EXHIBIT 10.2
[___________________________________]
(Mortgagor)
for the benefit of
NOMURA ASSET CAPITAL CORPORATION
(Mortgagee)
_______________________________________________
MORTGAGE, ASSIGNMENT OF LEASES
AND RENTS AND SECURITY AGREEMENT
_______________________________________________
Dated: As of June __, 1998
Property Location:
______________________________
______________________________
DOCUMENT PREPARED BY AND WHEN RECORDED, RETURN TO:
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS AND SECURITY AGREEMENT (the
"Mortgage"), made as of June __, 1998, by [________________________________] a
_______________________________________, having an address c/o [Prime Retail,
L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇][▇▇▇▇▇▇▇
Group Properties, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇]
("Mortgagor"), for the benefit of Nomura Asset Capital Corporation, a Delaware
corporation (together with its successors and assigns, shall hereafter be
referred to as "Mortgagee"), having its principal place of business at Two World
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS:
A. Mortgagor is the owner of a fee simple title to that certain parcel of
real property (the "Premises") described in Exhibit A attached hereto, and the
buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and other improvements now or hereafter
located thereon (the "Improvements");
B. Mortgagee, Mortgagor and certain other entities affiliated with
Mortgagor (such affiliated entities and Mortgagor each being referred to
individually as a "Borrower" and collectively as the "Borrowers") have entered
into a certain Loan Agreement dated as of the date hereof (as amended, modified,
restated, consolidated or supplemented from time to time, the "Loan Agreement")
pursuant to which Mortgagee has agreed to make a secured mortgage loan to the
Borrowers. Capitalized terms used herein and not herein defined shall have the
meanings assigned to such terms in the Loan Agreement.
C. Pursuant to the Loan Agreement, Mortgagee is making a loan to Borrowers
in the aggregate original principal amount of
_____________________________________ (_______________) (the "Loan") and
Borrowers have executed the Note in the principal amount of __________________
(as the same may be amended, modified, restated, severed, consolidated, renewed,
replaced, or supplemented from time to time, the "Note"). The Note is secured
by, inter alia, this Mortgage and the other Loan Documents (as hereinafter
defined).
D. To induce Mortgagee to make the Loan and to secure payment of the Note,
together with interest thereon, Mortgagor has agreed to the execution and
delivery of this Mortgage.
NOW, THEREFORE, in consideration of the mutual promises herein contained
and other good and valuable consideration, the receipt and legal sufficiency
whereof are hereby acknowledged, and as an inducement to Mortgagee to enter into
the Loan Agreement, and to secure the payment of all sums which may or shall
become due hereunder or under the Note or any of the other documents executed
and delivered by a Borrower or an Affiliate of a Borrower evidencing or securing
the Loan (such other documents, including, without limitation, the Loan
Agreement; that certain Assignment of Leases and Rents of even date herewith
given by Mortgagor to Mortgagee with respect to the Premises (as such assignment
may be amended from time to time, the "Assignment of Leases"); that certain
Assignment of Agreements, Licenses, Permits and Contracts of even date herewith
given by Mortgagor to Mortgagee with respect to the Premises (as such assignment
may be amended from time to time, the "Assignment of Agreements"); and this
Mortgage (as any of the same may, from time to time, be modified, amended or
supplemented) being hereinafter collectively referred to as the "Loan
Documents"), and including (i) the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy
(whether or not a claim is allowed against Mortgagor for such interest or other
amounts in any such bankruptcy proceeding) or the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a) and
(ii) the costs and expenses of enforcing any provision of the Note, this
Mortgage or any of the other Loan Documents (all such sums being hereinafter
collectively referred to as the "Debt"), and in order to charge with such
performance and with such payments the Premises and the Improvements and other
property hereinafter described and the rents, revenues, issues, income and
profits thereof, Mortgagor has given, granted, mortgaged,
bargained, sold, alienated, enfeoffed, conveyed, confirmed, warranted,
pledged, assigned, and hypothecated and by these presents does hereby
irrevocably, give, mortgage, alien, enfeoff, confirm, warrant, pledge, assign,
hypothecate, GRANT, MORTGAGE, BARGAIN, SELL, AND CONVEY UNTO MORTGAGEE, the
Premises and 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 "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, curtesy and rights of curtesy, 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, and other property of
every kind and nature, whether tangible or intangible, whatsoever owned by
Mortgagor, or in which Mortgagor has or shall have an interest, now or hereafter
located upon the Premises and the Improvements, or appurtenant thereto, and
usable in connection with the present or future operation and occupancy of the
Premises and the Improvements and all building equipment, materials and supplies
of any nature whatsoever owned by Mortgagor, or in which Mortgagor has or shall
have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, or used 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 where the 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 and other agreements or arrangements heretofore or hereafter
entered into pursuant to which any person is granted a possessory interest in,
or right to use or occupy all or any portion of any space in the Premises and
the Improvements, including any extensions, renewals, modifications or
amendments thereof (hereinafter collectively referred to as the "Leases") and
all rents, rent equivalents, moneys payable as damages or in lieu of rent or
rent equivalents, royalties (including, without limitation, all oil and gas or
other mineral royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, security, utility and other deposits),
accounts, cash, issues, profits, charges for services rendered, and other
consideration of whatever form or nature received by or paid to or for the
account of or benefit of Mortgagor or its agents or employees from any and all
sources arising from or attributable to the Premises and the Improvements,
including, without limitation, 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 use and occupancy of property and proceeds, if
any, from business interruption or other loss of income insurance
(hereinafter collectively referred to as 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 (other than those payable to Mortgagor under any liability
insurance policy of Mortgagor) of and any unearned premiums on any insurance
policies covering the 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 Property;
(f) the right, in the name and on behalf of Mortgagor, to appear in and
defend any action or proceeding brought with respect to the Property and to
commence any action or proceeding to protect the interest of Mortgagee in the
Property;
(g) all accounts (including, without limitation, reserve 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, trademarks, symbols, service marks, books, records,
plans, specifications, designs, drawings, surveys, title insurance policies,
permits, consents, licenses, management 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 Property), approvals, actions, refunds of real
estate taxes and assessments (and any other governmental impositions related to
the Property), and causes of action that now or hereafter relate to, are derived
from or are used in connection with the 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
(h) all proceeds, products, offspring, rents and profits from any of the
foregoing, including, without limitation, those from sale, exchange, transfer,
collection, loss, damage, disposition, substitution or replacement of any of the
foregoing.
Without limiting the generality of any of the foregoing, in the event that
a proceeding under Title 11 of the United States Code (the "Bankruptcy Code") is
commenced by or against Mortgagor, pursuant to Section 552(b)(2) of the
Bankruptcy Code, the security interest granted by this Mortgage shall
automatically extend to all Rents acquired by the Mortgagor after the
commencement of the case and shall constitute cash collateral under Section
363(a) of the Bankruptcy Code.
TO HAVE AND TO HOLD the above granted and described Property unto and to
the use and benefit of Mortgagee and its successors and assigns, forever to
secure Mortgagee (i) the repayment of the Debt; and (ii) any and all extensions,
modifications and renewals of the Note, or any part thereof, however changed in
form, manner or amount.
PROVIDED, HOWEVER, these presents are upon the express condition that, if
the Borrowers shall well and truly pay to Mortgagee or defease the Debt at the
time and in the manner provided in the Note, the Loan Agreement and the other
Loan Documents and shall well and truly abide by and comply with each and every
covenant and condition set forth herein, in the Note, the Loan Agreement and in
the other Loan Documents in all material respects 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:
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, the Loan Agreement and this Mortgage. All the covenants, conditions and
agreements contained in the Note, the Loan Agreement, or 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. Intentionally Omitted.
3. Insurance. (a) Mortgagor, at its sole cost and expense, for the mutual
benefit of Mortgagor and Mortgagee, shall keep the Property insured and obtain
and maintain during the entire term of this Mortgage policies of insurance
against loss or damage by fire and lightning and against loss or damage by all
other risks and hazards as required and in accordance with the terms and
provisions of Section 7.1 of the Loan Agreement.
(b) If the Property shall be damaged or destroyed, in whole or in part, by
fire or other casualty (a "Casualty"), Mortgagor shall give prompt notice
thereof to Mortgagee. All amounts to be paid in connection with a Casualty under
such policies shall be governed by the terms and provisions of the Loan
Agreement.
4. Payment of Taxes, Etc. Mortgagor shall pay all real estate and personal
property taxes, assessments, fees or payments in lieu of real estate taxes,
water rates and sewer rents, now or hereafter levied or assessed or imposed
against the Property or any part thereof (the "Taxes") and all ground rents,
maintenance charges, impositions other than taxes, and other charges, including,
without limitation, vault charges and license fees for the use of vaults, chutes
and similar areas adjoining the Premises, now or hereafter levied or assessed or
imposed against the Property or any part thereof (the "Other Charges") as the
same become due and payable, in each case subject to Mortgagor's right to
contest the amount or validity or application in whole or in part any taxes or
other charges in accordance with Section 5.1(b) of the Loan Agreement.
5. Condemnation. Mortgagor shall promptly give Mortgagee written notice of
the actual or threatened commencement of any condemnation or eminent domain
proceeding with respect to the Property (a "Condemnation") and shall deliver to
Mortgagee copies of any and all papers served in connection with such
Condemnation. All amounts to be paid in connection with a Condemnation shall be
governed by the terms and provisions of the Loan Agreement.
6. Assignment of Leases and Rents. Mortgagor does hereby absolutely and
unconditionally assign to Mortgagee, all of 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 satisfactory to
Mortgagee, as may hereafter be requested by Mortgagee to further evidence and
confirm such assignment. Nevertheless, subject to the terms of this paragraph,
Mortgagee grants to Mortgagor a revocable license to operate and manage the
Property and to collect the Rents. Mortgagor shall cause all Rents to be
deposited into the Collection Account in accordance with the terms of the Loan
Agreement. Upon the occurrence and continuance of an Event of Default (as
hereinafter defined), without the need for notice or demand, the license granted
to Mortgagor herein shall automatically be revoked, and Mortgagee shall
immediately be entitled to possession of all Rents, whether or not Mortgagee
enters upon or takes control of the Property. Mortgagee is hereby granted and
assigned by Mortgagor the right, at its option, upon revocation of the license
granted herein, to enter upon the Property in person, by agent or by
court-appointed receiver to collect the Rents. Any Rents collected after the
revocation of the license shall be applied in accordance with Section 2.6 of the
Loan Agreement.
7. Maintenance of Property. (a) Mortgagor shall not (i) desert or abandon
the Property, (ii) change the use of the Property or cause or permit the use or
occupancy of any part of the Property to be discontinued if such discontinuance
or use change would violate any zoning or other law, ordinance or regulation;
(iii) consent to or seek any lowering of the zoning classification, or
greater zoning restriction affecting the Property; or (iv) take any steps
whatsoever to convert the Property, or any portion thereof, to a condominium or
cooperative form of ownership.
(b) Mortgagor shall, at its expense, (i) take good care of the Property
including grounds generally, and utility systems and sidewalks, roads, alleys,
and curbs therein, and shall keep the same in good, safe and insurable condition
and in compliance with all applicable Legal Requirements, (ii) promptly make all
repairs to the Property, above grade and below grade, interior and exterior,
structural and nonstructural, ordinary and extraordinary, unforeseen and
foreseen, and maintain the Property in a manner appropriate for the facility and
(iii) not commit or suffer to be committed any waste of the Property or do or
suffer to be done anything which will materially increase the risk of fire or
other hazard to the Property or materially impair the value thereof. Mortgagor
shall keep the sidewalks, vaults, gutters and curbs comprising, or adjacent to,
the Property, clean and free from dirt, snow, ice, rubbish and obstructions. All
repairs made by Mortgagor shall be made with first-class materials, in a good
and workmanlike manner, shall be equal or better in quality and class to the
original work and shall comply with all applicable Legal Requirements and
insurance requirements. To the extent any of the above obligations are
obligations of tenants under Leases or other Persons under Property Agreements,
Mortgagor may fulfill its obligations hereunder by causing such tenants or other
Persons, as the case may be, to perform their obligations thereunder. As used
herein, the terms "repair" and "repairs" shall be deemed to include all
necessary replacements.
(c) Mortgagor shall not demolish, remove, construct, or, except as
otherwise expressly provided herein, restore, or alter the Property or any
portion thereof nor consent to or permit any such demolition, removal,
construction, restoration, addition or alteration (each a "Renovation") which
would, for a period in excess of one year and in Mortgagor's best judgment at
the time of such demolition, removal, construction, restoration or alteration,
diminish the value of the Property or materially diminish the Total GLA without
Mortgagee's prior written consent in each instance, which consent shall not be
unreasonably withheld or delayed, provided, however, that for any Renovation
which would temporarily diminish the value of the Property or temporarily would
materially diminish the Total GLA, Mortgagor shall be permitted to perform same
provided (a) no Event of Default has occurred and is continuing at the time of
the proposed Renovation, (b) Mortgagor shall have entered into one or more
Leases with respect to the leasing of all or a portion of the space demised
under the Leases which were terminated in connection with the Renovation (the
"Affected Leases") which are in form and substance substantially similar to the
Affected Leases and which provide for rental and other payments thereunder, net
of any rebates, credits and other concessions granted by Mortgagor thereunder,
equal to not less than eighty-five percent (85%) of the Rent due under the
Affected Leases and Mortgagor shall have delivered a copy of such lease or
leases to Mortgagee, (c) Mortgagor shall have delivered to Mortgagee cash
collateral or an unconditional, irrevocable, clean sight draft letter of credit
in form and substance, and issued by a bank, acceptable to Mortgagee, in an
amount equal to the Rent that would have been payable pursuant to the Affected
Leases during (I) the anticipated term of the Renovation, as reasonably
determined by Mortgagee, plus (II) an additional six (6) month period (which
cash collateral or letter of credit are hereinafter referred to as the
"Renovation Funds") and (d) all Renovations shall be performed in compliance
with Legal Requirements. Mortgagor hereby grants to Mortgagee a security
interest in all of Mortgagor's right, title and interest in the Renovation Funds
and irrevocably authorizes Mortgagee, following an Event of Default, to apply
any or all of the Renovation Funds to cure any Event of Default or, following
the acceleration of the Debt in accordance with Article VIII hereof, toward the
payment of the Debt, as Mortgagee shall, in its sole discretion, determine, but
without obligation to do so. Following (X) delivery to Mortgagee of copies of
any and all final certificates of occupancy or other certificates, licenses and
permits required for the ownership, occupancy and operation of the Property as
so renovated and (Z) commencement of the payment of Rent payable under the lease
or leases which replaced the Affected Leases without rebate, credit or other
concession granted by Mortgagor thereunder, Mortgagee shall return the balance
of the Renovation Funds not applied in accordance with the immediately preceding
sentence, if any, to Mortgagor.
(d) Mortgagor represents and warrants to Mortgagee that (i) there are no
fixtures, machinery, apparatus, tools, equipment or articles of personal
property attached or appurtenant to, or located on, or used in connection with
the management, operation or maintenance of the Property, except for the
Equipment and equipment leased by Mortgagor for the management, operation or
maintenance of the Property in accordance with the Loan Documents; (ii) the
Equipment and the leased equipment constitutes all of the fixtures, machinery,
apparatus, tools, equipment and articles of personal property necessary to the
proper operation and maintenance of the Property; and (iii) all of the Equipment
is free and clear of all liens, except for the lien of this Mortgage and the
Permitted Encumbrances. All rights, title and interest of Mortgagor in and to
all extensions, improvements, betterment, renewals, appurtenances to, the
Property hereafter acquired by, or released to, Mortgagor or constructed,
assembled or placed by Mortgagor in the Property, and all changes and
substitutions of the security constituted thereby, shall be and, in each such
case, without any further mortgage, conveyance, assignment or other act by
Mortgagee or Mortgagor, shall become subject to the lien and security interest
of this Mortgage as fully and completely, and with the same effect, as though
now owned by Mortgagor and specifically described in this Mortgage, but at any
and all times Mortgagor shall execute and deliver to Mortgagee any documents
Mortgagee may reasonably deem necessary or appropriate for the purpose of
specifically subjecting the same to the lien and security interest of this
Mortgage.
(e) Notwithstanding the provisions of this Mortgage to the contrary,
Mortgagor shall have the right, at any time and from time to time, to remove and
dispose of Equipment which may have become obsolete or unfit for use or which is
no longer useful in the management, operation or maintenance of the Property.
Mortgagor shall promptly replace any such Equipment so disposed of or removed
with other Equipment of equal value and utility, free of any security interest
or superior title, liens or claims; except that, if by reason of technological
or other developments, replacement of the Equipment so removed or disposed of is
not necessary or desirable for the proper management, operation or maintenance
of the Property, Mortgagor shall not be required to replace the same. All such
replacements or additional equipment shall ne deemed to constitute "Equipment"
and shall be covered by the security interest herein granted.
8. Transfer or Encumbrance of the Property. (a) Except as permitted under
the terms and provisions of the Loan Agreement, Mortgagor shall not, without the
prior written consent of Mortgagee, sell, convey, alienate, mortgage, encumber,
pledge or otherwise transfer the Property or any part thereof, or permit the
Property or any part thereof to be sold, conveyed, alienated, mortgaged,
encumbered, pledged or otherwise transferred other than in connection with a
release of the Property pursuant to Section 2.4 of the Loan Agreement.
(b) Mortgagee shall not be required to demonstrate any actual impairment of
its security or any increased risk of default hereunder in order to declare the
Debt immediately due and payable upon Mortgagor's sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Property without Mortgagee's
consent in instances where Mortgagee's consent is required. This provision shall
apply to every such sale, conveyance, alienation, mortgage, encumbrance, pledge
or transfer of the Property regardless of whether voluntary or not, or whether
or not Mortgagee has consented to any previous sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Property.
(c) Mortgagee's consent to one sale, conveyance, alienation, mortgage,
encumbrance, pledge or transfer of the Property shall not be deemed to be a
waiver of Mortgagee's right to require such consent to any future occurrence of
same. Any sale, conveyance, alienation, mortgage, encumbrance, pledge or
transfer of the Property 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 promptly
following 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 such sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer which requires Mortgagee's consent
under the Loan Documents.
9. 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 Property for the purpose of taxation or
which imposes a tax, either directly or indirectly, on the Debt or Mortgagee's
interest in the 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.
10. No Credits on Account of the Debt. Mortgagor will not claim or demand
or be entitled to any credit or credits against the outstanding balance of the
Debt on account of Taxes or Other Charges assessed against the Property, or any
part thereof, and no deduction shall otherwise be made or claimed from the
assessed value of the Property, or any part thereof, by Mortgagor 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.
11. 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.
12. Controlling Agreement. It is expressly stipulated and agreed to be the
intent of Mortgagor and Mortgagee at all times to comply with applicable state
law or applicable United States federal law (to the extent that it permits
Mortgagee to contract for, charge, take, reserve, or receive a greater amount of
interest than under state law) and that this Paragraph 12 shall control every
other covenant and agreement in this Mortgage and the other Loan Documents. If
the applicable law (state or federal) is ever judicially interpreted so as to
render usurious any amount called for under the Note or under any of the other
Loan Documents, or contracted for, charged, taken, reserved, or received with
respect to the Debt, or if Mortgagee's exercise of the option to accelerate the
maturity of the Note, or if any prepayment by Mortgagor results in Mortgagor
having paid any interest in excess of that permitted by applicable law, then it
is Mortgagor's and Mortgagee's express intent that all excess amounts
theretofore collected by Mortgagee shall be credited on the principal balance of
the Note and all other Debt (or, if the Note and all other Debt have been or
would thereby be paid in full, refunded to Mortgagor), and the provisions of the
Note, this Mortgage and the other Loan Documents immediately be deemed reformed
and the amounts thereafter collectible hereunder and thereunder reduced, without
the necessity of the execution of any new documents, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount otherwise
called for hereunder or thereunder. All sums paid or agreed to be paid to
Mortgagee for the use, forbearance, or detention of the Debt shall, to the
extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term of the Debt until payment in full so that
the rate or amount of interest on account of the Debt does not exceed the
maximum lawful rate from time to time in effect and applicable to the Debt for
so long as the Debt is outstanding. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Mortgagee to accelerate the maturity of any interest that has not accrued at
the time of such acceleration or to collect unearned interest at the time of
such acceleration.
13. Intentionally Omitted.
14. Further Acts, Etc. Upon foreclosure, the appointment of a receiver or
any other relevant action, Mortgagor will, at the cost of Mortgagor and without
expense to Mortgagee, cooperate fully and completely to effect the assignment or
transfer of any license, permit, agreement or any other right necessary or
useful to the operation of the 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.
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 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 Property. Mortgagor will pay all filing, registration or
recording fees, and all expenses incident to the preparation, execution and
acknowledgment of this Mortgage, any mortgage supplemental hereto, any security
instrument with respect to the Property and any instrument of further assurance,
and all federal, state, county and municipal, taxes, duties, imposts,
assessments and charges arising out of or in connection with the execution and
delivery of this Mortgage, any mortgage supplemental hereto, any security
instrument with respect to the 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.
17. Events of Default. Each of the following events shall constitute an
event of default hereunder (each an "Event of Default"):
(a) if any portion of the Debt is not paid when due;
(b) if any of the Taxes or Other Charges are not paid prior to delinquency,
subject to Mortgagor's right to contest same in accordance with Section 5.1(b)
of the Loan Agreement;
(c) if the Policies are not kept in full force and effect;
(d) if, without Mortgagee's prior written consent, except as permitted
under the terms and provisions of the Loan Agreement, (A) Mortgagor transfers or
encumbers any portion of the Property or (B) any direct or indirect interest in
Mortgagor is transferred or assigned except as expressly permitted under
Section 6.1(j) of the Loan Agreement;
(e) if any representation or warranty of Mortgagor made herein or in any
other Loan Document or in any certificate, report, financial statement or other
instrument, agreement or document furnished by Mortgagor to Mortgagee in
connection with this Mortgage or any other Loan Document shall have been false
or misleading in any material respect as of the date the representation or
warranty was made;
(f) if Mortgagor shall make an assignment for the benefit of creditors, or
if Mortgagor shall generally not be paying its debts as they become due;
(g) if a receiver, liquidator or trustee of Mortgagor shall be appointed or
if Mortgagor shall be adjudicated a bankrupt or insolvent, or if any petition
for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy
law, or any similar federal or state law, shall be filed by or against,
consented to, or acquiesced in by, Mortgagor or if any proceeding for the
dissolution or liquidation of Mortgagor shall be instituted; provided, however,
if such appointment, adjudication, petition or proceeding was involuntary and
not consented to by Mortgagor, upon the same not being discharged, stayed or
dismissed within sixty (60) days;
(h) if Mortgagor shall be in default beyond any notice or grace period, if
any, under any other mortgage or security agreement covering any part of the
Property whether it be superior or junior in lien to this Mortgage;
(i) if the Property becomes subject to any mechanic's, materialman's or
other lien and such lien is not discharged (by payment, bonding, or otherwise)
for ten (10) days, except a lien for real estate taxes and assessments not then
due and payable and liens contested in accordance with the Loan Agreement;
(j) except as permitted in this Mortgage, if Mortgagor performs or permits
the performance of any material demolition or removal of any of the Improvements
without the prior consent of Mortgagee;
(k) if any Borrower shall default under any term, covenant, or provision of
the Note, the Loan Agreement, or any of the other Loan Documents, and such
default shall continue beyond any applicable cure periods contained in such
documents;
(l) if Mortgagor fails to cure a default under any other term, covenant or
provision of this Mortgage within ten (10) days after notice to Mortgagor, in
the case of any default which can be cured by the payment of a sum of money, or
for thirty (30) days after notice in the case of any other default; provided,
however, that if such non-monetary default is susceptible of cure but cannot
reasonably be cured within such 30-day period and provided further that
Mortgagor shall have commenced to cure such Default within such 30-day period
and thereafter diligently and expeditiously proceed to cure the same, such
30-day period shall be extended for an additional period of time as is
reasonably necessary for Mortgagor in the exercise of due diligence to cure such
default, such additional period not to exceed ninety (90) days;
(m) if an Event of Default as defined or described in any of the other Loan
Documents occurs, whether as to a Borrower or a Property.
18. Intentionally Omitted.
19. 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 Property for such purposes or appear in, defend, or
bring any action or proceeding to protect its interest in the 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 thereon at the Default Rate 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.
20. Remedies. (a) Upon the occurrence of any Event of Default, Mortgagee
may take such action, without notice or demand, as Mortgagee deems advisable to
protect and enforce Mortgagee's rights against Mortgagor and in and to the
Property by Mortgagee, 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 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 or cause to be sold for cash or upon credit the 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 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. Subject to requirements and limits imposed by law,
Mortgagee may, from time to time postpone sale of all or any portion of the
Property by public announcement at such time and place of sale, and from time to
time may postpone the sale by public announcement at the time and place fixed by
the preceding postponement. The power of sale under this Mortgage shall not be
exhausted by any one or more sales (or attempts to sell) as to all or any
portion of the Property remaining unsold, but shall continue unimpaired until
all of the Property has been sold by exercise of the power of sale in this
Mortgage and all of the Debt has been paid and discharged in full. Any person,
including Mortgagor or Mortgagee may purchase at the sale;
(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) to the extent permitted by applicable law, 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 Property, without notice and without regard for the adequacy
of the security for the Debt and without regard for the solvency of the
Mortgagor 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 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 Property and conduct
the business thereat; (B) complete any construction on the Property in such
manner and form as Mortgagee deems advisable; (C) make alterations, additions,
renewals, replacements and improvements to or on the Property; (D) exercise all
rights and powers of Mortgagor with respect to the 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, ▇▇▇ for,
collect and receive all Rents; and (E) apply the receipts from the Property to
the payment of the 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, insurance and
other charges in connection with the Property, as well as just and reasonable
compensation for the services of Mortgagee, its counsel, agents and employees;
(ix) require Mortgagor to vacate and surrender possession to Mortgagee of
the Property or to such receiver and, in default thereof, evict Mortgagor by
summary proceedings or otherwise or require Mortgagor to pay monthly in advance
to Mortgagee, or any receiver appointed to collect the Rents, the fair and
reasonable rental value for the use and occupation of any portion of the
Property occupied by Mortgagor; or
(x) pursue such other rights and remedies as may be available at law or in
equity or under the Uniform Commercial Code, including, without limitation, the
right to receive and/or establish a lock box for all Rents and proceeds from the
Intangibles and any other receivables or rights to payments of Mortgagor
relating to the ▇▇▇▇▇▇▇▇.▇▇ the event of a sale, by foreclosure or otherwise, of
less than all of the Property, this Mortgage shall continue as a lien on the
remaining portion of the 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, except as otherwise
required by law.
(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. Mortgagee is hereby
irrevocably appointed the true and lawful attorney of Mortgagor, in its name and
stead, to make all necessary conveyances, assignments, transfers and deliveries
of the Property and rights so sold and for that purpose Mortgagee may execute
all necessary instruments of conveyance, assignment and transfer, and may
substitute one or more persons with like power, Mortgagor hereby ratifying and
confirming all that its said attorney or such substitute or substitutes shall
lawfully do by virtue hereof. 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 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 a power of sale 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 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.
(f) No recovery of any judgment by Mortgagee and no levy of an execution
under any judgment upon the Property or upon any other property of any Borrower
shall affect in any manner or to any extent the lien of this Mortgage upon the
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 20 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 in any of the other Loan Documents in whole or in part,
and in such portions and in such order as determined by 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
in 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 any of 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 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 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 costs and expenses of Mortgagee in exercising
its rights and remedies under this Paragraph 20 (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
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 Property or any portion thereof; or (iii) any release or
indulgence granted to any maker, endorser, guarantor or surety of any of the
Debt.
21. Right of Entry. In addition to any other rights or remedies granted
under this Mortgage, Mortgagee and its agents shall have the right after
reasonable prior notice to Mortgagor to enter and inspect the Property at any
reasonable time during the term of this Mortgage. The reasonable cost of such
inspections or audits shall be borne by Mortgagor should Mortgagee reasonably
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
following demand, may be added to the principal balance of the sums due under
the Note and this Mortgage and shall bear interest thereafter until paid at the
Default Rate.
22. Security Agreement. This Mortgage is both a real property deed of trust
and a "security agreement" within the meaning of the Uniform Commercial Code.
The Property includes both real and personal property and all other rights and
interests, whether tangible or intangible in nature, of Mortgagor in the
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
Property to the full extent that the Property may be subject to the Uniform
Commercial Code (said portion of the 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 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 such, this Mortgage covers all items of the
Collateral that are or are to become fixtures. Information concerning the
security interest herein granted may be obtained from the parties at the
addresses of the parties set forth in the first paragraph of this Mortgage. If
an Event of Default shall occur, Mortgagee, in addition to any other rights and
remedies which it may have, shall have and may exercise immediately and without
demand, any and all rights and remedies granted to a secured party upon default
under the Uniform Commercial Code, including, without limiting the generality of
the foregoing, the right to take possession of the Collateral or any part
thereof, and to take such other measures as Mortgagee may deem necessary for the
care, protection and preservation of the Collateral. Upon request or demand of
Mortgagee, Mortgagor shall at its expense assemble the Collateral and make it
available to Mortgagee at a convenient place acceptable to Mortgagee. Mortgagor
shall pay to Mortgagee on demand any and all expenses, including 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) 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 request shall execute, file and record such Uniform Commercial
Code forms as are necessary to maintain the priority of Mortgagee's lien upon
and security interest in the Collateral, and shall pay all expenses and fees in
connection with the filing and recording thereof. If Mortgagee shall require the
filing or recording of additional Uniform Commercial Code forms or continuation
statements, Mortgagor shall, promptly after request, execute, file and record
such Uniform Commercial Code forms or continuation statements as Mortgagee shall
deem necessary, and shall pay all expenses and fees in connection with the
filing and recording thereof, it being understood and agreed, however, that no
such additional documents shall increase Mortgagor's obligations under the Note,
this Mortgage and the other Loan Documents. Mortgagor hereby irrevocably
appoints Mortgagee as its attorney-in-fact, coupled with an interest, to file
with the appropriate public office on its behalf any financing or other
statements signed only by Mortgagee, as secured party, in connection with the
Collateral covered by this Mortgage.
23. Actions and Proceedings. If Mortgagor fails to act within a reasonable
time, Mortgagee has the right to appear in and defend any action or proceeding
brought with respect to the Property and to bring any action or proceeding, in
Mortgagee's name or, if required by law, in the name and on behalf of Mortgagor,
which Mortgagee, in its reasonable discretion, decides should be brought to
protect their interest in the Property. Mortgagee shall, at its option, be
subrogated to the lien of any mortgage or other security instrument discharged
in whole or in part by the Debt, and any such subrogation rights shall
constitute additional security for the payment of the Debt.
24. Waiver of Setoff and Counterclaim. All amounts due under this Mortgage,
the Note and the other Loan Documents shall be payable without setoff,
counterclaim or any deduction whatsoever. Mortgagor hereby waives the right to
assert a setoff, counterclaim (other than a mandatory or compulsory
counterclaim) or deduction in any action or proceeding in which Mortgagee is a
participant, or arising out of or in any way connected with this Mortgage, the
Note, any of the other Loan Documents, or the Debt.
25. 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.
26. Marshalling and Other Matters. (a) 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 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 Property subsequent to
the date of this Mortgage and on behalf of all persons to the extent permitted
by applicable law.
(b) Mortgagor acknowledges that this Mortgage secures the Debt. Mortgagor
agrees that the lien of this Mortgage shall be absolute and unconditional and
shall not in any manner be affected or impaired by any acts or omissions
whatsoever of Mortgagee and, without limiting the generality of the foregoing,
the lien hereof shall not be impaired by any acceptance by Mortgagee of any
other security for any portion of the Debt, or by any failure, neglect or
omission on the part of Mortgagee to realize upon or protect any portion of the
Debt or any collateral security therefor. The lien of this Mortgage shall not in
any manner be impaired or affected by any release (except as to the property
released), sale, pledge, surrender, compromise, settlement, renewal, extension,
indulgence, alteration, changing, modification or disposition of any portion of
the Debt or of any of the collateral security therefor.
27. Intentionally Omitted.
28. Intentionally Omitted.
29. Intentionally Omitted.
30. Intentionally Omitted.
31. Indemnification. (a) In addition, and without limitation, to any other
provision of this Mortgage or any other Loan Document, Mortgagor shall protect,
indemnify and save harmless Mortgagee and its successors and assigns, and their
agents, employees, officers and directors, from and against any and all
liabilities, obligations, claims, damages, penalties, causes of action, costs
and expense (including, without limitation, reasonable attorneys' fees and
disbursements, whether incurred within or outside the judicial process), imposed
upon or incurred by or asserted against Mortgagee and its assigns, or any of
their agents, employees, officers or directors, by reason of (a) ownership of
this Mortgage, the Assignment of Lease, the Property or any part thereof or any
interest therein or receipt of any Rents; (b) any accident, injury to or death
of any person or loss of or damage to property occurring in, on or about the
Property or any part thereof or on the adjoining sidewalks, curbs, parking
areas, streets or ways; (c) any use, nonuse or condition in, on or about, or
possession, alteration, repair, operation, maintenance or management of, the
Property or any part thereof or on the adjoining sidewalks, curbs, parking
areas, or ways; (d) any failure on the part of Mortgagor to perform or comply
with any of the terms of this Mortgage or the Assignment of Lease; (e)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Property or any part thereof; (f) 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 Property or any
part thereof; (g) any Taxes or Other Charges including, without limitation, any
Taxes or Other Charges attributable to the execution, delivery, filing, or
recording of any Loan Document, Lease or memorandum thereof; (h) any lien or
claim arising on or against the Property or any part thereof under any Legal
Requirement or any liability asserted against Mortgagee with respect thereto; or
(i) the claims of any lessee or any Person acting through or under any lessee or
otherwise arising under or as a consequence of any Lease. Notwithstanding the
foregoing provisions of this Section 31 to the contrary, Mortgagor shall have no
obligation to indemnify Mortgagee pursuant to this Section 31 for liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(1) which result from Mortgagee's, and its successors' or assigns' willful
misconduct or gross negligence or, (2) which are attributable to acts or events
which occur after the payment in full of the Debt or earlier termination of this
Mortgage (except to the extent fairly attributable to acts or events or
liabilities or damages occurring or accruing prior thereto and except as may be
provided in any other Loan Document), (3) resulting from a transfer by Mortgagee
of all or any part of its interest in this Mortgage, the Note, the other Loan
Documents or the Property, other than any such transfer either required by this
Mortgage or any other Loan Document or made while an Event of Default shall have
occurred and be continuing, (4) for Mortgagee's income franchise, net revenue,
capital levy, estate, inheritance or succession taxes and (5) which arise under
or are connected to the Securities Act or any other securities laws, rules or
regulations. Mortgagee shall credit against any payments due under this Section
31 any insurance recoveries actually received by beneficiary in respect of the
related claim under or from insurance paid for by Mortgagor or assigned to
Mortgagee by Mortgagor.
(b) In the event that any action, suit or proceeding shall be brought
against Mortgagee for which Mortgagee is indemnified herein, Mortgagee shall
notify Mortgagor of the commencement thereof, and Mortgagor shall be entitled,
at its sole cost and expense, acting through counsel reasonably acceptable to
Mortgagee, to participate in, and, to the extent that Mortgagor desires to,
assume and control the defense thereof; provided, however, that Mortgagor shall
have acknowledged in writing its obligation to fully indemnify Mortgagee
hereunder in respect of such action, suit or proceeding, and, provided further,
that Mortgagor shall not be entitled to participate in the defense of any such
action, suit or proceeding if (i) in the reasonable opinion of Mortgagee,
(x) such action, suit or proceeding involves any risk of imposition of
criminal liability or any risk of civil liability on Mortgagee or will involve a
risk of the sale, forfeiture or loss of, or the creation of any lien (other than
a Permitted Encumbrance) on the Property or any part thereof unless Mortgagor
shall have posted a bond or other security satisfactory to Mortgagee in respect
to such risk except with respect to any risk of imposition of criminal liability
on Mortgagee as to which Mortgagor shall not be entitled to so participate, (y)
the control of such action, suit or proceeding would involve a bona fide
conflict of interest or (z) such action, suit or proceeding involves claims,
obligations, costs or expenses which exceed an amount equal to the product of
(A) $40,000,000 and (B) a fraction, the numerator of which is (1) the aggregate
Initial Allocated Loan Amounts less (2) the aggregate Initial Allocated Loan
Amounts of all Properties which have been Released from the liens of the
Mortgages as of the date of such determination, and the denominator of which is
the aggregate Initial Allocated Loan Amounts (which amount is herein referred to
as the "Litigation Threshold"), (ii) such proceeding involves claims,
obligations, costs or expenses not fully indemnified by Mortgagor which
Mortgagor and Mortgagee have been unable to sever from the indemnified claim(s),
(iii) an Event of Default has occurred and is continuing, (iv) such action, suit
or proceeding involves matters which are unrelated to the overall transaction
contemplated by this Mortgage and the other Loan Documents and if determined
adversely could be detrimental to the interests of Mortgagee notwithstanding
indemnification by Mortgagor. Mortgagee may participate in a reasonable manner
at its own expense and with its own counsel in any proceeding conducted by
Mortgagor in accordance with the foregoing. The party controlling any such
action, suit or proceeding shall keep the other party or parties hereto fully
informed of the status of any such proceeding.
(c) In the event that, pursuant to Subsection (b)(i)(z) of this Section 31,
Mortgagor is not entitled to assume and control the defense of any such action,
suit or proceeding, Mortgagor shall be permitted to assume and control such
defense if Mortgagor either (i) delivers to Mortgagee an opinion letter from
counsel reasonably acceptable to Mortgagee or a certificate or opinion from such
other Person as shall be acceptable to Mortgagee that, in such counsel's or
other Person's opinion, there is no reasonable likelihood that (A) the claimant
would prevail on such action, suit or proceeding or (B) Mortgagee's potential,
uninsured liability would not exceed the Litigation Threshold, which opinion or
certificate shall be in form and substance satisfactory to Mortgagee or (ii)
Mortgagor executes and delivers an agreement with Mortgagee, in form and
substance satisfactory to Mortgagee, that Mortgagor's liability for fully
indemnifying Mortgagee in respect of such action, suit or proceeding shall be a
recourse obligation of Mortgagor not subject to the provisions of Section 50
hereof.
(d) Each of Mortgagor and Mortgagee shall, at Mortgagor's sole cost and
expense, make available to the other party such information and documents
reasonably requested by the other party as are necessary or advisable for the
other party to participate in any action, suit or proceeding to the extent
permitted by this Section 31. Unless an Event of Default shall have occurred and
be continuing, Mortgagee shall not enter into any settlement or other compromise
with respect to any claim which is entitled to be indemnified under this Section
31 without five (5) days' prior written notice to Mortgagor unless Mortgagee
waives its right to be indemnified under this Section 31 with respect to such
claim. Upon payment in full of any claim by Mortgagor pursuant to this Section
31, to or on behalf of Mortgagee, Mortgagor, without any further action, shall
be subrogated to any and all claims that Mortgagee may have relating thereto
(other than claims in respect of insurance policies maintained by Mortgagee at
its own expense), and Mortgagee shall execute such instruments of assignment and
conveyance, evidence of claims and payment and such other documents, instruments
and agreements as may be reasonably necessary to preserve any such claims and
otherwise cooperate with Mortgagor and give such further assurances as are
reasonably necessary or advisable to enable Mortgagor to pursue such claims
vigorously. Any amount payable to Mortgagee pursuant to this Section 31 shall be
paid by Mortgagor to the indemnified party promptly upon (i) the adverse
determination of such action, suit or proceeding against the indemnified party
if, pursuant to this Section 31, Mortgagor assumed and controlled the defense
thereof, or (ii) Mortgagor's receipt of a written demand therefor from
Mortgagee, accompanied by a written statement describing the basis for such
indemnity and the computation of the amount so payable.
Any amounts payable to Mortgagee by reason of the application of this
Section 31 shall constitute a part of the Debt secured by the Mortgages and
other Loan Documents and shall become immediately due and payable and shall bear
interest at the Default Rate from the date the liability, obligation, claim,
cost or expense is sustained by the indemnified party, until paid. The
provisions of this Section 31 shall survive the termination of this Mortgage and
the other Loan Documents whether by repayment of the Debt, foreclosure or
delivery of a deed in lieu thereof, assignment or otherwise.
32. Notices. All notices, consents, approvals and requests required or
permitted hereunder or under any other Loan Document shall be given in writing
and shall be effective for all purposes if hand delivered or sent by (a)
certified or registered United States mail, postage prepaid, or (b) expedited
prepaid delivery service, either commercial or United States Postal Service,
with proof of attempted delivery, addressed as follows (or at such other address
and person as shall be designated from time to time by any party hereto, as the
case may be, in a written notice to the other parties hereto in the manner
provided for in this Section):
If to Mortgagee:
Nomura Asset Capital Corporation
Two World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
with copies to:
Nomura Asset Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
and:
Nomura Asset Capital Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
If to Mortgagor:
c/o Prime Retail, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
with copies to:
c/o Prime Retail, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: C. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
and
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to Mortgagor:
c/o Horizon Group Properties, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman
with copies to:
c/o Horizon Group Properties, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive
and
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
A notice shall be deemed to have been given: in the case of hand delivery,
at the time of delivery; in the case of registered or certified mail, when
delivered or the first attempted delivery on a Business Day; or in the case of
expedited prepaid delivery, upon the first attempted delivery on a Business Day.
33. 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 mortgage, give, grant, bargain,
sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and assign
the 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.
34. Waiver of Notice. Mortgagor shall not be entitled to any notices of any
nature whatsoever from Mortgagee except with respect to matters for which this
Mortgage or any other Loan Document specifically and expressly provides for the
giving of notice by Mortgagee to Mortgagor and except with respect to matters
for which Mortgagee is required by applicable law to give notice. To the extent
permitted by applicable law, Mortgagor hereby expressly waives the right to
receive any notice from Mortgagee with respect to any matter for which this
Mortgage or other Loan Document does not specifically and expressly provide for
the giving of notice by Mortgagee to Mortgagor.
35. Intentionally Omitted.
36. Sole Discretion of Mortgagee. Wherever pursuant to this Mortgage,
Mortgagee exercises any right given to it to consent or not consent or approve
or disapprove, or any arrangement or term is to be satisfactory to Mortgagee,
the decision of Mortgagee to consent or not consent, to approve or disapprove or
to decide that arrangements or terms are satisfactory or not satisfactory shall
be in the sole discretion of Mortgagee and shall be final and conclusive, except
as may be otherwise expressly and specifically provided herein.
37. Non-Waiver. The failure of Mortgagee to insist upon strict performance
of any term hereof shall not be deemed to be a waiver of any term of this
Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations hereunder
by reason of (a) the failure of Mortgagee to comply with any request of
Mortgagor to take any action to foreclose this Mortgage or otherwise enforce any
of the provisions hereof or of the Note, or any of the other Loan Documents, (b)
except in connection with the release of this Mortgage or the full repayment (or
complete defeasance) of the Debt, the release, regardless of consideration, any
collateral securing the Debt or of any person other than Mortgagor 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 foreclose 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 except as such rights may
be expressly limited herein or in the other Loan Documents.
38. 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.
39. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Mortgagee's consent to any
transfer of the Property, this Mortgage shall be binding upon and inure to the
benefit of Mortgagor and Mortgagee and their respective successors and assigns
forever.
40. 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.
41. 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.
42. 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.
43. 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 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, the words "Property" shall include any portion of the Property and any
interest therein which has not been released from the lien of this Mortgage and
the words "attorneys' fees" shall include any and all recorded 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 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.
44. 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 Property as against the collection of the Debt,
or any part hereof.
45. Assignments. Mortgagee shall have the right to assign or transfer its
rights under this Mortgage provided that no such assignment or transfer shall
increase, decrease or otherwise affect Mortgagor's obligations under this
Mortgage or the other Loan Documents. Any assignee or transferee shall be
entitled to all the benefits afforded Mortgagee under this Mortgage.
46. Waiver of Jury Trial. MORTGAGOR AND, BY ITS ACCEPTANCE HEREOF,
MORTGAGEE, EACH 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 PARTY IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY THE OTHER PARTY.
47. Miscellaneous. (a) 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, and the failure of Mortgagee to
promptly exercise any right, power, remedy, consent or approval provided herein
or at law or in equity shall not constitute or be construed as a waiver of the
same nor shall Mortgagee be estopped from exercising such right, power, remedy,
consent or approval at a later date. Any consent or approval requested of and
granted by Mortgagee pursuant hereto shall be narrowly construed to be
applicable only to the Person and the matter identified in such consent or
approval and no third party shall claim any benefit by reason thereof, and any
such consent or approval shall not be deemed to constitute Mortgagee a venturer
or partner with Mortgagor nor shall privity of contract be presumed to have been
established with any such third party. If Mortgagee deems reasonably necessary
to retain assistance of persons, firms or corporations (including, without
limitation, attorneys, title insurance companies, appraisers, engineers and
surveyors) with respect to a request for consent or approval, Mortgagor shall
reimburse Mortgagee for all costs reasonably incurred in connection with the
employment of such persons, firms or corporations.
(b) Mortgagor covenants and agrees that during the term of this Mortgage,
unless Mortgagee shall have previously consented in writing, (i) Mortgagor will
take no action that would cause it to become an "employee benefit plan" as
defined in 29 C.F.R. Section 2510.3-101, or "assets of a governmental plan"
subject to regulation under the state statutes, and (ii) Mortgagor will not
sell, assign or transfer the Property, or any portion thereof or interest
therein, to any transferee that does not execute and deliver to Mortgagee its
written assumption of the obligations of this covenant.
(c) 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.
48. Defeasance; Release of this Mortgage. This Mortgage will be satisfied
and discharged of record by Mortgagee in accordance with the terms and
provisions set forth in Sections 2.3 and 2.4 of the Loan Agreement.
49. No Election of Remedies. (a) Without limiting any other right or
remedy provided to Mortgagee in this Mortgage or the other Loan Documents, in
the case of an Event of Default (i) Mortgagee shall have the right to pursue all
of its rights and remedies under this Mortgage and the Loan Documents, at law
and/or in equity, in one proceeding, or separately and independently in separate
proceedings from time to time, as Mortgagee, in its sole and absolute
discretion, shall determine from time to time, (ii) Mortgagee shall not be
required to either ▇▇▇▇▇▇▇▇ assets, sell the Property in any particular order of
alienation (and may sell the same simultaneously and together or separately), or
be subject to any "one action" or "election of remedies" law or rule with
respect to the Property, (iii) the exercise by Mortgagee of any remedies against
any one item of Property will not impede Mortgagee from subsequently or
simultaneously exercising remedies against any other item of Property, (iv) all
liens and other rights, remedies or privileges provided to Mortgagee herein
shall remain in full force and effect until Mortgagee has exhausted all of its
remedies against the Property and all Property has been foreclosed, sold and/or
otherwise realized upon in satisfaction of the Debt, and (v) Mortgagee may
resort for the payment of the Debt to any security held by Mortgagee in such
order and manner as Mortgagee, in its discretion, may elect and 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
foreclose this Mortgage.
(b) Without notice to or consent of Mortgagor and without impairment of the
lien and rights created by this Mortgage, Mortgagee may, at any time (in its
sole and absolute discretion, but Mortgagee shall have no obligation to),
execute and deliver to Mortgagor a written instrument releasing and reconveying
all or a portion of the lien of this Mortgage as security for any or all of the
obligations of Mortgagor now existing or hereafter arising under or in respect
of the Note, the Loan Agreement and each of the other Loan Documents, whereupon
following the execution and delivery by Mortgagee to Mortgagor of any such
written instrument of release, this Mortgage shall no longer secure such
obligations of Mortgagor so released.
50. Exculpation. [Notwithstanding anything herein to the contrary,
Mortgagee shall not enforce the liability and obligations contained in the Note,
the Loan Agreement, this Mortgage or the other Loan Documents except as provided
in Section 9.4 of the Loan Agreement.][THIS PARAGRAPH WILL BE DELETED FOR BRIDGE
LOAN MORTGAGES]
51. Governing Law. WITH RESPECT TO MATTERS RELATING TO THE CREATION,
PERFECTION AND PROCEDURES RELATING TO THE ENFORCEMENT (INCLUDING NON-JUDICIAL
FORECLOSURE OF LIENS) OF THIS MORTGAGE, THIS MORTGAGE SHALL BE GOVERNED BY, AND
BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF. IT IS UNDERSTOOD
THAT, EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS PARAGRAPH AND TO THE FULLEST
EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF ILLINOIS
SHALL GOVERN ALL MATTERS RELATING TO THIS MORTGAGE AND THE OTHER LOAN DOCUMENTS
AND ALL OF THE INDEBTEDNESS OR OBLIGATIONS ARISING HEREUNDER OR THEREUNDER.
MORTGAGOR, AND, BY ITS ACCEPTANCE HEREOF, MORTGAGEE, EACH HEREBY SUBMITS TO
PERSONAL JURISDICTION IN THE STATE OF ILLINOIS AND THE FEDERAL COURTS OF THE
UNITED STATES OF AMERICA LOCATED IN THE STATE OF ILLINOIS (AND ANY APPELLATE
COURTS TAKING APPEALS THEREFROM) FOR THE ENFORCEMENT OF SUCH PARTY'S OBLIGATIONS
HEREUNDER AND WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY OTHER
STATE TO OBJECT TO JURISDICTION WITHIN SUCH STATE FOR THE PURPOSES OF SUCH
ACTION, SUIT, PROCEEDING OR LITIGATION TO ENFORCE SUCH OBLIGATIONS OF SUCH
PARTY. MORTGAGOR, AND, BY ITS ACCEPTANCE HEREOF, MORTGAGEE, EACH HEREBY WAIVES
AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS MORTGAGE (A) THAT IT IS NOT SUBJECT TO SUCH
JURISDICTION OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS
NOT MAINTAINABLE IN THOSE COURTS OR THAT THIS MORTGAGE MAY NOT BE ENFORCED IN OR
BY THOSE COURTS OR THAT IT IS EXEMPT OR IMMUNE FROM EXECUTION, (B) THAT THE
ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR (C) THAT THE
VENUE OF THE ACTION, SUIT OR PROCEEDING IS IMPROPER. IN THE EVENT ANY SUCH
ACTION, SUIT, PROCEEDING OR LITIGATION IS COMMENCED, MORTGAGOR, AND, BY ITS
ACCEPTANCE HEREOF, MORTGAGEE, EACH AGREES THAT SERVICE OF PROCESS MAY BE MADE,
AND PERSONAL JURISDICTION OVER SUCH PARTY OBTAINED, BY SERVICE OF A COPY OF THE
SUMMONS, COMPLAINT AND OTHER PLEADINGS REQUIRED TO COMMENCE SUCH LITIGATION BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED UPON SUCH PARTY AT THE APPLICABLE
ADDRESS SET FORTH IN SECTION 32 ABOVE. MORTGAGOR, AND, BY ITS ACCEPTANCE HEREOF,
MORTGAGEE, EACH HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING RELATED TO THE ENFORCEMENT OF THIS MORTGAGE.
52. Declaration of Subordination. At the option of Mortgagee, this Mortgage
shall become subject and subordinate, in whole or in part (but not with respect
to priority of entitlement to insurance proceeds or any condemnation proceeds),
to any and all leases of all or any part of the Property upon the execution by
Mortgagee and recording thereof, at any time hereafter in the appropriate
official records of the County wherein the Property are situated, of a
unilateral declaration to that effect.
53. State Specific Rider. The provisions of the State Specific Rider
attached hereto as Exhibit B are hereby incorporated herein by reference.
IN WITNESS WHEREOF, Mortgagor has executed this instrument the day and year
first above written.
[_________________________], a Delaware [____________]
By: Prime Retail, L.P., a Delaware limited partnership, its
[_________]
By: Prime Retail, Inc., a Maryland corporation, its
general partner
By:________________________________
Name:
Title:
STATE OF )
) ss.:
COUNTY OF )
This instrument has been acknowledged before me on this _____ day of
, 1998, by ____________, the __________ of Prime Retail, Inc., a
Maryland corporation, in its capacity as the general partner of Prime Retail,
L.P., a Delaware limited partnership, in its capacity as _______________ of
_____________________ on behalf of such entity.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal of office
this ____ day of , 1998.
_____________________________
Notary Public
[Notarial Seal]
EXHIBIT A
Legal Description
EXHIBIT B
Rider