Exhibit 10.18
TIAA Appl. #VR-34
Mortgage #0005128-00
OPEN-END LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND RENTS
SECURITY AGREEMENT AND FIXTURE FILING STATEMENT
by
LTF USA REAL ESTATE, LLC
as Borrower,
for the benefit of
TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA,
as Lender
Property Known As
Life Time Fitness Center
Columbus, Ohio
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION..................................................................1
Section 1.1. Definitions................................................................................1
Section 1.2. Rules of Construction......................................................................2
ARTICLE II GRANTING CLAUSES......................................................................................2
Section 2.1. Encumbered Property........................................................................2
Section 2.2. Habendum Clause............................................................................4
Section 2.3. Security Agreement.........................................................................4
Section 2.4. Conditions to Grant........................................................................5
Section 2.5. Fee Joinder................................................................................5
ARTICLE III OBLIGATIONS SECURED..................................................................................5
Section 3.1. The Obligations............................................................................5
ARTICLE IV TITLE AND AUTHORITY...................................................................................6
Section 4.1. Title to the Property......................................................................6
Section 4.2. Authority..................................................................................6
Section 4.3. No Foreign Person..........................................................................7
Section 4.4. Litigation.................................................................................7
ARTICLE V PROPERTY STATUS, MAINTENANCE AND LEASES................................................................7
Section 5.1. Status of the Property.....................................................................7
Section 5.2. Maintenance of the Property................................................................7
Section 5.3. Change in Use..............................................................................8
Section 5.4. Waste......................................................................................8
Section 5.5. Inspection of the Property.................................................................8
Section 5.6. Leases and Rents...........................................................................8
Section 5.7. Parking....................................................................................8
Section 5.8. Separate Tax Lot...........................................................................9
Section 5.9. Changes in Zoning or Restrictive Covenants.................................................9
Section 5.10. Lender's Right to Appear..................................................................9
ARTICLE VI IMPOSITIONS AND ACCUMULATIONS.........................................................................9
Section 6.1. Impositions................................................................................9
Section 6.2. Accumulations.............................................................................10
Section 6.3. Changes in Tax Laws.......................................................................11
ARTICLE VII INSURANCE, CASUALTY, CONDEMNATION AND RESTORATION...................................................11
Section 7.1. Insurance Coverages.......................................................................11
Section 7.2. Casualty and Condemnation.................................................................12
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Section 7.3. Application of Proceeds...................................................................13
Section 7.4. Conditions to Availability of Proceeds for Restoration....................................13
Section 7.5. Restoration...............................................................................14
ARTICLE VIII COMPLIANCE WITH LAW AND AGREEMENTS.................................................................16
Section 8.1. Compliance with Law.......................................................................16
Section 8.2. Compliance with Agreements................................................................16
Section 8.3. ERISA Compliance..........................................................................16
Section 8.4. Section 6045(e) Filing....................................................................17
Section 8.5. Brokerage Fees............................................................................17
ARTICLE IX ENVIRONMENTAL........................................................................................17
Section 9.1. Environmental Representations and Warranties..............................................17
Section 9.2. Environmental Covenants...................................................................18
ARTICLE X FINANCIAL REPORTING...................................................................................19
Section 10.1. Financial Reporting......................................................................19
Section 10.2. Annual Budget............................................................................20
ARTICLE XI EXPENSES AND DUTY TO DEFEND..........................................................................20
Section 11.1. Payment of Expenses......................................................................20
Section 11.2. Duty to Defend...........................................................................21
ARTICLE XII TRANSFERS, LIENS AND ENCUMBRANCES...................................................................21
Section 12.1. Prohibitions on Transfers; Liens and Encumbrances........................................21
Section 12.2. Permitted Transfers......................................................................22
Section 12.3. Right to Contest Liens...................................................................26
ARTICLE XIII ADDITIONAL REPRESENTATIONS. WARRANTIES AND COVENANTS...............................................27
Section 13.1. Further Assurances.......................................................................27
Section 13.2. Estoppel Certificates....................................................................27
Section 13.3. Credit Enhancements......................................................................28
ARTICLE XIV DEFAULTS AND REMEDIES...............................................................................28
Section 14.1. Events of Default........................................................................28
Section 14.2. Remedies.................................................................................30
Section 14.3. General Provisions Pertaining to Remedies................................................31
Section 14.4. [INTENTIONALLY OMITTED]..................................................................32
Section 14.5. General Provisions Pertaining to Mortgagee-in-Possession or Receiver.....................32
Section 14.6. General Provisions Pertaining to Foreclosures............................................33
Section 14.7. Application of Proceeds..................................................................34
Section 14.8. Power of Attorney........................................................................34
Section 14.9. Tenant at Sufferance.....................................................................34
Section 14.10. [INTENTIONALLY OMITTED].................................................................34
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ARTICLE XV LIMITATION OF LIABILITY..............................................................................34
Section 15.1. Limitation of Liability..................................................................34
ARTICLE XVI WAIVERS.............................................................................................36
SECTION 16.1. WAIVER OF STATUTE OF LIMITATIONS.........................................................36
SECTION 16.2. WAIVER OF NOTICE.........................................................................36
SECTION 16.3. WAIVER OF MARSHALLING AND OTHER MATTERS..................................................36
SECTION 16.4. WAIVER OF TRIAL BY JURY..................................................................36
SECTION 16.5. WAIVER OF COUNTERCLAIM...................................................................36
SECTION 16.6. WAIVER OF JUDICIAL NOTICE AND HEARING....................................................37
SECTION 16.7. WAIVER OF SUBROGATION....................................................................37
SECTION 16.8. GENERAL WAIVER...........................................................................37
SECTION 16.9. WAIVER OF DAMAGES........................................................................37
ARTICLE XVII NOTICES............................................................................................38
Section 17.1. Notices..................................................................................38
Section 17.2. Change in Borrower's Name or Place of Business...........................................39
ARTICLE XVIII MISCELLANEOUS.....................................................................................39
Section 18.1. Applicable Law...........................................................................39
Section 18.2. Usury Limitations........................................................................39
Section 18.3. Lender's Discretion......................................................................39
Section 18.4. Unenforceable Provisions.................................................................39
Section 18.5. Survival of Borrower's Obligations.......................................................39
Section 18.6. Relationship Between Borrower and Lender; No Third Party Beneficiaries...................40
Section 18.7. Partial Releases; Extensions; Waivers....................................................40
Section 18.8. Service of Process.......................................................................40
Section 18.9. Entire Agreement.........................................................................40
Section 18.10. No Oral Amendment.......................................................................41
Section 18.11. Severability............................................................................41
Section 18.12. Covenants Run with the Land.............................................................41
Section 18.13. Time of the Essence.....................................................................41
Section 18.14. [Intentionally Omitted].................................................................41
Section 18.15. Joint and Several Liability.............................................................41
Section 18.16. Successors and Assigns..................................................................41
Section 18.17. Duplicates and Counterparts.............................................................41
ARTICLE XIX FEE JOINDER.........................................................................................41
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OPEN-END LEASEHOLD MORTGAGE. ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING STATEMENT
THIS OPEN-END LEASEHOLD MORTGAGE, ASSIGNMENT OF LEASES AND
RENTS, SECURITY AGREEMENT AND FIXTURE FILING STATEMENT (this "MORTGAGE") made
this 26th day of October, 2001, by LTF USA REAL ESTATE, LLC ("Borrower"), a
Delaware limited liability company, having its principal place of business as
provided in Article 16 of this instrument, for the benefit of TEACHERS INSURANCE
AND ANNUITY ASSOCIATION OF AMERICA ("LENDER"), a New York corporation, having an
address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS:
A. Lender agreed to nuke and Borrower together with certain
Affiliates of Borrower as listed on EXHIBIT A hereto (each such Affiliate, other
than Borrower, is referred to herein as a "CO-BORROWER" and collectively, as the
"CO-BORROWERS" have agreed to accept a loan (the "LOAN") in the maximum
principal amount of $98,119,000.
B. The aggregate amount of the Loans evidenced by ten (10)
separate promissory notes, each executed by the Borrower or a Co-Borrower as
provided on EXHIBIT A each dated either (i) June 14, 2001 or (ii) the date of
this Mortgage. The principal amount of the promissory note executed by the
Borrower and allocated to the Property (defined below) is Five Million Dollars
($5,000,000.00) (that amount or so much as is outstanding from time to time is
referred to as the "PRINCIPAL", and such promissory note executed by the
Borrower is referred to herein as the "NOTE"). The Note evidences a promise to
pay the Principal with interest thereon to the order o f Lender as set forth in
the Note and with the balance, if any, of the Debt being due and payable on June
1, 2011 (the "MATURITY DATE").
C. To secure the Note, this Mortgage encumbers, among other
things, Borrower's interests under a certain "Standard Commercial Shopping
Center Lease" dated February 19,1998 as amended by a letter amendment dated June
30, 1998 (the "GROUND LEASE"), between Easton Town Center, LLC ("GROUND LESSOR")
and FGA Real Estate Holdings, LLC a memorandum of which was recorded on June
22,1998 as Instrument 199806220154128, Franklin County Recorder, State of Ohio,
in which Ground Lessor granted to Borrower a leasehold interest in, among other
things, the real property located in the City of Columbus, County of Franklin,
State of Ohio, more particularly described in EXHIBIT B (the "LAND"). The
interest and obligation of FCA Real Estate Holdings, LLC, an Affiliate of the
Borrower, as tenant under the Ground Lease have been assigned to and assumed by
Borrower, with the consent of the Ground Lessor.
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. Definitions. Capitalized terms used in this Mortgage are
defined in EXHIBIT C or in the text with a cross-reference in EXHIBIT C.
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Section 1.2. Rules of Construction. This Mortgage will be interpreted
in accordance with the rules of construction set forth in EXHIBIT D.
ARTICLE II
GRANTING CLAUSES
Section 2.1. Encumbered Property. Borrower irrevocably grants,
mortgages, warrants, conveys, assigns and pledges to Lender, and grants to
Lender a security interest in, the following property, rights, interests and
estates to the extent now or in the future owned or held by Borrower (the
"PROPERTY") for the uses and purposes set forth in this Mortgage forever:
(i) all of Borrower's right, title and interest under the Ground Lease
and the leasehold interest created under the Ground Lease in the Land;
(ii) all buildings and improvements located on the Land (the
"IMPROVEMENTS");
(iii) all easements; rights of way or use, including any rights of
ingress and egress; streets, roads, ways, sidewalks, alleys and
passages; strips and gores; sewer rights; water, water rights, water
courses, riparian rights and drainage rights; air rights and
development rights; oil and mineral rights; and tenements,
hereditaments and appurtenances, operating agreements, reciprocal
easement agreements in each instance adjoining or otherwise appurtenant
to or benefiting the Land or the Improvements;
(iv) all materials intended for construction, re-construction,
alteration or repair of the Improvements, such materials to be deemed
included in the Land and the Improvements immediately on delivery to
the Land; all fixtures and personal property that are attached to,
contained in or used in connection with the Land or the Improvements
(excluding personal property owned or leased by tenants or other
occupants of the Land or the Improvements), including: furniture;
furnishings; machinery, motors; elevators; fittings; microwave ovens;
refrigerators; office systems and equipment; plumbing, heating,
ventilating and air conditioning systems and equipment; maintenance and
landscaping equipment; lighting, cooking, laundry, dry cleaning,
refrigerating, incinerating and sprinkler systems and equipment;
telecommunications systems and equipment; computer or word processing
systems and equipment; and security systems and equipment; and
equipment leases for any of the property described in this subsection
(the "FIXTURES AND PERSONAL PROPERTY");
(v) all agreements, ground leases, grants of easements or
rights-of-way, permits, declarations of covenants, conditions and
restrictions, disposition and development agreements, the purchase and
sale agreement by which Borrower acquired the Property (specifically
including any indemnity obligations in favor of Borrower contained in
any such agreement), planned unit development agreements, cooperative,
condominium or similar ownership or conversion plans, management,
leasing, brokerage or parking agreements or other material documents
affecting Borrower or the Land, the Improvements or the Fixtures and
Personal Property, including, without limitation, the documents
described on EXHIBIT E but expressly excluding the Leases (the
"PROPERTY DOCUMENTS");
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(vi) all intangible personal property relating to the Land, the
Improvements or the Fixtures and Personal Property, including choses in
action and causes of action (except those personal to Borrower and
except those owned and or leased by Tenant or any other occupant of the
Land or Improvements), corporate and other business records,
inventions, designs, promotional materials, blueprints, plans,
specifications, patents, patent applications, trademarks, trade names,
trade secrets, goodwill, copyrights, registrations, licenses,
franchises, claims for refunds or rebates of taxes, insurance
surpluses, refunds or rebates of taxes and any letter of credit,
guarantee, claim, security interest or other security held by or
granted to Borrower to secure payment by an account debtor of any of
the accounts of Borrower arising out of the ownership, use or operation
of the Land, the Improvements or the Fixtures and Personal Property,
and documents covering all of the foregoing; all accounts, accounts
receivable, documents, instruments, money, deposit accounts, funds
deposited in accounts of Borrower established with a bank, savings and
loan association, trust company or other financial institution in
connection with the ownership, use or operation of the Land, the
Improvements or the Fixtures and Personal Property, including any
reserve accounts or escrow accounts, and all investments of the funds
and all other general intangibles;
(vii) all awards and other compensation paid after the date of this
Mortgage for any Condemnation (the "CONDEMNATION AWARDS");
(viii) all proceeds of and all unearned premiums on the Policies (the
"INSURANCE PROCEEDS").
(ix) all licenses, certificates of occupancy, contracts, management
agreements, operating agreements, operating covenants, franchise
agreements, permits and variances relating to the Land, the
Improvements or the Fixtures and Personal Property;
(x) all books, records and other information, wherever located, which
are in Borrower's possession, custody o r control o r t o which
Borrower is entitled at law or in equity and which are related to
Borrower's business at the Property, including all computer or other
equipment used to record, store, manage, manipulate or access the
information (the "BOOKS AND RECORDS");
(xi) all deposits held from time to time by the Accumulations
Depositary to provide reserves for Taxes and Assessments together with
interest thereon, if any (the "ACCUMULATIONS"); and
(xii) all after-acquired title to or remainder or reversion in any of
the property described in this Section; all additions, accessions and
extensions to, improvements of and substitutions or replacements for
any of such property, all products and all cash and non-cash proceeds,
immediate or remote, of any sale or other disposition of any of such
property, excluding sales or other dispositions of inventory in the
ordinary course of the business of operating the Land and the
Improvements; and all additional lands, estates, interests, rights or
other property acquired by Borrower after the date of this Mortgage for
use in connection with the Land or the Improvement, all without the
need for any additional mortgage, assignment, pledge or conveyance to
Lender but Borrower will
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execute and deliver to Lender, upon Lender's request, any documents
reasonably requested by Lender to further evidence the foregoing.
Notwithstanding the foregoing, the Lender recognizes that the personal
property necessary to operate the budding as a health and fitness center,
including but not limited to all fitness equipment, computer and
telecommunications equipment and other related equipment, is not the property of
Borrower, but rather Borrower's tenant, and accordingly, Lender shall have no
security interest in such personal property.
Section 2.2. Habendum Clause. The Property is conveyed to Lender to
have and to hold forever.
Section 2.3. Security Agreement.
(a) The Property includes both real and personal property and this
Mortgage is a real property mortgage and also a "security agreement" and a
"financing statement" within the meaning of the Uniform Commercial Code. By
executing and delivering this Mortgage, Borrower giants to Lender, as security
for the Obligations, a security interest in the Property to the full extent that
any of the Property maybe subject to the Uniform Commercial Code.
(b) This Mortgage constitutes a fixture financing statement under
the Laws of the state or commonwealth in which the Property is located and for
that purpose, the following information is set forth:
(i) the Borrower is the "Debtor"
(ii) the Lender is the "Secured Party"
(iii) Name and address of Debtor:
as set forth in the Preamble to this document
(iv) Name and address of Secured Party:
as set forth in the Preamble to this document
(v) Description of the types (or items) of property covered by
this Financing Statement:
all of the property described in section ii-xii of the Section
entitled "ENCUMBERED PROPERTY" described or referred to herein
and included as part of the Premises.
(vi) Description of real estate to which collateral is attached or
upon which it is located and the record owner of the land:
Described in EXHIBIT B.
(vii) The tax payer identification number of the Debtor is:
▇▇-▇▇▇▇▇▇▇.
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(viii) The entity organizational identification number issued to the
state of formation of the Borrower is: 3392382
Lender may file this Mortgage, or a reproduction thereof, in the real
estate records or other appropriate index, as a financing statement for any of
the items specified above as part of the Property. Any reproduction of this
Mortgage or of any other security agreement or financing statement is sufficient
as a financing statement.
Section 2.4. Conditions to Grant. This Mortgage is made on the express
condition that if Borrower and the Co-Borrowers pay and perform their respective
Obligations in full in accordance with the Loan Documents executed by each of
them then, unless expressly provided otherwise in the Loan Documents, the Lender
will properly release and ▇▇▇▇ as satisfied the Loan Documents at Borrower's and
the Co-Borrowers' expense.
Section 2.5. Fee Joinder. As provided in the Joinder attached to this
Mortgage, Ground Lessor joins in the execution of this Mortgage for the purpose
of (i) securing payment and performance of the Obligations; (ii) subjecting and
encumbering all of Ground Lessor's right, title and interest in and to the
property described in this Article to the lien of this Mortgage and to each of
the provisions of this Mortgage; and (iii) assigning to Leader absolutely and
not merely as additional security for the payment and performance of the
Obligations as more fully set forth in the Assignment, all of Ground Lessor's
right, title and interest, if any, in and to the Leases and the Rents, in each
instance subject to the conditions set forth in the Section entitled "CONDITIONS
TO GRANT".
ARTICLE III
OBLIGATIONS SECURED
Section 3.1. The Obligations. This Mortgage secures the Principal, the
Interest, the Late Charges, the Prepayment Premiums, the Expenses, any
additional advances made by Lender in connection with the Property and all other
amounts payable under the Loan Documents executed by the Borrower and securing
the Note (the "DEBT") and also secures both the timely payment of the Debt as
and when required and the timely performance of all other obligations and
covenants to be performed under the Loan Documents executed by the Borrower and
securing the Note (the "OBLIGATIONS"), provided that the foregoing does not
limit, qualify or affect in anyway the present, absolute nature of the
Assignment. The parties hereto intend that this Mortgage shall secure unpaid
balances of loan advances made both before and after this Mortgage is delivered
to the Recorder for record, which loan advances constitute the Obligations. The
maximum amount of unpaid Obligations which may be outstanding at any time,
exclusive of interest thereon, and exclusive of taxes, assessments, insurance
premiums, and costs incurred for the protection o f the Property, which amounts
are also secured hereby is $5,000,000. The Lender acknowledges that the Ground
Lease provides that the maximum indebtedness that this Mortgage may secures
$7,250,000, and the Lender agrees that its recovery against the Property under
this Mortgage and any and all other instruments encumbering the Property shall
not exceed such sum during the term of the Ground Lease.
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ARTICLE IV
TITLE AND AUTHORITY
Section 4.1. Title to the Property.
(a) Borrower has and will continue to have good and marketable
title to the lessee's rights under the Ground Lease and the leasehold interest
under the Ground Lease in the Land, and good and marketable title in fee simple
absolute to the Improvements and the Fixtures and Personal Property, all free
and clear of liens, encumbrances and charges except the Permitted Exceptions. To
Borrower's knowledge, there are no facts or circumstances that might give rise
to a lien, encumbrance or charge on the Property.
(b) Borrower represents and warrants that it owns, and covenants
that subject to the right of the Borrower to effect Permitted Transfers as set
forth in Article XII at all times prior to the release of this Mortgage will
continue to own, all of the other Property free and clear of all liens,
encumbrances and charges except the Permitted Exceptions.
(c) Borrower represents and warrants that this Mortgage is, and
covenants that at all times prior to the release of this Mortgage this Mortgage
will remain, a valid and enforceable first lien on and security interest in the
Property, subject only to the Permitted Exceptions.
Section 4.2. Authority.
Borrower represents and warrants as of the date hereof and covenants
that at all times prior to the satisfaction or release of this Mortgage:
(a) Borrower is and will continue to be (i) duly organized,
validly existing and in good standing under the Laws of the state or
Commonwealth in which it was organized and (ii) duly qualified to conduct
business, in good standing, in the state or commonwealth where the Property is
located;
(b) Borrower has and will continue to have all approvals required
by Law or otherwise and full right, power and authority to (i) own and operate
the Property and carry on Borrower's business as now conducted or as proposed to
be conducted; (ii) execute and deliver the Loan Documents to which it is a
party; (iii) grant, mortgage, warrant the title to, convey, assign and pledge
the Property to Lender pursuant to the provisions of this Mortgage; and (iv)
perform the Obligations;
(c) The execution and delivery of the Loan Documents to which
Borrower is a party and the performance of the Obligations do not and will not
conflict with or result in a default under any Laws or any Leases or Property
Documents and do not and will not conflict with or result in a default under any
agreement binding upon Borrower or any Affiliate of Borrower, and
(d) The Loan Documents to which Borrower or any Affiliate of
Borrower is a party constitute and will continue to constitute legal, valid and
binding obligations of such Borrower or Affiliate of Borrower, enforceable in
accordance with their respective terms.
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Section 4.3. No Foreign Person. Borrower is not a "foreign person"
within the meaning of Section 1445(f)(3) of the Code.
Section 4.4. Litigation. There are no Proceedings or, to Borrower's
knowledge, investigations against or affecting Borrower or the Property and, to
Borrower's knowledge, there are no facts or circumstances that might give rise
to a Proceeding or an investigation against or affecting Borrower or the
Property.
ARTICLE V
PROPERTY STATUS, MAINTENANCE AND LEASES
Section 5.1. Status of the Property.
Borrower represents and warrants as of the date hereof and covenants
that at all times prior to the satisfaction or release of this Mortgage:
(a) Borrower has obtained and will maintain or cause to be
maintained in full force and effect all certificates, licenses, permits and
approvals that are issued or required by Law or by any other entity having
jurisdiction over the Property or over Borrower or that are necessary for the
Permitted Use, for occupancy and operation of the Property, for the granting of
this Mortgage or for the conduct of the Permitted Use on the Property. Without
limiting the foregoing, Borrower will cause all employees of Borrower or
Sponsor, or third party service providers who use the Property as a means of
delivering the services (by way of example but not of limitation, such providers
include personal trainers and massage therapists) (i) to be appropriately
licensed or certified as required by Law and (ii) to carry or be covered by
customary and reasonable amounts of insurance.
(b) The Property is and will continue to be serviced by all
utilities required for the Permitted Use of the Property;
(c) All roads and streets necessary for service of and access to
the Property for the current or contemplated use of the Property have been
completed and are and will continue to be serviceable, physically open and
available for use by the public to access the Property;
(d) The Property is free from damage caused by a Casualty; and
(e) All costs and expenses of labor, materials, supplies and
equipment used in the construction of the Improvements have been paid in full or
that provision for payment of such items will be made in the normal course of
Borrower's business.
Section 5.2. Maintenance of the Property. Subject to Article VII,
Borrower will maintain or cause to be maintained, the Property in thorough
repair and good and safe condition, suitable for the Permitted Use, including,
to the extent necessary, replacing the Fixtures and Personal Property with
property at least equal in quality and condition to that being replaced.
Borrower will not erect any new buildings, building additions or other
structures on the Land or otherwise materially alter the Improvements without
lender's prior consent which may be withheld in Lender's sole discretion.
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Section 5.3. Change in Use. Borrower will use and permit the use of the
Property for the Permitted Use and for no other purpose. Without limiting the
foregoing, Borrower may, in connection with the Permitted Use, permit the
sublease of not more than 10,000 square feet of the Improvements for cafes,
salons, local hospitals providing rehabilitative physical therapy, or other uses
compatible with the Permitted Use as reasonably approved by Lender. Borrower
will provide Lender with prior written notice of any seduction of monthly
membership dues at rates lower than those in effect on the date hereof.
Section 5.4. Waste. Borrower will not commit or permit any waste,
impairment or deterioration of the Property or any material alteration,
demolition or removal of any of the Property without Lender's prior consent
which may be withheld in Lender's sole discretion.
Section 5.5. Inspection of the Property. Lender has the right to enter
and inspect the Property on reasonable prior notice, except in the case of an
emergency, when no prior notice is necessary. Lender has the right to engage an
independent expert to review and report on Borrower's compliance with Borrower's
obligations under this Mortgage to maintain the Property, comply with law and
refrain from waste, impairment or deterioration of the Property and the
alteration, demolition or removal of any of the Property except as may be
permitted by the provisions of this Mortgage. If the independent expert's report
discloses material failure to comply with such obligations or if Lender engages
the independent expert after the occurrence of an Event of Default, then the
independent expert's review and report will be at Borrower's expense, payable on
demand.
Section 5.6. Leases and Rents.
(a) Borrower assigns the Leases and the Rents to Lender absolutely
and not merely as additional collateral or security for the payment and
performance of the Obligations, but subject to a license back to Borrower of the
right to collect the Rents unless and until an Event of Default occurs at which
time the license will terminate automatically, all as more particularly set
forth in the Assignment, the provisions of which are incorporated in this
Mortgage by reference.
(b) Borrower appoints Lender as Borrower's attorney-in-fact to
execute unilaterally and to record, at Lender's election, a document
subordinating this Mortgage to the Leases, provided that the subordination will
not affect (i) the priority of Lender's entitlement to Insurance Proceeds or
Condemnation Awards or (ii) the priority of this Mortgage over intervening liens
or liens arising under or with respect to the Leases.
Section 5.7. Parking. Borrower will provide, maintain, police and light
(or cause to be provided, maintained, policed or lit) parking areas within the
Property, including any sidewalks, aisles, streets, driveways, sidewalk cuts and
rights-of-way to and from the adjacent public streets, in a manner consistent
with the Permitted Use and sufficient to accommodate the greatest of (i) the
number of parking spaces required by Law; (ii) the number of parking spaces
required by the Leases and the Property Documents; or (iii) the number of
parking spaces set forth on Schedule 5.7. The parking areas will be reserved and
used exclusively for ingress, egress and parking for Borrower and the tenants
under the Leases and their respective employees, customers and invitees and in
accordance with the Leases and the Property Documents.
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Section 5.8. Separate Tax Lot. The Property is and will remain assessed
for real estate tax purposes as one or more wholly independent tax lots,
separate from any property that is not part of the Property.
Section 5.9. Changes in Zoning or Restrictive Covenants. Borrower will
not (i) initiate, join in or consent to any change in any Laws pertaining to
zoning, any restrictive covenant or other restriction which would modify the
permitted uses for the Property, (ii) permit the Property to be used to fulfil
any requirements of Law for the construction or maintenance of improvements on
property that is not part of the Property; (iii) permit the Property to be used
for any purpose not included in the Permitted Use; or (iv) impair the integrity
of the Property as a single, legally subdivided zoning lot separate from all
other property.
Section 5.10. Lender's Right to Appear. Lender has the right to appear
in and defend any Proceeding brought regarding the Property and to bring any
Proceeding, in the name and on behalf of Borrower or in Lender's name, which
Lender, in its reasonable discretion, determines should be brought to protect
Lender's interest in the Property.
ARTICLE VI
IMPOSITIONS AND ACCUMULATIONS
Section 6.1. Impositions. Subject to Section 6.2:
(a) Borrower will pay each Imposition at least 15 days before the
date (the "IMPOSITION PENALTY Date") that is the earlier of (i) the date on
which the Imposition becomes delinquent and (ii) the date on which any penalty,
interest or charge for non-payment of the Imposition accrues.
(b) At least 10 days before each Imposition Penalty Date, Borrower
will deliver to Lender a receipted ▇▇▇▇ or other evidence of payment.
(c) Borrower, at its own expense, may contest any Taxes or
Assessments, provided that the following conditions are met:
(i) not less than 30 days prior to the Imposition Penalty Date,
Borrower delivers to Lender notice of the proposed contest;
(ii) the contest is by a Proceeding promptly initiated and
conducted diligently and in good faith;
(iii) there is no Event of Default;
(iv) the Proceeding suspends the collection of the contested Taxes
or Assessments;
(v) the Proceeding is permitted under and is conducted in
accordance with the Leases and the Property Documents;
(vi) the Proceeding precludes imposition of criminal or civil
penalties and sale or forfeiture of the Property and Lender
will not be subject to any civil suit;
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(vii) Borrower deposits with the Accumulations Depositary reserves or
furnishes a bond or other security satisfactory to Lender, in either
case in an amount sufficient to pay the contested Taxes or Assessments,
together with all interest and penalties or Borrower pays all of the
contested Taxes or Assessments under protest.
(d) Installment Payments. If any Assessment is payable in
installments, Borrower may pay the Assessment in installments over the longest
period over which such payments may be made without accrual of penalty or risk
of forfeiture.
Section 6.2. Accumulations.
(a) Borrower made an initial deposit with either Lender or a
mortgage servicer or financial institution designated or approved by Lender from
time to time to receive, hold and disburse the Accumulations in accordance with
this Section (the "ACCUMULATIONS DEPOSITARY"). On the first day of each calendar
month during the Term Borrower will deposit with the Accumulations Depositary an
amount equal to one-twelfth (1/12) of the annual Taxes and Assessments as
determined pursuant to Section 3 of the Real Estate Tax Escrow and Security
Agreement executed by Borrower, Lender and ▇▇▇▇▇▇▇ Financial Services LLC (the
"TAX AGREEMENT") relating to the Property. At least 45 days before each
Imposition Penalty Date, Borrower will deliver to the Accumulations Depositary
any bills and other documents that are necessary to pay the Taxes and
Assessments.
(b) Subject to the provisions contained below in this Section
6.2(b), Lender will direct the Accumulations Depository to apply the
Accumulations to the payment of Taxes and Assessments. Lender will cause any
excess Accumulations after payment of Taxes and Assessments to be returned to
Borrower or credited against future payments of the Accumulations, at Lender's
election or as required by Law. If the Accumulations are not sufficient to pay
Taxes and Assessments, Borrower will pay the deficiency to the Accumulations
Depositary within 5 days of demand. At anytime after an Event of Default occurs,
Lender may apply the Accumulations as a credit against any portion of the Debt
selected by Lender in its sole discretion, and such application shall not
relieve Borrower to pay Impositions in a timely manner.
(c) The Accumulations Depositary will hold the Accumulations as
additional security for the Obligations until applied in accordance with the
provisions of this Mortgage. If Lender is not the Accumulations Depositary, the
Accumulations Depositary will deliver the Accumulations to Lender upon Lender's
demand at any time after an Event of Default.
(d) If the Property is sold or conveyed other than by foreclosure
or transfer in lieu of foreclosure, all right, title and interest of Borrower to
the Accumulations will automatically, and without necessity of further
assignment, be held for the account of the new owner, subject to the provisions
of this Section and Borrower will have no further interest in the Accumulations.
(e) The Accumulations Depositary has deposited the initial deposit
and will deposit the monthly deposits into a separate interest bearing account
in the name of Lender as secured party, all in accordance with the Tax
Agreement. Interest shall accrue and be credited upon such deposits in
accordance with the provisions of the Tax Agreement.
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(f) Lender shall direct the Accumulations Depositary to pay, any
Taxes or Assessments unless Borrower is contesting the Taxes or Assessments in
accordance with the provisions of this Mortgage, in which event any payment of
the contested Taxes or Assessments will be made under protest in the manner
prescribed by Law or, at Lender's election, will be withheld.
(g) If Lender assigns this Mortgage, Lender will pay, or cause the
Accumulations Depositary to pay, the unapplied balance of the Accumulations to
or at the direction of the assignee. Simultaneously with the payment, lender and
the Accumulations Depositary will be released from all future liability with
respect to Accumulations and Borrower will look solely to the assignee with
respect to future Accumulations, provided that Lender and Accumulations
Depositary shall also be released from liability with respect to all
Accumulations to the extent that Lender's assignee assumes in writing the
obligations of Lender and the Accumulations Depositary with respect thereto.
When the Obligations have been fully satisfied, any unapplied balance of the
Accumulations will be returned to Borrower.
Section 6.3. Changes in Tax Laws. If a Law requires the deduction of
the Debt from the value of the Property for the purpose of taxation or imposes a
tax, either directly or indirectly, on the Debt, any Loan Document executed by
the Borrower or Lender's interest in the Property, except a tax on Lender's
income generally, Borrower will pay the tax with interest and penalties, if any.
If Lender determines that Borrower's payment of the tax may be unlawful,
unenforceable, usurious or taxable to Lender, the Debt will become immediately
due and payable at par and without penalty or premium on 60 days' prior notice
unless the tax must be paid within the 60-day period, in which case, the Debt
will be due and payable within the lesser period.
ARTICLE VII
INSURANCE, CASUALTY, CONDEMNATION
AND RESTORATION
Section 7.1. Insurance Coverages.
(a) Borrower will maintain, or cause the tenants of the Property
to maintain, such insurance coverages and endorsements in form and substance and
in amounts as Lender may require in its reasonable discretion, from time to
time. Borrower acknowledges the reasonability of the coverages and endorsements
that Lender has required as a condition of making the Loan. Until Lender
notifies Borrower of changes in Lender's requirements, Borrower will maintain
not less than the insurance coverages and endorsements Lender required for
closing of the Loan.
(b) The insurance, including renewals, required under this Section
will be issued on valid and enforceable policies and endorsements satisfactory
to Lender (the "POLICIES"). Each Policy will contain a standard waiver of
subrogation and a replacement cost endorsement and will provide for Lender to
receive not less than 30 days' prior written notice of any cancellation,
termination or non-renewal of a Policy or any material change other than an
increase in coverage and that Lender will be named under a standard mortgage
endorsement as loss payee.
(c) The insurance companies issuing the Policies (the "INSURERS")
Property is located, must have been in
11
business for at least 5 years, must carry an A.M. Best Company, Inc.
policyholder rating of A or better and an A.M. Best Company, Inc. financial
category rating of Class X or better and must be otherwise satisfactory to
Lender. Lender may select an alternative credit rating agency and may impose
different credit rating standards for the Insurers. Notwithstanding Lender's
right to approve the Insurers and to establish credit rating standards for the
Insurers, Lender will not be responsible for the solvency of any Insurer.
(d) Notwithstanding Lender's rights under this Article, Lender
will not be liable for any loss, damage or injury resulting from the inadequacy
or lack of any insurance coverage.
(e) Borrower will comply with the provisions of the Policies and
with the requirements, notices and demands imposed by the Insurers and
applicable to Borrower or the Property.
(f) Borrower will pay the Insurance Premiums for each Policy not
less than 30 days before the expiration date of the Policy being replaced or
renewed and will deliver to Lender an original or, if a blanket policy, a
certified copy of each Policy marked "Paid" not less than 15 days prior to the
expiration date of the Policy being replaced or renewed.
(g) Borrower will not carry separate insurance concurrent in kind
or form or contributing in the event of loss with any other insurance carried by
Borrower.
(h) Borrower will not carry any of the insurance required under
this Section on a blanket or umbrella policy without in each instance Lender's
prior approval which may be withheld in Lender's sole discretion. If Lender
approves, Borrower will deliver to Lender a certified copy of the blanket policy
which shall allocate to the Property the amount of coverage required under this
Section and otherwise shall provide the same coverage and protection as would a
separate policy insuring only the Property without the possibility of any
reduction of insurance benefits by reason of any claim made against such policy
related to another property insured thereunder.
(i) Borrower will give the Insurers prompt notice of any change in
ownership or occupancy of the Property. This subsection does not abrogate the
prohibitions on transfers set forth in this Mortgage.
(j) If the Property is sold at a foreclosure sale or otherwise is
transferred so as to extinguish the Obligations, all of Borrower's right, title
and interest in and to the Policies then in force will be transferred
automatically to the purchaser or transferee.
Section 7.2. Casualty and Condemnation.
(a) Borrower will give Lender notice of any Casualty immediately
after it occurs and will give Lender notice of any Proceeding in Condemnation
immediately after Borrower receives notice of commencement or notice that such a
Proceeding will be commencing. Borrower immediately will deliver to Lender
copies of all documents Borrower delivers or receives relating to the Casualty
or the Proceeding, as the case may be.
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(b) Borrower authorizes Lender, at Lender's option, to act on
Borrower's behalf to collect, adjust and compromise any claims for loss, damage
or destruction under the Policies on such terms as Lender determines in Lender's
reasonable discretion. Borrower authorizes Lender to act, at Lender's option, on
Borrower's behalf in connection with any Condemnation Proceeding. Borrower will
execute and deliver to Lender all documents requested by Lender and all
documents as may be required by Law to confirm such authorizations. Nothing in
this Section will be construed to limit or prevent Lender from joining with
Borrower either as a codefendant or as a co-plaintiff if any Condemnation
Proceeding.
(c) If Lender elects not to act on Borrower's behalf as provided
in this Section, then Borrower promptly will file and prosecute all claims
(including Lender's claims) relating to the Casualty and will prosecute or
defend (including defense of Lender's interest) any Condemnation Proceeding.
Borrower will have the authority to settle or compromise the claims or
Proceeding, as the case may be, provided that Lender has approved, in Lender's
sole discretion, any compromise or settlement that exceeds $250,000.00. Any
check for Insurance Proceeds or Condemnation Awards, as the case may be (the
"PROCEEDS") will be made payable to Lender and Borrower. Borrower will endorse
the check to Lender immediately upon Lender presenting the check to Borrower for
endorsement or if Borrower receives the check first, will endorse the check
immediately upon receipt and forward it to Lender. If any Proceeds are paid to
Borrower, Borrower immediately will deposit the Proceeds with Lender, to be
applied or disbursed in accordance with the provisions of this Mortgage. Lender
will be responsible for only the Proceeds actually received by Lender.
Section 7.3. Application of Proceeds. After deducting the costs
incurred by Lender in collecting the Proceeds, Lender may, in its sole
discretion, (i) apply the Proceeds as a credit against any portion of the Debt
selected by Lender in its sole discretion at par, without any prepayment
premium; (ii) apply the Proceeds to restore the Improvements, provided that
Lender will not be obligated to see to the proper application of the Proceeds
and provided further that any amounts released for Restoration will not be
deemed a payment on the Debt; or (iii) deliver the Proceeds to Borrower.
Section 7.4. Conditions to Availability of Proceeds for Restoration.
Notwithstanding the preceding Section, after a Casualty or a Condemnation (a
"DESTRUCTION EVENT") Lender will make the Proceeds (less any costs incurred by
Lender in collecting the Proceeds) available for Restoration in accordance with
the conditions for disbursements set forth in the Section entitled
"RESTORATION", provided that the following conditions are met:
(i) The entity specified in the Preamble paragraph of this document as
the "Borrower" or the transferee under a Permitted Transfer, if any,
continues to be Borrower at the time of the Destruction Event and at
all times thereafter until the Proceeds have been fully disbursed;
(ii) no Event of Default under the Loan Documents to which Borrower or
an Affiliate of Borrower is a party exists at the time of the
Destruction Event;
(iii) all Leases (but not subleases) in effect immediately prior to the
Destruction Event and all Property Documents in effect immediately
prior to the Destruction Event that are
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essential to the use and operation of the Property continue in full
force and effect without abatement of Rent, in the case of Leases,
notwithstanding the Destruction Event;
(iv) if the Destruction Event is a Condemnation, Borrower delivers to
Lender evidence satisfactory to Lender that the Improvements can be
restored to an economically and architecturally viable unit;
(v) Borrower delivers to Lender evidence satisfactory to Lender that
the Proceeds are sufficient to complete Restoration or if the Proceeds
are insufficient to complete Restoration, Borrower first deposits with
Lender funds ("ADDITIONAL FUNDS") that when added to the Proceeds will
be sufficient to complete Restoration;
(vi) if the Destruction Event is a Casualty, Borrower delivers to
Lender evidence satisfactory to Lender that the Insurer under the
affected Policy has not denied liability under the Policy as to
Borrower or the insured under the Policy;
(vii) Lender is satisfied that the proceeds of any business
interruption insurance in effect together with other available gross
revenues from the Property or from other sources satisfactorily
demonstrated to Lender are sufficient to pay Debt Service Payments
after paying the Impositions, Insurance Premiums, reasonable and
customary operating expenses and capital expenditures until Restoration
is complete; and
(viii) Lender is satisfied that Restoration will be completed on or
before the date (the "RESTORATION COMPLETION DATE") that is the
earliest of: (A) 12 months prior to the Maturity Date; (B) 12 months
after the Destruction Event; (C) the earliest date required for
completion of Restoration under any Lease or any Property Document; or
(D) any date required by Law.
Section 7.5. Restoration.
(a) If the total Proceeds for any Destruction Event are
$250,000.00 or less, no Event of Default is continuing, Lender will disburse to
Borrower the entire amount received by Lender and Borrower will commence
Restoration promptly after the Destruction Event and complete Restoration not
later than the Restoration Completion Date.
(b) If the Proceeds for any Destruction Event exceed $250,000.00
and Lender elects or is obligated by Law or under this Article to make the
Proceeds available for Restoration, Lender will disburse the Proceeds and any
Additional Funds (the "RESTORATION FUNDS") upon Borrower's request as
Restoration progresses, generally in accordance with normal construction lending
practices for disbursing funds for construction costs and provided that the
following conditions are met:
(i) Borrower commences Restoration promptly after the Destruction
Event and completes Restoration on or before the Restoration Completion
Date;
(ii) if Lender requests, Borrower delivers to Lender prior to
commencing Restoration, for Lender's approval, plans and specifications
and detailed budget for the Restoration;
14
(iii) Borrower delivers to Lender satisfactory evidence of the costs of
Restoration incurred prior to the date of the request, and such other
documents as Lender may request including mechanic's liens, waivers and
title insurance endorsements;
(iv) Borrower pays all costs of Restoration whether or not the
Restoration Funds are sufficient and, if at any time during
Restoration, Lender determines that the undisbursed balance of the
Restoration Funds is insufficient to complete Restoration, Borrower
deposits with Lender, as part of the Restoration Funds, an amount equal
to the deficiency within 30 days of receiving notice of the deficiency
from Lender; and
(v) there is no Event of Default continuing under the Loan Documents to
which Borrower or an Affiliate of Borrower is a party at the time
Borrower requests funds or at the time Lender disburses funds.
(c) If an Event of Default occurs at any time after the
Destruction Event, then Lender will have no further obligation to make any
remaining Proceeds available for Restoration and may apply any remaining
Proceeds as a credit against any portion of the Debt selected by Lender in its
sole discretion.
(d) Lender may elect at anytime prior to commencement of
Restoration or while work is in progress, to retain, at Borrower's expense, an
independent engineer or other consultant to review any plans and specifications
required by Lender, to inspect the work as it progresses and to provide reports.
If any matter included in a report by the engineer or consultant is
unsatisfactory to Lender, Lender may suspend disbursement of the Restoration
Funds until the unsatisfactory matters contained in the report are resolved to
Lender's satisfaction.
(e) If Borrower fails to commence and complete Restoration in
accordance with the terms of this Article, then in addition to the Remedies,
Lender may elect by notice to Borrower to restore the Improvements on Borrower's
behalf and reimburse itself out of the Restoration Funds for costs and expenses
incurred by Lender in restoring the Improvements, or Lender may apply the
Restoration Funds as a credit against any portion of the Debt selected by Lender
in its sole discretion.
(f) Lender may commingle the Restoration Funds with its general
assets and will not be liable to pay any interest or other return on the
Restoration Funds unless otherwise required by Law. Lender will not hold any
Restoration Funds in trust. Lender may elect to deposit the Restoration Funds
with a depositary satisfactory to Lender under a disbursement and security
agreement satisfactory to Lender.
(g) Borrower will pay all of Lender's expenses incurred in
connection with a Destruction Event or Restoration. If Borrower fails to do so,
then in addition to the Remedies, Lender may from time to time reimburse itself
out of the Restoration Funds.
(h) If any excess Proceeds remain after Restoration, Lender may
elect, in its sole discretion either to apply the excess as a credit against any
portion of the Debt, at par without penalty or premium, as selected by Lender in
its sole discretion or to deliver the excess to Borrower.
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(i) Notwithstanding anything to the contrary in this Mortgage,
Borrower shall be released from its Restoration obligations to the extent that
Lender causes the Proceeds to be applied to reduction of the Debt.
ARTICLE VIII
COMPLIANCE WITH LAW AND AGREEMENTS
Section 8.1. Compliance with Law. Borrower, the Property and the use of
the Property comply and will continue to comply with Law and with all agreements
and conditions necessary to preserve and extend all rights, licenses, permits,
privileges, franchises and concessions (including zoning variances, special
exceptions and non-conforming uses) relating to the Property or Borrower.
Borrower will notify Lender of the commencement of any investigation or
Proceeding relating to a possible violation of Law immediately after Borrower
receives notice thereof and will deliver promptly to Lender copies of all
documents Borrower receives or delivers in connection with the investigation or
Proceeding. Without Lender's prior consent, Borrower will not alter the Property
in any manner that would materially increase Borrower's responsibilities for
compliance with Law.
Section 8.2. Compliance with Agreements. Borrower is not in default and
to Borrower's knowledge, there are no defaults, events of defaults or events
which, with the passage of time or the giving of notice, would constitute an
event of default under the Property Documents. Borrower will pay and perform all
of its obligations under the Property Documents as and when required by the
Property Documents. Without limiting the provisions and requirements of the
Assignment, Borrower will cause all other parties to the Property Documents to
pay and perform their obligations under the Property Documents as and when
required by the Property Documents to the extent commercially reasonable to do
so. Borrower will not do any of the following to the extent doing so would
materially or adversely affect the Property or Lender's rights and interests
under the Loan Documents: amend or waive any provisions of the Property
Documents; exercise any options under the Property Documents; give any approval
required or permitted under the Property Documents; cancel or surrender any of
the Property Documents; or release or discharge or permit the release or
discharge of any party to or entity bound by any of the Property Documents;
without, in each instance, Lender's prior approval (excepting therefrom all
service contracts or other agreements entered into in the normal course of
business that are cancelable upon not more than 30 days' notice). Borrower
promptly will deliver to Lender copies of any notices of default or of
termination that Borrower receives or delivers relating to any Property
Document.
Section 8.3. ERISA Compliance.
(a) Borrower is not and will continue not to be an "employee
benefit plan" as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974 ("ERISA") that is subject to Title I of ERISA or a "plan"
as defined in Section 4975(e)(1) of the Code that is subject to Section 4975 of
the Code, and Borrower's assets do not and will not constitute "plan assets" of
one or more such plans for purposes of Title I of ERISA or Section 4975 of the
Code.
(b) Borrower will not engage in any transaction which would cause
any obligation or any action under the Loan Documents to which Borrower or an
Affiliate of Borrower, is a party
16
including Lender's exercise of the Remedies, to be a non-exempt prohibited
transaction under ERISA.
Section 8.4. Section 6045(e) Filing. Borrower will supply or cause to
be supplied to Lender either (i) a copy of a completed Form ▇▇▇▇-▇, ▇▇▇▇▇▇▇▇▇
for Recipients of Proceeds from Real Estate, Broker and Barter Exchange Proceeds
prepared in connection with Borrower's acquisition of the Property by Borrower's
attorney or other person responsible for the preparation of the form, together
with a certificate from the person who prepared the form to the effect that the
form has, to the best of the preparer's knowledge, been accurately prepared and
that the preparer will timely file the form; or (ii) a certification from
Borrower that the Loan is a refinancing of the Property or is otherwise not
required to be reported to the Internal Revenue Service pursuant to Section
6045(e) of the Code. Under no circumstances will Lender or Lender's counsel be
obligated to file the reports or returns.
Section 8.5. Brokerage Fees. Borrower represents and warrants to Lender
that except as set forth on Schedule 8.5 hereto no person or entity has any
claim for a brokerage fee, finder's fee, commission, premium or other such
charge against Borrower or the Property, with respect to Borrower's acquisition
of the Property, to Borrower's knowledge with respect to the making of the Loan,
or with respect to any leasing of the Property. Borrower shall indemnify and
hold Lender harmless from the claim of any person or entity who asserts any such
claim.
ARTICLE IX
ENVIRONMENTAL
Section 9.1. Environmental Representations and Warranties.
(a) Except as disclosed in the Environmental Report during the
period Borrower or any affiliate of Borrower has owned the Property and as of
the date of this Mortgage:
(i) to Borrower's knowledge, no Environmental Activity has occurred or
is occurring on the Property other than the use, storage, and disposal
of de minimis quantities of Hazardous Materials in the ordinary course
of business consistent with the Permitted Use and in compliance with
all Environmental Laws without release of Hazardous Materials; and
(ii) to Borrower's knowledge (but without duty of inquiry), no
Environmental Activity has occurred or is occurring on any property in
the vicinity of the Property from which there is a material risk that
Hazardous Materials will migrate, ▇▇▇▇▇, flow, drain, seep, blow or
drift onto the Property.
(b) Except as disclosed in the Environmental Report, at all times
prior to acquisition of the Property by Borrower or any affiliate of Borrower:
(i) to Borrower's knowledge, no Environmental Activity occurred on the
Property other than the use, storage and disposal of de minimis
quantities of Hazardous Materials in the ordinary course of business
consistent with the Permitted Use and in compliance with all
Environmental Laws without release of Hazardous Materials; and
17
(ii) to Borrower's knowledge (but without duty of inquiry), no
Environmental Activity occurred on any property in the vicinity of the
Property from which there is a material risk that Hazardous Materials
will migrate, ▇▇▇▇▇, flow, drain, seep, blow or drift onto the
Property.
(c) For the purposes of this Section, the phrase "use of the
Property" includes use by tenants and the phrase "on the Property" means on, in,
above and below the Property.
Section 9.2. Environmental Covenants.
(a) Borrower represents and warrants that the Leases prohibit
Environmental Activity on the Property other than the use, storage and disposal
of de minimis quantities of Hazardous Materials in the ordinary course of
business consistent with the Permitted Use and in compliance with all
Environmental Laws. Without limiting the obligation of Borrower to enforce any
other provisions of the Leases, Borrower will enforce all provisions of the
Leases with respect to Environmental Activity. Without limiting the foregoing,
Borrower shall promptly inspect any portion of the Property as to which Borrower
has information or suspicion that Environmental Activity in violation of a Lease
has occurred or is threatened, and Borrower will promptly require the tenant
under any such Lease to completely remediate the effect of any such
Environmental Activity. Borrower covenants to promptly undertake such
remediation if the tenant under such Lease fails to do so.
(b) Borrower will notify Lender immediately upon Borrower becoming
aware of (i) any actual, suspected or threatened violation of Environmental Laws
with respect to the Property or with respect to any property in the vicinity of
the Property, and (ii) any Environmental Activity with respect to the Property
or with respect to any property in the vicinity of the Property. Borrower
promptly will deliver to Lender copies of all documents delivered to or received
by Borrower regarding the matters set forth in this subsection, including
notices of Proceedings or investigations concerning any Environmental Activity
or concerning Borrower's status as a potentially responsible party (as defined
in the Environmental Laws). Borrower's notification to Lender in accordance with
the provisions of this subsection will not be deemed to excuse any default under
the Loan Documents resulting from the Environmental Activity or the violation of
Environmental Laws that is the subject of the notice.
(c) From time to time at Lender's request, Borrower will deliver
to Lender any information known and documents available to Borrower relating to
the environmental condition of the Property.
(d) Lender may perform or engage an independent consultant to
perform an assessment of the environmental condition of the Property and of
Borrower's compliance with this Section on an annual basis or at any time for
reasonable cause or after an Event of Default. In connection with the
assessment: (i) Lender or consultant may enter and inspect the Property and
perform tests of the air, soil, ground water and building materials; (ii)
Borrower will cooperate and use best efforts to cause tenants and other
occupants of the Property to cooperate with Lender or consultant; (iii) Borrower
will accept custody of and arrange for lawful disposal of any Hazardous
Materials required to be disposed of as a result of the tests; (iv) neither
Lender nor consultant will have liability to Borrower with respect to the
results of the assessment; and (v) Lender will not be responsible for any damage
to the Property resulting from the negligence
18
or other misconduct of Lender's consultants in performing the tests described in
this subsection. The consultant's assessment and reports will be at Borrower's
expense if the reports disclose any material adverse change in the environmental
condition of the Property from that disclosed in the Environmental Report or if
Lender engaged the consultant when Lender had reasonable cause to believe
Borrower was not in compliance with the terms of this Article or after the
occurrence of an Event of Default.
(e) If Lender has reasonable cause to believe that there is
Environmental Activity at the Property, Lender may elect in its sole discretion
to release from the lien of this Mortgage any portion of the Property affected
by the Environmental Activity and Borrower will accept the release.
ARTICLE X
FINANCIAL REPORTING
Section 10.1. Financial Reporting.
(a) Within 120 days after the close of each Fiscal Year Borrower
will deliver to Lender annual financial statements for the Fiscal Year,
including partial Fiscal Years (the "ANNUAL FINANCIAL STATEMENTS") for the
Borrower and the Sponsor (defined below). The Annual Financial Statements will
conform, in form and level of detail to those forms of statements previously
delivered by FCA Real Estate Holdings, LLC to Lender and accepted by Lender in
writing. The Annual Financial Statements:
(i) shall be audited by a CPA;
(ii) shall be accompanied by an opinion of the CPA that in all material
respects, such Annual Financial Statement fairly presents the
respective financial positions of entities to which such statements
relate;
(iii) shall be separate and distinct from any consolidated statement or
report for the entity to which they relate; and
(iv) include an annual certification of rent roll, in the form attached
hereto as Exhibit F.
(b) Borrower will keep full and accurate Financial Books and
Records for each Fiscal Year. Borrower will permit Lender or Lender's
accountants or auditors to inspect or audit the Financial Books and Records from
time to time without notice. Borrower will maintain the Financial Books and
Records for each Fiscal Year for not less than 3 years after the date Borrower
delivers to Lender the Annual Financial Statement and the other financial
certificates, statements and information to be delivered to Lender for the
Fiscal Year. Financial Books and Records will be maintained at Borrower's
address set forth in the section entitled "NOTICES" or at any other location as
may be approved by Lender.
19
(c) Borrower shall also deliver, from time to time, such other
financial reports and information regarding Borrower, Sponsor and the Property,
including capital and operating budgets for the then current Fiscal Year, as
Lender shall reasonably require.
Section 10.2. Annual Budget. Not less than 45 days prior to the end of
each Fiscal Year, Borrower will deliver to Lender a detailed comparative budget
(the "BUDGET") for the Property for the next succeeding Fiscal Year showing
anticipated operating expenses, Insurance Premiums, Impositions, leasing
commissions, capital improvement costs, tenant improvement costs, operating and
capital projections for the succeeding five years and any other information
Lender requests. Unless Lender notifies Borrower within 60 days after Lender
receives the Budget that Lender disputes information in the Budget, the Budget
as submitted will constitute the Budget for the next succeeding Fiscal Year. If
Borrower concludes in good faith that a Budget needs material revision, Borrower
will submit a revised Budget to Lender, together with a detailed explanation of
the revisions. Unless Lender notifies Borrower within 60 days after Lender
receives the revised Budget that Lender disputes information in the revised
Budget, the revised Budget as submitted will constitute the Budget for the
remainder of the then current Fiscal Year. Borrower and Lender will use
reasonable efforts to resolve promptly any differences over a Budget or revised
Budget. If Borrower and Lender fail to agree on a Budget or revised Budget,
Borrower will continue to manage and operate the Property under the last
undisputed Budget.
Borrower waives any defense or right of offset to the Obligations, and
any claim or counterclaim against Lender, arising out of any discussions between
Borrower and Lender regarding any Budget or revised Budget delivered to Lender
or the resolution of any disagreements relating to a Budget or revised Budget,
including any defense, right of offset, claim or counterclaim alleging in
substance, that by virtue of such delivery, discussions or resolution, Lender
has interfered with, influenced or controlled Borrower or the operations at the
Property.
ARTICLE XI
EXPENSES AND DUTY TO DEFEND
Section 11.1. Payment of Expenses.
(a) Borrower is obligated to pay all fees and expenses (the
"EXPENSES") incurred by Lender or that are otherwise payable in connection with
the Loan, the Property or Borrower, including attorneys' fees and expenses and
any fees and expenses relating to (i) the preparation, execution,
acknowledgment, delivery and recording or filing of the Loan Documents executed
by Borrower; (ii) any Proceeding or other claim asserted against Lender; (iii)
except as otherwise provided in the Loan Documents, any inspection, assessment,
survey and test permitted under the Loan Documents executed by Borrower; (iv)
any Destruction Event; (v) the preservation of Lender's security and the
exercise of any rights or remedies available at Law, in equity or otherwise; and
(vi) the Leases and the Property Documents.
(b) Borrower will pay the Expenses immediately on demand. If Lender
pays any of the Expenses, Borrower will reimburse Lender the amount paid by
Lender immediately upon demand. The Expenses constitute a portion of the Debt
secured by this Mortgage, and the failure
20
by Borrower to pay Expense shall be subject to the provisions of the Loan
Documents relating to monetary defaults.
Section 11.2. Duty to Defend. If Lender or any of its trustees,
officers, participants, employees or affiliates is a party in any Proceeding
relating to the Property, Borrower or the Loan, Borrower will indemnify and hold
harmless flee party and will defend the party with attorneys and other
professionals retained by Borrower and approved by Lender. Lender may elect to
engage its own attorneys and other professionals, at Borrower's expense, to
defend or to assist in the defense of the party. In all events, case strategy
will be determined by Lender (or by Lender and Borrower together if both are
defendants in the Proceeding) if Lender so elects and no Proceeding will be
settled without Lender's prior approval which may be withheld in its sole
discretion.
ARTICLE XII
TRANSFERS, LIENS AND ENCUMBRANCES
Section 12.1. Prohibitions on Transfers; Liens and Encumbrances.
(a) Borrower acknowledges that in making the Loan, Lender is
relying to a material extent on the business expertise and net worth of Borrower
and Borrower's members or principals and on the continuing interest that each of
them has, directly or indirectly, in the Property. Accordingly, except as
specifically set forth in this Mortgage, Borrower (i) will not, and will not
permit its partners, members or principals to, effect a Transfer without
Lender's prior approval, which may be withheld in Lender's sole discretion and
(ii) will keep the Property free from all liens and encumbrances other than the
lien of this Mortgage and the Permitted Exceptions. A "TRANSFER" is defined as
any sale, grant, lease (other than Leases in effect on the date of this Mortgage
and bona fide third-party subleases with tenants), conveyance, assignment or
other transfer of, or any encumbrance or pledge against, the Property, any
interest in the Property, any interest of Borrower's members or principals in
the Property, or any change in Borrower's composition, or the composition of
Borrower's members or principals or the composition of Sponsor, in each instance
whether voluntary or involuntary, direct or indirect, by operation of law or
otherwise and including the grant of an option or the execution of an agreement
relating to any of the foregoing matters.
(b) Borrower represents, warrants and covenants that LIFE TIME
FITNESS, Inc. ("SPONSOR") is a Minnesota corporation, the shareholders of which
as of the date hereof are as set forth in Schedule H of the Commitment
(collectively, the "INVESTORS"). LTF USA Real Estate, LLC ("LTF USA") is a
Delaware limited liability company, the sole member of which is LTF Real Estate
Holdings, LLC, a Delaware limited liability company ("LTF HOLDINGS"). LTF
Minnesota Real Estate, LLC ("LTF MINNESOTA") is a Delaware limited liability
company, the sole member of which is LTF Holdings. LTF Michigan Real Estate, LLC
("LTF MICHIGAN") is a Delaware limited liability company, the sole member of
which is LTF Holdings. LTF Holdings is a Delaware limited liability company, the
sole member of which is Sponsor.
(c) Notwithstanding the foregoing, in no event shall any sale,
conveyance, assignment or other transfer of, or any encumbrance or pledge
against, the fee interest in the Land, the Ground Lessor's interest under the
Ground Lease, or any direct or indirect interest in
21
the Ground Lessor constitute a Transfer. To the extent Ground Lessor seeks or is
required to seek the Borrower's approval of any such sale, conveyance,
assignment, act or transfer, encumbrance or pledge, the Borrower shall not give
such approval without the Lender's prior written consent. To the extent that the
Ground Lessor transfers or encumbers the Ground Lessor's fee interest in the
Land without the consent of the Borrower (and the Lender) having been first
obtained if such transfer or encumbrance is not permitted without consent under
the Ground Lease, Borrower agrees to pursue Borrower's remedies under the Ground
Lease with respect to such transfer or encumbrance.
Section 12.2. Permitted Transfers.
(a) Notwithstanding the prohibitions regarding Transfers,
Permitted Transfers (defined below) will be permitted without Lender's prior
consent, provided that the following conditions regarding Permitted Transfers
and proposed transferees are met:
(i) at least 60 days prior to the proposed Permitted Transfer (except
for any Permitted Transfer arising from the death of a natural person,
in which case, not more than 30 days after the death) Borrower delivers
to Lender a notice that is sufficiently detailed to enable Lender to
determine that the proposed Permitted Transfer complies with the terms
of this Section.
(ii) there is no Event of Default under the Loan Documents executed by
Borrower or any Affiliate of Borrower either when Lender receives the
notice or when the proposed Permitted Transfer occurs, and there has
never been a monetary default under the Loan Documents beyond the
applicable grace period (if any);
(iii) the proposed Permitted Transfer will not result in a violation of
any of the covenants contained in the Section entitled, "ERISA
COMPLIANCE" and Borrower will deliver to Lender such documentation of
compliance as Lender requests in its sole discretion;
(iv) Borrower pays all of Lender's expenses relating to the Transfer,
including Lender's attorneys' fees; and
(v) the transferee is not a person or entity with whom Lender has had
adversarial dealings and is free from bankruptcy.
(b) Upon compliance with the conditions described in the preceding
subsection, the following Transfers ("PERMITTED TRANSFERS") may occur without
Lender's prior consent except as provided below and, without payment of any
transfer fee except as specifically provided below:
(i) Transfers of membership interests in Borrower, provided that,
subsequent to the Transfer, LTF Holdings remains as managing member and
retains not less than 51% of the equity and management control
interests in Borrower.
22
(ii) Transfers of membership interests in LTF Holdings, provided that
subsequent to the Transfer, Sponsor remains as managing member and
retains not less than 51% of the equity and management control interest
in LTF Holdings.
(iii) Transfers of ownership interests in Sponsor provided that:
(a) ▇▇▇▇▇▇ ▇▇▇▇▇▇ (subject to the provisions contained below
in this subsection) individually retains not less than his
percentage interest as shareholder set forth in Schedule H to
the Commitment, and the other Investors who are also employees
of the Sponsor as of the date hereof as shown on such Schedule
H (the "EMPLOYEE SHAREHOLDERS") in the aggregate retain not
less than a four percent (4.0%) interest as shareholders,
except to the extent that ▇▇▇▇▇▇ ▇▇▇▇▇▇ and the Employee
Shareholders are diluted (but not more than proportionately)
as the result of a purchase of new shares in Sponsor by
contributors of capital raised in either the public or private
markets; provided, however, that ▇▇▇▇▇▇ ▇▇▇▇▇▇ may transfer up
to five percent (5%) of his holdings in Sponsor in any
calendar year (i.e., five percent of his approximately 15%
aggregate ownership interest, or 0.75% of the total interests
in Sponsor in any calendar year, and such transfer right shall
not be cumulative across calendar years) without the consent
of Lender;
(b) in the case of a proposed Transfer by any Investor owning
an interest of more than 10% in Sponsor, such Transfer shall
be subject to the consent of Lender, which shall be reasonably
exercised; provided that such an Investor may transfer its
interest without the consent of Lender to any of its
affiliates or partners, or to the public in connection with a
1933 Act registration; and
(c) in the case of a proposed Transfer of 100% of the
interests in Sponsor to one third party, or a "Qualifying
Merger" with a third party, such transfer or "Qualifying
Merger" shall be subject to the following additional
conditions:
(1) the transferee or the parent of the transferee or
the surviving entity in a merger has a net worth of
at least $250,000,000;
(2) the transferee or the surviving entity in a
merger is an institutional entity having a
first-class business reputation and shall otherwise
be satisfactory to Lender, and Lender agrees that
Lender shall apply commercially reasonable standards
in evaluating the transferee;
(3) in the case of a merger, the surviving entity has
expressly assumed Sponsor's obligations under the
Loan Documents to which it is a party and under any
other documents encumbering the entire portfolio of
properties securing the Loan (the "PORTFOLIO") that
are essential to the on-going use, operation and
management of the Portfolio;
(4) Borrower pays to Lender a transfer fee of 75/100
percent (.75%) of the outstanding principal balance
of the Loan;
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(5) in the case of -a merger, Borrower delivers to
Lender from the surviving entity a substitute
environmental indemnity and, if applicable, a
substitute guaranty or surety instrument satisfactory
to Lender, executed by a substitute indemnitor,
guarantor or surety, as the case may be, satisfactory
to Lender in its sole discretion, in which event,
Lender will release Borrower and indemnitor from any
liability incurred in connection with events
occurring solely after the Permitted Transfer;
(6) Sponsor enters into an agreement with a term of
at least ten years to manage the operation of the
Portfolio; and
(7) The exercise of this right shall terminate the
right to execute the transfer privilege provided in
Section 12.2(b)(vii).
For purposes hereof, "QUALIFYING MERGER" shall mean a merger where a change of
control results at the Sponsor level (that is, the entity with which the Sponsor
is merged obtains at least a fifty-one percent (51%) interest in the resultant
entity after the merger).
(iv) Transfers of an Investor's interest in Sponsor to any adult
"member of the immediate family" of the Investor or to a trust for the
benefit of such Investor or any "member of the immediate family" of the
Investor, provided that subsequent to the Transfer, ▇▇▇▇▇▇ ▇▇▇▇▇▇ (or a
trust or trusts for the benefit of ▇▇▇▇▇▇ ▇▇▇▇▇▇ or any "member of the
immediate family" of ▇▇▇▇▇▇ ▇▇▇▇▇▇ as to which ▇▇▇▇▇▇ ▇▇▇▇▇▇ retains
the sole power to direct such trusts) remains as a shareholder and
retains not less than 15.1% ownership in Sponsor, subject to reduction
as permitted in Section 12.2(b)(iii)(a) above. The phrase "member of
the immediate family" means a spouse, a sibling a lineal ancestor or
descendant (including a legally adopted child) and a spouse of any
lineal ancestor or descendant.
(v) Transfers of an Investor's interests in Sponsor if the Transfer
occurs by reason of the death of the Investor.
(vi) Lender will consider the one-time sale (subject to the Loan) of
Borrower's and each Co-Borrower's interests in the Portfolio (subject
to the leases to Sponsor, which would remain in effect) to an
unaffiliated bona fide purchaser (the "PORTFOLIO TRANSFEREE"), and in
so considering the acceptability of such transfer will include the
following additional criteria:
(a) prior to the Transfer, the Portfolio Transferee or the
parent of the Portfolio Transferee has a net worth of at least
$125,000,000;
(b) Borrower has delivered to Lender evidence satisfactory to
Lender that the Portfolio Transferee, or the parent of the
Portfolio Transferee, is a professional owner of first-class
commercial real estate owning or managing at least 2,000,000
square feet of property prior to the Transfer contemplated and
having a first-class reputation in the industry, and Lender
agrees that Lender shall apply commercially reasonable
standards in evaluating the Portfolio Transferee;
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(c) the Portfolio Transferee has expressly assumed Borrower's
obligations under the Loan Documents to which Borrower is a
party and under any other documents encumbering the Portfolio
that are essential to the on-going use, operation and
management of the Portfolio;
(d) Borrower pays to Lender a transfer fee of one percent (1%)
of the outstanding principal balance of the Loan;
(e) Borrower delivers to Lender a substitute environmental
indemnity and, if applicable, a substitute guaranty or surety
instrument satisfactory to Lender, executed by a substitute
indemnitor, guarantor or surety, as the case may be,
satisfactory to Lender in its sole discretion, in which event,
Lender will release Borrower and Indemnitor from any liability
incurred in connection with events occurring solely after the
Permitted Transfer;
(f) The exercise of this right shall terminate the right to
execute the transfer privilege provided in Section
12.2(b)(vii).
(g) Borrower pays all of Lender's expenses relating to the
Transfer;
(h) Borrower delivers to Lender in connection with such
Transfer, such opinions of counsel and title insurance
policies as requested by Lender's counsel in its reasonable
discretion;
(i) Borrower delivers to Lender in connection with such
Transfer, such additional documentation as Lender may
determine in its reasonable discretion; and
Provided that each of the foregoing requirements is met, Borrower shall
be released from its obligation under this Mortgage and the other Loan
Documents, effective as of the date of transfer of the entire
Portfolio, provided, however, that Borrower's and Borrower's
Affiliates' obligations under their respective Indemnities shall not be
released unless the Portfolio Transferee shall expressly assume all of
the obligations of Borrower and Borrower's Affiliates under such
Indemnities, including obligations that relate to the time before the
Portfolio Transferee acquires the Property. Unless the Portfolio
Transferee shall expressly assume such obligations, the obligations of
the Borrower and of the Borrower's Affiliates under their respective
Indemnities shall survive as provided in such documents.
Provided that the Borrower and Sponsor shall have become non-Affiliates
as a result of a Permitted Transfer under this Section 12.2(b)(vi) or
any other Permitted Transfer or any other Transfer approved by Lender
in writing, then a further Transfer (subject to the Loan) of the
resulting borrower's and each resulting co-borrower's interests in the
Portfolio (subject to the leases to Sponsor which would be required to
remain in effect) back to an Affiliate of Sponsor (a "BACK TRANSFER")
in connection with the Sponsor's exercise of the rights of first offer
contained in the leases to Sponsor shall be permitted. Such Transfer
shall be to a newly formed single purpose entity that is an Affiliate
of Sponsor and to whom Sponsor has assigned its rights pursuant to such
right of first offer
25
(but not such leases as a whole), subject to the conditions contained
in clauses (c) (d), (e), (g), (h) and (i) of this Section 12.2(b)(vi),
and further subject to the condition that, on the date of such
Transfer, the Sponsor and its Affiliates (including the proposed
Sponsor-Affiliated transferee) will have a combined net worth after
giving effect to the Back Transfer that, in the reasonable estimation
of Lender, is at least as great as that which the Sponsor and its
Affiliates had on the date of the Commitment.
(vii) A one-time, one-property right to sell a single property of the
Portfolio to a bona fide third party transferee in an arm's length
transaction. In connection with such a sale, Borrower may prepay the
portion of the Loan allocated to the subject property and such
prepayment shall be subject to the Prepayment Premium set forth in the
Note, but no lock-out period shall apply.
(viii) If Lender declines to permit the Borrower to exercise the
transfer privilege expressed in subsections 12.2(b)(iii) or (vi), then
Borrower may pre-pay the Loan (without regard to lock-out period) but
subject to payment of the Prepayment Premium set forth in the Note.
(ix) Lender agrees to consider a request by Borrower to obtain the
release of a property in the Portfolio by providing substitute
collateral therefor, but Lender may withhold its consent to such a
substitution in Lender's sole and absolute discretion.
Section 12.3. Right to Contest Liens. Borrower, at its own expense, may
contest the amount, validity or application, in whole or in part, of any
mechanic's, materialmen's or environmental liens in which event Lender will
refrain from exercising any of the Remedies, provided that the following
conditions are met:
(i) Borrower delivers to Lender notice of the proposed contest not more
than 30 days after the lien is filed;
(ii) the contest is by a Proceeding promptly initiated and conducted in
good faith and with due diligence;
(iii) there is no Event of Default other than the Event of Default
arising from the filing of the lien;
(iv) the Proceeding suspends enforcement of collection of the lien,
imposition of criminal or civil penalties and sale or forfeiture of the
Property and Lender will not be subject to any civil suit;
(v) the Proceeding is permitted under and is conducted in accordance
with the Leases and the Property Documents;
(vi) Borrower sets aside reserves or furnishes a bond or other security
satisfactory to Lender, in either case in an amount sufficient to pay
the claim giving rise to the lien, together with all interest and
penalties, or Borrower pays the contested lien under protest; and
26
(vii) With respect to an environmental lien, Borrower is using best
efforts to mitigate or prevent any deterioration of the Property
resulting from the alleged violation of any Environmental Laws or the
alleged Environmental Activity.
ARTICLE XIII
ADDITIONAL REPRESENTATIONS. WARRANTIES AND COVENANTS
Section 13.1. Further Assurances.
(a) Borrower will execute, acknowledge and deliver to Lender, or
to any other entity Lender designates, any additional or replacement documents
and perform any additional actions that Lender determines are reasonably
necessary to evidence, perfect or protect Lender's first lien on and prior
security interest in the Property or to carry out the intent or facilitate the
performance of the provisions of the Loan Documents executed by Borrower or any
Affiliate of Borrower.
(b) Borrower appoints Lender as Borrower's attorney-in-fact to
perform, at Lender's election, any actions and to execute and record any of the
additional or replacement documents referred to in this Section, in each
instance only at Larder's election and only to the extent Borrower has failed to
comply with the terms of this Section.
Section 13.2. Estoppel Certificates.
(a) Within 10 days of Lender's request, Borrower will deliver to
Lender, or to any entity Lender designates, a certificate certifying (i) the
original principal amounts of the Note; (ii) the unpaid principal amount of the
Note; (iii) the Fixed Interest Rate; (iv) the amount of the then current Debt
Service Payments; (v) the Maturity Date; (vi) the date a Debt Service Payment
was last made; (vii) that, except as may be disclosed in the statement, there
are no defaults or events which, with the passage of time or the giving of
notice, would constitute an Event of Default; and (viii) there are no offsets or
defenses against any portion of the Obligations except as may be disclosed in
the statement.
(b) If Lender requests, Borrower promptly will deliver to Lender
or to any entity Lender designates a certificate from eat party to any Property
Document, certifying that the Property Document is in full force and effect with
no defaults or events which, with the passage of time or the giving of notice,
would constitute an event of default under the Property Document and that there
are no defenses or offsets against the performance of its obligations under the
Property Document. Borrower shall be required to provide such certificate only
to the extent such certificate is required under the applicable Property
Document, but if such certificate is not required under the Property Document,
Borrower shall nevertheless use reasonable effort to obtain the Certificate.
(c) If Lender requests, Borrower promptly will deliver to Lender,
or to any entity Lender designates, a certificate from each tenant under a Lease
then affecting the Property, certifying to any facts regarding the Lease as
Lender may require, including that the Lease is in full force and effect with no
defaults or events which, with the passage of time or the giving of notice,
would constitute an event of default under the Lease by any party, that the rent
has not
27
been paid more that one month in advance and that the tenant claims no defense
or offset against the performance of its obligations under the Lease.
Section 13.3. Credit Enhancements.
(a) Borrower and the Co-Borrowers have delivered to Lender a
letter of credit (the "L/C") in the amount of $5,000,000 as additional security
for the Loan. The L/C shall be maintained in form, substance and with an
institution acceptable to Lender and shall be renewed automatically each year
for an additional year during the term of the Loan (and notice of such renewal
shall be delivered to Lender not later than thirty days prior to the expiration
of the L/C being renewed). The issuing institution shall notify Lender at least
thirty days prior to the end of any year that the L/C has not been renewed, and
such notice of non-renewal (or the failure of Lender to receive timely notice of
renewal) shall entitle Lender to draw upon the L/C and apply the proceeds to the
repayment of the Loan.
(b) Borrower will maintain, and will cause Sponsor to maintain, in
good standing all credit enhancement documents delivered to Lender in connection
with the Loan, including, without limitation the L/C, throughout the Term or
such shorter period as Borrower and Lender may have agreed to in writing. Credit
enhancement documents include any letters of credit, cash deposits, pledges,
guarantees or indemnities delivered to Lender in connection with the Loan but
excluding any letters of credit, promissory notes or cash deposits delivered to
Lender as good faith or standby fees in connection with Lender's agreement to
make the Loan. If the provider of any credit enhancement document becomes
insolvent, commences or is the target of a Proceeding in bankruptcy or ceases to
exist or if Lender determines that the provider's insolvency is imminent,
Borrower will deliver or cause Sponsor to deliver, to Lender a replacement
credit enhancement document within 5 Business Days of the date insolvency is
known, the Proceeding in bankruptcy is filed, the cessation occurs or Lender
gives Borrower notice that Lender has determined the provider's insolvency is
imminent. The replacement credit enhancement document will be satisfactory to
Lender from an alternate provider satisfactory to Lender. Upon receipt of the
replacement, Lender will deliver promptly to Borrower the credit enhancement
document being replaced.
ARTICLE XIV
DEFAULTS AND REMEDIES
Section 14.1. Events of Default. The term "EVENT OF DEFAULT" means the
occurrence of any of the following events:
(i) if Borrower fails to pay any amount due, as and when required,
under any Loan Document to which Borrower is a party and the failure
continues for a period of 5 Business Days;
(ii) if Borrower makes a general assignment for the benefit of
creditors or generally is not paying, or is unable to pay, or admits in
writing its inability to pay, its debts as they become due; or if
Borrower or any other party commences any Proceeding (A) relating to
bankruptcy, insolvency, reorganization, conservatorship or relief of
debtors, in each instance with respect to Borrower; (B) seeking to have
an order for relief entered with
28
respect to Borrower; (C) seeking attachment, distraint or execution of
a judgment with respect to Borrower; (D) seeking to adjudicate Borrower
as bankrupt or insolvent; (E) seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to Borrower or Borrower's debts; or (F) seeking
appointment of a Receiver, trustee, custodian, conservator or other
similar official for Borrower or for all or any substantial part of
Borrower's assets, provided that if the Proceeding is commenced by a
party other than Borrower or any of Borrower's general partners or
members, Borrower will have 120 days to have the Proceeding dismissed
or discharged before an Event of Default occurs;
(iii) if Borrower is in default beyond any applicable grace and cure
period under any other mortgage, deed of trust, deed to secure debt or
other security agreement encumbering the Property whether junior or
senior to the lien of this mortgage, including, without limitation, the
subordinate instrument securing the Guaranty made by Borrower;
(iv) if Borrower, any Co-Borrower, LTF Holdings or Sponsor is in
default beyond any applicable grace and cure period under any Loan
Documents;
(v) if a Transfer occurs except in accordance with the provisions of
this Mortgage;
(vi) if Borrower abandons the Property or ceases to conduct its
business at the Property;
(vii) if there is a default in the performance of any other provision
of any Loan Document or if there is any inaccuracy or falsehood in any
representation or warranty contained in any Loan Document and such
default, inaccuracy or falsehood is not remedied within 30 days after
Borrower receives notice thereof, provided that if the default,
inaccuracy or falsehood is of a nature that it cannot be cured within
the 30-day period and during that period Borrower commences to cure,
and thereafter diligently continues to cure, the default, inaccuracy or
falsehood, then the 30-day period will be extended for a reasonable
period not to exceed 120 days after the notice to Borrower;
(viii) if Borrower shall fail to deliver(or cause to be delivered) to
Lender the financial statements required to be delivered pursuant to
Article X hereof, within the time periods set forth in Article X, and
such failure is not remedied within thirty (30) days after Borrower
receives notice thereof;
(ix) if ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall fail to be the Chairman of the Board and
Chief Executive Officer of the Sponsor, provided that it shall not be
an Event of Default if (1) ▇▇▇▇▇▇ ▇▇▇▇▇▇ is removed from such position
pursuant to action taken in accordance with the corporate governance
documents of the Sponsor, provided that Lender is given notice and
explanation of such removal immediately upon such action being taken or
(2) if ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall die or become legally incapacitated,
provided that the restrictions on transfer of ▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ ownership
contained in Section 12.2(b)(iv) hereof shall continue to apply to
▇▇▇▇▇▇ ▇▇▇▇▇▇'▇ estate or other successor in interest with respect to
such ownership; or
29
(x) if Borrower is in default beyond any applicable grace and care
period under the Ground Lease, or if
(X) the Ground Lease is terminated for any reason that does
not constitute an Event of Default hereunder or an event of
default under the Ground Lease and
(Y) Borrower shall fail to prepay the Note within 60 days
after such termination.
Any payment of the Note pursuant to the foregoing shall include the
Prepayment Premium unless the Ground Lease is terminated as a result of
(a) Lender not making Proceeds available to Borrower after a
Destruction Event so as to enable Borrower to complete Restoration at
the times and in the manner required by the Ground Lease so as to avoid
such termination (unless Lender's failure to make Proceeds available
arises because the condition specified in Section 7.4(ii) hereof), (b)
Restoration not being permitted under the Ground Lease with respect to
a Destruction Event, or (c) a Permitted Transfer.
Section 14.2. Remedies.
(a) If an Event of Default occurs, Lender may take any of the
following actions (the "REMEDIES") without notice to Borrower:
(i) declare all or any portion of the Debt immediately due and payable
("ACCELERATION");
(ii) pay or perform any Obligation;
(iii) institute a Proceeding for the specific performance of any
Obligation;
(iv) apply for the appointment of a Receiver to be vested with the
fullest powers permitted by Law, without bond being required, which
appointment may be made ex parte, as a matter of right and without
regard to the value of the Property, the amount of the Debt or the
solvency of Borrower or any other person liable for the payment or
performance of any portion of the Obligations;
(v) directly, by its agents or representatives or through a Receiver
appointed by a court of competent jurisdiction, enter on the Land and
Improvements, take possession of the Property, dispossess Borrower and
exercise Borrower's rights with respect to the Property, either in
Borrower's name or otherwise;
(vi) institute a Proceeding for the foreclosure of this Mortgage or, if
applicable, sell by power of sale, all or any portion of the Property;
(vii) institute proceedings for the partial foreclosure of this
Mortgage for the portion of the Debt then due and payable, subject to
the continuing lien of this Mortgage for the balance of the Debt not
then due;
(viii) exercise any and all rights and remedies granted to a secured
party under the Uniform Commercial Code; and
30
(ix) pursue any other right or remedy available to Lender at Law, in
equity or otherwise.
(b) If an Event of Default occurs, the license granted to Borrower
in the Assignment to collect Rents will terminate automatically without any
action required of Lender.
Section 14.3. General Provisions Pertaining to Remedies.
(a) The Remedies are cumulative and may be pursued concurrently or
otherwise, at such time and in such order as Lender may determine in its sole
discretion and without presentment, demand, protest or further notice of any
kind, all of which are expressly waived by Borrower.
(b) The enumeration in the Loan Documents of specific rights or
powers will not be construed to limit any general rights or powers or impair
Lender's rights with respect to the Remedies.
(c) If Lender exercises any of the Remedies, Lender will not be
deemed a mortgagee-in-possession unless Lender has elected affirmatively to be a
mortgagee-in-possession.
(d) Lender will not be liable for any act or omission of Lender in
connection with the exercise of the Remedies.
(e) Lender's right to exercise any Remedy will not be impaired by
any delay in exercising or failure to exercise the Remedy and the delay or
failure will not be construed as extending any cure period or constitute a
waiver of the default or Event of Default.
(f) If an Event of Default occurs, Lender's payment or performance
or acceptance of payment or performance will not be deemed a waiver or cure of
the Event of Default.
(g) Lender's acceptance of partial payment or receipt of Rents
will not extend or affect any grace period, constitute a waiver of a default or
Event of Default or constitute a recision of Acceleration.
(h) Until this Mortgage is satisfied of record, the fee and
leasehold estates in the Land (and/or in any other portion of the Property
demised under the Ground Lease) will not merge without Lender's prior approval,
which may be withheld in Lender's sole discretion, notwithstanding that the fee
and leasehold estates are held by a single entity. If Borrower acquires the fee
title, or any other estate, title or interest in the Land (and/or any other
portion of the Property demised under the Ground Lease), this Mortgage
immediately and automatically, without the need for any additional mortgage,
assignment, pledge or conveyance to Lender, will encumber the newly acquired
interest as a first lien with the same force and effect as though specifically
mortgaged, assigned, pledged or conveyed in this Mortgage. However, Borrower
will deliver to Lender, at Lender's request, documents reasonably satisfactory
to Lender evidencing Lender's first lien.
31
(i) If Borrower defaults under the Ground Lease and Lender cures
the default for purposes of the Ground Lease, Lender's action in and of itself
will not cure the corresponding Event of Default.
(j) If Borrower or any other entity exercises any right of
redemption after foreclosure, the amount payable to effect the redemption will
include all rents paid and other sums advanced by Lender to satisfy obligations
of Borrower as lessee under the Ground Lease.
Section 14.4. [INTENTIONALLY OMITTED]
Section 14.5. General Provisions Pertaining to Mortgagee-in-Possession
or Receiver.
(a) If an Event of Default occurs, any court of competent
jurisdiction will, upon application by Lender, appoint a Receiver as designated
in the application and issue an injunction prohibiting Borrower from interfering
with the Receiver, collecting Rents, disposing of any Rents or any part of the
Property, committing waste or doing any other act that will tend to affect the
preservation of the Leases, the Rents and the Property and Borrower approves the
appointment of the designated Receiver or any other Receiver appointed by the
court. Borrower agrees that the appointment may be made ex parte and as a matter
of right to Lender, either before or after sale of the Property, without further
notice, and without regard to the solvency or insolvency, at the time of
application for the Receiver, of the person or persons, if any, liable for the
payment of any portion of the Debt and the performance of any portion of the
Obligations and without regard to the value of the Property or whether the
Property is occupied as a homestead and without bond being required of the
applicant.
(b) The Receiver will be vested with the fullest powers permitted
by Law including all powers necessary or usual in similar cases for the
protection, possession and operation of the Property and all the powers and
duties of Lender as a mortgagee-in-possession as provided in this Mortgage and
may continue to exercise all the usual powers and duties until the Receiver is
discharged by the court.
(c) In addition to the Remedies and all other available rights,
Lender or the Receiver may take any of the following actions:
(i) take exclusive possession, custody and control of the Property and
manage the Property so as to prevent waste;
(ii) require Borrower to deliver to Lender or the Receiver all keys,
security deposits, operating accounts, prepaid Rents, past due Rents,
the Books and Records and all original counterparts of the Leases and
the Property Documents;
(iii) collect, ▇▇▇ for and give receipts for the Rents and, after
paying all expenses of collection, including reasonable receiver's,
broker's and attorney's fees, apply the net collections to the Debt;
(iv) make, modify, enforce, terminate or accept surrender of Leases and
evict tenants except that in the case of a Receiver, such actions may
be taken only with the written consent of Lender as provided in this
Mortgage and in the Assignment;
32
(v) enter into, modify, extend, enforce, terminate or renew Property
Documents except that in the case of a Receiver, such actions may be
taken only with the written consent of Lender as provided in this
Mortgage and in the Assignment;
(vi) appear in and defend any Proceeding brought in connection with the
Property and bring any Proceeding to protect the Property as well as
Borrower's and Lender's respective interests in the Property (unless
any such Proceeding has been assigned previously b Lender in the
Assignment, or if so assigned, Lender has not expressly assigned such
Proceeding to the Receiver and consented to such appearance or defense
by the Receiver); and
(vii) perform any act in the place of Borrower that Lender or the
Receiver deans necessary (A) to preserve the value, marketability or
rentability of the Property, (B) upon consent by Lender, to increase
the gross receipts from the Property; or (C) otherwise to protect
Borrower's and Lender's respective interests in the Property.
(d) Borrower appoints Lender as Borrower's attorney-in-fact, at
Lender's election to perform any actions and to execute and record any
instruments necessary to effectuate the actions described in this Section, in
each instance only at Lender's election and only to the extent Borrower has
failed to comply with the provisions of this Section.
Section 14.6. General Provisions Pertaining to Foreclosures. The
following provisions will apply to any Proceeding to foreclose and to any sale
of the Property pursuant to a judgment of foreclosure and sale:
(i) Lender's right to institute a Proceeding to foreclose will not be
exhausted by a Proceeding that is defective or not completed;
(ii) a sale pursuant to a judgment of foreclosure and sale may be
postponed or adjourned by public announcement at the time and place
appointed for the sale without further notice;
(iii) with respect to sale pursuant to a judgment of foreclosure and
sale, the Property may be sold as an entirety or in parcels, at one or
more sales, at the time and place, on teens and in the order that
Lender deems expedient in its sole discretion;
(iv) if a portion of the Property is sold pursuant to this Article, the
Loan Documents will remain in full force and effect with respect to any
unmatured portion of the Debt and this Mortgage will continue as a
valid and enforceable first lien on and security interest in the
remaining portion of the Property, subject only to the Permitted
Exceptions, without loss of priority and without impairment of any of
Lender's rights and remedies with respect to the unmatured portion of
the Debt;
(v) Lender may bid for and acquire the Property at a sale and, in lieu
of paying cash, may credit the amount of Lender's bid against any
portion of the Debt selected by Lender in its sole discretion after
deducting from the amount of Lender's bid the expenses of the sale,
costs of enforcement and other amounts that Lender is authorized to
deduct at Law, in equity or otherwise; and
33
(vi) Lender's receipt of the proceeds of a sale will be sufficient
consideration for the portion of the Property sold and Lender will
apply the proceeds as set forth in this Mortgage.
Section 14.7. Application of Proceeds. Lender may apply the proceeds of
any sale of the Property pursuant to a judgment of foreclosure and sale and any
other amounts collected by Lender in connection with the exercise of the
Remedies to payment of the Debt in such priority and proportions as Lender may
determine in its sole discretion or in such priority and proportions as required
by Law. Any proceeds remaining after payment of the Debt shall be paid to
Borrower.
Section 14.8. Power of Attorney. Borrower appoints Lender as Borrower's
attorney-in-fact to perform all actions necessary and incidental to exercising
the Remedies.
Section 14.9. Tenant at Sufferance. If Lender or a Receiver enters the
Property in the exercise of the Remedies and Borrower is allowed to remain in
occupancy of the Property, Borrower will pay to Lender or the Receiver, as the
case may be, in advance, a reasonable rent for the Property occupied by
Borrower. If Borrower fails to pay the rent, Borrower may be dispossessed by the
usual Proceedings available against defaulting tenants.
Section 14.10. [INTENTIONALLY OMITTED]
ARTICLE XV
LIMITATION OF LIABILITY
Section 15.1. Limitation of Liability.
(a) Notwithstanding any provision in the Loan Documents to the
contrary, except as set forth in subsections (b) and (c), Borrower shall have no
personal liability with respect to the Loan, the Loan shall be non-recourse to
Borrower, and if Lender seeks to enforce the collection of the Debt, Lender will
foreclose this Mortgage instead of instituting suit on the Note. If a lesser sum
is realized from a foreclosure of this Mortgage and sale of the Property than
the then outstanding Debt, Lender will not institute any Proceeding against
Borrower or Borrower's members, for or on account of the deficiency, except as
set forth in subsections (b) and (c).
(b) The limitation of liability in subsection (a) will not affect
or impair (i) the lien of this Mortgage or, subject to the provisions of Section
15.1(a), Lender's other rights and Remedies under the Loan Documents, including
Lender's right as mortgagee or secured party to commence an action to foreclose
any lien or security interest Lender has under the Loan Documents; (ii) the
validity of the Loan Documents or the Obligations; (iii) subject to the
provisions of Section 15.1(a), Lender's rights under any Loan Documents executed
by Borrower or any Affiliate of Borrower that are not expressly non-recourse, or
(iv) Lender's right to present and collect on any letter of credit or other
credit enhancement document held by Lender in connection with the Obligations.
(c) The following are excluded and excepted from the limitation of
liability in subsection (a) and Lender may recover personally against Borrower,
for the following:
34
(i) all losses suffered and liabilities and expenses incurred by Lender
relating to any fraud or intentional misrepresentation or intentional
omission by Borrower or any of Borrower's partners, members, officers,
directors, shareholder or principals in connection with (A) the
performance of any of the conditions to Lender making the Loan; (B) any
inducements to Lender to make the Loan; (C) the execution and delivery
of the Loan Documents; (D) any certificates, representations or
warranties given in connection with the making of the Loan; or (E)
Borrower's performance of the Obligations to the extent that such
performance affirmatively requires Borrower to make statements, deliver
certificates or provide notices to Lender;
(ii) all Rents derived from the Property after an Event of Default
under the Loan Documents executed by Borrower or any Affiliate of
Borrower and all moneys that, on the date an Event of Default occurs,
are on deposit in one or more accounts used by or on behalf of Borrower
relating to the operation of the Property, except to the extent
properly applied to payment of Debt Service Payments, Impositions,
Insurance Premiums, and any reasonable and customary expenses incurred
by Borrower in the operation, maintenance and leasing of the Property
or delivered to Lender;
(iii) the cost of remediation of any Environment Activity affecting the
Property and any other losses suffered and liabilities and expenses
incurred by Lender relating to an Event of Default under the Article
entitled "Environmental";
(iv) the replacement cost of any Fixtures or Personal Property owned by
Borrower removed from the Property after a default occurs;
(v) all losses suffered and liabilities and expenses incurred by Lender
relating to any acts or omissions by Borrower that result in waste on
the Property;
(vi) all protective advances and other payments made by Lender pursuant
to express provisions of the Loan Documents to protect Lender's
security interest in the Property or to protect the assignment of the
property described in and effected by the Assignment, but only to the
extent that the Rents would have been sufficient to permit Borrower to
make the payment and Borrower failed to do so;
(vii) all mechanic's or similar liens relating to work performed on or
materials delivered to the Property prior to a foreclosure sale of the
Property, but only to the extent Lender had advanced funds to pay for
the work or materials;
(viii) all Proceeds that are not applied in accordance with this
Mortgage or not paid to Lender as required under this Mortgage;
(ix) all losses suffered and liabilities and expenses incurred by
Lender relating to a Transfer that is not permitted under the Section
entitled "Permitted Transfers" and is not otherwise approved by Lender.
(x) all losses suffered and liabilities and expenses incurred by Lender
relating to forfeiture or threatened forfeiture of the Property to the
Government (other than any Condemnation);
35
(xi) all losses suffered and liabilities and expenses incurred by
Lender relating to any Event of Default by Borrower under any of the
provisions of this Mortgage relating to ERISA, including the
prohibition on any Transfer that results in a violation of ERISA; and
(xii) all payments that Borrower expressly is obligated to make after
payment of the Note and satisfaction of the Loan Documents to which it
is a party, provided, however, that the foregoing shall not act to
extend the duration of any Obligation beyond the limits expressly
established with respect thereto.
(d) Nothing under subparagraph (a) above will be deemed to be a
waiver of any right which Lender may have under Section 506(a), 506(b), 1111(b)
or any other provision of the Bankruptcy Code or under any other Law relating to
bankruptcy or insolvency to file a claim for the full amount of the Debt or to
require that all collateral will continue to secure all of the Obligations in
accordance with the Loan Documents.
ARTICLE XVI
WAIVERS
SECTION 16.1. WAIVER OF STATUTE OF LIMITATIONS. BORROWER WAIVES THE
RIGHT TO CLAIM ANY STATUTE OF LIMITATIONS AS A DEFENSE TO BORROWER'S PAYMENT AND
PERFORMANCE OF THE OBLIGATIONS.
SECTION 16.2. WAIVER OF NOTICE. BORROWER WAIVES THE RIGHT TO RECEIVE
ANY NOTICE FROM LENDER WITH RESPECT TO THE LOAN DOCUMENTS EXCEPT FOR THOSE
NOTICES THAT LENDER IS EXPRESSLY REQUIRED TO DELIVER PURSUANT TO THE LOAN
DOCUMENTS.
SECTION 16.3. WAIVER OF MARSHALLING AND OTHER MATTERS. BORROWER WAIVES
THE BENEFIT OF ANY RIGHTS OF MARSHALLING OR ANY OTHER RIGHT TO DIRECT THE ORDER
IN WHICH ANY OF THE PROPERTY WILL BE (1) SOLD; OR (ii) MADE AVAILABLE TO ANY
ENTITY IF THE PROPERTY IS SOLD BY POWER OF SALE OR PURSUANT TO A JUDGMENT OF
FORECLOSURE AND SALE. BORROWER ALSO WAIVES THE BENEFIT OF ANY LAWS RELATING TO
APPRAISEMENT, VALUATION, STAY, EXTENSION, REINSTATEMENT, MORATORIUM, HOMESTEAD
AND EXEMPTION RIGHTS OR A SALE IN INVERSE ORDER OF ALIENATION.
SECTION 16.4. WAIVER OF TRIAL BY JURY. BORROWER WAIVES TRIAL BY JURY IN
ANY PROCEEDING BROUGHT BY OR AGAINST, OR COUNTERCLAIM OR CROSS-COMPLAINT
ASSERTED BY OR AGAINST LENDERS RELATING TO THE LOAN, THE PROPERTY DOCUMENTS OR
THE LEASES.
SECTION 16.5. WAIVER OF COUNTERCLAIM. BORROWER WAIVES THE RIGHT TO
ASSERT A COUNTERCLAIM OR CROSS-COMPLAINT, OTHER THAN COMPULSORY OR MANDATORY
COUNTERCLAIMS OR CROSS-COMPLAINTS,
36
IN ANY PROCEEDING LENDER BRINGS AGAINST BORROWER RELATING TO THE LOAN, INCLUDING
ANY PROCEEDING TO ENFORCE REMEDIES.
SECTION 16.6. WAIVER OF JUDICIAL NOTICE AND HEARING. BORROWER WAIVES
ANY RIGHT BORROWER MAY HAVE UNDER LAW TO NOTICE OR TO A JUDICIAL HEARING PRIOR
TO THE EXERCISE OF ANY RIGHT OR REMEDY PROVIDED BY THE LOAN DOCUMENTS TO LENDER
AND BORROWER WAIVES THE RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY
CONSUMMATED IN ACCORDANCE WITH THE PROVISIONS OF THE LOAN DOCUMENTS ON THE
GROUND (IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR
JUDICIAL HEARING.
SECTION 16.7. WAIVER OF SUBROGATION. ALL RIGHTS OF SUBROGATION TO
LENDER'S RIGHTS OR CLAIMS RELATED TO OR AFFECTING THE PROPERTY OR ANY OTHER
SECURITY FOR THE LOAN UNTIL THE LOAN IS PAID IN FULL AND ALL FUNDING OBLIGATIONS
UNDER THE LOAN DOCUMENTS HAVE BEEN TERMINATED ARE WAIVED FOR THE DURATION OF ANY
APPLICABLE BANKRUPTCY PREFERENCE PERIOD.
SECTION 16.8. GENERAL WAIVER. BORROWER ACKNOWLEDGES THAT (A) BORROWER
AND BORROWER'S PARTNERS, MEMBERS OR PRINCIPALS, AS THE CASE MAY BE, ARE
KNOWLEDGEABLE BORROWERS OF COMMERCIAL FUNDS AND EXPERIENCED REAL ESTATE
DEVELOPERS OR INVESTORS WHO UNDERSTAND FULLY THE EFFECT OF THE ABOVE PROVISIONS;
(B) LENDER WOULD NOT MAKE THE LOAN WITHOUT THE PROVISIONS OF THIS ARTICLE; (C)
THE LOAN IS A COMMERCIAL OR BUSINESS LOAN UNDER THE LAWS OF THE STATE OR
COMMONWEALTH WHERE THE PROPERTY IS LOCATED, NEGOTIATED BY LENDER AND BORROWER
AND THEIR RESPECTIVE ATTORNEYS AT ARMS LENGTH; AND (D) ALL WAIVERS BY BORROWER
IN THIS ARTICLE HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY, AFTER
BORROWER FIRST HAS BEEN INFORMED BY COUNSEL OF BORROWER'S OWN CHOOSING AS TO
POSSIBLE ALTERNATIVE RIGHTS, AND HAVE BEEN MADE AS AN INTENTIONAL RELINQUISHMENT
AND ABANDONMENT OF A KNOWN RIGHT AND PRIVILEGE. THE FOREGOING ACKNOWLEDGMENT IS
MADE WITH THE INTENT THAT LENDER AND ANY SUBSEQUENT HOLDER OF THE NOTE WILL RELY
ON THE ACKNOWLEDGMENT.
SECTION 16.9. WAIVER OF DAMAGES. IN ANY CASE WHERE LENDER IS GIVEN
DISCRETION WITH RESPECT TO ANY MATTER, AND BORROWER CHALLENGES LENDER'S EXERCISE
OF ITS DISCRETION, THEN BORROWER'S SOLE REMEDY SHALL BE TO OBTAIN A COURT ORDER
DIRECTING OR DEEMING LENDER TO CONSENT, AND BORROWER SHALL NOT BE ENTITLED TO
MONETARY DAMAGES ON ACCOUNT OF LENDER'S EXERCISE OF DISCRETION.
37
ARTICLE XVII
NOTICES
Section 17.1. Notices. All acceptances, approvals, consents, demands,
notices, requests, waivers and other communications (the "NOTICES") required or
permitted to be given under the Loan Documents must be in writing and (a)
delivered personally, (b) sent by certified mail, return receipt requested; or
(c) delivered by nationally recognized overnight delivery service providing
evidence of the date of delivery, with all charges prepaid, addressed to the
appropriate party at its address listed below:
If to Borrower: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
LIFE TIME FITNESS, Inc. Portfolio
TIAA Appl. #VR-34 Mortgage #0005128-00
with a copy to: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President of Finance and General Counsel
LIFE TIME FITNESS, Inc. Portfolio
TIAA Appl. #VR-34 Mortgage #0005128-00
If to Lender: Teachers Insurance and Annuity Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Managing Director
Mortgage and Real Estate Division
Region: West/Midwest
LIFE TIME FITNESS, Inc. Portfolio
TIAA Appl. #VR-34 Mortgage #0005128-00
with a copy to: Teachers Insurance and Annuity Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Vice President and Chief Counsel In
charge of Mortgage and Real Estate Law
LIFE TIME FITNESS, Inc. Portfolio
TIAA Appl. #VR-34 Mortgage #0005128-00
38
Lender and Borrower each may change from time to time the address to which
Notices must be sent, by notice given in accordance with the provisions of this
Section. All Notices given in accordance with the provisions of this Section
will be deemed to have been given on the earliest of (i) actual receipt; (ii)
Borrower's rejection of delivery, or (iii) 3 Business Days after having been
deposited in any mail depository regularly maintained by the United States
postal service, if sent by certified mail, or 1 Business Day after having been
deposited with a nationally recognized overnight delivery service, if sent by
overnight delivery, or on the date of personal service, if served by a process
server.
Section 17.2. Change in Borrower's Name or Place of Business. Borrower
will immediately notify Lender in writing of any change in Borrower's name or
the place of business set forth in the beginning of this Mortgage.
ARTICLE XVIII
MISCELLANEOUS
Section 18.1. Applicable Law. This instrument is to be governed by and
will be construed in accordance with the Laws of the State or commonwealth where
the Property is located.
Section 18.2. Usury Limitations. Borrower and Lender intend to comply
with all Laws with respect to the charging and receiving of interest. Any
amounts charged or received by Lender for the use or forbearance of the
Principal to the extent permitted by Law, will be amortized and spread
throughout the Term until payment in full so that the rate or amount of interest
charged or received by Lender on account of the Principal does not exceed the
Maximum Interest Rate. If any amount charged or received under the Loan
Documents executed by Borrower securing the Note that is deemed to be interest
is determined to be in excess of the amount permitted to be charged or received
at the Maximum Interest Rate, the excess will be deemed to be a prepayment of
Principal when paid, without premium, and any portion of the excess not capable
of being so applied will be refunded to Borrower. If during the Term the Maximum
Interest Rate, if any, is eliminated, then for the purposes of the Loan, there
will be no Maximum Interest Rate.
Section 18.3. Lender's Discretion. Wherever under the Loan Documents
any matter is required to be satisfactory to Lender, Lender has the right to
approve or determine any matter or Lender has an election, Lender's approval,
determination or election will be made in Lender's reasonable discretion unless
expressly provided to the contrary.
Section 18.4. Unenforceable Provisions. If any provision in the Loan
Documents is found to be illegal or unenforceable or would operate to invalidate
any of the Loan Documents, then the provision will be deemed expunged and the
Loan Documents will be construed as though the provision was not contained in
the Loan Documents and the remainder of the Loan Documents will remain in full
force and effect.
Section 18.5. Survival of Borrower's Obligations. Borrower's
representations, warranties and covenants contained in the Loan Documents will
continue in full force and effect and survive (i) assignment or other transfer
of all or any portion of Lender's interest in the Loan
39
Documents or the Property; (ii) Lender's exercise of any of the Remedies or any
of Lender's other rights under the Loan Documents; (iii) except as provided in
Section 12.2(b)(vi), a Transfer, (iv) amendments to the Loan Documents; and (v)
any other act or omission that might otherwise be construed as a release or
discharge of Borrower other than satisfaction with Obligation and release of
this Mortgage. The provisions of this Section 18.5 shall not limit the survival
of Borrower's obligation under the Indemnity executed by Borrower as to which
the limitations set forth therein shall apply.
Section 18.6. Relationship Between Borrower and Lender; No Third Party
Beneficiaries.
(a) Lender is not a partner of or joint venturer with Borrower or
any other entity as a result of the Loan or Lender's rights under the Loan
Documents; the relationship between Lender and Borrower is strictly that of
creditor and debtor. Each Loan Document is an agreement between the parties to
that Loan Document for the mutual benefit of the parties and no entities other
than the parties to that Loan Document will be a third party beneficiary or will
have any claim against Lender or Borrower by virtue of the Loan Document. As
between Lender and Borrower, any actions taken by Lender under the Loan
Documents will be taken for Lender's protection only, and Lender has not and
will not be deemed to have assumed any responsibility to Borrower or to any
other entity by virtue of Lender's actions.
(b) All conditions to Lender's performance of its obligations
under the Loan Documents are imposed solely for the benefit of Lender. No entity
other than Lender will have standing to require satisfaction of the conditions
in accordance with their provisions or will be entitled to assume that Lender
will refuse to perform its obligations in the absence of strict compliance with
any of the conditions.
Section 18.7. Partial Releases; Extensions; Waivers. Lender may: (i)
release any part of the Property or any entity obligated for any of the
Obligations; (ii) extend the time for payment or performance of any of the
Obligations or otherwise amend the provisions for payment or performance by
agreement with any entity that is obligated for the Obligations or that has an
interest in the Property; (iii) accept additional security for the payment and
performance of the Obligations; and (iv) waive any entity's performance of an
Obligation, release any entity or individual now or in the future liable for the
performance of the Obligation or waive the exercise of any Remedy or option.
Lender may exercise any of the foregoing rights without notice, without regard
to the amount of any consideration given, without affecting the priority of the
Loan Documents, without releasing any entity not specifically released from its
obligations under the Loan Documents, without releasing any guarantor(s) or
surety(ies) of any of the Obligations, without effecting a novation of the Loan
Documents and, with respect to a waiver, without waiving future performance of
the Obligation or exercise of the Remedy waived.
Section 18.8. Service of Process. Borrower irrevocably consents to
service of process by registered or certified mail, postage prepaid, return
receipt requested, to Borrower at its address set forth in the Article entitled
"NOTICES".
Section 18.9. Entire Agreement. Oral agreements or commitments between
Borrower and Lender to lend money, to extend credit or to forbear from enforcing
repayment of a debt, including promises to extend or renew the debt, are not
enforceable. Any agreements between Borrower and Lender relating to the Loan are
contained in the Loan Documents to which
40
Borrower is a party, which contain the complete and exclusive statement of the
agreements between Borrower and Lender, except as Borrower and Lender may later
agree in writing to amend such Loan Documents. The language of each Loan
Document will be construed as a whole according to its fair meaning and will not
be construed against the draftsman.
Section 18.10. No Oral Amendment. The Loan Documents may not be
amended, waived or terminated orally or by any act or omission made individually
by Borrower or Lender but may be amended, waived or terminated only by a written
document signed by the party against which enforcement of the amendment, waiver
or termination is sought.
Section 18.11. Severability. The invalidity, illegality or
unenforceability of any provision of any of the Loan Documents will not affect
any other provisions of the Loan Documents, which will be construed as if the
invalid, illegal or unenforceable provision never had been included.
Section 18.12. Covenants Run with the Land. Subject to the restrictions
on transfer contained in the Article entitled "TRANSFERS, LIENS AND
ENCUMBRANCES", all of the covenants of this Mortgage and the Assignment run with
the Land, will bind all parties hereto and all tenants and subtenants of the
Land or the improvements and their respective heirs, executors, administrators,
successors and assigns, and all occupants and subsequent owners of the Property,
and will inure to the benefit of Lender and all subsequent holders of the Note
and this Mortgage.
Section 18.13. Time of the Essence. Time is of the essence with respect
to Borrower's payment and performance of the Obligations.
Section 18.14. [Intentionally Omitted].
Section 18.15. Joint and Several Liability. If Borrower consists of
more than one person or entity, the obligations and liabilities of each such
person or entity under this Mortgage are joint and several.
Section 18.16. Successors and Assigns. The Loan Documents bind the
parties to the Loan Documents and their respective successors, assigns, heirs,
administrators, executors, agents and representatives and inure to the benefit
of Lender and its successors, assigns, heirs, administrators, executors, agents
and representatives.
Section 18.17. Duplicates and Counterparts. Duplicate counterparts of
any Loan Documents, other than the Note, may be executed and together will
constitute a single original document.
ARTICLE XIX
FEE JOINDER
A Joinder of 13 pages to this Mortgage by the fee owner of the Land is
attached hereto and hereby incorporated by reference as if fully set forth
herein.
41
IN WITNESS WHEREOF, Borrower has executed and delivered this Mortgage
as of the date first set forth above.
Signed and acknowledged LTF USA REAL ESTATE, LLC, a Delaware limited liability
in the presence of: company
By: LTF REAL ESTATE HOLDINGS, its sole member
_____________________________________________
Print Name:__________________________________
_____________________________________________ By: LIFE TIME FITNESS, Inc., its sole member
Print Name:__________________________________
By: __________________________________________
Name:_____________________________________
Title:____________________________________
STATE OF_____________________________________________ )
) SS.
COUNTY OF____________________________________________ )
This instrument was acknowledged before me on October __, 2001 by
______________, the ___________________ of LIFE TIME FITNESS, Inc., the sole
member of LTF Real Estate Holdings, LLC, which is the sole member of LTF USA
Real Estate, LLC, on behalf of such corporation in its capacity as the sole
member of the sole member of the Borrower.
_______________________________________________
Notary Public in and for Said County and State
My Commission Expires: Print Name of Notary:
________________________________________________ ______________________________________
This Mortgage was prepared by,
and after recording this Mortgage
should be returned to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
c/o Mayer, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
42
EXHIBIT A
Notes Made by Co-Borrowers
------------------------------------------- ---------------------------------- -------------------------- -------------------------
CO-BORROWER PROPERTY(ies) TIAA MORTGAGE NUMBER NOTE AMOUNT
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF Michigan Real Estate, LLC Troy, Michigan 0005004-00 $10,949,541
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF Michigan Real Estate, LLC Shelby, Michigan 0005004-01 $10,143,440
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF Michigan Real Estate, LLC ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇ $ 9,710,019
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF USA Real Estate, LLC ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇ $12,149,062
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF USA Real Estate, LLC ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇ $13,723,938
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF USA Real Estate, LLC ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $ 9,344,000
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF USA Real Estate, LLC ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $ 9,049,000
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF USA Real Estate, LLC ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇ $113,500,000
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF USA Real Estate, LLC ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇ $ 5,000,000
------------------------------------------- ---------------------------------- -------------------------- -------------------------
LTF Minnesota Real Estate, LLC ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ $ 4,550,000
------------------------------------------- ---------------------------------- -------------------------- -------------------------
Total $98,119,000
------------------------------------------- ---------------------------------- -------------------------- -------------------------
EXHIBIT B
THE LAND
The record owner of the land is Easton Town Center LLC, a Delaware limited
liability company
Parcel 1:
Situated in the State of Ohio, County of Franklin, City of Columbus,
▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Military Lands and being 1.784
acres all out of that tract of land known as Parcel 9 as conveyed to MORSO
Holding Co., of record in Official Record 30846G11 (all deed references refer to
the records of the Recorder's Office, Franklin County, Ohio) and described as
follows:
Beginning for reference at the centerline intersection of ▇▇▇▇▇▇▇ Road
with Easton Way;
thence with the centerline of Easton Way, the following courses:
North 87 degrees 24'57" West, a distance of 241.11 feet to a point of
curvature;
With a curve to the left (Delta = 9 degrees 48'35", Radius = 1625.00
feet), a chord bearing and distance of South 87 degrees 40'46" West, 277.88 feet
to a point of reverse curvature;
With a curve to the right (Delta = 15 degrees 03'56", Radius = 6055.00
feet), a chord bearing and distance of North 89 degrees 41'34" West, 1587.55
feet to a point;
thence North 7 degrees 50'24" East, partly across the right-of-way of
said Easton Way and partly across said MORSO Holding Co. Parcel 9, a distance of
626.31 feet to an iron pin set at the True Point of Beginning;
thence continuing across said MORSO Holding Co. Parcel 9, the following
courses and distances:
North 87 degrees 41'33" West, a distance of 355.64 feet to an iron pin
set in the arc of a curve to the right;
With the arc of said curve to the right (Delta = 1'16'35", Radius =
763.00 feet), a chord bearing and distance of North 1 degrees 40'10" East, 17.00
feet to an iron pin set at the point of tangency;
North 2 degrees 18'27" East, a distance of 201.33 feet to an iron pin
set;
South 87 degrees 41'33" East, a distance of 355.83 feet to an iron pin
set;
South 2 degrees 18'27" West, a distance of 218.33 feet to the True
Point of Beginning and October 18, 2001 containing 1.784 acres of land, more or
less.
Subject, however, to all legal rights-of-way and/or easements, if any,
of previous record.
B-1
Bearings based on the Ohio State Plan Coordinate System as per NAD83.
Control for bearings was from coordinates of Monuments ▇▇▇▇▇ 64 and ▇▇▇▇▇ 164
and determines the bearing for the centerline of Easton Way as North 87
degrees 24'57".
Parcel 2:
Non-exclusive appurtenant easements described in Paragraphs 1 and 5 of the
Reciprocal Easement Agreement by and between Limtown, Inc., and Easton Town
Center, LLC, filed as Instrument Number 200005250103363, as amended by document
filed as Instrument Number 200012060246498, Recorder's Office, Franklin County,
Ohio.
Parcel 3:
Non-exclusive appurtenant easements described in Paragraphs 1, 2 and 3 of the
Parking Ramp Easement fled as Instrument No. 200011070226455, Recorder's Office,
Franklin County, Ohio.
Parcel 4:
Non-exclusive appurtenant easements described in Declaration of Surface Parking
Easement filed as Instrument No. 200011070226458, Recorder's Office, Franklin
County, Ohio.
B-2
EXHIBIT C
DEFINITIONS
"ACCELERATION" is defined in Section 14.2(a)(i).
"ACCUMULATIONS" is defined in Section 2.1(xii).
"ACCUMULATIONS DEPOSITARY" is defined in Section 6.2(a).
"ADDITIONAL FUNDS" is defined in Section 7.4(v).
"AFFILIATE" means a person or entity that, directly or indirectly, is (i) under
common ownership or control with the Borrower, (ii) owned or controlled by
Borrower or (iii) controls or owns Borrower.
"ANNUAL FINANCIAL STATEMENT" is defined in Section 10.1(a).
"ASSESSMENTS" is defined as all assessments now or hereafter levied, assessed or
imposed against the Property.
"ASSIGNMENT" is defined as the Assignment of Leases and Rents dated of even date
with this Mortgage made by Borrower for the benefit of Lender.
"BANKRUPTCY CODE" means the United States Bankruptcy Reform Act of 1978 (11
U.S.C. Section 101, et seq.), as amended from time to time.
"BOOKS AND RECORDS" is defined in Section 2.1(xi).
"BORROWER" is defined in the introductory paragraph.
"BUDGET" is defined in Section 10.2.
"BUSINESS DAYS" is defined as any day on which commercial banks are not
authorized or required by Law to close in New York, New York.
"CASUALTY" is defined as damage to or destruction of the Property by fire or
other casualty.
"CLOSING DATE" is defined in the Note.
"CO-BORROWER" is defined in Recital A.
"CODE" is defined as the Internal Revenue Code of 1986 and the regulations
promulgated thereunder.
"COMMITMENT" means that certain Loan Application and Commitment dated March 30,
2001 between FCA Real Estate Holdings, LLC and Lender.
C-1
"CONDEMNATION" is defined as the permanent or temporary taking of all or any
portion of the Property, or any interest therein or right accruing thereto, by
the exercise of the right o f eminent domain (including any transfer in lieu of
or in anticipation of the exercise of the right), inverse condemnation or any
similar injury or damage to or decrease in the value of the Property, including
severance and change in the grade of any streets.
"CONDEMNATION AWARDS" is defined in Section 2.1(viii).
"CONDEMNATION PROCEEDING" is defined as a Proceeding that could result in a
Condemnation.
"DEBT" is defined in Section 3.1.
"DEBT SERVICE PAYMENTS" is defined as the monthly installments of principal and
interest payable by Borrower to Lender as set forth in the Note.
"DEFAULT INTEREST RATE" is defined as the lower of 5% per annum plus the Fixed
Interest Rate or the Maximum Interest Rate, if any.
"DESTRUCTION EVENT" is defined in Section 7.4.
"ENVIRONMENTAL ACTIVITY" is defined as any actual, suspected or threatened
abatement, cleanup, disposal, generation, handling, manufacture, possession,
release, remediation, removal, storage, transportation, treatment or use of any
Hazardous Material. The actual, suspected or threatened presence of any
Hazardous Material or the actual, suspected or threatened noncompliance with any
Environmental Laws, will be deemed Environmental Activity.
"ENVIRONMENTAL LAWS" is defined as all Laws pertaining to health, safety,
protection of the environment, natural resources, conservation, wildlife, waste
management, Environmental Activities and pollution.
"ENVIRONMENTAL REPORT" is defined as the report or reports relating to the
Property set forth on Exhibit G hereto.
"ERISA" is defined in Section 8.3(a).
"EVENT OF DEFAULT" is defined in Section 14.1.
"EXPENSES" is defined in Section 11.1(a).
"FINANCIAL BOOKS AND RECORDS" is defined as detailed accounts of the income and
expenses of the Property and of Borrower and all other data, records and
information that either are specifically referred to in the Article entitled
"FINANCIAL REPORTING" or are necessary to the preparation of any of the
statements, reports or certificates required under such Article and includes all
supporting schedules prepared or used by the CPA in auditing the Annual
Financial Statement or in issuing its opinion.
"FISCAL YEAR" is defined as any calendar year or partial calendar year during
the Term.
"FIXED INTEREST RATE" is defined as in the Note.
C-2
"FIXTURES AND PERSONAL PROPERTY" is defined in Section 2.1(iv).
"GOVERNMENT" is defined as any federal, state or municipal governmental or
quasi-governmental authority including any executive, legislative or judicial
branch division, subdivision or agency of any of them and any entity to which
any of them has delegated authority.
"GROUND LEASE" is defined in the Recitals.
"GROUND LESSOR" is defined in the Recitals.
"GROUND RENT" is defined as the fixed and any contingent ground rent due and
payable under the Ground Lease.
"GUARANTIES" means, collectively, those certain Guaranties, each dated as of
June 14, 2001 from Borrower, each Co-Borrower and Sponsor (each a "GUARANTOR")
as the same may have been and may hereafter from time to time be amended,
modified or restated.
"HAZARDOUS MATERIALS" is defined as any by-product, chemical, compound,
contaminant, pollutant, product, substance, waste or other material (i) that is
hazardous or toxic or (ii) the abatement, cleanup, discharge, disposal,
emission, exposure to, generation, handling, manufacture, possession, presence,
release, removal, remediation, storage, transportation, treatment or use of
which is controlled, prohibited or regulated by any Environmental Laws,
including asbestos, petroleum and petroleum products and polychlorinated
biphenyls.
"IMPOSITION PENALTY DATE" is defined in Section 6.1(a).
"IMPOSITIONS" is defined as all Taxes, Assessments, ground rent, if any, water
and sewer rents, fees and charges, levies, permit, inspection and license fees
and other dues, charges or impositions, including all charges and license fees
for the use of vaults, chutes and similar areas adjoining the Land, maintenance
and similar charges and charges for utility services, in each instance whether
now or in the future, directly or indirectly, levied, assessed or imposed on the
Property and whether levied, assessed or imposed as excise, privilege or
property taxes.
"IMPROVEMENTS" is defined in Section 2.1(ii).
"INDEMNITIES" means, collectively those certain Environmental Indemnities, each
dated June 14, 2001 from Borrower, each Co-Borrower and Sponsor (each an
"INDEMNITOR") together with that certain Child Care Indemnity dated as of June
14, 2001 from Sponsor as the same may have been and may hereafter be amended,
modified or restated from time to time.
"INSURANCE PREMIUMS" is defined as all present and future premiums and other
charges due and payable on policies of fire, rental value and other insurance
covering the Property and required pursuant to the provisions of this Mortgage.
"INSURANCE PROCEEDS" is defined in Section 2.1(ix).
"INSURERS" is defined in Section 7.1(c).
C-3
"INSTITUTIONAL INVESTOR" is defined as any bank, savings institution, charitable
foundation, insurance company, real estate investment trust, pension fund or
investment advisor registered under the Investment Advisors Act of 1940, as
amended, and acting as trustee or agent.
"INTEREST" is defined as the interest payable under the Note and any other sums
which are deemed to be interest under Law.
"INVESTORS" is defined in Section 12.1(b).
"LAND" is defined in Recital C.
"LATE CHARGES" is defined in the Note.
"LAW" is defined as all present and future codes, constitutions, cases,
opinions, rules, manuals, regulations, determinations, laws, orders, ordinances,
requirements and statutes, as amended, of any Government that affect or that may
be interpreted to affect the Property, Borrower or the Loan, including
amendments and all guidance documents and publications promulgated thereunder.
"L/C" is defined in Section 13.1(a).
"LEASES" is defined as all present and future leases, subleases, licenses, and
other agreements for the use and occupancy of the Land and Improvement, any
related guarantees and any use and occupancy arrangements created pursuant to
Section 365(h) of the Bankruptcy Code or otherwise in connection with the
commencement or continuation of any bankruptcy, reorganization, arrangement,
insolvency, dissolution, receivership or similar Proceedings, or any assignment
for the benefit of creditors, in respect of any tenant or other occupant of the
Land and Improvements.
"LENDER" is defined in the introductory paragraph.
"LOAN" is defined in Recital A.
"LOAN DOCUMENTS" is defined as the Note, this Mortgage, the Assignment, any
other mortgages or deeds of trust given by Borrower to secure the Note
including, without limitation, any promissory notes made by Borrower o r any
Co-Borrower to evidence any portion of the Loan, any mortgage or deed of trust
given to secure any such promissory notes, the Indemnities, the Guaranties and
all documents now or hereafter executed by Borrower, any Co-Borrower or Sponsor
or any guaranty of payment given by Borrower or any Co-Borrower in respect of
the Loan together with any document given as security for any such guaranty, any
indemnity of Lender with respect to environmental matters, including all
amendments, modifications or consolidations of any of the foregoing.
"MATURITY DATE" is defined in Recital B.
"MAXIMUM INTEREST RATE" is defined as the maximum rate of interest, if any,
permitted by Law to be charged with respect to the Loan as the maximum rate may
be increased or decreased from time to time.
C-4
"MORTGAGE" is defined as this Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing Statement.
"NOTE" is defined in Recital B.
"NOTE PAYMENTS" is defined in the Note.
"NOTICES" is defined in Section 17.1.
"OBLIGATIONS" is defined in Section 3.1.
"PERMITTED EXCEPTIONS" is defined as the matters shown in Schedule B, Part 1 and
2 of the title insurance policy insuring the lien of this Mortgage and any other
matters approved in a writing signed by Lender.
"PERMITTED TRANSFERS" is defined in Section 12.2(b).
"PERMITTED USE" means a health club with substantially the same finish and
amenities as is in operation upon the Property as of the date hereof with
associated ancillary uses, including those permitted under Section 5.3.
"POLICIES" is defined in Section 7.1(b).
"PORTFOLIO" and "PORTFOLIO TRANSFEREE" are defined in Section 12.2(b)(iv).
"PREPAYMENT PREMIUMS" is defined in the Note.
"PRINCIPAL" is defined in Recital B.
"PROCEEDING" is defined as a pending or, to Borrower's knowledge, threatened
action, claim or litigation before a legal, equitable or administrative tribunal
having proper jurisdiction.
"PROCEEDS" is defined in Section 7.2(c).
"PROPERTY" is defined in Section 2.1.
"PROPERTY DOCUMENTS" is defined in Section 2.1(v).
"RECEIVER" is defined as a receiver, custodian, trustee, liquidator or
conservator of the Property.
"REMEDIES" is defined in Section 14.2(a).
"RENTS" is defined as all rents, prepaid rents, percentage, participation or
contingent rents, issues, profits, proceeds, revenues and other consideration
accruing to Borrower under the Leases or otherwise to the benefit of the
Borrower derived from the use and occupancy of the Land or the Improvements,
including tenant contributions to expenses, security deposits, royalties and
contingent rent, if any, all other fees or payments paid to or for the benefit
of Borrower and any payments received pursuant to Section 502(b) of the
Bankruptcy Code or otherwise in connection with the commencement or continuance
of any bankruptcy,
C-5
reorganization, arrangement, insolvency, dissolution, receivership or similar
proceedings, or any assignment for the benefit of creditors, in respect of any
tenant or other occupant of the Land or the Improvement and all claims as a
creditor in connection with any of the foregoing.
"RESTORATION" is defined as the restoration of the Property after a Destruction
Event as nearly as possible to its condition immediately prior to the
Destruction Event, in accordance with the plans and specifications, in a
first-class workmanlike manner using materials substantially equivalent in
quality and character to those used for the original improvements, in accordance
with Law and free and clear of all liens, encumbrances or other charges other
than this Mortgage and the Permitted Exceptions.
"RESTORATION COMPLETION DATE" is defined in Section 7.4(viii).
"RESTORATION FUNDS" is defined in Section 7.5(b).
"SPONSOR" is defined in Section 12.1(b).
"TAXES" is defined as all present and future real estate taxes levied, assessed
or imposed against the Property.
"TERM" is defined as the scheduled term of this Mortgage commencing on the date
Lender makes the first disbursement of the Loan and terminating on the Maturity
Date.
"TRANSFER" is defined in Section 12.1(a).
"UNIFORM COMMERCIAL CODE" is defined as the Uniform Commercial Code in effect in
the jurisdiction where the Lands located.
C-6
EXHIBIT D
RULES OF CONSTRUCTION
(a) References in any Loan Document to numbered Articles or Sections
are references to the Articles and Sections of that Loan Document. References in
any Loan Document to lettered Exhibits are references to the Exhibits attached
to that Loan Document, all of which are incorporated in and constitute a part of
that Loan Document. Article, Section and. Exhibit captions used in any Loan
Document are for reference only and do not describe or limit the substance,
scope or intent of that Loan Document or the individual Articles, Sections or
Exhibits of that Loan Document.
(b) The terms "include", "including" and similar terms are construed as
if followed by the phrase "without limitation".
(c) The terms "Land", "Improvements", "Fixtures and Personal Property",
"Condemnation Awards", "Insurance Proceeds" and "Property" are construed as if
followed by the phrase "or any part thereof".
(d) Any agreement by or duty imposed on Borrower in any Loan Document
to perform any obligation or to refrain from any act or omission constitutes a
covenant running with the ownership or occupancy of the Land and the
Improvements, which will bind all parties hereto and their respective successors
and assigns, and all lessees, subtenants and assigns of same, and all occupants
and subsequent owners of the Property, and will inure to the benefit of Lender
and all subsequent holders o f the Note and this Mortgage and includes a
covenant by Borrower to cause its partners, members, principals, agents,
representatives and employees to perform the obligation or to refrain from the
act or omission in accordance with the Loan Documents. Any statement or
disclosure contained in any Loan Document about facts or circumstances relating
to the Property, Borrower or the Loan constitutes a representation and warranty
by Borrower made as of the date of the Loan Document in which the statement or
disclosure is contained.
(e) The term "to Borrower's knowledge" is construed as meaning to the
best of Borrower's knowledge after diligent inquiry.
(f) The singular of any word includes the plural and the plural
includes the singular. The use of any gender includes all genders.
(g) The terms "person", "party" and "entity" include natural persons,
firms, partnerships, limited liability companies and partnerships, corporations
and any other public or private legal entity.
(h) The term "provisions" includes terms, covenants, conditions,
agreements and requirements.
(i) The term "amend" includes modify, supplement, renew, extend,
replace or substitute and the term. "amendment" includes modification,
supplement, renewal, extension, replacement and substitution.
D-1
(j) Reference to any specific Law or to any document or agreement,
including the Note, this Mortgage, any of the other Loan Documents, the Leases,
the Property Documents and the Ground Lease includes any future amendments to
the Law, document or agreement, as the case maybe.
(k) No inference in favor of or against a party with respect to any
provision in any Loan Document may be drawn from the fact that the party drafted
the Loan Document.
(l) The term "certificate" means the sworn, notarized statement of the
entity giving the certificate, made by a duly authorized person satisfactory to
Lender affirming the truth and accuracy of every statement in the certificate.
Any document that is "certified" means the document has been appended to a
certificate of the entity certifying the document that affirms the truth and
accuracy of everything in the document being certified. hi all instances the
entity issuing a certificate must be satisfactory to Lender.
(m) Any appointment of Lender as Borrower's attorney-in-fact is
irrevocable and coupled with an interest. Lender may appoint a substitute
attorney-in-fact. Borrower ratifies all actions taken by the attorney-in-fact
but, nevertheless, if Lender requests, Borrower will specifically ratify any
action taken by the attorney-in-fact by executing and delivering to the
attorney-in-fact or to any entity designated by the attorney-in-fact all
documents necessary to effect the ratification.
(n) Any document, instrument or agreement to be delivered by Borrower
will be in form and content satisfactory to Lender.
(o) All obligations, rights, remedies and waivers contained in the Loan
Documents will be construed as being limited only to the extent required to be
enforceable under the Law.
(p) The unmodified word "days" means calendar days.
D-2
EXHIBIT E
Property Documents
None
E-1
EXHIBIT F
Form of Rent Roll Certification
[see attached pages]
F-1
CERTIFICATION OF RENT ROLL
(Columbus, Ohio)
Dated: ___________ ___, 2001
Teachers Insurance and Annuity
Association of America ("Lender")
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: TIAA Appl. # VR-34
TIAA Mtge. # 0005128-00
Property located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(the "Property")
Ladies and Gentlemen:
1. In order to induce Lender to make the captioned loan, which
such loan is collateralized by a mortgage (the "Mortgage"), the undersigned
certifies to Lender as follows:
(a) The undersigned is LTF USA Real Estate, LLC, a
Delaware limited liability company ("Borrower").
(b) The only leases affecting the Property are (i)
the lease ("Lease") identified on the rent roll attached as Schedule A and made
a part of this certification, (ii) the sublease identified on Schedule A, and
(iii) the Standard Commercial Shopping Center Lease dated February 19, 1998
between Borrower, as tenant, and Easton Town Center LLC, a Delaware limited
liability company, as landlord. All other information set forth on the attached
rent roll is true and correct and, to the best knowledge of the undersigned, the
only leases, licenses or other agreements (the "Other Agreements") relating to
the use and occupancy of the Property are described in this paragraph (b).
(c) To the best knowledge of the undersigned, there
are no persons or entities in occupancy of all or any portion of the Property
except pursuant to the Lease, the Prime Lease and the Other Agreements.
2. With respect to the Lease, the undersigned further
certifies to Lender as follows:
(a) The Lease is in full force and effect with no
defaults or matters that with the passage of time or giving of notice would
constitute a default; there are not existing defenses or offsets to the payment
of rent; and, the Lease represents the entire agreement between the parties as
to the leasing; Borrower has not released, discounted or discharged the tenant
from any obligation under the Lease including the payment of rent; and, to the
best knowledge of the undersigned, the Lease is enforceable in accordance with
its terms.
1
(b) The tenant under the Lease is in occupancy,
paying rent and open and conducting business in the leased premises and, to the
best knowledge of the undersigned, is free from pending bankruptcy and from
reorganization.
(c) Borrower has not collected Rents under the
Lease, excluding security deposits, more than one month in advance.
(d) Borrower has complied with all obligations and
satisfied all conditions (including any co-tenancy requirements) under the Lease
which Borrower as landlord must have complied with or satisfied on or before the
date of this certification.
(e) The Lease does not contain obligations of
Borrower to make improvements to the Property, including to the leased premises,
to make any payment or give any credit or allowance to the tenant or to pay any
leasing commissions arising out of the Lease, except for such obligations (i)
provided for in the Lender-approved form lease; (ii) that Borrower has satisfied
prior to the date of this certification; (iii) arising prior to commencement or
during the first six months of the term of the Lease or (iv) which specifically
exclude Lender or any other purchaser in foreclosure from liability for such
obligations therefore.
(f) The Lease does not contain (i) an option to
purchase all or any portion of or interest in the Property (other than the right
of first offer contained in the Lease, which such transfer may be limited by the
terms of the loan agreements by and between Borrower and Lender); (ii) any right
to set off against rents, except for any right to set off included in the
Lender-approved form lease; (iii) any early termination or cancellation rights
(including those arising from a failure to meet continuing co-tenancy
requirements); or (iv) any right to assign, sublet or transfer the Lease without
the landlord's consent, except as permitted under the Mortgage.
(g) The tenant under the Lease does not have the
right to receive or direct the use of proceeds of insurance except for proceeds
of tenant's own insurance or to receive or direct the use of condemnation awards
except for moving expenses and tenant fixture costs, and except as permitted
under the Mortgage.
(h) The Lease does not include percentage or
participation rent that is based on net sales figures or net profit amounts.
(i) Borrower has no obligations under the Lease
with respect to off-site improvements.
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(j) To the best knowledge of the undersigned,
there is no pending action, suit or proceeding against the tenant that would
result in termination of the Lease or removal of the tenant, the tenant under
the Lease has not filed suit against Borrower and, to the actual knowledge of
the undersigned, no action, suit or proceeding has been threatened against the
tenant that would result in termination of the Lease or the removal of the
tenant.
LTF USA Real Estate, LLC
By: LTF Real Estate Holdings, LLC
Its Sole Member
By: LIFETIME FITNESS, Inc.
Its Sole Member
By
-----------------------------
▇▇▇▇ ▇. ▇▇▇▇
Its Secretary
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SCHEDULE A
Rent Roll for Columbus, OH Property
NAME OF TENANT: LIFE TIME FITNESS, Inc.
DATE OF LEASE: _________________ ___, 2001
DATE OF AMENDMENTS: N/A
SQUARE FOOTAGE: 98,047
FIXED RENT: $1,421,681.50 annually
RENT ESCALATIONS: 2.5% increase over the previous
year's Fixed Rent
ADDITIONAL RENT: Lease is "triple net"
PERCENTAGE RENT: N/A
UNREALIZED CONCESSIONS: N/A
SECURITY DEPOSIT: N/A
COMMENCEMENT DATE: _________________ ___, 2001
EXPIRATION DATE: _________________ ___, 2021
DATE RENT PAID THROUGH: N/A
--------------------------------------------------------------------------------
NOTES: Cafe Internationale, Inc. dba LIFE CAFE subleases space from LIFE TIME
FITNESS, Inc. under a Sublease, dated January 1, 2001, where such space is
subleased to December 31, 2005. This sublease includes Base Rent payments of
$1,000.00/month for the first six months of the sublease and $2,000.00/month for
the remainder of the sublease. A Percentage Rent may also be owed monthly in the
amount of (a) 10% of gross sales up to $25,000.00, and (b) 12% of gross sales
greater than $25,000.00, only to the extent that such Percentage Rent exceeds
the Base Rent. A Rent Credit is included in the sublease equal to the total cost
of up to 10 LIFE TIME FITNESS Heritage Single memberships per month (a $49 value
per membership), which is applied against the Base Rent payment made monthly
throughout the term of the sublease.
EXHIBIT G
Environmental Reports
Phase I Environmental Assessment Report and Regulatory Compliance Report dated
9/20/01 performed by the IT Group.
G-1
SCHEDULE 5.7
Parking Space Requirements
1. Shelby, Michigan 667 spaces
2. ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ spaces
3. Novi, Michigan 349 spaces
4. Schaumburg, Illinois 584 spaces
5. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ spaces
6. Indianapolis, Indiana 459 spaces
7. Centerville, Virginia 530 spaces
8. Eagan, Minnesota 515 spaces
9. Algonquin, Illinois 742 spaces
10. Columbus, Ohio 0 spaces
SCHEDULE 8.5
Commission
[▇▇▇▇▇▇▇ Financial Services Ltd.]
SCHEDULE 1
Fee Joinder
