Brixton Square
A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING. A POWER OF SALE MAY ALLOW THE
MORTGAGEE TO TAKE THE MORTGAGED PREMISES AND SELL IT WITHOUT GOING TO COURT IN A
FORECLOSURE ACTION UPON DEFAULT OF THE MORTGAGOR UNDER THIS MORTGAGE, ASSIGNMENT
OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING.
MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING
THE STATE OF OKLAHOMA ss.
ss.
COUNTY OF OKLAHOMA ss.
This INDENTURE (this "Mortgage") made this 26th day of September, 1996,
between CORPORATE REALTY INCOME FUND I, L.P., a Delaware limited partnership,
authorized to transact business in the State of Oklahoma, whose general partners
are 1345 REALTY CORPORATION, a Delaware corporation, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
an individual, having their places of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, hereinafter with its successors and assigns called the
"Mortgagor", and FLEET BANK, NATIONAL ASSOCIATION, a national banking
association, having its principal office at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, hereinafter with its successors and assigns called the "Mortgagee".
This instrument prepared by, and after recording please
return to:
Loeb & Loeb LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
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THE AMOUNT OF THIS MORTGAGE IS $24,000,000
THIS MORTGAGE SECURES REVOLVING CREDIT INDEBTEDNESS. THE INDEBTEDNESS SECURED
HEREBY IS COMPOSED OF REVOLVING CREDIT TYPE INDEBTEDNESS, THE OUTSTANDING
BALANCE OF WHICH CAN FLUCTUATE UP OR DOWN ACCORDING TO PAYMENTS MADE ON THE
INDEBTEDNESS AND SUBSEQUENT ADVANCES.
WHEREAS, the Mortgagor is the owner of the fee estate in those certain
parcels of real property described in EXHIBIT A annexed hereto (together with
the improvements now or hereafter located thereon, collectively, the
"Premises"), and desires to convey the Premises in trust, to secure, among other
obligations, a certain loan being made concurrently herewith by the Mortgagee to
the Mortgagor, pursuant to the terms of a Loan Agreement of even date herewith
between the Mortgagor and the Mortgagee (as the same may be amended or otherwise
modified from time to time, the "Loan Agreement"); and
WHEREAS, the indebtedness secured hereby is evidenced by that certain
Secured Promissory Note of even date herewith in the principal amount of
$24,000,000 (as the same may be amended or otherwise modified from time to time,
the "Note") made by the Mortgagor to the Mortgagee, which Note provides for a
variable rate of interest and which provides for a maturity date of September
24, 2000.
NOW, THEREFORE,
FOR THE PURPOSE OF SECURING payment of all of the liabilities and
obligations of the Mortgagor to the Mortgagee evidenced by the Note, plus
interest thereon and all sums necessary to protect the Mortgagee under this
Mortgage or under the other Security Documents (as hereinafter defined), and all
other sums due and payable under the Security Documents, and all of the other
Obligations (as hereinafter defined), the Mortgagor does hereby give, grant,
warrant, alien, release, mortgage, hypothecate, deposit, pledge, transfer,
assign, bargain, sell, convey, set over and confirm unto the Mortgagee, its
successors and assigns, all of the Mortgagor's estate, right, title and interest
now owned or hereafter acquired in and to the Premises; and
TOGETHER with all and singular the easements, rights of way, air rights,
reservations, privileges, choses in action, options, tenements, hereditaments
and
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appurtenances thereunto belonging or in any way appertaining, including, without
limitation, all off-street parking rights and spaces, if any, and the reversion
and remainder of any or all of the foregoing; and all of the estate, right,
title, interest, claim or demand whatsoever of the Mortgagor therein and in and
to the Premises and/or the improvements thereon, and in and to all strips and
gores, and all alleys adjoining the land and in and to any land lying in the bed
of any street, road or avenue, open or proposed, in front of, or adjoining or
adjacent to the Premises, to the center line thereof, either in law or in
possession or expectancy, now or hereafter acquired;
TOGETHER with all of the right, title and interest of the Mortgagor in and
to (i) all buildings, vaults, and other improvements and additions thereto now
erected or hereafter constructed or placed upon the Premises or any part thereof
(the "Improvements"); (ii) to the extent permitted by law, the name or names, if
any, as may now or hereafter be used for each Improvement and the good will
associated therewith, as well as the trade names of the Improvements; and (iii)
all machinery, devices, fixtures, apparatus, interior improvements,
appurtenances and equipment of every kind and nature whatsoever now or hereafter
attached to or placed in or upon the Premises or the Improvements, or any part
thereof, or used or procured for use in connection with the operation of the
Premises or any business conducted thereon (except for fixtures and personal
property that are at any time the property of Space Tenants, as defined in
SECTION 1.18, or independent contractors employed at the Premises), all of the
foregoing, except as aforesaid, hereinafter collectively called "Building
Service Equipment";
TOGETHER with all the right, title and interest of the Mortgagor in and to
all furniture, furnishings, decorations, chattels and other personal property
now or hereafter in, on or at said Premises (except for trade fixtures and
personal property that are at any time the property of Space Tenants), all of
the foregoing, except as aforesaid, hereinafter collectively called
"Furnishings;"
TOGETHER with all right, title and interest of the Mortgagor in and to all
insurance or other proceeds for damage done to the Improvements, Building
Service Equipment or Furnishings and all awards heretofore made or hereafter to
be made to or for the account of the Mortgagor for the permanent or temporary
taking by eminent domain of the whole or any part of the Premises, the
Improvements, the Building Service Equipment and the Furnishings or any lesser
estate
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in, or easement appurtenant to, the Premises (including, without limitation, any
awards for change of grade of streets), all of which proceeds and awards are
hereby assigned to the Mortgagee, subject to the further provisions of this
Mortgage;
TOGETHER with all of the rents, issues, income, revenues, royalties,
proceeds, benefits and profits of the Mortgaged Premises (as hereinafter
defined), including amounts payable under all Space Leases (as hereinafter
defined), now in effect or hereafter entered into covering any part of the
Mortgaged Premises, as well as all rights and interest of the Mortgagor as
landlord thereunder, all of which are hereby assigned to the Mortgagee, subject,
however, to the right of the Mortgagor, as licensee, to receive and use the same
unless and until an Event of Default shall occur;
TOGETHER with all of the records and books of account now or hereafter
maintained by the Mortgagor in connection with the operation of the Mortgaged
Premises;
TOGETHER with all water, water rights, shares of stock evidencing the same,
mineral rights, ditches, ditch rights, reservoirs and reservoir rights
appurtenant to, located on or used in connection with the Premises or the
Improvements, whether existing now or hereafter acquired;
TOGETHER with all deposits made with or other security given to utility
companies or governmental branches or agencies by the Mortgagor with respect to
the Mortgaged Premises, and all advance payments of insurance premiums made by
the Mortgagor with respect thereto;
TOGETHER with all licenses (including, but not limited to, any operating
licenses or similar matters), contracts, management agreements, franchise
agreements, permits, authorities or certificates required, used or useful in
connection with the use, enjoyment, occupancy, management or operation of the
Mortgaged Premises, except where the assignment or pledge of any such licenses,
permits or other rights is prohibited by applicable statute or by any applicable
issuing governmental agency; and
TOGETHER with any and all of the Mortgagor's rights in and to any and all
cash payments, reimbursements or other intangible rights arising in connection
with the development, operation or maintenance of the Mortgaged Premises,
including, without limitation, any tax appeal refunds, municipal reimbursements,
governmental subsidy
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payments and governmentally-registered credits (such as emissions and reduction
credits) (collectively, the "Payments and Intangibles");
TOGETHER with all proceeds and products of the foregoing.
All of the foregoing estates, rights, privileges, interests and franchises
hereby granted and released, assigned, transferred, set over and mortgaged, or
intended so to be, being hereinafter collectively referred to as the "Mortgaged
Premises".
TO HAVE AND TO HOLD unto the Mortgagee, its successors and assigns forever,
together with all rights, hereditaments and appurtenances in any way
appertaining or belonging thereto, unto the Mortgagee, the successors and
assigns of the Mortgagee, forever for the uses set forth herein, to secure the
payment to the Mortgagee of the principal and of interest on the Note at the
maturity thereof (whether by acceleration or otherwise), all other sums due
under the Note or under this Mortgage or under the Loan Agreement, the
performance of all covenants and agreements in the Security Documents and all
other obligations, whereupon this Mortgage shall cease and be void and the
Mortgaged Premises shall be released at the cost of the Mortgagor.
ARTICLE I.
Certain Definitions
In addition to other definitions contained herein, the following terms
shall have the meanings set forth below, unless the context of this Mortgage
otherwise requires:
1.1. "Affiliate" - shall mean (a) if with respect to a corporation, (i) any
officer or director thereof and any person or entity who or which is, directly
or indirectly, the legal or beneficial owner of more than ten (10%) percent of
any class of shares or other equity security of such corporation, or (ii) any
person or entity who or which, directly or indirectly, controls or is controlled
by or is under common control with such corporation and (b) if with respect to a
partnership or venture, any (i) general partner, (ii) general partner of a
general partner, (iii) partnership with a common general partner, (iv)
coventurer thereof, or (v) any person, trust,
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corporation, partnership, venture or other entity who or which, directly or
indirectly, controls or is controlled by or is under common control with such
partnership; and if any general partner or general partner of a general partner
or coventurer is a corporation, any person or entity which is an Affiliate as
defined in clause (a) above of such corporation. "Controls" (including the
correlative meanings of "controlled by" and "under common control with") means
effective power, directly or indirectly, to direct or cause the direction of the
management and policies of such person or entity.
1.2. "Backlease" means a sublease to the Mortgagor or its Affiliate made by
a lessee under a Space Lease.
1.3. "Default Rate" shall mean the Involuntary Rate (as such term is
defined in the Note).
1.4. "Due and payable" when used with reference to the principal of, or
premium or interest on, or when referring to any and all other sums secured by
this Mortgage or any other of the Security Documents shall mean due and payable,
whether at the monthly or other date of payment or at the date of maturity
specified in the Note, this Mortgage or the other Security Documents; or by
acceleration or call for payment as provided in the Note, hereunder or in the
other Security Documents, or, in the case of Impositions, the last day upon
which any charge may be paid without penalty and/or interest.
1.5. "Event of Default" shall have the meaning assigned to such term in the
Note.
1.6. "Governmental Authorities" shall mean all federal, state, county,
municipal and local governments and all departments, commissions, boards,
bureaus and offices thereof, having or claiming jurisdiction over the Mortgaged
Premises or any part thereof.
1.7. "Impositions" shall mean all duties, taxes, water and sewer rents,
rates and charges, assessments (including, but not limited to, all assessments
for public improvements or benefit), charges for public utilities, excises,
levies, license and permit fees and other charges, ordinary or extraordinary,
whether foreseen or unforeseen, of any kind and nature whatsoever, which prior
to or during the term of this Mortgage will have been or may be laid, levied,
assessed or imposed upon or become due and payable out of or in respect of, and
become a lien on the Premises,
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the Improvements, Building Service Equipment, Furnishings or any other property
or rights included in the Mortgaged Premises, or any part thereof or
appurtenances thereto, or which are levied or assessed against the rent and
income received by the Mortgagor from the Space Leases (as defined in SECTION
1.17) by virtue of any present or future law, order or ordinance of the United
States of America or of any state, county or local government or of any
department, office or bureau thereof or of any other Governmental Authority.
1.8. "Legal Requirements" shall mean all present and future laws,
ordinances, rules, regulations and requirements of all Governmental Authorities,
and all orders, rules and regulations of any national or local board of fire
underwriters or other body exercising similar functions, foreseen or unforeseen,
ordinary or extraordinary, which may be applicable to the Mortgaged Premises or
any part thereof, or to the sidewalks, alleyways, passageways, curbs and vaults
adjoining the same, or to the use or manner of use of any of the foregoing, or
to the owners, tenants, or occupants thereof, whether or not any such law,
ordinance, order, rule, regulation or requirement shall necessitate structural
changes or improvements or shall interfere with the use or enjoyment of any of
the foregoing, and shall also mean and include all requirements of the policies
of public liability, fire and all other insurance at any time in force with
respect to any of the foregoing.
1.9. "Mortgage" shall mean this instrument as originally executed or, if
hereafter amended, modified or supplemented, as so amended, modified or
supplemented.
1.10. "Mortgagee" shall mean the Mortgagee herein named or at any given
time the holder or holders of this Mortgage and the Note.
1.11. "Mortgagor" shall mean the Mortgagor herein named, any subsequent
owner or owners of the Mortgaged Premises, and its or their respective heirs,
executors, administrators, successors and assigns, but this provision shall not
be construed to limit the terms of SECTION 2.8 hereof.
1.12. "Obligations" shall mean the (a) aggregate unpaid principal amount
of, and accrued and unpaid interest on, the Note, plus (b) any and all
indebtedness, obligations and other liabilities of the Mortgagor to the
Mortgagee arising out of or in connection with or otherwise relating
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to the Note, the Loan Agreement or any of the Security Documents, and/or any
agreement(s) of the Mortgagor with the Mortgagee pertaining thereto; in each
case whether now or hereafter existing, direct or indirect, absolute or
contingent, joint, several or independent, due or to become due, liquidated or
unliquidated, held or to be held by the Mortgagee and whether created directly
or acquired by assignment or otherwise.
1.13. "Peg Rate" - shall have the meaning assigned to such term in the
Note.
1.14. "Permitted Encumbrances" shall mean each of the exceptions to
coverage set forth in SCHEDULE B, PART I of that certain Preliminary Title
Report dated September 26, 1996, issued by Chicago Title Insurance Company, to
and accepted by the Mortgagee with respect to the Premises, and such other items
as the Mortgagee, in its sole discretion, may approve in writing.
1.15. "Person" shall mean and include any individual, corporation,
partnership, unincorporated association, trust, governmental agency or authority
or other entity.
1.16. "Security Documents" shall have the meaning assigned to such term in
the Note.
1.17. "Space Lease" shall mean any and all leases, subleases, licenses,
concession agreements or any other form of agreement, however denominated
(written or verbal, now or hereafter in effect), in which the Mortgagor (or any
predecessor in interest as owner of the Mortgaged Premises in the case of
existing Space Leases) now or hereafter grants a possessory interest in and to,
or the right to use and occupy the Mortgaged Premises, or any portion thereof,
and all renewals, extensions, modifications, amendments and other agreements
affecting the same.
1.18. "Space Tenant" shall mean the tenant or other user or occupant of
part or all of the Mortgaged Premises under any Space Lease.
1.19. "State" shall mean the State of Oklahoma.
1.20. "to the best of the Mortgagor's knowledge" shall mean the actual
knowledge of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., after reasonable inquiry and investigation.
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ARTICLE II.
Particular Covenants of the Mortgagor
The Mortgagor covenants and agrees as follows:
2.1. Payment of Indebtedness. The Mortgagor shall duly and punctually pay
to the Mortgagee, as and when due and payable, the indebtedness evidenced by the
Note and the other Obligations secured hereby. As used in this SECTION 2.1 and
elsewhere in this Mortgage, the term "indebtedness" shall mean and include the
principal amount of the Note together with all interest thereon, any other
payments due to the Mortgagee under the Loan Agreement and/or any of the
Security Documents, all costs of collection provided for in the Note, the Loan
Agreement or any of the Security Documents, and all other sums and charges at
any time due under or otherwise secured by this Mortgage.
2.2. Warranty of Title. The Mortgagor warrants that, to the best of the
Mortgagor's knowledge (a) the Mortgaged Premises are free and clear of all liens
and encumbrances other than the Permitted Encumbrances; (b) it owns the Building
Service Equipment and Furnishings free and clear of all liens and claims other
than in favor of the Mortgagee; (c) this Mortgage is and will remain a valid and
enforceable first mortgage on the Mortgaged Premises, subject only to the
Permitted Encumbrances; and (d) the Mortgagor has the right and lawful authority
to mortgage and convey the Mortgaged Premises in the manner and form herein
provided. The Mortgagor represents and warrants to the Mortgagee, to the best of
the Mortgagor's knowledge, and covenants for the benefit of the Mortgagee, as
follows:
(i) that the Mortgagor is lawfully seized and possessed of a fee in
the Premises and that the Mortgagor holds good legal and marketable title
thereto and to the rest of the Mortgaged Premises, subject only to the
Permitted Encumbrances; and
(ii) that the Mortgaged Premises are now free and clear of all liens
and encumbrances whatsoever, other than the Permitted Encumbrances, that
the Mortgagor has good right and lawful authority to mortgage and convey
the same in the manner and form herein provided and that the Mortgagor will
warrant and defend title to the Mortgaged Premises against all claims and
demands whatsoever.
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2.3. To Maintain Priority of Lien.
2.3.1. This Mortgage is and will be maintained as a valid first mortgage on
the Mortgaged Premises, and the Mortgagor will not, directly or indirectly,
create or suffer or permit to be created, or to stand against the Mortgaged
Premises or any portion thereof, or against the rents, issues and profits
therefrom, and will promptly discharge, any lien or charge prior to or upon a
parity with or junior to this Mortgage other than the Permitted Encumbrances;
provided, however, that the Mortgagor shall not be required to pay any
Imposition prior to the time it shall become due and payable subject to the
provisions of SECTION 2.4.1 hereof, and nothing herein contained shall prevent
the Mortgagor from contesting the validity of any such Imposition in accordance
with the provisions of SECTION 2.4.4. The Mortgagor will keep and maintain the
Mortgaged Premises, and every part thereof, free from all liens or lien notices,
of Persons supplying labor and/or materials in connection with any construction,
alteration, repair, improvement or replacement of the Improvements or of the
Building Service Equipment and Furnishings. If any such lien shall be filed
against the Mortgaged Premises, or any part thereof, the Mortgagor promptly
shall discharge the lien of record, by bonding or otherwise. The Mortgagor shall
exhibit to the Mortgagee, upon request, appropriate receipts or other
satisfactory evidence of the payment of the Impositions or any other item which
may, if not paid, give rise to a lien against the Mortgaged Premises.
2.4. To Pay Impositions.
2.4.1. The Mortgagor will pay or cause to be paid, as and when due and
payable, all Impositions levied upon the Mortgaged Premises or any part thereof,
together with all filing, registration or recording fees and all expenses
incident to the execution and acknowledgement of this Mortgage, any mortgage
supplemental hereto, and will pay all federal, state, county and municipal stamp
taxes and other taxes, duties, imposts, assessments and charges arising out of
or in connection with the execution and delivery of the Note, this Mortgage, any
mortgage supplemental hereto, or any instrument of further assurance, except
Oklahoma mortgage taxes which shall be paid by the Mortgagee. However, if by
law, any Imposition may at the option of the taxpayer be paid in installments
(whether or not interest shall accrue on the unpaid balance thereof), the
Mortgagor shall have the right to exercise such option and to pay such
Imposition, or cause it to be paid (together
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with any accrued interest on the unpaid balance) in installments as they fall
due and before any fine, penalty, further interest or cost may be added thereto.
2.4.2. If an Event of Default shall occur and be continuing, then upon
demand of the Mortgagee, the Mortgagor shall deposit with the Mortgagee a sum
which bears the same relation to the annual insurance premiums for all insurance
required by the terms hereof and real estate taxes and assessments assessed
against the Mortgaged Premises for the insurance period or tax year then in
effect, as the case may be, as the number of months elapsed as of the date of
such demand since the last preceding installment of said premiums or taxes or
assessments shall have become due and payable bears to twelve (12). For the
purpose of this computation, the month in which such last preceding installment
of premiums or real estate taxes or assessments became due and payable and the
month in which such demand is given shall be included and deemed to have
elapsed. On the first day of the month next succeeding the month in which such
demand is given, and thereafter on the first day of each and every month during
the term of this Mortgage, the Mortgagor shall deposit with the Mortgagee a sum
equal to one-twelfth of such insurance premiums and such taxes and assessments
for the then-current insurance period and tax year, so that as each installment
of such premiums and taxes and assessments shall become due and payable, the
Mortgagor shall have deposited with the Mortgagee a sum sufficient to pay the
same. All such deposits shall be received and held as part of such deposit by
the Mortgagee (all such deposits to be held in an account without interest
thereon) and shall be applied to the payment of each installment of such
premiums and taxes and assessments as they shall become due and payable. The
Mortgagee shall, upon demand, furnish evidence to the Mortgagor of the making of
each such payment. If the amount of such premiums and taxes and assessments has
not been definitely ascertained at the time when any such monthly deposits are
required to be made, the Mortgagor shall make such deposits based upon the
amount of such premiums and taxes and assessments for the preceding year,
subject to adjustment as and when the amount of such premiums and taxes and
assessments are ascertained. If at any time when any installment of such
premiums and such taxes and assessments becomes due and payable the Mortgagor
shall not have deposited a sum sufficient to pay the same, the Mortgagor shall,
within five (5) days after demand, deposit any deficiency with the Mortgagee.
Upon payment in full of the indebtedness secured by this Mortgage, any remaining
amount on deposit with the Mortgagee shall be repaid to the Person lawfully
entitled thereto. If an Event
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of Default shall occur and be continuing, the Mortgagee may, at its option,
apply all or any portion of the amounts then on deposit with the Mortgagee
pursuant to this SECTION 2.4.2 first to the payment of any premiums, taxes or
assessments then due, and any remaining amounts may be applied to the payment of
the indebtedness. The Mortgagor shall deliver to the Mortgagee all insurance and
tax bills promptly following receipt during any period when such monthly
deposits are to be made with the Mortgagee.
2.4.3. The Mortgagor will pay all taxes and other governmental charges
(including, without limitation, stamp taxes), except income or franchise taxes
or similar taxes (other than Oklahoma mortgage tax), based upon or measured by
income, assessed by the United States government or any state or local
governmental authority and imposed on the Mortgagee, its successors by reason of
the ownership of this Mortgage or the Note or the receipt of the interest or
other sums payable thereunder or payable by either the Mortgagor or the
Mortgagee upon any increase in the indebtedness secured hereby, or any
modification, amendment, extension or consolidation of this Mortgage. Without
limiting the foregoing and subject to the limitations set forth above, the
Mortgagor will also pay the whole of any tax imposed, directly or indirectly, on
this Mortgage or the Note or the receipt of any portion of the Indebtedness in
lieu of a tax on the Mortgaged Premises or the Improvements and Building Service
Equipment, whether by reason of (a) the passage after the date of this Mortgage
of any law of the State deducting from the value of real property for the
purposes of taxation any lien thereon; (b) any change in the laws for the
taxation of Mortgages or debts secured by Mortgages for state or local purposes;
(c) a change in the means of collection of any such tax or otherwise; or (d) any
tax, whether or not now existing, assessed against, or withheld from, interest
or other payments made by the Mortgagor or assessed against this Mortgage and
which are assessed or levied by the government of any foreign nation or
political subdivision thereof, provided such tax liability shall not result from
the ownership of this Mortgage by a Person not a citizen of, or an entity not
formed under the laws of, the United States or any state. Within a reasonable
time after payment of any such tax or governmental charge, the the Mortgagor
will deliver to the Mortgagee satisfactory proof of payment thereof, subject,
however, to the right of the Mortgagor to contest Impositions as hereinafter set
forth. If the Mortgagor shall fail to pay such tax or charge within fifteen (15)
days after written notice, or if under applicable law the Mortgagor's payment or
agreement to pay
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the same shall be unenforceable, the Mortgagee shall have the right to declare
the entire unpaid indebtedness and all accrued and unpaid interest thereon due
and payable on a date specified by the Mortgagee, but, in any event, not less
than thirty (30) days after written notice to the Mortgagor.
2.4.4. The Mortgagor shall have the right to contest the amount or
validity, in whole or in part, of any Imposition, or to seek a reduction in the
valuation of the Mortgaged Premises, or any part thereof, as assessed for real
estate or personal property tax purposes by appropriate proceedings diligently
conducted in good faith, but only after payment of such Imposition, unless such
payment would operate as a bar to such contest or materially adversely interfere
with the prosecution thereof, in which event the Mortgagor may postpone or defer
payment of such Imposition (but not the payment of any monthly deposits pursuant
to SECTION 2.4.2 hereof); and upon request by the Mortgagor, the Mortgagee shall
postpone or defer payment of such Imposition; provided, however, that if at any
time the Mortgaged Premises, the Building Service Equipment, the Furnishings, or
any part thereof would, in the Mortgagee's reasonable judgment, by reason of
such postponement or deferment be in imminent danger of being forfeited or lost,
or if the Mortgagee might be subjected to any civil or criminal liability or
other sanction, then the Mortgagor, on demand, shall immediately pay or cause to
be paid the amount so contested and unpaid, together with all interest and
penalties in connection therewith.
2.4.5. The certificate, advice or ▇▇▇▇ of the appropriate official
designated by law to make or issue the same or to receive payment of any
Imposition indicating the nonpayment of such Imposition shall be prima facie
evidence that such Imposition is due and payable but unpaid at the time of the
making or issuance thereof.
2.5. Insurance; Restoration Following Casualty.
2.5.1. Until the indebtedness secured hereby is paid in full, the Mortgagor
shall at its own expense at all times maintain or cause to be maintained on all
of the Mortgaged Premises (a) comprehensive general liability insurance,
including umbrella liability insurance, covering all claims for bodily injury,
including death, and property damage occurring on, in or about the Mortgaged
Premises in an aggregate amount of not less than Five Million Dollars
($5,000,000) per occurrence, and a single limit of not less than Two Million
Dollars ($2,000,000) per person and per occurrence for personal injury, bodily
injury
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and property damage; the policy shall have no deductible or self insured
retention requirements; the policy limits of such insurance, if requested by the
Mortgagee, shall be increased from time to time to reflect what a reasonably
prudent owner or lessee of buildings or improvements similar in type and
locality to the Mortgaged Premises would carry; during any period of substantial
alterations or improvements in, on or to the Mortgaged Premises, the Mortgagor
will cause the comprehensive general liability insurance, including umbrella
liability insurance, endorsed to provide owners' and contractors' protective
liability coverage, including completed operations liability coverage; (b)
physical damage insurance (all risk non-reporting property insurance, including
earthquake insurance, with the Mortgagee named as loss payee), covering the
Mortgaged Premises for loss or damages resulting from the perils of fire,
lightning, earthquake, and such other risks and hazards as are provided under
the current standard "Extended Coverage Endorsement" and vandalism and malicious
mischief coverage, for the full replacement value of the Mortgaged Premises on a
stipulated and agreed-amount basis; (c) if the Mortgaged Premises is in an area
identified as a flood hazard area by the Secretary of Housing and Urban
Development, flood insurance, to the extent obtainable, in an amount equal to
the lesser of the full replacement value of the Mortgaged Premises or the
maximum amount available under the Federal flood insurance program; (d) boiler
and machinery insurance covering all boilers, machinery, air conditioning,
pressure vessels, and similar type equipment commonly covered under a broad-form
boiler and machinery policy, in an amount satisfactory to the Mortgagee; (e)
insurance against such other risks of damage, hazards, casualties and
contingencies in such amounts as the Mortgagee shall from time to time
reasonably require, provided that insurance against such other risks, hazards,
casualties or contingencies shall then be commonly carried by prudent owners or
lessees of building or improvements in the locality similar in character,
construction, use and occupancy to the Improvements, Building Service Equipment
and Furnishings on, or constituting a part of, the Mortgaged Premises; and (f)
loss of rents/business interruption coverage in an amount sufficient to pay all
Impositions, insurance premiums, interest and principal installments and all
other amounts due under the Note and the Loan Agreement and the normal operating
expenses of the Mortgaged Premises, all for a period of one (1) year.
Furthermore, the Mortgagee reserves the right to require additional insurance
and/or higher policy limits than heretofore specified if such additional
insurance and/or higher policy limits are commercially reasonable for similar
properties, which right
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may be exercised by written notice to the Mortgagor, and, as soon thereafter as
practicable, but in any event within thirty (30) days of the receipt thereof,
the Mortgagor agrees to obtain insurance coverage complying with such notice.
The proceeds of all such insurance (except the insurance specified in SECTION
2.5.1(a)) shall be paid solely to the Mortgagee and be held, applied or
disbursed by the Mortgagee as provided in SECTIONS 2.5.7 and 2.5.8.
2.5.2. All insurance required in SECTION 2.5.1 shall be evidenced by valid
and enforceable policies, in form and substance as shall be required by the
Mortgagee from time to time, and issued by and distributed among insurers of
recognized responsibility having an A.M. Best's Guide of A:XII or better, a
financial size category of Class XI or above, and the total limit of liability
shall not exceed ten percent (10%) of the total policyholders' surplus. Such
insurers shall be authorized to do business in the State and in all other
respects shall be reasonably satisfactory to the Mortgagee. The originals of all
such policies, or duplicate copies or certificates thereof, shall be delivered
to the Mortgagee concurrently with the execution and delivery of this Mortgage.
Thereafter, all renewal or replacement policies, or duplicate copies or
certificates thereof, shall be delivered to the Mortgagee not less than thirty
(30) days prior to the expiration date of the policy or policies to be renewed
or replaced, in each case accompanied by evidence reasonably satisfactory to the
Mortgagee that all premiums currently payable with respect to such policies have
been paid in full by or at the direction of the Mortgagor.
2.5.3. All such insurance policies shall (a) except for any liability
policy required hereunder, contain a standard noncontributory form of mortgagee
clause (in favor of and entitling the Mortgagee to collect any and all proceeds
payable under such insurance), as well as a standard waiver of subrogation
endorsement, all to be in form and substance reasonably satisfactory to the
Mortgagee; (b) provide that such policies may not be cancelled or amended
without at least thirty (30) days prior written notice to the Mortgagee; and (c)
provide that no act, omission or negligence of the Mortgagor, or its agents,
servants or employees, or of any Space Tenant under any Space Lease, which might
otherwise result in a forfeiture of such insurance or any part thereof, shall in
any way affect the validity or enforceability of such insurance insofar as the
Mortgagee is concerned. The Mortgagor shall not carry separate insurance,
concurrent in kind or form or contributing in the event of loss with any
insurance
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required under this SECTION 2.5. All losses under such insurance policies shall
be adjusted by the Mortgagor in the case of any single instance of such damage
or destruction not exceeding $200,000, by the Mortgagor and the Mortgagee in the
case of any such single instance of damage or destruction exceeding such amount,
provided that in no event shall the Mortgagor approve or consent to any final
adjustment in any amount exceeding the amount specified above in this sentence
without obtaining the Mortgagee's prior approval (which approval shall not be
unreasonably withheld) of the amount of such adjustment, and solely by the
Mortgagee in the case when an Event of Default exists and is continuing.
2.5.4. The Mortgagor, at its expense, will furnish to the Mortgagee, within
ninety (90) days after written demand, but in no event, except for reasonable
cause, more frequently than annually, proof of the then full replacement value
of each of the Improvements and the Building Service Equipment and Furnishings
therein, such proof to be by appraisals reasonably satisfactory in form and
substance to the Mortgagee and prepared by an appraiser (who may be an appraiser
for the insurance company insuring such property) designated and paid for by the
Mortgagor and approved by the Mortgagee, which approval shall not be
unreasonably withheld or delayed.
2.5.5. If the Mortgagee shall, by any means, acquire the title or estate of
the Mortgagor in or to any portion of the Mortgaged Premises, it shall thereupon
become the sole and absolute owner of all insurance policies affecting such
portion of the Mortgaged Premises held by, or required hereunder to be delivered
to, the Mortgagee, with the sole right to collect and retain all unearned
premiums thereon; and the Mortgagor shall be entitled only to a credit in
reduction of the then outstanding indebtedness secured hereby in the amount of
the short rate cancellation refund, when and if received by Mortgagee. The
Mortgagor agrees, immediately upon demand, to execute and deliver such
assignments or other authorizations or instruments as may, in the reasonable
opinion of the Mortgagee, be reasonably necessary or desirable to effectuate any
of the provisions of this SECTION 2.5.5.
2.5.6. If any of the Improvements, Building Service Equipment or
Furnishings shall be damaged or destroyed, in whole or in part, by fire or other
casualty, the Mortgagor shall give prompt notice thereof to the Mortgagee, and,
without regard to the availability or adequacy of insurance proceeds, shall
promptly following
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receipt of any insurance proceeds or the date when any such proceeds are made
available to the Mortgagor in accordance with the terms hereof, commence to
restore, replace, rebuild or alter the same as nearly as possible to the
condition, character and value thereof existing immediately prior to such damage
or destruction. Any insurance proceeds in respect of such damage or destruction,
or any Award (as defined in SECTION 3.2) for a partial taking which is not a
substantial or total taking, as such terms are referred to in ARTICLE III
hereof, at the option of the Mortgagee, may either (i) be applied as a
prepayment of the unpaid balance of the principal of the Note and of accrued and
unpaid interest thereon and as a payment of any other sums due and owing under
the Note, the Loan Agreement and the Security Documents, or (ii) be made
available to pay or reimburse costs incurred for restoration, replacement or
rebuilding necessitated as a result of such damage or destruction, or as a
result of such taking, as the case may be, or (iii) be used for any other
purpose or object deemed appropriate by the Mortgagee in connection with the
Mortgaged Premises, provided, however, that the Mortgagee may not elect either
option (i) or (iii) above if, and for so long as all of the following conditions
(collectively, the "Insurance or Award Conditions" have been and remain
satisfied: (a) no Event of Default has occurred and is continuing or would occur
as a result of such casualty or taking and no event has occurred that with the
passage of time or the giving of notice, or both, would constitute an Event of
Default; (b) the balance of the insurance proceeds or such Award either
initially paid to the Mortgagee or deposited with the Depository (as hereinafter
defined) or remaining from time to time, shall be sufficient, in the Mortgagee's
reasonable judgment, to complete the restoration, replacement or rebuilding, or
the Mortgagor shall have deposited such sufficient funds with the Mortgagee or
the Depository; and (c) the Mortgagee determines, in its reasonable discretion,
that (i) the Loan to Value Ratio (as defined in the Loan Agreement, and taking
into consideration the value of all of the Projects, as defined in the Loan
Agreement) is not greater than 55%, and (ii) the Debt Service Coverage Ratio (as
defined in the Loan Agreement, and taking into consideration the loss of income
resulting from such damage or destruction as projected by the Mortgagee in its
reasonable discretion) is not less than 1.40:1.0. Notwithstanding the foregoing,
if an event has occurred and is continuing that with the passage of time or the
giving of notice, or both, would constitute an Event of Default but the same has
not yet matured into an Event of Default, then, if the conditions set forth in
the foregoing clauses (b) and (c) have been or will be, in the Mortgagee's
reasonable judgment, satisfied, the Mortgagee shall not
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elect either option (i) or (iii) unless such event shall have matured into an
Event of Default and, unless and until such event shall have so matured into an
Event of Default or such event has been cured or shall otherwise cease to exist,
the Mortgagee (or the Depository) shall not release any such insurance proceeds
or Award and the same shall be held until an Event of Default occurs or the
Default has been cured or shall otherwise cease to exist.
2.5.7. Any such insurance proceeds (other than the proceeds of the rent
insurance policy, which shall be paid as provided in SECTION 2.5.8 below) or
Award which are to be applied to restoration, replacement or rebuilding of the
Mortgaged Premises shall, after payment or reimbursement to the Mortgagee of all
reasonable costs and expenses of the Mortgagee in collecting such proceeds or
Award, be applied upon satisfaction of the following provisions and conditions:
(a) If the damage be of such nature as to require the Mortgagor to
construct a replacement for, or to alter in any material or substantial
way, the damaged or destroyed items, the Mortgagor shall, before commencing
any such work, submit copies of the plans and specifications therefor to
the Mortgagee for the Mortgagee's approval, such approval to not be
unreasonably withheld or delayed.
(b) If after payment or reimbursement to the Mortgagee of all costs
and expenses of the Mortgagee in collecting such insurance proceeds or
Award, the aggregate insurance proceeds or Award received by reason of any
single instance of such damage or destruction or condemnation, as the case
may be, shall be $200,000 or less such insurance proceeds or Award shall be
paid to the Mortgagor, which shall hold all amounts so received in trust
for application first to pay the entire cost of restoring, repairing,
rebuilding or replacing the damaged or destroyed items, before any portion
of such proceeds may be used or applied for any other purpose. If the
aggregate net insurance proceeds or Award by reason of any single instance
of such damage or destruction or condemnation, as the case may be, shall be
more than $200,000 such sums shall be held and disbursed by Fleet Bank,
National Association or, if this Mortgage is held by another financial
institution, by such financial institution or, if this Mortgage is not held
by a financial institution, by a financial institution selected by the then
Mortgagee (the holder of such
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monies, the "Depository") in accordance with the following provisions of
this SECTION 2.5.7.
(c) The Mortgagee shall have received as to each such disbursement a
certificate of the Mortgagor (i) requesting the payment of a specified
amount of such insurance or condemnation proceeds; (ii) describing in
reasonable detail the work and materials applied to the restoration,
replacement or rebuilding of the damaged, destroyed or taken Improvement,
or Building Service Equipment and/or Furnishings located therein, since the
date of the last such certificate; (iii) stating that the requested amount
does not exceed the cost of such work and materials; and (iv) stating that
a request for payment for such work and materials has not previously been
made, accompanied by:
1. a certificate of an independent engineer or architect
designated by the Mortgagor, who shall have been approved in writing
by the Mortgagee (such approval not to be unreasonably withheld),
stating (i) that the work and materials described in the accompanying
certificate of the Mortgagor were satisfactorily performed and
furnished and were necessary, appropriate or desirable to the
restoration, replacement or rebuilding of the damaged, destroyed or
taken Improvement, or Building Service Equipment and/or Furnishings;
(ii) that the amount specified in such certificate of the Mortgagor
does not exceed the reasonable cost of such work and materials; and
(iii) the additional amount, if any, required to complete the
restoration, replacement or rebuilding of the damaged, destroyed or
taken Improvement, Building Service Equipment and/or Furnishings; and
2. evidence reasonably satisfactory to the Mortgagee (i) that
there exists no filed or recorded lien, or lien notice, or encumbrance
or charge in respect of all or any part of the Mortgaged Premises that
is prior to or on a parity with the lien of this Mortgage, except as
may be permitted in the Permitted Encumbrances; (ii) that neither the
Mortgaged Premises nor any part thereof is subject to any recorded or
filed mechanic's, laborer's, materialman's or any similar lien,
encumbrance or charge; and (iii) that none of the Building Service
Equipment and Furnishings provided in
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connection with such restoration, replacement or rebuilding is subject
to any security interest other than in favor of the Mortgagee;
Upon satisfaction of the conditions set forth herein, the Mortgagee shall
pay to the Mortgagor the amount of such insurance or condemnation proceeds
requested in such certificate of the Mortgagor or consent to the Depository's
payment thereof, as the case may be; provided, however, that in no event shall
the balance of insurance or condemnation proceeds held by the Mortgagee and the
Depository be reduced below the amount specified in such certificate of the
independent engineer or architect as the amount required to complete the
restoration, replacement or rebuilding of the damaged, destroyed or taken
Improvement, Building Service Equipment and/or Furnishings. Each such payment,
whether made by the Mortgagee or the Depository, shall be held by the Mortgagor
in trust and shall be used solely for the payment of the cost of the work and
materials described in the certificate of the the Mortgagor, or if such cost or
any part thereof has theretofore been paid by the Mortgagor out of its own
funds, then for the reimbursement to the Mortgagor of any such cost or part
thereof paid by it. Any balance of insurance or condemnation proceeds held by
the Mortgagee after the completion of the restoration, replacement or rebuilding
and payment of all costs incurred in connection therewith, to be evidenced by a
certificate to such effect of such independent engineer or architect delivered
to the Mortgagee, shall, if no Event of Default shall have occurred and be
continuing, be released to the Person lawfully entitled thereto. Notwithstanding
the foregoing, if the Mortgagor needs to make deposits with or payments to
contractors prior to the work being performed, if the Mortgagee is otherwise
obligated to allow funds to be used to rebuild or restore, the Mortgagee agrees
that it will not unreasonably withhold or delay its consent to the Mortgagor's
request that such deposits or advances payments be allowed.
2.5.8. All proceeds of rent insurance payable as a result of the occurrence
of any fire or other casualty which affects the Mortgaged Premises, or any part
thereof, shall be paid to the Mortgagee or, if the Mortgagee is not a financial
institution, the Depository. The Mortgagee or the Depository, as the case may
be, if it shall receive such proceeds, shall hold such proceeds in trust if
permitted under law, and in an account bearing interest (payable to or for
account of the Mortgagor), and shall apply or cause such proceeds (including any
net interest thereon) to be applied to the payment of those items
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referred to in SECTION 2.5.1(f) which become, and as they become, due and
payable from and after the date of the occurrence of such damage or loss, until
the completion of the necessary restoration or replacement by the Mortgagor or
until the exhaustion of such proceeds (including any interest thereon),
whichever first occurs. Upon completion of such restoration or replacement, any
balance of such rent insurance proceeds, together with the interest thereon, if
any, not theretofore applied as provided herein, in the hands of the Mortgagee
or the Depository, as the case may be, shall, provided that no Event of Default
shall have occurred and be continuing, be paid to the Person lawfully entitled
thereto.
2.5.9. Nothing in this SECTION 2.5 contained shall (i) relieve the
Mortgagor of its duty to repair, restore, rebuild or replace the Improvements,
Building Service Equipment and/or Furnishings following damage or destruction by
fire or other casualty or taking in the event that no Award or an inadequate
Award or that no or inadequate proceeds of insurance are available to defray the
cost of such repairing, restoring, rebuilding or replacement (provided, however,
the Mortgagor shall be permitted to receive the insurance proceeds upon
satisfaction of the conditions set forth herein provided, in addition, that all
of the Insurance or Award Conditions have been and remain satisfied), or (ii)
relieve the Mortgagor of its obligation to pay principal and interest and to
make all other payments required by the Note, the Loan Agreement and this
Mortgage subsequent to the occurrence of any fire or other casualty, or taking,
except if, and to the extent that, any proceeds of rent insurance are applied by
the Mortgagee in accordance with SECTION 2.5.8 to such required payments.
2.5.10. If, while any insurance proceeds or Award is being held by the
Mortgagee or the Depository, an Event of Default shall occur and be continuing,
the Mortgagee shall be entitled to receive and apply all such insurance proceeds
or Award in reduction of the indebtedness and other obligations secured by this
Mortgage, in such order and respective amounts, as the Mortgagee in its
discretion shall determine.
2.6. To Comply with Laws.
2.6.1. The Mortgagor, at its own expense, will promptly cure all violations
of law affecting the Mortgaged Premises, or any part thereof, and/or the use and
operation thereof and will promptly comply, or cause to be complied with, all
present and future Legal Requirements.
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However, the Mortgagor shall have the right, after prior notice to the
Mortgagee, to contest by appropriate legal proceedings, diligently conducted in
good faith, the validity or application of any Legal Requirement if and so long
as the Mortgagor shall promptly furnish to the Mortgagee a certificate to such
effect showing the steps taken to comply with such provisions, provided that:
(a) if by the terms of any such Legal Requirement, compliance
therewith pending the prosecution of any such proceeding may be delayed
legally without incurring any lien, charge or liability of any kind against
the Mortgaged Premises, or any part thereof, and without subjecting the
Mortgagor or the Mortgagee to any liability, civil or criminal, for failure
so to comply therewith, the Mortgagor may delay compliance therewith until
the final determination of any such proceeding; and
(b) if any lien, charge or civil liability would be incurred by reason
of any such delay, the Mortgagor nevertheless, on the prior written consent
of the Mortgagee, such consent not to be unreasonably withheld, may contest
and delay compliance with the Legal Requirement, provided that such delay
would not subject the Mortgagee to criminal liability and the Mortgagor (i)
furnishes to the Mortgagee security reasonably satisfactory to the
Mortgagee against loss or injury by reason of such contest or delay and
(ii) prosecutes the contest with due diligence.
2.6.2. Notwithstanding the provisions of SECTION 2.6.1, if any delay in
compliance with any Legal Requirement shall, in the reasonable judgment of the
Mortgagee, place all or any part of the Mortgaged Premises in imminent danger of
being forfeited or lost, the Mortgagor shall, upon written notice from the
Mortgagee, immediately comply with such Legal Requirement.
2.6.3. The Mortgagor will use and permit the use of the Mortgaged Premises
only in accordance with the material requirements of any applicable licenses and
permits issued by Governmental Authorities.
2.6.4. The Mortgagor will procure, pay for and maintain (or cause to be
procured, paid and maintained) all permits, licenses and other authorizations
required to be procured and maintained by the owners and operators of the
Mortgaged Premises for any then use of all or any part
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of the Mortgaged Premises then being made and for the lawful and proper
operation and maintenance thereof.
2.7. Limitation on Alterations and Demolition.
2.7.1. The Mortgagor shall not voluntarily demolish, replace or alter the
Mortgaged Premises, or any part thereof, or voluntarily make any addition
thereto, or voluntarily construct any additional improvements thereon, or suffer
any of the same to occur, whether structural or otherwise (collectively,
"change"), without the prior written consent of the Mortgagee, which consent
shall not be unreasonably withheld or delayed; provided, however, that if no
Event of Default is continuing and such change involves an estimated cost of
less than $100,000 and is non-structural or if no Event of Default is continuing
and such change is non-structural and is being made to prepare space for a Space
Tenant pursuant to a Space Lease entered into in accordance with the Loan
Agreement, then, in either of such events, the Mortgagee's consent shall not be
required; provided, further, however, that if any such change is required by
law, the Mortgagor may make such change with the prior written consent of the
Mortgagee, which consent the Mortgagee will not unreasonably withhold or delay.
As a condition to any consent under this SECTION 2.7.1, the Mortgagee may
require (a) that plans and specifications for the proposed work, prepared by a
reputable architect reasonably satisfactory to the Mortgagee, be submitted to
the Mortgagee for approval, and (b) that the Mortgagor obtain a payment and
performance bond or other security reasonably satisfactory to the Mortgagee in
form and amount reasonably satisfactory to the Mortgagee from the contractor or
subcontractor performing the work unless such work amounts to less than $200,000
in aggregate total cost. All work performed by or on behalf of the Mortgagor
shall be completed with all reasonable diligence and continuity, in a good and
workmanlike manner, and in compliance with all applicable Legal Requirements.
Unless, and to the extent that, the provisions of SECTION 2.7.2 be applicable,
no Building Service Equipment or Furnishings shall be removed from the Mortgaged
Premises during the course of any such work without prior notification to the
Mortgagee and unless provision is made for return or replacement on or prior to
the completion of the work. The provisions of this SECTION 2.7.1. shall apply to
any change made or required to be made by the Mortgagor in the course of
complying with any other of the provisions of this Mortgage. A duplicate set of
all plans and specifications required to be filed with any Governmental
Authority prior to, or at any time in connection with, any such alteration,
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tion shall be furnished to the Mortgagee. The Mortgagor will pay on demand the
reasonable expenses incurred by the Mortgagee in the review of plans and
specifications provided for in this Mortgage.
2.7.2. The Mortgagor shall have the right, at any time and from time to
time, to remove and dispose of any item of Building Service Equipment or
Furnishings which may have become obsolete or unfit for use or which is no
longer useful in the operation of the Improvements, provided that the Mortgagor
promptly replaces such item with other Building Service Equipment or
Furnishings, free of superior title, liens or claims (other than in favor of the
Mortgagee) unless consent of the Mortgagee is first obtained, not necessarily of
the same character but of at least equal quality, value and usefulness in
connection with the operation and maintenance of the Mortgaged Premises,
provided, further, however, no removal of any item of Building Service Equipment
or Furnishings then having a fair market value of $50,000 or more shall be made
without the prior written consent of the Mortgagee, which consent will not be
unreasonably withheld or delayed. However, if by reason of technological or
other developments in the operation and maintenance of buildings and other
improvements of the general character of the Improvements or a change in the use
of the Mortgaged Premises or any part thereof, no replacement of the Building
Service Equipment or Furnishings so removed would be necessary or desirable for
the proper operation or maintenance of the Improvements, the Mortgagor shall not
be required to replace the item so removed.
2.8. Limitation on Disposition of the Mortgaged Premises.
2.8.1. Except as expressly set forth in this Mortgage or the Loan Agreement
(including, without limitation, SECTIONS 5.01 and 6.21 of the Loan Agreement),
the Mortgagor shall not directly or indirectly sell, assign, mortgage, alienate,
pledge or otherwise transfer or further encumber the Mortgaged Premises or any
part thereof or any interest therein or in any of the rents, profits or income
generated thereby, whether voluntarily, involuntarily, by operation of law or
otherwise, or lease all or any portion thereof or an undivided interest therein,
without the prior written consent of the Mortgagee. The foregoing events are
hereinafter referred as a "Transfer". Any transfer without prior written the
consent of the Mortgagee is an Event of Default.
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2.8.2. If there shall be a violation of the terms and provisions of SECTION
2.8.1, whether by the Mortgagor or any other person, in addition to all other
rights and remedies available to the Mortgagee under this Mortgage, the
Mortgagee shall have the option, by the giving of notice to the Mortgagor, of
declaring the entire unpaid principal balance of the Note, together with all
accrued and unpaid interest and all other sums and charges evidenced thereby or
payable pursuant to the Loan Agreement, immediately due and payable.
2.9. Maintenance of Mortgaged Premises; Covenant Against Waste; Inspection
by the Mortgagee. The Mortgagor will not commit or permit waste on the Mortgaged
Premises and, at its expense, will keep and maintain the Improvements, the
Building Service Equipment and Furnishings in its (or their) present state of
repair and condition, reasonable wear and tear excepted, and, if improved, in
such improved state of repair and condition, reasonable wear and tear excepted;
provided, that this shall not limit the Mortgagor's other obligations hereunder,
such as compliance with laws. The Mortgagor shall do or cause to be done all
maintenance and make or cause to be made all repairs as may be required by the
landlord under any Space Lease. The Mortgagor will neither do nor permit to be
done anything to the Mortgaged Premises that may materially impair the value
thereof or which may violate any covenant, condition or restriction affecting
the Mortgaged Premises, or any part thereof, or which would effect any material
change therein or in the condition thereof that would increase the danger of
fire or other hazard arising out of the operation of the Mortgaged Premises.
Subject to the rights of Space Tenants, the Mortgagee, and its representatives
and agents, may enter and inspect the Mortgaged Premises at any time after
reasonable notice (which may be oral) during usual business hours, and the
Mortgagor shall, within thirty (30) days after demand by the Mortgagee (or
immediately upon demand in case of emergency), make such repairs, replacements,
renewals or additions, or perform such items of maintenance, to the Mortgaged
Premises as the Mortgagee may reasonably require in order to cause the Mortgaged
Premises to comply with the standards established in this SECTION 2.9.
2.10. To Furnish Certificates; Other Reporting Requirements.
2.10.1. The Mortgagor will, at its own expense, deliver to the Mortgagee,
within fifteen (15) days after written request, but no more frequently than once
per six (6) month period, a written statement executed by the
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Mortgagor, in recordable form, setting forth to the best of the Mortgagor's
knowledge, the amount then unpaid upon the Note and secured by this Mortgage and
stating whether any offsets or defenses exist against the indebtedness secured
hereby; and, if any such offsets or defenses are alleged to exist, then the
factual basis and amount of such claimed offsets or defenses.
2.10.2. The Mortgagor will, if requested by the Mortgagee, deliver to the
Mortgagee a certificate of an officer of the general partner of the Mortgagor or
of such general partner's general partner, to the effect that he is familiar
with this Mortgage and the other Security Documents, has reviewed the affairs of
the Mortgagor, and to the best of his knowledge and belief there exists no Event
of Default and no act or event has occurred or exists which with notice or lapse
of time or both could become such an Event of Default, or if any such event or
Event of Default exists, specifying it and what action the Mortgagor is taking
to cause it to be remedied.
2.11. After-Acquired Property. All right, title and interest of the
Mortgagor in and to all improvements, betterments, renewals, substitutes and
replacements of, and all additions and appurtenances to, the Mortgaged Premises
hereafter acquired, constructed, assembled or placed on the Mortgaged Premises,
immediately upon such acquisition, construction, assembly or placement, as the
case may be, and in each such case without any further mortgage, conveyance or
assignment or other act of the Mortgagor, shall become subject to the lien of
this Mortgage as fully and completely, and with the same effect, as though now
owned by the Mortgagor and specifically described in the granting clauses
hereof; and at any time and from time to time the Mortgagor, on demand, will
execute, acknowledge and deliver to the Mortgagee any and all such further
assurances, mortgages, conveyances or assignments as the Mortgagee may
reasonably require to further evidence, confirm and perfect the provisions of
this SECTION 2.11.
2.12. Further Assurances. The Mortgagor shall, at its sole cost and without
expense to the Mortgagee, on demand, do, execute, acknowledge and deliver all
and every such further acts, deeds, conveyances, mortgages, assignments, notices
of assignment, transfers and assurances as the Mortgagee shall from time to time
reasonably require for better assuring, conveying, assigning, transferring and
confirming unto the Mortgagee the property and rights hereby mortgaged or
assigned or intended now or hereafter so to be, or which the Mortgagor may be or
may hereafter become bound
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to convey, mortgage or assign to the Mortgagee, or for carrying out the
intention or facilitating the performance of the terms of this Mortgage, or for
filing, registering or recording this Mortgage.
2.13. Recorded Instruments. The Mortgagor will promptly perform and
observe, or cause to be performed and observed, all of the terms, covenants and
conditions of all instruments of record affecting the Mortgaged Premises (other
than non-consensual encumbrances hereafter affecting the Mortgaged Premises, the
validity or enforceability of which the Mortgagor is contesting in accordance
with this Mortgage) where non-compliance therewith affects the security of this
Mortgage or imposes any duty or obligation upon the Mortgagor or any Space
Tenant. The Mortgagor shall do or cause to be done all things reasonably
required to preserve intact and unimpaired and to renew any and all
rights-of-way, easements, grants, appurtenances, privileges, licenses,
franchises and other interests and rights in favor of or constituting any
portion of the Mortgaged Premises. The Mortgagor will not, without the prior
written consent of the Mortgagee, which consent shall not be unreasonably
withheld or delayed, initiate, join in or consent to any private restrictive
covenant or other public or private restriction as to the use of all or any
portion of the Mortgaged Premises. The Mortgagor will, however, comply with all
lawful restrictive covenants and zoning ordinances and other public or private
restrictions affecting all or any portion of the Mortgaged Premises.
ARTICLE III.
Condemnation
3.1. Notice of Taking. The Mortgagor shall promptly notify the Mortgagee if
the Mortgagor receives notice of the institution of any proceeding or
negotiations for the taking of the Mortgaged Premises, or any part thereof,
whether for permanent or temporary use and occupancy in condemnation or by the
exercise of the power of eminent domain or by agreement of interested parties in
lieu of such condemnation (all the foregoing called a "taking"); shall keep the
Mortgagee currently advised, in detail, as to the status of such proceedings or
negotiations and will promptly give to the Mortgagee copies of all notices,
pleadings, judgments, determinations and other papers received or delivered by
the Mortgagor in connection with any such proceedings. The Mortgagee shall have
the right to
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appear and participate in such proceedings and may be represented by counsel.
The Mortgagor will not, without the Mortgagee's prior written consent, which
consent shall not be unreasonably withheld or delayed, enter into any agreement
for the taking of the Mortgaged Premises, or any part thereof, with anyone
authorized to acquire the Mortgaged Premises by eminent domain or in
condemnation.
3.2. Condemnation Award. If the Mortgaged Premises shall be the subject of
a taking the Mortgagee shall be entitled to and shall receive the total of such
portion of all awards made that shall be allowed to the Mortgagor with respect
to all the right, title and interest of the Mortgagor in and to the Mortgaged
Premises (the award made in any total, partial or temporary taking is herein
called the "Award"), provided that the obligations of the Mortgagor to perform
the terms, covenants and conditions of this Mortgage, if any, affected by such
taking shall continue unimpaired until the actual vesting of title in such
proceeding and the actual receipt by the Mortgagee of the Mortgagor's share of
the entire Award resulting from such taking.
3.3. Application of Award. The Mortgagee shall have the option of treating
a total taking or a substantial taking (as hereinafter defined) as an Event of
Default and of accelerating the entire indebtedness secured hereby, in which
event it shall apply the Mortgagor's entire Award in reduction of such
indebtedness (including principal, interest and other sums secured hereby, in
such order as the Mortgagee may determine) and shall turn over any balance
remaining, if any, to the Person lawfully entitled thereto; or if the Mortgagee
shall not so elect to accelerate the indebtedness and apply the Award thereto,
then the total Award shall, regardless of amount, be deposited with the
Mortgagee or with the Depository, the Mortgagor hereby agreeing to elect that
such proceeds be held and disbursed by the Depository in accordance with
SECTIONS 2.5.6, 2.5.7, 2.5.8, 2.5.9 and 2.5.10 hereof for restoration required
to be made by the Mortgagor. If there be a partial taking, the net proceeds of
the Award shall be deposited with the Mortgagee and applied by the Mortgagee in
accordance with the provisions of SECTIONS 2.5.6, 2.5.7, 2.5.9 and 2.5.10.
Any Award remaining after the completion of such restoration, replacement or
rebuilding shall be applied in reduction of the indebtedness (including
principal, interest and other sums secured hereby) in such order as the
Mortgagee shall determine. A partial taking is substantial only if it materially
decreases the fair market value of the Mortgaged Premises and the remainder of
the Mortgaged
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Premises cannot be restored to an economically viable whole.
3.4. Temporary Taking. If any Award payable to the Mortgagor on account of
a taking for temporary use or occupancy is made in a lump sum or is payable
other than in equal monthly installments, the Mortgagor shall pay over such
Award to the Depository and such Award shall be applied to installments of
Impositions and of principal and interest and all other charges secured by this
Mortgage or due under the Note, the Loan Agreement, or the other Security
Documents as and when the same become due and payable. Any unapplied portion of
such Award held by the Depository when such taking ceases or expires (if no
Event of Default has then occurred and is continuing), or after the indebtedness
secured by this Mortgage or due under the Loan and Security Documents shall have
been paid in full, shall be paid to the Person lawfully entitled thereto.
3.5. The Mortgagor's Obligation to Restore. If all available proceeds of
the Award are made available to the Mortgagor for restoration, replacement or
rebuilding pursuant hereto, the Mortgagor shall be obligated promptly to
restore, replace, rebuild or alter any Improvements or Building Service
Equipment affected by a taking so as to restore the Mortgaged Premises to an
economically viable whole, all without regard to the adequacy of the proceeds of
an Award, if any, made available to the Mortgagor.
ARTICLE IV.
Assignment of Space Leases, Rents, Profits
and Other Income as Further Security, Etc.
4.1. Assignment of Space Leases, Rents, Issues and Profits. Subject to the
Mortgagor's rights herein, including those set forth in SECTION 4.3.2 below, the
Mortgagor hereby absolutely, presently and irrevocably transfers, assigns and
sets over unto the Mortgagee all right, title and interest of the Mortgagor in
and to all Space Leases, if any, now or hereafter entered into with respect to
all or any part of the Mortgaged Premises, and all renewals, extensions,
subleases or assignments thereof, and all other occupancy agreements (written or
oral), by concession, license or otherwise, together with all of the rents,
income, receipts, revenues, issues and profits arising therefrom (the
"Collateral").
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4.2. The Mortgagor's Covenants Regarding Space Leases.
4.2.1. Without the prior consent and approval of the Mortgagee in each
instance, the Mortgagor will not (a) assign, pledge, hypothecate or otherwise
encumber any of the Space Leases or the rents, income, issue and profits of the
Mortgaged Premises; or (b) enter into any Space Leases affecting the Mortgaged
Premises or any part thereof, unless such Space Lease is expressly subordinate
to the lien of this Mortgage and to any consolidation, extension, renewal,
recasting or refinancing hereof and the Space Lease provides, in substance, that
in the event of enforcement by the Mortgagee of the remedies provided for by law
or by this Mortgage, each Space Tenant shall, at the option of the Mortgagee,
enter into a agreement with the Mortgagee which shall provide, among other
things, that (i) such Space Tenant shall attorn to any person succeeding to the
interest of the Mortgagor as a result of such enforcement and shall recognize
such successor in interest as landlord under such Space Lease without change in
the terms or other provisions thereof, (ii) such successor shall not be bound by
any payment of rent or additional rent for more than one (1) month in advance or
any amendment or modification of any such Space Lease made without the
Mortgagee's written consent, and (iii) such successor shall not disturb the
possession of the Space Tenant provided certain conditions (as determined by the
Mortgagee) have been satisfied, including, without limitation, that the Space
Tenant shall not be in default under the terms of the Space Lease; or (c) enter
into any Space Leases without the prior written consent of the Mortgagee unless
permitted in SECTION 6.21 of the Loan Agreement.
4.2.2. The Mortgagor further represents, warrants, covenants and agrees
that:
(a) To the best of its knowledge, each Space Lease is (or, when
executed, will be) a valid and legally enforceable obligation of the
parties thereto, in full force and effect.
(b) With respect to each Space Lease and the Space Tenant security
deposits thereunder, any and/or all of such security deposits shall be held
as required by the Space Lease but in no event in a manner other than that
required by law.
(c) The Mortgagor shall, at its sole cost and expense, keep, observe,
perform and discharge,
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duly and punctually, all and singular the material obligations, terms,
covenants, conditions, representations and warranties of each Space Lease
on the part of the Mortgagor to be kept, observed, performed and
discharged.
(d) (i) Except as herein in this clause (i) expressly provided, the
Mortgagor shall, at its sole cost and expense, maintain the Space Leases in
full force and effect; the Mortgagor will not waive its rights under or
materially modify, change, supplement, alter or amend ("Change"), nor shall
the Mortgagor surrender (whether partial or total), terminate, cancel or
subordinate, any of the Space Leases or enter into any Backlease (whether
through an Affiliate or otherwise), and any such attempted Change,
surrender, termination, cancellation or subordination or Backlease shall be
void, unless, in each case, the prior written consent thereto of the
Mortgagee shall have been obtained. Notwithstanding the foregoing, the
Mortgagor may (x) terminate any Space Lease under 10,000 rentable square
feet as a result of a default by the tenant under such Space Lease and (y)
consent to any sublease or assignment of any Space Lease under 10,000
rentable square feet provided (aa) such termination is being effected in
the ordinary course of the Mortgagor's business, (bb) no Event of Default
then exists and no event has occurred that with the passage of time or the
giving of notice or both would constitute an Event of Default, and (cc) the
Mortgagee determines, in its reasonable discretion, that upon the
effectiveness of such termination, assignment or sublease (i) the Loan to
Value Ratio (as defined in the Loan Agreement, and taking into
consideration the value of all of the Projects, as defined in the Loan
Agreement) is not greater than 55%, and (ii) the Debt Service Coverage
Ratio (as defined in the Loan Agreement, and taking into consideration the
loss of income resulting from such termination, assignment or sublease, as
projected by the Mortgagee in its reasonable discretion) is not less than
1.40:1.0. A material Change shall include but not be limited to any
material Change in the amount or time of payment of the rent or additional
rent, the length of term or square footage of the premises under any Space
Lease or any other Change which would materially adversely affect the
Mortgagor's rights under the Space Lease, or would affect the Mortgagee's
rights under the Space Lease or the value of the Space Lease as collateral
security for the indebtedness.
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(ii) The Mortgagor shall, at its sole cost and expense, enforce
the Space Leases in accordance with their terms; and shall appear in
and defend any action or proceeding arising to which it is a party
under or in any manner connected with any of the Space Leases.
(e) The Mortgagor shall deliver to the Mortgagee a copy of each notice
of default sent or received by it relating in any way to any Space Lease
promptly upon, but in any event within five (5) business days after, its
sending or receipt thereof.
4.3. The Mortgagor's Rights and Powers.
4.3.1. The Mortgagor hereby irrevocably, in the name of the Mortgagor or
otherwise, authorizes and empowers the Mortgagee, and assigns and transfers unto
the Mortgagee, and constitutes and appoints the Mortgagee its true and lawful
attorney-in-fact, coupled with an interest and as its agent, irrevocably, with
full power or substitution for it and in its name, but solely for the following
purposes: (i) to exercise and enforce every right, power, remedy, authority,
option and privilege of the Mortgagor under the Space Leases, and as such
attorney-in-fact, the Mortgagee may subordinate, terminate, cancel or modify the
Space Leases, accept the surrender of the Space Leases, give any notice, take
any action resulting in such subordination, termination, cancellation,
modification or surrender, give any authorization, furnish any information, make
any demands, execute any instruments and take any and all other action on behalf
of and in the name of the Mortgagor which in the opinion of the Mortgagee may be
necessary or appropriate to be given, furnished, made, exercised or taken by the
Mortgagor under the Space Leases in order to comply therewith, to perform the
conditions thereof or to prevent or remedy any default by the Mortgagor
thereunder or to enforce any of the Mortgagor's rights and remedies there-under,
and (ii) to ask, require, demand, receive and collect and give acquittances for
the Income (as hereinafter defined), and on nonpayment thereof to ▇▇▇ for,
recover and receive the same, and on payment thereof to give sufficient
releases, receipts, discharges and acquittances thereof; to endorse any checks
or other instruments or orders in connection therewith and to file any claims or
take any action or institute any proceedings which the Mortgagee may deem to be
necessary or advisable; provided, however, that the power provided for in this
sentence may not be exercised by the Mortgagee unless an Event of Default shall
have occurred and be continuing. "Income" shall mean all
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deposits, rents, issues, profits, revenues, royalties, and other revenue
producing arrangements, whether written or oral, and all monetary benefits of,
and/or derived from, and/or sums payable under and by virtue of the Space Leases
and/or the Premises.
4.3.2. So long as there shall not have occurred and then be continuing any
Event of Default and until such right of the Mortgagor is terminated by the
Mortgagee as provided in SECTION 4.3.3, the Mortgagee will not exercise its
rights pursuant to SECTION 4.3.1, and, notwithstanding anything in SECTION 4.3.1
to the contrary, the Mortgagor shall have the right (but limited as hereinafter
provided) to exercise all of its rights under the Space Leases, including,
without limitation, to collect and receive all rents, income, receipts,
revenues, issues and profits arising therefrom, provided that the Mortgagor
shall at all times comply with, observe and perform, in the exercise of such
right, all of the provisions of this Mortgage and the other Security Documents
applicable to the Space Leases; provided, further, that no action shall be taken
or failed to be taken by the Mortgagor which would impair the Collateral or any
other collateral security for the Obligations provided for in the Security
Documents.
4.3.3. The Mortgagee, upon the occurrence and during the continuance of an
Event of Default, at its option and upon written notice to the Mortgagor, shall
have the right to terminate the right of the Mortgagor to exercise its rights
under the Space Leases, and, thereupon, in addition, the Mortgagee, at any time
thereafter, at its option, shall have the complete right, power and authority
hereunder to exercise and enforce all rights, powers, remedies, authority,
options and privileges of the Mortgagor under the Space Leases in the name of
the Mortgagor or the Mortgagee, to enforce all obligations of the other parties
to the Space Leases and to exercise and enforce all of its rights and remedies
hereunder and under law not exercisable prior to an Event of Default.
4.3.4. The Mortgagor does hereby direct each and all of the Space Tenants
under the Space Leases and all contractual obligors of the Mortgagor to pay any
Income to the Mortgagee upon written demand for payment thereof by the Mortgagee
without further inquiry. It is understood and agreed, however, that no such
demand shall be made unless an Event of Default shall have occurred and be
continuing. No such Space Tenant or obligor shall be obliged to account to the
Mortgagor for any amounts paid to the Mortgagee by reason of any payment made to
the Mortgagee pursuant to such
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demand and, upon any such payment to the Mortgagee, shall be pro tanto released
from their obligations to the Mortgagor with respect to such payment. Each Space
Tenant shall be permitted to rely on any communication from the Mortgagee
pursuant hereto, and under no circumstances shall such Space Tenant be obligated
to the Mortgagor for any payments made to the Mortgagee hereunder. Until such
demand is made, the Mortgagor is authorized to collect or enforce or continue
collecting or enforcing such Income in accordance with the provisions of this
Mortgage.
4.3.5. The Mortgagee shall not have any duty as to the collection or
protection of the Collateral or any income thereon or payments with respect
thereto, or as to the preservation of any rights pertaining thereto beyond the
safe custody of any thereof actually in its possession. In no instance shall the
Mortgagee be responsible to lessees for payment of interest upon, or return of,
any lease security deposits, except as provided by law or as provided in the
leases and then only if and to the extent that such deposits are received by the
Mortgagee. The Mortgagor hereby waives notice of acceptance hereof, and except
as otherwise specifically provided herein or required by provision of law which
may not be waived, hereby waives any and all notices or demands with respect to
any exercise by the Mortgagee of any rights or powers which it may have or to
which it may be entitled with respect to the Collateral.
4.3.6. The Mortgagor hereby irrevocably constitutes and appoints the
Mortgagee as the true and lawful attorney-in-fact of the Mortgagor, which
appointment is coupled with an interest, with full power of substitution, to
proceed from time to time in the Mortgagor's name in any statutory or
non-statutory proceeding affecting the Mortgagor or any Collateral, and the
Mortgagee or its nominee may (i) execute and file proof of claim for the full
amount of any Collateral and vote such claims for the full amount thereof (A)
for or against any proposal or resolution, (B) for a trustee or trustees or for
a receiver or receivers or for a committee of creditors and/or (C) for the
acceptance or rejection of any proposed arrangement, plan of reorganization,
composition or extension, and the Mortgagee or its nominee may receive any
payment or distribution and give acquittance therefor and may exchange or
release Collateral; (ii) endorse any draft or other instrument for the payment
of money, execute releases and negotiate and enter into settlements; and (iii)
execute all such other documents or instruments as may be necessary or expedient
to be executed by the Mortgagor for any of the purposes of this Mortgage;
provided, however, that the power
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provided for in this sentence may be exercised by the Mortgagee only while an
Event of Default is continuing. The Mortgagee shall have no duty to exercise any
of the aforesaid rights, privileges or options and shall not be responsible for
any failure to do so or delay in so doing.
4.4. Remedies and Entry Upon Default.
4.4.1. So long as no Event of Default shall have occurred and be
continuing, the Mortgagor shall have the right to collect (but not more than one
(1) month in advance) and retain all of the rents, gross receipts and other
payments, if any, from the Space Leases and from the Mortgaged Premises
generally, and the Mortgagee agrees that customary initial rent payments,
security deposits and reimbursements by a Space Tenant to the Mortgagor on
account of alterations made by the Mortgagor for the benefit of the Space Tenant
are permissible advance payments by the Space Tenant.
4.4.2. Upon any Event of Default, the Mortgagee may, but shall not be
obligated to:
(a) terminate the rights of the Mortgagor referred to in SECTION 4.3
hereof and exercise all of the powers, rights and remedies provided for in
SECTION 4.3 hereof, including those to be exercised only from and after an
Event of Default;
(b) at any time and from time to time, without notice to, or assent
by, the Mortgagor or any other Person, but without affecting any of the
Obligations, in the name of the Mortgagor or in the name of the Mortgagee,
notify the account debtors and obligors on any or all of the Space Leases
to make payment and performance directly to the Mortgagee, and demand,
collect, receive, compound and give acquittance for the Space Leases or any
part thereof; extend the time of payment and performance of, compromise or
settle for cash, credit or otherwise, upon any terms and conditions, any of
the Space Leases; endorse to the order of the Mortgagee checks, drafts or
other orders or instruments for the payment of moneys payable to the
Mortgagor which shall be issued in respect of any of the Space Leases; file
any claims, commence, maintain or discontinue any actions, suits or other
proceedings deemed by the Mortgagee necessary or advisable for the purpose
of collecting upon or enforcing any of the Space Leases; and execute any
instrument and do all other things deemed necessary and proper by the
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Mortgagee to protect and preserve and realize upon the Space Leases and/or
the other rights contemplated hereby; the Mortgagor hereby irrevocably
constitutes and appoints the Mortgagee as such the Mortgagor's lawful
attorney-in-fact, coupled with an interest, and its agent for the foregoing
purposes;
(c) demand, collect, ▇▇▇ for, attach, levy, recover, receive,
compromise and adjust, and make, execute and deliver receipts and releases
for all Income that may then be or may thereafter become due, owing or
payable with respect to the Premises or any part or parts thereof from any
present or future lessees, tenants, subtenants or occupants thereof or from
any present or future contract obligors; and/or
(d) pay, in such order as the Mortgagee in its sole discretion shall
determine, from and out of the Income collected in connection with the
Premises and/or the Collateral or any part or parts thereof or from or out
of any other funds (less the expense of collection, including reasonable
attorneys' fees and disbursements), any taxes, assessments, water rates,
sewer rates, or other government or other charges levied, assessed or
imposed against the Premises or any part or part thereof, and also any and
all other charges, costs and expenses which the Mortgagee deems necessary
or advisable to pay in respect of the management or operation of the
Premises, including, without limitation, the costs of insurance policies,
repairs and alterations, commissions for renting the Premises or any part
or parts thereof, legal expenses in enforcing claims, preparing papers or
procuring any other services that may be required and any amounts payable
under or pursuant to any Lease; all amounts so paid and expended shall be
payable on demand, together with interest at the Involuntary Rate from the
date incurred until paid, and be deemed to be included within the
Obligations and secured by this Mortgage; the provisions of this ARTICLE
and the rights given to the Mortgagee hereby shall inure to the benefit of
the Mortgagee even though the Mortgagee does not enter and take possession
of the Premises; any balance remaining after the indebtedness secured
hereby and the other obligations of the Mortgagor under the Loan and
Security Documents shall have been paid in full shall be turned over to the
Person lawfully entitled thereto. Neither the entry upon and taking
possession of the Mortgaged Premises, nor the collection and application of
the rents, gross receipts or other charges thereof,
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nor any other action taken by the Mortgagee in connection therewith, shall
cure or waive any default hereunder or waive or modify any notice thereof
or notice of acceleration of the Note theretofore given by the Mortgagee.
4.4.3. If an Event of Default shall have occurred and be continuing, a
notice in writing by the Mortgagee to the Space Tenants under the Space Leases
advising them that the Mortgagor has defaulted hereunder and requesting that all
future payments of rent, additional rent or other charges under the Space Leases
be made to the Mortgagee (or its agent) shall be construed as conclusive
authority to such Space Tenants that such payments are to be made to the
Mortgagee (or its agent). Each Space Tenant shall be fully protected in making
such payments to the Mortgagee (or its agent) and be given full credit against
its obligations under the applicable Space Lease to the extent of payments made
to the Mortgagee (or its agent) pursuant to any such notice; and the Mortgagor
hereby irrevocably constitutes and appoints the Mortgagee the attorney-in-fact
and agent of the Mortgagor, coupled with an interest, for the purpose of
endorsing the consent of the Mortgagor on any such notice.
4.5. No Obligation of The Mortgagee.
4.5.1. The Mortgagee shall not be obligated to perform or discharge any
obligation of the Mortgagor as a result of the assignment hereby effected, and
the Mortgagor hereby agrees to indemnify and hold the Mortgagee harmless from
and against any and all liability, loss or damage which the Mortgagee may incur
by reason of any act of the Mortgagee under this Mortgage, other than as a
result of the Mortgagee's willful misconduct or gross negligence and other than
as a result of the Mortgagee's misconduct or negligence after the Mortgagee has
taken possession of the Premises. Should the Mortgagee (i) incur any such
liability, loss or damage by reason of this Mortgage and which is covered by the
foregoing indemnity, or in defense against any such claims or demands, or (ii)
perform any acts or covenants on the part of the Mortgagor to be performed under
the Space Leases, or (iii) pay for the account of the Mortgagor (other than from
Income or from funds delivered to the Mortgagee by the Mortgagor to be held in
trust for such purpose), any and all sums, costs and expenses for the discharge
of taxes, assessments, water rents or other liens against the Collateral or any
part thereof, or on account of insurance premiums or repairs, and also any
amounts and expenses necessary to perform any
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covenants and conditions to be performed on the part of the Mortgagor under the
Space Leases, the amount thereof, including costs, expenses and reasonable
attorneys' fees, together with interest thereon at the Involuntary Rate from the
date such expenses were paid by the Mortgagee to the date of payment to the
Mortgagee by the Mortgagor, shall be included in the Obligations secured by this
Mortgage, and the Mortgagor shall reimburse the Mortgagee therefor upon demand.
4.5.2. The acceptance by the Mortgagee of this Mortgage, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Mortgagee to appear in or defend any action or proceeding
relating to the Collateral, or to take any action hereunder or thereunder, or to
expend any money or incur any expenses or perform or discharge any obligation,
duty or liability under the Collateral.
ARTICLE V.
Security Agreement Under Uniform Commercial Code
5.1. This Mortgage shall constitute a security agreement and fixture filing
within the meaning of the Uniform Commercial Code of the State (the "Code"), and
the Mortgagee shall be deemed to be the "secured party" (as that term is defined
in the Code). The Mortgagor hereby grants to the Mortgagee, as additional
collateral for the obligations under the Note and the other Obligations secured
hereby, a security interest in and to all of the Mortgaged Premises which are
considered or as shall be determined to be personal property or "fixtures" (as
defined in the Code), including, without limitation, the Building Service
Equipment, the Furnishings, the Payments and Intangibles, all books, records,
licenses and certificates of the Mortgagor relating to the Mortgaged Premises,
together with all replacements thereof, substitutions therefor or additions
thereto (said property being sometimes hereinafter referred to as the "Personal
Property"). The Mortgagor agrees that a security interest shall attach to the
Personal Property for the benefit of the Mortgagee to secure the indebtedness
evidenced by the Note and the other Obligations secured by this Mortgage and all
other sums and charges which may become due hereunder, thereunder or under any
of the other Security Documents. The Mortgagor hereby authorizes the Mortgagee
to file financing and continuation statements with respect to the Personal
Property without the signature of the Mortgagor, if permitted by the Code. In
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any event the Mortgagor covenants to execute such financing and continuation
statements as the Mortgagee may reasonably request. If an Event of Default shall
occur and be continuing, the Mortgagee, pursuant to the appropriate provisions
of the Code, shall have the option of proceeding as to both real and personal
property in accordance with its rights and remedies in respect of real property
under this Mortgage and the law of the State, in which event the default
provisions of the Code shall not apply. The Mortgagor agrees that, in the event
the Mortgagee shall elect to proceed with respect to the Personal Property
separately from the real property, unless a greater period shall then be
mandated by the Code, five (5) days notice of the sale of the Personal Property
shall be reasonable notice. The expenses of retaking, holding, preparing for
sale and selling incurred by the Mortgagee shall be assessed against the
Mortgagor and shall include, but not be limited to, the reasonable legal
expenses incurred by the Mortgagee. The Mortgagor agrees that it will not remove
or permit to be removed from the Mortgaged Premises any of the Personal Property
without the prior written consent of the Mortgagee except as set forth in
SECTION 2.7.2. All replacements, renewals and additions to the Personal Property
shall be and become immediately subject to the security interest of this
Mortgage and the provisions of this ARTICLE V. The Mortgagor warrants and
represents that all Personal Property now is free and clear of all liens,
encumbrances or security interests other than the Permitted Encumbrances, and
that all replacements of the Personal Property, substitutions therefor or
additions thereto, unless the Mortgagee otherwise consents, will be, free and
clear of liens, encumbrances or security interests of others.
ARTICLE VI.
Events of Default and Remedies
6.1. Events of Default. The whole of the outstanding Principal Amount (as
defined in the Note) and accrued interest evidenced by the Note shall, at the
option of the Mortgagee, become due upon the happening of an Event of Default;
provided, however, that upon the occurrence of a default specified in SECTIONS
5.01(f) or 5.01(g) of the Loan Agreement, or upon the occurrence of any other
default specified in any Loan Document (as defined in the Loan Agreement) where
provision is made for acceleration to occur automatically as a consequence
thereof, all sums owing to
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the Mortgagee thereunder shall automatically become immediately due and payable.
6.2. Remedies.
6.2.1. If an Event of Default shall occur and be continuing, the Mortgagee,
at its option, may exercise any or all of the following rights:
(1) use the non-judicial Power of Sale which is hereby conferred under
the terms of this Mortgage. Such Power of Sale shall be exercised by giving
the Mortgagor Notice of Intent to Foreclose by Power of Sale and setting
forth among other things, the nature of the breach(es) or default(s) and
the action required to effect a cure thereof and the time period within
which such cure may be effected all in compliance with Title 46 Oklahoma
Statutes ▇▇.▇▇. 40 et. seq. (Oklahoma Power of Sale Mortgage Foreclosure
Act) effective November 1, 1986, as the same may be amended from time to
time or other applicable statutory authority. If no cure is effected within
the statutory time limits, the Mortgagee may accelerate the Indebtedness
without further notice (the aforementioned statutory cure period shall run
concurrently with any contractual provision for notice and/or cure period
before acceleration of debt) and may then proceed in the manner and subject
to the conditions of the above referenced statutes to send to the Mortgagor
and other necessary parties a Notice of Sale and to sell and convey the
Mortgaged Premises in accordance with the above referenced statute. The
sale shall be made at one or more sales, as an entirety or in parcels, upon
such notice, at such time and places, subject to all conditions and with
the proceeds thereof to be applied all as provided in said Oklahoma Power
of Sale Mortgage Foreclosure Act. No action of the Mortgagee based upon the
provisions contained herein or contained in the Oklahoma Power of Sale
Mortgage Foreclosure Act, including, without limitation, the giving of the
Notice of Intent to Foreclose by Power of Sale or the Notice of Sale, shall
constitute an election of remedies which would preclude the Mortgagee from
pursuing judicial foreclosure before or at any time after commencement of
the power of sale foreclosure procedure.
(2) whether or not proceedings have commenced by the exercise of the
power of sale above given, the Mortgagee or the holder or holders of any of
the Indebtedness secured by the Mortgage, in
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lieu of proceeding with the power of sale, (or in the event of homestead
property where the Mortgagor has elected judicial foreclosure, as provided
in the above referenced statutes) may at its (their) option (after any
applicable contractual cure period has expired without such default being
cured) declare the whole amount of the Indebtedness secured by this
Mortgage remaining unpaid, immediately due and payable without notice, and
proceed by suit or suits in equity or at law to foreclose this Mortgage.
Appraisement of the Mortgaged Premises is hereby waived or not waived at
the option of the Mortgagee, such option to be exercised at or prior to the
time judgment is rendered in such judicial foreclosure. The Mortgaged
Premises may be sold as one parcel or in such parcels as the Mortgagee may
elect unless otherwise provided by law.
(3) enter upon the Mortgaged Premises and take exclusive possession
thereof and of all books, records and accounts relating thereto. If the
Mortgagor remains in possession of all or any part of the Mortgaged
Premises after an Event of Default and without the Mortgagee's prior
written consent thereto, the Mortgagee may invoke any and all legal
remedies to dispossess the Mortgagor, including specifically one or more
actions for forcible entry and detainer, trespass to try title and writ of
restitution. Nothing contained in the foregoing sentence shall, however, be
construed to impose any greater obligation or any prerequisites to
acquiring possession of the Mortgaged Premises after an Event of Default
than would have existed in the absence of such sentence;
(4) hold, lease, manage, operate or otherwise use or permit the use of
the Mortgaged Premises, either itself or by other persons, firms or
entities, in such manner, for such time and upon such other terms as the
Mortgagee may deem to be prudent and reasonable under the circumstances
(making such repairs, alterations, additions and improvements thereto and
taking any and all other action with reference thereto, from time to time,
as the Mortgagee shall deem necessary or desirable), and apply all rents,
issues, income and profits and other amounts collected by the Mortgagee in
connection therewith in accordance with the provisions set forth
hereinbelow;
(5) sell the Mortgaged Premises in the manner and form prescribed by
law through
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foreclosure of the lien created pursuant to this Mortgage;
(6) upon, or at any time after, commencement of foreclosure of the
lien and security interest provided for herein or any legal proceedings
hereunder, make application to a court of competent jurisdiction as a
matter of strict right and without notice to the Mortgagor other than as
specifically provided herein or in the other Security Documents or regard
to the adequacy of the Mortgaged Premises for the repayment of the
Indebtedness or to the solvency or insolvency of the Mortgagor, for
appointment of a receiver of the Mortgaged Premises, and the Mortgagor does
hereby irrevocably consent to such appointment. Any such receiver shall
have all the usual powers and duties of receivers in similar cases,
including the full power to rent, maintain and otherwise operate the
Mortgaged Premises upon such terms as may be approved by the court, and
shall apply such rents, issues, income and profits in accordance with the
provisions set forth hereinbelow;
(7) exercise any and all other rights, remedies and recourses granted
under the Security Documents or now or hereafter existing in equity, at
law, by virtue of statute or otherwise; and/or
(8) exercise any and all remedies available to a secured party under
the UCC in such order and in such manner as the Mortgagee in its sole
discretion may determine; provided, however, that the expenses of retaking,
holding, preparing for sale or the like, shall include reasonable
attorneys' fees and other expenses of the Mortgagee and be secured by this
Mortgage;
6.2.2. The 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, the Mortgagee, without
further notice or publication, may make such sale at the time and place to which
the same shall be so adjourned.
6.2.3. Upon the completion of any sale or sales made by the Mortgagee under
or by virtue of this SECTION 6.2, the Mortgagee, or an officer of any court
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empowered to do so, shall execute and deliver to the accepted purchaser or
purchasers a good and sufficient instrument or instruments conveying, assigning
and transferring all estate, right, title and interest in and to the property
and rights sold. The Mortgagee is hereby irrevocably appointed the true and
lawful attorney of the Mortgagor, in its name and stead, to make all necessary
conveyances, assignments, transfers and deliveries of the Mortgaged Premises and
rights so sold and for that purpose the Mortgagee may execute all necessary
instruments of conveyance, assignment and transfer, and may substitute one or
more persons with like power, the Mortgagor hereby ratifying and confirming all
that its said attorney or such substitute or substitutes shall lawfully do by
virtue hereof. Nevertheless, the Mortgagor, if requested by the Mortgagee, shall
ratify and confirm any such sale or sales by executing and delivering to the
Mortgagee or to such purchaser or purchasers all such instruments as may be
advisable, in the judgment of the Mortgagee, for the purpose, and as may be
designated in such request. Any such sale or sales made under or by virtue of
this SECTION 6.2, 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 the Mortgagor in and to
the properties and rights so sold, and shall be a perpetual bar both at law and
in equity against the Mortgagor and against any and all persons claiming or who
may claim the same, or any part thereof from, through or under the Mortgagor.
6.2.4. In the event of any sale or sales made under or by virtue of this
SECTION 6.2 (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), the entire principal of, and interest on, the Note, if not previously due
and payable, and all other sums required to be paid by the Mortgagor pursuant to
this Mortgage, immediately thereupon shall, anything in the Note or in this
Mortgage to the contrary notwithstanding, become due and payable.
6.2.5. The purchase money, proceeds or avails of any sale or sales made
under or by virtue of this SECTION 6.2, together with any other sums which then
may be held by the Mortgagee under this Mortgage, whether under the provisions
of this SECTION 6.2, or otherwise, shall be applied as follows:
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First: To the payment of the costs and expenses of such sale,
including reasonable compensation to the Mortgagee, its agents and counsel,
and of any judicial proceedings wherein the same may be made, and of all
expenses, liabilities and advances made or incurred by the Mortgagee under
this Mortgage, together with interest at the Involuntary Rate on all
advances made by the Mortgagee, and of all taxes, assessments or other
charges, except any taxes, assessments or other charges subject to which
the Mortgaged Premises shall have been sold.
Second: To the payment of the whole amount then due, owing or unpaid
upon the Note for principal and interest, with interest on the unpaid
principal at the Involuntary Rate from and after the happening of any Event
of Default from the due date of any such payment of principal until the
same is paid.
Third: To the payment of any other sums required to be paid by the
Mortgagor pursuant to any provision of this Mortgage or of the Note.
Fourth: To the payment of the surplus, if any, to whomsoever may be
lawfully entitled to receive the same.
6.2.6. Upon any sale or sales made under or by virtue of this SECTION 6.2,
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, the
Mortgagee may bid for and acquire the Mortgaged Premises or any part thereof and
in lieu of paying cash therefor may make settlement for the purchase price by
crediting upon the indebtedness secured by this Mortgage the net sales price
after deducting therefrom the expenses of the sale and the costs of the action
and any other sums which the Mortgagee is authorized to deduct under this
Mortgage.
6.2.7. In case an Event of Default shall have happened and be continuing,
then, upon written demand of the Mortgagee, the Mortgagor will pay to the
Mortgagee the whole amount which then shall have become due and payable on the
Note, for principal or interest or both, as the case may be, and after the
happening of said Event of Default will also pay to the Mortgagee interest at
the Involuntary Rate on the then unpaid principal of the Note,
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and the sums required to be paid by the Mortgagor pursuant to any provision of
this Mortgage or the Note, and in addition thereto such further amount as shall
be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Mortgagee, its agents and counsel and any
expenses incurred by the Mortgagee hereunder. In the event the Mortgagor shall
fail forthwith to pay such amounts upon such demand, the Mortgagee shall be
entitled and empowered to institute such action or proceedings at law or in
equity as may be advised by its counsel for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Mortgagor and collect, out of the property of the Mortgagor wherever situated,
as well as out of the Mortgaged Premises, in any manner provided by law, moneys
adjudged or decreed to be payable.
6.2.8. Any moneys thus collected by the Mortgagee under this SECTION 6.2
shall be applied by the Mortgagee in accordance with the provisions of SECTION
6.2.5 hereof.
6.2.9. After the happening of any Event of Default and immediately upon the
commencement of any action, suit or other legal proceedings by the Mortgagee to
obtain judgment for the principal of, or interest on, the Note and other sums
required to be paid by the Mortgagor pursuant to any provision of this Mortgage
or the Note, or of any other nature in aid of the enforcement of the Note or of
this Mortgage, the Mortgagor will (a) waive the issuance and service of process
and enter its voluntary appearance in such action, suit or proceeding and (b) if
required by the Mortgagee, consent to the appointment of a receiver or receivers
of all or part of the Mortgaged Premises and of any or all of the rents, issues
and profits of the Mortgaged Premises in respect thereof. After the happening of
any Event of Default and during its continuance, or upon the commencement of any
proceedings to foreclose this Mortgage or to enforce the specific performance
hereof or in aid thereof or upon the commencement of any other judicial
proceeding to enforce any right of the Mortgagee, the Mortgagee shall be
entitled, as a matter of right, if it shall so elect, without the giving of
notice to any other party and without regard to the adequacy or inadequacy of
any security for the indebtedness secured hereby, forthwith either before or
after declaring the unpaid principal of the Note to be due and payable, to the
appointment of such a receiver or receivers.
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6.2.10. Notwithstanding the appointment of any receiver, liquidator or
trustee of the Mortgagor, or of any of its property, or of the Mortgaged
Premises, or any part thereof, the Mortgagee shall be entitled to retain
possession and control of all property now or hereafter held under this
Mortgage.
6.2.11. The Mortgagor will not at any time insist upon, or plead, or in any
manner whatever claim or take any benefit or advantage of any stay or extension
or moratorium law, any exemption from execution or sale of the Mortgaged
Premises or any part thereof, wherever enacted, now or at any time hereafter in
force, which may affect the covenants and terms of performance of this Mortgage,
nor claim, take or insist upon any benefit or advantage of any law now or
hereafter in force providing for the valuation or appraisal of the Mortgaged
Premises, or any part thereof, prior to any sale or sales thereof which may be
made pursuant to any provision herein, or pursuant to the decree, judgment or
order of any court of competent jurisdiction; nor, after any such sale or sales,
claim or exercise any right under any statute heretofore or hereafter enacted to
redeem the property so sold or any part thereof and the Mortgagor hereby
expressly waives all benefit or advantage of any such law or laws, and covenants
not to hinder, delay or impede the execution of any power herein granted or
delegated to the Mortgagee, but to suffer and permit the execution of every
power as though no such law or laws had been made or enacted.
6.2.12. During the continuance of any Event of Default and pending the
exercise by the Mortgagee of its right to exclude the Mortgagor from all or any
part of the Premises, the Mortgagor agrees to pay the fair and reasonable rental
value for the use and occupancy of the Premises or any portion thereof which are
in its possession for such period and, upon default of any such payment, will
vacate and surrender possession of the Premises to the Mortgagee or to a
receiver, if any, and in default thereof may be evicted by any summary action or
proceeding for the recovery of possession of premises for non-payment of rent,
however designated.
6.3. Sale; No Marshalling of Assets.
6.3.1. In case of a foreclosure sale, all of the Mortgaged Premises may be
sold in one parcel even though the proceeds of such sale exceed or may exceed
the indebtedness secured hereby. The Mortgagee shall not be required to exercise
any rights under this Mortgage before
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proceeding against any other security, shall not be required to proceed against
other security before proceeding under this Mortgage, and shall not be precluded
from proceeding against any or all of any security held by the Mortgagee for any
or all of the indebtedness secured hereby in any order or at the same time.
6.3.2. The Mortgagor agrees, to the full extent that it may lawfully do so,
that in any foreclosure or other action brought by the Mortgagee to enforce this
Mortgage, it will not at any time insist upon or plead or in any way take
advantage of any appraisement, valuation, stay, marshalling of assets,
extension, redemption or moratorium law now or hereafter in force and effect so
as to prevent, hinder, delay or otherwise affect the enforcement of the
provisions of this Mortgage or any rights or remedies the Mortgagee may have
hereunder or by law.
6.3.3. If the Mortgagee shall elect to accelerate the indebtedness secured
hereby following the occurrence of an Event of Default, the Mortgagor, within
five (5) days after demand, will pay to the Mortgagee, or any receiver appointed
in connection with the foreclosure of this Mortgage, any and all amounts then
held as security deposits under all Space Leases; and the Mortgagee or such
receiver shall be deemed to indemnify the Mortgagor against all claims of
tenants in respect of the security deposits so paid following such demand.
6.4. Legal Expenses of the Mortgagee.
6.4.1. The Mortgagor will pay to the Mortgagee, on demand, all costs,
charges and expenses (including, without limitation, reasonable attorneys' fees
and disbursements) incurred or paid at any time by the Mortgagee (i) in
connection with any action or proceeding to foreclose this Mortgage or to
recover or collect all, or any portion of the indebtedness secured hereby; and
(ii) in connection with any modification or amendment or assignment of this
Mortgage or the other Security Documents, together with interest on each such
payment made by the Mortgagee at the Involuntary Rate from the date of the
Mortgagee's demand for such payment to the date of reimbursement by the
Mortgagor.
6.4.2. If any action or proceeding be commenced in which the Mortgagee is
made a party, or in which it becomes necessary to defend or uphold the lien of
this Mortgage, all reasonable sums paid by the Mortgagee for the expense of any
litigation to prosecute or defend the
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title, rights and lien created by this Mortgage (including, without limitation,
reasonable attorneys' fees) shall be paid by the Mortgagor, together with
interest thereon at the Involuntary Rate from the date of the Mortgagee's demand
for such payment to the date of reimbursement by the Mortgagor.
6.5. Remedies Cumulative; No Waiver; Etc.
6.5.1. No remedy in this Mortgage conferred upon or reserved to the
Mortgagee is intended to be exclusive of any other remedy or remedies, and each
and every such remedy shall be cumulative, and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity.
No delay or omission by the Mortgagee in exercising any right or power arising
upon any Event of Default shall impair any such right or power, or shall be
construed to be a waiver of or acquiescence in any such Event of Default; and
every power and remedy given by this Mortgage to the Mortgagee may be exercised
from time to time as often as the Mortgagee may determine it is appropriate to
do so.
6.5.2. A waiver in one or more instances of compliance with any of the
terms, covenants, conditions or provisions of the Note, the Loan Agreement or of
the Security Documents shall apply to the particular instance or instances and
at the particular time or times only, and no such waiver shall be deemed a
continuing waiver. In any event, no waiver shall be effective, or be asserted by
the Mortgagor as having been made, unless set forth in a writing signed by the
Mortgagee.
6.5.3. The Mortgagor waives and renounces all homestead and similar
exemption rights with respect to the Mortgaged Premises provided for by the
Constitution and laws of the United States and of the State as against the
collection of the Security Documents, or any part thereof.
6.6. No Merger. It is the intention of the parties to this Mortgage that if
the Mortgagee shall at any time hereafter acquire title to all or any portion of
the Mortgaged Premises, then, and until the indebtedness secured hereby has been
paid in full, the interest of the Mortgagee hereunder and the lien of this
Mortgage shall not merge or become merged in or with the estate and interest of
the Mortgagee, as the holder and owner of title to all or any portion of the
Mortgaged Premises and that, until such payment, the estate of the Mortgagee in
the Mortgaged Premises and the lien of this Mortgage and the interest of the
Mortgagee hereunder shall continue in full force and
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effect to the same extent as if the Mortgagee had not acquired title to all or
any portion of the Mortgaged Premises.
ARTICLE VII.
Provisions of General Application
7.1. Modifications. No change, amendment, termination, modification or
cancellation of this Mortgage, or of any part hereof, shall be valid unless set
forth in a writing signed by the Mortgagor and the Mortgagee, except that only
the Mortgagee need sign any satisfaction of this Mortgage. ANY AGREEMENT
HEREAFTER MADE BY THE MORTGAGOR AND THE MORTGAGEE RELATING TO THIS MORTGAGE
SHALL BE SUPERIOR TO THE RIGHTS OF THE HOLDER OF ANY INTERVENING OR SUBORDINATE
LIEN OR ENCUMBRANCE.
7.2. Notices. All notices, demands, requests, consents, approvals or other
communications (each, a "Notice") given or required to be given hereunder shall
be sent to the addresses and in the manner required by the Loan Agreement.
7.3. The Mortgagee's Rights to Perform the Mortgagor's Covenants. If the
Mortgagor shall fail to pay or cause payment to be paid to the Mortgagee in
accordance with the terms of the Security Documents, or to perform or observe
any other term, covenant, condition or obligation required to be performed or
observed by the Mortgagor under this Mortgage or the other Security Documents,
without limiting any other provision of this Mortgage, and without waiving or
releasing the Mortgagor from any obligation or default hereunder, after giving
any notice to the Mortgagor required hereunder and after the passage of any
applicable cure periods (or without such notice in the event of an emergency),
the Mortgagee (or any receiver of the Mortgaged Premises) shall have the right,
but not the obligation, to make any such payment, or to perform any other act or
take any appropriate action, including, without limitation, entry on the
Mortgaged Premises and performance of work thereat, as it, in its sole
discretion, may deem necessary to cause such other term, covenant, condition or
obligation to be promptly performed or observed on behalf of the Mortgagor or to
protect the security of this Mortgage. All amounts advanced by, or on behalf of,
the Mortgagee in exercising its rights under this SECTION 7.3 (including, but
not limited to, legal expenses and disbursements incurred in
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connection therewith), together with interest thereon at the Involuntary Rate
from the date of the Mortgagee's demand upon the Mortgagor for reimbursement of
such sums until reimbursement by the Mortgagor, shall be payable by the
Mortgagor to the Mortgagee upon demand and shall be secured by this Mortgage.
7.4. Additional Sums Payable by the Mortgagor. All sums which, by the terms
of this Mortgage or any of the other Security Documents (excluding however the
principal indebtedness evidenced by the Note), are payable by the Mortgagor to
the Mortgagee shall, together with the interest thereon provided for herein or
in the Note or such other Security Documents, be added to and deemed part of the
indebtedness secured by the lien of this Mortgage whether or not the provision
which obligates the Mortgagor to make any such payment to the Mortgagee
specifically so states.
7.5. Captions. The captions used in this Mortgage are inserted only as a
matter of convenience and for reference, and in no way define, limit, enlarge or
describe the scope or intent of this Mortgage or in any other way affect this
Mortgage or the construction of any provision hereof.
7.6. Successors and Assigns. The covenants and agreements contained in this
Mortgage shall run with the land and bind the Mortgagor, the successors and
assigns of the Mortgagor and all subsequent owners, encumbrances and Space
Tenants of the Mortgaged Premises, or any part thereof; and shall inure to the
benefit of the Mortgagee, its successors and assigns and all subsequent
beneficial owners of this Mortgage.
7.7. Gender and Number. Wherever the context of this Mortgage so requires,
the neuter gender includes the masculine and/or feminine gender and the singular
number includes the plural.
7.8. Severability. If any one or more of the provisions contained in this
Mortgage shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Mortgage; and this Mortgage shall, in such event,
be construed as if such invalid, illegal or unenforceable provision had never
been included.
7.9. Usury. Anything in the Note, the Loan Agreement, this Mortgage or the
other Security Documents to
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the contrary notwithstanding, the Mortgagee shall never be entitled to receive,
collect or apply as interest on the principal amount of the Note or any other of
the obligations secured hereby any amount in excess of the maximum rate of
interest permitted to be charged by applicable law. In the event the Mortgagee
ever receives, collects or applies as interest any such excess, the amount which
would be excessive interest shall be applied to the reduction of the principal
amount of said obligations; and if said principal amount shall have been paid in
full, shall be remitted to the Person lawfully entitled thereto. In determining
whether or not the interest paid or payable in any specific instance shall
exceed the highest lawful rate, the Mortgagor and the Mortgagee shall to the
maximum extent permitted by applicable law (i) characterize any non-principal
payment as an expense, fee or premium rather than as interest, (ii) exclude
voluntary prepayments and the effects thereof and (iii) "spread" the total
amount of interest throughout the entire contemplated terms of the obligations
so that the interest rate is uniform throughout the entire said term.
7.10. Controlling Law. This Mortgage shall be governed by, and construed
and enforced in accordance with the laws of the State of Oklahoma applicable to
contracts made and to be wholly performed within such state.
7.11. Entire Agreement. This Mortgage, together with the Note, the Loan
Agreement and the other Security Documents, embodies the entire agreement and
understanding between the parties relating to the subject matter hereof.
ARTICLE VIII.
Particular Provisions
The foregoing ARTICLES of this Mortgage are subject to the following
further provisions set forth in this ARTICLE VIII.
8.1. Limited Recourse. The provisions of PARAGRAPH 6.16 of the Loan
Agreement are hereby incorporated herein by reference.
8.2. Environmental Representations and Warranties. The Mortgagor hereby
makes the following representations and warranties to the Mortgagee with respect
to the Mortgaged Premises:
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8.2.1. Compliance with Environmental Laws. To the best of the Mortgagor's
knowledge based on all appropriate and thorough inquiry, (i) the Mortgaged
Premises (including surface and subsurface soil and water and areas leased to
tenants, if any), and the use and operation thereof, have been and are currently
in compliance with all Environmental Laws (as hereinafter defined), (ii) all
required permits are in effect, and the Mortgagor is in compliance therewith,
and (iii) all Hazardous Materials (as hereinafter defined) generated or handled
on the Mortgaged Premises have been disposed of in a lawful manner.
8.2.2. No Hazardous Materials. To the best of the Mortgagor's knowledge
based on all appropriate and thorough inquiry (a) no Hazardous Release (as
hereinafter defined) or other Hazardous Activity (as hereinafter defined) has
occurred or is occurring on or from the Mortgaged Premises except in compliance
with Environmental Laws and as has been disclosed in writing to the Mortgagee
("Disclosed Material"), (b) all Hazardous Materials used, treated, stored,
transported to or from, generated or handled on the Mortgaged Premises have been
disposed of on or off the Mortgaged Premises in a lawful manner, (c) no
environmental or public health or safety hazards currently exist with respect to
the Mortgaged Premises or the business or operations conducted thereon, (d) no
underground storage tanks (including but not limited to petroleum or heating oil
storage tanks) are present on or under the Mortgaged Premises or have been on or
under the Mortgaged Premises, except as has been disclosed in writing to the
Mortgagee, and (e) no changes have been made to or discovered regarding the
operations, use or environmental conditions on the Mortgaged Premises since the
date of the most recent written environmental assessment provided to the
Mortgagee.
8.2.3. No Environmental Actions. To the best of the Mortgagor's knowledge
and based on all appropriate and thorough inquiry, the Mortgaged Premises is not
listed on any local, state and/or federal lists of potentially contaminated
sites, including, but not limited to, the National Priorities List,
Comprehensive Environmental Response, Compensation and Liability Information
System or any state or federal hazardous waste site or leaking underground
storage tank lists, and there have been no past and there are no pending or
threatened Environmental Actions (as hereinafter defined) to which the Mortgagor
is a party or which relate to the Mortgaged Premises. The Mortgagor has not
received any notice of any Environmental Action respecting Mortgagor, the
Mortgaged
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Premises or any off-site facility to which has been sent any Hazardous Material
for purposes of any Hazardous Activity.
8.2.4. Intentionally Deleted.
8.2.5. Definitions. For purposes of this Mortgage, the following
capitalized terms shall have the meanings set forth below:
"Environmental Action" shall mean:
(a) any notice of violation, complaint, claim, citation, demand,
inquiry, report, action, assertion of potential responsibility, lien,
encumbrance, or proceeding regarding the Mortgaged Premises, whether formal
or informal, absolute or contingent, matured or unmatured, brought or
issued by any governmental unit, agency, or body, or any person or entity
respecting:
(1) any Environmental Law;
(2) the environmental condition of the Mortgaged Premises, or any
portion thereof, or any property near the Mortgaged Premises,
including actual or alleged damage or injury to humans, public health,
wildlife, biota, air, surface or subsurface soil or water, or other
natural resources; or
(3) any Hazardous Activity on the Mortgaged Premises or off-site;
(b) any violation or claim of violation by the Mortgagor of any
Environmental Law whether or not involving the Mortgaged Premises;
(c) any lien for damages caused by, or the recovery of any costs
incurred by any person or entity, including any governmental entity, for
the investigation, remediation or cleanup of any Hazardous Release or
threatened Hazardous Release on the Mortgaged Premises; or
(d) the destruction or loss of use of property, or the injury, illness
or death of any officer, director, employee, agent, representative, tenant
or invitee of the Mortgagor or any other person alleged to be or possibly
to be arising from or caused by the environmental condition of the
Mortgaged Premises or any Hazardous Activity on the Mortgaged Premises.
"Environmental Laws" shall mean:
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(a) any present or future federal statute, law, code, rule,
regulation, ordinance, order, standard, permit, license, guidance document
or requirement (including consent decrees, judicial decisions and
administrative orders) together with all related amendments, implementing
regulations and reauthorizations, pertaining to the protection,
preservation, conservation or regulation of the environment, including, but
not limited to: the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. Sections 9601 et seq. ("CERCLA"); the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et
seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et
seq. ("TOSCA"); the Clean Air Act, 42 U.S.C. Sections 7401 et seq.; the
Clean Water Act, 33 U.S.C. Sections 1251 et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C. Sections 1801 et seq. ("HMTA"); the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. Sections 11011 et seq.;
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Sections
136 et seq.; and the Atomic Energy Act, 42 U.S.C. Sections 2011 et seq.
(b) any present or future state or local statute, law, code, rule,
regulation, ordinance, order, standard, permit, license or requirement
(including consent decrees, judicial decisions and administrative orders)
together with all related amendments, implementing regulations and
reauthorizations, pertaining to the protection, preservation, conservation
or regulation of the environment.
"Hazardous Activity" shall mean any use, exposure, Hazardous Release,
generation, manufacture, sale, transport, handling, storage, treatment,
reuse, presence, decontamination, clean-up or recycling of any Hazardous
Material.
"Hazardous Materials" shall mean (a) all substances defined as
"hazardous substances", "hazardous materials", "toxic substances",
"hazardous wastes" or "solid waste" in CERCLA, RCRA, TOSCA or HMTA; (b)
those substances listed in the United States Department of Transportation
Table (49 C.F.R. 172.101 and amendments thereto) or by the Environmental
Protection Agency (or any successor agency) as "hazardous substances" (40
C.F.R. Part 302 and amendments thereto); those substances defined as
"hazardous wastes" or "hazardous substances" in the regulations adopted and
publications promulgated pursuant to said laws or which otherwise are or
become regulated by any governmental authority, agency, department,
commission, board or
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instrumentality of the United States of America, the State of Oklahoma, or
any political subdivision thereof; (d) any hazardous, dangerous or toxic
chemical, material, waste, pollutant, contaminant or substance
(collectively, "Pollutants") within the meaning of any Environmental Law
prohibiting, limiting or otherwise regulating any Hazardous Activity
relating to any such Pollutant; (e) any petroleum, crude oil, or fraction
or by-product thereof; (f) any radioactive material, including any source,
special nuclear or by-product material as defined at 42 U.S.C. Sections
2011 et seq., as amended or hereafter amended, and in the regulations
adopted and publications promulgated pursuant to said law; (g)
asbestos-containing materials in any form or condition; and (h)
polychlorinated biphenyls in any form or condition.
"Hazardous Release" shall mean the release of Hazardous Materials into
the environment by any means whatsoever, including but not limited to any
spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping removing or disposing
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(including the abandonment or discarding of barrels, containers and other
receptacles containing any Hazardous Material).
IN WITNESS WHEREOF, the Mortgagor has executed this Mortgage as of the day
and year first above written.
"Mortgagor"
CORPORATE REALTY INCOME
FUND I, L.P., a Delaware
limited partnership
By: _______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
general partner
By: 1345 Realty Corporation,
general partner
By: ________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
President
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STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
This instrument was acknowledged before me on September ___, 1996, by
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., as a general partner of Corporate Realty Income Fund I,
L.P., a Delaware limited partnership, and as President of 1345 Realty
Corporation, which corporation is also a general partner of Corporate Realty
Income Fund I, L.P., a Delaware limited partnership.
_________________________
Notary Public
(Seal, if any)
_________________________
Title (and Rank)
(My commission expires: )
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EXHIBIT A
---------
PREMISES
LEGAL DESCRIPTION
Lot One (1) of Block One (1) in BRIXTON SQUARE, SECTION 2 to Oklahoma City,
Oklahoma County, Oklahoma, as shown by the recorded plat thereof.
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