EXHIBIT 10.5
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING
made by
LAKES ENTERTAINMENT, INC.
(MORTGAGOR)
IN FAVOR OF
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
(MORTGAGEE)
PROPERTY LOCATION:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
DATED AS OF JUNE 22, 2006
THIS MORTGAGE WAS PREPARED BY AND WHEN RECORDED, RETURN TO:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Ref No.: 024819-0034
Notwithstanding anything to the contrary herein,
enforcement of this mortgage is limited to a debt
amount of $10,920,000 under chapter 287 of
Minnesota Statutes.
TABLE OF CONTENTS
PAGE
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ARTICLE I. DEFINITIONS.................................................................. 1
Section 1.01 Terms Defined Above.......................................................... 1
Section 1.02 Definitions.................................................................. 2
Section 1.03 Terminology; Other Defined Terms............................................. 5
ARTICLE II. GRANT OF LIEN AND SECURITY INTEREST.......................................... 5
Section 2.01 Grant of Lien................................................................ 5
Section 2.02 Grant of Security Interest................................................... 6
Section 2.03 No Obligation of Mortgagee................................................... 6
Section 2.04 Fixture Filing............................................................... 6
Section 2.05 Future Advances.............................................................. 7
ARTICLE III. ASSIGNMENT OF LEASES AND RENTS............................................... 7
Section 3.01 Assignment................................................................... 7
Section 3.02 Revocable License............................................................ 7
Section 3.03 Enforcement of Leases........................................................ 8
Section 3.04 Direction to Tenants......................................................... 8
Section 3.05 Appointment of Attorney-in-Fact.............................................. 9
Section 3.06 No Liability of Mortgagee.................................................... 9
Section 3.07 Mortgagor's Indemnities...................................................... 10
Section 3.08 No Modification of Mortgagor's Obligations................................... 10
ARTICLE IV. REPRESENTATIONS AND WARRANTIES............................................... 10
Section 4.01 Title to Mortgaged Property and Lien of this Mortgage........................ 11
Section 4.02 Taxes and Other Payments..................................................... 11
Section 4.03 Power to Create Lien and Security............................................ 11
Section 4.04 Loan and Loan Documents...................................................... 11
Section 4.05 Compliance with Laws......................................................... 11
Section 4.06 No Condemnation.............................................................. 12
Section 4.07 Flood Zone................................................................... 12
ARTICLE V. AFFIRMATIVE COVENANTS........................................................ 12
Section 5.01 Lien Status.................................................................. 12
Section 5.02 Payment of Impositions....................................................... 12
Section 5.03 Repair....................................................................... 13
Section 5.04 Insurance and Application of Insurance Proceeds.............................. 13
Section 5.05 Condemnation and Application of Condemnation Proceeds........................ 16
Section 5.06 Maintenance of Rights-of-Way, Easements, Licenses and Other Rights........... 17
Section 5.07 Payment and Performance of Obligations....................................... 18
Section 5.08 Compliance with Permitted Liens and Other Obligations........................ 18
Section 5.09 Additional Affirmative Covenants............................................. 18
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ARTICLE VI. NEGATIVE COVENANTS........................................................... 18
Section 6.01 Use Violations............................................................... 18
Section 6.02 Waste........................................................................ 18
Section 6.03 Alterations.................................................................. 19
Section 6.04 No Further Encumbrances...................................................... 19
Section 6.05 Transfer Restrictions........................................................ 19
Section 6.06 Additional Negative Covenants................................................ 19
ARTICLE VII. EVENTS OF DEFAULT AND REMEDIES............................................... 19
Section 7.01 Event of Default............................................................. 19
Section 7.02 Acceleration................................................................. 20
Section 7.03 Foreclosure and Sale......................................................... 20
Section 7.04 Mortgagee'S Agents........................................................... 21
Section 7.05 Judicial Foreclosure......................................................... 21
Section 7.06 Receiver..................................................................... 21
Section 7.07 Foreclosure for Installments................................................. 21
Section 7.08 Separate Sales............................................................... 22
Section 7.09 Possession of Mortgaged Property............................................. 22
Section 7.10 Occupancy After Acceleration................................................. 22
Section 7.11 Remedies Cumulative, Concurrent and Nonexclusive............................. 23
Section 7.12 No Release of Obligations.................................................... 23
Section 7.13 Release of and Resort to Collateral.......................................... 23
Section 7.14 Waiver of Redemption, Notice and Marshalling of Assets....................... 24
Section 7.15 Discontinuance of Proceedings................................................ 24
Section 7.16 Application of Proceeds...................................................... 24
Section 7.17 Uniform Commercial Code Remedies............................................. 25
Section 7.18 Indemnity.................................................................... 25
ARTICLE VIII. MISCELLANEOUS................................................................ 26
Section 8.01 Instrument Construed as Mortgage, Etc........................................ 26
Section 8.02 Performance at Mortgagor's Expense........................................... 26
Section 8.03 Survival of Obligations...................................................... 26
Section 8.04 Further Assurances........................................................... 26
Section 8.05 Notices...................................................................... 26
Section 8.06 No Waiver.................................................................... 26
Section 8.07 Mortgagee's Right to Perform; Mortgagee's Expenditures....................... 27
Section 8.08 Successors and Assigns....................................................... 27
Section 8.09 Severability................................................................. 27
Section 8.10 Entire Agreement and Modification............................................ 28
Section 8.11 Applicable Law............................................................... 28
Section 8.12 Satisfaction of Prior Encumbrance............................................ 28
Section 8.13 No Partnership............................................................... 28
Section 8.14 Headings..................................................................... 28
Section 8.15 Release of Mortgage.......................................................... 28
Section 8.16 Limitation of Obligations with Respect to Mortgaged Property................. 29
Section 8.17 Inconsistency with Credit Agreement.......................................... 29
Section 8.18 Limitation on Interest Payable............................................... 29
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Section 8.19 Covenants To Run With the Land............................................... 30
Section 8.20 Last Dollar.................................................................. 30
Section 8.21 Defense of Claims............................................................ 30
Section 8.22 Exculpation Provisions....................................................... 31
Section 8.23 No Merger of Estates......................................................... 31
Section 8.24 Counterparts................................................................. 31
Section 8.25 Maturity Date................................................................ 31
ARTICLE IX. STATE SPECIFIC PROVISIONS.................................................... 31
Section 9.01 Application of Rents and Proceeds............................................ 31
Section 9.02 WAIVER OF CONSTITUTIONAL RIGHTS.............................................. 32
Section 9.03 ▇▇▇▇▇ and Sewer Systems...................................................... 33
Section 9.04 Future Advances.............................................................. 33
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MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT
AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (hereinafter, together with any and all amendments, supplements,
modifications or restatements of any kind, referred to as this "Mortgage"), is
made as of June 22, 2006, by LAKES ENTERTAINMENT, INC., a Minnesota
corporation ("Mortgagor"), having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esq., in favor of BANK OF AMERICA, N.A., having its principal place of
business at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, as Administrative Agent (in such capacity, together
with its successors and assigns, "Mortgagee"), for itself and for each of the
financial institutions and their respective successors and assigns which from
time to time shall be a "Lender" under the Credit Agreement (as hereinafter
defined).
RECITALS:
WHEREAS, Mortgagor is the owner and holder of fee simple title in and to
the Land (as hereinafter defined) described on Exhibit A attached hereto and
made a part hereof;
WHEREAS, on the date hereof, Mortgagor, Lakes Gaming and Resorts, LLC, the
"Borrower"), and the Guarantors (as defined in the Credit Agreement), entered
into that certain Credit Agreement, dated of even date herewith (as the same may
be amended, modified or otherwise supplemented and in effect from time to time,
the "Credit Agreement"), Mortgagee, the Lenders party thereto and Banc of
America Securities LLC, as sole lead arranger and sole book manager pursuant to
which the Lenders agree to extend to the Borrowers certain term loan facilities
in the aggregate original principal amount of up to One Hundred and Five Million
and 00/100 Dollars ($105,000,000.00) (collectively, the "Loan");
WHEREAS, Mortgagor will derive direct economic benefit from the Loan;
WHEREAS, as a condition to Mortgagee executing the Credit Agreement,
Mortgagee is requiring that Mortgagor grant to Mortgagee a security interest in
and a first mortgage lien upon the Mortgaged Property (as hereinafter defined),
to secure (a) the payment of all of the Obligations of Mortgagor under the Loan
Documents, and (b) the performance by Mortgagor of all terms, covenants,
conditions, provisions, agreements and liabilities contained in this Mortgage,
the Credit Agreement, the Guaranty, and the other Loan Documents (as defined in
the Credit Agreement).
NOW, THEREFORE, in order consideration for the Loan and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Mortgagor hereby covenants and agrees as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Terms Defined Above. As used in this Mortgage,
the terms defined in the introductory paragraph to this Mortgage and in the
Recitals set forth above shall have the meanings respectively assigned to such
terms in such paragraph and Recitals.
SECTION 1.02 Definitions. As used herein, the following terms shall
have the following meanings:
"Applicable UCC" means the Uniform Commercial Code as presently in effect
in the State or Commonwealth where the Mortgaged Property is located.
"Buildings" means any and all buildings, structures, garages, utility
sheds, workrooms, air conditioning towers, open parking areas and other
improvements, and any and all additions, alterations, betterments or
appurtenances thereto, now or at any time hereafter situated, placed or
constructed upon the Land or any part thereof.
"Default" has the meaning assigned to such term in the Credit Agreement.
"Default Rate" has the meaning assigned to such term in the Credit
Agreement.
"Event of Default" has the meaning assigned to such term in Section 7.01
hereof.
"Fixtures" means all materials, supplies, equipment, apparatus and other
items of Personalty now or hereafter acquired by Mortgagor and incorporated into
the Mortgaged Property so as to constitute fixtures under the Applicable UCC or
otherwise under the laws of the state or commonwealth in which such items are
located.
"Governmental Authority" has the meaning assigned to such term in the
Credit Agreement.
"Governmental Requirements" means any and all present and future judicial
decisions, statutes, rulings, rules, regulations, permits, certificates or
ordinances of any Governmental Authority in any way applicable to Mortgagor or
the Mortgaged Property, including the ownership, use, occupancy, possession,
operation, maintenance, alteration, repair or reconstruction thereof.
"Guarantors" has the meaning assigned to such term in the Credit
Agreement. "Guarantor" means any of the Guarantors.
"Impositions" means any and all real estate and personal property taxes;
water, gas, sewer, electricity and other utility rates and charges; charges for
any easement, license or agreement maintained for the benefit of the Mortgaged
Property; and any and all other taxes, charges and assessments, whether general
or special, ordinary or extraordinary, foreseen or unforeseen, of any kind and
nature whatsoever which at any time prior to or after the execution hereof may
be assessed, levied or imposed upon the Mortgaged Property or the ownership,
use, occupancy, benefit or enjoyment thereof, together with any interest, costs
or penalties that may become payable in connection therewith.
`"Indemnified Parties" means, with respect to any Person entitled to the
benefit of an indemnity, such Person and its officers, directors, shareholders,
partners, members, managers,
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employees, agents, representatives, attorneys, accountants and experts. The term
"Indemnified Party" means any one of such Persons.
"Indemnitees" has the meaning assigned to such term in the Credit
Agreement.
"Land" means the real property or interest therein described in Exhibit A
attached hereto, and all rights, titles and interests appurtenant thereto.
"Leases" means any and all leases, master leases, subleases, licenses,
concessions or other agreements (whether written or oral, and whether now or
hereafter in effect) which grant to third Persons a possessory interest in and
to, or the right to use, all or any part of the Mortgaged Property, together
with all security and other deposits made in connection therewith and any
guarantee of the obligations of the landlord or the tenant thereunder.
"License" has the meaning assigned to such term in Section 3.02(a) hereof.
"Lien" has the meaning assigned to such term in the Credit Agreement.
"Loan Documents" has the meaning assigned to such term in the Credit
Agreement.
"Losses" means all obligations, damages, claims, causes of action, costs,
fines, fees, charges, penalties, deficiencies, losses, diminutions in value,
expenses (including court costs, fees and expenses of attorneys, accountants,
consultants and other experts) and other liabilities, and, with respect to any
indemnity, includes all attorneys' fees and expenses in connection with the
enforcement and collection of such indemnity. The term "Loss" means any such
Losses.
"Mortgaged Property" means all of Mortgagor's right, title, interest and
estate, whether now owned or hereafter acquired, in and to the Land, the
Buildings, the Fixtures and the Personalty, together with:
(i) all rights, privileges, tenements, hereditaments, rights-of-way,
easements, air rights, development rights or credits, zoning rights,
appendages and appurtenances in anywise appertaining thereto, and all
right, title and interest of Mortgagor in and to any streets, ways,
alleys, strips or gores of land adjoining the Land or any part thereof,
and all right, title and interest of Mortgagor, if any, in and to all
rights, royalties and profits with respect to all minerals, coal, oil, gas
and other substances of any kind or character on or underlying the Land,
together with all right, title and interest of Mortgagor in and to all
water and water rights (whether riparian, appropriative or otherwise and
whether or not appurtenant);
(ii) all rights of Mortgagor (but not its obligations) under any contracts
and agreements, including, without limitation, construction contracts and
architectural agreements, relating to the Land, the Buildings, the
Fixtures or the Personalty;
(iii) all of Mortgagor's right, title and interest in and to all permits,
licenses, franchises, certificates, authorizations, consents, approvals
and other rights and
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privileges (each, a "Permit") obtained in connection with the Land, the
Buildings, the Fixtures or the Personalty or the use or operation thereof;
(iv) all of Mortgagor's right, title and interest in and to all plans and
specifications, designs, schematics, drawings and other information,
materials and matters heretofore or hereafter prepared relating to the
Land, the Buildings, the Fixtures or the Personalty;
(v) all of Mortgagor's right, title and interest in and to all proceeds
arising from or by virtue of the sale, lease or other disposition of the
Land, the Buildings, the Fixtures or the Personalty or any part thereof or
any interest therein or from the operation thereof;
(vi) all of Mortgagor's right, title and interest in and to all Leases now
or hereafter in effect and all Rents, royalties, bonuses, issues, profits,
revenues or other benefits arising from or attributable to the Land, the
Buildings, the Fixtures or the Personalty;
(vii) all of Mortgagor's right, title and interest in and to all
betterments, additions, alterations, appurtenances, substitutions,
replacements and revisions to the Land, the Buildings, the Fixtures or the
Personalty and all reversions and remainders relating thereto;
(viii) all of Mortgagor's right, title and interest in and to any and all
other security and collateral of any nature whatsoever, whether now or
hereafter given, for the repayment, performance and discharge of the
Obligations (as hereinafter defined);
(ix) all of Mortgagor's right, title and interest in and to all claims,
awards, payments, remuneration, settlements or compensation now or
hereafter made by any Governmental Authority pertaining to, and all other
proceeds of, any taking, conversion, or like act, whether voluntary or
involuntary, of any of the Land, the Buildings, the Fixtures, the
Personalty or any of the property and rights described in the foregoing
clauses (i) through (viii), including those arising from or attributable
to any vacation of, or change of grade in, any streets affecting the Land
or the Buildings, and all insurance and tort claims, refunds of real
estate taxes and assessments, rent claims and other obligations
dischargeable in cash or cash equivalents; and
(x) all other property and rights of Mortgagor of every kind and character
relating to and/or used or to be used in connection 'with the foregoing,
and all proceeds and products of any of the foregoing.
As used in this Mortgage, the term "Mortgaged Property" shall be expressly
defined as meaning all or, where the context permits or requires, any portion of
the above, and all or, where the context permits or requires, any interest
therein.
"Obligations" has the meaning assigned to such term in the Credit
Agreement.
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"Permitted Liens" has the meaning assigned to such term in the Credit
Agreement to the extent that such definition applies to the Mortgaged Property.
"Person" has the meaning assigned to such term in the Credit Agreement.
"Personalty" means all of Mortgagor's right, title and interest in and to
all furniture, furnishings, equipment, machinery, goods, general intangibles,
money, insurance proceeds, contract rights, option rights, inventory, together
with 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 Authority, boards, corporations, providers of utility services,
public or private including all refundable, returnable or reimbursable tap fees,
utility deposits, commitment fees and development costs, and all other personal
property (other than Fixtures of any kind or character), and including all such
property that is now or hereafter located or to be located upon, within or about
the Land and the Buildings, or which are or may be used in or related to the
planning, development, financing of or operation of the Mortgaged Property,
together with all accessories, replacements and substitutions thereto or
therefor and the proceeds thereof.
"Principal Balance" has the meaning assigned to such term in Section 7.02
hereof.
"Rents" means all of the rents, revenues, income, proceeds, issues,
profits, security and other types of deposits (after Mortgagor acquires title
thereto), and other benefits paid or payable by parties (other than Mortgagor)
for using, leasing, licensing, possessing, operating from, residing in,
benefiting from or otherwise enjoying all or any part of the Land, the
Buildings, the Fixtures and/or the Personalty.
SECTION 1.03 Terminology; Other Defined Terms. Any capitalized term
used in this Mortgage and not otherwise defined herein shall have the meaning
assigned to such term in the Credit Agreement. The rules of construction set
forth in Section 1.02 of the Credit Agreement shall apply hereto as if
incorporated at length herein.
ARTICLE II.
GRANT OF LIEN AND SECURITY INTEREST
SECTION 2.01 Grant of Lien. To secure the full and timely payment,
performance and discharge of all of the Obligations, Mortgagor hereby
irrevocably GRANTS, BARGAINS, SELLS, ASSIGNS, TRANSFERS, MORTGAGES, CONVEYS AND
CONFIRMS unto Mortgagee, WITH POWER OF SALE and right of entry and possession,
for the use and benefit of Mortgagee, as Administrative Agent for the Lenders
pursuant to the Credit Agreement, all right, title, interest and estate in, to
and under the Mortgaged Property, subject, however, to the Permitted Liens; TO
HAVE AND TO HOLD the Mortgaged Property unto Mortgagee, subject to the terms and
conditions of this Mortgage, with POWER OF SALE, forever, and Mortgagor does
hereby bind itself, its successors and assigns to WARRANT AND FOREVER DEFEND the
title to the Mortgaged Property unto Mortgagee against every Person whomsoever
lawfully claiming or to claim the same or any part thereof; provided, however,
that
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if Mortgagor shall pay (or cause to be paid) and perform and discharge (or cause
to be performed and discharged) all of the Obligations on or before the date on
which the same are to be paid, performed and discharged, then the Liens, estates
and rights granted by this Mortgage shall cease and terminate.
SECTION 2.02 Grant of Security Interest. This Mortgage shall be
construed as a mortgage on the Land and the Buildings and it shall also
constitute and serve as a "security agreement" within the meaning of, and shall
constitute a first and prior security interest under, the Applicable UCC with
respect to the Personally and the Fixtures. To this end, Mortgagor by these
presents does GRANT, BARGAIN, CONVEY, ASSIGN, SELL, TRANSFER AND SET OVER unto
Mortgagee, as Administrative Agent for the Lenders pursuant to the Credit
Agreement, a security interest in all of Mortgagor's right, title and interest
in, to and under the Personalty and the Fixtures, to secure the full and timely
payment, performance and discharge of the Obligations. Mortgagor hereby consents
to Mortgagee filing and recording Financing statements (and continuations
thereof) with the appropriate filing and recording offices in order to perfect
(and maintain the perfection of) the security interests granted herein.
SECTION 2.03 No Obligation of Mortgagee. The assignment and security
interest herein granted to Mortgagee shall not be deemed or construed to
constitute Mortgagee as a mortgagee-in-possession of the Mortgaged Property,
obligate Mortgagee to lease the Mortgaged Property or attempt to do the same, or
to take any action, incur any expense or perform or discharge any obligation,
duty or liability whatsoever.
SECTION 2.04 Fixture Filing. Without in any manner limiting the
generality of any of the other provisions of this Mortgage: (a) some portions of
the goods described or to which reference is made herein are or are to become
fixtures on the Land described or to which reference is made herein or on
Exhibit A attached to this Mortgage; (b) this Mortgage is to be filed of record
in the real estate records as a Financing statement and shall constitute a
"fixture filing" for purposes of the Applicable UCC; and (c) Mortgagor is the
record owner of the real estate or interests in the real estate constituting the
Mortgaged Property hereunder. Information concerning the security interest
herein granted may be obtained at the addresses set forth on the first page
hereof. The addresses of the Secured Party (Mortgagee) and of the Debtor
(Mortgagor) are set forth on the first page hereof. In that regard, the
following information is provided:
Name of Debtor: Lakes Entertainment, Inc.
Type of Organization: Corporation
State: Minnesota
FEIN: ▇▇-▇▇▇▇▇▇▇
Organizational ID Number: 10E-882
Name of Secured Party: Bank of America, N.A.
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Address of Secured Party: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
SECTION 2.05 Future Advances. It is the intention of Mortgagor and
Mortgagee that this Mortgage (as renewed and extended from time to rime) shall
secure future advances and readavances, and the lien and security interest
created by this Mortgage shall attach upon execution and have priority from the
time of recording as to all advances, whether obligatory or discretionary, until
this Mortgage is released of record.
ARTICLE III.
ASSIGNMENT OF LEASES AND RENTS
SECTION 3.01 Assignment. For Ten Dollars ($10.00) and other good and
valuable consideration, including the indebtedness evidenced by the Credit
Agreement, the receipt and sufficiency of which are hereby acknowledged and
confessed, Mortgagor has presently, absolutely and irrevocably GRANTED,
BARGAINED, SOLD, ASSIGNED, TRANSFERRED, CONVEYED and CONFIRMED, and by these
presents does presently, absolutely and irrevocably GRANT, BARGAIN, SELL,
ASSIGN, TRANSFER, CONVEY and CONFIRM, unto Mortgagee, as Administrative Agent
for the Lenders pursuant to the Credit Agreement, as security for the payment,
performance and discharge of the Obligations, all of the Leases and Rents (if
any), subject only to the Permitted Liens applicable thereto and the License (as
hereinafter defined); TO HAVE AND TO HOLD the Leases and the Rents unto
Mortgagee; forever, and Mortgagor does hereby bind itself, its successors and
assigns to warrant and forever defend the title to the Leases and the Rents unto
Mortgagee against every Person whomsoever lawfully claiming or to claim the same
or any part thereof; provided, however, that if Mortgagor shall pay (or cause to
be paid) and perform and discharge (or cause to be performed and discharged) all
of the Obligations on or before the date on which the same are to be paid,
performed and discharged, then this assignment shall terminate, and all rights,
titles and interests conveyed pursuant to this assignment shall become vested in
Mortgagor.
SECTION 3.02 Revocable License.
(a) Mortgagee hereby grants to Mortgagor a revocable license (the
"License"), nonexclusive with the rights of Mortgagee reserved in Sections
3.02(b), 3.04 and 3.05 hereof, to exercise and enjoy all incidences of the
status of a lessor under the Leases and the Rents, including, without
limitation, the right to collect, demand, ▇▇▇ for, attach, levy, recover and
receive the Rents and to give proper receipts, releases and acquittances
therefor. Mortgagor hereby agrees to receive all Rents and hold the same as a
trust fund to be applied, and to apply the Rents so collected, except to the
extent otherwise provided in the Credit Agreement, first to the payment,
performance and discharge of the Obligations and then to the payment of the
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Impositions. Thereafter, Mortgagor may use the balance of the Rents collected in
any manner not inconsistent with the Loan Documents.
(b) If an Event of Default shall occur and be continuing, the License
shall immediately and automatically terminate without the necessity of any
action by Mortgagee or any other Person, and Mortgagee shall have the right in
such event to exercise the rights and remedies provided under this Mortgage or
otherwise available to Mortgagee under applicable law. Upon demand by Mortgagee
at any time that an Event of Default shall have occurred, Mortgagor shall
promptly pay to Mortgagee all security deposits under the Leases and all Rents
allocable to any period commencing from and after the occurrence of such Event
of Default. Any Rents received hereunder by Mortgagee shall be applied and
disbursed to the payment, performance and discharge of the Obligations, subject
to the terms of the Credit Agreement; provided, however, that, subject to any
applicable requirement of law, any security deposits actually received by
Mortgagee shall be held, applied and disbursed as provided in the applicable
Leases.
SECTION 3.03 Enforcement of Leases. Mortgagor shall (a) submit any
and all proposed Leases which individually grant the use of more than 3,000
square feet (including any subleases which individually grant the use of more
than 3,000 square feet) provided to Mortgagor for approval to Mortgagee for
approval prior to the execution thereof or consent thereto, as applicable; (b)
duly and punctually perform and comply with any and all representations,
warranties, covenants and agreements expressed as binding upon the lessor under
any Lease; (c) maintain each Lease in full force and effect during the term
thereof; (d) provide Mortgagee with prompt notice of each notice of default sent
to a tenant under a Lease, provide Mortgagee with prompt notice of each notice
of default received from (or relating to) a tenant under a Lease, and otherwise
promptly reasonably indicate that a material default or termination of a Lease
may occur (other than by reason of the expiration of the term of such Lease);
(e) appear in and defend any action or proceeding in any manner connected with
any of the Leases; (f) deliver to Mortgagee true and complete copies of all
Leases; and (g) deliver to Mortgagee all such further information, and execute
and deliver to Mortgagee such further assurances and assignments, with respect
to the Leases as Mortgagee may from time to time reasonably request. Without
Mortgagee's prior written consent, Mortgagor shall not (i) do or knowingly
permit to be done anything to materially impair the value of any of the Leases;
(ii) except for security or similar deposits, collect any of the Rent more than
one (1) month in advance of the time when the same becomes due under the terms
of any Lease; (iii) discount any future accruing Rents; (iv) amend or modify any
of the Leases so as to reduce the length of the Lease terms or the Rents due
thereunder, or accept the surrender of or terminate any of the Leases; or (v)
assign or grant a security interest in or to the License or any of the Leases or
Rents.
SECTION 3.04 Direction to Tenants. Upon and at any time following
the occurrence and during the continuance of an Event of Default, Mortgagor
hereby authorizes and directs, and shall, at the direction of Mortgagee, further
authorize and direct, in writing, the tenant under each Lease to pay directly
to, or as directed by, Mortgagee all Rents accruing or due under its Lease,
without proof to the tenant of the occurrence and continuance of such Event of
Default. Mortgagor hereby authorizes the tenant under each Lease to rely upon
and comply with any notice or demand from Mortgagee for payment of Rents to
Mortgagee, and Mortgagor shall
8
have no claim against any tenant for Rents paid by such tenant to Mortgagee
pursuant to such notice or demand. All Rents actually collected by Mortgagee
pursuant to this Section 3.04 shall be applied in accordance with the Credit
Agreement.
SECTION 3.05 Appointment of Attorney-in-Fact.
(a) Mortgagor hereby constitutes and appoints Mortgagee the true and
lawful attorney-in-fact, coupled with an interest, of Mortgagor and Mortgagor
hereby confers upon Mortgagee the right, in the name, place and stead of
Mortgagor, to, upon the occurrence and during the continuance of an Event of
Default, demand, ▇▇▇ for, attach, levy, recover and receive any of the Rents and
any premium or penalty payable upon the exercise by any third Person under any
Lease of a privilege of cancellation originally provided in such Lease and to
give proper receipts, releases and acquittances therefor and, after deducting
expenses of collection, to apply the net proceeds as provided in the Credit
Agreement. Mortgagor hereby authorizes and directs any such third Person to
deliver such payment to Mortgagee in accordance with this Article III, and
Mortgagor hereby ratifies and confirms all that its said attorney-in-fact, the
Mortgagee, shall do or cause to be done in accordance with this Mortgage and by
virtue of the powers granted hereby. The foregoing appointment is irrevocable
and continuing, and such rights, powers and privileges shall be exclusive in
Mortgagee, and its successors and assigns, so long as any part of the
Obligations remains unpaid or unperformed and undischarged;
(b) Mortgagor hereby constitutes and appoints Mortgagee the true and
lawful attorney-in-fact, coupled with an interest, of Mortgagor and Mortgagor
hereby confers upon Mortgagee the right, in the name, place and stead of
Mortgagor, to subject and subordinate at any time and from time to time any
Lease or any part thereof to the lien, assignment and security interest of this
Mortgage and to the terms hereof, or to any other mortgage, deed of trust,
assignment or security agreement, or to any ground lease or surface lease, with
respect to all or a portion of the Mortgaged Property, or to request or require
such subordination, where such reservation, option or authority was reserved to
Mortgagor under any such Lease, or in any case where Mortgagor otherwise would
have the right, power or privilege so to do. The foregoing appointment is
irrevocable and continuing, and such rights, powers and privileges shall be
exclusive in Mortgagee, and its successors and assigns, so long as any part of
the Obligations remains unpaid or unperformed and undischarged. Mortgagor hereby
represents and warrants that it has not at any time prior to the date hereof
exercised (or appointed any Person as attorney-in-fact to exercise) any of the
rights described in this Section 3.05, and Mortgagor hereby covenants not to
exercise (or appoint any other Person as attorney-in-fact to exercise) any such
right, nor (except at Mortgagee's written request) to subordinate any such Lease
to the lien of this Mortgage or to any other mortgage, deed of trust, assignment
or security agreement or to any ground lease or surface lease.
SECTION 3.06 No Liability of Mortgagee. Neither the acceptance
hereof nor the exercise of the rights and remedies hereunder nor any other
action on the part of Mortgagee or any Person exercising the rights of Mortgagee
or any Lender hereunder shall be construed to: (a) be an assumption by Mortgagee
or any such Person or to otherwise make Mortgagee or such Person liable or
responsible for the performance of any of the obligations of Mortgagor under or
with respect to the Leases or for any Rent, security deposit or other amount
delivered to Mortgagor, provided that Mortgagee or any such Person exercising
the rights of
9
Mortgagee shall be accountable for any Rents, security deposits or other amounts
actually received by Mortgagee or such Person, as the case may be; or (b)
obligate Mortgagee or any such Person to take any action under or with respect
to the Leases or with respect to the Mortgaged Property, to incur any expense or
perform or discharge any duty or obligation under or with respect to the Leases
or with respect to the Mortgaged Property, to appear in or defend any action or
proceeding relating to the Leases or the Mortgaged Property, to constitute
Mortgagee as a mortgagee-in-possession (unless Mortgagee actually enters and
takes possession of the Mortgaged Property), or to be liable in any way for any
injury or damage to Persons or property sustained by any Person in or about the
Mortgaged Property, other than to the extent caused by the gross negligence or
willful misconduct of Mortgagee or any Person exercising the rights of Mortgagee
hereunder.
SECTION 3.07 Mortgagor's Indemnities. Mortgagor hereby agrees to
protect, indemnify and hold harmless Mortgagee and each of the other Indemnitees
and each Indemnified Party related to Mortgagee or such other Indemnitees from
and against any and all Losses which Mortgagee or any such other Indemnitees or
Indemnified Party may incur under or by reason of this Article III, or for any
action taken by Mortgagee or any such other Lender or Indemnified Party
hereunder, or by reason or in defense of any and all claims and demands
whatsoever which may be asserted against Mortgagee or any such other Indemnitees
or Indemnified Party arising out of the Leases, including, without limitation,
any claim by any third Person for credit on account of Rents paid to and
received by Mortgagor, but not delivered to Mortgagee or its agents,
representatives or employees, for any period under any Lease more than one (1)
month in advance of the due date thereof. The foregoing indemnity shall include,
in any case, such Loss as may result from the ordinary negligence of Mortgagee
or such other Indemnitees or Indemnified Party, but not any such Loss that is
caused by the gross negligence or willful misconduct of Mortgagee or any such
other Indemnitees or Indemnified Party. In the event that Mortgagee or any of
the other Lenders or any Indemnified Party incurs any Losses covered by the
indemnity set forth in this Section 3.07, the amount thereof, including
reasonable attorneys' fees, with interest thereon at the Default Rate, shall be
payable by Mortgagor to Mortgagee within ten (10) days after demand therefor,
and shall be secured hereby and by all other security for the payment and
performance of the Obligations, including, without limitation, the lien and
security interest of this Mortgage. The liabilities of Mortgagor as set forth in
this Section 3.07 shall survive the termination of this Mortgage and the
repayment of the Obligations.
SECTION 3.08 No Modification of Mortgagor's Obligations. Nothing
herein contained shall modify or otherwise alter the obligation of Mortgagor to
make prompt payment of all Obligations as and when the same become due,
regardless of whether the Rents described in this Article III are sufficient to
pay the Obligations, and the security provided to Mortgagee pursuant to this
Article III shall be cumulative of all other security of any and every character
now or hereafter existing to secure payment of the Obligations.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
Mortgagor hereby unconditionally represents and warrants to Mortgagee (but
to the extent any representation or warranty in this Article IV is substantively
the same as a
10
representation or warranty contained in Article V of the Credit Agreement and
such representation or warranty is qualified by a materiality or other qualifier
in the Credit Agreement, such representation or warranty herein shall be subject
to the same materiality or other qualifier as in Article V of the Credit
Agreement) as follows:
SECTION 4.01 Title to Mortgaged Property and Lien of this Mortgage.
Mortgagor has good, marketable and indefeasible fee simple title to the Land and
the Buildings, and has good, marketable and indefeasible title to the Fixtures,
the Personalty and the other Mortgaged Property. The Mortgaged Property is free
and clear of any and all Liens, charges, encumbrances, security interests and
adverse claims whatsoever, except for (i) all Liens, charges, encumbrances,
security interests and adverse claims specifically identified as exceptions in
Schedule B of the policy of title insurance accepted by Mortgagee in connection
herewith or (ii) those Liens set forth in Section 5.08 of the Credit Agreement.
SECTION 4.02 Taxes and Other Payments. Mortgagor has filed all
federal, state, commonwealth, county, municipal and city income and other
material tax returns required to have been filed by it and has paid all taxes
and other Impositions which have become due pursuant to such returns or pursuant
to any assessments or charges received by it, and Mortgagor does not know of any
basis for any additional assessment or charge in respect of any such taxes or
other Impositions. Mortgagor has paid in full all sums owing or claimed for
labor, material, supplies, personal property (whether or not forming a Fixture
hereunder) and services of every kind and character used, furnished or installed
in or on the Mortgaged Property that are now due and owing and no claim for same
exists or will be permitted to be created, except such claims as may arise in
the ordinary course of business and that are not yet past due.
SECTION 4.03 Power to Create Lien and Security. Mortgagor has full
power and lawful authority to grant, bargain, sell, assign, transfer, mortgage
and convey a Lien and security interest in all of the Mortgaged Property in the
manner and form herein provided and without obtaining the authorization,
approval, consent or waiver of any grantor, lessor, sublessor, Governmental
Authority or other Person whomsoever.
SECTION 4.04 Loan and Loan Documents. Mortgagor has received a copy
of and is fully familiar with the terms and provisions of the Credit Agreement
and the other Loan Documents. All representations and warranties made by
Mortgagor in the Credit Agreement and the other Loan Documents are incorporated
herein by reference and are hereby made by Mortgagor as to itself and the
Mortgaged Property as though such representations and warranties were set forth
at length herein as the representations and warranties of Mortgagor.
SECTION 4.05 Compliance with Laws. All of the improvements on the
Land (i) comply with all material requirements of all applicable laws and
ordinances with respect to zoning, subdivision, construction, building and land
use, including, without limitation, requirements with respect to parking, access
and certificates of occupancy (and similar certificates) and (ii) comply with,
and shall remain in compliance with, applicable health, fire and building codes.
All of the Buildings lie wholly within the boundaries and building restriction
lines of the Land. No improvements on adjoining properties encroach upon the
Land, and no easements or other encumbrances upon the Land encroach upon or
under any of the Buildings or any portion of the Mortgaged Property. All of the
Buildings and the use of the
11
Mortgaged Property materially comply with, and shall remain in material
compliance with, all applicable statutes, rules, regulations and private
covenants now or hereafter relating to the ownership, construction, use or
operation of the Mortgaged Property, including all applicable statutes, rules
and regulations pertaining to requirements for equal opportunity,
anti-discrimination, fair housing, environmental protection, zoning and land
use. All certifications, permits, licenses and approvals, including, without
limitation, certificates of completion and occupancy permits required for the
legal use, occupancy and operation of the Mortgaged Property have been obtained
and are in full force and effect. Mortgagor has not received any notice of, or
other communication with respect to, an alleged violation with respect to any of
the foregoing.
SECTION 4.06 No Condemnation. No part of any property subject to
this Mortgage has been taken in condemnation or other like proceeding nor is any
proceeding pending, threatened or known to be contemplated for the partial or
total condemnation or taking of the Mortgaged Property.
SECTION 4.07 Flood Zone. The Mortgaged Property is not located in an
area identified by the Federal Emergency Management Agency ("FEMA") as having
special flood hazards or if the Land or any part thereof is identified by the
Federal Emergency Management Agency as an area having special flood hazards
(including, without limitation, those areas designated as Zone A or Zone V),
then Mortgagor has obtained the insurance required under Section 5.04(a)(v) of
this Mortgage.
ARTICLE V.
AFFIRMATIVE COVENANTS
Mortgagor hereby unconditionally covenants and agrees with Mortgagee as
follows:
SECTION 5.01 Lien Status. Except as otherwise expressly provided in
the Credit Agreement, Mortgagor shall not place, or permit to be placed, or
otherwise mortgage, hypothecate or encumber the Mortgaged Property, or any
portion thereof or interest therein, with any other Lien or security interest of
any nature whatsoever (statutory, constitutional or contractual), other than
Permitted Liens, regardless of whether such Lien or security interest is
inferior to the Lien and security interest created by this Mortgage, and, if any
such Lien or security interest is asserted against the Mortgaged Property,
Mortgagor shall promptly, at its own cost and expense, (a) pay the underlying
claim in full (except for so long as such claim is being contested by Mortgagor
in good faith and as and to the extent permitted in accordance with the terms of
the Credit Agreement) or take such other action as may be necessary to cause the
same to be released of record and otherwise, and (b) within ten (10) days after
the date on which Mortgagor receives notice of such Lien or security interest,
give Mortgagee notice of such Lien or security interest. Such notice shall
specify who is asserting such Lien or security interest and shall detail the
origin and nature of the underlying claim giving rise to such asserted Lien or
security interest.
SECTION 5.02 Payment of Impositions. Mortgagor shall duly pay and
12
discharge, or cause to be paid and discharged, all Impositions not later than
the due date thereof, or the day on which any fine, penalty, interest or cost
may be added thereto or imposed, or the day on which any Lien may be filed for
the nonpayment thereof (if such day is used to determine the due date of the
respective item); provided, however that Mortgagor may, if permitted by
applicable law and if such installment payment would not create or permit the
filing of a Lien against the Mortgaged Property, pay the Impositions in
installments. Notwithstanding the foregoing, Mortgagor may in good faith, by
appropriate proceedings and upon notice to Mortgagee, contest the validity,
applicability or amount of any asserted tax or assessment, subject to any more
restrictive provisions applicable to any such contest contained in the Credit
Agreement and (without limiting the foregoing) so long as (a) such contest is
diligently pursued, (b) Mortgagee determines, in its opinion reasonably
exercised, that such contest suspends the obligation to pay the tax and that
nonpayment of such tax or assessment will not result in the sale, loss,
forfeiture or diminution of the Mortgaged Property or any part thereof or any
interest of Mortgagee therein, and (c) unless expressly provided to the contrary
in the Credit Agreement, prior to the earlier of the commencement of such
contest or the delinquency date of the asserted tax or assessment, Mortgagor
deposits with Mortgagee an amount determined by Mortgagee to be adequate to
cover the payment of such tax or assessment and a reasonable additional sum to
cover possible interest, costs and penalties; provided, however, that Mortgagor
shall promptly cause to be paid any amount adjudged by a court of competent
jurisdiction to be due, with all interest, costs and penalties thereon, promptly
after such judgment becomes final (and, subject to Mortgagee's rights and
remedies during an Event of Default, Mortgagee shall make any sum deposited
pursuant to clause (c) above available for such payment); and provided, further
that in any event each such contest shall be concluded, the taxes, assessments,
interest, costs and penalties shall be paid prior to the date any writ or order
is issued under which the Mortgaged Property may be sold, lost or forfeited.
SECTION 5.03 Repair. Mortgagor shall keep the Mortgaged Property in
good order and condition (reasonable wear and tear excepted) and shall make all
repairs, replacements and improvements thereof and thereto, interior and
exterior, structural and non-structural, ordinary and extraordinary, which are
necessary to keep the same in such order and condition. Mortgagor shall also use
reasonable efforts to prevent any act or occurrence which might impair the value
or usefulness of the Mortgaged Property for its intended usage.
SECTION 5.04 Insurance and Application of Insurance Proceeds.
(a) During the term of this Mortgage, Mortgagor, at its sole cost and
expense, shall maintain or cause to be maintained all insurance on the Mortgaged
Property that is required to be maintained under the Credit Agreement. In
addition, Mortgagor, at its sole cost and expense, shall maintain or cause to be
maintained such other insurance as may, from time to time, be required by
Mortgagee in order to protect its interests in the Mortgaged Property.
(b) All such insurance policies with respect to the Mortgaged Property
shall contain a standard, non-contributory mortgagee clause naming Mortgagee,
and its successors and assigns, as an additional insured under all liability
insurance policies, as the first mortgagee and loss payee on all property
insurance policies, and as the sole loss payee on all rental loss or business
interruption insurance policies. Mortgagor shall not take out separate insurance
with respect to the Mortgaged Property concurrent in form or contributing in the
event of loss with
13
that required to be maintained hereunder or under the Credit Agreement unless
Mortgagee is named as an additional insured thereon under a standard mortgagee
clause acceptable to Mortgagee and each such policy is otherwise in form and
substance acceptable to Mortgagee.
(c) In the event of the foreclosure of this Mortgage, or in the event of
any transfer of title to the Mortgaged Property, or any part thereof, by
foreclosure sale or by power of sale or deed in lieu of foreclosure, the
purchaser of the Mortgaged Property, or such part thereof, shall succeed to all
of Mortgagor's rights with respect to the Mortgaged Property, including any
rights to unexpired, unearned or returnable insurance premiums, subject to
limitations on the assignment of blanket policies, but limited to such rights as
relate to the Mortgaged Property or such part thereof. If Mortgagee acquires
title to the Mortgaged Property, or any part thereof, in any manner, Mortgagee
shall thereupon (as between Mortgagor and Mortgagee) become the sole and
absolute owner of the insurance policies with respect to the Mortgaged Property,
and all insurance proceeds payable thereunder with respect to the Mortgaged
Property, with the sole right to collect and retain all unearned or returnable
premiums thereon with respect to the Mortgaged Property, or such part thereof,
if any.
(d) If any damage to, destruction or loss of or other casualty with
respect to any of the Mortgaged Property shall occur, Mortgagor shall file and
prosecute its claim or claims for any insurance proceeds in good faith and with
due diligence and cause the same to be collected and paid over to Mortgagee, and
Mortgagor hereby irrevocably authorizes and empowers Mortgagee, in the name of
Mortgagor or otherwise, to collect and receipt for any such insurance proceeds
and to adjust any insurance claims and to file and prosecute such claim or
claims, and although it is hereby expressly agreed that the same shall not be
necessary in any event, Mortgagor shall, upon demand of Mortgagee, make, execute
and deliver any and all assignments and other instruments sufficient for the
purpose of assigning any such insurance proceeds to Mortgagee, free and clear of
any Liens whatsoever. Mortgagor hereby irrevocably appoints Mortgagee as
Mortgagor's attorney-in-fact for each such purpose (which appointment is coupled
with an interest) and authorizes any Person to act upon the foregoing
appointment.
(e) Following any damage to, destruction or loss of or other casualty with
respect to any of the Mortgaged Property, Mortgagee shall apply the entire
amount of any insurance proceeds in accordance with the provisions of the Credit
Agreement or, if there is no provision contained in the Credit Agreement
governing how the same are to be applied, then Mortgagee shall apply the entire
amount thereof to the payment of the Obligations, whether or not then due and
payable, in such manner and order as Mortgagee may elect. Unless expressly
provided to the contrary in the Credit Agreement, Mortgagor hereby covenants and
agrees to promptly commence and to diligently prosecute the restoration of the
Mortgaged Property upon the occurrence of any casualty loss affecting the
Mortgaged Property, without regard to the availability or adequacy of insurance
proceeds, but in all events in a manner approved by Mortgagee. Notwithstanding
any damage to, destruction or loss of or other casualty with respect to any of
the Mortgaged Property, Mortgagor shall continue to pay the Obligations at the
time and in the manner provided for in the Credit Agreement and the other Loan
Documents until the Obligations have been paid in full. Notwithstanding anything
to the contrary in this Section 5.04 but subject to the final sentence of this
Section 5.04(e), if any damage to, destruction or loss of or other casualty with
respect to the Mortgaged Property results in damage or loss of $50,000.00 or
less, provided that no Default exists under the Loan Documents, Mortgagor shall
be allowed to
14
settle such claims with no involvement by Mortgagee, retain any proceeds, and
apply them to restoration of the Mortgaged Property. Furthermore, subject to the
final sentence of this Section 5.04(e), in the event of any damage to or
destruction of the Mortgaged Property or any part thereof to an extent that the
cost of restoration is greater than $50,000 but less than twenty-five percent
(25%) of the fair market value of the Mortgaged Property, Mortgagee shall make
the net insurance proceeds payable by reason of such damage or destruction
available for restoration and repair of the Mortgaged Property to its original
condition ("restoration"), provided that the following conditions are satisfied
to the reasonable satisfaction of Mortgagee within one hundred twenty (120) days
after such damage or destruction:
(i) Mortgagor shall submit to Mortgagee schematic plans and
specifications for the restoration, which plans and specifications shall be
consistent with the condition of the Mortgaged Property immediately prior to
such damage or destruction, subject to modifications approved by Mortgagee;
(ii) Mortgagor shall enter into a fixed or guaranteed maximum cost
contract for the restoration with a contractor reasonably acceptable to
Mortgagee;
(iii) Mortgagor shall obtain all necessary governmental permits and
approvals for the restoration;
(iv) Mortgagor shall deposit with Mortgagee such sums of money as
are necessary, when added to the net insurance proceeds and earnings thereon,
to pay the full cost of the restoration;
(v) The contract for performance of the restoration shall provide
that the restoration shall be substantially complete within one (1) year
after the date of the damage or destruction; and
(vi) Mortgagor shall agree to comply with such additional
construction disbursement conditions and procedures as are customary for such
projects.
The net insurance proceeds and any sums deposited by Mortgagor pursuant to (iv)
above shall be held by Mortgagee in a separate interest-bearing account
established at Mortgagor's expense in the name of Mortgagee but for the benefit
of Mortgagor, and all earnings on such deposits shall be added to such account.
Mortgagor shall pay to Mortgagee a fee for Mortgagee's internal staff expense of
monitoring such disbursements equal to one percent (1%) of the amount deposited
in such account, and Mortgagor shall pay all out-of-pocket fees and expenses
paid by Mortgagee to title insurance companies and consulting engineers and
architects, for endorsements to title policies, review of plans, inspections and
disbursing services in connection with such application of net insurance
proceeds to the restoration. After completion of the restoration, any balance
remaining in such account up to the amount of any sums deposited by Mortgagor
pursuant to (iv) above plus $50,000 shall be paid to Mortgagor, and any balance
remaining in such account in excess of such amounts shall be paid to Mortgagee
for application to the Obligations in such order as Mortgagee shall determine.
If the Mortgaged Property is sold, through foreclosure or otherwise, prior to
the receipt by Mortgagee of such insurance proceeds, Mortgagee shall have the
right, whether or not a deficiency judgment on any Loan Document shall have been
sought,
15
recovered or denied, to receive such insurance proceeds, or a portion thereof
sufficient to pay the then unpaid Obligations, whichever is less.
SECTION 5.05 Condemnation and Application of Condemnation Proceeds.
(a) Promptly upon its obtaining knowledge of the institution or the
threatened institution of any proceeding for the condemnation or other taking of
the Mortgaged Property, or any portion thereof or interest therein, Mortgagor
shall notify Mortgagee of such proceeding. Mortgagor shall then, if requested by
Mortgagee, file or defend its claim thereunder and prosecute same with due
diligence to its final disposition and shall, subject to the terms of the Credit
Agreement, cause any awards or settlements to be paid over to Mortgagee for
disposition pursuant to the terms of this Mortgage. Mortgagee shall be entitled
to participate in any such proceeding, at Mortgagor's sole cost and expense, and
Mortgagor shall deliver or cause to be delivered to Mortgagee such instruments
as may be requested by Mortgagee from time to time to permit such participation.
(b) If the Mortgaged Property or any part thereof is taken or diminished
in value, or if a consent settlement is entered by or under threat of such
proceeding, the award or settlement payable to Mortgagor by virtue of its
interest in the Mortgaged Property shall be, and by these presents is, assigned,
transferred and set over unto Mortgagee to be held by Mortgagee, subject to the
Lien and security interest of this Mortgage, and disbursed in accordance with
the provisions of the Credit Agreement or, if there is no provision contained in
the Credit Agreement governing how the same is to be disbursed, then Mortgagee
shall apply the entire amount thereof to the payment of the Obligations, whether
or not then due and payable, in such manner and order as Mortgagee may elect. In
all events, unless otherwise expressly provided to the contrary in the Credit
Agreement, Mortgagor hereby covenants and agrees to commence and diligently to
prosecute the restoration of the Mortgaged Property upon the occurrence of any
condemnation or other taking affecting the Mortgaged Property, without regard to
the availability or adequacy of any award or settlement. Notwithstanding any
condemnation or other taking of any of the Mortgaged Property, Mortgagor shall
continue to pay the Obligations at the time and in the manner provided for in
the Credit Agreement and the other Loan Documents until any condemnation award
or settlement shall have been actually received and applied by Mortgagee to the
discharge of the Obligations. Notwithstanding anything to the contrary in this
Section 5.05 but subject to the final sentence of this Section 5.05(b), if the
Mortgaged Property or any part thereof is taken or diminished in value, or if a
consent settlement is entered by or under threat of such proceeding, and the
award or settlement payable to Mortgagor by virtue of its interest in the
Mortgaged Property is $50,000.00 or less, provided that no Default exists under
the Loan Documents, Mortgagor shall be entitled to retain that part of any such
award or settlement that is designated for restoration of the Mortgaged Property
and shall apply it accordingly, and the balance shall be paid to Mortgagee for
application to the Obligations in such order as Mortgagee shall determine.
Furthermore, subject to the final sentence of this Section 5.05(b), in the event
the Mortgaged Property or any part thereof is taken or diminished in value, or
if a consent settlement is entered by or under threat of such proceeding, and
the award or settlement payable to Mortgagor by virtue of its interest in the
Mortgaged Property is greater than $50,000 but less than twenty-five percent
(25%) of the fair market value of the Mortgaged Property, Mortgagee shall make
that portion of any such award or settlement that is designated
16
for restoration of the Mortgaged Property available for restoration and repair
of the Mortgaged Property to a complete architectural unit ("restoration"),
provided that the following conditions are satisfied to the reasonable
satisfaction of Mortgagee within one hundred twenty (120) days after such
taking:
(i) Mortgagor shall submit to Mortgagee schematic plans and
specifications for the restoration, which plans and specifications shall be
consistent with the condition of the Mortgaged Property immediately prior to
such taking, subject to modifications approved by Mortgagee;
(ii) Mortgagor shall enter into a fixed or guaranteed maximum cost
contract for the restoration with a contractor reasonably acceptable to
Mortgagee;
(iii) Mortgagor shall obtain all necessary governmental permits and
approvals for the restoration;
(iv) Mortgagor shall deposit with Mortgagee such sums of money as
are necessary, when added to the award proceeds and earnings thereon, to pay
the full cost of the restoration;
(v) The contract for performance of the restoration shall provide
that the restoration shall be substantially complete within one (1) year
after the date of the taking; and
(vi) Mortgagor shall agree to comply with such additional
construction disbursement conditions and procedures as are customary for such
projects.
The award or settlement amount and any sums deposited by Mortgagor pursuant to
(iv) above shall be held by Mortgagee in a separate interest-bearing account
established at Mortgagor's expense in the name of Mortgagee but for the benefit
of Mortgagor, and all earnings on such deposits shall be added to such account.
Mortgagor shall pay to Mortgagee a fee for Mortgagee's internal staff expense of
monitoring such disbursements equal to one percent (1%) of the amount deposited
in such account, and Mortgagor shall pay all out-of-pocket fees and expenses
paid by Mortgagee to title insurance companies and consulting engineers and
architects, for endorsements to title policies, review of plans, inspections and
disbursing services in connection with such application of award proceeds to the
restoration. After completion of the restoration, any balance remaining in such
account up to the amount of any sums deposited by Mortgagor pursuant to (iv)
above plus $50,000 shall be paid to Mortgagor, and any balance remaining in such
account in excess of such amounts shall be paid to Mortgagee for application to
the Obligations in such order as Mortgagee shall determine. If the Mortgaged
Property is sold, through foreclosure or otherwise, prior to the receipt by
Mortgagee of such condemnation award or settlement, Mortgagee shall have the
right, whether or not a deficiency judgment on any Loan Document shall have been
sought, recovered or denied, to receive such condemnation award or settlement,
or a portion thereof sufficient to pay the Obligations, whichever is less.
SECTION 5.06 Maintenance of Rights-of-Way, Easements, Licenses and
Other Rights. Mortgagor shall maintain, preserve and renew all rights-of-way,
easements, tenements, hereditaments, development rights and credits, zoning
rights, grants, privileges,
17
appurtenances, licenses, franchises and other rights reasonably necessary for
the use or operation of the Mortgaged Property from time to time, or otherwise
relevant to the value thereof, and Mortgagor shall not, without the prior
written consent of Mortgagee, initiate, join in or consent to any private
restrictive covenant or other public or private restriction as to the present or
future use or operation of the Mortgaged Property. Mortgagor shall, however,
comply with all restrictive covenants which may at any time affect the Mortgaged
Property, all applicable zoning ordinances and all other public or private
restrictions relating to the use of the Mortgaged Property.
SECTION 5.07 Payment and Performance of Obligations. Mortgagor shall
duly and punctually pay and perform all of the Obligations.
SECTION 5.08 Compliance with Permitted Liens and Other Obligations.
Mortgagor shall comply in all material respects with any and all obligations,
restrictions and requirements that may be set forth in each and every document
constituting a Permitted Lien. In addition, Mortgagor shall comply in all
material respects with each and every obligation legally imposed upon it and/or
relating to the Mortgaged Property pursuant to applicable law (including,
without limitation, all matters described in Section 4.05 hereof), contract or
other agreement. It is hereby acknowledged that Mortgagee's consent to a
Permitted Lien as of the date hereof shall in no way be deemed to constitute
approval of any future Lien which may be imposed upon any portion of the
Mortgaged Property, or any other enforcement action affecting Mortgagor or the
Mortgaged Property, as a result of Mortgagor's failure to perform or comply with
its obligations under any document constituting a Permitted Lien as of the date
hereof.
SECTION 5.09 Additional Affirmative Covenants. All affirmative
covenants made by the Borrowers or Guarantors or any of them in the Credit
Agreement are incorporated herein by reference and are hereby also made by
Mortgagor as to itself and the Mortgaged Property as though such covenants were
set forth at length herein as the covenants of Mortgagor.
ARTICLE VI.
NEGATIVE COVENANTS
Mortgagor hereby covenants and agrees with Mortgagee that, until all of
the Obligations shall have been paid or performed in full and discharged:
SECTION 6.01 Use Violations. Mortgagor shall not use, maintain,
operate or occupy, or allow the use, maintenance, operation or occupancy of, the
Mortgaged Property in any manner which (a) violates in any material respect any
Governmental Requirement, (b) may be dangerous unless safeguarded as required by
applicable law, (c) constitutes a public or private nuisance, or (d) makes void,
voidable or cancelable, or increases, substantially in excess of commercially
reasonably rates, the premium of, any insurance then in force with respect
thereto.
SECTION 6.02 Waste. Mortgagor shall not commit or permit any waste
with respect to the Mortgaged Property.
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SECTION 6.03 Alterations. Mortgagor shall notify Mortgagee, in
writing and in advance, with respect to all proposed alterations, improvements
or additions to the Mortgaged Property (collectively, "Alterations") which are
of a material nature, and, unless and to the extent otherwise expressly provided
in the Credit Agreement, Mortgagor shall not effect any material Alterations to
the Mortgaged Property without the prior written consent of Mortgagee.
Notwithstanding the foregoing, Mortgagor shall have the right to perform
Alterations to the Mortgaged Property without obtaining the prior written
consent of the Mortgagee pursuant to (i) its normal course of tenant improvement
activities pursuant to any Leases; and (ii) non-structural Alterations the costs
of which in the aggregate do not exceed $100,000.00 in any given year.
SECTION 6.04 No Further Encumbrances. Mortgagor shall not, without
the prior written consent of Mortgagee, create, place or permit to be created or
placed, or through any act or failure to act, acquiesce in the placing of, or
allow to remain, any mortgage, pledge, Lien (statutory, constitutional or
contractual), security interest, encumbrance or charge on, or conditional sale
or other title retention agreement with respect to, the Mortgaged Property, or
any portion thereof or interest therein, other than the Permitted Liens,
regardless of whether the same are subordinate to the Lien(s) and security
interest(s) created by this Mortgage. Notwithstanding the foregoing, Mortgagor
shall be permitted to place or create purchase money liens on equipment acquired
or held by Mortgagor in the ordinary course of its business to secure the
purchase price of such equipment or indebtedness incurred solely for the purpose
of financing the acquisition of such equipment or liens existing on such
equipment at the time of its acquisition; provided that no such lien shall
extend to or cover any other Mortgaged Property, the principal amount of the
indebtedness secured by any such lien shall not exceed the lesser of 100% of the
fair market value or the cost of the property so held or acquired, and the
aggregate principal amount of indebtedness secured by any or all such liens
shall not exceed at any one time outstanding $160,000.00.
SECTION 6.05 Transfer Restrictions. Mortgagor shall not sell, lease,
assign, transfer or otherwise dispose of or abandon all or any part of the
Mortgaged Property (or any interest therein), except as expressly permitted by,
and in accordance with the terms of, the Credit Agreement or as permitted
pursuant to Section 3.03 herein.
SECTION 6.06 Additional Negative Covenants. All negative covenants
made by the Borrowers or Guarantors or any of them in the Credit Agreement and
the other Loan Documents are incorporated herein by reference and are hereby
also made by Mortgagor as to itself and the Mortgaged Property as though such
negative covenants were set forth at length herein as the negative covenants of
Mortgagor.
ARTICLE VII.
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.01 Event of Default. The "Events of Default" set forth in
Section 8.01 of the Credit Agreement are hereby incorporated herein as if fully
set forth herein, and, without limiting the generality of the foregoing, the
occurrence of an "Event of Default" under the Credit Agreement or any other Loan
Document shall constitute an "Event of Default"
19
hereunder.
SECTION 7.02 Acceleration. Upon the occurrence and during the
continuance of any Event of Default, in addition to any other rights, powers or
remedies conferred herein or by operation of law, Mortgagee, in its sole
judgment and discretion, may declare the then unpaid principal balance of the
Loan (the "Principal Balance"), the accrued interest thereon and any other
accrued but unpaid portion of the Obligations to be, and they shall thereupon
forthwith become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by
Mortgagor.
SECTION 7.03 Foreclosure and Sale. If an Event of Default shall
occur and be continuing, Mortgagee shall have the right and option to take
possession of the Mortgaged Property and/or proceed with foreclosure and to
sell, to the extent and in the manner permitted by applicable law, all or any
portion of the Mortgaged Property at one or more sales, as an entirety or in
parcels, at such place or places, in such manner and upon such notice as may be
required by applicable law, or, in the absence of any such requirement, as
Mortgagee may deem appropriate, and to make conveyance to the purchaser or
purchasers. Where the Mortgaged Property is situated in more than one county,
notice as above provided shall be posted and filed in all such counties (if such
notices are required by applicable law), and all such Mortgaged Property may be
sold in any such county and any such notice shall designate the county where
such Mortgaged Property is to be sold. Nothing contained in this Section 7.03
shall be construed so as to limit in any way Mortgagee's rights to sell the
Mortgaged Property, or any portion thereof, by private sale if, and to the
extent that, such private sale is permitted under the laws of the applicable
jurisdiction or by public or private sale after entry of a judgment by any court
of competent jurisdiction so ordering. Mortgagor hereby irrevocably appoints
Mortgagee to be the attorney-in-fact of Mortgagor (coupled with an interest) and
in the name and on behalf of Mortgagor to execute and deliver any deeds,
transfers, conveyances, assignments, assurances and notices which Mortgagor
ought to execute and deliver, and to do and perform any other acts or things
which Mortgagor ought to do and perform under the covenants herein contained
and, generally, to use the name of Mortgagor in the exercise of any of the
powers hereby conferred on Mortgagee. At any such sale: (a) whether made under
the power herein contained or any other legal enactment, or by virtue of any
judicial proceedings or any other legal right, remedy or recourse, it shall not
be necessary for Mortgagee to have physically present, or to have constructive
possession of, the Mortgaged Property (Mortgagor hereby covenanting and agreeing
to deliver to Mortgagee any portion of the Mortgaged Property not actually or
constructively possessed by Mortgagee immediately upon demand by Mortgagee) and
the title to and right of possession of any such property shall pass to the
purchaser thereof as completely as if the same had been actually present and
delivered to purchaser at such sale; (b) each instrument of conveyance executed
by Mortgagee shall contain a general warranty of title, binding upon Mortgagor
and its successors and assigns; (c) each and every recital contained in any
instrument of conveyance made by Mortgagee shall conclusively establish the
truth and accuracy of the matters recited therein, including, without
limitation, nonpayment and/or nonperformance of the Obligations and
advertisement and conduct of such sale in the manner provided herein and
otherwise required by applicable law; (d) any and all prerequisites to the
validity thereof shall be conclusively presumed to have been performed; (e) the
receipt of Mortgagee, or of such other Person or officer making the sale, shall
be a sufficient discharge to the purchaser for its purchase money and neither
such purchaser nor its assigns or personal
20
representatives shall thereafter be obligated to see to the application of such
purchase money, or be in any way answerable for any loss, misapplication or
non-application thereof; (f) to the fullest extent permitted by applicable law,
Mortgagor shall be completely and irrevocably divested of all of its right,
title, interest, estate, claim and demand whatsoever, either at law or in equity
(including any statutory or common law right of redemption, which is hereby
waived to the fullest extent permitted by applicable law), in and to the
property sold in any such event, and such sale shall be a perpetual bar, both at
law and in equity, against Mortgagor and any and all other Persons claiming by,
through or under Mortgagor; and (g) to the extent and under such circumstances
as are permitted by applicable law, Mortgagee may be a purchaser at any such
sale, and shall have the right, after paying or accounting for all costs of said
sale or sales, to credit the amount of the then unpaid Obligations to the amount
of its bid (in the order of priority set forth in Section 7.16 hereof) in lieu
of cash payment. Each remedy provided in this instrument is distinct from and
cumulative with all other rights and remedies provided hereunder or afforded by
applicable law or equity, and may be exercised concurrently, independently or
successively, in any order whatsoever.
SECTION 7.04 Mortgagee's Agents. Mortgagee may appoint or delegate
any one or more Persons as agent to perform any act or acts necessary or
incident to any sale held by Mortgagee, including the posting of notices and the
conduct of sale, but in the name and on behalf of Mortgagee.
SECTION 7.05 Judicial Foreclosure. If any Event of Default shall
occur and be continuing, Mortgagee shall have the right and power to proceed by
a suit or suits in equity or at law, whether for the specific performance of any
covenant or agreement herein contained or in aid of the execution of any power
herein granted, or for any foreclosure hereunder or for the sale of the
Mortgaged Property under the judgment or decree of any court or courts of
competent jurisdiction, or for the enforcement of any other appropriate legal or
equitable remedy.
SECTION 7.06 Receiver. If any Event of Default shall occur and be
continuing, Mortgagee may apply for and obtain as a matter of right and without
notice to Mortgagor, which notice is hereby expressly waived by Mortgagor, the
appointment of a receiver to collect the Rents of the Mortgaged Property and to
preserve the security hereof; either before or after any foreclosure sale or the
sale of the Mortgaged Property under the order of a court or courts of competent
jurisdiction or under executory or other legal process, without regard to the
value of the Mortgaged Property as security for the amount then due to
Mortgagee, or the solvency of any entity or entities, person or persons
primarily or secondarily liable for the payment of such amounts; the Rents of
the Mortgaged Property, in any such event, having heretofore been assigned to
Mortgagee pursuant to Section 3.01 as additional security for the payment of the
Obligations secured hereby. Any money advanced by Mortgagee in connection with
any such receivership shall be a demand obligation (which obligation Mortgagor
hereby expressly promises to pay) owing by Mortgagor to Mortgagee and shall be
subject to the provisions of Section 8.07(b) hereof.
SECTION 7.07 Foreclosure for Installments. To the extent allowed by
applicable law, Mortgagee shall also have the option to proceed with foreclosure
in satisfaction of any installments of the Obligations which have not been paid
when due, either through the
21
courts or otherwise, by non-judicial power of sale in satisfaction of the
matured but unpaid portion of the Obligations as if under a full foreclosure,
conducting the sale as herein provided and without declaring the entire
principal balance and accrued interest due. Such sale may be made subject to the
unmatured portion of the Obligations, and any such sale shall not in any manner
affect the unmatured portion of the Obligations, but as to such unmatured
portion of the Obligations this Mortgage shall remain in full force and effect
just as though no sale had been made hereunder. It is further agreed that
several sales may be made hereunder without exhausting the right of sale for any
unmatured part of the Obligations, it being the intent and purpose hereof to
provide for a foreclosure and sale of the security for any matured portion of
the Obligations without exhausting the power to foreclose and sell the Mortgaged
Property for any subsequently maturing portion of the Obligations.
SECTION 7.08 Separate Sales. To the extent allowed by applicable
law, 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, it being
expressly understood and agreed that the right of sale arising out of any Event
of Default shall not be exhausted by any one or more sales.
SECTION 7.09 Possession of Mortgaged Property. Mortgagor agrees to
the full extent that it lawfully may, that, in case one or more of the Events of
Default shall have occurred and be continuing, then, and in every such case,
Mortgagee shall have the right and power to enter into and upon and take
possession of all or any part of the Mortgaged Property in the possession of
Mortgagor, its successors or assigns, or its or their agents or servants, and
may exclude Mortgagor, its successors or assigns, and all Persons claiming by,
through or under Mortgagor, and its or their agents or servants wholly or partly
therefrom; and, holding the same, Mortgagee may use, administer, manage, operate
and control the Mortgaged Property and conduct the business thereof to the same
extent as Mortgagor, its successors or assigns, might at the time do and may
exercise all rights and powers of Mortgagor, in the name, place and stead of
Mortgagor, or otherwise as Mortgagee shall deem best. All costs, expenses and
liabilities of every character incurred by Mortgagee in administering, managing,
operating and controlling the Mortgaged Property shall constitute a demand
obligation (which obligation Mortgagor hereby expressly promises to pay) owing
by Mortgagor to Mortgagee and shall be subject to the provisions of Section
8.07(b) hereof. Mortgagor hereby irrevocably constitutes and appoints Mortgagee
as Mortgagor's attorney-in-fact (coupled with an interest) to perform such acts
and execute such documents as Mortgagee, in its sole discretion, shall deem
appropriate, including endorsement of Mortgagor's name on any instruments.
Regardless of any provision of this Mortgage, the Credit Agreement or any other
Loan Document, Mortgagee shall not be considered to have accepted any property
other than cash or immediately available funds in satisfaction of any obligation
of Mortgagor to Mortgagee, unless Mortgagee shall have given express written
notice of Mortgagee's election to the contrary.
SECTION 7.10 Occupancy After Acceleration. In the event that there
is an acceleration of the Loan and Mortgagor or Mortgagor's representatives,
successors or assigns or any other Person claiming any interest in the Mortgaged
Property by, through or under Mortgagor, continues to occupy or use the
Mortgaged Property or any part thereof, each and all shall immediately become
the tenant of Mortgagee (or its successor, if applicable), which tenancy shall
be a tenancy from day-to-day, terminable at the will of either the landlord or
tenant, at a rent to be determined by Mortgagee (which may be in excess of fair
market value); provided,
22
however that until Mortgagee sets forth the amount of such rent, such rent shall
be a fair market rental per day based upon the value of the Mortgaged Property
as a whole; and such rental shall be due daily to the Mortgagee (or its
successor, if applicable). To the extent permitted by applicable law, Mortgagee
(or its successor, if applicable), notwithstanding any language herein to the
contrary, shall have the sole option to demand immediate possession or to permit
the occupants to remain as tenants at will. In the event that the tenant fails
to surrender possession of said property upon demand, Mortgagee (and its
successor, if applicable) shall be entitled to institute and maintain a summary
action for possession of the Mortgaged Property (such as an action for forcible
entry and detainer) in any court having appropriate jurisdiction.
SECTION 7.11 Remedies Cumulative, Concurrent and Nonexclusive. Every
right, power and remedy herein given to Mortgagee shall be cumulative and in
addition to every other right, power and remedy herein specifically given or now
or hereafter existing in equity, at law or by statute (including specifically
those granted by the Applicable UCC). Each such right, power and remedy, whether
specifically herein given or otherwise existing, may be exercised from time to
time and so often and in such order as may be deemed expedient by Mortgagee, and
the exercise, or the beginning of the exercise, of any such right, power or
remedy shall not be deemed a waiver of the right to exercise, at the same time
or thereafter, any other right, power or remedy. Mortgagee shall be entitled to
collect all costs and expenses incurred in pursuing such remedies. No delay or
omission by Mortgagee in the exercise of any such right, power or remedy shall
impair any such right, power or remedy or operate as a waiver thereof or of any
other right, power or remedy then or thereafter existing.
SECTION 7.12 No Release of Obligations. Neither Mortgagor nor any
Borrower, Guarantor or other Person now or hereafter obligated for the payment
or performance of all or any part of the Obligations shall be relieved of any
such obligation by reason of (a) the failure of Mortgagee to comply with any
request of Mortgagor or any Borrower, Guarantor or other Person so obligated to
foreclose the Lien of this Mortgage or to enforce any provision hereunder or
under the Loan Agreement; (b) the release, regardless of consideration, of the
Mortgaged Property or any portion thereof or interest therein or the addition of
any other property to the Mortgaged Property; (c) any agreement or stipulation
between any subsequent owner of the Mortgaged Property and Mortgagee extending,
renewing, rearranging or in any other way modifying the terms of this Mortgage
without first having obtained the consent of, given notice to or paid any
consideration to Mortgagor or any Borrower, Guarantor or other Person, and in
any such event Mortgagor and all Borrowers, Guarantors and such other Persons
shall continue to be liable to make payment according to the terms of any such
extension or modification agreement unless expressly released and discharged in
writing by Mortgagee; or (d) any other act or occurrence save and except the
complete payment and performance of all of the Obligations.
SECTION 7.13 Release of and Resort to Collateral. Mortgagee may
release, regardless of consideration, any part of the Mortgaged Property
without, as to the remainder, in any way impairing, affecting, subordinating or
releasing the Lien or security interest created in or evidenced by this Mortgage
or its stature as a first and prior Lien and security interest in and to the
Mortgaged Property, and without in any way releasing or diminishing the
liability of any Person liable for the payment or performance of the
Obligations. Mortgagee may resort to any other security for the Obligations held
by Mortgagee in such
23
manner and order as Mortgagee may elect.
SECTION 7.14 Waiver of Redemption, Notice and Marshalling of Assets.
To the fullest extent permitted by applicable law, Mortgagor hereby irrevocably
and unconditionally waives and releases (a) all benefits that might accrue to
Mortgagor by virtue of any present or future moratorium law or other law
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) except for
notices expressly provided for herein or in the Credit Agreement, all notices of
any Event of Default or of Mortgagee's intention to accelerate maturity of the
Obligations or of Mortgagee's election to exercise or actual exercise of any
right, remedy or recourse provided for hereunder or under the Credit Agreement;
and (c) any right to a marshalling of assets or a sale in inverse order of
alienation; and (d) any and all conflicts with any provisions of any of the Loan
Documents. If any law referred to in this Mortgage and now in force, of which
Mortgagor or its successor or successors might take advantage despite the
provisions hereof, shall hereafter be repealed or cease to be in force, such law
shall thereafter be deemed not to constitute any part of the contract herein
contained or to preclude the operation or application of the provisions hereof.
SECTION 7.15 Discontinuance of Proceedings. In case Mortgagee shall
have proceeded to invoke any right, remedy or recourse permitted hereunder or
under the Credit Agreement and shall thereafter elect to discontinue or abandon
same for any reason, Mortgagee shall have the unqualified right so to do and, in
such an event, Mortgagor and Mortgagee shall be restored to their former
positions with respect to the Obligations, this Mortgage, the Credit Agreement,
the Mortgaged Property and otherwise, and the rights, remedies, recourses and
powers of Mortgagee shall continue as if same had never been invoked.
SECTION 7.16 Application of Proceeds. After the occurrence and
during the continuance of an Event of Default, the proceeds of any sale of and
any other amounts generated by the holding, leasing, operating or other use of
the Mortgaged Property shall be applied by Mortgagee (or the receiver, if one is
appointed), to the extent that funds are so available therefrom, in accordance
with the provisions of the Credit Agreement or, if not so provided, then in the
following order of priority, except to the extent otherwise required by
applicable law:
(a) first, to the payment of the reasonable and necessary costs and
expenses of taking possession of the Mortgaged Property and of holding, using,
leasing, repairing, improving the same, including reasonable (i) receivers'
fees, (ii) court costs, (iii) attorneys' and accountants' fees, (iv) costs of
advertisement and title search fees, and (v) the payment of any and all
Impositions, Liens, security interests or other rights, titles or interests
equal or superior to the Lien and security interest of this Mortgage (except
those to which the Mortgaged Property has been sold subject to and without in
any way implying Mortgagee's prior consent to the creation thereof);
(b) second, to the payment of all amounts other than the Principal Balance
and accrued but unpaid interest which may be due to Mortgagee hereunder or under
the other Loan Documents, together with interest thereon as provided herein;
24
(c) third, to the payment of the Obligations in such order and manner as
Mortgagee determines in its sole discretion; and
(d) fourth, to Mortgagor or as otherwise required by any Governmental
Requirement.
Mortgagor shall be liable for any deficiency remaining.
SECTION 7.17 Uniform Commercial Code Remedies. Mortgagee shall have
all of the rights, remedies and recourses with respect to the Personalty and the
Fixtures afforded to it by the Applicable UCC, including, without limitation,
the right to take possession of the Personalty and the Fixtures or any part
thereof, and to take such other measures as Mortgagee may deem necessary for the
care, protection and preservation of the Personalty and the Fixtures, in
addition to, and not in limitation of, the other rights, remedies and recourses
afforded by this Mortgage and the other Loan Documents.
SECTION 7.18 Indemnity. In connection with any action taken by
Mortgagee pursuant to this Mortgage, neither Mortgagee nor any Indemnified
Person shall be liable for any Loss sustained by Mortgagor, including those
resulting from (a) any assertion that Mortgagee or any Indemnified Person
received funds from the operations of the Mortgaged Property claimed by third
Persons, or (b) any act or omission of Mortgagee or such Indemnified Person in
administering, managing, operating or controlling the Mortgaged Property,
including in either case such Loss as may result from the ordinary negligence of
Mortgagee or such Indemnified Person or which may result from strict liability,
whether under applicable law or otherwise, unless such Loss is caused by the
gross negligence or willful misconduct of Mortgagee or such Indemnified Person,
nor shall Mortgagee or such Indemnified Person be obligated to perform or
discharge any obligation, duty or liability of Mortgagor. Mortgagor shall and
does hereby agree to indemnify Mortgagee and each Indemnified Person for, and to
hold Mortgagee and each such Indemnified Person harmless from, any and all
Losses which may or might be incurred by Mortgagee or any Indemnified Person by
reason of this Mortgage or the exercise of rights or remedies hereunder,
including such Losses as may result from the ordinary negligence of Mortgagee or
any Indemnified Person or which may result from strict liability, whether under
applicable law or otherwise, unless such Loss is caused by the gross negligence
or willful misconduct of Mortgagee or such Indemnified Person. WITHOUT
LIMITATION, THE FOREGOING INDEMNITY SHALL APPLY TO MORTGAGEE AND EACH
INDEMNIFIED PERSON WITH RESPECT TO LOSSES WHICH IN WHOLE OR IN PART ARE CAUSED
BY OR ARISE OUT OF ANY NEGLIGENT ACT OR OMISSION OF MORTGAGEE, SUCH INDEMNIFIED
PERSON OR ANY OTHER PERSON. Should Mortgagee or any Indemnified Person make any
expenditure on account of any such Losses, the amount thereof, including costs,
expenses and reasonable attorneys' fees, shall be a demand obligation (which
obligation Mortgagor hereby expressly promises to pay) owing by Mortgagor to
Mortgagee and shall be subject to the provisions of Section 8.07(b) hereof.
Mortgagor hereby assents to, ratifies and confirms any and all actions of
Mortgagee with respect to the Mortgaged Property taken under this Mortgage. This
Section 7.18 shall survive the termination of this Mortgage and the payment and
performance of the Obligations.
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ARTICLE VIII.
MISCELLANEOUS
SECTION 8.01 Instrument Construed as Mortgage, Etc. This Mortgage
may be construed as a mortgage, deed of trust, chattel mortgage, conveyance,
assignment, security agreement, pledge, Financing statement, hypothecation or
contract, or any one or more of them, in order to fully effectuate the liens and
security interests created hereby and the purposes and agreements set forth
herein.
SECTION 8.02 Performance at Mortgagor's Expense. The cost and
expense of performing or complying with any and all of the Obligations shall be
borne solely by Mortgagor, and no portion of such cost and expense shall be, in
any way or to any extent, credited against any installment on or portion of the
Obligations.
SECTION 8.03 Survival of Obligations. Each and all of the
Obligations shall survive the execution and delivery of this Mortgage and shall
continue in full force and effect until all of the Obligations shall have been
fully satisfied.
SECTION 8.04 Further Assurances. Mortgagor, upon the request of
Mortgagee, shall execute, acknowledge, deliver and record and/or file such
further instruments, including Financing statements, and do such further acts as
may be reasonably necessary, desirable or proper to carry out more effectively
the purpose of this Mortgage and to subject to the Liens and security interests
hereof any property intended by the terms hereof to be covered hereby, including
any renewals, additions, substitutions, replacements, betterments or
appurtenances to the then Mortgaged Property.
SECTION 8.05 Notices. All notices or other communications required
or permitted to be given pursuant to this Mortgage shall be in writing and shall
be considered properly given if given in the manner and to the addresses
prescribed by Section 11.02 of the Credit Agreement to the parties and at the
addresses set forth in the first paragraph of this Mortgage, and to each of the
parties to the Credit Agreement at the addresses set forth in Section 11.02
thereof. Any party shall have the right to change its address for notice
hereunder to any other location within the continental United States by the
giving of ten (10) days' notice to the other party in the manner set forth
above.
SECTION 8.06 No Waiver. Any failure by Mortgagee to insist, or any
election by Mortgagee not to insist, upon strict performance by Mortgagor of any
of the terms, provisions or conditions of this Mortgage shall not be deemed to
be a waiver of the same or of any other terms, provision or condition hereof,
and Mortgagee shall have the right, at any time or times thereafter, to insist
upon strict performance by Mortgagor of any and all of such terms, provisions
and conditions. Mortgagee may, in Mortgagee's sole and absolute discretion, (i)
in the case of a Default, determine whether such Default has been cured, and
(ii) in the case of an Event of Default, accept or reject any proposed cure of
an Event of Default. In no event shall any provision of this Mortgage or any
other Loan Document which provides that Mortgagee shall have certain rights
and/or remedies only during the continuance of an Event of Default be construed
so as to require Mortgagee to accept a cure of any such Event of Default. Unless
and
26
until Mortgagee accepts any proposed cure of an Event of Default, such Event of
Default shall be deemed to be continuing for purposes of this Mortgage and the
other Loan Documents.
SECTION 8.07 Mortgagee's Right to Perform; Mortgagee's Expenditures.
(a) Mortgagor agrees that if Mortgagor fails to perform any act or take
any action which Mortgagor is required to perform or take hereunder or under the
Credit Agreement or to pay any money which Mortgagor is required to pay
hereunder or under the Credit Agreement, Mortgagee may, but shall not be
obligated to, perform or cause to be performed such act or take such action or
pay such money to the extent and only to the extent permitted under the Credit
Agreement.
(b) All costs and expenses incurred by Mortgagee (or any Indemnified
Party), including, without limitation, attorneys fees and expenses, all monies
paid by (or on behalf of) Mortgagee and the monetary value of all services
performed by (or on behalf of Mortgagee) in connection with a Default or Event
of Default hereunder or under any other Loan Document, including, without
limitation, the (i) the enforcement of any term or provision of this Mortgage or
any other Loan Document, (ii) the performance by Mortgagee of any obligation of
Mortgagor under this Mortgage or any other Loan Document if Mortgagee elects to
so perform, in its sole and absolute discretion, and (iii) any action Mortgagee
elects to take, in its sole and absolute discretion, to protect its interest in
or the value of the Mortgaged Property, shall be a demand obligation owing by
Mortgagor to Mortgagee, as the case may be, and to the extent any payment is
made to a third Person, Mortgagee, upon making such payment, shall be subrogated
to all of the rights of the Person receiving such payment. All such costs and
expenses, monies and the monetary value of such services performed shall (x)
bear interest at the Default Rate from the date of such incurrence, payment or
performance, as applicable, until paid, and (y) (together with such interest)
constitute a portion of the Obligations and shall be secured by this Mortgage
and all of the other Loan Documents. If Mortgagee shall elect to pay any
Imposition or other sums due with reference to the Mortgaged Property, Mortgagee
may do so in reliance on any ▇▇▇▇, statement or assessment procured from the
appropriate Governmental Authority or other issuer thereof.
SECTION 8.08 Successors and Assigns. All of the terms hereof shall
apply to, be binding upon and inure to the benefit of the parties hereto, their
successors, assigns, heirs and legal representatives, and all other Persons
claiming by, through or under them; provided, however, that nothing herein shall
be deemed to imply any right on behalf of Mortgagor to assign its interest in
any of the Mortgaged Property except as may be expressly set forth in the Credit
Agreement.
SECTION 8.09 Severability. This Mortgage is intended to be performed
in accordance with, and only to the extent permitted by, all applicable laws and
regulations of applicable Governmental Authorities and the provisions hereof are
intended to be limited to the extent necessary that they will not render this
Mortgage invalid, unenforceable or not entitled to be recorded, registered or
filed under the provisions of any applicable law. If any provision hereof or the
application thereof to any Person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, neither the remainder of this Mortgage
nor the application of
27
such provision to other Persons or circumstances shall be affected thereby, but
rather shall be enforced to the greatest extent permitted by applicable law.
SECTION 8.10 Entire Agreement and Modification. This Mortgage may
not be amended, revised, waived, discharged, released or terminated orally, but
only by a written instrument or instruments executed by the party against which
enforcement of the amendment, revision, waiver, discharge, release or
termination is asserted. Any alleged amendment, revision, waiver, discharge,
release or termination which is not so documented shall not be effective as to
any party.
SECTION 8.11 Applicable Law. THIS MORTGAGE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE IN WHICH THE
MORTGAGED PROPERTY IS LOCATED; PROVIDED, HOWEVER, THAT THE CREDIT AGREEMENT IS
AND EACH GUARANTY IS BY ITS TERMS, GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK AS PROVIDED THEREIN, AND, IN THE EVENT THAT IT BECOMES NECESSARY, IN
CONNECTION WITH THE ENFORCEMENT OF THIS MORTGAGE OR OTHERWISE, TO CONSTRUE OR
ENFORCE THE OBLIGATIONS (WHICH OBLIGATIONS ARE SECURED BY THIS MORTGAGE), THE
CREDIT AGREEMENT AND EACH GUARANTY SHALL BE CONSTRUED AND, ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 8.12 Satisfaction of Prior Encumbrance. To the extent that
proceeds advanced pursuant to the Credit Agreement are used to pay indebtedness
secured by any outstanding Lien, security interest, charge or prior encumbrance
against the Mortgaged Property, such proceeds shall be deemed to have been
advanced by Mortgagee at Mortgagor's request, and Mortgagee shall be subrogated
to any and all rights, security interests and Liens owned by any owner or holder
of such outstanding Liens, security interests, charges or encumbrances,
irrespective of whether said Liens, security interests, charges or encumbrances
are released, and it is expressly understood that, in consideration of the
payment of such other indebtedness by Mortgagee, Mortgagor hereby waives and
releases all demands and causes of action for offsets and payments to, upon and
in connection with the said indebtedness.
SECTION 8.13 No Partnership. Nothing contained in this Mortgage is
intended to, or shall be construed to, create to any extent and in any manner
whatsoever any partnership, joint venture, or association between Mortgagor and
Mortgagee, or in any way make Mortgagee a co-principal with Mortgagor with
reference to the Mortgaged Property, and any inferences to the contrary are
hereby expressly negated.
SECTION 8.14 Headings. The Article, Section and Subsection headings
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 8.15 Release of Mortgage. If all of the Obligations shall be
paid, performed and discharged and the Credit Agreement is and each Guaranty is
terminated, Mortgagee shall forthwith cause satisfaction and discharge of this
Mortgage to be entered upon the record, at the sole cost and expense of
Mortgagor, and shall execute and deliver (or cause to
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be executed and delivered) such instruments of satisfaction and discharge as may
be appropriate, such instruments to be duly acknowledged and in form for
recording, at the sole cost and expense of Mortgagor.
SECTION 8.16 Limitation of Obligations with Respect to Mortgaged
Property.
(a) Neither Mortgagee nor any Lender shall have any duty to protect or
preserve, or any liability with respect to the protection or preservation of,
any Mortgaged Property or to preserve rights pertaining thereto other than the
duty to use reasonable care in the custody and preservation of any Mortgaged
Property in its actual possession. Mortgagee shall be deemed to have exercised
reasonable care in the custody and preservation of any Mortgaged Property in its
possession if such Mortgaged Property is accorded treatment substantially equal
to that which Mortgagee accords its own like property. Mortgagee shall be
relieved of all responsibility for any Mortgaged Property in its possession upon
surrendering it, or tendering surrender of it, to Mortgagor or to such other
Person entitled thereto by applicable law.
(b) Nothing contained in this Mortgage shall be construed as requiring or
obligating Mortgagee or any Lender, and neither Mortgagee nor any Lender shall
be required or obligated, to (i) make any demand or inquiry as to the nature or
sufficiency of any payment received by it, or present or file any claim or
notice or take any action with respect to any Mortgaged Property or the monies
due or to become due in connection therewith, (ii) ascertain or take action with
respect to calls, conversions, exchanges, maturities, tenders, offers or other
matters relating to any Mortgaged Property, whether or not Mortgagee or any of
the other Lenders has or is deemed to have knowledge or notice thereof, (iii)
take any necessary steps to preserve rights against any prior parties with
respect to any Mortgaged Property, or (iv) notify Mortgagor or any other Person
of any decline in the value of any Mortgaged Property.
SECTION 8.17 Inconsistency with Credit Agreement. To the fullest
extent possible, the terms and provisions of the Credit Agreement shall be read
together with the terms and provisions of this Mortgage such that the terms and
provisions of this Mortgage shall supplement, rather than conflict with, the
terms and provisions of the Credit Agreement; provided, however, that,
notwithstanding the foregoing, in the event any of the terms or provisions of
this Mortgage conflict with any of the terms or provisions of the Credit
Agreement, such that it is impractical for such terms or provisions to coexist,
the terms or provisions of the Credit Agreement shall govern and control for all
purposes; and, provided further, that the inclusion in this Mortgage of terms
and provisions, supplemental rights or remedies in favor of a secured party but
which are not addressed in the Credit Agreement shall not be deemed to be a
conflict with the Credit Agreement and all such additional terms, provisions,
supplemental rights or remedies contained herein shall be given full force and
effect.
SECTION 8.18 Limitation on Interest Payable. It is the intention of
the parties to conform strictly to the usury laws, whether state or federal,
that are applicable to the transaction of which this Mortgage is a part. All
agreements between Mortgagor and Mortgagee, or any Lender, whether now existing
or hereafter arising and whether oral or written, are hereby expressly limited
so that in no contingency or event whatsoever shall the amount paid or agreed to
be paid by Mortgagor for the use, forbearance or detention of the money to be
loaned under
29
the Credit Agreement or any other Loan Document, or for the payment or
performance of any covenant or obligation contained herein or in the Credit
Agreement or any other Loan Document, exceed the maximum amount permissible
under applicable federal or state usury laws. If, under any circumstances,
fulfillment of any such provision, at the time performance of such provision
shall be due, shall involve exceeding the limit of validity prescribed by
applicable law, then the obligation to be fulfilled shall be reduced to the
limit of such validity. If, under any circumstances, Mortgagor shall have paid
an amount of money which is deemed to be interest and such interest would exceed
the highest lawful rate, such amount that would be excessive interest under
applicable usury laws shall be applied to the reduction of the principal amount
owing in respect of the Obligations and not to the payment of interest, or if
such excessive interest exceeds the unpaid balance of principal and any other
amounts due hereunder, the excess shall be refunded to Mortgagor. All sums paid
or agreed to be paid for the use, forbearance or detention of the principal
under any extension of credit by Mortgagee (or any Lender) shall, to the extent
permitted by applicable law, and to the extent necessary to preclude exceeding
the limit of validity prescribed by applicable law, be amortized, prorated,
allocated and spread from the date of this Mortgage until payment in full of the
Obligations so that the actual rate of interest on account of such principal
amounts is uniform throughout the term hereof.
SECTION 8.19 Covenants To Run With the Land. All of the grants,
representations, warranties, undertakings, covenants, terms, provisions and
conditions in this Mortgage shall run with the Land and shall apply to and bind
the successors and assigns of Mortgagor. If there shall be more than one
mortgagor, the covenants, representations and warranties made herein shall be
deemed to be joint and several.
SECTION 8.20 Last Dollar. So long as the balance of the Obligations
exceeds the portion of the Obligations secured by this Mortgage, no payment on
account of the Obligations shall be deemed to be applied against or to reduce
the portion of the Obligations secured by this Mortgage, but shall, instead, be
deemed to be applied against only such portions of the Obligations that are not
secured by this Mortgage.
SECTION 8.21 Defense of Claims. Mortgagor shall promptly notify
Mortgagee in writing of the commencement of any legal proceedings affecting
Mortgagor's title to the Mortgaged Property or Mortgagee's Lien on or security
interest in the Mortgaged Property, or any part thereof, and shall take all such
action, employing attorneys agreeable to Mortgagee, as may be necessary to
preserve Mortgagor's and Mortgagee's rights affected thereby. If Mortgagor fails
or refuses to adequately or vigorously, in the sole judgment of Mortgagee,
defend Mortgagor's or Mortgagee's rights to the Mortgaged Property, Mortgagee
may take such action on behalf of and in the name of Mortgagor and at
Mortgagor's expense. Moreover, Mortgagee may take (or cause its agents to take)
such independent action in connection therewith as they may in their discretion
deem proper, including, without limitation, the right to employ independent
counsel and to intervene in any suit affecting the Mortgaged Property. All
costs, expenses and attorneys' fees incurred by Mortgagee (or its agents)
pursuant to this Section 8.21 or in connection with the defense by Mortgagee of
any claims, demands or litigation relating to Mortgagor, the Mortgaged Property
or the transactions contemplated in this Mortgage shall be paid by Mortgagor on
demand, plus interest thereon from the date of the advance by Mortgagee until
reimbursement of Mortgagee at the Default Rate.
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SECTION 8.22 Exculpation Provisions. EACH OF THE PARTIES HERETO
SPECIFICALLY AGREES THAT IT HAS A DUTY TO READ THIS MORTGAGE; AND AGREES THAT IT
IS CHARGED WITH NOTICE AND KNOWLEDGE OF THE TERMS OF THIS MORTGAGE; THAT IT HAS
IN FACT READ THIS MORTGAGE AND IS FULLY INFORMED AND HAS FULL NOTICE AND
KNOWLEDGE OF THE TERMS, CONDITIONS AND EFFECTS OF THIS MORTGAGE; THAT IT HAS
BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF ITS CHOICE THROUGHOUT THE
NEGOTIATIONS PRECEDING ITS EXECUTION OF THIS MORTGAGE AND HAS RECEIVED THE
ADVICE OF ITS ATTORNEY IN ENTERING INTO THIS MORTGAGE; AND THAT IT RECOGNIZES
THAT CERTAIN OF THE TERMS OF THIS MORTGAGE RESULT IN ONE PARTY ASSUMING THE
LIABILITY INHERENT IN SOME ASPECTS OF THE TRANSACTION AND RELIEVING THE OTHER
PARTY OF ITS RESPONSIBILITY FOR SUCH LIABILITY. EACH PARTY HERETO AGREES AND
COVENANTS THAT IT WILL NOT CONTEST THE VALIDITY OR ENFORCEABILITY OF ANY
EXCULPATORY PROVISION OF THIS MORTGAGE ON THE BASIS THAT THE PARTY HAD NO NOTICE
OR KNOWLEDGE OF SUCH PROVISION OR THAT THE PROVISION IS NOT "CONSPICUOUS."
SECTION 8.23 No Merger of Estates. So long as any part of the
Obligations remain unpaid, unperformed or undischarged, the fee, easement and
leasehold estates to the Mortgaged Property shall not merge but rather shall
remain separate and distinct, notwithstanding the union of such estates either
in Mortgagor, Mortgagee, any lessee, any third-party purchaser or otherwise.
SECTION 8.24 Counterparts. This Mortgage may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of which, taken together, shall be deemed to constitute one single instrument,
except that, to facilitate recordation, portions of Exhibit A hereto which
describe properties situated in counties other than the county in which this
Mortgage is to be recorded may be omitted.
SECTION 8.25 Maturity Date. The latest Obligation secured by this
Mortgage matures on June ___, 2010.
ARTICLE IX.
STATE SPECIFIC PROVISIONS
SECTION 9.01 Application of Rents and Proceeds. Notwithstanding any
provision of this Mortgage (including, without limitation, Section 3.02(b),
Section 3.04, Section 7.06 and Section 7.16 hereof) to the contrary, all Rents
received from the Mortgaged Property shall be applied as follows:
(1) to payment of all reasonable fees of the receiver approved by the
court;
(2) to payment of all tenant security deposits then owing to tenants under
any of the Leases pursuant to the provisions of Minn. Stat. 504B.178, if
applicable;
31
(3) to payment of all prior or current real estate taxes and special
assessments with respect to the Mortgaged Property, or the escrow payments
then due;
(4) to payment of all premiums then due for the insurance required by the
provisions of this Mortgage, or to the escrow payments then due;
(5) to payment of all expenses to perform the covenants of any lessor or
licensee pursuant to Minn. Stat. 504B.161, subd. 1, if applicable;
(6) to payment of expenses incurred for normal maintenance and operation
of the Mortgaged Property;
(7) prior to commencement of any foreclosure, to Mortgagee for payment of
the indebtedness secured by this Mortgage in such order as Mortgagee may
elect, but no such payment made after acceleration of the indebtedness shall
affect such acceleration;
(8) after commencement of any foreclosure, to Mortgagee for payment of the
amount required to be paid to effect a reinstatement prior to the foreclosure
sale, but no such payment made after acceleration of the indebtedness shall
affect such acceleration; and
(9) after a foreclosure sale, at the option of Mortgagee, in its sole
discretion, to payment of any deficiency or to the amount required to be paid
to effect a redemption, with any excess to be paid to Mortgagor; provided,
however, that if this Mortgage is not reinstated nor the Mortgaged Property
redeemed, the entire amount received pursuant hereto, after deducting the
amounts, if any, applied by Mortgagee to any deficiency, shall be the
property of the purchaser of the Mortgaged Property at the foreclosure sale.
The rights and powers of the Mortgagee under this Mortgage and the application
of Rents under this Section shall continue until expiration of the redemption
period from any foreclosure sale, whether or not any deficiency remains after a
foreclosure sale. A receiver appointed pursuant to this Mortgage shall apply all
Rents in accordance with this section from the date of appointment of such
receiver through the entire redemption period following the foreclosure sale.
SECTION 9.02 WAIVER OF CONSTITUTIONAL RIGHTS. MORTGAGOR UNDERSTANDS
AND AGREES THAT IF AN "EVENT OF DEFAULT" (AS DEFINED IN THE CREDIT AGREEMENT)
SHALL OCCUR, MORTGAGEE HAS THE RIGHT, INTER ALIA, TO FORECLOSE THIS MORTGAGE BY
ADVERTISEMENT PURSUANT TO MINNESOTA STATUTES, CHAPTER 580, AS HEREAFTER AMENDED,
OR PURSUANT TO ANY SIMILAR OR REPLACEMENT STATUTE HEREAFTER ENACTED; THAT IF
MORTGAGEE ELECTS TO FORECLOSE BY ADVERTISEMENT, IT MAY CAUSE THE MORTGAGED
PROPERTY, OR ANY PART THEREOF, TO BE SOLD AT PUBLIC AUCTION; THAT NOTICE OF SUCH
SALE MUST BE PUBLISHED AND GIVEN PERSONALLY TO THE PERSONS IN POSSESSION OF THE
MORTGAGED PROPERTY AS PROVIDED BY STATUTE; THAT MORTGAGOR WILL HAVE SUCH PERIOD
AS IS PROVIDED BY MINNESOTA STATUTES, Sections 580.23 OR 582.032, AS APPLICABLE,
OR ANY AMENDMENT THERETO, OR ANY SIMILAR OR REPLACEMENT STATUTE HEREAFTER
ENACTED, TO REDEEM THE MORTGAGED
32
PROPERTY SO SOLD BY PAYING THE SALE PRICE, ANY TAXES, ASSESSMENTS AND INSURANCE
PREMIUMS PAID BY THE PURCHASER AT SUCH SALE, AND OTHER SUMS PERMITTED BY LAW,
TOGETHER WITH INTEREST THEREON FROM THE DATE OF SALE OR PAYMENT AT THE HIGHEST
RATE PERMITTED BY LAW.
MORTGAGOR FURTHER UNDERSTANDS THAT IN THE EVENT OF SUCH DEFAULT, MORTGAGEE MAY
TAKE POSSESSION OF THE MORTGAGED PROPERTY WHICH IS SUBJECT TO THE SECURITY
INTEREST HEREINBEFORE GRANTED AND DISPOSE OF THE SAME BY SALE OR OTHERWISE IN
ONE OR MORE PARCELS, PROVIDED THAT AT LEAST (10) DAYS' PRIOR NOTICE OF SUCH
DISPOSITION MUST BE GIVEN TO MORTGAGOR, ALL AS PROVIDED FOR BY THE MINNESOTA
UNIFORM COMMERCIAL CODE, AS HEREAFTER AMENDED, OR BY ANY SIMILAR OR REPLACEMENT
STATUTE HEREAFTER ENACTED.
MORTGAGOR FURTHER UNDERSTANDS THAT UNDER THE CONSTITUTION OF THE UNITED STATES
IT MAY HAVE THE RIGHT TO NOTICE AND HEARING BEFORE THE MORTGAGED PROPERTY MAY BE
SOLD AND THAT THE PROCEDURE FOR FORECLOSURE BY ADVERTISEMENT DESCRIBED ABOVE
DOES NOT INSURE THAT NOTICE WILL BE GIVEN TO MORTGAGOR, AND NEITHER SAID
PROCEDURE FOR FORECLOSURE BY ADVERTISEMENT NOR THE MINNESOTA UNIFORM COMMERCIAL
CODE REQUIRES ANY HEARING OR OTHER JUDICIAL PROCEEDING.
MORTGAGOR HEREBY RELINQUISHES, WAIVES AND GIVES UP ANY CONSTITUTIONAL RIGHTS TO
NOTICE AND HEARING BEFORE SALE OF THE MORTGAGED PROPERTY AND EXPRESSLY CONSENTS
AND AGREES THAT THE MORTGAGED PROPERTY MAY BE FORECLOSED BY ADVERTISEMENT AND
THAT THE PORTION THEREOF WHICH IS SUBJECT TO THE SECURITY INTEREST HEREINBEFORE
GRANTED MAY BE DISPOSED OF PURSUANT TO THE UNIFORM COMMERCIAL CODE, ALL AS
DESCRIBED ABOVE.
MORTGAGOR ACKNOWLEDGES THAT IT IS REPRESENTED BY LEGAL COUNSEL; THAT BEFORE
SIGNING THIS DOCUMENT THIS SECTION AND ITS CONSTITUTIONAL RIGHTS WERE FULLY
EXPLAINED BY SUCH COUNSEL AND THAT IT UNDERSTANDS THE NATURE AND EXTENT OF THE
RIGHTS WAIVED HEREBY AND THE EFFECT OF SUCH WAIVER.
SECTION 9.03 ▇▇▇▇▇ and Sewer Systems. Mortgagor does not know of any
▇▇▇▇▇ (as defined by Minnesota Statutes Section 103I.005, Subd. 21, as amended)
on the Land, nor of any individual sewage systems (within the meaning of
Minnesota Statutes Section 115.55, Subd. 1(g)) on or serving the Land.
SECTION 9.04 Future Advances. The maximum principal amount of
indebtedness secured by this Mortgage at any one time, excluding advances made
by Mortgagee in protection of the Mortgaged Property or the lien of this
Mortgage, shall be $10,920,000. To the extent that this Mortgage secures future
advances, the amount of such advances is not currently known. The acceptance of
this Mortgage by Mortgagee, however, constitutes an acknowledgment that
Mortgagee is aware of the provisions of Minnesota Statutes Section 287.05,
33
Subd. 5, and intends to comply with the requirements contained therein. The
representations contained in this Section are made solely for the benefit of the
county recording authorities in determining the mortgage registry tax payable as
a prerequisite to the recording of this Mortgage. Mortgagor acknowledges that
such representations do not constitute or imply an agreement by Mortgagee to
make any future advances to Mortgagor.
[Remainder of Page Intentionally Left Blank.]
34
IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the date
first above written.
MORTGAGOR:
LAKES ENTERTAINMENT, INC.,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and Chief Financial Officer
ACKNOWLEDGEMENT
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
The foregoing instrument was acknowledged before me this 22nd day of
June, 2006, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Chief Financial Officer of Lakes
Entertainment, Inc., a Minnesota corporation, on behalf of the corporation.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Notary Public
My Commission Expires: _______________
[NOTARY PUBLIC STAMP]
EXHIBIT A
LEGAL DESCRIPTION
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Together with the benefits and easements created in Declaration of Easements and
Covenants dated December 18, 1996, filed December 20, 1996, as Document No.
2771390 and as amended by that certain First Amendment to the Declaration of
Easements and Covenants dated March 25, 1998, filed April 14, 1998 as Document
No. 3009312.
Together with the rights and easements created under the terms of that certain
Water Main Easement dated March 26, 1999, filed April 5, 1999, as Document No.
3141558.
Torrens Property
Certificate of Title No. 1077389
A-1