[This Space For Recording Use only]
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MORTGAGE,
SECURITY AGREEMENT AND FINANCING
STATEMENT (INCLUDING FIXTURE FILING)
Dated as of December 15, 2004
between
REXUS L.L.C.,
as Mortgagee
and
ITT INDUSTRIES, INC.,
as Mortgagor
LOCATION OF SECURITY PROPERTY:
Street Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: Passaic
Block: 83.01
Lot: 1.01
Record and Return to:
▇▇▇▇▇ Day
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
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[This Space For Recorder's Use Only]
MORTGAGE, SECURITY AGREEMENT AND
FINANCING STATEMENT (INCLUDING FIXTURE FILING)
THIS MORTGAGE, SECURITY AGREEMENT AND FINANCING STATEMENT (INCLUDING
FIXTURE FILING), dated as of December 15, 2004 (this "Mortgage"), between REXUS
L.L.C., a Delaware limited liability company with an address at c/o Societe
Generale, (Canada), as Lessor Administrator, 1501 ▇▇▇▇▇▇ College, Bureau ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ as the Mortgagee (the "Mortgagee"), and ITT
INDUSTRIES, INC., an Indiana corporation, with an address at ▇ ▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as Mortgagor (the "Mortgagor"). For purposes
of this Mortgage, capitalized terms used herein and not otherwise defined herein
or in Schedule IV hereto shall have the meanings assigned to them in Appendix A
to the Master Lease (as defined below), and the rules of interpretation set
forth in such Appendix A shall apply to this Mortgage.
WHEREAS, pursuant to a Participation Agreement, dated as of the date
hereof (as amended, supplemented, amended and restated or otherwise modified
from time to time, the "Participation Agreement"), among the Mortgagee, the
Mortgagor, and the Investors named therein, the Investors and the Mortgagee have
agreed to finance the acquisition from Mortgagor of the six properties
identified in the Operative Documents (the "Other Properties");
WHEREAS, Mortgagee and Mortgagor have executed that certain Master Lease
and Deed of Trust, Deed to Secure Debt and Mortgage dated as of the date hereof
(the "Master Lease"), as supplemented by that certain Lease Supplement, dated as
of the date hereof (the "Related Lease Supplement"), pursuant to which the
Mortgagee leased to the Mortgagor the Other Properties which term includes all
Improvements thereon and all other improvements now located or which hereafter
may be constructed thereon and all Appurtenant Rights with respect thereto;
WHEREAS, all Obligations of Mortgagor to Mortgagee and the Investors under
the Master Lease and the other Operative Documents are personal, full recourse
obligations of Mortgagor;
WHEREAS, Mortgagor is the sole owner of the land described in Schedule I
hereto and all buildings and improvements located or to be located thereon and
all Appurtenant Rights with respect thereto and all equipment (the "Subject
Property");
WHEREAS, pursuant to the Participation Agreement, the Master Lease and the
other Operative Documents, Mortgagor has agreed to deliver to Mortgagee this
Mortgage for the purpose of securing all Obligations of Mortgagor to Mortgagee
under the Participation Agreement, the Master Lease and the other Operative
Documents; and
WHEREAS, Mortgagee's receipt of this Mortgage is a requirement and
precondition of the Participation Agreement and the other Operative Document:
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Grant of Mortgage Lien and Security Interest: Assignment of
Rents. To secure to the Mortgagee the payment and performance of the Obligations
for a principal amount not to exceed One Hundred Sixty Five Million and 00/100
US Dollars ($165,000,000.00), which is the maximum amount of principal
indebtedness secured hereby, together with all interest, expenses and other sums
which may from time to time become due and payable to the Mortgagee under the
Operative Documents or by reason of the exercise of its rights and remedies
under this Mortgage or any of the Operative Documents:
(a) The Mortgagor does hereby mortgage, grant, bargain, sell,
convey, assign, transfer and set over to the Mortgagee, with
power of sale, to the extent permitted by Applicable Law: (i)
all of the Mortgagor's right, title and interest in the
Subject Property, all condemnation and insurance proceeds
relative to the subject property and all profits as described
below; and (ii) all of the Mortgagor's right, title and
interest in and to all proceeds of the conversion, whether
voluntary or involuntary, of any of the above-described
property into cash or other liquid claims, including, without
limitation, all awards, payments or proceeds, including
interest thereon, and the right to receive the same, which may
be made as a result of casualty, any exercise of the right of
eminent domain or deed in lieu thereof, the alteration of the
grade of any street and any injury to or decrease in the value
thereof, the foregoing being referred to hereinafter as the
"Security Property".
TO HAVE AND TO HOLD the Security Property, subject however to
Permitted Property Liens (which shall include the items set
forth on Schedule II), unto the Mortgagee, its successors and
assigns forever.
(i) Protective Advances. The Mortgagee shall have the right,
but not the obligation, to make protective advances with
respect to the Security Property for the payment of
taxes, assessments, insurance premiums or costs incurred
for the protection of the Security Property, and such
protective advances, together with interest thereon at
the Overdue Rate from the date of each such advance
until it is repaid in full, shall be secured by this
Mortgage to the
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fullest extent and with the highest priority
contemplated by Applicable Law.
(ii) Mortgage. The Mortgagor and the Mortgagee intend that
this Mortgage shall secure Mortgagor's obligation to
repay the unpaid balance of advances made by the
Mortgagee and/or the holder hereof under the Master
Lease and other Operative Documents to the fullest
extent and with the highest priority contemplated by
applicable law. The obligations secured hereby shall
include, without limitation, all Basic Rent, Accrual
Rent and Fixed Rent as well as all Supplemental Rent due
from Mortgagor under the Master Lease. The maximum
amount of advances, exclusive of interest thereon
(whether or not identified as interest and including
specifically all Accrual Rent under the Master Lease),
and exclusive of advances made for the payment of real
estate taxes, assessments, insurance premiums and costs
incurred for the protection of the Security Property,
all of which are also secured by this Supplement, which
may be outstanding at any time is One Hundred Sixty Five
Million and 00/100 Dollars ($165,000,000.00).
(b) The Mortgagor hereby grants to the Mortgagee a security
interest in the Mortgagor's interest in that portion of the
Security Property (the "UCC Property") subject to the Uniform
Commercial Code of the State of New Jersey (the "UCC"). This
Mortgage shall also be deemed to be a security agreement and
shall support any financing statement showing the Mortgagee's
interest as a secured party with respect to any portion of the
UCC Property described in such financing statement. The
Mortgagor agrees, at its sole cost and expense, to execute,
deliver and file from time to time such further instruments as
may be requested by the Mortgagee to confirm and perfect the
lien of the security interest in the collateral described in
this Mortgage.
(c) The Mortgagor hereby irrevocably assigns, conveys, transfers
and sets over unto the Mortgagee all and every part of the
rents, issues and profits (collectively, the "Profits") that
may from time to time become due and payable on account of any
and all subleases or other occupancy agreements now existing,
or that may hereafter come into existence with respect to the
Subject Property or any part thereof, including any guaranties
of such sublease or occupancy agreements (collectively, the
"Subleases") provided, that, unless a Lease Event of Default
is continuing, the Mortgagor shall have the right to collect
and retain such Profits. Upon request of the Mortgagee, the
Mortgagor shall execute and cause to be recorded, at its
expense, supplemental or additional assignments of any
Subleases of the Subject Property. Upon the occurrence and
during the continuance of a Lease Event of Default, the
Mortgagee is hereby fully authorized and empowered in its
discretion (in addition to all other powers and rights herein
granted), to apply for and collect and receive all such
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Profits and enforce such guaranty or guaranties, and all money
so received under and by virtue of this assignment shall be
applied as further security for the payment and performance of
the Obligations secured hereby.
(d) Notwithstanding that this Mortgage is an absolute assignment
of the Profits and the Subleases and not merely the collateral
assignment of, or the grant of a lien or security interest in,
the Profits and the Subleases, the Mortgagee grants to the
Mortgagor a revocable license to collect and receive the
Profits and to retain, use and enjoy such Profits. Such
license shall be automatically revoked upon the occurrence and
during the continuance of any Lease Event of Default.
(e) It is intended that this Mortgage shall be a Lessor Mortgage
and that the Subject Property be a Security Property and a
Property as those terms are defined in the Participation
Agreement and the other Operative Documents and that all terms
covenants conditions and requirements of said Operative
Documents applicable thereto shall apply to the Subject
Property including without limitation those relating to sale,
lease or further encumbrance of any Property.
SECTION 2. Remedies. (a) Upon the occurrence and during the continuance of
a Lease Event of Default each of which is also a default under this Mortgage,
the Mortgagee may exercise any one or more of the following rights and remedies
as it, in its sole discretion, may deem necessary or appropriate:
(i) collect interest on all past due sums at the Overdue
Rate;
(ii) terminate the Master Lease and, either in person or by
agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and
without regard to the adequacy of security, enter upon
and take possession of the Security Property, or any
part thereof, in its own name, and do any acts which it
deems necessary or desirable to preserve the value,
marketability or rentability of the Security Property,
or any part thereof or interest therein, to increase the
income therefrom or to protect the security hereof and,
with or without taking possession of the Security
Property, to ▇▇▇ for or otherwise to collect the Profits
thereof, including, without limitation, those past due
and unpaid, and to apply the same, less costs and
expenses of operation and collection, including, without
limitation, reasonable attorneys' fees, upon any
Obligations secured hereby, all in such order as the
Mortgagee may determine. The entering upon and taking
possession of the Security Property, and the collection
of such Profits and the application thereof as
aforesaid, shall not cure or waive any Lease Event of
Default or notice of a Lease Event of Default hereunder
or invalidate any act done in response to such Lease
Event of Default and, notwithstanding the continuance in
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possession of the Mortgagee or the collection, receipt
and application of Profits by the Mortgagee, the
Mortgagee shall be entitled to exercise every right
provided for herein or by law upon the occurrence and
during the continuance of any Lease Event of Default,
including, without limitation, the right to exercise the
power of sale;
(iii) declare all Obligations and sums secured hereby
immediately due and payable by delivery to the Mortgagor
of written declaration of the occurrence and continuance
of a Lease Event of Default and to the extent permitted
by Applicable Law, conduct a non-judicial foreclosure by
power of sale;
(iv) foreclose this mortgage in the manner provided by
Applicable Law for the foreclosure of mortgages on real
property;
(v) whether or not a judicial or non-judicial foreclosure
has been commenced, declare immediately due and payable
without notice or demand, except as otherwise required
hereunder or under Applicable Law, all amounts payable
by the Mortgagor hereunder or under the other Operative
Documents which are then unpaid, with all interest and
sums accrued and accelerate payment thereof
notwithstanding contrary terms of payment stated therein
and exercise all other rights and remedies available
hereunder, under Applicable Law, in equity or otherwise;
(vi) without regard to the adequacy of its security or the
then value of the Security Property or the interest of
the Mortgagor therein, apply to any court having
jurisdiction to appoint a receiver or receivers of the
Security Property and the Mortgagor hereby irrevocably
consents to such appointment and, to the extent
permitted by Applicable Law, waives notice of any
application therefor. Any such receiver or receivers
shall have all the usual powers and duties of receivers
in like or similar cases and all the powers of the
Mortgagee provided for herein, and shall continue as a
receiver and exercise all such powers until the date of
confirmation of sale of the Security Property unless
such receivership is sooner terminated by the Mortgagee
in its sole discretion or as a court of competent
jurisdiction shall direct.
Upon the occurrence and during the continuance of a Lease
Event of Default, the Mortgagee shall be entitled to enforce
payment and performance of any Obligations secured hereby and
to exercise all rights and powers hereunder or any laws now or
hereafter in force notwithstanding that some or all of said
Obligations secured hereby may now or hereafter be otherwise
secured, whether by mortgage, deed of trust, pledge, lien,
assignment or otherwise. To the extent permitted by
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Applicable Law, neither the acceptance nor the enforcement
hereof, whether by court action or pursuant to the power of
sale or other powers herein contained, shall prejudice or in
any manner affect the Mortgagee's right to realize upon or
enforce any other security now or hereafter held by the
Mortgagee and, to the extent permitted by Applicable Law, the
Mortgagee shall be entitled to enforce the rights and remedies
provided for herein and any other security now or hereafter
held by the Mortgagee in such order and manner as it may in
its absolute discretion determine. No remedy conferred upon or
reserved to the Mortgagee is intended to be exclusive of any
other remedy, but each shall be cumulative and shall be in
addition to every other remedy given hereby or now or
hereafter existing at law or in equity or by statute. To the
extent permitted by Applicable Law, every power or remedy
given hereby to the Mortgagee or to which the Mortgagee may be
otherwise entitled, may be exercised, concurrently or
independently, from time to time and as often as may be deemed
expedient by the Mortgagee, and the Mortgagee may pursue
inconsistent remedies.
(b) Upon the occurrence and during the continuance of a Lease
Event of Default, the Mortgagee, in addition to and not in
lieu of or in diminution of the rights and remedies provided
above shall have all of the rights and remedies of a secured
party under the UCC, which rights and remedies may be
exercised without application to any court to the extent
permitted by the UCC.
SECTION 3. Applicable Law; Certain Particular Provisions. This Mortgage
shall be governed by and construed in accordance with the laws of the State of
New Jersey ("Applicable Law") and each of the Mortgagee and the Mortgagor agree
to submit to jurisdiction and the laying of venue for any suit on this Mortgage
in such state. The terms and provisions set forth in Schedule III attached
hereto are hereby incorporated by reference as though fully set forth herein. In
the event of any conflict between the terms and provisions contained in the body
of this Mortgage and the terms and provisions set forth in Schedule III, the
terms and provisions set forth in Schedule III shall govern and control.
SECTION 4. Satisfaction of the Mortgage, Security Interest and Assignment
of Rents and Subleases. If the Mortgagor complies with the provisions of this
Mortgage and irrevocably pays and performs (to the reasonable satisfaction of
Mortgagor) all of the Obligations secured hereby, in accordance with the
provisions of the Master Lease, and the other Operative Documents and in the
manner and at the times set forth therein, without deduction, fraud or delay,
then and from thenceforth this Mortgage and the estate hereby granted and
created in favor of the Mortgagee, shall cease and become void, anything
hereinbefore contained to the contrary notwithstanding.
SECTION 5. Maximum Interest Rate. No provision of this Mortgage or any
transaction related thereto shall require the payment or permit the collection
of interest or any other amount in excess of the maximum permitted by Applicable
Law. If any excess of interest or any other amount in such respect is herein or
any other Operative Document provided for, the Mortgagor
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shall not be obligated to pay such excess interest or any other amounts in
excess of the amount permitted by applicable law, and the right to demand the
payment of any such excess shall be and hereby is waived, and this provision
shall control any other provision of this Mortgage and the other Operative
Documents.
SECTION 6. Security Agreement and Fixture Financing Statement. This
Mortgage is both a real property mortgage and a "security agreement" within the
meaning of the UCC. The Subject Property includes both real and personal
property and all other rights and interests, whether tangible or intangible in
nature, of Mortgagee in the Subject Property. Mortgagor has herein granted to
Mortgagee, as security for the Obligations, a security interest in the UCC
Property to the full extent that the UCC Property may be subject to the UCC. The
information contained in this Section 6 is provided in order that this Mortgage
shall comply with the requirements of the UCC for mortgages to be effective as
financing statement filed as a fixture filing. The name of the "debtor" is ITT
INDUSTRIES, INC.; the name of the "secured party" is REXUS L.L.C.; the mailing
address of the "secured party" from which information concerning the security
interest may be obtained and the mailing address of the "debtor" are as set
forth in Schedule V hereto. The types, or the items, of collateral covered
hereby consist of the UCC Property identified in Section 1 which constitute
fixtures or personal property. The Mortgagee is the record owner of the Land.
SECTION 7. Notices. For purposes of this instrument as a fixture filing,
and for all other purposes, unless otherwise specifically provided herein, all
notices, offers, acceptances, rejections, consents, requests, demands or other
communications to or upon the respective parties hereto shall be in writing and
shall be given in the manner set forth in Section 26.4 of the Master Lease and
delivered to Mortgagor or Mortgagee at the addresses set forth above.
[Signature Block on Following Page]
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IN WITNESS WHEREOF, the Mortgagor has caused this Mortgage to be duly
executed by an officer thereunto duly authorized as of the date and year first
above written.
ITT INDUSTRIES, INC., as Mortgagor
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President, Treasurer and
Director of Tax
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Schedule I
Legal Description
Commencing at a point on the westerly side of River Road (55 feet wide), 30 feet
from the centerline of previous 50 ft. R.O.W., said point being the dividing
line between Block 83.01 Lot 4 and Block 83.01 Lot 1.01 and running the
following courses and distances; thence
Section 1. Along the dividing line between Block 83.01 Lot 1.01 and Block 83.01
▇▇▇ ▇ ▇▇▇▇▇ ▇▇ degrees 00'57" East a distance of 5.20 feet to the Point
of Beginning; thence
A. South 05 degrees 05'53" West, a distance of 84.32 feet; thence
B. South 06 degrees 35'47" East, a distance of 143.14 feet; thence
C. South 11 degrees 26'17" East, a distance of 103.17 feet; thence
D. North 87 degrees 33'42" West, a distance of 418.94 feet; thence
E. South 25 degrees 25'19" West, a distance of 193.71 feet; thence
F. North 87 degrees 33'42" West, a distance of 170.64 feet; thence
G. North 64 degrees 34'55" West, a distance of 163.25 feet; thence
H. North 87 degrees 33'42" West, a distance of 190.32 feet; thence
I. South 08 degrees 24'41" West, a distance of 112.10 feet; thence
J. North 81 degrees 21'01" West, a distance of 51.42 feet; thence
K. South 08 degrees 58'57" West, a distance of 11.07 feet; thence
L. North 81 degrees 06'09" West, a distance of 204.71 feet; thence
M. North 05 degrees 22'50" West, a distance of 193.17 feet; thence
N. South 85 degrees 10'45" West, a distance of 181.84 feet; thence
O. North 50 degrees 31'04" West, a distance of 79.81 feet; thence
P. North 21 degrees 43'47" West, a distance of 350.63 feet; thence
Q. North 04 degrees 55'42" West, a distance of 95.18 feet; thence
R. North 00 degrees 00'51" East, a distance of 299.57 feet; thence
S. South 89 degrees 59'09" East, a distance of 78.00 feet; thence
T. North 00 degrees 00'51" East, a distance of 25.00 feet; thence
U. South 89 degrees 59'09" East, a distance of 374.44 feet; thence
V. South 74 degrees 48'47" East, a distance of 87.22 (Survey) 86.15 (Deed)
feet; thence
W. South 72 degrees 56'47" East, a distance of 262.88 feet; thence
X. South 67 degrees 53'17" East, a distance of 129.78 feet; thence
Y. South 58 degrees 23'37" East, a distance of 293.48 feet; thence
Z. South 69 degrees 00'57" East, a distance of 527.06 feet to the Point
of Beginning.
Encompassing an area of 1,131,200 sf or 25.969 Acres.
Schedule II
Additional Permitted Property Liens
None
Schedule III
Local Law Provisions
1. Warranty of Title. At the time of the recordation of this Mortgage,
Mortgagor is well seized of an indefeasible estate in fee simple in the portion
of the Security Property which constitutes real property and owns good title to
the portion of the Security Property which constitutes personal property, and
Mortgagor has good right, full power and lawful authority to convey, mortgage
and grant a security interest therein and to assign any Rents due Mortgagor
relative to the Security Property. Said title of Mortgagor in the Security
Property is free and clear of all liens, charges, easements, covenants,
conditions, restrictions and encumbrances whatsoever, other than liens expressly
permitted under the Loan Agreement, including, as to the personal property and
fixtures, security agreements, conditional sales contracts and anything of a
similar nature. Mortgagor shall and will forever defend the title to the
Security Property against the claims of all persons whomsoever.
2. Mortgage Taxes. In the event of the passage of any federal, state or
local governmental law, order, rule or regulation subsequent to the date hereof
which changes or modifies in any manner the laws now in force governing the
taxation of mortgages or debts secured by mortgages or the manner of collecting
taxes so as to materially and adversely affect Mortgagee, all sums secured by
this Mortgage and all interest accrued thereon shall become due forthwith at the
option of Mortgagee and be payable 60 days after notice to Mortgagor.
Notwithstanding the foregoing, instead of paying all the sums secured by this
Mortgage and all interest accrued thereon as provided above, Mortgagor shall
have the right to pay to Mortgagee an amount which will place Mortgagee in
exactly the same position Mortgagee would have been in had the events outlined
above not occurred, provided, however, if such payment may, in Mortgagee's
judgment, be considered unlawful by a court of competent jurisdiction, then such
payment may not be made and all sums secured by this Mortgage and all interest
accrued thereon shall become due forthwith at the option of Mortgagee and
payable 60 days after notice to Mortgagor as aforesaid.
3. No Tax Credits. Mortgagor shall not claim or demand or be entitled to
receive any credit or credits on any principal or interest payable with respect
to any Obligations, for so much of the taxes, assessments or similar charges
assessed against the Security Property, or any part thereof, as are applicable
to the Obligations or to Mortgagee's interest in the Security Property. No
deduction shall be claimed from the taxable value of the Security Property or
any part thereof by reason of the Obligations or this Mortgage.
4. Further Assurances; After Acquired Property. At any time and from time
to time, upon request from Mortgagee, Mortgagor shall make, execute and deliver,
or cause to be made, executed and delivered, to Mortgagee and, where
appropriate, to cause to be recorded or filed, or both, and from time to time
thereafter to be re-recorded or refiled, or both, at such time and in such
offices and places as shall be deemed desirable by Mortgagee, any and all such
other and further mortgages, security agreements, financing statements,
continuation statements, instruments of further assurances, certificates and
other documents as may, in the opinion of
Mortgagee, be necessary or desirable in order to effectuate, complete or
perfect, or to continue and preserve (i) the obligations of the Mortgagor under
this Mortgage and the other Operative Documents, and (ii) the lien and security
interest of this Mortgage as a first and prior lien and security interest upon
all of the Security Property, whether now or hereafter acquired by Mortgagor.
Upon any failure by Mortgagor to so make, execute and deliver each of such
documents after written demand, Mortgagee may make, execute, record, file,
re-record and refile, as appropriate, any and all such mortgages, security
agreements, financing statements, continuation statements, instruments,
certificates and documents for and in the name of Mortgagor, and Mortgagor
hereby irrevocably appoints Mortgagee as its agent and attorney-in-fact in
connection therewith. The lien and security interest hereof will automatically
attach, without further act, to all after-acquired property owned by Mortgagor
attached to or used in connection with the operation of the Security Property or
any part thereof.
5. Receiver. If a Lease Event of Default shall have occurred and be
continuing, Mortgagee, upon application to a court of competent jurisdiction,
shall be entitled as a matter of strict right without notice and without regard
to the occupancy or value of any security for the Obligations or the insolvency
of any party bound for its payment to the appointment of a receiver to take
possession of and to operate the Security Property and to collect and apply the
rents, issues, profits, revenues, awards and other benefits thereof. The
receiver shall have all of the rights and powers to the fullest extent permitted
by law. Mortgagor shall pay to Mortgagee upon demand all of Mortgagee's costs
and expenses, including, without limitation, receiver's fees and expenses and
attorneys' fees and expenses, incurred pursuant to this Section plus interest
thereon accruing at the Default Rate, and all such amounts shall be additional
indebtedness comprising Obligations.
6. Mortgagee's Power of Enforcement. If a Lease Event of Default shall
have occurred and be continuing, Mortgagee may, either with or without entry or
taking possession as herein provided or otherwise, proceed by suit or suits at
law or in equity or by any other appropriate proceeding or remedy (i) to enforce
payment of the Obligations or the performance of any term, covenant, condition
or agreement of this Mortgage or any other right, (ii) to foreclose this
Mortgage and to sell the Security Property as an entirety or otherwise, as
Mortgagee may determine, and (iii) to pursue any other remedy available to it,
including, without limitation, any remedy available to it under any of the
Operative Documents, all as Mortgagee shall deem most effectual for such
purposes. Mortgagee may take action either by such proceedings or by the
exercise of its powers with respect to entry or taking possession, as Mortgagee
may determine. Mortgagee may elect to pursue any one or more or all of the
foregoing.
7. Purchase by Mortgagee. Upon any foreclosure sale, Mortgagee may bid for
and purchase the Security Property and shall be entitled to apply all or any
part of any indebtedness or obligation secured hereby as a credit to the
purchase price.
8. Fees and Expenses; Application of Proceeds of Sale. In any suit to
foreclose the lien hereof, there shall be allowed and included as additional
indebtedness secured hereby (and part of the Obligations) in the decree for
sale, to the extent permitted by law, all costs and expenses which may be paid
or incurred by or on behalf of Mortgagee or the holder of the Notes
for attorneys' fees and expenses, appraiser's fees and expenses, receiver's fees
and expenses, insurance, taxes, outlays for documentary and expert evidence,
costs for preservation of the Security Property, stenographer's charges,
publication cost and costs of procuring all abstracts of title, title searches
and examinations, and similar data and assurances with respect to title as
Mortgagee may deem to be necessary either to prosecute such suit or to evidence
to bidders at any sale which may be had pursuant to such decree the true
condition of the title to or value of the Security Property, or for any other
reasonable purpose. The amount of any such costs and expenses which may be paid
or incurred after the decree for sale is entered may be estimated and the amount
of such estimate may be allowed and included as additional indebtedness secured
hereby (and part of the Obligations) in the decree for sale. In the event of a
foreclosure sale of the Security Property, the proceeds of said sale shall be
applied first to the expenses of such sale and of all proceedings in connection
therewith, including, without limitation, attorneys' fees and expenses, then to
insurance premiums, liens, assessments, taxes and charges, including, without
limitation, utility charges, then to payment of the outstanding principal
balance of any Obligations secured hereby, then to the Remaining Obligations.
9. Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws.
Mortgagor agrees, to the fullest extent permitted by law, that if a Lease Event
of Default occurs hereunder, neither Mortgagor nor anyone claiming through or
under Mortgagor shall or will set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension, homestead or redemption laws now or
hereafter in force, in order to prevent or hinder the enforcement or foreclosure
of this Mortgage, or the absolute sale of the Security Property hereby conveyed,
or the final and absolute putting into possession thereof, immediately after
such sale, of the purchasers thereat, and Mortgagor, for itself and all who may
at any time claim by, through or under it, hereby waives and releases, to the
fullest extent permitted by law, the benefit of all such laws and any and all
rights to have the assets comprised in the security intended to be created
hereby marshalled upon any foreclosure of the lien hereof.
10. Leases. Mortgagee, at its option, is authorized to foreclose this
Mortgage subject to the rights of any tenants of the Security Property, or to
name said tenants in the foreclosure, and the failure to make such tenants
parties to any such foreclosure proceedings and to foreclose their rights will
not be, nor be asserted to be by Mortgagor, a defense to any proceedings
instituted by Mortgagee to collect the sums secured hereby, or any deficiency
remaining unpaid after the foreclosure sale of the Security Property.
11. Discontinuance of Proceedings and Restoration of the Parties. In case
Mortgagee shall have proceeded to enforce any right, power or remedy under this
Mortgage by foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to Mortgagee, then and in every such case, Mortgagor and Mortgagee
shall be restored to their former positions and rights hereunder, and all
rights, powers and remedies of Mortgagee shall continue as if no such proceeding
had been taken.
12. Suits to Protect the Security Property. Upon the occurrence of a Lease
Event of Default hereunder, Mortgagee shall have the power (i) to institute and
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Security Property by any
acts which may be unlawful or in violation of this Mortgage; (ii) to preserve or
protect its interest in the Security Property and in the rents, issues, profits,
revenues, awards and other benefits arising therefrom; and (iii) to restrain the
enforcement of or compliance with any legislation or other governmental
enactment, regulation, rule, order or other requirement that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, regulation, rule, order or other requirement would impair the
security hereunder or be prejudicial to the interest of Mortgagee, and all costs
and expenses incurred by Mortgagee in connection therewith (including, without
limitation, attorneys' fees and expenses) shall be paid by Mortgagor to
Mortgagee on demand with interest at the Default Rate, and all such amounts
shall be additional indebtedness secured hereby (and part of the Obligations).
13. Mortgagee May File Proofs of Claim. In the case of any receivership,
insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other proceedings affecting Mortgagor, its creditors or its property, Mortgagee,
to the extent permitted by law, shall be entitled to file such proofs of claim
and other documents as may be necessary or advisable in order to have the claims
of Mortgagee allowed in such proceedings for the entire amount due and payable
by Mortgagor under this Mortgage at the date of the institution of such
proceedings and for any additional amount which may become due and payable by
Mortgagor hereunder after such date.
14. Assignment. For $10.00 and other good and valuable consideration,
including the indebtedness evidenced by the Operative Documents, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor has granted, bargained,
sold and conveyed, and by these presents does grant, bargain, sell and convey
absolutely unto Mortgagee any leases and the rents payable to Mortgagor relative
to the Security Property, subject only to the hereinafter referenced License, to
have and to hold the Leases and the Rents unto Mortgagee, forever, and Mortgagor
does hereby bind itself, its successors and assigns to warrant and forever
defend the title to the leases and the rents unto Mortgagee against every person
whomsoever lawfully claiming or to claim the same or any part thereof by or
through Mortgagor; provided, however, if Mortgagor shall pay or cause to be paid
and shall perform and discharge or cause to be performed and discharged, the
Obligations on or before the date same is to be paid, performed and discharged,
then this assignment shall terminate and be of no further force and effect, and
all rights, titles and interests conveyed pursuant to this assignment shall
become revested in Mortgagor without the necessity of any further act or
requirement by Mortgagor or Mortgagee. Notwithstanding any provisions herein,
Mortgagor may only lease the Security Property to third parties in accordance
with the Operative Documents.
15. Limited License. Mortgagee hereby grants to Mortgagor a limited
license (the "License"), nonexclusive with the rights of Mortgagee reserved in
this Mortgage, to exercise and enjoy all incidences of ownership of the Leases
and the Rents, including specifically but without limitation the right to
collect, demand, ▇▇▇ for, attach, levy, recover and receive the Rents, and to
give proper receipts, releases and acquittances therefor. Mortgagor hereby
agrees to receive all Rents and hold the same as a trust fund to be applied, and
to apply the Rent so collected, to the payment, satisfaction and discharge of
the indebtedness described in the Operative Documents as and when the same shall
become due and payable. Thereafter, Mortgagor may use the balance of the Rent
collected in any manner not inconsistent with the Operative Documents.
16. Enforcement of Leases. Subject to and in accordance with the terms and
conditions of Section 1.16 of this Mortgage, Mortgagor shall (a) duly and
punctually perform and comply with any and all representations, warranties,
covenants and agreements expressed as binding upon the landlord under any Lease,
(b) maintain each of the Leases in full force and effect during the term
thereof, (c) to the extent commercially reasonable, appear in and defend any
action or proceeding in any manner connected with any of the Leases, (d) deliver
to Mortgagee copies of executed counterparts of all Leases and (e) deliver to
Mortgagee such further information, and execute and deliver to Mortgagee such
further assurances and assignments, with respect to the Leases as Mortgagee may
from time to time reasonably request. Without Mortgagee's prior written consent,
Mortgagor shall not materially discount any future accruing Rent, or assign or
grant a security interest in or to the License or any of the Leases.
17. Suits; Attornment. Subject to the License and the provisions of
Section 2.1.2 of this Mortgage, Mortgagee hereby reserves and may exercise the
right and Mortgagor hereby acknowledges that Mortgagee has the right (but not
the obligation), upon the occurrence and during the continuance of a Lease Event
of Default, to collect, demand, ▇▇▇ for, attach, levy, recover and receive any
Rent, to give proper receipts, releases and acquittances therefor and, after
deducting the expenses of collection, to apply the net proceeds thereof as a
credit upon any portion of any indebtedness secured hereby selected by
Mortgagee, notwithstanding that such portion selected may not then be due and
payable or that such portion is otherwise adequately secured. Mortgagor hereby
authorizes and directs any lessee of the Security Property to deliver any such
payment to, and otherwise to attorn all other obligations under the Leases
direct to, Mortgagee. Mortgagor hereby ratifies and confirms all that Mortgagee
shall do or cause to be done by virtue and in compliance with the terms of this
assignment. No lessee shall be required to inquire into the authority of
Mortgagee to collect any Rent, and any lessee's obligation to Mortgagor shall be
absolutely discharged to the extent of its payment to Mortgagee.
18. Remedies. Upon or at any time after the occurrence of a Lease Event of
Default, Mortgagee, at its option and in addition to the remedies provided in
this Mortgage, shall have the complete, continuing and absolute right, power and
authority to terminate the License solely by the giving of written notice of
termination to Mortgagor. Upon Mortgagee's giving of such notice, the License
shall immediately terminate without any further action being required of
Mortgagee. Thereafter, as long as any Event of Default shall exist, Mortgagee
shall have the exclusive right, power and authority to take any and all action
as described above, regardless of whether a foreclosure sale of the remainder of
the Security Property has occurred under this Mortgage, or whether Mortgagee has
taken possession of the remainder of the Security Property or attempted to do
any of the same. No action referred to above or in this Section taken by
Mortgagee shall constitute an election of remedy. Notwithstanding any term to
the contrary herein, in the event of such a termination of Mortgagor's License,
such License shall be reinstated when and if the applicable Event of Default
shall have been cured or waived.
19. No Obligation of Mortgagee. Neither the acceptance by Mortgagee of the
assignment granted in this Mortgage, nor the granting of any other right, power,
privilege or authority in this Mortgage, nor the exercise of any of the
aforesaid, shall (a) prior to the actual taking of physical possession and
operational control of the Security Property by Mortgagee, be deemed to
constitute Mortgagee as a "mortgagee in possession" or (b) at any time
thereafter,
obligate Mortgagee (i) to appear in or defend any action or proceeding relating
to the Leases, the Rents or the remainder of the Security Property, (ii) to take
any action hereunder, (iii) to expend any money or incur any expenses or perform
or discharge any obligation, duty or liability with respect to any Lease, (iv)
to assume any obligation or responsibility for any deposits which are not
physically delivered to Mortgagee or (v) for any injury or damage to person or
property sustained in or about the Security Property.
20. Mortgagor's Indemnities. So long as the License is in effect,
Mortgagor shall indemnify and hold Mortgagee harmless from and against any and
all liability, loss, cost, damage or expense which Mortgagee incurs under or by
reason of this assignment, or for any action taken by Mortgagee hereunder in
accordance with the terms hereof, or by reason of or in defense of any and all
claims and demands whatsoever which are asserted against Mortgagee arising out
of the Leases. In the event Mortgagee incurs any such liability, loss, cost,
damage or expense, the amount thereof together with all reasonable attorneys'
fees and interest thereon at the Default Rate shall be payable by Mortgagor to
Mortgagee, within 10 days after demand by Mortgagee, and shall be secured by
this Mortgage, provided that Mortgagor shall have no duty or liability hereunder
to indemnify and hold Mortgagee harmless from matters resulting from the willful
misconduct or gross negligence of Mortgagee.
Schedule IV
Defined Terms
"Appurtenant Rights" means, with respect to the Land and the Subject
Property, (i) all agreements, easements, rights of way or use, rights of ingress
or egress, privileges, appurtenances, tenements, and other rights and benefits
at any time belonging or pertaining to the Land and the Subject Property,
including the use of any streets, ways, alleys, vaults or strips of land
adjoining, abutting, adjacent or contiguous to the Land and (ii) all permits,
licenses and rights, whether or not of record, appurtenant to the Land and (iii)
all of the Lessee/Mortgagor's right, title and interest in all general
intangibles relating to the design, development, operation, management and use
of the Subject Property, all certificates of occupancy, zoning variances,
building, use or other permits, approvals, authorizations and consents obtained
from and all materials prepared for filing or filed with any Governmental
Authority in connection with the development, use, operation or management of
the Subject Property, all construction, service, engineering, consulting,
leasing, architectural and other similar contracts concerning the design,
construction, management, operation, occupancy and/or use of the Subject
Property, all architectural drawings, plans, specifications, soil tests,
feasibility studies, appraisals, environmental studies, engineering reports and
similar materials relating to any portion of or all of the Subject Property, and
all payment and performance bonds or warranties or guarantees relating to the
Subject Property, all to the extent assignable.
"Equipment" means any equipment the removal of which could reasonably be
expected to affect the value or utility of the Land or the Subject Property,
taken together or separately, including heating, electrical, switch gear, power
supply, lighting, plumbing, ventilation, air conditioning and air cooling
systems, refrigerating equipment, generators, locking and unlocking equipment,
communication systems, sprinkler system and fire prevention systems, security
systems and fixtures of all kinds; provided, however, that the term "Equipment"
shall expressly exclude all inventory, furniture and furnishings.