AMENDED, RESTATED AND CONSOLIDATED
MORTGAGE AND SECURITY AGREEMENT
dated as of December 13, 1999
from
1290 PARTNERS, L.P., a Delaware limited partnership
having an address at
c/o ▇▇▇▇▇▇ Capital Group, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Ms. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
to
GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent for the Lenders
having an address at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
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Premises: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
Section 5, Block 1267, Lot 1
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Prepared and drafted by and after recording return to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
AMENDED, RESTATED AND CONSOLIDATED
MORTGAGE AND SECURITY AGREEMENT
-------------------------------
This Amended, Restated and Consolidated Mortgage and Security Agreement
(this "Mortgage") is executed as of December 13, 1999, by 1290 PARTNERS, L.P., a
Delaware limited partnership ("Mortgagor"), whose address for notice hereunder
is c/o ▇▇▇▇▇▇ Capital Group, L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Ms. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, for the benefit of GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation, as Administrative Agent for the Lenders (as
hereinafter defined; and in such capacity, together with its successors and
assigns in such capacity, "Mortgagee"), whose address for notice is ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇.
RECITALS
WHEREAS, Mortgagor is the owner of the fee estate in the real property
described in Exhibit A attached hereto (the "Land");
WHEREAS, Mortgagee is the present owner and holder of the notes, bonds
and/or other evidences of indebtedness described in Schedule 1 attached hereto
and made a part hereof (collectively, the "Existing Notes"), which Existing
Notes evidence an indebtedness of Mortgagor to the Lenders in the aggregate
outstanding principal amount of $425,000,000;
WHEREAS, the Existing Notes are secured by the mortgages described in
Schedule 2 attached hereto (collectively, the "Existing Mortgage"), which
Existing Mortgages constitute first and second priority liens on the Mortgaged
Property (as hereinafter defined) securing the aggregate outstanding principal
amount of $425,000,000;
WHEREAS, pursuant to an Amended, Restated and Consolidated Promissory
Note, dated as of the date hereof (together with all promissory notes delivered
in substitution or exchange therefor, in each case as the same may be
consolidated, severed, split, modified, amended or extended from time to time,
the "Notes"), the terms and conditions of the Existing Notes are being combined,
consolidated, modified, amended and restated in their entirety so as to
constitute a single indebtedness in the outstanding principal amount of
$425,000,000 payable in accordance with the terms of such Notes;
WHEREAS, Mortgagor and Mortgage have agreed in the manner hereinafter
set forth to (i) combine and consolidate the Existing Mortgages and the
respective liens thereof and (ii) amend, modify and restate in their entirety
the terms and provisions of the Existing Mortgages on the terms and conditions
hereinafter set forth; and
WHEREAS, Mortgagor and Mortgagee intend these Recitals to be a material
part of this Mortgage.
NOW, THEREFOR, in consideration of the premises and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
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A. The Existing Mortgages and the respective liens thereof are each
hereby combined and consolidated so that together they shall constitute in law
but one (1) mortgage, a single first priority lien, covering the Mortgaged
Property and securing the principal sum of $425,000,000, together with interest
and additional interest thereon as provided in the Note and the other Loan
Documents (as hereinafter defined), and the terms, covenants, conditions and
provisions of the Existing Mortgages, as so combined and consolidated, are
hereby amended, modified and restated in their entirety so that henceforth the
terms, covenants, conditions and provisions of the Existing Mortgages shall read
and be as set forth in this Mortgage and Mortgagor agrees to comply with and be
subject to all the terms, covenants, conditions and provisions of this Mortgage.
B. Mortgagor hereby certifies that this Mortgage secures the same
indebtedness evidenced by the Existing Notes and secured by the Existing
Mortgages, respectively, and secures no further or other or indebtedness or
obligation. Neither this Mortgage nor anything contained herein shall be
construed as a novation of Mortgagor's indebtedness to the Lenders or of the
Existing Notes, which shall remain in full force and effect as hereby confirmed,
combined, consolidated, modified, restated and superseded.
C. This Mortgage is an extension and continuation of the existing
indebtedness evidenced and secured by the Existing Notes and the Existing
Mortgages.
D. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE
MAXIMUM AMOUNT OF PRINCIPAL INDEBTEDNESS SECURED BY THIS MORTGAGE AT THE TIME OF
EXECUTION OR WHICH UNDER ANY CONTINGENCY MAY HEREAFTER BECOME SECURED BY THIS
MORTGAGE AT
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ANY TIME IS FOUR HUNDRED TWENTY FIVE MILLION DOLLARS ($425,000,000); TOGETHER
WITH (A) INTEREST, INCLUDING, WITHOUT LIMITATION, ADDITIONAL INTEREST, ON THE
AFORESAID PRINCIPAL INDEBTEDNESS AT THE RATES SET FORTH IN THE NOTES AND (B)
AMOUNTS EXPENDED BY MORTGAGEE AFTER DEFAULT OF SUMS ADVANCED OR PAID FOR
HEREUNDER TO MAINTAIN THE LIEN OF THIS MORTGAGE OR TO PROTECT THE PREMISES
SECURED BY THIS MORTGAGE, INCLUDING, WITHOUT LIMITATION, AMOUNTS IN RESPECT OF
INSURANCE PREMIUMS, IMPOSITIONS (OR PAYMENTS IN LIEU OF IMPOSITIONS), LITIGATION
EXPENSES TO PROSECUTE OR DEFEND THE RIGHTS, REMEDIES AND LIEN OF THIS MORTGAGE
OR TITLE TO THE PREMISES SECURED HEREBY, AND ANY COSTS, CHARGES OR AMOUNTS TO
WHICH MORTGAGEE OR THE LENDERS BECOME SUBROGATED UPON PAYMENT, WHETHER UNDER
RECOGNIZED PRINCIPLES OF LAW OR EQUITY OR UNDER EXPRESS STATUTORY AUTHORITY.
E. The Existing Mortgages, as combined, consolidated, modified and
restated pursuant to this Mortgage, and obligations of Mortgagor hereunder, are
hereby ratified and confirmed and shall remain in full force and effect until
the full payment, performance and satisfaction of the obligations of Mortgagor
hereunder.
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used herein, the following terms shall
have the following meanings:
(a) "Indebtedness": The sum of all (1) principal, interest,
additional interest and other amounts due under or secured by the Loan
Documents, (2) principal, interest and other amounts which may hereafter be
loaned by the Lenders, their successors or assigns, to or for the benefit of the
owner of the Mortgaged Property, when evidenced by promissory notes or other
instruments which, by their terms, are secured hereby, and (3) all other
indebtedness, obligations and liabilities now or hereafter existing of any kind
of Mortgagor to Mortgagee or the Lenders under documents which recite that they
are intended to be secured by this Mortgage; provided that the maximum principal
amount of indebtedness which is or under any contingency may be secured by this
Mortgage at the date of execution hereof or at any time thereafter is
$425,000,000.
(b) "Lenders": The syndicate of Lenders party to the Loan Agreement.
(c) "Loan Documents": The (1) Loan Agreement of even date between
Mortgagor, Mortgagee and the Lenders (the "Loan Agreement"), (2) the Notes, (3)
this Mortgage, (4) all other documents now or hereafter executed by Mortgagor,
or any other person or entity to evidence or secure the payment of the
Indebtedness or the performance of the Obligations and (5) all modifications,
restatements, extensions, renewals and replacements of the foregoing.
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(d) "Mortgaged Property": (1) the Land, (2) all buildings,
structures and other improvements, now or at any time situated, placed or
constructed upon the Land (the "Improvements"), (3) all materials, supplies,
equipment, apparatus and other items of personal property now owned or hereafter
acquired by Mortgagor and now or hereafter attached to, installed in or used in
connection with any of the Improvements or the Land, and water, gas, electrical,
storm and sanitary sewer facilities and all other utilities whether or not
situated in easements (the "Fixtures"), (4) all right, title and interest of
Mortgagor in and to all goods, accounts, general intangibles, instruments,
documents, chattel paper and all other personal property of any kind or
character, including such items of personal property as defined in the UCC, now
owned or hereafter acquired by Mortgagor and now or hereafter affixed to, placed
upon, used in connection with, arising from or otherwise related to the Land and
Improvements or which may be used in or relating to the planning, development,
financing or operation of the Mortgaged Property, including, without limitation,
furniture, furnishings, equipment, machinery, money, insurance proceeds,
accounts, contract rights, trademarks, goodwill, chattel paper, documents, trade
names, licenses and/or franchise agreements, rights of Mortgagor under leases of
Fixtures or other personal property or equipment, inventory, all refundable,
returnable or reimbursable fees, deposits or other funds or evidences of credit
or indebtedness deposited by or on behalf of Mortgagor with any governmental
authorities, boards, corporations, providers of utility services, public or
private, including specifically, but without limitation, all refundable,
returnable or reimbursable tap fees, utility deposits, commitment fees and
development costs (the "Personalty"), (5) all reserves, escrows or impounds
required under the Loan Agreement and all deposit accounts maintained by
Mortgagor with respect to the Mortgaged Property, (6) all plans, specifications,
shop drawings and other technical descriptions prepared for construction, repair
or alteration of the Improvements, and all amendments and modifications thereof
(the "Plans"), (7) all leases, subleases, licenses, concessions, occupancy
agreements or other agreements
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(written or oral, now or at any time in effect) which grant a possessory
interest in, or the right to use, all or any part of the Mortgaged Property,
together with all related security and other deposits (the "Leases"), (8) all of
the rents, revenues, income, proceeds, profits, security and other types of
deposits, and other benefits paid or payable by parties to the Leases other than
Mortgagor for using, leasing, licensing, possessing, operating from, residing
in, selling or otherwise enjoying the Mortgaged Property (the "Rents"), (9) all
other agreements, such as construction contracts, architects' agreements,
engineers' contracts, utility contracts, maintenance agreements, management
agreements, service contracts, permits, licenses, certificates and entitlements
in any way relating to the development, construction, use, occupancy, operation,
maintenance, enjoyment, acquisition or ownership of the Mortgaged Property (the
"Property Agreements"), (10) all rights, privileges, tenements, hereditaments,
rights-of-way, easements, appendages and appurtenances appertaining to the
foregoing, and all right, title and interest, if any, of Mortgagor in and to any
streets, ways, alleys, strips or gores of land adjoining the Land or any part
thereof, (11) all accessions, replacements and substitutions for any of the
foregoing and all proceeds thereof, (12) all insurance policies, unearned
premiums therefor and proceeds from such policies covering any of the above
property now or hereafter acquired by Mortgagor, (13) all mineral, water, oil
and gas rights now or hereafter acquired and relating to all or any part of the
Mortgaged Property, and (14) all of Mortgagor's right, title and interest in and
to any awards, remunerations, reimbursements, settlements or compensation
heretofore made or hereafter to be made by any governmental authority pertaining
to the Land, Improvements, Fixtures or Personalty. As used in this Mortgage, the
term "Mortgaged Property" shall mean all or, where the context permits or
requires, any portion of the above or any interest therein.
(e) "Obligations": All of the agreements, covenants, conditions,
warranties, representations and other obligations (other than to repay the
Indebtedness) made or undertaken
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by Mortgagor or any other person or entity to Mortgagee, the Lenders or others
as set forth in the Loan Documents.
(f) "Permitted Encumbrances": The outstanding liens, easements,
restrictions, security interests and other exceptions to title set forth in the
policy of title insurance insuring the lien of this Mortgage, and such other
similar matters as may be agreed to and/or accepted by Mortgagee from time to
time in writing in its sole discretion, together with the liens and security
interests in favor of Mortgagee created by the Loan Documents, none of which,
individually or in the aggregate, materially interferes with the benefits
intended to be provided by this Mortgage, materially and adversely affects the
value of the Mortgaged Property, impairs the use or operations of the Mortgaged
Property, or impairs Mortgagor's ability to pay its obligations in a timely
manner.
(g) "UCC": The Uniform Commercial Code of New York.
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ARTICLE II
GRANT
-----
Section 2.1 Grant. To secure the full and timely payment of the
Indebtedness and the full and timely performance of the Obligations, Mortgagor
MORTGAGES, GRANTS, BARGAINS, SELLS and CONVEYS, to Mortgagee (on behalf of the
Lenders) the Mortgaged Property, subject, however, to the Permitted
Encumbrances, TO HAVE AND TO HOLD the Mortgaged Property to Mortgagee and
Mortgagor does hereby bind itself, its successors and assigns to WARRANT AND
FOREVER DEFEND the title to the Mortgaged Property unto Mortgagee.
ARTICLE III
WARRANTIES, REPRESENTATIONS AND COVENANTS
-----------------------------------------
Mortgagor warrants, represents and covenants to Mortgagee and the
Lenders as follows:
Section 3.1 Title to Mortgaged Property and Lien of this Instrument.
Mortgagor owns the Mortgaged Property free and clear of any liens, claims or
interests, except the Permitted Encumbrances. This Mortgage creates valid,
enforceable first priority liens and security interests against the Mortgaged
Property.
Section 3.2 First Lien Status. Mortgagor shall preserve and protect the
first lien and security interest status of this Mortgage and the other Loan
Documents. If any lien or security interest other than the Permitted
Encumbrances is asserted against the Mortgaged Property, Mortgagor shall
promptly, and at its expense, (a) give Mortgagee a detailed written notice of
9
such lien or security interest (including origin, amount and other terms), and
(b) pay the underlying claim in full or take such other action so as to cause it
to be released or contest the same in compliance with the requirements of the
Loan Agreement (including the requirement of providing a bond or other security
satisfactory to Mortgagee).
Section 3.3 Payment and Performance. Mortgagor shall pay the
Indebtedness when due under the Loan Documents and shall perform the Obligations
in full when they are required to be performed.
Section 3.4 Replacement of Fixtures and Personalty. Mortgagor shall
not, without the prior written consent of Mortgagee, permit any of the Fixtures
or Personalty to be removed at any time from the Land or Improvements, unless
the removed item is removed temporarily for maintenance and repair or, if
removed permanently, is replaced by an article of equal or better suitability
and value, owned by Mortgagor subject to the liens and security interests of
this Mortgage and the other Loan Documents, and free and clear of any other lien
or security interest except such as may be first approved in writing by
Mortgagee.
Section 3.5 Maintenance of Rights of Way, Easements and Licenses.
Mortgagor shall maintain all rights of way, easements, grants, privileges,
licenses, certificates, permits, entitlements and franchises necessary for the
use of the Mortgaged Property and will not, without the prior consent of
Mortgagee, consent to any public restriction (including any zoning ordinance) or
private restriction as to the use of the Mortgaged Property. Mortgagor shall
comply with all restrictive covenants affecting the Mortgaged Property, and all
zoning ordinances and other public or private restrictions as to the use of the
Mortgaged Property.
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Section 3.6 Inspection. Subject to the applicable provisions of the
Loan Agreement, Mortgagor shall permit Mortgagee, each Lender and Mortgagee's
and the Lenders' agents, representatives and employees, upon reasonable prior
notice to Mortgagor, to inspect the Mortgaged Property and conduct such
environmental and engineering studies as Mortgagee may require, provided that
such inspections and studies shall not materially interfere with the use and
operation of the Mortgaged Property.
Section 3.7 Other Covenants. All of the covenants in the Loan Agreement
are incorporated herein by reference and, together with covenants in this
Article 3, shall be covenants running with the land. The covenants set forth in
the Loan Agreement include, among other provisions: (a) the prohibition against
the further sale, transfer or encumbering of any of the Mortgaged Property,
except as expressly permitted thereby, (b) the obligation to pay when due (or
contest in accordance with the Loan Agreement) all taxes on the Mortgaged
Property or assessed against Mortgagee with respect to the Loan, (c) the
obligation to keep the Mortgaged Property insured as Mortgagee may require, (d)
the obligation to comply with (or contest in accordance with the Loan Agreement)
all legal requirements (including environmental laws), maintain the Mortgaged
Property in good condition, and promptly repair any damage or casualty, and (e)
except as otherwise permitted under the Loan Agreement, the obligation of
Mortgagor to obtain Mortgagee's consent prior to entering into, modifying or
taking other actions with respect to Leases.
Section 3.8 Condemnation Awards and Insurance Proceeds.
(a) Condemnation Awards. Mortgagor assigns all awards and
compensation for any condemnation or other taking, or any purchase in lieu
thereof, to Mortgagee (on behalf of the
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Lenders) and authorizes Mortgagee to collect and receive such awards and
compensation and to give proper receipts and acquittances therefor, subject to
the terms of the Loan Agreement.
(b) Insurance Proceeds. Mortgagor assigns to Mortgagee (on behalf of
the Lenders) all proceeds of any insurance policies insuring against loss or
damage to the Mortgaged Property. Mortgagor authorizes Mortgagee to collect and
receive such proceeds and authorizes and directs the issuer of each of such
insurance policies to make payment for all such losses directly to Mortgagee,
instead of to Mortgagor and Mortgagee jointly, subject to the terms of the Loan
Agreement.
ARTICLE IV
DEFAULT AND FORECLOSURE
-----------------------
Section 4.1 Remedies. If an Event of Default (as defined in the Loan
Agreement) exists, Mortgagee may, at Mortgagee's election, exercise any or all
of the following rights, remedies and recourses:
(a) Acceleration. Declare the Indebtedness to be immediately due and
payable, without further notice, presentment, protest, notice of intent to
accelerate, notice of acceleration, demand or action of any nature whatsoever
(each of which hereby is expressly waived by Mortgagor), whereupon the same
shall become immediately due and payable.
(b) Entry on Mortgaged Property. Enter the Mortgaged Property and
take exclusive possession thereof and of all books, records and accounts
relating thereto. If Mortgagor remains in possession of the Mortgaged Property
after an Event of Default and
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without Mortgagee's prior written consent, Mortgagee may invoke any legal
remedies to dispossess Mortgagor.
(c) Operation of Mortgaged Property. Hold, lease, develop, manage,
operate or otherwise use the Mortgaged Property upon such terms and conditions
as Mortgagee may deem reasonable under the circumstances (making such repairs,
alterations, additions and improvements and taking other actions, from time to
time, as Mortgagee deems necessary or desirable), and apply all Rents and other
amounts collected by Mortgagee in connection therewith in accordance with the
provisions of Section 4.7.
(d) Foreclosure and Sale. Institute proceedings for the complete
foreclosure of this Mortgage, in which case the Mortgaged Property may be sold
for cash or credit in one or more parcels. With respect to any notices required
or permitted under the UCC, Mortgagor agrees that five (5) days' prior written
notice shall be deemed commercially reasonable. At any such sale by virtue of
any judicial proceedings or any other legal right, remedy or recourse, the title
to and right of possession of any such property shall pass to the purchaser
thereof, and to the fullest extent permitted by law, Mortgagor shall be
completely and irrevocably divested of all of its right, title, interest, claim
and demand whatsoever, either at law or in equity, in and to the property sold
and such sale shall be a perpetual bar both at law and in equity against
Mortgagor, and against all other persons claiming or to claim the property sold
or any part thereof, by, through or under Mortgagor. Mortgagee, the Lenders or
their nominee may be a purchaser at such sale and if Mortgagee, the Lenders or
such nominee is the highest bidder, may credit the portion of the purchase price
that would be distributed to Mortgagee (on behalf of the Lenders) against the
Indebtedness in lieu of paying cash.
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(e) Receiver. Make application to a court of competent jurisdiction
for, and obtain from such court as a matter of strict right and without notice
to Mortgagor or regard to the adequacy of the Mortgaged Property for the
repayment of the Indebtedness, the appointment of a receiver of the Mortgaged
Property, and Mortgagor irrevocably consents to such appointment. Any such
receiver shall have all the usual powers and duties of receivers in similar
cases, including the full power to rent, maintain and otherwise operate the
Mortgaged Property upon such terms as may be approved by the court, and shall
apply such Rents in accordance with the provisions of Section 4.7.
(f) Other. Exercise all other rights, remedies and recourses granted
under the Loan Documents or otherwise available at law or in equity (including
an action for specific performance of any covenant contained in the Loan
Documents, or a judgment on the Note either before, during or after any
proceeding to enforce this Mortgage).
Section 4.2 Separate Sales. The Mortgaged Property may be sold in one
or more parcels and in such manner and order as Mortgagee in its sole
discretion, may elect; the right of sale arising out of any Event of Default
shall not be exhausted by any one or more sales.
Section 4.3 Remedies Cumulative, Concurrent and Nonexclusive. Mortgagee
shall have all rights, remedies and recourses granted in the Loan Documents and
available at law or equity (including the UCC), which rights (a) shall be
cumulative and concurrent, (b) may be pursued separately, successively or
concurrently against Mortgagor or others obligated under the Note and the other
Loan Documents, or against the Mortgaged Property, or against any one or more of
them, at the sole discretion of Mortgagee, (c) may be exercised as often as
occasion therefor shall arise, and the exercise or failure to exercise any of
them shall not be construed as a
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waiver or release thereof or of any other right, remedy or recourse, and (d) are
intended to be, and shall be, nonexclusive. No action by Mortgagee or any Lender
in the enforcement of any rights, remedies or recourses under the Loan Documents
or otherwise at law or equity shall be deemed to cure any Event of Default.
Section 4.4 Release of and Resort to Collateral. Mortgagee may release,
regardless of consideration and without the necessity for any notice to a
consent by the holder of any subordinate lien on the Mortgaged Property, any
part of the Mortgaged Property without, as to the remainder, in any way
impairing, affecting, subordinating or releasing the lien or security interests
created in or evidenced by the Loan Documents or their stature as a first and
prior lien and security interest in and to the Mortgaged Property. For payment
of the Indebtedness, Mortgagee and the Lenders may resort to any other security
in such order and manner as Mortgagee and the Lenders may elect.
Section 4.5 Waiver of Redemption, Notice and Marshalling of Assets. To
the fullest extent permitted by law, Mortgagor hereby irrevocably and
unconditionally waives and releases (a) all benefit that might accrue to
Mortgagor by virtue of any present or future statute of limitations or law or
judicial decision exempting the Mortgaged Property from attachment, levy or sale
on execution or providing for any appraisement, valuation, stay of execution,
exemption from civil process, redemption or extension of time for payment, (b)
all notices of any Event of Default, except as expressly required by the Loan
Agreement, or of Mortgagee's and the Lenders' election to exercise or their
actual exercise of any right, remedy or recourse provided for under the Loan
Documents, and (c) any right to a marshalling of assets or a sale in inverse
order of alienation.
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Section 4.6 Discontinuance of Proceedings. If Mortgagee and/or the
Lenders shall have proceeded to invoke any right, remedy or recourse permitted
under the Loan Documents and shall thereafter elect to discontinue or abandon it
for any reason, Mortgagee and the Lenders shall have the unqualified right to do
so and, in such an event, Mortgagor, Mortgagee and the Lenders shall be restored
to their former positions with respect to the Indebtedness, the Obligations, the
Loan Documents, the Mortgaged Property and otherwise, and the rights, remedies,
recourses and powers of Mortgagee and the Lenders shall continue as if the
right, remedy or recourse had never been invoked, but no such discontinuance or
abandonment shall waive any Event of Default which may then exist or the right
of Mortgagee or the Lenders thereafter to exercise any right, remedy or recourse
under the Loan Documents for such Event of Default.
Section 4.7 Application of Proceeds. The proceeds of any sale of, and
the Rents and other amounts generated by the holding, leasing, management,
operation or other use of the Mortgaged Property, shall be applied by Mortgagee
(or the receiver, if one is appointed) in the following order unless otherwise
required by applicable law:
(a) to the payment of the costs and expenses of taking possession of
the Mortgaged Property and of holding, using, leasing, repairing, improving and
selling the same, including, without limitation (1) receiver's fees and
expenses, (2) court costs, (3) attorneys' and accountants' fees and expenses,
(4) costs of advertisement, and (5) the payment of all ground rent, real estate
taxes and assessments, except any taxes, assessments or other charges subject to
which the Mortgaged Property shall have been sold;
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(b) to the payment of all amounts (including interest), other than
the unpaid principal balance of the Notes and accrued but unpaid interest, which
may be due to Mortgagee and/or the Lenders under the Loan Documents;
(c) to the payment of the Indebtedness and performance of the
Obligations in such manner and order of preference as Mortgagee in its sole
discretion may determine; and
(d) the balance, if any, to the payment of the persons legally
entitled thereto.
Section 4.8 Occupancy After Foreclosure. The purchaser at any
foreclosure sale pursuant to Section 4.1(d) shall become the legal owner of the
Mortgaged Property. All occupants of the Mortgaged Property shall, at the option
of such purchaser, become tenants of the purchaser at the foreclosure sale and
shall deliver possession thereof immediately to the purchaser upon demand,
subject to the terms of any subordination, non-disturbance and attornment
agreements binding upon such purchaser and such occupants. It shall not be
necessary for the purchaser at said sale to bring any action for possession of
the Mortgaged Property other than the statutory action of forcible detainer in
any justice court having jurisdiction over the Mortgaged Property.
Section 4.9 Additional Advances and Disbursements; Costs of
Enforcement.
(a) If any Event of Default exists, Mortgagee and the Lenders shall
have the right, but not the obligation, to cure such Event of Default in the
name and on behalf of Mortgagor. All sums advanced and expenses incurred at any
time by Mortgagee or the Lenders under this Section 4.9, or otherwise under this
Mortgage or any of the other Loan Documents or applicable law, shall bear
interest from the date that such sum is advanced or expense incurred, to and
17
including the date of reimbursement, computed at the Default Rate (as defined in
the Loan Agreement), and all such sums, together with interest thereon, shall be
secured by this Mortgage.
(b) Mortgagor shall pay all expenses (including reasonable
attorneys' fees and expenses) of or incidental to the perfection and enforcement
of this Mortgage and the other Loan Documents, or the enforcement, compromise or
settlement of the Indebtedness or any claim under this Mortgage and the other
Loan Documents, and for the curing thereof, or for defending or asserting the
rights and claims of Mortgagee and the Lenders in respect thereof, by litigation
or otherwise.
Section 4.10 No Mortgagee in Possession. Neither the enforcement of any
of the remedies under this Article 4, the assignment of the Rents and Leases
under Article 5, the security interests under Article 6, nor any other remedies
afforded to Mortgagee and/or the Lenders under the Loan Documents, at law or in
equity shall cause Mortgagee or any Lender to be deemed or construed to be a
mortgagee in possession of the Mortgaged Property, to obligate Mortgagee or any
Lender to lease the Mortgaged Property or attempt to do so, or to take any
action, incur any expense, or perform or discharge any obligation, duty or
liability whatsoever under any of the Leases or otherwise.
ARTICLE V
ASSIGNMENT OF RENTS AND LEASES
------------------------------
Section 5.1 Assignment. Mortgagor acknowledges and confirms that it has
executed and delivered to Mortgagee (on behalf of the Lenders) an Assignment of
Rents and Leases of even date (the "Assignment of Rents and Leases"), intending
that such instrument create a
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present, absolute assignment to Mortgagee of the Leases and Rents. Without
limiting the intended benefits or the remedies provided under the Assignment of
Rents and Leases, Mortgagor hereby assigns to Mortgagee (on behalf of the
Lenders), as further security for the Indebtedness and the Obligations, the
Leases and Rents. While any Event of Default exists, Mortgagee shall be entitled
to exercise any or all of the remedies provided in the Assignment of Rents and
Leases and in Article 4 hereof, including the right to have a receiver
appointed. If any conflict or inconsistency exists between the assignment of the
Rents and the Leases in this Mortgage and the absolute assignment of the Rents
and the Leases in the Assignment of Rents and Leases, the terms of the
Assignment of Rents and Leases shall control.
Section 5.2 No Merger of Estates. So long as any part of the
Indebtedness and the Obligations secured hereby remain unpaid and undischarged,
the fee and leasehold estates to the Mortgaged Property shall not merge, but
shall remain separate and distinct, notwithstanding the union of such estates
either in Mortgagor, Mortgagee, any lessee or any third party by purchase or
otherwise.
ARTICLE VI
SECURITY AGREEMENT
------------------
Section 6.1 Security Interest. This Mortgage constitutes a "Security
Agreement" on personal property within the meaning of the UCC and other
applicable law and with respect to the Personalty, Fixtures, Plans, Leases,
Rents and Property Agreements. To this end, Mortgagor grants to Mortgagee (on
behalf of the Lenders), a first and prior security interest in the Personalty,
Fixtures, Plans, Leases, Rents and Property Agreements and all other Mortgaged
Property which is personal property to secure the payment of the Indebtedness
and performance
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of the Obligations, and agrees that Mortgagee shall have all the rights and
remedies of a secured party under the UCC with respect to such property. Any
notice of sale, disposition or other intended action by Mortgagee with respect
to the Personalty, Fixtures, Plans, Leases, Rents and Property Agreements sent
to Mortgagor at least five (5) days prior to any action under the UCC shall
constitute reasonable notice to Mortgagor.
Section 6.2 Financing Statements. Mortgagor shall execute and deliver
to Mortgagee, in form and substance satisfactory to Mortgagee, such financing
statements and such further assurances as Mortgagee may, from time to time,
reasonably consider necessary to create, perfect and preserve Mortgagee's
security interest hereunder and Mortgagee may cause such statements and
assurances to be recorded and filed, at such times and places as may be required
or permitted by law to so create, perfect and preserve such security interest.
Mortgagor's chief executive office is in the State of New York at the address
set forth in the first paragraph of this Mortgage.
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Section 6.3 Fixture Filing. This Mortgage shall also constitute a
"fixture filing" for the purposes of the UCC against all of the Mortgaged
Property which is or is to become fixtures. Information concerning the security
interest herein granted may be obtained at the addresses of Debtor (Mortgagor)
and Secured Party (Mortgagee) as set forth in the first paragraph of this
Mortgage.
ARTICLE VII
NEW YORK PROVISIONS
-------------------
Section 7.1 Maximum Principal Sum. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, THE MAXIMUM AMOUNT OF PRINCIPAL INDEBTEDNESS SECURED
BY THIS MORTGAGE AT THE TIME OF EXECUTION OR WHICH UNDER ANY CONTINGENCY MAY
HEREAFTER BECOME SECURED BY THIS MORTGAGE AT ANY TIME IS FOUR HUNDRED TWENTY
FIVE MILLION DOLLARS ($425,000,000); TOGETHER WITH (A) INTEREST, INCLUDING,
WITHOUT LIMITATION, ADDITIONAL INTEREST, ON THE AFORESAID PRINCIPAL INDEBTEDNESS
AT THE RATES SET FORTH IN THE NOTES AND (B) AMOUNTS EXPENDED BY MORTGAGEE AFTER
DEFAULT OF SUMS ADVANCED OR PAID FOR HEREUNDER TO MAINTAIN THE LIEN OF THIS
MORTGAGE OR TO PROTECT THE PREMISES SECURED BY THIS MORTGAGE, INCLUDING, WITHOUT
LIMITATION, AMOUNTS IN RESPECT OF INSURANCE PREMIUMS, IMPOSITIONS (OR PAYMENTS
IN LIEU OF IMPOSITIONS), LITIGATION EXPENSES TO PROSECUTE OR DEFEND THE RIGHTS,
REMEDIES AND LIEN OF THIS MORTGAGE OR TITLE TO THE PREMISES SECURED HEREBY, AND
ANY COSTS, CHARGES OR AMOUNTS TO WHICH MORTGAGEE OR THE LENDERS BECOME
SUBROGATED UPON PAYMENT,
21
WHETHER UNDER RECOGNIZED PRINCIPLES OF LAW OR EQUITY OR UNDER EXPRESS STATUTORY
AUTHORITY.
Section 7.2 Trust Fund for Advances. In compliance with Section 13 of
the Lien Law of the State of New York, Mortgagor will receive the advances
secured by this Mortgage and will hold the right to receive such advances as a
trust fund to be applied first for the purpose of paying the cost of the
building(s) and other improvements located on the Mortgaged Property before
using any part of the total of the same for any other purpose. Mortgagor will
indemnify and hold Mortgagee harmless against any loss, liability, cost or
expense, including any judgments, attorneys' fees, cost of appeal bonds or
printing costs, arising out of or relating to any proceedings instituted by any
claimant alleging a violation by the Mortgagor or Article 3-A of the New York
Lien Law.
Section 7.3 New York Real Property Law Article 4-A. If this Mortgage
shall be deemed to constitute a "mortgage investment" as defined by New York
Real Property Law ss.125, then this Mortgage shall and hereby does (i) confer
upon the Mortgagee the powers and (ii) impose upon the Mortgagee the duties of
trustees set forth in New York Real Property Law ss.126.
Section 7.4 Statement in Accordance with Section 253.1a(a) of the New
York Tax Law. This Mortgage does not cover real property principally improved or
to be improved by one or more structures containing in the aggregate not more
than six (6) residential dwelling units, each having separate cooking
facilities.
22
Section 7.5 Statement in Accordance with Section 274-a of the New York
Real Property Law. The Mortgagee shall, within fifteen (15) days after written
request, provide the Mortgagor with the statement required by Section 274-a of
the New York Real Property Law.
Section 7.6 Section 291-f of New York Real Property Law. Mortgagee
shall have all of the rights set forth in Section 291-f of the Real Property Law
of New York. For purposes of Section 291-f of the New York Real Property Law,
all existing tenants and every tenant or subtenant who after the recording of
this Mortgage, enters into a lease for any of the Mortgaged Property or who
acquires by instrument of assignment or by operation of law a leasehold estate
upon the Mortgaged Property is hereby notified that Mortgagor shall not, without
obtaining Mortgagee's prior consent in each instance, cancel, abridge or
otherwise modify any lease or accept prepayments for more than thirty (30) days
of installment of rent to become due with respect to any lease thereof having an
unexpired term on the date of this Mortgage of five (5) years or more, except as
expressly permitted under this Mortgage or the Loan Agreement, 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 the
Loan Agreement or receiving Mortgagee's prior consent shall be voidable by
Mortgagee at its option.
Section 7.7 Sections 254, 271, 272 and 291-f of New York Real Property
Law. All covenants of the Mortgagor herein contained shall be construed as
affording to Mortgagee rights additional to and not exclusive of the rights
conferred under the provisions of Section 254, 271, 272 and 291-f of the Real
Property Law of New York.
23
Section 7.8 Real Property Law. Sections 3.7 and 3.8 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.
Section 7.9 RPAPL. If an Event of Default shall occur and be
continuing, Mortgagee may elect to sell (and, in the case of any default of any
purchaser, resell) the Mortgaged Property or any part thereof by exercise of the
power of foreclosure or of sale granted to Mortgagee by Article 13 or 14 of the
New York Real Property Actions and Proceedings Law (the "RPAPL"). In such case,
Mortgagee may commence a civil action to foreclosure 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 Note and all other amounts secured
hereby.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices. Any notice required or permitted to be given under
this Mortgage shall be in writing and either shall be mailed by certified mail,
postage prepaid, return receipt requested, or sent by overnight air courier
service, or personally delivered to a representative of the receiving party, or
sent by telecopy (provided an identical notice is also sent simultaneously by
mail, overnight courier, personal delivery or otherwise as provided in this
Section 8.1). All such communications shall be mailed, sent or delivered,
addressed to the party for whom it is intended at its address set forth on the
first page of this Mortgage. Any
24
communication so addressed and mailed shall be deemed to be given on the
earliest of (a) when actually delivered, (b) on the first Business Day (as
defined in the Loan Agreement) after deposit with an overnight air courier
service, or (c) on the third Business Day after deposit in the United States
mail, postage prepaid, in each case to the address of the intended addressee,
and any communication so delivered in person shall be deemed to be given when
receipted for by, or actually received by, Mortgagee or Mortgagor, as the case
may be. If given by telecopy, a notice shall be deemed given and received when
the telecopy is transmitted to the party's telecopy number specified in the Loan
Agreement and confirmation of complete receipt is received by the transmitting
party during normal business hours or on the next Business Day if not confirmed
during normal business hours, and an identical notice is also sent
simultaneously by mail, overnight courier, or personal delivery as otherwise
provided in this Section 8.1. Any party may designate a change of address by
written notice to the other by giving at least ten (10) days prior written
notice of such change of address.
Section 8.2 Covenants Running with the Land. All Obligations contained
in this Mortgage are intended by Mortgagor and Mortgagee to be, and shall be
construed as, covenants running with the Mortgaged Property. As used herein,
"Mortgagor" shall refer to the party named in the first paragraph of this
Mortgage and to any subsequent owner of all or any portion of the Mortgaged
Property (without in any way implying that Mortgagee has or will consent to any
such conveyance or transfer of the Mortgaged Property). All persons or entities
who may have or acquire an interest in the Mortgaged Property shall be deemed to
have notice of, and be bound by, the terms of the Loan Agreement and the other
Loan Documents; however, no such party other than Mortgagor shall be entitled to
any rights thereunder without the prior written consent of Mortgagee.
25
Section 8.3 Attorney-in-Fact. Mortgagor hereby irrevocably appoints
Mortgagee (on behalf of the Lenders) and its successors and assigns, as its
attorney-in-fact, which agency is coupled with an interest, (a) to execute
and/or record any notices of completion, cessation of labor or any other notices
that Mortgagee reasonably deems appropriate to protect Mortgagee's interest, if
Mortgagor shall fail to do so within ten (10) days after written request by
Mortgagee, (b) upon the issuance of a deed pursuant to the foreclosure of this
Mortgage or the delivery of a deed in lieu of foreclosure, to execute all
instruments of assignment, conveyance or further assurance with respect to the
Leases, Rents, Personalty, Fixtures, Plans and Property Agreements in favor of
the grantee of any such deed and as may be necessary or desirable for such
purpose, (c) to prepare, execute and file or record financing statements,
continuation statements, applications for registration and like papers necessary
to create, perfect or preserve Mortgagee's security interests and rights in or
to any of the collateral, and (d) while any Event of Default exists, to perform
any obligation of Mortgagor hereunder; however: (1) Mortgagee shall not under
any circumstances be obligated to perform any obligation of Mortgagor; (2) any
sums advanced by Mortgagee in such performance shall be added to and included in
the Indebtedness and shall bear interest at the Default Rate; (3) Mortgagee as
such attorney-in-fact shall only be accountable for such funds as are actually
received by Mortgagee; and (4) neither Mortgagee nor any Lender shall be liable
to Mortgagor or any other person or entity for any failure to take any action
which it is empowered to take under this Section.
Section 8.4 Successors and Assigns. This Mortgage shall be binding upon
and inure to the benefit of Mortgagee and Mortgagor and their respective
successors and assigns. Mortgagor shall not, without the prior written consent
of Mortgagee, assign any rights, duties or obligations hereunder.
26
Section 8.5 No Waiver. Any failure by Mortgagee to insist upon strict
performance of any of the terms, provisions or conditions of the Loan Documents
shall not be deemed to be a waiver of same, and Mortgagee shall have the right
at any time to insist upon strict performance of all of such terms, provisions
and conditions.
Section 8.6 Subrogation. To the extent proceeds of the Notes have been
used to extinguish, extend or renew any indebtedness against the Mortgaged
Property, then Mortgagee (on behalf of the Lenders) shall be subrogated to all
of the rights, liens and interests existing against the Mortgaged Property and
held by the holder of such indebtedness and such former rights, liens and
interests, if any, are not waived, but are continued in full force and effect in
favor of Mortgagee (on behalf of the Lenders) as modified by the Loan Documents.
Section 8.7 Loan Agreement. If any conflict or inconsistency exists
between this Mortgage and the Loan Agreement, the Loan Agreement shall govern.
Section 8.8 Release. Upon payment in full of the Indebtedness and
performance in full of the Obligations, Mortgagee, at Mortgagor's expense, shall
release or, upon request, assign (at Mortgagor's sole cost and expense and
without any representation, warranty and/or recourse, express or implied, and
subject to applicable law) the liens and security interests created by this
Mortgage.
Section 8.9 Waiver of Stay, Moratorium and Similar Rights. Mortgagor
agrees, to the full extent that it may lawfully do so, that it will not at any
time insist upon or plead or in any way take advantage of any appraisement,
valuation, stay, marshalling of assets, extension, redemption or moratorium law
now or hereafter in force and effect so as to prevent or hinder the
27
enforcement of the provisions of this Mortgage or the indebtedness secured
hereby, or any agreement between Mortgagor and Mortgagee and/or the Lenders or
any rights or remedies of Mortgagee and/or the Lenders.
Section 8.10 Limitation on Liability. Notwithstanding anything to the
contrary contained in this Mortgage, Mortgagor's liability under this Mortgage
is subject to the limitation on liability provisions of Article 12 of the Loan
Agreement.
Section 8.11 Obligations of Mortgagor, Joint and Several. If more than
one person or entity has executed this Mortgage as "Mortgagor," the obligations
of all such persons or entities hereunder shall be joint and several.
Section 8.12 Governing Law. This Mortgage shall be governed by the laws
of the State of New York.
Section 8.13 Headings. The Article, Section and Subsection titles
hereof are inserted for convenience of reference only and shall in no way alter,
modify or define, or be used in construing, the text of such Articles, Sections
or Subsections.
Section 8.14 Entire Agreement. This Mortgage and the other Loan
Documents embody the entire agreement and understanding between Mortgagee, the
Lenders and Mortgagor and supersede all prior agreements and understandings
between such parties relating to the subject matter hereof and thereof.
Accordingly, the Loan Documents may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties.
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Executed as of the date first written above.
1290 PARTNERS, L.P.
By: 1290 GP CORP., its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation, as
Administrative Agent
By: ______________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) SS:
COUNTY OF NEW YORK )
On the 13th day of December in the year 1999 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.
-----------------------------
Signature and Office of Individual
taking acknowledgement
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) SS:
COUNTY OF NEW YORK )
On the 13th day of December in the year 1999 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.
-----------------------------
Signature and Office of Individual
taking acknowledgement
31