EXHIBIT 10.67
MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND
FIXTURE FILING (as the same may be amended, restated, extended, supplemented or
otherwise modified from time to time, the "Mortgage"), is made as of the 14th
day of April 2004, by RAMCO AUBURN CROSSROADS SPE LLC, a Delaware limited
liability company, having its principal place of business at c/o
Ramco-▇▇▇▇▇▇▇▇▇▇, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Mortgagor"), to and for the benefit of CITIGROUP GLOBAL MARKETS
REALTY CORP., a New York corporation, its successors or assigns, having its
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
("Mortgagee").
W I T N E S S E T H:
To secure (A) the payment of an indebtedness in the principal sum of
TWENTY-SIX MILLION NINE HUNDRED SIXTY THOUSAND AND NO/100 DOLLARS ($26,960,000),
lawful money of the United States of America, to be paid with interest according
to that certain promissory note dated of even date hereof made by Mortgagor to
Mortgagee (the note together with all extensions, renewals or modifications
thereof being hereinafter collectively called the "Note") and all other sums due
hereunder, or otherwise due under the Loan Documents (as such term is defined in
the Note) (said indebtedness, interest and all sums due hereunder and under the
Note and any other Loan Documents being collectively called the "Debt"), and all
of the agreements, covenants, conditions, warranties, representations and other
obligations (other than to repay the Debt) made or undertaken by Mortgagor or
any other person or entity to Mortgagee or others as set forth in the Loan
Documents (the "Obligations"), and (B) the payment of an indebtedness in the
aggregate principal sum of SEVEN MILLION SEVEN HUNDRED FORTY THOUSAND AND NO/100
DOLLARS ($7,740,000), in lawful money of the United States of America, to be
paid with interest according to the Crossed Note (as defined in Schedule 1
hereto) that evidences the Crossed Loan (as defined in Schedule 1 hereto) made
contemporaneously herewith by Mortgagee to the Mortgagor, and which Crossed Note
is secured by, among other things, the Crossed Mortgage (as defined in Schedule
1 hereto) encumbering the Crossed Property (as defined in Schedule 1 hereto),
and all other sums otherwise due under the Crossed Loan Documents (as defined in
Schedule 1 hereto); said Crossed Loan and other indebtedness and all other sums
due under the Crossed Note and the Crossed Loan Documents being herein referred
to as the "Crossed Debt", Mortgagor has mortgaged, given, granted, bargained,
sold, alienated, infeft, conveyed, confirmed, pledged, assigned, and
hypothecated and by these presents does hereby MORTGAGE, GIVE, GRANT, BARGAIN,
SELL, CONVEY, CONFIRM, PLEDGE, ASSIGN AND HYPOTHECATE unto Mortgagee the real
property described in Exhibit A attached hereto (the "Premises") and the
buildings, structures, fixtures, additions, enlargements, extensions,
modifications, repairs, replacements and improvements now or hereafter located
thereon (the "Improvements");
TOGETHER WITH: all right, title, interest and estate of Mortgagor now
owned, or hereafter acquired, in and to the following property, rights,
interests and estates (the Premises, the Improvements together with the
following property, rights, interests and estates being hereinafter described
are collectively referred to herein as the "Mortgaged Property":
(a) all easements, rights-of-way, strips and gores of land, streets,
ways, alleys, passages, sewer rights, water, water courses, water rights and
powers, air rights and development rights, and all estates, rights, titles,
interests, privileges, liberties, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way belonging, relating or pertaining to the
Premises and the Improvements and the reversion and reversions, remainder and
remainders, and all land lying in the bed of any street, road or avenue, opened
or proposed, in front of or adjoining the Premises, to the center line thereof
and all the estates, rights, titles, interests, dower and rights of dower,
courtesy and rights of courtesy, property, possession, claim and demand
whatsoever, both at law and in equity, of Mortgagor of, in and to the Premises
and the Improvements and every part and parcel thereof, with the appurtenances
thereto;
(b) all machinery, equipment, fixtures (including but not limited to all
heating, ventilation, air conditioning, plumbing, lighting, communications and
elevator fixtures) and other property of every kind and nature, whether tangible
or intangible, whatsoever owned by Mortgagor, or in which Mortgagor has or shall
have an interest, now or hereafter located upon the Premises and the
Improvements, or appurtenant thereto, and usable in connection with the present
or future operation and occupancy of the Premises and the Improvements and all
building equipment, materials and supplies of any nature whatsoever owned by
Mortgagor, or in which Mortgagor has or shall have an interest, now or hereafter
located upon the Premises and the Improvements, or appurtenant thereto, or
usable in connection with the present or future operation, enjoyment and
occupancy of the Premises and the Improvements (hereinafter collectively called
the "Equipment"), including the proceeds of any sale or transfer of the
foregoing, and the right, title and interest of Mortgagor in and to any of the
Equipment which may be subject to any security interests, as defined in the
Uniform Commercial Code, as adopted and enacted by the state or states where any
of the Mortgaged Property is located (the "Uniform Commercial Code") superior in
lien to the lien of this Mortgage;
(c) all awards or payments, including interest thereon, which may
heretofore and hereafter be made with respect to the Mortgaged Property, whether
from the exercise of the right of eminent domain or condemnation (including but
not limited to any transfer made in lieu of or in anticipation of the exercise
of said rights), or for a change of grade, or for any other injury to or
decrease in the value of the Mortgaged Property;
(d) all leases and subleases (including, without limitation, all
guarantees, letter of credit rights and other supporting obligations in respect
thereof) and other agreements or arrangements heretofore or hereafter entered
into affecting the use, enjoyment or occupancy of, or the conduct of any
activity upon or in, the Premises and the Improvements, including any
extensions, renewals, modifications or amendments thereof (the "Leases") and all
rents, rent equivalents (including room
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revenues, if applicable), moneys payable as damages or in lieu of rent or rent
equivalents, royalties (including, without limitation, all oil and gas or other
mineral royalties and bonuses), income, receivables, receipts, revenues,
deposits (including, without limitation, security, utility and other deposits),
accounts (including deposit accounts), cash, issues, profits, charges for
services rendered, and other consideration of whatever form or nature received
by or paid to or for the account of or benefit of Mortgagor or its agents or
employees from any and all sources arising from or attributable to the Premises
and the Improvements (the "Rents"), together with all proceeds from the sale or
other disposition of the Leases and the right to receive and apply the Rents to
the payment of the Debt;
(e) all proceeds of and any unearned premiums on any insurance policies
covering the Mortgaged Property, including, without limitation, the right to
receive and apply the proceeds of any insurance, judgments, or settlements made
in lieu thereof, for damage to the Mortgaged Property or any part thereof;
(f) the right, in the name and on behalf of Mortgagor, to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to commence any action or proceeding to protect the interest of Mortgagee in
the Mortgaged Property or any part thereof;
(g) all accounts, escrows, reserves, documents, records, instruments,
chattel paper (including both tangible chattel paper and electronic chattel
paper), claims, financial assets, investment property, letter of credit rights,
supporting obligations, deposits and general intangibles (including payment
intangibles and software), as the foregoing terms are defined in the Uniform
Commercial Code, and all franchises, trade names, trademarks, symbols, service
marks, books, records, plans, specifications, designs, drawings, permits,
consents, licenses, franchises, management agreements, contracts, contract
rights (including, without limitation, any contract with any architect or
engineer or with any other provider of goods or services for or in connection
with any construction, repair, or other work upon the Mortgaged Property),
approvals, actions, refunds or real estate taxes and assessments (and any other
governmental impositions related to the Mortgaged Property), and causes of
action that now or hereafter relate to, are derived from or are used in
connection with the Mortgaged Property, or the use, operation, management,
improvement, alteration, repair, maintenance, occupancy or enjoyment thereof or
the conduct of any business or activities thereon owned by Mortgagor;
(h) any and all proceeds and products of any of the foregoing and any
and all other security and collateral of any nature whatsoever, now or hereafter
given for the repayment of the Debt and the performance of Mortgagor's
obligations under the Loan Documents, including any escrows set forth in the
Loan Documents;
(i) all accounts receivable, contract rights, interests, estates or
other claims, both in law and in equity, which Mortgagor now has or may
hereafter acquire in the Mortgaged Property or any part thereof; and
(j) all rights which Mortgagor now has or may hereafter acquire, to be
indemnified and/or held harmless from any liability, loss, damage, cost or
expense (including, without limitation,
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attorneys' and paralegals' fees and disbursements) relating to the Mortgaged
Property or any part thereof.
TO HAVE AND TO HOLD the above granted and described Mortgaged Property
unto and to the use and benefit of Mortgagee, and the successors and assigns of
Mortgagee, in fee simple forever;
PROVIDED, HOWEVER, these presents are upon the express condition that, if
Mortgagor shall well and truly pay to Mortgagee the Debt and the Crossed Debt at
the time and in the manner provided in the Note, the Crossed Note, this Mortgage
and the Crossed Mortgage, and shall well and truly abide by and comply with each
and every covenant and condition set forth herein and in the Note, the Crossed
Note, the Loan Documents and the Crossed Loan Documents in a timely manner,
these presents and the estate hereby granted shall cease, terminate and be void;
AND Mortgagor represents and warrants to and covenants and agrees with
Mortgagee as follows:
1. Payment of Debt and Incorporation of Covenants, Conditions and
Agreements. Mortgagor shall pay the Debt at the time and in the manner provided
in the Note and in this Mortgage. Mortgagor will duly and punctually perform all
of the covenants, conditions and agreements contained in the Note, this Mortgage
and the other Loan Documents all of which covenants, conditions and agreements
are hereby made a part of this Mortgage to the same extent and with the same
force as if fully set forth herein.
2. Warranty of Title. Mortgagor warrants that Mortgagor has good,
marketable and insurable title to the Mortgaged Property and has the right to
mortgage, give, grant, bargain, sell, alien, enfeoff, convey, confirm, pledge,
assign and hypothecate the same and that Mortgagor possesses an unencumbered fee
estate in the Premises and the Improvements and that it owns the Mortgaged
Property free and clear of all liens, encumbrances and charges whatsoever except
for those exceptions shown in the title insurance policy insuring the lien of
this Mortgage ("Permitted Encumbrances"). Mortgagor represents and warrants that
none of the Permitted Encumbrances will materially and adversely affect (a)
Mortgagor's ability to pay in full the Debt, (b) the use of the Mortgaged
Property for the use currently being made thereof, (c) the operation of the
Mortgaged Property, or (d) the value of the Mortgaged Property. Mortgagor shall
forever warrant, defend and preserve such title and the validity and priority of
the lien of this Mortgage and shall forever warrant and defend the same to
Mortgagee against the claims of all persons whomsoever.
3. Insurance. (a) Mortgagor, at its sole cost and expense, will keep
the Mortgaged Property insured during the entire term of this Mortgage for the
mutual benefit of Mortgagor and Mortgagee against loss or damage by fire,
lightning, wind and such other perils as are included in a standard "all-risk"
or "special causes of loss" form and against loss or damage by all other risks
and hazards covered by a standard extended coverage insurance policy including,
without limitation, riot and civil commotion, vandalism, malicious mischief,
burglary and theft. Such insurance shall be in an amount equal to the greatest
of (i) the then full replacement cost of the Improvements and Equipment, without
deduction for physical depreciation and (ii) such amount that the insurer would
not deem Mortgagor a co-insurer under said policies. The policies of insurance
carried in
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accordance with this section shall be paid annually in advance and shall contain
a "Replacement Cost Endorsement" with a waiver of depreciation and an "Agreed
Amount Endorsement". The policies shall have a deductible no greater than
$25,000 unless agreed to by Mortgagee.
(b) Mortgagor, at its sole cost and expense, for the mutual
benefit of Mortgagor and Mortgagee, shall also obtain and maintain, or cause to
be obtained and maintained, during the entire term of this Mortgage the
following policies (collectively, with the other policies required by this
Section, the "Policies" and each a "Policy"):
(i) Flood insurance if any part of the Mortgaged Property is
located in an area identified by the Federal Emergency Management
Agency as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance
Act of 1968, the Flood Disaster Protection Act of 1973 or the
National Flood Insurance Reform Act of 1994 (and any amendment or
successor act thereto) in an amount at least equal to the lesser of
(A) the full replacement cost of the Improvements and the Equipment
within the parts of the Mortgaged Property so affected, (B) the
outstanding principal amount of the Note or (C) the maximum limit of
coverage available with respect to the Improvements and Equipment
under said Act.
(ii) Comprehensive General Liability or Commercial General
Liability insurance, including a broad form comprehensive general
liability endorsement and coverage for broad form property damage,
contractual damages, personal injuries (including death resulting
therefrom) and a liquor liability endorsement if liquor is sold on
the Mortgaged Property, containing minimum limits of liability of $2
million for both injury to or death of a person and for property
damage per occurrence, and $2 million in the aggregate, and such
other liability insurance reasonably requested by Mortgagee. In
addition, at least $3 million excess and/or umbrella liability
insurance shall be obtained and maintained for any and all claims,
including all legal liability imposed upon Mortgagor and all court
costs and attorneys' fees incurred in connection with the ownership,
operation and maintenance of the Mortgaged Property.
(iii) Rental loss and/or business interruption insurance for a
period of 12 months in an amount equal to the estimated gross
revenues from the operations of the Mortgaged Property over 12
months. The amount of such rental loss insurance shall be increased
from time to time during the term of this Mortgage as and when new
Leases and renewal Leases are entered into in accordance with the
terms of this Mortgage, to reflect all increased rent and increased
additional rent payable by all of the tenants under such Leases.
(iv) Insurance against loss or damage from explosion of steam
boilers, air conditioning equipment, high pressure piping, machinery
and equipment, pressure vessels or similar apparatus now or
hereafter installed in the Improvements and including broad form
boiler and machinery insurance (without exclusion for explosion)
covering all boilers or other pressure vessels, machinery and
equipment
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located in, on, or about the Premises and the Improvements. Coverage
is required in an amount at least equal to the full replacement cost
of such equipment. Coverage must extend to electrical equipment,
sprinkler systems, heating and air conditioning equipment,
refrigeration equipment and piping.
(v) If the Mortgaged Property includes commercial property,
worker's compensation insurance with respect to any employees of
Mortgagor, as required by any governmental authority or legal
requirement.
(vi) During any period of repair or restoration, builder's
"all risk" insurance in an amount equal to not less than the full
insurable value of the Mortgaged Property against such risks
(including, without limitation, fire and extended coverage and
collapse of the Improvements to agreed limits) as Mortgagee may
request, in form and substance reasonably acceptable to Mortgagee.
(vii) Ordinance or law coverage to compensate for the cost of
demolition, increased cost of construction, and loss to any
undamaged portions of the Improvements, if the current use of the
Mortgaged Property or the Improvements themselves are or become
"nonconforming" pursuant to the applicable zoning regulations, or
full rebuildability following casualty is otherwise not permitted
under such zoning regulations.
(viii) Windstorm insurance in an amount equal to the lesser of
the original principal balance of the Loan and the maximum amount
permitted by law.
(ix) Such other insurance as may from time to time be
reasonably required by Mortgagee in order to protect its interests
and which is then customarily required by institutional lenders for
similar properties similarly situated, against other insurable
hazards, which at the time are commonly insured against and
generally available at commercially reasonable premiums in the case
of properties similarly situated, due regard to be given to the size
and type of the Premises, Improvements and Equipment and their
location, construction and use.
The insurance policies required under subsections 3(a) and 3(b)(iii) above
shall be required to cover perils of terrorism and acts of terrorism so long as
such insurance coverage is available at commercially reasonable rates (as
determined by Mortgagee in its sole discretion); provided however, if a Rating
Agency in connection with a Secondary Market Transaction (as hereinafter
defined) or in connection with its rating surveillance of the certificates
issued pursuant to a Secondary Market Transaction would not provide or maintain
a rating (including, without limitation, any so-called "shadow" rating) for any
portion of such certificates or the Loan which would otherwise be available but
for the failure to maintain terrorism insurance with respect to the Loan (or the
Loan among other loans included in the Secondary Market Transaction), Mortgagor
will so maintain such insurance if obtainable from any insurer or any
governmental authority (for the maximum amount obtainable up to the amounts set
forth in subsections 3(a) and 3(b)(iii) above and with deductibles no greater
than those provided in subsection 3(a) above).
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(c) All Policies (i) shall be issued by companies approved by
Mortgagee and licensed to do business in the state where the Mortgaged Property
is located, with a claims paying ability rating of "A:VIII" or better in the
current Best's Insurance Reports; (ii) shall be maintained throughout the term
of this Mortgage without cost to Mortgagee; (iii) shall contain a
Non-Contributory Standard Mortgagee Clause and a Lender's Loss Payable
Endorsement, or their equivalents, naming Mortgagee as the person to which all
payments made by such insurance company shall be paid; (iv) shall contain a
waiver of subrogation against Mortgagee; (v) shall be maintained throughout the
term of the Mortgage without cost to Mortgagee; (vi) shall be delivered to
Mortgagee in the form of certified copies of the Policies in effect on the date
hereof; (vii) shall contain such provisions as Mortgagee deems reasonably
necessary or desirable to protect its interest including, without limitation,
endorsements providing that neither Mortgagor, Mortgagee nor any other party
shall be a co-insurer under said Policies and that Mortgagee shall receive at
least thirty (30) days prior written notice of any modification or cancellation;
(viii) shall be for a term of not less than one year, (ix) shall be issued by an
insurer licensed in the state in which the Mortgaged Property is located, (x)
shall provide that Mortgagee may, but shall not be obligated to, make premium
payments to prevent any cancellation, endorsement, alteration or reissuance, and
such payments shall be accepted by the insurer to prevent same, (xii) shall be
reasonably satisfactory in form and substance to Mortgagee and shall be
reasonably approved by Mortgagee as to amounts, form, risk coverage,
deductibles, loss payees and insureds; and (xiii) shall provide that all claims
shall be allowable on an occurrence basis. Policies may also be so-called
"blanket" policies, subject to Mortgagee's reasonable approval, so long as the
required coverages are provided and are not reduced in amount or quality by
virtue of the pooling effect of such "blanket" policies. Upon demand therefor,
Mortgagor shall reimburse Mortgagee for all of Mortgagee's (or its servicer's)
reasonable costs and expenses incurred in obtaining any or all of the Policies
or otherwise causing the compliance with the terms and provisions of this
Section 3, including (without limitation) obtaining updated flood hazard
certificates and replacement of any so-called "forced placed" insurance
coverages. Mortgagor shall pay the premiums for such Policies (the "Insurance
Premiums") as the same become due and payable and shall furnish to Mortgagee
evidence of the renewal of each of the Policies with receipts for the payment of
the Insurance Premiums or other evidence of such payment reasonably satisfactory
to Mortgagee. Subject to the immediately preceding parenthetical, if Mortgagor
does not furnish such evidence and receipts at least thirty (30) days prior to
the expiration of any expiring Policy, then Mortgagee may procure, but shall not
be obligated to procure, such insurance and pay the Insurance Premiums therefor,
and Mortgagor agrees to reimburse Mortgagee for the cost of such Insurance
Premiums promptly on demand. Within thirty (30) days after request by Mortgagee,
Mortgagor shall obtain such increases in the amounts of coverage required
hereunder as may be reasonably requested by Mortgagee, taking into consideration
changes in the value of money over time, changes in liability laws, changes in
prudent customs and practices, and the like. Mortgagor shall give Mortgagee
prompt written notice if Mortgagor receives from any insurer any written
notification or threat of any actions or proceedings regarding the
non-compliance or non-conformity of the Mortgaged Property with any insurance
requirements. For purposes hereof, references to "Mortgagee" shall also be
deemed to include, without limitation, Mortgagee's successors, assigns or other
designees.
(d) Intentionally omitted.
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(e) If the Mortgaged Property shall be damaged or destroyed, in
whole or in part, by fire or other casualty (an "Insured Casualty"), the
Mortgagor shall give prompt notice thereof to the Mortgagee and, provided
Mortgagee makes the insurance proceeds available to Mortgagor, Mortgagor shall
promptly repair the Mortgaged Property to be at least equal value and of
substantially the same character as prior to such damage, all to be effected in
accordance with applicable law and plans and specifications reasonably approved
in advance by Mortgagee. The expenses incurred by Mortgagee in the adjustment
and collection of insurance proceeds shall become part of the Debt and be
secured hereby and shall be reimbursed by Mortgagor to Mortgagee upon demand.
(f) In case of loss or damages covered by any of the Policies, the
following provisions shall apply:
(i) In the event of an Insured Casualty that does not exceed
$500,000, Mortgagor may settle and adjust any claim without the
consent of Mortgagee and agree with the insurance company or
companies on the amount to be paid upon the loss; provided that such
adjustment is carried out in a competent and timely manner. In such
case, Mortgagor is hereby authorized to collect and receipt for any
such insurance proceeds.
(ii) In the event an Insured Casualty shall exceed $500,000,
then and in that event, Mortgagee, with the reasonable approval of
Mortgagor in the absence of an Event of Default, and without the
consent of Mortgagor if any Event of Default has occurred and is
continuing, may settle and adjust any claim without the consent of
Mortgagor and agree with the insurance company or companies on the
amount to be paid on the loss and the proceeds of any such policy
shall be due and payable solely to Mortgagee and held in escrow by
Mortgagee in accordance with the terms of this Mortgage.
(iii) In the event of any Insured Casualty, if (A) the loss is
in an aggregate amount less than twenty percent (20%) of the
original principal balance of the Note, and (B), in the reasonable
judgment of Mortgagee, the Mortgaged Property can be restored within
twelve (12) months after insurance proceeds are made available to an
economic unit not less valuable (including an assessment of the
impact of the termination of any Leases due to such Insured
Casualty) and not less useful than the same was prior to the Insured
Casualty, and after such restoration will adequately secure the
outstanding balance of the Debt, and such restoration can be
completed on or before six (6) months prior to the Maturity Date of
the Loan, and (C) no Event of Default (hereinafter defined) shall
have occurred and be then continuing, then the proceeds of insurance
shall be applied to reimburse Mortgagor for the cost of restoring,
repairing, replacing or rebuilding the Mortgaged Property or part
thereof subject to Insured Casualty, as provided for below; and
Mortgagor hereby covenants and agrees forthwith to commence and
diligently to prosecute such restoring, repairing, replacing or
rebuilding; provided, however, that if such proceeds are so made
available to Mortgagor pursuant to the terms hereof, Mortgagor shall
in any
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event pay all costs (and if required by Mortgagee, Mortgagor shall
deposit the total thereof with Mortgagee in advance) of such
restoring, repairing, replacing or rebuilding in excess of the net
proceeds of insurance made available pursuant to the terms hereof.
(iv) Except as provided above, the proceeds of insurance
collected upon any Insured Casualty shall, at the option of
Mortgagee in its sole discretion, be applied to the payment of the
Debt or applied to reimburse Mortgagor for the cost of restoring,
repairing, replacing or rebuilding the Mortgaged Property or part
thereof subject to the Insured Casualty, in the manner set forth
below. Any such application to the Debt or the Crossed Debt shall
not be considered a voluntary prepayment requiring payment of the
Prepayment Consideration (as such term is defined in the Note).
(v) In the event Mortgagor is entitled to reimbursement out
of insurance proceeds held by Mortgagee, such proceeds shall be
disbursed from time to time upon Mortgagee being furnished with (A)
evidence reasonably satisfactory to it that the restoration, repair,
replacement and rebuilding covered by the disbursement has been
completed in accordance with plans and specifications approved by
Mortgagee, (B) evidence reasonably satisfactory to it of the
estimated cost of completion of the restoration, repair, replacement
and rebuilding, (C) funds, or, at Mortgagee's option, assurances
satisfactory to Mortgagee that such funds are available, sufficient
in addition to the proceeds of insurance to complete the proposed
restoration, repair, replacement and rebuilding, and (D) such
architect's certificates, waivers of lien, contractor's sworn
statements, title insurance endorsements, bonds, plats of survey and
such other evidences of cost, payment and performance as Mortgagee
may reasonably require and approve; and Mortgagee may, in any event,
require that all plans and specifications for such restoration,
repair, replacement and rebuilding be submitted to and approved by
Mortgagee prior to commencement of work. With respect to
disbursements to be made by Mortgagee: (A) no payment made prior to
the final completion of the restoration, repair, replacement and
rebuilding shall exceed ninety percent (90%) of the value of the
work performed from time to time; (B) funds other than proceeds of
insurance shall be disbursed prior to disbursement of such proceeds;
and (C) at all times, the undisbursed balance of such proceeds
remaining in the hands of Mortgagee, together with funds deposited
for that purpose or irrevocably committed to the satisfaction of
Mortgagee by or on behalf of Mortgagor for that purpose, shall be at
least sufficient in the reasonable judgment of Mortgagee to pay for
the cost of completion of the restoration, repair, replacement or
rebuilding, free and clear of all liens or claims for lien and the
costs described in Subsection (vi) below. Any surplus which may
remain out of insurance proceeds held by Mortgagee after payment of
such costs of restoration, repair, replacement or rebuilding shall
at Mortgagee's option be applied to the Debt (such application to
the Debt shall not be considered a voluntary prepayment requiring
payment of the Prepayment Consideration) or paid to Mortgagor. In no
event shall Mortgagee assume any duty or obligation for the
adequacy, form or content of any such plans
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and specifications, nor for the performance, quality or workmanship
of any restoration, repair, replacement and rebuilding.
(vi) Notwithstanding anything to the contrary contained herein, the
proceeds of insurance reimbursed to Mortgagor in accordance with the terms
and provisions of this Mortgage shall be reduced by the reasonable costs
(if any) incurred by Mortgagee in the adjustment and collection thereof
and by the reasonable costs incurred by Mortgagee of paying out such
proceeds (including, without limitation, reasonable attorneys' fees and
costs paid to third parties for inspecting the restoration, repair,
replacement and rebuilding and reviewing the plans and specifications
therefor).
4. Payment of Taxes and Other Charges. Mortgagor shall pay all taxes,
assessments, water rates and sewer rents, now or hereafter levied or assessed or
imposed against the Mortgaged Property or any part thereof (the "Taxes") and all
ground rents, maintenance charges, other governmental impositions, and other
charges, including without limitation vault charges and license fees for the use
of vaults, chutes and similar areas adjoining the Premises, now or hereafter
levied or assessed or imposed against the Mortgaged Property or any part thereof
(the "Other Charges") as the same become due and payable. Mortgagor will deliver
to Mortgagee, promptly upon Mortgagee's request, evidence satisfactory to
Mortgagee that the Taxes and Other Charges have been so paid or are not then
delinquent. Mortgagor shall not suffer and shall promptly cause to be paid and
discharged any lien or charge whatsoever which may be or become a lien or charge
against the Mortgaged Property, and shall promptly pay for all utility services
provided to the Mortgaged Property. Mortgagor shall furnish to Mortgagee or its
designee receipts for the payment of the Taxes, Other Charges and said utility
services prior to the date the same shall become delinquent.
5. Intentionally Deleted.
6. Intentionally Deleted.
7. Condemnation. (a) Mortgagor shall promptly give Mortgagee written
notice of the actual or threatened commencement of any condemnation or eminent
domain proceeding and shall deliver to Mortgagee copies of any and all papers
served in connection with such proceedings. Mortgagee is hereby irrevocably
appointed as Mortgagor's attorney-in-fact, coupled with an interest, with
exclusive power to collect, receive and retain any award or payment for said
condemnation or eminent domain and to make any compromise or settlement in
connection with such proceeding, subject to the provisions of this Mortgage.
Notwithstanding any taking by any public or quasi-public authority through
eminent domain or otherwise (including but not limited to any transfer made in
lieu of or in anticipation of the exercise of such taking), Mortgagor shall
continue to pay the Debt at the time and in the manner provided for its payment
in the Note, in this Mortgage and the other Loan Documents and the Debt shall
not be reduced until any award or payment therefor shall have been actually
received after expenses of collection and applied by Mortgagee to the discharge
of the Debt. Mortgagee shall not be limited to the interest paid on the award by
the condemning authority but shall be entitled to receive out of the award
interest at the rate or rates provided herein and in the Note. Mortgagor shall
cause the award or payment made in any condemnation or eminent domain
proceeding, which is payable to Mortgagor, to be paid directly to Mortgagee.
Mortgagee may apply any such award or payment to the reduction or discharge of
the
10
Debt whether or not then due and payable in such order and manner as Mortgagee
determines (such application to be without any Prepayment Consideration, except
that if an Event of Default, or an event with notice and/or the passage of time,
or both, would constitute an Event of Default, has occurred, then such
application shall be subject to the prepayment consideration computed in
accordance with the Note). If the Mortgaged Property is sold, through
foreclosure or otherwise, prior to the receipt by Mortgagee of such award or
payment, Mortgagee shall have the right, whether or not a deficiency judgment on
the Note shall have been sought, recovered or denied, to receive said award or
payment, or a portion thereof sufficient to pay the Debt.
(b) Notwithstanding the provisions of Subsection (a) above, in the
event of a condemnation of less than all of the Mortgaged Property where: (i) no
Event of Default shall have occurred and be continuing; (ii) the condemnation
will not, in Mortgagee's sole discretion, result in a material adverse effect to
the use or operation of the Mortgaged Property, Mortgagor's ability to make
payments hereunder, or the operating income from the Mortgaged Property; and
(iii) the amount of any award or payment that is uncontested shall have been
paid to Mortgagee, then Mortgagee and Mortgagor shall jointly make any such
compromise or settlement hereunder, or otherwise adjudicate such claim, and such
award or payment (less amounts payable to Mortgagee for its costs and expenses
incurred in connection therewith) shall be paid by Mortgagee to Mortgagor in the
same manner as provided by Subsection 3(f)(v) above to restore the Mortgaged
Property to an architecturally and functionally compatible condition. Any
surplus which may remain out of condemnation proceeds held by Mortgagee after
payment of such costs of restoration, repair, replacement or rebuilding shall at
Mortgagee's option be applied to the Debt in such order and manner as Mortgagee
determines (such application to the Debt shall not be considered a voluntary
prepayment requiring payment of the Prepayment Consideration) or paid to
Mortgagor.
8. Representations and Covenants Concerning Loan. Mortgagor represents,
warrants and covenants as follows:
(a) Mortgagor shall comply with all of the recommendations
concerning the maintenance and repair of the Mortgaged Property which are
contained in the inspection and engineering report which was delivered to
Mortgagee in connection with the origination of the Loan.
(b) In the event Mortgagor decides to engage a third party
management company to manage the Mortgaged Property, Mortgagor agrees to engage
a management company satisfactory to Mortgagee, pursuant to a management
agreement satisfactory to Mortgagee, and to cause such management company to
execute the Acknowledgment of Property Manager in form and substance as executed
by the existing manager of the Mortgaged Property in connection with the Loan,
and to deliver to Mortgagee promptly upon such engagement, a fully-executed copy
of the management agreement, together with the Acknowledgment of Property
Manager signed by such manager.
(c) In the event Mortgagee determines in its sole and reasonable
discretion that the quality of management for the Mortgaged Property has
deteriorated, Mortgagor agrees to engage a management company satisfactory to
Mortgagee within forty-five (45) days after Mortgagor's receipt of written
notice of Mortgagee's determination of the deterioration of the quality of
management, pursuant to a management agreement satisfactory to Mortgagee, and to
cause such
11
management company to execute the Acknowledgment of Property Manager in form and
substance as executed by the existing manager of the Mortgaged Property in
connection with the Loan, and to deliver to Mortgagee promptly upon such
engagement, a fully-executed copy of the management agreement, together with the
Acknowledgment of Property Manager signed by such manager.
(d) Mortgagor has reviewed and is familiar with all opinions of
legal counsel to Mortgagor and any Guarantor or Affiliate (as hereinafter
defined) to be delivered in connection with the Loan, including those respecting
enforceability and authority, and the Nonconsolidation Opinion (as defined
below). None of the assumptions set forth in such opinions are incorrect.
(e) Neither Mortgagor, nor any Guarantor, nor any Affiliate is or
has been a debtor, and no property of any of them (including the Mortgaged
Property) is property of the estate, in any voluntary or involuntary case under
the Bankruptcy Code or under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect. No such party and no property of any of
them is or has been under the possession or control of a receiver, trustee or
other custodian. Neither Mortgagor, any Guarantor or any Affiliate has made or
will make any assignment for the benefit of creditors. No such assignment or
bankruptcy or similar case or proceeding is now contemplated.
(f) The representations and warranties contained in the Closing
Certificate executed by Mortgagor in connection with the Note (which certificate
constitutes one of the Loan Documents) are true and correct and Mortgagor shall
observe the covenants contained therein.
(g) Mortgagor shall cause the law firm of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Finger, or other reputable Delaware counsel acceptable to Mortgagee (the "Law
Firm") to deliver to Mortgagee an opinion letter reasonably satisfactory to
Mortgagee, whereby the Law Firm opines (which opinion may be subject to standard
assumptions, qualifications, limitations and exceptions acceptable to
Mortgagee), among other requirements of Mortgagee, that: (1) the unanimous
consent of the Single Member and the Independent Director is required in order
for the Mortgagor to file a voluntary bankruptcy petition; (2) the provision in
the Mortgagor's organizational documents that requires unanimous consent as a
condition to filing a voluntary bankruptcy petition is enforceable against the
Single Member; (3) the bankruptcy of the Single Member will not cause Mortgagor
to be dissolved; (4) no creditor of the Single Member shall have the right to
obtain possession of, or otherwise exercise legal or equitable remedies with
respect to, Mortgagor's property; and (5) Delaware law, not federal law governs
the determination of what persons or entities have the authority to file a
voluntary bankruptcy petition on behalf of Mortgagor.
9. Single Purpose Entity/Separateness. Mortgagor represents, warrants
and covenants as follows:
(a) Mortgagor has not and shall not own any asset or property
other than (i) the Mortgaged Property and the Crossed Property, and (ii)
incidental personal property necessary for the ownership or operation of the
Mortgaged Property and the Crossed Property.
(b) Mortgagor has not engaged and shall not engage in any business
or activity other than the ownership, management and operation of the Mortgaged
Property and the Crossed
12
Property and such activities as are necessary, incidental or appropriate in
connection therewith, and Mortgagor will conduct and operate its business as
presently conducted and operated.
(c) Mortgagor has not and shall not enter into or be a party to
any transaction, contract or agreement with any guarantor of the Debt or any
part thereof (a "Guarantor") or any party which is directly or indirectly
controlling, controlled by or under common control with Mortgagor or Guarantor
(an "Affiliate"), except upon terms and conditions that are intrinsically fair
and substantially similar to those that would be available on an arms-length
basis with third parties other than any Guarantor or Affiliate. Mortgagor will
appropriately document and accurately record on its books and records all
contracts, business transactions and transfers between Mortgagor, on the one
hand, and any of Ramco-▇▇▇▇▇▇▇▇▇▇ Properties, L.P., a Delaware limited
partnership (the "Partnership"), Ramco-▇▇▇▇▇▇▇▇▇▇, Inc., a Michigan corporation
("RG, Inc."), and/or the REIT (as defined in Section 12 below), on the other.
(d) Other than debt owed which shall be discharged and paid upon
funding of the loan secured hereby, Mortgagor has not incurred and shall not
incur any indebtedness, secured or unsecured, direct or indirect, absolute or
contingent (including guaranteeing any obligation), other than (i) the Debt;
(ii) trade and operational debt incurred in the ordinary course of business with
trade creditors in connection with owning, operating and maintaining the
Mortgaged Property, in such amounts as are normal and reasonable under the
circumstances, provided such debt is not evidenced by a promissory note or other
security instrument and is not at any time in an aggregate amount in excess of
two percent (2%) of (A) the original loan amount evidenced by the Note with
respect to trade and operational debt incurred with respect to the Mortgaged
Property and (B) the Crossed Loan amount with respect to trade and operational
debt incurred with respect to the Crossed Property, and further provided that
all such trade debts are paid within thirty (30) days after the same are
incurred; and (iii) unsecured subordinated loans to Mortgagor (the "Subordinated
Loans", each a "Subordinated Loan") made by the Partnership, provided that such
loan or loans are made for the sole purpose of funding, and are used by
Mortgagor solely for, working capital and/or otherwise to improve, alter and
remodel the Mortgaged Property and provided that Mortgagee consents to such
improvement, alteration or remodeling, as applicable, such consent not to be
unreasonably withheld; provided, however, that Subordinated Loans shall be
permitted only if and so long as each of the following conditions are satisfied:
(1) the payment terms of each Subordinate Loan shall not require payments to be
made or payments to become due unless and until the Loan (or any refinancing
loan the proceeds of which are used to repay the Loan) is fully paid and
satisfied, except that voluntary payments by Mortgagor from excess cash flow
from the Mortgaged Property may be permitted so long as no Event of Default has
occurred and is continuing, (2) the aggregate outstanding balance of the
Subordinated Loans and interest accrued and unpaid thereon together with the
Debt (the "Total Debt Amount") shall not exceed 80% of the value of the
Mortgaged Property (such value to be determined at the time each such
Subordinated Loan is made and to be determined based on an appraisal similar to
the appraisal obtained at loan origination and otherwise in form and substance
reasonably acceptable to Mortgagee, such appraisal also to take account of any
increase in value created by any related expansion or remodeling; provided,
however, that if the Total Debt Amount does not exceed 80% of $33,700,000 a new
appraisal will not be required) and (3) the Partnership shall, prior to making
any Subordinate Loan advance, execute and deliver to and for the benefit of
Mortgagee a subordination and standstill agreement in the form of Exhibit E
attached to that certain
13
Closing Certificate dated as of the date hereof, executed by Mortgagor for the
benefit of Mortgagee (the "Closing Certificate"), and (4) all reasonable costs
and expenses incurred by Mortgagee in connection with such Subordinated Loans,
including, but not limited to, the review of any and all materials required to
be provided in connection therewith (including Mortgagee's reasonable attorney's
fees and expenses) shall be at the expense of Mortgagor and shall be paid by
Mortgagor to Mortgagee upon demand. No indebtedness other than the Debt may be
secured (senior, subordinate or pari passu) by the Mortgaged Property.
(e) Mortgagor has not made and shall not make any loans or
advances to any third party, nor to Guarantor, any Affiliate or any constituent
party of Mortgagor.
(f) Without intending to modify or diminish any limitations on
recourse benefiting Mortgagor under this Mortgage or the other Loan Documents,
Mortgagor is and will remain solvent and Mortgagor will pay its debts from its
assets as the same shall become due.
(g) Mortgagor has done and shall do all things necessary, to
preserve its existence, and Mortgagor will not, nor will Mortgagor permit
Guarantor to amend, modify or otherwise change the partnership certificate,
partnership agreement, articles of incorporation and bylaws, certificate of
formation, operating agreement, trust or other organizational documents of
Mortgagor or Guarantor in a manner which would adversely affect Mortgagor's
existence as a single-purpose entity, without the prior written consent of
Mortgagee.
(h) Mortgagor has maintained and shall maintain financial
statements, accounting records, books and records, bank accounts and other
entity documents separate from those of its Affiliates and any constituent party
of Mortgagor or any other person or entity, and Mortgagor has filed and shall
file its own tax returns, if any, as may be required under applicable law, or if
part of a consolidated group filing, the Mortgagor is shown as a separate member
of such group. Mortgagor has maintained and shall maintain its books, records,
resolutions and agreements as official records.
(i) Mortgagor has been and will be, and at all times will hold
itself out to the public as, a legal entity separate and distinct from any other
entity (including any Affiliate, any constituent party of Mortgagor or any
Guarantor), shall correct any known misunderstanding regarding its status as a
separate entity, shall conduct business in its own name, shall not identify
itself or any of its Affiliates as a division or part of the other and shall
maintain and utilize separate stationery, invoices and checks. Mortgagor has
allocated and shall allocate fairly and reasonably any overhead for shared
office space.
(j) Mortgagor has preserved and kept and shall preserve and keep
in full force and effect its existence, good standing and qualification to do
business in the state in which the Mortgaged Property is located and Mortgagor
has observed and will observe all partnership, corporate or limited liability
company formalities, as applicable.
(k) Mortgagor has maintained and shall maintain adequate capital
and a sufficient number of employees, if any, for the normal obligations
reasonably foreseeable in a business of its size and character and in light of
its contemplated business operations. Mortgagor will pay the salaries of its own
employees.
14
(l) Neither Mortgagor nor any constituent party of Mortgagor has
sought or shall seek or consent to the dissolution or winding up, in whole or in
part, of Mortgagor, nor will Mortgagor merge with or be consolidated into any
other entity or acquire by purchase or otherwise all or substantially all of the
business assets of, or any stock of beneficial ownership of, any entity.
(m) Mortgagor has not and shall not commingle the funds and other
assets of Mortgagor with those of any Affiliate, any Guarantor, any constituent
party of Mortgagor or any other person, and Mortgagor will pay its own
liabilities out of its own funds and assets.
(n) Mortgagor has maintained and shall maintain its assets in such
a manner that it will not be costly or difficult to segregate, ascertain or
identify its individual assets from those of any constituent party of Mortgagor,
Affiliate, Guarantor or any other person.
(o) Mortgagor has not and shall not assume, guarantee, become
obligated for or hold itself out to be responsible for the debts or obligations
of any other person (provided, that the foregoing shall not prevent Mortgagor
from being and holding itself responsible for expenses incurred or obligations
undertaken by the property manager of the Mortgaged Property in respect of its
duties regarding the Mortgaged Property).
(p) Mortgagor shall obtain and maintain in full force and effect,
and abide by and satisfy the material terms and conditions of, all material
permits, licenses, registrations and other authorizations with or granted by any
governmental authorities that may be required from time to time with respect to
the performance of its obligations under this Mortgage.
(q) Mortgagor does not and shall not own any subsidiary, or make
any investment in any person or entity.
(r) Mortgagor has not and shall not without the unanimous consent
of all its general partners, directors or members, as applicable, file or
consent to the filing of any petition, either voluntary or involuntary, to take
advantage of any applicable insolvency, bankruptcy, liquidation or
reorganization statute, or make an assignment for the benefit of creditors.
(s) Mortgagor shall be a limited liability company formed under
the laws of the State of Delaware with one (1) member (the "Single Member"),
whose certificate of formation and operating agreement ("Mortgagor's
Organizational Documents") shall be in form and substance reasonably
satisfactory to Mortgagee.
(t) Mortgagor's Organizational Documents shall contain each of the
representations, covenants and warranties set forth in this Section 9 and shall
require Mortgagor to at all times cause there to be at least one (1) duly
appointed member of the board of directors (each an "Independent Director") of
Mortgagor who shall be an individual, natural person and whose vote will be
required in connection with the voluntary filing for protection under the
Bankruptcy Code or similar action by Mortgagor and who is not at the time of
initial appointment, and may not have been at any time during the preceding five
years, a shareholder of (other than as a shareholder of the REIT, so long as
such person has not been a shareholder of the REIT within the last 2 years), or
an officer, director (other than an Independent Director),
15
partner, paid consultant or employee of, Mortgagor or any of its shareholders,
subsidiaries or affiliates, a customer of, or supplier to, Mortgagor or any of
its shareholders, subsidiaries or affiliates, a person or other entity
controlling or under common control with any such shareholder, partner, supplier
or customer, or a member of the immediate family of any such shareholder,
officer, director, partner, employee, supplier or customer of Mortgagor. As used
herein, the term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
person or entity, whether through ownership of voting securities, by contract or
otherwise. Mortgagor's Organizational Documents shall further require that upon
the occurrence of any event that causes the Single Member to cease to be a
member in Mortgagor, the Independent Director shall, without action of any
person and simultaneously with the Single Member ceasing to be a member of
Mortgagor, automatically be admitted to Mortgagor as a member and shall continue
the Mortgagor without dissolution.
(u) Intentionally Deleted.
(v) Mortgagor shall not cause or permit the board of directors of
Mortgagor to take any action which, under the terms of any certificate of
incorporation, by-laws or any voting trust agreement with respect to any common
stock, requires the vote of the board of directors of Mortgagor unless at the
time of such action there shall be at least one (1) member who is an Independent
Director.
(w) Mortgagor has conducted and shall conduct its business so that
the assumptions made with respect to Mortgagor in that certain opinion letter
dated of even date herewith (the "Nonconsolidation Opinion") delivered by
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP in connection with the Loan shall be true
and correct in all respects.
10. Maintenance of the Mortgaged Property. Mortgagor shall cause
the Mortgaged Property to be operated and maintained in a good and safe
condition and repair and in keeping with the condition and repair of properties
of a similar use, value, age, nature and construction. Mortgagor shall not use,
maintain or operate the Mortgaged Property in any manner which constitutes a
public or private nuisance or which makes void, voidable, or cancelable, or
increases the premium of, any insurance then in force with respect thereto. The
Improvements and the Equipment shall not be removed, demolished or materially
altered (except for normal replacement of the Equipment) without the consent of
Mortgagee. Mortgagor shall promptly comply with all laws, orders and ordinances
affecting the Mortgaged Property, or the use thereof. Mortgagor shall promptly
repair, replace or rebuild any part of the Mortgaged Property which may be
destroyed by any casualty, or become damaged, worn or dilapidated or which may
be affected by any proceeding of the character referred to in Section 7 hereof
and shall complete and pay for any structure at any time in the process of
construction or repair on the Premises.
11. Use of the Mortgaged Property. Mortgagor shall not initiate,
join in, acquiesce in, or consent to any change in any private restrictive
covenant, zoning law, land use designation or other public or private
restriction, limiting or defining the uses which may be made of the Mortgaged
Property or any part thereof, nor shall Mortgagor initiate, join in, acquiesce
in, or consent to any
16
land use change, zoning change or zoning matter affecting the Mortgaged
Property. If under applicable zoning provisions the use of all or any portion of
the Mortgaged Property is or shall become a nonconforming use, Mortgagor will
not cause or permit such nonconforming use to be discontinued or abandoned
without the express written consent of Mortgagee. Mortgagor shall not permit or
suffer to occur any waste on or to the Mortgaged Property or to any portion
thereof and shall not take any steps whatsoever to convert the Mortgaged
Property, or any portion thereof, to a condominium or cooperative form of
management. Mortgagor will not install or permit to be installed on the Premises
any underground storage tank or above-ground storage tank without the written
consent of Mortgagee.
12. Transfer or Encumbrance of the Mortgaged Property. (a)
Mortgagor acknowledges that Mortgagee has examined and relied on the
creditworthiness and experience of Mortgagor in owning and operating properties
such as the Mortgaged Property in agreeing to make the loan secured hereby, and
that Mortgagee will continue to rely on Mortgagor's ownership of the Mortgaged
Property as a means of maintaining the value of the Mortgaged Property as
security for repayment of the Debt. Mortgagor acknowledges that Mortgagee has a
valid interest in maintaining the value of the Mortgaged Property so as to
ensure that, should Mortgagor default in the repayment of the Debt, Mortgagee
can recover the Debt by a sale of the Mortgaged Property. Subject to the
provisions of Section 12(b) below, without the prior written consent of
Mortgagee:
(i) neither Mortgagor nor any other Person shall, directly or
indirectly, voluntarily or involuntarily, by operation of law or
otherwise, sell, transfer, convey, mortgage, pledge, or assign any
interest in, or encumber, alienate, ▇▇▇▇▇ ▇ ▇▇▇▇ in or against, or grant
or enter into any easement, covenant or other agreement granting rights in
or restricting the use or development of, (A) the Mortgaged Property or
any part thereof, or (B) any partnership interest, membership interest,
shares of stock, beneficial interest or any other ownership interest (in
whole or in part) in Mortgagor or in any partner, member, shareholder,
beneficiary or other direct or indirect holder or any interest therein,
through each tier of ownership with the intention that the foregoing
restrictions shall not be avoided by the use of multiple tiers of
ownership of direct or indirect interests in Mortgagor; and
(ii) no new partner, member, shareholder, beneficiary or other
legal or equitable owner shall be admitted to or created in Mortgagor or
in any partner, member, shareholder, beneficiary or other direct or
indirect holder of any interest therein, through each tier of ownership
with the intention that the foregoing restrictions shall not be avoided by
the use of multiple tiers of ownership of direct or indirect interests in
Mortgagor, (nor shall any existing general partner or member or
controlling limited partner withdraw from Mortgagor);
(iii) there shall be permitted no change in the organizational
documents of, nor any withdrawal, resignation, removal or other change of
status on the part of any partner, member, officer, director, manager or
other Person from or with respect to his, her or its position of authority
or control in, any of Mortgagor or any partner, member, shareholder,
beneficiary or other legal or equitable owner of Mortgagor, or any
partner, member, shareholder, beneficiary or other direct or indirect
holder of any interest therein (through each tier of ownership with the
intention that these restrictions shall not be avoided by the
17
use of multiple tiers of ownership of direct or indirect interests in
Mortgagor), if any such occurrence shall result in a change in control of
the Mortgaged Property, Mortgagor or Mortgagor's affairs.
As used in this Section 12, "transfer" shall include, without limitation,
(1) an installment sales agreement wherein Mortgagor agrees to sell the
Mortgaged Property or any part thereof for a price to be paid in installments;
and (ii) an agreement by Mortgagor leasing all or a substantial part of the
Mortgaged Property for other than actual occupancy by a space tenant thereunder
or a sale, assignment or other transfer of, or the grant of a security interest
in, Mortgagor's right, title and interest in and to any Leases or any Rents.
(b) Notwithstanding the foregoing, the following shall not
constitute a violation of the provisions of Section 12(a) above: (A) the leasing
of individual units within the Mortgaged Property so long as Mortgagor complies
with the provisions of the Loan Documents relating to such leasing activity; (B)
a sale or other disposition of obsolete or worn-out personal property which is
contemporaneously replaced by comparable personal property of equal or greater
value which is free and clear of liens, encumbrances and security interests
other than those created by the Loan Documents; (C) the grant of an easement, if
prior to the granting of the easement Mortgagor causes to be submitted to
Mortgagee all information required by Mortgagee to evaluate the easement, and if
Mortgagee determines that the easement will not materially affect the operation
of the Mortgaged Property or Mortgagee's interest in the Mortgaged Property and
Mortgagor pays to Mortgagee, on demand, all cost and expense incurred by
Mortgagee in connection with reviewing Mortgagor's request; (D) transfers of
non-managing membership interests in Mortgagor, or of indirect interests in the
non-managing members in Mortgagor, provided, that (1) following any such
transfer the Partnership continues to own, directly or indirectly, at least a
25% beneficial interest in Mortgagor and continues to control Mortgagor, either
directly or indirectly through subsidiary entities, (2) Ramco-▇▇▇▇▇▇▇▇▇▇
Properties Trust, a Maryland real estate investment trust (the "REIT"), remains
the sole general partner of the Partnership and continues to maintain not less
than a 50% partnership interest in the Partnership, and (3) if such transfer or
series of transfers would result in (a) a transfer in the aggregate of more than
75% of the direct or indirect interests in Mortgagor as of the date hereof or
(b) the proposed transferee, together with his, her or its Affiliates and
immediate family members, owning in the aggregate, directly or indirectly
(whether by means of beneficial ownership or ownership interests in entities
which in turn directly or indirectly, through multiple ownership tiers or
otherwise, own interests in Mortgagor or otherwise), more than 75% of the
ownership or beneficial ownership interest in Mortgagor (unless such Transferee
is the Partnership or a subsidiary thereof), then such transfer or series of
transfers shall require the consent of Mortgagee and, at the sole option of
Mortgagee, recommendations in writing from the Rating Agencies (as defined
hereinafter) to the effect that such transfer will not result in a
re-qualification, reduction or withdrawal of any rating initially assigned or to
be assigned in a Secondary Market Transaction; or (E) the merger of REIT with
another publicly traded real estate investment trust so long as the newly-formed
entity remains the sole general partner of the Partnership and continues to
maintain not less than a 50% partnership interest in the Partnership.
(c) The occurrence of any of the foregoing transfers or other
occurrences described in the foregoing Section 12(a) shall, unless permitted
under Section 12(b) above or
18
otherwise approved in writing by Mortgagee, constitute an Event of Default (as
defined below) hereunder, regardless of whether any such transfer or occurrence
was caused or instituted by Mortgagor or any other Person, whereupon Mortgagee
at its option, without being required to demonstrate any actual impairment of
its security or any increased risk of default hereunder, declare the Debt
immediately due and payable. This provision shall apply to every sale,
conveyance, alienation, mortgage, encumbrance, pledge or transfer of the
Mortgaged Property or other occurrence described in Section 12(a) above (unless
permitted under Section 12(b) above), regardless of whether voluntary or not, or
whether or not Mortgagee has consented to any previous sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property
or other occurrence described in Section 12(a) above.
(d) Mortgagor agrees to bear and shall pay or reimburse Mortgagee
on demand for all reasonable expenses (including, without limitation, reasonable
attorneys' fees and disbursements, title search costs and title insurance
endorsement premiums) incurred by Mortgagee in connection with the review,
approval and documentation of any sale, conveyance, alienation, mortgage,
encumbrance, pledge, transfer or other transaction or event described in Section
12(a) above. In addition, prior to the effectiveness of any direct or indirect
transfer of the Mortgaged Property (including any transfer of the direct or
indirect ownership interests in Mortgagor, other than as permitted under Section
12(b) above), Mortgagee shall receive an assumption fee equal to one percent
(1%) of the then unpaid principal balance of the Note, together with any review
fee required by Mortgagee; provided, however, with respect to the one-time sale
or transfer of the Mortgaged Property described in Section 12(f) below,
Mortgagee shall not be obligated to pay an assumption fee.
(e) Mortgagee's consent to one sale, conveyance, alienation,
mortgage, encumbrance, pledge or transfer of the Mortgaged Property or any part
thereof or any other transaction or event described in Section 12(a) above shall
not be deemed to be a waiver of Mortgagee's right to require such consent to any
future occurrence of same. Any attempted or purported sale, conveyance,
alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property
or of any direct or indirect interest in Mortgagor, and any other transfer
described in Section 12(a) above, if made in contravention of this Section 12,
shall be null and void and of no force and effect.
(f) Notwithstanding the foregoing provisions of Section 12(a)
above, a one-time sale or transfer of the Mortgaged Property will be permitted,
provided that:
(i) no Event of Default or event which with the giving of
notice or the passage of time would constitute an Event of Default
shall have occurred and remain uncured;
(ii) the proposed transferee ("Transferee") shall be either
(A) wholly owned by the Partnership or shall be an affiliate of the
Partnership in which the Partnership shall own, directly or
indirectly, at least a 25% beneficial ownership and economic
interest, or (B) a reputable entity or person of good character,
creditworthy, with sufficient financial worth considering the
obligations assumed and undertaken, which Transferee and its
property manager shall have sufficient
19
experience in the ownership and management of properties similar to
the Mortgaged Property, as evidenced by financial statements,
resumes and other information reasonably requested by Mortgagee (and
Mortgagee reserves the right to approve the Transferee without
approving the substitution of the property manager);
(iii) the Transferee shall have executed and delivered to
Mortgagee an assumption agreement in form and substance acceptable
to Mortgagee, evidencing such Transferee's agreement to abide and be
bound by the terms of the Note, this Mortgage and the other Loan
Documents, together with such legal opinions and title insurance
endorsements as may be reasonably requested by Mortgagee;
(iv) unless otherwise waived by Mortgagee based on applicable
guidelines of the Rating Agencies (as hereinafter defined),
Mortgagee shall have recommendations in writing from the Rating
Agencies to the effect that such transfer will not result in a
re-qualification, reduction or withdrawal of any rating initially
assigned or to be assigned in a Secondary Market Transaction. The
term "Rating Agencies" as used herein shall mean each of Standard &
Poor's Ratings Services, a division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.,
▇▇▇▇▇'▇ Investors Service, Inc., and Fitch Ratings (or its
affiliates), or any other nationally-recognized statistical rating
agency which is or may be designated by Mortgagee;
(v) either the Partnership, shall have reaffirmed its
obligations under the Guaranty with respect to the transfer of the
Mortgaged Property to Transferee or replacement guarantor(s),
satisfactory to Mortgagee in Mortgagee's sole discretion, shall have
executed a new guaranty on Mortgagee's then current form;
(vi) Mortgagor shall have paid and Mortgagee shall have
received the payments, fees, and reimbursements required under
Section 12(d) hereof, provided that if the Transferee is wholly
owned by the Partnership or shall be an affiliate of the Partnership
in which the Partnership shall own, directly or indirectly, at least
a 25% beneficial ownership and economic interest, the 1% assumption
fee shall be waived;
(vii) the Crossed Property is sold or transferred to (and the
related Crossed Loan is assumed by) the Transferee simultaneously
with the transfer of the Mortgaged Property to the Transferee, in
accordance with the terms of the Crossed Mortgage, and all the
conditions to such transfers set forth in the Crossed Mortgage are
satisfied; and
(viii) as a result of the transfer or proposed transfer of the
Mortgaged Property, no other party other than Transferee will have
any right or option to purchase the Mortgaged Property, or, if any
other party has such right or option, such right or option has been
waived by such party.
(g) Upon any sale or transfer and assumption approved by Mortgagee
with replacement guarantors approved by Mortgagee and Mortgagee's determination
that no actual
20
pending or threatened actions or claims then exist against Mortgagee, Mortgagor
or the Mortgaged Property, Mortgagor and any original guarantors shall be
released from liability under the Note and Guaranty (except for indemnification
obligations pertaining to occurrences prior to Mortgagor's sale or transfer of
its interest in the Mortgaged Property).
13. Estoppel Certificates and No Default Affidavits. (a) After
request by Mortgagee, Mortgagor shall within ten (10) days furnish Mortgagee
with a statement, duly acknowledged and certified, setting forth (i) the amount
of the original principal amount of the Note, (ii) the unpaid principal amount
of the Note, (iii) the rate of interest of the Note, (iv) the date installments
of interest and/or principal were last paid, (v) any offsets or defenses to the
payment of the Debt, if any, and (vi) that the Note, this Mortgage and the other
Loan Documents are valid, legal and binding obligations and have not been
modified or if modified, giving particulars of such modification.
(b) After request by Mortgagee, Mortgagor shall within ten (10)
days furnish Mortgagee with a certificate reaffirming all representations and
warranties of Mortgagor set forth herein and in the other Loan Documents as of
the date requested by Mortgagee or, to the extent of any changes to any such
representations and warranties, so stating such changes.
(c) If the Mortgaged Property includes commercial property,
Mortgagor shall deliver to Mortgagee upon request, tenant estoppel certificates
from each commercial tenant at the Mortgaged Property in form and substance
reasonably satisfactory to Mortgagee provided that Mortgagor shall not be
required to deliver such certificates more frequently than one (1) time in any
calendar year.
14. Taxes on Security; Documentary Stamps; Intangibles Tax. (a)
Mortgagor shall pay all taxes, charges, filing, registration and recording fees,
excises and levies payable with respect to the Note or the liens created or
secured by the Loan Documents, other than income, franchise and doing business
taxes imposed on Mortgagee. If there shall be enacted any law (i) deducting the
Loan from the value of the Mortgaged Property for the purpose of taxation, (ii)
affecting any lien on the Mortgaged Property, or (iii) changing existing laws of
taxation of mortgages, deeds of trust, security deeds, or debts secured by real
property, or changing the manner of collecting any such taxes, Mortgagor shall
promptly pay to Mortgagee, on demand, all taxes, costs and charges for which
Mortgagee is or may be liable as a result thereof; however, if such payment
would be prohibited by law or would render the Loan usurious, then instead of
collecting such payment, Mortgagee may declare all amounts owing under the Loan
Documents to be immediately due and payable. No prepayment consideration shall
be imposed on any such payment.
(b) If at any time the United States of America, any State thereof
or any subdivision of any such State shall require revenue or other stamps to be
affixed to the Note or this Mortgage, or impose any other tax or charge on the
same, Mortgagor will pay for the same, with interest and penalties thereon, if
any. Mortgagor hereby agrees that, in the event that it is determined that
additional documentary stamp tax or intangible tax is due hereon or any mortgage
or promissory note executed in connection herewith (including, without
limitation, the Note), Mortgagor shall indemnify and hold harmless Mortgagee for
all such documentary stamp tax and/or intangible tax, including all penalties
and interest assessed or charged in connection therewith. Mortgagor shall pay
same within ten (10) days after demand of payment from Mortgagee and the payment
of such sums shall be secured by this Mortgage and such sums
21
shall bear interest at the Default Rate (as defined in the Note) until paid in
full.
(c) Mortgagor shall hold harmless and indemnify Mortgagee, its
successors and assigns, against any liability incurred by reason of the
imposition of any tax on the making and recording of this Mortgage.
15. No Credits on Account of the Debt. Mortgagor will not claim or
demand or be entitled to any credit or credits on account of the Debt for any
part of the Taxes or Other Charges assessed against the Mortgaged Property, or
any part thereof, and no deduction shall otherwise be made or claimed from the
assessed value of the Mortgaged Property, or any part thereof, for real estate
tax purposes by reason of this Mortgage or the Debt. In the event such claim,
credit or deduction shall be required by law, Mortgagee shall have the option,
by written notice of not less than ninety (90) days, to declare the Debt
immediately due and payable.
16. Controlling Agreement. It is expressly stipulated and agreed to be
the intent of Mortgagor and Mortgagee at all times to comply with applicable
state law or applicable United States federal law (to the extent that it permits
Mortgagee to contract for, charge, take, reserve, or receive a greater amount of
interest than under state law) and that this section shall control every other
covenant and agreement in this Mortgage and the other Loan Documents. If the
applicable law (state or federal) is ever judicially interpreted so as to render
usurious any amount called for under the Note or under any of the other Loan
Documents, or contracted for, charged, taken, reserved, or received with respect
to the Debt, or if Mortgagee's exercise of the option to accelerate the maturity
of the Note, or if any prepayment by Mortgagor results in Mortgagor having paid
any interest in excess of that permitted by applicable law, then it is
Mortgagor's and Mortgagee's express intent that all excess amounts theretofore
collected by Mortgagee shall be credited on the principal balance of the Note
and all other Debt (or, if the Note and all other Debt have been or would
thereby be paid in full, refunded to Mortgagor), and the provisions of the Note
and the other Loan Documents immediately be deemed reformed and the amounts
thereafter collectible hereunder and thereunder reduced, without the necessity
of the execution of any new documents, so as to comply with the applicable law,
but so as to permit the recovery of the fullest amount otherwise called for
hereunder or thereunder. All sums paid or agreed to be paid to Mortgagee for the
use, forbearance, or detention of the Debt shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full stated term of the Debt until payment in full so that the rate or amount of
interest on account of the Debt does not exceed the maximum rate permitted under
applicable law from time to time in effect and applicable to the Debt for so
long as the Debt is outstanding. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, it is not the intention
of Mortgagee to accelerate the maturity of any interest that has not accrued at
the time of such acceleration or to collect unearned interest at the time of
such acceleration.
17. Financial Statements. (a) The financial statements heretofore
furnished to Mortgagee are, as of the dates specified therein, complete and
correct and fairly present the financial condition of Mortgagor and any other
persons or entities that are the subject of such financial statements, and are
prepared in accordance with generally accepted accounting principles in the
United States of America consistently applied (or such other accounting basis
reasonably acceptable to Mortgagee).
22
Mortgagor does not have any contingent liabilities, liabilities for taxes,
unusual forward or long-term commitments or unrealized or anticipated losses
from any unfavorable commitments that are known to Mortgagor and reasonably
likely to have a materially adverse effect on the Mortgaged Property or the
operation thereof for its current use, except as referred to or reflected in
said financial statements. Since the date of such financial statements, there
has been no materially adverse change in the financial condition, operation or
business of Mortgagor or any other persons or entities that are the subject of
such financial statements from that set forth in said financial statements.
(b) Mortgagor will maintain full and accurate books of accounts
and other records reflecting the results of the operations of the Mortgaged
Property and will furnish to Mortgagee the following items, each certified by
Mortgagor as being true and correct and presented in such format as Mortgagee or
its designee may request, as follows:
(i) Until the earlier to occur of (A) eighteen (18) months
following the date hereof, or (B) a Secondary Market Transaction,
(hereinafter defined), Mortgagor shall furnish monthly each of the items
listed in subsections 17(b)(ii)(A), (B) and (C) below, but dated as of the
last day of each such month (collectively, the "Pre-Securitization
Financials") within twenty (20) days after the end of such month.
(ii) On or before fifty (50) days after the end of each calendar
quarter: (A) a written statement (rent roll) dated as of the last day of
each such calendar quarter identifying each of the Leases by the term,
renewal options (including rental base), space occupied, rental and other
charges required to be paid, security deposit paid, real estate taxes paid
by tenants, common area charges paid by tenants, tenant pass-throughs, any
rental concessions or special provisions or inducements, tenant sales (if
the tenant is required to report sales to Mortgagor), rent delinquencies,
rent escalations, amounts taken in settlement of outstanding arrears,
collections of rent for more than one (1) month in advance, continuous
operation obligations, cancellation or "go dark" provisions,
"non-competition" provisions (restricting Mortgagor or any tenant), any
defaults thereunder and any other information reasonably required by
Mortgagee; (B) monthly and year to date operating statements prepared for
each calendar month during each such calendar quarter, each of which shall
include an itemization of actual (not pro forma) capital expenditures
during the applicable period; (C) a property balance sheet for such month;
and (D) a comparison of the budgeted income and expenses with the actual
income and expenses for such month and year to date, together with a
detailed explanation of any variances between budgeted and actual amounts
that are in excess of the greater of: (1) $1,000, or (2) five percent (5%)
or more for each line item therein.
(iii) Within one hundred (100) days following the end of each
calendar year: (A) a written statement (rent roll) dated as of the last
day of each such calendar year identifying each of the Leases by the term,
space occupied, rental required to be paid, security deposit paid, any
rental concessions, and identifying any defaults or payment delinquencies
thereunder; (B) annual operating statements prepared for such calendar
year, which shall include an itemization of actual (not pro forma) capital
expenditures during the applicable period, total revenues received, total
expenses incurred, total debt service and total cash
23
flow; (C) an annual balance sheet and profit and loss statement of
Mortgagor, certified by Mortgagor, or, if available, audited financial
statements prepared by an independent certified public accountant
acceptable to Mortgagee; and (D) any financial statements required under
the Guaranty.
(iv) On or before December 1 of the year preceding the year to
which such budget pertains, Mortgagor shall furnish an annual budget of
the operation of the Mortgaged Property (the "Annual Budget"), in form
satisfactory to Mortgagee, setting forth in reasonable detail budgeted
monthly operating income and monthly operating capital and other expenses
for the Mortgaged Property. Each Annual Budget shall contain, among other
things, limitations on management fees, third party service fees and other
expenses as Mortgagee may reasonably determine.
(c) In the event that Mortgagor fails to provide to Mortgagee or
its designee any of the financial statements, certificates, reports or
information (the "Required Records") required by this Section 17 within thirty
(30) days after the date upon which such Required Record is due, Mortgagor shall
pay to Mortgagee, at Mortgagee's option and in its sole discretion, an amount
equal to $2,500 if the Required Records are not so delivered; provided that,
Mortgagee has given at least ten (10) days prior written notice to Mortgagor of
such failure by Mortgagor to timely submit the applicable Required Records.
18. Performance of Other Agreements. Mortgagor shall duly and punctually
observe and perform each and every term, provision, condition, and covenant to
be observed or performed by Mortgagor pursuant to the terms of any agreement or
recorded instrument (including all instruments comprising the Permitted
Encumbrances) affecting or pertaining to the Mortgaged Property, and will not
suffer or permit any default or event of default (giving effect to any
applicable notice requirements and cure periods) to exist under any of the
foregoing.
19. Further Acts, Etc. (a) Mortgagor will, at the cost of Mortgagor, and
without expense to Mortgagee, do, execute, acknowledge and deliver all and every
such further acts, deeds, conveyances, mortgages, assignments, notices of
assignment, Uniform Commercial Code financing statements or continuation
statements, transfers and assurances as Mortgagee shall, from time to time,
require, for the better assuring, conveying, assigning, transferring, and
confirming unto Mortgagee the property and rights hereby mortgaged, given,
granted, bargained, sold, alienated, infeft, conveyed, confirmed, pledged,
assigned and hypothecated or intended now or hereafter so to be, or which
Mortgagor may be or may hereafter become bound to convey or assign to Mortgagee,
or for carrying out the intention or facilitating the performance of the terms
of this Mortgage or for filing, registering or recording this Mortgage or for
facilitating the sale of the Loan and the Loan Documents as described in
subsection 19(b) below. Mortgagor, on demand, will execute and deliver and
hereby authorizes Mortgagee to execute in the name of Mortgagor or without the
signature of Mortgagor to the extent Mortgagee may lawfully do so, one or more
financing statements, chattel mortgages or other instruments, to evidence more
effectively the security interest of Mortgagee in the Mortgaged Property. Upon
foreclosure, the appointment of a receiver or any other relevant action,
Mortgagor will, at the cost of Mortgagor and without expense to Mortgagee,
cooperate fully and completely to effect the assignment or transfer of any
license, permit, agreement or any other
24
right necessary or useful to the operation of the Mortgaged Property. Mortgagor
grants to Mortgagee an irrevocable power of attorney coupled with an interest
for the purpose of exercising and perfecting any and all rights and remedies
available to Mortgagee at law and in equity, including, without limitation, such
rights and remedies available to Mortgagee pursuant to this section.
(b) Mortgagor acknowledges that Mortgagee and its successors and
assigns may (i) sell this Mortgage, the Note and other Loan Documents to one or
more investors as a whole loan, (ii) participate the Loan secured by this
Mortgage to one or more investors, (iii) deposit this Mortgage, the Note and
other Loan Documents with a trust, which trust may sell certificates to
investors evidencing an ownership interest in the trust assets, or (iv)
otherwise sell the Loan or interest therein to investors (the transactions
referred to in clauses (i) through (iv) are hereinafter each referred to as a
"Secondary Market Transaction"). Mortgagor shall cooperate with Mortgagee in
effecting any such Secondary Market Transaction and shall cooperate to implement
all requirements imposed by any Rating Agency involved in any Secondary Market
Transaction, including but not limited to, (a) providing Mortgagee an estoppel
certificate and such information, legal opinions and documents relating to
Mortgagor, Guarantor, if any, the Mortgaged Property and any tenants of the
Mortgaged Property as Mortgagee or the Rating Agencies may reasonably request in
connection with such Secondary Market Transaction, (b) amending the Loan
Documents and organizational documents of Mortgagor, and updating and/or
restating officer's certificates, title insurance and other closing items, as
may be required by the Rating Agencies, (c) participating in bank, investors and
Rating Agencies' meetings if requested by Mortgagee, (d) upon Mortgagee's
request amending the Loan Documents (and updating and/or restating officer's
certificates, title insurance and other closing items in connection therewith)
to divide the Loan into two or more separate or component notes, which notes may
be included in separate transactions (and thus may have separate REMIC "start up
dates") and have different interest rates and amortization schedules (but with
aggregated financial terms which are equivalent to that of the Loan prior to
such separation), and (e) reviewing the offering documents relating to any
Secondary Market Transaction to ensure that all information concerning
Mortgagor, the Mortgaged Property, and the Loan is correct, and certifying to
the accuracy thereof. Mortgagee shall be permitted to share all such information
with the investment banking firms, Rating Agencies, accounting firms, law firms
and other third-party advisory firms and investors involved with the Loan and
the Loan Documents or the applicable Secondary Market Transaction. Mortgagee and
all of the aforesaid third-party advisors and professional firms shall be
entitled to rely on the information supplied by, or on behalf of, Mortgagor and
Mortgagor indemnifies Mortgagee, its successors, assigns and their respective
shareholders, employees, directors, officers, and agents (each an "Indemnified
Party" and, collectively, the "Indemnified Parties") as to any losses, claims,
damages or liabilities that arise out of or are based upon any untrue statement
of any material fact contained in such information or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated in such information or necessary in order to make the statements in
such information, or in light of the circumstances under which they were made,
not misleading. Mortgagee may publicize the existence of the Loan in connection
with its marketing for a Secondary Market Transaction or otherwise as part of
its business development.
25
20. Recording of Mortgage, Etc. Upon the execution and delivery of this
Mortgage and thereafter, from time to time, Mortgagor will cause this Mortgage,
and any security instrument creating a lien or security interest or evidencing
the lien hereof upon the Mortgaged Property and each instrument of further
assurance to be filed, registered or recorded in such manner and in such places
as may be required by any present or future law in order to publish notice of
and fully to protect the lien or security interest hereof upon, and the interest
of Mortgagee in, the Mortgaged Property. Mortgagor will pay all filing,
registration or recording fees, and all expenses incident to the preparation,
execution and acknowledgment of this Mortgage, any mortgage supplemental hereto,
any security instrument with respect to the Mortgaged Property and any
instrument of further assurance, and all federal, state, county and municipal,
taxes, duties, imposts, assessments and charges arising out of or in connection
with the execution and delivery of this Mortgage, any mortgage supplemental
hereto, any security instrument with respect to the Mortgaged Property or any
instrument of further assurance, except where prohibited by law so to do.
21. Reporting Requirements. Mortgagor agrees to give prompt notice to
Mortgagee of the insolvency or bankruptcy filing of Mortgagor or the death,
insolvency or bankruptcy filing of any Guarantor.
22. Events of Default. Subject to the notice and cure periods in Section
23, the term "Event of Default" as used herein shall mean the occurrence or
happening, at any time and from time to time, of any one or more of the
following:
(a) if any portion of the Debt is not paid within five (5) days
from the date when the same is due;
(b) if the Policies are not kept in full force and effect, or if
the Policies are not delivered to Mortgagee upon request;
(c) if Mortgagor fails to timely provide any financial or
accounting report;
(d) if Mortgagor suffers or permits the transfer or encumbrance of
any portion of the Mortgaged Property in violation of Section 12 of this
Mortgage, or any other violation of Section 12(a), or any violation of Section 9
of this Mortgage;
(e) if any representation or warranty of Mortgagor, or of any
Guarantor, made herein or in any other Loan Document or in any certificate,
report, financial statement or other instrument or document furnished to
Mortgagee shall have been false or misleading in any material respect when made;
(f) if Mortgagor or any Guarantor shall make an assignment for the
benefit of creditors or if Mortgagor shall generally not be paying its debts as
they become due;
(g) if a receiver, liquidator or trustee of Mortgagor or of any
Guarantor shall be appointed or if Mortgagor or any Guarantor shall be
adjudicated a bankrupt or insolvent, or if any petition for bankruptcy,
reorganization or arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by or against, consented to, or acquiesced
in by, Mortgagor
26
or any Guarantor or if any proceeding for the dissolution or liquidation of
Mortgagor or of any Guarantor shall be instituted; however, if such appointment,
adjudication, petition or proceeding was involuntary and not consented to by
Mortgagor or such Guarantor, upon the same not being discharged, stayed or
dismissed within sixty (60) days;
(h) if Mortgagor shall be in default under any other mortgage or
security agreement covering any part of the Mortgaged Property and otherwise
permitted hereunder;
(i) subject to Mortgagor's right to contest as provided herein, if
the Mortgaged Property becomes subject to any mechanic's, materialman's,
mortgage or other lien except a lien for local real estate taxes and assessments
not then due and payable;
(j) if Mortgagor fails to cure properly any violations of laws or
ordinances affecting or which may be interpreted to affect the Mortgaged
Property;
(k) except as permitted in this Mortgage, the alteration,
improvement, demolition or removal of any of the Improvements without the prior
consent of Mortgagee;
(l) damage to the Mortgaged Property in any manner which is not
covered by insurance solely as a result of Mortgagor's failure to maintain
insurance required in accordance with this Mortgage;
(m) if Mortgagor shall continue to be in default under any term,
covenant, or provision of the Note or any of the other Loan Documents, beyond
applicable cure periods contained therein;
(n) if, without Mortgagee's prior consent (i) the manager of the
Mortgaged Property is transferred or is removed by Mortgagor, or (ii) the
manager for the Mortgaged Property approved by Mortgagee resigns and is not
replaced within sixty (60) days by Mortgagor with a manager satisfactory to
Mortgagee, (iii) the manager ceases to be controlled by REIT, (iv) there is any
material change in any management agreement of the Mortgaged Property, or (v)
the manager engaged by Mortgagor and approved by Mortgagee fails to execute the
Acknowledgment of Property Manager;
(o) entry of a judgment in excess of $100,000, unless insured
against and paid within thirty (30) days of the expiration of any appeal rights
or the dismissal or final adjudication of appeals against Mortgagor;
(p) the Mortgage shall cease to constitute a first-priority lien
on the Mortgaged Property (other than in accordance with its terms);
(q) seizure or forfeiture of the Mortgaged Property, or any
portion thereof, or Mortgagor's interest therein, resulting from criminal
wrongdoing or other unlawful action of Mortgagor, or its affiliates, under any
federal, state or local law;
27
(r) if, without Mortgagee's prior written consent, Mortgagor
ceases to continuously operate the Mortgaged Property or any material portion
thereof as the same use that is currently permitted under applicable zoning or
other local laws for any reason whatsoever (other than temporary cessation in
connection with any repair or renovation thereof undertaken with the consent of
Mortgagee);
(s) Mortgagor shall fail to deliver any item described in an
undelivered items letter or other post-closing letter on or before the date set
forth in such letter for the delivery of such item; or
(t) there shall occur an "Event of Default" (as such term is
defined in the Crossed Mortgage) under the Crossed Mortgage or the other Crossed
Loan Documents.
23. Notice and Cure. Notwithstanding the foregoing, Mortgagee agrees to
give to Mortgagor written notice as described below of (a) Mortgagor's failure
to pay any part of the Debt when due, other than a regularly scheduled monthly
payment of principal, interest revenues, escrows or other amounts, required
under the Note, this Mortgage, or any other Loan Document (a "Noticed Monetary
Default"), (b) a default referred to in subsection 22(p) above (a "First Lien
Default"), and (c) a default referred to in Subsections
22(c),(h),(j),(l),(m),(q) or (r) above which is not a Noticed Monetary Default
(a "Noticed Nonmonetary Default"). Without limiting Mortgagee's rights to impose
a late charge for Mortgagor's nonpayment as provided in the Note, Mortgagor
shall have a period of ten (10) days from its receipt of notice in which to cure
a Noticed Monetary Default which written notice period may run concurrently with
the five (5)-day period referred to in Subsection 22(a), shall have a period of
twenty (20) days from its receipt of notice to cure a First Lien Default and
shall have a period of thirty (30) days from its receipt of notice in which to
cure a Noticed Nonmonetary Default, provided, however, that if such Noticed
Nonmonetary Default is reasonably susceptible of cure, but not within such
thirty (30) day period, then Mortgagor may be permitted up to an additional
sixty (60) days to cure such default provided that Mortgagor diligently and
continuously pursues such cure. Notwithstanding the foregoing, Mortgagee may,
but shall not be required, to give notice of a Noticed Monetary Default or a
recurrence of the same Noticed Nonmonetary Default more frequently than two
times in any twelve-month period. A Noticed Monetary Default and/or First Lien
Default and/or Noticed Nonmonetary Default shall nevertheless be an Event of
Default for all purposes under the Loan Documents (including, without
limitation, Mortgagee's right to collect Default Interest and any other
administrative charge set forth in the Note) except that the acceleration of the
Debt or other exercise of remedies shall not be prior to the expiration of the
applicable cure and/or grace periods provided in Section 22 or in this section.
24. Remedies. Upon the occurrence of an Event of Default and during the
continuance thereof, and subject to any applicable cure period, Mortgagee may,
at Mortgagee's option, do any one or more of the following:
(a) Right to Perform Mortgagor's Covenants. If Mortgagor has
failed to keep or perform any covenant whatsoever contained in this Mortgage or
the other Loan Documents, Mortgagee may, but shall not be obligated to any
person to do so, perform or attempt to perform said covenant; and any payment
made or expense incurred in the performance or attempted performance of any such
covenant, together with any sum expended by Mortgagee that is chargeable to
28
Mortgagor or subject to reimbursement by Mortgagor under the Loan Documents,
shall be and become a part of the Debt, and Mortgagor promises, upon demand, to
pay to Mortgagee, at the place where the Note is payable, all sums so incurred,
paid or expended by Mortgagee, with interest from the date when paid, incurred
or expended by Mortgagee at the Default Rate (as defined and otherwise specified
in the Note).
(b) Right of Entry. Mortgagee may, prior or subsequent to the
institution of any foreclosure proceedings, enter upon the Mortgaged Property,
or any part thereof, and take exclusive possession of the Mortgaged Property and
of all books, records, and accounts relating thereto and to exercise without
interference from Mortgagor any and all rights which Mortgagor has with respect
to the management, possession, operation, protection, or preservation of the
Mortgaged Property, including without limitation the right to rent the same for
the account of Mortgagor and to deduct from such Rents all costs, expenses, and
liabilities of every character incurred by Mortgagee in collecting such Rents
and in managing, operating, maintaining, protecting, or preserving the Mortgaged
Property and to apply the remainder of such Rents on the Debt in such manner as
Mortgagee may elect. All such costs, expenses, and liabilities incurred by
Mortgagee in collecting such Rents and in managing, operating, maintaining,
protecting, or preserving the Mortgaged Property, if not paid out of Rents as
hereinabove provided, shall constitute a demand obligation owing by Mortgagor
and shall bear interest from the date of expenditure until paid at the Default
Rate as specified in the Note, all of which shall constitute a portion of the
Debt. If necessary to obtain the possession provided for above, Mortgagee may
invoke any and all legal remedies to dispossess Mortgagor, including
specifically one or more actions for forcible entry and detainer, trespass to
try title, and restitution. In connection with any action taken by Mortgagee
pursuant to this subsection, Mortgagee shall not be liable for any loss
sustained by Mortgagor resulting from any failure to let the Mortgaged Property,
or any part thereof, or from any other act or omission of Mortgagee in managing
the Mortgaged Property unless such loss is caused by the willful misconduct of
Mortgagee, nor shall Mortgagee be obligated to perform or discharge any
obligation, duty, or liability under any Lease or under or by reason hereof or
the exercise of rights or remedies hereunder. Mortgagor shall and does hereby
agree to indemnify the Indemnified Parties for, and to hold the Indemnified
Parties harmless from, any and all liability, loss, or damage, which may or
might be incurred by any Indemnified Party under any such Lease or under or by
reason hereof or the exercise of rights or remedies hereunder, and from any and
all claims and demands whatsoever which may be asserted against any Indemnified
Party by reason of any alleged obligations or undertakings on its part to
perform or discharge any of the terms, covenants, or agreements contained in any
such Lease, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY, LOSS, DAMAGE, OR CLAIM
CAUSED BY OR RESULTING FROM THE ORDINARY NEGLIGENCE OF ANY INDEMNIFIED PARTY.
Should any Indemnified Party incur any such liability, the amount thereof,
including without limitation costs, expenses, and reasonable attorneys' fees,
together with interest thereon from the date of expenditure until paid at the
Default Rate as specified in the Note, shall be secured hereby, and Mortgagor
shall reimburse such Indemnified Party therefor immediately upon demand. Nothing
in this subsection shall impose any duty, obligation, or responsibility upon any
Indemnified Party for the control, care, management, leasing, or repair of the
Mortgaged Property, nor for the carrying out of any of the terms and conditions
of any such Lease; nor shall it operate to make any Indemnified Party
responsible or liable for any waste committed on the Mortgaged Property by the
tenants or by any other parties, or for any hazardous substances or
29
environmental conditions on or under the Mortgaged Property, or for any
dangerous or defective condition of the Mortgaged Property or for any negligence
in the management, leasing, upkeep, repair, or control of the Mortgaged Property
resulting in loss or injury or death to any tenant, licensee, employee, or
stranger. Mortgagor hereby assents to, ratifies, and confirms any and all
actions of Mortgagee with respect to the Mortgaged Property taken under this
subsection.
(c) Right to Accelerate. Mortgagee may, without notice except as
provided in Section 23 above, demand, presentment, notice of nonpayment or
nonperformance, protest, notice of protest, notice of intent to accelerate,
notice of acceleration, or any other notice or any other action, all of which
are hereby waived by Mortgagor and all other parties obligated in any manner
whatsoever on the Debt, declare the entire unpaid balance of the Debt
immediately due and payable, and upon such declaration, the entire unpaid
balance of the Debt shall be immediately due and payable.
(d) Foreclosure-Power of Sale. At the option of Mortgagee, this
Mortgage may be foreclosed upon by Mortgagee using any method permitted by the
laws of the State of Ohio in effect on the date that foreclosure is commenced.
Mortgagee shall be entitled to collect from Mortgagor all costs and expenses
incurred in pursuing foreclosure, including, but not limited to, attorneys' fees
and costs of environmental reports, appraisals, documentary evidence, abstracts,
and title reports. Mortgagee shall deliver to the purchaser a deed conveying the
Mortgaged Property sold as a result of such foreclosure without any covenant or
warranty, expressed or implied. The recitals in the deed shall apply the
proceeds of such sale in the following order: (a) to all costs and expenses of
the sale, including, but not limited to, reasonable attorneys' fees and costs of
title evidence, (b) to all sums secured by this Mortgage in such order as
Mortgagee, in Mortgagee's sole discretion directs, and (c) the excess, if any,
to the person or persons legally entitled thereto.
Anything to the contrary herein or elsewhere notwithstanding,
Mortgagee may cease or suspend any and all performance required of Mortgagee
under the Loan Documents upon and during the continuance of any breach or
default under any of the Loan Documents.
(e) Rights Pertaining to Sales. Subject to the requirements of
applicable law and except as otherwise provided herein, the following provisions
shall apply to any sale or sales of all or any portion of the Mortgaged Property
under or by virtue of Subsection (d) above, whether made under the power of sale
herein granted or by virtue of judicial proceedings or of a judgment or decree
of foreclosure and sale:
(i) Mortgagee may conduct any number of sales from time to time.
The power of sale set forth above shall not be exhausted by any one or
more such sales as to any part of the Mortgaged Property which shall not
have been sold, nor by any sale which is not completed or is defective in
Mortgagee's opinion, until the Debt shall have been paid in full.
(ii) Any sale may be postponed or adjourned by public announcement
at the time and place appointed for such sale or for such postponed or
adjourned sale without further notice.
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(iii) After each sale, Mortgagee or an officer of any court
empowered to do so shall execute and deliver to the purchaser or
purchasers at such sale a good and sufficient instrument or instruments
granting, conveying, assigning and transferring all right, title and
interest of Mortgagor in and to the property and rights sold and shall
receive the proceeds of said sale or sales and apply the same as specified
in the Note. Mortgagee is hereby appointed the true and lawful
attorney-in-fact of Mortgagor, which appointment is irrevocable and shall
be deemed to be coupled with an interest, in Mortgagor's name and stead,
to make all necessary conveyances, assignments, transfers and deliveries
of the property and rights so sold, Mortgagor hereby ratifying and
confirming all that said attorney or such substitute or substitutes shall
lawfully do by virtue thereof. Nevertheless, Mortgagor, if requested by
Mortgagee, shall ratify and confirm any such sale or sales by executing
and delivering to Mortgagee or such purchaser or purchasers all such
instruments as may be advisable, in Mortgagee's judgment, for the purposes
as may be designated in such request.
(iv) Any and all statements of fact or other recitals made in any
of the instruments referred to in Subsection 24(e)(iii) above given by
Mortgagee shall be taken as conclusive and binding against all persons as
to evidence of the truth of the facts so stated and recited.
(v) Any such sale or sales shall operate to divest all of the
estate, right, title, interest, claim and demand whatsoever, whether at
law or in equity, of Mortgagor in and to the properties and rights so
sold, and shall be a perpetual bar both at law and in equity against
Mortgagor and any and all persons claiming or who may claim the same, or
any part thereof or any interest therein, by, through or under Mortgagor
to the fullest extent permitted by applicable law.
(vi) Upon any such sale or sales, Mortgagee may bid for and acquire
the Mortgaged Property and, in lieu of paying cash therefor, may make
settlement for the purchase price by crediting against the Debt the amount
of the bid made therefor, after deducting therefrom the expenses of the
sale, the cost of any enforcement proceeding hereunder, and any other sums
which Mortgagee is authorized to deduct under the terms hereof, to the
extent necessary to satisfy such bid.
(vii) Upon any such sale, it shall not be necessary for
Mortgagee or any public officer acting under execution or order of court
to have present or constructively in its possession any of the Mortgaged
Property.
(f) Mortgagee's Judicial Remedies. Mortgagee may proceed by suit
or suits, at law or in equity, to enforce the payment of the Debt to foreclose
the liens and security interests of this Mortgage as against all or any part of
the Mortgaged Property, and to have all or any part of the Mortgaged Property
sold under the judgment or decree of a court of competent jurisdiction. This
remedy shall be cumulative of any other nonjudicial remedies available to
Mortgagee under this Mortgage or the other Loan Documents. Proceeding with a
request or receiving a judgment for legal relief shall not be or be deemed to be
an election of remedies or bar any available nonjudicial remedy of Mortgagee.
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(g) Mortgagee's Right to Appointment of Receiver. Mortgagee, as a
matter of right and (i) without regard to the sufficiency of the security for
repayment of the Debt and without notice to Mortgagor, (ii) without any showing
of insolvency, fraud, or mismanagement on the part of Mortgagor, (iii) without
the necessity of filing any judicial or other proceeding other than the
proceeding for appointment of a receiver, and (iv) without regard to the then
value of the Mortgaged Property, shall be entitled to the appointment of a
receiver or receivers for the protection, possession, control, management and
operation of the Mortgaged Property, including (without limitation), the power
to collect the Rents, enforce this Mortgage and, in case of a sale and
deficiency, during the full statutory period of redemption (if any), whether
there be a redemption or not, as well as during any further times when
Mortgagor, except for the intervention of such receiver, would be entitled to
collection of such Rents. Mortgagor hereby irrevocably consents to the
appointment of a receiver or receivers. Any receiver appointed pursuant to the
provisions of this subsection shall have the usual powers and duties of
receivers in such matters.
(h) Mortgagee's Uniform Commercial Code Remedies. The Mortgagee
may exercise its rights of enforcement under the Uniform Commercial Code in
effect in the state in which the Mortgaged Property is located.
(i) Other Rights. Mortgagee (i) may surrender the Policies
maintained pursuant to this Mortgage or any part thereof, and upon receipt shall
apply the unearned premiums as a credit on the Debt, and, in connection
therewith, Mortgagor hereby appoints Mortgagee as agent and attorney-in-fact
(which is coupled with an interest and is therefore irrevocable) for Mortgagor
to collect such premiums; and (ii) may apply any other funds held by Mortgagee
toward payment of the Debt; and (iii) shall have and may exercise any and all
other rights and remedies which Mortgagee may have at law or in equity, or by
virtue of any of the Loan Documents, or otherwise.
(j) Discontinuance of Remedies. In case Mortgagee shall have
proceeded to invoke any right, remedy, or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon same for any
reason, Mortgagee shall have the unqualified right so to do and, in such event,
Mortgagor and Mortgagee shall be restored to their former positions with respect
to the Debt, the Loan Documents, the Mortgaged Property or otherwise, and the
rights, remedies, recourses and powers of Mortgagee shall continue as if same
had never been invoked.
(k) Remedies Cumulative. All rights, remedies, and recourses of
Mortgagee granted in the Note, this Mortgage and the other Loan Documents, any
other pledge of collateral, or otherwise available at law or equity: (i) shall
be cumulative and concurrent; (ii) may be pursued separately, successively, or
concurrently against Mortgagor, the Mortgaged Property, or any one or more of
them, at the sole discretion of Mortgagee; (iii) may be exercised as often as
occasion therefor shall arise, it being agreed by Mortgagor that the exercise or
failure to exercise any of same shall in no event be construed as a waiver or
release thereof or of any other right, remedy, or recourse; (iv) shall be
nonexclusive; (v) shall not be conditioned upon Mortgagee exercising or pursuing
any remedy in relation to the Mortgaged Property prior to Mortgagee bringing
suit to recover the Debt; and (vi) in the event Mortgagee elects to bring suit
on the Debt and obtains a judgment against Mortgagor prior to exercising any
remedies in relation to the Mortgaged Property,
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all liens and security interests, including the lien of this Mortgage, shall
remain in full force and effect and may be exercised thereafter at Mortgagee's
option.
(l) Election of Remedies. 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 interests evidenced by this Mortgage or the other Loan Documents or
affecting the obligations of Mortgagor or any other party to pay the Debt. For
payment of the Debt, Mortgagee may resort to any collateral securing the payment
of the Debt in such order and manner as Mortgagee may elect. No collateral taken
by Mortgagee shall in any manner impair or affect the lien or security interests
given pursuant to the Loan Documents, and all collateral shall be taken,
considered, and held as cumulative.
(m) Bankruptcy Acknowledgment. In the event the Mortgaged Property
or any portion thereof or any interest therein becomes property of any
bankruptcy estate or subject to any state or federal insolvency proceeding, then
Mortgagee shall immediately become entitled, in addition to all other relief to
which Mortgagee may be entitled under this Mortgage, to obtain (i) an order from
the Bankruptcy Court or other appropriate court granting immediate relief from
the automatic stay pursuant to Section 362 of the Bankruptcy Code so to permit
Mortgagee to pursue its rights and remedies against Mortgagor as provided under
this Mortgage and all other rights and remedies of Mortgagee at law and in
equity under applicable state law, and (ii) an order from the Bankruptcy Court
prohibiting Mortgagor's use of all "cash collateral" as defined under Section
363 of the Bankruptcy Code. In connection with such Bankruptcy Court orders,
Mortgagor shall not contend or allege in any pleading or petition filed in any
court proceeding that Mortgagee does not have sufficient grounds for relief from
the automatic stay. Any bankruptcy petition or other action taken by Mortgagor
to stay, condition, or inhibit Mortgagee from exercising its remedies are hereby
admitted by Mortgagor to be in bad faith and Mortgagor further admits that
Mortgagee would have just cause for relief from the automatic stay in order to
take such actions authorized under state law.
(n) Application of Proceeds. The proceeds from any sale, lease, or
other disposition made pursuant to this Mortgage, or the proceeds from the
surrender of any insurance policies pursuant hereto, or any Rents collected by
Mortgagee from the Mortgaged Property, or proceeds from insurance which
Mortgagee elects to apply to the Debt pursuant to Section 3 hereof, shall be
applied by Mortgagee, as the case may be, to the Debt in the following order and
priority: (i) to the payment of all expenses of advertising, selling, and
conveying the Mortgaged Property or part thereof, and/or prosecuting or
otherwise collecting Rents, proceeds, premiums or other sums including
reasonable attorneys' fees; (ii) to that portion, if any, of the Debt with
respect to which no person or entity has personal or entity liability for
payment (the "Exculpated Portion"), and with respect to the Exculpated Portion
as follows: first, to accrued but unpaid interest, second, to matured principal,
and third, to unmatured principal in inverse order of maturity; (iii) to the
remainder of the Debt as follows: first, to the remaining accrued but unpaid
interest, second, to the matured portion of principal of the Debt, and third, to
prepayment of the unmatured portion, if any, of principal of the Debt applied to
installments of principal in inverse order of maturity; (iv) the balance, if any
or to the extent applicable, remaining after the full and final payment of the
Debt to the holder or beneficiary of any inferior liens covering the Mortgaged
Property, if any, in order of the priority of such inferior liens (Mortgagee
shall hereby be entitled to rely exclusively on a commitment for title
33
insurance issued to determine such priority); and (v) the cash balance, if any,
to Mortgagor. The application of proceeds of sale or other proceeds as otherwise
provided herein shall be deemed to be a payment of the Debt like any other
payment. The balance of the Debt remaining unpaid, if any, shall remain fully
due and owing in accordance with the terms of the Note and the other Loan
Documents.
25. Security Agreement. This Mortgage is both a real property mortgage
or deed of trust and a "security agreement" within the meaning of the Uniform
Commercial Code. The Mortgaged Property includes both real and personal property
and all other rights and interests, whether tangible or intangible in nature, of
Mortgagor in the Mortgaged Property. Mortgagor by executing and delivering this
Mortgage has granted and hereby grants to Mortgagee, as security for the Debt, a
security interest in the Mortgaged Property to the full extent that the
Mortgaged Property may be subject to the Uniform Commercial Code (said portion
of the Mortgaged Property so subject to the Uniform Commercial Code being called
in this section the "Collateral"). Mortgagor hereby agrees with Mortgagee to
execute and deliver to Mortgagee, in form and substance satisfactory to
Mortgagee, such financing statements and such further assurances as Mortgagee
may from time to time, reasonably consider necessary to create, perfect, and
preserve Mortgagee's security interest herein granted. This Mortgage shall also
constitute a "fixture filing" for the purposes of the Uniform Commercial Code.
All or part of the Mortgaged Property are or are to become fixtures. Information
concerning the security interest herein granted may be obtained from the parties
at the addresses of the parties set forth in the first paragraph of this
Mortgage. If an Event of Default shall occur, Mortgagee, in addition to any
other rights and remedies which it may have, shall have and may exercise
immediately and without demand, any and all rights and remedies granted to a
secured party upon default under the Uniform Commercial Code, including, without
limiting the generality of the foregoing, the right to take possession of the
Collateral or any part thereof , and to take such other measures as Mortgagee
may deem necessary for the care, protection and preservation of the Collateral.
Upon request or demand of Mortgagee, Mortgagor shall at its expense assemble the
Collateral and make it available to Mortgagee at a convenient place acceptable
to Mortgagee. Mortgagor shall pay to Mortgagee on demand any and all expenses,
including legal expenses and attorneys' fees, incurred or paid by Mortgagee in
protecting the interest in the Collateral and in enforcing the rights hereunder
with respect to the Collateral. Any notice of sale, disposition or other
intended action by Mortgagee with respect to the Collateral sent to Mortgagor in
accordance with the provisions hereof at least five (5) days prior to such
action, shall constitute commercially reasonable notice to Mortgagor. The
proceeds of any disposition of the Collateral, or any part thereof, may be
applied by Mortgagee to the payment of the Debt in such priority and proportions
as Mortgagee in its discretion shall deem proper. In the event of any change in
name, identity or structure of any Mortgagor, such Mortgagor shall notify
Mortgagee thereof and promptly after request shall execute, file and record such
Uniform Commercial Code forms as are necessary to maintain the priority of
Mortgagee's lien upon and security interest in the Collateral, and shall pay all
expenses and fees in connection with the filing and recording thereof. If
Mortgagee shall require the filing or recording of additional Uniform Commercial
Code forms or continuation statements, Mortgagor shall, promptly after request,
execute, file and record such Uniform Commercial Code forms or continuation
statements as Mortgagee shall deem necessary, and shall pay all expenses and
fees in connection with the filing and recording thereof, it being understood
and agreed, however, that no such additional documents shall increase
Mortgagor's obligations under the Note, this
34
Mortgage and the other Loan Documents. Mortgagor hereby irrevocably appoints
Mortgagee as its attorney-in-fact, coupled with an interest, to file with the
appropriate public office on its behalf any financing or other statements signed
only by Mortgagee, as Mortgagor's attorney-in-fact, in connection with the
Collateral covered by this Mortgage. Notwithstanding the foregoing, Mortgagor
shall appear and defend in any action or proceeding which affects or purports to
affect the Mortgaged Property and any interest or right therein, whether such
proceeding affects title or any other rights in the Mortgaged Property (and in
conjunction therewith, Mortgagor shall fully cooperate with Mortgagee in the
event Mortgagee is a party to such action or proceeding).
26. Right of Entry. In addition to any other rights or remedies granted
under this Mortgage, Mortgagee and its agents shall have the right to enter and
inspect the Mortgaged Property and Mortgagor's place of business, including its
financial and accounting records, and to make copies and take extracts
therefrom, and to discuss its affairs, finances and business with its officers
and independent public accountants (with such Mortgagor's representative(s)
present) at any reasonable time during the term of the Loan and as often as may
be reasonably requested. The cost of such inspections or audits shall be borne
by Mortgagor should Mortgagee determine that an Event of Default exists and is
not cured within applicable grace periods, including the cost of all follow up
or additional investigations or inquiries deemed reasonably necessary by
Mortgagee. The cost of such inspections, if not paid for by Mortgagor following
demand, may be added to the principal balance of the sums due under the Note and
this Mortgage and shall bear interest thereafter until paid at the Default Rate.
27. Actions and Proceedings. Mortgagee has the right to appear in and
defend any action or proceeding brought with respect to the Mortgaged Property
and to bring any action or proceeding, in the name and on behalf of Mortgagor,
which Mortgagee, in its discretion, decides should be brought to protect its
interest in the Mortgaged Property. Mortgagee shall, at its option, be
subrogated to the lien of any mortgage or other security instrument discharged
in whole or in part by the Debt, and any such subrogation rights shall
constitute additional security for the payment of the Debt.
28. Waiver of Setoff and Counterclaim, Marshalling, Statute of
Limitations, Automatic or Supplemental Stay, Etc. (a) All amounts due under this
Mortgage, the Note and the other Loan Documents shall be payable without setoff,
counterclaim or any deduction whatsoever. Mortgagor hereby waives the right to
assert a setoff, counterclaim or deduction in any action or proceeding in which
Mortgagee is a participant, or arising out of or in any way connected with this
Mortgage, the Note, any of the other Loan Documents, or the Debt.
(b) Mortgagor hereby expressly, irrevocably, and unconditionally
waives and releases, to the extent permitted by law (i) the benefit of all
appraisement, valuation, stay, extension, reinstatement and redemption laws now
or hereafter in force and all rights of marshalling, sale in the inverse order
of alienation, or any other right to direct in any manner the order or sale of
any of the Mortgaged Property in the event of any sale hereunder of the
Mortgaged Property or any part thereof or any interest therein; (ii) any and all
rights of redemption from sale under any order or decree of foreclosure of this
Mortgage on behalf of Mortgagor, and on behalf of each and every person
acquiring any interest in or title to the Mortgaged Property subsequent to the
date of this Mortgage
35
and on behalf of all persons to the extent permitted by applicable law; (iii)
all benefits that might accrue to Mortgagor by virtue of any present or future
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; and (iv) all
notices of any Event of Default except as expressly provided herein or of
Mortgagee's exercise of any right, remedy, or recourse provided for under the
Loan Documents.
(c) To the extent permitted by applicable law, Mortgagee's rights
hereunder shall continue even to the extent that a suit for collection of the
Debt, or part thereof, is barred by a statute of limitations. Mortgagor hereby
expressly waives and releases to the fullest extent permitted by law, the
pleading of any statute of limitations as a defense to payment of the Debt.
(d) In the event of the filing of any voluntary or involuntary
petition under the U.S. Bankruptcy Code (the "Bankruptcy Code") by or against
Mortgagor (other than an involuntary petition filed by or joined in by
Mortgagee), Mortgagor shall not assert, or request any other party to assert,
that the automatic stay under Section 362 of the Bankruptcy Code shall operate
or be interpreted to stay, interdict, condition, reduce or inhibit the ability
of Mortgagee to enforce any rights it has by virtue of this Mortgage, or any
other rights that Mortgagee has, whether now or hereafter acquired, against any
guarantor of the Debt. Further, Mortgagor shall not seek a supplemental stay or
any other relief, whether injunctive or otherwise, pursuant to Section 105 of
the Bankruptcy Code or any other provision therein to stay, interdict,
condition, reduce or inhibit the ability of Mortgagee to enforce any rights it
has by virtue of this Mortgage against any guarantor of the Debt. The waivers
contained in this section are a material inducement to Mortgagee's willingness
to enter into this Mortgage and Mortgagor acknowledges and agrees that no
grounds exist for equitable relief which would bar, delay or impede the exercise
by Mortgagee of Mortgagee's rights and remedies against Mortgagor or any
guarantor of the Debt.
29. Contest of Certain Claims. Notwithstanding the provisions of Section
4 and Subsection 22(i) hereof, Mortgagor shall not be in default for failure to
pay or discharge Taxes, Other Charges or mechanic's or materialman's liens
asserted against the Mortgaged Property if, and so long as, (a) Mortgagor shall
have notified Mortgagee of same within five (5) days of obtaining knowledge
thereof; (b) Mortgagor shall diligently and in good faith contest the same by
appropriate legal proceedings which shall operate to prevent the enforcement or
collection of the same and the sale of the Mortgaged Property or any part
thereof, to satisfy the same; (c) Mortgagor shall have furnished to Mortgagee a
cash deposit, or an indemnity bond satisfactory to Mortgagee with a surety
satisfactory to Mortgagee, in the amount of the Taxes, Other Charges or
mechanic's or materialman's lien claim, plus a reasonable additional sum to pay
all costs, interest and penalties that may be imposed or incurred in connection
therewith, to assure payment of the matters under contest and to prevent any
sale or forfeiture of the Mortgaged Property or any part thereof; (d) Mortgagor
shall promptly upon final determination thereof pay the amount of any such
Taxes, Other Charges or claim so determined, together with all costs, interest
and penalties which may be payable in connection therewith; (e) the failure to
pay the Taxes, Other Charges or mechanic's or materialman's lien claim does not
constitute a default under any other deed of trust, mortgage or security
interest covering or affecting any part of the Mortgaged Property; and (f)
notwithstanding the foregoing, Mortgagor shall immediately upon request of
Mortgagee pay (and if Mortgagor shall fail so to do,
36
Mortgagee may, but shall not be required to, pay or cause to be discharged or
bonded against) any such Taxes, Other Charges or claim notwithstanding such
contest, if in the opinion of Mortgagee, the Mortgaged Property or any part
thereof or interest therein may be in danger of being sold, forfeited,
foreclosed, terminated, canceled or lost. Mortgagee may pay over any such cash
deposit or part thereof to the claimant entitled thereto at any time when, in
the judgment of Mortgagee, the entitlement of such claimant is established.
30. Recovery of Sums Required to Be Paid. Mortgagee shall have the right
from time to time to take action to recover any sum or sums which constitute a
part of the Debt as the same become due, without regard to whether or not the
balance of the Debt shall be due, and without prejudice to the right of
Mortgagee thereafter to bring an action of foreclosure, or any other action, for
a default or defaults by Mortgagor existing at the time such earlier action was
commenced.
31. Handicapped Access. (a) Mortgagor agrees that the Mortgaged Property
shall at all times comply in all material respects with applicable requirements
of the Americans with Disabilities Act of 1990, the Fair Housing Amendments Act
of 1988, all state and local laws and ordinances related to handicapped access
and all rules, regulations, and orders issued pursuant thereto including,
without limitation, the Americans with Disabilities Act Accessibility Guidelines
for Buildings and Facilities (collectively, "Access Laws").
(b) Notwithstanding any provisions set forth herein or in any
other document regarding Mortgagee's approval of alterations of the Mortgaged
Property, Mortgagor shall not alter the Mortgaged Property in any manner which
would materially increase Mortgagor's responsibilities for compliance with the
applicable Access Laws without the prior written approval of Mortgagee. The
foregoing shall apply to tenant improvements constructed by Mortgagor or by any
of its tenants. Mortgagee may condition any such approval upon receipt of a
certificate from an architect, engineer, or other person acceptable to Mortgagee
of compliance with Access Laws.
(c) Mortgagor agrees to give prompt notice to Mortgagee of the
receipt by Mortgagor of any complaints related to violation of any Access Laws
and of the commencement of any proceedings or investigations which relate to
compliance with applicable Access Laws.
32. Indemnification; Limitation of Liability. (a) Unless caused solely
by an Indemnified Party's gross negligence or willful misconduct AND REGARDLESS
OF WHETHER CAUSED BY AN INDEMNIFIED PARTY'S ORDINARY NEGLIGENCE, Mortgagor shall
protect, defend, indemnify and save harmless the Indemnified Parties from and
against all actual liabilities, obligations, claims, damages, penalties, causes
of action, costs and expenses (including without limitation reasonable
attorneys' fees and expenses (of counsel engaged by Mortgagee, rather than of
all counsel engaged by all such Indemnified Parties)) imposed upon or incurred
by or asserted against any Indemnified Party by reason of (a) ownership of the
Mortgage, the Mortgaged Property or any interest therein or receipt of any
rents; (b) any accident, injury to or death of persons or loss of or damage to
property occurring in, on or about the Mortgaged Property or any part thereof or
on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (c) any use, nonuse or condition in, on or about the Mortgaged
Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (d) performance of any
labor or services or the furnishing of any materials or other property in
respect
37
of the Mortgaged Property or any part thereof; (e) any actions taken by any
Indemnified Party in the enforcement of this Mortgage and the other Loan
Documents; (f) any failure to act on the part of any Indemnified Party
hereunder; (g) the payment or nonpayment of any brokerage commissions to any
party in connection with the transaction contemplated hereby; and (h) the
failure of Mortgagor to file timely with the Internal Revenue Service an
accurate Form ▇▇▇▇-▇, ▇▇▇▇▇▇▇▇▇ for Recipients of Proceeds from Real Estate,
Broker and Barter Exchange Transactions, which may be required in connection
with this Mortgage, or to supply a copy thereof in a timely fashion to the
recipient of the proceeds of the transaction in connection with which this
Mortgage is made; provided, that the foregoing indemnification shall not include
punitive damages as may be charged to the Indemnified Parties (as opposed to
being claimed by the Indemnified Parties against the Mortgagor). Any amounts
payable to an Indemnified Party by reason of the application of this section
shall become immediately due and payable and shall bear interest at the Default
Rate from the date loss or damage is sustained by such Indemnified Party until
paid. The provisions of this Section 32 shall survive any termination,
satisfaction or assignments of the Loan Documents or the entry of a judgment of
foreclosure, sale of the Mortgaged Property by nonjudicial foreclosure sale,
delivery of a deed in lieu of foreclosure or the exercise by Mortgagee of any of
its other rights and remedies under this Mortgage or the other Loan Documents.
(b) Neither Mortgagee, nor any affiliate, officer, director,
employee, attorney, or agent of Mortgagee, shall have any liability with respect
to, and Mortgagor hereby waives, releases, and agrees not to ▇▇▇ any of them
upon, any claim for any special, indirect, incidental, or consequential damages
suffered or incurred by Mortgagor in connection with, arising out of, or in any
way related to, this Mortgage or any of the other Loan Documents, or any of the
transactions contemplated by this Mortgage or any of the other Loan Documents,
other than the gross negligence or willful misconduct of a Mortgagee. Mortgagor
hereby waives, releases, and agrees not to ▇▇▇ Mortgagee or any of Mortgagee's
affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any
way related to, this Mortgage or any of the other Loan Documents, or any of the
transactions contemplated by this Mortgage or any of the transactions
contemplated hereby except to the extent same is caused by the gross negligence
or willful misconduct of a Mortgagee.
33. Intentionally omitted.
34. Notices. Any notice, demand, statement, request or consent made
hereunder shall be in writing, addressed to the address, as set forth above, of
the party to whom such notice is to be given, or to such other address as
Mortgagor or Mortgagee, as the case may be, shall designate in writing, and
shall be deemed to be received by the addressee on (i) the day such notice is
personally delivered to such addressee, (ii) the third (3rd) day following the
day such notice is deposited with the United States postal service first class
certified mail, return receipt requested, (iii) the day following the day on
which such notice is delivered to a nationally recognized overnight courier
delivery service, or (iv) the day facsimile transmission is confirmed after
transmission of such notice by telecopy to such telecopier number as Mortgagor
or Mortgagee, as the case may be, shall have previously designated in writing.
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35. Authority. (a) Mortgagor (and the undersigned representative of
Mortgagor, if any) has full power, authority and right to execute, deliver and
perform its obligations pursuant to this Mortgage, and to mortgage, give, grant,
bargain, sell, alien, enfeoff, convey, confirm, warrant, pledge, hypothecate and
assign the Mortgaged Property pursuant to the terms hereof and to keep and
observe all of the terms of this Mortgage on Mortgagor's part to be performed;
and (b) Mortgagor represents and warrants that Mortgagor is not a "foreign
person" within the meaning of Section 1445(f)(3) of the Internal Revenue Code of
1986, as amended and the related Treasury Department regulations.
36. ERISA. (a) As of the date hereof and throughout the term of the
Loan, Mortgagor represents and covenants that (i) it is not and will not be an
"employee benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), which is subject to Title I
of ERISA, and (ii) the assets of Mortgagor do not and will not constitute "plan
assets" of one or more such plans for purposes of Title I of ERISA.
(b) As of the date hereof and throughout the term of the Loan,
Mortgagor represents and covenants that (i) it is not and will not be a
"governmental plan" within the meaning of Section 3(3) of ERISA, and (ii)
transactions by or with Mortgagor are not and will not be subject to state
statutes applicable to Mortgagor regulating investments of and fiduciary
obligations with respect to governmental plans.
(c) As of the date hereof and throughout the term of the Loan,
Mortgagor represents and covenants that (i) it is not and will not be subject to
state statutes regulating investments and fiduciary obligations with respect to
governmental plans, and (ii) one or more of the following circumstances is and
will continue through the term of the Loan to be true:
(A) Equity interests in Mortgagor are publicly offered
securities, within the meaning of 29 C.F.R. Section
2510.3-101(b)(2);
(B) Less than twenty-five percent (25%) of each outstanding
class of equity interests in Mortgagor are held by "benefit plan
investors" within the meaning of 29 C.F.R. Section 2510.3-101(f)(2);
or
(C) Mortgagor qualifies as an "operating company" or a "real
estate operating company" within the meaning of 29 C.F.R. Section
2510.3-101(c) or (e), or an investment company registered under The
Investment Company Act of 1940.
37. Waiver of Notice. Mortgagor shall not be entitled to any notices of
any nature whatsoever from Mortgagee except with respect to matters for which
this Mortgage specifically and expressly provides for the giving of notice by
Mortgagee to Mortgagor and except with respect to matters for which Mortgagee is
required by applicable law to give notice, and Mortgagor hereby expressly waives
the right to receive any notice from Mortgagee with respect to any matter for
which this Mortgage does not specifically and expressly provide for the giving
of notice by Mortgagee to Mortgagor.
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38. Remedies of Mortgagor. In the event that a claim or adjudication is
made that Mortgagee has acted unreasonably or unreasonably delayed acting in any
case where by law or under the Note, this Mortgage or the other Loan Documents,
it has an obligation to act reasonably or promptly, Mortgagee shall not be
liable for any monetary damages, and Mortgagor's remedies shall be limited to
injunctive relief or declaratory judgment.
39. Sole Discretion of Mortgagee. Whenever pursuant to this Mortgage or
the other Loan Documents, Mortgagee exercises any right given to it to consent,
approve or disapprove, or any arrangement or term is to be satisfactory to
Mortgagee, the decision of Mortgagee to consent, approve or disapprove, or to
decide that arrangements or terms are satisfactory or not satisfactory shall be
in the sole discretion of Mortgagee and shall be final and conclusive, except as
may be otherwise expressly and specifically provided herein. Notwithstanding
anything to the contrary contained herein, it shall be understood and agreed
that any such consent, approval, or disapproval may be conditioned, among other
things, upon Mortgagee obtaining confirmation by the Rating Agencies that the
action or other matter subject to Mortgagee's consent, approval, or disapproval
shall not adversely affect the rating of any securities issued or to be issued
in connection with any Secondary Market Transaction, notwithstanding that such
condition may not be expressly set forth in the provision or provisions of the
Loan Documents which require that Mortgagee's consent be obtained.
40. Non-Waiver. The failure of Mortgagee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Mortgage. Mortgagor shall not be relieved of Mortgagor's obligations
hereunder by reason of (a) the failure of Mortgagee to comply with any request
of Mortgagor or Guarantor to take any action to foreclose this Mortgage or
otherwise enforce any of the provisions hereof or of the Note or other Loan
Documents, (b) the release, regardless of consideration, of the whole or any
part of the Mortgaged Property, or of any person liable for the Debt or any
portion thereof, or (c) any agreement or stipulation by Mortgagee extending the
time of payment or otherwise modifying or supplementing the terms of the Note,
this Mortgage, or the other Loan Documents. Mortgagee may resort for the payment
of the Debt to any other security held by Mortgagee in such order and manner as
Mortgagee, in its discretion, may elect. Mortgagee may take action to recover
the Debt, or any portion thereof, or to enforce any covenant hereof without
prejudice to the right of Mortgagee thereafter to foreclosure this Mortgage. The
rights and remedies of Mortgagee under this Mortgage shall be separate, distinct
and cumulative and none shall be given effect to the exclusion of the others. No
act of Mortgagee shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision. Mortgagee shall not be
limited exclusively to the rights and remedies herein stated but shall be
entitled to every right and remedy now or hereafter afforded at law or in
equity.
41. Liability. If Mortgagor consists of more than one person, the
obligations and liabilities of each such person hereunder shall be joint and
several. Subject to the provisions hereof requiring Mortgagee's consent to any
transfer of the Mortgaged Property, this Mortgage shall be binding upon and
inure to the benefit of Mortgagor and Mortgagee and their respective successors
and assigns forever.
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42. Inapplicable Provisions. If any term, covenant or condition of this
Mortgage is held to be invalid, illegal or unenforceable in any respect, this
Mortgage shall be construed without such provision.
43. Headings, Etc. The headings and captions of various sections of this
Mortgage are for convenience of reference only and are not to be construed as
defining or limiting, in any way, the scope or intent of the provisions hereof.
44. Counterparts. This Mortgage may be executed in any number of
counterparts each of which shall be deemed to be an original but all of which
when taken together shall constitute one agreement.
45. Definitions. Unless the context clearly indicates a contrary intent
or unless otherwise specifically provided herein, words used in this Mortgage
may be used interchangeably in singular or plural form and the word "Mortgagor"
shall mean "each Mortgagor and any subsequent owner or owners of the Mortgaged
Property or any part thereof or any interest therein," the word "Mortgagee"
shall mean "Mortgagee and any subsequent holder of the Note," the word "Debt"
shall mean "the Note and any other evidence of indebtedness secured by this
Mortgage," the word "person" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, and the words "Mortgaged Property" shall
include any portion of the Mortgaged Property and any interest therein and the
words "attorneys' fees" shall include any and all attorneys' fees, paralegal and
law clerk fees, including, but not limited to, fees at the pre-trial, trial and
appellate levels incurred or paid by Mortgagee in protecting its interest in the
Mortgaged Property and Collateral and enforcing its rights hereunder. Whenever
the context may require, any pronouns used herein shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural and vice versa.
46. Homestead. Mortgagor hereby waives and renounces all homestead and
exemption rights provided by the constitution and the laws of the United States
and of any state, in and to the Premises as against the collection of the Debt,
or any part hereof.
47. Assignments. Mortgagee shall have the right to assign or transfer
its rights under this Mortgage and the other Loan Documents without limitation,
including, without limitation, the right to assign or transfer its rights to a
servicing agent. Any assignee or transferee shall be entitled to all the
benefits afforded Mortgagee under this Mortgage and the other Loan Documents.
48. Survival of Obligations; Survival of Warranties and Representations.
Each and all of the covenants, obligations, representations and warranties of
Mortgagor shall survive the execution and delivery of the Loan Documents and the
transfer or assignment of this Mortgage (including, without limitation, any
transfer of the Mortgage by Mortgagee of any of its rights, title and interest
in and to the Mortgaged Property to any party, whether or not affiliated with
Mortgagee), and shall also survive the entry of a judgment of foreclosure, sale
of the Mortgaged Property by non-judicial foreclosure or deed in lieu of
foreclosure and satisfaction of the Debt.
49. Covenants Running with the Land. All covenants, conditions,
warranties, representations and other obligations contained in this Mortgage and
the other Loan Documents are
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intended by Mortgagor and Mortgagee to be, and shall be construed as, covenants
running with the Mortgaged Property until the lien of this Mortgage has been
fully released by Mortgagee.
50. Governing Law; Jurisdiction. THIS MORTGAGE AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED (WITHOUT REGARD TO ANY CONFLICT
OF LAWS PRINCIPLES) AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
MORTGAGOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY COURT OF
COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE MORTGAGED PROPERTY IS
LOCATED IN CONNECTION WITH ANY PROCEEDING OUT OF OR RELATING TO THIS MORTGAGE.
51. Time. Time is of the essence in this Mortgage and the other Loan
Documents.
52. No Third-Party Beneficiaries. The provisions of this Mortgage and
the other Loan Documents are for the benefit of Mortgagor and Mortgagee and
shall not inure to the benefit of any third party (other than any successor or
assignee of Mortgagee). This Mortgage and the other Loan Documents shall not be
construed as creating any rights, claims or causes of action against Mortgagee
or any of its officers, directors, agents or employees in favor of any party
other than Mortgagor.
53. Relationship of Parties. The relationship of Mortgagee and Mortgagor
is solely that of debtor and creditor, and Mortgagee has no fiduciary or other
special relationship with Mortgagor, and no term or condition of any of the Loan
Documents shall be construed to be other than that of debtor and creditor.
Mortgagor represents and acknowledges that the Loan Documents do not provide for
any shared appreciation rights or other equity participation interest.
54. Intentionally omitted.
55. Investigations. Any and all representations, warranties, covenants
and agreements made in this Mortgage (and/or in other Loan Documents) shall
survive any investigation or inspection made by or on behalf of Mortgagee.
56. Assignment of Leases and Rents. (a) Mortgagor acknowledges and
confirms that it has executed and delivered to Mortgagee an Assignment of Leases
and Rents of even date (as the same may be amended, restated, supplemented, or
otherwise modified from time to time, the "Assignment of Leases and Rents"),
intending that such instrument create a present, absolute assignment to
Mortgagee of the Leases and Rents. Without limiting the intended benefits or the
remedies provided under the Assignment of Leases and Rents, Mortgagor hereby
assigns to Mortgagee, as further security for the Debt and the Obligations, the
Leases and Rents. Subject to the expiration of applicable cure periods, while
any Event of Default exists, Mortgagee shall be entitled to exercise any or all
of the remedies provided in the Assignment of Leases and Rents and in Section 24
hereof, including, without limitation, the right to have a receiver appointed.
If any conflict or inconsistency exists between the assignment of the Leases and
the Rents in this Mortgage and the absolute assignment of the Leases and the
Rents in the Assignment of Leases and Rents, the terms of the Assignment of
Leases and Rents shall control.
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(b) So long as any part of the Debt and the Obligations secured
hereby remain unpaid and undischarged, the fee and leasehold estates to the
Mortgaged Property shall not merge, but shall remain separate and distinct,
notwithstanding the union of such estates either in Mortgagor, Mortgagee, any
lessee or any third party by purchase or otherwise.
57. Waiver of Right to Trial by Jury. MORTGAGOR HEREBY AGREES NOT TO
ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY
RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THIS MORTGAGE OR THE OTHER LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER
OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY MORTGAGOR, AND
IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH
THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. MORTGAGEE IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER BY MORTGAGOR.
58. Expenses and Attorneys' Fees. Mortgagor agrees to promptly pay all
reasonable fees, costs and expenses incurred by Mortgagee in connection with any
matters contemplated by or arising out of this Mortgage and the Loan Documents,
including the following, and all such fees, costs and expenses shall be part of
the Debt, payable on demand: (i) reasonable fees, costs and expenses (including
reasonable attorneys' fees, and other professionals retained by Mortgagee)
incurred in connection with the examination, review, due diligence
investigation, documentation and closing of the financing arrangements evidenced
by the Loan Documents; (ii) reasonable fees, costs and expenses (including
reasonable attorneys' fees and other professionals retained by Mortgagee)
incurred in connection with the administration of the Loan Documents and the
loan and any amendments, modifications and waivers relating thereto; (iii)
reasonable fees, costs and expenses (including reasonable attorneys' fees)
incurred in connection with the review, documentation, negotiation, closing and
administration of any subordination or intercreditor agreements; and (iv)
reasonable fees, costs and expenses (including attorneys' fees and fees of other
professionals retained by Mortgagee) incurred in any action to enforce this
Mortgage or the other Loan Documents or to collect any payments due from
Mortgagor under this Mortgage, the Note or any other Loan Document or incurred
in connection with any refinancing or restructuring of the credit arrangements
provided under this Mortgage, whether in the nature of a "workout" or in
connection with any insolvency or bankruptcy proceedings or otherwise.
59. Amendments and Waivers. Except as otherwise provided herein, no
amendment, modification, termination or waiver of any provision of this
Mortgage, the Note or any other Loan Document, or consent to any departure
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Mortgagee and any other party to be charged. Each amendment,
modification, termination or waiver shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or
demand on Mortgagor in any case shall entitle Mortgagor to any other or further
notice or demand in similar or other circumstances.
43
60. Sophisticated Parties; Reasonable Terms. Mortgagor represents,
warrants and acknowledges that (i) Mortgagor is a sophisticated real estate
investor, familiar with transactions of this kind, and (ii) Mortgagor has
entered into this Mortgage and the other Loan Documents after conducting its own
assessment of the alternatives available to it in the market, and after lengthy
negotiations in which it has been represented by legal counsel of its choice.
Mortgagor also acknowledges and agrees that the rights of Mortgagee under this
Mortgage and the other Loan Documents are reasonable and appropriate, taking
into consideration all of the facts and circumstances including without
limitation the quantity of the loan secured by this Mortgage, the nature of the
Mortgaged Property, and the risks incurred by Mortgagee in this transaction.
61. Servicer. Mortgagee shall have the right at any time throughout the
term of the loan to designate a loan servicer to administer this Mortgage and
the other Loan Documents. All of Mortgagee's rights under this Mortgage and the
Loan Documents may be exercised by any such servicer designated by Mortgagee.
Any such servicer shall be entitled to the benefit of all obligations of
Mortgagor in favor of Mortgagee.
62. No Duty. All loan servicers, attorneys, accountants, appraisers, and
other professionals and consultants retained by Mortgagee or any such loan
servicers shall have the right to act exclusively in the interest of Mortgagee
and shall have no duty of disclosure, duty of loyalty, duty of care, or other
duty or obligation of any type or nature whatsoever to Mortgagor, any Guarantor
or Affiliate.
63. Limitation on Liability. This Mortgage is a Loan Document, as
defined in the Note, to which the provisions of Section 12 of the Note apply and
are hereby incorporated in full herein by this reference, including those
provisions providing for the limitation on the personal liability of the
Mortgagor and other persons under the Loan Documents.
64. Mechanic's Lien Laws. Mortgagee shall be and is hereby authorized
and empowered to take all actions as mortgagee permitted by the mechanics' lien
laws of the State of Ohio, including, without limitation, Section 1311.14 of the
Ohio Revised Code, and all amendments and supplements thereto.
65. Release of Cross Default/Cross Collateralization. Notwithstanding
anything to the contrary set forth in this Mortgage, Mortgagee may, at its sole
option and in its sole discretion deliver written notice to Mortgagor stating
that this Mortgage and the other Loan Documents shall no longer secure the
Crossed Loan (a "Release Notice"), whereupon (i) this Mortgage and the other
Loan Documents shall no longer secure the Crossed Loan, and (ii) each reference
herein and in the other Loan Documents to the "Crossed Loan", the "Crossed
Debt", the "Crossed Note", the "Crossed Mortgage", the "Crossed Loan Documents"
and the "Crossed Property" shall be deemed of no further force or effect. In
addition to and without limiting the foregoing, Mortgagor hereby agrees to fully
cooperate with Mortgagee if Mortgagee is considering the termination of the
cross collateralization and cross default of this Mortgage with the Crossed
Loan, including, but not limited to (x) amending this Mortgage and the other
Loan Documents as may be required by Mortgagee to effectuate such termination of
the cross collateralization and cross default provisions thereof, (y) updating
and/or endorsing the title insurance policies (at Mortgagee's cost as to
additional premium charges, if any) to reflect the continuation of the first
priority lien of this Mortgage, and (z) forming
44
a special-purpose bankruptcy remote entity, which shall be an affiliate of
Mortgagor, to be the borrower (the "Successor Borrower") under the Crossed Loan,
assigning the Crossed Loan Documents from Mortgagor to the Successor Borrower,
transferring the collateral for the Crossed Loan to the Successor Borrower, and
obtaining such legal opinions as may be reasonable required by Mortgagee.
Notwithstanding the foregoing, Mortgagor shall not be compelled to take any
action under this Section 65 which would impose an out of pocket cost on
Mortgagor in excess of $1,000, unless Mortgagee undertakes to pay such cost.
66. Partial Release. Mortgagee agrees to issue a partial release from
the lien of this Mortgage, without prepayment of the Debt or payment of a
release price, of that certain undeveloped portion of the Mortgaged Property as
approximately depicted in the cross-hatched area on Exhibit B attached hereto
(the "Partial Release Parcel"; such partial release thereof being herein
referred to as the "Partial Release"), provided that all of the following
conditions precedent have been satisfied:
(a) Mortgagor shall have submitted a written request to Mortgagee for
the release of the Partial Release Parcel at least thirty (30) days prior to the
date of the proposed Partial Release;
(b) no Event of Default shall have occurred and be continuing;
(c) to the extent not sufficiently provided for in that certain
Operation and Easement Agreement dated June 1, 1999 by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇
Corporation, Meijer, Inc. and Ramco ▇▇▇▇▇▇▇▇▇▇ Properties, L.P., usual and
appropriate reciprocal easement and common use agreements shall have been
approved by Mortgagee, using commercial standards customarily applied with
respect to mortgage loans such as the Loan, and executed by all necessary
parties thereto providing, among other things, for cross ingress and egress with
respect to each portion of the remainder of the Mortgaged Property (the
"Remaining Mortgaged Property") and the Partial Release Parcel, common use and
maintenance, and such other reciprocal agreements as may be usual and necessary
under the circumstances, including, but not limited to, access, utilities and
parking;
(d) appropriate agreements or instruments shall have been delivered to
Mortgagee providing for the transfer of title to the Partial Release Parcel, and
upon completion of the Partial Release, title to the Partial Release Parcel
shall be transferred and no longer owned by Mortgagor;
(e) Mortgagee shall have received an endorsement to Mortgagee's title
insurance policy covering the Mortgaged Property, insuring Mortgagee that the
lien of this Mortgage is and remains a first lien against the Remaining
Mortgaged Property and is not and will not be impaired or affected by reason of
the release, and such other endorsements as Mortgagee may reasonably require;
(f) either (i) the Mortgaged Property shall have been (or will be, upon
the completion of the Partial Release) legally subdivided pursuant to a properly
recorded subdivision map which has been approved by all appropriate governmental
offices providing that the Remaining Mortgaged Property and the Partial Release
Parcel are separate and distinct legally subdivided parcels or (ii) Mortgagor
shall have delivered to Mortgagee satisfactory evidence that a subdivision is
not required by applicable law;
45
(g) Mortgagor shall have provided to Mortgagee a satisfactory legal
description of the Release Partial which accurately describes the Release Parcel
as an area of the Mortgaged Property substantially similar to the cross-hatched
area depicted on Exhibit B, and the Release Partial shall not exceed 85,000
square feet.
(h) Mortgagor shall have provided to Mortgagee satisfactory evidence
that the Partial Release Parcel has a tax identification number or assessor's
parcel number separate from the Remaining Mortgaged Property and no part of the
Remaining Mortgaged Property is part of a tax lot affecting any portion of the
Partial Release Parcel (which may be accomplished by delivery to Mortgagee of a
separate tax parcel endorsement to Mortgagee's title insurance policy, in a form
reasonably satisfactory to Mortgagee);
(i) Mortgagor shall have executed and delivered to Mortgagee all
documents and instruments necessary or appropriate to effectuate the Partial
Release;
(j) Mortgagor shall have delivered to Mortgagee evidence satisfactory to
Mortgagee, using commercial standards customarily applied with respect to
mortgage loans such as the Loan, that the Remaining Mortgaged Property fully
complies with all applicable zoning laws and ordinances, and that no reduction
in parking, landscaping or other amenities shall result from the Partial
Release;
(k) in the event the Partial Release does not occur on or before the
date which is ninety (90) days after the date hereof, then, if required by
Mortgagee, Mortgagor shall have provided to Mortgagee a legal opinion to the
effect that, if the Loan were in a Real Estate Mortgage Investment Conduit
("REMIC") (as such term is defined in Section 860D(a) of the Code) pool ("REMIC
Pool"), the Partial Release would not cause (A) the Loan to fail to be a
"qualified mortgage" within the meaning of Section 860G(a)(3) of the Code, (B)
any failure of any REMIC Pool to qualify as a REMIC for federal income tax
purposes, or (C) the imposition of any tax upon any REMIC Pool or any of such
REMIC Pool's assets, including without limitation any tax on "prohibited
transactions" imposed under Section 860F(a)(2) of the Code; and
(l) Mortgagor shall have paid Mortgagee's reasonable costs and expenses
in connection with the Partial Release, as set forth below.
All costs and expenses incurred by Mortgagee in connection with such Partial
Release, including, but not limited to, the preparation, negotiation and review
of any and all materials required to be provided in connection therewith
(including Mortgagee's reasonable attorneys' fees and expenses) shall be
reimbursed by Mortgagor promptly upon demand.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Mortgagor has executed this instrument the day and
year first above written.
MORTGAGOR:
RAMCO AUBURN CROSSROADS SPE LLC
A DELAWARE LIMITED LIABILITY COMPANY
By:
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President
STATE OF ____________ )
) ss:
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ____ day of
______________, 2004 by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, the President of Ramco Auburn
Crossroads SPE LLC, a Delaware limited liability company, on behalf of the
company.
_____________________________
Notary Public
This instrument prepared by
and after recording return to:
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
Bank One Plaza
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Crossroads Mortgage
EXHIBIT A
Legal Description
EXHIBIT B
(See Attached)
SCHEDULE 1
DESCRIPTION OF CROSSED LOAN, CROSSED NOTE, CROSSED MORTGAGE AND
CROSSED PROPERTY
As used herein and in the instrument to which this Schedule is attached,
the following terms shall have the following meanings:
"Crossed Loan" shall mean the loan in the amount of $7,740,000 made by
Mortgagee to the Mortgagor, and evidenced and secured by the Crossed Note, the
Crossed Mortgage and the Crossed Loan Documents.
"Crossed Loan Documents" shall mean the "Loan Documents" as defined and
referred to in the Crossed Mortgage, as the same may be amended, modified,
supplemented, extended or restated from time to time.
"Crossed Note" shall mean that certain promissory note in the initial
principal amount of the Loan dated as of (or about) the date of the instrument
to which this Schedule is attached, made and given by the Mortgagor in favor of
Mortgagee, as the same may be amended, modified, supplemented, extended or
restated from time to time.
"Crossed Mortgage" shall mean that certain Mortgage dated as of (or about)
the date of the instrument to which this Schedule is attached, made and given by
the Mortgagor in favor of Mortgagee, as the same may be amended, modified,
supplemented, extended or restated from time to time.
"Crossed Property" shall mean the "Mortgaged Property" as defined and
referred to in the Crossed Mortgage, located in city of Auburn Hills, county of
Oakland, State of Michigan, as more particularly described in the Crossed
Mortgage.
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