EXHIBIT 10.6
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GENERAL FORM
OF
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
BY
[PROPERTY OWNER NAME]
(MORTGAGOR)
TO AND FOR THE BENEFIT OF
MERRILL LYNCH MORTGAGE LENDING, INC.
(Mortgagee)
Dated: As of June __, 2004
Property Location: [PROPERTY NAME]
[STREET ADDRESS]
[COUNTY]
[CITY, STATE]
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DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
Sidley Austin Brown & Wood LLP
787 Seventh Avenue
New York, New York 10019
Attention: Mark A. Poole, Esq.
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT (this
"MORTGAGE"), made as of June __, 2004, by [PROPERTY OWNER NAME], having its
principal place of business at c/o Lodgian, Inc. 3445 Peachtree Road, NE, Suite
700, Atlanta, Georgia 30326 ("MORTGAGOR"), to and for the benefit of MERRILL
LYNCH MORTGAGE LENDING, INC., a Delaware corporation, having its principal place
of business at 4 World Financial Center, New York, New York 10080 (together with
its successors, transferees and assigns, "MORTGAGEE"). Capitalized terms used
herein but not otherwise defined shall have the respective meanings assigned to
such terms in the Loan Agreement (hereinafter defined).
W I T N E S S E T H:
To secure the payment of a loan (the "LOAN") in the original principal
sum of [INSERT POOL LOAN AMOUNT] ($__________), lawful money of the United
States of America, being made from Mortgagee to Mortgagor and the other
Borrowers (together with Mortgagor, "BORROWERS"), pursuant to the terms and
conditions of a certain Loan and Security Agreement, dated as of the date hereof
(as amended or modified, the "LOAN AGREEMENT"), among Borrowers and Mortgagee,
which is evidenced by and is to be paid with interest according to a certain
Promissory Note, dated as of the date hereof (as amended, modified, renewed or
restated, and together with any substitutes or replacements (by means of
multiple notes or otherwise) therefor, collectively, the "NOTE"), made by
Borrowers to Mortgagee and all other sums due hereunder, under the other Loan
Documents and under the Note (said indebtedness and interest due under the Note
and all other sums due hereunder, under the Note and the other Loan Documents
being hereinafter collectively referred to as the "DEBT"), Mortgagor has deeded,
mortgaged, given, granted, bargained, sold, alienated, enfeoffed, conveyed,
confirmed, warranted, pledged, assigned, and hypothecated and by these presents
does hereby deed, mortgage, give, grant, bargain, sell, alien, enfeoff, convey,
confirm, warrant, pledge, assign and hypothecate unto Mortgagee, the real
property described in EXHIBIT A attached hereto (the "PREMISES") and the
buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter located
thereon (the "IMPROVEMENTS");
TOGETHER WITH: all right, title, interest and estate of Mortgagor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements, and the property, rights,
interests and estates hereinafter described are collectively referred to herein
as the "MORTGAGED Property"):
(a) all easements, rights-of-way, strips and gores of
land, streets, ways, alleys, passages, sewer rights, water, water courses, water
rights and powers, air rights and development rights, all rights to oil, gas,
minerals, coal and other substances of any kind or character, and all estates,
rights, titles, interests, privileges, liberties, tenements, hereditaments and
appurtenances of any nature whatsoever, in any way belonging, relating or
pertaining to the Premises and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of any
street, road, highway, alley or avenue, opened, vacated or proposed, in front of
or adjoining the Premises, to the center line thereof and all the estates,
rights, titles, interests, dower and rights of dower, curtsey and rights of
curtsey, property, possession, claim and demand whatsoever, both at law and in
equity, of Mortgagor of, in and to the Premises and the Improvements and every
part and parcel thereof, with the appurtenances thereto;
(b) all machinery, furniture, furnishings, equipment,
computer software and hardware, fixtures (including, without limitation, all
heating, air conditioning, plumbing, lighting, communications and elevator
fixtures, inventory and articles of personal property and accessions thereof and
renewals, replacements thereof and substitutions therefor, if any (including,
but not limited to, beds, bureaus, chiffoniers, chests, chairs, desks, lamps,
mirrors, bookcases, tables, rugs, carpeting, drapes, draperies, curtains,
shades, venetian blinds, screens, paintings, hangings, pictures, divans,
couches, luggage carts, luggage racks, stools, sofas, chinaware, linens,
pillows, blankets, glassware, foodcarts, cookware, dry cleaning facilities,
dining room wagons, tools, keys or other entry systems, bars, bar fixtures,
liquor and other drink dispensers, icemakers, radios, television sets, intercom
and paging equipment, electric and electronic equipment, dictating equipment,
private telephone systems, medical equipment, potted plants, heating, lighting
and plumbing fixtures, fire prevention and extinguishing apparatus, cooling and
air-conditioning systems, elevators, escalators, fittings, plants, apparatus,
stoves, ranges, refrigerators, laundry machines, tools, machinery, engines,
dynamos, motors, boilers, incinerators, switchboards, conduits, compressors,
vacuum cleaning systems, floor cleaning, waxing and polishing equipment, call
systems, brackets, electrical signs, bulbs, bells, ash and fuel, conveyors,
cabinets, lockers, shelving, spotlighting equipment, dishwashers, garbage
disposals, washers and dryers), other customary hotel equipment) and other
property of every kind and nature, whether tangible or intangible, whatsoever
owned by Mortgagor, or in which Mortgagor has or shall have an interest, now or
hereafter located upon the Premises and the Improvements, or appurtenant
thereto, and usable in connection with the present or future operation and
occupancy of the Premises and the Improvements and all building equipment,
materials and supplies of any nature whatsoever owned by Mortgagor, or in which
Mortgagor has or shall have an interest, now or hereafter located upon the
Premises and the Improvements, or appurtenant thereto, and usable in connection
with the present or future operation, enjoyment and occupancy of the Premises
and the Improvements (hereinafter collectively referred to as the "EQUIPMENT"),
including any leases of any of the foregoing, any deposits existing at any time
in connection with any of the foregoing, and the proceeds of any sale or
transfer of the foregoing, and the right, title and interest of Mortgagor in and
to any of the Equipment that may be subject to any "security interests" as
defined in the Uniform Commercial Code, as adopted and enacted by the State or
States where any of the Mortgaged Property is located (the "UNIFORM COMMERCIAL
CODE"), superior in lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon,
that may heretofore and hereafter be made with respect to the Premises and the
Improvements, whether from the exercise of the right of eminent domain or
condemnation (including, without limitation, any transfer made in lieu of or in
anticipation of the exercise of said rights), or for a change of grade, or for
any other injury to or decrease in the value of the Premises and Improvements;
(d) all leases, tenancies, licenses, subleases,
assignments and/or rental or occupancy agreements and other agreements or
arrangements (including, without limitation, any and all guarantees of any of
the foregoing) heretofore or hereafter entered into affecting the use, enjoyment
or occupancy of, or the conduct of any activity upon or in, the Premises and the
Improvements, including any extensions, renewals, modifications or amendments
thereof (collectively, the "LEASES") and all rents, rent equivalents, moneys
payable as damages or in lieu of rent or rent equivalents, royalties (including,
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without limitation, all oil and gas or other mineral royalties and bonuses),
income, fees, receivables, receipts, revenues, deposits (including, without
limitation, security, utility and other deposits), accounts, cash, issues,
profits, charges for services rendered, and other payment and consideration of
whatever form or nature received by or paid to or for the account of or benefit
of Mortgagor or its agents or employees from any and all sources arising from or
attributable to the Premises and the Improvements, including, without
limitation, all hotel receipts, revenues and credit card receipts collected from
guest rooms, restaurants, bars (including, without limitation, service charges
for employees and staff), mini-bars, meeting rooms, banquet rooms, apartments,
parking, and recreational facilities, health club membership fees, food and
beverage wholesale and retail sales, service charges, convention services,
special events, audio-visual services, boat cruises, travel agency fees,
telephone charges, laundry services, vending machines and otherwise, all
receivables, customer obligations, installment payment obligations and other
obligations now existing or hereafter arising or created out of the sale, lease,
sublease, license, concession or other grant of the right of the possession, use
and occupancy of all or any portion of the Premises and the Improvements or
personalty located thereon, or rendering of services by Mortgagor or any
operator or manager of the hotel or the commercial space located in the
Improvements or acquired from others (including, without limitation, from the
rental of any office space, retail space, guest rooms or other space, halls,
stores, and offices, and deposits securing reservations of such space, and
charges for services such as room service, telecommunication and video,
electronic mail, internet connection and other communications and entertainment
services), license, lease, sublease and concession fees and rentals, and
proceeds, if any, from business interruption or other loss of income insurance
and any other items of revenue which would be included in operating revenues
under the Uniform System (as defined in the Loan Agreement) (the "RENTS"),
together with all proceeds from the sale or other disposition of the Leases and
the right to receive and apply the Rents to the payment of the Debt;
(e) all proceeds of and any unearned premiums on any
insurance policies covering the Mortgaged Property, including, without
limitation, the right to receive and apply the proceeds of any insurance,
judgments, or settlements made in lieu thereof, for damage to the Mortgaged
Property;
(f) all accounts, escrows, documents, instruments,
chattel paper, claims, deposits and general intangibles, as the foregoing terms
are defined in the Uniform Commercial Code, and all franchises, trade names
(including, without limitation, the right to operate the Mortgaged Property
under the name and/or hotel system known as [HOTEL BRAND]), trademarks, symbols,
service marks, books, records, plans, specifications, designs, drawings,
permits, consents, licenses, management agreements (including, without
limitation, the Management Agreement), franchise agreements, contract rights
(including, without limitation, any contract with any architect or engineer or
with any other provider of goods or services for or in connection with any
construction, repair, or other work upon the Mortgaged Property), approvals,
actions, refunds of real estate taxes and assessments (and any other
governmental impositions related to the Mortgaged Property), and causes of
action that now or hereafter relate to, are derived from or are used in
connection with the Mortgaged Property, or the use, operation, maintenance,
occupancy or enjoyment thereof or the conduct of any business or activities
thereon (hereinafter collectively referred to as the "INTANGIBLES"); and
any and all proceeds, products, offspring, rents and profits from any of the
foregoing, including, without limitation, those from sale, exchange, transfer,
collection, loss, damage, disposition,
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substitution or replacement of any of the foregoing and any and all other
security and collateral of any nature whatsoever, now or hereafter given for the
repayment of the Debt and the performance of Mortgagor's obligations under the
Loan Documents including, without limitation, the Impositions and Insurance
Reserve, the FF&E Reserve, the Loss Proceeds Account, the Deposit Account, the
Lock Box Account and the Sub-Accounts thereof (each as defined in that certain
Cash Management Agreement, dated as of the date hereof (as amended or modified
the "CASH MANAGEMENT AGREEMENT"), by and among Borrowers, Mortgagee, Lodgian
Management Corp. and Wachovia Bank, National Association), and any other escrows
or reserves set forth in the Loan Documents.
Notwithstanding anything to the contrary contained herein: (i) the
maximum amount of the principal obligations secured by this Mortgage (the
"Principal Obligations") shall not exceed [INSERT POOL LOAN AMOUNT] (the
"Maximum Principal Amount"); (ii) the Maximum Principal Amount of the Principal
Obligations secured by this Mortgage shall be deemed to be the first Principal
Obligations to be advanced and the last Principal Obligations to be repaid;
(iii) the security afforded by this Mortgage for the Debt shall not be reduced
by any payments or other sums applied to the reduction of the Debt so long as
the total amount of the outstanding Principal Obligations exceeds the Maximum
Principal Amount and thereafter shall be reduced only to the extent that any
such payments and other sums are actually applied by Mortgagee, in accordance
with the Loan Agreement, to reduce the outstanding Principal Obligations to an
amount less than the Maximum Principal Amount; and (iv) this limitation on the
Maximum Principal Amount shall only pertain to Principal Obligations and shall
not be construed as limiting the amount of interest, fees, expenses, indemnified
amounts and other Debt secured hereby that are not Principal Obligations, it
being the intention of the parties to this Mortgage that this Mortgage shall
secure any Principal Obligations remaining unpaid at the time of foreclosure up
to the Maximum Principal Amount, plus interest thereon, all costs of collateral
and all other amounts (except Principal Obligations in excess of the Maximum
Principal Amount) included in the Debt.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the use and benefit of Mortgagee, forever;
WITH POWER OF SALE, to secure the payment to Mortgagee of the Debt at
the time and in the manner provided for its payment in the Note and in this
Mortgage;
PROVIDED, HOWEVER, these presents are upon the express condition that,
if Mortgagor shall well and truly pay to Mortgagee the Debt at the time and in
the manner provided in the Note and this Mortgage and shall well and truly abide
by and comply with each and every covenant and condition set forth herein, in
the Note and in the other Loan Documents in a timely manner, these presents and
the estate hereby granted shall cease, terminate and be void;
AND Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
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PART I
GENERAL PROVISIONS
1. PAYMENT OF DEBT AND INCORPORATION OF COVENANTS, CONDITIONS AND
AGREEMENTS. Mortgagor shall pay the Debt at the time and in the manner provided
in the Note, in the Loan Agreement and in this Mortgage. All the covenants,
conditions and agreements contained in (a) the Note, (b) the Loan Agreement and
(c) the other Loan Documents are hereby made a part of this Mortgage to the same
extent and with the same force as if fully set forth herein.
2. WARRANTY OF TITLE. Mortgagor warrants that Mortgagor has good
and marketable title to the Mortgaged Property and has the full power, authority
and right to execute, deliver and perform its obligations under this Mortgage
and to deed, encumber, mortgage, give, grant, bargain, sell, alienate, enfeoff,
convey, confirm, pledge, assign and hypothecate the same and that Mortgagor
possesses a fee estate in the Premises and the Improvements and that it owns the
Mortgaged Property free and clear of all liens, encumbrances and charges
whatsoever except for the Permitted Encumbrances and that this Mortgage is and
will remain a valid and enforceable first lien on and security interest in the
Mortgaged Property, subject only to said exceptions. Mortgagor represents and
warrants that none of the Permitted Encumbrances will, individually or in the
aggregate, materially and adversely affect (i) Mortgagor's ability to pay in
full in a timely manner its obligations, including, without limitation, the
Debt, (ii) the use of the Mortgaged Property for the use currently being made
thereof, (iii) the operation of the Mortgaged Property for the operation
currently being made thereof, or (iv) the value of the Mortgaged Property.
Mortgagor shall forever warrant, defend and preserve such title and the validity
and priority of the lien of this Mortgage and shall forever warrant and defend
the same to Mortgagee against the claims of all persons whomsoever.
3. INSURANCE. Mortgagor, at its sole cost and expense, shall
obtain and maintain during the entire term of this Mortgage (the "TERM")
policies of insurance as required pursuant to Section 5.4 of the Loan Agreement,
and pay all premiums thereon (the "INSURANCE PREMIUMS").
4. PAYMENT OF IMPOSITIONS AND OTHER CHARGES. Subject to
Mortgagor's right to contest set forth in Section 5.3(B) of the Loan Agreement
and the provisions of Section 5 below, and pursuant to the provisions of the
Cash Management Agreement, Mortgagor shall cause to be paid all Impositions now
or hereafter levied or assessed or imposed against the Mortgaged Property or any
part thereof prior to the date the same shall become delinquent. Mortgagor shall
promptly pay for all utility services provided to the Mortgaged Property.
Mortgagor shall furnish to Mortgagee or its designee receipts for the payment of
the Impositions prior to the date the same shall become delinquent (provided,
however, that Mortgagor shall not be required to furnish such receipts for
payment of Impositions in the event that such Impositions have been paid by
Mortgagee pursuant to Section 5 hereof).
5. IMPOSITIONS AND INSURANCE RESERVE. Mortgagor shall make
monthly deposits into the Impositions and Insurance Reserve in accordance with,
and to the extent required under, Section 6.3 of the Loan Agreement and under
the Cash Management Agreement.
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6. CONDEMNATION. To the extent the terms of this Section 6 are
inconsistent with the terms of the Loan Agreement, the terms of the Loan
Agreement shall control.
(a) Mortgagor shall promptly give Mortgagee written
notice of any known actual or threatened commencement of any condemnation or
eminent domain proceeding affecting the Mortgaged Property or any portion
thereof and shall deliver to Mortgagee copies of any and all papers served in
connection with such proceedings. Subject to the terms of Section 6(b) below,
Mortgagee is hereby irrevocably appointed as Mortgagor's attorney-in-fact,
coupled with an interest, with exclusive power to collect, receive and retain
any award or payment for said condemnation or eminent domain and to make any
compromise or settlement in connection with such proceeding, subject to the
provisions of this Mortgage and the Loan Agreement. Notwithstanding any taking
by any public or quasi public authority through eminent domain or otherwise
(including but not limited to any transfer made in lieu of or in anticipation of
the exercise of such taking), Mortgagor shall continue to pay the Debt at the
time and in the manner provided for its payment in the Note, in this Mortgage
and the other Loan Documents and the Debt shall not be reduced until any award
or payment therefor shall have been actually received after expenses of
collection and applied by Mortgagee to the discharge of the Debt in accordance
with the terms hereof. In accordance with the terms hereof, Mortgagor shall
cause the award or payment made in any condemnation or eminent domain proceeding
completed after the date hereof, which is payable to Mortgagor, to be paid
directly to Mortgagee. Mortgagee may apply any such award or payment to the
reduction or discharge of the Debt whether or not then due and payable; such
application to be made without any Prepayment Consideration (as defined in the
Loan Agreement), provided that if Mortgagor receives any such award or payment,
Mortgagor pays such award or payment to Mortgagee within one hundred twenty
(120) days following the date of Mortgagor's receipt thereof, except that if an
Event of Default has occurred and is continuing, then such application shall be
subject to the Prepayment Consideration computed in accordance with the Note. If
the Mortgaged Property is sold following an Event of Default, through
foreclosure or otherwise, prior to the receipt by Mortgagee of such award or
payment, Mortgagee shall have the right, whether or not a deficiency judgment on
the Note shall have been sought, recovered or denied, to receive said award or
payment, or a portion thereof sufficient to pay the Debt.
(b) Notwithstanding the foregoing, Mortgagee shall not
exercise the foregoing rights and Mortgagor may prosecute any condemnation
proceeding and settle or compromise and collect any claim involving an award
and/or claim for damages of not more than the Restoration Threshold provided
that: (i) no Event of Default shall have occurred and be continuing, (ii) in
Mortgagee's reasonable good faith judgment, such condemnation or taking does not
and will not materially restrict access to the Mortgaged Property or otherwise
have a Material Adverse Effect, and the Mortgaged Property remaining after such
condemnation or taking is capable of being restored to an economically viable
whole of substantially the same type which existed prior to the condemnation or
taking or in substantial compliance with all applicable laws, (iii) Mortgagor
applies the proceeds of such award to any reconstruction or repair of the
Mortgaged Property necessary as a result of such condemnation or taking, (iv)
Mortgagor promptly commences and diligently prosecutes such reconstruction or
repair to completion in accordance with all applicable laws and (v) the plans
and specifications for such work shall be subject to Mortgagee's reasonable
approval. Subject to the terms hereof, Mortgagor authorizes Mortgagee to apply
such awards, payments, proceeds or damages, after the deduction of Mortgagee's
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reasonable expenses incurred in the collection of such amounts, at Mortgagee's
option, to restoration or repair of the Mortgaged Property or to payment of the
sums secured by this Mortgage, whether or not then due, in the order determined
by Mortgagee, with the balance, if any, to Mortgagor. Application of any such
award or payment to payment of the sums secured by this Mortgage pursuant to the
foregoing sentence shall be made without any Prepayment Consideration, provided
that if Mortgagor receives any such award or payment, Mortgagor pays such award
or payment to Mortgagee within one hundred twenty (120) days following
Mortgagor's receipt thereof, except that if an Event of Default has occurred and
is continuing, then such application shall be subject to the Prepayment
Consideration computed in accordance with the Note. Subject to the provisions of
clauses (i) through (v) of this Section 6(b), Mortgagee shall not exercise
Mortgagee's option to apply such awards or damages to payment of the sums
secured by this Mortgage provided that each of the conditions (as applicable) to
the release of insurance proceeds for restoration or repair of the Mortgaged
Property under Section 5.5 of the Loan Agreement have been satisfied with
respect to such condemnation awards or damages. Any application of proceeds to
principal shall not extend or postpone the due date of the monthly installments
due hereunder, under the Note or under any of the Loan Documents or change the
amount of such installments. Mortgagor agrees to execute such further evidence
of assignment of any awards, proceeds, damages or claims arising in connection
with such condemnation or taking as Mortgagee may reasonably require.
7. LEASES AND RENTS. To the extent the terms of this Section 7
are inconsistent with the terms of the Loan Agreement or the Assignment of
Leases and Rents, the terms of the Loan Agreement and the Assignment of Leases
and Rents shall control. Mortgagor does hereby absolutely and unconditionally
assign to Mortgagee, all Mortgagor's right, title and interest in all current
and future Leases and Rents, it being intended by Mortgagor that this assignment
constitutes a present, absolute assignment and not an assignment for additional
security only. Such assignment to Mortgagee shall not be construed to bind
Mortgagee to the performance of any of the covenants, conditions or provisions
contained in any such Lease or otherwise impose any obligation upon Mortgagee.
Mortgagor agrees to execute and deliver to Mortgagee such additional
instruments, in form and substance reasonably satisfactory to Mortgagee, as may
hereafter be reasonably requested by Mortgagee to further evidence and confirm
such assignment. Notwithstanding the provisions of this Section 7, so long as no
Event of Default shall have occurred and be continuing under the Loan Documents,
Mortgagor shall have the sole but revocable right and license to act as landlord
under the Leases and to enforce the covenants of the Leases, provided, however,
Mortgagor acknowledges it has no right to collect or use Rents except in
accordance with the terms and conditions of Article VII of the Loan Agreement
and the Cash Management Agreement. Upon the occurrence and during the
continuance of an Event of Default, without the need for notice or demand, the
license granted to Mortgagor herein shall automatically be revoked. Mortgagee is
hereby granted and assigned by Mortgagor the right, at its option, upon
revocation of the license granted herein, to enter upon the Mortgaged Property
in person, by agent or by court-appointed receiver to collect the Rents. Subject
to the terms of the Loan Agreement, any Rents collected after the revocation of
the license shall be applied by Mortgagee in accordance with the Loan Agreement.
Mortgagor expressly understands that any and all proposed leases are included in
the definition of "LEASE" or "LEASES" as such terms may be used throughout this
Mortgage, the Note and the other Loan Documents.
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8. OPERATION AND MAINTENANCE OF MORTGAGED PROPERTY. Mortgagor
shall cause the Mortgaged Property to be operated and maintained in accordance
with Section 5.5 of the Loan Agreement.
9. TRANSFER OR ENCUMBRANCE OF THE MORTGAGED PROPERTY.
(a) Mortgagor acknowledges that Mortgagee has examined
and relied on the creditworthiness and experience of Mortgagor in owning and
operating properties such as the Mortgaged Property in agreeing to make the
Loan, and that Mortgagee will continue to rely on Mortgagor's ownership of the
Mortgaged Property as a means of maintaining the value of the Mortgaged Property
as security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has
a valid interest in maintaining the value of the Mortgaged Property so as to
ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee
can recover the Debt by a sale of the Mortgaged Property. Except as expressly
permitted under this Mortgage, the Loan Agreement or under the other Loan
Documents, Mortgagor shall not cause or suffer to occur or exist, directly or
indirectly, voluntarily or involuntarily, by operation of law or otherwise, any
sale, transfer, mortgage, pledge, lien or encumbrance (other than Permitted
Encumbrances) (collectively, "TRANSFERS") of (i) all or any part of the
Mortgaged Property or (ii) any direct or indirect beneficial ownership interest
(in whole or part) in Mortgagor, irrespective of the number of tiers of
ownership, without the prior written consent of Mortgagee.
(b) The occurrence of any Transfer in violation of this
Section 9 shall constitute an Event of Default hereunder, whereupon Mortgagee at
its option, without being required to demonstrate any actual impairment of its
security or any increased risk of default hereunder, may declare the Debt
immediately due and payable.
(c) Mortgagee's consent to one Transfer shall not be
deemed to be a waiver of Mortgagee's right to require such consent to any future
occurrence of same. Any Transfer made in contravention of this paragraph shall
be null and void and of no force and effect.
(d) Mortgagor agrees to bear and shall pay or reimburse
Mortgagee on demand for all reasonable expenses (including, without limitation,
reasonable attorneys' fees and disbursements. title search costs and title
insurance endorsement premiums) incurred by Mortgagee in connection with the
review, approval and documentation of any Transfer which requires the consent of
Mortgagee.
10. CHANGES IN LAWS REGARDING TAXATION. If any law is enacted or
adopted or amended after the date of this Mortgage which deducts the Debt from
the value of the Mortgaged Property for the purpose of taxation or which imposes
a tax, either directly or indirectly, on the Debt or Mortgagee's interest in the
Mortgaged Property, Mortgagor will pay such tax, with interest and penalties
thereon, if any. In the event Mortgagee is advised by counsel chosen by it that
the payment of such tax or interest and penalties by Mortgagor would be unlawful
or taxable to Mortgagee or unenforceable or provide the basis for a defense of
usury, then in any such event, Mortgagee shall have the option, by written
notice of not less than ninety (90) days, to declare the Debt immediately due
and payable and, provided no Event of Default exists, no Prepayment
Consideration shall be due in connection therewith.
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11. NO CREDITS ON ACCOUNT OF THE DEBT. Mortgagor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes or Other Charges assessed against the Mortgaged Property, or
any part thereof, and no deduction shall otherwise be made or claimed from the
assessed value of the Mortgaged Property, or any part thereof, for real estate
tax purposes by reason of this Mortgage or the Debt. In the event such claim,
credit or deduction shall be required by law, Mortgagee shall have the option,
by written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable and, provided no Event of Default exists, no
Prepayment Consideration shall be due in connection therewith.
12. DOCUMENTARY STAMPS. If at any time the United States of
America, any State thereof or any subdivision of any such State shall require
revenue or other stamps to be affixed to the Note or this Mortgage, or impose
any other tax or charge on the same, Mortgagor will pay for the same, with
interest and penalties thereon, if any.
13. PERFORMANCE OF OTHER AGREEMENTS. Mortgagor shall observe and
perform each and every material term to be observed or performed by Mortgagor
pursuant to the terms of any agreement or recorded instrument (including all
instruments comprising the Permitted Encumbrances) affecting or pertaining to
the Mortgaged Property, and will not suffer or permit any default or event of
default (after giving effect to any applicable notice requirements and cure
periods) to exist under any of the foregoing.
14. FURTHER ACTS; SECONDARY MARKET TRANSACTIONS.
(a) Mortgagor will, at the sole cost and expense of
Mortgagor, and without expense to Mortgagee, do, execute, acknowledge and
deliver all and every such further acts, deeds, conveyances, mortgages,
assignments, notices of assignment, Uniform Commercial Code financing statements
or continuation statements, transfers and assurances as Mortgagee shall, from
time to time, reasonably require, for the better assuring, conveying, assigning,
transferring, and confirming unto Mortgagee the property and rights hereby
deeded, mortgaged, given, granted, bargained, sold, alienated, enfeoffed,
conveyed, confirmed, pledged, assigned and hypothecated or intended now or
hereafter so to be, or which Mortgagor may be or may hereafter become bound to
convey or assign to Mortgagee, or for carrying out the intention or facilitating
the performance of the terms of this Mortgage or for filing, registering or
recording this Mortgage or for facilitating the sale of the Loan and the Loan
Documents as described in subparagraph (b) below. Mortgagor, on demand, will
deliver and hereby authorizes Mortgagee to file in the name of Mortgagor, one or
more financing statements, chattel mortgages or other instruments, to evidence
more effectively the security interest of Mortgagee in the Mortgaged Property.
Upon foreclosure or the appointment of a receiver, Mortgagor will, at its sole
cost and expense, and without expense to Mortgagee, cooperate fully and
completely to effect the assignment or transfer of any license, permit,
agreement or any other right necessary or useful to the operation of the
Mortgaged Property. Mortgagor grants to Mortgagee an irrevocable power of
attorney coupled with an interest for the purpose of exercising and perfecting
any and all rights and remedies available to Mortgagee at law and in equity,
including, without limitation, such rights and remedies available to Mortgagee
pursuant to this paragraph.
(b) Subject to the terms and conditions set forth in the
Loan Agreement, Mortgagee shall have the right to engage in one or more
Secondary Market Transactions (as
9
defined in the Loan Agreement) and, in connection therewith, Mortgagee may
transfer its obligations under this Mortgage, the Loan Agreement and under the
other Loan Documents (or may transfer the portion thereof corresponding to the
transferred portion of the Debt), and thereafter Mortgagee shall be relieved of
any obligations hereunder and under the other Loan Documents arising after the
date of said transfer with respect to the transferred interest.
15. RECORDING OF MORTGAGE, ETC. Mortgagor forthwith upon the
execution and delivery of this Mortgage and thereafter, from time to time, will
cause this Mortgage, and any security instrument creating a lien or security
interest or evidencing the lien hereof upon the Mortgaged Property and each
instrument of further assurance to be filed, registered or recorded in such
manner and in such places as may be required by any present or future law in
order to publish notice of and fully to protect the lien or security interest
hereof upon, and the interest of Mortgagee in, the Mortgaged Property. Mortgagor
will pay all filing, registration or recording fees, and all expenses incident
to the preparation, execution and acknowledgment of this Mortgage, any deed of
trust supplemental hereto, any security instrument with respect to the Mortgaged
Property and any instrument of further assurance, and all federal, state, county
and municipal, taxes, duties, imposts, assessments and charges arising out of or
in connection with the execution and delivery of this Mortgage, any deed of
trust supplemental hereto, any security instrument with respect to the Mortgaged
Property or any instrument of further assurance, except where prohibited by law
so to do. Mortgagor shall hold harmless and indemnify Mortgagee, its successors
and assigns, against any liability incurred by reason of the imposition of any
tax on the making and recording of this Mortgage.
16. REPORTING REQUIREMENTS. Mortgagor agrees to give prompt notice
to Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the death,
insolvency or bankruptcy filing of any Guarantor.
17. EVENTS OF DEFAULT. The Debt shall become immediately due and
payable at the option of Mortgagee upon the happening of any Event of Default.
The term "EVENT OF DEFAULT" as used in this Mortgage shall have the meaning
given such term in the Loan Agreement.
18. RIGHT TO CURE DEFAULTS. Upon the occurrence and during the
continuance of any Event of Default, Mortgagee may, but without any obligation
to do so and without notice to or demand on Mortgagor and without releasing
Mortgagor from any obligation hereunder, make or do the same in such manner and
to such extent as Mortgagee may deem necessary to protect the security hereof.
Mortgagee is authorized to enter upon the Mortgaged Property for such purposes
or appear in, defend, or bring any action or proceeding to protect its interest
in the Mortgaged Property or to foreclose this Mortgage or collect the Debt, and
the cost and expense thereof (including reasonable attorneys' fees and
disbursements to the extent permitted by law), with interest at the Default Rate
(as defined in the Loan Agreement) for the period after notice from Mortgagee
that such cost or expense was incurred to the date of payment to Mortgagee,
shall constitute a portion of the Debt, shall be secured by this Mortgage and
the other Loan Documents and shall be due and payable to Mortgagee upon demand.
10
19. REMEDIES.
(a) Upon the occurrence and during the continuance of any
Event of Default, Mortgagee may take such action, without notice or demand
(except to the extent required by applicable law), as it deems advisable to
protect and enforce its rights against Mortgagor and in and to the Mortgaged
Property by Mortgagee itself or otherwise, including, without limitation, the
following actions, each of which may be pursued concurrently or otherwise, at
such time and in such order as Mortgagee may determine, in its sole discretion,
without impairing or otherwise affecting the other rights and remedies of
Mortgagee:
(i) declare the entire Debt to be immediately
due and payable;
(ii) institute a proceeding or proceedings,
judicial or nonjudicial, by advertisement or otherwise, for the complete
foreclosure of this Mortgage in which case the Mortgaged Property or any
interest therein may be sold for cash or upon credit in one or more parcels or
in several interests or portions and in any order or manner;
(iii) with or without entry, to the extent
permitted and pursuant to the procedures provided by applicable law, institute
proceedings for the partial foreclosure of this Mortgage for the portion of the
Debt then due and payable, subject to the continuing lien of this Mortgage for
the balance of the Debt not then due;
(iv) sell for cash or upon credit the Mortgaged
Property or any part thereof and all estate, claim, demand, right, title and
interest of Mortgagor therein and rights of redemption thereof, pursuant to the
power of sale contained herein or otherwise, at one or more sales, as an
entirety or in parcels, at such time and place, upon such terms and after such
notice thereof as may be required or permitted by law;
(v) institute an action, suit or proceeding in
equity for the specific performance of any covenant, condition or agreement
contained herein, or in any of the other Loan Documents;
(vi) recover judgment on the Note either before,
during or after any proceedings for the enforcement of this Mortgage;
(vii) apply for the appointment of a trustee,
receiver, liquidator or conservator of the Mortgaged Property, to the extent
permitted by applicable law, without notice and without regard for the adequacy
of the security for the Debt and without regard for the solvency of the
Mortgagor, any Guarantor or of any person, firm or other entity liable for the
payment of the Debt;
(viii) enforce Mortgagee's interest in the Leases
and Rents and enter into or upon the Mortgaged Property, either personally or by
its agents, nominees or attorneys and dispossess Mortgagor and its agents and
servants therefrom, and thereupon Mortgagee may (A) use, operate, manage,
control, insure, maintain, repair, restore and otherwise deal with all and every
part of the Mortgaged Property and conduct the business thereat; (B) complete
any construction on the Mortgaged Property in such manner and form as Mortgagee
deems advisable; (C) make alterations, additions, renewals, replacements and
improvements to or on the
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Mortgaged Property; (D) exercise all rights and powers of Mortgagor with respect
to the Mortgaged Property, whether in the name of Mortgagor or otherwise,
including, without limitation, the right to make, cancel, enforce or modify
Leases, obtain and evict tenants, and demand, sue for, collect and receive all
Rents; and (E) apply the receipts from the Mortgaged Property to the payment of
Debt, after deducting therefrom all expenses (including reasonable attorneys'
fees and disbursements) incurred in connection with the aforesaid operations and
all amounts necessary to pay the taxes, assessments insurance and other charges
in connection with the Mortgaged Property, as well as just and reasonable
compensation for the services of Mortgagee, its counsel, agents and employees;
or
(ix) pursue such other rights and remedies as may
be available at law or in equity or under the Uniform Commercial Code.
In the event of a sale, by foreclosure or otherwise, of less than all of the
Mortgaged Property, this Mortgage shall continue as a lien on the remaining
portion of the Mortgaged Property.
(b) The proceeds of any sale made under or by virtue of
this paragraph, together with any other sums which then may be held by Mortgagee
under this Mortgage, whether under the provisions of this paragraph or
otherwise, shall be applied by Mortgagee to the payment of the Debt in such
priority and proportion as Mortgagee in its sole discretion shall deem proper.
(c) Mortgagee may adjourn from time to time any sale by
it to be made under or by virtue of this Mortgage by announcement at the time
and place appointed for such sale or for such adjourned sale or sales; and,
except as otherwise provided by any applicable provision of law, Mortgagee,
without further notice or publication, may make such sale at the time and place
to which the same shall be so adjourned.
(d) Upon the completion of any sale or sales pursuant
hereto, Mortgagee, or an officer of any court empowered to do so, shall execute
and deliver to the accepted purchaser or purchasers a good and sufficient
instrument, or good and sufficient instruments, conveying, assigning and
transferring all estate, right, title and interest in and to the property and
rights sold. Any sale or sales made under or by virtue of this paragraph,
whether made under the power of sale herein granted or under or by virtue of
judicial proceedings or of a judgment or decree of foreclosure and sale, shall,
to the maximum extent permitted by applicable law, operate to divest all the
estate, right, title, interest, claim and demand whatsoever, whether at law or
in equity, of Mortgagor in and to the properties and rights so sold, and shall
be a perpetual bar both at law and in equity against Mortgagor and against any
and all persons claiming or who may claim the same, or any part thereof from,
through or under Mortgagor.
(e) Upon any sale made under or by virtue of this
paragraph, whether made under the power of sale herein granted or under or by
virtue of judicial proceedings or of a judgment or decree of foreclosure and
sale, Mortgagee may bid for and acquire the Mortgaged Property or any part
thereof and in lieu of paying cash therefor may make settlement for the purchase
price by crediting upon the Debt the net sales price after deducting therefrom
the expenses of the sale and costs of the action and any other sums which
Mortgagee is authorized to deduct under this Mortgage.
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(f) No recovery of any judgment by Mortgagee and no levy
of an execution under any judgment upon the Mortgaged Property or upon any other
property of Mortgagor shall affect in any manner or to any extent the lien of
this Mortgage upon the Mortgaged Property or any part thereof, or any liens,
rights, powers or remedies of Mortgagee hereunder, but such liens, rights,
powers and remedies of Mortgagee shall continue unimpaired as before.
(g) Mortgagee may terminate or rescind any proceeding or
other action brought in connection with its exercise of the remedies provided in
this paragraph at any time before the conclusion thereof, as determined in
Mortgagee's sole discretion and without prejudice to Mortgagee.
(h) Mortgagee may resort to any remedies and the security
given by the Note, this Mortgage or the other Loan Documents in whole or in
part, and in such portions and in such order as determined in Mortgagee's sole
discretion. No such action shall in any way be considered a waiver of any
rights, benefits or remedies evidenced or provided by the Note, this Mortgage or
any of the other Loan Documents. The failure of Mortgagee to exercise any right,
remedy or option provided in the Note, this Mortgage or any of the other Loan
Documents shall not be deemed a waiver of such right, remedy or option or of any
covenant or obligation secured by the Note, this Mortgage or the other Loan
Documents. No acceptance by Mortgagee of any payment after the occurrence of any
Event of Default and no payment by Mortgagee of any obligation for which
Mortgagor is liable hereunder shall be deemed to waive or cure any Event of
Default with respect to Mortgagor, or Mortgagor's liability to pay such
obligation. No sale of all or any portion of the Mortgaged Property, no
forbearance on the part of Mortgagee, and no extension of time for the payment
of the whole or any portion of the Debt or any other indulgence given by
Mortgagee to Mortgagor, shall operate to release or in any manner affect the
interest of Mortgagee in the remaining Mortgaged Property or the liability of
Mortgagor to pay the Debt. No waiver by Mortgagee shall be effective unless it
is in writing and then only to the extent specifically stated. All reasonable
costs and expenses of Mortgagee in exercising its rights and remedies under this
paragraph (including reasonable attorneys' fees and disbursements to the extent
permitted by law), shall be paid by Mortgagor immediately upon notice from
Mortgagee, with interest at the Default Rate for the period after notice from
Mortgagee and such costs and expenses shall constitute a portion of the Debt and
shall be secured by this Mortgage.
(i) The interests and rights of Mortgagee under the Note,
this Mortgage or in any of the other Loan Documents shall not be impaired by any
indulgence, including (i) any renewal, extension or modification which Mortgagee
may grant with respect to any of the Debt, (ii) any surrender, compromise,
release, renewal, extension, exchange or substitution which Mortgagee may grant
with respect to the Mortgaged Property or any portion thereof; or (iii) any
release or indulgence granted to any maker, endorser, Guarantor or surety of any
of the Debt.
20. RIGHT OF ENTRY. In addition to any other rights or remedies
granted under this Mortgage, Mortgagee and its agents shall have the right to
enter and inspect the Mortgaged Property at any reasonable time during the Term.
The reasonable cost of such inspections or audits shall be borne by Mortgagor
should Mortgagee determine that an Event of Default exists, including the cost
of all follow up or additional investigations or inquiries deemed reasonably
necessary by Mortgagee. The reasonable cost of such inspections, if not paid for
by Mortgagor within ten (10) Business Days of demand therefor, may be added to
the principal balance of the
13
sums due under the Note and this Mortgage and shall bear interest thereafter
until paid at the Default Rate.
21. SECURITY AGREEMENT. This Mortgage is both a real property
mortgage and a "security agreement" within the meaning of the Uniform Commercial
Code. The Mortgaged Property includes both real and personal property and all
other rights and interests, whether tangible or intangible in nature, of
Mortgagor in the Mortgaged Property. Mortgagor by executing and delivering this
Mortgage has granted and hereby grants to Mortgagee, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this paragraph the "COLLATERAL"). Mortgagor hereby agrees with Mortgagee to
execute and deliver to Mortgagee, in form and substance reasonably satisfactory
to Mortgagee, such financing statements and such further assurances as Mortgagee
may from time to time, reasonably consider necessary to create, perfect, and
preserve Mortgagee's security interest herein granted. This Mortgage shall also
constitute a "fixture filing" for the purposes of the Uniform Commercial Code as
to all or any items of the Collateral that are or are to become fixtures under
the Uniform Commercial Code. Information concerning the security interest herein
granted may be obtained from the parties at the addresses of the parties set
forth in the first paragraph of this Mortgage. If an Event of Default shall
occur, Mortgagee, in addition to any other rights and remedies which it may
have, shall have and may exercise immediately and without demand, any and all
rights and remedies granted to a secured party upon default under the Uniform
Commercial Code, including, without limiting the generality of the foregoing,
the right to take possession of the Collateral or any part thereof, and to take
such other measures as Mortgagee may deem necessary for the care, protection and
preservation of the Collateral. Upon request or demand of Mortgagee after the
occurrence and during the continuance of an Event of Default, Mortgagor shall at
its expense assemble the Collateral and make it available to Mortgagee at a
convenient place reasonably acceptable to Mortgagee. Mortgagor shall pay to
Mortgagee within ten (10) Business Days of demand therefor any and all expenses,
including reasonable attorneys' fees and disbursements, incurred or paid by
Mortgagee in protecting the interest in the Collateral and in enforcing the
rights hereunder with respect to the Collateral. Any notice of sale, disposition
or other intended action by Mortgagee with respect to the Collateral sent to
Mortgagor in accordance with the provisions hereof at least ten (10) Business
Days prior to such action, shall constitute commercially reasonable notice to
Mortgagor. The proceeds of any disposition of the Collateral, or any part
thereof, may be applied by Mortgagee to the payment of the Debt in such priority
and proportions as Mortgagee in its sole discretion shall deem proper. In the
event of any change in name, identity or structure of any Mortgagor, such
Mortgagor shall notify Mortgagee thereof and promptly after Mortgagee's request
shall execute, file and record such Uniform Commercial Code forms as are
necessary to maintain the priority of Mortgagee's lien upon and security
interest in the Collateral, and shall pay all reasonable expenses and fees in
connection with the filing and recording thereof. If Mortgagee shall require the
filing or recording of additional Uniform Commercial Code forms or continuation
statements, Mortgagor shall, promptly after request, execute, file and record
such Uniform Commercial Code forms or continuation statements as Mortgagee shall
deem reasonably necessary, and shall pay all reasonable expenses and fees in
connection with the filing and recording thereof, it being understood and
agreed, however, that no such additional documents shall increase Mortgagor's
obligations or decrease Mortgagor's rights under the Note, this Mortgage and any
of the other Loan Documents.
14
Mortgagor hereby irrevocably appoints Mortgagee as its attorney-in-fact, coupled
with an interest, to file with the appropriate public office on its behalf any
financing or other statements signed only by Mortgagee, as secured party, in
connection with the Collateral covered by this Mortgage.
22. ACTIONS AND PROCEEDINGS. Mortgagee has the right to appear in
and defend any action or proceeding brought with respect to the Mortgaged
Property and to bring any action or proceeding, in the name and on behalf of
Mortgagor, which Mortgagee, in its reasonable discretion, decides should be
brought to protect their interest in the Mortgaged Property. Mortgagee shall, at
its option, be subrogated to the lien of any deed of trust or other security
instrument discharged in whole or in part by the Debt, and any such subrogation
rights shall constitute additional security for the payment of the Debt.
23. RECOVERY OF SUMS REQUIRED TO BE PAID. Mortgagee shall have the
right from time to time to take action to recover any sum or sums which
constitute a part of the Debt as the same become due, without regard to whether
or not the balance of the Debt shall be due, and without prejudice to the right
of Mortgagee thereafter to bring an action of foreclosure, or any other action,
for a default or defaults by Mortgagor existing at the time such earlier action
was commenced.
24. MARSHALLING AND OTHER MATTERS. Mortgagor hereby waives, to the
extent permitted by law, the benefit of all appraisement, valuation, stay,
extension, reinstatement and redemption laws now or hereafter in force and all
rights of marshalling in the event of any sale hereunder of the Mortgaged
Property or any part thereof or any interest therein. Further, Mortgagor hereby
expressly waives any and all rights of redemption from sale under any order or
decree of foreclosure of this Mortgage on behalf of Mortgagor, and on behalf of
each and every person acquiring any interest in or title to the Mortgaged
Property subsequent to the date of this Mortgage and on behalf of all persons to
the extent permitted by applicable law. Mortgagee shall not be under any
obligation to marshal any assets in favor of any Person or in payment of any of
the Debt.
25. HANDICAPPED ACCESS.
(a) Mortgagor agrees that the Mortgaged Property shall at
all times comply, with the requirements of the Americans with Disabilities Act
of 1990, the Fair Housing Amendments Act of 1988, if applicable, all state and
local laws and ordinances related to handicapped access and all rules,
regulations, and orders issued pursuant thereto including, without limitation,
the Americans with Disabilities Act Accessibility Guidelines for Buildings and
Facilities (collectively "ACCESS LAWS").
(b) Without limiting the foregoing, Mortgagor shall cause
any alterations to the Mortgaged Property to comply with all applicable Access
Laws. The foregoing shall apply to tenant improvements constructed by Mortgagor
or by any of its tenants. Mortgagee may condition any such approval upon receipt
of a certificate of Access Law compliance from an architect, engineer, or other
person acceptable to Mortgagee.
15
(c) Mortgagor agrees to give prompt notice to Mortgagee
of the receipt by Mortgagor of any material complaints related to violation of
any Access Laws and of the commencement of any proceedings or investigations
which relate to compliance with applicable Access Laws.
26. INDEMNIFICATION. In addition to any other indemnifications
provided herein or in the other Loan Documents, Mortgagor shall protect, defend,
indemnify and save harmless Mortgagee and its successors and assigns (including,
without limitation, the trustee and/or the trust under any trust agreement
executed in connection with any Secondary Market Transaction backed in whole or
in part by the Loan and any other person which may hereafter be the holder of
the Note or any interest therein), and the officers, directors, stockholders,
partners, members, employees, agents, and Affiliates of Mortgagee and such
successors and assigns (each an "INDEMNIFIED PARTY") from and against all
liabilities, obligations, claims, demands, damages, penalties, causes of action,
losses, fines, costs and expenses (including, without limitation, reasonable
attorneys' fees and disbursements), imposed upon or incurred by or asserted
against any Indemnified Party by reason of: (a) ownership of this Mortgage, the
Mortgaged Property or any interest therein or receipt of any Rents; (b) any
accident, injury to or death of persons or loss of or damage to property
occurring in, on or about the Mortgaged Property or any part thereof or on the
adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets
or ways; (c) any use, nonuse or condition in, on or about the Mortgaged Property
or any part thereof or on adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, streets or ways; (d) any failure on the part of
Mortgagor to perform or comply with any of the terms of this Mortgage; (e)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Mortgaged Property or any part thereof; (f) any
failure of the Premises or the Improvements to comply with any applicable law,
statute, code, ordinance, rule or regulation including, without limitation, any
Access Laws; (g) any default by Mortgagor under this Mortgage, the Loan
Agreement or any of the other Loan Documents; (h) any actions taken by any
Indemnified Party in the enforcement of this Mortgage and other Loan Documents
in accordance with their respective terms; (i) any representation or warranty
made in the Note, this Mortgage or any of the other Loan Documents being false
or misleading in any material respect as of the date such representation or
warranty was made; (j) any claim by brokers, finders or similar persons claiming
to be entitled to a commission in connection with any Lease or other transaction
involving the Mortgaged Property or any part thereof under any legal requirement
or any liability asserted against Mortgagee with respect thereto; and (k) the
claims of any lessee of any or any portion of the Mortgaged Property or any
person acting through or under any lessee or otherwise arising under or as a
consequence of any Lease (collectively, the "INDEMNIFIED LIABILITIES"), provided
that Mortgagor shall not have an obligation to an Indemnified Party hereunder
with respect to the Indemnified Liabilities arising from the fraud, gross
negligence or willful misconduct of such Indemnified Party as determined by a
court of competent jurisdiction. Any amounts payable to Mortgagee by reason of
the application of this paragraph shall be secured by this Mortgage and shall
become immediately due and payable and shall bear interest at the Default Rate
from the date loss or damage is sustained by Mortgagee until paid. The
obligations and liabilities of Mortgagor under this paragraph shall survive the
termination, satisfaction, or assignment of this Mortgage and the exercise by
Mortgagee of any of its rights or remedies hereunder, including, but not limited
to, the acquisition of the Mortgaged Property by foreclosure or a conveyance in
lieu of foreclosure.
16
27. NOTICES. Any notice, demand, statement, request or consent
made hereunder shall be in writing, addressed to the intended recipient at its
address set forth in the Loan Agreement, and shall be made and deemed given in
accordance with the terms of the Loan Agreement.
28. AUTHORITY. (a) Mortgagor (and the undersigned representative
of Mortgagor, if any) represent and warrant that it (or they, as the case may
be) has full power, authority and right to execute, deliver and perform its
obligations pursuant to this Mortgage, and to deed, mortgage, give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and
assign the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Mortgage on Mortgagor's part to be performed;
and (b) Mortgagor represents and warrants that Mortgagor is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended and the related Treasury Department regulations, including
temporary regulations.
29. NON-WAIVER. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Mortgage. Any consent or approval by Mortgagee in any single instance shall
not be deemed or construed to be Mortgagee's consent or approval in any like
matter arising at a subsequent date. Mortgagor shall not be relieved of
Mortgagor's obligations hereunder by reason of (a) the failure of Mortgagee to
comply with any request of Mortgagor or any Guarantor to take any action to
foreclose this Mortgage or otherwise enforce any of the provisions hereof or of
the Note, or the other Loan Documents, (b) the release, regardless of
consideration, of the whole or any part of the Mortgaged Property, or of any
person liable for the Debt or any portion thereof, or (c) any agreement or
stipulation by Mortgagee extending the time of payment or otherwise modifying or
supplementing the terms of the Note, this Mortgage or any of the other Loan
Documents. Mortgagee may resort for the payment of the Debt to any other
security held by Mortgagee in such order and manner as Mortgagee, in its sole
discretion, may elect. Mortgagee may take action to recover the Debt, or any
portion thereof, or to enforce any covenant hereof without prejudice to the
right of Mortgagee thereafter to foreclosure this Mortgage. The rights and
remedies of Mortgagee under this Mortgage shall be separate, distinct and
cumulative and none shall be given effect to the exclusion of the others. No act
of Mortgagee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Mortgagee shall not be
limited exclusively to the rights and remedies herein stated but shall be
entitled to every right and remedy now or hereafter afforded at law or in
equity.
30. NO ORAL CHANGE. This Mortgage, and any provisions hereof, may
not be modified, amended, waived, extended, changed, discharged or terminated
orally or by any act or failure to act on the part of Mortgagor or Mortgagee,
but only by an agreement in writing signed by the party against whom enforcement
of any modification, amendment, waiver, extension, change, discharge or
termination is sought.
31. LIABILITY. Subject to the provisions hereof requiring
Mortgagee's consent to any transfer of the Mortgaged Property, this Mortgage
shall be binding upon and inure to the benefit of Mortgagor and Mortgagee and
their respective successors and assigns forever.
17
32. INAPPLICABLE PROVISIONS. If any term, covenant or condition of
the Note or this Mortgage is held to be invalid, illegal or unenforceable in any
respect, the Note and this Mortgage shall be construed without such provision.
33. HEADINGS, ETC. The headings and captions of various paragraphs
of this Mortgage are for convenience of reference only and are not to be
construed as defining or limiting, in any way, the scope or intent of the
provisions hereof.
34. DUPLICATE ORIGINALS. This Mortgage may be executed in any
number of duplicate originals and each such duplicate original shall be deemed
to be an original.
35. DEFINITIONS. Unless the context clearly indicates a contrary
intent or unless otherwise specifically provided herein, words used in this
Mortgage may be used interchangeably in singular or plural form and the word
"MORTGAGOR" shall mean "each Mortgagor and any subsequent owner or owners of the
Mortgaged Property or any part thereof or any interest therein," the word
"MORTGAGEE" shall mean "Mortgagee and any subsequent holder of the Note," the
word "NOTE" shall mean "the Note and any other evidence of indebtedness secured
by this Mortgage," the word "PERSON" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, and the words "MORTGAGED PROPERTY" shall
include any portion of the Mortgaged Property and any interest therein and the
words "ATTORNEYS' FEES" shall include any and all reasonable attorneys' fees,
paralegal and law clerk fees, including, without limitation, fees at the
pre-trial, trial and appellate levels incurred or paid by Mortgagee in
protecting its interest in the Mortgaged Property and Collateral and enforcing
its rights hereunder. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
36. HOMESTEAD. Mortgagor hereby waives and renounces all homestead
and exemption rights provided by the Constitution and the laws of the United
States and of any state, in and to the Mortgaged Property as against the
collection of the Debt, or any part hereof.
37. ASSIGNMENTS. Mortgagee shall have the right to assign or
transfer its rights under this Mortgage without limitation. Any assignee or
transferee shall be entitled to all the benefits afforded Mortgagee under this
Mortgage.
38. WAIVER OF JURY TRIAL. EACH OF MORTGAGOR AND MORTGAGEE HEREBY
AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND
WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL
NOW OR HEREAFTER EXIST WITH REGARD TO THE NOTE, THIS MORTGAGE, OR THE OTHER LOAN
DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION
THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND
VOLUNTARILY BY MORTGAGOR AND MORTGAGEE, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. EACH OF MORTGAGOR AND MORTGAGEE IS HEREBY
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AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.
39. INTENTIONALLY OMITTED.
40. INTENTIONALLY OMITTED.
41. LIMITATIONS ON RECOURSE PROVISIONS. The obligations of
Mortgagor hereunder are subject to limitations on recourse as provided in
Article XII of the Loan Agreement.
42. MISCELLANEOUS.
(a) Intentionally Omitted.
(b) The Loan Documents contain the entire agreement
between Mortgagor and Mortgagee relating to or connected with the Loan. Any
other agreements relating to or connected with the Loan not expressly set forth
in the Loan Documents are null and void and superseded in their entirety by the
provisions of the Loan Documents.
(c) Mortgagor represents and warrants to Mortgagee that,
to Mortgagor's knowledge, there has not been committed by Mortgagor or any other
person in occupancy of or involved with the operation or use of the Mortgaged
Property any act or omission affording the federal government or any state or
local government the right of forfeiture as against the Mortgaged Property or
any part thereof or any monies paid in performance of Mortgagor's obligations
under the Note or under any of the other Loan Documents. Mortgagor hereby
covenants and agrees not to commit, intentionally permit or suffer to exist any
act, omission or circumstance affording such right of forfeiture. In furtherance
thereof, Mortgagor hereby indemnifies Mortgagee and agrees to defend and hold
Mortgagee harmless from and against any loss, damage or injury by reason of the
breach of the covenants and agreements or the representations and warranties set
forth in this paragraph. Without limiting the generality of the foregoing, the
filing of formal charges or the commencement of proceedings against Mortgagor or
all or any part of the Mortgaged Property under any federal or state law for
which forfeiture of the Mortgaged Property or any part thereof or of any monies
paid in performance of Mortgagor's obligations under the Loan Documents is a
potential result, shall, at the election of Mortgagee, constitute an Event of
Default hereunder without notice or opportunity to cure.
(d) Mortgagor acknowledges that, with respect to the
Loan, Mortgagor is relying solely on its own judgement and advisors in entering
into the Loan without relying in any manner on any statements, representations
or recommendations of Mortgagee or any parent, subsidiary or affiliate of
Mortgagee. Mortgagor acknowledges that Mortgagee engages in the business of real
estate financings and other real estate transactions and investments which may
be viewed as adverse to or competitive with the business of the Mortgagor or its
affiliates. Mortgagor acknowledges that it is represented by competent counsel
and has consulted counsel before executing the Loan Documents.
(e) Intentionally Omitted.
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(f) This Mortgage and the obligations arising hereunder
shall be governed by and construed in accordance with the laws of the State of
New York and any applicable laws of the United States of America, except that at
all times the provisions for the creation, perfection and enforcement of the
liens and the security interests created pursuant to this Mortgage shall be
governed by the laws of the State where the Premises are located.
43. PROTECTIVE ADVANCES. This Mortgage secures "PROTECTIVE
ADVANCES," as hereinafter defined. All amounts advanced by Mortgagee for
property taxes, insurance costs, or any other costs incurred by Mortgagee to
protect and preserve the lien of this Mortgage and incurred after the execution
of this Mortgage pursuant to any instrument referring to this Mortgage shall be
defined as a "PROTECTIVE ADVANCE". This Paragraph shall serve as notice to any
subsequent holder of a lien, encumbrance, security title or other claim in and
to the Mortgaged Property that Mortgagee claims the priority of the lien of this
Mortgage for all such Protective Advances, as well as for all other obligations
secured hereby. This Paragraph shall also be notice that Mortgagee reserves the
right, upon agreement thereto with Mortgagor, to modify, extend, consolidate,
and renew the Debt, or any portions thereof, and the rate of interest charged
thereon, without affecting the priority of the lien created by this Mortgage.
44. CROSS-COLLATERALIZATION. The mortgages and deeds of trust
(other than this Mortgage) listed on EXHIBIT B attached hereto and made a part
hereof, as any of same may be amended, modified or supplemented from time to
time, are collectively referred to for purposes of this Section 44 as the "OTHER
MORTGAGES." This Mortgage, as it may be amended, modified or supplemented from
time to time, together with the Other Mortgages, are collectively referred to
for purposes of this Section 44 as the "MORTGAGES." The Debt is secured by,
among other things, the Mortgages, which encumber real and personal property in
the States set forth on EXHIBIT B, as more particularly described in each of the
Mortgages. The Debt may be accelerated as provided in the Loan Documents. Upon
the occurrence and during the continuance of an Event of Default, Mortgagee may,
at its option, accelerate the Debt and foreclose upon any one or more of the
Mortgages or resort to any one or more of its other rights and remedies under
any or all of the Mortgages and the other Loan Documents. Except as otherwise
provided herein, all of the real and personal property conveyed and/or mortgaged
by the Mortgages are security for the Debt without allocation of any one or more
of the parcels or portions thereof to any portion of the Debt. Mortgagee may
allocate the proceeds that it receives upon the exercise of its rights and
remedies, including foreclosure, to payment of the Debt as Mortgagee in its sole
discretion may determine to be advisable pursuant to the terms of the Loan
Documents. Mortgagee may proceed, at the same or different times, to foreclose
the Mortgages or any one or more of them, by any proceedings appropriate in the
state where any of the real property encumbered by one or more of the Mortgages
lies, including private sale if permitted, and no event of enforcement taking
place in any state, including without limiting the generality of the foregoing,
any pending foreclosure, judgment or decree of foreclosure, foreclosure sale,
rents received, possession taken, deficiency judgment or decrees, or judgment
taken on the Debt, shall in any way stay, preclude or bar enforcement of the
Mortgages or any of them in any other state, and Mortgagee may pursue any or all
of its remedies to the maximum extent permitted by applicable law pursuant to
the terms of the Loan Documents until all of the Debt and all other obligations
now or hereafter secured by any or all of the Mortgages have been paid or
discharged in full. Additionally, and without limitation of any other provision
of this Mortgage, if this Mortgage is foreclosed and the Mortgaged Property is
sold (or any part thereof) pursuant to
20
foreclosure or other proceedings, and if the proceeds of such sale (after
application of such proceeds as provided in this Mortgage and the other Loan
Documents) are not sufficient to pay the total sum of the Debt then outstanding
and any other amounts provided for by applicable law (the "BALANCE OWED"), then,
to the extent permitted by law, the Debt shall not be satisfied to the extent of
the Balance Owed, but such Debt shall continue in existence and continue to be
evidenced and secured by the Loan Documents and the Mortgages. Subject to the
requirements of applicable law, if Mortgagee shall acquire the Mortgaged
Property as a result of any foreclosure or other sale (whether by bidding all or
any portion of the Debt or otherwise), the proceeds of such sale, to the extent
permitted by law, shall not be deemed to include (and Mortgagor shall not be
entitled to any benefit or credit on account of) proceeds of any subsequent sale
of the Mortgaged Property by Mortgagee. Without limitation of any other
provision hereof, Mortgagor further agrees that if any of the Other Mortgages
are foreclosed and sale is made of any of the property subject to any Other
Mortgages, and if the proceeds of such sale (after application of such proceeds
as provided for herein and after deducting all accrued and general and special
taxes and assessments) are not sufficient to pay the Debt and any other amounts
provided for by applicable law, then, to the extent permitted by law, the Debt
then outstanding shall not be satisfied to the extent of the Balance Owed, but
such Debt shall continue in existence and continue to be evidenced and secured
by the Loan Documents and the Mortgages existing immediately prior to any such
foreclosure, except such Mortgages foreclosed upon. No release of personal
liability, if any, of any Person whatsoever and no release of any portion of the
property now or hereafter subject to the lien of any of the Mortgages shall have
any effect whatsoever by way of impairment or disturbance of the lien or
priority of any other of the Mortgages or the unreleased properties encumbered
by any of the Mortgages, to the extent permitted by law. Any foreclosure or
other appropriate remedy brought in any of the states aforesaid may be brought
and prosecuted as to any part of the security, wherever located, without regard
to the fact that foreclosure proceedings or other remedies have or have not been
instituted elsewhere on any other property subject to the lien of the Mortgages.
Neither Mortgagor nor any Person claiming by, through or under Mortgagor shall
have any right to marshal the assets, all such rights being hereby expressly
waived as to Mortgagor and all Persons claiming by, through or under Mortgagor,
Debt, without limitation, junior lienors. Each of Mortgagor and all endorsers,
guarantors and sureties of the Debt, hereby waives any and all rights arising
because of payment or performance by Mortgagor of any Debt (a) against any
Person by way of subrogation of the rights of Mortgagee or (b) against any
Person obligated to pay or perform the Debt or other obligations secured by the
Other Mortgages by way of contribution, reimbursement or otherwise.
Section 45. CERTAIN MATTERS RELATING TO MORTGAGED PROPERTY
LOCATED IN [STATE PROPERTY IS LOCATED].
With respect to the Mortgaged Property which is located in the
State of [STATE PROPERTY IS LOCATED], notwithstanding anything contained herein
to the contrary:
[STATE SPECIFIC PROVISIONS TO BE INSERTED]
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IN WITNESS WHEREOF, Mortgagor has executed this instrument the day and
year first above written.
MORTGAGOR:
[PROPERTY OWNER NAME]
By:_____________________________________
Name:
Title:
ACKNOWLEDGMENT
[INSERT STATE SPECIFIC ACKNOWLEDGMENT]
EXHIBIT A
LEGAL DESCRIPTION
A-1
EXHIBIT B
[SCHEDULE OF ALL OTHER DEEDS OF TRUST, DEEDS TO SECURE DEBT AND
MORTGAGES IN LOAN POOL]
B-1