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Exhibit 10.47
[New York]
CONSOLIDATED AND RESTATED MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS
AND FIXTURE FILING
Dated as of March 1, 2000
Made by
EACH OF THE ENTITIES LISTED ON SCHEDULE A HERETO,
as Mortgagor,
To
VORNADO FINANCE L.L.C.,
as Mortgagee.
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Secured By
Forty-Two (42) Properties
Located in Connecticut, Maryland, Massachusetts,
New Jersey, New York and Pennsylvania
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This Consolidated and Restated Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing secures only the same
$54,709,500 total principal indebtedness secured by the Mortgage, Agreement of
Assumption, Consolidation and Amendment of Mortgage Notes, dated as of the date
hereof (the "Mortgage and Agreement"), between the Mortgagor and the Mortgagee,
which consolidated the total principal indebtedness of $22,664,374.54 evidenced
by the Substitute Note (as defined therein) and theretofore secured by that
Consolidated and Restated Mortgage, Security Agreement, Assignment of Leases and
Rents and Fixture
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Filing, dated as of November 24, 1993, as assigned from time to time to the
Mortgagee, and the total principal indebtedness of $32,046,125.46 evidenced by
the Additional Note (as defined therein), and secured by the Mortgage and
Agreement, and does not create, evidence or secure any new or further principal
indebtedness or obligation other than the $54,709,500 total principal
indebtedness originally secured by the Mortgage and Agreement at the time of its
recording simultaneously herewith.
After recording please return to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ Israel, Esq.
TO THE EXTENT PERMITTED BY LAW, A POWER OF SALE HAS BEEN GRANTED IN THIS
INSTRUMENT. A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE AND SELL ALL OR A
PORTION OF THE PROPERTY ENCUMBERED BY THIS INSTRUMENT WITHOUT GOING TO COURT IN
A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGORS UNDER THIS INSTRUMENT.
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TABLE OF CONTENTS
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PRELIMINARY STATEMENT..........................................................1
1. INDENTURE; MORTGAGOR REPRESENTATIVES.......................................9
1.1 Indenture........................................................9
1.2 Mortgagor Representative........................................11
1.3 Mortgagee Consents and Approvals................................11
2. CERTAIN DEFINITIONS.......................................................12
Advance Interest Rate.......................................13
Affiliate...................................................13
Allocated Amount............................................13
Alteration..................................................14
Approved Bank...............................................14
Approved Control Party......................................14
Architect...................................................14
Assignment..................................................14
Assignment of Assignment of Leases..........................14
Assignment of Contracts.....................................15
Assignment of Leases........................................15
Assignment of Mortgage......................................15
Bradlees Property...........................................15
Business Day................................................15
Cash ...................................................15
Cash Equivalents............................................15
Class A-1 Mortgage Note.....................................17
Class A-2 Mortgage Note.....................................17
Class B Mortgage Note.......................................17
Class C Mortgage Note.......................................17
Class D Mortgage Note.......................................17
Class E Mortgage Note.......................................17
Class F Mortgage Note.......................................17
Closing Date................................................18
Code ...................................................18
Control ...................................................18
Credit Facility.............................................18
Debt Securities.............................................18
Debt Service................................................18
Debt Service Coverage Ratio.................................18
Debt Service Coverage Ratio Calculation Date................19
Default ...................................................19
Default Rate................................................19
Duff & ▇▇▇▇▇▇...............................................19
Eligible Collateral.........................................19
Employee Benefit Plan.......................................19
Environmental Indemnity.....................................19
Environmental Laws..........................................19
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Equipment...................................................20
ERISA ...................................................20
Event of Default............................................21
Exculpated Persons..........................................21
Excusable Delay.............................................21
Expansion Space.............................................21
Fiscal Year.................................................21
Fixtures ...................................................21
Gross Revenue...............................................22
Ground Lease................................................22
Guaranty Agreement..........................................22
Hazardous Substances........................................22
Holder ...................................................23
Impositions.................................................23
Improvements................................................23
Indenture...................................................23
Insurance Proceeds..........................................23
Insurance Requirements......................................23
Investment Grade............................................24
Land ...................................................24
Lease ...................................................24
Legal Requirements..........................................24
Letter of Credit............................................24
Lien ...................................................25
Management Agreement........................................25
Make-Whole Amount...........................................25
Make-Whole Obligation.......................................26
Make-Whole Payment..........................................26
Manager ...................................................26
Master Servicer.............................................26
Maturity ...................................................26
Moody's ...................................................26
Mortgage ...................................................27
Mortgagee...................................................27
Mortgage Loan...............................................27
Mortgage Notes..............................................27
Mortgage Security Documents.................................27
Mortgagor...................................................27
Multiemployer Plan..........................................28
Net Cash Flow...............................................28
Notes ...................................................28
Officers' Certificate.......................................28
Operating Expenses..........................................28
Out-of-Pocket Costs.........................................28
Outstanding.................................................29
Payment Date................................................29
Permitted Exceptions........................................29
Permitted Joint Venture Owner...............................29
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Permitted Owner.............................................29
Person ...................................................30
Personal Property...........................................30
Premises ...................................................30
Principal Installment Amount................................30
Proceeds ...................................................31
Properties..................................................31
Property Worth..............................................31
Qualified Fire Protection Engineer..........................31
Rating Agencies.............................................31
Rating Agency Confirmation..................................32
Reciprocal Operating Agreements.............................32
Release Property............................................32
Renewal Lease...............................................32
Replaced Property...........................................32
Required Rating.............................................32
Restoration.................................................32
Scheduled Maturity Date.....................................32
Secured Obligations.........................................32
Securities..................................................33
Servicer ...................................................33
Single Purpose Entity.......................................33
Special Servicer............................................34
Stop & Shop Guaranty........................................34
Subordination of Management Agreement.......................34
Substitute Property.........................................34
Substitution Date...........................................34
Taking ...................................................34
Taking Proceeds.............................................35
Tax Opinion.................................................35
Tenant ...................................................35
Threshold Amount............................................35
Total Loss..................................................35
Total Taking................................................35
Trustee ...................................................36
U.S. Government Securities..................................36
Vornado ...................................................37
Vornado Affiliate...........................................37
Vornado Finance.............................................37
Vornado Operating Company...................................37
Vornado Operating L.P.......................................37
VRLP ...................................................37
3. PARTICULAR COVENANTS, REPRESENTATIONS AND
WARRANTIES................................................................37
3.1. Due Authorization, Validity and Issuance
of the Mortgage Notes; Title to the Premises.....................37
3.2. Maintenance of Validity and Recording;
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Expansion........................................................39
3.3. Negative Covenants...............................................45
3.4. Existence and Rights.............................................49
3.5. Payment of Taxes and Other Claims................................50
3.6. Payment of the Mortgage Notes,
All Other Amounts, the Trustee's
Fees and the Servicer's Fees.....................................50
3.7. Covenants Regarding the Stop & Shop Guaranty.....................50
3.8. The Ground Leases................................................52
4. MAINTENANCE AND REPAIRS, SHORING..........................................54
5. UTILITY SERVICES..........................................................55
6. NO CLAIMS AGAINST MORTGAGEE...............................................55
7. INDEMNIFICATION BY THE MORTGAGOR..........................................55
8. INSPECTION................................................................57
9. PAYMENT OF IMPOSITIONS, ETC...............................................57
10. COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS,
INSTRUMENTS...............................................................58
11. LIENS.....................................................................59
12. PERMITTED CONTESTS........................................................60
13. INSURANCE.................................................................61
13.1. Risks to be Insured................................................61
13.2. Policy Provisions..................................................61
13.3. Certificates.......................................................62
13.4. Replacement Policies...............................................63
13.5. Reports of Insurance Broker........................................63
13.6. Separate Insurance.................................................64
14. ALTERATIONS AND ADDITIONS, ETC............................................64
15. DAMAGE, DESTRUCTION AND RESTORATION.......................................68
15.1. The Mortgagor to Give Notice.......................................68
15.2. Application of Insurance Proceeds..................................68
15.3. Restoration........................................................70
16. TAKING OF PROPERTY........................................................72
16.1. The Mortgagor to Give Notice;
Assignment of Awards, etc..........................................72
16.2. Partial Taking.....................................................73
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16.3. Application of Awards, etc.........................................74
17. EVICTION BY PARAMOUNT TITLE...............................................75
18. BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS AND
OTHER INFORMATION.........................................................76
18.1. Books and Records..................................................76
18.2. Financial Statements...............................................76
18.3. Additional Information.............................................77
18.4. Other Information..................................................78
19. TRANSFERS AND INDEBTEDNESS................................................78
19.1. Sale of the Properties.............................................78
19.2. Transfer or Encumbrance of Interests
in the Mortgagor........................................80
19.3. Indebtedness.......................................................81
19.4. Intentionally Omitted..............................................82
19.5. Notice.............................................................82
19.6. Delivery of Documents to the Mortgagee.............................83
20. PERFORMANCE OF LEASES; APPLICATION OF RENTS...............................83
21. NO ENDORSEMENT............................................................86
22. NO CREDIT FOR PAYMENT OF TAXES OR IMPOSITIONS.............................86
23. EVENT OF DEFAULT; ACCELERATION OF MORTGAGE NOTE...........................86
24. COMPROMISE OF ACTIONS.....................................................91
25. FORECLOSURE...............................................................91
25.1. Foreclosure........................................................91
25.2. The Mortgagor's Waivers............................................92
25.3. Recovery of Advances...............................................93
25.4. Sale...............................................................93
25.5. Several Parcels....................................................94
25.6. Mortgage Notes Become Due on
Foreclosure Sale...................................................94
26. MORTGAGEE AUTHORIZED TO EXECUTE INSTRUMENTS...............................94
27. PURCHASE OF PROPERTIES BY MORTGAGEE.......................................95
28. RECEIPT A SUFFICIENT DISCHARGE TO PURCHASER...............................95
29. WAIVER OF MARSHALLING, APPRAISEMENT, APPRAISAL............................95
30. SALE SHALL BE A BAR AGAINST MORTGAGOR.....................................96
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31. APPLICATION OF PROCEEDS OF SALE...........................................96
32. APPOINTMENT OF RECEIVER...................................................96
33. POSSESSION, MANAGEMENT AND INCOME.........................................96
34. RIGHT OF MORTGAGEE TO PERFORM
MORTGAGOR'S COVENANTS.....................................................98
35. REMEDIES CUMULATIVE.......................................................99
36. APPLICABLE LAW............................................................99
37. NO WAIVER................................................................100
38. OBLIGATIONS ARE WITHOUT RECOURSE.........................................101
39. STAMP AND OTHER TAXES....................................................105
40. FURTHER ASSURANCES.......................................................105
41. ESTOPPEL CERTIFICATES....................................................105
42. ADDITIONAL SECURITY......................................................106
43. FINANCING STATEMENT......................................................106
44. RELEASE; SUBSTITUTE PROPERTY.............................................106
45. CHANGES IN LAW REGARDING TAXATION........................................114
46. PREPAYMENTS..............................................................115
47. CONFIDENTIALITY..........................................................118
48. SECURITY AGREEMENT, ETC..................................................119
48.1. Grant of Security.................................................119
48.2. Financing Statements..............................................119
48.3. Multiple Remedies.................................................119
48.4. Waiver of Rights..................................................120
48.5. Expenses of Disposition of the Properties.........................120
49. EXPENSES OF THE MORTGAGEE................................................120
50. USURY....................................................................122
51. MISCELLANEOUS............................................................123
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52. NON-MERGER...............................................................123
53. ASSIGNMENT OF RENTS AND MORTGAGOR'S INTEREST
IN LEASES................................................................123
54. NOTICES..................................................................130
55. AMENDMENTS/SUPPLEMENTS...................................................131
55.1. Without Consent...................................................131
55.2. With Consent......................................................131
56. WAIVER OF TRIAL BY JURY..................................................133
57. SEVERABILITY.............................................................133
58. APPLICABLE LAWS TO PROPERTY
LOCATED IN NEW YORK STATE................................................133
58.1. Lien Law..........................................................133
58.2. Real Property Law.................................................134
58.3. RPAPL.............................................................134
58.4. Maximum Principal Indebtedness....................................135
58.5. No Residential Units..............................................135
59. ARTICLES APPLICABLE TO PROPERTY LOCATED
IN THE STATE OF NEW JERSEY...............................................135
60. ARTICLES APPLICABLE TO PROPERTY LOCATED IN THE
COMMONWEALTH OF PENNSYLVANIA.............................................135
61. Intentionally Omitted....................................................135
62. ARTICLES APPLICABLE TO PROPERTY LOCATED
IN THE STATE OF CONNECTICUT..............................................135
63. ARTICLES APPLICABLE TO PROPERTY LOCATED IN THE
COMMONWEALTH OF MASSACHUSETTS............................................136
63.1 Application........................................................136
63.2 Mortgage Covenants.................................................136
63.3 Statutory Conditions and Power of Sale.............................137
63.4 Indebtedness Secured...............................................137
63.5 Residential Units..................................................137
63.6 Applicable Law.....................................................137
64. ARTICLES APPLICABLE TO PROPERTY LOCATED IN THE STATE OF
MARYLAND.................................................................137
65. CONTRIBUTION AMONG BORROWERS.............................................139
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66. JOINT AND SEVERAL OBLIGATIONS............................................140
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SCHEDULES & EXHIBITS
SCHEDULE A -- The Mortgagors
SCHEDULE B -- Predecessor Mortgage Documents
EXHIBIT A -- The Properties and Allocated Amounts
EXHIBIT A-1 -- Ground Leases
EXHIBIT B -- Description of Property and Permitted
Exceptions
EXHIBIT C -- Form of Mortgage Note
EXHIBIT D -- Intentionally Omitted
EXHIBIT E -- Insurance Requirements
EXHIBIT F -- Assumption
EXHIBIT G -- Subordination Provisions for Tenant Leases
EXHIBIT H -- Intentionally Omitted
EXHIBIT I -- Principal Installment Amounts
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THIS CONSOLIDATED AND RESTATED MORTGAGE, SECURITY AGREEMENT,
ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING is dated as of March 1, 2000
(the "Mortgage") and is made by EACH OF THE ENTITIES LISTED AS BORROWERS OR
GUARANTORS ON SCHEDULE A HERETO (the guarantors listed thereon are defined as
"Guarantors", the borrowers listed thereon are defined as "Borrowers"; the
Guarantors and Borrowers are defined collectively as the "Mortgagor") or any
successor thereto, having an address for notices of c/o Vornado Finance L.L.C.,
Park ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Vornado
Finance L.L.C. Commercial Mortgage-Backed Securities, Series 2000-VNO, due
March 15, 2010, in consideration of the premises and covenants hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, to Vornado Finance L.L.C., a Delaware limited
liability company, as Mortgagee) (the "Mortgagee"), having an address for
notices of Park ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Vornado Finance L.L.C. Commercial Mortgage-Backed Securities, Series 2000-VNO,
due March 15, 2010.
PRELIMINARY STATEMENT
WHEREAS, Mortgagor owns or holds a leasehold estate in, as
applicable, forty-two shopping center properties, located in six states which
are listed in Exhibit A annexed hereto and made a part hereof.
WHEREAS, part of the collateral secured hereby is subject to certain
mortgages described on Schedule B attached hereto (the "Predecessor Mortgages").
WHEREAS, immediately prior to the execution and delivery of this
Mortgage, the Mortgagor has executed and delivered a Mortgage, Agreement of
Assumption, Consolidation and Amendment of Mortgage and Notes (the "Additional
Mortgage and Agreement") securing an additional note in the aggregate principal
amount of $32,046,125.46 (the "Additional Note"), and consolidating such
Additional Note with the $22,663,374.54 aggregate principal indebtedness,
evidenced by the Substitute Note (as defined in the Additional Mortgage and
Agreement) and theretofore secured by the Predecessor Mortgages, said Additional
Note and Substitute Note now being secured by the Predecessor Mortgages, as
amended and consolidated by the Additional Mortgage and Agreement.
WHEREAS, the Mortgagor, as the owner of the collateral secured by
the Predecessor Mortgages, as amended and consolidated by the Additional
Mortgage and Agreement
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(the "Collateral"), desires to restate such mortgages by executing and
delivering this Mortgage covering the Collateral, and to hereby grant, convey,
transfer and assign the Collateral to the Mortgagee, in order to secure the
payment by the Mortgagor of the principal of, interest and Make-Whole
Obligations, if any, on and all other amounts payable under, the Mortgage Notes
(as defined below) and this Mortgage, and to secure the performance by the
Mortgagor of the covenants and agreements contained in this Mortgage and the
other Security Documents.
WHEREAS, the Mortgagor has duly authorized the execution and
delivery of this Mortgage, which restates the Predecessor Mortgages, as
consolidated and amended by the Additional Mortgage and Agreement, and has taken
all actions required by law and all other actions of the Mortgagor required
therefor.
WHEREAS, the Predecessor Mortgages, as consolidated and amended by
the Additional Mortgage and Agreement, are hereby restated in their entirety and
the provisions of this Mortgage that follow are restatements of such mortgages.
WHEREAS, Mortgagor, as the owner of the Properties, desires to
execute and deliver this Mortgage covering the Properties, and hereby to grant,
convey, transfer and assign the Properties to the Mortgagee, in order to secure
the payment by the Mortgagor of the principal of, interest and Make-Whole
Obligations, if any, on, and all other amounts payable under, the Mortgage
Notes, the Guaranty Agreement and this Mortgage, and to secure the performance
by the Mortgagor of the covenants and agreements contained in this Mortgage and
the other Mortgage Security Documents.
WHEREAS, to induce Mortgagee to extend credit to the Borrowers, the
Guarantors executed and delivered a written guaranty (the "Guaranty Agreement")
in favor of the Mortgagee guaranteeing payment of all sums of money due or to
become due by the Borrowers to the Mortgagee under the Mortgage Notes; and
WHEREAS, it is a condition of the extension of credit to the
Borrowers that the Mortgage secure the full and punctual payment of the
indebtedness due or to become due under the Guaranty Agreement, and all
expenses, costs, charges and fees incurred by the Mortgagee in connection with
the liabilities, by the execution of these presents.
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WHEREAS, simultaneously with the execution and delivery of this
Mortgage, the Mortgagee desires to issue up to $500,000,000 aggregate principal
amount of Commercial Mortgage-Backed Notes, due March 15, 2010 (the
"Securities") under that certain Indenture and Servicing Agreement (the
"Indenture") dated of even date herewith by and among the Mortgagee, LaSalle
Bank National Association, as Trustee (together with its co-trustees, successors
and assigns in accordance with the terms of the Indenture, the "Trustee"), ABN
AMRO Bank N.V., as fiscal agent, Midland Loan Services, Inc., as servicer
(together with its successors and assigns in accordance with the terms of the
Indenture, the "Master Servicer"), and Midland Loan Services, Inc., as special
servicer (together with its successors and assigns in accordance with the terms
of the Indenture, the "Special Servicer", and together with the Master Servicer,
the "Servicer") and to lend the proceeds of issuance of the Securities to the
Mortgagor in consideration for (A) the Mortgage Notes, and (B) this Mortgage and
the other Mortgage Security Documents made by the Mortgagor as security for the
borrowing by the Mortgagor evidenced by the Mortgage Notes.
WHEREAS, simultaneously with the making and delivery of the Mortgage
Notes and the Guaranty Agreement and the execution and delivery of this
Mortgage, the Mortgagee shall execute and deliver to the Trustee the Assignment,
thereby assigning to the Trustee the Mortgage Notes, the Guaranty Agreement,
this Mortgage and all the other Mortgage Security Documents securing the payment
of the Mortgage Notes, all as security for payment and performance of the
Securities in accordance with the terms of such instruments and the Indenture
and shall endorse the Mortgage Notes to the Trustee.
NOW, THEREFORE, in consideration of the premises, and the sum of ten
dollars ($10.00) and other good and valuable consideration, intending to be
legally bound hereby, the receipt and sufficiency of which is hereby
acknowledged, in order to secure (i) the payment by the Borrowers of the
principal of, interest on, and Make-Whole Obligations, if any, on, and all other
amounts payable under, the Mortgage Notes; (ii) the payment of all amounts
payable under this Mortgage; (iii) the payment by the Guarantors of all amounts
payable under the Guaranty Agreements; (iv) the performance by the Mortgagor of
its covenants and agreements contained in this Mortgage and the other Mortgage
Security Documents; and (v) the payment and performance by the Mortgagor of the
covenants and agreements of the Mortgagor under the Leases and the Reciprocal
Operating Agreements (items (i) through (v) being referred
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to herein as the "Secured Obligations"); the Mortgagor and the Mortgagee by
these presents do hereby agree as follows:
THE MORTGAGOR HEREBY IRREVOCABLY GRANTS, BARGAINS, SELLS, CONVEYS,
TRANSFERS, MORTGAGES AND ASSIGNS unto the Mortgagee, its successors and assigns
forever (subject to the Permitted Exceptions), and grants a security interest
in, the following property (such property, in respect of any individual
property, is hereinafter referred to as a "Property", and in respect of all of
the properties, as the "Properties"):
ALL ESTATE, right, title and interest of the Mortgagor, now owned or
hereafter acquired, in and to those certain tracts or parcels of land listed in
Exhibit A (provided, however, in the original of this document presented for
recording, only such parcels listed in Exhibit A which are situate in a single
recording jurisdiction shall be described more specifically in Exhibit B
attached hereto), together with all rights of way or use, sidewalks, alleys and
strips or gores, rights, privileges, air rights and development rights,
servitudes, licenses, easements, hereditaments and appurtenances incident,
belonging or pertaining to such land (the "Land"), and the buildings and
improvements now or hereafter located or placed thereon (which buildings and
improvements, together with any additions thereto or alterations or replacements
thereof, are referred to as the "Improvements");
TOGETHER WITH ALL ESTATE, right, title and interest of the
Mortgagor, now owned or hereafter acquired, in and to any ground lease or lease
described on Exhibit A-1 hereto (each, a "Ground Lease") and the leasehold
estate (each, a "Leasehold Estate") created thereby; all modifications,
extensions and renewals of any Ground Lease and all credits, deposits, options,
privileges and rights of the Mortgagor as tenant under such Ground Lease,
including the right, if any, to renew or extend the Ground Lease for a
succeeding term or terms, and including any extension of the ground leasehold
with respect to the applicable land (provided, that the foregoing shall not be
deemed to constitute the Mortgagee's consent to the encumbering of such land);
all right, title and interest now owned or hereafter acquired by the Mortgagor
in and to all options to purchase or lease the applicable Property or any
portion thereof or interest therein; and all right, title and interest in and to
any right pursuant to Section 365(h) of the U.S. Bankruptcy Code or any
successor to such Section (i) to possession or any statutory term of years
derived
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from or incident to any Ground Lease, or (ii) to treat any Ground Lease as
terminated;
TOGETHER WITH, all estate, right, title and interest, now owned or
hereafter acquired, of the Mortgagor in and to the following property, rights
and interests (subject, however, to the Permitted Exceptions):
(a) all Equipment and Personal Property of the Mortgagor of every
kind and nature now or hereafter located upon the Land, which is to
include, but is in no way limited to, inventory, accounts and chattel
paper;
(b) all real estate tax refunds and all awards or payments,
including interest on any of them, and the right to receive the same which
the Mortgagor may have, which may be made with respect to any of the Land
or Improvements whether from a Taking thereof or for any other injury to,
decrease in the value of, or other occurrence affecting any of the Land or
Improvements;
(c) all Leases and all other agreements for, affecting or related to
the use or occupancy of any Property, now or hereafter entered into, and
the right to receive and apply the rents, incomes, issues and profits
derived by the Mortgagor from each Property to the payment of the Mortgage
Notes and the other obligations secured by this Mortgage, together with
the security deposits or other payments or instruments delivered as
security under such Leases and agreements, including, without limitation,
any guarantees of such Leases (the grant of such security deposits and
other security being subject to application in accordance with the express
requirements of such Leases and any other agreements applicable thereto);
(d) all Proceeds of, and any unearned premiums or refunds of
premiums on, any insurance policies covering all or any part of the
Properties, including the right to receive and apply the Proceeds of any
insurance, judgments or settlements made in lieu thereof for damage to or
the diminution of the Properties in accordance with the terms of this
Mortgage;
(e) all general intangibles relating to design, development,
operation, management and use of the Premises, all certificates of
occupancy, zoning variances, building, use or other permits, approvals,
authorizations, licenses and consents obtained from any
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governmental agency in connection with the development, use, operation or
management of the Premises, all construction, service, engineering,
consulting, management, leasing, architectural and other similar contracts
concerning the design, construction, management, operation, occupancy
and/or use of the Premises (including the Management Agreement), all
architectural drawings, plans, specifications, soil tests, appraisals,
engineering reports and similar materials relating to all or any portion
of the Premises and all payment and performance bonds or warranties or
guarantees relating to the Premises, all to the extent assignable;
(f) all trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service marks,
logos, other source and business identifiers, trademark registration and
applications for registration used at or relating to any of the
Properties; all renewals, extensions and continuations-in-part of the
items referred to above; any written agreement granting to the Mortgagor
any right to use any trademark or trademark registration at or in
connection with any of the Properties; and the right of Mortgagor to ▇▇▇
for past, present and future infringements of the foregoing;
(g) the right in the name and on behalf of the Mortgagor to appear
in and defend any action or proceeding brought with respect to any of the
Properties and to commence any action or proceeding to protect the
interest of the Mortgagee in such Properties;
(h) all of Mortgagor's right, title and interest in and to all
Fixtures now or at any time hereafter affixed to, attached to, placed upon
or used in any way in connection with the use, enjoyment, occupancy or
operation of the Land or the Improvements, together with any and all
replacements thereof and additions thereto; and
(i) all, right, title and interest of Mortgagor in any Reciprocal
Operating Agreement to which it is a party.
TO HAVE AND TO HOLD as provided herein the above granted and
described Properties unto and to the proper use and benefit of the Mortgagee,
its successors and assigns, and with respect to each applicable Leasehold
Estate, for and during the rest, residue and remainder of the terms of
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years yet to come and unexpired in each applicable Ground Lease and the renewals
therein provided for (subject nevertheless to the rents, covenants, conditions
and provisions in such Ground Lease), forever, subject in all respects only to
the Permitted Exceptions.
The following actions of the Mortgagee shall not affect the
liability of any person (other than a person expressly released pursuant
thereto) for payment of the indebtedness and obligations secured hereby, and
shall not affect the lien hereof upon any portion of any of the Properties not
expressly released herefrom: if the Mortgagee shall, with or without notice (a)
retain or obtain a security interest in any property to secure all or any
portion of the Secured Obligations, (b) retain or obtain the primary or
secondary liability of any party or parties with respect to all or any portion
of the Secured Obligations, (c) alter, exchange, extend, renew, modify, release
or cancel for any period (whether or not longer than their original maturity)
any terms, conditions, provisions or covenants contained in any or all of the
Security Documents, (d) release or compromise any liability of any party or
parties primarily or secondarily liable on all or any portion of the Secured
Obligations, (e) release its security interest, if any, in all or any portion of
any of the Properties and permit any substitution or exchange for any such
portion of the Property, (f) resort to the Properties conveyed by this Mortgage,
or any portion thereof, for payment of the Secured Obligations, or any portion
thereof, whether or not the Mortgagee shall have resorted to any other property
otherwise securing the Secured Obligations, or shall have proceeded against any
other party primarily or secondarily liable on the Secured Obligations, (g)
apply any of the Properties or direct the order or manner of sale thereof as the
Mortgagee in its sole discretion chooses in accordance with the terms of this
Mortgage, and (h) accept a conveyance or conveyances of all or part of any of
the Properties as partial satisfaction of the liability secured hereby in the
amount of the value of the Property so conveyed and proceed against the balance
of the Properties for the balance of the Secured Obligations after said
conveyance or conveyances.
IT IS HEREBY FURTHER COVENANTED AND AGREED that the Mortgage Notes,
any replacement, renewal or extension thereof, and any additional Mortgage
Notes, all shall be secured by this Mortgage.
AND, to protect the security of this Mortgage, the Mortgagor
covenants and agrees with and represents and
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warrants to the Mortgagee, subject in all respects to the Permitted Exceptions,
as follows:
1. INDENTURE; MORTGAGOR REPRESENTATIVES.
1.1 Indenture. Concurrently with its execution and delivery to the
Mortgagee, this Mortgage is being assigned, pursuant to the Assignment, to the
Trustee, as trustee for the benefit of the Holders under the Indenture (a copy
of which is available from the Trustee). Pursuant to the terms of the Indenture,
the Servicer is responsible for servicing the Mortgage Loan on behalf of the
Trustee and for the benefit of the Holders under the Indenture. The address of
the Trustee is as shown on the first page of the Assignment. Upon such
assignment, the Trustee shall for all purposes be the sole Mortgagee hereunder
(and all references herein to the Mortgagee shall be deemed to refer to the
Trustee while such assignment is in effect) and the Trustee, or the Servicer on
behalf of the Trustee, shall (i) have the sole and exclusive benefit of and the
right and power to exercise, or to direct the exercise of, all the rights and
remedies of the Mortgagee hereunder, including the right to inspect the
Premises, to receive notices and financial information, to grant or withhold
consents or approvals, to benefit from indemnities, to receive, hold and apply
Proceeds and any Credit Facilities or Eligible Collateral or any other amount or
property provided by the Mortgagor hereunder, and, upon the occurrence and
during the continuance of an Event of Default, to take any action required or
permitted of the Mortgagee, all in the Trustee's own name, and to exercise all
other rights and remedies of the Mortgagee hereunder, (ii) be bound by all the
terms hereof which apply to the Mortgagee, and (iii) except to the extent
otherwise specified herein or in the Indenture, act in a commercially reasonable
manner in making any determination called for of it (without requiring thereby
that any Holder is obligated to act in a commercially reasonable manner) under
this Mortgage or in granting or withholding any approval or consent called for
under or requested pursuant to this Mortgage. Any designation contained herein
of the Mortgagee as attorney-in-fact for any or all of the Mortgagors shall be
deemed to include the Servicer on behalf of the Trustee and for the benefit of
the Holders. With respect to any matter as to which the Mortgagee (and, pursuant
to this Section, the Servicer) is designated as the attorney-in-fact for any or
all of the Mortgagors, such Mortgagors shall execute and deliver to the Trustee,
the Servicer or any agent or representative of any of them, as applicable, such
powers of attorney or other documents or instruments reasonably requested by the
Mortgagee or
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Servicer, as applicable, in order to carry out the purpose of such designation
as attorney-in-fact. The Mortgagor hereby acknowledges the foregoing and agrees
to be bound to the Trustee, upon such assignment, recognizing the Trustee as the
Mortgagee hereunder as if the Trustee were named in this Mortgage as the
Mortgagee. Upon such assignment, the Mortgagor's obligations to the Mortgagee
specified in this Mortgage shall be satisfied by the Mortgagor's tendering full
and timely payment or performance thereof to the Trustee. With respect to
delivery by the Mortgagee of documents and other written material, the Mortgagee
shall have only the obligations expressly set forth herein or in the other
Mortgage Security Documents or in the Indenture. All rights and remedies of the
Trustee as the Mortgagee hereunder, including all indemnities running to the
Mortgagee, shall also operate for the benefit of the Holders as provided in the
Indenture and shall be exercised by the Trustee in accordance with and subject
to the terms and conditions set forth in the Indenture. It is expressly
understood that all or any portion of the amounts due under the Mortgage Notes
may from time to time be repaid on the terms provided herein and therein,
subject in each case to the ability of Vornado Finance to redeem or defease an
equivalent aggregate principal amount of Securities pursuant to the terms of the
Indenture.
1.2 Mortgagor Representative. The Mortgagor hereby designates and
appoints Union VF LLC as the representative of the Mortgagor (the "Mortgagor
Representative") which shall be and hereby is authorized to make any and all
elections and to grant any and all consents, waivers or approvals and to take
any such other actions as may be required or permitted to be taken by the
Mortgagor under this Mortgage or any other Mortgage Security Document (each a
"Mortgagor Action") for and on behalf of the Mortgagor, and the Mortgagee shall
be entitled to rely on any instruction or request made by the Mortgagor
Representative as if the same had been made by each of the Borrowers and the
Guarantors. In addition, whenever, in this Mortgage, the Indenture or any of the
other Mortgage Security Documents, the Mortgagee is authorized to make any
payment or return any funds or instruments to the Mortgagor without specifying
any particular Borrower or Guarantor, the Mortgagee shall have satisfied its
obligation hereunder and thereunder by delivering such funds or instruments to
the Mortgagor Representative. The Borrower named above shall continue as the
Mortgagor Representative throughout the term of this Mortgage, and any Mortgagor
Action taken by such Mortgagor Representative shall be binding upon and shall
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inure to the benefit of each of the Borrowers and the Guarantors and their
successors until such time as the Borrowers and the Guarantors deliver to the
Mortgagee an Officer's Certificate signed by or on behalf of each of the
Borrowers and the Guarantors notifying the Mortgagee of the appointment of
another Borrower as the replacement Mortgagor Representative. Any Mortgagor
Representative hereunder shall not be released from its obligations under this
Mortgage, nor shall its Mortgaged Property be released from the lien of this
Mortgage, unless the entities that will be Borrowers and Guarantors after such
release have appointed a replacement Mortgagor Representative in accordance with
the foregoing. The Borrowers and Guarantors covenant and agree to maintain the
appointment of a Mortgagor Representative at all times during the term of this
Mortgage, and the Mortgagee shall not be required to accept or act upon any
Mortgagor Action, unless such action is taken by a Mortgagor Representative or
is otherwise evidenced by a written instrument signed by or on behalf of every
Borrower and Guarantor of a Property which has not been released.
1.3 Mortgagee Consents and Approvals. Whenever, in this Mortgage or
in any other Mortgage Security Document, any consent or approval or other action
may or shall be granted, withheld or otherwise taken by the Mortgagee, such
consent, approval or other action shall be granted or withheld and such other
action may be taken by the Servicer on behalf of the Mortgagee in accordance
with the Servicing Standards (as defined in the Indenture). In deciding whether
to grant or withhold any such consent or approval or to take any such other
action, the Servicer shall be entitled (but not required) to consult with such
counsel, real estate professionals or other Persons as the Servicer may deem
necessary or appropriate and the Mortgagor shall reimburse the Servicer for all
reasonable fees and expenses incurred by the Servicer in connection with any
such consultation.
2. CERTAIN DEFINITIONS.
(a) Capitalized terms, not otherwise defined in this Mortgage, shall
have the respective meanings assigned thereto in the Indenture.
(b) For all purposes of this Mortgage, except as otherwise expressly
provided or unless the context otherwise requires:
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(1) The terms defined in this Article shall have the meanings
assigned to them in this Article and shall include the plural as well as
the singular;
(2) All accounting terms not otherwise defined herein shall have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted
in the United States of America as of the date of such computation;
(3) The word "including" shall be construed to be followed by the
words "without limitation";
(4) Section headings are for the convenience of the reader and shall
not be considered in interpreting this Mortgage or the intent of the
parties hereto;
(5) The words "herein", "hereof" and "hereunder" and other words of
similar import shall refer to this Mortgage as a whole and not to any
particular Article, Section or other subdivision; and
(6) As a matter of convenience herein, rating categories are
generally stated in the nomenclature of ▇▇▇▇▇'▇ Investors Service, Inc.,
and Duff & ▇▇▇▇▇▇ Credit Rating Co., it being understood that, unless
otherwise expressly stated to the contrary, reference to such category
shall also be deemed to be a reference to the comparable category of each
other Rating Agency; provided that if a specified rating (or its
equivalent) from any of the Rating Agencies is required hereunder with
respect to an issuer or a security (other than the Securities), and one of
the Rating Agencies does not rate the issuer or security in question, then
such requirement hereunder shall nevertheless be deemed satisfied so long
as such Rating Agency has issued a Rating Agency Confirmation with respect
thereto.
(c) As used in this Mortgage the following terms have the following
respective meanings:
Advance Interest Rate shall have the meaning set forth in the
Indenture.
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Affiliate shall mean a Person or Persons directly or indirectly,
through one or more intermediaries, controlling, controlled by or under
common control with the Person or Persons in question. The term "control",
as used in the immediately preceding sentence, shall mean, with respect to
a Person that is a corporation, the right to exercise, directly or
indirectly, more than 50% of the voting rights attributable to the shares
of the controlled corporation and, with respect to a Person that is not a
corporation, the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of the
controlled Person.
Allocated Amount shall mean, with respect to each of the Properties,
the amounts set forth alongside each Property on Exhibit A attached
hereto; provided, however, such amounts shall be reduced (i) on a pro rata
basis as and when Principal Installment Amounts are paid in respect of the
Mortgage Notes and (ii) with respect to a particular Property or
Properties in the event of a prepayment of the Mortgage Notes in
accordance with Sections 3.2, 15, 16, 44 or 46 hereof relating to such
Property or Properties; and provided, further, however, that the aggregate
Allocated Amounts for the Properties shall never exceed the then
outstanding aggregate principal balance of the Mortgage Notes except in
the limited circumstances described in Section 3.7 hereof.
Alteration shall have the meaning stated in Article 14 hereof.
Approved Bank shall mean banks or other financial institutions which
have (i)(a) a minimum net worth of $500,000,000, or (b) total assets of
$5,000,000,000 and (ii) a minimum long-term unsecured debt rating at least
equivalent to AAA (or, in connection with the issuance of a letter of
credit, AA) or such lower rating as may be confirmed by a Rating Agency
Confirmation.
Approved Control Party shall mean any one or a combination of the
following entities:
(a) A Vornado Affiliate;
(b) A Permitted Owner; or
(c) A Permitted Joint Venture Owner.
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Architect with respect to each Property shall mean an architect or
engineer, as appropriate for the project to be evaluated, selected by the
Mortgagor (unless reasonably disapproved by the Mortgagee) duly licensed
or registered in the state where such Property is located and practicing
with a firm of recognized standing.
Assignment shall mean the Collateral Assignment of Mortgage Notes
and Other Mortgage Security Documents dated as of the date hereof made by
Vornado Finance in favor of the Trustee.
Assignment of Assignment of Leases shall mean, collectively, the
Assignments of Assignment of Leases and Rents each dated as of the date
hereof made by Vornado Finance in favor of the Trustee.
Assignment of Contracts shall mean the blanket Assignment of
Agreements, Licenses, Permits and Contracts (including the Property
Owners' rights under the Stop & Shop Guaranty), dated as of the date
hereof, from the Mortgagor, as assignor, to the Mortgagee, as assignee,
together with any amendments thereto.
Assignment of Leases shall mean, collectively, the Assignments of
Leases and Rents each dated as of the date hereof from the Mortgagor, as
assignor, to the Mortgagee, as assignee, together with any amendments
thereto pursuant to the provisions thereof, assigning all the leases and
rents with respect to the Properties.
Assignment of Mortgage shall mean, collectively, the Assignments of
Mortgages, Deeds of Trusts and/or Leasehold Interests each dated as of the
date hereof made by Vornado Finance in favor of the Trustee.
Bradlees Property shall mean a property containing space leased
under a Stop & Shop Guaranteed Lease whether or not any of the Rental
Increase (as defined in the Stop & Shop Guaranty) is allocated to such
space.
Business Day shall have the meaning stated in the Indenture.
Cash shall mean coin or currency of the government of the United
States of America.
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Cash Equivalents shall mean (i) U.S. Government Securities, (ii)
interest bearing or discounted obligations of federal agencies and
government sponsored entities or pools of such instruments offered by
Approved Banks and dealers, including, without limitation, Federal Home
Loan Mortgage Corporation participation sale certificates, Government
National Mortgage Association modified pass-through certificates, Federal
National Mortgage Association bonds and notes, Federal Farm Credit System
securities (provided all of the obligations described in this clause (ii)
shall be rated "AAA" (or its equivalent)or backed by the full faith and
credit of the United States government for full and timely payment), (iii)
time deposits, domestic and Eurodollar certificates of deposit, bankers
acceptances or commercial paper rated at least D-1+/P-1 (or its
equivalent) by the Rating Agencies, and/or guaranteed by an entity having
a long-term rating at least equal to the Required Rating, floating rate
notes, other money market instruments and letters of credit each issued by
Approved Banks (provided that if the scheduled maturity of any such note,
instrument or letter of credit is more than three (3) months after the
date of purchase of such obligation by Mortgagor or Mortgagee, the note,
instrument or letter of credit must be issued by a bank having a long-term
unsecured debt rating from the Rating Agencies at least equal to the
Required Rating), (iv) obligations issued by state and local governments
or their agencies, carrying a rating at least equal to the Required Rating
and/or guaranteed by an irrevocable letter of credit of an Approved Bank
(v) investments in money market funds and money market mutual funds all
the assets of which are comprised of Cash and/or investments described in
clauses (i) through (iv) above, and (vi) any other investment which the
Rating Agencies confirm in writing will not, in and of itself, result in a
downgrading, qualification or withdrawal of the rating then assigned to
any of the Securities. Except as otherwise provided in this definition,
Cash Equivalents shall not include any investments commonly known as
"derivatives", any investments requiring a payment above par for an
obligation, and under no circumstances shall Cash Equivalents include
interest-only strips. Any investment in Cash Equivalents shall have a
maturity date not later than one Business Day prior to the date that the
proceeds therefrom are required hereunder.
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Casualty/Condemnation Threshold Amount shall have the meaning set
forth in Section 15.2.
Class A-1 Mortgage Note shall mean the Class A-1 Mortgage Note dated
the date hereof in the initial principal amount of $61,000,000
substantially in the form of Exhibit C hereto from the Borrowers, as
maker, to Mortgagee, as payee.
Class A-2 Mortgage Note shall mean the Class A-2 Mortgage Note dated
the date hereof in the initial principal amount of $237,000,000
substantially in the form of Exhibit C hereto from the Borrowers, as
maker, to Mortgagee, as payee.
Class B Mortgage Note shall mean the Class B Mortgage Note dated the
date hereof in the initial principal amount of $55,000,000 substantially
in the form of Exhibit C hereto from the Borrowers, as maker, to
Mortgagee, as payee.
Class C Mortgage Note shall mean the Class C Mortgage Note dated the
date hereof in the initial principal amount of $56,000,000 substantially
in the form of Exhibit C hereto from the Borrowers, as maker, to
Mortgagee, as payee.
Class D Mortgage Note shall mean the Class D Mortgage Note dated the
date hereof in the initial principal amount of $17,000,000 substantially
in the form of Exhibit C hereto from the Borrowers, as maker, to
Mortgagee, as payee.
Class E Mortgage Note shall mean the Class E Mortgage Note dated the
date hereof in the initial principal amount of $45,000,000 substantially
in the form of Exhibit C hereto from the Borrowers, as maker, to
Mortgagee, as payee.
Class F Mortgage Note shall mean the Class F Mortgage Note dated the
date hereof in the initial principal amount of $29,000,000 substantially
in the form of Exhibit C hereto from the Borrowers, as maker, to
Mortgagee, as payee.
Closing Date shall mean March 1, 2000 or such other date as the
parties hereto shall mutually agree upon.
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Code shall mean the Internal Revenue Code of 1986, as amended from
time to time.
Control shall mean possessing primary responsibility to make or veto
all material decisions with respect to the operation, management,
financing and disposition of the specified entity or interest rather than
a beneficial ownership requirement.
Credit Facility means a Letter of Credit in respect of which the
Mortgagor's reimbursement obligation is not secured by any of the
Properties.
DCR shall mean Duff & ▇▇▇▇▇▇ Credit Rating Co.
Debt Securities means debt obligations, other than U.S. Government
Securities, of any Person, whether evidenced by bonds, notes, debentures,
certificates, book entry deposits, certificates of deposit, commercial
paper, bankers acceptances, reinvestment letters, investment contracts,
funding agreements or other instruments, which (x) shall not be subject to
prepayment or redemption prior to maturity and (y) shall be rated not less
than the Required Rating (or, if maturing within one year or less and
having a short term debt rating by either or both of the Rating Agencies
not less than A-1+/D-1+) (or the then equivalent ratings); or any
combination of the foregoing.
Debt Service shall mean, in respect of the Mortgage Notes for any
period, all payments of interest and principal amortization, if any, paid
or payable by the Mortgagor during such period, excluding balloon payments
of principal or accrued interest, if any, due at maturity.
Debt Service Coverage Ratio shall mean the ratio of (i) Net Cash
Flow for all of the Properties for the twelve-month period ended the last
day of the last full fiscal quarter preceding the date of determination
for which the Mortgagor has delivered financial statements to the
Mortgagee pursuant to Section 18 hereof (excluding any Net Cash Flow from
any Properties that have been released from the lien of this Mortgage
prior to the date of determination) to (ii) Debt Service on the Mortgage
Notes for the twelve-month period immediately following the date of
determination.
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Debt Service Coverage Ratio Calculation Date shall have the meaning
stated in the Indenture.
Default shall mean any condition or event which constitutes or
which, after the giving of notice or lapse of time or both, would
constitute an Event of Default hereunder.
Default Rate shall mean, with respect to any Class of Mortgage
Notes, an annual rate equal to the greater of (i) the stated rate of such
Class of Mortgage Note plus 3% and (ii) the Advance Interest Rate.
Eligible Collateral shall mean U.S. Government Securities, Debt
Securities, Cash or Cash Equivalents, or any combination thereof.
Employee Benefit Plan means any employee benefit plan within the
meaning of Section 3(3) of ERISA which is established, sponsored,
maintained, or contributed to on behalf of its employees at any of the
Properties by the Mortgagor.
Environmental Indemnity shall mean that certain blanket
Environmental Indemnity Agreement, dated as of the date hereof, from the
Mortgagor to the Mortgagee, together with any amendments, supplement or
modifications thereto.
Environmental Laws shall mean, to the extent applicable to any
Property, the following: the Resource Conservation and Recovery Act (42
U.S.C. ss. 6901 et seq.), as amended by the Hazardous and Solid Waste
Amendments of 1984, the Comprehensive Environmental Response, Compensation
and Liability Act (42 ▇.▇.▇.▇▇. 9601 et seq.), as amended by the Superfund
Amendments and Reauthorization Act of 1986, the Hazardous Materials
Transportation Act (49 U.S.C. ss. 1801 et seq.), the Toxic Substances
Control Act (15 ▇.▇.▇.▇▇. 2601 et seq.), Clean Air Act (42 U.S.C. ss. 9402
et seq.), the Clean Water Act (33 ▇.▇.▇.▇▇. 1251 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 ▇.▇.▇.▇▇. 136 et seq.), the
Occupational Safety and Health Act (29 ▇.▇.▇.▇▇. 651 et seq.) and all
other federal, state and local laws, including obligations under the
common law, ordinances, rules and regulations, as any of the foregoing may
have been or may be amended, supplemented or supplanted, relating to the
regulation or control of Hazardous Substances or wastes, or their
handling, storage or
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disposal, to the protection of human health or to the health, safety and
protection of the environment.
Equipment shall mean all machinery, apparatus, equipment, materials,
fittings, fixtures, chattels, articles of personal property and all other
property (real, personal or mixed), and all appurtenances and additions
thereto and betterments, renewals, substitutions and replacements
thereof, now or hereafter owned by the Mortgagor or in which the Mortgagor
has or shall acquire an interest (to the extent of such interest), and now
or hereafter located on, attached to or contained in or used in
connection with the Land or the Improvements, or placed on any part
thereof though not attached thereto, including all indoor and outdoor
furniture, landscaping, indoor plants, tools, screens, awnings, shades,
blinds, curtains, draperies, partitions, carpets, rugs, furniture and
furnishings, heating, lighting, plumbing, water heating, cooking,
monitoring, ventilating, air conditioning, refrigerating, sanitation,
waste removal, incinerating or compacting plants, systems, fixtures and
equipment, elevators, escalators, stoves, ranges, vacuum systems, window
washing and other cleaning systems, call systems, sprinkler systems and
other fire prevention and extinguishing apparatus and materials, alarms,
telecommunications, entertainment, recreational or security systems and
equipment, motors, machinery, pipes, ducts, conduits, dynamos, engines,
compressors, generators, boilers, stokers, furnaces, pumps, tanks, and
appliances.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
Event of Default shall have the meaning stated in Article 23 hereof.
Exculpated Persons shall have the meaning stated in Article 38
hereof.
Excusable Delay shall mean a delay due to acts of God, governmental
restrictions, enemy actions, civil commotion, fire, casualty, strikes,
shortages of supplies or labor, work stoppages or other causes beyond the
reasonable control of the Mortgagor, but lack of funds shall not be deemed
a cause beyond the reasonable control of the Mortgagor.
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Expansion Space shall have the meaning stated in Section 3.2(f)
hereof.
Fiscal Year shall mean the period from January 1 through December
31, inclusive, of any calendar year.
Fixtures shall mean all Equipment now owned by the Mortgagor or
otherwise or hereafter acquired by the Mortgagor, which is so related to
the Land and Improvements forming part of any of the Properties that it is
deemed fixtures or real property under the law of the particular state in
which the Equipment is located, including, without limitation, all
building or construction materials intended for construction,
reconstruction, alteration or repair of or installation on any of the
Properties, construction equipment, appliances, machinery, plant
equipment, fittings, apparatuses, fixtures and other items now or
hereafter attached to, installed in or used in connection with
(temporarily or permanently) any of the Improvements or the Land,
including, but not limited to, Equipment, engines, devices for the
operation of pumps, pipes, plumbing, cleaning, call and sprinkler systems,
fire extinguishing apparatuses and equipment, water tanks, heating,
ventilating, plumbing, laundry, incinerating, electrical, air conditioning
and air cooling equipment and systems, gas and electric machinery,
appurtenances and equipment, pollution control equipment, security
systems, disposals, dishwashers, refrigerators and ranges, recreational
equipment and facilities of all kinds, and water, gas, electrical, storm
and sanitary sewer facilities, utility lines and equipment (whether owned
individually or jointly with others, and, if owned jointly, to the extent
of the Mortgagor's interest therein) and all other utilities whether or
not situated in easements, all water tanks, water supply systems, water
power sites, fuel stations, fuel tanks, fuel supply systems, and all other
structures, together with all accessions, appurtenances, additions,
replacements, betterments and substitutions for any of the foregoing and
the proceeds thereof. Notwithstanding the foregoing, "Fixtures" shall not
include any property which tenants are entitled to remove pursuant to
Leases, except to the extent that the Mortgagor shall have any right or
interest therein.
Gross Revenue shall mean, for any period, revenue derived from the
ownership and operation of the Properties from whatever source, including
but not limited to, rents (without giving effect to straight-
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lining of rents), but excluding sales, use and occupancy or other taxes on
receipts required to be accounted for by the Mortgagors or Vornado Finance
to any governmental authority, non-recurring revenues, refunds and
uncollectible accounts, proceeds of casualty insurance and any other
insurance or similar awards (other than business interruption or other
loss of income insurance), and any disbursements to the Mortgagors or
Vornado Finance of any escrow funds established by the Mortgage Security
Documents.
Ground Lease shall have the meaning set forth in the recitals
hereto.
Guaranty Agreement shall have the meaning stated in the Preliminary
Statement.
Hazardous Substances means (i) those substances included within
definitions of or identified as "hazardous substances", "hazardous
materials", or "toxic substances" in or pursuant to Environmental Laws;
(ii) those substances listed in the United States Department of
Transportation Table (40 CFR 172.101 and amendments thereto) or by the
Environmental Protection Agency (or any successor agency) as hazardous
substances (40 CFR Part 302 and amendments thereto); (iii) any material,
waste or substance which is or contains (A) petroleum, including crude oil
or any fraction thereof, natural gas, or synthetic gas usable for fuel or
any mixture thereof, or any product containing the foregoing substances,
(B) asbestos or asbestos containing material, (C) polychlorinated
biphenyls, (D) any substance designated as "hazardous substance" pursuant
to Section 311 of the Clean Water Act, 33 U.S.C. ss. 1251 et seq. (33
U.S.C. ss. 1321), or listed pursuant to Section 307 of the Clean Water Act
(33 U.S.C. ss. 1317); (E) flammable explosives; (F) radioactive materials;
and (iv) such other substances, materials and wastes which are or become
regulated as hazardous, toxic or "special wastes" under Environmental
Laws.
Holder shall have the meaning stated in the Indenture.
Impositions shall have the meaning stated in Article 9 hereof.
Improvements shall have the meaning stated in the Preliminary
Statement hereof.
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Indenture shall have the meaning stated in the Preliminary Statement
hereof.
Independent Director shall mean an individual who has not been, for
the two (2) year period prior to appointment as Independent Director and
during the continuation of service as Independent Director, an employee,
stockholder, principal, equity member, or officer of the entity for which
he or she serves as Independent Director or such entity's members,
stockholders or partners or such entity's subsidiaries (other than as a
person serving as an Independent Director of any such entities), a
customer, supplier or other person or entity who derived more than five
percent (5%) of its annual revenues in the most recently completed
calendar year from its activities for the entity or any Affiliate thereof,
or a spouse, sibling, parent or child of the foregoing.
Insurance Proceeds shall mean amounts, awards or payments payable to
the Mortgagor or the Mortgagee in respect of all or any part of the
Properties in connection with the damage or destruction thereof (after the
deduction therefrom and payment to the Mortgagor and the Mortgagee,
respectively, of any and all reasonable expenses incurred by the Mortgagor
and the Mortgagee in the recovery thereof, including all attorneys' fees
and expenses, the fees of insurance experts and adjusters and the costs
incurred in any litigation or arbitration with respect to such damage or
destruction).
Insurance Requirements shall mean all terms of any insurance policy
required hereunder covering or applicable to the Properties or any part
thereof, all requirements of the issuer of any such policy, and all
orders, rules, regulations and other requirements of the National Board of
Fire Underwriters (or any other body exercising similar functions)
applicable to or affecting the Properties or any part thereof or any use
of the Properties or any part thereof.
Investment Grade shall mean having a long term unsecured debt rating
not lower than Baa3 by Moody's and not lower than BBB-by Duff & ▇▇▇▇▇▇.
Land with respect to each Property shall have the meaning stated in
the Preliminary Statement hereof in respect of such Property.
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Lease with respect to each Property shall mean any lease, sublease,
further sublease, license, occupancy agreement or other agreement existing
on the date hereof or hereafter entered into by the Mortgagor permitting
the use or enjoyment of any part of such Property by another Person, and
every modification, amendment, or extension relating thereto.
Legal Requirements shall mean all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations, directions and requirements of all
governments, departments, commissions, boards, courts, authorities,
agencies, officials and officers, of governments, federal, state, county
and municipal, ordinary or extraordinary, including the Americans with
Disabilities Act of 1990, 42 U.S.C. ss. 12101 et seq. and all
Environmental Laws and all covenants, restrictions and conditions now or
hereafter of record, which now or at any time hereafter may be applicable
to and enforceable against the Mortgagor or any Property as a result of
the ownership, use, manner of use, occupancy, possession, operation,
maintenance, alteration, repair or reconstruction of the Property or any
part thereof, including, without limitation, building and zoning codes and
ordinances.
Letter of Credit shall mean a clean, irrevocable, unconditional
transferable letter of credit in favor of the Mortgagee (which will be the
Trustee upon execution and delivery of the Assignment), not secured by any
Property or otherwise reimbursable by the Mortgagor, and entitling the
Mortgagee to draw thereon in New York, New York or in such other city as
the Corporate Trust Office may from time to time be located, issued by a
domestic bank or the U.S. agency or branch of a foreign bank the
investment rating of which is not less than Aa2 from Moody's and AA from
DCR or if not so rated by DCR, then an equivalent rating by one additional
nationally recognized statistical rating organization ("NRSRO")(or if
there are no domestic banks or U.S. agencies or branches of a foreign bank
having such investment rating then issuing letters of credit, then such
letter of credit may be issued by a domestic bank, the long term unsecured
debt rating of which is the highest such rating then given to a domestic
commercial bank) or such lower rating as to which a Rating Agency
Confirmation has been obtained.
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Lien shall mean any mortgage, deed of trust, lien, pledge,
hypothecation, assignment, security interest, or any other encumbrance of,
on or affecting any Property or any portion thereof or any interest
therein, including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, the filing of any financing
statement, liens for delinquent real estate taxes and construction,
mechanics', materialmen's and other similar liens and encumbrances but
excluding liens for delinquent real estate taxes and construction,
mechanics', materialmen's and other similar liens to the extent Mortgagor
is contesting the amounts claimed which gave rise to such liens pursuant
to the terms of this Mortgage.
Management Agreement shall mean the management agreement with
respect to each of the Properties agreed to by or on behalf of each of the
Mortgagors and VRLP.
Make-Whole Amount shall mean, an amount equal to the greater of: (i)
1% of the aggregate principal amount of the Mortgage Notes at the time
that the Mortgage Notes have been accelerated or (ii) the present value as
of the date of such acceleration of the Calculated Payments from such date
through the Scheduled Maturity Date determined by discounting such
payments at the Discount Rate.
For purposes of this definition, the following terms have the
following meanings: "Calculated Payments" means the monthly payments of
interest only which would be due based on the aggregate principal amount
of the Mortgage Notes at the time that the Mortgage Notes have been
accelerated and assuming an interest rate per annum equal to the
difference (if such difference is greater than zero) between (y) the
weighted average interest rate for such Mortgage Notes and (z) the Yield
Maintenance Treasury Rate. The relevant "Discount Rate" is the rate which,
when compounded monthly, is equivalent to the Yield Maintenance Treasury
Rate when compounded semi-annually. The "Yield Maintenance Treasury Rate"
is the yield calculated by the linear interpolation of the yields, as
reported in Federal Reserve Statistical Release H.15-Selected Interest
Rates under the heading "U.S. Government Securities/Treasury Constant
Maturities" for the calendar week ending prior to the date of the relevant
principal prepayment, of U.S. Treasury Constant Maturities with a maturity
date (one
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longer and one shorter) most nearly approximating the Maturity Date. If
Release H.15 is no longer published, the Servicer will select a comparable
publication to determine the Yield Maintenance Treasury Rate.
Make-Whole Obligation shall mean, collectively, the obligation to
pay the Make-Whole Amount and/or to make any Make-Whole Payment.
Make-Whole Payment shall have the meaning stated in Section
44(a)(ii) or Section 46, as applicable.
Manager shall mean Vornado Realty L.P., a Delaware limited
partnership, or any entity or entities retained by the Mortgagor to act as
property managers of any of the Properties in accordance with Sections
19.1 and 20(b) hereof.
Master Servicer shall mean the institution serving from time to time
as servicer for the benefit of the Holders of the Notes under and pursuant
to the Indenture.
Maturity shall mean with respect to any Mortgage Notes, the date on
which the principal of such Mortgage Notes shall become due and payable as
herein provided, whether at the Scheduled Maturity Date, by acceleration
or otherwise.
Moody's shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
Mortgage shall mean this Mortgage, Security Agreement, Assignment of
Leases and Rents and Fixture Filing, as amended or supplemented from time
to time pursuant to the provisions hereof.
Mortgagee shall have the meaning stated in the Preliminary Statement
hereof, and after the execution of the Assignment shall mean the Trustee
as assignee thereunder for the benefit of the Holders, its successors and
assigns, and shall include its assigns pursuant to any future assignment
for the benefit of the Holders, and after the date hereof its successors
and assigns.
Mortgage Loan means the indebtedness evidenced by the Mortgage Notes
and secured by this Mortgage and the other Mortgage Security Documents.
Mortgage Notes means the Class A-1 Mortgage Note, the Class A-2
Mortgage Note,
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the Class B Mortgage Note, the Class C Mortgage Note, the Class D Mortgage
Note, the Class E Mortgage Note and the Class F Mortgage Note. Every
reference to the Mortgage Notes shall include any amendment or
endorsements thereto or replacements, renewals or extensions thereof, all
of which shall be secured by this Mortgage.
Mortgage Security Documents means this Mortgage, the Guaranty
Agreement, the Assignment of Leases, the Environmental Indemnity, the
Assignment of Contracts, the Subordination of Management Agreement, the
Mortgage Notes, the Cash Management Agreement, the financing statements
now or hereafter executed in connection therewith and any and all other
agreements, certificates (including, without limitation, Officer's
Certificates), instruments or documents executed by the Mortgagor
evidencing or securing the Mortgage Notes.
Mortgagor shall mean collectively, the entities identified on
Schedule A hereto, for the period during which the same shall own the
Properties, and following any conveyance of any of the Properties (other
than a Release Property) which is permitted by the terms of this Mortgage,
shall mean the transferee for the period during which each transferee
shall own such Properties, subject in all cases to Section 38 of this
Mortgage, and, to the extent the context shall so require, the term
"Mortgagor" shall also mean one or more of the Mortgagors.
Multiemployer Plan means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Mortgagor is making or has an
obligation to make contributions.
Net Cash Flow, with respect to a specified period and a particular
Property, shall mean, for any period, the excess, if any, of Gross Revenue
for such Property determined for such period over Operating Expenses for
such Property determined for such period.
Notes shall have the meaning stated in the Indenture.
Officers' Certificate shall mean a certificate delivered to the
Mortgagee and signed by a general partner, managing member, responsible
officer or authorized person of the Mortgagor, or a certificate signed by
an individual of similar authority and responsibility authorized to sign
such certificate on
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behalf of the Mortgagor, which certificate shall be subject to the
provisions of Article 38 hereof.
Operating Expenses shall mean, for any period, all costs and
expenses relating to the operation, maintenance and management of each
Property, including, without limitation, utilities, repairs and
maintenance, insurance, property taxes and assessments, ground lease
payments, advertising expenses, payroll and related taxes, equipment lease
payments, a management fee equal to the greater of 4.0% of annual rents
(including percentage rents) or the actual management fee and an assumed
capital expenditure reserve of $0.07 per square foot of total square feet
of the Properties, but excluding depreciation, amortization and
extraordinary expenses; provided, however, such costs and expenses shall
be subject to adjustment by Mortgagee to normalize such costs and
expenses.
Out-of-Pocket Costs shall mean with respect to the Properties,
following an Event of Default, (a) any and all sums actually paid or
required to be paid by the Mortgagee for real estate taxes, taxes on rents
or rentals or insurance premiums as provided in this Mortgage, and any and
all other sums actually paid or required to be paid by the Mortgagee
pursuant to the terms of this Mortgage to protect and preserve the
Properties or the Mortgagee's interest therein, and (b) any and all sums,
including, without limitation, judgments, settlements or compromises (to
the extent such settlements or compromises have been consented to by the
Mortgagor if such consent is required under the Mortgage Security
Documents), reasonable attorneys' fees and other costs and expenses, paid
by the Mortgagee in connection with any suit, action, legal proceeding or
dispute of any kind, in which the Mortgagee is a party or appears, arising
from or related to the Properties or the indebtedness secured by this
Mortgage.
Outstanding shall have the meaning set forth in the Indenture, but
with respect to the Mortgage Notes.
Payment Date shall have the meaning stated in the Indenture.
Permitted Exceptions shall mean those matters identified in Exhibit
B hereto.
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Permitted Joint Venture Owner shall mean an entity in which any two
or more Vornado Affiliates and/or Permitted Owners, together with their
Affiliates, collectively own at least a 51% equity interest.
Permitted Owner shall mean any Person that is:
A) an entity that satisfies at least one of the criteria in each of
the following two categories:
(1) any one of the following:
(a) a pension fund or pension trust, or
(b) an insurance company, or
(c) a national money-center bank, or
(d) a real estate company traded on a national securities
exchange, or
(e) a Person with a long-term unsecured debt rating from
each Rating Agency of at least investment grade, and
(2) any one of the following (determined exclusive of the
Properties):
(a) a Person with a current net worth of at least
$250,000,000, or
(b) a pension fund or pension trust with total assets of $5
billion or more, managed by a Person that controls at
least $1 billion in real estate equity investments, or
(c) a Person that controls at least 2,500,000 square feet of
leaseable retail and commercial space; or
B) any entity approved by the Trustee (such approval not to be
unreasonably withheld or delayed) and to which a Rating Agency
Confirmation has been obtained.
Person shall mean any individual, sole proprietor ship, corporation,
general partnership, limited partnership, limited liability company or
partnership, joint venture, association, joint stock company, bank,
Massachusetts business trust, trust, estate, unincorporated organization,
government (or any agency
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or political subdivision thereof), endowment fund or any other form of
entity.
Personal Property shall have the meaning stated in Section 48.1
hereof.
Premises, with respect to each Property, shall mean the Land,
Improvements and Equipment related to such Property and all accessions and
additions thereto and increases therein which constitute a part of the
Improvements and/or Equipment.
Principal Installment Amount means for any Payment Date, commencing
with the Payment Date in April 2000, occurring prior to the Scheduled
Maturity Date, the scheduled principal amortization payment due under the
Mortgage Notes with respect to such Payment Date as set forth on Exhibit I
hereto (subject to adjustment as provided in Section 46(a)(ii) hereof).
The principal amortization schedule will be recalculated after the
prepayment of a portion of the Mortgage Notes pursuant to Section
46(a)(ii) hereof.
Proceeds shall mean Insurance Proceeds and/or Taking Proceeds, as
applicable.
Properties shall have the meaning stated in the Preliminary
Statement hereof, provided that, in the event of a release of one or more
Properties pursuant to Section 44 of this Mortgage, from and after such
date, "Properties" will not include any such released property or
properties.
Property Worth shall mean, with respect to each Mortgagor, the fair
market value of the Property owned by such Mortgagor as of the Closing
Date.
Qualified Fire Protection Engineer shall mean (a) an engineer duly
licensed in the state where the Property is located who shall either (x)
have 10 years' experience evaluating fire and life safety systems and
making estimates comparable to the estimates described in Exhibit E hereto
or (y) be certified as a qualified fire protection engineer (or
equivalent) by a professional, trade or other, similar association of
recognized standing, (b) a reputable insurance broker having an in-house
engineering and loss control group capable of making estimates comparable
to the estimates described in Exhibit E hereto, or (c) an insurer meeting
the criteria set forth in Exhibit E hereto or a
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qualified employee thereof, in each case selected by the Mortgagor (unless
reasonably disapproved by the Mortgagee).
Rating Agencies means each of Moody's and DCR and any successor
thereto, and, if either such entity shall for any reason no longer perform
the functions of a securities rating agency, "Rating Agency" shall be
deemed to refer to any other nationally recognized rating agency selected
by the Mortgagor (and not reasonably disapproved by the Mortgagee).
Rating Agency Confirmation shall have the meaning stated in the
Indenture.
Reciprocal Operating Agreements shall mean the operating agreement,
reciprocal easement agreement or ground lease, as applicable, setting out
the respective rights and obligations between the Mortgagor and each
anchor store or other owner at the Properties.
Release Property shall have the meaning stated in Section 44(a)(ii)
hereof.
Renewal Lease shall have the meaning stated in Section 20(b) hereof.
Replaced Property shall have the meaning stated in Section 44(e)
hereof.
Required Rating shall mean "AAA" (or its equivalent) by each of the
Rating Agencies, except in connection with the issuance of a letter of
credit in which case, AA (or its equivalent) by each of the Rating
Agencies.
Restoration shall mean, in case of damage to or destruction or
Taking of any Premises or any part thereof, the restoration, replacement
or rebuilding of such Premises as nearly as practicable (after taking into
account the consequences of a Taking, if any) to at least its value,
utility and character (in light of commercial materials and services then
available) immediately prior to such damage, destruction or Taking,
together with such Alterations as may be made at the Mortgagor's election
in accordance with the applicable provisions of this Mortgage.
Scheduled Maturity Date shall mean March 15, 2010. If the Scheduled
Maturity Date shall occur on a date
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that is not a Business Day, the Scheduled Maturity Date shall be the next
succeeding Business Day and no further interest or other payment shall be
due to the Mortgagee as a result of such adjustment.
Secured Obligations shall have the meaning stated in the Preliminary
Statement hereof.
Securities shall have the meaning stated in the Indenture.
Servicer shall mean the Master Servicer and/or the Special Servicer,
as applicable.
Single Purpose Entity shall mean a Person, other than an individual,
which is formed or organized solely for the purpose of holding, directly,
an ownership interest in any of the Properties, does not engage in any
business unrelated to such Property or Properties and the financing
thereof, does not have any assets other than those related to its interest
in such Property or Properties or the financing thereof or any
indebtedness other than as permitted by this Mortgage or the other
Mortgage Security Documents, has its own separate books and records and
its own accounts, in each case which are separate and apart from the books
and records and accounts of any other Person, and holds itself out as
being a Person, separate and apart from any other Person. If the foregoing
entity is a corporation, it must have at least one Independent Director.
If the foregoing entity is a partnership or limited liability company, (i)
its partnership agreement or operating agreement, as applicable, must
provide that the partnership or limited liability company will dissolve
upon the withdrawal or dissolution of the last remaining general partner
or member, but the partnership or limited liability company will not be
dissolved if the remaining partners or members, within ninety (90) days,
by majority vote elect to continue the partnership or limited liability
company and, in the case of a limited partnership, appoint a new general
partner, (ii) one general partner or managing member (as applicable) must
at all times be a Single Purpose Entity formed solely for the purpose of
acting as such general partner or managing member, as applicable, or, in
the case of a limited liability company, such entity must have a special
member or a member of its board of managers that would qualify as an
Independent Director and (iii) the partnership agreement or operating
agreement (as applicable) must
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provide that the dissolution and winding up or insolvency filing of such
partnership or limited liability company requires the unanimous consent of
all general partners or members, or all members of the board of managers
respectively. The entity's organizational or governing documents shall
include provisions substantially similar to those contained in Section 3.3
hereof and that otherwise limit its business to a single purpose as
described above in the first sentence of this definition.
Special Servicer shall mean the institution serving from time to
time as special servicer for the benefit of the Holders of the Notes under
and pursuant to the Indenture.
Stop & Shop Guaranteed Lease shall mean a lease of space in a
property that is entitled to the benefits of the Stop & Shop Guaranty.
Stop & Shop Guaranty shall mean that certain Master Agreement and
Guaranty, dated as of May 1, 1992, by and among certain of the Mortgagors
(as assignees of Vornado, Inc. and the Subsidiaries named therein),
Bradlees New Jersey, Inc. and each of the guarantors listed therein.
Subordination of Management Agreement shall mean the Manager's
Consent and Subordination of Management Agreement, dated as of the date
hereof, by Vornado Realty L.P. to the Mortgagee, together with any
amendments thereto.
Substitute Property shall have the meaning given in Section 44(e)
hereof.
Substitution Date shall have the meaning given in Section 44(e)
hereof.
Taking shall mean a temporary or permanent taking by a government or
political subdivision thereof or by a governmental agency, as the result
or in lieu or in anticipation of the exercise of the right of condemnation
or eminent domain, of all or any part of the Properties, or any interest
therein or right accruing thereto, including any right of access thereto
or any change of grade affecting the Land of any Property or any part
thereof.
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Taking Proceeds shall mean amounts, awards or payments payable to
the Mortgagor or the Mortgagee in respect of all or any part of the
Properties in connection with the Taking thereof (after the deduction
therefrom and payment to the Mortgagor and the Mortgagee, respectively, of
any and all reasonable expenses incurred by the Mortgagor and the
Mortgagee in the recovery thereof, including all attorneys' fees and
expenses and the costs incurred in any litigation or arbitration with
respect to such Taking).
Tax Opinion shall mean an opinion of counsel experienced in
sophisticated tax issues and acceptable to the Servicer that a particular
transaction will not (i) be treated as an exchange of a Note for a new
note or security pursuant to Section 1001 of the Code; (ii) adversely
affect the status of any Note as debt for federal income tax purposes or
(iii) result in the treatment of the Mortgagee or the Borrowers as a
"taxable mortgage pool" within the meaning of the Code.
Tenant shall mean any Person liable by contract or otherwise to pay
rent or a percentage of gross income, revenue or profits pursuant to a
Lease.
Threshold Amount shall mean (i) an aggregate amount equal to 5% of
the aggregate initial Allocated Amounts of all Properties which at the
time are subject to the Lien of this Mortgage and (ii) $3,500,000 with
respect to each Property provided Vornado's long-term unsecured debt is
rated at least Investment Grade by ▇▇▇▇▇'▇ (or if not rated by ▇▇▇▇▇'▇
then by at least one NRSRO) or if not so rated, $2,000,000 with respect to
each Property.
Total Loss shall mean damage or destruction of any of the Properties
by fire or other casualty (including earthquake) to the extent that the
Mortgagor is not required, under the Leases or Reciprocal Operating
Agreements, to apply the Proceeds to Restoration of such Property.
Total Taking shall mean a permanent Taking of the whole of the
Premises of any Property or so much of the Premises of such Property that
it would be impracticable, even after Restoration, to operate such
Property as an economically viable shopping center and either (i) for
which the Mortgagor is not required, under the Leases or Reciprocal
Operating Agreements, to apply the Proceeds to Restoration and continued
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operation of such Premises or (ii) to the extent that 25% or more of the
gross usable area of any Property has been taken by eminent domain. For
purposes of this definition, the term "gross usable area" shall mean gross
leaseable area plus area which is then used for parking and/or vehicular
circulation; provided, however, that any parking and/or circulatory space
taken by eminent domain that can and will be replaced in all material
respects with alternative space shall not be counted toward the
calculation of the 25% threshold.
Trustee shall mean the institution serving from time to time as
Trustee for the benefit of the Holders under and pursuant to the
Indenture, which shall initially be LaSalle Bank National Association,
having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
U.S. Government Securities shall mean securities evidencing an
obligation to timely pay principal and interest in a full and timely
manner that are (x) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of and guaranteed as a full faith and credit
obligation by the United States of America, which in either case are not
callable or redeemable at the option of the issuer thereof (including a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Securities or a specific payment of principal of or
interest on any such U.S. Government Securities held by such custodian for
the account of the holder of such depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the securities or
the specific payment of principal of or interest on the securities
evidenced by such depository receipt).
Vornado shall mean Vornado Realty Trust, a Maryland real estate
investment trust, and its successors and assigns.
Vornado Affiliate shall mean an entity under common control with,
controlled by, or controlling any
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of VRLP or Vornado, and any successors by merger, consolidation or
transfer of all or a substantial portion of the assets or businesses
thereof.
Vornado Finance shall mean Vornado Finance L.L.C., a Delaware
limited liability company, and its successors and assigns.
VRLP shall mean Vornado Realty L.P., a Delaware limited partnership,
and its successors and assigns.
3. PARTICULAR COVENANTS, REPRESENTATIONS AND WARRANTIES.
3.1. Due Authorization, Validity and Issuance of the Mortgage Notes;
Title to the Premises. The Mortgagor and each of the Borrowers, where
applicable, covenants and agrees and represents and warrants as follows:
(a) The Mortgage Notes, this Mortgage and the other Mortgage
Security Documents have been duly authorized, executed and delivered and are
legal, valid and binding obligations of the Borrowers enforceable in accordance
with their respective terms, subject as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium, rehabilitation and other laws relating to or affecting creditors'
rights generally and to general equity principles.
(b) The Borrowers are duly authorized to execute and deliver the
Mortgage Notes, this Mortgage, and the other Mortgage Security Documents, and
thereby to grant, convey, transfer and assign the Properties to the Mortgagee in
accordance with this Mortgage, and all corporate, partnership, limited liability
company and governmental action, consents, authorizations and approvals
necessary therefor have been duly and effectively taken or obtained.
(c) As of the date hereof, the Mortgagor has good and marketable fee
simple title or leasehold title to the Premises, and good and marketable title
to the Personal Property (other than the Personal Property which is leased to
the Mortgagor by third parties, as to which the Mortgagor holds a valid,
enforceable and unencumbered leasehold interest), subject to no liens, charges
or encumbrances other than the Permitted Exceptions (excluding, however,
Permitted Exceptions of the type set forth in clause (c), of Exhibit B hereto
for purposes of this representation) and, as to those Permitted Exceptions
affecting the Properties as of the date hereof, the Mortgagor represents and
warrants
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that the same will not materially and adversely affect the current use,
operation or value of the Mortgaged Properties or the Security intended to be
provided herein, or the ability of the Borrowers to timely pay principal and
interest on the Mortgage Notes. Upon the execution by the Mortgagor of this
Mortgage, the Mortgagee shall have a valid first lien on the Premises and a
valid first priority security interest in the Personal Property (other than that
excluded above) in trust for the benefit of the Mortgagee subject to no liens,
charges or encumbrances other than the Permitted Exceptions. The Mortgagor
represents that there is no condemnation, appropriation or recapture proceeding
pending or, to its knowledge, threatened with respect to any of the Properties
and there are no unrecorded options to purchase all or any part of any of the
Properties. No title insurance company issuing a policy covering all or any part
of any of the Properties shall be considered a beneficiary of, or entitled to
rely on, the representations and warranties contained herein.
(d) The Mortgagor has made and shall continue to make all required
contributions to all Employee Benefit Plans. The Mortgagor has no knowledge of
any material liability which has been incurred by the Mortgagor which remains
unsatisfied for any taxes or penalties with respect to any Employee Benefit Plan
or any Multiemployer Plan.
(e) At the time of execution of this Mortgage, there is no
litigation to which the Mortgagor is a party pending, or to its knowledge
threatened, which if determined adversely to the Mortgagor, would have a
material adverse effect on the financial position of the Mortgagor or would not
be covered by insurance. At the time of execution of this Mortgage, there are no
known material contingent liabilities of the Mortgagor.
(f) At the time of execution of this Mortgage, the Mortgagor has no
material financial obligations under any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Mortgagor is a
party or otherwise bound other than obligations incurred in the ordinary course
of the operation of the Properties.
3.2. Maintenance of Validity and Recording; Expansion.
(a) The Mortgagor covenants that it will forth with after the
execution and delivery of this Mortgage and thereafter as necessary from time to
time cause this Mortgage and the other Mortgage Security Documents and any
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continuation statement or similar instrument relating to any property subject
thereto or to any property intended to be granted, conveyed, transferred and
assigned by this Mortgage to be filed, registered and recorded in such manner
and in such places as may be required by law in order to publish notice of and
fully to protect the validity thereof or the grant thereby of the property
subject thereto and the interest and rights of the Mortgagee therein. The
Mortgagor covenants that it has paid or will pay or cause to be paid all taxes
and fees incident to such filing, registration and recording, and all expenses
incident to the preparation, execution and acknowledgment thereof, and of any
instrument of further assurance, and all federal or state stamp taxes or other
charges arising out of or in connection with the execution and delivery of such
instruments.
(b) The Mortgagor covenants that at all times it will itself, or
will use its best efforts to cause third parties to, preserve, warrant and
defend the Mortgagee's title and right in and to the Properties, subject to
Permitted Exceptions, against the claims of all Persons and will maintain and
preserve such title and right so long as any of the Mortgage Notes are
outstanding.
(c) Notwithstanding any provision to the contrary contained herein,
the Mortgagee hereby (i) consents to the modification of existing easements,
rights of way, restrictive covenants or similar agreements included in the
Permitted Exceptions and to the creation by the Mortgagor of additional
easements, rights of way, restrictive covenants or similar agreements affecting
title to the Premises of any of the Properties, including in connection with an
Alteration, and (ii) agrees that this Mortgage shall be subordinate to such
modifications, additional easements, rights of way, restrictive covenants or
similar agreements, in either case upon receipt by the Mortgagee of an Officer's
Certificate confirming that such action (A) will either benefit the Property or
will not affect the utility, operation or value of such Property in any material
adverse respect and (B) will not to the best knowledge of the certifying
officer, cause such Property to be in violation of any Legal Requirements,
Leases or Insurance Requirements or result in the loss of any certificate of
occupancy provided, however, upon the occurrence and during the continuance of a
Triggering Event, the downgrade by ▇▇▇▇▇'▇ of the rating assigned to any Class
of the Notes to a rating that is less than Investment Grade or the Mortgagor's
failure to comply with the reporting requirements set forth in Section 18
hereof, any modification or creation of such
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easements, rights-of-way and similar agreements shall be subject to the
reasonable approval of the Mortgagee.
(d) The Mortgagor covenants and agrees to punctually perform all
obligations and agreements to be performed by it as lessor under any Lease or as
a party to or a beneficiary of any of the Permitted Exceptions, and to take such
action as shall be reasonable and diligent to compel performance by each other
party to each of such instruments of such other party's obligations and
agreements thereunder. The Mortgagor shall maintain the validity, perfection,
priority and effectiveness of this Mortgage and the other Mortgage Security
Documents. The Mortgagor will not take any action, will not permit action to be
taken by others and will not omit to take any action, nor will the Mortgagor
give any notice, approval or consent or exercise, waive or modify any rights
under or in respect of the Permitted Exceptions, which action, omission, notice,
approval, consent or exercise, waiver or modification of rights would release
the Mortgagor from, or reduce any of the Mortgagor's obligations or liabilities
under, or would result in the termination, surrender or assignment of, or the
amendment or modification of, any of the Mortgage Security Documents, or would
impair the validity of any of the Permitted Exceptions, this Mortgage or any of
the other Mortgage Security Documents, or would affect any of the Properties in
any material adverse respect, without the Mortgagee's consent, and any attempt
to do any of the foregoing without such consent shall be of no force and effect.
(e) The Mortgagor represents that it has no actual knowledge of any
material respect in which it or any of the Properties is, on the date hereof, in
violation of any Legal Requirement or any Insurance Requirement or of any
agreement binding upon the Mortgagor or such Property.
(f) In order to permit the Mortgagor to expand any Improvements on a
Property through the addition of one or more anchor stores and/or the addition
of one or more mall or peripheral stores from time to time (those portions of
the Land on which such expansion shall be undertaken being collectively referred
to as the "Expansion Space"), the Mortgagee agrees, so long as no Event of
Default shall have occurred and be continuing at the time such addition is
commenced, as follows:
(i) In the event the Mortgagor desires to sell, ground lease
or sublease the Expansion Space, the Mortgagee shall consent to such sale
or ground lease
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and to the release of the Expansion Space from the lien of this Mortgage,
and/or to such other actions taken as may be reasonably requested by the
Mortgagor, provided that (I) the Architect shall have certified to the
Mortgagee that in such Architect's opinion (w) such transactions comply in
all material respects with all applicable zoning ordinances, (x) such
transactions and the particular plans developed for the Expansion Space
shall not adversely affect the utility or operation of the Premises in any
material adverse respect, (y) any connection to, or contemplated shared
use of, the common area in order to provide utilities services and access
to the Expansion Space shall not adversely affect the availability or
provision of utility services to the Premises in any material adverse
respect and (z) any such transaction shall not materially reduce the
rentable square footage of the Improvements, (II) such anchor store, mall
store or peripheral store shall join or be subject to the agreements
binding upon the Property on terms which shall not have a material adverse
effect on the value or operation of the Property as a whole, (III) the
Mortgagor delivers an Officers' Certificate stating that such transactions
and the particular plans developed for the Expansion Space do not violate
any existing Lease or the parties to such Lease have consented thereto,
(IV) the Mortgagor obtains an agreement from the third-party developer
conducting such expansion which provides that in the event the
third-party developer does not complete construction of the improvements
on the expansion parcel, the Mortgagor will have the right, at either the
Mortgagor's or the developer's expense as the Mortgagor shall elect, to
enter the expansion parcel and either complete the improvements or
demolish the uncompleted improvements with no liability to the third-party
developer, (V) if the construction of such Expansion Space would cause the
Debt Service Coverage Ratio with respect to such affected Property
(calculated using the Net Cash Flow and Debt Service allocable to and the
Allocated Amount for such Property) to be less than the Debt Service
Coverage Ratio with respect to such affected Property (calculated using
the Net Cash Flow and Debt Service allocable to and the Allocated Amount
for such Property) as of the Closing Date, then Mortgagor shall deposit
with the Trustee Eligible Collateral in the amount of the cost of the
Expansion Space or cause all Gross Revenue, after payment of Debt Service
on the Mortgage Notes and all other indebtedness permitted hereunder to be
deposited with Mortgagee promptly after
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receipt thereof by Mortgagor, to be held by Mortgagee in a segregated,
interest-bearing escrow account invested at Mortgagor's instructions in
Eligible Collateral and to be held in such account until an amount equal
to the cost of the Expansion Space is so deposited in such account, (VI) a
Rating Agency Confirmation shall have been provided to Mortgagee and (VII)
if Mortgagor is required to prepay the Mortgage Notes as provided below,
Vornado Finance shall simultaneously with such prepayment defease, or if
permitted by the terms of the Indenture, redeem an equal principal amount
of the Notes (pursuant to the terms of the Indenture). Mortgagor's
obligations under clause (V) hereof to so deposit such Gross Revenue shall
terminate, and Mortgagee shall disburse any amounts so held by Mortgagee,
at such time as the Debt Service Coverage Ratio with respect to such
affected Property (calculated using the Net Cash Flow and Debt Service
allocable to and the Allocated Amount for such Property), for the
preceding twelve month period shall be equal to or greater than the Debt
Service Coverage Ratio with respect to such affected Property (calculated
using the Net Cash Flow and Debt Service allocable to and the Allocated
Amount for such Property) as of the Closing Date. Any cash proceeds from a
sale of Expansion Space on a Property that are not used to make capital
improvements on such Property shall be applied in any manner in which the
Mortgagor deems appropriate; provided, however, that at least 72% of such
proceeds shall be applied to make a prepayment on the Mortgage Notes
pursuant to Section 44(a)(ii) of this Mortgage. The Allocated Amount of
the applicable Property shall be reduced in the amount of such prepayment.
Any prepayment made pursuant to this Section 3.2(f) shall be applied to
the Mortgage Notes in the following order of priority: first, to the Class
A-1 Mortgage Note until the Class A-1 Mortgage Note has been paid in full;
second, to the Class A-2 Mortgage Note until the Class A-2 Mortgage Note
has been paid in full; third, to the Class B Mortgage Note until the Class
B Mortgage Note has been paid in full; fourth, to the Class C Mortgage
Note until the Class C Mortgage Note has been paid in full; fifth, to the
Class D Mortgage Note until the Class D Mortgage Note has been paid in
full; sixth, to the Class E Mortgage Note until the Class E Mortgage Note
has been paid in full; and seventh, to the Class F Mortgage Note until the
Class F Mortgage Note has been paid in full.
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(ii) In the event that the Mortgagor desires to undertake the
development of the Expansion Space itself, the Mortgagee shall consent to
release of the Expansion Space from the lien of this Mortgage, and/or to
such other actions by the Mortgagor or to the Mortgagee taking such other
actions as may be reasonably requested by the Mortgagor provided that (I)
the Architect shall have certified to the Mortgagee that in such
Architect's opinion (w) such transactions comply in all material respects
with all applicable zoning ordinances, (x) such transactions and the
particular plans developed for the Expansion Space shall not adversely
affect the utility or operation of the Premises (excluding the Expansion
Space) in any material adverse respect, (y) any connection to, or shared
use contemplated of, the common area in order to provide utility services
and access to the Expansion Space shall not adversely affect the
availability or provision of utility services to the Premises in any
material adverse respect and (z) any such transaction shall not materially
reduce the rentable square footage of the Improvements, (II) such anchor
store, mall store or peripheral store shall join or be subject to the
agreements binding upon the Property on terms which shall not have a
material adverse effect on the value or operation of the Property as a
whole,(III) the Mortgagor delivers an Officers' Certificate stating that
such transactions and the particular plans developed for the Expansion
Space do not violate any existing Lease or the parties to such Lease have
consented thereto, (IV) if the construction of such Expansion Space would
cause the Debt Service Coverage Ratio with respect to such affected
Property (calculated using the Net Cash Flow and Debt Service allocable to
and the Allocated Amount for such Property) to be less than Debt Service
Coverage Ratio with respect to such affected Property (calculated using
the Net Cash Flow and Debt Service allocable to and the Allocated Amount
for such Property) as of the Closing Date, then Mortgagor shall cause all
Gross Revenue, after payment of Debt Service on the Mortgage Notes and all
other indebtedness permitted hereunder to be deposited with Mortgagee
promptly after receipt thereof by Mortgagor, to be held by Mortgagee in a
segregated, interest-bearing escrow account invested at Mortgagor's
instructions in Eligible Collateral and to be held in such account until
an amount equal to the cost of the Expansion Space is so deposited in such
account and (V) a Rating Agency Confirmation shall have been provided to
Mortgagee. Mortgagor's obligations
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under clause (IV) hereof to so deposit such Gross Revenue shall terminate,
and Mortgagee shall disburse any amounts so held by Mortgagee, at such
time as the Debt Service Coverage Ratio with respect to such affected
Property (calculated using the Net Cash Flow and Debt Service allocable to
and the Allocated Amount for such Property) shall be equal to or greater
than Debt Service Coverage Ratio with respect to such affected Property
(calculated using the Net Cash Flow and Debt Service allocable to and the
Allocated Amount for such Property) as of the Closing Date.
(iii) In the event that the Mortgagor desires to pursue the
development of the Expansion Space without the Expansion Space being
subject to the lien hereof in some manner other than as described in (i)
or (ii) above but satisfying the conditions set forth in (i) and (ii)
above for protecting the utility and operation of the affected part of the
Property and the provisions of Section 19.3 hereof, the Mortgagee shall
cooperate with the Mortgagor and shall not unreasonably (but may, in its
discretion), withhold or delay its consent to any other approach to the
Expansion Space consistent with maintaining the utility and satisfactory
operation of the Premises in all material respects.
(iv) In connection with the development of the Expansion Space
pursued in any manner, the Mortgagee hereby (i) consents to the
modification of existing easements, rights of way, restrictive covenants
or similar agreements included in the Permitted Exceptions and to the
creation by the Mortgagor of additional easements, rights of way,
restrictive covenants or similar agreements affecting title to the
Premises and (ii) agrees that this Mortgage shall be subordinate to such
modifications, additional easements, rights of way, restrictive covenants
or similar agreements, provided in either case that the Mortgagee
receives, within five (5) days prior to the execution by the Mortgagor of
such modification, additional easement, right of way, restrictive covenant
or similar agreement, an Officers' Certificate confirming that such action
(A) shall not adversely affect the utility or operation of the Premises in
any material adverse respect and (B) shall not cause the Premises to be in
violation of any Legal Requirement or result in the loss of any
certificate of occupancy, provided, however, upon the occurrence and
during the continuance of a Triggering Event, the
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downgrade by ▇▇▇▇▇'▇ of the rating assigned to any Class of the Notes to a
rating that is less than Investment Grade or the Mortgagor's failure to
comply with the reporting requirements set forth in Section 18 hereof, any
modification or creation of such easements, rights of way and similar
agreements shall be subject to the reasonable approval of the Mortgagee.
The Mortgagee's consent and agreement set forth above is contingent upon the
Mortgagor's full compliance with and satisfaction of all Legal Requirements in
connection with the development of the Expansion Space and an agreement to
provide to the Mortgagee an updated survey and engineering report of the
Premises upon completion, as appropriate for the action taken.
(g) The Mortgagor covenants that it will deliver to the Mortgagee a
mortgagee's title insurance policy for each Property in an amount not less than
the original Allocated Amount applicable to such Property and in form and
substance and with such endorsements as shall have been previously agreed
between the Mortgagor and the Initial Purchaser (as defined in the Indenture),
which title insurance policy shall be dated the Closing Date and redated the
date of recording of this Mortgage and shall insure that this Mortgage is a
valid first priority grant of, and lien on, the Premises, subject only to the
Permitted Exceptions. The issuer of such title insurance shall be one or more
nationally recognized title insurance companies and there shall be reinsurance
and direct access agreements to the extent previously agreed upon between the
Mortgagor and the Initial Purchaser.
(h) (i) to the extent a Borrower or a Guarantor is a limited
liability company it will be, and its managing member will be, a Single Purpose
Entity that complies with the requirements of Section 3.3, as and to the extent
applicable and (ii) to the extent a Borrower or a Guarantor is a general or
limited partnership, each of its general partners will be a Single Purpose
Entity that complies with the requirements of Section 3.3, as and to the extent
applicable.
3.3. Negative Covenants. The Mortgagor covenants that:
(a) it will not engage, directly or indirectly, in any business
other than that arising out of entering into this Mortgage and the other
Mortgage Security Documents to which the Mortgagor is a party and ownership,
operation,
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management, leasing, development and financing of the Properties and any and all
activities necessary, convenient or incidental to the foregoing;
(b) it will not own any assets other than the Property owned by such
Mortgagor and such other personal property as is necessary or incidental to
ownership of such Property;
(c) except as required by law, it will not, unless done in a manner
that does not violate the requirements of any of the Mortgage Security
Documents, engage in, seek or consent to any dissolution, winding up,
liquidation, consolidation, merger, asset sale, transfer of all or any portion
of its assets, or amend its organizational documents in any manner adverse to
its ability to satisfy the requirements of any of the Mortgage Security
Documents;
(d) it will at all times be a Single-Purpose Entity;
(e) it will (i) maintain its bank accounts separate from any other
person or entity, other than Vornado Finance, the other entities comprising
Mortgagor, and any member or partner of any entity comprising Mortgagor
(collectively, the "Finance Entities"), (ii) maintain its books and records
separate from any other Person and (iii) otherwise ensure that its records and
books reflect the separate existence of itself and its assets;
(f) it will separately identify and segregate its funds and assets
from those of any other entity and shall not commingle its funds or assets with
those of any other person or entity, other than the Finance Entities;
(g) it will hold its assets in its own name;
(h) it will engage in transactions and conduct all business
activities in its own name and present itself to the public as a company
separate from any other person or entity, including the Finance Entities;
(i) it will maintain its financial statements, accounting records,
and other entity documents separate from those of any other person or entity
except that the Mortgagor may be included in the consolidated financial
statements of another Person where required by generally accepted accounting
principles;
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(j) it will pay its own liabilities out of its funds and assets as
the same shall become due to the extent sufficient funds are available to it and
shall not pay its debts and liabilities from the funds or assets of any other
Person or entity;
(k) it will not engage in any transaction with any Affiliate
involving any intent to hinder, delay or defraud any person or entity;
(l) it will maintain an arm's-length relationship with, and shall
not be or become operationally dependent on, any Affiliate;
(m) it will have no indebtedness, secured or unsecured, direct or
indirect, absolute or contingent (including any guarantee obligations) other
than indebtedness contemplated by or permitted under the Mortgage Security
Documents;
(n) it will not assume or guaranty or become obligated for the debts
of any other person or entity, and shall not hold out its credit as being
available to satisfy the obligations of any other person or entity, except for
the indebtedness contemplated by or permitted under the Mortgage Security
Documents;
(o) it will not acquire obligations or securities of its members or
partners, as the case may be;
(p) it will fairly and reasonably allocate any shared expenses
including, without limitation, rent for shared office space and shall use
stationery, invoices and checks separate from those of any entity, other than
the Finance Entities;
(q) except as contemplated by or permitted under the Mortgage
Security Documents, it will not pledge its assets for the benefit of any other
person or entity, other than the Finance Entities;
(r) it will hold itself out and identify itself as a separate and
distinct entity under its own name, and not as a division or part of any other
person or entity;
(s) it will not make loans or advances to any person or entity;
(t) it will not identify its members or partners, as the case may
be, any subsidiary, Vornado Finance, VRLP or
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any Affiliate of the foregoing as a division or part of itself;
(u) it will not enter into, or be a party to, any transaction with
its members or partners, as the case may be, or any of its Affiliates except (i)
in the ordinary course of its business and (ii) on terms which are intrinsically
fair and are no less favorable to it than those terms which would be obtained in
a comparable arm's-length transaction with an unrelated third party;
(v) it will correct any known misunderstanding regarding its
separate existence and identity;
(w) without the prior written consent of its sole member, managing
member or general partner, as the case may be, it will not, and neither its sole
member, managing member or general partner, as applicable, nor any other person
or entity on its behalf if will, (i) file, or consent to the filing of, a
bankruptcy, insolvency or reorganization petition or otherwise institute
bankruptcy or insolvency proceedings or otherwise seek any relief under any laws
relating to the relief from debts or the protection of debtors generally, (ii)
seek or consent to the institution of bankruptcy or insolvency proceedings
against it or the appointment of a receiver, liquidator, conservator, assignee,
trustee, sequestrator, custodian or any similar official for itself or all or
any portion of its assets, (iii) make or consent to any assignment for the
benefit of its creditors or (iv) admit in writing its inability to pay its debts
generally as they become due or (v) take any action in furtherance of any of the
preceding actions;
(x) it will maintain a sufficient number of employees in light of
its contemplated business operations and compensate its employees (if any) from
its own funds for services provided to it;
(y) it intends to maintain adequate capitalization in light of its
contemplated business and operations and it shall and shall not permit VRLP,
Vornado or any of its members or partners, as the case may be, to take any
action that would cause it not to maintain adequate capitalization in light of
its contemplated business and operations;
(z) it will take all appropriate action necessary to maintain its
existence as a limited liability company or limited partnership, as the case may
be, in good standing under the laws of the state of its jurisdiction.
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(aa) it will strictly observe all organizational and procedural
matters and formalities required by its organizational documents, and by
applicable law, as the case may be, and shall keep accurate and proper books and
records of account;
(bb) it will at all times ensure that its funds will be clearly
traceable at each step in any financial transaction and maintain its assets in
such a manner that it will not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any other person or entity (except
that its funds may be commingled with the funds of the other Finance Entities);
(cc) it will not permit itself to be dependent upon any subsidiary
or Affiliate or any other entities to operate its business, other than its
members or partners, as the case may be;
(dd) it will not transfer any of the Properties or any portion
thereof (except as permitted in accordance with Section 3.2(f) or 19);
(ee) it will not engage in a nonexempt prohibited transaction
described in Section 406 of ERISA or Section 4975 of the IRC.
The Mortgagor represents and warrants that on the Closing Date it does not
have any indebtedness or obligations which would cause it to be in violation of
the foregoing covenants.
3.4. Existence and Rights. Mortgagor covenants that it will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence and will maintain adequate capitalization (taking into
account, among other things, the market value of its assets) for its business
purposes; that it will not modify its Agreement of Limited Partnership, Limited
Liability Company Agreement or other constituent documents in any manner that
would have a material adverse effect on the interests of the Mortgagee
hereunder; will maintain books and records and bank accounts separate from those
of its Affiliates (other than Vornado Finance) that are not Mortgagors hereunder
and will maintain a separate business office (which may be a management office
at the Premises) from such Affiliates (other than Vornado Finance); that it will
at all times hold itself out to the public as a legal entity separate and
distinct from any of its Affiliates (other than Vornado Finance) that are not
Mortgagors hereunder (including in its leasing activities,
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in entering into any contract, in preparing its financial statements) and will
cause such Affiliates (other than Vornado Finance) to conduct business with it
on an arm's-length basis (or, as to property management and leasing, on a basis
comparable to the property management and leasing arrangements of properties
similar to the Properties which are owned by Affiliates of the Mortgagor and
managed by the Manager or a similar property manager); that it will pay all
expenses of the Properties from its own assets; that it will file its own tax
returns or, if part of a consolidated group, will join in the consolidated tax
return of such group as a separate member thereof; and will cause its management
to meet regularly to carry on its business.
3.5. Payment of Taxes and Other Claims. Subject to the provisions of
Article 12 hereof, the Mortgagor represents that there is no default in the
payment of, and covenants that it will pay or discharge or cause to be paid or
discharged before any fine, penalty, interest or cost may be imposed for
nonpayment thereof, all taxes, assessments and governmental charges levied or
imposed upon it or upon the Properties.
3.6. Payment of the Mortgage Notes, All Other Amounts, the Trustee's
Fees and the Servicer's Fees. Subject to the provisions of Article 38 hereof,
the Mortgagor, jointly and severally, will cause to be duly paid the principal
of, interest and Make-Whole Obligation, if any, on the Mortgage Notes and all
other amounts due under the Mortgage Notes at the places, at the respective
times and in the manner provided in the Mortgage Notes. The Mortgagor also will
cause to be duly paid (i) all other charges, fees or other amounts which become
due under this Mortgage, or the other Mortgage Security Documents (or, subject
to the terms of Section 12, otherwise in the conduct of the Mortgagor's
business), (ii) all charges, fees or other amounts (other than the principal,
interest or Make-Whole Obligations, if any, in respect of the Notes) which
become due and payable by Vornado Finance under the Indenture or the other
Security Documents, (iii) the fees and proper disbursements of the Trustee under
the Indenture and expenses of the Trustee in complying with the terms of the
Indenture, (iv) the fees and proper disbursements of the Servicer under the
Indenture and expenses of the Servicer in complying with the terms of the
Indenture (excluding P&I Advances and interest thereon at the Advance Interest
Rate but including any Property Protection Advances and interest thereon at the
Advance Interest Rate); provided, however, this exception shall not release any
Mortgagor from its obligation to pay any installment of principal or interest,
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including interest accruing at the Default Rate, due hereunder or under the
Mortgage Notes and (v) the fees charged by the Rating Agencies in connection
with their ratings surveillance of the Securities. The Mortgagor also will pay
all costs and expenses of Vornado Finance incurred in connection with issuing
the Securities. Each of the Master Servicer and the Special Servicer is
permitted to utilize agents and attorneys as provided in the Indenture and is
consistent with the Servicing Standards in performing certain of their
obligations under the Indenture and the other Security Documents, each of which
will be an expense as set forth in the Indenture. In addition, Mortgagor agrees
that the Servicer shall be entitled to receive from the related Mortgagor(s) as
additional servicing compensation an assumption fee in the amount of $5,000 in
connection with the administration of each transfer and assumption pursuant to
Sections 19.1 or 19.2 hereof.
3.7. Covenants Regarding the Stop & Shop Guaranty. (a) Mortgagor
covenants that it will not reallocate all or any portion of the Rental Increase
(as defined in the Stop & Shop Guaranty) to any property not subject to the lien
of this Mortgage except in accordance with clause (e) of this Section 3.7;
(b) Mortgagor covenants, notwithstanding the release provisions
contained in Section 3.2 or Section 44 hereof, to at all times while any amounts
are outstanding under the Mortgage Notes, keep at least one Bradlees Property
with a Stop & Shop Guaranteed Lease having a remaining term (without exercising
renewal options) that extends beyond the Scheduled Maturity Date subject to the
lien of this Mortgage unless all Bradlees Properties that are subject to the
lien of this Mortgage (or such remaining Bradlees Properties) have been or are
being released in accordance with clause (e) of this Section 3.7;
(c) Mortgagor covenants that if a Stop & Shop Guaranteed Lease for a
Bradlees Property that is subject to the lien of this Mortgage that has been
allocated all or a portion of the Rental Increase expires pursuant to its terms
prior to the Scheduled Maturity Date, Mortgagor shall reallocate all or such
portion, as the case may be, of such Rental Increase to another Bradlees
Property that has an unexpired Stop & Shop Guaranteed Lease and that is subject
to the lien of the Mortgage. Mortgagor shall have the right at any time to
reallocate all or a portion of the Rental Increase among the Stop & Shop
Guaranteed Leases for
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Bradlees Properties that are subject to the lien of this Mortgage.
(d) Notwithstanding any other provision of this Mortgage to the
contrary (except Section 3.7(e) below), any reallocation of all or a portion of
the Rental Increase shall result in an adjustment of the Allocated Amount of the
affected Bradlees Properties as follows: (i) the Allocated Amount of the
Bradlees Property to which all or a portion of the Rental Increase is being
allocated shall be increased by $7.38 for every $1 of additional Rental Increase
allocated to the Stop & Shop Guaranteed Lease at such Bradlees Property; (ii)
the Allocated Amount of the Bradlees Property at which all or a portion of the
Rental Increase is being allocated from shall be decreased in an amount which
will allow Mortgagor to obtain a Rating Agency Confirmation; and (iii) if no
Rating Agency Confirmation is obtained, there shall be no decrease in the
Allocated Amount of the Bradlees Property at which all or a portion of the
Rental Increase is being allocated from.
(e) If (i) the Mortgagor obtains a Release of a Bradlees Property
which contains a Stop & Shop Guaranteed Lease which has all or a portion of the
Rental Increase allocated to it, (ii) the Rental Increase with respect to such
Bradlees Property is not (in connection with such Release) being reallocated
pursuant to (c) above, and (iii) Mortgagor has paid the amount required pursuant
to this Mortgage in order to obtain such Release of such Bradlees Property, the
portion of Rental Increase allocated to the Stop & Shop Guaranteed Lease at such
Bradlees Property being Released may be reallocated, in accordance with the
terms of the Stop & Shop Guaranty, to a Stop & Shop Guaranteed Lease at any
Bradlees Property whether or not such Bradlees Property is subject to the lien
of this Mortgage (and if such Bradlees Property is subject to the lien of this
Mortgage there shall be no adjustment in the Allocated Amount with respect to
such Bradlees Property as a result of such reallocation or any further
reallocation of such portion of the Rental Increase).
(f) Mortgagor covenants that it will not transfer its right under
the Stop & Shop Guaranty to reallocate all or any portion of the Rental Increase
among the Stop & Shop Guaranteed Leases unless all Bradlees Properties that are
subject to the lien of this Mortgage (or such remaining Bradlees Properties)
have been (or are being at the time of such transfer) released in accordance
with clause (e) of this Section 3.7.
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3.8 The Ground Leases. (a) Mortgagor covenants that it shall (i) pay
or cause to be paid all rents, additional rents and other sums required to be
paid by Mortgagor, as tenant, under and pursuant to the provisions of the Ground
Leases on or before the date on which such rent or other charge is due, (ii) use
all reasonable efforts to perform and observe, or cause to be performed and
observed, all of the material terms, covenants and conditions of the Ground
Leases, to be performed and observed by Mortgagor as tenant thereunder, prior to
the expiration of any applicable grace period therein provided, (iii) promptly
notify Mortgagee of the receipt of any notice by Mortgagor from any ground
lessor or lessor under the Ground Leases of any default by Mortgagor, as tenant
thereunder, and promptly deliver to Mortgagor a true copy of each such notice.
(b) Mortgagor covenants that it shall not, without Mortgagee's prior
written consent, (i) surrender any of the leasehold estates created by the
Ground Leases or terminate or cancel any of the Ground Leases, (ii) modify,
change, supplement, alter or amend any of the Ground Leases, in any respect,
either orally or in writing, in any manner that materially impairs the
collateral value of any of the leaseholds created by the Ground Leases or in any
manner that would be materially adverse to Mortgagee. Mortgagor hereby assigns
to Mortgagee, as further security for the payment and performance of the Secured
Obligations and observance of the terms, covenants and conditions of this
Mortgage, all of the rights, privileges and prerogatives of Mortgagor, as tenant
under the Ground Leases and to the extent permitted thereunder, following the
occurrence of an Event of Default thereunder, to surrender the leasehold estates
created by the Ground Leases or to terminate, cancel, modify, change,
supplement, alter or amend the Ground Leases, and, to the extent permitted under
the Ground Leases, any such surrender of the leasehold estates created by the
Ground Leases or termination, cancellation, modification, change, supplement,
alteration or amendment of the Ground Leases not permitted pursuant to the
foregoing terms of this Section 3.7(b) shall be void and of no force and effect.
(c) Mortgagor hereby represents and warrants that:
(i) the Ground Leases permit the interest of each of the lessees
thereunder to be encumbered by this Mortgage and do not restrict the use
of the related Property by such lessee, its successors or assigns in a
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manner that would materially adversely affect the security provided by
this Mortgage;
(ii) the Ground Leases are not subject to any liens or encumbrances
superior to, or of equal priority with, this Mortgage (other than the
related ground lessor's fee interest); there is no mortgage or Lien
encumbering the related ground lessor's fee interest (other than this
Mortgage or, if any such mortgage or Lien exists, it is subordinate to the
Lien held by Mortgagee under this Mortgage), and the Ground Leases shall
remain prior to any mortgage or other Lien upon the related fee interests
that may hereafter be granted; and
(iii) on the date hereof, the Ground Leases are in full force and
effect and no default has occurred under the Ground Leases nor, to the
best of Mortgagor's knowledge, is there any existing condition which, but
for the passage of time or the giving of notice, would result in a default
under the terms of the Ground Leases.
4. MAINTENANCE AND REPAIRS, SHORING. The Mortgagor will keep, or
cause to be kept, the Premises and the parking areas, sidewalks, curbs and
streets and ways located on the Land and all other means of access to the
Premises in good and clean order and condition such that the utility and
operation of the Premises will not be affected in any material adverse respect,
subject to ordinary wear and tear, and, subject to Excusable Delays and the
provisions set forth in this Mortgage with respect to damage or destruction
caused by fire or other casualty or by a Taking, the Mortgagor will promptly
make or cause to be made all necessary or appropriate repairs, replacements and
renewals thereof (which if not made would affect the utility or operation of the
Premises in any material adverse respect), whether interior or exterior,
structural or nonstructural, ordinary or extraordinary. All repairs and
replacements shall consist of materials which are compatible with the existing
Improvements and installed in a good and workmanlike manner. The Mortgagor will
do or will use reasonable efforts to cause others to do (where such is the
responsibility of a third party), both to the extent permitted by applicable
law, all shoring of foundations and walls (i) of any Improvements or (ii) of the
ground adjacent thereto, and every other act necessary or appropriate for the
preservation and safety of the Premises by reason of or in connection with any
excavation or other building operation upon the Land or any adjoining property,
whether or not
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the Mortgagor or any other Person shall, by any Legal Requirement, be required
to take such action or be liable for failure to do so. Subject (to the extent
applicable) to the provisions of Article 12 relating to permitted contests, the
Mortgagor will not do or permit any act or thing which might affect the utility
or operation of the Properties or any part thereof in any material adverse
respect, or commit or permit any waste of the Properties or any part thereof.
5. UTILITY SERVICES. Subject to the provisions of Article 12 hereof,
the Mortgagor will pay or cause to be paid when due all charges for all public
or private utility services, all public or private highway services, all public
or private communication services and all sprinkler systems and protective
services at any time rendered to or in connection with the Properties or any
part thereof and which are incurred by or on behalf of the Mortgagor.
6. NO CLAIMS AGAINST MORTGAGEE. Nothing contained in this Mortgage
shall constitute any consent or request by the Mortgagee, express or implied,
for the performance of any labor or services or the furnishing of any materials
or other property in respect of the Properties or any part thereof, nor as
giving the Mortgagor any right, power or authority to contract for or permit the
performance of any labor or services or the furnishing of any materials or other
property in such fashion as would permit the making of any claim against the
Mortgagee in respect thereof or any claim that any lien based on the performance
of such labor or services or the furnishing of any such materials or other
property is prior to the interest of the Mortgagee under this Mortgage.
7. INDEMNIFICATION BY THE MORTGAGOR. Subject to the provisions of
Article 38 hereof and Section 6.1 of the Indenture, the Mortgagor will protect,
indemnify and save harmless the Mortgagee (which shall include the Trustee upon
execution and delivery of the Assignment) the Master Servicer, the Special
Servicer and the Holders (collectively, the "Indemnified Parties") from and
against: all liabilities, obligations, claims, damages, penalties, causes of
action, costs and expenses (including all reason able attorneys' fees and
expenses) imposed upon or incurred by or asserted against the Indemnified
Parties or any of the Properties (without, as to both, the wilful misconduct or
gross negligence of any of them) by reason of the occurrence or existence of any
of the following (to the extent the insurance proceeds payable on account of the
following and received by the Mortgagee shall be inadequate) prior to the
payment in full of the Mortgage Notes and the satisfaction
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of all conditions for the satisfaction and release or defeasance of this
Mortgage: (a) ownership or possession of the Mortgagor's interest in the
Properties, or any interest therein, or receipt of any rent or other sum
therefrom, (b) any accident, injury to or death of any Persons or loss of or
damage to property occurring on or about the Premises or any part thereof or the
adjoining parking areas, sidewalks, curbs, vaults and vault space, if any,
streets or ways, (c) any use, non-use or condition of the Premises or any part
thereof or the adjoining parking areas, sidewalks, curbs, streets or ways,
including claims or penalties arising from violation of any Legal Requirement or
Insurance Requirement, as well as any claim based on any patent or latent
defect, whether or not discoverable by the Mortgagee, any claim the insurance as
to which is inadequate, and any claim in respect of any adverse environmental
impact or effect, (d) any failure on the part of the Mortgagor to perform or
comply with any of the terms of this Mortgage, any Lease or any other Mortgage
Security Document to which it is a party, (e) any performance of any labor or
services or the furnishing of any materials or other property in respect of the
Property or any part thereof, (f) any negligence or tortious act or omission on
the part of the Mortgagor or any of its agents, contractors, servants,
employees, sublessees, licensees or invitees, (g) any contest referred to in
Article 12, (h) the presence at or under the Premises or the migration from or
release upon the Premises of any pollutant or hazardous or toxic substance,
waste or material or oil or petroleum product, in violation of any Legal
Requirement, or (i) breach of the covenants contained in Section 3.1. The
Indemnified Party shall give notice to the Mortgagor of any claims, liabilities,
obligations, damages, penalties, costs or causes of action for which the
Indemnified Party believes it is entitled to indemnification hereunder promptly
upon its discovery of the action or event giving rise to such claim, but the
failure of such Indemnified Party to provide such notice shall neither cause the
forfeiture of the right to receive indemnity hereunder nor limit such right
except to the extent, if any, that the Mortgagor is prejudiced by the failure of
the Indemnified Party to promptly give such notice. Any amounts payable under
this Section to the Indemnified Parties which are not paid within ten Business
Days after written demand therefor by the Indemnified Parties, setting forth in
reasonable detail the amount of such demand and the basis therefor, shall bear
interest from the date of demand until paid at the Default Rate, and shall be
secured by this Mortgage. In case any action, suit or proceeding is brought
against the Indemnified Parties by reason of any such occurrence, the Mortgagor,
upon the request of the Indemnified Parties, will (or at the option
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of the Mortgagor, the Mortgagor may) at the Mortgagor's expense resist and
defend such action, suit or proceeding or will cause the same to be resisted and
defended by counsel for the insurer of the liability or by counsel selected by
the Mortgagor (unless reasonably disapproved by the Indemnified Parties). So
long as the Mortgagor is resisting and defending such action, suit or proceeding
as provided above in a prudent and commercially reasonable manner, none of the
Indemnified Parties shall be entitled to settle such action, suit or proceeding
or claim the benefit of this Article 7 with respect to such action, suit or
proceeding (including the right to reimbursement of such Indemnified Parties'
counsel fees and expenses) and the Indemnified Parties agree that they will not
settle any such action, suit or proceeding without the consent of the Mortgagor;
provided that if the Mortgagor is not diligently defending such action, suit or
proceeding in a prudent and commercially reasonable manner as provided above,
the Mortgagee or any Holder may settle such action, suit or proceeding subject
only to the consent of the Mortgagor, which consent shall not be unreasonably
withheld or delayed, and claim the benefit of this Article 7 with respect to
settlement of such action, suit or proceeding.
8. INSPECTION. The Mortgagee and its authorized representatives may
at all reasonable times and upon reason able notice and accompanied by an agent
of the Mortgagor enter and examine each of the Properties, subject to the rights
of tenants, and will use reasonable efforts not to interfere with operation of
the Properties. The Mortgagee shall not inspect the Premises on other than a
Business Day except in the case of an emergency. The Mortgagee shall not have
any duty to make any such inspection and shall not have any liability or
obligation for making or not making any such inspection.
9. PAYMENT OF IMPOSITIONS, ETC. Subject to the provisions of Article
12 relating to permitted contests, the Mortgagor will pay, or cause to be paid,
before any fine, penalty, interest or cost may be added for such nonpayment, all
real estate taxes, assessments, fees, taxes on rents or rentals, and other
governmental charges that may be levied or assessed against the Properties or
the Mortgagor with respect to the Properties or rents therefrom or which become
liens upon the Properties (collectively, "Impositions"). The Mortgagor shall not
be required to pay any income, excess profits or revenue tax, excise tax or
inheritance tax, gift tax, franchise tax, corporation tax, capital levy, estate
succession or other similar tax or charge that may be payable by or chargeable
to the Mortgagee, any interest,
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fines, costs, additions to tax or penalties in respect thereof, unless such tax
is imposed, levied or assessed in substitution for any Impositions that the
Mortgagor is required to pay pursuant to this Article 9 as set forth in Article
45 hereof.
10. COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS, INSTRUMENTS.
(a) Subject to the provisions of Article 12 relating to permitted contests, the
Mortgagor will promptly, subject to Excusable Delays, (i) comply, or cause
compliance, with all Legal Requirements and Insurance Requirements before the
expiration of any applicable extension or grace period, whether or not
compliance therewith shall require structural changes in the Improvements or
interfere with the use and enjoyment of the Properties or any part thereof, (ii)
procure, maintain and comply with, all permits, licenses and other
authorizations required by Legal Requirements to be complied with for any use
then being made of the Premises or any part thereof, and for the proper
operation and maintenance of the Improvements and the Equipment or any part
thereof, and (iii) comply with applicable duties or obligations under any
instruments of record at the time in force binding upon, and enforceable
against, the Mortgagor or the Properties or any part thereof; provided that it
shall not be a Default hereunder if it shall be the obligation of a Tenant to
comply with any Legal Requirement, procure, maintain or comply with any such
permit, license or other authorization or comply with such duties or obligations
so long as the Mortgagor promptly after receiving actual notice of any
noncompliance commences and diligently pursues its rights against such Tenant
and uses its diligent efforts to cause such Tenant to comply with such Legal
Requirement or maintain or comply with such permit, license or other
authorization or comply with such duties or obligations within a reasonable time
and the failure to comply with the requirement in question does not subject the
Mortgagee to any of the risks described in clause (b) or (c) of Article 12
hereof and does not impair the validity of any insurance required to be
maintained by the Mortgagor under Article 13 hereof or the right to full payment
of any claims thereunder. The Mortgagor shall pay all fines, penalties, interest
and costs imposed as a result of any failure of the Mortgagor to perform its
obligations under this Article 10.
(b) The Mortgagor covenants and agrees (i) to perform punctually all
material obligations and agreements to be performed by it as lessor under any
Lease or under any Permitted Exception or any management agreement, such that
there will be no material and adverse impairment of the
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value of any of the Properties or the Mortgagee's interest under this Mortgage,
and (ii) to do all things necessary or appropriate in the ordinary course of its
business, to compel performance by each other party to each of such instruments
of such other party's obligations and agreements thereunder. The Mortgagor will
maintain the validity, perfection, priority and effectiveness of this Mortgage
and the other Mortgage Security Documents, and will not take any action, will
not permit action to be taken by others and will not omit to take any action,
nor, except as permitted by Section 3.2(f) or Section 20 hereof, will the
Mortgagor give any notice, approval or consent or exercise any rights under or
in respect of any Lease or any of such other instruments, which action,
omission, notice, approval, consent or exercise of rights would release any
Tenant or other party from, or reduce any Tenant's or any other party's
obligations or liabilities under, or would result in the termination, surrender
or assignment of, or the amendment or modification of in any material adverse
respect, or would impair the validity of, any Lease, any of such other
instruments, this Mortgage or any of the other Mortgage Security Documents
(other than as expressly permitted by Section 3.2(f) or Section 20 hereof), if
any of the foregoing would affect any of the Properties in any material adverse
respect, without the prior written consent of the Mortgagee, and any attempt to
do any of the foregoing without such consent shall be of no force and effect.
(c) The Mortgagor represents that it has not received any written
notice of any violation which remains uncured, and that it has no actual
knowledge, of any material respect in which it or the Premises is, on the date
hereof, in violation of any Legal Requirement (including violations with respect
to the presence, use, storage or handling of any Hazardous Substances released
upon or migrating from any of the Properties) or Insurance Requirement or of any
agreement binding upon the Mortgagor or any of the Properties that has not been
disclosed to the Rating Agencies and the Mortgagee.
11. LIENS. Subject to the provisions of Article 12 relating to
permitted contests and Section 19.3 relating to permitted indebtedness, the
Mortgagor will not directly or indirectly create or permit or suffer to be
created or to remain, and will discharge or promptly cause to be bonded or
discharged by bonding (in the form of Cash or a Letter of Credit), payment,
final order of a court of competent jurisdiction or otherwise, but in any event
within forty-five Business Days after receiving written notice of the filing
thereof, any mortgage, deed of trust, lien,
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encumbrance or charge upon, pledge of, or conditional sale or other title
retention agreement with respect to, the Properties or any part thereof, other
than the Permitted Exceptions.
12. PERMITTED CONTESTS. Anything to the contrary contained herein
notwithstanding, the Mortgagor at its expense may contest, by appropriate legal,
administrative or other proceedings conducted in good faith and with due
diligence, the amount or validity or application, in whole or in part, of any
Imposition or lien therefor or any Legal Requirement or Insurance Requirement or
any taxes, assessments, charges or other amounts required to be paid pursuant to
the provisions of Section 3.5 or Article 5 hereof, or the application of any
instrument of record affecting any of the Properties or any part thereof (other
than the Mortgage Security Documents) or any claims or judgments of mechanics,
materialmen, suppliers or vendors or any lien therefor, and may withhold payment
of the same pending such proceedings if permitted by law; provided that (a) in
the case of any Impositions or lien therefor or any claims or judgments of
mechanics, materialmen, suppliers or vendors or any lien therefor, such
proceedings shall suspend the collection thereof from the Mortgagor, the
Mortgagee and the affected Property, (b) neither such Property nor any part
thereof or interest therein would be in any danger of being sold, forfeited or
lost if the Mortgagor pays the amount or satisfies the condition being
contested, and the Mortgagor would have the opportunity to so pay or satisfy,
and shall do so, if required, in the event of the Mortgagor's failure to prevail
in the contest, (c) in the case of an Insurance Requirement, the failure of the
Mortgagor to comply there with shall not impair the validity of any insurance
required to be maintained by the Mortgagor under Article 13 or the right to full
payment of any claims thereunder, (d) in the case of taxes, if an amount can be
contested without being paid, the Mortgagor shall escrow with the Mortgagee (to
be held and invested by the Mortgagee in accordance with Section 6.14 of the
Indenture) the amount being contested for so long as such amount is due and
payable and unpaid, (e) in the case of any service described in Article 5, any
contest or failure to pay will not result in a discontinuance of any such
service, (f) in the case of any instrument of record affecting any Property or
any part thereof, the contest or failure to perform under any such instrument
shall not result in the placing of any lien on such Property or any part thereof
unless such lien is bonded or otherwise discharged in accordance with Section 11
and (g) except to the extent the Mortgagor has provided sufficient Cash, Credit
Facility or Eligible Collateral
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therefor, neither the failure to pay or perform any obligation which the
Mortgagor is permitted to contest under this Section 12 nor an adverse
determination of any such contest shall result in a material adverse effect on
the utility, value or operation of any of the Properties.
13. INSURANCE.
13.1. Risks to be Insured. The Mortgagor will maintain or cause to
be maintained with respect to each Property, with insurers authorized to issue
insurance in the state such Property is located, insurance coverage as described
in Exhibit E hereto and shall pay in a timely manner all insurance-policy
premiums due in connection therewith.
13.2. Policy Provisions. Each policy of insurance maintained in
respect of the Mortgagor and/or the Property pursuant to Section 13.1 shall (a)
except in the case of workers' compensation insurance and public liability
insurance, name the Mortgagor as insured and name the Mortgagee as an additional
insured or as a co-loss payee; provided, however, in the case of workers'
compensation insurance and public liability insurance the Mortgagee shall be
named as an additional insured (and not a loss payee); (b) except in the case of
public liability insurance and workers' compensation insurance, provide that all
Proceeds thereunder shall be payable to the Mortgagee pursuant to a standard
first mortgagee endorsement, without contribution, and that adjustment and
settlement of any material loss shall be subject to the reasonable approval of
the Mortgagee; (c) include effective waivers by the insurer of all claims for
insurance premiums against all loss payees, additional insureds and named
insureds (other than the Mortgagor) and, to the extent available at commercially
reasonable rates, all rights of subrogation against any loss payee, additional
insured or named insured; (d) permit the Mortgagee to pay the premiums and
continue any insurance upon failure of the Mortgagor to pay premiums when due,
upon the insolvency of the Mortgagor or through foreclosure or other transfer of
title to the Property; (e) except in the case of public liability and workers'
compensation insurance, provide that any Proceeds shall be payable to the
Mortgagee and that the insurance shall not be impaired or invalidated by virtue
of (i) any act, failure to act, negligence of, or violation of declarations,
warranties or conditions contained in such policy by the Mortgagor, the
Mortgagee or any other named insured, additional insured or loss payee, except
for the willful misconduct of the Mortgagee knowingly in violation of the
conditions of such
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policy, (ii) the occupation or use of the insured properties for purposes more
hazardous than permitted by the terms of the policy, (iii) any foreclosure or
other proceeding or notice of sale relating to the insured properties or (iv)
any change in the possession of the insured properties without a change in the
identity of the holder of actual title to the affected Property (provided that
with respect to items (iii) and (iv), any notice requirements of the applicable
policies are satisfied); (f) be subject to a deductible, if any, not greater in
any material respect, in proportion to the coverage maintained, than the
deductible applicable under such coverage on the date of this Mortgage; and (g)
except to the extent the Mortgagor has provided sufficient Cash, Credit Facility
or Eligible Collateral therefor, provide that if all or any part of such policy
shall be cancelled or terminated, or shall expire, the insurer will forthwith
give notice thereof to each named insured, additional insured and loss payee and
that no cancellation, termination, expiration, reduction in amount of, or
material change (other than an increase) in, coverage thereof shall be effective
until at least thirty days after receipt by each named insured, additional
insured and loss payee of written notice thereof.
13.3. Certificates. The Mortgagor will deliver to the Mortgagee on
or prior to the Closing Date certificates setting forth in reasonable detail the
material terms (including any applicable notice requirements) of all insurance
policies that the Mortgagor is required to maintain hereunder, from the
respective insurance companies that issued such policies. The Mortgagor will
deliver to the Mortgagee, concurrently with each material change in or renewal
of any insurance policy covering any part of the Premises required to be
maintained by the Mortgagor hereunder, a certificate with respect to such
changed or renewed insurance policy certified by the insurance company issuing
such policy, in the same form and containing the same information as the
certificates required to be delivered by the Mortgagor pursuant to the first
sentence of this Section 13.3 and stating that all premiums then due thereon
have been paid to the applicable insurers and that the same are in full force
and effect (or if such certificate and report shall not be obtainable by the
Mortgagor, the Mortgagor may deliver an Officer's Certificate to such effect in
lieu thereof).
13.4. Replacement Policies. Prior to the expiration, termination or
cancellation of any insurance policy which the Mortgagor is required to maintain
hereunder, the Mortgagor shall obtain a replacement policy or policies (or
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a binding commitment for such replacement policy or policies), which shall be
effective no later than the date of the expiration, termination or cancellation
of the previous policy, and shall deliver to the Mortgagee a certificate in
respect of such policy or policies in the same form and (i) containing the same
information as the certificates required to be delivered by the Mortgagor
pursuant to the first sentence of Section 13.3, or a copy of the binding
commitment for such policy or policies and (ii) confirming that such policy
complies with all the requirements of Section 13.1.
13.5. Reports of Insurance Broker. Within 90 days following the end
of each calendar year during the term of this Mortgage commencing with the end
of the calendar year 2000, and concurrently with the delivery of each
replacement policy or a binding commitment for the same pursuant to Section
13.4, the Mortgagor shall deliver to the Mortgagee a report from a reputable and
experienced insurance broker or from the insurer setting forth the particulars
as to all insurance obtained by the Mortgagor pursuant to this Article 13 and
then in effect and stating that all premiums then due thereon have been paid to
the applicable insurers, that the same are in full force and effect and that, in
the opinion of such insurance broker or insurer, such insurance otherwise
complies in all material respects with the requirements of this Article 13 (or
if such report shall not be available after the Mortgagor shall have used its
reasonable efforts to provide the same, the Mortgagor will deliver to the
Mortgagee an Officers' Certificate containing the information to be provided in
such report).
13.6. Separate Insurance. The Mortgagor will not take out separate
insurance concurrent in form or contributing in the event of loss with that
required to be maintained pursuant to this Article 13 unless such insurance
complies with Section 13.2.
14. ALTERATIONS AND ADDITIONS, ETC. (a) The Mortgagor will not make
or permit any demolition, alteration, installation, addition, improvement,
decoration or new construction (excluding Expansion Space) (an "Alteration") to
the Premises of any Property unless undertaken in accordance with the applicable
provisions of this Mortgage, the Mortgage Security Documents, the Reciprocal
Operating Agreements and the Leases and unless no Event of Default shall have
occurred and be continuing or shall occur as a result of such action (except in
the case that the Alteration is required to cure the Event of
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Default). Any Alteration which involves an estimated cost of more than
$1,000,000 shall be conducted under the supervision of an Architect and, if to
be undertaken by Mortgagor, shall be undertaken only after ten days after there
shall have been filed with the Mortgagee, for information purposes only and not
for approval by the Mortgagee, detailed plans and specifications and cost
estimates therefor, prepared by such Architect. Such plans and specifications
may be revised at any time and from time to time provided that material
revisions of such plans and specifications are delivered to the Mortgagee, for
information purposes only, together with the written approval thereof by such
Architect. All work done in connection with any Alteration shall be performed
with due diligence in a good and workmanlike manner, all materials used in
connection with any Alteration shall be not less than the standard of quality of
the materials currently used at the Premises and all work shall be performed and
all materials used in accordance with all applicable Legal Requirements and
Insurance Requirements. The cost of any Alteration shall be promptly and fully
paid for by the Mortgagor or the Tenant performing the Alteration, subject to
the Mortgagor's right to contest any amount claimed to be due in accordance with
the provisions in Article 12 of this Mortgage.
(b) The Mortgagor may make, or cause or permit to be made, without
the prior consent of the Mortgagee, Alterations to the Premises which would not
materially and adversely affect the fair market value of any of the Properties
or materially and adversely affect the ability of the Mortgagor to pay its
obligations when due under the Mortgage Notes. Any other Alterations shall
require the prior consent of the Mortgagee.
(c) Builder's risk insurance (in completed value form, with, if
applicable, an endorsement for off-site storage of materials) and public
liability insurance, including bodily injury and property damage liability and
comprehensive general liability insurance in accordance with clause (b) of
Exhibit E hereto, shall be maintained or caused to be maintained by the
Mortgagor at all times during which any Alteration estimated by the Mortgagor to
cost more than $1,000,000 is in progress. The insurance provided for in this
Section 14(c) shall be in addition to the insurance required to be maintained
pursuant to clauses (a) and (b) of Exhibit E hereto and may be effected by an
appropriate endorsement, if obtainable, upon the policy or policies of insurance
referred to in Section 13.1 hereof. All insurance provided for in this Section
14(c) shall be effected under a
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valid and enforceable policy or policies issued by insurers which meet the
requirements set forth in Exhibit E hereto, and, prior to the commencement of
any Alteration which is reasonably estimated by the Mortgagor to cost more than
$1,000,000, the Mortgagor will furnish to the Mortgagee certificates in respect
of such insurance in the form described in the first sentence of Section 13.3
hereof and either a report of an insurance broker or an Officers' Certificate
containing a statement of the insurance effected by the Mortgagor pursuant to
this Section 14(c) and then in force and stating that the insurance then in
force complies with the covenants in this Section 14(c).
(d) No Alteration shall be performed by or on behalf of the
Mortgagor at any of the Properties if the costs thereof, when combined with the
costs of any other Alterations at another of the Properties then outstanding, as
reasonably estimated by an Architect, which are due and payable and unpaid
exceed the Threshold Amount (taking into account any other Alterations being
undertaken by a Mortgagor at the time and/or collateralized by Mortgagor
pursuant to this subsection (d)) unless (1) (x) Cash, (y) a Credit Facility
and/or (z) Eligible Collateral in an amount not less than the excess of (A) the
lesser of (I) such due and payable and unpaid costs and (II) the Architect's
estimate of the cost, if work on the Alterations were to be terminated on such
date, to restore the Premises to the extent necessary so that, as restored,
there would be no material adverse effect on the value of the Premises as a
whole over (B) the Threshold Amount has been provided to Mortgagee to ensure the
completion of such Alterations or (2) Mortgagor obtains a construction bond
covering the cost of the Alteration (as reasonably determined by the Mortgagor,
in consultation with a licensed or registered architect or engineer) from an
entity having a long-term unsecured debt rating of at least AAA from ▇▇▇▇▇'▇ and
AAA from DCR, or, if not rated by DCR, then an equivalent rating by one
additional NRSRO or (iii) obtains a completion guaranty from an entity having a
long-term unsecured debt rating of at least AAA from ▇▇▇▇▇'▇ and AAA from DCR or
if not so rated by DCR than an equivalent rating by one additional NRSRO. Costs
which are subject to retainage shall be treated as due and payable and unpaid
from the date they would be due and payable but for their characterization as
subject to retainage. In the event that any Alteration shall be made in
conjunction with any Restoration with respect to which the Mortgagor shall be
entitled to withdraw Proceeds pursuant to Section 15.2 hereof, the amount of the
Cash, Credit Facility or Eligible Collateral to be furnished pursuant hereto
need not exceed the aggregate cost of such
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Restoration and such Alteration (as estimated by the Architect) less the sum of
the amount of any Proceeds which the Mortgagor may be entitled to withdraw
pursuant to Section 15.2 hereof and the Threshold Amount (adjusted as described
above). The Architect shall deliver to the Mortgagee a schedule setting forth
the projected stages of completion of the Alteration and the corresponding
amounts equal to such completion. Any Cash or Eligible Collateral which the
Mortgagor shall deliver pursuant hereto shall be invested by the Mortgagee as
provided in Section 6.14 of the Indenture consistent with the projected
completion of the Alteration. From time to time as the Alteration progresses,
the amount of any Cash or Eligible Collateral so furnished may be withdrawn by
the Mortgagor and paid or otherwise applied by or returned to the Mortgagor in
an amount equal to the amount the Mortgagor would be entitled to so withdraw if
Section 15.2 hereof were applicable, and any Credit Facility so furnished may be
reduced by the Mortgagor in an amount equal to the amount the Mortgagor would be
entitled to so reduce if Section 15.2 hereof were applicable. At any time after
substantial completion of any Alteration in respect whereof Cash, a Credit
Facility or Eligible Collateral was deposited pursuant hereto, the whole balance
of any Cash so deposited with the Mortgagee and then remaining on deposit may be
withdrawn by the Mortgagor and shall be paid by the Mortgagee to the Mortgagor,
and any Cash, Credit Facility or Eligible Collateral so deposited shall, to the
extent it has not been called upon, reduced or theretofore released, be released
by the Mortgagee to the Mortgagor, within ten (10) days after receipt by the
Mortgagee of an application for such withdrawal and/or release together with an
Officers' Certificate, and signed also (as to clause (1) of this Section) by the
Architect, setting forth in substance as follows:
(1) that the Alteration in respect of which such Cash, Credit
Facility or Eligible Collateral was deposited, has been substantially
completed in all material respects in accordance with any plans and
specifications therefor previously filed with the Mortgagee under Section
14(a) hereof;
(2) that to the best knowledge of the certifying Person all amounts
which the Mortgagor is or may become liable to pay in respect of such
Alteration through the date of the certification have been paid in full or
adequately provided for or are being contested in accordance with Article
12 hereof and, to the extent that such are customary and reasonably
obtainable by prudent managers in the metropolitan area where the
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Premises are located and the Mortgagor is not contesting payment in
accordance with Article 12 hereof, that lien waivers have been obtained
from the general contractor and major subcontractors performing such
Alterations;
(3) that to the best knowledge of the certifying Person such
Alteration has not been performed in violation of any Legal Requirement
and will not result in the loss of any certificate of occupancy;
(4) that to the best knowledge of the certifying Person the affected
Property, after giving effect to such Alteration, can be used for the
purpose for which it was intended; and
(5) that to the best knowledge of the certifying Person no Event of
Default has occurred and is continuing.
15. DAMAGE, DESTRUCTION AND RESTORATION.
15.1. The Mortgagor to Give Notice. In case of any damage to or
destruction of the Premises of any Property or any part thereof for any reason
(which shall include earthquake for all purposes under this Mortgage), the
Restoration of which is reasonably estimated to cost more than $2,000,000, the
Mortgagor will promptly give written notice thereof to the Mortgagee, generally
describing the nature and extent of such damage or destruction.
15.2. Application of Insurance Proceeds. If no Event of Default or a
Default of any monetary obligation under the Mortgage Notes shall have occurred
and be continuing, the Mortgagee consents to the direct payment to the Mortgagor
of Proceeds up to an amount (the "Casualty/Condemnation Threshold Amount") equal
to the lesser of (x) $2 million with respect to each Property and (y) an amount
that, when aggregated with other then-unapplied casualty insurance proceeds
(other than Proceeds paid in respect of the insurance described in clause (d) of
Exhibit E hereto) or condemnation awards received in respect of all of the
Properties, equals 5% of the aggregate initial Allocated Amounts of all
Properties which at the time are subject to the Lien of this Mortgage, paid on
account of any damage to or destruction of the Premises at one or more
Properties subject to the interest of the Mortgagee therein under this Mortgage
and the provisions hereof. The Mortgagor hereby irrevocably assigns to the
Mortgagee as additional security, all Proceeds payable on account of any
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damage to or destruction of all or any part of the Premises, and agrees to the
payment to the Mortgagee of all such Proceeds in excess of the
Casualty/Condemnation Threshold Amount to be held and invested by the Mortgagee
as the Mortgagor shall direct in accordance with Section 6.14 of the Indenture,
until applied by the Mortgagee in accordance with the terms hereof. The
Mortgagor and the Mortgagee each shall hold all Proceeds received by it pursuant
to this Section (which shall not apply to any Proceeds payable under public
liability insurance and workers' compensation insurance) in trust to be applied
first, to the extent required under this Mortgage, to the cost of Restoration in
accordance with the provisions of this Mortgage (except that Proceeds paid in
respect of the insurance described in clause (d) of Exhibit E hereto shall be
paid into a separate trust account established by the Mortgagee for such purpose
to be applied to payment of amounts due under the Mortgage Notes or otherwise
secured hereby in accordance with the provisions hereof applicable to such
account). The earnings, if any, which accrue from investment of any Proceeds
shall remain in such trust account, less any expenses incurred by the Mortgagee
in investing such Proceeds and less the amounts required by the Mortgagor to pay
income taxes on such earnings as and when due, so long as no Event of Default or
a Default of any monetary obligation under the Mortgage Notes shall have
occurred and be continuing. To the extent that this Mortgage provides for
Proceeds to be held by the Mortgagee and applied to a Restoration (including
Restoration resulting from a Taking as provided in Section 16.2), such Proceeds
shall be paid by the Mortgagee to the Mortgagor at any time or from time to
time, as such Restoration progresses, either to pay or to reimburse the
Mortgagor for expenditures made or then required to be made for Restoration,
including payments to contractors, subcontractors, materialmen, suppliers,
attorneys, engineers, architects or other Persons who have rendered services or
furnished materials for such Restoration, subject to and reflecting customary
retentions reasonably satisfactory to the Mortgagee pending completion of the
work, and all other costs and expenses actually incurred by the Mortgagor in
connection with such Restoration, upon the receipt by the Mortgagee of an
Officers' Certificate dated not more than 30 days prior to the application for
such withdrawal, requesting such payment or reimbursement and setting forth the
work performed which is the subject of the application, the parties which
performed the work and the actual cost thereof and an Architect's certificate
certifying performance of such work. The Mortgagee will pay to the Mortgagor any
remaining Proceeds held by it after the application of such Proceeds
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to the Restoration and the completion thereof. The Mortgagor will, in good faith
and with due diligence, subject to Excusable Delays, file and prosecute the
Mortgagor's claim for any such Proceeds and, subject to the provisions of this
Section 15.2 relating to the direct payment to the Mortgagor of any Proceeds,
will cause the same to be collected and paid over to the Mortgagee, to be held
and applied in accordance with the provisions of this Mortgage. The Mortgagor
hereby irrevocably authorizes and empowers the Mortgagee, in the name of the
Mortgagor as its true and lawful attorney-in-fact, to file and prosecute such
claim and to collect and to make receipt for any such payment, and, in the event
the Mortgagor fails so to act or if an Event of Default or a Default of any
monetary obligation under the Mortgage Notes shall have occurred and be
continuing, then in such case the Mortgagee may file such claim and prosecute it
with counsel satisfactory to it at the expense of the Mortgagor. The Mortgagee
shall have the right to approve, such approval not to be unreasonably withheld,
any settlement which might result in any Proceeds in excess of the
Casualty/Condemnation Threshold Amount, and the Mortgagor will deliver or cause
to be delivered to the Mortgagee all instruments reasonably requested by the
Mortgagee to permit such approval. The Mortgagor will pay all costs, fees and
expenses reasonably incurred by the Mortgagee (including all reasonable
attorneys' fees and expenses, the fees of insurance experts and adjusters and
the reasonable costs incurred in any litigation or arbitration) in connection
with any damage or destruction to the Premises and seeking and obtaining any
payment on account thereof.
15.3. Restoration. In the event that the damage or destruction does
not constitute a Total Loss, the Mortgagor shall be obligated, at its expense
(whether or not the Proceeds are sufficient for such purpose), to effect the
Restoration of the Premises in accordance with the provisions of the Leases,
subject to Excusable Delays, and shall use all or a portion of such Proceeds to
the extent required, and, so long as no Event of Default has occurred and is
continuing, the Mortgagee shall make such Proceeds available to the Mortgagor
(all such Proceeds to be held by the Mortgagor in trust, to be applied first to
the payment or reimbursement of all costs incurred to effect the Restoration),
for Restoration in accordance with the provisions of this Mortgage. In the event
of a Total Loss, if the Mortgagor elects to restore the affected Property (or
Properties) the Mortgagor shall cause the Architect to prepare both a cost
estimate and schedule for Restoration of the Premises and to provide such
estimate and schedule to
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the Mortgagee and the Mortgagor. In the event that (i) such schedule indicates
that all the Restoration of the affected Property except for work with a value
not in excess of $2,000,000 per affected Property cannot be completed prior to
the date upon which the insurance described in clause (d) of Exhibit E hereto
(plus any extension thereof obtained in addition to that so required) would be
exhausted (and any Credit Facility delivered in lieu thereof or in addition
thereto would have expired) or (ii) the extent of the damage makes it
impracticable in the Mortgagor's judgment to restore the Premises to
substantially the same condition as existing prior to such casualty, then the
Mortgagor or Mortgagee as applicable shall apply the Proceeds to the prepayment
in full on the next Payment Date (without penalty or Make-Whole Obligation) of
the Allocated Amount pertaining to such Property damaged by the casualty at a
price of par plus accrued and unpaid interest but without any penalty or
Make-Whole Obligation. Upon the payment of the entire Allocated Amount
pertaining to such affected Property, such affected Property shall then be
released from the lien of this Mortgage. If, after a Total Loss, the Mortgagor
is not required to restore the Premises or apply the Proceeds to prepay the
Allocated Amount pertaining to such Property damaged by the casualty pursuant to
the preceding sentence, the Mortgagor or Mortgagee as applicable shall apply the
Proceeds, at the option of the Mortgagor (to be exercised by the Mortgagor
giving notice thereof to the Mortgagee, but to be exercised only in accordance
with the Mortgagor's obligations regarding restoration under the Leases) to
either (i) the Restoration of the Premises in accordance with the provisions
hereof, or (ii) the prepayment (without penalty or Make-Whole Obligation) on the
next Payment Date of the Allocated Amount pertaining to such Property damaged by
the casualty and, in connection therewith, upon the prepayment of a sum equal to
the entire Allocated Amount, such Property shall then be released from the lien
of this Mortgage. In the event the Mortgagor is required or elects to apply the
Proceeds to prepay the Allocated Amount pertaining to such Property damaged by
the casualty (without penalty or Make-Whole Obligation), any Proceeds remaining
after such prepayment shall be first applied to an additional prepayment of the
Mortgage Notes (without penalty or Make-Whole Obligation) in an amount equal to
the lesser of (x) such remaining Proceeds and (y) an amount such that the total
amount prepaid by the Mortgagor equals 125% of the Allocated Amount of the
affected Property. Any additional Proceeds remaining after such prepayment shall
be paid to the Mortgagor or as it may direct in writing. In the event that the
Proceeds are insufficient to prepay the Allocated Amount pertaining to such
Property damaged by the casualty
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(without penalty or Make-Whole Obligation) and to obtain the release of such
Property from the lien of this Mortgage, after the Mortgagor elects to so apply
the Proceeds, the Mortgagor shall continue to be obligated, subject to the
provisions of Article 38 hereof, to pay immediately the amount of such
insufficiency to the Mortgagee until such amount is satisfied. In the event the
Mortgagor is obligated or elects to effect Restoration of the Premises, the
Mortgagor shall promptly commence and complete the Restoration of the Premises
in accordance with the provisions of this Mortgage, subject to Excusable Delays,
and any Proceeds remaining after completion of such Restoration and delivery of
the Officers' Certificate required under Section 14(d) hereof shall be paid to
the Mortgagor or as it may direct in writing.
Any prepayment of the Mortgage Notes made pursuant to this Article
15 shall be applied to the Mortgage Notes in the following order of priority:
first, to the Class A-1 Mortgage Note until the Class A-1 Mortgage Note has been
paid in full; second, to the Class A-2 Mortgage Note until the Class A-2
Mortgage Note has been paid in full; third, to the Class B Mortgage Note until
the Class B Mortgage Note has been paid in full; fourth, to the Class C Mortgage
Note until the Class C Mortgage Note has been paid in full; fifth, to the Class
D Mortgage Note until the Class D Mortgage Note has been paid in full; sixth, to
the Class E Mortgage Note until the Class E Mortgage Note has been paid in full;
and seventh, to the Class F Mortgage Note until the Class F Mortgage Note has
been paid in full.
16. TAKING OF PROPERTY.
16.1. The Mortgagor to Give Notice; Assignment of Awards, etc. In
case of a Taking of all or any part of the Premises of any Property, or the
commencement of any proceedings or negotiations which might result in any such
Taking, the Mortgagor will promptly give written notice thereof to the
Mortgagee, generally describing the nature and extent of such Taking or the
nature of such proceedings or negotiations and the nature and extent of the
Taking which might result therefrom. As additional security, the Mortgagor
hereby irrevocably assigns, transfers and sets over to the Mortgagee, subject to
the provisions of this Mortgage, all rights of the Mortgagor to any Proceeds on
account of any Taking, subject to the provisions of this Mortgage with respect
to the use and application of any such Proceeds and provided that in the case of
an amount of such Proceeds which is not more than the Casualty/Condemnation
Threshold Amount if no Event of Default or a Default of any
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monetary obligation under the Mortgage Notes shall have occurred and be
continuing, the Mortgagor shall have the right to receive direct payment of such
Proceeds, to be held and applied to the Restoration in accordance with the
provisions of this Mortgage (all such Proceeds to be held by the Mortgagor in
trust, to be applied first to the payment or reimbursement of all costs incurred
to effect the Restoration). If the amount of Proceeds is reasonably estimated by
the Mortgagor to exceed the Casualty/ Condemnation Threshold Amount, the
settlement of any such proceeding and the amount of Proceeds payable in respect
thereof shall be subject to the reasonable approval of the Mortgagee; provided
that no such approval shall be required if the Proceeds shall be sufficient to
prepay (without penalty or Make-Whole Obligation) the Allocated Amount
pertaining to such Property and the Mortgagor is permitted and has elected to do
so. The Mortgagor will in good faith and with due diligence, subject to
Excusable Delays, file and prosecute the Mortgagor's claim for any such Proceeds
and, subject to the provisions of the second sentence of this Section 16.1, will
cause the same to be collected and paid over to the Mortgagee, to be held and
applied in accordance with the provisions of this Mortgage. The Mortgagor hereby
irrevocably authorizes and empowers the Mortgagee, in the name of the Mortgagor
as its true and lawful attorney-in-fact, to file and prosecute such claim (with
counsel satisfactory to it at the expense of the Mortgagor) and to collect and
to make receipt for any such award or payment in the event the Mortgagor fails
so to act or if an Event of Default or a Default of any monetary obligation
under the Mortgage Notes shall have occurred and be continuing. The Mortgagee
shall have the right to approve, such approval not to be unreasonably withheld,
any settlement which may result in any Taking which might result in an award in
excess of the Casualty/Condemnation Threshold Amount, and the Mortgagor will
deliver or cause to be delivered to the Mortgagee all instruments reasonably
requested by it to permit such approval. The Mortgagor will pay all costs, fees
and expenses reasonably incurred by the Mortgagee (including all reasonable
attorneys' fees and expenses, the fees of insurance experts and adjusters and
the reasonable costs incurred in any litigation or arbitration) in connection
with any Taking and seeking and obtaining any award or payment on account
thereof.
16.2. Partial Taking. In case of a Taking of any of the Properties
other than a Total Taking with respect to such Property, the Mortgagor shall be
obligated, at its expense (whether or not the Proceeds shall be sufficient for
such purpose, but subject to the provisions of Article 38
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hereof) to effect Restoration of the Premises of any such Property in accordance
with the provisions of the Leases and this Mortgage, subject to Excusable
Delays.
16.3. Application of Awards, etc. All Proceeds received by or
payable to the Mortgagee on account of a Taking shall be held and invested by
the Mortgagee until applied by the Mortgagee as follows:
(a) All Proceeds (excluding the Proceeds on account of a Taking for
temporary use) other than Proceeds received on account of a Total Taking shall
be applied to the Restoration of the Premises as if such Proceeds were Proceeds
of a casualty to be applied pursuant to Section 15.2, and after the completion
of the Restoration of the Premises, any balance of the Proceeds remaining shall
next be applied on the Payment Date following such completion as a prepayment
(without penalty or Make-Whole Obligation) of the Allocated Amount pertaining to
the affected Property. To the extent that, subsequent to Restoration, the
remaining Proceeds of a Taking (excluding the proceeds on account of a Taking
for temporary use or proceeds which are not in respect of a diminution in value
of the Premises) are sufficient to prepay the Allocated Amount pertaining to the
affected Property and are so applied, such Property shall then be released from
the lien of this Mortgage. Any Proceeds of a Taking remaining after such
prepayment shall first be applied to a further prepayment of the Mortgage Notes
(without penalty or Make-Whole Obligation) in an amount equal to the lesser of
(x) such remaining Proceeds and (y) an amount such that the total amount prepaid
by the Mortgagor equals 125% of the Allocated Amount of such affected Property.
The balance of any Proceeds of a Taking, if any, shall be paid over and assigned
to the Mortgagor or as it may direct in writing.
(b) All Proceeds received on account of a Total Taking of any
Property shall be applied to the prepayment (without penalty or Make-Whole
Obligation) on the next Payment Date, to the extent that the Proceeds are
sufficient therefor, of the Allocated Amount pertaining to such Property,
whereupon such Property shall be released from the lien of this Mortgage. Any
Proceeds of a Taking remaining after such prepayment shall first be applied to a
further prepayment of the Mortgage Notes (without penalty or Make-Whole
Obligation) in an amount equal to the lesser of (x) such remaining Proceeds and
(y) an amount such that the total amount prepaid by the Mortgagor equals 125% of
the Allocated Amount of such affected Property. The balance of any Proceeds of a
Taking, if any, shall be paid over and
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assigned to the Mortgagor or as it may direct in writing. In the event that the
Proceeds are insufficient to prepay the Allocated Amount pertaining to such
Property (without penalty or Make-Whole Payment), the Mortgagor shall be
obligated, subject to the provisions of Article 38 hereof, to pay immediately
the amount of such insufficiency to the Mortgagee and upon the payment of the
entire Allocated Amount of such Property, such Property shall be released from
the lien of this Mortgage.
Any prepayment made pursuant to this Article 16 shall be applied to
the Mortgage Notes in the following order of priority: first, to the Class A-1
Mortgage Note until the Class A-1 Mortgage Note has been paid in full; second,
to the Class A-2 Mortgage Note until the Class A-2 Mortgage Note has been paid
in full; third, to the Class B Note until the Class B Mortgage Note has been
paid in full; fourth, to the Class C Mortgage Note until the Class C Mortgage
Note has been paid in full; fifth, to the Class D Mortgage Note until the Class
D Mortgage Note has been paid in full; sixth, to the Class E Mortgage Note until
the Class E Mortgage Note has been paid in full; and seventh, to the Class F
Mortgage Note until the Class F Mortgage Note has been paid in full.
17. EVICTION BY PARAMOUNT TITLE. The Mortgagor, within three
Business Days of obtaining knowledge of the pendency of any proceedings for the
eviction of the Mortgagor from the Premises of any Property or any part thereof
by paramount title or otherwise questioning the Mortgagor's title to the
Premises as warranted in this Mortgage, or of any condition which might
reasonably be expected to give rise to any such proceedings, shall notify the
Mortgagee thereof. The Mortgagee may participate in such proceedings, and the
Mortgagor will deliver or cause to be delivered to the Mortgagee all instruments
reasonably requested by the Mortgagee to permit such participation. In any such
proceeding the Mortgagee may be represented by counsel reasonably satisfactory
to it at the reasonable expense of the Mortgagor. The Mortgagor will pay all
costs, fees and expenses reasonably incurred by the Mortgagee (including all
reasonable attorneys' fees and expenses, the fees of insurance experts and
adjusters and the reasonable costs incurred in any litigation or arbitration) in
connection with any such proceeding and seeking and obtaining any award or
payment on account thereof.
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18. BOOKS AND RECORDS, FINANCIAL STATEMENTS, REPORTS AND OTHER
INFORMATION.
18.1. Books and Records. The Mortgagor will keep proper books of
record and account, in which accurate and complete entries shall be made of all
dealings or transactions of or in relation to each of the Properties and the
business and affairs of the Mortgagor relating to the Premises of each Property.
The Mortgagee and its authorized representatives may, subject to Section 6.6 of
the Indenture, from time to time, designate an agent to examine, at reasonable
times and upon reasonable notice, the books and records of the Mortgagor
relating to the operation of the Premises.
18.2. Financial Statements. (a) Not later than one hundred five
(105) days after each December 31 after the date hereof and for the fiscal year
then ended, the Mortgagor will prepare and deliver to the Mortgagee an audited
balance sheet and statement of income and expenses relating to the Properties on
a consolidated basis for such fiscal year, all in reasonable detail as to the
sources and character thereof and stating in comparative form the figures for
the previous fiscal year. Such annual financial statements for each fiscal year
shall be certified by certified public accountants reasonably acceptable to the
Mortgagee and shall be accompanied by an Officers' Certificate of the Mortgagor
certifying that such statements are true and correct in all material respects,
and that the officer signing such certificate has obtained no knowledge of any
Default or Event of Default or, if so, specifying each such Default or Event of
Default and the nature and status thereof and what action the Mortgagor is
taking and proposes to take with respect thereto. Without limitation, any of the
six largest national accounting firms shall be acceptable to Mortgagee.
(b) Not later than forty-five (45) days after the end of each fiscal
quarter (other than the fourth quarter) the Mortgagor shall prepare and deliver
to the Mortgagee an unaudited balance sheet and statement of income and expenses
relating to the Properties on a consolidated basis for such fiscal quarter and
for the fiscal year to date and not later than forty-five (45) days after the
end of each fiscal quarter (including the fourth quarter) an additional
unaudited statement of income and expenses relating to each Property, all in
reasonable detail as to the sources and character thereof. Such unaudited
financial statements shall be accompanied by an Officers' Certificate of the
Mortgagor certifying that such statements are true and
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correct in all material respects, and that the officer signing such certificate
has obtained no knowledge of a Default or Event of Default or, if so, specifying
each such Default or Event of Default and the nature and status thereof and what
action the Mortgagor is taking and purposes to take with respect thereto.
(c) Subject to Section 6.6 of the Indenture and Section 47 hereof
(relating to confidentiality requirements), not later than forty-five (45) days
after the end of each fiscal quarter the Mortgagor shall deliver to the
Mortgagee:
(i) a rent roll as of the end of such quarter for each
Property;
(ii) subject to confidentiality obligations to tenants, the
most recent retail "sales information", if any, collected by or on behalf
of the Mortgagor; and
(iii) lease abstracts with respect to new leases entered into
during such fiscal quarter in excess of 30,000 square feet.
(d) The Mortgagor shall provide along with the financial statements
required by this Section 18.2, a statement of the Net Cash Flow and a statement
of the Debt Service Coverage Ratio for the period to which such financial
statements relate.
18.3. Additional Information. Subject to Section 6.6 of the
Indenture and Section 47 hereof (relating to confidentiality requirements), with
respect to each Property, the Mortgagor will deliver to the Mortgagee (and to
the Rating Agencies) (i) notice in the event of any (a) Event of Default under
this Mortgage or the Indenture, (b) material casualty to or taking of the
Property, or (c) change in the Manager, and (ii) a copy of any notice from any
environmental authority having jurisdiction over the Property with respect to a
condition existing or alleged to exist or emanate from or at the Property
received by the Mortgagor.
18.4. Other Information. The Mortgagor will, at any and all times,
within a reasonable time after written request by the Mortgagee or the Rating
Agencies, furnish or cause to be furnished to the Mortgagee or the Rating
Agencies, in such manner and in such detail as may be reasonably requested by
the Mortgagee or the Rating
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Agencies, additional reasonable information respect to each Property.
19. TRANSFERS AND INDEBTEDNESS. Unless such action is permitted by
the provisions of this Article 19 or the provisions of Section 3.2(c), 3.2(d) or
3.2(f) or Article 20 hereof, the Mortgagor will not (i) sell, assign, convey,
transfer or otherwise dispose of legal or beneficial interests in all or any
part of the Properties, (ii) permit any owner, directly or indirectly, of a
beneficial interest in any of the Properties, to transfer such interest, whether
by transfer of stock or other beneficial interest in any entity, or otherwise,
(iii) incur indebtedness, (iv) mortgage, hypothecate or otherwise encumber or
grant a security interest in any of the Properties, (v) sell, assign, convey,
transfer, mortgage, encumber, grant a security interest in, or otherwise dispose
of any legal or beneficial interest in the Mortgagor, or permit any owner of a
legal or beneficial interest in the Mortgagor to do the same, or (vi) file a
declaration of condominium with respect to any of the Properties.
19.1. Sale of the Properties. (i) Unless the Mortgagor first obtains
a release of the relevant Property or Properties from the Lien of this Mortgage
in accordance with Article 44 hereof, the Mortgagor shall not sell, assign,
convey, transfer or otherwise dispose of legal or equitable title to or any
interest in all (or any) of the Properties unless after giving effect to the
proposed transaction:
(a) the Properties shall be directly owned by a Single Purpose
Entity (including a tenancy-in-common among Single Purpose Entities
under a tenancy-in-common agreement in substance the same in all
material respects as a partnership agreement of a single-purpose
partnership) which at the time of such transfer will be in
compliance with the covenants contained in Sections 3.3 and 3.4
hereof and which has assumed in writing (subject to the terms of
Article 38 hereof) and agreed to comply with all the terms,
covenants and conditions set forth in this Mortgage, expressly
including the covenants contained in Sections 3.3 and 3.4 hereof,
and each of the other Mortgage Security Documents;
(b) one or more Approved Control Parties shall, individually
or acting in concert, own directly or indirectly at least 51% of,
and
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control, the entity which directly owns the Properties ("control"
meaning, for purposes of this Section 19.1 and Section 19.2, primary
responsibility to make all material decisions with respect to the
operation, management, financing and disposition of the Properties,
rather than a beneficial ownership requirement, and without being
compromised by the fact that responsibility for such day-to-day
operating and management functions as are ordinarily handled by a
property manager or for leasing activities has been delegated by
such controlling Person pursuant to an agreement in writing)
provided, however, that at all times a Vornado Affiliate and/or a
Permitted Owner shall own directly or indirectly at least 51% of,
and control, the entity which directly owns the Properties,
(c) if the Manager and/or an Affiliate of the Manager does not
act as Manager of the Properties and one or more of the Mortgagors
named herein does not own or control the transferee, then the
Manager of the Property must be a reputable and experienced
professional management company, having under management, at the
time of the proposed transfer, at least 20 retail shopping centers
comprising at least 8 million square feet;
(d) no Event of Default shall have occurred and be continuing;
(e) if the transfer results in a transfer of more than 49% of
the direct or indirect ownership interests of any Borrower or
Guarantor, a satisfactory non-consolidation opinion of counsel with
respect to the transferee and the owner of such transferee is
provided to the Mortgagee and the Rating Agencies; and
(f) if the Approval Control Party is an entity other than a
Vornado Affiliate, a Rating Agency Confirmation shall have been
obtained with respect to the proposed transfer.
Any permitted transferee of the Properties shall execute an assumption in the
form of Exhibit F hereto, subject to the provisions of Article 38 hereof, of the
obligations of the Mortgagor under this Mortgage. With respect to any transfer
described in this Section 19.1(i), Mortgagor shall pay to the Servicer an
assumption fee of $5,000.
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(ii) The Mortgagor also may transfer or dispose of Equipment which
is being replaced or which is no longer necessary in connection with the
operation of the Premises or of any Property free from the interest of the
Mortgagee under this Mortgage, provided that such transfer or disposal will not
adversely affect the value of such Property, will not materially impair the
utility of the Premises of such Property, and will not result in a reduction or
abatement of, or right of offset against, the rentals payable under any Lease,
in either case as a result thereof, and provided that any new Equipment acquired
by the Mortgagor (and not so disposed of) shall be subject to the interest of
the Mortgagee under this Mortgage unless leased to the Mortgagor. The Mortgagee
shall, from time to time, upon receipt of an Officers' Certificate requesting
the same and confirming satisfaction of the conditions set forth above, execute
a written instrument in form reasonably satisfactory to it to confirm that such
Equipment which is to be, or has been, sold or disposed of is free from the
interest of the Mortgagee under this Mortgage.
19.2. Transfer or Encumbrance of Interests in the Mortgagor. (i) A
sale, assignment, conveyance, transfer, or other disposition or hypothecation or
other encumbrance of a direct or indirect beneficial interest in one or more of
the Mortgagors shall be permitted if (I) the Mortgagee shall have consented
thereto, or (II) after giving effect to the proposed transaction, one or more
Approved Control Parties shall, individually or acting in concert, directly or
indirectly own and control (as defined in Section 19.1) such Mortgagors;
provided, however, that if a transfer is made pursuant to clause (II) hereof
there shall be provided (x) if the transfer results in a transfer of more than
49% of the direct or indirect ownership interests of any Borrower or Guarantor,
a non-consolidation opinion of counsel with respect to such Permitted Owner, and
the applicable Mortgagor, which is satisfactory to the Rating Agencies and (y) a
Rating Agency Confirmation shall have been obtained with respect to the proposed
transfer unless such transfer is to a Vornado Affiliate.
(ii) a hypothecation or other encumbrance of a direct or indirect
beneficial interest in one or more of the Mortgagors or in Vornado Finance shall
be permitted in connection with and to secure a borrowing by the owner of such
direct or indirect interest, provided that a Rating Agency Confirmation shall
have been obtained with respect thereto.
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(iii) Nothing in this Article 19 and no other provision of this
Mortgage or any other Mortgage Security Document shall prohibit or be construed
as prohibiting, conditioning or restricting any shareholder in Vornado or any
partner in VRLP (but only so long as Vornado owns in excess of 50% of VRLP) from
selling, assigning, pledging, hypothecating, conveying, transferring or
otherwise disposing of or encumbering such Person's shares in Vornado or
partnership interests in VRLP, respectively, to any other Person, and no such
transaction shall in and of itself result in any Default hereunder.
19.3. Indebtedness. The Mortgagor shall not incur, create or assume
any indebtedness or incur any liabilities secured by any of the Properties
without the consent of the Mortgagee (other than the Mortgage Notes and the
other obligations, indebtedness and liabilities secured by this Mortgage or set
forth in any other Mortgage Security Document); provided, however, that, without
the consent of the Mortgagee, the Mortgagor may incur, create or assume the
following indebtedness:
(i) amounts, not secured by the Premises of any of the
Properties and that are not more than 60 days past due, payable by or on
behalf of the Mortgagor for or in respect of the operation of any of the
Properties in the ordinary course of operating the Mortgagor's business,
including amounts payable by or on behalf of the Mortgagor to suppliers,
contractors, mechanics, vendors, materialmen or other persons providing
property or services to the Mortgagor or to the Premises of any of the
Properties, or in connection with the ownership, management, operation,
leasing, cleaning, maintenance, repair, replacement, financing,
improvement, alteration or restoration thereof incurred in the ordinary
course of operating the Mortgagor's business (provided, however, that
notwithstanding the foregoing, in no event shall the Mortgagor be
permitted under this provision to enter into a note for borrowed money);
(ii) amounts, not secured by the Premises of any of the
Properties, payable or reimbursable to any Tenant on account of work
performed at the Premises of such Property by such Tenant or for costs
incurred by such Tenant in connection with its occupancy of space in the
Premises of such Property including tenant improvements and tenant work
allowances (provided, however, that notwithstanding the foregoing, in no
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event shall the Mortgagor be permitted under this provision to enter into
a note for borrowed money);
(iii) indebtedness not secured by any of the Properties (but
which may be secured by the Equipment so financed), relating solely to
financing of capital improvements, tenant improvements, Equipment or
leasing costs relating to any Property or Properties, and costs associated
with such indebtedness;
(iv) capital lease obligations; and
(v) indebtedness not secured by any of the Properties incurred
to finance tenant improvements, Equipment, capital improvements, leasing
costs, or legal or compliance costs;
provided, however, that the indebtedness described in clauses 19.3(i) through
(v) above shall not in the aggregate exceed 4% of the aggregate initial
Allocated Amounts of all Properties which at the time are subject to the Lien of
this Mortgage.
19.4. Intentionally Omitted.
19.5. Notice. Not less than five Business days prior to the closing
of any transaction subject to the provisions of Section 19.1(i) or 19.2(i)
(other than a transaction described in 19.2(ii)), the Mortgagor shall deliver to
the Mortgagee an Officers' Certificate describing the proposed transaction and
stating that such transaction is permitted by this Article 19, together with
such documents upon which such Officers' Certificate is based.
19.6. Delivery of Documents to the Mortgagee. No more than twenty
(20) Business Days after the completion of any transaction subject to Section
19.1(i) or 19.2(i) (other than a transaction described in Section 19.2(ii)), the
Mortgagor shall provide the Mortgagee with copies of executed deeds, mortgages
and such other similar closing documents as may be reasonably requested by the
Mortgagee.
20. PERFORMANCE OF LEASES; APPLICATION OF RENTS. (a) The Mortgagor
shall timely perform and observe or cause to be performed or observed all the
material terms, covenants and conditions required to be performed and observed
by the Mortgagor under the Leases, such that there will be no material and
adverse impairment of the value of any of the Properties or the Mortgagee's
interest under this Mortgage. The Mortgagor will promptly deliver to the
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Mortgagee a copy of any notice from any Tenant under any Lease covering 15,000
or more square feet of rentable area of the Premises of any Property, claiming
that the lessor is materially in default in the performance or observance of any
of the terms, covenants or conditions thereof to be performed or observed by the
lessor, and will provide in each Lease at the Properties after the date hereof
to which it is a party that any Tenant delivering any such notice shall send a
copy of such notice directly to the Mortgagee.
(b) The Mortgagor shall engage, and shall maintain during the term
hereof their engagement of, Vornado, an Affiliate thereof or another
professional management company which manages at least 20 other retail shopping
centers comprising an aggregate of at least 4 million square feet, as the
Manager of the Properties (each, a "Manager"). The Mortgagor shall, or shall
cause the Manager to, manage and operate the Premises of each Property in a
reasonably prudent manner and shall not enter into any Lease after the date
hereof which would, evaluated alone or in conjunction with any then existing
leases, result in any material impairment of the fair market value, as of the
date such Lease is executed by the Mortgagor, of the affected Property. Subject
to subsection (e) of this Section 20, the Mortgagor may enter into any Lease
which is not inconsistent with the provisions of this Article 20 and the other
applicable provisions of this Mortgage, if any, and the Mortgagor agrees to
deliver either a duplicate original executed counterpart or a certified copy of
each Lease to the Mortgagee. Each Lease entered into after the date hereof
(including the renewal or extension on or after the date hereof of any lease
entered into prior to the date hereof if the rent payable during such renewal or
extension, or a formula to compute such rent, is not provided for in such Lease,
such a renewal or extension a "Renewal Lease") either (A) shall provide for rent
and all other material items thereunder to be payable in amounts at least equal
to the fair market rental value (taking into account the type and quality of the
Tenant), as of the date such Lease is executed by the Mortgagor, of the space
covered by such lease or Renewal Lease for the term thereof, including any
renewal options, (B) shall not have a material adverse effect on the value of
any of the Properties as a whole or the ability of the Mortgagor to pay its
obligations in respect of the Mortgage Notes and this Mortgage or (C) shall be
consented to by the Mortgagee.
(c) The Mortgagor may, without the consent of the Mortgagee, amend,
modify or waive the provisions of any Lease, provided that such action does not
have a material
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adverse effect upon the value of any of the Properties, and provided further
that such Lease, as amended, modified or waived, is otherwise in compliance with
the requirements of this Mortgage and a certified copy of the amendment,
modification or waiver is delivered to the Mortgagee.
(d) The Mortgagor may terminate or permit the termination of any
Lease of space or accept surrender of all or any portion of the space demised
under the Lease or acquire any Lease or reduce the rentals reserved under or
shorten the term of any Lease so long as such action (taking into account the
planned alternative uses of the space) does not materially adversely affect the
value of any of the Properties (it being agreed that termination of the Lease of
a Tenant which is in default, after any applicable notice and cure periods,
shall be considered to be for the benefit of the Properties) or the ability of
the Mortgagor to pay its obligations in respect of the Mortgage Notes and this
Mortgage.
(e) After the occurrence and during the continuation of a Triggering
Event (as defined in the Indenture), Mortgagor shall not enter into any lease in
excess of 40,000 square feet without the prior approval of Mortgagee (which such
approval shall be deemed to have been given if Mortgagee does not respond within
twenty (20) days after receipt of such request and the information reasonably
necessary to make such a determination).
(f) No Mortgagor shall enter into any Lease with an Affiliate of
such Mortgagor at any Property, unless (i) the space is for the use and
occupancy of one or more of such Affiliates, and (ii) the material terms of such
Lease comply with the requirements set forth in Section 20(b) hereof; provided,
however, that a reasonable amount of office space not in excess of 5,000 net
leaseable square feet can be provided to each Manager for the purpose of
management of each of the Properties at less than fair market rental or at no
rental, at the Mortgagor's discretion. The Mortgagor shall have the right,
subject to the provisions of this Mortgage, to acquire Leases by way of
assignment, surrender, acquisition or further sublease. The Mortgagor shall not
modify the terms governing the management of any of the Properties in any
respect which would have a materially adverse effect on the operation of, or the
Net Cash Flow generated by, or the value of, the Premises of any Property
without the prior approval of the Mortgagee. The Mortgagor shall not replace the
Manager of any Property with a new Manager without first having obtained a
Rating Agency Confirmation with respect thereto.
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(g) The Mortgagor shall not receive or collect, or permit the
receipt or collection of, any rental or other payments under any Lease more than
one (1) month in advance of the respective period in respect of which they are
to accrue, except that (i) in connection with the execution and delivery of any
Lease or of any amendment to any Lease, rental payments thereunder may be
collected and received in advance in an amount not in excess of one (1) month's
rent and a security deposit (including advance rents as or in lieu of a security
deposit) may be required thereunder (provided that such deposits are maintained
in accordance with applicable law and in accordance with Article 53 hereof), and
(ii) the Mortgagor may receive and collect escalation, percentage rent and other
charges in accordance with the terms of each Lease and (iii) the Mortgagor may
receive and collect more than one month's rent in connection with a Tenant
terminating its Lease if the termination of the Lease is permitted under this
Mortgage.
(h) Subject to the terms of any non-disturbance and attornment
agreement which the Mortgagee may provide to any Tenant pursuant to this
Mortgage, the Mortgagor shall not enter into any Lease after the date hereof
that does not contain terms to the effect as set forth in Exhibit G hereto.
(i) Upon receipt by the Mortgagee of a written request from the
Mortgagor therefor, the Mortgagee shall execute and deliver to the Tenant under
any Lease (other than a Lease to an Affiliate of the Mortgagor) existing on the
date hereof or made in accordance with the provisions of this Article 20, a
non-disturbance and attornment agreement in customary form for the Premises if
required by such Lease and specified in such request, provided that such request
is accompanied by an Officers' Certificate stating that such Lease complies in
all respects with this Mortgage, including specifically this Article 20.
21. NO ENDORSEMENT. The Mortgagee shall not become or be considered
to be an endorser, co-maker or co-obligor on the Mortgage Notes or on any
obligation of the Mortgagor secured by this Mortgage.
22. NO CREDIT FOR PAYMENT OF TAXES OR IMPOSITIONS. The Mortgagor
shall not be entitled to any credit against the principal of or interest or
Make-Whole Obligation, if any, payable on the Mortgage Notes, and the Mortgagor
shall not be entitled to any credit against any other amounts which may become
payable under the terms thereof or hereof, by reason of the payment of any tax
on
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any Property or any part thereof or by reason of the payment of any other
Imposition or other amount required to be paid hereunder. No deduction shall be
made or claimed from the taxable value of any Property or any part thereof by
reason of this Mortgage.
23. EVENT OF DEFAULT; ACCELERATION OF MORTGAGE NOTE. If one or more
of the following events ("Event of Default") shall occur:
(a) a default in the regularly scheduled payment of any principal or
interest required to be paid under the Mortgage Notes by 11:00 a.m., New York
time, on the second Business Day immediately preceding any Payment Date or
failure by Mortgagor to make deposits in the Reserve Accounts as required under
the Cash Management Agreement or Indenture; or
(b) a default in the payment of the principal of any Mortgage Note
at maturity (whether at the Maturity Date, by acceleration, call for prepayment
or otherwise); or
(c) default in the payment of any amounts due and payable (other
than amounts described in the foregoing clause (a) or (b)) under the Mortgage
which continues for a period of fifteen Business Days after written demand by
the Mortgagee for payment thereof; or
(d) an "Event of Default" as defined in any Mortgage Security
Document, the Indenture or the Guaranty Agreement; or
(e) any insurance required to be maintained in respect of the
Premises of any Property pursuant to Article 13 hereof shall be cancelled,
terminated or expire (and replacement insurance or a binding commitment to
provide such replacement insurance complying with the provisions of Article 13
hereof has not been effected prior to such event) or any such insurance shall be
amended or modified so as not to comply with Article 13 hereof, and notice to
the Mortgagor of such cancellation, termination, expiration, amendment or
modification shall have been mailed or otherwise surrendered or released for
delivery to the Mortgagor; or
(f) the Mortgagor shall, directly or indirectly, make or permit to
occur a violation of the covenants contained in Section 3.3 or 3.4 hereof, or a
violation of the covenants contained in Article 11 hereof (subject to the
provisions of Article 12 hereof), or any sale, assignment, conveyance, transfer,
mortgage, pledge, encumbrance or other
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disposition in violation of Article 19 hereof, or incur any indebtedness in
violation of Article 19 hereof;
(g) the Mortgagor shall fail to perform or comply with any of the
material covenants of this Mortgage, including the failure to perform in all
material respects under any ground lease applicable to a Property subject to
applicable notice and cure rights thereunder (other than as described in the
foregoing clauses (a) through (f)), or the Mortgagor shall breach any
representation or warranty made by it in this Mortgage or in any other Mortgage
Security Document, and in any such case, such failure or breach shall continue
for more than thirty (30) Business Days after written notice thereof by the
Mortgagee to the Mortgagor; provided that in the case of any such failure that
is susceptible of cure but that cannot with diligence be cured within such
thirty Business Day period, if the Mortgagor shall promptly have commenced to
cure the same and shall thereafter prosecute the curing thereof with diligence,
subject to Excusable Delays, the period within which such failure may be cured
shall be extended for such further period as shall be reasonably necessary for
the curing thereof with diligence, subject to Excusable Delays; provided,
however, that Mortgagor shall provide a written explanation to Mortgagee
explaining the reasons for requiring such extended cure period; provided,
further, however, that such extended period shall not exceed one hundred eighty
(180) days unless, only in the case of cures which require construction or
remedial work, cure cannot with diligence reasonably be achieved within such one
hundred eighty (180) days and the Mortgagor has delivered an Officers'
Certificate to the Mortgagee to such effect, in which event such period shall be
extended for an additional one hundred eighty (180) days (and provided that cure
of any breach of representation or warranty, and that cure of any failure to
make a delivery, subsequent to the date as of which the representation or
warranty was made or applies, or such delivery was required, shall constitute
cure of such breach, or cure of such failure to make the delivery, provided such
breach or failure has not had a material adverse effect on the interest of the
Mortgagee hereunder); or
(h) intentionally omitted.
(i) the entry by a court having jurisdiction over any Borrower or
Guarantor of (A) a decree or order for relief in respect of such Borrower or
Guarantor in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization,
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rehabilitation or other similar law or (B) a decree or order adjudging such
Borrower or Guarantor a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, rehabilitation, arrangement, adjustment or
composition of or in respect of such Borrower or Guarantor under any applicable
federal or state bankruptcy, insolvency, reorganization, rehabilitation or other
similar law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of such Borrower or Guarantor or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs and such decree or order remains undismissed for a period for 60
days; or
(j) the commencement by any Borrower or Guarantor of a voluntary
case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by such Borrower or
Guarantor to the entry of a decree or order for relief in any involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable federal
or state bankruptcy or similar law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of such Borrower
or Guarantor or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of
action by such Borrower or Guarantor in furtherance of any such action.
then, in any such event, the Mortgagee, at its option, may, in accordance with
the provisions of Section 5.2 of the Indenture, declare the Mortgage Notes due
and payable and, to the extent permitted by applicable law, the Mortgagee may
exercise the other remedies provided for herein for an Event of Default;
provided, however, that if an Event of Default described in clause (i) or (j)
occurs, then the Mortgage Notes shall automatically be and become due and
payable immediately without any action whatsoever on the part of the Mortgagee,
and, to the extent permitted by applicable law, the Mortgagee may exercise such
other remedies as may be available to Mortgagee. If after the occurrence of an
Event of Default, the Mortgage Notes are accelerated prior to the Payment Date
occurring in December 2009, the Mortgagor shall
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pay the Make-Whole Amount with respect to the Mortgage Notes.
Within thirty (30) days after any written request by the Mortgagee
therefor, but no more frequently than once in any twelve month period, the
Mortgagor shall furnish to the Mortgagee an Officers' Certificate, stating that
in the ordinary course of the performance by the officer of the Mortgagor
signing such certificate of his duties he either would normally obtain knowledge
or have made due inquiry as to the existence of any condition or event which
would constitute an Event of Default hereunder or a Default of any monetary
obligation under the Mortgage Notes and certifying that to the best of his
knowledge there is no such condition or event, or if any such condition or event
exists, specifying each such Event of Default or a Default of any monetary
obligation under the Mortgage Notes and the nature and status thereof and what
action the Mortgagor is taking or proposes to take with respect thereto.
The Mortgagor acknowledges that the Secured Obligations are secured
by this Mortgage, the Assignment of Leases and various other documents or
instruments securing or evidencing the Mortgage Loan. Upon the occurrence of an
Event of Default, the Mortgagee shall have the right to institute a proceeding
or proceedings for the total or partial foreclosure of this Mortgage and any or
all of the other Mortgage Security Documents, whether by court action, power of
sale or otherwise, under any applicable provisions of law, for all of the
indebtedness secured by the Mortgage Security Documents or the portion of such
indebtedness allocated to any particular Property, and the liens and the
security interests created by the Mortgage Security Documents shall continue in
full force and effect as to the Property not foreclosed without loss of priority
securing that portion of the indebtedness then due and payable and still
outstanding. The Mortgagor acknowledges that the Properties are located in six
(6) different states and agree that, subject to Article 38 of this Mortgage,
upon the occurrence of an Event of Default hereunder the Mortgagee shall be
entitled to enforce payment of the indebtedness secured by the Mortgage Security
Documents and the performance of any term, covenant or condition of the Mortgage
Security Documents and exercise any and all rights and remedies under the
Mortgage Security Documents or as provided by law or at equity, by one or more
proceedings, whether contemporaneous, consecutive or both, to be determined by
the Mortgagee in its sole discretion, in any one or more states in which the
Properties are located. Neither the acceptance of this Mortgage or the other
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Mortgage Security Documents nor the enforcement thereof in any one state,
whether by court action, foreclosure, power of sale or otherwise, shall
prejudice or in any way limit or preclude enforcement by court action,
foreclosure, power of sale or otherwise, of the Mortgage Notes, this Mortgage or
the other Mortgage Security Documents through one or more additional proceedings
in that state or in any other state. Any and all sums received by the Mortgagee
under the Mortgage Notes, this Mortgage or the other Mortgage Security Documents
shall be applied toward the repayment of the Secured Obligations in such order
and priority as the Mortgagee shall determine, consistent with the requirements
of the Mortgage Security Documents (including, without limitation, the rights of
the Mortgagor set forth in Section 44 of this Mortgage), but otherwise without
regard to the Allocated Amount applicable to each Property or the appraised
value of any of the Properties.
24. COMPROMISE OF ACTIONS. Any action, suit or proceeding brought by
the Mortgagee pursuant to this Mortgage or otherwise and any claim made by the
Mortgagee under this Mortgage or otherwise may be compromised, withdrawn or
otherwise dealt with by the Mortgagee without notice to or the approval of the
Mortgagor.
25. FORECLOSURE.
25.1. Foreclosure. Subject to Article 38 hereof, if any Event of
Default shall have occurred and the Mortgage Notes shall have been declared due
and payable, the Mortgagee, for the benefit of the Holders (as defined in the
Indenture), may at any time proceed, at law or in equity or otherwise, to
enforce the payment of the Mortgage Notes in accordance with the terms thereof
and:
(a) to institute an action to foreclose its interest under and the
lien of this Mortgage against any of the Properties by judicial foreclosure sale
or strict foreclosure in one proceeding or against portions of the Properties in
a series of separate proceedings, and to have the same sold under the judgment
or decree of a court of competent jurisdiction or proceed to take any of such
actions; and
(b) to take such other action at law or in equity or otherwise for
the enforcement of this Mortgage and the realization on the security or any
other security herein or elsewhere provided for, as the law may allow (including
by power of sale), and may proceed therein to final judgment and execution for
the entire unpaid balance of the principal
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debt, together with all other sums payable by Mortgagor in accordance with the
provisions of the Mortgage Notes and this Mortgage, and all sums which may have
been advanced by the Mortgagee for taxes, water or sewer rents, charges or
claims, payment on prior liens, insurance or repairs to the Properties, all
costs of suit, together with interest thereon at such interest rate as may be
awarded in any judgment obtained by the Mortgagee, as the case may be, from and
after the date of any foreclosure sale until actual payment is made to the
Mortgagee of the full amount due the Mortgagee, and attorneys' fees through and
including all appellate levels; and
(c) to sell, assign, transfer and deliver the whole or, from time to
time, any part of any Property, or any interest in any part thereof, at any
private sale or at public auction permitted by law, with such demand,
advertisement or notice as required by law, and on such other terms as required
or permitted by law.
Before taking title to any Property, the Mortgagee, at the expense of the
Mortgagor, may determine whether any environmental hazards exist at the Property
in respect of which the Mortgagee may become liable by taking title, which
determination may include the performance of an environmental audit of the
Property by a qualified professional if the Mortgagee determines that reasonable
prudence warrants the performance of such an audit.
25.2. The Mortgagor's Waivers. It shall not be necessary for the
Mortgagee to have actual or constructive possession of any part of any Property
in order to pass the title to and the right of possession of said Property, and
the title to and the right of possession of said property shall pass to the
purchaser or purchasers thereof at any sale hereunder as fully as if the same
actually had been present and delivered. To the fullest extent allowed by
applicable law, upon foreclosure of this Mortgage whether by power of sale, or
any other nonjudicial or judicial foreclosure process, the Mortgagor or any
person claiming any part of any Property by, through or under the Mortgagor
shall not be entitled to direct the order of sale or to a marshalling of assets
or a sale in inverse order of alienation. The recitals and statements of fact
contained in any notice or in any conveyance to the purchaser or purchasers at
any sale hereunder shall be prima facie evidence of the truth of such facts, and
all prerequisites and requirements necessary to the validity of any such sale
shall be presumed to have been performed. In the event of a foreclosure sale, to
the extent that the Mortgagor is in
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possession of the Premises, the Mortgagor shall be deemed a tenant at will of
the purchaser at such judicial foreclosure sale and shall be liable for a
reasonable rental for the use of the Premises; and if the Mortgagor refuses to
surrender possession of the Premises upon demand, the purchaser shall be
entitled to institute and maintain the statutory action of forcible entry and
detainer and procure a writ of possession thereunder, and the Mortgagor
expressly waives all damages sustained by reason thereof and the Mortgagor
agrees to pay to the purchaser the reasonable costs and expenses (including all
reasonable attorneys' fees and expenses) of such action and writ, subject to the
provisions of Article 38.
25.3. Recovery of Advances. Subject to the provisions of Article 35
and subject to the provisions of Article 38, the Mortgagee shall have the right,
from time to time, to bring an appropriate action to recover any sums required
to be paid by the Mortgagor under the terms of this Mortgage and/or the Mortgage
Notes as they become due, without regard to whether the principal indebtedness
evidenced by the Mortgage Notes or any other sums secured by this Mortgage shall
be due, and without prejudice to the right of the Mortgagee thereafter to bring
an action of foreclosure, or any other action, for any default by the Mortgagor
existing at the time the earlier action was commenced.
25.4. Sale. Upon the completion of any sale or sales of any Property
by virtue of this Article 25, the Mortgagee or any officer of any court
empowered to do so, shall execute and deliver to the accepted purchaser or
purchasers, good and sufficient instrument or instruments (subject to the
provisions of Article 38 hereof), conveying, assigning and transferring all
estate, right, title and interest in and to the property and rights sold. In
such event, the Mortgagee is hereby irrevocably appointed the true and lawful
attorney of the Mortgagor, in its name and stead, to make all the necessary
conveyances, assignments, transfers and deliveries of any part of the Property
and rights so sold, and for that purpose the Mortgagee may execute all necessary
instruments of conveyance, assignment and transfer and may substitute one or
more persons with like power. Any such sale or sales shall operate to divest all
the estate, right, title, interest, claim and demand whatsoever, whether at law
or in equity, of the Mortgagor in and to the properties, interests and rights so
sold, and shall be a perpetual bar both at law and in equity against the
Mortgagor and against any and all persons claiming or
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who may claim the same, or any part thereof from, through or under the
Mortgagor.
25.5. Several Parcels. If any Event of Default shall have occurred
and the Mortgage Notes shall have been declared due and payable, the Mortgagee
shall have the right to sell each of the Properties individually or collectively
in such manner and order as it may determine, and the right of sale hereunder
shall not be exhausted by one or more sales, but successive sales may be had
until all of the Properties have been legally sold. In the event any sale
hereunder is not completed or is defective in the opinion of the Mortgagee, such
sale shall not exhaust the power of sale hereunder, and the Mortgagee shall have
the right to cause a subsequent sale or sales.
25.6. Mortgage Notes Become Due on Foreclosure Sale. Upon any sale
of any or all of the Properties by the Mortgagee under or by virtue of this
Mortgage, whether pursuant to foreclosure or power of sale or otherwise in
accordance with the provisions of this Mortgage, the entire unpaid principal
amount of the Mortgage Notes at the time outstanding shall, if not previously
declared due and payable, immediately become due and payable, together with the
interest accrued thereon and any applicable Make-Whole Obligation which would
then be payable, and any other indebtedness which this Mortgage by its terms
secures.
26. MORTGAGEE AUTHORIZED TO EXECUTE INSTRUMENTS. The Mortgagor
irrevocably appoints (which appointment is coupled with an interest) the
Mortgagee the true and lawful attorney-in-fact of the Mortgagor, in its name and
stead and on its behalf, for the purpose of effectuating any sale, assignment,
transfer or delivery for the enforcement of this Mortgage after the occurrence
and during the continuance of an Event of Default hereunder, to execute and
deliver all such deeds, assignments, bills of sale and other instruments
(without recourse, warranty or representation of any kind) as the Mortgagee may
consider necessary or appropriate, with full power of substitution, the
Mortgagor hereby ratifying and confirming all that such attorney or any
substitutes shall lawfully do by virtue hereof. Nevertheless, if so requested by
the Mortgagee or any purchaser, the Mortgagor shall ratify and confirm any such
sale, assignment, transfer or delivery by executing and delivering to the
Mortgagee or such purchaser all deeds, assignments, bills of sale, releases and
other proper instruments (which in each case shall be without recourse to or
representation or warranty by the Mortgagor) to effect such ratification and
confirmation as may be designated in any such request.
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27. PURCHASE OF PROPERTIES BY MORTGAGEE. The Mortgagee, any Holder
individually, or any nominee of any of them may be a purchaser of any of the
Properties or of any interest therein at any sale thereof, and may apply to the
purchase price all or any part of the indebtedness secured hereby in lieu of
payment in cash of the amount of such indebtedness applied. Any such purchaser
shall, upon any such purchase, acquire good title to the properties so
purchased, free of the lien of this Mortgage and free of all rights of
redemption in the Mortgagor.
28. RECEIPT A SUFFICIENT DISCHARGE TO PURCHASER. Upon any sale of a
Property after the Mortgage Notes become due and payable, whether at maturity,
by declaration of acceleration or by automatic acceleration after an Event of
Default or otherwise, the receipt of the Mortgagee or the receipt of the officer
making the sale under judicial proceedings shall, to the full extent legally
permitted, be sufficient discharge to the purchaser for the purchase money, and
such purchaser shall not be obligated to see to the application thereof.
29. WAIVER OF MARSHALLING, APPRAISEMENT, APPRAISAL. The Mortgagor
hereby waives all rights, legal and equitable, it may now or hereafter have to
require marshalling of assets or to require upon foreclosure sales of assets in
a particular order. Each successor and assign of the Mortgagor, including a
holder of a lien subordinate to the lien created hereby (without implying that
Mortgagor has a right to grant an interest in, or a subordinate lien on, any of
the Properties), by acceptance of its interest or lien agrees that it shall be
bound by the above waiver, as if it gave the waiver itself. The Mortgagor also
hereby waives, to the full extent it may lawfully do so, the benefit of all laws
providing for rights of appraisement, appraisal, stay or extension or of
redemption after foreclosure now or hereafter in force.
30. SALE SHALL BE A BAR AGAINST MORTGAGOR. The sale of any Property
in connection with the exercise of remedies under this Mortgage after the
Mortgage Notes become due and payable, whether at maturity, by declaration of
acceleration or by automatic acceleration after an Event of Default or
otherwise, shall, to the full extent legally permitted, forever be a perpetual
bar against the Mortgagor's asserting any claim to title to the Property.
31. APPLICATION OF PROCEEDS OF SALE. The proceeds of any sale of
any Property or any part thereof or any interest therein, after the Mortgage
Notes become due and
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payable, whether at maturity, by declaration of acceleration or by automatic
acceleration after an Event of Default or otherwise, together with any other
moneys and the proceeds of any Credit Facilities or Eligible Collateral at the
time held by the Mortgagee as part of the Property, shall be applied as set
forth in Section 5.6 of the Indenture except that reference to the term "Notes"
or any "Class" of "Notes" in the Indenture shall be deemed to be a reference to
the Mortgage Notes or the corresponding Class of Mortgage Notes hereunder.
32. APPOINTMENT OF RECEIVER. If an Event of Default shall have
occurred and be continuing, the Mortgagee shall, to the fullest extent permitted
by law, as a matter of right, be entitled to the appointment of a receiver for
all or any part of the Properties, whether such receivership be incidental to a
proposed sale of the Properties or otherwise, and the Mortgagor hereby consents
to the appointment of such a receiver and will not oppose any such appointment.
33. POSSESSION, MANAGEMENT AND INCOME. If an Event of Default shall
have occurred and be continuing, the Mortgagee, with such notice, if any, to the
Mortgagor as required by law or as the Mortgagee considers appropriate in the
circumstances, and subject to the rights of Tenants and the provisions of
applicable law, may immediately enter upon and take possession of the Premises
of each of the Properties by self-help, summary proceedings, ejectment or
otherwise, and may remove the Mortgagor and all other Persons and any and all
property therefrom, and may hold, operate and manage the same and receive all
earnings, income, rents, issues and proceeds accruing with respect thereto;
provided, however, that upon the cure of such Event of Default within the
permitted time, and if no other Event of Default shall have occurred and be
continuing, the Mortgagee will convey possession of such Premises back to the
Mortgagor. The Mortgagee shall be under no liability for or by reason of any
such taking of possession, entry, removal or holding, operation or management,
except (i) for its gross negligence or willful misconduct or (ii) to the extent
required by applicable law, and except that any amounts so received by the
Mortgagee shall be applied as set forth in Section 5.6 of the Indenture except
that reference to the term "Notes" or any "Class" of "Notes" in the Indenture
shall be deemed to be a reference to the Mortgage Notes or the corresponding
Class of Mortgage Notes hereunder.
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At the request of the Mortgagee, the Mortgagor shall promptly
execute and deliver to the Mortgagee such deeds, instruments of assignment and
other documents as the Mortgagee may deem necessary or advisable to enable the
Mortgagee or any agent or representative designated by the Mortgagee, at such
time or times and place or places as the Mortgagee may reasonably specify, to
obtain possession of all or any portion or portions of the Properties to which
the Mortgagee shall at the time be entitled hereunder, subject to the rights of
Tenants.
If the Mortgagor shall fail for any reason to execute and deliver
such instrument or document after such request by the Mortgagee, the Mortgagee,
to the fullest extent permitted by law, may (i) obtain a judgment conferring on
the Mortgagee the right to immediate possession and requiring the Mortgagor to
execute and deliver such instruments and documents to the Mortgagee, which entry
of judgment the Mortgagor, to the extent it may lawfully do so, hereby
specifically consents and (ii) pursue the Properties wherever it may be found
and to the extent lawfully permitted, take possession of and remove the same,
subject to the rights of Tenants.
Upon every such taking of possession, the Mortgagee may (but shall
have no obligation), from time to time, at the expense of the Mortgagor and such
expenses to constitute additional indebtedness secured by the affected Property,
make all such expenditures for maintenance, insurance, repairs, replacements,
alterations, additions and improvements to and of the Premises of such Property,
as it may deem proper. In such case, the Mortgagee, to the fullest extent
permitted by law, shall have the right to manage, control, use, operate, store,
lease or otherwise deal with such Property and to carry on the business and
exercise all the rights and powers of the Mortgagor relating to such Property,
as the Mortgagee shall deem best, including the right to enter into any and all
such agreements with respect to the management, cleaning, control, use,
operation, storage, leasing of or otherwise dealing with the Property, or any
part thereof, as the Mortgagee may determine; and, to the fullest extent
permitted by law, the Mortgagee shall be entitled to collect and receive all
tolls, rents, revenues, issues, income, products and profits of the Property and
every part thereof, without prejudice, however, to the right of the Mortgagee
under any provision of this Mortgage to collect and receive all cash held by, or
required to be deposited with, the Mortgagee hereunder. Such tolls, rents,
revenues, issues, income, products and profits shall be applied to pay the
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expenses of the management, control, use, operation, storage, leasing of or
otherwise dealing with the Premises and of conducting the business thereof, and
of all maintenance, repairs, replacements, alterations, additions and
improvements, and to make all payments which the Mortgagee may be required or
may elect to make, if any, for Impositions, or other taxes, assessments,
insurance or other proper charges upon the Premises or any part thereof
(including the employment of engineers and accountants to examine, inspect and
make reports), and all other payments which the Mortgagee may be required or
authorized to make under any provision of this Mortgage, as well as just and
reasonable compensation for the services of the Mortgagee, and all persons
properly engaged or employed by the Mortgagee.
34. RIGHT OF MORTGAGEE TO PERFORM MORTGAGOR'S COVENANTS. If the
Mortgagor shall fail to make any payment or perform any act required to be made
or performed here under, the Mortgagee, upon notice to the Mortgagor and upon
the expiration of any applicable grace or cure period provided in Article 23
(except in cases of emergency that threaten bodily injury or material damage to
property, in which case the Mortgagee will allow such notice and grace or cure
period, if any, as is reasonable under the circumstances) and subject to the
Mortgagor's right of contest under Article 12 hereof, but without waiving or
releasing any obligation, Default or Event of Default, may (but shall be under
no obligation to) at any time thereafter make such payment or perform such act
for the account and at the expense of the Mortgagor, and, to the extent
permitted by applicable law, may enter upon the Premises of such Property for
such purpose and take all such action thereon as, in the judgment of the
Mortgagee, may be reasonably necessary or appropriate therefor, subject to the
rights of Tenants. All sums so paid by the Mortgagee and all reasonable costs
and expenses (including all attorneys' fees and expenses) so incurred, together
with interest thereon at the Default Rate from the date of payment by the
Mortgagee until paid, shall constitute additional indebtedness secured by this
Mortgage and, subject to the provisions of Article 38 hereof, shall be paid by
the Mortgagor to the Mortgagee, for the benefit of the Holders, upon demand
therefor.
35. REMEDIES CUMULATIVE. Subject to the provisions of Article 38
hereof, to the extent permitted under applicable law each right, power and
remedy of the Mortgagee provided for in this Mortgage or now or hereafter
existing at law or in equity or by statute or otherwise shall be cumulative and
concurrent and shall be in addition
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to every other right, power or remedy provided for in this Mortgage or now or
hereafter existing at law or in equity or by statute (including the Uniform
Commercial Code as enacted in the State where each of the Properties is located)
or otherwise, and the exercise or beginning of the exercise by the Mortgagee of
any one or more of the rights, powers or remedies provided for in this Mortgage
or now or hereafter existing at law or in equity or by statute or otherwise
shall not preclude the simultaneous or later exercise by the Mortgagee, to the
extent permitted by law, of any or all of such other rights, powers or remedies.
The Mortgagee shall not exercise or seek to exercise, or accept the performance
or acquiescence by the Mortgagor under, any remedy provided for the benefit of
the Mortgagee in any Security Document other than this Mortgage, until the
Mortgagee has exhausted its remedies under this Mortgage, nor shall the
Mortgagee take any action after an Event of Default, including seeking interim
relief or partial recovery from the Property, the taking of which would restrict
or impair the ability of the Mortgagee to proceed, or which would preclude the
Mortgagee from proceeding, against the entire Premises for the benefit of the
Holders.
36. APPLICABLE LAW. (a) All rights, powers and remedies provided
herein may be exercised only to the extent that the exercise thereof, including
those which do not require the giving of notice, does not violate any applicable
law, and are intended to be limited to the extent necessary so that they will
not render this Mortgage invalid, unenforceable or not entitled to be recorded,
registered or filed under any applicable law. All waivers, consents, confessions
and releases provided for in this Mortgage are effective only to the extent
permitted by applicable law.
(b) This Mortgage was negotiated and made by Mortgagor in the State
of New York, and the proceeds of the loans secured hereby were disbursed from
New York, which State the parties agree has a substantial relationship to the
parties and to the underlying transaction embodied hereby. In all respects, the
law of the State of New York shall govern the validity of and enforceability of
this Mortgage, except that the creation, validity, perfection, priority and
enforceability of the lien and security interest created by this Mortgage, all
warranties of title contained herein with respect to the Properties and all
provisions hereof relating to the realization of the security covered by this
Mortgage shall be governed by the laws of the State in which each of the
Properties that is
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the subject of dispute is located (as further described in Articles 58, 59, 60,
61, 62, 63 and 64 and the Mortgagor and the Mortgagee will submit to
jurisdiction and the laying of venue for any suit on this Mortgage in such
State).
37. NO WAIVER. No failure by the Mortgagee to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof shall constitute a waiver of any such term or
of any such breach. No waiver of any breach shall affect or alter this Mortgage,
which shall continue in full force and effect, or shall affect or alter the
rights of the Mortgagee with respect to any other then existing or subsequent
breach. Neither the Mortgagor nor any other person now or hereafter obligated
for payment of all or any part of the sums now or hereafter secured by this
Mortgage shall be relieved of such obligation by reason of the failure of the
Mortgagee to comply with any request of the Mortgagor or of any other person so
obligated, to take action to foreclose on this Mortgage or otherwise to enforce
any provisions of this Mortgage or the Mortgage Notes or by reason of the
release, regardless of consideration, of all or any part of the security held
for the indebtedness secured by this Mortgage, or by reason of any agreement or
stipulation between any subsequent owner of any of the Properties and the
Mortgagee extending the time of payment or modifying the terms of this Mortgage
or the Mortgage Notes without first having obtained the consent of the Mortgagor
or such other persons; and in the latter event the Mortgagor and all such other
persons shall continue to be liable, subject to Article 38, to make payments
according to the terms of any such extension or modification agreement, unless
expressly released and discharged in writing by the Mortgagee.
38. OBLIGATIONS ARE WITHOUT RECOURSE. (a) Anything contained in this
Mortgage or in the Mortgage Notes or the other Mortgage Security Documents to
the contrary notwithstanding (except for the liability of the Mortgagor for
fraud, intentional misrepresentation, misapplication of proceeds or rentals as
provided below), the Mortgagee's recourse for the satisfaction of the
indebtedness due under the Mortgage Notes and for the payment and performance of
all of the obligations and liabilities of the Mortgagor under this Mortgage or
the other Mortgage Security Documents shall be limited solely to the Mortgagor's
interest in the Properties and the other Mortgage Collateral, and none of the
Mortgagor nor any of its respective successors or assigns, nor any partner
(general or limited, or a subpartner at any level), member,
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tenant in common, officer, director, trustee, beneficiary, shareholder,
controlling person, employee, agent or Affiliate of any of the foregoing
(collectively, "Exculpated Persons") shall be liable in any other respect for
(i) the payment of the principal of, or interest or Make-Whole Obligations, if
any, on the Mortgage Notes, or (ii) the payment of any other amount due under
the Mortgage Notes, this Mortgage or the other Mortgage Security Documents, or
(iii) for damages for the breach of, or any costs or expenses associated with
the performance of or failure to perform, any of the covenants, obligations,
representations and warranties or indemnifications contained herein or in the
Mortgage Notes, this Mortgage or the other Mortgage Security Documents (other
than as expressly provided with respect to the Mortgagor in the Environmental
Indemnity; provided, however, that the foregoing limitation of the Mortgagee's
recourse as it applies to the Mortgagor shall not apply to any liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including all reasonable attorneys' fees and expenses) imposed upon or incurred
by or asserted against the Mortgagee, the Trustee, the Master Servicer, the
Special Servicer or the Holders by reason of the occurrence or existence of any
of following prior to the payment in full of the Mortgage Notes: (i) fraud
committed by the Mortgagor; (ii) an intentional and material misrepresentation
by the Mortgagor; (iii) the application of any Proceeds received by the
Mortgagor after a casualty or condemnation in a manner other than that required
by the terms of this Mortgage and the Cash Management Agreement; or, (iv) after
an Event of Default shall have occurred which shall be continuing, the
application by the Mortgagor of the rentals under any Lease or of any security
deposit under any Lease in a manner other than that required by the terms of
this Mortgage and the Cash Management Agreement; provided, however, that in
either case (i) or (ii) the Mortgagee's recourse to the Mortgagor shall be
limited to the damages resulting from such fraud or intentional
misrepresentation and in either case (iii) or (iv) the Mortgagee's recourse to
the Mortgagor shall be limited to the amount of such misapplied Proceeds or
rentals by Mortgagor and no other property or assets of Mortgagor, or of any of
Mortgagor's directors, officers, employees or shareholders, shall be subject to
any lien, levy, execution, or other enforcement procedure in connection with
such recourse. The Mortgagee, by its acceptance of the Mortgage Notes, agrees
that, in the event it pursues any remedies available to it hereunder or under
the Mortgage Notes or the other Mortgage Security Documents, the Mortgagee shall
not have recourse to the Exculpated Persons for any deficiency, loss or claim
for damages resulting therefrom, and none of
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the property or assets of any of the Exculpated Persons other than the
Properties shall be subject to levy, execution, garnishment, attachment,
foreclosure or other enforcement procedure for the satisfaction of the remedies
of the Mortgagee hereunder, but nothing contained herein shall (i) constitute a
waiver of any indebtedness evidenced by the Mortgage Notes or secured by this
Mortgage or the other Mortgage Security Documents, or (ii) be taken to prevent
recourse to or the enforcement of remedies against any of the Properties or any
other Mortgage Collateral in respect of any and all liabilities, obligations and
undertakings contained herein or in the Mortgage Notes. In addition, each
document which is executed by Mortgagor and/or any Exculpated Person pursuant to
or in connection with this Mortgage, the Mortgage Notes and/or the other
Mortgage Security Documents shall either expressly incorporate, or shall be
deemed to incorporate, the non-recourse provisions contained in this Article
38. For purposes of this Section 38(a), each and every reference to "Mortgagee"
(including the possessory thereof) shall mean Mortgagee, its successors and
assigns, and all persons and/or entities whose rights under this document arise
by, through or under Mortgagee, its successors and/or assigns.
In addition, and notwithstanding anything to the contrary in the
Mortgage Notes, this Mortgage, the Indenture or any other Security Document,
with respect to each Mortgagor, the total liability of that Mortgagor under the
Mortgage Notes, this Mortgage, and each other Mortgage Security Document shall
not
(i) at any time during the period from the date hereof to a date one
year and a day after the date hereof exceed the sum of (A) the Allocated
Amount for the Property identified on Exhibit A as being owned by such
Mortgagor plus (B) such Mortgagor's Net Worth on the date hereof, less (C)
$1,000, and
(ii) at any time after the period referred to in clause (i) above
exceed the sum of (A) the Allocated Amount for the Property identified on
Exhibit A as being owned by such Mortgagor plus (B) the greater of such
Mortgagor's Net Worth on the date hereof and such Mortgagor's Net Worth on
the date such determination is being made (it being understood that for
purposes of determining such Mortgagor's Net Worth on any date subsequent
to the date that is one year and a day after the date hereof, such
Mortgagor's liabilities shall only include liabilities that are permitted
under the
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terms of the Mortgage Security Documents), less (C) $1,000.
For purposes of the foregoing, "Net Worth" of a Mortgagor shall mean
the positive net worth of such Mortgagor (net of the Allocated Amount for
the Property identified on Exhibit A as being owned by such Mortgagor),
based on the sum of (x) the fair saleable value of its assets (determined
after giving effect to distributions, if any, by such Mortgagor to such
Mortgagor's partners, members or other equity investors, as applicable, of
the proceeds of the Mortgage Loan received by such Mortgagor on account of
the issuance of the Mortgage Notes and determined in accordance with
applicable laws governing determinations of the insolvency of debtors),
less (y) its liabilities (determined as in clause (x) above), including a
portion of the Mortgage Loan equal to the Allocated Amount for the
Property identified on Exhibit A as being owned by such Mortgagor, but
excluding amounts payable under the Mortgage Notes, this Mortgage, the
Indenture and any other Mortgage Security Documents in excess of such
Allocated Amount.
Each document that is executed by any Mortgagor and/or any other Exculpated
Persons pursuant to or in connection with this Mortgage and/or any other
Mortgage Security Documents shall either expressly incorporate, or shall be
deemed to incorporate, the provisions contained in this Article 38.
(b) It is expressly understood and agreed that nothing herein nor
any act of the Mortgagor, nor any document or instrument executed by the
Mortgagor in connection herewith shall create or impose on the Mortgagor or any
other Exculpated Persons any personal liability, other than to the extent
expressly provided with respect to the Mortgagor in the Environmental Indemnity;
and this Mortgage is executed by the Mortgagor with the express understanding
and agreement that nothing herein contained or under any of the Mortgage
Security Documents (including the Indenture and the Mortgage Notes) shall be
construed as creating any liability on the part of the Mortgagor or any other
Exculpated Persons personally, other than to the extent expressly provided with
respect to the Mortgagor in the Environmental Indemnity; to pay the principal
obligation or any interest that may accrue thereon or any indebtedness that may
accrue hereunder or under any of the Mortgage Security Documents (including the
Indenture and the Mortgage Notes) or to perform any covenant, either express or
implied, herein contained, and that every Person now or
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hereafter claiming any right or security hereunder shall look solely to the
Properties and the other Mortgage Collateral for the payment thereof and the
enforcement of any lien hereby created or the enforcement of any covenant,
condition or agreement contained herein or under any of the Mortgage Security
Documents (including the Indenture and the Mortgage Notes).
(c) The provisions of Section 38(a) and (b) hereof shall not (i)
constitute a waiver, release or impairment of any obligation of the Mortgagor
(without recourse to its partners, members or other equity investors) evidenced
or secured by the Mortgage Notes, this Mortgage or any other Mortgage Security
Document to the extent that it would impair the Mortgagee's right or ability to
declare an Event of Default or accelerate the maturity of the Mortgage Notes,
(ii) constitute a waiver of the Mortgagee's right under Section 1111(b) of the
United States Bankruptcy Code to claim against the Mortgagor (without recourse
to its partners, members or other equity investors, other than to the extent
expressly provided with respect to the Mortgagor in the Environmental Indemnity)
the full amount of the indebtedness evidenced by the Mortgage Notes or incurred
pursuant to any of the other Mortgage Security Documents or (iii) impair the
right of the Mortgagee to obtain a deficiency judgment (without recourse to any
partner, member or other equity investor in the Mortgagor, other than to the
extent expressly provided with respect to the Mortgagor in the Environmental
Indemnity) in any action or proceeding in order to preserve its rights and
remedies against the Properties and the other Mortgage Collateral as to which a
lien is granted hereunder, including, without limitation, foreclosure,
nonjudicial foreclosure or the exercise of a power of sale, under this Mortgage
or the other Mortgage Collateral.
39. STAMP AND OTHER TAXES. Subject to the provisions of Article 12
relating to permitted contests, the Mortgagor will pay any United States
documentary stamp taxes, with interest and fines and penalties, if any, and any
city, county or state mortgage recording taxes, with interest and fines and
penalties, if any, that may hereafter be levied, imposed or assessed under or
upon or by reason of this Mortgage or any instrument or transaction affecting or
relating to either thereof. In the event of the Mortgagor's default thereof, the
Mortgagee may advance the same and the amount so advanced shall be due and
payable by the Mortgagor to the Mortgagee within ten days after demand therefor,
together with interest thereon at the Default Rate. The Mortgagor shall not be
obligated to pay any taxes which may be imposed upon the income of the
Mortgagee.
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40. FURTHER ASSURANCES. The Mortgagor, at its own expense, will
execute, acknowledge and deliver all such instruments and take all such actions
as the Mortgagee from time to time reasonably may request or as may be
reasonably necessary or proper for the better assuring to the Mortgagee of the
properties and rights now or hereafter subject to the lien hereof or intended so
to be.
41. ESTOPPEL CERTIFICATES. The Mortgagor and the Mortgagee each
will, from time to time, upon twenty days' prior written request by the other
party, execute, acknowledge and deliver to the requesting party, in the case of
a request to the Mortgagee, an Officers' Certificate signed by an authorized
officer or officers and in the case of a request to the Mortgagor, an Officers'
Certificate from the Mortgagor, stating that this Mortgage is unmodified and in
full force and effect (or, if there have been modifications, that this Mortgage
is in full force and effect as modified and setting forth such modifications)
and stating the interest accrued to date on the aggregate principal amount of
the Mortgage Notes. The estoppel certificate from the Mortgagee shall also state
either that, to the best knowledge of the signer of such certificate and based
on no independent investigation, no Default or Event of Default exists hereunder
or, if any Default or Event of Default shall exist hereunder, specify each
Default or Event of Default of which the Mortgagee has actual knowledge.
42. ADDITIONAL SECURITY. Without notice to or consent of the
Mortgagor and without impairment of the lien and rights created by this
Mortgage, the Mortgagee may accept (but the Mortgagor shall not be obligated to
furnish) from the Mortgagor or from any other Person or Persons, additional
security for the Mortgage Notes. Neither the giving of this Mortgage nor the
acceptance of any such additional security shall prevent the Mortgagee from
resorting, first, to such additional security, and, second, to the security
created by this Mortgage without affecting the Mortgagee's interest under this
Mortgage, subject, however, to the provisions of Article 35 of this Mortgage.
43. FINANCING STATEMENT. This Mortgage shall be deemed to be and may
be enforced from time to time as a mortgage, chattel mortgage, assignment,
contract, security agreement, financing statement, or lien on machinery situated
on the Premises, and from time to time as any one or more thereof, and shall
constitute a "fixture filing" for the purposes of Article 9 of the Uniform
Commercial Code as enacted in the State where each Property is located.
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44. RELEASE; SUBSTITUTE PROPERTY. (a) (i) If the Mortgagor shall pay
the principal of and interest on the Mortgage Notes in full at Maturity and all
other sums payable to the Mortgagee hereunder by the Mortgagor or secured hereby
or by the other Mortgage Security Documents, then this Mortgage and all the
other Mortgage Security Documents shall be discharged and satisfied or assigned
(to the Mortgagor or to any other Person at the Mortgagor's direction), at the
Mortgagor's option, without warranty, other than for the acts of the Mortgagee,
at the expense of the Mortgagor upon its written request. Concurrently with such
release and satisfaction or assignment of this Mortgage and all the other
Mortgage Security Documents, the Mortgagee will return to the Mortgagor all
title and other insurance policies relating to the Properties and, on the
written request and at the expense of the Mortgagor, will execute and deliver
such proper instruments of release (including appropriate UCC-3 termination
statements) as may reasonably be requested by the Mortgagor to evidence such
release and satisfaction or assignment, and any such instrument, when duly
executed by the Mortgagee and duly recorded in the places where this Mortgage
and each other Mortgage Security Document is recorded, shall conclusively
evidence the release and satisfaction or assignment of this Mortgage and the
other Mortgage Security Documents and (x) if the Mortgagor has elected to assign
this Mortgage, the Mortgagee shall assign the Mortgage Notes to the Mortgagor or
its designee and (y) if the Mortgagor has not elected to assign this Mortgage,
the Mortgagee shall cancel the Mortgage Notes and return them to the Mortgagor.
(ii) Except as otherwise provided in Article 15 or 16, if prior to
the Maturity Date the Mortgagor shall pay 125% of the Allocated Amount of a
Property (each, a "Release Property") together with (x) interest on such amount
to the date of payment and if such date is not a Payment Date, through the next
Payment Date, (y) the Make-Whole Payment, if any, and (z) all other sums then
payable to the Mortgagee hereunder by the Mortgagor, then Mortgagor shall
release the lien of this Mortgage with respect to the Release Property (or, at
the option of Mortgagor, split the Mortgage into two Mortgages (one of which
would be a lien on the Release Property and would secure 125% of the Allocated
Amount of the Release Property (the "Split Mortgage") and the other of which
would be a lien on the other Properties and would secure the remaining
indebtedness evidenced by the Mortgage Notes) and split the Mortgage Notes (so
that a new mortgage note is created evidencing 125% of the Allocated Amount of
the Release Property (the "Split Note") and the Mortgage Notes are appropriately
reduced), and assign the Split
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Mortgage and the Split Note to the Mortgagor or its designee without warranty,
other than for the acts of the Mortgagee, at the expense of the Mortgagor) and
release the lien of the other Mortgage Security Documents relating to such
Property. For purposes of this Section 44, the term "Make-Whole Payment" shall
mean:
(1) if pursuant to the Indenture and in connection with the release
of the lien of the Mortgage from the Release Property, Vornado Finance is
required to defease Notes in a principal amount equal to the principal
amount of Mortgage Notes being paid under this Section 44(a)(ii), an
amount equal to the excess, if any of (x) the amount required to be paid
by Vornado Finance to accomplish such defeasance over (y) the amount of
principal and interest paid by the Mortgagor under this Section 44(a)(ii)
in order to release such Property; or
(2) if clause (1) does not apply, zero.
Concurrently with such release and satisfaction or assignment, the Mortgagee
will return to the Mortgagor all title and other insurance policies relating to
such Property and, on the written request and at the expense of the Mortgagor,
will execute and deliver such proper instruments of release (including
appropriate UCC-3 termination statements) as may reasonably be requested by the
Mortgagor to evidence such release and satisfaction or assignment. The Mortgagee
shall also pay over to the Mortgagor that is the owner of such Property all
amounts held in any Reserve Accounts that relate to such Property.
Notwithstanding the foregoing, in the event that the Mortgagor
desires to obtain a release from the lien of this Mortgage of, all or any one of
the Properties described in Exhibit A hereto, the Mortgagee shall consent to the
release of the Release Property or Properties from the lien of this Mortgage
provided that (i) the Mortgagor shall have given at least 15 days' prior written
notice of the date proposed for such release (the "Release Date"), (ii) no Event
of Default shall have occurred and be continuing as of the Release Date, unless
the proposed release, by itself, will eliminate the basis of all outstanding
Events of Default, in which case the requirement of this clause (ii) will be
deemed to be satisfied, (iii) in no event would such release result in a
decrease in the Debt Service Coverage Ratio below the greater of (A) the Debt
Service Coverage Ratio as of the most recent Debt Service Coverage Ratio
Calculation Date immediately preceding such Release and (B)
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1.56:1, (iv) Vornado Finance shall simultaneously with such Release defease or,
if permitted by the terms of the Indenture, redeem, a principal amount of Notes
that is equal to the principal amount of Mortgage Notes being prepaid in
connection with such Release pursuant to the terms of the Indenture, and (v) the
Mortgagor shall have delivered to the Mortgagee an Officer's Certificate
confirming the matters referred to in clauses (ii), (iii) and (v) above. In
determining whether the Debt Service Coverage Ratio test is satisfied for
purposes of this Section 44(a)(ii), Net Cash Flow shall be calculated with
proper adjustment to both Gross Revenue and Operating Expense to account for the
proposed release of the Release Property.
Any prepayment made pursuant to this Section 44(a)(ii) shall be
applied to the Mortgage Notes in the following order of priority: first, to the
Class A-1 Mortgage Note until the Class A-1 Mortgage Note has been paid in full;
second, to the Class A-2 Mortgage Note until the Class A-2 Mortgage Note has
been paid in full; third, to the Class B Mortgage Note until the Class B
Mortgage Note has been paid in full; fourth, to the Class C Mortgage Note until
the Class C Mortgage Note has been paid in full; fifth, to the Class D Mortgage
Note until the Class D Mortgage Note has been paid in full; sixth, to the Class
E Mortgage Note until the Class E Mortgage Note has been paid in full; and
seventh, to the Class F Mortgage Note until the Class F Mortgage Note has been
paid in full.
(b) Intentionally Omitted.
(c) Intentionally Omitted.
(d) Intentionally Omitted.
(e) At any time and from time to time, the Mortgagor may, subject to
the conditions in this Section 44(e), substitute a property (a "Substitute
Property") for any individual existing Property (a "Replaced Property") provided
that the Allocated Amount of the Replaced Property together with all the
Allocated Amount of all previous Replaced Properties, does not exceed
twenty-five percent (25%) of the original principal amount of the Mortgage Loan.
From and after the substitution of a Substitute Property in accordance herewith,
such Substitute Property shall thereafter be deemed a Property under this
Mortgage, and, for the purpose of determining the Allocated Amount, the
Allocated Amount of the Replaced Property shall be the Allocated Amount of the
Substitute Property. In the event of a substitution, the Mortgage Notes shall
remain in full
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force and effect, and all necessary action shall be taken so that this Mortgage
shall encumber the Substitute Property. Concurrently with the completion of all
steps necessary to substitute a Substitute Property as provided herein, the
Mortgagee shall take or cause to be taken all actions as are necessary or
appropriate to release and discharge all liens granted to the Mortgagee and
affecting the Replaced Property.
To qualify as a Substitute Property, the property must, at the time
of substitution:
(i) be a property as to which the Mortgagor will hold
marketable fee or leasehold title free and clear of any lien or other
encumbrance except for easements or restrictive covenants which do not
have an adverse effect on the utility or value of such property;
(ii) be free and clear, as shall be demonstrated in an
environmental report issued by a recognized environmental consultant and
in form and substance acceptable to the Mortgagee, of Hazardous Substances
except for nominal amounts of any such substances used in the normal and
customary trade or business of the Mortgagor or commonly used in the
operation of properties similar to the Properties (in either case in
compliance with all environmental laws);
(iii) be in good repair and condition, as shall be certified
by an Officer's Certificate of Mortgagor;
(iv) be in compliance, in all material respects, with Legal
Requirements and Insurance Requirements, as shall be certified by an
Officer's Certificate of Mortgagor; and
(v) be owned by a Single Purpose Entity that is 100% directly
or indirectly owned by Vornado Finance.
In addition to the conditions in the preceding paragraph,
substitution of any Property pursuant to this Section 44(e) shall be subject to
the satisfaction of the following:
(i) delivery to the Mortgagee of written notice thereof from
the Mortgagor at least thirty (30) days prior to the date of the proposed
substitution (the "Substitution Date");
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(ii) delivery to the Mortgagee of an opinion of counsel
regarding the enforceability of, and perfection of the lien created by,
this Mortgage, as amended or supplemented, with respect to the Substitute
Property and confirming the conclusions reached in the non-consolidation
opinion of counsel delivered on the Closing Date after giving effect to
such substitution and the delivery to the Mortgagee of a Tax Opinion;
(iii) the Mortgagor shall be in material compliance with all
the terms and conditions of this Mortgage and the Mortgage Security
Documents, and no Event of Default shall have occurred and be continuing;
(iv) the representations and warranties set forth in this
Mortgage and the Mortgage Security Documents applicable to the Replaced
Property shall be true and correct as to the Substitute Property on the
Substitution Date in all material respects;
(v) delivery to the Mortgagee of a copy of the certificate of
incorporation, partnership agreement, limited liability company agreement
or other organizational document of the Mortgagor owning the Substitute
Property and all amendments thereto, certified as true, complete and
correct by an authorized officer; a certificate from the Secretary of
State or other applicable official or officer in the Mortgagor's state of
formation certifying that it is duly formed and in good standing (with tax
clearance, if applicable), certificates from the Secretary of State of the
state in which the Substitute Property is located, certifying as to the
applicable Mortgagor's good standing as a corporation, partnership or
limited liability company in such state (with tax clearance, if
applicable); delivery by an authorized officer of the Mortgagor of a
certificate, dated the Substitution Date and signed by its Secretary or
Assistant Secretary, certifying the names of the officers authorized to
execute and deliver this Mortgage and any other necessary agreements,
instruments or documents to which the Mortgagor is a party, together with
the original, not photocopied signatures of such officers;
(vi) the Substitute Property shall be devoted principally to
use as a shopping center of at least the same general character and
quality as the Replaced Property;
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(vii) a Rating Agency Confirmation has been obtained;
(viii) delivery to the Mortgagee in form and substance
satisfactory to the Mortgagee, of originals of the following:
(A) a signature page of this Mortgage, as amended or
supplemented thereby or otherwise, duly executed and
acknowledged by the Mortgagor owning the Substitute Property
and each of the Mortgage Notes;
(B) an assignment of leases and rents with respect to
the Substitute Property, duly executed and acknowledged by the
applicable Mortgagor, assigning and transferring to the
Mortgagee a first priority security interest in all rents,
revenues, issues, profits and proceeds arising under the
Leases relating to the Substitute Property;
(C) a title insurance policy issued by a title insurance
company acceptable to the Mortgagee in the amount of the
Allocated Amount for the Substitute Property containing such
affirmative coverage acceptable to the Mortgagee insuring that
this Mortgage, as amended or supplemented, creates a valid
lien on the applicable Mortgagor's fee or leasehold title to
the Substitute Property subject to the Permitted Exceptions,
and insuring the perfected interest of the Mortgagee, in and
to the Substitute Mortgage and assigned to the Mortgagee.
(D) a current ALTA as-built land title survey (or form
otherwise acceptable to the Mortgagee) and a certificate from
a professional licensed land surveyor with respect to such
Substitute Property, certified to the title insurance
companies participating in the title policies and the
Mortgagee, and showing the location, dimensions and area of
each parcel of the Substitute Property, including all existing
buildings and improvements, utilities, parking areas and
spaces, internal streets, if any, external streets,
rights-of-way, as well as any easements, setback violations or
encroachments on such Substitute Property and identifying each
item with its corresponding exception, if any, in the
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title policy relating thereto and otherwise reasonably
acceptable to the Mortgagee. Each survey shall contain the
original signature and seal of the surveyor and any additional
matter required by the title companies. In addition, the
Mortgagor shall provide with respect to each Substitute
Property a certificate of a professional land surveyor to the
effect that the Improvements located upon such Substitute
Property are not located in a flood plain area, of, if such
Substitute Property is in a flood plain area, the Mortgagor
shall deliver on the Closing Date evidence of flood insurance;
(E) Uniform Commercial Code financing statements (Form
UCC-1) (or other forms required in any jurisdiction), duly
executed by the Mortgagor, covering all fixtures, Equipment
and other personal property, collateral and all proceeds
thereof, naming the applicable Mortgagor as debtor and the
Mortgagee as secured party;
(F) insurance certificates issued by insurance companies
reasonably satisfactory to Mortgagee evidencing the insurance
coverage required under Section 13;
(G) a signature page of each of the Environmental
Indemnity and the Cash Management Agreement, as amended or
supplemented thereby or otherwise, duly executed and
acknowledged by the Mortgagor owning the Substituted Property;
(H) a Management Subordination Agreement with respect to
the Substituted Property duly executed by the owner and
Manager of the Substituted Property; and
(I) payment of all costs and expenses anticipated to be
incurred in connection with such substitution (including,
without limitation, reimbursement of the Mortgagee's
reasonable costs, title premiums, mortgage recording taxes,
transfer taxes, recording fees, and reasonable attorneys' fees
and disbursements actually incurred);
(ix) the Substitute Property shall have a Net Cash Flow for
the twelve (12) month period prior to the substitution of not less than
the Net Cash Flow for the same period of the Replaced Property; and
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(x) the Debt Service Coverage Ratio after such substitution is
equal to or greater than the Debt Service Coverage Ratio at the Closing
Date.
45. CHANGES IN LAW REGARDING TAXATION. In the event of the passage,
after the date of this Mortgage, of any law of any of the states in which any
Property is located changing in any way the laws for the taxation of mortgages
or debts secured by mortgages for state or local purposes or the manner of the
collection of any such taxes, and imposing a tax, either directly or indirectly,
on this Mortgage or the Mortgage Notes and resulting in an increase in the taxes
or other charges imposed on or incurred by the Mortgagee by reason of such
change in law, the Mortgagee may with the consent of Holders of a majority in
principal amount of the Outstanding Notes, at its option, upon 90 days' notice,
declare the aggregate Allocated Amount of all Properties in such State to be due
and payable (without premium or Make-Whole Obligation); provided, however, that
the Mortgagee shall not make such declaration and this Mortgage shall remain in
effect if, notwithstanding said law, (i) (x) the Mortgagor may lawfully pay such
taxes on behalf of the Mortgagee or (y) the Mortgagor and the Mortgagee may
lawfully, and do, enter into an enforceable agreement obligating the Mortgagor
to pay to the Mortgagee an amount equal to any increase in taxation or charges
imposed on or incurred by the Mortgagee by reason of such change in law (which
agreement shall thereupon become part of this Mortgage), and (ii) the Mortgagor
does in fact pay such taxes or such increases in taxation or charges, as
applicable; provided, however, that this Article 45 shall not apply to any taxes
which may arise in connection with the ownership or transfer of the Mortgage
Notes or the Notes or which may be imposed upon the income of the Mortgagee or
the Holders of the Notes.
Any prepayment made pursuant to this Section 45 shall be applied to
the Mortgage Notes in the following order of priority: first, to the Class A-1
Mortgage Note until the Class A-1 Mortgage Note has been paid in full; second,
to the Class A-2 Mortgage Note until the Class A-2 Mortgage Note has been paid
in full; third, to the Class B Mortgage Note until the Class B Mortgage Note has
been paid in full; fourth, to the Class C Mortgage Note until the Class C
Mortgage Note has been paid in full; fifth, to the Class D Mortgage Note until
the Class D Mortgage Note has been paid in full; sixth, to the Class E Mortgage
Note until the Class E Mortgage Note has been paid in full; and seventh, to the
Class F Mortgage Note until the Class F Mortgage Note has been paid in full.
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46. PREPAYMENTS. (a) Mandatory Payments of Principal.
(i) On each Payment Date commencing with the Payment Date in
April, 2000, the Mortgagee shall pay the Principal Installment Amount due
on such Payment Date subject to adjustment pursuant to Section 46(a)(ii)
below. All payments of Principal Installment Amounts shall be applied
first, to the Class A-1 Mortgage Note until the Class A-1 Mortgage Note
has been repaid in full; second, to the Class A-2 Mortgage Note until the
Class A-2 Mortgage Note has been repaid in full; third, to the Class B
Mortgage Note until the Class B Mortgage Note has been repaid in full;
fourth, to the Class C Mortgage Note until the Class C Mortgage Note has
been repaid in full; fifth, to the Class D Mortgage Note until the Class D
Mortgage Note has been repaid in full; sixth, to the Class E Mortgage Note
until the Class E Mortgage Note has been repaid in full; and finally, to
the Class F Mortgage Note until the Class F Mortgage Note has been repaid
in full.
(ii) If at any time any portion of the principal balance of
the Mortgage Notes is prepaid (other than in the manner described in
Section 46(a)(i) above), then the Principal Installment Amounts (and
Exhibit I hereto) shall be adjusted as follows:
(A) if such prepayment of the Mortgage Notes results in the
defeasance of a corresponding principal amount of Notes pursuant to
the terms of the Indenture, then the Principal Installment Amounts
set forth on Exhibit I hereto shall be revised to equal the
Principal Installment Amounts (as defined in the Indenture) set
forth on the Undefeased Amortization Schedule (as defined in and
calculated pursuant to Section 4.3(b) of the Indenture);
(B) if such prepayment of the Mortgage Notes results in the
redemption of a corresponding principal amount of Notes pursuant to
the terms of the Indenture that occurs prior to the time that any
Notes have been defeased pursuant to the Indenture, then the
Principal Installment Amounts set forth on Exhibit I hereto shall be
revised to equal the Principal Installment Amounts (as defined in
the Indenture) as calculated pursuant to the terms of Section
3.11(a)(ii) of the Indenture;
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(C) if such prepayment of the Mortgage Notes results in the
redemption of a corresponding principal amount of Notes pursuant to
the terms of the Indenture that occurs after the time that any Notes
have been defeased pursuant to the Indenture, then the Principal
Installment Amounts set forth on Exhibit I hereto shall be revised
to equal the Principal Installment Amounts (as defined in the
Indenture) set forth on the Undefeased Amortization Schedule (as
defined in the Indenture) as recalculated pursuant to the terms of
Section 3.11(a)(ii) of the Indenture.
The proceeds applied to prepay the Mortgage Notes pursuant to this
Section 46(a) shall be ratably applied to reduce the Allocated Amounts of each
Property based upon the respective Allocated Amounts of the Properties securing
the Mortgage Notes.
(b) Voluntary Prepayments. The Mortgage Notes may be prepaid by the
Mortgagor at any time, in whole or in part, at the election of the Mortgagor
(and thereby reduce the principal amount secured by this Mortgage) upon payment
to the Mortgagee of
(i) the principal amount of the Mortgage Notes to be prepaid;
(ii) interest on such amount to the date of prepayment and if
such date is not an Payment Date, through the next Payment Date;
(iii) the Make-Whole Payment, if any; and
(iv) all other sums then payable to the Mortgagee hereunder by
the Mortgagor (including all expenses of the Mortgagee in connection with
such prepayment);
provided, however, that simultaneously with such prepayment, Vornado Finance
shall defease or, if permitted by the terms of the Indenture, redeem a principal
amount of Notes that is equal to the principal amount of Mortgage Notes being
prepaid pursuant to the terms of the Indenture.
For purposes of this Section 46(b), the term "Make-Whole Payment"
shall mean:
(1) if pursuant to the Indenture and in connection with such
prepayment of the Mortgage Notes,
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Vornado Finance is required to defease Notes in a principal amount equal
to the principal amount of the Mortgage Notes being paid under this
Section 46(b), an amount equal to the excess, if any of (x) the amount
required to be paid by Vornado Finance to accomplish such defeasance over
(y) the amount of principal and interest paid by the Mortgagor under this
Section 46(b)(ii) in connection with such prepayment of the Mortgage
Notes; or
(2) if clause (1) does not apply, zero.
The proceeds applied to prepay the Mortgage Notes shall be deemed to
be first applied to satisfy the Make-Whole Payment, if any, applicable to such
prepayment and then shall be ratably applied to reduce the Allocated Amounts of
each Property based upon the respective Allocated Amounts of the Properties
securing the Mortgage Notes unless (i) the Mortgagor elects to release one or
more of the Properties in connection with such prepayment in accordance with
Section 44 or (ii) such prepayment is made in respect of a sale of Expansion
Space at a particular Property, in which case the Allocated Amount of such
Property shall be reduced.
Any prepayment made pursuant to this Section 46(b) shall be applied
to the Mortgage Notes in the following order of priority: first, to the Class
A-1 Mortgage Note until the Class A-1 Mortgage Note has been paid in full;
second, to the Class A-2 Mortgage Note until the Class A-2 Mortgage Note has
been paid in full; third, to the Class B Mortgage Note until the Class B
Mortgage Note has been paid in full; fourth, to the Class C Mortgage Note until
the Class C Mortgage Note has been paid in full; fifth, to the Class D Mortgage
Note until the Class D Mortgage Note has been paid in full; sixth, to the Class
E Mortgage Note until the Class E Mortgage Note has been paid in full; and
seventh, to the Class F Mortgage Note until the Class F Mortgage Note has been
paid in full.
The Mortgagor shall give notice of prepayment of the Mortgage Notes
pursuant to this Section 46 to the Mortgagee not less than 15 days nor more than
45 days prior to the date fixed for prepayment, specifying (i) the date fixed
for prepayment, (ii) the aggregate principal amount of the Mortgage Notes to be
prepaid on such date and (iii) the amount of the Make-Whole Payment, if any, to
the extent such amount can be calculated as of the date of such notice.
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(c) Other Prepayments. The Mortgage Notes may or shall be prepaid
without any Make-Whole Obligation upon the occurrence of certain events of
damage to or destruction of or condemnation of any of the Properties securing
the Mortgage Notes or changes in law regarding taxation of mortgages generally
as more fully set forth in Articles 15, 16 and 45 of this Mortgage.
47. CONFIDENTIALITY. The Mortgagee agrees to use its best efforts to
keep confidential all financial statements and other information obtained by it
from the Mortgagor pursuant to this Mortgage and to not disclose such
information to any other Person except (i) to the Holders pursuant to the terms
of this Mortgage and the Indenture (subject to the confidentiality restrictions
applicable to the Mortgagee and the Holders) and to the Rating Agencies (and the
Rating Agencies may reasonably disclose such information in connection with
their initial rating or their ongoing rating surveillance of the Securities),
(ii) to the extent required by any law, or (iii) to the extent that such
information is public when received by the Mortgagee or becomes public
thereafter due to the action or omission of any party other than the Mortgagee
and the Holders.
48. SECURITY AGREEMENT, ETC.
48.1. Grant of Security. This Mortgage is a security agreement
within the meaning of the Uniform Commercial Code of the state where each
Property is located with respect to all personal property now or hereafter
located at the Properties and owned by the Mortgagor as to which the creation
and perfection of a security interest are subject to such Uniform Commercial
Code (the "Personal Property"), and is also a mortgage as to those portions of
the Properties that are classified as real property. The Mortgagor hereby grants
to the Mortgagee a security interest in and to the Personal Property to secure
the payment of the Mortgage Notes. Any completely executed counterpart of this
instrument may be filed as a mortgage on real property or fixtures, or as a
security agreement or financing statement or as both. The address of the
Mortgagor, as debtor, and the address of the Mortgagee, as secured party, are
shown on page 1 of this Mortgage.
48.2. Financing Statements. The Mortgagor shall cause all financing
and continuation statements and other instruments with respect to the Personal
Property at all times to be kept recorded, filed or registered in such manner
and in such places as may be required by law fully to evidence, perfect and
secure the interests of the Mortgagee
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in the Personal Property, and shall pay all filing fees in connection therewith.
The Mortgagor hereby appoints the Mortgagee as its attorney-in-fact to perform
the obligations of the Mortgagor under this Section 48.2, at the expense of the
Mortgagor, in the event it fails to do so.
48.3. Multiple Remedies. If an Event of Default shall have occurred
and be continuing, the Mortgagee shall have the option of proceeding, to the
extent permitted under applicable law, as to both real and personal property in
accordance with its rights and remedies in respect of the real property, as an
alternative to proceeding in accordance with the default provisions of the
Uniform Commercial Code; and the Mortgagee may exercise any and all of the other
rights of a secured party under such Uniform Commercial Code.
48.4. Waiver of Rights. To the extent permitted under applicable
law, the Mortgagor waives all rights of redemption after foreclosure and all
other rights and remedies of a debtor thereunder and all formalities prescribed
by law relative to the sale or disposition of the Personal Property after the
occurrence and during the continuance of an Event of Default hereunder and all
other rights and remedies of the Mortgagor with respect thereto. In exercising
its right to take possession of the Personal Property upon the occurrence and
during the continuance of an Event of Default hereunder, the Mortgagee,
personally or by its agents or attorneys, and subject to the rights of any
Tenant, may enter upon any part of the Premises without being guilty of trespass
or any wrongdoing, and without liability for damages thereby occasioned except
for its gross negligence or willful misconduct. To the extent any notice of sale
or other disposition of the Personal Property is required and cannot be waived,
in the event the Mortgagee elects to proceed with respect to the Personal
Property separately from the real property, the Mortgagee shall give at least
ten Business Days' notice of the sale of the Personal Property, subject,
however, to the provisions of Article 35 hereof in each case. All recitals in
any instrument of assignment or any other instrument executed by the Mortgagee
incident to any sale, transfer, assignment, lease or other disposition or
utilization of the Personal Property or any part thereof shall be full proof of
the matter stated therein and no other proof shall be required to establish full
legal propriety of the sale or other action taken by the Mortgagee or of any
fact or condition incident thereto, all of which shall be deemed conclusively to
have been performed or to have occurred.
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48.5. Expenses of Disposition of the Properties. The Mortgagor shall
reimburse the Mortgagee, within thirty Business Days after demand, for all
reasonable expenses of retaking, holding, preparing for sale, lease or other use
or disposition, selling, leasing or otherwise using or disposing of the Personal
Property which are incurred, including all reasonable attorneys' fees and
expenses, and all such expenses shall be added to the Mortgagor's obligations to
the Mortgagee and shall be secured hereby.
49. EXPENSES OF THE MORTGAGEE.
(a) Subject to the provisions of Article 38, if any action, suit or
other proceeding affecting any of the Properties or any part thereof be
commenced, in which action, suit or proceeding the Mortgagee is made a party or
participates or in which the right to use such Property or any part thereof is
threatened, or in which it becomes necessary in the reasonable judgment of the
Mortgagee to defend or uphold the interest of the Mortgagee under this Mortgage
(including any action, suit or proceeding to establish or uphold the compliance
of the Improvements with any Legal Requirement), then all amounts reasonably
paid or incurred by the Mortgagee for the expense of any such action, suit or
other proceeding or to protect its rights therein (whether or not it is made or
becomes a party thereto) or otherwise to enforce or defend the rights and lien
created by this Mortgage (including all reasonable attorneys' fees and
expenses), shall be paid by the Mortgagor upon demand and, if not paid within
thirty days of the giving of such demand, shall bear interest at the Default
Rate from the date of the payment or incurring thereof, and any such amount and
the interest thereon shall be a lien on the Properties, prior to any right, or
right to, interest in, or claim upon the Properties attaching or accruing
subsequent to or otherwise subordinate to the lien of this Mortgage, and the
same shall be deemed to be indebtedness secured hereby, provided such right of
payment in the case of any enforcement of the rights of the Mortgagee under this
Mortgage shall only arise in the case where an Event of Default shall have
occurred and be continuing. All other reasonable amounts paid, advanced or
incurred by the Mortgagee after the occurrence and during the continuance of an
Event of Default in order to secure and protect the interest of the Mortgagee
under this Mortgage or the other Mortgage Security Documents shall be a like
lien on the Properties and be deemed to be part of the indebtedness secured
hereby.
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(b) Subject to the provisions of Article 38, in the event this
Mortgage or the Mortgage Notes is placed in the hands of counsel for collection
of any amount payable hereunder or thereunder or for the enforcement of any of
the provisions hereof or thereof and if an Event of Default shall have occurred
and shall then be continuing, the Mortgagor agrees to pay all reasonable costs
associated therewith incurred by the Mortgagee, either with or without the
institution of an action, suit or other proceeding, in addition to all
reasonable costs, disbursements and allowances provided by law, all such costs
to be paid upon demand, together with interest thereon at the Default Rate from
the date of notice or incurring thereof, and the same shall be deemed to be part
of the indebtedness secured hereby.
50. USURY. The Mortgagor and the Mortgagee intend to conform
strictly to applicable laws regarding usury. The Mortgagor and the Mortgagee
hereby stipulate and agree that it is the intention of Mortgagor and Mortgagee
that none of the terms and provisions contained in the Mortgage Notes or this
Mortgage shall ever be construed to create a contract to pay for the use,
forbearance, or detention of money an amount in excess of the maximum
nonusurious amount allowed by applicable law. If the Mortgage Notes or this
Mortgage or the transactions contemplated by any of them would be otherwise
usurious under applicable law, then notwithstanding anything to the contrary in
any or all of the Mortgage Notes or this Mortgage, the Mortgagor, and the
Mortgagee hereby agree as follows: (i) for any applicable period of time
specified by any applicable law, interest under the Mortgage Security Documents
shall never exceed the maximum nonusurious amount allowed by such law; and (ii)
if the Mortgage Notes shall be accelerated in whole or in part for any reason,
or if any required or permitted prepayment occurs hereunder, then for any
applicable period of time specified by any applicable law, interest shall never
include more than the maximum nonusurious amount allowed by each such law, and
in either such case any excess interest (if any) otherwise provided for under
any or all of the Mortgage Security Documents shall automatically be applied by
the Mortgagee in the following order: (1) to interest properly charged under the
Mortgage Notes and this Mortgage; (2) to principal properly charged under the
Mortgage Notes and this Mortgage (without premium); (3) if all sums due under
(1) and (2) have been or would thereby be paid in full, all other interest on
the Mortgage Notes shall be cancelled automatically as of and through the date
of such acceleration or prepayment; and (4) if any such excess interest has been
received by the Mortgagee, it shall be
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refunded by the Mortgagee to the Mortgagor. The Mortgagor shall never be
required to pay unearned interest under the Mortgage Notes and this Mortgage or
to pay interest under any or all of the Mortgage Security Documents in an amount
in excess of the maximum nonusurious amount allowed by applicable law, and the
provisions of this Article 50 shall control over all other provisions of any
Mortgage Security Document which may be in apparent conflict herewith.
51. MISCELLANEOUS. This Mortgage may be discharged or terminated
only by an instrument in writing signed by the party against which enforcement
of such discharge or termination is sought. In the event any time period or any
date provided in this Mortgage ends or falls on a day other than a Business Day,
then such time period shall be deemed to end, and such date shall be deemed to
fall, on the next succeeding Business Day, and performance herein may be made on
such Business Day, with the same force and effect as if made on such preceding
day. Subject to Article 38 hereof, this Mortgage shall be binding upon the
Mortgagor and the Mortgagee and each of the Mortgagor and the Mortgagee and
their respective successors and permitted assigns and all Persons claiming under
or through the Mortgagor and the Mortgagee or any such successors or permitted
assigns, and shall inure to the benefit of and be enforceable by the Mortgagor
and the Mortgagee and their respective successors and assigns. This Mortgage may
be executed in any number of counterparts, each of which shall be an original,
but all of which together shall constitute one and the same instrument.
52. NON-MERGER. It is the intention and agreement of the Mortgagor
and the Mortgagee that there shall be no merger of any leasehold estate in the
Premises of any of the Properties with the fee interest in the Premises of any
of the Properties or any other estate or interest in the Premises of any of the
Properties, and there shall be no merger of this Mortgage and any estate in the
Premises, by reason of the fact that the same Person may own or hold (a) any
leasehold estate in the Premises, and/or (b) this Mortgage, and/or (c) the fee
interest in the Premises or any other estate or interest in the Premises.
53. ASSIGNMENT OF RENTS AND MORTGAGOR'S INTEREST IN LEASES.
(a) During the term hereof, the Mortgagor presently hereby
irrevocably grants, sells, assigns, conveys, transfers and sets over to the
Mortgagee, subject to the terms and conditions hereof, any and all existing
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Leases and any other Leases which may hereafter be entered into by the
Mortgagor, and any modifications, renewals or extensions thereof, and all right,
title and interest of the Mortgagor thereunder and all rights under guarantees
therefor, including all claim, right and demand as lessor to receive, collect
and retain all rents and all other amounts due thereunder, any modification,
renewals or extensions thereof, including:
(i) the immediate and continuing right to receive and collect
all amounts payable by all Tenants, subtenants or other parties pursuant
to the Leases, Reciprocal Operating Agreements and the Stop & Shop
Guaranty, including, without limitation, (A) all rents, income, revenues,
issues, profits, insurance proceeds, condemnation awards and other
payments, tenders and security payable to or receivable by the Mortgagor
under the Leases, Reciprocal Operating Agreements and the Stop & Shop
Guaranty, or any other guaranty,(B) all damages or other amounts payable
in the event of any expiration or termination of any Lease, Reciprocal
Operating Agreement, the Stop & Shop Guaranty or any other guaranty,
pursuant to the terms thereof, by operation of law or otherwise, (C) any
indemnification against, or reimbursement for, sums paid and costs and
expenses incurred by the Mortgagor under any Lease, Reciprocal Operating
Agreement, the Stop & Shop Guaranty or any other guaranty, or otherwise,
(D) any award in the event of the bankruptcy of any Tenant or guarantor of
a Lease, Reciprocal Operating Agreement, the Stop & Shop Guaranty or any
other guaranty, and (E) all security deposits, other security instruments,
other deposits or prepayments with respect to any such Leases, Reciprocal
Operating Agreements, the Stop & Shop Guaranty or any other guaranties;
(ii) all claims, rights, powers, privileges and remedies of
the Mortgagor, whether provided for in any Lease, Reciprocal Operating
Agreement, the Stop & Shop Guaranty or any other guaranty, or arising by
statute or at law or in equity or otherwise, consequent on any failure on
the part of any Tenant to perform or comply with any term of any Lease,
Reciprocal Operating Agreement, the Stop & Shop Guaranty or any other
guaranty;
(iii) all right to take all action upon the happening of a
default under any Lease, Reciprocal Operating Agreement, the Stop & Shop
Guaranty or any other guaranty, as shall be permitted by any Lease,
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Reciprocal Operating Agreement, the Stop & Shop Guaranty or any other
guaranty, or by law, including, without limitation, the commencement,
conduct and consummation of proceedings at law or in equity; and
(iv) the full power and authority, in the name of the
Mortgagor, or otherwise, to enforce, collect, receive and make receipt for
any and all of the foregoing and to do any and all other acts and things
whatsoever which the Mortgagor, or any landlord is or may be entitled to
do under any Lease, Reciprocal Operating Agreement, the Stop & Shop
Guaranty or any other guaranty;
subject, however, to the license granted to the Mortgagor under paragraph (c)
below.
(b) Any funds received by the Mortgagee, after payment of all proper
costs and charges, under this Article 53 shall be held by the Mortgagee for
application first to payment of all amounts then due and payable under this
Mortgage, and second to payment of all amounts then due and payable under the
Mortgage Notes. The Mortgagee shall be accountable to the Mortgagor only for
monies actually received by the Mortgagee pursuant to this Article 53. The
collection of said funds and the application thereof as aforesaid shall not cure
or waive any Event of Default or waive, modify or affect any notice of Event of
Default or invalidate any act done pursuant to such notice; provided, however,
if the Mortgagor deposits with the Mortgagee amounts which are sufficient to
cover the obligation of the Mortgagor that was the subject of the Event of
Default, the Event of Default shall be deemed to have been cured.
(c) (i) This assignment constitutes a present, absolute, effective,
irrevocable assignment by the Mortgagor to the Mortgagee of the Property to be
assigned, including without limitation such property as constitutes personal
property, and the right to collect all sums payable to the Mortgagor thereunder
and apply the same in accordance with subsection (b) above which is not
conditioned on the Mortgagee being in possession of the Property.
Notwithstanding the foregoing, so long as no Event of Default shall have
occurred and be continuing, the Mortgagor shall have a license (which may be
enforced by the Manager) to collect and retain from the Tenants and of such
parties to any Reciprocal Operating Agreements, rent and all other sums payable
under the Leases, the Stop & Shop Guaranty, any Reciprocal Operating Agreements
or any other guaranties, and all Proceeds paid in respect of the insurance
described in
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clause (d) of Exhibit E hereto, to enforce the obligations of Tenants under the
Leases and of such parties to any Reciprocal Operating Agreements, and to
exercise all the rights and remedies of the landlord under the Leases and any
Reciprocal Operating Agreements and, subject in each case, however, to
compliance with the provisions of this Mortgage. The Mortgagor shall deposit
upon receipt, or shall cause the Manager to deposit upon receipt, all monies
received in respect of the Property or this Mortgage and in respect of all
rents, profits, issues and income from any Leases and all other Operating
Income, and all income or other gains from investment or reinvestment thereof,
in the Deposit Account (as defined in the Indenture). The Mortgagor hereby
grants a security interest in and assigns to the Mortgagee the Deposit Account
to secure the performance of the obligations under the Mortgage Notes, the
Mortgage and the other Mortgage Security Documents and to be used by the
Mortgagee to pay amounts permitted to be withdrawn by the Mortgagee pursuant to
the Cash Management Agreement.
(ii) If any Event of Default shall have occurred and be continuing,
the license granted in Section 53(c)(i) hereof shall immediately cease and
terminate, with or without any action or proceeding or the intervention of a
receiver appointed by a court, and the Mortgagee or an agent appointed by the
Mortgagee may, to the fullest extent permitted by the Leases, Reciprocal
Operating Agreements, the Stop & Shop Guaranty or any other guaranty, do any or
all of the following:
(A) exercise any of the Mortgagor's rights under the Leases,
Reciprocal Operating Agreements, the Stop & Shop Guaranty or any
other guaranty, including notifying Tenants to pay rent to an
account or location selected by the Mortgagee in accordance with the
Indenture and this Mortgage;
(B) enforce the Leases, Reciprocal Operating Agreements, the
Stop & Shop Guaranty or any other guaranty;
(C) demand, collect, ▇▇▇ for, attach, levy, recover, receive,
compromise and adjust, and make, execute and deliver receipts and
releases for all rents or other payments that may then be or may
thereafter become due, owing or payable with respect to the Leases,
Reciprocal Operating Agreements, the Stop & Shop Guaranty or any
other guaranty;
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(D) demand that any sums held by the Mortgagor with respect to
any Lease (including, but not limited to, any security deposits,
other deposits or prepayments), Reciprocal Operating Agreements, the
Stop & Shop Guaranty or any other guaranty be immediately remitted
to the Mortgagee; and
(E) generally, do, execute and perform any other act, deed,
matter or thing whatsoever that ought to be done, executed and
performed in and about or with respect to the Leases, Reciprocal
Operating Agreements, the Stop & Shop Guaranty or any other
guaranty, as fully as allowed or authorized by this Article 53.
(d) The Mortgagor hereby irrevocably authorizes and directs each
Tenant under a Lease, and each other party under a Reciprocal Operating
Agreement, the Stop & Shop Guaranty or any other guaranty, upon receipt of
notice from the Mortgagee that an Event of Default has occurred and is
continuing, to pay directly to, or as directed by, the Mortgagee, all rents,
issues and profits accruing or due under such Tenant's Lease, or under such
Reciprocal Operating Agreement, the Stop & Shop Guaranty or any other guaranty,
from and after the receipt of such notice. The Mortgagor agrees that any Tenant
or such other party shall have the right to rely upon the notice from the
Mortgagee and shall pay such rents, issues and profits to or as directed by the
Mortgagee without any obligation to inquire into the actual existence of any
Event of Default claimed by the Mortgagee, notwithstanding any notice from or
contrary claim by the Mortgagor, and the Mortgagor shall have no right or claim
for any rents, issues or profits so paid to the Mortgagee. Such rents, issues
and profits shall continue to be paid to the Mortgagee unless and until the
Event of Default which gave rise to the termination of the Mortgagor's license
under Section 53(c)(i) is, and any intervening Events of Default have been,
cured to the satisfaction of the Mortgagee (and so long as no amount shall then
be due and payable under the Mortgage Notes, whether at maturity, by declaration
of acceleration or otherwise, and such acceleration has not been rescinded). In
the event each such Event of Default has been cured as aforesaid (or, if the
provisions set forth in the parenthetical in the immediately preceding sentence
are applicable, upon completion of foreclosure or comparable remedies resulting
in a disposition of the Premises) the Mortgagee shall direct each tenant by
written notice to resume the payment of all rents, issues or profits accruing
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or due under its respective Lease, Reciprocal Operating Agreement, the Stop &
Shop Guaranty or any other guaranty in accordance with the provisions of Section
53(c) hereof (or, if the immediately preceding parenthetical is applicable, to
the then-owner of the Premises) from and after receipt of such notice from the
Mortgagee.
(e) Except for any termination of any Lease, Reciprocal Operating
Agreement, the Stop & Shop Guaranty or any other guaranty or any amendment,
modification or waiver of the provisions of any Lease, Reciprocal Operating
Agreement, the Stop & Shop Guaranty or any other guaranty expressly permitted by
the provisions thereof or of Article 20 hereof, the Mortgagor at its expense
will prudently enforce in all material respects each of the Leases, Reciprocal
Operating Agreements, the Stop & Shop Guaranty or any other guaranties, in
accordance with their terms. Neither the execution and delivery of this Mortgage
nor any action or inaction on the part of the Mortgagee shall release (i) any
Tenant from its Lease, (ii) any party from any of its obligations or liabilities
under its Reciprocal Operating Agreement or the Stop & Shop Guaranty, (iii) any
guarantor from any of its obligations or liabilities under any other guaranty,
or (iv) the Mortgagor from any of its obligations under the Leases, Reciprocal
Operating Agreements, the Stop & Shop Guaranty or any other guaranty, or
constitute an assumption of any such obligation under the Leases, Reciprocal
Operating Agreements, the Stop & Shop Guaranty or any other guaranties or
constitute an assumption of any such obligation on the part of the Mortgagee. No
action or failure to act on the part of the Mortgagor shall adversely affect or
limit the rights of the Mortgagee under this Mortgage or the Assignment or,
through this Mortgage or the Assignment, under any Lease, Reciprocal Operating
Agreement, the Stop & Shop Guaranty or any other guaranty.
(f) During the term hereof, all rights, powers and privileges of
Mortgagee herein set forth are coupled with an interest and are irrevocable,
subject to the terms and conditions hereof, and the Mortgagor will not take any
action under any Lease, Reciprocal Operating Agreement, the Stop & Shop Guaranty
or any other guaranty or otherwise which is inconsistent with this Mortgage or
the Assignment or any of the terms hereof or thereof and any such action
inconsistent herewith or therewith shall, to the fullest extent permitted by
law, be void. Any further assignment of any rents, issue, or profits from any of
the Properties shall to the fullest extent permitted by law be void except as
permitted by Section 19.1 or 19.3. To the fullest extent
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permitted by applicable law, the Mortgagor hereby waives any requirement that
the Mortgagee commence any foreclosure proceeding with respect to any or all of
the Properties prior to enforcement of any remedies pursuant to this Article 53,
including the right to commence and prosecute an action to appoint a receiver
for rents and all other amounts due under any Leases. The Mortgagor will, from
time to time, upon request of the Mortgagee, execute on a non- recourse basis
all instruments and further assurances and all supplemental instruments and take
all such action as the Mortgagee from time to time may reasonably request in
order to perfect, preserve and protect the interests, intended to be assigned to
the Mortgagee hereby.
(g) The assignment granted by this Article 53 may be modified,
amended, discharged or waived only by an agree ment in writing signed by the
party against whom enforcement of any such modification, amendment, discharge or
waiver is sought. Subject to Article 38 hereof, the covenants of this Article 53
shall run with the land and bind the Mortgagor, the successors and permitted
assigns of the Mortgagor, and all present and subsequent encumbrances, Tenants
of any of the Premises, and shall bind and inure to the benefit of the
Mortgagee, its successors and permitted assigns.
(h) The Mortgagor hereby agrees that it will not, unilaterally or by
agreement, subordinate, amend, modify, extend, discharge, terminate, surrender,
waive or otherwise change any term of any Lease, Reciprocal Operating Agreement,
the Stop & Shop Guaranty or any other guaranty in any manner which would violate
this Mortgage. If any Lease, Reciprocal Operating Agreement, the Stop & Shop
Guaranty or any other guaranty shall be amended as permitted hereby, such Lease,
Reciprocal Operating Agreement, the Stop & Shop Guaranty or any other guaranty
shall continue to be subject to the provisions hereof without the necessity of
any further act by any of the parties hereto, subject to the provisions of any
non-disturbance agreement which the Mortgagee may have granted in accordance
with the provisions of this Mortgage.
54. NOTICES. Any notice, direction, request, consent, election,
waiver or demand which by any provision of this Mortgage is required or
permitted to be given may be served by an overnight national courier service or
may be given or served by telecopier only during business hours (9 a.m. - 5
p.m.) on a Business Day (with a confirmation copy sent by certified or
registered mail, return receipt requested, or by overnight courier) or by
certified or registered mail, in each case return receipt requested,
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postage prepaid, if to the Mortgagor addressed to it at the address set forth on
page 1 of this Mortgage with an additional copy addressed to the following:
Vornado Realty Trust
Park ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Vornado Finance L.L.C. Commercial
Mortgage-Backed Securities,
Series 2000-VNO, due March 15, 2010
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ Israel
or at such other address in the continental United States as it may designate in
accordance with the provisions hereof. Any notice, direction, request, consent,
election, waiver or demand to the Mortgagee shall be made to the Mortgagee at
the address set forth on page 1 of this Mortgage, and, after the dates of the
Assignment, to the Trustee at the address provided in the Indenture.
55. AMENDMENTS/SUPPLEMENTS.
55.1. Without Consent. Without the consent of the Holders, the
Mortgagor and the Mortgagee, upon their mutual agreement, may enter into
supplements or amendments for any one or more of the following purposes:
(i) to correct any typographical error or cure any ambiguity, or to
cure, correct or supplement any defective or inconsistent provision in the
Mortgage or in the Mortgage Notes or to conform any such provision to the
Offering Memorandum, provided that such action does not adversely affect the
interests of the Holders, (ii) to convey, transfer, assign, mortgage or pledge
any property to the Mortgagee so long as the interests of the Holders would not
be adversely affected, (iii) to correct any manifestly incorrect description, or
amplify the description, of any property subject to the lien of the Mortgage
Security Document, (iv) to modify the Mortgage or the Mortgage Notes
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as required or made necessary by any change in applicable law, so long as the
interests of the Holders would not be adversely affected and an opinion of
counsel is obtained to the effect that such modification is necessary or
required, (v) to add to the covenants of the Mortgagor or any other party for
the benefit of the Holders, or to surrender any right or power conferred upon
the Mortgagor in this Mortgage or the Mortgage Notes, (vi) to add any additional
Events of Default, provided that such action does not adversely affect the
interests of the Holders, or (vii) to make a required or conforming change to
the Mortgage or the Mortgage Notes in connection with any amendment or
supplement to the Indenture permitted thereunder, provided that clauses (ii),
(v) and (vi) require Rating Agency Confirmation.
Notwithstanding the foregoing, the amendment of this Mortgage or the
Mortgage Notes will be prohibited unless the Mortgagee has first received an
opinion of counsel to the effect that such amendment will not result in the
Notes being treated as having been exchanged for a new debt instrument pursuant
to Section 1001 of the Code.
55.2. With Consent. Subject to the rights of the Directing Holders
pursuant to the Indenture, the Mortgage or the Mortgage Notes may be amended by
the Mortgagor and the Mortgagee, with the consent of Holders of not less than 66
2/3% in aggregate principal amount of the Securities, for the purpose of adding
any provisions thereto or changing in any manner or eliminating any of the
provisions thereof, or of modifying in any manner the rights of the Mortgagor or
the Mortgagee thereunder, provided that no such amendment may, without the
consent of the Holders of 100% of the Voting Rights of each Class of Securities
affected thereby (i) change the stated maturity or the payment date of any
principal, interest or other amount due on the Mortgage Notes, (ii) reduce the
aggregate principal amount of any Mortgage Note or the interest rate thereon,
(iii) authorize any person to agree to delay the timing of, or reduce the
payments to be made on, the Mortgage Notes except as described herein, (iv)
change the coin or currency in which the principal of any Mortgage Note or
interest thereon is payable, (v) impair the right to institute suit for the
enforcement of any such payment on or after the stated maturity thereof, (vi)
reduce the percentage of the then aggregate principal amount of the Securities
of any Class or Classes, the consent of whose holders is required for such
amendment, or the consent of whose holders is required for any waiver of Events
of Default or for any other reason under this Mortgage, (vii) deprive the
Mortgagee of the benefit of a first priority security interest (subject to
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the permitted exceptions) in the Properties and other collateral securing the
Mortgage Notes, (viii) modify the provisions of this Mortgage or the Mortgage
Notes relating to payments on the Mortgage Notes, or (ix) release from the lien
of the Mortgage all or any part of the Properties and other collateral securing
the Mortgage Notes except as described herein; and except with respect to clause
(i), (ii), (iii) and (iv) below, as described below. Notwithstanding the
foregoing, if (A) there exists an Event of Default or an Event of Default is
reasonably foreseeable and (B) the Special Servicer has obtained the consent of
the Holders of not less than 66 2/3% of the aggregate principal amount of the
Directing Holders (as defined in the Indenture), the Special Servicer may
forgive any payment of principal or interest on the Mortgage Notes or
significantly accelerate or defer payment of principal or interest thereon,
subject however to each of the following limitations, conditions and
restrictions: (i) no reduction in the interest rate or reduction or delay of any
interest payment or forgiveness of interest may result in a shortfall of
interest to any class of Notes other than the class held by the Directing
Holders unless the Holders of 66 2/3% of the Outstanding aggregate principal
amount of such Class of Notes consents thereto; (ii) the Special Servicer may
only agree to reductions of principal and/or interest and/or delay payments of
principal for periods lasting no more than twelve consecutive months and for no
more than two such periods, provided, that no such agreement by the Special
Servicer shall permit the delay of any principal payment to a date later than
March 15, 2012 and (iii) the amount of principal forgiven may not exceed 100% of
the Class Principal Balance (as defined in the Indenture) of the Directing
Holders less any shortfalls of interest (other than those with respect to the
Directing Holders) and Appraisal Reduction Amounts (as defined in the Indenture)
then outstanding unless Holders of not less than 66 2/3% in aggregate
Outstanding principal amount of each affected Class of Notes consents thereto.
No such amendment of the Mortgage or the Mortgage Notes will be permitted to the
extent that such amendment would cause an outstanding Advance to be a
Nonrecoverable Advance.
Notwithstanding the foregoing, the amendment of this Mortgage or the
Mortgage Notes will be prohibited unless the Mortgagee has first received an
opinion of counsel to the effect that such amendment will not result in the
Notes being treated as having been exchanged for a new debt instrument pursuant
to Section 1001 of the Code.
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56. WAIVER OF TRIAL BY JURY. To the extent permitted under
applicable law, the Mortgagor hereby waives and shall waive trial by jury in any
action or proceeding brought by, or any counterclaim asserted by the Mortgagee
which action, proceeding or counterclaim in any way arises out of or is
connected with this Mortgage.
57. SEVERABILITY. In case any one or more of the provisions
contained in this Mortgage or in the Mortgage Notes shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby.
58. APPLICABLE LAWS TO PROPERTY LOCATED IN NEW YORK STATE.
58.1. Lien Law. (a) This Mortgage is made subject to Section 13 of
the New York Lien Law and, in compliance with Section 13 of the New York Lien
Law, the Mortgagor will receive the loan secured by this Mortgage and the right
to receive such advances as a trust fund to be applied first for the purpose of
paying any unpaid costs of the Improvements; and the Mortgagor has applied and
will apply the same first to the payment of any unpaid costs of the Improvements
before using any part of the total of the same for any other purpose.
(b) The Mortgagor will indemnify and hold the Mortgagee harmless
against any loss, liability, cost or expense, including any judgments,
attorneys' fees, costs of appeal bonds or printing costs, arising out of or
relating to any proceedings instituted by any claimant alleging a violation by
the Mortgagor of Article 3-A of the New York Lien Law.
58.2. Real Property Law. (a) Sections 16 and 17 hereof shall be
construed according to subdivision 4 of Section 254 of the New York Real
Property Law as amended by Chapter 886 of the Laws of 1945 but not as amended by
Chapter 830 of the Laws of 1965 or as otherwise thereafter amended.
(b) For purposes of Section 291-f of the New York Real Property Law,
Tenant and every tenant or subtenant who, after the recording of this Mortgage,
enters into a Lease upon the Premises of any of the Properties or who acquires
by instrument of assignment or by operation of law a leasehold estate upon the
Premises located in the State of New York in existence on the date of recording
of this
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Mortgage is hereby notified that the Mortgagor shall not, without obtaining
prior Mortgagee's consent in each instance, cancel, abridge or otherwise modify
any Leases upon the Premises located in the State of New York or accept
prepayments for more than thirty days of installments of rent to become due with
respect to any Lease thereof having an unexpired term on the date of this
Mortgage of five years or more, except as expressly permitted under this
Mortgage or the Assignment of Leases, and that any such cancellation,
abridgement, modification or prepayment made by any such tenant or subtenant
without either being expressly permitted under this Mortgage or receiving
Mortgagee's prior consent shall be voidable by the Mortgagee at its option."
58.3. RPAPL. If an Event of Default shall occur and be continuing,
the Mortgagee may elect to sell (and, in the case of any default of any
purchaser, resell) any Property or any part of any Property by exercise of the
power of foreclosure or of sale granted to the Mortgagee by Articles 13 or 14 of
the New York Real Property Actions and Proceedings Law (the "RPAPL"). In such
case, the Mortgagee may commence a civil action to foreclose this Mortgage
pursuant to Article 13 of the RPAPL, or it may proceed and sell the Property
pursuant to Article 14 of the RPAPL to satisfy the Mortgage Notes and all other
amounts secured hereby.
58.4. Maximum Principal Indebtedness. The amount of principal
indebtedness this Mortgage secures against the Properties located in the State
of New York and, for purposes of Sections 253, 256 and 260 of the Tax Law of the
State of New York (relating to the taxation of mortgages), the maximum amount of
the principal indebtedness secured by this Mortgage, or which by any contingency
may be secured by this Mortgage, and for which this Mortgage may be foreclosed
or otherwise enforced against, the Properties located in the State of New York,
is $54,709,500.00 principal amount, and Out-of-Pocket Costs.
58.5. No Residential Units. This Mortgage does not encumber real
property principally improved or to be improved by one or more structures
containing in the aggre gate six or fewer residential dwelling units having
their own separate cooking facilities.
59. ARTICLES APPLICABLE TO PROPERTY LOCATED IN THE STATE OF NEW
JERSEY.
As to any Property, Land or Improvements located in the State of New
Jersey and encumbered by this Mortgage,
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this instrument and the creation, validity, perfection, priority and
enforceability of the lien and security interest created hereby, all warranties
of title contained herein with respect to such Properties, and all provisions
hereof relating to the realization of the security covered hereby with respect
to such Properties shall be governed by the law of the State of New Jersey.
60. ARTICLES APPLICABLE TO PROPERTY LOCATED IN THE COMMONWEALTH OF
PENNSYLVANIA.
None
61. Intentionally Omitted.
62. ARTICLES APPLICABLE TO PROPERTY LOCATED IN THE STATE OF
CONNECTICUT.
THE CONDITION OF THIS DEED IS SUCH THAT:
WHEREAS, the Mortgagor is justly indebted to the Mortgagee in the
principal sum of $500,000,000, as evidenced by several Mortgage Notes for said
aggregate sum of even date herewith, payable to the Mortgagee or order, copies
of which are attached hereto as Exhibit C and made a part hereof and which are
finally due and payable on March 15, 2010 unless accelerated pursuant to the
provisions therein or herein set forth; and
WHEREAS, this conveyance is intended as a Mortgage, Security
Agreement, Assignment of Leases and Rents and Fixture Filing to secure the
performance of the obligation set forth and referred to in said Mortgage Notes
and hereunder; and
WHEREAS, the Mortgagor, in order to more fully protect the security
of the Mortgage, has made the covenants and agreements herein set forth and
referred to.
NOW THEREFORE, if said Mortgage Notes shall be well and truly paid
according to their tenor, and if all of the terms, covenants and conditions of
the Mortgage herein contained and referred to shall be fully and faithfully
performed, observed and complied with, then the Mortgage Deed shall be void, but
otherwise remain in full force and effect.
Prejudgment Remedies. THE MORTGAGOR ACKNOWLEDGES THAT THE TRANSACTION OF
WHICH THIS AGREEMENT IS A PART IS A COMMERCIAL TRANSACTION, AND HEREBY
VOLUNTARILY AND KNOWINGLY
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WAIVES ITS RIGHT TO NOTICE AND HEARING UNDER CHAPTER 903a OF THE CONNECTICUT
GENERAL STATUTES, OR AS OTHERWISE ALLOWED BY THE LAW OF ANY STATE OR FEDERAL
LAW, WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH LENDER MAY DESIRE TO OBTAIN OR
TO USE. FURTHER, TO THE EXTENT PERMITTED BY LAW, THE MORTGAGOR HEREBY WAIVES,
THE BENEFITS OF ALL VALUATION, APPRAISEMENT, HOMESTEAD EXEMPTION, STAY,
REDEMPTION AND MORATORIUM LAWS, NOW IN FORCE OR WHICH MAY HEREAFTER BECOME LAWS.
THE MORTGAGOR ACKNOWLEDGES THAT IT IS MAKING THIS WAIVER KNOWINGLY, VOLUNTARILY,
WITHOUT DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION AND A FAIR OPPORTUNITY TO
DISCUSS THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEY. THE MORTGAGOR
FURTHER CONSENTS TO THE ISSUANCE OF ANY SUCH PREJUDGMENT REMEDIES WITHOUT THE
POSTING OF A BOND OR OTHER SECURITY. THE MORTGAGOR AGREES NOT TO REQUEST A BOND
AND WAIVES ANY RIGHT TO FILE ANY MOTION SEEKING TO REQUIRE SUCH A BOND IN
CONNECTION WITH LENDER'S EXERCISE OF ANY PREJUDGMENT REMEDY(IES).
Newington VF L.L.C., a Mortgagor under this Mortgage, is a
Connecticut limited liability company.
63. ARTICLES APPLICABLE TO PROPERTY LOCATED IN THE COMMONWEALTH OF
MASSACHUSETTS.
63.1 Application. The provisions of this Article 63 are applicable
to any Property, Land or Improvements located in the Commonwealth of
Massachusetts and encumbered by this Mortgage.
63.2 Mortgage Covenants. In furtherance and not in limitation of any
other provision contained in this Mortgage, the Mortgage has been granted by the
Mortgagor with MORTGAGE COVENANTS as provided pursuant to Massachusetts General
Laws c. 183, ss.19. The provisions of this Section are intended as additional
rights of the Mortgagee and nothing herein contained shall be deemed in any way
to limit, amend or affect any other right provided to the Mortgagee pursuant to
this Mortgage.
63.3 Statutory Conditions and Power of Sale. In furtherance and not
in limitation of any other provision contained in this Mortgage, the Mortgage
has been granted by the Mortgagor on the STATUTORY CONDITIONS, as provided
pursuant to Massachusetts General Laws c. 183, ss.20, for breach of which the
Mortgagee shall have the STATUTORY POWER OF SALE as provided pursuant to
Massachusetts General Laws c. 183, ss.21. The provisions of this Section are
intended as additional remedies of the Mortgagee and nothing herein
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contained shall be deemed in any way to limit, amend or affect any other remedy
provided to the Mortgagee pursuant to this Mortgage or which may otherwise be
available to Mortgagee under applicable law.
63.4 Indebtedness Secured. Notwithstanding the provisions hereof
relating to an Allocated Amount which may be applicable to any Property, Land or
Improvements located in Massachusetts, this Mortgage secures the repayment in
full of the Mortgage Notes and the other Secured Obligations as defined herein.
63.5 Residential Units. This Mortgage does not encumber real
property which constitutes a dwelling house, or which will be improved so as to
constitute a dwelling house, occupied by three or fewer separate households.
63.6 Applicable Law. As to any Property, Land or Improvements
located in the Commonwealth of Massachusetts and encumbered by this Mortgage,
this instrument and the creation, validity, perfection, priority and
enforceability of the lien and security interest created hereby, all warranties
of title contained herein with respect to such Properties, and all provisions
hereof relating to the realization of the security covered hereby with respect
to such Properties shall be governed by the law of the Commonwealth of
Massachusetts.
64. ARTICLES APPLICABLE TO PROPERTY LOCATED IN THE STATE OF
MARYLAND.
If an Event of Default shall occur and be continuing, the Mortgagor
hereby assents to the passage of a decree for the sale of the herein described
property at any time after a default has occurred in any of the covenants of
this mortgage, as herein provided; and the said Mortgagor hereby authorizes the
said Mortgagee, or any duly authorized attorney or agent of said Mortgagee,
after any default shall have occurred as aforesaid, to sell the hereby mortgaged
property. Any such sale, whether under the aforementioned assent to a decree or
under the aforementioned power of sale, shall be under the provisions of Real
Property Article of the Annotated Code of Maryland Section 7-105 (Acts of 1974
of Chapter 12) and Title 14, Chapter 200 of the Maryland Rules of Procedure, or
under any other general or local laws of the State of Maryland relating to
mortgages, or any supplement, amendment or addition thereto. Such sale shall be
made after giving notice by advertisement as required by the aforesaid Statute
and Rules; and the terms of the sale may be all cash upon ratification of the
sale or
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such other terms as the party selling may deem expedient. And upon any such sale
of said property under this mortgage, the proceeds shall be applied as follows:
(1) to repayment of all expenses incident to said sale, including a reasonable
counsel fee for conducting the proceedings if without contest, but if legal
services be rendered to the Mortgagee or to the party selling under the power of
sale in connection with any contested matter in the proceedings, then such
additional counsel fees and expenses shall be allowed out of the proceeds of
sale as the Court may deem proper; and a commission to the party making the sale
of said property equal to the commission allowed persons for making sale of
property by virtue of a decree of a Court having equity jurisdiction in the
State of Maryland; (2) to the payment of all claims of the said Mortgagee
hereunder, whether the same shall have matured or not, including interest
thereon until the final ratification of the final Auditor's Account in the
foreclosure proceedings; (3) and the balance if any to the said Mortgagor, or to
whomever may be entitled to same. And in the event that the Mortgage debt shall
be paid after any advertisement of said property, but before sale thereof, the
Mortgagor hereby covenants to pay also all expenses incident to said
advertisement or notice, all court costs and all expenses incident to the
foreclosure proceedings under this mortgage, and a commission on the total
amount of the mortgage indebtedness, principal and interest equal to one-half of
the percentage allowed as commission to persons making sale under orders or
decrees of a Court having equity jurisdiction in the State of Maryland and a
reasonable counsel fee; but said sale may be proceeded with unless prior to the
day appointed therefor, payment be made of said principal and interest, costs,
expenses, commission and fee.
Mortgagor hereby acknowledges receipt, without charge, of a true
copy of this Mortgage.
65. CONTRIBUTION AMONG BORROWERS.
(a) Contribution. To provide for just and equitable contribution
among Mortgagors, if any payment is made by a Mortgagor (a "Funding Mortgagor")
hereunder or under the Mortgage Notes or any other Mortgage Security Document in
respect of the Secured Obligations such Funding Mortgagor shall be entitled to a
contribution from other Mortgagors for all payments, damages and expenses
incurred by such Funding Mortgagor under or in connection with such Secured
Obligations, such contributions to be made in the manner and to the extent set
forth below. Any amount payable as a contribution under this Mortgage shall be
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determined as of the date on which the related payment is made by a Funding
Mortgagor.
(b) Calculation of Contributions. Each Mortgagor shall be liable for
contribution to each Funding Mortgagor in respect of all payments, damages and
expenses incurred by such Funding Mortgagor hereunder or under the Mortgage
Notes or any other Mortgage Security Document in an aggregate amount, subject to
Section 65(c) below, equal to (i) the ratio of (x) the Property Worth of the
Property owned by such Mortgagor to (y) the Property Worth of the Properties
owned by all Mortgagors, multiplied by (ii) the aggregate amount of such
payments, damages and expenses incurred by such Funding Mortgagor under or in
connection with the Secured Obligations.
(c) Rights to Contribution Subordinated. Each Mortgagor agrees that
all of its rights to receive contribution under this Section 65 (whether for
payments, damages, expenses or otherwise) and all of its rights, if any, to be
subrogated to any of the rights of Mortgagee shall be subordinated in right of
payment (in liquidation or otherwise) to the prior payment in full in cash of
all of the obligations of the Mortgagors in respect of the Secured Obligations
(whether for principal, interest, Make-Whole Obligation or otherwise). If any
amount shall at any time be paid to a Mortgagor on account of such rights of
contribution or subrogation, or in contravention of the provisions of this
Section 65(c) at any time, such amount shall be held in trust, segregated from
the other assets of such Mortgagor, for the benefit of the Mortgagee and shall
promptly be paid to the Mortgagee. The foregoing shall constitute a continuing
offer to, and agreement with, all persons that from time to time may become
holders of, or continue to hold, obligations under this Mortgage, and the
provisions of the foregoing sentence are made for the benefit of such holders
and such holders, as third party beneficiaries hereunder, are entitled to
enforce such provisions.
66. JOINT AND SEVERAL OBLIGATIONS.
(a) Notwithstanding anything to the contrary set forth in this
Mortgage or any of the other Mortgage Security Documents (but subject to Article
38), the obligations of the Mortgagors hereunder shall be joint and several.
(b) Each Mortgagor's obligations hereunder shall remain outstanding
until all Secured Obligations have been
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paid in full, unless released in accordance with the terms of this Mortgage.
(c) No payment or payments with respect to the obligations of any
Mortgagor hereunder made by any other Mortgagor or any other Person or received
or collected by the Mortgagee from such other Mortgagor or such other Person by
virtue of any action or proceeding or any setoff or appropriation or
application, at any time or from time to time, in reduction of or in payment of
the Secured Obligations or any release of security hereunder shall be deemed to
modify, reduce, release or otherwise affect the primary liability of such
Mortgagor in respect thereof.
(d) If any amount shall at any time be paid to a Mortgagor on
account of such rights of contribution or subrogation, in contravention of the
provisions of this Section 66 at any time, such amount shall be held in trust,
segregated from the other assets of such Mortgagor, for the benefit of the
Mortgagee and shall promptly be paid to the Mortgagee.
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IN WITNESS WHEREOF, the Mortgagee and the Mortgagor have caused this
Mortgage to be duly executed and delivered as of the date first above written.
MORTGAGOR: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:Authorized Signatory
(on behalf of each of the Borrowers
and Guarantors listed on Schedule A
annexed hereto)
MORTGAGEE: VORNADO FINANCE L.L.C.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Authorized Signatory
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▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
ss.:
County of New York )
On the 28th day of February in the year 2000 before me, the
undersigned, personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Signature and Office of individual
taking acknowledgment
147
CERTIFICATE OF ACKNOWLEDGMENT
State of New York )
ss.:
County of New York )
On the 28th day of February in the year 2000 before me, the
undersigned, personally appeared ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual(s) whose
name(s) is (are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Signature and Office of individual
taking acknowledgment
148
SCHEDULE A
THE MORTGAGORS
BORROWERS PROPERTIES OWNED
--------- ----------------
1. Union VF L.L.C. Union
2. Totowa VF L.L.C. Totowa
3. ▇▇▇▇▇ VF L.L.C. Totowa
4. Hackensack VF L.L.C. Hackensack
5. Hanover VF L.L.C. Hanover
6. Conrans VF L.L.C. Hanover
7. East Brunswick VF L.L.C. East Brunswick
8. Woodbridge VF L.L.C. Woodbridge
9. Bricktown VF L.L.C. Bricktown
10. Jersey City VF L.L.C. Jersey City
11. Middletown VF L.L.C. Middletown
12. Cherry ▇▇▇▇ ▇▇ L.L.C. Cherry Hill
13. Watchung VF L.L.C. Watchung
14. ▇▇▇▇▇▇ Plains Holding VF L.L.C. ▇▇▇▇▇▇ Plains*
15. ▇▇▇▇▇▇ Plains Leasing VF L.L.C. ▇▇▇▇▇▇ Plains*
16. Manalapan VF L.L.C. Manalapan
17. Marlton VF L.L.C. Marlton
18. North Plainfield VF L.L.C. North Plainfield*
19. Lawnside VF L.L.C. Lawnside
20. Lodi VF L.L.C. Lodi
21. Lodi II VF L.L.C. Lodi
22. Bordentown VF L.L.C. Bordentown
23. Bordentown II VF L.L.C. Bordentown
24. Dover VF L.L.C. Dover
25. Delran VF L.L.C. Delran
26. North ▇▇▇▇▇▇ ▇▇ L.L.C. North Bergen
27. Turnersville VF L.L.C. Turnersville
28. Kearny Holding VF L.L.C. Kearny
29. Kearny Leasing VF L.L.C. Kearny
30. Montclair VF L.L.C. Montclair
31. Allentown VF L.P. Allentown
32. ▇▇▇▇▇▇▇▇ ▇▇ ▇.▇. ▇▇▇▇▇▇▇▇
33. Philadelphia VF L.P. Philadelphia
34. Glenolden VF L.P. Glenolden
35. Bensalem VF L.P. Bensalem
36. Upper ▇▇▇▇▇▇▇▇ ▇▇ L.P. Upper ▇▇▇▇▇▇▇▇
37. York VF L.P. York
38. Bethlehem VF L.P. Bethlehem
39. Freeport VF L.P. Freeport
40. Amherst VF L.L.C. Amherst*
--------
* Leasehold interest.
▇-▇
▇▇▇
▇▇. Amherst II VF L.L.C. ▇▇▇▇▇▇▇*
▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇ VF L.L.C. New Hyde Park*
43. Menands VF L.L.C. Menands
44. Springfield VF L.L.C. Springfield
45. Newington VF L.L.C. Newington
GUARANTORS
1. Towson VF L.L.C. Towson
2. Dundalk VF L.L.C. Dundalk
3. ▇▇▇▇ Burnie VF L.L.C. ▇▇▇▇ Burnie
4. Hagerstown VF L.L.C. Hagerstown
--------
* Leasehold interest.
A-2
150
SCHEDULE B
[DESCRIPTION OF PREDECESSOR MORTGAGE DOCUMENTS TO BE ATTACHED]
151
EXHIBIT A
THE PROPERTIES AND ALLOCATED AMOUNTS
Properties Allocated Amounts
---------- -----------------
NEW JERSEY
1. Bordentown $ 8,290,000
2. Bricktown 16,753,000
3. Cherry Hill 15,408,000
4. Delran 6,604,000
5. Dover 7,551,000
6. East Brunswick 23,393,000
7. Hanover 28,046,000
8. Hackensack 25,700,000
9. Jersey City 19,675,000
10. Kearny 3,841,000
11. Lawnside 10,887,000
12. Lodi 9,648,000
13. Manalapan 12,876,000
14. Marlton 12,520,000
15. Middletown 16,901,000
16. Montclair 1,977,000
17. ▇▇▇▇▇▇ Plains 12,372,000
18. North Bergen Center 4,073,000
19. North Plainfield 11,184,000
20. Totowa 30,351,000
21. Turnersville 4,199,000
22. Union 34,468,000
23. Watchung 13,907,000
24. Woodbridge 22,719,000
NEW YORK
25. Amherst 7,200,000
26. Freeport 15,208,000
27. Menands (Menands Center) 6,389,000
28. New Hyde Park 7,676,000
PENNSYLVANIA
29. Allentown 23,884,000
30. Bensalem 6,600,000
31. Bethlehem 4,177,000
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32. Broomall 10,044,000
33. Glenolden 7,533,000
34. Philadelphia 9,200,000
35. Upper ▇▇▇▇▇▇▇▇ 7,141,000
36. York 4,223,000
MARYLAND
37. Towson 11,704,000
38. Dundalk 6,342,000
39. ▇▇▇▇ Burnie 6,023,000
40. Hagerstown 3,375,000
CONNECTICUT
41. Newington 6,727,000
MASSACHUSETTS
42. Springfield 3,211,000
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153
EXHIBIT B
DESCRIPTION OF PROPERTY AND PERMITTED EXCEPTIONS
(a) the right reserved to or vested in any municipality or public
authority to condemn, appropriate, recapture or designate a purchaser of the
Property or any part thereof or interest therein or under zoning laws and use
regulations;
(b) any (i) liens for Impositions and any other taxes, assessments
or charges, (ii) liens of mechanics, materialmen, suppliers, vendors or other
Persons for work or services performed or materials furnished in connection with
the Property and (iii) liens or charges arising from the imposition of any Legal
Requirement, in each case which are not due and payable in accordance with the
terms of this Mortgage or the amount, validity or application of which is being
contested at the time by appropriate legal, adminis trative or other proceedings
which shall operate to prevent the collection thereof or other realization
thereon and the sale or forfeiture of the Property or any interest therein to
satisfy the same, provided that the Mortgagor shall have complied with Section
12 dealing with the contest of any Imposition, lien, tax, assessment, charge or
Legal Requirement;
(c) the lien hereof and any rights granted hereby or thereby;
(d) Intentionally Omitted
(e) the state of facts shown on the survey delivered to the title
company as of the date hereof;
(f) covenants, restrictions, easements, exceptions and other matters
set forth in the mortgage title insurance policy issued to the Mortgagee on the
date hereof;
(g) rights of Tenants under any Leases, as tenants only, existing on
the date hereof or entered into in accordance with the provisions of this
Mortgage, and any memoranda of any of them;
(h) judgments or awards which have been in force for less than the
applicable appeal period so long as exe cution is not levied thereunder or in
respect of which the Mortgagor at the time shall be prosecuting an appeal or
proceedings for review in good faith and in respect of which a stay of execution
shall have been obtained pending such appeal
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or review, or which are fully covered by insurance (except to the extent of
usual and customary deductibles);
(i) additional Permitted Exceptions allowed by Sections 3.2(c) and
3.2(d) of this Mortgage; and
(j) the exception shown on the mortgagee title policy delivered as
of the date hereof.
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155
EXHIBIT C
This Class [ ] Mortgage Note, along with the Class [ ] Mortgage
Note, Class [ ] Mortgage Note, the Class [ ] Mortgage Note, the Class [ ]
Mortgage Note, the Class [ ] Mortgage Note and the Class [ ] Mortgage Note,
evidences an aggregate principal indebtedness in the amount of $500,000,000.00,
of which $54,709,500.00 in aggregate principal indebtedness was previously
evidenced by that certain Substitute Note and that Additional Note (each as
defined in that certain Mortgage, Agreement of Assumption, Consolidation and
Amendment of Mortgage and Notes, dated as of March 1, 2000, by the Maker named
below to the Payee named below (the "Mortgage and Agreement")), which Mortgage
and Agreement, among other things, consolidated $22,663,374.54 in aggregate
principal indebtedness previously evidenced by the Substitute Note, which has
heretofore been assigned to the Payee by the lender thereon, and $32,046,125.46
in aggregate principal indebtedness previously evidenced by the Additional Note,
made by certain of the entities comprising the Maker hereunder to the Payee
hereunder.
--------------------------------------------------------------------------------
RESTATED CLASS [ ] MORTGAGE NOTE
THIS CLASS [ ] MORTGAGE NOTE SHALL NOT BE
TRANSFERRED TO ANY PERSON IN A TRANSACTION
WHICH WOULD REQUIRE REGISTRATION UNDER
THE SECURITIES ACT OF 1933
REGISTERED NO. 1
$___,000,000 __________, 2000
THE ENTITIES SET FORTH ON SCHEDULE A HERETO (collectively, the
"Maker", which term includes any of its successors or assigns), for value
received, hereby promise to pay to the order of VORNADO FINANCE L.L.C., a
Delaware limited liability company, or its registered assignee (the "Payee"),
the principal sum of __________ Million Dollars (U.S.$____,000,000), and to pay
interest thereon in arrears on the 15th day of each month, commencing March 15,
2000 (each a "Payment Date"), from the date hereof until the Maturity Date;
provided, however, that if any Payment Date is not a Business Day, the Payment
Date shall be the next succeeding Business Day, without additional interest. The
interest payable on this Class [ ] Mortgage Note for the period from the date of
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156
issuance to, but not including, the Maturity Date shall be ___ percent (___%).
On each Payment Date commencing with the Payment Date on April , 2000, the Maker
shall also pay the Principal Installment Amount (as defined in the Mortgage) due
on such Payment Date with respect to all of the Mortgage Notes, subject to
adjustment pursuant to Section 46 of the Mortgage. Pursuant to the Mortgage, all
payments of Principal Installment Amounts shall be applied by the Payee first,
to the Class A-1 Mortgage Note until the Class A-1 Mortgage Note has been repaid
in full; second, to the Class A-2 Mortgage Note until the Class A-2 Mortgage
Note has been repaid in full; third, to the Class B Mortgage Note until the
Class B Mortgage Note has been repaid in full; fourth, to the Class C Mortgage
Note until the Class C Mortgage Note has been repaid in full; fifth, to the
Class D Mortgage Note until the Class D Mortgage Note has been repaid in full;
sixth, to the Class E Note until the Class E Mortgage Note has been repaid in
full; and finally, to the Class F Mortgage Note until the Class F Mortgage Note
has been repaid in full. Notwithstanding anything to the contrary in this Note,
Maker shall deposit all interest and principal due and payable on a Payment Date
with Payee on the date that is two Business Days prior to such Payment Date.
Interest shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months except that the first interest period shall
commence on the Closing Date and consist of __ days. On the Maturity Date, the
Maker shall pay in full all of the remaining obligations of the Maker under this
Class [ ] Mortgage Note, the Mortgage and the other Mortgage Security Documents
to which the Maker is a party.
If, (i) prior to the Maturity Date, for any reason, interest or
scheduled principal amortization on any Mortgage Note is not paid or provided
for on or prior to 11:00 a.m. (New York time) on the date which is two (2)
Business Days prior to the Payment Date on which such interest or scheduled
principal amortization is due, (ii) the principal of any Mortgage Note is not
repaid or provided for (including by deposit in the Collection Account (as
defined in the Indenture)) by the Maker on or prior to 11:00 a.m. (New York
time) on the date that is two (2) Business Days prior to the Maturity Date or
(iii) on any date scheduled for prepayment, the principal of all Mortgage Notes
to be prepaid on such date is not repaid or provided for (including by deposit
in the Collection Account) by the Maker on or prior to 11:00 a.m. (New York
time) on the date that is two (2) Business Days prior to such date, the Maker
will be required to pay interest on this Class [ ] Mortgage Note at a default
rate per annum
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157
equal to the greater of (A) ___% and (B) the Advance Interest Rate (as defined
in the Indenture).
If any principal or interest due under this Class [ ] Mortgage Note
is not paid by the Maker 2 Business Days prior to the Payment Date on which it
would otherwise be due, as set forth in the immediately preceding paragraph, the
Maker will be required to pay a late payment charge in an amount equal to the
lesser of 3% of such unpaid sum or the maximum amount permitted by applicable
law.
Payment of the principal of and interest (and Make- Whole
Obligation, if any) on this Class [ ] Mortgage Note shall be made to the Trustee
under that certain Indenture, dated as of the date hereof, between the Payee and
the Trustee (the "Indenture") for the account of the Payee, either at the
Corporate Trust Office of the Trustee in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts, or by wire transfer of lawful money of the United
States of America to the Trustee at such place as may be designated from time to
time by the Trustee. Notwithstanding the preceding sentence, unless the Trustee
otherwise directs the Maker, such payment shall be made by making funds in
lawful money of the United States of America available in the Collection Account
(as defined in the Indenture) for withdrawal by the Servicer on behalf of the
Trustee by wire transfer as and when necessary (including in advance of the due
date) to make timely payment of amounts due and payable on Outstanding
Securities in accordance with the provisions of the Indenture. Payment to the
Trustee shall constitute payment to the Payee for all purposes hereunder and in
respect hereof.
This Class [ ] Mortgage Note is secured by those certain
mortgages/deed of trust, dated as of the date hereof, made by the Maker to Payee
(the "Mortgage"). Capitalized terms used but not defined herein have the
respective meanings assigned to them in the Mortgage.
This Class [ ] Mortgage Note may be prepaid by the Maker, in whole
or in part, at the election of the Maker, and in certain circumstances is
required to be prepaid in whole or in part, by Maker, in each case pursuant to
the terms of the Mortgage. In the event that this Class [ ] Mortgage Note is
prepaid in part only, a new Class [ ] Mortgage Note for the unprepaid portion
hereof will be issued in the name of the Payee upon the cancellation hereof.
If an Event of Default, as defined in clauses (a) through (h) of
Section 23 of the Mortgage, shall have occurred
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and be continuing, the principal amount of this Class [ ] Mortgage Note may be
declared due and payable on demand by the Payee, and upon such declaration the
principal amount of this Class [ ] Mortgage Note shall become immediately due
and payable, together (to the extent permitted by law) with interest on any
unpaid amounts due under this Class [ ] Mortgage Note and the Make-Whole Amount.
If an Event of Default as defined in clause (i) or (j) of Article 23 of the
Mortgage shall have occurred and be continuing, the principal amount of this
Class [ ] Mortgage Note, together (to the extent permitted by law) with interest
on any unpaid amounts due under this Class [ ] Mortgage Note and the Make-Whole
Amount shall automatically become due and payable immediately without any action
whatsoever on the part of the Payee, with the effect, and subject to the
conditions, provided in the Mortgage.
The Make-Whole Amount shall be due and payable in accordance with
the terms of the Mortgage and upon the acceleration of the maturity of this
Class [ ] Mortgage Note by virtue of the occurrence and continuance of an Event
of Default, and said Make-Whole Amount shall be calculated by the Payee as
provided in the Mortgage.
The Maker confirms that the Make-Whole Amount described above is an
essential component of the consideration for the Payee's agreement to make the
loan to the Maker evidenced hereby. Such Make-Whole Amount represents a
reasonable estimate by the Maker and the Payee of a fair average compensation
for the loss that Payee will sustain due to the payment of any of the
indebtedness evidenced hereby prior to the maturity hereof. Such Make-Whole
Amount shall be paid without prejudice to the right of the Payee to collect any
other amounts provided to be paid hereunder or under any of the other Mortgage
Security Documents.
The Mortgage contains provisions for the release of the Mortgage
upon compliance by the Maker with certain conditions set forth therein.
Subject to Section 50 of the Mortgage, no reference herein to the
Mortgage and no provision of this Class [ ] Mortgage Note or the Mortgage shall
alter or impair the obligation of the Maker, which is absolute and
unconditional, to pay the principal of and interest (and Make-Whole Obligation,
if any) on this Class [ ] Mortgage Note at the times, places and rates, and in
the coin or currency, herein prescribed, subject to the provisions hereof
limiting the recourse of the holder of this Class [ ] Mortgage Note.
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As provided in Section 38 of the Mortgage, this Class [ ] Mortgage Note is
a non-recourse obligation of the Maker secured only by the Properties and the
other Mortgage Collateral and payable only therefrom. The provisions of Section
38 of the Mortgage are hereby incorporated by reference into this Class [ ]
Mortgage Note as if set forth in full herein.
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THIS CLASS [___] MORTGAGE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Maker has caused this instrument to be duly
executed on the date in the year first above written.
By:___________________________________
Name:
Title: ________________ of each of
the entities listed on the
attached Schedule A
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EXHIBIT D
Omitted
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EXHIBIT E
INSURANCE REQUIREMENTS
(a) Insurance with respect to the Improvements and the Equipment against
any peril included within the classification "All Risks of Physical Loss" with
extended coverage in amounts at all times sufficient to prevent the Mortgagor
from becoming co-insurer within the terms of the applicable policies, but in any
event such insurance shall be maintained in an amount equal to the full
insurable value of the Improvements and the Equipment, the term "full insurable
value" to mean the actual replacement cost of the Improvements and the Equipment
(without taking into account any depreciation, and exclusive of excavations,
footings and foundations, landscaping and paving) determined annually by an
insurer, a recognized independent insurance broker or an appraiser selected and
paid by the Mortgagor (unless reasonably disapproved by the Mortgagee) and in no
event less than the coverage required pursuant to the terms of any Lease;
(b) Comprehensive general liability insurance, including bodily injury,
death and property damage liability, and umbrella liability insurance against
any and all claims, including all legal liability to the extent insurable
imposed upon the Mortgagee and all court costs and attorneys' fees and expenses,
arising out of or connected with the possession, use, leasing, operation,
maintenance or condition of the Properties in such amounts as are generally
available at reasonable premiums and are generally required by institutional
lenders for properties comparable to the Properties;
(c) Statutory workers' compensation insurance (to the extent the risks to
be covered thereby are not already covered by other policies of insurance
maintained by the Mortgagor), with respect to any work on or about the
Properties;
(d) Business interruption and/or loss of "rental value" insurance in an
amount sufficient to avoid any co-insurance penalty and to provide Proceeds for
a period of not less than one year following restoration, the term "rental
value" to mean the sum of (A) the total rentals payable under the Leases and (B)
the total amount of all other amounts to be received by the Mortgagor or third
parties which are the legal obliga tion of the Tenants, reduced to the extent
such amounts would not be received because of expenses not incurred during a
period of non-occupancy of that portion of the affected
Property then not being occupied;
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(e) Broad form boiler and machinery insurance (without exclusion for
explosion) covering all boilers or other pressure vessels, machinery and
equipment located in, on or about the Properties and insurance against loss of
occupancy or use arising from any such breakdown in such amounts as are
generally available at reasonable premiums and are generally required by
institutional lenders for properties comparable to the Properties;
(f) If a Property is located within a federally designated "100 year flood
plain", flood insurance if generally available at reasonable premiums and in
such amount as generally required by institutional lenders for similar
properties (provided, however, that if the Mortgagor believes that it is no
longer obligated to maintain flood insurance pursuant to this provision, the
Mortgagor shall notify the Mortgagee of such circumstance and the Mortgagee
shall have the opportunity to contest by appropriate legal or mutually agreeable
arbitration proceedings whether or not the Mortgagor's obligation remains in
effect in light of the criteria set forth in this provision); and
(g) Such other insurance with respect to a Property against loss or damage
of the kinds from time to time customarily insured against and in such amounts
as are generally available at reasonable premiums and are generally required by
institutional lenders for properties comparable to such Property.
Ratings of Insurers: The Mortgagor will maintain a portion of the
insurance coverage described in clause (a) above in an amount at least equal to
the Maximum Foreseeable Casualty Loss and the insurance coverage described in
clause (d) above, with either the insurers who insure the Property on the date
of this Mortgage (including Arkwright) (but only so long as the ratings of such
insurers are not reduced to a level below that permitted by this Paragraph or
withdrawn) or one or more other primary insurers having (or a syndicate (i.e.,
either a consortium or a co-insurance group as with the policy on the Property
existing on the date hereof) of insurers through which the coverage is with
carriers having) a claims paying ability as determined by ▇▇▇▇▇'▇, and by DCR if
such insurance companies are rated by DCR and if not rated by DCR, then A by one
additional NRSRO, of not less than one grade less than the highest ratings then
assigned to the Notes by the Rating Agencies (i.e., if the Notes are rated
"Aaa", the insurers' rating shall be not less than "Aa2"), but in no event less
than A2 or "A"; the coverage described in clauses (b) and (c) shall be
maintained with either the insurers who insure the Property on the date of
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164
this Mortgage or one or more other primary insurers (or a syndicate (as defined
above) of insurers through which at least 75% of the coverage (if there are four
or fewer members of the syndicate) or at least 60% of the coverage (if there are
five or more members of the syndicate)) having a claims paying ability of not
less than Investment Grade by ▇▇▇▇▇'▇ (or equivalent), and by DCR if such
insurance companies are rated by DCR and if not so rated by DCR, then A by one
additional NRSRO. The coverage described in clause (c) shall be maintained with
either an insurer having a claims paying ability of not less than Investment
Grade or the applicable state workers' compensation fund. In each case, however,
if no providers of such insurance are so rated, the requirement for such rating
shall be the highest rating then given to insurers by ▇▇▇▇▇'▇ and DCR; and
provided further that in the event of any loss, claims in respect of a portion
of such insurance maintained in accordance with clause (a) above shall be
payable prior to claims in respect of the remaining portion(s) of the insurance
required by such clauses.
All insurance coverage shall be provided by one or more primary
insurers having an ▇▇▇▇▇▇ ▇. Best Company, Inc. rating of "A-VIII" or better
except to the extent that insurance in force on the date of this Mortgage does
not satisfy such criteria or if otherwise approved by the Mortgagee.
The insurance coverage required under this Exhibit E may be effected
under a blanket policy or policies covering the Properties and other properties
and assets not constituting Properties; provided that any such blanket policy
shall specify, except in the case of public liability insurance, the portion of
the total coverage of such policy that is allocated to the Properties, and any
sublimits in such blanket policy applicable to the Properties, which amounts
shall not be less than the amounts required pursuant to Section 13 and this
Exhibit E. and which shall in any case comply in all other respects with the
requirements of this Section 13 and this Exhibit E.
The "Maximum Foreseeable Casualty Loss" shall be the estimate of the
Qualified Fire Protection Engineer then being used by the Mortgagor (unless
reasonably disapproved by the Mortgagee) in connection with its existing
insurance package of the maximum probable casualty loss which would be incurred
in respect of the Premises as a result of damage caused by the perils covered by
the insurance described in clause (a) above.
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EXHIBIT F
ASSUMPTION
THE UNDERSIGNED, _____________________, has acquired [specify either
(i) the "Properties" which are the subject of or (ii) an interest in the
"Mortgagor" under] that certain "MORTGAGE, SECURITY AGREEMENT AND ASSIGNMENT OF
LEASES AND RENTS" (the "Mortgage"), dated as of [__________], 2000, executed by
THE PERSONS SPECIFIED ON SCHEDULE A HERETO, to VORNADO FINANCE L.L.C., a
Delaware limited liability company, as mortgagee, said Mortgage constituting a
first lien encumbrance on certain real and personal property described in
Exhibit A to the Mortgage.
In accordance with the requirements of [specify either (i) Section
19.1 or (ii) Section 19.2, as appropriate, of the Mortgage], the undersigned
hereby assumes all of the duties and obligations and covenants of the Mortgagor
under or pursuant to the Mortgage, subject, however, to the provisions of
Article 38 of the Mortgage.
IN WITNESS WHEREOF, the undersigned has executed this Assumption as
of the ____ day of _______________, 20__.
______________________________________
By:___________________________________
Name:
Title:
[ADD APPROPRIATE FORM OF ACKNOWLEDGMENT]
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EXHIBIT G
SUBORDINATION PROVISIONS FOR TENANT LEASES
Each Lease shall contain a provision whereby the Tenant agrees
either that its Lease shall be subordinate to the Mortgage and that the Tenant
shall attorn under the Lease to any Person obtaining title to the Property,
which subordination and attornment may be conditioned on delivery of a
reasonable and customary nondisturbance agreement, or that its Lease shall be
senior to the Mortgage and that the tenant shall attorn under the Lease to any
Person obtaining title to the Property.
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EXHIBIT H
Intentionally Omitted
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EXHIBIT I
PRINCIPAL INSTALLMENT AMOUNTS
Payment Date Occurring In Principal Payment
------------------------- -----------------
Mar-2000 $ 0.00
Apr-2000 350,638.21
May-2000 352,837.77
Jun-2000 355,051.12
Jul-2000 357,278.35
Aug-2000 359,519.56
Sep-2000 361,774.83
Oct-2000 364,044.24
Nov-2000 366,327.89
Dec-2000 368,625.87
Jan-2001 370,938.26
Feb-2001 373,265.15
Mar-2001 375,606.64
Apr-2001 377,962.82
May-2001 380,333.78
Jun-2001 382,719.62
Jul-2001 385,120.42
Aug-2001 387,536.28
Sep-2001 389,967.29
Oct-2001 392,413.56
Nov-2001 394,875.17
Dec-2001 397,352.22
Jan-2002 399,844.81
Feb-2002 402,353.04
Mar-2002 404,877.00
Apr-2002 407,416.79
May-2002 409,972.52
Jun-2002 412,544.28
Jul-2002 415,132.17
Aug-2002 417,736.29
Sep-2002 420,356.75
Oct-2002 422,993.65
Nov-2002 425,647.09
Dec-2002 428,317.17
Jan-2003 431,004.00
Feb-2003 433,707.69
Mar-2003 436,428.34
Apr-2003 439,166.06
May-2003 441,920.94
Jun-2003 444,693.11
Jul-2003 447,482.67
Aug-2003 450,289.73
Sep-2003 453,114.40
Oct-2003 455,956.79
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169
Nov-2003 458,817.00
Dec-2003 461,695.16
Jan-2004 464,591.38
Feb-2004 467,505.76
Mar-2004 470,438.42
Apr-2004 473,389.48
May-2004 476,359.05
Jun-2004 479,347.26
Jul-2004 482,354.20
Aug-2004 485,380.01
Sep-2004 488,424.80
Oct-2004 491,488.69
Nov-2004 494,571.79
Dec-2004 497,674.24
Jan-2005 500,796.15
Feb-2005 503,937.65
Mar-2005 507,098.85
Apr-2005 510,279.88
May-2005 513,480.87
Jun-2005 516,701.93
Jul-2005 519,943.20
Aug-2005 523,204.81
Sep-2005 526,486.87
Oct-2005 529,789.52
Nov-2005 533,112.89
Dec-2005 536,457.11
Jan-2006 539,822.30
Feb-2006 543,208.61
Mar-2006 546,616.16
Apr-2006 550,045.08
May-2006 553,495.51
Jun-2006 556,967.59
Jul-2006 560,461.45
Aug-2006 563,977.22
Sep-2006 567,515.05
Oct-2006 571,075.07
Nov-2006 574,657.43
Dec-2006 578,262.25
Jan-2007 581,889.69
Feb-2007 585,539.89
Mar-2007 589,212.98
Apr-2007 592,909.11
May-2007 596,628.43
Jun-2007 600,371.08
Jul-2007 604,137.21
Aug-2007 607,926.96
Sep-2007 611,740.49
Oct-2007 615,577.94
Nov-2007 619,439.46
Dec-2007 623,325.20
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Jan-2008 627,235.32
Feb-2008 631,169.97
Mar-2008 635,129.29
Apr-2008 639,113.46
May-2008 643,122.62
Jun-2008 647,156.93
Jul-2008 651,216.54
Aug-2008 655,301.62
Sep-2008 659,412.33
Oct-2008 663,548.83
Nov-2008 667,711.27
Dec-2008 671,899.82
Jan-2009 676,114.65
Feb-2009 680,355.91
Mar-2009 684,623.79
Apr-2009 688,918.43
May-2009 693,240.02
Jun-2009 697,588.71
Jul-2009 701,964.69
Aug-2009 706,368.11
Sep-2009 710,799.16
Oct-2009 715,258.00
Nov-2009 719,744.81
Dec-2009 724,259.77
Jan-2010 728,803.06
Feb-2010 733,377.31
Mar-2010 438,253,292.09
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