (including, without limitation, reasonable expert witness
fees) paid or incurred by Mortgagee or the Mortgagee Group (Mortgagor shall
not be liable for the counsel of more than one separate counsel unless one
of the members of the Mortgagee Group shall have reasonably concluded that
there may be legal defenses available to it that are different from or
additional to those available to other members of the Mortgagee Group; and
(cc) the costs, whether foreseeable or unforeseeable, of any investigation,
repair, cleanup or detoxification of the Property which is required by any
governmental entity or is otherwise necessary to render the Property in
compliance with all laws and regulations pertaining to Hazardous Materials.
"Mortgagee Group", as used herein, shall mean (1) Mortgagee and (including,
without limitation, any participant in the Loan), (2) any entity
controlling, controlled by or under common control with Mortgagee, (3) the
directors, officers, employees and agents of Mortgagee and such other
entities, and (4) the successors, heirs and assigns of the entities and
persons described in foregoing clauses (1) through (3). Mortgagor shall pay
within ten (10) days after Mortgagee's demand any amounts owing under this
indemnity together with interest if not paid within such ten (10) day
period from the date the indebtedness arises until paid at the rate of
interest applicable to the principal balance of the Note as specified
therein. Mortgagor agrees to use legal counsel reasonably acceptable to the
Mortgagee and the Mortgagee Group in any action or proceeding arising under
this indemnity. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE RELEASE OF
THIS MORTGAGE, BUT MORTGAGOR'S LIABILITY UNDER THIS INDEMNITY SHALL BE
SUBJECT TO THE PROVISIONS OF THE SECTION IN THE NOTE ENTITLED "BORROWER'S
LIABILITY."
6.20. INTENTIONALLY OMITTED.
6.21. RELEASES, EXTENSIONS, MODIFICATIONS AND ADDITIONAL SECURITY. Without
notice to or the consent, approval or agreement of any persons or entities
having any interest at any time in the Property or in any manner obligated
under the Secured Obligations ("Interested Parties"), Mortgagee may, from
time to time: (a) fully or partially release any person or entity from
liability for the payment or performance of any Secured Obligation; (b)
extend the maturity of any Secured Obligation; (c) make any agreement with
Mortgagor increasing the amount or otherwise altering the terms of any
Secured Obligation; (d) accept additional security for any Secured
Obligation; or (e) release all or any portion of the Property, Collateral
and other security for any Secured Obligation. None of the foregoing
actions shall release or reduce the personal liability of any of said
Interested Parties, or release or impair the priority of the lien of this
Mortgage upon the Property.
6.22. SALE OR PARTICIPATION OF LOAN. Mortgagee may at any time sell, assign,
participate or securitize all or any portion of Mortgagee's rights and
obligations under the Loan Documents, and that any such sale, assignment,
participation or securitization may be to one or more financial
institutions or other entities, to private investors, or into the public
securities market, in Mortgagee's sole discretion. Mortgagor further agrees
that Mortgagee may disseminate to any such actual or potential
purchaser(s), assignee(s) or participant(s) (and to any investment banking
firms, rating agencies, accounting firms, law firms and other third party
advisory firms and investors involved with the Loan and
31
the Loan Documents or the applicable sale, assignment, participation or
securitization) all documents and financial and other information
heretofore or hereafter provided to Mortgagee in connection with the Loan
with respect to: (a) the Property and its operation; (b) any party
connected with the Loan (including, without limitation, Mortgagor or
Mortgagee, any partner or member of Mortgagor or Mortgagee, any constituent
partner or member of Mortgagor or Mortgagee, any guarantor and any
nonborrower Mortgagor). In the event of any such sale, assignment,
participation or securitization, Mortgagee and the other parties to the
same shall share in the rights and obligations of Mortgagee set forth in
the Loan Documents as and to the extent they shall agree among themselves.
In connection with any such sale, assignment, participation or
securitization, Mortgagor further agrees that the Loan Documents shall be
sufficient evidence of the obligations of Mortgagor to each purchaser,
assignee or participant, and Mortgagor shall, within 30 days after request
by Mortgagee; (c) deliver to Mortgagee such information and documents
relating to Mortgagor, the Property and its operation and any party
connected with the Loan as Mortgagee may reasonably request or any rating
agency may request; (d) deliver to Mortgagee an estoppel certificate for
the benefit of Mortgagee and any other party designated by Mortgagee
verifying the status and terms of the Loan, in form and content reasonably
satisfactory to Mortgagee; (e) enter into such amendments to the Loan
Documents as may be reasonably requested by Lender or as requested by any
rating agency in order to facilitate any such sale, assignment,
participation or securitization without impairing Mortgagor's rights or
increasing Mortgagor's obligations under the Loan Documents as in effect on
the date hereof; (f) if, as a condition to the closing of the Loan,
Mortgagor was required to be a special-purpose bankruptcy-remote entity,
enter into such amendments to the organizational documents of Mortgagor as
any rating agency may request to preserve or enhance Mortgagor's
specialpurpose bankruptcy-remote status; (g) if, as a condition to the
closing of the Loan, Mortgagor was required to provide Mortgagee with any
nonconsolidation opinions, provide Mortgagee with such amendments and
restatements of such opinions as any rating agency may request; and (h)
deliver to Mortgagee such Delaware springing member limited liability
company opinions acceptable to Mortgagee as any rating agency may request.
The indemnity obligations of Mortgagor under the Loan Documents shall also
apply with respect to any purchaser, assignee or participant.
Notwithstanding the foregoing, in connection with this Section 6.22,
Mortgagor shall not be obligated to pay its own attorneys' fees in excess
of $2,500 and Mortgagee will reimburse Mortgagor for all actual out of
pocket costs, including reasonable attorneys' fees, over $2,500.
6.23. RELEASE. Upon payment in full of the Secured Obligations, Mortgagee shall
release, without warranty, the lien of this Mortgage. The recitals of any
matters or facts in any release executed hereunder shall be conclusive
proof of the truthfulness thereof. To the extent permitted by law, the
release may describe any grantee named therein as "the person or persons
legally entitled thereto". Mortgagee shall have no duty to determine the
rights of persons claiming to be rightful grantees under any such release.
6.24. SUBROGATION. Mortgagee shall be subrogated to the lien of all
encumbrances, whether released of record or not, paid in whole or in part
by Mortgagee pursuant to this Mortgage or by the proceeds of any loan
secured by this Mortgage.
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ARTICLE 7. DEFAULT
7.1. DEFAULT. For all purposes hereof, "Default" shall mean either an "Optional
Default" (as defined below) or an "Automatic Default" (as defined below).
a. OPTIONAL DEFAULT. An "Optional Default" shall occur, at Mortgagee's
option, upon the occurrence of any of the following events:
(i) MONETARY. Provided failure to pay when due is not as a result of
Lender's failure to deposit the sums in a timely manner pursuant
to the Cash Management Agreement, Mortgagor shall fail to (aa)
pay when due any sums which by their express terms require
immediate payment without any grace period or sums which are
payable on the Maturity Date, or (bb) pay within 5 days when due
any other sums payable under the Note, this Mortgage or any of
the other Loan Documents, including without limitation, any
monthly payment due under the Note.
(ii) FAILURE TO PERFORM. Mortgagor shall fail to observe, perform or
discharge any of Mortgagor's obligations, covenants, conditions
or agreements, other than Mortgagor's payment obligations, under
the Note, this Mortgage or any of the other Loan Documents, and
(aa) such failure shall remain uncured for 30 days after written
notice thereof shall have been given to Mortgagor, as the case
may be, by Mortgagee or (bb) if such failure is of such a nature
that it cannot be cured within such 30 day period, Mortgagor
shall fail to commence to cure such failure within such 30 day
period or shall fail to diligently prosecute such curative action
thereafter.
(iii) REPRESENTATIONS AND WARRANTIES. Any representation, warranty,
certificate or other statement (financial or otherwise) made or
furnished by or on behalf of Mortgagor, or a guarantor, if any,
to Mortgagee or in connection with any of the Loan Documents, or
as an inducement to Mortgagee to make the Loan, shall be false,
incorrect, incomplete or misleading in any material respect when
made or furnished (excluding statements made in third party
reports accepted by Mortgagee in connection with this Loan).
(iv) ATTACHMENT. The sequestration or attachment of, or levy or
execution upon any of the Property, the Collateral or any other
collateral provided by Mortgagor under any of the Loan Documents,
or any material portion of the other assets of Mortgagor, which
sequestration, attachment, levy or execution is not released or
dismissed within 60 days after its occurrence; or the sale of any
assets affected by any of the foregoing.
(v) INTENTIONALLY DELETED.
(vi) KEY PERSON OR ENTITY. The retirement, death, incapacity or
material reduction in current management authority or duties, if
any, of Jeffrey
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Toporek and David Stade and Mortgagor's failure to provide a
substitute or replacement reasonably acceptable to Mortgagee
within 45 days after the occurrence of any such event.
b. AUTOMATIC DEFAULT. An "Automatic Default" shall occur automatically
upon the occurrence of any of the following events:
(i) VOLUNTARY BANKRUPTCY, INSOLVENCY, DISSOLUTION. (aa) Mortgagor's
filing a petition for relief under the Bankruptcy Reform Act of
1978, as amended or recodified ("Bankruptcy Code"), or under any
other present or future state or federal law regarding
bankruptcy, reorganization or other relief to debtors
(collectively, "Debtor Relief Law"); or (bb) Mortgagor's filing
any pleading in any involuntary proceeding under the Bankruptcy
Code or other Debtor Relief Law which admits the jurisdiction of
a court to regulate Mortgagor or the Property or the petition's
material allegations regarding Mortgagor's insolvency; or (cc)
Mortgagor's making a general assignment for the benefit of
creditors; or (dd) Mortgagor's applying for, or consenting to the
appointment of, a receiver, trustee, custodian or liquidator of
Mortgagor or any of its property; or (ee) the filing by Mortgagor
of a petition seeking the liquidation or dissolution of Mortgagor
or the commencement of any other procedure to liquidate or
dissolve Mortgagor.
(ii) INVOLUNTARY BANKRUPTCY. Mortgagor's failure to obtain a stay or a
full dismissal of any involuntary petition under the Bankruptcy
Code or other Debtor Relief Law that is filed against Mortgagor
or in any way restrains or limits Mortgagor or Mortgagee
regarding the Loan or the Property, prior to the earlier of the
entry of any order granting relief sought in the involuntary
petition or 60 days after the date of filing of the petition.
(iii) PARTNERS, GUARANTORS. The occurrence of an event specified in
Sections (i) or (ii) as to Mortgagor, any general partner or
managing member of Mortgagor, or any guarantor or other person or
entity in any manner obligated to Mortgagee under the Loan
Documents.
7.2. ACCELERATION. Upon the occurrence of an Optional Default, Mortgagee may, at
its option, declare all sums owing to Mortgagee under the Note and the
other Loan Documents immediately due and payable. Upon the occurrence of an
Automatic Default, all sums owing to Mortgagee under the Note and the other
Loan Documents shall automatically become immediately due and payable.
7.3. RIGHTS AND REMEDIES. In addition to the rights and remedies in Section 7.2
above, at any time after a Default, Mortgagee shall have all of the
following rights and remedies:
a. ENTRY ON PROPERTY. With or without notice, and without releasing
Mortgagor from any Secured Obligation, and without becoming a
mortgagee in possession,
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to enter upon the Property from time to time and to do such acts and
things as Mortgagee deems necessary or desirable in order to inspect,
investigate, assess and protect the security hereof or to cure any
Default, including, without limitation: (i) to take and possess all
documents, books, records, papers and accounts of Mortgagor or the
then owner of the Property which relate to the Property; (ii) to make,
terminate, enforce or modify leases of the Property upon such terms
and conditions as Mortgagee deems proper; (iii) to make repairs,
alterations and improvements to the Property necessary, in Mortgagee's
sole judgment, to protect or enhance the security hereof; (iv) to
appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Mortgagee hereunder; (v) to
pay, purchase, contest or compromise any encumbrance, charge, lien or
claim of lien which, in the sole judgment of Mortgagee, is or may be
senior in priority hereto, the judgment of Mortgagee being conclusive
as between the parties hereto; (vi) to obtain insurance; (vii) to pay
any premiums or charges with respect to insurance required to be
carried hereunder or under any other Loan Document; (viii) to obtain a
court order to enforce Mortgagee's right to enter and inspect the
Property for Hazardous Materials, in which regard the decision of
Mortgagee as to whether there exists a release or threatened release
of Hazardous Materials onto the Property shall be deemed reasonable
and conclusive as between the parties hereto; (ix) to have a receiver
appointed pursuant to applicable law to enforce Mortgagee's rights to
enter and inspect the Property for Hazardous Materials; and/or (x) to
employ legal counsel, accountants, engineers, consultants, contractors
and other appropriate persons to assist them;
b. APPOINTMENT OF RECEIVER. With or without notice or hearing to apply to
a court of competent jurisdiction for and obtain appointment of a
receiver, trustee, liquidator or conservator of the Property, for any
purpose, including, without limitation, to enforce Mortgagee's rights
to collect Payments and to enter on and inspect the Property for
Hazardous Materials, as a matter of strict right and without regard
to: (i) the adequacy of the security for the repayment of the Secured
Obligations; (ii) the existence of a declaration that the Secured
Obligations are immediately due and payable; (iii) the filing of a
notice of default; or (iv) the solvency of Mortgagor or any other
guarantor or other person or entity in any manner obligated to
Mortgagee under the Loan Documents.
c. JUDICIAL FORECLOSURE; INJUNCTION. To commence and maintain an action
or actions in any court of competent jurisdiction to foreclose this
Mortgage or to obtain specific enforcement of the covenants of
Mortgagor hereunder, and Mortgagor agrees that such covenants shall be
specifically enforceable by injunction or any other appropriate
equitable remedy and that for the purposes of any suit brought under
this subparagraph, Mortgagor waives the defense of laches and any
applicable statute of limitations to the extent permitted by law;
Upon sale of the Property, Mortgagee may credit bid (as determined by
Mortgagee in its sole and absolute discretion) all or any portion of
the Secured Obligations. In determining such credit bid, Mortgagee
may, but is not obligated
35
to, take into account all or any of the following: (i) appraisals of
the Property as such appraisals may be discounted or adjusted by
Mortgagee in its reasonable underwriting discretion; (ii) expenses and
costs incurred by Mortgagee with respect to the Property prior to
foreclosure; (iii) expenses and costs which Mortgagee anticipates will
be incurred with respect to the Property after foreclosure, but prior
to resale, including, without limitation, costs of structural reports
and other due diligence, costs to carry the Property prior to resale,
costs of resale (e.g. reasonable commissions, attorneys' fees, and
taxes), costs of any Hazardous Materials clean-up and monitoring,
costs of deferred maintenance, repair, refurbishment and retrofit,
costs of defending or settling litigation affecting the Property, and
lost opportunity costs (if any), including the time value of money
during any anticipated holding period by Mortgagee; (iv) declining
trends in real property values generally and with respect to
properties similar to the Property in the area of the Property; (v)
anticipated discounts upon resale of the Property as a distressed or
foreclosed property; (vi) the fact of additional collateral (if any),
for the Secured Obligations; and (vii) such other factors or matters
that Mortgagee (in its sole and absolute discretion) deems
appropriate. In regard to the above, Mortgagor acknowledges and agrees
that: (viii) Mortgagee is not required to use any or all of the
foregoing factors to determine the amount of its credit bid; (ix) this
paragraph does not impose upon Mortgagee any additional obligations
that are not imposed by law at the tune the credit bid is made; (x)
the amount of Mortgagee's credit bid need not have any relation to any
loan-to-value ratios specified in the Loan Documents or previously
discussed between Mortgagor and Mortgagee; and (XI) Mortgagee's credit
bid may be (at Mortgagee's sole and absolute discretion) higher or
lower than any appraised value of the Property;
d. MULTIPLE FORECLOSURES. To resort to and realize upon the security
hereunder and any other security now or later held by Mortgagee
concurrently or successively and in one or several consolidated or
independent judicial actions or lawfully taken nonjudicial
proceedings, or both, and to apply the proceeds received upon the
Secured Obligations all in such order and manner as Mortgagee
determines in its sole discretion;
e. RIGHTS TO COLLATERAL. To exercise all rights Mortgagee may have with
respect to the Collateral under this Mortgage, the UCC or otherwise at
law; and
f. OTHER RIGHTS. To exercise such other rights as Mortgagee may have at
law or in equity or pursuant to the terms and conditions of this
Mortgage or any of the other Loan Documents.
In connection with any sale or sales hereunder, Mortgagee may elect to
treat any of the Property which consists of a right in action or which is
property that can be severed from the Property (including, without
limitation, any improvements forming a part thereof) without causing
structural damage thereto as if the same were personal property or a
fixture, as the case may be, and dispose of the same in accordance with
applicable law,
36
separate and apart from the sale of the Property. Any sale of Collateral
hereunder shall be conducted in any manner permitted by the UCC.
7.4. APPLICATION OF FORECLOSURE SALE PROCEEDS. If any foreclosure sale is
effected, Mortgagee shall apply the proceeds of such sale in the following
order of priority: First, to the costs, fees and expenses of such sale;
Second, to the payment of the Secured Obligations which are secured by this
Mortgage, in such order as Mortgagee shall determine in its sole
discretion; and Third, to the Mortgagor or the Mortgagor's successor in
interest, or in the event the Property has been sold or transferred to
another, to the vested owner of record at the time of the sale.
7.5. WAIVER OF MARSHALING RIGHTS, RIGHTS OF REDEMPTION AND REINSTATEMENT.
Mortgagor, for itself and for all parties claiming through or under
Mortgagor, and for all parties who may acquire a lien on or interest in the
Property, hereby waives all rights to have the Property and/or any other
property, including, without limitation, the Collateral, which is now or
later may be security for any Secured Obligation, marshaled upon any
foreclosure of this Mortgage or on a foreclosure of any other security for
any of the Secured Obligations. Mortgagor further waives, for itself and
for all parties claiming through or under Mortgagor, any and all rights of
redemption and reinstatement.
7.6. NO CURE OR WAIVER. Neither Mortgagee's nor any receiver's entry upon and
taking possession of all or any part of the Property, nor any collection of
rents, issues, profits, insurance proceeds, condemnation proceeds or
damages, other security or proceeds of other security, or other sums, nor
the application of any collected sum to any Secured Obligation, nor the
exercise of any other right or remedy by Mortgagee or any receiver shall
cure or waive any Default or notice of default under this Mortgage, or
nullify the effect of any notice of default or sale (unless all Secured
Obligations then due have been paid or performed and Mortgagor has cured
all other Defaults hereunder), or impair the status of the security, or
prejudice Mortgagee in the exercise of any right or remedy, or be construed
as an affirmation by Mortgagee of any tenancy, lease or option or a
subordination of the lien of this Mortgage.
7.7. PAYMENT OF COSTS, EXPENSES AND ATTORNEYS' FEES. Mortgagor agrees to pay to
Mortgagee within 5 business days demand all actual out-of-pocket costs and
expenses incurred by Mortgagee in the enforcement of the terms and
conditions of this Mortgage (including, without limitation, court costs and
reasonable attorneys' fees, whether incurred in litigation or not) with
interest from the date of expenditure until said sums have been paid at the
rate of interest applicable to the principal balance of the Note as
specified therein if not paid within 5 business days of demand.
7.8. POWER TO FILE NOTICES AND CURE DEFAULTS. Mortgagor hereby irrevocably
appoints Mortgagee and its successors and assigns, as its attorney-in-fact,
which agency is coupled with an interest, to perform any obligation of
Mortgagor hereunder upon the occurrence of a Default, provided, however,
that: (a) Mortgagee as such attorney-in-fact shall only be accountable for
such funds as are actually received by
37
Mortgagee; and (b) Mortgagee shall not be liable to Mortgagor or any other
person or entity for any failure to act under this Section.
7.9. REMEDIES CUMULATIVE. All rights and remedies of Mortgagee under this
Mortgage and the other Loan Documents are cumulative and are in addition to
all rights and remedies provided by applicable law. Mortgagee may enforce
any one or more remedies or rights under the Loan Documents either
successively or concurrently.
ARTICLE 8. MISCELLANEOUS PROVISIONS
8.1. ADDITIONAL PROVISIONS. The Loan Documents contain or incorporate by
reference the entire agreement of the parties with respect to matters
contemplated herein and supersede all prior negotiations. The Loan
Documents grant further rights to Mortgagee and contain further agreements
and affirmative and negative covenants by Mortgagor which apply to this
Mortgage and to the Property and such further rights and agreements are
incorporated herein by this reference. THE OBLIGATIONS AND LIABILITIES OF
MORTGAGOR UNDER THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS ARE SUBJECT TO
THE PROVISIONS OF THE SECTION IN THE NOTE ENTITLED "BORROWER'S LIABILITY."
8.2. NON-WAIVER. By accepting payment of any amount secured hereby after its due
date or late performance of any other Secured Obligation, Mortgagee shall
not waive its right against any person obligated directly or indirectly
hereunder or on any Secured Obligation, either to require prompt payment or
performance when due of all other sums and obligations so secured or to
declare default for failure to make such prompt payment or performance. No
exercise of any right or remedy by Mortgagee hereunder shall constitute a
waiver of any other right or-remedy herein contained or provided by law. No
failure by Mortgagee to exercise any right or remedy hereunder arising upon
any Default shall be construed to prejudice Mortgagee's rights or remedies
upon the occurrence of any other or subsequent Default. No delay by
Mortgagee in exercising any such right or remedy shall be construed to
preclude Mortgagee from the exercise thereof at any time while that Default
is continuing. No notice to nor demand on Mortgagor shall of itself entitle
Mortgagor to any other or further notice or demand in similar or other
circumstances.
8.3. CONSENTS AND APPROVALS. Wherever Mortgagee's consent, approval, acceptance
or satisfaction is required under any provision of this Mortgage or any of
the other Loan Documents, such consent, approval, acceptance or
satisfaction shall not be unreasonably withheld, conditioned or delayed by
Mortgagee unless such provision expressly so provides.
8.4. PERMITTED CONTESTS. After prior written notice to Mortgagee, Mortgagor may
contest, by appropriate legal or other proceedings conducted in good faith
and with due diligence, the amount, validity or application, in whole or in
part, of any lien, levy, tax or assessment, or any lien of any laborer,
mechanic, materialman, supplier or vendor, or the application to Mortgagor
or the Property of any law or the validity thereof, the assertion or
imposition of which, or the failure to pay when due, would constitute a
Default;
38
provided that (a) Mortgagor pursues the contest diligently, in a manner
which Mortgagee reasonably determines is not prejudicial to Mortgagee, and
does not impair the lien of this Mortgage; (b) the Property, or any part
hereof or estate or interest therein, shall not be in any danger of being
sold, forfeited or lost by reason of such proceedings; (c) in the case of
the contest of any law or other legal requirement, Mortgagee shall not be
in any danger of any civil or criminal liability; and (d) if required by
Mortgagee, Mortgagor deposits with Mortgagee any funds or other forms of
assurance (including a bond or letter of credit) reasonably satisfactory to
Mortgagee to protect Mortgagee from the consequences of the contest being
unsuccessful. Mortgagor's right to contest pursuant to the terms of this
provision shall in no way relieve Mortgagor of its obligations under the
Loan or to make payments to Mortgagee as and when due.
8.5. FURTHER ASSURANCES. Mortgagor shall, upon demand by Mortgagee, execute,
acknowledge (if appropriate) and deliver any and all documents and
instruments and do or cause to be done all further acts reasonably
necessary or appropriate to effectuate the purposes of the Loan Documents
and to perfect any assignments contained therein.
8.6. ATTORNEYS' FEES. If any legal action, suit or proceeding is commenced
between Mortgagor and Mortgagee regarding their respective rights and
obligations under this Mortgage or any of the other Loan Documents, the
prevailing party shall be entitled to recover, in addition to damages or
other relief, costs and expenses, reasonable attorneys' fees and court
costs (including, without limitation, reasonable expert witness fees). As
used herein the term "prevailing party" shall mean the party which obtains
the principal relief it has sought, whether by compromise settlement or
judgment. If the party which commenced or instituted the action, suit or
proceeding shall dismiss or discontinue it without the concurrence of the
other party, such other party shall be deemed the prevailing party.
8.7. MORTGAGOR AND MORTGAGEE DEFINED. The term "Mortgagor" includes both the
original Mortgagor and any subsequent owner or owners of any of the
Property, and the term "Mortgagee" includes the original Mortgagee and any
future owner or holder, including assignees, pledges and participants, of
the Note or any interest therein.
8.8. DISCLAIMERS.
a. RELATIONSHIP. The relationship of Mortgagor and Mortgagee under this
Mortgage and the other Loan Documents is, and shall at all times
remain, solely that of borrower and lender; and Mortgagee neither
undertakes nor assumes any responsibility or duty to Mortgagor or to
any third party with respect to the Property. Notwithstanding any
other provisions of this Mortgage and the other Loan Documents: (i)
Mortgagee is not, and shall not be construed to be, a partner, joint
venturer, member, alter ego, manager, controlling person or other
business associate or participant of any kind of Mortgagor, and
Mortgagee does not intend to ever assume such status; and (ii)
Mortgagee shall not be deemed responsible for or a participant in any
acts, omissions or decisions of Mortgagor.
39
b. NO LIABILITY. Mortgagee shall not be directly or indirectly liable or
responsible for any loss, claim, cause of action, liability,
indebtedness, damage or injury of any kind or character to any person
or property arising from any construction on, or occupancy or use of,
the Property, unless caused by gross negligence or willful misconduct
of Mortgagee, its agents or contractors, whether caused by or arising
from: (i) any defect in any building, structure, grading, fill,
landscaping or other improvements thereon or in any on-site or
off-site improvement or other facility therein or thereon; (ii) any
act or omission of Mortgagor or any of Mortgagor's agents, employees,
independent contractors, licensees or invitees; (iii) any accident in
or on the Property or any fire, flood or other casualty or hazard
thereon; (iv) the failure of Mortgagor or any of Mortgagor's
licensees, employees, invitees, agents, independent contractors or
other representatives to maintain the Property in a safe condition; or
(v) any nuisance made or suffered on any part of the Property.
8.9. SEVERABILITY. If any term of this Mortgage or any other Loan Document, or
the application thereof to any person or circumstances, shall, to any
extent, be invalid or unenforceable, the remainder of this Mortgage or such
other Loan Document, or the application of such term to persons or
circumstances other than those as to which it is invalid or unenforceable,
shall not be affected thereby, and each term of this Mortgage or such other
Loan Document shall be valid and enforceable to the fullest extent
permitted by law.
8.10. RELATIONSHIP OF ARTICLES. The rights, remedies and interests of Mortgagee
under the mortgage established by Article 1 and the security agreement
established by Article 4 are independent and cumulative, and there shall be
no merger of any lien created by the mortgage with any security interest
created by the security agreement. Mortgagee may elect to exercise or
enforce any of its rights, remedies or interests under either or both the
mortgage or the security agreement as Mortgagee may from time to time deem
appropriate. The absolute assignment of rents and leases established by
Article 3 is similarly independent of and separate from the mortgage and
the security agreement.
8.11. MERGER. No merger shall occur as a result of Mortgagee's acquiring any
other estate in, or any other lien on, the Property unless Mortgagee
consents to a merger in writing.
8.12. OBLIGATIONS OF MORTGAGOR, JOINT AND SEVERAL. If more than one person has
executed this Mortgage as "Mortgagor", the obligations of all such persons
hereunder shall be joint and several.
8.13. SEPARATE AND COMMUNITY PROPERTY. Any married person who executes this
Mortgage as a "Mortgagor" agrees that any money judgment which Mortgagee
obtains pursuant to the terms of this Mortgage or any other obligation of
that married person secured by this Mortgage may be collected by execution
upon any separate property or community property of that person.
40
8.14. INTEGRATION; INTERPRETATION. The Loan Documents contain or expressly
incorporate by reference the entire agreement of the parties with respect
to the matters contemplated therein and supersede all prior negotiations or
agreements, written or oral. The Loan Documents shall not be modified
except by written instrument executed by all parties. Any reference in any
of the Loan Documents to the Property or Collateral shall include" all or
any part of the Property or Collateral. Any reference to the Loan Documents
includes any amendments, renewals or extensions now or hereafter approved
by Mortgagee in writing. When the identity of the parties or other
circumstances make it appropriate, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
8.15. CAPITALIZED TERMS. Capitalized terms not otherwise defined herein shall
have the meanings set forth in the Note.
8.16. SUCCESSORS IN INTEREST. The terms, covenants, and conditions contained
herein and in the other Loan Documents shall be binding upon and inure to
the benefit of the heirs, successors and assigns of the parties. The
foregoing sentence shall not be construed to permit Mortgagor to assign the
Loan except as otherwise permitted under the Note or the other Loan
Documents.
8.17. GOVERNING LAW. This Mortgage was accepted by Mortgagee in the state New
York, which state the parties agree has a substantial relationship to the
parties and to the underlying transaction embodied hereby. Accordingly, in
all respects, including, without limiting the generality of the foregoing,
matters of construction, validity, enforceability and performance, this
Mortgage, the Note and the other Loan Documents and the obligations arising
hereunder and thereunder shall be governed by, and construed in accordance
with, the laws of the state of New York applicable to contracts made and
performed in such state and any applicable law of the United States of
America, except that at all times the provisions for the foreclosure of the
liens and all other remedies granted hereunder and the creation, perfection
and enforcement of the security interests created pursuant hereto and
pursuant to the other Loan Documents in any Collateral which is located in
the state where the Property is located shall be governed by and construed
according to the law of the state where the Property is located. Except as
provided in the immediately preceding sentence, Mortgagor hereby
unconditionally and irrevocably waives, to the fullest extent permitted by
law, any claim to assert that the law of any jurisdiction other than New
York governs this Mortgage, the Note and other Loan Documents.
8.18. CONSENT TO JURISDICTION. Mortgagor irrevocably submits to the jurisdiction
of: (a) any state or federal court sitting in the state of New York over
any suit, action, or proceeding, brought by Mortgagor against Mortgagee,
arising out of or relating to this Mortgage, the Note or the Loan; (b) any
state or federal court sitting in the state where the Property is located
or the state in which Mortgagor's principal place of business is located
over any suit, action or proceeding, brought by Mortgagee against
Mortgagor, arising out of or relating to this Mortgage, the Note or the
Loan; and (c) any state court sitting in the county of the state where the
Property is located over any suit, action, or proceeding, brought by
Mortgagee to exercise its rights of foreclosure under this
41
Mortgage or any action brought by Mortgagee to enforce its rights with
respect to the Collateral. Mortgagor irrevocably waives, to the fullest
extent permitted by law, any objection that Mortgagor may now or hereafter
have to the laying of venue of any such suit, action, or proceeding brought
in any such court and any claim that any such suit, action, or proceeding
brought in any such court has been brought in an inconvenient forum.
8.19. EXHIBITS. Exhibit A is incorporated into this Mortgage by this reference.
8.20. ADDRESSES; REQUEST FOR NOTICE. All notices and other communications that
are required or permitted to be given to a party under this Mortgage or the
other Loan Documents shall be in writing, refer to the Loan number, and
shall be sent to such party, either by personal delivery, by overnight
delivery service, by certified first class mail, return receipt requested,
or by facsimile transmission to the address or facsimile number below. All
such notices and communications shall be effective upon receipt of such
delivery or facsimile transmission. The addresses of the parties are set
forth on page 1 of this Mortgage and the facsimile numbers for the parties
are as follows:
Mortgagee:
WELLS FARGO BANK, N.A.
1320 Willow Pass Road, Suite 205
Concord, California 94520
FAX No.: (925) 691-5947
Mortgagor:
STONEWATER DOX FUNDING LLC
c/o Stonewater Partners
22 Deer Creek Lane
Mt. Kisco, NY 10549
FAX No.: (914) 470-4011
DRAWBRIDGE SPECIAL OPPORTUNITIES FUND LLP
1251 Avenue of the Americas, 16th Floor
New York, New York 10020
Attention: Kevin Treacy
FAX No.: (212) 798-6099
and a copy to:
Solomon and Weinberg LLP
Attention: Craig H. Solomon, Esq.
FAX No.: (212) 605-1001
Mortgagor's principal place of business is at the address set forth on page 1 of
this Mortgage.
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Any Mortgagor whose address is set forth on page 1 of this Mortgage hereby
requests that a copy of notice of default and notice of sale be delivered
to it at that address. Failure to insert an address shall constitute a
designation of Mortgagor's last known address as the address for such
notice. Any party shall have the right to change its address for notice
hereunder to any other location within the continental United States by
giving 30 days notice to the other parties in the manner set forth above.
8.21. COUNTERPARTS. This Mortgage may be executed in any number of counterparts,
each of which, when executed and delivered, will be deemed an original and
all of which taken together, will be deemed to be one and the same
instrument.
8.22. WAIVER OF JURY TRIAL. MORTGAGEE AND MORTGAGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER,
OR IN CONNECTION WITH, THIS MORTGAGE OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF MORTGAGEE OR MORTGAGOR. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR MORTGAGEE TO ENTER INTO THIS MORTGAGE.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the day and year
set forth above.
"MORTGAGOR"
STONEWATER DOX FUNDING LLC,
a Delaware limited liability company
By: /s/ Marc K. Furstein
------------------------------------
Name: Marc K. Furstein
Title: Chief Operating Officer
STATE OF New York )
) SS.
COUNTY OF New York )
I, Nichole Atkinson a Notary Public, in and for the County and State
aforesaid, DO HEREBY CERTIFY that Marc Furstein, as COO of Stonewater Dox
Funding LLC, a Delaware limited liability company, personally known to me to be
the same person whose name is subscribed to the foregoing instrument, appeared
before me this day in person and acknowledged to me that (he/she), being
thereunto duly authorized, signed and delivered said instrument as the free and
voluntary act of said corporation, each of said limited partnerships and said
limited liability company and as (his/her) own free and voluntary act, for the
uses and purposes set forth therein.
GIVEN under my hand and notarial seal this 19 day of Nov., 2003.
Notary Public
My Commission expires: /s/ Nikhole Atkinson
-------------- ----------------------------------------
NIKHOLE ATKINSON
Notary Public, State of New York
No. 01AT6095553
Qualified in New York Country
Commission Expires July 14, 2007
Loan No. 31-0901388
EXHIBIT A
DESCRIPTION OF LAND
Exhibit A to MORTGAGE AND ABSOLUTE ASSIGNMENT OF RENTS AND LEASES AND SECURITY
AGREEMENT (AND FIXTURE FILING) ("Mortgage") among STONEWATER DOX FUNDING LLC, as
"Mortgagor", and WELLS FARGO BANK, NATIONAL ASSOCIATION, as "Mortgagee".
Description of Land. The Land referred to in this Mortgage is situated in the
County of Champaign, state of Illinois and is described as follows:
Tract 1:
Lot 4 in Final Plat of Lot 4 of Par 3 Development Subdivision, as per Plat
recorded as Document 98R 28668, situated in Champaign County, Illinois.
Tract 2:
Lots 5 and 6 of Final Plat of Lots 5, 6 and 7 of Par 3 Development Subdivision,
a Subdivision in the City of Champaign, Champaign County, Illinois, as per plat
recorded July 10,1996 in Plat Book "CC" at page 185 as Document 96R 17100.
Tract 3:
Lot 7 of Final Plat of Lots 5, 6 and 7 of Par 3 Development Subdivision, a
subdivision in the City of Champaign, Champaign County, Illinois, as per plat
recorded July 10, 1996 in Plat Book "CC" at page 185 as Document 96R 17100.
Tract 4:
Lot 3 of Final Plat of Lot 3 Par 3 Development Subdivision recorded as Document
98R 14068, situated in Champaign County, Illinois.
EXHIBIT A
1