Conveyances and Security Interests. In order to secure the prompt payment and performance of the Obligations, Borrower: (a) hereby irrevocably and unconditionally grants, mortgages, conveys, transfers and assigns to Lender, under and subject to the terms and conditions set forth herein, for the benefit of Lender, with power of sale and right of entry and possession (to the extent permitted by Law), the leasehold estate created by the Lease and all other tenancy, term, right, title and interest of Borrower, of whatever character (whether vested or contingent), in and to (1) the real property described on Exhibit A and Exhibit B attached hereto together with any and all rights, privileges and benefits, of whatever character derived by Borrower, or to which Borrower may be entitled, under or by virtue of the Lease, including, without limitation: (i) any and all rights to exercise options (including, without limitation, options to purchase, renew, extend, terminate, reject or assume), give consents and receive payments, reimbursements and refunds; (ii) any and all rights to modify, change, supplement, alter, amend, terminate, cancel, sever or surrender the Lease and any and all rights to release or discharge the Landlord of or from the obligations, covenants, conditions and agreements by the Landlord to be kept, observed or performed thereunder; (iii) any and all claims and rights to the payment of damages that may presently exist or hereafter arise under or in connection with the Lease or the rights of Borrower thereunder, including, without limitation, any such claim or right that may arise as a result of the rejection or disaffirmance of the Lease by the Landlord, or by any trustee of the Landlord, pursuant to the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., as amended (the “Code”); (iv) any and all rights, privileges and benefits, of whatever character, to which Borrower may hereafter be entitled pursuant to Section 365 of the Code, including, without limitation, all of Borrower’s rights to remain in possession after rejection or disaffirmance of the Lease by the Landlord or by any trustee of the Landlord (collectively, the “Land”) and (2) all buildings, structures and other improvements now or hereafter existing, erected or placed on the Land, together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land (collectively, excluding the Excluded Improvements (as defined in the Lease), the “Improvements”), together with (i) all estates, title interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses, additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances, easements, rights-of-way, rights of ingress or egress, parking rights, timber, crops, mineral interests and other rights, now or hereafter owned by Borrower and belonging or appertaining to the Land or Improvements; (ii) all Claims whatsoever of Borrower with respect to the Land or Improvements, either in law or in equity, in possession or in expectancy; (iii) all estate, right, title and interest of Borrower in and to all streets, roads and public places, opened or proposed, now or hereafter adjoining or appertaining to the Land or Improvements; and (iv) all options to purchase the Land or Improvements, or any portion thereof or interest therein, and any greater estate in the Land or Improvements, and all additions to and Proceeds of the foregoing (collectively, the “Real Property”); (b) grants to Lender a security interest in all personal property of any kind or nature whatsoever, whether tangible or intangible and whether now owned or hereafter acquired, in which Borrower now has or hereafter acquires an interest and which is used in the construction of, or is placed upon, or is derived from or used in connection with the maintenance, use, occupancy or enjoyment of, the Property (as hereinafter defined), including (i) all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies and other articles of personal property, of every kind and character, tangible and intangible (including software which is owned by Borrower embedded therein), now owned or hereafter acquired by Borrower, which are now or hereafter attached to or situated in, on or about the Land or Improvements, or used in or necessary to the complete and proper planning, development, use, occupancy or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use or installation in or on the Land or Improvements, and all additions to the foregoing, all of which are hereby declared to be permanent accessions to the Land (collectively, the “Accessories”); (ii) subject to the terms of the Lock Box Agreement, all accounts of Borrower within the meaning of the Uniform Commercial Code of the State (as defined herein), derived from or arising out of the use, occupancy or enjoyment of the Property or for services rendered therein or thereon (collectively, the “Accounts”); (iii) all franchise, license, management or other agreements with respect to the operation of the Real Property or the business conducted therein (provided all of such agreements shall be subordinate to this Mortgage, and Lender shall have no responsibility for the performance of Borrower’s obligations thereunder) and all general intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols) related to the Real Property or the operation thereof which are owned by Borrower; (iv) all sewer and water taps, appurtenant water stock or water rights, any Type 2 nonirregation grandfathered water rights, contractual rights to water, allocations and agreements for utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority related to the Real Property or the operation thereof; (v) all of Borrower’s rights and interests under all Swap Contracts, including all rights to the payment of money from Lender under any Swap Contract and all accounts, deposit accounts and general intangibles, including payment intangibles, described in any Swap Contract; (vi) all insurance policies held by Borrower with respect to the Property or Borrower’s operation thereof; and (vii) subject to the terms of the Lock Box Agreement, all money, instruments and documents (whether tangible or electronic) arising from or by virtue of any transactions related to the Property, and all deposits and deposit accounts of Borrower with Lender related to the Property, including any such deposit account from which Borrower may from time to time authorize Lender to debit and/or credit payments due with respect to the Junior Loan; together with all additions to and proceeds of all of the foregoing (collectively, the “Personalty”) (the Real Property and the Personalty shall be collectively referred to herein as the “Property”); (c) assigns to Lender, and grants to Lender a security interest in, Borrower’s right, title and interest in any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation (the “Condemnation Awards”) and all Insurance Proceeds; and (d) assigns to Lender, and grants to Lender a security interest in, all of Borrower’s right, title and interest in, but not any of Borrower’s obligations or liabilities under, all (i) contracts for services to be rendered, work to be performed or materials to be supplied in the development of the Land or the construction or repair of Improvements, including all agreements with architects, engineers or contractors for such services, work or materials; (ii) all plans, drawings and specifications for the development of the Land or the construction or repair of Improvements; (iii) all permits, licenses, variances and other rights or approvals issued by or obtained from any Governmental Authority or other Person in connection with the development of the Land or the construction or repair of Improvements; and (iv) all amendments of or supplements to any of the foregoing (collectively, the “Design and Construction Documents”). All Persons who may have or acquire an interest in all or any part of the Property will be deemed to have notice of, and will be bound by, the terms of the Obligations and each other agreement or instrument made or entered into in connection with each of the Obligations. Such terms include any provisions in the Junior Note, the Junior Loan Agreement and/or any Swap Contract which provide that the interest rate on one or more of the Obligations may vary from time to time. The definition of “Obligations” includes future advances.
Appears in 2 contracts
Sources: Construction Leasehold Mortgage, Assignment, Security Agreement and Fixture Filing, Construction Leasehold Mortgage, Assignment, Security Agreement and Fixture Filing (Behringer Harvard Opportunity REIT II, Inc.)
Conveyances and Security Interests. In consideration of the provisions of this Deed of Trust and the sum of TEN DOLLARS ($10.00) cash in hand paid and other good and valuable consideration the receipt and sufficiency of which are acknowledged by Grantor, in order to secure the prompt payment and performance of the Obligations, Borrower:
Grantor hereby (a) hereby irrevocably and unconditionally grantsGRANTS, mortgagesCONVEYS, conveysTRANSFERS AND, transfers and assigns ASSIGNS to LenderTrustee, under and subject to the terms and conditions set forth hereinin trust, for the benefit of LenderBeneficiary, with power of sale and right of entry and possession (to the extent permitted by Law)possession, the leasehold estate created by the Lease and all other tenancy, termof Grantor’s estate, right, title and interest of Borrower, of whatever character (whether vested now or contingent)hereafter acquired, in and to (1) the real property described on Exhibit A and Exhibit B attached hereto together Real Property, with any and all rights, appurtenances, and privileges thereunto belonging, for the use and benefitsbenefit of Beneficiary, Beneficiary’s successors and assigns; (b) grants to Beneficiary a security interest in all of whatever character derived by BorrowerGrantor’s right, or title and interest in and to which Borrower may be entitled, under or by virtue of the Ground Lease, including, without limitation: (i) including any and all rights to exercise options (including, without limitation, options to purchase, renew, extend, terminate, reject extend or assume), give consents and receive payments, reimbursements and refunds; (ii) any and all rights to modify, change, supplement, alter, amend, terminate, cancel, sever or surrender renew provided for in the Ground Lease and any nondisturbance, attornment and recognition agreement benefiting Grantor with respect to the Ground Lease, together with all credits, deposits, privileges, rights, estates, title and interest of Grantor as tenant under the Ground Lease (including all rights of Grantor to treat the Ground Lease as terminated pursuant to a 365(h) Election, or any other Debtor Relief Law, together with all rights, remedies and privileges related thereto), and all rights to release books and records that contain records of payments of rent or discharge security made under the Landlord of or from the obligations, covenants, conditions and agreements by the Landlord to be kept, observed or performed thereunder; (iii) any Ground Lease and all of Grantor’s claims and rights to the payment of damages that may presently exist or hereafter arise under or in connection with the any Lease or the rights of Borrower thereunder, including, without limitation, any such claim or right that may arise as a result of the rejection or disaffirmance of the Lease by the Landlord, or by any trustee of the Landlord, pursuant to the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., as amended (the “Code”)Damage Claim; (iv) any and all rights, privileges and benefits, of whatever character, to which Borrower may hereafter be entitled pursuant to Section 365 of the Code, including, without limitation, all of Borrower’s rights to remain in possession after rejection or disaffirmance of the Lease by the Landlord or by any trustee of the Landlord (collectively, the “Land”) and (2) all buildings, structures and other improvements now or hereafter existing, erected or placed on the Land, together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land (collectively, excluding the Excluded Improvements (as defined in the Lease), the “Improvements”), together with (i) all estates, title interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses, additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances, easements, rights-of-way, rights of ingress or egress, parking rights, timber, crops, mineral interests and other rights, now or hereafter owned by Borrower and belonging or appertaining to the Land or Improvements; (ii) all Claims whatsoever of Borrower with respect to the Land or Improvements, either in law or in equity, in possession or in expectancy; (iii) all estate, right, title and interest of Borrower in and to all streets, roads and public places, opened or proposed, now or hereafter adjoining or appertaining to the Land or Improvements; and (iv) all options to purchase the Land or Improvements, or any portion thereof or interest therein, and any greater estate in the Land or Improvements, and all additions to and Proceeds of the foregoing (collectively, the “Real Property”);
(bc) grants to Lender Beneficiary a security interest in all personal property of any kind or nature whatsoever, whether tangible or intangible and whether now owned or hereafter acquired, in which Borrower now has or hereafter acquires an interest and which is used in the construction of, or is placed upon, or is derived from or used in connection with the maintenance, use, occupancy or enjoyment of, the Property (as hereinafter defined), including (i) all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies and other articles of personal property, of every kind and character, tangible and intangible (including software which is owned by Borrower embedded therein), now owned or hereafter acquired by Borrower, which are now or hereafter attached to or situated in, on or about the Land or Improvements, or used in or necessary to the complete and proper planning, development, use, occupancy or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use or installation in or on the Land or Improvements, and all additions to the foregoing, all of which are hereby declared to be permanent accessions to the Land (collectively, the “Accessories”)Personalty; (ii) subject to the terms of the Lock Box Agreement, all accounts of Borrower within the meaning of the Uniform Commercial Code of the State (as defined herein), derived from or arising out of the use, occupancy or enjoyment of the Property or for services rendered therein or thereon (collectively, the “Accounts”); (iii) all franchise, license, management or other agreements with respect to the operation of the Real Property or the business conducted therein (provided all of such agreements shall be subordinate to this Mortgage, and Lender shall have no responsibility for the performance of Borrower’s obligations thereunder) and all general intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols) related to the Real Property or the operation thereof which are owned by Borrower; (iv) all sewer and water taps, appurtenant water stock or water rights, any Type 2 nonirregation grandfathered water rights, contractual rights to water, allocations and agreements for utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority related to the Real Property or the operation thereof; (v) all of Borrower’s rights and interests under all Swap Contracts, including all rights to the payment of money from Lender under any Swap Contract and all accounts, deposit accounts and general intangibles, including payment intangibles, described in any Swap Contract; (vi) all insurance policies held by Borrower with respect to the Property or Borrower’s operation thereof; and (vii) subject to the terms of the Lock Box Agreement, all money, instruments and documents (whether tangible or electronic) arising from or by virtue of any transactions related to the Property, and all deposits and deposit accounts of Borrower with Lender related to the Property, including any such deposit account from which Borrower may from time to time authorize Lender to debit and/or credit payments due with respect to the Junior Loan; together with all additions to and proceeds of all of the foregoing (collectively, the “Personalty”) (the Real Property and the Personalty shall be collectively referred to herein as the “Property”);
(cd) assigns to LenderBeneficiary, and grants to Lender Beneficiary a security interest in, Borrower’s right, title and interest in any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation (the “Condemnation Awards”) Awards and all Insurance Proceeds; and
(de) assigns to LenderBeneficiary, and grants to Lender Beneficiary a security interest in, all of BorrowerGrantor’s right, title and interest in, but not any of BorrowerGrantor’s obligations or liabilities under, all (i) contracts for services to be renderedSwap Contracts, work to be performed or materials to be supplied in the development of the Land or the construction or repair of Improvements, including all agreements with architects, engineers or contractors for such services, work or materials; (ii) all plans, drawings and specifications for the development of the Land or the construction or repair of Improvements; (iii) all permits, licenses, variances and other rights or approvals issued by or obtained from any Governmental Authority or other Person in connection with the development of the Land or the construction or repair of Improvements; and (iv) all amendments of or supplements to any of the foregoing (collectively, the “Design and Construction Documents”, all Contracts of Sale and all Refinancing Commitments, and all Letters of Credit; and (f) assigns to Beneficiary, and grants to Beneficiary a security interest in, all Accounts arising from or related to any transactions related to the Premises (including but not limited to Grantor’s rights in tenants’ security deposits, deposits with respect to utility services to the Premises, and any deposits, deposit accounts or reserves hereunder or under any other Loan Documents), and any account or deposit account from which Grantor may from time to time authorize Beneficiary to debit and/or credit payments due with respect to the Loan or any Swap Contract, all rights to the payment of money from Beneficiary under any Swap Contract, and all accounts, deposit accounts and general intangibles including payment intangibles, described in any Swap Contract. All Persons who may have or acquire an interest in all or any part of the Property will be deemed to have notice of, and will be bound by, the terms of the Obligations and each other agreement or instrument made or entered into in connection with each of the Obligations. Such terms include any provisions in the Junior Note, the Junior Loan Credit Agreement and/or or any Swap Contract which provide that the interest rate on one or more of the Obligations may vary from time to time. This Deed of Trust secures all present and future advances and/or future obligations that may from time to time be made or incurred by Borrower under the Loan Documents (including without limitation under this Deed of Trust), and all other sums from time to time owing to Lenders by Borrower under the Loan Documents (including without limitation any existing Obligations incurred or any advances made at or prior to the filing of this Deed of Trust of record in the real estate records of the county where the Property is situated). The definition assignment of “Obligations” includes future advancesGrantor’s right, title and interest in all Design and Construction Documents shall not terminate upon release, foreclosure or other termination of this Deed of Trust, but shall survive foreclosure of the liens and security interest created by this Deed of Trust or conveyance in lieu of foreclosure.
Appears in 1 contract
Sources: Future Advance Leasehold Deed of Trust (Grubb & Ellis Healthcare REIT II, Inc.)
Conveyances and Security Interests. In consideration of the provisions of this Deed of Trust and the sum of TEN DOLLARS ($10.00) cash in hand paid and other good and valuable consideration the receipt and sufficiency of which are acknowledged by Grantor, in order to secure the prompt payment and performance of the Obligations, Borrower:
Grantor hereby (a) hereby irrevocably and unconditionally grantsGRANTS, mortgagesCONVEYS, conveysTRANSFERS AND, transfers and assigns ASSIGNS to LenderTrustee, under and subject to the terms and conditions set forth hereinin trust, for the benefit of LenderBeneficiary, with power of sale and right of entry and possession (to the extent permitted by Law)possession, the leasehold estate created by the Lease and all other tenancy, termof Grantor’s estate, right, title and interest of Borrower, of whatever character (whether vested now or contingent)hereafter acquired, in and to (1) the real property described on Exhibit A and Exhibit B attached hereto together Real Property, with any and all rights, appurtenances, and privileges thereunto belonging, for the use and benefitsbenefit of Beneficiary, Beneficiary’s successors and assigns; (b) grants to Beneficiary a security interest in all of whatever character derived by BorrowerGrantor’s right, or title and interest in and to which Borrower may be entitled, under or by virtue of the Ground Lease, including, without limitation: (i) including any and all rights to exercise options (including, without limitation, options to purchase, renew, extend, terminate, reject extend or assume), give consents and receive payments, reimbursements and refunds; (ii) any and all rights to modify, change, supplement, alter, amend, terminate, cancel, sever or surrender renew provided for in the Ground Lease and any nondisturbance, attornment and recognition agreement benefiting Grantor with respect to the Ground Lease, together with all credits, deposits, privileges, rights, estates, title and interest of Grantor as tenant under the Ground Lease (including all rights of Grantor to treat the Ground Lease as terminated pursuant to a 365(h) Election, or any other Debtor Relief Law, together with all rights, remedies and privileges related thereto), and all rights to release books and records that contain records of payments of rent or discharge security made under the Landlord of or from the obligations, covenants, conditions and agreements by the Landlord to be kept, observed or performed thereunder; (iii) any Ground Lease and all of Grantor’s claims and rights to the payment of damages that may presently exist or hereafter arise under or in connection with the any Lease or the rights of Borrower thereunder, including, without limitation, any such claim or right that may arise as a result of the rejection or disaffirmance of the Lease by the Landlord, or by any trustee of the Landlord, pursuant to the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., as amended (the “Code”)Damage Claim; (iv) any and all rights, privileges and benefits, of whatever character, to which Borrower may hereafter be entitled pursuant to Section 365 of the Code, including, without limitation, all of Borrower’s rights to remain in possession after rejection or disaffirmance of the Lease by the Landlord or by any trustee of the Landlord (collectively, the “Land”) and (2) all buildings, structures and other improvements now or hereafter existing, erected or placed on the Land, together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land (collectively, excluding the Excluded Improvements (as defined in the Lease), the “Improvements”), together with (i) all estates, title interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses, additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances, easements, rights-of-way, rights of ingress or egress, parking rights, timber, crops, mineral interests and other rights, now or hereafter owned by Borrower and belonging or appertaining to the Land or Improvements; (ii) all Claims whatsoever of Borrower with respect to the Land or Improvements, either in law or in equity, in possession or in expectancy; (iii) all estate, right, title and interest of Borrower in and to all streets, roads and public places, opened or proposed, now or hereafter adjoining or appertaining to the Land or Improvements; and (iv) all options to purchase the Land or Improvements, or any portion thereof or interest therein, and any greater estate in the Land or Improvements, and all additions to and Proceeds of the foregoing (collectively, the “Real Property”);
(bc) grants to Lender Beneficiary a security interest in all personal property of any kind or nature whatsoever, whether tangible or intangible and whether now owned or hereafter acquired, in which Borrower now has or hereafter acquires an interest and which is used in the construction of, or is placed upon, or is derived from or used in connection with the maintenance, use, occupancy or enjoyment of, the Property (as hereinafter defined), including (i) all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies and other articles of personal property, of every kind and character, tangible and intangible (including software which is owned by Borrower embedded therein), now owned or hereafter acquired by Borrower, which are now or hereafter attached to or situated in, on or about the Land or Improvements, or used in or necessary to the complete and proper planning, development, use, occupancy or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use or installation in or on the Land or Improvements, and all additions to the foregoing, all of which are hereby declared to be permanent accessions to the Land (collectively, the “Accessories”)Personalty; (ii) subject to the terms of the Lock Box Agreement, all accounts of Borrower within the meaning of the Uniform Commercial Code of the State (as defined herein), derived from or arising out of the use, occupancy or enjoyment of the Property or for services rendered therein or thereon (collectively, the “Accounts”); (iii) all franchise, license, management or other agreements with respect to the operation of the Real Property or the business conducted therein (provided all of such agreements shall be subordinate to this Mortgage, and Lender shall have no responsibility for the performance of Borrower’s obligations thereunder) and all general intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols) related to the Real Property or the operation thereof which are owned by Borrower; (iv) all sewer and water taps, appurtenant water stock or water rights, any Type 2 nonirregation grandfathered water rights, contractual rights to water, allocations and agreements for utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority related to the Real Property or the operation thereof; (v) all of Borrower’s rights and interests under all Swap Contracts, including all rights to the payment of money from Lender under any Swap Contract and all accounts, deposit accounts and general intangibles, including payment intangibles, described in any Swap Contract; (vi) all insurance policies held by Borrower with respect to the Property or Borrower’s operation thereof; and (vii) subject to the terms of the Lock Box Agreement, all money, instruments and documents (whether tangible or electronic) arising from or by virtue of any transactions related to the Property, and all deposits and deposit accounts of Borrower with Lender related to the Property, including any such deposit account from which Borrower may from time to time authorize Lender to debit and/or credit payments due with respect to the Junior Loan; together with all additions to and proceeds of all of the foregoing (collectively, the “Personalty”) (the Real Property and the Personalty shall be collectively referred to herein as the “Property”);
(cd) assigns to LenderBeneficiary, and grants to Lender Beneficiary a security interest in, Borrower’s right, title and interest in any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation (the “Condemnation Awards”) Awards and all Insurance Proceeds; and
(de) assigns to LenderBeneficiary, and grants to Lender Beneficiary a security interest in, all of BorrowerGrantor’s right, title and interest in, but not any of BorrowerGrantor’s obligations or liabilities under, all (i) contracts for services to be renderedSwap Contracts, work to be performed or materials to be supplied in the development of the Land or the construction or repair of Improvements, including all agreements with architects, engineers or contractors for such services, work or materials; (ii) all plans, drawings and specifications for the development of the Land or the construction or repair of Improvements; (iii) all permits, licenses, variances and other rights or approvals issued by or obtained from any Governmental Authority or other Person in connection with the development of the Land or the construction or repair of Improvements; and (iv) all amendments of or supplements to any of the foregoing (collectively, the “Design and Construction Documents”, all Contracts of Sale and all Refinancing Commitments, and all Letters of Credit; and (f) assigns to Beneficiary, and grants to Beneficiary a security interest in, all Accounts arising from or related to any transactions related to the Premises (including but not limited to Grantor’s rights in tenants’ security deposits, deposits with respect to utility services to the Premises, and any deposits, deposit accounts or reserves hereunder or under any other Loan Documents), and any account or deposit account from which Grantor may from time to time authorize Beneficiary to debit and/or credit payments due with respect to the Loan or any Swap Contract, all rights to the payment of money from Beneficiary under any Swap Contract, and all accounts, deposit accounts and general intangibles including payment intangibles, described in any Swap Contract. All Persons who may have or acquire an interest in all or any part of the Property will be deemed to have notice of, and will be bound by, the terms of the Obligations and each other agreement or instrument made or entered into in connection with each of the Obligations. Such terms include any provisions in the Junior Note, the Junior Loan Credit Agreement and/or or any Swap Contract which provide that the interest rate on one or more of the Obligations may vary from time to time. This Deed of Trust secures all present and future advances and/or future obligations that may from time to time be made or incurred by Borrower under the Loan Documents (including without limitation under this Deed of Trust), and all other sums from time to time owing to Lenders by Borrower under the Loan Documents (including without limitation any existing Obligations incurred or any advances made at or prior to the filing of this Deed of Trust of record in the real estate records of the county where the Property is situated). The definition present amount of “Obligations” includes obligations be secured by this Deed of Trust is Twenty Five Million and No/100 Dollars ($25,000,000.00), and the maximum principal amount, including present and future advancesobligations, that may be secured by this Deed of Trust at any one time is Twenty Five Million and No/100 Dollars ($25,000,000.00). The time period within which any future advances may be made and future obligations may be incurred is the period between the date hereof and the date fifteen (15) years from the date hereof.
Appears in 1 contract
Conveyances and Security Interests. (a) The total Secured Obligations secured by this Mortgage, including, without limitation, amounts the Collateral Agent in its discretion may loan to the Company, together with all interest thereon, may increase or decrease from time to time but the maximum indebtedness outstanding at any one time shall not exceed SIXTY-SEVEN MILLION ONE HUNDRED SEVENTY-THREE THOUSAND THREE HUNDRED THIRTY-SEVEN DOLLARS ($67,173,337).
(b) In order to secure the prompt payment and performance of the Secured Obligations, Borrower:
the Company (ai) hereby irrevocably and unconditionally grants, mortgagesbargains, conveys, transfers sells and assigns to Lender, under and subject to conveys the terms and conditions set forth herein, for the benefit of Lender, with power of sale and right of entry and possession (to the extent permitted by Law)Issuer Lease Agreement, the leasehold estate created by the Lease Leasehold Estate and all of the Company’s other tenancy, term, right, title and interest of Borrowerinterest, of whatever character (whether vested or contingent), in and to (1) the real property described on Exhibit A and Exhibit B attached hereto together with any and all rights, privileges and benefits, of whatever character derived by Borrower, or to which Borrower may be entitled, under or by virtue of the Lease, including, without limitation: (i) any and all rights to exercise options (including, without limitation, options to purchase, renew, extend, terminate, reject or assume), give consents and receive payments, reimbursements and refunds; (ii) any and all rights to modify, change, supplement, alter, amend, terminate, cancel, sever or surrender the Lease and any and all rights to release or discharge the Landlord of or from the obligations, covenants, conditions and agreements by the Landlord to be kept, observed or performed thereunder; (iii) any and all claims and rights to the payment of damages that may presently exist or hereafter arise under or in connection with the Lease or the rights of Borrower thereunder, including, without limitation, any such claim or right that may arise as a result of the rejection or disaffirmance of the Lease by the Landlord, or by any trustee of the Landlord, pursuant to the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., as amended (the “Code”); (iv) any and all rights, privileges and benefits, of whatever character, to which Borrower may hereafter be entitled pursuant to Section 365 of the Code, including, without limitation, all of Borrower’s rights to remain in possession after rejection or disaffirmance of the Lease by the Landlord or by any trustee of the Landlord (collectively, the “Land”) and (2) all buildings, structures and other improvements now or hereafter existing, erected or placed on the Land, together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land (collectively, excluding the Excluded Improvements (as defined in the Lease), the “Improvements”), together with (i) all estates, title interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses, additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances, easements, rights-of-way, rights of ingress or egress, parking rights, timber, crops, mineral interests and other rights, now or hereafter owned by Borrower and belonging or appertaining to the Land or Improvements; (ii) all Claims whatsoever of Borrower with respect to the Land or Improvements, either in law or in equity, in possession or in expectancy; (iii) all estate, right, title and interest of Borrower in and to all streets, roads and public places, opened or proposed, now or hereafter adjoining or appertaining to the Land or Improvements; and (iv) all options to purchase the Land or Improvements, or any portion thereof or interest therein, and any greater estate in the Land or Improvements, and all additions to and Proceeds of the foregoing (collectively, the “Real Property”);
(b) grants to Lender a security interest in all personal property of any kind or nature whatsoever, whether tangible or intangible and whether now owned or hereafter acquired, in which Borrower now has or hereafter acquires an interest the Real Property unto the Collateral Agent, with mortgage covenants and which is used in upon the construction ofstatutory mortgage condition, or is placed upon, or is derived from or used in connection with to have and to hold the maintenance, use, occupancy or enjoyment ofIssuer Lease Agreement, the Property (as hereinafter defined)Leasehold Estate and all of the Company’s other right, including (i) all fixturestitle and interest, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies and other articles of personal property, of every kind and character, tangible and intangible (including software which is owned by Borrower embedded therein), whether now owned or hereafter acquired by Borroweracquired, which are now or hereafter attached to or situated in, on or about in Real Property unto the Land or Improvements, or used in or necessary to Collateral Agent forever; provided that the complete and proper planning, development, use, occupancy or operation thereof, or acquired (whether delivered to Company may retain possession of the Land or stored elsewhere) for use or installation in or on Real Property until the Land or Improvements, and all additions to the foregoing, all occurrence of which are hereby declared to be permanent accessions to the Land (collectively, the “Accessories”)an Event of Default; (ii) subject grants to the terms Collateral Agent a security interest in the Issuer Lease Agreement, the Leasehold Estate and all of the Lock Box AgreementCompany’s other right, all accounts of Borrower within the meaning of the Uniform Commercial Code of the State (as defined herein)title and interest, derived from whether now owned or arising out of the usehereafter acquired, occupancy or enjoyment of the Property or for services rendered therein or thereon (collectively, the “Accounts”)in Personalty; (iii) all franchise, license, management or other agreements with respect assigns to the operation of the Real Property or the business conducted therein (provided all of such agreements shall be subordinate to this Mortgage, and Lender shall have no responsibility for the performance of Borrower’s obligations thereunder) and all general intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols) related to the Real Property or the operation thereof which are owned by Borrower; (iv) all sewer and water taps, appurtenant water stock or water rights, any Type 2 nonirregation grandfathered water rights, contractual rights to water, allocations and agreements for utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority related to the Real Property or the operation thereof; (v) all of Borrower’s rights and interests under all Swap Contracts, including all rights to the payment of money from Lender under any Swap Contract and all accounts, deposit accounts and general intangibles, including payment intangibles, described in any Swap Contract; (vi) all insurance policies held by Borrower with respect to the Property or Borrower’s operation thereof; and (vii) subject to the terms of the Lock Box Agreement, all money, instruments and documents (whether tangible or electronic) arising from or by virtue of any transactions related to the Property, and all deposits and deposit accounts of Borrower with Lender related to the Property, including any such deposit account from which Borrower may from time to time authorize Lender to debit and/or credit payments due with respect to the Junior Loan; together with all additions to and proceeds of all of the foregoing (collectively, the “Personalty”) (the Real Property and the Personalty shall be collectively referred to herein as the “Property”);
(c) assigns to LenderCollateral Agent, and grants to Lender the Collateral Agent a security interest in, Borrower’s all right, title and interest interests of the Company in any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation (the “Condemnation Awards”) Awards and all Insurance Proceeds; and
and (div) assigns to Lenderthe Collateral Agent, and grants to Lender the Collateral Agent a security interest in, all of Borrowerthe Company’s right, title and interest in, but not any of Borrowerthe Company’s obligations or liabilities under, all Design and Construction Documents and all Contracts of Sale.
(c) In order to secure the prompt payment and performance of the Secured Obligations, the Issuer (i) contracts for services to be renderedgrants, work to be performed or materials to be supplied bargains, sells and conveys the Issuer Estate in the development of Real Property unto the Land or Collateral Agent, with mortgage covenants and upon the construction or repair of Improvementsstatutory mortgage condition, including all agreements with architectsto have and to hold forever, engineers or contractors for such services, work or materials; (ii) all plans, drawings grants to the Collateral Agent a security interest in the Issuer Estate in the Personalty; and specifications for the development of the Land or the construction or repair of Improvements; (iii) assigns to the Collateral Agent, and grants to the Collateral Agent a security interest in, all permitsright, licenses, variances title and other rights or approvals issued by or obtained from any Governmental Authority or other Person in connection with the development interest of the Land or the construction or repair of Improvements; and (iv) all amendments of or supplements to any Issuer, as owner of the foregoing Issuer Estate, in all Condemnation Awards and all Insurance Proceeds. The Issuer acknowledges and agrees that the Issuer intends that this Mortgage shall encumber all of its right, title and interest, whether now owned or hereafter acquired, in the Property.
(collectively, the “Design and Construction Documents”). d) All Persons who may have or acquire an interest in all or any part of the Property will be deemed to have notice of, and will be bound by, the terms of the Secured Obligations and each other agreement or instrument made or entered into in connection with each of the Secured Obligations. Such terms include any provisions in the Junior Note, the Junior Loan Reimbursement Agreement and/or or any Bank Swap Contract which provide that the interest rate on one or more of the Secured Obligations may vary from time to time. The definition of “Obligations” includes future advances.
Appears in 1 contract
Sources: Mortgage, Assignment, Security Agreement and Fixture Filing (Tempur Pedic International Inc)
Conveyances and Security Interests. The aggregate unpaid principal amount of the Obligations outstanding at any particular time (after having given effect to all advances and all repayments made prior to such time) which is secured by this Deed of Trust shall not aggregate, for purposes of C.R.S. Section ▇▇-▇▇-▇▇▇, in excess of $124,000,000.00 (the “Total Maximum Principal Amount”). The Total Maximum Principal Amount does not in any way imply that Lenders are obligated to make any future advances to Grantor at any time unless specifically so provided in the Loan Documents. In order to secure the prompt payment and performance of the Obligations, Borrower:
Grantor (a) hereby irrevocably and unconditionally grants, mortgagesbargains, conveyssells and conveys the Real Property unto Trustee, transfers and assigns to Lender, under and subject to IN TRUST with the terms and conditions set forth herein, power of sale for the benefit and security of LenderBeneficiary, with power of sale and right of entry and possession (to the extent permitted by Law)possession, the leasehold estate created by the Lease and all other tenancy, term, right, title and interest of Borrower, of whatever character (whether vested or contingent), in and to (1) the real property described on Exhibit A and Exhibit B attached hereto together with any and all rights, privileges and benefits, of whatever character derived by Borrower, or to which Borrower may be entitled, under or by virtue of the Lease, including, without limitation: (i) any and all rights to exercise options (including, without limitation, options to purchase, renew, extend, terminate, reject or assume), give consents and receive payments, reimbursements and refunds; (ii) any and all rights to modify, change, supplement, alter, amend, terminate, cancel, sever or surrender the Lease and any and all rights to release or discharge the Landlord of or from the obligations, covenants, conditions and agreements by the Landlord to be kept, observed or performed thereunder; (iii) any and all claims and rights to the payment of damages that may presently exist or hereafter arise under or in connection with the Lease or the rights of Borrower thereunder, including, without limitation, any such claim or right that may arise as a result of the rejection or disaffirmance of the Lease by the Landlord, or by any trustee of the Landlord, pursuant to the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., as amended (the “Code”); (iv) any and all rights, privileges and benefits, of whatever character, to which Borrower may hereafter be entitled pursuant to Section 365 of the Code, including, without limitation, all of Borrower’s rights to remain in possession after rejection or disaffirmance of the Lease by the Landlord or by any trustee of the Landlord (collectively, the “Land”) and (2) all buildings, structures and other improvements now or hereafter existing, erected or placed on the Land, together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land (collectively, excluding the Excluded Improvements (as defined in the Lease), the “Improvements”), together with (i) all estates, title interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses, additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances, easements, rights-of-way, rights of ingress or egress, parking rights, timber, crops, mineral interests and other rights, now or hereafter owned by Borrower and belonging or appertaining to the Land or Improvements; (ii) all Claims whatsoever of Borrower with respect to the Land or Improvements, either in law or in equity, in possession or in expectancy; (iii) all estate, right, title and interest of Borrower that Grantor now has or may later acquire in and to all streetsthe Real Property, roads to have and public places, opened or proposed, now or hereafter adjoining or appertaining to hold the Land or ImprovementsReal Property unto Trustee in fee simple forever; and (iv) all options to purchase the Land or Improvements, or any portion thereof or interest therein, and any greater estate in the Land or Improvements, and all additions to and Proceeds provided that Grantor may retain possession of the foregoing (collectively, Real Property until the “Real Property”);
occurrence of an Event of Default; (b) grants to Lender Beneficiary, for the ratable benefit of Lenders, a security interest in all personal property of any kind or nature whatsoever, whether tangible or intangible and whether now owned or hereafter acquired, in which Borrower now has or hereafter acquires an interest and which is used in the construction of, or is placed upon, or is derived from or used in connection with the maintenance, use, occupancy or enjoyment of, the Property (as hereinafter defined), including (i) all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies and other articles of personal property, of every kind and character, tangible and intangible (including software which is owned by Borrower embedded therein), now owned or hereafter acquired by Borrower, which are now or hereafter attached to or situated in, on or about the Land or Improvements, or used in or necessary to the complete and proper planning, development, use, occupancy or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use or installation in or on the Land or Improvements, and all additions to the foregoing, all of which are hereby declared to be permanent accessions to the Land (collectively, the “Accessories”)Personalty; (ii) subject to the terms of the Lock Box Agreement, all accounts of Borrower within the meaning of the Uniform Commercial Code of the State (as defined herein), derived from or arising out of the use, occupancy or enjoyment of the Property or for services rendered therein or thereon (collectively, the “Accounts”); (iii) all franchise, license, management or other agreements with respect to the operation of the Real Property or the business conducted therein (provided all of such agreements shall be subordinate to this Mortgage, and Lender shall have no responsibility for the performance of Borrower’s obligations thereunder) and all general intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols) related to the Real Property or the operation thereof which are owned by Borrower; (iv) all sewer and water taps, appurtenant water stock or water rights, any Type 2 nonirregation grandfathered water rights, contractual rights to water, allocations and agreements for utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority related to the Real Property or the operation thereof; (v) all of Borrower’s rights and interests under all Swap Contracts, including all rights to the payment of money from Lender under any Swap Contract and all accounts, deposit accounts and general intangibles, including payment intangibles, described in any Swap Contract; (vi) all insurance policies held by Borrower with respect to the Property or Borrower’s operation thereof; and (vii) subject to the terms of the Lock Box Agreement, all money, instruments and documents (whether tangible or electronic) arising from or by virtue of any transactions related to the Property, and all deposits and deposit accounts of Borrower with Lender related to the Property, including any such deposit account from which Borrower may from time to time authorize Lender to debit and/or credit payments due with respect to the Junior Loan; together with all additions to and proceeds of all of the foregoing (collectively, the “Personalty”) (the Real Property and the Personalty shall be collectively referred to herein as the “Property”);
(c) assigns to LenderBeneficiary, and grants to Lender Beneficiary, for the ratable benefit of Lenders, a security interest in, Borrower’s right, title and interest in any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation (the “Condemnation Awards”) Awards and all Insurance Proceeds; and
and (d) assigns to LenderBeneficiary, and grants to Lender Beneficiary, for the ratable benefit of Lenders, a security interest in, all of BorrowerGrantor’s right, title and interest in, but not any of BorrowerGrantor’s obligations or liabilities under, all (i) contracts for services to be rendered, work to be performed or materials to be supplied in the development of the Land or the construction or repair of Improvements, including all agreements with architects, engineers or contractors for such services, work or materials; (ii) all plans, drawings and specifications for the development of the Land or the construction or repair of Improvements; (iii) all permits, licenses, variances and other rights or approvals issued by or obtained from any Governmental Authority or other Person in connection with the development of the Land or the construction or repair of Improvements; and (iv) all amendments of or supplements to any of the foregoing (collectively, the “Design and Construction Documents”), all Contracts of Sale and all Refinancing Commitments. All Persons who may have or acquire an interest in all or any part of the Property will be deemed to have notice of, and will be bound by, the terms of the Obligations and each other agreement or instrument made or entered into in connection with each of the Obligations. Such terms include any provisions in the Junior Note, the Junior Loan Agreement and/or or any Swap Contract which provide that the interest rate on one or more of the Obligations may vary from time to time. The definition ▇▇▇▇▇▇▇ and Beneficiary agree and acknowledge that Lenders may elect (without any obligation to do so) to make additional advances under the terms of “the Notes or otherwise, and that any such future advances shall be subject to, and secured by, this Deed of Trust. Should the Obligations decrease or increase pursuant to the terms of the Obligations” includes future advances, the Notes or otherwise, at any time or from time to time, this Deed of Trust shall retain its priority position of record until (a) the termination of the Loan Documents in accordance with the terms thereof, (b) the full, final and complete payment of all the Obligations, and (c) the full release and termination of the liens and security interests created by this Deed of Trust.
Appears in 1 contract
Conveyances and Security Interests. In order to secure the prompt payment and performance of the Obligations, Borrower:
including any and all renewals, or extensions of the whole or any part thereof (and any such renewals or extensions shall not impair in any manner the validity of or priority of this Mortgage), Mortgagor (a) hereby irrevocably and unconditionally grants, mortgages, conveys, transfers and assigns MORTGAGES AND WARRANTS to Lender, under and subject to Mortgagee the terms and conditions set forth herein, for Property TO HAVE AND TO HOLD the benefit of LenderReal Property, with power of sale and right of entry and possession (to the extent permitted by Law), the leasehold estate created by the Lease and all other tenancy, term, right, title and interest of Borrower, of whatever character (whether vested or contingent), in and to (1) the real property described on Exhibit A and Exhibit B attached hereto together with any and all rights, privileges and benefits, of whatever character derived by Borrower, or to which Borrower may be entitled, under or by virtue of the Lease, including, without limitation: (i) any and all rights to exercise options (including, without limitation, options to purchase, renew, extend, terminate, reject or assume), give consents and receive payments, reimbursements and refunds; (ii) any and all rights to modify, change, supplement, alter, amend, terminate, cancel, sever or surrender the Lease and any and all rights to release or discharge the Landlord of or from the obligations, covenants, conditions and agreements by the Landlord to be kept, observed or performed thereunder; (iii) any and all claims and rights to the payment of damages that may presently exist or hereafter arise under or in connection with the Lease or the rights of Borrower thereunder, including, without limitation, any such claim or right that may arise as a result of the rejection or disaffirmance of the Lease by the Landlord, or by any trustee of the Landlord, pursuant to the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., as amended (the “Code”); (iv) any and all rights, privileges and benefits, of whatever character, to which Borrower may hereafter be entitled pursuant to Section 365 of the Code, including, without limitation, all of Borrower’s rights to remain in possession after rejection or disaffirmance of the Lease by the Landlord or by any trustee of the Landlord (collectively, the “Land”) and (2) all buildings, structures and other improvements now or hereafter existing, erected or placed on the Land, together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land (collectively, excluding the Excluded Improvements (as defined in the Lease), the “Improvements”), together with (i) all estates, title interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses, additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances, easementsand privileges thereunto belonging, rights-of-wayunto the Mortgagee, rights of ingress or egress, parking rights, timber, crops, mineral interests Mortgagee’s successors and other rights, now or hereafter owned by Borrower and belonging or appertaining to the Land or Improvementsassigns forever; (ii) all Claims whatsoever of Borrower with respect to the Land or Improvements, either in law or in equity, in possession or in expectancy; (iii) all estate, right, title and interest of Borrower in and to all streets, roads and public places, opened or proposed, now or hereafter adjoining or appertaining to the Land or Improvements; and (iv) all options to purchase the Land or Improvements, or any portion thereof or interest therein, and any greater estate in the Land or Improvements, and all additions to and Proceeds of the foregoing (collectively, the “Real Property”);
(b) grants to Lender Mortgagee a security interest in all personal property of any kind or nature whatsoever, whether tangible or intangible and whether now owned or hereafter acquired, in which Borrower now has or hereafter acquires an interest and which is used in the construction of, or is placed upon, or is derived from or used in connection with the maintenance, use, occupancy or enjoyment of, the Property (as hereinafter defined), including (i) all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies and other articles of personal property, of every kind and character, tangible and intangible (including software which is owned by Borrower embedded therein), now owned or hereafter acquired by Borrower, which are now or hereafter attached to or situated in, on or about the Land or Improvements, or used in or necessary to the complete and proper planning, development, use, occupancy or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use or installation in or on the Land or Improvements, and all additions to the foregoing, all of which are hereby declared to be permanent accessions to the Land (collectively, the “Accessories”)Personalty; (ii) subject to the terms of the Lock Box Agreement, all accounts of Borrower within the meaning of the Uniform Commercial Code of the State (as defined herein), derived from or arising out of the use, occupancy or enjoyment of the Property or for services rendered therein or thereon (collectively, the “Accounts”); (iii) all franchise, license, management or other agreements with respect to the operation of the Real Property or the business conducted therein (provided all of such agreements shall be subordinate to this Mortgage, and Lender shall have no responsibility for the performance of Borrower’s obligations thereunder) and all general intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols) related to the Real Property or the operation thereof which are owned by Borrower; (iv) all sewer and water taps, appurtenant water stock or water rights, any Type 2 nonirregation grandfathered water rights, contractual rights to water, allocations and agreements for utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority related to the Real Property or the operation thereof; (v) all of Borrower’s rights and interests under all Swap Contracts, including all rights to the payment of money from Lender under any Swap Contract and all accounts, deposit accounts and general intangibles, including payment intangibles, described in any Swap Contract; (vi) all insurance policies held by Borrower with respect to the Property or Borrower’s operation thereof; and (vii) subject to the terms of the Lock Box Agreement, all money, instruments and documents (whether tangible or electronic) arising from or by virtue of any transactions related to the Property, and all deposits and deposit accounts of Borrower with Lender related to the Property, including any such deposit account from which Borrower may from time to time authorize Lender to debit and/or credit payments due with respect to the Junior Loan; together with all additions to and proceeds of all of the foregoing (collectively, the “Personalty”) (the Real Property and the Personalty shall be collectively referred to herein as the “Property”);
(c) assigns to LenderMortgagee, and grants to Lender Mortgagee a security interest in, Borrower’s right, title and interest in any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation (the “Condemnation Awards”) Awards and all Insurance Proceeds; and
(d) assigns to LenderMortgagee, and grants to Lender Mortgagee a security interest in, all of BorrowerMortgagor’s right, title and interest in, but not any of BorrowerMortgagor’s obligations or liabilities under, all (i) contracts for services to be renderedSwap Contracts, work to be performed or materials to be supplied in the development of the Land or the construction or repair of Improvements, including all agreements with architects, engineers or contractors for such services, work or materials; (ii) all plans, drawings and specifications for the development of the Land or the construction or repair of Improvements; (iii) all permits, licenses, variances and other rights or approvals issued by or obtained from any Governmental Authority or other Person in connection with the development of the Land or the construction or repair of Improvements; and (iv) all amendments of or supplements to any of the foregoing (collectively, the “Design and Construction Documents”, all Contracts of Sale and all Refinancing Commitments, and all Letters of Credit (if any); and (e) assigns to Mortgagee, and grants to Mortgagee a security interest in, all Accounts arising from or related to any transactions related to the Premises (including but not limited to Mortgagor’s rights in tenants’ security deposits, deposits with respect to utility services to the Premises, and any deposits, deposit accounts or reserves hereunder or under any other Loan Documents), and any account or deposit account from which Mortgagor may from time to time authorize Holder to debit and/or credit payments due with respect to the Loan or any Swap Contract, all rights to the payment of money from Mortgagee under any Swap Contract, and all accounts, deposit accounts and general intangibles including payment intangibles, described in any Swap Contract. All Persons who may have or acquire an interest in all or any part of the Property will be deemed to have notice of, and will be bound by, the terms of the Obligations and each other agreement or instrument made or entered into in connection with each of the Obligations. Such terms include any provisions in the Junior Note, the Junior Loan Agreement and/or or any Swap Contract which provide that the interest rate on one or more of the Obligations may vary from time to time. The definition of “Obligations” includes future advances.
Appears in 1 contract
Conveyances and Security Interests. In order to secure the prompt payment and performance of the Obligations, Borrower:
(a) Mortgagor does hereby irrevocably IRREVOCABLY GRANT, GIVE, BARGAIN, SELL, WARRANT, ALIEN, REMISE, RELEASE, CONVEY, MORTGAGE, TRANSFER, ASSIGN, CONFIRM, HYPOTHECATE, DEPOSIT, PLEDGE, CREATE A SECURITY INTEREST IN and unconditionally grants, mortgages, conveys, transfers and assigns SET OVER to Lender, under and subject to the terms and conditions set forth herein, for the benefit of Lender, with power of sale and right of entry and possession (to the extent permitted by Law), the leasehold estate created by the Lease and all other tenancy, term, right, title and interest of Borrower, of whatever character (whether vested or contingent)Mortgagee, in and to (1) the real property described on Exhibit A and Exhibit B attached hereto together with any and all rights, privileges and benefits, of whatever character derived by Borrower, or to which Borrower may be entitled, under or by virtue of the Lease, including, without limitation: (i) any and all rights to exercise options (including, without limitation, options to purchase, renew, extend, terminate, reject or assume), give consents and receive payments, reimbursements and refunds; (ii) any and all rights to modify, change, supplement, alter, amend, terminate, cancel, sever or surrender the Lease and any and all rights to release or discharge the Landlord of or from the obligations, covenants, conditions and agreements by the Landlord to be kept, observed or performed thereunder; (iii) any and all claims and rights to the payment of damages that may presently exist or hereafter arise under or in connection with the Lease or the rights of Borrower thereunder, including, without limitation, any such claim or right that may arise as a result of the rejection or disaffirmance of the Lease by the Landlord, or by any trustee of the Landlord, pursuant to the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., as amended (the “Code”); (iv) any and all rights, privileges and benefits, of whatever character, to which Borrower may hereafter be entitled pursuant to Section 365 of the Code, including, without limitationfee simple, all of BorrowerMortgagor’s rights to remain in possession after rejection or disaffirmance of the Lease by the Landlord or by any trustee of the Landlord (collectively, the “Land”) present and (2) all buildings, structures and other improvements now or hereafter existing, erected or placed on the Land, together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land (collectively, excluding the Excluded Improvements (as defined in the Lease), the “Improvements”), together with (i) all estates, title interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses, additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances, easements, rights-of-way, rights of ingress or egress, parking rights, timber, crops, mineral interests and other rights, now or hereafter owned by Borrower and belonging or appertaining to the Land or Improvements; (ii) all Claims whatsoever of Borrower with respect to the Land or Improvements, either in law or in equity, in possession or in expectancy; (iii) all future estate, right, title and interest of Borrower in and to all streetsthe following described property, roads and public places, opened or proposed, whether such property is now or hereafter adjoining or appertaining to in existence to: (a) the Land or Improvements; and (iv) Property TO HAVE AND TO HOLD the Real Property, with all options to purchase the Land or Improvementsrights, or any portion thereof or interest thereinappurtenances, and any greater estate in privileges thereunto belonging, unto the Land or ImprovementsMortgagee, Mortgagee’s successors and all additions to and Proceeds of the foregoing (collectively, the “Real Property”);
assigns forever; (b) grants to Lender a security interest in all personal property of any kind or nature whatsoever, whether tangible or intangible and whether now owned or hereafter acquired, in which Borrower now has or hereafter acquires an interest and which is used in the construction of, or is placed upon, or is derived from or used in connection with the maintenance, use, occupancy or enjoyment of, the Property (as hereinafter defined), including (i) all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies and other articles of personal property, of every kind and character, tangible and intangible (including software which is owned by Borrower embedded therein), now owned or hereafter acquired by Borrower, which are now or hereafter attached to or situated in, on or about the Land or Improvements, or used in or necessary to the complete and proper planning, development, use, occupancy or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use or installation in or on the Land or Improvements, and all additions to the foregoing, all of which are hereby declared to be permanent accessions to the Land (collectively, the “Accessories”)Personalty; (ii) subject to the terms of the Lock Box Agreement, all accounts of Borrower within the meaning of the Uniform Commercial Code of the State (as defined herein), derived from or arising out of the use, occupancy or enjoyment of the Property or for services rendered therein or thereon (collectively, the “Accounts”); (iii) all franchise, license, management or other agreements with respect to the operation of the Real Property or the business conducted therein (provided all of such agreements shall be subordinate to this Mortgage, and Lender shall have no responsibility for the performance of Borrower’s obligations thereunder) and all general intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols) related to the Real Property or the operation thereof which are owned by Borrower; (iv) all sewer and water taps, appurtenant water stock or water rights, any Type 2 nonirregation grandfathered water rights, contractual rights to water, allocations and agreements for utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority related to the Real Property or the operation thereof; (v) all of Borrower’s rights and interests under all Swap Contracts, including all rights to the payment of money from Lender under any Swap Contract and all accounts, deposit accounts and general intangibles, including payment intangibles, described in any Swap Contract; (vi) all insurance policies held by Borrower with respect to the Property or Borrower’s operation thereof; and (vii) subject to the terms of the Lock Box Agreement, all money, instruments and documents (whether tangible or electronic) arising from or by virtue of any transactions related to the Property, and all deposits and deposit accounts of Borrower with Lender related to the Property, including any such deposit account from which Borrower may from time to time authorize Lender to debit and/or credit payments due with respect to the Junior Loan; together with all additions to and proceeds of all of the foregoing (collectively, the “Personalty”) (the Real Property and the Personalty shall be collectively referred to herein as the “Property”);
(c) assigns to Lender, and grants to Lender a security interest in, Borrower’s right, title and interest in any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation (the “Condemnation Awards”) Awards and all Insurance ProceedsProceeds and to refunds, credits and abatements of real estate taxes; and
(d) assigns to Lender, and grants to Lender a security interest in, all of BorrowerMortgagor’s right, title and interest in, but not any of BorrowerMortgagor’s obligations or liabilities under, all (i) contracts for services to be rendered, work to be performed or materials to be supplied in the development of the Land or the construction or repair of Improvements, including all agreements with architects, engineers or contractors for such services, work or materials; (ii) all plans, drawings and specifications for the development of the Land or the construction or repair of Improvements; (iii) all permits, licenses, variances and other rights or approvals issued by or obtained from any Governmental Authority or other Person in connection with the development of the Land or the construction or repair of Improvements; and (iv) all amendments of or supplements to any of the foregoing (collectively, the “Design and Construction Documents”), all Contracts of Sale and all Refinancing Commitments; and (e) all of Mortgagor’s rights under Section 365 of the Bankruptcy Code. All Persons who may have or acquire an interest in all or any part of the Property will be deemed to have notice of, and will be bound by, the terms of the Obligations and each other agreement or instrument Mortgage made or entered into in connection with each of the Obligations. Such terms include any provisions in the Junior Note, the Junior Loan Agreement and/or or any Swap Contract which provide that the interest rate on one or more of the Obligations may vary from time to time. The definition of “Obligations” includes future advances.
Appears in 1 contract
Conveyances and Security Interests. In order to secure the prompt payment and performance of the Obligations, Borrower:
(a) Mortgagor does hereby irrevocably IRREVOCABLY GRANT, GIVE, BARGAIN, SELL, WARRANT, ALIEN, REMISE, RELEASE, CONVEY, MORTGAGE, TRANSFER, ASSIGN, CONFIRM, HYPOTHECATE, DEPOSIT, PLEDGE, CREATE A SECURITY INTEREST IN and unconditionally grants, mortgages, conveys, transfers and assigns SET OVER to Lender, under and subject to the terms and conditions set forth herein, for the benefit of Lender, with power of sale and right of entry and possession (to the extent permitted by Law), the leasehold estate created by the Lease and all other tenancy, term, right, title and interest of Borrower, of whatever character (whether vested or contingent)Mortgagee, in and to (1) the real property described on Exhibit A and Exhibit B attached hereto together with any and all rights, privileges and benefits, of whatever character derived by Borrower, or to which Borrower may be entitled, under or by virtue of the Lease, including, without limitation: (i) any and all rights to exercise options (including, without limitation, options to purchase, renew, extend, terminate, reject or assume), give consents and receive payments, reimbursements and refunds; (ii) any and all rights to modify, change, supplement, alter, amend, terminate, cancel, sever or surrender the Lease and any and all rights to release or discharge the Landlord of or from the obligations, covenants, conditions and agreements by the Landlord to be kept, observed or performed thereunder; (iii) any and all claims and rights to the payment of damages that may presently exist or hereafter arise under or in connection with the Lease or the rights of Borrower thereunder, including, without limitation, any such claim or right that may arise as a result of the rejection or disaffirmance of the Lease by the Landlord, or by any trustee of the Landlord, pursuant to the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., as amended (the “Code”); (iv) any and all rights, privileges and benefits, of whatever character, to which Borrower may hereafter be entitled pursuant to Section 365 of the Code, including, without limitationfee simple, all of Borrower’s rights to remain in possession after rejection or disaffirmance of the Lease by the Landlord or by any trustee of the Landlord (collectively, the “Land”) Mortgagor's present and (2) all buildings, structures and other improvements now or hereafter existing, erected or placed on the Land, together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of the Land (collectively, excluding the Excluded Improvements (as defined in the Lease), the “Improvements”), together with (i) all estates, title interests, title reversion rights, remainders, increases, issues, profits, rights of way or uses, additions, accretions, servitudes, strips, gaps, gores, liberties, privileges, water rights, water courses, alleys, passages, ways, vaults, licenses, tenements, franchises, hereditaments, appurtenances, easements, rights-of-way, rights of ingress or egress, parking rights, timber, crops, mineral interests and other rights, now or hereafter owned by Borrower and belonging or appertaining to the Land or Improvements; (ii) all Claims whatsoever of Borrower with respect to the Land or Improvements, either in law or in equity, in possession or in expectancy; (iii) all future estate, right, title and interest of Borrower in and to all streetsthe following described property, roads and public places, opened or proposed, whether such property is now or hereafter adjoining or appertaining to in existence to: (a) the Land or Improvements; and (iv) Property TO HAVE AND TO HOLD the Real Property, with all options to purchase the Land or Improvementsrights, or any portion thereof or interest thereinappurtenances, and any greater estate in privileges thereunto belonging, unto the Land or ImprovementsMortgagee, Mortgagee’s successors and all additions to and Proceeds of the foregoing (collectively, the “Real Property”);
assigns forever; (b) grants to Lender a security interest in all personal property of any kind or nature whatsoever, whether tangible or intangible and whether now owned or hereafter acquired, in which Borrower now has or hereafter acquires an interest and which is used in the construction of, or is placed upon, or is derived from or used in connection with the maintenance, use, occupancy or enjoyment of, the Property (as hereinafter defined), including (i) all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies and other articles of personal property, of every kind and character, tangible and intangible (including software which is owned by Borrower embedded therein), now owned or hereafter acquired by Borrower, which are now or hereafter attached to or situated in, on or about the Land or Improvements, or used in or necessary to the complete and proper planning, development, use, occupancy or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use or installation in or on the Land or Improvements, and all additions to the foregoing, all of which are hereby declared to be permanent accessions to the Land (collectively, the “Accessories”)Personalty; (ii) subject to the terms of the Lock Box Agreement, all accounts of Borrower within the meaning of the Uniform Commercial Code of the State (as defined herein), derived from or arising out of the use, occupancy or enjoyment of the Property or for services rendered therein or thereon (collectively, the “Accounts”); (iii) all franchise, license, management or other agreements with respect to the operation of the Real Property or the business conducted therein (provided all of such agreements shall be subordinate to this Mortgage, and Lender shall have no responsibility for the performance of Borrower’s obligations thereunder) and all general intangibles (including payment intangibles, trademarks, trade names, goodwill, software and symbols) related to the Real Property or the operation thereof which are owned by Borrower; (iv) all sewer and water taps, appurtenant water stock or water rights, any Type 2 nonirregation grandfathered water rights, contractual rights to water, allocations and agreements for utilities, bonds, letters of credit, permits, certificates, licenses, guaranties, warranties, causes of action, judgments, Claims, profits, security deposits, utility deposits, and all rebates or refunds of fees, Taxes, assessments, charges or deposits paid to any Governmental Authority related to the Real Property or the operation thereof; (v) all of Borrower’s rights and interests under all Swap Contracts, including all rights to the payment of money from Lender under any Swap Contract and all accounts, deposit accounts and general intangibles, including payment intangibles, described in any Swap Contract; (vi) all insurance policies held by Borrower with respect to the Property or Borrower’s operation thereof; and (vii) subject to the terms of the Lock Box Agreement, all money, instruments and documents (whether tangible or electronic) arising from or by virtue of any transactions related to the Property, and all deposits and deposit accounts of Borrower with Lender related to the Property, including any such deposit account from which Borrower may from time to time authorize Lender to debit and/or credit payments due with respect to the Junior Loan; together with all additions to and proceeds of all of the foregoing (collectively, the “Personalty”) (the Real Property and the Personalty shall be collectively referred to herein as the “Property”);
(c) assigns to Lender, and grants to Lender a security interest in, Borrower’s right, title and interest in any and all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation (the “Condemnation Awards”) Awards and all Insurance ProceedsProceeds and to refunds, credits and abatements of real estate taxes; and
(d) assigns to Lender, and grants to Lender a security interest in, all of BorrowerMortgagor’s right, title and interest in, but not any of BorrowerMortgagor’s obligations or liabilities under, all (i) contracts for services to be rendered, work to be performed or materials to be supplied in the development of the Land or the construction or repair of Improvements, including all agreements with architects, engineers or contractors for such services, work or materials; (ii) all plans, drawings and specifications for the development of the Land or the construction or repair of Improvements; (iii) all permits, licenses, variances and other rights or approvals issued by or obtained from any Governmental Authority or other Person in connection with the development of the Land or the construction or repair of Improvements; and (iv) all amendments of or supplements to any of the foregoing (collectively, the “Design and Construction Documents”), all Contracts of Sale and all Refinancing Commitments; and (e) all of Mortgagor’s and Agency’s rights under Section 365 of the Bankruptcy Code. All Persons who may have or acquire an interest in all or any part of the Property will be deemed to have notice of, and will be bound by, the terms of the Obligations and each other agreement or instrument Mortgage made or entered into in connection with each of the Obligations. Such terms include any provisions in the Junior Note, the Junior Loan Agreement and/or or any Swap Contract which provide that the interest rate on one or more of the Obligations may vary from time to time. The definition lien of “Obligations” includes future advancesthis Mortgage attaches to, and the Property hereunder shall include all of Mortgagor's rights and remedies at any time arising under or pursuant to Section 365(h) of the Bankruptcy Code, 11 U.S.C. §365(h), including without limitation all of Borrower's rights to remain in possession of the Real Property under the Ground Leases.
Appears in 1 contract